The People, Respondent,v.Douglas R. Every, Appellant.BriefN.Y.August 30, 2017Kirk 0 . Martio I >istrict Attorney Cltcryl A. Mancini First Assistant District Attorney June 1 , 20 17 John P. Asiello Clerk of the Co urt OFFICE OF THE DISTRICT A TTORNEV COUNTY OF TIOGA New York State Court of Appeals 20 Eagle Street Albany, New York 12207 RE: Pe0ple v . Every (Douglas) APL- 2017-00064 Dear Mr . Asiello : 20 Court Street P.O. Box 300 Owego, NY 13827 Tel. (607) 687-8650 Fax (607) 687-1614 Enclosed please find one original and two copies o f t he Respondent's Af firma ti0n in Respon~e to Defendant's Motion for Leave to Appea l . FACTS In October 2013 , the defendant, the victim, and an elderly gentleman by the name of Ja~es Atwell who the victim cared :or, all lived in a house owned by the defendant. The victim and Atwell pald ren t to the defendant and had free access to the entire lower level of the house wtich included the bedroom in which they slept, a nd an open living area which included the ki tchen, a dining spot with small table and i::l living room . Addit i onal ly , attached to the kitchen was a laundry and uti lity room that also served as an exterior entrance to the l ower l e v e l . On the 23rct at around Spm the defendant came home and started drinking alcohol. Later , the v ictim began cooking dinner for himse lf and Atwell i n the common area k..i.tchen while Atwell sat i n his wheelchair nt the small dining table. At one point, the det endant and v ict im, who had also been drinking, started Qr guing and push ing each other. 1 Kirk 0 . Martin District Attorney Cheryl A. Mancini First Assistant District Attorney OFFICE OF THE DISTRICT ATTORNEY COUNTY OF TIOGA 20 Court Street P.O. Box 300 Owego, NY 13827 Tel. (607) 687-8650 Fax (607) 687-16 14 After this went on for a couple minutes the defendant left a nd then returned.to the residence through the a t tached laundry and ulility room exterior entrance . He would later tell police he was not afraid of the defendant when he re-entered the house . After entering through the laundry and utility room the defendant walked into the kitchen and picked up a large , butcher styl e knife from the counter and stabbed the victim once in t he chest approximatel y 4 ~ inches deep , slicing his heart in half and killing him. This entire event was witnessed by Atwell , who was sitting in his wheelchair at the aforesaid table . It is undisputed that t he victim was unarmed at the time the defendant stabbed him and that it was the defendant who escalated the argument by introducing deadly physical force . When interviewed by the police later that night, the defendant c l aimed two mutually exclusive defenses - one , that he was simply holding the knife in his hand when the victim ran into and impaled h imself on it , and two , that he stabbed the victim in self-defense, making the claim that he was sick of being thrown around. The only injuries found on the defendant were two small red spots and a small hang nail on one finger . His hair wasn ' t disheveled and he had no bruises or cuts of any kind . Moreover, the common area and furniture did not appear disheveled or upset in any way . Consistent with Atwell's eyewitness testimony and the defendant ' s o wn admissions to the police that the vict im was unarmed , there were no weapons or instruments of deadl y physical force found next to or in possession of the victim. The defendan t was indicted on Murder in the Second Degree , but after jury trial was convicted of Manslaughter in the First Degree . 2 Kirk 0. Martin District Attorney Cheryl A. Mancini First Assistant District Attorney OFFICE OF THE DISTRICT ATTORNEY COUNTY OF TIOGA TRIAL 20 Court Street P.O. Box 300 Owego, NY 13827 Tel. (607) 687-8650 Fax (607) 687-1614 At trial the defense presented the same two alternative, mutually exclusive, defenses that the defendant had originally claimed during his interview with the police . One, that the defendant was simply holding the knife in his hand when the vict im ran into and impaled himself on it. And, two, that the defendant stabbed the victim in self-defense. The defendant also attempted to introduce the testimony of several witnesses with regard to the victim' s alleged prior violent acts or threats of violent acts . After careful analysis the Court allowed some of this testimony, but not all of it. The Court did not allow the defendant to introduce testimony from a third party Dill that the victim had previously threatened said third party with a hammer and nail gun because the defendant did not have specific knowledge of sa i d threat and only proffered that he knew the victim had threatened him with unspecified "instrumentsu. The Court concluded this was not reasonably related to the instant situation where the evidence established uncontrovert ibly that the victim was unarmed. The Court also did not allow testimony from a third party Petticrew, a friend of the d~fendant, who wou ld have testified that the defendant had called her after locking himself in h is bedroom at one point in time due to the victim' s alleged behavior . This testimony would not have established that the victim had in fact threatened the defendant or engaged in any threatening behavior. The police testified that the defendant had called 911 numerous t imes in the past, once to complain that the victim had not done his house chores. 3 Kirk 0. Martin District Attorney Cheryl A. Mancini First Assistant District Attorney OFFICE OF THE DISTRICT ATTORNEY COUNTY OF TIOGA 20 Court Street P.O. Box 300 Owego, NY 13827 Tel. (607) 687-8650 Fax (607) 687-1614 It was undisputed at trial that the victim was unarmed and it was the defendant who introduced deadly physical force . The People never argued in summation that the defendant had a duty to retreat . The arguments made by the People in relation to how the defendant had earl ier left the residence and then came back, what the defendant could have done differently, and that the defendant could have left again instead of picking up t he kni fe and stabbing the victim in the chest all were relevant and related to rebutting the self- defense argument advocated by the defendant and to establish that the defendant was not in fear of the victim o r have any actual belief that he was being threatened wi th deadly physical force . The Court gave lhe ful l self-defense instruction to the j ury, i ncluding the duty to retreat and " dwelling" portions. ARGUMENT Even if the testimonial evidence proffered by the defendant but not admitted had been admitted, and even if the defense counsel had made all the objections which appellant claims he should have mctde , and even if the trial court had not included the "dwelling" language in its instruction regarding self-defense , it would not have changed the undisputed fact that the victim was unarmed i n his own residence when the defendant escalated the argument by i ntroducing the deadly physical force with wh ich he used to kill the victim, making the defendant the initial aggressor . Question of Law There is no question of law. Trai l Court ' s Preclusion of Third Party Testimony The preclusion by the Trial Court of Lhe t estimony of the individuals who would have ostensibly testified about alleged prior behavior by the victim was correct, and the Trial Court 4 Kirk 0 . Martin District Attorney Cheryl A. Mancini First Assistant District Attorney OFFICE OF THE DISTRICT ATTORNEY COUNTY OF TIOGA 20 Court Street P.O. Box 300 Owego, NY 13827 Tel. (607) 687-8650 Fax (607)687-1614 did not abuse it 's discretion in doing so. People v . Miller, 39 NY2d 543 (1976) ; People v . Sawyer , 274 AD2d 603 (2000), affd 96 NY2d 8 15 (2001) . Ne i ther the trial record , nor the evidence proffered by the defendant but ruled inadmissible at trial, even if it had been admitted , would have or could have established that the defendant was not the initial aggressor . Moreove r , this issue is unpreserved for appeal . Trial Court ' s Reading of the Entire Sel f-Defense Instruction, Including the portion involving a "Dwelling" and Duty to Retreat Even if the Trial Court erred in reading the entire pattern jury instruction on self-defense, including the portion relating to "dwelling", it would not have changed the analysis as to which party was the i nitial aggressor because both the victim and defendant lived there and the evidence was undisputed that the victim was unarmed and it was the defendant who introduced deadly physical force i nto the argument . People v. Jones , 3 NY3d 491 (2004) ; People v . Walker , 26 NY3d 170 (2015); People v. Petty, 7 NY3d at 277 (2006). Moreover, this issue is unpreserved for appeal . Prosecutorial Misconduct The People never argued in summation that the defendant had a duty to retreat. The arguments made by the People in relation to how the defendant had earlier left the residence and then came back, what the defendant could have done differently , and that the defendant could have left again instead of picking up the knife and stabbing the victim in the ches t all were relevant and related to rebutting the self-defense argument advocated by the defendant and to establish that the defendant was not in fear of the victim or have any actual belief that he was be i ng 5 Kirk 0 . Martin District Attorney Cheryl A. Mancini First Assistant District Attorney OFFICE OF THE DISTRICT ATTORNEY COUNTY OF TIOGA 20 Court Street P.O. Box 300 Owego, NY 13827 Tel. (607) 687-8650 Fax (607) 687- 1614 threatened with deadly physical force . People v . Emic k, 103 AD2d643 (1984}. The People 's arguments relating to Atwe l l's testimony were fair responses to the arg uments ~aised by the defendant in hi s summation. People v . Wlasiuk, 136 AD3d 1101 (2016) , lv denied 27 NY3d 1009 (2016). Moreover , t h is issue is unpreserved for appeal . Ineffective Assistance of Counsel Defense counsel p ursued a cohesive trial strategy that made use of the defendant's own claims that he had made to the police when being interviewed, made timely objections , vigorously cross-examined t he People ' s witnesses and admitted evidence that supported the defenses raised by the defendant himself . Furthermore , had trial counsel made the objections a ppellant claims he should have, it would not have changed the fact that the victim was unarmed , the defendant was not afraid of or threatened with deadly physical force , and the defendant was the fl!'sL Lo introduce deadly physical force into the argument . Request to Reply The Respondent opposes Appellant ' s request to reply to this submission . Thank you . Sincere K~in cc William T . Easton, Esq . 6