People v Phillmore (Larry)

[*1] People v Phillmore (Larry) 2005 NY Slip Op 51426(U) [9 Misc 3d 126(A)] Decided on July 13, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: July 13, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1474 K CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

Larry Phillmore, Appellant.

Appeal by defendant from a judgment of the Criminal Court, Kings County (J. Burke, J.), rendered September 22, 2003, convicting defendant, after a jury trial, of menacing in the second degree (Penal Law § 120.14 [1]), criminal possession of a weapon in the fourth degree (Penal Law § 265.01) and harassment in the second degree (Penal Law § 240.26 [1]), and imposing sentence.

Judgment of conviction unanimously affirmed.

At trial, defendant alleged no evidentiary deficiency in the People's case and made no motion to dismiss on any ground of evidentiary insufficiency aside from one ground not asserted on appeal, that the People failed to establish a chain of custody of [*2]
the weapon employed by defendant in the commission of the offenses. Thus, no claim regarding the People's failure to prove any particular element of the offenses charged is preserved for appellate review (CPL 470.05 [2]; 470.15 [4] [a], [b]; People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 19 [1995]; People v Santos, 86 NY2d 869, 870 [1995]; People v Bynum, 70 NY2d 858, 859 [1987]; People v Udzinski, 146 AD2d 245, 250 [1989]).

In any event, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]) and according them every "valid line of reasoning and permissible inferences [that] could lead a rational person to the conclusion reached by the fact finder" (People v Lynch, 95 NY2d 243, 247 [2000]), the evidence sufficed to support each charge. The People's proof established that defendant threatened complainant with a butcher knife and verbally threatened to take the complainant's life, a course of conduct that was observed by roommates and the arresting officers, one of whom wrested the knife from defendant's grasp. While defendant attempted to describe a sharply diverging scenario and denied key aspects of the incident as described by police and other witnesses, it is axiomatic that insofar as the proof concerns matters of credibility and "the relative probative force of conflicting inferences that may be drawn from the testimony" (People v Bleakley, 69 NY2d 490, 495 [1987]), such matters are primarily for the finder of fact who saw and heard the witnesses (People v Cummings, 291 AD2d 454, 455 [2002]; People v Hernandez, 288 AD2d 489, 490 [2001]). Defendant's testimony "merely created factual issues which the jury, as the final arbiter of credibility, resolved against him" (People v Reynolds, 133 AD2d 499, 500 [1987]).

We also find that the court properly declined to instruct the jury as to justification (see Penal Law § 35.20 [3]). First, defendant conceded below that the proposed charge would apply only to the harassment count, and his claim that the court also erroneously denied the charge as to the menacing and weapons counts is not preserved for appellate review (CPL 470.05 [2]; People v Carrera, 282 AD2d 614, 615 [2001]). Further, the court properly denied the charge insofar as it pertained to harassment. While "the record must be considered most favorably to the defendant" when reviewing the propriety of the instruction's denial (People v Padgett, 60 NY2d 142, 144 [1983]), a court need not charge justification "if no reasonable view of the evidence establishes the elements of the defense" (People v Reynoso, 73 NY2d 816, 818 [1988]). In determining whether the evidence established a basis for the charge, the "critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude" (People v Wesley, 76 NY2d 555, 559 [1990]). Here, no rational view of the evidence supports defendant's contention that he reasonably believed that his landlord, summoned to act as peacemaker among the arguing parties and with no reputation for violence or exhibiting any disposition to imminent criminal conduct, intended to commit a burglary or other offense, or that defendant was justified in committing acts constituting a harassment to prevent such conduct (e.g. People v McDaniel, 295 AD2d 371 [2002]). Whether or not another theory of justification, such as one involving self-defense (see Penal Law § 35.15 [2] [a]) might have found more plausible support in the record (e.g. People v Bertone, 213 AD2d 417 [1995]) is not an issue before us.

We also find no error in the court's refusal to reread its charge regarding temporary lawful possession of a weapon (see 1 CJI [NY] 9.65, at 535) in response to a jury request for a rereading of the misdemeanor offenses. When a jury requests "further instruction or information," the court has discretion to determine the appropriate response (see CPL 310.30 ["Upon such a request," the court "must give such requested information or instruction as the court deems proper"]; People v Malloy, 55 NY2d 296, 302 [1982]). The Malloy court stressed that a simple rereading of a previously read charge is generally proper where the jury requests such a rereading, and that the rendering of additional charges is not appropriate where there is no indication that the jury had expressed any confusion as to any other matter (id. at 303; see also People v Santi, 3 NY3d 234, 248 [2004] [same]; People v Miller, 306 AD2d 16 [2003] ["The court . . . meaningfully responded to a jury note . . . by repeating its original instructions"]). [*3]Thus, it cannot be said that read as a whole, the charges failed to provide the proper [*4]
legal standard for the jury's deliberations (People v Griffith, 231 AD2d 530, 531 [1996]; People v Ternaku, 165 AD2d 678, 679 [1990]).

Defendant also asserts reversible error based on the People's failure to preserve certain trial exhibits, namely photographs of the apartment and a crime scene diagram. Alleging a "major ambiguity in the record, as to what was the public area and what was the private area," defendant insists that the lost evidence is of particular importance to appellate review of the justification defense and the sufficiency of proof. It is initially noted that defendant sought no reconstruction hearing prior to perfecting the appeal when a satisfactory appellate record (from defendant's point of view) might have been created.

The loss of a trial exhibit "does not necessarily deprive a defendant of effective appellate review" (People v Yavru-Sakuk, 98 NY2d 56, 59 [2002]; see also People v Glass, 43 NY2d 283, 285-286 [1977] ["(I)t does not necessarily follow from the fact that the() absence (of a portion of the record) compels resort to a less perfect record, that the right to appeal must be deemed to be frustrated"]). In Yavru-Sakuk, the court noted that in determining whether such appellate review is fatally compromised, the court may consider whether the exhibits had "substantial importance to the issues raised on appeal" (citing People v Strollo, 191 NY 42, 66 [1908]) and whether, for example, there exist copies of the missing exhibits "and the correctness of the copies is unquestioned or unquestionable" (id.). Here, there was no meaningful dispute below as to the layout of defendant's apartment and the public areas of the building in the apartment's vicinity nor has any critical appellate point been raised, the clarification of which is dependent on what the photographs might depict as to the apartment's appearance or the precise dimensions of the vestibule, lobby, and staircase. As the only connection cited by defendant, that such exhibits would support his claim of a justification defense, finds no support in the available record, defendant has failed to demonstrate the exhibits' "substantial importance" to the remaining claims of error, including the sufficiency of proof (e.g. People v Skinner, 298 AD2d 625, 626 [2002]).

The defendant's additional claim, that the court erred in denying his motion pursuant to CPL 440 is not properly before this court, inasmuch as he did not obtain leave to appeal from the denial of the motion (see CPL 450.15; People v Myles, 251 AD2d 515, 515-516 [1998]).
Decision Date: July 13, 2005