Opinion
16135 Ind. No. 2700/14 Case No. 2018-2111
06-16-2022
The PEOPLE of the State of New York, Respondent, v. Jason RIVERA, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant. Darcel D. Clark, District Attorney, Bronx (Shane Magnetti of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (John Vang of counsel), for appellant.
Darcel D. Clark, District Attorney, Bronx (Shane Magnetti of counsel), for respondent.
Acosta, P.J., Kapnick, Friedman, Mendez, Higgitt, JJ.
Judgment, Supreme Court, Bronx County (Lester B. Adler, J.), rendered August 29, 2017, convicting defendant, after a jury trial, of murder in the second degree, and sentencing him to a term of 18 years to life, unanimously affirmed.
The verdict was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Moreover, the evidence overwhelmingly disproved defendant's justification defense, regardless of whether the victim was the initial aggressor or first struck defendant with a pipe. Eyewitness testimony and a cell phone video established that defendant savagely beat the victim with the pipe after the victim had fallen to the sidewalk and was motionless. At that stage of the encounter, the 80–year–old victim was disarmed and helpless, and no longer posed any threat to the safety of defendant or his son (see People v. Bolling, 7 N.Y.3d 874, 875, 826 N.Y.S.2d 174, 859 N.E.2d 913 [2006] ; People v. Artis, 8 A.D.3d 135, 779 N.Y.S.2d 24 [1st Dept. 2004], lv denied 3 N.Y.3d 670, 784 N.Y.S.2d 8, 817 N.E.2d 826 [2004] ). In addition, once the victim was disarmed and on the ground, defendant plainly had the opportunity to retreat in complete safety by simply walking away with his son.
The court providently exercised its discretion in denying defendant's request for a missing witness charge regarding the person who recorded the video admitted into evidence. The authentication of the video is not at issue on appeal. At trial, the People's arguments in opposition to the charge sufficiently met their burden of demonstrating that the uncalled witness's testimony would have been cumulative (see People v. Smith, 33 N.Y.3d 454, 459–460, 104 N.Y.S.3d 572, 128 N.E.3d 649 [2019] ). The video depicted the same events that the witness's testimony would have addressed. Although defendant argues that the witness may have observed events that occurred before he started videotaping the incident, such as violent behavior by the victim, this would have had little or no relevance to the issue of whether defendant was justified in beating the victim with the pipe after any threat had abated. In any event, any error in failing to give a missing witness charge was harmless in light of the overwhelming evidence of defendant's guilt (see People v. Crimmins, 36 N.Y.2d 230, 242, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
The court also providently exercised its discretion in precluding defendant from introducing hearsay evidence purportedly demonstrating defendant's state of mind, including his alleged knowledge that the victim had a reputation for violence or had committed violent acts. First, the evidence, as it was offered during trial, was too remote and tenuous to establish any such awareness or any other relevant matters. Furthermore, although evidence of a defendant's awareness of the deceased's violent reputation or history normally has a bearing on a justification defense (see People v. Miller, 39 N.Y.2d 543, 552–553, 384 N.Y.S.2d 741, 349 N.E.2d 841 [1976] ), here it would not have supported a claim that defendant was justified in beating his disarmed and helpless victim. Defendant did not preserve his claim that the preclusion of this testimony deprived him of his constitutional right to present a defense (see People v. Umali, 10 N.Y.3d 417, 428–429, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], People v. Lane, 7 N.Y.3d 888, 889, 826 N.Y.S.2d 599, 860 N.E.2d 61 [2006] ; see also Smith v. Duncan, 411 F.3d 340, 348–349 [2d Cir. 2005] ), and we decline to review it in the interest of justice. As an alternative holding, we reject it on the merits (see Crane v. Kentucky, 476 U.S. 683, 689–690, 106 S.Ct. 2142, 90 L.Ed.2d 636 [1986] ).
We perceive no basis for reducing the sentence.