People v. Young

• Decision Date: 26 June 1997
• Parties: The PEOPLE of the State of New York, Respondent, v. Johnnie D. YOUNG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 542

659 N.Y.S.2d 542

240 A.D.2d 974

The PEOPLE of the State of New York, Respondent, v. Johnnie D. YOUNG, Appellant.

Supreme Court, Appellate Division,

Third Department.

June 26, 1997.

Carl J. Silverstein, Monticello, for appellant.

William J. Gibbons, District Attorney, Cooperstown, for respondent.

Before CARDONA, P.J., and MERCURE, CASEY, PETERS and SPAIN, JJ.

PETERS, Justice.

Appeal from a judgment of the County Court of Otsego County (Coccoma, J.), rendered February 15, 1996, upon a verdict convicting defendant of the crime of manslaughter in the second degree.

In February 1995, defendant was indicted on one count of murder in the second degree arising out of an incident in the City of Oneonta, Otsego County. In the early morning hours of January 7, 1995, defendant and a companion entered a pizzeria and sat down at a table near Michael Bell (hereinafter decedent) and his four companions. Defendant and decedent exchanged words which ultimately escalated into a physical altercation during which they both displayed knives. Within minutes, decedent was stabbed once in the heart, causing him to die shortly thereafter.

At trial, the jury heard the testimony of 26 witnesses including that of defendant. While admitting that he stabbed decedent, he claimed justification. At a precharge conference at which counsel had the opportunity to provide County Court with proposed charges, the court reviewed the instructions it intended to provide to the jury. Upon its charge to the jury on the crime of murder in the second degree and the lesser included offenses of manslaughter in the second degree and criminally negligent homicide, defendant neither objected nor asked for any additional charge.

The jury returned a verdict convicting defendant of manslaughter in the second degree. After an unsuccessful attempt to set aside the verdict as against the weight of the evidence, defendant was sentenced to a term of incarceration of 4 1/2 to 13 1/2 years. He now appeals, contending that the conviction was against the weight of the evidence, the prosecution failed to disprove justification as a defense and County Court's charge to the jury improperly shifted the burden of proof.

As to the challenge to County Court's jury charge, defendant admits that he neither objected to such charge nor asked for an additional charge, thereby precluding the court from issuing a curative instruction and failing to preserve this issue for our review (see, People v. Robinson, 88 N.Y.2d 1001, 648 N.Y.S.2d 869, 671 N.E.2d 1266; People v. Hubert, 238 A.D.2d 745, 656 N.Y.S.2d 493; People v. Southwick, 232 A.D.2d 755, 649 N.Y.S.2d 341, lv. denied 89 N.Y.2d 930, 654 N.Y.S.2d 732, 677 N.E.2d 304). We also decline to reverse on this issue in the interest of justice. County Court's initial instructions to the jury were correct. The error, if any, took place in response to a jury request which was, again, not objected to by defendant. Considering the court's instructions in their entirety, we find that they "insured that the jury was not misled" (People v. Maher, 89 N.Y.2d 456, 464, 654 N.Y.S.2d 1004, 677 N.E.2d 728; see, People v. Alava, 216 A.D.2d 794, 795, 628 N.Y.S.2d 868, lv. denied 87 N.Y.2d 897, 641 N.Y.S.2d 227, 663 N.E.2d 1257).

We also disagree with defendant's contention that the prosecution failed to disprove justification as a defense. Viewing the evidence, as we must, in a light most favorable to the People (see, People v. Rossey, 89 N.Y.2d 970, 655 N.Y.S.2d 861, 678 N.E.2d 473; People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that legally sufficient evidence was presented to establish defendant's guilt. As to the weight of the evidence, when viewed in a neutral light (see, People v. Carthrens, 171 A.D.2d 387, 577 N.Y.S.2d 249), we are again satisfied that the jury did not fail to "give [it] the weight it should be accorded" (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Mindful that in the first instance it is for the jury to assess the credibility of witnesses and resolve conflicting inferences and conclusions which could be drawn from the evidence presented (see, People v. Shannon, 105 A.D.2d 986, 481 N.Y.S.2d 820), we find support for the jury's conclusion that the prosecution disproved justification. While the defense of justification permits the use of force under certain circumstances:

Generally, the force permitted is related to the degree of force reasonably believed necessary to repel various threats. Thus, one may use physical force * * * if "he reasonably believes such to be necessary to defend himself * * * from what he reasonably believes to be the use or imminent use of unlawful physical force by [another]" (Penal Law § 35.15[1] ) or * * * may use "deadly physical force" if "[h]e reasonably believes that such other person is using or about to use deadly physical force" against him (Penal Law § 35.15[2][a] ) (Matter of Y.K., 87 N.Y.2d 430, 433, 639 N.Y.S.2d 1001, 663 N.E.2d 313).

While there is no affirmative duty to retreat when presented with unlawful physical force by another (see, Penal Law § 35.15[1] ), such is not the...