        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1418
KA 10-00798
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

LASHAY N. TUBBS, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER, HARRIS BEACH PLLC,
PITTSFORD (SVETLANA K. IVY 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 (Frank P.
Geraci, Jr., J.), rendered February 18, 2010. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of manslaughter in the second degree (Penal Law §
125.15 [1]), based on her conduct in stabbing the victim in the neck
with a knife. Contrary to defendant’s contention, County Court
properly denied her request to charge the jury on the defense of
justification. There is “no reasonable view of the evidence, viewed
in the light most favorable to defendant, to support a justification
defense” (People v Hall, 48 AD3d 1032, 1033, lv denied 11 NY3d 789).
A defendant may use deadly physical force only if he or she reasonably
believes that the other person is using or about to use deadly
physical force (see § 35.15 [2]). Here, in her statement to the
police, defendant stated that she told her live-in boyfriend that she
wanted him to move out of their residence immediately, and she started
grabbing his clothes out of the closet. They began pushing each
other, and he told her to leave his belongings alone. The record
establishes that, at some point, the victim called 911 and said he
needed the police to come to the residence. Before the call was
disconnected, the victim was heard saying, “If you stab me with that
knife, we are going to have a problem.” In her statement to the
police, defendant stated that she was not in the room when the victim
made that telephone call. She said that she went to the kitchen and
grabbed a knife, telling the victim to leave her alone. She said that
the victim came toward her with his arms raised, and she swung the
knife three or four times, stabbing him in the neck. Defendant told
the police that the victim was unarmed and that, prior to the
                                 -2-                          1418
                                                         KA 10-00798

incident, they had never argued. She also stated that the victim had
never pushed or hit her, nor had he raised his voice to her. We
conclude based on that evidence that “the force employed by defendant
. . . far exceeded that which was necessary to defend [herself]”
(People v Cruickshank, 277 AD2d 1043, 1043, lv denied 96 NY2d 799; see
People v Marzug, 280 AD2d 974, 974, lv denied 96 NY2d 904).

     Contrary to defendant’s further contention, the court properly
denied her request to charge criminally negligent homicide as a lesser
included offense inasmuch as there was no reasonable view of the
evidence, viewed in the light most favorable to defendant, “that
defendant merely failed to perceive the risk of death that would
result from defendant’s use of a knife against the victim” (People v
Carter, 283 AD2d 371, 371; see People v Randolph, 81 NY2d 868, 869).
Defendant’s contention that the court erred in handling a note
received from a juror during the trial is not preserved for our review
(see generally People v Nealon, 26 NY3d 152, ___; People v Starling,
85 NY2d 509, 516), and we decline to exercise our power to review it
as a matter of discretion in the interest of justice (see CPL 470.15
[6] [a]). Finally, the sentence is not unduly harsh or severe.




Entered:   December 23, 2015                    Frances E. Cafarell
                                                Clerk of the Court
