A Queens Criminal Lawyer said that, defendant was originally charged by a Queens County Grand Jury with one count of murder in the second degree, two counts of criminal use of a firearm in the second degree and criminal possession of a weapon in the second degree emanating from the shooting of the victim with a handgun on May 19, 1982. On the People’s motion, the criminal use of a firearm counts were dismissed. After two trials on the murder and criminal possession counts, defendant was convicted of the lesser included offense of manslaughter in the first degree. The fact that the victim died at defendant’s hands is beyond dispute. By defendant’s own admission, he shot the victim in the course of an altercation. According to competent medical authority, the victim sustained five gunshot wounds and died as a result of internal hemorrhaging caused by those wounds.
A Queens Criminal Possession of a Weapon Lawyer said that, after advising the defendant of his rights, the police took a statement from him at the precinct on the day of the incident. Defendant at that time informed the police that on the afternoon of the shooting he had received a telephone call from the victim, with whom he had been acquainted for approximately two years, with regard to a burglary of defendant’s apartment which had occurred some two to three weeks previously. Defendant permitted the victim to come to his apartment in order to discuss the burglary. The victim apparently intended to obtain money from defendant in exchange for his information concerning the burglary. To the Officer who had responded to the scene and traced a trail of blood from the pizza shop where the victim was found back to defendant’s apartment, defendant initially stated “I caught the guy” and motioned to a pair of pliers lying at the base of the stairway leading to his apartment.
Defendant later made the following admission: “I knew the guy. We argued, we fought. I shot him” and pointed to a gun which was lying on a couch in his apartment.
A Queens Gun Crime Lawyer said that, the defense rests heavily upon the testimony of the person who was painting the front room of defendant’s apartment at the time of the shooting. Approximately 20 minutes after the victim arrived at the apartment, the said person heard arguing coming from the room where defendant and the victim were. He also heard defendant say something about a “rip off”. The person then heard a gunshot and immediately proceeded to the room and opened the door, whereupon he observed defendant holding a gun on the victim. Although defendant repeatedly told the victim to turn around and keep his hands behind his back, the victim lunged at defendant with a silvery, railroad spike-type object. The person then heard a number of gunshots in rapid succession followed by the sound of breaking glass. He took cover behind a wall. When the person returned to where he could get a view of the room in which the altercation took place, he saw defendant seated atop some broken glass attempting to get up. The victim, who was standing over defendant, ran past the person who unsuccessfully tried to restrain him. The victim fled down the stairs followed by defendant who still held the gun.
It bears noting that the person had previously told the police who approached him at the scene that he had not viewed the shooting, but that he had stayed in the bedroom during the entire incident because he was frightened. He also admitted on cross-examination that he loved defendant like a brother that he did not want to see him convicted and that he would lie for defendant if he had to. The credibility of such a witness is, at best, suspect.
A Queens Criminal Felony Lawyer said that, defendant’s application for a trial order of dismissal on the ground that the People had failed to prove that defendant, in shooting the deceased, had intended to cause his death or that he had not acted in self-defense was denied. After requesting additional instructions on manslaughter in the first degree the jurors returned a verdict finding defendant guilty of that crime. On appeal, defendant contends, inter alia, that the integrity of the Grand Jury’s deliberations was impaired by the presentation of an autopsy report containing factual errors, the use of an alias for defendant in the title of the matter, and the failure of the District Attorney to instruct the Grand Jury as to the essential elements of the defense of justification and the People’s burden to disprove the defense beyond a reasonable doubt.
The issue in this case is whether the Grand Jury’s deliberations were impaired and has resulted to disproved the criminal defendant’s guilt beyond reasonable doubt.
The court finds that all these contentions lack merit. The court has inspected the Grand Jury minutes which resulted in defendant’s indictment, as well as the impaneling instruction minutes. The disputed autopsy report was not introduced into evidence, and the use of the name “Buddha” by witnesses indicated that it was a nickname rather than an alias with criminal connotations. Accordingly, defendant was not prejudiced. Further, the District Attorney advised the Grand Jury of the relevant sections of Penal Law article 35 on the defense of justification. Accordingly, the District Attorney’s duty as legal advisor to the Grand Jury was fulfilled.
While neither the impaneling court nor the District Attorney advised the Grand Jurors that it was the District Attorney’s burden to disprove the defense of justification beyond a reasonable doubt, the absence of such an instruction does not constitute error. The District Attorney bears no such burden in Grand Jury proceedings. Such burden arises only at trial. “The Grand Jury is not charged with the ultimate responsibility of determining the guilt or innocence of the accused. That duty resides with the petit jury, which has the obligation of assessing the evidence in light of the applicable legal rules and determining whether the People have proven the guilt of the accused beyond a reasonable doubt”. The primary function of the Grand Jury “is to investigate crimes and determine whether sufficient evidence exists to accuse a citizen of a crime and subject him or her to criminal prosecution”. A Grand Jury may indict when the evidence before it is “legally sufficient” to establish that the accused committed the offense, and there is competent and admissible evidence before it which provides reasonable cause to believe that the accused committed the offense. “At the accusatory stage, legally sufficient evidence is prima facie evidence, not proof beyond a reasonable doubt”. The Grand Jury was adequately instructed by the impaneling court on the correct standard for criminal indictment.
Accordingly, the Grand Jury proceeding conformed to the requirements of CPL article 190 and the integrity thereof was not impaired. Dismissal of the indictment is not required.
We note that case law concerning “grand jury reports” cited by defense counsel is inapposite here, where an indictment is concerned. The standards of proof differ for an indictment and a report. A Grand Jury report must be supported by a “preponderance of the credible and legally admissible evidence” while an indictment must be supported by “prima facie” evidence.
Accordingly, defendant’s reliance on the Grand Jury report case law is misplaced.
It is clear from the record that defendant’s guilt was established beyond a reasonable doubt and that the jury was entirely justified in rejecting defendant’s claim of self defense. Any potential error with regard to the trial court’s charge on justification has not been preserved for appellate review inasmuch as no timely objection was taken at trial at a point when the court could have been alerted to any flaw and taken appropriate steps to effect a cure. Moreover, defendant’s counsel has not even framed the issue in his appellate brief as a basis for reversal. Under these circumstances, the interest of justice, as we perceive that interest to be, does not compel the reversal of the judgment of criminal conviction. A brief review of the trial court’s instructions pertaining to the justified use of deadly physical force is in order. The relevant portion of the charge follows:
“The defense has asserted a defense of justification. The burden is on the People to disprove that defense beyond a reasonable doubt. By claiming justification, the Defendant has added another element to those I have already given you, which the People must establish beyond a reasonable doubt before you can find the Defendant guilty.
“Now, you have heard reference to justification throughout the trial. Justification is a legal term used to describe a defense, and is relevant to the present case as defined in the following manner: ” ‘A person may use physical force, other than deadly physical force, upon another person when and do the extent he reasonably believes such force to be necessary to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless: A, the latter’s conduct was provoked by the actor himself with intent to cause physical injury to another person, or, B, the actor was the initial aggressor, except that in such case his use of such physical force is nevertheless justifiable if he has withdrawn from the encounter and effectively communicate [sic] such withdrawal to such other person, but the latter persists in continuing such incident by the use or threatened imminent use of unlawful physical force.’
“A person may not use deadly criminal physical force upon another person under circumstances mentioned above unless he reasonably believes that such person is using or about to use deadly physical force. Even in such case, however, he may not use deadly physical force if he knows that he can, with complete safety to himself and others avoid the necessity of doing so by retreating. Except that he is under no duty to retreat if he is in his dwelling and not the initial aggressor. Or he reasonably believes that such person is committing or attempting to commit a robbery.
“Deadly physical force means physical force which under the circumstances in which it is used is readily capable of causing death or other serious physical injury. Serious physical injury means a physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurements, protracted loss or impairment of the function of any bodily organ.
“In considering the defense of justification in this case, you should consider whether the Defendant’s stated claim of justification is reasonable in the light of his knowledge of the circumstances as they existed at the time of the incident. The test of reasonableness is not what the ordinary prudent man would have done with the same knowledge and under the same circumstances, but whether his claim of justification is reasonable in the light of what he must have thought at the time of the incident. Nor is it required in the defense of justification that you find that the Defendant was in actual peril from the use or imminent use of unlawful physical force or deadly physical force. It is sufficient if the Defendant reasonably believed that he was in such peril. Justification as defined is a defense meaning that when raised by the person accused, the People have the burden of disproving the defense of justification beyond a reasonable doubt. Therefore, unless you find both, that the People have proved all the elements of the offenses charged beyond a reasonable doubt, and also that they have disproved the defense of justification beyond a reasonable doubt, you must vote to acquit the Defendant.”
This portion of the criminal charge, as our dissenting colleague candidly admits, closely follows the statutory language. While the possibilities for speculating the ways in which jurors might have been confused by the justification charge are legion, the fact remains that this jury was entirely justified in rejecting defendant’s claim of self-defense. The self-defense claim was dependent upon the testimony of the above-mentioned person whose credibility was seriously impugned by his admission that he would lie for defendant if he had to. Similarly damaging was the impeachment of the said person by his own prior inconsistent statements to two investigating police officers. The jurors, as the ultimate triers of fact, were clearly empowered to resolve the issue of McDermott’s credibility in the People’s favor, thus toppling the justification defense. It is difficult to conceive how a different justification charge could have resulted in an assessment of credibility more favorable to defendant.
In light of the overwhelming evidence of guilt and in the absence of any substantial likelihood that a variation of the justification charge would have resulted in a contrary verdict, reversal of the judgment of conviction is not warranted in the interest of justice.
Accordingly, the criminal court held that inasmuch as defendant’s remaining contentions are devoid of merit, the judgment appealed from should be affirmed.
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