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

1351
KA 11-02443
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CALVIN K. JOHNSON, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (WILLIAM PIXLEY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

CALVIN K. JOHNSON, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Monroe County Court (Victoria M.
Argento, J.), rendered October 6, 2011. The judgment convicted
defendant, upon a jury verdict, of murder in the second degree,
criminal possession of a weapon in the second degree (two counts) and
criminal possession of a weapon in the third degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified as a matter of discretion in the interest of
justice by reducing the sentence imposed for murder in the second
degree to an indeterminate term of incarceration of 15 years to life
and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count each of murder in the second degree
(Penal Law § 125.25 [1]) and criminal possession of a weapon in the
third degree (§ 265.02 [1]), and two counts of criminal possession of
a weapon in the second degree (§ 265.03 [1] [b]; [3]). We reject
defendant’s contention that County Court erred in denying his request
to charge the defense of justification. “A trial court must charge
the factfinder on the defense of justification ‘whenever there is
evidence to support it’ . . . Viewing the record in the light most
favorable to the defendant, a court must determine whether any
reasonable view of the evidence would permit the factfinder to
conclude that the defendant’s conduct was justified. If such evidence
is in the record, the court must provide an instruction on the
defense” (People v Petty, 7 NY3d 277, 284; see People v Cox, 92 NY2d
1002, 1004; People v Hunt, 244 AD2d 956, 957, lv denied 91 NY2d 926).
Where deadly physical force is used, the evidence must establish that
the defendant reasonably believed that he was in imminent danger of
being subjected to deadly physical force, and that he had satisfied
                                 -2-                          1351
                                                         KA 11-02443

his duty to retreat, or was under no such duty (see People v Goetz, 68
NY2d 96, 106; see also Penal Law § 35.15 [2]). Here, we conclude that
there is no reasonable view of the evidence from which the factfinder
could have found that defendant’s actions were justified. It was
undisputed that defendant came out of his mother’s house and shot the
shirtless, unarmed victim three times as the victim stood with a group
of people outside the fence enclosing the front yard of the home.
During his video-recorded interview with the police, which was
received in evidence, defendant admitted that he never observed anyone
in the victim’s group using or about to use deadly physical force (see
People v Saenz, 27 AD3d 379, 380, lv denied 7 NY3d 762).

     We reject defendant’s further contention that the court erred in
denying his request to charge the defense of justification with
respect to criminal possession of a weapon in the second degree (Penal
Law § 265.03 [1] [b]). It is well settled that the defense of
justification does not apply to that crime (see People v Pons, 68 NY2d
264, 265; People v Almodovar, 62 NY2d 126, 129-130).

     We agree with defendant, however, that the sentence of an
indeterminate term of incarceration of 25 years to life for the murder
conviction is unduly harsh and severe under the circumstances of this
case. This Court “has broad, plenary power to modify a sentence that
is unduly harsh or severe under the circumstances, even though the
sentence may be within the permissible statutory range” (People v
Delgado, 80 NY2d 780, 783; see CPL 470.15 [6] [b]). That
“sentence-review power may be exercised, if the interest of justice
warrants, without deference to the sentencing court” (Delgado, 80 NY2d
at 783). As a result, we may “substitute our own discretion for that
of a trial court which has not abused its discretion in the imposition
of a sentence” (People v Suitte, 90 AD2d 80, 86; see People v Patel,
64 AD3d 1246, 1247). We conclude that a reduction in the sentence
imposed on the murder count is appropriate under the circumstances
presented here and, as a matter of discretion in the interest of
justice, we therefore modify the judgment by reducing the sentence
imposed on that count to an indeterminate term of incarceration of 15
years to life (see CPL 470.20 [6]).

     We have considered the contentions in defendant’s pro se
supplemental brief and conclude that none requires reversal or further
modification of the judgment.




Entered:   February 11, 2016                    Frances E. Cafarell
                                                Clerk of the Court
