         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
93
KA 08-01199
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, VALENTINO, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KEVIN C. JOHNSON, ALSO KNOWN AS “STUNT,”
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (DAVID M. ABBATOY, JR.,
OF COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (GEOFFREY KAEUPER OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John J.
Connell, J.), rendered May 16, 2008. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree and
criminal possession of a weapon in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon a jury
verdict of murder in the second degree (Penal Law § 125.25 [1]) and
criminal possession of a weapon in the second degree (§ 265.03 [3]),
defendant contends that County Court improperly instructed the jury
with respect to his justification defense. Defendant failed to object
to the justification charge as given, however, and his contention is
thus unpreserved for our review (see People v Carr, 59 AD3d 945, 946,
affd 14 NY3d 808; People v Folger, 292 AD2d 841, 842, lv denied 98
NY2d 675). In any event, we conclude that “the jury, hearing the
whole charge, would gather from its language the correct rules [that]
should be applied in arriving at [a] decision” (People v Jones, 100
AD3d 1362, 1366 [internal quotation marks omitted]). Because the
court did not erroneously instruct the jury regarding justification,
defense counsel was not ineffective for failing to object to that
charge (see People v Fairley, 63 AD3d 1288, 1290, lv denied 13 NY3d
743). Nor was defense counsel ineffective for failing to amend his
pretrial motion papers; even had an amendment resulted in a reopened
or enlarged suppression hearing, defendant cannot show that any
evidence would have been consequently suppressed (see People v Watson,
90 AD3d 1666, 1667, lv denied 19 NY3d 868; see also People v Caban, 5
NY3d 143, 152).

     Finally, there being no dispute that defendant shot the unarmed
                                 -2-                            93
                                                         KA 08-01199

victim multiple times at close range with an illegal handgun, we
reject his contention that the verdict is against the weight of the
evidence with respect to the murder conviction because the People
failed to disprove his justification defense (see generally People v
Danielson, 9 NY3d 342, 348-349). Defendant had sought out the victim,
whose nickname was “Mooch,” and he found him sitting on a stoop,
smoking a cigarette with a female. Defendant then approached him, gun
drawn, and said, “Hey, yo, Mooch, that’s how you feel?” Almost
immediately thereafter, defendant fired four or five shots at the
victim. Three of the bullets struck the victim, one of which went
through his heart and killed him almost instantaneously. Defendant
then fled on foot. When arrested three days later, defendant admitted
to the police that he shot the victim, explaining that he did so
because he feared that, due to a dispute over drug money, the victim
was going to kill him “sooner or later.” Thus, although defendant
testified at trial that he believed that the victim was reaching for a
gun in his waistband moments before he shot him, we nevertheless
conclude that the People disproved the justification defense beyond a
reasonable doubt (see People v McCallum, 96 AD3d 1638, 1639, lv denied
19 NY3d 1103; People v Rogers, 94 AD3d 1152, 1152; People v Fisher, 89
AD3d 1135, 1137-1138, lv denied 18 NY3d 883).




Entered:   February 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
