The People of the State of New York, Respondent, v Brian Simmons, Appellant.
Appellate Division of the Supreme Court of New York, Third Department
[974 NYS2d 185]
The People of the State of New York, Respondent, v Brian Simmons, Appellant. [974 NYS2d 185]—
Spain, J. Appeal from a judgment of the County Court of Schenectady County (Hoye, J.), rendered May 11, 2011, upon a verdict convicting defendant of the crime of assault in the first degree.
According to Winkler and Barrett, Simmons pulled Barrett by the shoulders as she tried to leave, and blocked her exit; Simmons then pushed and struggled with Winkler, who did not fight back. Winkler and Barrett testified that defendant stood silently in the rear of the garage and never moved or provided a warning until he picked up his shotgun, walked toward Winkler and shot him at close range in the upper chest near his left shoulder only inches from his heart, stating, “Let‘s see if you ever step foot into my house again.” Winkler testified that when
Defendant was indicted for the crime of intentional assault in the first degree (intent to cause serious physical injury with a deadly weapon). At trial, the disputed issues were whether the shooting had been justified and whether defendant‘s alleged intoxication or other facts negated a finding of intent. The jury was instructed on the justification defense but convicted defendant as charged. His motion to set aside the verdict was denied, and a prison sentence of 10 years with three years of postrelease supervision was imposed. Defendant now appeals.
Initially, defendant‘s challenge to the legal sufficiency of the evidence disproving his justification defense was not preserved for our review, as it was not specifically raised in his motion to dismiss at the close of the People‘s proof,1 which defendant did not renew after he presented testimony and the proof was closed (see People v Hawkins, 11 NY3d 484, 492 [2008]; People v Lane, 7 NY3d 888, 889 [2006]; People v Gray, 86 NY2d 10, 19-22 [1995]). Further, while defendant raised this challenge in his
Turning to defendant‘s challenge to the verdict as against the weight of the evidence, we necessarily review the sufficiency of the evidence of each element (see People v Johnson, 107 AD3d 1161, 1163 n 2 [2013], lv denied 21 NY3d 1075 [2013]). Even if a different verdict would have been reasonable, upon weighing the evidence and conflicting accounts of the shooting in a neutral light and according deference to the jury‘s first-hand credibility assessments, we find that the jury was warranted in finding beyond a reasonable doubt that defendant was not justified in using deadly force and had acted with the requisite intent, and in finding him guilty as charged (see People v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633, 636 [2006]; see also
The jury was charged that the applicable justification defense required that defendant, as a person in possession of his home/dwelling, “reasonably believe[d] that another person[—Winkler—was] committing or attempting to commit a burglary of such dwelling,” entitling him to use “deadly physical force upon such other person” if he “reasonably believe[d] such to be necessary to prevent or terminate the . . . burglary” (
It was not disputed that Winkler had been to defendant‘s home many times in recent weeks to pick up Barrett and that, on the night of the shooting, defendant and Simmons were aware that Winkler came in response to Barrett‘s phone call requesting that he pick her up at that late hour. The testimony of Winkler and Barrett established that it was Barrett who opened the garage door in her effort to leave; Winkler did not hit, push, choke or initiate any contact with Simmons and had no physical contact or words with defendant. Winkler only came
to the door to
Defendant‘s own testimony undermined his justification defense, reflecting that he was mad at Winkler and wanted him to leave without Barrett, and not that he feared Winkler or believed he was attempting to burglarize his home. Indeed, when asked why he did not fire a warning shot, defendant testified that he “wasn‘t mad at [his] roof . . . This a**hole was in my house. He needed to go,” not that he feared Winkler. The credible testimony did not support the conclusion, now urged by defendant, that Winkler entered with intent to commit a crime in defendant‘s home, such as an assault upon anyone present, but, rather, established merely his intent to pick up his upset girlfriend (see
Next, we find no error in County Court‘s refusal to charge
Next, upon our review of the record, we find that defendant received a fair trial and was not deprived of the effective assistance of counsel. Defendant‘s claims of prosecutorial misconduct are largely unpreserved given the failure to object to them at trial (see People v Harris, 98 NY2d 452, 492 [2002]). Testimony concerning defendant‘s gun ownership, gun rights signage in the garage and hunting experience, and history of bragging about the accuracy of his shooting abilities, while arguably unduly repeated, were relevant to key disputed issues at trial, including defendant‘s intent4 in shooting Winkler and his experience with and knowledge of guns, as the prosecutor argued to the jury. The evidence was not improperly adduced to argue that defendant had a propensity for violence. The prosecutor‘s efforts to compare defendant‘s tactics and experience while hunting to his actions in the garage—in remaining quietly in the rear of the garage and stealthily and suddenly surprising Winkler by aiming a gun at him, as Winkler and Barrett described—were fair comment on the evidence and not outside the bounds of fair advocacy. Since this was not evidence of prior bad acts or crimes, a pretrial Molineux ruling was not required (see People v Billups, 45 AD3d 1176, 1177 [2007]). When the prosecutor argued that defendant was “fixated on guns” or that defense counsel wanted the jury to acquit, County Court sustained defense objections. Most of the
reasonable inferences therefrom. Viewed as a whole, we do not find that there was prosecutorial misconduct of the type that deprived defendant of due process or a fair trial (see People v Tarantola, 178 AD2d 768, 770 [1991], lv denied 79 NY2d 954 [1992]; see also People v Calabria, 94 NY2d 519, 523 [2000]; cf. People v Riback, 13 NY3d 416, 423 [2009]).
Defendant‘s specific contentions in his pro se brief that defense counsel did not effectively represent him are belied by the record. Winkler did not testify to an uncharged crime by defendant; rather, he testified that immediately after this shooting he thought, incorrectly, that defendant had also shot one of the others and fled with Barrett. There was no testimony or evidence that anyone other than Winkler was shot and, thus, no reason for defense counsel to object. To the extent that defendant argues that defense counsel failed to utilize the prior statements of the People‘s witnesses to impeach their trial testimony, this is inaccurate and, moreover, defendant has not persuasively demonstrated the absence of legitimate or strategic reasons for counsel to forgo probing these alleged inconsistencies (see People v Rivera, 71 NY2d 705, 709 [1988]). Viewed in totality, defense counsel vigorously pursued a cogent defense, which included justification and intoxication defenses, effectively cross-examined witnesses, made appropriate objections, and provided overall meaningful representation (see People v Oathout, 21 NY3d 127, 128 [2013]; People v Benevento, 91 NY2d 708, 712 [1998]). Defendant‘s remaining contentions likewise lack merit.
Peters, P.J., Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.