74 A.D.2d 607 | N.Y. App. Div. | 1980
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered December 5, 1978, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. The defendant was a uniformed court officer in Supreme Court, Kings County, who was also employed by the New York City Transit Authority as a bus driver. At approximately 1:45 a.m., on March 21, 1978, the defendant was driving his bus in the vicinity of Sumner Avenue and Broadway in Brooklyn. Contrary to an administrative regulation of the Transit Authority, he was carrying a weapon at the time. His possession of the weapon was lawful, however, because of his status as a peace officer. In any event, when he brought the bus to a halt near Sumner and Broadway, he became embroiled in an altercation with one Benny McKinney. The dispute escalated and then culminated in the fatal shooting of McKinney who died at the scene. The defendant was subsequently arrested, tried and convicted for murder in connection with McKinney’s death. He now appeals. The circumstances surrounding and precipitating the shooting were vigorously contested at trial. The two passengers who had been present during the incident testified as prosecution witnesses. The account they gave was that McKinney was attempting to board the bus with them but was prevented from doing so by the defendant who refused to allow him to board, apparently because he did not have the fare. McKinney borrowed a quarter from one of the witnesses and the other finally offered to pay his fare. Nevertheless, the defendant persisted in his refusal to permit McKinney on the bus saying, according to one of the witnesses, that McKinney was "a problem”. Meanwhile, McKinney continued to plead with the defendant to allow him to board the bus so that he could go home. When McKinney managed to step up onto the bus, a struggle began and the defendant pulled him off the vehicle and onto the sidewalk. McKinney fell to the ground and then got up. He had nothing in his hands but the quarter he had borrowed. According to one of the witnesses, McKinney raised his hands with palms turned upward and said to the defendant, "Don’t do me like this. Let me go.” A gunshot was then heard and McKinney fell to the ground. The defendant returned to the bus, bolstered his weapon, and began driving at high speed. When police sirens sounded, the defendant stopped the bus and officers boarded. The defendant, testifying in his own behalf, gave a materially different account of the incident. He testified that Broadway and Sumner Avenue was a terminal stop at which he would remain between trips. He claimed that his confrontation with McKinney had started there before the prosecution witnesses arrived. According to the defendant, as he sat alone in his bus prior to beginning his return run, McKinney approached his window and demanded to be let onto the bus. The defendant refused, explaining that he was not permitted to open the door at that location. He directed McKinney to the bus stop ahead and said that he would pull the bus up there shortly. At this, McKinney began to kick at the door and curse. He tried to board through the rear door and, when he was unsuccessful, he resumed his cursing and threatening behavior. When the defendant warned McKinney that the police would be called and that he might end up in jail, McKinney boasted that he had been in jail before, that he was not afraid of the police, and that he had "busted more polices’ [sic] heads then [sic] you can shake a stick at”. He threatened to kick the door in