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

795
KA 10-00667
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

DAVID MCCALLUM, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (VINCENT F. GUGINO OF
COUNSEL), FOR DEFENDANT-APPELLANT.

DAVID MCCALLUM, DEFENDANT-APPELLANT PRO SE.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (MICHAEL J. HILLERY
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered February 11, 2010. The judgment convicted
defendant, upon a jury verdict, of manslaughter in the first degree.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of manslaughter in the first degree (Penal Law § 125.20
[1]), defendant contends in his main and pro se supplemental briefs
that the evidence is legally insufficient to support his conviction
because the People failed to meet their burden of disproving his
justification defense beyond a reasonable doubt. We reject that
contention. The evidence at trial established that defendant
administered a fatal beating to the victim without justification.
Defendant’s statement to the police that he struck the victim only
once with his fist was contradicted by the Medical Examiner’s
testimony that the victim died as the result of “multiple” blunt force
injuries. In addition, defendant admitted that the victim did not
strike or harm him. Although defendant told the police that the
victim threatened him with a hammer and screwdriver, no such tools
were found at the crime scene and there is no evidence that the victim
was otherwise armed. We also note that defendant, who was 6’3” tall
and weighed approximately 200 pounds, was considerably larger than the
victim. Viewing the evidence in the light most favorable to the
People (see People v Contes, 60 NY2d 620, 621), we conclude that the
evidence is legally sufficient to support defendant’s conviction
insofar as it established “that a reasonable person in the same
situation [as defendant] would not have perceived that deadly force
was necessary” (People v Umali, 10 NY3d 417, 425, rearg denied 11 NY3d
744, cert denied ___ US ___, 129 S Ct 1595; cf. People v McClellan, 49
                                 -2-                           795
                                                         KA 10-00667

AD3d 1203, 1204, lv denied 11 NY3d 791). Contrary to defendant’s
further contention in his main brief, when viewing the evidence in
light of the elements of the crime as charged to the jury (see People
v Danielson, 9 NY3d 342, 349), we conclude that the jury’s rejection
of the justification defense is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495).

     Defendant’s remaining contentions are raised in his main brief
unless specified otherwise. Defendant’s contention that County
Court’s justification charge was improper because it differed from the
justification charge contained in the Criminal Jury Instructions lacks
merit. The court’s charge “accurately stated the applicable legal
principles” and thus was not erroneous (People v Horn, 217 AD2d 406,
406, lv denied 86 NY2d 843; see People v Coleman, 70 NY2d 817, 819).
In addition, the court properly refused to charge criminally negligent
homicide as a lesser included offense. Although the court charged the
lesser included offense of manslaughter in the second degree, the jury
convicted defendant of manslaughter in the first degree. Thus,
“defendant is foreclosed from challenging the court’s denial of his
request to charge the further lesser included offense[]” of criminally
negligent homicide (People v Williams, 273 AD2d 824, 826, lv denied 95
NY2d 893; see also People v Boettcher, 69 NY2d 174, 180).

     Defendant failed to preserve for our review his further
contention that the court erroneously dismissed a prospective juror
because he did not object to the prospective juror’s dismissal (see
CPL 470.05 [2]; People v Hopkins, 76 NY2d 872, 873), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). We reject
defendant’s contention that the court erred in allowing the People to
present evidence of a prior altercation between defendant and the
victim. Evidence regarding the altercation was “relevant . . . to
provide background information concerning the prior relationship
between defendant and the victim” and was relevant to the
determination whether defendant’s use of deadly force was justified
(People v Perez, 67 AD3d 1324, 1325, lv denied 13 NY3d 941).

     Contrary to defendant’s further contention, the verdict sheet did
not contain an improper annotation (see generally People v Damiano, 87
NY2d 477, 480). The notation on the verdict sheet that manslaughter
in the second degree was being submitted as a “lesser included
offense” of manslaughter in the first degree is neither “statutory
text” nor an “element[] of the crimes charged” (id.). Rather, that
language simply “distinguished” between manslaughter in the first
degree and the lesser included offense of manslaughter in the second
degree, which is permitted pursuant to CPL 310.20 (2) (see People v
Miller, 73 AD3d 1435, 1435, affd 18 NY3d 704).

     We further conclude that the sentence is not unduly harsh or
severe. Contrary to defendant’s related contention in his pro se
supplemental brief, the fact that the court imposed a more severe
sentence after trial than that offered during plea negotiations does
not demonstrate that defendant was punished for exercising his right
to a trial (see People v Taplin, 1 AD3d 1044, 1046, lv denied 1 NY3d
                                 -3-                           795
                                                         KA 10-00667

635).

     We reject defendant’s contention in his pro se supplemental brief
that the court erred in denying his request for a jury charge
regarding the justifiable use of physical force. Defendant’s
entitlement to such a charge “turn[s] on whether there [is] a
reasonable view of the evidence, viewed most favorably to defendant,
that he only used nondeadly force” (People v Quinones, 91 AD3d 445,
445, lv denied 198 NY3d 961). We conclude that, because of the
severity of the victim’s injuries, “there was no reasonable view [of
the evidence] that defendant only used nondeadly physical force, and
thus [there was] no jury issue . . . whether defendant used deadly
physical force” (id. at 446).

     We have examined defendant’s remaining contentions in his main
and pro se supplemental briefs and conclude that none requires
reversal or modification.




Entered:   June 15, 2012                        Frances E. Cafarell
                                                Clerk of the Court
