The People, Respondent,v.Douglas R. Every, Appellant.BriefN.Y.August 30, 2017To Be Argued By: William T. Easton, Esq. Easton Thompson Kasperek Shiffrin LLP Requested Time: 15 minutes SUPREME COURT OF THE STATE OF NEW YORK ... APPELLATE DIVISION : THIRD DEPARTMENT THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT -vs- DOUGLAS EVERY, APPELLANT · Appeal No. 107581 (Tioga County Indictment No. 2014-06) BRIEF FOR APPELLANT Attorney for Respondent: Kirk 0. Martin, Esq. Tiogn County District Attorney P.O. Box300 20 Court Street Owego~ New York 13827 (607) 687-8650 EASTON THOMPSON KASPEREK SHIFFRIN LLP William T. Easton, Esq. Danielle C. Wild,. Esq. Attorneys for Appellant 16 W. Main Street, Suite 243 Rochester, New York 14614 (585) 423-8290 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv QUESTIONS PRESENTED .. . . ... .. . .... .......... .. . . . .... . .... . .. ........... .. .. 1 STATEMENT OF FACTS .. . . ................... . ... . . . . .... ................... . .. 2 POINT I. A. B. C. D. E. POINT II. A. B. AT A TRIAL IN WHICH DEFENDANT ASSERTED THE DEFENSE OF JUSTIFICATION, THE LOWER COURT IMPROPERLY EXCLUDED EVIDENCE OF DECEDENT'S PRIOR THREATS OF VIOLENCE AGAINST A WITNESS AND DECEDENT'S PRIOR CONDUCT TOWARD DEFENDANT AND IMPROPERL YLIMITED EVIDENCE OF DECEDENT'S REPUTATION FOR VIOLENCE ............ 15 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 The lower court improperly precluded Mr. Every from introducing evidence of the decedent's specific acts of threats and aggression against a witness who had told Mr. Every of these acts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 The lower court improperly precluded another witness from providing evidence of a previous incident where the defendant had locked himself in his bedroom to protect himself from the decedent who the witness heard screaming at defendant.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 The lower court improperly limited the defense from introducing reputation evidence of decedent's aggressive or violent conduct while intoxicated .. . . . . : . . ...... . ... .... . .. .. . ... .. . . ................ . ... 23 THE LOWER COURT'S ERRONEOUS JURY INSTRUCTION REGARDING WHETHER THE SHARED KITCHEN AREA OF THE DEFENDANT'S HOME WAS HIS DWELLING ALLOWED THE JURY TO IMPOSE A NON-EXISTENT DUTY TO RETREAT AND PERMITTED A CONVICTION ON LEGALLY AND UNCONSTITUTIONALLY INSUFFICIENT EVIDENCE .. . .. .. . .. . . . . .... . 26 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The lower court's erroneous jury instruction ............. . . . ............... 30 1 C. New York law imposes no duty to retreat on a defendant for an offense in his home Even if the decedent is a co-habitant. . . . .. ........ . ............ 32 D. The lower court's error is reviewable despite defense counsel's failure to object or take exception . . . .. . . . . . . . . . ... . . . .... ... . ...... ... ...... . . 33 POINT ill. THE PROSECUTOR ENGAGED IN SUBSTANTIAL AND PERVASIVE MISCONDUCT AND THEREBY DEPRNED MR. EVERY OF DUE PROCESS ................. ... .......... . ... ...... . . . 37 A . Introduction ...... . . . ... .. . . . .. . ......... . . . . ... .. . .. ........ ....... 37 B. The prosecutor improperly suggested to the jury that Mr. Every had a duty to retreat through his questioning of Investigators Moulton and Nalepa and in summation ............ . ....... . .... ....... .......... . . .. 37 C. The prosecutor engaged in repeated misconduct in his summation, including denigrating the defense as a "story to sell to the world" and improperly vouching for the credibility of his witness, James Atwell ............ 41 D . The prosecutor's misconduct cannot be dismissed as harmless ................ 45 POINT N: MR. EVERY WAS DENIED THE EFFECTNE ASSISTANCE OF COUNSEL . ... .. .. .. . . ............. .. . ..... . . . . . .. ... ............ · .. 46 A. Trial counsel was ineffective for failing to take exception to the lower court's erroneous jury instruction regarding duty to retreat in one's dwelling or to object or seek curative measures when the prosecutor repeatedly introduced evidence regarding this non-existent duty. . . . . . . . . . . . . . 46 B. Trial counsel's failure to object to the prosecutor's improper summation constituted ineffective assistance of counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 C. Trial counsel's failure to object to the medical examiner and the coroner characterizing Milton Jump's death as a "homicide" was ineffective assistance of counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 POINT V: THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE ... . .. ....................... ....... .... . .. ... 53 POINTVI: THE SENTENCE IMPOSED BY THE LOWER COURTWAS HARSH AND EXCESSIVE ....... . .................... . . ..... ..... . . . 58 11 CONCLUSION ....... .... . . ................ . . . . . . . . . . . . . .. .................... . 63 lll TABLE OF AUTHORITIES FEDERAL CASES PAGE Berger v United States, 295 US 78 [1935). ............................ ............... .... ...... ............... ........ ... ....... 38 Sparfv United States, 156 US 51 [1895]. .......................................... ........................ ...................... . 36 Stokes v People, 53 NY 164 [1873]. ............ ....... ............................ ........ ........ ................................. . 23 Stricklandv Washington, 466 US 668 [1984]. ................................. .... ...... .... ............................ 41,45 Sullivan v Louisiana, 508 US 275 [1993] .............................. ............. .... .... ...................................... 35 Tibbs v Florida, 457 US 31 [1982]. .... .. ............ .................................. ................. ............................. 54 United States v Thompson, 483 F2d 527 [3d Cir 1973] ........................... ........ .............. ................... 61 STATE CASES In re Y.K. , 87 NY2d 430 [1996] ............................ .. ....................... ....... ... ........... ........ .... .. ... .. : ...... ... 35 People v Alford, 33 AD3d 10l4 [2d Dept 2006] .......... .... .................... ............................................ 50 People v Arthur, 22 NY2d 325 (1968]. ........................................................ ............. ........................ 36 People v Ashwal, 39 NY2d 105 [1976]. ... .................................................................................. 39,42 People v A uleta, 82 AD 3d 1417 [3d Dept 2011]. .................................................................. .. ......... 23 People v Autry, 75 NY2d 836 [1990] ....... .. ............ .................................. ... .................. ... ..... .... ....... 36 People v Bailey, 8 AD3d 1024 [4th Dept 2004]. .............................................................................. 59 Peop le v Baldi, 54 NY2d 137 [1981] ........................................................... ... ...................... 41 , 45,49 People v Benevento, 91 NY2d 708 [1998). .. ................................................. ........ ............... . 48, 49, 52 People v Bleakley, 69 NY2d 490 [1987]. ............................. .......................... ...... ........ .................... 54 People v Brosnan, 32 NY2d 254 [1973]. .............. ................................. .... ..................... .................. 40 lV People v Brown, 26 AD3d 392 [4th Dept 2006]. ............................................................. ................. 43 People v Brown, 80 NY2d 729 [1993]. ...... .... .................. .. ............. ....... ...... .... .... ............................. 23 People v Burghardt, 17 AD2d 912 [4th Dept 1962]. ....... ................................................ ................. 62 People v Butler, 185 AD2d 141 [1st Dept 1992]. ........... .................................................................. 39 People v Cahill, 2 NY3d 14 [2003]. ................................................................................................. 54 People v Campanella, 100 AD3d 1420 [4th Dept 2012]. ...................... ..................................... 52, 53 People v Casanova, 119 AD3d 976 [3d Dept 2014). ....................................................................... 45 People v Clark, 6 AD3d 1066 [4th Dept 2002] .................. .......................... ................................... . 49 People v Claudio, 83 NY2d 76 [1993]. ............................................................................................ 48 People v Compton, 157 AD2d 903 [3d Dept 1990]. ........................................................................ . 61 People v Craig, 78 NY2d 616 [1991]. ............................................................................................. . 35 People v Crimmins, 36 NY2d 230 [1975] ....................... ............. ............ ............................... ......... 46 People v Danielson, 9 NY3d 342 [2007]. ....................... ........................... ................................. 54, 55 People v Dean, 70 AD3d 1193 [3d Dept 2010]. .................................. .................. ........................... 55 People v Dean, 50 AD3d 1052 [2d Dept 2008). .................................... ......... .................................. 51 People v DeJesus, 42 NY2d 519 [1977]. ... .... .................................... ... .. .. ................... ..................... 51 People v Delgado, 80 NY2d 780 [1992] ............ ................................................... ........................... 59 People v Demming, 116 AD2d 886 [3d Dept 1986]. ......... : ......................... ..................................... 38 People v DiGuglielmo, 258 AD2d 591 [2d Dept 199 1]. ............................................... .................... 19 People v Dinkle, 302 AD2d 1014 [4th Dept 2003] ..................................................................... 49, 50 People v Dixon, 138 AD2d 929 [4th Dept 1988]. ........................................ ... ......................... .. ....... 23 People v Emmick, 136 AD2d 892 [4th Dept 1988] ...... .............. .................................................... .. 37 v People v Farrar, 52 NY2d 302 [1981] ........... ................ ... ........... .............. .. ..... ............. .................. 60 People v Felder, 47 NY2d 287 [1979] ........................ ....... .. ..... ..... ............................. .... ..... ....... ...... 48 People v Feurer, 11 AD3d 633 [2d Dept 2004]. ..... ....................... ................. .... .. ........ .... ... ............ 37 People v Fisher, 18 NY3d 964 [2012]. ................ ...... ............................................ ....... ...... .............. 45 People v Ford, 86 NY2d 397 [1995]. ..... ............................................... ..... ....... ......................... ...... 49 People v Galloway, 54 NY2d 396 [198 1]. .. ... .. .................... ... ... ........... ............ ..... ..................... 38, 51 People v George, 249 AD2d 488 [2d Dept 1998]. .... .......... ................. ...... ...... ........... ........... .. ... ..... 52 People v Glendenning, 127 Mise 2d 880 [S Ct Westchester Co 1985]. ........................................... 61. People v Goetz, 68 NY2d 96 [1986]. ............. ............... : ......... .............................................. ...... 18, 19 People v Golden, 41 AD2d 242 [1st Dept 1973]. .. ...... .......... ... .... ............ ............... ... ... ................... 62 People v Graydon, 43 AD 2d 842 [2d Dept 1974]. .............................. ....... ...... .............................. . 53 People v Harmon, 181 AD2d 34 [1st Dept 1992]. ...... ..... ........... ... ... ......... .. ...... ....... .... ................... 62 People v Hartzog, 264 AD2d 689 [1st Dept 1999]. ....... ................................................................... 40 People v Heath, 49 AD 3d 970 [3d Dept 2008]. ..... ..................................... .... ......... ... ... ....... .... ... .... 52 People v Henderson, 162 AD2d 1038 [4th Dept 1990]. .. ................... ............................ .......... ........ 20 People v Hernandez, 98 NY 2d 175 [2002]. ................................ ........................ ... .......................... 31 People v Hetherington, 229 AD2d 916 [4th Dept 1996]. .............................................. .... .... .... . 39,41 People v Hines, 9 AD 3d 507 [3d Dept 2004]. ....... ....................... ... ................ ..... ............................ 54 People v Robot, 84 NY2d 1021 [1995]. ... ......... ..... .......................................... ........................... ..... 49 People v Holloway, 185 AD2d 646 [4th Dept 1992] ........................ ~ .................................. ... ..... ..... 59 People v Jackson, 245 AD2d 1115 [4th Dept 1997]. .. ............... ....... ....... .... ..... .... ..................... ...... 61 People v Johnson, 1 NY3d 302 [2003]. ........... ~ ......................................... .... ............ ....................... 22 vi People v Johnson,_ AD3d _ , 2016 WL 533997 [4th Dept Feb 12, 2016]. .. .... ... .... .................. ... 60 People vJones, 5 NY3d 491 [2004]. .... ..... .... ...... ............... ....... ... ........ ........ ........ .... .. .... 27, 31, 34,38 People v Jones, 44 NY2d 76 [1978]. .... .. ... .... ...... .......... ..... .... ... ................ ................ ..... ............. .... . 38 People v Jones, 873 NYS2d 773 [3d Dept 2009]. ..................... .............. ...... ....... ..... .... .... .... ........... 56 People v Jones, 134 AD3d 1588 [4th Dept 2015]. ................... ... .... ... ........ .... ....... .. .. .... ..... ..... .... .. .. . 43 People v Langlois, 17 AD3d 772 [3d Dept 2005]. ..................... ............................ ..... ..................... 53 People v Lopez, 200 AD2d 767 [2d Dept 1994]. ... ...... ... .... .. ...... ....... ... .............. .... ....................... ... 37 People v Loria, 190 AD 2d 1006 [4th Dept 1993] ................ ............. .. .............. ....... .. .... ......... ..... ... 22 People v Mann, 63 AD3d 1372 [2009] .. .. .......... ...................... ................................. .... ......... .... ..... .. 54 People ex rei. MacCracken v Miller, 291 NY 55 [1943]. ..... ..... ........ ...... .. ..... ....... ... ...... .......... ........ 54 People v McLucas, 15 NY2d 167 [1968]. ... .............. ................... .... ... ... ... ....... ... ..... ... ... .... .. ............. 36 People v McManus, 67 NY2d 541 [1986]. ...... .. ........ .. .... .... ... ... ...... ... ... ..... ............ .............. 34, 35, 57 People v Miller, 39 NY 2d 543 [1976]. ........ ........................................... ....................... 19, 20, 23, 25 People v Mitchell, 82 NY2d 509 [1993] ....... .......... ..... ...... ........... ..... ......... .... ......... ... .... .... ... ........... 35 People v Mitchell, 112 AD3d 1071 [3d Dept 2013]. .. ... ...... ............... ........ ..... .................. ......... 38, 42 People v Mott, 94 AD2d 415 [4th Dept 1983]. ................ .................... ............................. ..... ..... ...... 52 People v Mussolino, 54 AD2d 22 [3d Dept 1976]. ...... ...................................... ........... .... ........ ...... .. 37 People v Nicholson, 237 AD2d 973 [4th Dept 1997]. .. ... .. ............... ....... ..................... ...... ........ 60, 61 People v Notey, 72 AD2d 279 [2d Dept 1980]. ... ...... .. .. .. ..... ..... ................. ................................ 60, 62 People v 0 'Dell, 26 AD 3d 527 [3d Dept 2006] ... ...................... ........... ....... ..... ............... ..... .. ........ . 53 People v Ortiz,1.25 AD2d 502 [2d Dept 1986]. ...... .. .......... ........... ... ...... ... ..... .......... ...... .......... .. ...... 44 People v 0 'Neil, 66 AD 3d 1131 [3d Dept 2009]. ........................................ .... .................... ....... ...... 55 Vll People v Pagan, 2 AD3d 879 [2d Dept 2003] .................................. ....................... ........................ . 44 People v Parks, 53 AD 3d 688 [3d Dept 2008]. ................................................................................ 55 People v Parson, 209 AD2d 882 [3d Dept 1994]. ...... .' ................ ............................ ..... .... ................ 23 People v Patterson, 39 NY2d 288 [1976] .... ..... .. ....... ........... ... .............. ... ............ ........................... . 36 People v Pauli, 130 AD2d 389 [1st Dept 1987]. ...... ........... .... .. .. ... ...... ............................. .. ............ . 39 People v Perser, 67 AD3d 1048 [3d Dept 2009]. .... ... ................ .... ........ .. ............ .. .. ...... .. ......... ....... 58 People v Phillips, 32 AD3d 1343 [4th Dept 2006]. ............................ ..... ............... .... ... .. ................. 37 People v Proper, 177 AD2d 863 [3d Dept 1991]. ... .................. ...................... ............................. .... 44 People v Ramsey, 134 AD3d 1170 (3rd Dept. 2015]. ..................................................... 41, 47, 50, 52 People v Richardson, 55 AD3d 934 [3d Dept 2008]. ............................................ : .. ... .. .... ............... 54 People v RobertS., 52 NY2d 1046 [1981]. ................. .... ..................... ............................. ....... ........ 20 People v Robinson, 121 AD 3d 1405 [3d Dept 2014]. ..................................................................... 20 People v Robinson, 16 AD3d 768 [3rd Dept 2005]. ........................ .................................... .... ....... .. 40 People v Rodawald, 177 NY 408 [1904]. ............. ... ........ ..... ...................................... .. ........ ....... .... . 25 People v Romero, 7 NY3d 633 [2006] .... .................... ........ ...... ......................... ............ .. ... ....... . 54, 58 People v Santiago, 211 AD2d 734 [2d Dept 1995]. ..... ... .. .................... ... ..................... ..... .. ............ 25 People v Santorelli, 95 NY2d 412 [2000]. ........... ................ ........... .. ...... ...... .......... ... ... ....... ... .. ...... . 38 People v Scruggs, 111 AD3d 966 [2d Dept 2013]. ............................................................... ... ......... 53 People v Semkus, 109 AD2d 902 [2d Dept 1985] ............................................................................ 60 People v Skinner, 298 AD2d 625 [3d Dept 2002]. ..................................................................... 41,43 People v Stanley, 254 AD2d 507 [2d Dept 1998] ............................................................................. 40 People v Thiessen, 76 NY2d 816 [1990]. ......................................................................................... 61 Vlll People v Thomas, 50 NY2d 467 [1980]. ................................................ .. ..... ... ....................... ... : ...... 36 People v Tomlins, 213 NY 240 [1914]. .................................................... .... ....... ....................... 27, 33 People v Torres, 90 AD3d 420 (1st Dept 2011]. .................................... ... .. ........................ ............. 40 People v Trinidad, 59 NY2d 820 [1983] ............... .... .... ..... ............. ........... ..................... ................. 51 People v Trivette, 175 AD 2d 330 [3d Dept 1991]. ..... ... ..... ..... .... ..... ................................ ............... 19 People v Turner, 5 NY3d 476 [2005]. .... ... ........................ .... ..................................................... 49, 50 People v Vasquez, 88 NY2d 561 [2001]. .... .... ............ ...... ............... ... ..... ............ ........... ................. . 23 People v White, 73 AD2d 865 [1st Dept 1980] .... ............................................................................. 25 People v Williams, 121 AD 2d 145 [4th Dept. 1986]. ..................................................... ............... .. 18 People v Wlaisiuk, 90 AD3d 1405 [3d Dept 2011] ................................................ .. ................... 47, 49 People v Zimmer, 51 NY2d 390 [1980]. ...... .. ........... ................ ...................................... .... ...... ....... .. 38 Stokes v People, 53 NY 164 [ 1873]. .............. ................................................................................... 23 CONSTITUTIONS NY Const, art I§ 6 ....................................................... .................................................. .. ........... 41, 45 US Const, 6th . .................. ........................................................................................................... 41,45 STATUTES CPL § 330.30 ................ ... .......... .. ...................................................... .................................... ............. 1 CPL § 470.1 5 . .. ........................................................... ............................................................... p·assim CPL § 470.20 ................................ ......................... ... ........................................................................ 54 Penal Law§§ 1.05 ..................................................................................... ................................... 62, 63 lX Penal Law§ 10.00[1] ........................................................................................................................ 18 Penal Law§ 135.15 ................................................................................................................. 9, 27, 34 Penal Law§ 125.20 ........................................................................................................................... 14 Penal Law§ 125.25[1] ........................................................................................................................ 9 Penal Law§ 215.40 ............................................................................................................................. 9 X QUESTIONS PRESENTED 1. Did the court below improperly preclude Mr. Every from introducing evidence of the decedent's prior threats of violence against a witness ·of which Mr. Every was aware, evidence of decedent's prior violent conduct against Mr. Every, and the decedent's reputation in the community for physical violence? Court Below: No. 2. Did the court below provide the jury erroneous and misleading instructions which in the context of a defense of justification, allowed the jury to impose a duty to retreat on Mr. Every regarding an incident that occurred in an area of his home that was shared with the co-habitant victim? Court Below: No. 3. Was Mr. Every denied a fair trial by pervasive and substantial prosecutorial misconduct? Court Below: Did not reach. 4. Was Mr. Every denied his state and federal constitutional right to effective assistance of counsel? Court Below: Did not reach. 5. Was the jury's verdict convicting Mr. Every of manslaughter in the first degree against the weight of credible evidence? Court Below: Did not address, but denied in context of CPL § 330.30 motion. 5. Was the imposition of a sentence of seventeen years in prison harsh and excessive? Court Below: No. 1 STATEMENT OF FACTS On the night of October 23, 2013, Douglas Every called 911 from his home. He requested an ambulance, telling the 911 dispatcher that he had just stabbed Milton Jump (A 350).1 In response to . the dispatcher's inquiry about why he stabbed Jump, Mr. Every replied that Jump had thrown him "all over the place," breaking his glasses; "[h]e scared me and I like stabbed him with a knife" (A 350).2 Jump, who was still breathing when Mr. Every made the call (A 350),3 died from internal bleeding due to a single stab wound to his heart (A 75). Jump was 39 years old, 150 pounds, in good health, and highly intoxicated at the time of his death with a blood alcohol level of .27 (A 72, 81, 173). A former romantic partner of Mr. Every, Jump was temporarily residing at Mr. Every's home with his current companion James Atwood, an 85-year old gentleman who was confined to a wheelchair (A 3 51). 4 Mr. Every, then 62 years old, had been prescribed medication for anxiety and exhibited signs of early onset dementia (A 179, 245). Mr. Every had repeatedly called 911 over the past years to request assistance because of Jump's abuse, with the most recent call being in March 2013 (A 11 ). Incident at In his oral statement to the police, Mr. Every recounted that Jump had physically assaulted him and threatened him in his home in the hours leading up to the stabbing (A 351). Mr. Every tried to call for help using his cell phone from outside his house but was unable to do so because Jump had shut off 1 Cited text found at 20:12:19, 20:12:25, 20:12:37; 20:17:15, 20:18:38, and 20:21:40, referring to the time stamps on the recorded 911 calls. 2 20:12:23, 20:16:58-20:17:03 3 20:12:35, 20:16:37 4 Cited text found at 22:17:40, 22:17:56, and 22:18:22, referring to the time stamp on the DVD recording of the defendant's statement. 2 the power from inside, and Mr. Every's cell reception depended upon a signal booster from the home (A 351).5 Forensic analysis ofMr. Every's phone showed that he tried to make three consecutive calls to a number beginning with 687 (A 102, 105-06); the main line for 911 dispatch is 687-1010 (A 20). Analysis also showed that Mr. Every then tried to call his friend, Kathleen Petti crew (A 155-56). That call was also not completed, evidently because of the power shut off from inside the house (A 106). Mr. Every had spent the night at Petticrew's house two months earlier after he had locked himself in his bedroom to protect himself from Jump (A 155-56). Unable to use his cell phone, Mr. Every re-entered his home and switched the power back on (A 351).6 When he did so, Jump continued to yell at and threaten Mr. Every, prompting Mr. Every to pick up a kitchen knife that was on the counter for protection (A 351 V Jump confronted Mr. Every and backed him into a comer in the pantry/laundry room ("utility room") adjoining the kitchen (A 351 ). 8 Jump then lunged at him, which resulted in Mr. Every stabbing Jump once with the knife he was holding (A 351V According to Mr. Every, Jump, who was stabbed once in the chest, made his way into the kitchen and collapsed on the floor by the refrigerator (A 351).10 5 22:20:15,22:22:26,23:27:04 6 22:22:12 7 23:19:06 8 22:33:48-22:34:00,22:34:12,22:55:28, 23:27:04 9 22:32:26,22:33:36,22:34:12,22:35:45,22:48:34,22:51:53,22:55:28,23:29:18 10 22:58:04,22:58:42,23:13:44 3 Mr.· Every immediately tended to Jump, placed a towel underneath his chest to try and stop the bleeding, then called 911 to request an ambulance and to report what happened (A 3 51).11 The police responded to Mr. Every's residence (A 25). The ambulance remained on standby until receiving word from the responding officer that the scene was secure (A 15). After cooperating with the instructions of the dispatcher and complying with the responding officers, Mr. Every was detained and transported to the Tioga County Sheriff's Office (A 27, 35). There, he continued to cooperate while being questioned by Investigators Wayne Moulton and Shawn Nalepa (A 44, 82). Every's Recorded Statement At the Sheriffs Office, Mr. Every waived his Miranda rights and was questioned by Investigators Moulton and Nalepa (A 44-46, 85). This questioning was recorded (A 93). Mr. Every told Moulton and Nalepa that he got home around 5:00p.m. (A 351).12 A halfhour later when he went into the kitchen to feed his dogs, Jump gave him permission to do so but told him that he otherwise needed to stay out of the kitchen while Jump cooked dinner (A 351). 13 Mr. Every complied, made himself a cocktail, and sat down at the diningroom table to work (A 351).14 Jump then told Mr. Every that he was not going to make him dinner and that Mr. Every needed to eat leftovers instead (A 351).15 When Mr. Every told Jump that was fme, that he didn't care, Jump 11 22:47:56,22:49:02,22:57:54,23:16:21, 23:30:40 12 22:28:27 13 23:23 :17 14 22:22:26, 23:23:17 15 22:22:26 4 "went off' (A 351).16 Jump "threw [him] around the living room and the kitchen and the laundry room and [his] office and tipped over chairs" (A 351 ). 17 Mr. Every picked the chair back up because he didn't want his house in disarray (A 351).18 (A few months earlier, Mr. Every had called the police because Jump flipped the diningroom table over, knocking Mr. Every's computer to the floor [A 351]).19 As Mr. Every described the scene, "[T]he next thing I know I'm, I'm on the floor and I'm slammed based against the, the, the fireplace, the wood stove" (A 351)?0 Upon his release from jail, four weeks after the incident, Mr. Every received medical treatment for tom ligaments in his left hand and wrist that were sustained from falling on the floor that night (A 182). He also sustained rotator cuff injury to his shoulder and tore the labrum (A 183). During the melee, Mr. Every's glasses broke (A 351).21 When Mr. Every went to his office, half of which was used as Jump's and Atwell's bedroom, Jump said "this is the room I rent ... get out ofhere" (A 351).22 Jump continued to push Mr. Every around until Mr. Every grabbed his cell phone and ran out of the house (A 351 ).23 When he got outside, Mr. Every heard Jump scream "are you going to call the cops"? (A 351).24 Jump turned the power off and Mr. Every, unable to rely on the signal 16 22:20:15,23:23:17 17 22:20:15 18 22:27:45 19 23:24:47 20 22:22:26 21 22:22:26, 23:24:41 22 22:25: 52, 23:25:22, 22:32:36 23 22:22:26, 23:25:22 24 23:25:22 5 booster inside the house for cell reception, could not call 911 or his friend Kathy Petticrew who he had tried to call (A 351).25 Mr. Every re-entered the house through the back door, which opened to the utility room, and turned the power back on from the circuit breaker on the wall above the dryer (A 351 ). 26 Jump was in the livingroom with Atwell and started screaming at Mr. Every and coming after him again (A 351).27 Mr. Every grabbed a knife from the kitchen counter to protect himself and backed into the utility room (A 351).28 He thought that if he had the knife, Jump would leave him alone (A 351).29 Jump said "go ahead" or"go for it" (A 351).30 When Mr. Everyto1d him to "stay the fuck away from me," Jump lunged at him (A 351).31 The knife, which Mr. Every had been holding in his right hand, went into Jump's chest (A 351).32 Mr. Every pulled the knife out ofJump's chest (A 351).33 Jump made his way into the kitchen and collapsed on the floor by the refrigerator (A 351 ).34 Mr. Every put the knife down, either on the 25 22:20:15, 22:22:26, 23:27:04 26 22:33:13,22:39:31-22:39:42 27 22:33:20, 22:55:21 28 22:33:48-22:34:00, 22:34:12, 22:55:28, 23:27:04 29 23:19:06 30 22:32:26,23:29:18 31 22:32:26,22:33:36,22:34:12,22:51:53,22:55:28,23:29:18 32 22:35:45, 22:48:34 33 22:52:04 34 22:58:04,22:58:42,23:13:44 6 counter or in the sink, and went over to Jump (A 351).35 He screamed at Jump to wake up, to get up (A 351).36 Mr. Every grabbed a towel and put it underneath Jump's chest to try to stop the bleeding, and he put a cold compress on his head (A 351).37 Mr. Everycalled911, then Jump's parents (A 351).35 Mr. Every told Moulton and Nalepa that he did not know what set Jump off(A 351).36 He said, "The biggest thing I was worrying about in the beginning after being thrown down and twisted around the living room is that my new glasses popped apart. That should be the biggest fucking thing. Now I've got a friend who's dead" (A 351).37 More than twenty separate times during the interrogation, Investigator Moulton asked Mr. Every if he could have retreated, if he could have gone back outside, if he really needed to re-enter his home after Jump shut the power off.38 35 22:59:29 36 23:16:12,23:30:40 37 22:49:02,22:57:54,23:16:21 35 22:47:56, 22:48:25, 23:30:40, 23:58:41 36 22:25:52 37 23:03:46 38 "[I]fyou were outside and awayfromhimandharms way, whywouldyoureenter?" (A 351 [22:37:29]); "So why didn't you go to a neighbor's house?" (A 351 [22:37:46]); "Why didn't you get in the car and go?" (A 351 [22:37:48]); "Alright, so you weren't trying to retreat, you were like fuck this, it's my house I'm going back in, right?" (A 351 [22:38:19]); "We had you out of the fire, I'm just wondering why you went back in" (A 351 [22:38:42]); "I would've walked somewhere. I'm wondering why you didn't" (A 351 [22:38:57]); "Your dad lives down the road" (A 351 [22:39:06]); "my thing is you were out ofthe house, you were out ofthe burning fire, you were out ofthe burning fire. You could have wentto your dad's, you walked that road, I've seen you walk that road." (A 3 51 [22:40:08]); "Could you have retreated again?" (A 351 [22:53:16]); "How many steps away from the back door?" (A 351 [22:53:22]); "So you could have ran again?" (A 351 [22:53:32]); "Here, here's my thing is like I don't, once I leave a bad situation and the heats on, I don't go back in and I don't believe you would either. I don't believe you were in fear of your life when you went back in your house" (A 3 51 [22: 54:4 7]); "You were not going to retreat?" (A 3 51 [22: 56: 11 ]); "You could have dropped the knife and you could've gone out of the back door" (A 351 [22:56:14]); "You could've left?" (A 351 [22:56:21]); "I'm asking if, I'maskingiftherewas, ifyou could have" (A351 [22:56:36]); "When he came at you, could you have retreated again?" (A 351 [22:56:57]); "Could you have dropped that knife?" (A 351 [22:57:02]); "So he 7 Jury Trial Mr. Ev.e:ry was charged by felony complaint with Murder in the Second Degree on a depraved indifference theory (A 5). He was later indicted for a single count of intentional Murder in the Second Degree(Penal Law [PL] § 125.25[1]) and also Tampering with Physical Evidence (PL § 215.40[2]) (A 3-4). Mr. Every entered a not guilty plea to both charges and proceeded to trial, where he asserted a justification defense pursuant to PL § 135.15 (A 5-6). At trial, the prosecution introduced the audio recording of Mr. Every's 911 call (A 18). Sergeant Lavore testified that he responded to the dispatch and detained Mr. Every (A 28). Lavore then entered Mr. Every's residence, a split level home (A 28-29). Downstairs, a hallway led to the right and opened up to a small diningroom and living room area off to the left, with a small kitchen to the right (A 30-31). A room used as both Mr. Every's office and Jump and Atwell's bedroom adjoined the livingroom area (A 199, 351 39). A small utility room, used as a pantry and laundry room, adjoined the kitchen and had a back entrance (A 42, 111, 199). When Lavore got downstairs, Atwell was sitting in his wheelchair in the livingroom area (A 29). Lavore directed Deputy Yaeger, who had arrived moments after Lavore, to remain with Atwell to secure the scene (A 33-34). Lavore found Jump in the kitchen, laying face down in front of and against the refrigerator (A 28, 31 ). His head was facing toward the adjoining diningroom area, his feet toward the back of the wouldn't back away, but you could have?" (A 351 [22:57:16]); "It's just not making sense to us. I mean you definitely could have left" (A 351 [23: 19:29]); "Okay, well you could have left. You could've done a lot of things here" (A 351 [23 :21 :58]); ''but it's clear that you could have retreated?" (A 3 51 [23 :55 :39]); "You already left once, why did you stab him?" (A 351 [23 :59:51]); "You had already left once, why did you stab him?" (A 351 [23 :59:54]). 39 22:32:36 8 kitchen and adjoining utility room (A 31). A trail ofblood went from the utility room, where Mr. Every said Jump lunged at him, to Jump's body in the kitchen (A 42). Both the pathologist who performed Jump's autopsy and the defendant's expert pathologist testified that Jump would have been able to move around for twenty to thirty seconds after being stabbed (A 76, 176). After Lavore turned Jump's body over to check for a pulse and found none, he called the ambulance squad (A 33). The medic confirmed that Jump did not have a pulse and was cold to the touch (A 36). On Jump's chest, the medic observed a puncture wound measuring one and one quarter inch wide (A 37). The medic pronounced Jump dead (A 38). Shortly after the ambulance left, investigators arrived and took over the scene (A 35). Several hours later, investigators called the coroner, who photographed the scene, noted the trail of blood leading from the back entrance in the utility room to Jump's body in the kitchen, and declared Jump's time of death to be 8:00p.m. based on the time ofMr. Every's initial911 call (A 39). The coroner characterized Jump's death as a "homicide" without objection or explanation (A 39-A). Dr. James Terzian performed the autopsy and determined that the cause of death was a single stab wound to the chest, resulting in Jump bleeding to death (A 75). The stab wound measured one and one quarter inch wide by four and one half inches deep (A 73), and was at a slight upward angle (A 82). Without defense objection or a contemporaneous curative instruction, Dr. Terzian testified that the manner of Jump's death was a homicide (A 75). The defense expert, Dr. Scott LaPoint, characterized the wound as an incision to the heart, rather than a laceration (A 176-C) .. Dr. LaPoint also testified that this wound was not particularly deep (A 176-F), and that the force required to drive a knife four and one halfinches into a human body is the same force required to cut a cantaloup (A 171 ). The knife that caused the wound was about ten inches in length (A 119). Dr. LaPoint testified that there was no 9 evidence to suggest that Mr. Every thrust the knife into Jump's body (A 171) and that there "is a reasonable possibility that the wound was caused by [Jump's] body moving into the knife rather than the knife moving into the body" (A 176-E). James Atwell testified that he saw Mr. Every lunge toward Jump and stab him, and that the stab bing occurred in the kitchen by the refrigerator, rather than in the adjoining utility room (A 118-19, 122). On cross examination, however, Atwell was impeached on both ofthese points with inconsistent prior statements he made to the police and the grand jury (see A 138 [where Jump was standing when stabbed] and A 140 [whether Atwell saw Jump get stabbed]). Atwell was also impeached on whether Jump smoked marijuana earlier that day (A 126-27), whether Jump was inside the house or in the garage when Mr. Every first got home (A 128), and whether Jump was angry with Mr. Every (A 130), among other things. The prosecution entered the recording of the 911 call into evidence as well as the video recording of Mr. Every's interrogation (A 18, 95). Still, the prosecutor elicited testimony from both investigators summarizing in their own words what Mr. Every said in his statement (550, 655). The prosecutor asked both investigators whether Mr. Every told them he could have retreated: District Attorney: Inv. Nalepa; District Attorney: Inv. Nalepa: (A 49). Did he say anything about whether he had the opportunity to retreat or not? Yes he did. What did he say about that? He said he could have retreated. He said he could have gone to a residence down the road, he could have gone back outside. And he also said that he wished had done that. 10 (A 88). District Attorney: Inv. Moulton: District Attorney: Inv. Moulton: * * * Did he say whether he had the opportunity to leave at any point in time? Yes. He said that he did leave. And then I further questioned him about returning. And I asked him what his options were, if he could have left. One example was I asked him, I says, your father lives down the street. Is wasn't a poor climate and you could have walked to your father's, right? He said, yes, that's correct. What about the immediate moments before he stabbed Milton? Did he say whether he would have had the opportunity to leave from that scenario? Yes. He was four to six feet away from a door. Mr. Every, who had asserted a justification defense for the single wound he inflicted, sought to introduce evidence of Jump's specific acts of violence known to him. First, Mr. Every sought to call Brian Dill as a witness, who was prepared to testify that Jump had threatened him with violence on two separate occasions, the second time being two months prior to the stabbing, and that he had told Mr. Every about those threats (A 212). Second, Mr. Every sought to call Kathleen Petticrew, who was prepared to testify that two months prior to the stabbing, she received a phone call from Mr. Every who had locked himself in his bedroom to protect himself from Jump. During this call, she could hear Jump screaming at Mr. Every (A 156). She then drove to Mr. Every's home, took him to her home, and allowed him to spend the night at her home (A 155-56, 35040). 40 22:20:15 11 The lower court precluded the defense from introducing any of these prior acts (A 156, 215). The court also precluded the defense from introducing evidence of Jump's reputation for violence not amounting to deadly physical force, limiting the reputation testimony the defense sought to elicit to Jump's reputation for being "verbally abusive" or "quarrelsome" while intoxicated (A 160-61). The court specifically precluded evidence of Jump's reputation for shoving or pushing people around while he was intoxicated (A 161). The defense called Mr. Every's primary physician, Dr. Keith Nichols, who testified that in 2005 he diagnosed Mr. Every with anxiety, for which he prescribed a variety of medication over the years (A 179). Dr. Nichols testified that Mr. Every's anxiety stemmed, in part, from personal issues that troubled him over time, and that Mr. Every was just inherently anxious (A 191). The defense's expert forensic psychologist, Dr. Thomas Lazzaro, described Mr. Every as a "rather anxious, agitated man" and "a passive, compliant, dependent, submissive man who has a history of ... severe bullying as a child" (A 242, 246). Dr. Lazarro testified that Mr. Every's anxiety disorder "has made Mr. Every hyper-vigilant to personal injury, to abuse, to being yelled at" (A 246). Additionally, Dr. Lazarro concluded that Mr. Every exhibited symptoms of early onset dementia, which "has the potential effect of making him misperceive things in his environment" (A 246-47). Summation In summation, the prosecutor called Mr. Every's explanation of what happened a "story" he was trying "to sell to the world" (A 307). The prosecutor further urged that by claiming he was afraid of Jump and believed he needed to protect himself from Jump, Mr. Every was trying to "manipulate the story and make himself look like the victim" (A 309), "minimize his behavior" (A 31 0), and "paint Milton in a bad light and somehow justify what he did" (A 307). The prosecutor also echoed 12 Investigator Moulton's and Nalapa's testimony that Mr. Every could have retreated: He admitted he could have done things differently, He could have gone down the road to his father's house, but he walked back in. And when he did, he said he wasn't in any fear of Milton. And even though he had walked back in, he still could have left. He said he was four steps away from the door he claimed he just walked through. (A 305). Defense counsel did not object to any of these comments. Jury Instructions At the charge conference, the prosecution opposed any instruction on the lack of any duty to retreat in one's own home. After argument, the court indicated it would read either the entire CJI charge on the duty to retreat, including the lack of such duty if the offense occurred in the defendant's dwelling, or it would omit any and all reference to the duty to retreat (A 281 ). The defense chose the former option; that the court read the entire CJI instruction on duty to retreat (A 282). In reading the instruction, the lower court included a parenthetical notation in the CJI instruction defining "dwelling": The term dwelling encompasses a house, apartment or part of a structure where the Defendant lives and where others are ordinarily excluded. The determination of whether a particular location is part of a Defendant's dwelling depends on the extent to which the Defendant and persons actually sharing living quarters with the Defendant exercises exclusive possession and control over the area in question. (A 333 [emphasis added]). After deliberating for two days and requesting two read-backs of the lower court's instructions, including the justification charge, the jury found Mr. Every not guilty of the charged offenses ofMurder in the Second Degree and Tampering with Physical Evidence but guilty of the· lesser included offense of Manslaughter in the First Degree (PL § 125.20[1]) (see A 2). 13 Sentencing Prior to sentencing, the defendant moved for an order setting aside the verdict on several grounds, including the court's preclusion of evidence of Jump's specific acts of violence, arguing that the testimony was relevant to the defendant's justification defense and that the preclusion impaired the defendant's ability to present a defense (A 370-73 ). The court denied the motion, finding the defense failed to meet its burden of showing Mr. Every knew about the prior acts of violence and noting that the defense was still permitted to elicit testimony that Jump had a reputation of becoming verbally aggressive when drinking (A 381-84). At sentencing, the court interpreted the PSI as showing that Mr. Every did not indicate that he was remorseful but only that he felt he did not receive a fair trial (A 392). The court found that Jump's death was a "senseless taking of another person's life," noting that the jury rejected Mr. Every's claim of self-defense (A 3?3). The court sentenced Mr. Every to 17 years imprisonment followed by five years post release supervision (A 394). This appeal followed. 14 POINT I. AT A TRIAL IN WHICH DEFENDANT ASSERTED THE DEFENSE. OF JUSTIFICATION, THE LOWER COURT IMPROPERLY EXCLUDED EVIDENCE OF DECEDENT'S PRIOR THREATS OF VIOLENCE AGAINST A WITNESS AND DECEDENT'S PRIOR CONDUCT TOWARD DEFENDANT . AND IMPROPERLY LIMITED EVIDENCE OF DECEDENT'S REPUTATION FOR VIOLENCE. A. Introduction When Douglas Every called 911 to request an ambulance after stabbing Milton Jump, he told the dispatcher it was because he "got thrown around the room" and that Jump "threw me all over the place" (A 350).41 Overthepastyears, Mr: Everyhadrepeatedlycalled 911 to request assistance, at least twice, because of Jump's belligerent conduct, with the most recent call being in Marchof2013 (A 11). After complying with the instructions of the dispatcher and cooperating with the responding officers, Mr. Every was transported to the police station where he continued to cooperate and was questioned by Sheriffs investigators (A 44, 82). In his oral statement, which was recorded in its entirety, Mr. Every recounted that Jump had physically assaulted him and threatened him in the hours leading up to the stabbing (A 351). In the initial stages of this attack, Mr. Every left his home and tried to call 911 from his cell phone from outside (A 3 51). Anticipating that Mr. Every was going to call the police, Jump shut off the power from inside the home, rendering Mr. Every, whose cell phone was dependant upon a signal booster, unable to call for help (A 351). Mr. Every tried to call the police three times and his friend, Kathleen Petticrew once before re-entering his home to switch the power back on (A 102, 105-06, 155-56). When he did so, Jump continued his threatening behavior, prompting Mr. Every to pick up a kitchen knife that was on the counter (A 351). Jump, who had been in the kitchen cutting vegetables with a knife, continued 4 1 The time stamps for the cited text are set forth in the Statement of Facts. 15 to confront Mr. Every, and backed him in a comer in the utility room adjoining the kitchen (A 351). Jump lunged at him, which resulted in Mr. Every stabbing Jump once with the knife he was holding (A 351 ). Mr. Every immediately called 911 from the landline to get an ambulance and to report the incident (A 351 ). Jump, who was breathing when Mr. Every called 911, died from internal bleeding due to the single wound to his heart (A 75, 351). B. Procedural Background At Mr. Every's trial, he asserted a justification defense for the single wound he inflicted. In connection with this defense, Mr. Every sought to introduce evidence of Jump's specific prior acts of violence which he knew about or were directed at him. First, the defense offered testimony from Brian Dill, who was prepared to testify that Jump had threatened him on two separate occasions with violence-one time with a nail gun and the other with a hammer (A 212). One of the threats had occurred on August 6, 2013, approximately two months before Jump's death; the other occurred at specific date that defense could not immediately recall but said he could provide for the lower court (A 214). Dill was also prepared to testify that he told Mr. Every of these threats of violence. (A 213-14). Defense counsel further informed the lower court that Mr. Every recalled being told by Dill that Jump had threatened him with "instruments" (A 214). The prosecutor objected to the admission of this evidence and the lower court barred Dill from testifying to these threats (A 156, 215). The lower court stated that there was no evidence that Jump had a nail gun or any object in his hand at the time of the incident nor were there signs of aggression "other than bruises on the victim's knuckles and on his arm," and the content of Mr. Every's statement of being "thrown around" (A 215, 350, 351). Since "Mr. Every wasn't familiar with the specifics of this threat, it just doesn't seem to me to be the type of thing you should be allowed to get into" (A 214- 16 15). The defense took exception to the court's ruling (A 215). The defense also sought to introduce testimony from Petti crew, who was prepared to testify that in August 2013 (two months before the stabbing), she received a telephone call from Mr. Every who told her that he had locked himself in his bedroom to protect himself from Jump (A 155-56). Petti crew could hear Jump screaming at Mr. Every (A 155-56). She drove to Mr. Every's home and picked him up, and he spent the night at her home (A 155-56). The lower court precluded the defense from introducing any of this evidence on the basis that it was "hearsay'' (A 155-56). Finally, the lower court precluded the defense from introducing any evidence of Jump's reputation for violence not amounting to deadly physical force, but permitted only evidence of his reputation for being "verbally abusive" or "quarrelsome" while intoxicated (A 160-61 ). The lower court specifically precluded evidence of Jump's reputation for shoving or pushing people around while he was intoxicated (A 161). The lower court erred in all of these rulings. C. The lower court improperly precluded Mr. Every from introducing evidence of the decedent's specific acts of threats and aggression against a witness who had told Mr. Every of these acts A central issue in this case was justification. This defense was dependent upon whether Mr. Every subjectively believed that use of deadly physical force42 was necessary, and whether that belief, based on all the circumstances as Mr. Every knew or believed them to be, was reasonable (People v Goetz, 68 NY2d 96, 114 [1986]; People v Williams, 121 AD 2d 145 [4th Dept. 1986]). 42 The term "deadly physical force" is defmed as "physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury" (Penal Law§ 10.00 [11]). 17 "Reasonable belief' involves both a subjective and an objective component. In determining whether a defendant's use of deadly physical force was justifiable, the fact-finder must engage in a two- step analysis: (1) whether the defendant actually believed that deadly force was necessary to avert the imminent use of deadly physical force, and (2) whether that belief was reasonable based upon the circumstances attending the incident (Goetz, 68 NY2d at 114). These circumstances include the defendant's knowledge of the purported assailant, the physical attributes of the parties, and any prior experiences in the defendant's life that could reasonably provide a basis for the belief that deadly physical force was about to be used against him or her (id. at 114-115). Evidence that the defendant knew or was informed of prior violent acts by the deceased is critically important to establishing defendant's requisite subjective beliefs. Such knowledge is also relevant to the reasonableness of the belief, which the jury must assess based on the circumstances the defendant found himself in, including any relevant knowledge of the person confronting him (id. at 113). Accordingly, in a trial where justification is an issue, the victim's specific acts of violence known to the defendant are admissible to show the reasonableness of the defendant's belief that his use of deadly force was necessary to avert the victim's use of deadly force (People v Miller, 39 NY 2d 543 [1976]; People v DiGuglielmo, 258 AD2d 591 [2d Dept. 1991]; People v Trivette, 175 AD 2d 330 [3d Dept 1991]). It does not matter whether the specific acts of violence or threats are directed toward the defendant or a third party. As the Court of Appeals held in Miller, We can discern no valid distinction as to admissibility between violent acts that the victim directed at the defendant and acts with the victim directed towards . identified third persons. The crucial factor is not who was the target of the 18 violence, but that the defendant was aware at the time of the incident of the victim's past violent behavior. (39 NY 2d at 552 [emphasis added]). New York courts have consistently reaffirmed Miller, holding that when a defendant asserts a justification defense, the victim's acts of violence against a third party are admissible if the defendant was aware of them at the time of the incident (see e.g. People v Robert S., 52 NY2d 1046 [ 1981]; PeoplevRobinson, 121 AD 3d 1405 (3dDept2014]; PeoplevHenderson, 162AD2d 1038 [4th Dept 1990]). Against this legal authority, and the uncontested fact that Dill informed Mr. Every of the prior threats, the lower court's preclusion of DiU's testimony that Jump threatened him with a hammer and a nailgun in the months before the incident was clear error. The lower court predicated its ruling on two factors, neither of which supported its ruling. First, the lower court noted that there was no evidence that at the time of the incident that Jump "had a hammer, nailgun, or any object in his hand" (A 215). The lower court's reliance was misplaced. As the Court of Appeals emphasized in Miller, the focus of the inquiry is the defendant's awareness of the prior violence against a third party as it relates to the defendant' s state of mind. The focus is not on the similarity of the decedent's prior violent acts to the actual conduct of the decedent at issue. As the Miller decision held, it is enough that both involve violence or imminent threats of violence. Second, the lower court indicated that Mr. Every was not familiar with the "specifics of the threat" by Jump against Dill (A 215). Trial counsel, however, represented to the court that Mr. Every was aware that Jump had threatened Dill with "instruments," which shows the knowledge of the violence and aggression necessary under Miller. The exact nature of these instruments is not 19 significant. Critically, in accordance with the requirement of Miller that the defendant be aware of the prior violent conduct, Dill was prepared to testify that he told Mr. Every of Jump's specific threats, thus placing Mr. Every's language choice of"instruments" in context (A 214). Finally, the evidence of Jump's threats to Dill to harm him with a hammer and a nail gun were recent, one occurring on August 6, 2013, approximately ten weeks before the incident (A 215). As such, Dill's testimony was admissible under Miller to show the reasonableness of Mr. Every's use of the kitchen knife in response to Jump lunging at him. This error was fully preserved (A 215) and cannot be considered harmless given the centrality of the issues of justification and intent at Mr. Every's trial. Evidence of Jump's prior threats to use tools or "instruments" against a witness were particularly important given that the final confrontation between Jump and Mr. Every occurred in the utility room where at least two knives, along with other cooking implements, were present. Moreover, the altercation occurred immediately after Mr. Every restored the power in his home after it was shut off by Jump in an effort to prevent Mr. Every from calling the police. Against this background, the prior instances of Jump's threatening conduct placed Mr. Every's actions of picking up the kitchen knife and using it when Jump lunged at him in proper context both subjectively and objectively. The error was also especially harmful because the prosecutor successfully barred any reference to Jump's reputation in the community of physical belligerence or violence while intoxicated (see Point I.D, infra). Further, in his summation, the prosecutor exhorted the jury to reject Mr. Every's justification defense because there was no evidence that Jump had threatened anyone with a weapon: "[Jump] may have been cutting potatoes and vegetables, but there is no evidence that he threatened anybody with a weapon" (A 304 [emphasis added]). Thus, the prosecutor improperly exploited the 20 improper exclusion of Jump's prior threats with weapons or "instruments." The exclusion of Dill's testimony regarding Jump's prior threats with tools deprived Mr. Every of his right to present evidence and a defense, in violation ofhis state and federal constitutional rights to due process and a fair trial. D. The lower court improperly precluded another witness from providing evidence of a previous incident where the defendant had locked himself in his bedroom to protect himself from the decedent who the witness heard screaming at defendant The lower court also barred Petti crew from testifying that, in. the summer of 2013, she received a telephone call from Mr. Every, who had locked himself in his bedroom because of Jump, who she heard screaming at Mr. Every in the background. She then drove out to Mr. Every's home and took him to her house where he spent the night (A 155). The lower court excluded Petticrew's testimony regarding this incident on the basis that it was hearsay (A 155). The lower court's ruling was error. First, the testimony of Petticrew was not hearsay. The purpose of its introduction was to show Mr. Every's state of mind and his perception of Jump's conduct, within months of the offense, not for the truth of its underlying assertion (see People v Loria, 190 AD 2d 1006 [4th Dept 1993 ]). Thus, the reason why Mr. Every had barricaded himself in his bedroom with Jump outside the door screaming at him was not critical; it was Mr. Every's fear of Jump that was relevant and provided the basis for the admissibility ofPetticrew's testimony. Second, even if hearsay, Petti crew's testimony about the telephone call certainly qualified as an excited utterance on Mr. Every's part. An out-of-court statement is properly admissible under the excited utterance exception when "made under the stress of excitement caused by an external event, and not the product of studied reflection and possible fabrication" (People v Johnson, 1 NY3d 302 [2003 ]). In determining whether the statement was made prior to an opportunity to reflect or fabricate, "[t]he 21 court must assess 'not only the nature of the startling event and the amount of time which has elapsed between the occurrence and the statement, but also the activities of the declarant in the interim' " (People vAuleta, 82 AD3d 1417 [3dDept2011], citing Peoplev Vasquez, 88 NY2d 561,579 [2001]). Here, Petticrew's testimony, her driving out to Mr. Every's house, and her hearing Jump screaming at Mr. Every all support the admission of Mr. Every's statement as an excited utterance. Furthermore, Mr. Every's statement would also qualify as a present sense impression, a "spontaneous description[ ] of events made substantially contemporaneously with the observations . . . sufficiently corroborated by other evidence" (People v Parson, 209 AD2d 882 [3d Dept 1994], quoting People v Brown, 80 NY2d 729, 734-35 [1993]). Finally, Jump's screaming at Mr. Every, which Petticrew heard, was threatening conduct, not a hearsay declaration at all. The exclusion of this evidence was particularly harmful to Mr. Every. It is well established that threats made by a decedent against a defendant are admissible at trial, whether these threats were communicated to defendant or not. ("Even if the defendant was not aware of the threat, the threat is still probative of the deceased's state of mind and bears, thus, on whether the deceased was the aggressor" [People v. Miller, 39 NY2d 543, 549 (1976) (emphasis added); see also People v Dixon, 138 AD2d 929 (4th Dept 1988); Stokes v People, 53 NY 164, 174 (1873)]). Accordingly, in addition to demonstrating the reasonableness of Mr. Every's use of deadly physical force when Jump lunged at him, Petticrew's testimony was admissible because it bore upon the issue of whether Jump was the initial aggressor. In addition to the reasons set forth in Point I.C, above, regarding Dill's testimony, the exclusion ofPetticrew' s testimony cannot be held to harmless given the impact of this testimony on whether Jump was the initial aggressor. 22 Like his exploitation of the improper exclusion of Dill's testimony, the prosecutor unfairly capitalized on the exclusion ofPetticrew's testimony. In his summation, the prosecutor derided the content of Mr. Every's prior 911 calls regarding Jump's prior conduct, minimizing the urgency of these two prior calls and implying that there was no basis for Mr. Every's perception of the need to respond with force when Jump lunged at him (A 3 06). The prosecutor further questioned why Mr. Every would have unsuccessfully tried to call Petticrew from his cellphone immediately before the altercation (A 306). The lower court's ruling thus deprived the jury of the critical information that Mr. Every had - previously called her, and she rescued him, when Jump lost control two months earlier. Accordingly, the lower court's erroneous exclusion ofPetticrew' s testimony deprived Mr. Every of his right to present evidence and a defense, in violation of his state and federal constitutional rights to due process and a fair trial. E. The lower court improperly limited the defense from introducing reputation evidence of decedent's aggressive or violent conduct while intoxicated At the conclusion of the prosecution's case, the prosecutor asked Mr. Every's defense counsel to present an offer of proof regarding the "character" witnesses the defense intended to call in support of his defense (A 146). The lower court then held a conference at which defense counsel stated he intended to call a series of witnesses who were aware of Jump's reputation in the community for violence and aggression while intoxicated or under the influence of illegal drugs (A 150). The lower court initially indicated that the defense could present witnesses regarding Jump's reputation in the community for being "violent or quarrelsome" while under the influence of alcohol (A 158). At the prosecutor's urging, however, the court changed its ruling and held that any testimony regarding Jump's reputation for violence would be "limited to situations where there has been some 23 kind of deadly physical force or serious physical injury" (A 154 ) . Defense counsel indicated that he did not have any witnesses who could testify to Jump's reputation for using deadly physical force, or specific acts regarding this type of violence. (At this point, defense counsel had evidently not interviewed Dill, whose testimony he addressed the following day (A 214]). Defense counsel did, however, have witnesses who could testify that Jump had a reputation for violence, including pushing and shoving people, while Jump was intoxicated (A 157) The lower court stated "pushing is not violence as far as I am concerned" (A 158). At the prosecution's request, the court excluded evidence of Jump's reputation for non-deadly violence and limited the evidence to Jump's reputation for being "quarrelsome or verbally abusive" while intoxicated (A 159). The lower court erred. New York precedent is clear: It has long been the rule in this State that a defendant, in a prosecution for homicide, may introduce evidence that the deceased had a reputation as a "quarrelsome, vindictive or violent" person provided that the defendant was aware of this reputation at the time of the incident. (People v Miller, 39 NY 2d 543, 548 [1976] [emphasis added], quoting People v Rodawald, 177 NY 408, 423 [1904]). Such evidence includes the deceased's reputation for violence or aggression, not merely the decedent's use of deadly physical force or verbal abuse, so long as the defendant is aware of this reputation. In People v White (73 AD2d 865 [1st Dept 1980]), the trial court allowed evidence of specific prior violent acts of the victim but precluded evidence of the victim's "general reputation" for "violence" or "aggression." The White court held that lower court's ruling was error and reversed the conviction even though the lower court had allowed evidence of specific instances of the victim's violence. (See also People v Santiago, 211 AD2d 734 [2d Dept 1995] [lower court allowed evidence of decedent's "general reputation for violence."]). 24 In Mr. Every's case, the lower court's limitation ofhis use of reputation evidence to verbal acts and not physical threats or conduct was illogical and particularly harmful. First, as demonstrated in subpoints C and D, above, the lower court had also erroneously excluded evidence of Jump's specific acts of threats and violence that were known to Mr. Every. Further, precluding Mr. Every from introducing evidence of Jump's reputation for violence or aggression, and limiting this evidence to Jump being verbally abusive, had the effect of minimizing Jump's aggression and undercut the validity of defendant's subjective and objectively based belief of the necessity of using force. Second, in its instruction to the jury regarding whether Jump was the inti tal aggressor the lower court stated (A 331). Arguing, using abusive language, calling a person names or the like unaccompanied by physical threats or acts does not make a person an initial aggressor and does not justify physical force. Thus, limiting the defense witnesses to their knowledge of Jump's reputation of verbal abuse, and not his reputation for physical aggression, worked to Mr. Every's extreme detriment. His defense witnesses essentially became witnesses for the prosecution, defeating the notion that Jump was the initial aggressor, because his testified-to reputation was only for verbal abuse, not physical aggression. The combination of the lower court's errors precluding evidence of Jump's prior acts of violence and threats, as well as preventing Mr. Every from introducing admissible evidence of Jump's reputation for violence or physical aggression severely prejudiced Mr. Every and deprived him ofhis constitutional rights to due process and the right to present a defense. 25 POINT II. THE LOWER COURT'S ERRONEOUS JURY INSTRUCTION REGARDING WHETHER THE SHARED KITCHEN AREA OF THE DEFENDANT'S HOME WAS HIS DWELLING ALLOWED THE JURY TO IMPOSE A NON- EXISTENT DUTY TO RETREAT AND PERMITTED A CONVICTION ON LEGALLY AND UNCONSTITUTIONALLY INSUFFICIENT EVIDENCE A. Introduction At Douglas Every's trial, there was no factual dispute that the stabbing occurred in Mr. Every's home. Nor was there any dispute that Milton Jump temporarily resided there with his partner James Atwell (A 1 07). Under settled New York law regarding justification, Mr. Every did not have a duty to retreat provided he was not the initial aggressor (Penal Law§ 35.15; People v Tomlins, 213 NY 240 [1914]). As the Court of Appeals has squarely held, Mr. Every had no duty to retreat independent of whether Jump also resided at the dwelling (People v Jones, 5 NY3d 491, 496 [2004]). Despite this settled law, the jury at Mr. Every's trial was exposed to repeated references to a non-existent duty to retreat. In the recorded interrogation of Mr. Every, he was repeatedly subjected to questioning by Tioga County Sheriff Investigator Wayne Moulton that explicitly and misleadingly pre-supposed a non-existent duty to retreat: Inv. Moulton: Mr. Every: Inv. Moulton: Mr. Every: Inv. Moulton: Alright, you weren't trying to retreat, you were like fuck this, it's my house I'm going back in. Well, yeah, I wanted to just go in and say you know lets calm this down. Okay so what I'm asking is, people that are, people that are in fear usually don't ... We're cops, we don't run into fires because fire is bad. Right. We had you out of the fire, I'm just wondering why you went back in. 26 (A351).43 (A351).44 Mr. Every: Inv. Moulton: Mr. Every: Inv. Moulton: Mr. Every: Inv. Moulton Mr. Every: Inv. Moulton: Mr. Every: Inv. Moulton: Mr. Every: 43 22:38:19-22:38:54 44 22:40:08-22:40:26 I didn't have any, I didn't have any keys to start my truck up. It's the only thing I can drive. I've got a Mazda in the garage, but it's not licensed. * * * I, Doug, I know but you don't, this my thing is you were out of the house, you were out of the burning fire, you were out of the burning fire. You could have went to your dad's. You walked that road, I've seen you walk that road. Yeah, I could have walked, I wish I had. Were you, were you that mad at Milton? No. I don't .. , I don't get mad like that. I look out for people. * * * Could you have retreated again? No, I probably could have made it, maybe made it out of the back door, ifl would've gotten the door open. * * * Then you were, how many steps from the back door? About four or five feet, the door was closed. So you could have ran again? I could have, yeah, probably. 27 (A 351).45 Inv. Moulton: Mr. Every: Inv. Moulton: Mr. Every: Inv. Moulton: Mr. Every: Inv. Moulton: Mr. Every: (A 351).46 There was nothing that could have, you were not a horse up against a wall that kicks, right? You could have left? I could have probably gotten out the door before I, yeah Probably .... I guess, yeah, I guess, well yeah, I mean, you're asking, you're asking me what I think. I don't I was in your house. I seen the door was unlocked that back door, I'm asking if, I'm asking if there was, if you could have? Yeah, I mean I could have gone, I could have gone to the neighbors and that's what I should have done. No but when he came at you, could you have retreated again? Yeah. The prosecutor added to this improper injection of a legally non-existent duty to retreat in one's own home. In his questioning of Investigator Nalepa, who was present during the questioning of Mr. Every, the prosecutor asked Nalepa the following: District Attorney: Inv. Nalepa; District Attorney: 45 22:53:14-22:53:40 46 22:56:20-22:57: 02 Did he [Mr. Every] say anything about whether he had the opportunity to retreat or not? Yes he did. What did he say about that? 28 (A 49). Inv. Nalepa: He said he could have retreated. He said he could have gone to a residence down the road, he could have gone back outside. And he also said that he wished had done that. In his questioning of Investigator Moulton, the prosecutor returned once again to the non- existent duty to retreat: District Attorney: Inv. Moulton: District Attorney: Inv. Moulton: (A 88). Did he say whether he had the opportunity to leave at any point in time? Yes. He said that he did leave. And then I further questioned him about returning. And I asked him what his options were, if he could have left. One example was I asked him, I says, your father lives down the street. It wasn't a poor climate and you could have walked to your father's, right? He said, yes, that's correct. What about the immediate moments before he stabbed Milton? Did he say whether he would have had the opportunity to leave from that scenario? Yes. He was four to six feet away from a door. In his summation, the prosecution emphasized to the jury this non-existent duty to retreat: (A 305). He admitted he could have done things differently. He could have gone down the road to his father's house, but he walked back in. And when he did, he said he wasn't in any fear of Milton. And even though he had walked back in, he still could have left. He said he was four steps away from the door he claimed he just walked through. 29 Against this backdrop, it was critical that the jurors receive clear and emphatic instructions that Mr. Every had no duty to retreat from his home independent of whether Jump also lived there so long as he was not the initial aggressor. ·The jurors received no such guidance. In contrast, they received erroneous instructions stating that they could impose a duty to retreat upon Mr. Every in his own home based on the extent to which he exercised "exclusive possession and control" over the area in question. B. . The lower court's erroneous jury instruction At the charging conference, the prosecution opposed the court providing any instruction regarding the lackofadutyto retreat in one's awn home despite the express holding of People v. Jones (5 NY3d 491, 496 [2004]) that the defendant was entitled to such an instruction (A 281). After argument, the lower court indicated that it would either read the entire CJI charge on justification as it related to the duty to retreat, including the passage about the lack of such duty if the offense occurred in the defendant's dwelling, or it would omit any reference to duty to retreat. (A 281; see A 362-68). The defense chose the first option of the entire CJI instruction on the duty to retreat and the lack of such a duty in one's dwelling. In reading the instruction, however, the Court included the parenthetical notation in the CJI regarding the definition of"dwelling"47 which, under the facts of Mr. Every's case, had the effect of misleading the jury and suggesting to them that there was a duty to retreat from the kitchen area of his home which he shared with Jump: 47 The CJI parenthetical language does not appear to have been intended to be provided to the jury as opposed to be considered by the trial court as to whether or not to instruct the jury on the duty to retreat. The parenthetical language cites People v. Hernandez, 98 NY 2d 175 (2002) which involved whether the defendant had a dutY to retreat in the common stairway of a multi~unit apartment building in New York City. In Hernandez the Court held that the common stairway did not qualify as a dwelling. This is a far cry from the facts of Mr. Every's case involving a temporary tenant in his own single-family rural home or from People v. Jones, supra (decided two years after Hernandez) involving co-tenants where the Court expressly held that the defendant had no duty to retreat from an offense involving the co- tenant of his apartment as a victim. 30 The term dwelling encompasses a house, apartment or part of a structure where the Defendant lives and where others are ordinarily excluded. The determination of whether a particular location is part of a Defendant's dwelling depends on the extent to which the Defendant and persons actually sharing living quarters with the Defendant exercise(s) exclusive possession and control over the area in question. (A 333 [emphasis added]). At Mr. Every's trial; there was no dispute that neither he nor Jump exercised "exclusive possession or control" of the kitchen or pantry area of Mr. Every's home to the detriment of the other. Thus, this parenthetical language of defendant's "exclusive possession and control" drew the jury to answer an irrelevant question as to the "extent" to which Mr. Every had exclusive possession or control over this area in the context of Jump's status as co-occupant of the house. If the jurors were to find that Mr. Every had no such exclusive possession, they could then find that the stabbing did not occur in Mr. Every's dwelling, despite the undisputed facts of the case and the dictates ofNew York law. Under the lower court's instruction, and pursuant to the exhortations of the prosecutor, the jury could then and likely did impose a duty to retreat on Mr. Every. Under the facts of this case, the inclusion of this language was devastating error. There was no objection or exception to the lower court's instruction. To the extent that the issue was unpreserved, this Court should nonetheless correct the error given the critical importance of the justification defense at the trial and the statutory and constitutional requirements that the jury receive appropriate instructions regarding the elements of a crime. Alternatively, given the dimensions of the error, the Court should reach the issue because counsel's failure to object or take exception deprived Mr. Every ofhis state and federal constitutional rights to effective assistance of counsel. (See Point IV, infra). 31 C. New York law imposes no duty to retreat on a defendant for an offense in his home Even if the decedent is a co-habitant It has long been the law in New York that a co-habitant does not have to retreat from his or her home in the face of a potentially deadly attack from another co-habitant. In the seminal decision of People v Tomlins (213 NY 240 [1914]) the Court of Appeals squarely addressed this issue, holding It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home .... Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home. That there is, in such a situation, no duty to retreat is, we think, the settled law in the United States as in England. * * * The rule is the same whether the attack proceeds from some other occupant or from an intruder. (ld. 242-44 [emphasis added]). Tomlins involved a defendant who shot and killed his son in his home where the son also lived. Based on long-standing principles of self-defense and the unique role of the home in criminal jurisprudence, Tomlins exempted the defendant from a duty to retreat even though the victim also resided in the home. More recently, in People v Jones, the Court of Appeals unequivocally re-affirmed Tomlins's holding that the "castle doctrine," which imposes no duty to retreat in one's home, applied with equal force if the victim shared the dwelling with the defendant: We affirm the castle doctrine in its application to occupants ofthe same household. This has been our decisional law at least since Tomlins, and it has particular importance in cases of domestic violence, most often against women. (5 NY3d 491, 496 [2004]). 32 In Jones, the lower court chose to simply not instruct the jury at all on the duty to retreat because the killing had occurred in the home shared by the victim and defendant. The Jones Court stated,"[ w ]e disagree and conclude that the trial court erred in refusing to include the home exception instruction in its justification charge" (id. at 494). The Court found that lower court' s error, however, was harmless under the facts of that case (id. at 497). In Mr. Every's case, the lower court's erroneous instruction to the jury cannot be said to be harmless. Instructing the jury to consider whether Mr. Every had "exclusive control" over his kitchen/pantry area, where both he and Jump ate their meals, had the effect of depriving Mr. Every of his rights under settled New York law and imposed criminal liability on conduct that is not criminal .. The jury was erroneously instructed that whether Mr. Every had a duty to retreat from the kitchen- pantry area ofhis house depended on the "extent" to which he exercised exclusive control over this area of his home. Under the facts of this case, the jury could have found that Mr. Every did not have exclusive control and then imposed the non-existent duty to retreat on the defendant. D. l;'he lower court's error is reviewable despite defense counsel's failure to object or take exception As the Court of Appeals made clear nearly 30 years ago, "[j]ustification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all" (People v McManus, 67 NY2d 541, 545 [1986]). As the Court observed in McManus, Pursuant to Penal Law § 35.15, a person "may" use physical force to defend himself or a third person, and his conduct, which would otherwise constitute an offense, is simply not criminal. The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful . . . if the People fail to disprove justification, the use of force is deemed lawful and the defendant is entitled to an acquittal. 33 (!d. at 546, 548 [italics in original]). In the years since McManus, the Court of Appeals has time and again emphasized the core concept of the justification defense: if a defendant's use of force is justified, he has committed no crime and "the defendant's conduct [can] no longer be considered criminal" (see People v Mitchell, 82 NY2d 509, 514-15 [1993]; see also In re Y.K., 87 NY2d 430,433 [1996]; People v Craig, 78 NY2d 616, 620 n 1 [ 1991] ["Justification is a defense, not an affirmative defense. If a defendant's conduct is justified ... it is not unlawfuL"]). This idea-that conduct that is found justified is simply not criminal at all-is so fundamental and important that justification is treated as any other element of a crime, with the burden on the People to disprove justification beyond a reasonable doubt (see McManus, 67 NY2d at 546-47). The lower court's reading of the CJI parenthetical instruction defining dwelling based on exclusive control erroneously reduced the People's burden of disproving justification beyond a reasonable doubt. Under the CJI parenthetical language, the jury could impose a duty to retreat on Mr. Every even in his own home because the victim shared possession of an area of his home. Although defense counsel did not object to the erroneous language, the issue nonetheless presents a question of law. The lower court's charge did not insure a verdict of guilty beyond a reasonable doubt and deprived Mr. Every of his Sixth Amendment right to a jury trial (Sullivan v Louisiana, 508 US 275, 278 [1993]). The "right to trial by jury in serious criminal cases ... [is] 'fundamental to the American scheme of justice' ... " (id. at 276-78, quoting in part Sparfv United States, 156 US 51, 105-06 (1895)]). The general rule precluding review of an error in the absence of objection does not apply where the appellate court has been called upon to "review a deprivation of a fundamental constitutional right" (see People v McLucas, 15 NY2d 167, 172 [1968] [no exception 34 necessary to preserve for appellate review fundamental constitutional right violation arising from trial judge's statement during jury charge that defendant's denial of guilt at time of arrest does not take place of his sworn testimony]; People v Arthur, 22 NY2d 325, 329 [1968] ["[t]he failure to object to the admissions on right to counsel grounds is not fatal since we are concerned with the deprivation of a fundamental constitutional right"]; People v Autry, 7 5 NY2d 83 6 [ 1990] ["exception to the preservation requirement may be invoked only where the language of the charge expressly or at least unambiguously conveys to the jury that the defendant should have testified"]). A jury charge which unequivocally shifts the prosecution's burden of proof or "explicitly relieve[ s] the People oftheir burden of proving every element of the crimes charged" " . . . come[ s] ,.', . within the narrow exception to the rule that objections to the charge must be made at trial where the potential error can be corrected or avoided ... " (People v Thomas, 50 NY2d 467,472 [1980]; see also People v Patterson, 39 NY2d 288 [1976] [trial court expressly and unequivocally instructed jury, as directed by statute, that burden of proof was on defendant to prove affirmative defense]). As argued above, the dwelling instruction relieved the People of their burden of disproving justification beyond a reasonable doubt by telling jurors that Mr. Every had a duty to retreat in the kitchen ofhis own home to the "extent" that he did not exercise exclusive possession or control of this area of his home. The erroneous instruction thus presents a reviewable question of law even in the absence of objection. Review is also warranted as a matter of discretion, in the interests of justice ( CPL 4 70.15 [3] [ c]). "Whether this discretion should be exercised is in large part determined by the extent of harm done to defendant's case by the unobjected-to error" (People v Mussolino, 54 AD2d 22, 26 [3d Dept 1976]). In view of the evidence presented at trial, there is a significant risk that the jury determined guilt upon 35 the mistaken impression, created by the court's erroneous charge, that a home owner has a duty to retreat in an area of his home that he does not exercise exlcusive possession and control over (see People v Phillips, 32 AD3d 1343 [4th Dept 2006] [judgment of conviction reversed as a matter of discretion and in the interests of justice based upon erroneous justification charge]; People v Feurer, 11 AD3d 633 (2d Dept 2004] [same]; People v Lopez, 200 AD2d 767 [2d Dept 1994] [same]; People v Emmick, 136 AD2d 892 [4th Dept 1988] [same]). Finally, and as more fully set forth in Point IV, below, defense counsel's failure to object to the lower court's erroneous jury instruction regarding the defendant's dwelling constituted ineffective assistance of counsel and, because of the centrality of the justification defense at Mr. Every's trial, this Court should address the issue in the context of Mr. Every's deprivation of his right to effective representation at trial. 36 POINT III. THE PROSECUTOR ENGAGED IN SUBSTANTIAL AND PERVASIVE MISCONDUCT AND THEREBY DEPRIVED MR. EVERY OF DUE PROCESS A. Introduction The role of the prosecutor is unique among attorneys. Unlike other participants in the adversarial process whose function is to protect or advance the interests of one side, a prosecutor is more than a mere advocate (People v Zimmer, 51 NY2d 390, 393 [1980]). "As public officers," prosecutors "are charged not simply with seeking convictions but also with ensuring that justice is done" (People v Santorelli, 95 NY2d 412, 420-21 [2000]). "This role gives rise to special responsibilities-constitutional, statutory, ethical, personal-to safeguard the integrity of criminal proceedings and fairness in the criminal process" (id. at 421). A prosecutor "may prosecute with earnestness and vigor .... But, while he may strike hard blows, he is not at liberty to strike foul ones" (People v Jones, 44 NY2d 76, 80 [1978], quoting Berger v United States, 295 US 78, 88 [1935]). Although"[ r ]eversal is an ill-suited remedy for prosecutorial misconduct" (People v Galloway, 54 NY2d 396,401 [1981]), it is appropriate where the prosecutor engaged in a "flagrant and pervasive pattern ofprosecutorial misconduct" that deprived the defendant of his right to a fair trial (see People vMitchell, 112 AD3d 1071, 1074 [3dDept2013], quotingPeoplevDemming, 116 AD2d 886,887 [3d Dept 1986]). Such flagrant and pervasive misconduct occurred here. B. The prosecutor improperly suggested to the jury that Mr. Every had a duty to retreat through his questioning of Investigators Moulton and Nalepa and in summation As detailed in Point II, above, Douglas Every had no duty to retreat from his own home, regardless of whether Milton Jump also resided in the dwelling (People v Jones, 5 NY3d 491, 496 [2004]). Yet, fully aware that Mr. Every had no duty to retreat, as demonstrated by the prosecutor's 37 citing to Jones during the charge conference (A 282), the prosecutor repeatedly asked questions of Investigators Nalepa and Moulton that explicitly pre-supposed a non-existent duty to retreat (A 49 [to Inv. Nalepa: "Did he say anything about whether he had the opportunity to retreat or not?"]; A 88 [to Inv. Moulton: "Did he say whether he had the opportunity to leave at any point in time?"]) then argued in summation that Mr. Every's ability to retreat and failure to do so evidenced Mr. Every's guilt: What did the Defendant's action tell us about what other options he had. He admitted he could have done things differently. He could have gone down the road to his father's house, but he walked back in. And when he did, he said he wasn't in any fear of Milton. And even though he had walked back in, he still could have left. He said he was four steps away from the door he claimed he just walked through .. (A 304-05 [emphasis added]). "It is improper for the prosecutor to misstate the law on summation" (People v Hetherington, 229 AD2d 916 [4th Dept 1996], citing People v Butler, 185 AD2d 141, 144 [1st Dept 1992] and People v .fauli, 130 AD2d 389, 391-93 [1st Dept 1987]), and it is likewise well-established that a prosecutor cannot "call upon the jury to draw conclusions which are not fairly inferrable from the evidence" (People v Ashwal, 39 NY2d 105, 109 [1976]). It follows that it is improper for a prosecutor in summation to call upon the jury to draw legally impermissible conclusions, such as a defendant asserting a justification defense having a duty to retreat from his horne when he does not. In Mr. Every's case, the prejudicial effect of the prosecutor's misconduct was substantial. Mr. Every's defense centered on justification and the lack of a duty to retreat from his horne. The prosecution completely undermined this defense by asking questions of the interrogating investigators that pre-supposed Mr. Every had a duty to retreat and then by arguing in summation that Mr. Every's ability to retreat and failure to do so evidenced his guilt. The prejudicial effect of this is obvious since 38 justification was the sole defense raised (see People v Brosnan, 32 NY2d 254, 262 [1973] [prosecutorial misconduct reviewed for prejudicial effect]). Appellant recognizes that not every instance of a party misstating the law automatically translates into a reversal (People v Robinson, 16 AD 3d 768 [3rd Dept 2005]). In Robinson, however, the trial court "immediately instructed the jury that it was to follow the law as charged by the court" after the prosecutor's misstatement (id. ). In Mr. Every's case, the prejudicial effect of the prosecutor's misstatement was not similarly diluted. Indeed, in the cases where each Appellate Divisions has held that a prosecutor's misstatement of the law in summation did not deprive the defendant of a fair trial, the misstatement concerned a minor issue, defense counsel made a timely objection followed by a curative instruction from the court, or the court properly instructed the jury on the law in its final charge-none of which occurred here. For example, the First Department in People v Torres rejected the defendant's claim that "the prosecutor misstated the law of justification" because the trial court "gave a prompt curative instruction, and it thoroughly explained justification in its main charge" (90 AD 3d 420 [1st Dept 2011 ]). Similarly, the First Department in People v Hartzog held that the defendant "was not deprived of a fair trial by the prosecutor's misstatement oflaw during summation since the error concerned a relatively minor issue in the case" and because the "court's instructions to the jury in its final charge served to prevent any prejudice" (264 AD2d 689 [1st Dept 1999] [emphasis added]). In People v Stanley, the Second Department held that "the prosecutor's single alleged misstatement of the law ... did not prejudice the defendant" because, in part, the court ''properly instructed the jury" on the law (254 AD2d 507 [2d Dept 1998] [emphasis added]). And in People v Hetherington, the Fourth Department found that, although the prosecutor improperly misstated the law both in questioning its expert witness and in 39 summation with respect to the defense of extreme emotional disturbance, the court sustained an objection by defense counsel and gave an appropriate limiting instruction (229 AD2d 916 [4th Dept 1996]). Here, the prosecutor's repeated references to the non-existent duty to retreat throughout the course of the trial cannot be dismissed as harmless, since justification was the only defense raised-and thus a major issue in the case-and the Court did not give a proper instruction on duty to retreat in its final charge to the jury (see Point II, supra). The issue of prosecutorial misconduct was not preserved by an objection by defense counsel. Nonetheless, this Court should review the misconduct in the interest of justice and determine that Mr. Every was deprived ofafairtrial, as it did in People v Skinner (298 AD2d 625,626-27 [3d Dept 2002] [holding the prosecutor's "misconduct was so flagrant and pervasive as to compel the conclusion that defendant was deprived of a fair trial" because of the "severity and frequency of the improprieties throughout the summation"]) (see CPL §§ 470.15[3][c], [6][a]). In the alternative, if this Court declines to review these unpreserved claims of prosecutorial misconduct in the interest of justice, the defendant has been deprived of his right to the effective assistance of counsel under both the federal and state constitutions based on counsel's failure to object, since there was no cognizable defense strategy behind counsel's failure (US Const, 6th Amend; NY Const, art I§ 6; Strickland v Washington, 466 US 668, 687-88,694 [1984]; People v Baldi, 54 NY2d 137, 147 [1981]). As this Court held in People v. Ramsey, 134 AD3d 1170 [3rd Dept. 2015]), when the trial record demonstrates no conceivable strategic reason for trial counsel's significant error, even a single error can provide the basis for reversal. (See Point N, infra.) 40 C. The prosecutor engaged in repeated misconduct in his summation, including denigrating the defense as a "story to sell to the world" and improperly vouching for the credibility of his witness, James Atwell fu summation, "counsel is to be afforded the widest latitude byway of comment, denunciation or appeal in advocating his cause" (People v Ashwal, 39 NY2d 105, 109 [1976]). However, "summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at his command" (id. ). "There are certain well-defined limits" (id.). At Mr. Every's trial, the prosecutor strayed well beyond those parameters and engaged in a "flagrant and pervasive pattern of prosecutorial misconduct" that deprived the defendant ofhis right to a fair trial (see People v Mitchell, 112 AD3d 1071,1074 [3d Dept2013]). fu summation, the prosecutor opined that Mr. Every's video-recorded statement was "a story to sell to the world, just like he sells houses" (1054). On several occasions, the prosecutor further denigrated the defense theory of justification by referring to it as a minimization or manipulation tactic and a self-serving attempt to "justify" his actions: Now, the Defendant's only consistent argument has been to minimize his behavior, claim he is old and weak and that everything is all Milton's fault, always, all the time. * * * I submit this is, again, the Defendant's self-serving attempt to paint Milton in a bad light and to somehow justify what he did. * * * What is all of this? ·The Defendant trying to manipulate the story. and make himself look like the victim. Ladies and gentlemen, again, the Defendant has shown us he will go to great lengths to make himself the victim and all of this is Milton's fault. 41 * * * The Defendant minimized his responsibility to whoever would listen. (A 305-310). Each of these comments was improper and exceeded the b?unds of fair commentary on the evidence (see People v Skinner, 298 AD2d 625, 626-27 [3d Dept 2002] [reversing conviction where "prosecutor made at least a dozen direct references to defendant being a liar, made other references to defendant's 'false' and/or 'tailored story' and denigrated the defense expert"]; see also People vJones, 134 AD 3d 1588 [4th Dept 20 15] [reversing conviction where prosecutor in summation "denigrated the defense by calling defense counsel's arguments 'garbage,' 'smoke and mirrors,' and 'nonsense' intended to distract the juror's focus from the 'atrocious acts' that defendant committed against the victim"]). Cumulatively, these comments denigrated the defense theory of justification. Mr. Every's sole defense at trial was justification. Yet the prosecutor undermined the validity of such a defense by calling it a "self-serving attempt to paint Milton in a bad light and to somehow justify what he did" and that this defense was no more than an attempt by Mr. Every to "manipulate the story and make himself look like the victim" (A 307 [emphasis added]). Indeed, the second time the prosecutor improperly referred to the defendant's statement as a "story," he also compared it to a sales pitch: "He has a story to sell to the world, just like he sells houses" (A 309; see People v Brown, 26 AD3d 392 [4th Dept 2006] ["prosecutor improperly denigrated the defense by repeatedly referring to the defendant's testimony as a 'story' "]). In addition to these denigrating comments, the prosecutor explicitly vouched for James Atwell's credibility. The prosecutor stated, "Mr. Atwell may be hard to understand, but he has no reason to 42 come into this courtroom and not tell the truth or exaggerate. None. He was sincere and sure of himself about the things that matter" (A 31 0). "It is fundamental that a prosecutor may not vouch for the credibility of his witnesses, thereby 'making himself an unsworn witness and supporting his case by his own veracity and position' " (People vProper, 177 AD2d 863,864 [3d Dept 1991] [citations omitted]). Yet that is exactly what the prosecutor did here by explicitly proclaiming that Atwell had no reason to "not tell the truth or exaggerate" arid that, even though he may have been difficult to understand, "he was sincere and sure of himself about the things that matter" (A 31 0). These comments were clearly improper (see People v Pagan, 2 AD 3d 879, 880 [2d Dept 2003] [reversing conviction where prosecutor in summation stated the complaint was "perfectly candid," "being forthright," and "very accurate" and argued the complainant had no motive to lie]). One could hardly imagine a more extreme case of vouching for the credibility than the prosecutor's comments on Atwell's testimony. The prosecutor's misconduct in denigrating Mr. Every's defense and vouching for Atwell's credibility cannot be dismissed as harmless since a critical issue in this case was the relative credibility ofMr. Every and James Atwell, the only persons from whom the jury heard a first-hand account of what happened. In People v Ortiz, the Second Department reversed a conviction where the "persistent theme characterizing the prosecutor 's summation was that the defendant and his witnesses were 'liars' and that the People's witnesses, whose credibility the prosecutor repeatedly vouched for, were entirely truthful and had no motive to lie" ( 125 AD2d 502 [2d Dept 1986]). Here too, the prosecutor improperly vouched for Atwell's credibility, and a persistent theme characterizing the prosecutor' s summation in this case was that the defendant was manipulative, purposefully vague, and consistently tried to 43 minimize the import of what he did. (The other persistent theme being the improper injection of a non- existent duty to retreat.) As set forth above, the prosecution's summation was replete with replete with improper statements. "[M]indful that 'summations rarely are perfect ... and not every improper comment made by the prosecuting attorney during the course of closing arguments warrants reversal," in light of the repeated improper comments, the defendant submits that "the cumulative effect of the multiple improprieties was to cause such substantial prejudice to defendant that he was denied a fair trial" and reversal is required (People v Casanova, 119 AD3d 976, 979 [3d Dept 2014]). Given the repeated and serious nature of the prosecutor's misconduct and the extreme prejudice to Mr. Every's right to a fair trial, this Court should review this unpreserved issue of prosecutorial misconduct in the interest of justice (CPL §§ 470.15[3](c], [6][a]). In the alternative, ifthis Court declines to review these unpreserved claims in the interest of justice, this Court should reach the issue because Mr. Every was deprived ofhis right to the effe.ctive assistance of counsel under both the federal and state constitutions based on trial counsel's failure to object, since there was no cognizable defense strategy behind defense counsel's failure (US Const, 6th Amend; NY Const, art I§ 6; Strickland v Washington, 466 US 668,687-88,694 [1984]; PeoplevBaldi, 54 NY2d 137, 147 [1981]). "Even when viewed in the 'totality' of the representation provided defendant, defense counsel's failure to ·object to any, let alone all, of the prosecutor's egregiously improper departures during summation ... deprived defendant of the right to effective assistance of counsel" (People v Fisher, 18 NY3d 964, 967 [2012]). (See Point IV, infra). 44 D. The prosecutor's misconduct cannot be dismissed as harmless Prosecutorial misconduct can be deemed harmless error only if the prosecution can show "that there is no reasonable possibility that the error might have contributed to the defendant's conviction and that it was thus harmless beyond a reasonable doubt" (People v Crimmins, 36 NY2d 230, 237 [1975]). l This, the prosecutor cannot do in this case. The jury having determined that Mr. Every did not intend to kill Jump, as evidenced by its not guilty verdict for Murder in the Second Degree, there is a "reasonable-possibility" that the jury "might" have found Mr. Every not guilty of the lesser included offense of Manslaughter in the First Degree had the prosecutor not denigrated the defense theory of justification and vouched for Atwell's credibility. Therefore, this Court should reverse the defendant's conviction. 45 POINT IV: MR. EVERY WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL Douglas Every was denied his state and federal constitutional rights to effective assistance of counsel as result of trial counsel's omissions regarding three distinct issues. First, trial counsel failed to object to the lower court's erroneous jury instruction regarding duty to retreat in one's dwelling and failed to take appropriate measures to prevent the prosecutor from presenting evidence regarding this non-existent duty (see Point II, supra). Trial counsel also failed to object to the prosecutor's improper summation or seek curative instructions (see Point III supra). Trial counsel was further deficient in failing to object or seek curative measures when both the medical examiner and the coroner improperly characterized Milton Jump's death as a "homicide" (A 39-A, 75). There was no conceivable strategic basis for these errors. As this Court held in People v. Ramsey,134 AD3d 1170 [3d Dept 2015]), when the trial record demonstrates no conceivable strategic reason for trial counsel's significant error, even a single error can provide the basis for reversal. In People v Wlaisiuk, 90 AD3d 1405, 1412-13 [3d Dept 2011]), there were two such errors. Here there are at least three. A. Trial counsel was ineffective for failing to take exception to the lower court's erroneous jury instruction regarding duty to retreat in one's dwelling or to object or seek curative measures when the prosecutor repeatedly introduced evidence regarding this non-existent duty One of the prosecutor's central themes at trial was that Mr. Every had the opportunity to safely retreat from the fatal encounter with Jump, yet failed to avail himself of this opportunity. According to the prosecutor, Mr. Every had two opportunities to do so: (1) when Mr. Every left his house and tried to call the police from outside his residence and (2) when he stabbed Jump within a short distance of the rear door of the home. 46 The prosecutor repeatedly visited this theme. He presented evidence of the video recording of Investigator Moulton's questioning of Mr. Every which contained over twenty instances instances of Moulton injecting this duty to retreat into his questioning.48 Trial counsel neither sought to redact the offending portions from the video recording nor request a curative instruction from the lower court that there was no such legal duty. The prosecutor then explicitly questioned both Investigator Moulton and Nalepa about this duty without objection by trial counsel (A 49, 88). As discussed in Point II, above, trial counsel then acceded to the lower court's erroneous jury instruction regarding the definition of a dwelling in the context of the duty to retreat. Trial counsel failed to object to the prosecutor's reliance on this non-existent duty in his summation (see Point III, supra). As a result of these failures-singularly and collectively- the jury was allowed, and in fact encouraged, to consider Mr. Every's failure to retreat from his home as evidence ofhis guilt. The federal and New York constitutional guarantees to effective assistance of counsel are "essential ingredient[ s] in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context" (People v Felder, 47 NY2d 287, 295 [1979]; People v Benevento, 91 NY2d 708 [1998]). ''The fundamental right to the 'effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receiving a fair trial' in an adversarial system of justice" (Benevento, 91 NY2d at 711, quoting People v Claudio, 83 NY2d 76, 80 [1993]). New York constitutional ineffective assistance of counsel claims are evaluated differently than their federal counterpart. Under the Federal constitution, the Strickland test is used: a defendant is said 48 These instances are set forth in the Statement of Facts and also excerpted in Point II. 47 to have been denied effective assistance upon a showing that "counsel's performance was deficient and that the deficiency in performance prejudiced the defendant" (People v Ford, 86 NY2d 397, 405 (1995]; People v Benevento, 91 NY2d at 713). Under the New York constitution, the Baldi standard applies: a defendant is said to be denied effective assistance where the· "evidence, the law, and the circumstances of [the] particular case, viewed in totality and as of the time of the representation, reveal that the attorney [failed to provide] meaningful representation." (People v Baldi, 54 NY2d 137, 147 [1981]; People v Dinkle, 302 AD2d 1014 (4th Dept 2003]. While both the Baldi and Strickland tests require a prejudice showing, the tests view prejudice differently (Benevento, 91 NY2d at 713). The federal test analyzes prejudice in terms ofthe impact upon the case's outcome. The New York test assesses prejudice "more generally" in terms of the effect counsel's errors had on a proceeding's fairness (id. at713-14.) In New York, an ineffective assistance of counsel determination is not controlled by whether the case's outcome would have been different but for counsel's mistakes (id.). Furthermore, "[a] single error, alone, may constitute ineffective assistance of counsel justifying a new trial [where it] 'seriously compromises a defendant's right to a fair trial' " (People v Clark, 6 AD3d 1066, 1067 [4th Dept 2002], quoting People v Hobot, 84 NY2d 1021, 1022 [1995]; People v Turner, 5 NY3d 476 [2005]). This Court has adopted such a view. In People v Wlasiak, 90 AD3d 1405', 1412-13 (3d Dept 2011 ]), this Court addressed two errors of trial counsel: (1) his insistence on keeping an unqualified juror; and (2) his failure to object to the jury reviewing a diary that contained inadmissible hearsay. Because both errors had no strategic basis and had significant impact on the fairness of the trial, this Court reversed the murder conviction. This Court has also recently re-affirmed the principle that a 48 singular omission is sufficient to deprive a defendant of the effective assistance of counsel in the context of trial counsel's failure to object to an improper prosecutorial summation (People v. Ramsey, 134 AD3d 1170 (3d Dept 2015]). In Ramsey, this Court held that the singular failure to object to an improper prosecutorial summation can constitute ineffective assistance of counsel if there is no reasonable basis not to object and the prejudice is substantial to the defendant. Other courts are in accord. For example, in People v Alford, the Second Department reversed on a "single failure of ... defense counsel [that was] so serious, and resulted in such prejudice to the defendant, that he was denied a fair trial thereby" (33 AD3d 1014, 1016 (2d Dept 2006], citing Turner, Benvento, and Baldi). ln Alford, the error was failing to object to prior bad act evidence that ''would have been inadmissible had defense counsel raised an objection to it" (id. at 1015). InPeoplev Turner(S NY3d476 [2005]), a casein which the defendant was acquitted of murder but convicted of manslaughter submitted as a lesser included offense, it was held that otherwise competent trial counsel was "clearly" ineffective because of a single lapse - the failure to raise a winning statute of limitations objection to the submission of a manslaughter count to the jury. The court explained that counsel's single error was so egregious and prejudicial that it deprived the defendant effective assistance. Like the situations in Ramsey, Wlasiak, Alford and Turner, there was no conceivable basis for Mr. Every's trial counsel not to object to the prosecutorial misconduct and the prejudice was substantial to Mr. Every in this close case. At Mr. Every's trial, defense counsel's failure to object to the lower court's dwelling/duty to retreat charge and to take efforts to prevent or limit the prosecutor's reliance on a non-existent duty to retreat on severely undermined the defense of justification that Mr. Every asserted, his sole defense. Because the undisputed facts of this case provided the basis of an 49 opportunity for Mr. Every to retreat while outside his residence, and at least arguably provided a basis for his opportunity to retreat while backed up to the door in the utility room,. it was critical to Mr. Every's defense that the jury be informed of the clear dictates of New York law that no such duty existed. Trial counsel's omissions allowed the jury to be deprived of this critical information, creating a great risk that the jury made an erroneous determination of guilt. Accordingly, Mr. Every was deprived of his right to effective assistance of counsel under both the state and federal constitutions. B. Trial counsel's failure to object to the prosecutor's improper summation constituted ineffective assistance of counsel As set forth in Point ill, above, the prosecutor's summation at Mr. Every's trial was replete with misconduct and objectionable statements prejudicial to Mr. Every's right to a fair trial. Trial counsel, however, failed to lodge a single objection. Nor did he seek curative instructions or move for a mistrial. There is no conceivable strategic reason for these omissions. Defense counsel' s failure to make the appropriate objections could not have been an objective and reasonable trial strategy, nor merely misguided strategic calculations as many of the prosecutor's improper actions directly undermined the only defense presented at trial-justification (see People v Dean, 50 AD 3d 1052 [2d Dept 2008]; People v DeJesus, 42 NY2d 519 [1977]). Defense counsel had a "duty to protect the interests of his client ... [in that he failed to follow] ... the required and proper practice' which is for counsel to object to the prosecutor' s improper statements" (Dean, 50 AD 3d l 052, citing De Jesus, 42 NY2d 519). Further, because of trial counsel's omissions, the lower court gave no curative instruction to help alleviate the prejudice caused by the prosecutor' s untempered behavior (see People v ·Galloway, 54 NY2d 396 [1981]; People v Trinidad, 59 NY2d 820 [1983]; People v George, 50 249 AD2d 488 [2d Dept 1998]; People v Matt, 94 AD2d 415 [4th Dept 1983]). As the Court of Appeals held in People v. Wright: (Id. at 780). Defense counsel's inaction in the face of prosecutorial misconduct made during losing argument is subject to the same "meaningful representation" standard applicable to other trial errors. Under that standard, where defense counsel fails to object when faced with a pattern of prosecutorial misstatements far afield from acceptable argument, such as statements that misrepresent evidence central to the determination of guilt, and where there is no apparent strategic explanation for defense counsel's silence, defendant has been deprived of meaningful representation and the constitutional right to a fair trial. Moreover, as this Court recently held in Ramsey, the singular failure to object to an, improper prosecutorial summation can constitute ineffective assistance of counsel ifthere is no reasonable basis not to object and the prejudice is substantial to the defendant (134 AD3d 1170). C. Trial counsel's failure to object to the medical examiner and the coroner characterizing Milton Jump's death as a "homicide" was ineffective assistance of counsel At Mr. Every's trial, the medical examiner, in response to the prosecutor's questioning, characterized the manner of the victim's death as a "homicide" (A 75). The coroner also testified, in response to prosecutorial questioning, that the manner of the victim's death was a "homicide" (A 3 9-A). Trial counsel failed to object to these questions and responses, nor did he seek a curative instruction. Neither witness clarified that the term they employed was not a legal determination and presumably was used only to indicate that the victim died at the hands of another person (see People v Campanella, 100 AD3d 1420 [4th Dept 2012]). This Court has consistently held that it is error to allow a pathologist or medical examiner to testify that a death is a "homicide" (see e.g. People v. Heath, 49 AD 3d 970 [3d Dept 2008]; People 51 v Langlois, 17 AD3d 772, 774 [3d Dept 2005]). This is because "[s]uch characterization improperly invaded the province of the jury'' (People v O'Dell, 26 AD3d 527, 529 [3d Dept 2006]). Other departments are in accord (see Campanella, 100 AD 3d 1420 [4th Dept 2012]; People v Scruggs, 111 AD3d 966 [2d Dept 2013]). As one court stated in a different context, "it is intolerable to permit a witness, cloaked in the garb of apparent expertise, to assume the function of the jury and attempt to answer the ultimate fact issue presented" (People v Graydon, 43 AD 2d 842 [2d Dept 197 4 ]). In Campanella, the court held that the failure of counsel to object to his type of testimony did not constitute ineffective assistance of counsel (1 00 AD3d 1420). The court, however, noted that the harm to the defendant was ameliorated because "[the witness] was not making a legal determination by characterizing the victim's death as a homicide and added that he used the term 'homicide' only to indicate that the victim died at the hands of another person" thus minimizing the harm to the defendant. Mr. Every, in contrast, received no such benefit. Thus, his jury would have been led to believe that two medical professionals had given their imprimatur on the prosecutor's theory that the killing of Jump was not justified and thus a homicide. Given the clear law in this area, there was no conceivable basis for counsel not to object or request a curative instruction, or at least follow up on cross-examination to clarify that neither the pathologist nor the coroner were rendering a legal opinion that Mr. Every was guilty ofhomicide or that his killing was not justified. Considered singularly, and also in conjunction with trial counsel's other omissions, the failure to object to the characterization of Jump's death as a homicide constituted ineffective assistance of counsel under both the state and federal constitutions. 52 POINT V: THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE Upon defendant's request, this Court must conduct a weight of the evidence review (CPL § 470.15[5]; People v Danielson, 9 NY3d 342 [2007]; People v Romero, 7 NY3d 633, 636 [2006]; People v Richardson, 55 AD3d 934, 938 [3d Dept 2008], lv dismissed 11 NY3d 857 [2008]). A weight of the evidence review involves more than simply evaluating bare legal sufficiency; instead, the appellate court must (1) determine whether an acquittal would have been reasonable, (2) weigh conflicting testimony and review rational inferences that may be drawn therefrom, and (3) decide whether the jury was justified in finding the defendant guilty beyond a reasonable doubt (Danielson, 9 NY3d at 348). "If it appears that the trier of fact has failed to give the evidence the weight it should be accorded, then the appellate court may set aside the verdict" (People v Bleakley, 69 NY2d 490, 495 [1987], citing CPL 470.20[2]). This Court, quoting from Court of Appeals decisions, has explained in more detail how it must undertake weight of the evidence review: In performing a weight of the evidence analysis, this Court "sits, in effect, as a 'thirteenth juror'" (People v Cahill, 2 NY3d 14, 58 [2003], quoting Tibbs v Florida, 457 US 31, 42 [ 1982]; see People v Danielson, 9 NY3d 342, 348-349 [2007]; People v Hines, 9 AD3d 507, 511 [3d Dept 2004], lv denied 3 NY3d 707 [2004]). Where, as here, an acquittal would not have been unreasonable, we must, "like the trier of fact below, 'weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony' " (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel.MacCracken v Miller, 291 NY 55, 62 [1943]; see People v Romero, 7 NY3d 633, 643 [2006]). We must then decide whether, based upon the weight of the credible evidence, "the jury was justified in finding the defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d at 348; see People v Mann, 63 AD3d 1372, 1373 [2009]; People v Richardson, 55 AD 3d 934, 938 [2008], lv dismissed 11 NY3d 857 [2008]). 53 (People v O'Neil, 66 AD3d 1131, 1132 [3d Dept 2009]). As this Court explained in reversing a conviction as against the weight of the evidence,"[ s ]uch analysis necessarily includes considering whether all the elements of the crime were established (see People v Danielson, 9 NY3d at 349)" (People v Dean, 70 AD 3d 1193, 1194 [3d Dept 201 0]). Further, this Court has explained that where the verdict was "dependent upon inferences insufficiently supported by any compelling evidence" it is not sufficient that "the proof established, at most, defendant's opportunity to have accomplished this crime, but it did not establish her guilt beyond a reasonable doubt" (People v Parks, 53 AD 3d 688, 692 [3d Dept 2008] [reversing a conviction as against the weight of the evidence] [internal citations omitted]). Under the unique circumstances of this case, this Court's review of the evidence as a "thirteenth juror" is of paramount importance because it, unlike the juiy, is equipped with an accurate understanding ofthe law of justification and New York's "castle doctrine." The jurors' abilities to sit as finders of fact and apply the analytical requirements of weighing the evidence were severely jeopardized by the prosecutor's injection of a non-existent duty to retreat, which was not cured, but instead exacerbated, by the court's final charge. Given the evidence at trial, an acquittal would not have been unreasonable. According to Douglas Every's recorded statement, Milton Jump, who had been threatening him and physically assaulting him for several hours, switched the power off when Mr. Every ran outside and tried to call for help. Unable to call for help and without keys to drive his truck, Mr. Every re-entered his house. When he did so, Jump continued to threaten him and came after him. Mr. Every grabbed the knife off the counter to protect himself and was backed into a comer in the utility room. Jump, after telling Every to "go for it," lunged at Mr. Every causing the knife Mr. Every was holding to stab him once in 54 the chest. "While much of defendant's [statement] was the subject of vigorous dispute, there were facts which go to the core of his claim of justification that were essentially uncontradicted .. . "(see People v Jones, 873 NYS2d 773, 77 6 [3d Dept 2009] [finding conviction of manslaughter in the second degree against weight of evidence]). The physical evidence in Mr. Every's case was entirely consistent with his recorded statement. A trail ofblood went from the laundry room to the kitchen where Jump's body was found. Both the pathologist who performed the autopsy and the defense's expert pathologist testified that Jump would have been able to move around for twenty to thirty seconds after being stabbed, giving him plenty of time to make his way from the utility room to the kitchen before ultimately collapsing. The defense's expert pathologist, Dr. LaPoint, testified that there was no evidence to suggest that Mr. Every thrust the knife into Jump's body (A 171) and that there "is a reasonable possibility that the wound was caused by [Jump's] body moving into the knife rather than the knife moving into the body" (A 17 6-E). If Mr. Every had thrust the ten inch knife into Jump's chest, the wound would likely have been deeper than four and one half inches (A 73, 176-F) (especially since, as Dr. LaPoint explained, the force required to do so is the same required to cut a cantaloup [A 171 ]). Although James Atwell testified that the stabbing occurred in the kitchen, not in the adjoining utility room, in exercising its review power, the Court should regard the testimony of Atwell as inherently unreliable. Jump was Atwell's caretaker and companion upon whom Atwell was entirely dependent (A 108). On cross examination, he was impeached no less than six times for giving testimony inconsistent with the prior statements he made to police and the grand jury, including whether he actually saw the stabbing (A 140; see also A 126-27 [whether Jump smoked pot that day]; A 128 55 [whether Jump was inside the house or in the garage when Every got home]; A 130 [whether Jump was angry at Every]; A 138 [where Jump was standing when stabbed]; A 142 [whether Atwell went over to Jump and took off his glasses after he was stabbed]). Moreover, the evidence of Mr. Every's intent to inflict serious physical injury was scant, at best. His attempts to call the police before the incident reveal his lack of formulated intent to injure, much less seriously injure, Jump. Mr. Every immediately called 91 1 after inflicting the single wound, further suggesting his lack of intent to cause serious physical injury. In his recorded statement, Mr. Every consistently maintained that he did not have the intent to cause death or serious physical injury to Jump. The credible evidence presented at trial weighed against a finding of guilt and instead supported a finding that Mr. Every was justified in defending himself. Although the jury rejected Mr. Every's justification defense, finding him guilty of Manslaughter in the First Degree, the jury was not properly instructed that Mr. Every had no duty to retreat in his home. To the contrary, the jury was inundated with the presupposition that Mr. Every had a duty to retreat based on the questions Investigator Moulton asked Mr. Every during his interrogation, the questions the prosecutor asked Investigators Moulton and Nalepa on direct examination that presupposed that Mr. Every had a duty to retreat, and the prosecutor' s summation in which he argued that Mr. Every's failure to retreat evinced his guilt. Against the backdrop of the prosecutor's line of questioning and summation and the court's erroneous jury charge implying Mr. Every had a duty to retreat from his home if he did not have exclusive control over the area where the offense occurred, the jurors could not have properly weighed the evidence to determine whether Mr. Every's actions were justified-an element the prosecution was required to disprove beyond a reasonable doubt (see McManus, 67 NY2d at 546-47). 56 In performing its responsibility of reviewing the jury's verdict, this Court " ... must, like the trier offact below, weigh the relative probative force of conflicting testimony and the relative strength of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony" (People v Perser, 67 AD3d 1048, 1049 [3d Dept 2009], lv denied 13 NY3d 941, quoting People v Romero, 7 NY3d 633, 643 [2006]). Sitting now as the thirteenth juror and equipped with an accurate understanding ofthe law of justification, it is respectfully submitted that the Court's weighing process should inescapably lead to the conclusion that the prosecution failed to prove beyond a reasonable doubt that Mr. Every was not acting in self defense. Alternatively, this Court should find that the weight of the credible evidence did not establish beyond a reasonable doubt that Mr. Every had the requisite intent to cause serious physical injury. 57 I i I, POINT VI: THE SENTENCE IMPOSED BY THE LOWER COURT WAS HARSH AND EXCESSIVE The lower court sentenced Douglas Every to a determinate term of 17 years in prison for his conviction of Manslaughter in the First Degree. Before trial the prosecutor had extended a plea offer to Mr. Every to Manslaughter in the First Degree with a sentence of twelve years which he did not accept. As demonstrated in Points I through V, Mr. Every's trial was plagued with error and unfairness. This Court should vacate his conviction or remand for a new trial. In the event it does not, this Court should reduce Mr. Every's sentence. An appellate court has broad, plenary powers to modify and reduce sentences even though the imposed sentence is within the statutory range (CPL § 470.15[6][b]; People v Delgado, 80 NY2d 780 [1992]). As set forth below, in the event that this Court does not vacate the conviction or remand for a new trial, it should exercise its authority and reduce Mr. Every's sentence to the statutory minimum of five years in recognition of the equitable circumstances permeating this case. Intermediate appellate courts have repeatedly demonstrated an awareness of their obligation to exercise their statutory and equitable role of assuring appropriate sentences. In accordance with this obligation, appellate courts have reduced sentences even in homicide cases to the minimum sentences. For example, in People v Holloway (185 AD2d 646 [4th Dept 1992]), the court modified the sentence of a woman convicted of depraved indifference murder of her young child, who was less than two years old at the time ofhis death, from the statutory maximum term of25 years to life to the minimum term of 15 years to life even in light of evidence of a course of conduct of abusive acts. In People v Bailey (8 AD3d 1024 [4th Dept 2004]), the court reduced the sentence of a woman convicted of murdering a child under her care from the statutory maximum sentence of 25 years to life to the minimum term 58 of 15 years to life. In People v Johnson, the Fourth Department considered the sentence imposed on a defendant who unsuccessfully tried to assert a justification defense involving his shooting of a victim outside of his mother's house L AD3d _, 2016 WL 533997 [4th Dept Feb 12, 2016]). The Johnson court held that the defendant was not entitled to such a defense, but nonetheless reduced the sentence to the statutory minimum of 15 years to life. In Mr. Every's case, he was entitled to a justification defense and, although the jury did not credit the defense (likely because of the prosecutor's improper argument in summation and the lower court's improper instruction on duty to retreat), the circumstances that prompted its submission to the jury should similarly inform and ameliorate his sentence. New York case law confirms that the particular circumstances of the offender, and not just the circumstances of the crime, are essential sentencing considerations (see e.g. People v Semkus, 109 AD2d 902 [2d Dept 1985] [noting that sentencing must be conducted in context of the charged crime and "the particular circumstances of the offender"]; People v Notey, 72 AD2d 279, 283 [2d Dept 1980] [holding that courts "cannot ignore the personal status of the defendant as the most significant factor in the sentencing process"]). In Mr. Every's case, perhaps as a result of the prosecutor's exhortation at sentencing, the lower court's sentence reflected almost exclusively a consideration of the emotional consequence of the crime on the victim's family. In People v Nicholson, 23 7 AD2d 973 (4th Dept. 1997) the Court held: 'The determination of an appropriate sentence requires the exercise of discretion after due consideration given to, among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence' (People v Farrar, 52 NY2d 302, 305 [1981]). The imposition of a sentence pursuant to an inflexible per se rule without exercising discretion after due consideration of the 59 appropriate factors is improper (see, People v Thiessen, 76 NY2d 816 [1990]; see also, United States v Thompson, 483 F2d 527, 529 [3d Cir 1973]; cf, People v Compton, 157 AD2d 903 [3d Dept 1990], lv denied 75 NY2d 918; People v Glendenning, 127 Mise 2d 880 [SCt Westchester 1985]). (I d. at 974; see also People v Jackson, 245 AD2d 1115 [4th Dept. 1997]). Sixty three years old at the time of sentencing, Mr. Every was employed for decades as a real estate broker iii Tioga County. He had no history of violence, and his criminal record consisted of two misdemeanor convictions for issuing a bad check, the most recent of which occurred twenty five years before this offense and for which he received a fine and unconditional discharges (PSI 4-5). At sentencing, the lower court acknowledged receiving numerous letters on behalf of Mr. Every from members of the community which stated "very nice things" and that the probation department had forwarded letters of support for Mr. Every to the lower court. Nonetheless, the court sentenced Mr. Every to 17 years in prison, only eight years less than the statutory maximum. According to the presentence report as well as the trial testimony, Mr. Every is beset with numerous health issues, including an anxiety disorder for which he was prescribed medication (A 179). He also suffers from significant and documented cognitive issues consistent with early onset of dementia49 (A 239-41, 246-48). According to the testimony of the forensic psychologist, Dr. Lazzaro, these issues combined with his history of being bullied, make Mr. Every hyper-vigilant, passive, dependent and compliant (A 246-48, 297). These characteristics will undoubtedly make the conditions of prison especially harsh for Mr. Every. 49 The prosecution insisted that Dr. Lazzaro "recanted" his "diagnosis" of early onset of dementia. (PSI 8). The prosecution is wrong. Dr. Lazzaro never made a diagnosis but only noted the likelihood of such a condition and the consistency of Mr. Every's cognitive deficiencies with the early onset of dementia. Additionally Dr. Lazzaro never "recanted" his fmdings or retreated from them in any way. 60 Without minimizing the conviction, the offense itself represented an aberration in Mr. Every's otherwise non-violent and law-abiding life. The death of Milton Jump was due to a single stab wound in a dispute that took place in Mr. Every's home. Mr. Every contacted 911 immediately in an effort to save Mr. Jump's life and cooperated with law enforcement, including providing them his recorded statement. As the lower court noted, Mr. Jump's death was the result of a situation "fueled by alcohol Mr. Jump consumed and that [Mr. Every] consumed" (A 394). At sentencing, the prosecutor recommended a sentence of twenty years, noting Mr. Every's "lack of remorse" and "the cold and calculated manner" in which he stabbed the victim (A 378). Neither characterization is remotely anchored in the record. Mr. Every expressed his remorse to the 911 dispatcher whom he immediately contacted in an effort to obtain aid for Mr. Jump (A 350). He also expressed his remorse to the interrogators going so far as stating that he thought he would spend the rest of his life in prison, a remark that the prosecutor characterized in his summation as consciousness of guilt (A 298). In imposing a sentence of 17 years in prison, the lower court failed to engage in the sensitive balancing of the four objectives of penal sanctions-rehabilitation, deterrence, isolation, retribution (People v Harmon, 181 AD2d 34 [1st Dept 1992])-guided by the principle that minimum amount of imprisonment should be imposed consistent with the protection of the public, the gravity ofthe offense, and the rehabilitative needs and potential of the defendant (People v Notey, 72 AD2d 279 [2d Dept 1980]; People v Golden, 41 AD2d 242 [1st Dept i973]; People v Burghardt, 17 AD2d 912 [4th Dept 1962]). These principles are also embedded in the Penal Law as considerations a sentencing court must consider (PL §§ 1.05[6], 65.00[1]). 61 In the event that this Court does not dismiss the indictment or remand for a new trial, it should modify the sentence of the lower court both as a matter oflaw and in an exercise of its discretion to the minimum sentence of five years in prison because the lower court's sentence reflected a failure to consider all of the sentencing factors which it was statutorily and equitably required to assess (see PL §§ 1.05[6], 65.00[1]). 62 CONCLUSION MR. EVERY'S JUDGMENT OF CONVICTION SHOULD BE VACATED AND THE INDICTMENT DISMISSED BECAUSE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. IN THE ALTERATIVE, THIS COURT SHOULD REVERSE THE CONVICTION AND REMAND FOR A NEW TRIAL AT WIDCH MR. EVERY WOULD BE PERMITTED TO INTRODUCE EVIDENCE OF THE CONDUCT OF THE DECEDENT AND HIS REPUTATION · AND THE JURY WOULD RECEIVE PROPER INSTRUCTIONS REGARDING THE LACK OF A DUTY TO RETREAT. IN THEFURTHERALTERNATIVE,IFTHIS COURT AFFIRMS THE CONVICTIONS, IT SHOULD ORDERAREDUCTIONIN SENTENCE TO THE MINlMUM SENTENCE PERMITTED BY STATUTE AND GRANT SUCH FURTHER RELIEF AS TIDS COURT DEEMS PROPER. Dated: February 29, 2016 Respectfully submitted, EASTON THOMPSON KASPEREK SHIFFRIN LLP y: Wi iam T. Easton, Esq. Danielle C. Wild, Esq. Attorneys for Appellant 16 West Main Street, Suite 243 Rochester, New York 14614 (585) 423-8290 63