The People, Respondent,v.Enrique Rivera, Appellant.

Brief

N.Y.February 18, 2014

To be argued by LEILA HULL (15 minutes) Court of Appeals STATE OF NEW YORK, PEOPLE OF THE STATE OF NEW YORK, Respondent, - against – ENRIQUE RIVERA, Defendant- Appellant. BRIEF FOR DEFENDANT-APPELLANT LYNN W. L. FAHEY LEILA HULL Attorneys for Defendant-Appellant 2 Rector Street, 10th Floor New York, N.Y. 10006 (212) 693-0085 May 29, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES.............................................................................................. iii PRELIMINARY STATEMENT ........................................................................................ 1 QUESTION PRESENTED ................................................................................................ .2 SUMMARY OF ARGUMENT .......................................................................................... .2 STATEMENT OF FACTS .................................................................................................. .4 Introduction .................................................................................................................. .4 The Conclusion of Appellant’s First Trial in a Mistrial ................................... 5 The People’s Case at the Second Trial. ................................................................ 6 The Eye-Witness Accounts .......................................................................... 6 Appellant’s Statement to Police .................................................................. 9 The Medical Evidence. .............................................................................. 10 The Defense Case ..................................................................................................... 11 The Charge Conference, Jury Charge, Deliberations, and Verdict .......... 13 The Appellate Division Decision ......................................................................... 15 ii ARGUMENT .......................................................................................................................... 16 THE COURT VIOLATED APPELLANT’S DUE PROCESS RIGHT TO A FAIR TRIAL WHEN IT REFUSED TO CHARGE SECOND-DEGREE MANSLAUGHTER TO THE JURY AS A LESSER INCLUDED OFFENSE OF SECOND- DEGREE MURDER, ALTHOUGH THERE WAS A REASONABLE VIEW OF THE EVIDENCE THAT APPELLANT, WHO HAD BEEN DRINKING, RECKLESSLY KILLED THE DECEASED DURING A BARROOM BRAWL ................................................................................. 16 A. The Legal Standard for Submitting a Lesser Included Offense to the Jury ................................................................................................................................ 17 B. The Reasonable View of the Evidence Supporting Submission of Second-Degree Manslaughter to Appellant’s Jury .............................................. 20 CONCLUSION ..................................................................................................................... 31 iii TABLE OF AUTHORITIES CASES People v. Alexis, 65 A.D3d 1160 (2d Dep’t 2009) ................................................... 27 People v. Asan, 22 N.Y.2d 526 (1968) ................................................................. 18, 29 People v. Barnes, 265 A.D.2d 169 (1st Dep’t 1999) ........................................... 15, 27 People v. Brown, 82 N.Y.2d 869 (1993) ..................................................................... 29 People v. Butler, 84 N.Y.2d 627 (1994) ..................................................... 3, 20, 24, 26 People v. Butts, 72 N.Y.2d 746 (1988) ....................................................................... 29 People v. Cabassa, 79 N.Y.2d 722 (1992) .................................................................. 31 People v. Collins, 290 A.D.2d 457 (2d Dep’t 2002) .................................................. 27 People v. Dabney, 231 A.D.2d 431 (1st Dep’t 1996) ................................................ 27 People v. Edwards, 95 N.Y.2d 486 (2000) ................................................................. 31 People v. Flack, 125 N.Y. 324 (1891) .................................................................... 2, 19 People v. Glover, 57 N.Y.2d 61 (1982) ................................................................. 17, 18 People v. Green, 56 N.Y.2d 427 (1982) ................................................... 17, 18, 19, 30 People v. Heide, 84 N.Y.2d 943 (1994) .................................................................. 3, 25 People v. Heide, 206 A.D.2d 875 (4th Dep’t 1994) ........................................................ 25 People v. Henderson, 41 N.Y.2d 233 (1976) ........................................................... 2, 18 People v. Lee, 35 N.Y.2d 826 (1974)...................................................................... 3, 24 People v. Lopez, 72 A.D.3d 593 (1st Dep’t 2010) .............................................. 15, 27 People v. Martin, 59 N.Y.2d 704 (1987) ................................................................ 3, 18 People v. Murry, 40 N.Y.2d 327 (1976) ..................................................................... 22 People v. Mussenden, 308 N.Y. 558 (1955) ............................................................ 2, 19 People v. Negron, 91 N.Y.2d 788 (1998) .................................................................... 18 People v. Perry, 19 N.Y.3d 70 (2012) ......................................................................... 17 People v. Pizarro, 89 A.D.3d 871 (2d Dep’t 2011) ................................................... 15 iv People v. Porter, 161 A.D.2d 811 (2d Dep’t 1999) ............................................. 15, 27 People v. Rodriguez, 33 A.D.3d 730 (2d Dep’t 2006) ............................................... 26 People v. Scarborough, 49 N.Y.2d 364 (1980) ................................................... 2, 18, 19 People v. Stanford, 87 A.D.3d 1367 (4th Dep’t 2011) .............................................. 27 People v. Steele, 26 N.Y.2d 526 (1970) ....................................................................... 29 People v. Suarez, 6 N.Y.3d 202 (2005) ............................................................. 2, 20, 23 People v. Sullivan, 68 N.Y.2d 495 (1986) ......................................................... 4, 17, 26 People v. Tai, 39 N.Y.2d 894 (1979)...................................................................... 3, 22 People v. Tai, 48 A.D.2d 933 (2d Dep’t 1975) ......................................................... 22 People v. Van Norstrand, 85 N.Y.2d 131 (1995) ....................................................... 18 People v. Vega, 68 A.D.3d 665 (1st Dep’t 2009)...................................................... 27 Policano v. Herbert, 7 N.Y.3d 588 (2006) .................................................................. 20 Rivera v. Firetog, 11 N.Y.3d 501 (2008) ............................................................ 4, 5, 28 People v. Ivisic, 95 A.D.2d 308 (2d Dep’t 1983) ....................................................... 29 CONSTITUTIONS N.Y. Const. Art. 1, § 6 .............................................................................................. 16 U.S. Const., Amend. V, XIV ................................................................................... 16 U.S. Const., Amend. XIV ................................................................................................... 16 STATUTES C.P.L. § 300.50(1), (2) ............................................................................................... 17 C.P.L. § 450.90(2)(a) ................................................................................................... 1 C.P.L. § 300.50(1) ...................................................................................................... 18 1 COURT OF APPEALS THE STATE OF NEW YORK ------------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ENRIQUE RIVERA, Defendant – Appellant. ------------------------------------------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Victoria A. Graffeo, Judge of the Court of Appeals, granted on March 1, 2013, appellant Enrique Rivera appeals from a November 7, 2012, order of the Appellate Division, Second Department, which affirmed a June 8, 2009, judgment of the Supreme Court, Kings County, convicting him, after jury trial, of manslaughter in the first degree and sentencing him to a determinate prison term of 25 years and 5 years of post- release supervision. On March 21, 2013, this Court granted appellant poor person relief and assigned Lynn W. L. Fahey as counsel. No stay has been sought. Appellant is incarcerated pursuant to the judgment. The Court has jurisdiction to entertain this appeal and to review the issue raised pursuant to C.P.L. § 450.90(2)(a). The issue is preserved by defense 2 counsel’s request that the trial court submit second-degree manslaughter to the jury (A631-33).1 QUESTION PRESENTED Did the court violate appellant’s due process right to a fair trial when it refused to charge second-degree manslaughter to the jury as a lesser included offense of second-degree murder, although there was a reasonable view of the evidence that appellant, who had been drinking, recklessly killed the deceased during a barroom brawl? SUMMARY OF ARGUMENT The standard for submission of a lesser included offense to a jury is purposely generous, requiring only that a reasonable view of the evidence provide an identifiable basis for the jury to convict the defendant of the lesser offense, but not the greater. See People v. Scarborough, 49 N.Y.2d 364, 368-74 (1980); People v. Henderson, 41 N.Y.2d 233, 236 (1976); People v. Mussenden, 308 N.Y. 558 562-63 (1955). Underscoring this rule is the long-standing principle that the “question of intent can never be ruled as question of law, but must always be submitted to the jury.” People v. Flack, 125 N.Y. 324, 334 (1891); accord People v. Suarez, 6 N.Y.3d 202, 212 n.6 (2005). A rare exception exists in homicide cases when the extreme nature of the injuries forecloses any finding other than that the defendant intended to cause 1 Parenthetical numbers preceded by “A” will refer to pages of the Appendix. 3 the deceased’s death or serious physical injury. See People v. Butler, 84 N.Y.2d 627, 629 (1994) (inter alia, 34 stab wounds, 9 potentially fatal). Accordingly, the refusal to instruct the jury on second-degree manslaughter as a lesser included offense of murder is error unless the record, viewed in the light most favorable to the defendant, People v. Martin, 59 N.Y.2d 704, 705 (1987), completely excludes the possibility that the defendant acted recklessly. Here, a defense eye-witness testified that Edgar Ojeda was killed during a sudden barroom brawl among people who had been drinking, during which appellant was surrounded by several angry men and numerous people threw punches. This evidence of a chaotic fight involving multiple people, as well as evidence of appellant’s intoxication, provided a reasonable basis for the jury to conclude that appellant’s mens rea was reckless rather than intentional. See People v. Tai, 39 N.Y.2d 894, 895 (1979); People v. Lee, 35 N.Y.2d 826, 826-27 (1974). Contrary to the trial court’s view, Ojeda’s injuries, which consisted of one fatal stab wound to his upper chest and shoulder area that punctured his lung and two shallower wounds to his shoulder and upper back, did not make this the rare case in which the injuries were so extreme that they conclusively established an intent to cause death or serious physical injury. Nor did the medical examiner’s opinion that the wounds required some force, rather than merely “waving a knife around,” necessarily mean that appellant had the conscious objective to kill or seriously injure Ojeda. See People v. Heide, 84 4 N.Y.2d 943, 944 (1994) (deliberate stab did not necessarily indicate intend to kill or seriously injure); People v. Sullivan, 68 N.Y.2d 495, 500-03 (1986) (shots deliberately fired at deceased’s body mass consistent with reckless homicide). Because a reasonable view of the evidence in the light most favorable to the defendant provided a basis to submit second-degree manslaughter to appellant’s jury, the court erred in refusing to do so and appellant is entitled to a new trial. STATEMENT OF FACTS Introduction Appellant was indicted for second-degree murder and related offenses in connection with the February 2005 Brooklyn barroom confrontation that resulted in the death of Edgar Ojeda. At appellant’s first trial, before the Honorable Robert J. Collini, the court submitted second-degree manslaughter to the jury as a lesser included offense of murder. The jury deadlocked, and, after six days of deliberations during which the jurors asked repeatedly about the reckless as well as intentional homicide counts, the court declared a mistrial. This Court subsequently held that double jeopardy did not bar a retrial. Rivera v. Firetog, 11 N.Y.3d 501, 508 (2008). At the retrial, before the Honorable Alan Marrus, the court issued an intoxication charge and submitted first-degree manslaughter to the jury as a lesser included offense of second-degree murder. 5 It refused defense counsel’s request to submit second-degree manslaughter to the jury, however, primarily on the theory that Ojeda’s injuries showed that the homicide could only have been intentional. On the second day of deliberations, after requesting reinstruction on intent and reasonable doubt, the jury acquitted appellant of second-degree murder but convicted him of first-degree manslaughter. The Conclusion of Appellant’s First Trial in a Mistrial At appellant’s first trial, at which he testified, the court submitted to the jury the second-degree murder count along with the lesser included offenses of first- and second-degree manslaughter. See Rivera v. Firetog, 11 N.Y.3d at 503. The jury deliberated for six days until the court declared a mistrial, determining that the jury was hopelessly deadlocked. Id. at 503-05. During those six days, the jury submitted several notes to the court requesting, inter alia, reinstruction “on all three counts.” Id. at 504. It also sought “clarification of the terms ‘bodily harm’ and ‘reckless action,’” which the court interpreted as referring to “the two manslaughter counts.” Id. at 504. On the sixth day, the jury announced for the third time that it was deadlocked and the court declared a mistrial. Id. at 505. 6 The People’s Case at the Second Trial The Eye-Witness Accounts At approximately 11:30 or 11:45 p.m. on February 26, 2005, off-duty bouncer Enrique Navarette, who had had about three or four beers at dinner, arrived at the darkly-lit El Borinquen Bar (A118, A120, A145, A158-61). After having several more drinks, he noticed a group of men, including appellant, being “patted down” for weapons as they entered the bar (A125, 156-57, A159). The group bought beers, then went to the back of the bar, where Jahaira, another bar patrol, was standing (A123-24, A157). Meanwhile, Jonathan Dominguez, Carlos Solomon, Marcus Carrasquillo, and Edgar Ojeda had spent an hour or two at a nearby strip club, where they each drank two or three beers before arriving at El Borinquen Bar between 1:00 and 1:30 a.m. (A174-72, A209, A208-09, A274-76). After settling in at the bar, the group began drinking by a jukebox near the bar’s exit, about ten feet away from Navarette (A126). The People’s four eye witnesses – Carrasquillo, Dominguez, Solomon, and Naverette – described a fight, after which appellant and his group left the bar and Ojeda realized that he had been stabbed. 7 Carrasquillo left his friends briefly to order his second beer at the bar when he heard a “commotion” and “feet moving” “back and forth” behind him (A279-81). He approached the commotion and, following a remark by Solomon, chased two men out of the bar (A280-82, A287, A289). Although he denied seeing his friends fighting (A287-90), he was impeached with his testimony from appellant’s first trial, in which he described turning around and seeing a chaotic fight involving all of his companions: From when I was waiting for my Heinekens there was a big ruckus. I turned around, I seen everybody. There was a lot of just a ruckus. So I didn’t know who was involved in the ruckus. I was moving people out of my way to make sure the people I was involved with were not involved. I saw they were involved. . . . I saw Carlos [Solomon] and Jonathon [Dominguez] fighting some guys (A289). Dominguez, who had drunk several beers, was standing between the bar and the jukebox speaking with “Rudy” when, over “pretty loud” music, he heard a “scuffle,” by which he meant “people arguing” (A177-79, A194, A197). He turned around and saw the on-duty bouncer evict appellant and one of his companions from the bar and then lock the exit door (A179-82, A190-91). Dominguez then realized that Ojeda had been stabbed, prompting him and Solomon to attack a companion of appellant’s who had remained behind in the bar (A179, A180, A191-92). 8 Solomon, who was standing near Ojeda by the jukebox, denied that he witnessed any “commotion” inside the bar (A212-13, A259-61), although he was impeached with his testimony at the prior trial that there was a frantic melee with “stuff going on everywhere. . . . People running back and forth, People screaming. People yelling” (A260). Solomon claimed that, while Dominguez and Carrasquillo were at the bar, appellant whispered something in Ojeda’s ear and Ojeda responded (A214- 16, A264-65). When two of appellant’s friends came over, Solomon asked one of them “if there was a problem,” and the man said that Solomon should “mind [his] fucking business” (A217-18, A244-46, A250-51). At this point, Dominguez and Carrasquillo joined Solomon and Ojeda (A241). When Solomon responded that “my friend’s business is my business,” appellant suddenly struck or placed “his hand on” Ojeda twice “around the top of his shoulder” or “chest area” (A218-20, A244-46, A250-51). Appellant and another man then ran out the exit; the bouncer stopped a third member of appellant’s group from leaving, and Solomon tried to punch him over the bouncer’s shoulder (A220-21, A254-55). As he was sitting at the bar, Navarette glanced over at the jukebox and, “[a]ll of a sudden,” saw appellant “push” Ojeda, prompting the on-duty bouncer and Naverette to intervene (A128-29). Navarette could not say “exactly” what happened, but he thought that appellant touched Ojeda 9 “maybe” “twice” in the left “shoulder, chest area” (A129-30). Appellant walked to the exit door followed by the on-duty bouncer while Solomon continued to swing over Navarette at one of appellant’s friends (A129-30, A148). Navarette blocked Ojeda and Solomon from following appellant out of the bar to ensure that the opposing groups remained separated (A129-31). After appellant left, Ojeda, who was bleeding, said he had been stabbed (A132-33, A180, A222, A282). His friends brought him to the hospital, where he later died (A116, A165-66, A182-84, A223-26, A274-75). Appellant’s Statement to Police The following day, the police arrested and interrogated appellant after he waived his Miranda rights (A344-52). Appellant said that he went to El Borinquen with his brother and a couple of friends to have a few drinks (A351). When he got “looks” from someone who said, “What’s up[?],” appellant responded, “What’s your problem?” (A351). When he felt “grabbing and punching,” appellant took out a knife and “started swinging at the crowd” (A351). He did not know “that he [had] actually hit or hurt anyone” (A351-52). Appellant gave the police a substantially similar written statement, adding that the confrontation took place after appellant had had a drink, and that he swung the knife in self-defense at the crowd that had risen up against him (A352-54; People’s Ex. 10 [statement]). Appellant additionally wrote: 10 I didn’t mean it. I was just scared. I know by saying sorry is not going to bring that person back, but I really didn’t mean this to go down this way. I’m very sorry (A356; People’s Ex. 10). A few hours later, appellant gave a videotaped statement to an assistant district attorney that was substantially the same as his written statement (A423; People’s Ex. 12 [videotaped statement]). The People read into evidence a portion of appellant’s testimony from his first trial, in which he admitted having worn a hat that the police recovered from his mother’s home, which had traces of Ojeda’s blood on it (A437-39). The Medical Evidence Ojeda, who was approximately 5’5” tall and had been drinking and smoking marijuana, sustained three stab wounds, one of which was fatal (A55- 63; A166). The medical examiner could not determine the order in which the wounds had been inflicted (A55). The fatal wound was located on Ojeda’s shoulder or upper chest, 11 ½ inches below the top of Ojeda’s head, and 3 ¼ inches to the left of the anterior of his neck. It penetrated his chest cavity by approximately five inches, perforating the upper lobe of his left lung and cutting his second rib (A55). Another wound was two inches deep, to the back of Ojeda’s left shoulder, approximately ¾ of an inch lower than the fatal wound, and penetrated only skin and muscle (A57). The remaining wound was on the left- 11 side of Ojeda’s back, about 4 ½ to 5 inches lower than the fatal wound and approximately 2 ¼ inches deep, penetrating only the “subcutaneous tissue” and “muscle of the left side of the back” (A56). All three wounds had a downward trajectory and required some force; they were not consistent with someone simply “waving a knife around” (A55- 56, A61-62, A69). Dr. Frederick explained, “you [would] have to stab the person,” and demonstrated by holding her right hand at shoulder level and gesturing “downwards” (A61). The Defense Case On the night of February 26, 2005, appellant’s brother, Julio Rivera, arrived at El Borinquen Bar where he met appellant and two mutual friends nicknamed “Little Julio” and “JP” (A447-48, A486). Inside the dimly-lit bar, the group joined appellant’s cousin Jahaira, her boyfriend Rudy, her brother, and his date (A451). The four newcomers got the first of several rounds of drinks and everyone went to the back of the bar with Jahaira’s group (A451-52). Later that night, when appellant had returned to the bar to buy another round of drinks, Julio saw three to five men surrounding and cursing at appellant and Little Julio, who were standing near the jukebox and side exit door of the bar (A452-53, A483, A487-92, A494-95). When some of the group made “hand gestures” and “point[ed] fingers” at appellant, Julio and JP 12 approached them (A453). Julio had to “push around toward the guys” who were confronting appellant (A453). He asked Ojeda and his friends “what the F [is] wrong with you guys,” then turned to ask appellant the same question (A453, A455-56, A484-85, A491-95, A501). “As soon as” Julio turned back again, he “got punched in the face,” at which point “all the punches started going off” (A453, A455, A496-98). Julio and “everyone” started to fight (A454). He recalled that a punch was even thrown “over [his] back” (A453, A496-98). Eventually, Julio saw the bouncer escort appellant to the exit (A454, A456-57). He and JP followed appellant outside as a chair was thrown nearby (A454, A456-57, A500). Appellant Enrique Rivera testified that he had been drinking beer prior to arriving at the bar (A574-75). He went to the bathroom to use his cell phone and encountered Ojeda, who commented, “This ain’t no phone booth” (A528- 29, A589, A585). Appellant left the bathroom and, after ordering his fourth beer since arriving at the bar, he walked over to the Ojeda, who had been staring at him aggressively, to ask him what was wrong (A531, A574-75). Things got “out of hand” as a crowd “gather[ed] up” and people began cursing at appellant (A532, A549, A604-05). While appellant asked the people near him to “chill,” Solomon punched appellant, who responded by punching Solomon and Ojeda (A532-34, A549, A608-12). As the bouncer “rushed” him out, 13 appellant heard ongoing fighting and cursing inside the bar (A534-35). He denied stabbing Ojeda (A533-34). According to Julio, Jahaira, who remained behind at the bar, later informed him that someone had been stabbed (A461, A507-08). The following day, February 28, 2005, the police arrested appellant (A558-59, A561). At the stationhouse, appellant gave an oral and written statement to the police and a videotaped statement to a prosecutor (A564-69). At trial, he denied the truth of the statements, asserting that he made them only because the police had threatened to charge his brother with murder unless he confessed and suggested that he claim he acted in self-defense (A462). The Charge Conference, Jury Charge, Deliberations, and Verdict Without objection, the court proposed submitting first-degree manslaughter to the jury as a lesser included offense of second-degree murder (A631). Defense counsel requested that the court also submit second-degree manslaughter to the jury, arguing that swinging a knife, as appellant admitted in his statements that the People placed in evidence, would be reckless (A631-32). The court denied that request, noting that the People had indicted appellant for an intentional murder, that appellant denied the stabbing, and that the medical examiner testified that the stab wounds “could not have been inflicted by someone just swinging a knife around” (A632-33). Because the wounds “had to 14 have been . . . caused by intentional infliction” there was, in the court’s view “no basis to submit a reckless count on the evidence in th[e] case” (A633). Nevertheless, because “there was evidence of intoxication,” the court would charge the jury “as to how [intoxication] relates to someone’s intent” (A633). The court instructed the jury on intoxication as follows: You have heard some evidence at this trial . . . indicat[ing] that the defendant may have been intoxicated during the course of this incident. Evidence of intoxication is not a defense to a crime under our law. It may be considered, whenever relevant, to negate an element of the crime charged. Thus, you may consider a defendant’s state of intoxication as it might relate to his intent . . . . Under our law, you may consider whether or not someone’s state of intoxication affected the level of intent that he might have had at the time (A753). The court submitted, in the alternative, the counts of second-degree murder and first-degree manslaughter to the jury (A759-62). The jury requested that the court “define intent” and “define the p[ara]meters of reasonable doubt” because it was “having difficult[y] defining reasonable doubt with intent to kill”; the court complied (A768-74). The jury also requested and was given the diagram showing the location of Ojeda’s wounds and the direct testimony of the medical examiner (A768-74). It acquitted appellant of second-degree murder but convicted him of first-degree manslaughter (A782-85). 15 The Appellate Division Decision On appeal, appellant argued, inter alia, that the court violated his due process right to a fair trial when it refused to submit second-degree manslaughter to the jury as a lesser included offense because a reasonable view of the evidence supported the conclusion that he killed Ojeda recklessly. On November 7, 2012, the Appellate Division, Second Department, affirmed the conviction, ruling that “there was no reasonable view of the evidence that would support a finding that the defendant acted recklessly when he stabbed the victim,” citing People v. Pizarro, 89 A.D.3d 871 (2d Dep’t 2011); People v. Lopez, 72 A.D.3d 593 (1st Dep’t 2010); People v. Barnes, 265 A.D.2d 169 (1st Dep’t 1999); and People v. Porter, 161 A.D.2d 811 (2d Dep’t 1999) (A2). On March 1, 2013, the Honorable Victoria A. Graffeo granted appellant leave to appeal. 16 ARGUMENT THE COURT VIOLATED APPELLANT’S DUE PROCESS RIGHT TO A FAIR TRIAL WHEN IT REFUSED TO CHARGE TO THE JURY SECOND-DEGREE MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF SECOND- DEGREE MURDER, ALTHOUGH THERE WAS A REASONABLE VIEW OF THE EVIDENCE THAT APPELLANT, WHO HAD BEEN DRINKING, RECKLESSLY KILLED THE DECEASED DURING A BARROOM BRAWL. Viewed in the light most favorable to the defense, there was a reasonable view of the evidence that appellant acted recklessly in causing Edgar Ojeda’s death during a chaotic barroom brawl, which defense witness Julio Rivera described, among numerous men all of who had been drinking. This was not, as the trial judge believed, the rare case in which the nature of the wounds themselves ruled out all but an intentional homicide. Indeed, appellant’s first jury appears to have struggled for days over precisely the issue of whether the homicide here was intentional or reckless, although the nature of Ojeda’s wounds obviously did not change between the first trial and the second. Accordingly, the trial court’s denial of defense counsel’s request to submit second-degree manslaughter to the jury denied appellant his federal and state due process rights to a fair trial. U.S. Const., Amend. V, XIV; N.Y. Const. Art. 1, § 6. 17 A. The Legal Standard for Submitting a Lesser Included Offense to the Jury A court “must” grant a party’s request to submit a lesser included offense to the jury if “there is a reasonable view of the evidence which would support a finding that the defendant committed” the lesser, but not the greater, offense. C.P.L. § 300.50(1), (2); see also People v. Perry, 19 N.Y.3d 70, 72 (2012) (“Defendant was entitled to have the lesser count submitted if there was ‘a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater’”). In People v. Glover, 57 N.Y.2d 61, 63-64 (1982), this Court set forth a two- pronged test for deciding whether a court should charge a requested lesser included offense. First, the requested offense must be of a “lesser grade” and it must be “impossible to commit the greater crime without concomitantly, by the same conduct, committing the lesser offense.” Id. That first prong was satisfied here because “reckless manslaughter is a lesser included offense of intentional murder.” People v. Green, 56 N.Y.2d 427, 433 (1982); accord People v. Sullivan, 68 N.Y.2d at 502. “That established,” the party seeking submission of the lesser offense “must then show that there is a reasonable view of the evidence in the particular case that would support a finding that [the defendant] committed the lesser offense but not the greater.” Glover, 57 N.Y.2d at 63. This second prong of the test requires determining whether, “under any reasonable view of the 18 evidence, it is possible for the trier of facts to acquit defendant on the higher count and still find him guilty of the lesser one.” People v. Van Norstrand, 85 N.Y.2d 131, 136 (1995) (emphasis added); accord C.P.L. §300.50(1); Glover, 56 N.Y.2d at 64. This inquiry “is not directed at whether persuasive evidence of guilt of the greater crime exists.” Van Norstrand, 85 N.Y.2d at 136. “[T]he court’s evaluation of the persuasiveness of the evidence of guilt of the greater crime is irrelevant.” Green, 56 N.Y.2d at 434. The appropriate inquiry is whether the evidence, viewed “in the light most favorable to the defendant,” People v. Martin, 59 N.Y.2d. 704, 705 (1987), provides a “rational basis” to convict him of the lesser but not the greater offense. People v. Henderson, 41 N.Y.2d 233, 236 (1976). The court must allow for the possibility that the jury can “accept or reject part or all of the defense or prosecution evidence,” so long as there is a rational basis for doing so. People v. Scarborough, 49 N.Y.2d 364, 372-73 (1980) (citing Henderson, 41 N.Y.2d at 236). The jury “is entitled to assess the credibility of witnesses and determine . . . what portion of their testimony to accept.” People v. Negron, 91 N.Y.2d 788, 792 (1998); see also People v. Asan, 22 N.Y.2d 526, 532 (1968) (“[A] jury may properly find a lesser included offense from any portion of the defense and prosecution evidence, or from any part of the total proof” (emphasis added)). 19 In order to satisfy the second prong of the test for submission of a lesser included offense, a party must demonstrate that a rational view of the evidence, rather than a purely hypothetical view, would establish guilt of the lesser, but not the greater, offense. Scarborough, 49 N.Y.2d at 368-74; People v. Mussenden, 308 N.Y. 558, 562-63 (1955) (submission of a lesser requires “some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one”). This standard, however, is purposely generous, and in homicide cases requires only an “identifiable basis” on which the jury may find that the defendant acted with either of two states of mind. Scarborough, 49 N.Y.2d at 369. Only when submitting the lesser “would force the jury to resort to sheer speculation” should the court refuse to do so. Id. at 371. The Scarborough standard incorporates this Court’s long-standing rule that questions of intent are particularly a jury matter. As the Court declared long ago, “[h]owever clear the proof may be, or however incontrovertible may seem to the judge to be the inference of a criminal intention, the question of intent can never be ruled as a question of law, but must always be submitted to the jury.” People v. Flack, 125 N.Y. 324, 334 (1891). Determining a defendant’s mental state depends on discerning between “fine gradations along . . . a single spectrum of culpability” based on inferences “from the facts and circumstances prove[n]” at trial. Green, 56 N.Y.2d at 432 (1982). Accordingly, this Court has 20 consistently held that “the question of the defendant’s state of mind” is “a classic matter for the jury.” Policano v. Herbert, 7 N.Y.3d 588, 598 (2006). Thus, a court should submit second-degree manslaughter as a lesser offense of intentional homicide unless the evidence entirely excludes the possibility that the defendant caused the death recklessly. Only in a truly “exceptional case” will the wounds themselves be so numerous or extreme that they can be relied on to rule out a reckless homicide. People v. Butler, 84 N.Y.2d 627, 631 (1994) (involving 34 stab wounds, 9 of them potentially fatal). Notably, the Court has held that the evidence supported recklessness even in a case involving a one-on-one stabbing that resulted in a fatal chest wound, observing that “[i]t is up the jury to decide in a particular case whether the defendant acted intentionally, recklessly, or negligently (or not at all).” People v. Suarez, 6 N.Y.3d 202, 212 n.6 (2005) (evidence of a fatal stab wound from a one-on-one confrontation “was certainly sufficient to support a finding of reckless manslaughter”). B. The Reasonable View of the Evidence Supporting Submission of Second- Degree Manslaughter to Appellant’s Jury Viewing the record in the light most favorable to appellant, as the law requires, a reasonable view of the evidence supported a finding that appellant recklessly killed Edgar Ojeda in the course of a chaotic bar fight involving multiple patrons, all of whom had been drinking. Appellant testified that he 21 had been drinking prior to meeting his brother at the bar and that, by the time the fight occurred, he was on his fourth beer since entering the bar (A530-31, A473-75). His brother, Julio Rivera, confirmed that they drank several rounds of beer at the bar (A451-52). The People’s witnesses had also been drinking heavily (A194, A234-36, A276). Julio Rivera provided a detailed account of the barroom brawl during which Ojeda was stabbed, describing it as a hectic encounter with several patrons striking one another (A452-57). In particular, he testified that several men surrounded appellant and his friend, “Little Julio,” and that they were cursing and gesturing (A452-62, A488-600). Julio and another friend attempted to intervene, having to “push around towards the guys” to do so (A453). Turning first to Ojeda and his friends, Julio asked, “what the F [is] wrong with you guys” before turning to ask appellant the same question (A453). “As soon as” Julio turned back to Ojeda’s group, Julio “got punched in the face,” at which point “all the punches started going off” (A453, A496, A498). He testified that “everyone” was throwing “punches” (A453, A496-98). Indeed, there was such a melee that Julio recalled a “punch” being thrown “over [his] back” (A453, A496-98). Thus, Julio’s testimony described the quintessential, fast-moving bar brawl in which allowing a jury to consider reckless manslaughter as an alternative to intentional murder or manslaughter is particularly appropriate. 22 Even when a less chaotic struggle or fight than the one Julio described results in a death, this Court has held that reckless manslaughter should be submitted to the jury. In People v. Tai, 39 N.Y.2d at 895, the defendant testified that, after an argument, the deceased assaulted him with a knife and, in the ensuring struggle, “sustained stab wounds that resulted in her death.” People v. Tai, 48 A.D.2d 933, 933 (2d Dep’t 1975) (Hopkins J., dissenting), rev’d 39 N.Y.2d 894 (1996). The Court held that “the jury could reasonably have” accepted that Tai “inflicted the fatal wounds” during the course of the struggle in attempting to repel the deceased’s attack. Tai, 39 N.Y.2d at 895. As a result, “the jury might have found that defendant acted recklessly” and “committed acts constituting manslaughter in the second degree, but did not act with the intent to cause serious physical injury as required by manslaughter in the first degree.” Id. (internal citations omitted). It was, therefore, error to refuse to submit second-degree manslaughter to Tai’s jury. In People v. Murry, 40 N.Y.2d 327, 335 (1976), a reasonable view of the evidence also supported submitting reckless manslaughter to the jury. The defendant, contradicting his prior confession, testified at trial that, in the course of a disagreement with the deceased over drugs, the two struggled and he stabbed the deceased in self-defense. Id. Citing Tai, the Court held that “on this record,” the trial court’s refusal to charge second-degree manslaughter was reversible error. Id. 23 In People v. (McPherson) Suarez, 6 N.Y.3d at 206, the deceased and the defendant argued over child support, and when the deceased “raised his hand as if to hit” the defendant, she “unzipped her purse, pulled out a knife” and “swung” at him, fatally “stabbing him once in the chest.” The Court found the evidence “certainly sufficient to support a finding of reckless manslaughter.” Id. at 212 n.6. As these cases demonstrate, submission of reckless manslaughter is required when there is a reasonable view of the evidence that a struggle or fight resulted in the accidental death of a participant. It is even clearer that such a charge is appropriate when, as in appellant’s case, a fight involving several people led to a fatal act. According to Julio Rivera, appellant was confronted by several hostile men, and, between appellant’s group and Ojeda’s group, at least seven people were involved in the altercation that led to Ojeda’s death. The fight Julio described was a fast-moving, frightening, and confusing event, with appellant surrounded and punches flying, making it especially unlikely that appellant could have formed the calculated intent to kill or serious injure Ojeda. If the jury credited Julio, they could have easily determined that appellant stabbed Ojeda in this chaos and accidently caused his death while attempting to repel an attack by him or his group as a whole. That appellant and the other participants had been drinking heavily provided even more reason to submit second-degree manslaughter to the jury. The trial court appropriately gave an intoxication charge to explain that 24 evidence of appellant’s intoxication could negate intent (A633, A753). See Lee, 35 N.Y.2d at 826-27 (given the evidence that defendant “was intoxicated” when he perpetrated the “bizarre” sidewalk stabbing of a victim “previously unknown” to him, second-degree manslaughter should have been submitted to the jury, which could have found that, “at the time of the stabbing[,] the defendant was too intoxicated to have intended either to kill his victim or to cause her serious physical injury”). Concededly, the issuance of an intoxication charge does not “mechanically trigger a corresponding obligation for the trial court to” submit second-degree manslaughter to the jury. Butler, 84 N.Y.2d at 629-31, 634 (evidence of intoxication did not mandate reckless manslaughter charge when death resulted from “three head contusions and 34 kitchen knife stab wounds, of which nine” were potentially fatal). Nevertheless, an intoxication charge and the submission of reckless manslaughter are often “intertwined,” and the Court has recognized that, “in a great many cases in which an intoxication instruction may be warranted and is given, some corresponding lesser-included offense instruction might be necessitated.” Id. at 630. Here, the evidence that Ojeda was killed during a chaotic barroom brawl involving several individuals, all of whom had been drinking, presents the quintessential situation in which second-degree manslaughter should have been submitted to the jury. Indeed, at appellant’s first trial, it was submitted and the 25 jury struggled long and hard over whether appellant had killed Ojeda intentionally or recklessly. Nevertheless, the court at appellant’s second trial refused defense counsel’s request for the lesser offense because it believed that the nature of Ojeda’s wounds foreclosed any finding that appellant acted recklessly and because appellant denied stabbing Ojeda (A632-33). Neither basis justified its refusal to give the charge. Neither the nature of Ojeda’s injuries, nor the medical examiner’s assertion that the stab wounds required some force beyond “waving a knife around” (A61) negated the reasonable view of the evidence that appellant recklessly killed Ojeda in the course of a chaotic, multi-person fight. The fact that Ojeda’s death might have resulted from a deliberate act did not mean that appellant consciously intended to kill or seriously injure him. In People v. Heide, 84 N.Y.2d 943 (1994), for example, the defendant testified that he deliberately stabbed the deceased in the groin “so that he would release his grip on defendant.” 206 A.D.2d 875, 875 (4th Dep’t) (Doerr, J. dissenting) aff'd, 84 N.Y.2d 943 (1994). The Court concluded that submission of criminally negligent homicide as a lesser offense was appropriate, holding that “the fact that [the] defendant intentionally stabbed” the deceased “does not preclude finding” that he committed an unintentional homicide. Heide, 84 N.Y.2d at 944. In other words, the proper inquiry is not whether someone intended to stab the deceased, but whether he intended to kill or seriously injure him. 26 Similarly, in People v. Sullivan, 68 N.Y.2d 495, 498, 502 (1986), this Court held that evidence that a police officer deliberately “aimed at [a woman’s] body mass” did not demonstrate conclusively that he intended to kill or seriously injure her so as to invalidate an indictment for reckless manslaughter. Emphasizing that intentional homicide depends on a “finding of a specific design to effect death – not merely an intent to shoot,” the Court held that, “in the tension and confusion of the situation,” the officer could have “consciously disregarded the danger” of his actions. Id. at 502; see also People v. Rodriguez, 33 A.D.3d 730, 731-32 (2d Dep’t 2006) (reducing depraved indifference murder to reckless manslaughter when a prison inmate, rebuffing unwanted sexual advances, deliberately pursued and stabbed the deceased three times, with one wound penetrating his heart; although he deliberately “stabbed the victim three times,” the record did not support that “such action was done with an intent or ‘conscious objective’ to kill”). Similarly here, if the jury found that appellant deliberately stabbed Ojeda, it could have nevertheless found that, acting in the midst of confusing and fraught circumstances, appellant caused Ojeda’s death recklessly. Ojeda’s wounds bore no resemblance to those that have been found so numerous or extreme as to rule out anything but an intentional homicide. Butler involved three head contusions and 34 stab wounds, nine of which were potentially fatal, thus conclusively establishing that the defendant acted with the 27 intent to kill the deceased. 84 N.Y.2d at 629-31, 634; see also People v. Vega, 68 A.D.3d 665, 665 (1st Dep’t 2009) (proper not to submit reckless manslaughter when the defendant “inflicted 49 stab wounds, mostly to the victim’s neck and chest,” penetrating the “heart, lung, liver and spleen”); People v. Alexis, 65 A.D3d 1160, 1160-61 (2d Dep’t 2009) (same, when deceased’s throat was slashed 14 times, and two wounds severed the jugular vein, causing death); People v. Collins, 290 A.D.2d 457, 458 (2d Dep’t 2002) (same, when deceased was stabbed six times, and five of the wounds could have been fatal). Here, in stark contrast, there were a total of three wounds, two of which were relatively superficial. Nor did Ojeda’s wounds suggest that appellant targeted vital areas so as to establish an intent to cause death or serious physical injury. See People v. Stanford, 87 A.D.3d 1367, 1368 (4th Dep’t 2011) (four stab wounds in the neck, one severing major blood vessels); Lopez, 72 A.D.3d at 593 (very deep stab wound to victim’s “vital organs”); Barnes, 265 A.D.2d at 169 (stab of abdomen “with great force,” perforating liver and cutting blood vessels); People v. Dabney, 231 A.D.2d 431, 431 (1st Dep’t 1996) (stab to the throat directly over the jugular vein); Porter, 161 A.D.2d at 811 (5 ½-inch-deep neck wound lacerating the aorta and pulmonary artery). In contrast to such injuries, Ojeda’s wounds were entirely consistent with appellant having acted recklessly. They obviously did not target vital areas 28 such as Ojeda’s heart, liver, abdomen, or neck. One was to his upper back, another was to the back of his shoulder, and one was to his upper chest or shoulder area, 3 ¼ inches from the anterior of his neck (A55-57). They were consistent with a man who had been drinking striking out recklessly in an effort ward off people he perceived to be attacking him during a brawl. Moreover, whatever difference might have existed between the eye- witness accounts from appellant’s first and second trials, the nature and severity of Ojeda’s injuries remained constant. The jury at appellant’s first trial, which considered both first- and second-degree manslaughter as lesser included offenses of second-degree murder, deadlocked after six days of deliberations. It clearly struggled with the question of whether appellant’s actions constituted reckless or intentional homicide, asking for “clarification of the terms ‘bodily harm’ and ‘reckless action.’” Rivera v. Firetog, 11 N.Y.3d at 504. Notably, the jury in the instant case also struggled over the question of intent, asking the court for further instruction on intent and reasonable doubt because they were “having difficult[y] defining reasonable doubt with intent to kill” (A768-74). That both juries faced difficulties is unsurprising because Ojeda’s death as a result of stab wounds to his shoulder area and upper back bore the hallmarks of a reckless act. Erratic movement consistent with a fight or a struggle explained why Ojeda sustained one deep and two shallower wounds to the front and back of his shoulder area. For example, forward movement while 29 attempting to punch appellant or a third-party could easily explain how the blade penetrated his body as deeply as it did. See People v. Ivisic, 95 A.D.2d 308, 312 (2d Dep’t 1983) (evidence about the trajectory of fatal bullet consistent with recklessness). Thus, the decision of the court below, relying on the nature of Ojeda’s injuries, that there was no reasonable view of the evidence that appellant acted recklessly incorrectly ignored the fundamental rule that it was the jury’s responsibility, not the trial court’s, to determine whether evidence of a violent melee and intoxication, combined with the nature of Ojeda’s injuries, proved whether appellant’s conduct was intentional or reckless. Finally, contrary to the trial court’s reasoning, appellant’s denial at trial that he had stabbed Ojeda did not justify the court’s refusal to charge second- degree manslaughter. See Asan (Freeman), 22 N.Y.2d at 532 (court’s refusal to charge a lesser because the defendant “denied ownership or use of a knife” was error when the record contained other evidence that he made “slashing movements at the complainant”); People v. Brown, 82 N.Y.2d 869, 871 (1993) (“Defendant’s testimony denying that he committed the proscribed conduct does not alone support or defeat the requested charge”); People v. Butts, 72 N.Y.2d 746, 748 (1988) (noting “established New York case law that a defendant’s entitlement to a charge on a claimed defense is not defeated solely by reason of its inconsistency with some other defense raised or even with the defendant’s outright denial that he was involved in the crime”); People v. Steele, 30 26 N.Y.2d 526, 529 (1970) (because “the jury may believe portions of both the defense and prosecution’s evidence,” defendant’s alibi testimony did not justify court’s refusal to charge justification when other record evidence supported self-defense). That appellant denied stabbing Ojeda is of no consequence to the question of whether a reasonable view of the evidence supported charging reckless manslaughter. That inquiry is not based on the persuasiveness of the evidence, but whether evidence exists in the record to support the charge, which it did here. * * * In sum, the trial record contained ample support for submitting second- degree manslaughter to the jury as a lesser-included offense. The court’s error in refusing to do so requires reversal of appellant’s conviction and a new trial. Because the jury acquitted appellant of second-degree murder, but convicted him of first-degree manslaughter, this error cannot be deemed harmless. See Green, 56 N.Y.2d at 435 (“[o]nly if defendant were convicted of the higher offense charged . . . and acquitted of the lower offense charged . . . would the failure to charge an even lesser offense . . . be harmless”). Defense counsel preserved this issue for appellate review, having requested that the trial court submit second-degree manslaughter to the jury, along with first-degree manslaughter, as lesser-included offenses of second- 31 degree murder (647-49). See People v. Cabassa, 79 N.Y.2d 722, 730 (1992) (counsel’s motion to submit lesser-included offense preserved court’s refusal for appellate review). Moreover, the trial court “expressly decided” the issue when it denied defense counsel’s request to give the charge to the jury, citing, inter alia, its interpretation of the medical examiner’s testimony that the stab wounds were caused by the “intentional infliction” of force (648-49). C.P.L. § 470.05(2); see also People v. Edwards, 95 N.Y.2d 486, 491 n.2 (2000) (matter preserved when “the trial court ‘expressly decided’ the question in response to a ‘protest by a party’”). Notably, in its ruling, the Appellate Division, Second Department, never disputed that the matter was preserved for review. CONCLUSION FOR THE REASONS STATED ABOVE, APPELLANT’S CONVICTION MUST BE REVERSED AND A NEW TRIAL ORDERED. Respectfully submitted, LYNN W.L. FAHEY Attorney for Defendant-Appellant Leila Hull Of Counsel May 2013