Opinion
304 KA 19-00985
04-28-2023
The PEOPLE of the State of New York, Respondent, v. Cleveland C. ST. JOHN, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (TONYA PLANK OF COUNSEL), FOR DEFENDANT-APPELLANT.
PRESENT: WHALEN, P.J., PERADOTTO, BANNISTER, MONTOUR, AND GREENWOOD, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a nonjury verdict of murder in the second degree ( Penal Law § 125.25 [1] ) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]). Defendant contends that County Court's conclusion that defendant was not justified in using deadly physical force and was therefore guilty of murder in the second degree is against the weight of the evidence. Viewing the evidence in light of the elements of that crime in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the court's rejection of the justification defense was not contrary to the weight of the evidence (see People v. Allen , 183 A.D.3d 1284, 1286, 123 N.Y.S.3d 387 [4th Dept. 2020], affd 36 N.Y.3d 1033, 140 N.Y.S.3d 465, 164 N.E.3d 271 [2021] ). The testimony of the People's witnesses and the surveillance videos showed that defendant and the victim had a physical altercation outside a convenience store, after which defendant walked away from the store and toward his girlfriend's home nearby. Two to three minutes later, defendant walked back toward the store. As he neared the victim, defendant ran toward the victim with a gun in his hand and shot the victim as the victim ran away. When the victim fell to the ground, defendant shot at him several more times.
The court, "as the finder of fact, ‘was entitled to discredit the testimony of defendant’ that the victim was the initial aggressor" and thus to conclude that defendant was not entitled to use deadly physical force against the victim ( People v. Contreras , 154 A.D.3d 1320, 1321, 62 N.Y.S.3d 671 [4th Dept. 2017], lv denied 30 N.Y.3d 1104, 77 N.Y.S.3d 3, 101 N.E.3d 389 [2018] ; see People v. Addison , 184 A.D.3d 1099, 1101, 123 N.Y.S.3d 857 [4th Dept. 2020], lv denied 35 N.Y.3d 1092, 131 N.Y.S.3d 285, 155 N.E.3d 778 [2020] ; see generally Penal Law § 35.15 [1] [b] ; People v. Petty , 7 N.Y.3d 277, 285, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006] ). In addition, the surveillance videos established that the victim was not using or attempting to use deadly physical force when defendant chased him down and shot him (see People v. Warner , 194 A.D.3d 1098, 1104, 147 N.Y.S.3d 234 [3d Dept. 2021], lv denied 37 N.Y.3d 1030, 153 N.Y.S.3d 412, 175 N.E.3d 438 [2021] ; People v. Massey , 140 A.D.3d 1736, 1737, 32 N.Y.S.3d 419 [4th Dept. 2016], lv denied 28 N.Y.3d 972, 43 N.Y.S.3d 259, 66 N.E.3d 5 [2016] ; People v. Walker , 78 A.D.3d 1082, 1083, 912 N.Y.S.2d 85 [2d Dept. 2010] ; see generally § 35.15 [2] [a] ; People v. Sparks , 29 N.Y.3d 932, 934-935, 51 N.Y.S.3d 14, 73 N.E.3d 354 [2017] ). Moreover, the justification defense was inapplicable under the circumstances of this case inasmuch as defendant had the opportunity to retreat and failed to do so (see Massey , 140 A.D.3d at 1737, 32 N.Y.S.3d 419 ; see generally § 35.15 [2] [a] ).
Defendant contends that Penal Law § 265.03 is unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v. Bruen , ––– U.S. ––––, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022). Defendant failed to raise a constitutional challenge before the court, however, and therefore any such contention is not preserved for our review (see People v. Jacque-Crews , 213 A.D.3d 1335, 1335-1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023] ; People v. Reese , 206 A.D.3d 1461, 1462, 170 N.Y.S.3d 375 [3d Dept. 2022] ). Contrary to defendant's contention, we conclude that his constitutional challenge is not exempt from the preservation rule (see People v. Thomas , 50 N.Y.2d 467, 472-473, 429 N.Y.S.2d 584, 407 N.E.2d 430 [1980] ; Jacque-Crews , 213 A.D.3d at 1336, 183 N.Y.S.3d 234 ). We decline to exercise our power to review defendant's constitutional challenge as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).