APPEAL by the defendant from a judgment of the County Court (Barbara Kahn, J.), rendered March 19, 2008, in Suffolk County, convicting him of manslaughter in the second degree and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
The opinion of the court was delivered by: Eng, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
STEVEN W. FISHER, J.P., DANIEL D. ANGIOLILLO, RANDALL T. ENG & PLUMMER E. LOTT, JJ.
On the night of August 9, 2006, the 53-year-old defendant shot and killed 17-year-old Daniel Cicciaro, Jr. The shooting occurred at the edge of the driveway of the defendant's home in Miller Place, New York. It is undisputed that the victim was part of a group of five teenagers who had driven to the defendant's home to confront the defendant's son about a threat he had allegedly made against a 14-year-old girl. However, sharply conflicting evidence was presented during the course of a lengthy jury trial regarding the events leading up to the shooting, the manner in which the shooting occurred, and whether race played any role in the encounter between the white youths and the African-American defendant. At the conclusion of the trial, the jury convicted the defendant of manslaughter in the second degree and criminal possession of a weapon in the third degree. The defendant now appeals, contending, among other things, that his conviction of manslaughter in the second degree was against the weight of the evidence because the shooting was justified in defense of his premises. The defendant also challenges the legal sufficiency of the evidence presented to establish his guilt of criminal possession of a weapon in the third degree, and raises several challenges to the trial court's evidentiary rulings and the propriety of its instructions to the jury.
At trial, the People's case relied heavily upon the testimony of the four young men who accompanied the victim to the defendant's home on the night of the shooting. These witnesses, Anthony Simeone, Thomas Maloney, Joseph Serrano, and Alex Delgado, all testified that on the night of August 8, 2006, they attended a 19th birthday party for Craig Martin, Jr., at which some of the guests, including the 17-year-old victim, consumed alcohol. The defendant's 19-year-old son Aaron arrived at the party at about 10:00 P.M., accompanied by a friend. However, Aaron was asked to leave the party because allegedly he had posted an Internet threat to sexually assault Martin's younger sister Jenny about eight months earlier, and she was uncomfortable with his presence. The alleged threat was made through a fake MySpace page which two of Aaron's friends had created as a prank. When Jenny told the victim about the threat, he became angry because she was "like a little sister to him," and called Aaron on his cell phone to argue with him. After a second angry telephone call, the victim announced to his friends that Aaron had told him to "come to his house and fight him." The victim left the party, got into a car driven by his friend Delgado, and asked Delgado to take him to Aaron's house. Simeone, Serrano, and Maloney followed in a second vehicle, allegedly intending to stop the victim, who was intoxicated, from fighting with Aaron. Prior to entering Maloney's car, Serrano grabbed a baseball bat, which he threw onto the back seat. After the victim apparently obtained directions from Aaron, the two cars carrying the five teenagers arrived at the cul-de-sac where the defendant's home was located shortly after 11:00 P.M. They parked on the street near the end of the cul-de-sac, leaving both cars running with their lights on, but facing away from the driveway of the defendant's home. The youths exited the cars unarmed, leaving the bat inside Maloney's vehicle. The group was standing in the street just in front of the apron of the defendant's driveway when the defendant and Aaron emerged from the garage, and walked down the driveway with their hands behind their backs. As they approached, Aaron pulled out a long rifle, and the defendant pulled out a black handgun.
A verbal altercation ensued, with yelling back and forth and the exchange of curses. Although the teenagers denied stepping onto the defendant's driveway, he shouted at them to get off his property, and "leave, leave." The victim demanded that Aaron step away from the property so they could fight. When Aaron began exchanging words with Maloney, the defendant lifted his gun and pointed it at Maloney's head. Seeing the weapon pointed at his friend, the victim screamed at the defendant to "put the gun down," and stepped onto the driveway. After a further exchange of curses, the defendant told the victim that "if you don't get out of here, I'm going to shoot you." The victim countered, "if you're going to shoot me, shoot me." The defendant then pointed the gun at the victim, bringing it just a few inches away from the victim's face. The victim backed up, and slapped the gun away with his right hand. However, the defendant brought the gun back up, and shot the victim in the face. While the victim's friends denied using racial slurs during the incident, in a tape-recorded 911 call, one of the youths can be heard shouting racial slurs as he vows to avenge the victim.
The People's case also included the testimony of a forensic scientist, who examined the .32 caliber Beretta handgun used to shoot the victim, and concluded that it required 9.5 to 10 pounds of force to fire, which he characterized as a "medium to heavy" trigger pull. Over defense counsel's objections, the forensic scientist was permitted to testify regarding other weapons, ammunition, and related paraphernalia recovered from the defendant's home. These weapons included several rifles and a shotgun. The forensic scientist also examined the crime scene after the shooting, observing a bloodstain on the apron of the defendant's driveway, and a second bloodstain in the street. According to the measurements he took during his examination, the distance from the defendant's garage to the edge of his driveway where the roadway began was 65 feet, and the distance from the defendant's front door to the edge of the driveway was 81 feet.
In addition, the People presented testimony from two other expert witnesses, who concluded, based upon the presence of stippling and soot on the victim's cheek, that the Beretta had been fired from close range.
In contrast, the defense witnesses maintained that the victim and his friends came to the defendant's home planning to harm Aaron, and that the young men repeatedly uttered racial slurs. Aaron testified that after being asked to leave the birthday party, he received a call on his cell phone from the victim, who demanded that he return so that the victim could "kick . . . [his] ass." The victim's anger stemmed from the "bogus comment" about Jenny which had been posted through the fake MySpace account, and was so intense that Aaron believed that the victim would beat him up or even kill him. After reaching his home and parking, Aaron received a phone call from a friend warning him not to return to the party because there were "10 guys waiting" to fight him. While still on the phone, Aaron saw a vehicle which he believed belonged to Delgado driving down the block. Afraid that the victim and the victim's friends "were going to come to [his] house" to get him, Aaron went inside and woke up the defendant, yelling "[D]ad, these guys are coming here to kill me." Aaron then received a second phone call from the victim, peppered with curses and racial epithets, threatening to be at Aaron's house within minutes. Looking outside, Aaron saw two people exiting from the vehicle he believed was owned by Delgado, and a second vehicle parked, facing the driveway, with its headlights on. He then received another call from the victim, which he placed on speaker phone for his parents to hear, demanding that he come out of the house, and stating that the victim was there to kill him. Aaron admitted that he picked up what he thought to be an unloaded shotgun in order to scare the young men gathered outside his home, and that his father picked up a small pistol. After picking up the pistol, the defendant opened the garage door and ran outside, with Aaron following him. At the apron of the driveway, the victim and his friends engaged in a verbal argument, while the defendant ordered the youths to go home and get off his property. The defendant then told Aaron to go back to the house, and turned completely around to return inside himself. According to Aaron, it was at this point that the victim made "a crouching movement" and then rushed up behind the defendant, "like, trying to grab for something." The defendant turned around, there was a struggle, and the gun went off. The victim collapsed to the ground, with his body falling into the street.
Taking the stand to testify in his own behalf, the defendant related incidents of racial discrimination he had endured as a child, and claimed that, according to his grandfather, two family members had been killed by the Ku Klux Klan in 1924. On the night of the shooting, he was roused from sleep by Aaron, who was saying, with "absolute terror" in his voice, "Pop, get up. These people are coming to try to kill me." After looking out of his bedroom window and seeing a car either heading into the cul-de-sac or already stopped at the mailbox in front of his home, the defendant grabbed his grandfather's shotgun from his bedroom closet, loaded it with a shot shell, and then dressed. At this point, the defendant looked out again, and saw a second vehicle pull up facing his driveway, with its lights pointed at his house. The defendant ran downstairs, and saw from a window on the first floor that four or five people were walking up his driveway. He then removed the shell he had loaded into the shotgun and placed that weapon in a closet, feeling both uncertain that the shotgun would work because of its age, and concerned that it might be "too much fire power to go into the street with." After shouting out to his wife to "call the cops," the defendant entered his garage, where he retrieved his grandfather's .32 Beretta pistol from a shelf in his garage. The defendant stated that his intention in arming himself with the pistol was to diffuse a bad situation and to stop the teenagers from coming into his house and hurting his family.
When the defendant walked out of his garage, some of the youths were standing on his driveway, and some were standing on the grass. Although the young men were yelling, screaming, and threatening Aaron, the defendant admitted that they did not threaten him with a weapon, and he did not see a weapon in their hands. The defendant ordered the youths, who were cursing and using racial epithets, to back up and get off his property, and fanned the gun at a low level below their waists. After they backed up and quieted down, the defendant told Aaron to get back in the house. The defendant then turned his left shoulder halfway to the house, and began to back up. As the defendant was turning, the victim "popped up" at him and tried "to snatch the gun" from his "right side, over [his] ...