People v Kardian (Robert)
Annotate this CaseDecided on October 29, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : IANNACCI, J.P., MARANO and TOLBERT, JJ.
2013-783 W CR
The People of the State of New York, Respondent,
against
Robert Kardian, Appellant.
Appeal from a judgment of the Justice Court of the Town of Somers, Westchester County (Denis J. Timone, J.), rendered March 25, 2013. The judgment convicted defendant, upon a jury verdict, of menacing in the second degree.
ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.
On June 28, 2012, the People charged defendant, in an information, with two counts of menacing in the second degree (Penal Law § 120.14 [1]) based on an accusation, by a mother and her adult son, who resided in the downstairs apartment of a two-family house owned by defendant, that defendant had visited their home, during which visit a verbal altercation had arisen between defendant and the mother, whereupon defendant, a retired police officer, had drawn a pistol from an ankle holster and threatened both the mother and son with the weapon. After a jury trial, defendant was convicted of menacing the son and acquitted of menacing the mother.
Defendant interposed a justification defense (see Penal Law § 35.15 [2] [a]), alleging that while he had been arguing with the mother concerning the propriety of his unannounced entry into a garage rented by the upstairs tenant, through a connecting doorway located in the downstairs apartment, the son had appeared in the room with a .22 caliber rifle, pointed it at defendant, and demanded that defendant leave the premises. Defendant testified that, upon seeing the son pointing his weapon, he had knelt down, retrieved a pistol from an ankle holster, walked behind the mother using her as a shield, and pointed his weapon at the son over the mother's shoulder, before retreating from the house. The mother called 911, and defendant made his own call to 911 minutes later, identifying himself as an armed retired police officer and stating that he had been threatened with a rifle by his tenant's son. He waited in the back yard of the house for the police to arrive, and, during their investigation, they searched the downstairs apartment for a weapon, but found none. The testimonies of the mother, son and defendant were consistent to the extent that the mother and defendant had argued in the living room, that the son had appeared in the room and demanded that defendant leave, and that defendant had drawn his weapon and pointed it at the son over the mother's shoulder. The mother and son insisted that the son had never been armed, and the mother testified that defendant had also pointed the pistol at her, at one point placing the cocked weapon against her head. Thus, once the jury acquitted defendant of menacing the mother, the question for the jury was whether the People had [*2]disproved the justification defense with respect to the son beyond a reasonable doubt (Penal Law §§ 35.00, 25.00 [1]); specifically, that the son had never threatened defendant with a rifle.
Among other claims of error, defendant argues that the conviction was against the weight of the evidence, and we agree.
"[T]he appropriate standard for evaluating a weight of the evidence argument on appeal is . . . [first to] determin[e] . . . whether it would have been reasonable for the factfinder to have reached a different verdict, and if so, whether, after a weighing of the probative value of conflicting testimony and the relative strength of conflicting inferences drawn therefrom, the trier of fact accorded the proper weight to the evidence (see People v Romero, 7 NY3d 633, 643-644 [2006]; see also People v Mateo, 2 NY3d 383, 409-410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987])" (People v Williams, 38 Misc 3d 4, 8 [App Term, 2d, 11th & 13th Jud Dists 2012]). Although "[i]n this review, an appellate court must accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d [888, 890 (2006)])" (id.), the court " sits as a thirteenth juror and decides which facts were proven at trial' " (People v Davis, 117 AD3d 840, 841 [2014], quoting People v Danielson, 9 NY3d 342, 348 [2007]).
There was evidence that a rifle of the same make and model alleged by defendant to have been brandished by the son was a part of a gun collection maintained by the upstairs tenant and stored in an unlocked closet, that the son was aware that the upstairs tenant possessed such a weapon, and that, at military school, the son had received weapons training and was on the school's rifle team. There was also proof that the apartments were connected by a staircase, that the mother and son had been frequent visitors to the upstairs apartment, and that the staircase had been used by the upstairs tenant for access to the common laundry room. Although the door to the upstairs apartment was locked when the police investigated the incident, defendant, aware that the upstairs tenant collected weapons, urged the police to determine whether the collection included a .22 caliber rifle. Although the owner subsequently displayed for the police his rifles, all of which were in their cases, there was no inquiry whether the collection included a .22 caliber rifle, much less an investigation as to whether the weapon bore the son's fingerprints. There was no proof that defendant knew the collection contained such a weapon before the incident. The son testified that he had been in the basement during the initial altercation between his mother and defendant, that he had heard his mother screaming at defendant, in vulgar terms, to leave her home, that he had heard the sound of furniture being thrown and his mother saying to the defendant, "Don't touch me," and that he had later confronted defendant, demanding that he do what his mother asked, also in vulgar terms.
On the undisputed facts, there was ample time for the son to hear the altercation and, fearing for his mother's safety, retrieve the rifle from the upstairs tenant's closet, confront defendant, and, after defendant went outside, to return the gun to the closet and lock the door before the police arrived. With the foregoing in mind, we conclude that had the jury given the evidence the weight it should be accorded, the jury could not have found that the People disproved the justification defense beyond a reasonable doubt.
In light of the foregoing, we need not address defendant's remaining contentions.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
Iannacci, J.P., Marano and Tolbert, JJ., concur.
Decision Date: October 29, 2014
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