Skip Laisure, New York, NY (Steven R. Bernhard of counsel),
Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard
Joblove and Joyce Slevin of counsel), for respondent.
C. BALKIN, J.P., JOSEPH J. MALTESE, BETSY BARROS, FRANCESCA
E. CONNOLLY, JJ.
DECISION & ORDER
by the defendant from a judgment of the Supreme Court, Kings
County (Chun, J.), rendered January 11, 2013, convicting him
of murder in the second degree and attempted assault in the
first degree, upon a jury verdict, and imposing sentence.
that the judgment is affirmed.
approximately 2:15 a.m. on September 30, 2010, the defendant
and his wife were patrons of a bar in Prospect Heights,
Brooklyn. They were conversing with friends and allowing
their dog to play in a fenced area outside the bar with a dog
owned by Chai Eun Hillman, a patron and off-duty bartender.
The dogs's leashes became tangled, and the defendant and
his wife had a difficult time unraveling them. When Hillman,
who was visibly intoxicated, tried to help untangle the
leashes, he touched the defendant's wife's arm and
allegedly said something rude to her. This resulted in an
argument between the defendant and Hillman, which quickly
escalated into a physical altercation. During the
altercation, the defendant, wielding a knife with a four-inch
blade, slashed Daniel Hultquist, an off-duty bartender, who
was trying to calm the defendant. Hillman charged at the
defendant, the two men grappled, and the defendant eventually
stabbed Hillman in the torso. Hillman later died at the
hospital from the stab wounds.
defendant fled the scene, but he was quickly apprehended by
the police and identified by other patrons of the bar as the
man who stabbed Hillman. The defendant was charged, with,
inter alia, murder in the second degree.
trial, the defendant testified on his own behalf and he also
presented testimony from his wife and a bar patron who was
present before the altercation. The defendant did not deny
that he took out a knife during the altercation or that he
stabbed Hillman. Among other things, the defendant testified
that he knew Hillman from the bar and the neighborhood, he
knew that Hillman practiced martial arts, and he saw Hillman
punch someone in the face at a different bar about six weeks
prior to this incident. The defendant testified that Hillman
punched him in the face as he was trying to walk away from
the fight, and he knew that he would not be able to fight
Hillman because of Hillman's martial arts skills. The
defendant also testified that he used the knife because he
was afraid that Hillman was going to hurt him.
charge conference, the Supreme Court stated that murder in
the second degree would be submitted to the jury with respect
to the death of Hillman. Defense counsel requested that the
court also submit the lesser-included offenses of
manslaughter in the first degree and manslaughter in the
second degree. The People objected to a manslaughter in the
second degree charge. The court ruled that it would submit
manslaughter in the first and second degrees "in the
alternative, " observing, "[t]here is some
testimony from the defendant that he was intoxicated and
testimony from others that he was drinking. It may add
credence to a view that [the defendant's] act may have
respect to the other victim, Hultquist, the parties agreed
with the Supreme Court's determination to submit
attempted assault in the first degree and, in the
alternative, attempted assault in the second degree.
defense counsel requested a justification charge with respect
to the counts concerning Hillman's death, but not the
counts pertaining to Hultquist. Over the People's
objection, the Supreme Court agreed to give a justification
charge with respect to Hillman, noting that the defendant
testified that he was afraid.
Supreme Court asked defense counsel whether the defendant
sought an intoxication charge for "possibly negating the
element of intent, " to which defense counsel replied
"no" without elaboration.
jury found the defendant guilty of murder in the second
degree for the death of Hillman and guilty of attempted
assault in the first degree for the injury to Hultquist.
defendant's sole contention on appeal is that he was
deprived of the effective assistance of counsel because
counsel "fail[ed] to accept the court's ...