Opinion
327 KA 20-00244
06-03-2022
The PEOPLE of the State of New York, Respondent, v. Eduardo VAZQUEZ, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN R. LEWIS OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (JOHN R. LEWIS OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (KENNETH H. TYLER, JR., OF COUNSEL), FOR RESPONDENT.
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, 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 jury verdict of murder in the second degree ( Penal Law § 125.25 [1] ). The conviction stems from an incident in which defendant shot and killed the victim following an altercation that occurred outside of defendant's Syracuse home. We affirm.
We reject defendant's contention that the verdict is against the weight of the evidence with respect to the justification defense (see People v. Johnson , 103 A.D.3d 1226, 1226-1227, 959 N.Y.S.2d 354 [4th Dept. 2013], lv denied 21 N.Y.3d 944, 968 N.Y.S.2d 6, 990 N.E.2d 140 [2013] ; see generally People v. Danielson , 9 N.Y.3d 342, 348-349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). "When a defense of justification is raised, ‘the People must prove beyond a reasonable doubt that [the] defendant's conduct was not justified’ " ( People v. Umali , 10 N.Y.3d 417, 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], rearg denied 11 N.Y.3d 744, 864 N.Y.S.2d 386, 894 N.E.2d 651 [2008], cert denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009] ; see Penal Law §§ 25.00 [1] ; 35.00; People v. Marchant , 152 A.D.3d 1243, 1245, 60 N.Y.S.3d 616 [4th Dept. 2017] ). Specifically, in this case, "the People were required to prove either that defendant lacked a subjective belief that [his] use of deadly physical force was necessary to protect [himself] against [the victim's] imminent use of deadly physical force, or that a reasonable person in the same situation would not have perceived that deadly force was necessary" ( Marchant , 152 A.D.3d at 1245, 60 N.Y.S.3d 616 [internal quotation marks omitted]; see Penal Law § 35.15 [1], [2] [a] ; Umali , 10 N.Y.3d at 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046 ). Here, a different result would not have been unreasonable based on the evidence presented (see generally Danielson , 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1 ). Nevertheless, viewing the evidence in light of the jury instructions concerning the elements of the crime and the defense of justification (see id. at 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we conclude that, upon " ‘weigh[ing] the relative probative force of [the] conflicting testimony and the relative strength of [the] conflicting inferences that may be drawn from the testimony,’ " the verdict is not against the weight of the evidence ( People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ; see People v. Perkins , 160 A.D.3d 1455, 1456, 76 N.Y.S.3d 700 [4th Dept. 2018], lv denied 31 N.Y.3d 1151, 83 N.Y.S.3d 433, 108 N.E.3d 507 [2018] ). Defendant's testimony that, contrary to the account established by the People's witnesses, the victim arrived at defendant's Syracuse home while carrying a handgun and threatening to kill defendant and his family merely "presented a credibility issue for the [jury] to resolve" ( Perkins , 160 A.D.3d at 1456, 76 N.Y.S.3d 700 [internal quotation marks omitted]; see People v. Alls , 195 A.D.2d 952, 953, 601 N.Y.S.2d 749 [4th Dept. 1993], lv denied 82 N.Y.2d 890, 610 N.Y.S.2d 157, 632 N.E.2d 467 [1993] ), and the jury, "as the finder of fact, ‘was entitled to discredit the testimony of defendant’ that the victim was the initial aggressor" ( 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] ). We note that defendant's testimony that the victim was about to shoot him was contradicted by other evidence in the record (see People v. Di Bella , 277 A.D.2d 699, 700-701, 715 N.Y.S.2d 777 [3d Dept. 2000], lv denied 96 N.Y.2d 758, 725 N.Y.S.2d 284, 748 N.E.2d 1080 [2001] ), and "the testimony of the People's witnesses was not incredible as a matter of law, i.e., it was not impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( People v. Resto , 147 A.D.3d 1331, 1334, 47 N.Y.S.3d 522 [4th Dept. 2017], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017], reconsideration denied 29 N.Y.3d 1094, 63 N.Y.S.3d 10, 85 N.E.3d 105 [2017] [internal quotation marks omitted]). Ultimately, " ‘the jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded’ " ( People v. Chelley , 121 A.D.3d 1505, 1506, 993 N.Y.S.2d 597 [4th Dept. 2014], lv denied 24 N.Y.3d 1218, 4 N.Y.S.3d 606, 28 N.E.3d 42 [2015], reconsideration denied 25 N.Y.3d 1070, 12 N.Y.S.3d 622, 34 N.E.3d 373 [2015] ; see Contreras , 154 A.D.3d at 1321, 62 N.Y.S.3d 671 ). Defendant did not object to Supreme Court's charge to the jury on the justification defense and therefore failed to preserve for review his contention that the charge was insufficient because the jury was not instructed that a justification defense could also include a defense of third parties and because the court did not relate the law on justification to the facts of this particular case (see People v. Cruz , 175 A.D.3d 1060, 1061, 108 N.Y.S.3d 620 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 756, 138 N.E.3d 485 [2019] ; People v. Heatley , 116 A.D.3d 23, 25-26, 980 N.Y.S.2d 701 [4th Dept. 2014], appeal dismissed 25 N.Y.3d 933, 5 N.Y.S.3d 362, 28 N.E.3d 542 [2015] ). We decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Contrary to defendant's next contention, the court properly refused to suppress statements that he made to a police officer during an interview that occurred after his warrantless arrest at a North Carolina residence on the ground that the arresting officers entered that home without consent in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). " ‘Where a person with ostensible authority consents to police presence on the premises, either explicitly or tacitly, the right to be secure against warrantless arrests in private premises as expressed in Payton v. New York, 445 U.S. 573 [100 S.Ct. 1371, 63 L.Ed.2d 639] (1980) is not violated’ " ( People v. Bunce , 141 A.D.3d 536, 537, 35 N.Y.S.3d 414 [2d Dept. 2016], lv denied 28 N.Y.3d 969, 43 N.Y.S.3d 257, 66 N.E.3d 3 [2016] ). Inasmuch as consent may be established by conduct (see People v. Huff , 133 A.D.3d 1223, 1223, 19 N.Y.S.3d 378 [4th Dept. 2015], lv denied 27 N.Y.3d 999, 38 N.Y.S.3d 109, 59 N.E.3d 1221 [2016] ; People v. Sinzheimer , 15 A.D.3d 732, 734, 790 N.Y.S.2d 554 [3d Dept. 2005], lv denied 5 N.Y.3d 794, 801 N.Y.S.2d 815, 835 N.E.2d 675 [2005] ), we conclude that the conduct of defendant's stepson "in stepping aside from the door to admit the officers is enough to establish consent" ( People v. Davis , 120 A.D.2d 606, 607, 502 N.Y.S.2d 80 [2d Dept. 1986], lv denied 68 N.Y.2d 769, 506 N.Y.S.2d 1052, 498 N.E.2d 154 [1986] ; see People v. Xochimitl , 147 A.D.3d 793, 794, 47 N.Y.S.3d 339 [2d Dept. 2017], affd 32 N.Y.3d 1026, 87 N.Y.S.3d 132, 112 N.E.3d 309 [2018] ; People v. Sigl , 107 A.D.3d 1585, 1586-1587, 967 N.Y.S.2d 570 [4th Dept. 2013], lv denied 21 N.Y.3d 1077, 974 N.Y.S.2d 326, 997 N.E.2d 151 [2013] ). Additionally, the testimony of police officers during the suppression hearing established that the stepson gestured to indicate that defendant was inside the home, and that the stepson did not otherwise object or offer resistance when the officers followed him inside (see People v. Satornino , 153 A.D.2d 595, 595, 544 N.Y.S.2d 224 [2d Dept. 1989] ; People v. Long , 124 A.D.2d 1016, 1017, 508 N.Y.S.2d 774 [4th Dept. 1986] ). Although the stepson testified at the suppression hearing that he did not consent to the officers’ entry into the North Carolina home, "the credibility determinations of the suppression court[, which rejected that testimony,] are entitled to great deference on appeal and will not be disturbed [inasmuch as they are not] clearly unsupported by the record" ( People v. Howard , 129 A.D.3d 1469, 1470, 12 N.Y.S.3d 404 [4th Dept. 2015], lv denied 26 N.Y.3d 968, 18 N.Y.S.3d 605, 40 N.E.3d 583 [2015], reconsideration denied 26 N.Y.3d 1089, 23 N.Y.S.3d 645, 44 N.E.3d 943 [2015] [internal quotation marks omitted]; see People v. Daniels , 147 A.D.3d 1392, 1392-1393, 46 N.Y.S.3d 358 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ; People v. Johnson , 138 A.D.3d 1454, 1454, 29 N.Y.S.3d 732 [4th Dept. 2016], lv denied 28 N.Y.3d 931, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ).
Defendant's remaining contention regarding the statements that he made during his postarrest interview with the police is unpreserved for our review (see People v. Graham , 174 A.D.3d 1486, 1488, 105 N.Y.S.3d 756 [4th Dept. 2019], lv denied 34 N.Y.3d 1016, 114 N.Y.S.3d 759, 138 N.E.3d 488 [2019] ; People v. Shire , 77 A.D.3d 1358, 1359, 908 N.Y.S.2d 305 [4th Dept. 2010], lv denied 15 N.Y.3d 955, 917 N.Y.S.2d 115, 942 N.E.2d 326 [2010] ; see generally CPL 470.05 [2] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a] ).
Finally, contrary to defendant's further contention, we conclude that the sentence is not unduly harsh or severe.