People v. Wilkins
| Docket Number | s. 111627,113426 |
| Decision Date | 25 May 2023 |
| Citation | 2023 NY Slip Op 02807 |
| Parties | The People of the State of New York, Respondent, v. Jovan A. Wilkins, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Calendar Date:March 29, 2023.
Martin J. McGuinness, Saratoga Springs, for appellant.
David J. Clegg, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), for respondent.
Before: Egan Jr., J.P., Lynch, Aarons, Fisher and McShan, JJ.
Appeals (1) from a judgment of the County Court of Ulster County (Donald A. Williams, J.), rendered January 18, 2019 upon a verdict convicting defendant of the crime of assault in the first degree, and (2) by permission, from an order of said court (James R. Farrell, J.), entered April 20, 2022, which denied defendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction, without a hearing.
In December 2017, a fight involving several individuals broke out at a house party in the Town of Plattekill, Ulster County, during which the victim was stabbed multiple times. Following an investigation, defendant was charged by indictment with assault in the first degree and attempted murder in the second degree. At the conclusion of the ensuing jury trial, defendant was found guilty of assault in the first degree and was acquitted of the remaining charge. Defendant was sentenced to a prison term of 18 years to be followed by five years of postrelease supervision. Thereafter, defendant moved pursuant to CPL 440.10 (1) (h) to vacate the judgment of conviction on the ground of a Brady violation related to certain impeachment evidence of one of the People's witnesses. County Court (Farrell, J.) denied defendant's motion without a hearing based upon its determination that there was no reasonable possibility that a different verdict would have resulted had the impeachment material been provided prior to trial. Defendant appeals from the judgment of conviction and, by permission, the denial of the CPL 440.10 motion.
We initially turn to defendant's weight of the evidence challenge, where "we [must] first determine whether, based upon all of the credible evidence, a different verdict would have been unreasonable and, if it would not have been, we then weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony to determine if the verdict is supported by the weight of the evidence" (People v Taylor, 207 A.D.3d 806, 807 [3d Dept 2022] [internal quotation marks and citations omitted], lv denied 39 N.Y.3d 942 [2022]). Relevant here, (Penal Law § 120.10 [1]). As defendant "advances a justification defense regarding the use of deadly physical force, the People are obliged to demonstrate beyond a reasonable doubt that he
... did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary" (People v Graham, ___ A.D.3d ___, ___, 2023 NY Slip Op 01819, *1 [3d Dept 2023] [internal quotation marks, brackets and citations omitted]; see People v Every, 146 A.D.3d 1157, 1161 [3d Dept 2017], affd 29 N.Y.3d 1103 [2017]). "However, a person who reasonably believes that another is about to use deadly physical force is not free to reciprocate with deadly physical force if such person knows that he or she can with complete safety as to himself, herself and others avoid the necessity of so doing by retreating" (People v Cutting, 206 A.D.3d 1281, 1281 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]; accord People v Decamp, 211 A.D.3d 1121, 1122 [3d Dept 2022], lv denied 39 N.Y.3d 1077 [2023]).
At trial, the People first called the victim, an off-duty correction officer, who testified that he accompanied his cousin and an acquaintance to a house party and, after having two beers, prepared to leave. As he exited out the front door with his cousin, the victim saw his acquaintance on the ground being punched, kicked and stomped on by three men, including defendant and another individual later identified as defendant's brother. The victim attempted to render aid to his acquaintance by pushing defendant and his brother, at which point he suddenly felt a sharp throbbing pain in his back. Realizing he had been stabbed, the victim turned and found himself face-to-face with defendant, who, according to the victim, stabbed him two more times in the abdominal area. The victim stated that he observed a black object in defendant's hand and then turned to run, at which point he was punched in the head, tackled to the ground and placed in a headlock by an unknown individual. According to the victim, he then observed defendant pick up a knife, come toward him and continuously stab him in his back several more times before backing away and making a celebratory gesture. The victim testified that he then managed to find his cousin, who transported him to the hospital.
The victim's cousin corroborated the victim's account of the altercation, testifying that he and the victim were leaving the party when they observed the acquaintance on the ground getting hit and kicked, prompting them to intervene. After pushing people off the acquaintance, the cousin turned and observed defendant standing behind the victim hitting him in the lower back and then standing face-to-face with the victim and hitting him in the stomach. The cousin noted that he did not witness a knife during the altercation, but after walking away toward his car with the acquaintance, the victim came over and told him that he had been stabbed. The cousin then transported the victim to the hospital, where he underwent emergency surgery. According to the victim's treating physician, the victim arrived at the hospital with nine significant puncture wounds, several of which were deep penetrating wounds that caused injuries to the victim's lung, diaphragm, spleen and small intestine and presented a danger of death.
Meanwhile, law enforcement was called to a different hospital upon a report of another patient with stab wounds and, upon arrival, encountered defendant, who had suffered a slight injury to his left hand during the altercation, and his brother, who was receiving treatment for several stab wounds. Law enforcement sought to obtain information concerning the altercation, but defendant and his brother refused to provide any details of the incident and did not want to seek criminal charges pertaining to the brother's injuries. As part of the investigation, law enforcement learned that defendant may have been responsible for the victim's injuries and, as a result, defendant was brought from the hospital to the State Police barracks for questioning. After waiving his Miranda rights, defendant explained that as he was leaving the house party, he saw people fighting and kicking his brother, which prompted defendant to intervene. According to defendant, he and his brother then left and, while driving home, he first observed his brother's wounds and took him to the hospital. During the initial interview, defendant stated that he never saw nor possessed a knife. Defendant was then taken to a different barracks to undergo a polygraph examination and was subsequently interrogated again. In the later interview, defendant explained that, upon attempting to render aid to his brother, the victim's acquaintance started to attack him with a knife and that he was able to grab the knife away from the acquaintance and was trying to defend himself by flailing the knife. Defendant described the knife to investigators and stated that he had the knife for about 30 seconds. However, defendant denied striking or stabbing anyone with the knife. Two forensic scientists testified to their analysis of defendant's clothing that was obtained from him while he was in custody. The first forensic scientist testified that she had obtained, among other items, various clippings from certain locations on defendant's shirt and that those clippings had presumptively tested positive for blood. The second forensic scientist testified that she had tested the clippings and that the victim's DNA was present in those locations.
For defendant's part, defendant's brother testified that he went to the house party with defendant and another individual. According to defendant's brother, he eventually went outside and tried to break up a fight, at which point he was punched by the victim's acquaintance. Defendant's brother testified that, while on the ground, he yelled for defendant to help and that defendant managed to push the attackers off, allowing the two to flee. Defendant's brother testified that he had three severe stab wounds after the altercation that required hospitalization. According to defendant's brother, the victim's acquaintance stabbed him and defendant's intervention in the altercation had saved his life. However, defendant's brother conceded that he did not see anyone wield a knife during the altercation. The defense also proffered the testimony of a friend of defendant's brother who was present for the fight. The friend testified consistent with defendant's brother's account, stating that she had observed the victim's acquaintance as the initial aggressor attacking defendant's brother. The friend described the altercation as a "big brawl" involving 10 to 15 people and denied seeing anyone get stabbed during the altercation. The friend also stated that, after the brawl had concluded, the victim's acquaintance physically attacked her.
Based on the foregoing, a different...
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