W. L. Fahey, New York, NY (Melissa S. Horlick of counsel),
for appellant, and appellant pro se.
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove, Ruth E. Ross, Claibourne Henry, and Avshalom Yotam
of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Tomei, J.), rendered May 14, 2012, convicting him of
murder in the second degree, upon a jury verdict, and
that the judgment is affirmed.
defendant was charged with murder in the second degree and
related crimes in connection with the fatal shooting of
Tyquan Joyner in Brooklyn on July 26, 2010. After a jury
trial, the defendant was convicted of murder in the second
defendant contends that the Supreme Court erred in denying
his request for a charge regarding the justified use of
deadly physical force to defend himself against the use of
deadly physical force. Contrary to the People's
contention, this contention was preserved for appellate
review (see generally CPL 470.05; see also
People v Clark, 129 A.D.3d 1, 17, affd 28
N.Y.3d 556; People v Floyd, 34 A.D.3d 494, 494).
However, the court properly denied the defendant's
request for a charge on the justification defense, since no
reasonable view of the evidence supported such a charge.
"A person is justified in using deadly force against
another if he or she reasonably believes such to be necessary
to defend himself or herself or a third person from what he
or she reasonably believes to be the use or imminent use of
deadly physical force by such other person" (People
v Heron, 130 A.D.3d 754, 755 [internal quotation marks
omitted]; see Penal Law § 35.15; People
v Singh, 139 A.D.3d 761, 762). In considering whether a
justification charge is warranted, a court must view the
record in the light most favorable to the defendant and
"determine whether any reasonable view of the evidence
would permit the factfinder to conclude that the
defendant's conduct was justified. If such evidence is in
the record, the court must provide an instruction on the
defense" (People v Petty, 7 N.Y.3d 277, 284;
see People v McManus, 67 N.Y.2d 541, 549; People
v Singh, 139 A.D.3d at 762). Here, no reasonable view of
the evidence would permit the factfinder to conclude that the
defendant's conduct was justified (see People v
Watts, 57 N.Y.2d 299, 302; People v Cotsifas,
100 A.D.3d 1015, 1015; People v Small, 80 A.D.3d
786, 787; People v Peele, 73 A.D.3d 1219, 1221;
see also People v Clark, 129 A.D.3d at 24-25;
cf. People v Singh, 139 A.D.3d at 762-763).
defendant's contention that he was deprived of the
constitutional rights to counsel and to confront the
witnesses against him when the Supreme Court precluded him
from eliciting evidence of a second gun found in a car parked
near the crime scene and improperly curtailed his
cross-examination of a prosecution witness about the presence
of a second gun is unpreserved for appellate review, as he
did not assert a constitutional right to introduce the
excluded evidence at trial (see CPL 470.05;
People v Lane, 7 N.Y.3d 888, 889; People v
Ramsundar, 138 A.D.3d 891, 892; People v
Simmons, 106 A.D.3d 1115, 1116; People v Lopez,
82 A.D.3d 1264). In any event, the court providently
exercised its discretion in making the rulings. Apart from
its proximity to the crime, there was no indicia that the
second gun was linked to the shooting. Accordingly, the
proposed line of cross-examination was speculative, only
marginally relevant, and posed a danger of misleading the
jury (see People v Pena, 113 A.D.3d 701, 702;
People v Francisco, 44 A.D.3d 870, 870; People v
McGlothin, 6 A.D.3d 462, 463).
defendant's claim that the Supreme Court deprived him of
his right to a fair trial and his right to counsel by
improperly limiting the scope of summation is unpreserved for
appellate review (see People v Desjardins, 113
A.D.3d 787, 788; People v Nails, 95 A.D.3d 1237). In
any event, the court properly limited defense counsel's
summation remarks under the circumstances of this case
(see People v Desjardins, 113 A.D.3d at 788;
People v Nails, 95 A.D.3d at 1237).
sentence imposed was not excessive (see People v
Suitte, 90 A.D.2d 80).
defendant's remaining contentions, raised in his pro se
supplemental brief, are unpreserved for appellate ...