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People v. Brown

Supreme Court of New York, First Department

February 20, 2018

The People of the State of New York, Respondent,
v.
Darryl Brown, Defendant-Appellant.

         Defendant appeals from the judgment of the Supreme Court, Bronx County (Robert A. Neary, J.), rendered November 2, 2016, convicting him, after a jury trial, of manslaughter in the first degree, and imposing sentence.

          Kohler & Isaacs, LLP, New York (Joey Jackson of counsel), for appellant.

          Darcel D. Clark, District Attorney, Bronx (Clara H. Salzberg and Justin Braun of counsel), for respondent.

          Rosalyn H. Richter, J.P., Judith J. Gische, Barbara R. Kapnick, Marcy L. Kahn, Cynthia S. Kern, JJ.

          OPINION

          RICHTER, J.P.

         In this homicide prosecution, we are asked to determine whether the trial court erred in denying defendant's request to instruct the jury on the defense of justification. We find that, viewing the evidence at trial in the light most favorable to defendant, a jury could conclude that defendant feared for his life, and reasonably believed deadly physical force was necessary to defend himself against the deceased's imminent use of deadly physical force. Under the circumstances here, the court's failure to give the justification charge constitutes reversible error, and the case must be remanded for a new trial.

         Defendant Darryl Brown was charged with murder in the second degree, manslaughter in the first degree, and criminal use of a firearm in the first degree, based on allegations that he fatally shot Vonde Cabbagestalk on March 20, 2014. The evidence at trial established the following. On the day of the incident, defendant lived with his daughter in apartment 1B at 739 East 242nd Street in the Bronx. On the afternoon of that day, Yvette Flores, who lived directly across the hall in apartment 1A, heard a loud voice arguing. Flores looked through the peephole in her door and saw defendant and his daughter, who was holding a child, standing in front of their apartment with a younger man. Flores heard defendant and the younger man arguing, but was unable to hear what they were saying. Flores then saw the two men walk off together toward the direction of the building's lobby and out of her line of sight. Defendant's daughter remained at the apartment door with the child.

         Although Flores could no longer see the men after they walked off, she heard them arguing and cursing, but did not hear any specific threats. She heard defendant's daughter yell, "[N]o daddy no, " followed immediately by a loud boom. Flores initially moved away from her door, but returned to look through the peephole, where she saw defendant, his daughter and the child go into their apartment. Flores went into the hallway and saw a man lying by the front door of the lobby, motionless, and called 911. Flores testified that she did not see the actual shooting incident and never saw a gun or any other weapon during the encounter.

         Raymond Wolf, a postal carrier, was delivering mail to the building that afternoon. Two young men who were standing in the lobby let Wolf in. Wolf, who was listening to music on his headphones, went off to the side of the lobby to place the mail into the mailboxes. At some point, Wolf noticed a shorter, older man enter the lobby area. The older man and the two young men were talking at first, and then the conversation became louder. The older man said, "[W]hy you here, " "stay away from my daughter, don't come around here." One of the young men, later identified as the deceased, Vonde Cabbagestalk, responded, "[Y]ou can't tell me where to be." Cabbagestalk was "getting in the older guy's face a little bit, " "trying to back him down." The older man stepped back, and the third man restrained Cabbagestalk, telling him to "chill out, relax."

         Cabbagestalk started swinging at the older man, trying to hit him in the face. After Cabbagestalk swung "a couple [of] times, " Wolf noticed the older man holding a gun "at an angle" by his waist. The gun was not "pointed in [Cabbagestalk's] direction" or "threatening him, " but was "[k]ind of by [the older man's] body. The third man stepped away, still trying to calm Cabbagestalk down, asking him to stop advancing toward the older man. Cabbagestalk, however, continued to swing at the older man's face three to four times, using both hands. At the same time, Cabbagestalk was "grabbing" for the gun, saying, "[Y]ou going to pull a gun out, you better use it." Wolf testified that the older man, who was not at all "hyper, " "continued to backup" "[a]nd backup, " "[a]nd backup" as Cabbagestalk "continued to approach him, " "continued to swing at him, " and "continue[d] to swipe at the weapon." Wolf described Cabbagestalk as being "about two feet [from] the older [man], " who was "leaning back, " "moving from the swings." Although Wolf did not actually see the flash from the gun, he heard a shot ring out and saw Cabbagestalk fall to the floor. Wolf retreated upstairs and called his supervisor. [1]

         Sheila Thomas, who lived in the building, was returning home from grocery shopping that day. As she approached the interior door to the building, she was holding her groceries and searching for her keys. Thomas heard voices arguing inside, and although she did not hear what they were saying, she could tell it was a disagreement. Looking through the windows of the foyer door into the building, Thomas saw two men in the lobby. One of the men was older than the other and had "a little weight" on him; the younger man was taller, "probably slender." Thomas observed the older man walking across the lobby away from the younger man, and the younger man following him. Both were walking in the same direction "at a slow pace, " about six to seven feet from each other. As the younger man followed the older man, the older man gestured with his hands, but never turned around to face the younger man. Thomas saw nothing in the older man's hands.

         Thomas described how the younger man had his hands extended outward from his body, elbows bent at 90 degrees, with his palms facing upward. Based on those gestures, it appeared to Thomas that the younger man was "trying to reason" with the older man. The two men walked across the hallway and out of Thomas's field of vision, continuing to argue. She heard a gunshot from the direction where the men had just walked, saw the younger man fall backwards in front of the door, and heard a woman scream. Thomas fled outside, ran down the block and called 911. Before she heard the gunshot, Thomas did not observe any physical altercation between the men, saw no punches being thrown, and saw no weapons.

         When the police arrived, they observed a man lying face down in the lobby with a single shell casing next to him; he was pronounced dead at the scene. During their canvass of the building, the police spoke to Flores, who directed them to defendant's apartment. Defendant let the police inside, where they recovered a semiautomatic Glock pistol in a kitchen drawer. The police later learned that defendant was a New York City corrections officer who legally possessed the gun. Testing revealed that the shell casing found in the lobby had been fired from defendant's gun. The deceased was subsequently identified as Vonde Cabbagestalk, a 21-year-old man who had been dating defendant's daughter. [2]

         Prior to summations, defendant asked the court to instruct the jury on the defense of justification. The court denied the request, believing that there was no reasonable view of the evidence to support a justification charge. The jury rendered a verdict finding defendant not guilty of murder in the second degree and guilty of manslaughter in the first degree [3]. The court sentenced defendant to 18 years in prison. Defendant now appeals, arguing that the court erred in failing to charge the jury on justification [4].

         A trial court must instruct the jury on the defense of justification where the evidence, viewed in the light most favorable to the defendant, reasonably supports the defense (People v Padgett, 60 N.Y.2d 142, 144-145 [1983]; People v Gant, 282 A.D.2d 298, 299 [1st Dept 2001]). "[I]f on any reasonable view of the evidence, the fact finder might have decided that defendant's actions were justified, the failure to charge the defense constitutes reversible error" (Padgett, 60 N.Y.2d at 145). "Ordinarily, the possibility of the defense would not appear until injected by the defendant. However, the prosecution's case, in and of itself, may raise an issue of fact as to whether the defendant was justified in using force such that his or her conduct was entirely lawful" (People v Singh, 139 A.D.3d 761, 763 [2d Dept 2016] [internal quotation marks and citation omitted], lv denied 28 N.Y.3d 936');">28 N.Y.3d 936');">28 N.Y.3d 936');">28 N.Y.3d 936 [2016]).

         The use of "deadly physical force" upon another person is justified where the defendant "reasonably believes that such other person is using or about to use deadly physical force" (Penal Law § 35.15[2][a]). However, a defendant may not use deadly physical force "if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating" (id.). Nor may a defendant who is the "initial aggressor" use deadly force, with limited exception (Penal Law § 35.15[1][b]). "Penal Law § 35.15 requires a jury to consider both subjective and objective factors in determining whether a defendant's conduct was reasonable" (People v Wesley, 76 N.Y.2d 555, 559 [1990]). Thus, for a defendant to be entitled to a justification charge with respect to the use of deadly physical force, there must be a reasonable view of the evidence: (1) that the defendant actually believed that the use of deadly physical force was necessary to defend himself or herself against the use, or imminent use, of deadly physical force; and (2) that the defendant's belief was reasonable (see Matter of Y.K., 87 N.Y.2d 430, 433-434 [1996]; People v Wesley, 76 N.Y.2d at 559; People v Goetz, 68 N.Y.2d 96, 115 [1986]).

         Applying these principles, we conclude that the trial court should have instructed the jury on the defense of justification. The trial evidence, when viewed in the light most favorable to defendant, supports a conclusion that defendant feared for his life, and reasonably believed that deadly physical force was necessary to defend himself against Cabbagestalk's imminent use of deadly physical force. Wolf, the postal carrier, who was the only eyewitness to the actual shooting, [5] described an escalating series of aggressive actions and verbal threats made by Cabbagestalk immediately before defendant fired his weapon. Wolf explained that Cabbagestalk was "getting in [defendant's] face" and was "trying to back him down." Cabbagestalk's behavior was aggressive enough for his friend to, albeit unsuccessfully, attempt to restrain him, entreating him to "chill out, relax."

         Instead of taking his friend's advice, Cabbagestalk escalated the encounter and began throwing punches at defendant, using both hands, trying to hit defendant in the face. At that point, defendant took his gun out, but held it by his body, not pointed at Cabbagestalk. Undeterred by the weapon, Cabbagestalk continued to swing at defendant multiple times, and at the same time, grabbed for the gun, threatening, "[Y]ou going to pull a gun out, you better use it." Wolf described how defendant continued to "backup" "[a]nd backup, " "[a]nd backup, " trying to move away from the swings. But Cabbagestalk continued his attack, advancing toward defendant, taking multiple swings at his face, and grabbing for his gun while simultaneously making a statement that could be interpreted as a threat. Cabbagestalk got within two feet of defendant, and defendant fired the weapon.

         Based on Wolf's testimony, a jury could conclude that defendant reasonably believed that Cabbagestalk, who was younger and taller than defendant, and just two feet away, would gain control of defendant's gun (see People v Wesley, 76 N.Y.2d at 559 [determination of reasonableness of the defendant's conduct must be based on the circumstances facing the defendant, including the physical attributes of all those involved in the incident]; Matter of Ismael S., 213 A.D.2d 169, 172 [1st Dept 1995] [noting the physical and age disparities between the respondent and victim in finding that the presentment agency failed to disprove justification defense]). A jury could also reasonably conclude that Cabbagestalk's statement to defendant - "[Y]ou going to pull a gun out, you better use it" - constituted a threat that if defendant did not use the gun, Cabbagestalk would take the gun and use it to shoot defendant. This is particularly true in light of the evidence that Cabbagestalk was advancing toward defendant, throwing punches at his face, and grabbing for the gun at the same time he made the threat.

         Our decision in People v Schwartz (168 A.D.2d 251');">168 A.D.2d 251');">168 A.D.2d 251');">168 A.D.2d 251 [1st Dept 1990]) is on point. In that case, the defendant testified that while he was holding a gun in an apartment, a man lunged at him and grabbed for the weapon. The defendant discharged the gun so that the man would not shoot him, and another man in the apartment was hit by a bullet and killed. This Court reversed the defendant's manslaughter conviction, finding that the trial court erred in not giving a justification charge. The Court found that a reasonable view of the evidence showed that the defendant fired the weapon to protect himself from the imminent use of deadly force by the man who grabbed for his gun (see also People v Smith, 234 A.D.2d 484, 485 [2d Dept 1996] [justification should have been charged where the victim " lunged' at" and "attempt[ed] to grab" the defendant, who was armed with a gun]).

         In arguing that no justification charge was warranted, the People place undue emphasis on Thomas's testimony that defendant was angrier and more aggressive than Cabbagestalk, and that defendant and Cabbagestalk were six to seven feet away from each other. The jury, however, could have disregarded that testimony in favor of Wolf's testimony describing Cabbagestalk as the aggressor, and placing the men only two feet apart when the gun was discharged (see People v Zona, 14 N.Y.3d 488, 493 [2010] ["it is fundamental that a jury may accept portions of the defense and prosecution evidence or either of them"] [internal quotation marks omitted]) [6]. Moreover, it is undisputed that Thomas, who was looking for her keys during the incident, did not witness the actual shooting, and expressly conceded that she did not know how far away the men were from each other when the shot was fired.

         In denying defendant's request for the justification charge, the trial court relied on three cases, all of which are distinguishable. In People v Jones (3 N.Y.3d 491');">3 N.Y.3d 491 [2004]), the defendant, who had a considerable height and weight advantage over his girlfriend, choked her to death after "she merely picked up [a] knife" and tried to slap him (id. at 497). In People v Torres (140 A.D.3d 478');">140 A.D.3d 478 [1st Dept 2016], lv denied 28 N.Y.3d 974 [2016]), the defendant stabbed two unarmed men in the back, had no reason to believe that the victims or their companions were armed or about to use deadly force, and had the ability to retreat. In People v Taylor (134 A.D.3d 508 [1st Dept 2015], lv denied 28 N.Y.3d 1075');">28 N.Y.3d 1075 [2016]), the defendant stabbed two bouncers at a club, and subsequently chased one of them with a knife, even though the defendant had no reason to believe that the victims, or their fellow employees, were using anything more than ordinary physical force. Here, in contrast, defendant discharged his weapon only after a continued assault upon him where Cabbagestalk, who was younger and taller than defendant, advanced upon him, backed him down, threw multiple punches, grabbed at his gun and made what could reasonably be viewed as an overt threat to use the weapon against defendant.

         People v Watts (57 N.Y.2d 299');">57 N.Y.2d 299');">57 N.Y.2d 299');">57 N.Y.2d 299 [1982]), relied upon by the dissent, is distinguishable. There, the Court found that a justification charge was not warranted where the "sole probative evidence" was the defendant's statement to a police officer at the time of arrest that "the complainant came after [defendant] in his room with a kitchen knife'" (id. at 302). Notably, there is no description in Watts of the circumstances surrounding the incident, including the defendant's proximity to the victim, or their relative ages and sizes. The proof in Watts stands in stark contrast to the evidence of Cabbagestalk's aggressive behavior here.

         The dissent's reliance on People v Hosein (221 A.D.2d 563 [2d Dept 1995]) is similarly misplaced. In that case, no justification charge was warranted because the defendant had no reason to believe that the victim was about to use deadly physical force against him. Unlike here, the victim in Hosein did not take multiple swings at the defendant, did not try to grab his gun, and made no threatening remarks. Moreover, the victim in Hosein was six to seven feet away from the defendant at the time the defendant fired his gun. Here, in contrast, defendant and Cabbagestalk were only two feet apart when Cabbagestalk grabbed for the weapon, which increased the likelihood that Cabbagestalk could have gotten control of it.

         We do not agree with the dissent's view that, as a matter of law, Cabbagestalk employed only "ordinary physical force, not deadly physical force, " at the time defendant discharged his weapon. Nor do we agree with the dissent's characterization that Cabbagestalk "made [no] serious effort to grab defendant's firearm." According to Wolf, the only witness who actually saw the shooting, Cabbagestalk was advancing upon defendant and backing him down, while simultaneously swinging multiple times at his face, swiping for the gun and making a threatening statement. A jury could conclude that faced with Cabbagestalk's rapidly escalating violent behavior, defendant reasonably believed that Cabbagestalk was about to use deadly physical force, by gaining control of defendant's gun and using it to shoot defendant.

         The natural extension of the dissent's argument is that because Cabbagestalk did not actually take possession of defendant's gun, defendant could not, as a matter of law, reasonably have feared that Cabbagestalk would imminently use deadly physical force. We believe that is a question for the trier of fact. Although, as the dissent points out, there was no physical contact between Cabbagestalk and defendant, a fair view of the evidence, considered in the light most favorable to defendant, shows that Cabbagestalk advanced to within arm's reach of defendant, took multiple swings at his face and tried to take his gun. A jury could reasonably find that defendant did not have to wait until Cabbagestalk actually grabbed the gun before defendant had the right to defend himself. [7]

         Pointing to select excerpts from the testimony of defendant's expert witness, the dissent opines that, as a matter of law, a reasonable law enforcement officer in defendant's situation would not have drawn and discharged his weapon. Although the expert did testify that law enforcement officers are trained to defuse confrontations, he also emphasized that officers "do[] not have to see a weapon in order to draw [their own] weapon, " and acknowledged that the closer an assailant is, the more of a threat they pose. According to the expert, law enforcement officers are trained that if they draw their weapon, and subsequently fear that the weapon could be wrestled away from them, they can discharge the weapon to defend themselves. Although the dissent posits that the expert's testimony "dispels any notion" that defendant had a reasonable belief that his life was in jeopardy, the testimony, viewed in its entirety, presents a question for the jury. [8]

         The dissent also concludes that defendant was not entitled to a justification charge because he was the first participant in the encounter to threaten the use of deadly physical force. Although not describing it as such, the dissent is essentially arguing that defendant was the initial aggressor as a matter of law (see CJI2d[NY] Justification: Use of Deadly Physical Force in Defense of a Person [defining "initial aggressor" as "the first person who uses, or threatens the imminent use of, deadly physical force"]; People v McWilliams, 48 A.D.3d 1266, 1267 [4th Dept 2008], lv denied 10 N.Y.3d 961');">10 N.Y.3d 961 [2008]). This issue is not properly before us. In their appellate brief before this Court, the People do not contend that the justification charge was not warranted because defendant was the first one to use deadly physical force. Nor do they otherwise rely on the initial aggressor doctrine. Therefore, we should not consider it (see Misicki v Caradonna, 12 N.Y.3d 511, 519 [2009] [courts should decide appeals only on rationales advanced by the parties]). [9]

         Even if we were to address this argument, we would reject it. The dissent takes the view that, as a matter of law, defendant was the first one to use deadly physical force in the encounter (i.e., defendant was the initial aggressor) because he drew his firearm before Cabbagestalk swiped at the gun. The law, however, does not support the dissent's apparent belief that the mere act of drawing a firearm always constitutes a threat of the imminent use of deadly physical force. "Deadly physical force" is defined as "physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury" (Penal Law § 10.00[11] [emphasis added]). Whether or not an act is considered deadly physical force "hinges on the nature of the risk created, its imminence or immediacy, as well as its gravity" (People v Samuels, 198 A.D.2d 384, 384 [2d Dept 1993], lv denied 82 N.Y.2d 930');">82 N.Y.2d 930 [1994]).

         Thus, in People v Montanez (17 Misc.3d 126');">17 Misc.3d 126');">17 Misc.3d 126');">17 Misc.3d 126 [A], 2007 NY Slip Op 51806[U] [App Term, 2d Dept 2007]), where the defendant exhibited a gun but never pointed it directly at the individuals he believed posed a threat, or cocked the gun, the court found that the defendant "displayed the weapon but never used physical force." Similarly here, the trial evidence shows that when defendant drew his weapon in the midst of Cabbagestalk's attack, he held it by his side, did not point it at Cabbagestalk, and did not threaten him. Based on this evidence, a jury could have reasonably concluded that by drawing his firearm, defendant did not use or threaten the imminent use of deadly physical force.

         In arguing that no justification charge was warranted, the dissent places undue emphasis on defendant's displaying his weapon. Taken to its logical conclusion, the dissent's argument is that anytime someone draws a weapon during an encounter with an unarmed individual, he or she is not entitled, as a matter of law, to a justification charge, regardless of what subsequent threatening actions that individual takes. No case in our justification jurisprudence stands for such a sweeping proposition, especially where, as here, the weapon was lawfully possessed.

         The dissent's focus on what others in the lobby allegedly thought when defendant had his weapon by his side is misplaced. To begin, no witness ever testified as to what their perceptions were when defendant removed his gun. Although Wolf testified that he started to back up after defendant drew the weapon, he never said that he viewed defendant's conduct as a threat to use to use deadly force. As for defendant's daughter and Cabbagestalk's friend, neither one testified at trial, and thus it would be entirely speculative to try to glean what their perceptions may have been. In any event, the question is not how any of these individuals may have perceived the incident, but whether a jury could have concluded that, at the time defendant fired the weapon, he reasonably believed his actions were necessary to defend himself against Cabbagestalk's imminent use of deadly physical force.

         The cases relied upon by the dissent are easily distinguishable. In People v Magliato (68 N.Y.2d 24, 30 [1986]), the Court concluded that "[the] defendant's conduct in drawing [a] pistol, cocking it, holding it with two hands and arms extended, and aiming it at [the approaching victim]" amounted to the use of deadly physical force. Here, defendant engaged in no such threatening behavior and merely held the weapon by his side. Indeed, the Court in Magliato expressly recognized that "[t]he mere display or brandishing of a pistol" could "create an insufficiently imminent threat to life to be considered the use' of deadly physical force" (id.).

         People v Berk (217 A.D.2d 941');">217 A.D.2d 941');">217 A.D.2d 941');">217 A.D.2d 941 [4th Dept 1995], affd 88 N.Y.2d 257 [1996], cert denied 519 U.S. 859');">519 U.S. 859');">519 U.S. 859');">519 U.S. 859 [1996]), People v Dodt (61 N.Y.2d 408');">61 N.Y.2d 408');">61 N.Y.2d 408');">61 N.Y.2d 408 [1984]) and People v Madeo (103 A.D.2d 901');">103 A.D.2d 901 [3d Dept 1984]) were appeals from convictions after trial or a guilty plea, and have no applicability here. In Berk, where the evidence showed that the defendant confronted the victim with a loaded gun, the Court found that there was a question of fact as to whether the defendant was the initial aggressor. In Dodt, which did not even involve the justification defense, the Court simply found that the defendant's threat to use a gun was legally sufficient to establish that he threatened to use deadly physical force.

         In Madeo, which also did not involve justification, the Court merely concluded that the defendant's actions were legally sufficient under the circumstances to constitute a threat of the immediate use of a dangerous instrument. None of these cases provides any support for the dissent's view that drawing a weapon always constitutes deadly physical force as a matter of law. Moreover, the question of whether evidence supporting a conviction is legally sufficient is entirely distinct from the issue here of whether the proof at trial, viewed in the light most favorable to defendant, would have warranted a justification charge. [10]

         Because a reasonable view of the evidence supports a conclusion that defendant's actions were justified, the court's failure to charge the justification defense constitutes reversible error (see Padgett, 60 N.Y.2d at 145). We reject the People's position that any such error was harmless. The evidence at trial undeniably established that defendant fatally shot Cabbagestalk, and justification was defendant's sole viable defense. The People's reliance on People v Petty (7 N.Y.3d 277');">7 N.Y.3d 277 [2006]) is misplaced. In that case, the victim did not say anything to, or make any threatening gestures towards, the defendant, but instead tried to run away. The Court found harmless error because there was no ...


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