                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: January 19, 2017                    107581
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                      MEMORANDUM AND ORDER

DOUGLAS R. EVERY,
                    Appellant.
________________________________


Calendar Date:   November 14, 2016

Before:   McCarthy, J.P., Garry, Rose, Mulvey and Aarons, JJ.

                              __________


     William T. Easton, Rochester, for appellant.

     Kirk O. Martin, District Attorney, Owego, for respondent.

                              __________


Garry, J.

      Appeal from a judgment of the County Court of Tioga County
(Keene, J.), rendered January 30, 2015, upon a verdict convicting
defendant of the crime of manslaughter in the first degree.

      In October 2013, defendant caused the victim's death by
stabbing him in the chest with a knife. The stabbing occurred
in a home located in the Town of Tioga, Tioga County, owned by
defendant and shared by defendant, the victim, and a third man
named James Atwell. Defendant was charged with murder in the
second degree and tampering with physical evidence. The jury
acquitted defendant of the charged crimes, but convicted him of
manslaughter in the first degree as a lesser included offense of
murder in the second degree. County Court denied defendant's CPL
330.30 motion to set aside the verdict and sentenced him to 17
years in prison, to be followed by five years of postrelease
                               -2-               107581

supervision.   Defendant appeals.

      The fact that defendant stabbed the victim was
uncontroverted. Immediately after the stabbing, defendant told
three people – the victim's mother, a 911 dispatcher and the
first law enforcement officer to arrive at the scene – that he
had stabbed the victim. The officer saw the victim's body on the
kitchen floor. There was blood on a kitchen counter and two
knives near the sink; the victim's DNA was later found on the
counter and on one of the knives. At trial, defendant raised the
defense of justification and further contended that the victim
had lunged toward him and impaled himself on the knife. Upon
appeal, defendant contends that his conviction was against the
weight of the evidence as the People failed to prove beyond a
reasonable doubt that he was not justified in using deadly force
or that he intended to cause serious physical injury.

      The People presented the eyewitness testimony of Atwell,
who was in his 80s and confined to a wheelchair. Atwell
testified that he and the victim, who was Atwell's caretaker, had
resided as tenants in defendant's home for several months before
the stabbing occurred. On that day, defendant returned home from
work at about 5:00 p.m. and began drinking alcohol. The victim,
who had spent the day working in the garage, came into the house
between 7:00 p.m. and 8:00 p.m. and began preparing dinner.
Atwell stated that he did not believe that the victim had been
drinking alcohol; however, testing later revealed that the
victim's blood alcohol content was .27. Almost immediately after
the victim entered the house, defendant and the victim began a
verbal disagreement, moving from room to room as they argued, and
eventually beginning to push and hit each other. Atwell claimed
that defendant initiated both the verbal and physical
altercations and that he never saw the victim throw defendant
around or push him to the floor.

      Shortly before 8:00 p.m., defendant left the house, at
which point the lights and electricity went off; Atwell stated
that he believed that defendant turned off the power. Five or 10
minutes later, defendant came back in, the power was turned on
and the argument resumed. Atwell testified that he saw the
victim walk from the laundry room into the adjoining kitchen,
                              -3-                107581

with defendant following him. In the kitchen, defendant grabbed
a knife from the sink area and stabbed the victim in the chest.
The victim immediately fell to the floor and did not respond when
defendant asked him to get up. Atwell stated that the victim did
not lunge toward defendant before the stabbing, that his arms
were by his sides and that he had no weapon or other objects in
his hands. Defendant called 911 and the victim's mother and then
went outside to wait for emergency personnel.

      In an interview with investigators later that night,
defendant offered an account that differed sharply from that of
Atwell. The investigators testified at trial, and a video
recording of the interview was admitted into evidence. Defendant
claimed that the victim had initiated the altercation, initially
by arguing verbally with defendant about various subjects.
According to defendant, the victim then "went off," threw
defendant around several rooms, onto the floor and against
furniture, and tipped over chairs. Defendant left the residence
to summon assistance and made several attempts to call 911, but
none of the calls went through because the electricity had been
turned off – by the victim, according to defendant – which
prevented defendant's cell phone signal booster from operating.
Subsequent inspection of defendant's cell phone revealed that
several incomplete calls were commenced during the pertinent time
period; the first three digits of the main line for 911 dispatch
were dialed three times, and one attempted call was made to a
friend of defendant.1

      Defendant told the officers that he was not fearful of the
victim when he went back into the residence, and he did not claim
that the victim had a weapon or threatened to use one. He said
that the victim continued to yell at him and then "came at him,"
at which point defendant picked up the knife from a kitchen
counter to defend himself. He said that he backed away into the
adjoining laundry room, holding the knife and telling the victim
to leave him alone; the victim followed him, allegedly saying "go


    1
        The testimony established that the main line for 911
dispatch is 687-1010; the phone revealed that "687" had been
dialed three times.
                              -4-                107581

ahead" or "go for it," and, in the laundry room, lunged or ran
toward defendant and impaled himself on the knife. Defendant
pulled out the knife, and the victim took several steps into the
kitchen, where he collapsed.

      The first law enforcement officer responding to the scene
had observed that the victim had no weapons or other objects in
his hands or near where his body lay on the floor. Despite
defendant's account of a violent struggle, the investigators
testified that defendant's hair and clothing were not disarranged
and that he had no visible bruises or injuries other than an
abrasion over one eye and a hangnail on his finger. Further, an
officer who responded to defendant's residence after the stabbing
testified that the house was neat, with no tipped-over furniture
or signs of a struggle. Defendant told the investigators that he
had made many previous calls to law enforcement to report the
victim's abusive behavior toward him, but the evidence
established that only two of 18 calls that defendant had placed
to police since 2004 involved the victim. In one call, defendant
had complained that the victim had flipped over a table, and, in
the other, that he did not participate in housework.

      James Terzian, a pathologist, testified that he performed
an autopsy and determined that the victim had died as a result of
blood loss caused by a single stab wound to the chest that was
approximately 4½ inches deep and reached the right ventricle of
his heart. Terzian opined that it would not have been possible
for the victim to have caused this wound by impaling himself
unless the knife was placed against a wall or other immovable
object that prevented it from moving backwards, and that a person
holding a knife would not constitute such an immovable object.
He further stated that it would have been possible for the victim
to move around for 20 or 30 seconds before the wound caused his
death. The administrative coroner for Tioga County, who was
called to the scene and was present at the autopsy, testified
that the victim's body was lying in the kitchen with no weapons
nearby. He stated that the victim's injuries were a stab wound
in the chest and a finger abrasion, and that the victim's heart
was cut in half.
                              -5-                107581

      Several witnesses testified on defendant's behalf that they
were familiar with the victim's reputation in the community and
that he had a tendency to become argumentative and verbally
abusive when he had been drinking alcohol. Defendant's expert
forensic pathologist testified that the victim had a very high
blood alcohol level that would have impaired his judgment and
coordination and interfered with his capacity to feel pain.
Contradicting Terzian's testimony, he opined that it would have
been possible for the victim to cause the chest wound by lunging
forward against a knife held by defendant; however, he agreed
with Terzian that the victim would have been able to move around
or walk for 20 or 30 seconds before he collapsed. Defendant's
family physician testified that he treated defendant after the
stabbing for injuries to his wrist, hand and shoulder that
defendant claimed were sustained during that night's altercation.
Thomas Lazzaro, a forensic psychologist, testified that defendant
suffered from an anxiety disorder and might also suffer from
early-onset dementia that made him highly sensitive to events
that threatened his safety and gave him a high tendency to
misperceive events and become frightened, anxious and agitated.2
Based upon these conditions and the altercation's circumstances,
Lazzaro opined that defendant could have believed that the use of
deadly physical force was necessary to protect himself.

      A defendant is justified in using deadly physical force
when he or she reasonably believes, as pertinent here, "that such
force is necessary . . . to protect against the use or imminent
use of deadly physical force" (People v Fisher, 89 AD3d 1135,
1137 [2011], lv denied 18 NY3d 883 [2012]; accord People v
Gibson, 141 AD3d 1009, 1010 [2016]; see Penal Law 35.15 [1],
[2]). "[I]t was the People's burden to disprove [the
justification defense] by 'demonstrat[ing] beyond a reasonable
doubt that defendant did not believe deadly force was necessary
or that a reasonable person in the same situation would not have
perceived that deadly force was necessary'" (People v Gibson, 141


    2
        On cross-examination, Lazzaro qualified his testimony
regarding early-onset dementia, acknowledging that he had not
conducted a medical evaluation and could not testify with a
reasonable degree of psychological certainty to this effect.
                              -6-                107581

AD3d at 1010 [internal ellipsis omitted], quoting People v Umali,
10 NY3d 417, 425 [2008], cert denied 556 US 1110 [2009]).
Defendant challenges the credibility of Atwell's testimony that
defendant initiated the confrontation, noting that he was
impeached on cross-examination on several significant issues,
including the extent to which he was able to see the stabbing.
However, these discrepancies raised credibility issues for the
jury to resolve (see People v Green, 121 AD3d 1294, 1295 [2014],
lv denied 25 NY3d 1164 [2015]; People v Vanderhorst, 117 AD3d
1197, 1199-1200 [2014], lv denied 24 NY3d 1089 [2014]).
Critically, it was undisputed that the victim was unarmed and
that defendant was the first to escalate the confrontation by
using a deadly weapon. On this basis, the jury could reasonably
have concluded that "the predicate for the use of deadly force[,
that is,] the reasonable belief that one is under deadly attack[,
was] lacking" (People v Jones, 3 NY3d 491, 496 [2004]). In view
of this deficiency, together with defendant's acknowledgment that
he was not afraid of the victim and Atwell's testimony that he
saw defendant stab the victim while the victim's arms were at his
sides, we do not find that the jury's rejection of the
justification defense was against the weight of the evidence (see
People v Gibson, 141 AD3d at 1010-1011; People v Harden, 134 AD3d
1160, 1163-1164 [2015], lv denied 27 NY3d 1133 [2016]; People v
Lowin, 36 AD3d 1153, 1155-1156 [2007], lv denied 9 NY3d 847
[2007]).

      As for defendant's claim that the People failed to prove
that he intended to cause serious physical injury, this "was a
factual question that the jury could infer from his conduct and
the surrounding circumstances," including Atwell's account of
defendant's actions, the severity of the wound, the expert
testimony that it could not have been inflicted by the victim
impaling himself on the blade, and defendant's multiple
statements that he stabbed the victim (People v Harden, 134 AD3d
at 1163; see People v Gibson, 141 AD3d at 1012; People v
Hamilton, 133 AD3d 1090, 1091-1092 [2015]; People v Zindle, 48
AD3d 971, 973 [2008], lv denied 10 NY3d 846 [2008]).
Accordingly, we find that the verdict was not against the weight
of the evidence.
                              -7-                107581

      Defendant next contends that County Court erred in
precluding certain testimony regarding the victim's prior threats
of violence, threatening conduct and reputation for violence, and
that this resulted in a denial of his constitutional right to
present a defense. He further contends that his counsel's
failure to preserve these errors for review by asserting a
constitutional right to introduce the excluded evidence
constituted a deprivation of the effective assistance of counsel
(see People v Angelo, 88 NY2d 217, 222 [1996]; People v
Simonetta, 94 AD3d 1242, 1245 n 2 [2012], lv denied 19 NY3d 1029
[2012]).

      First, in this regard, defendant challenges the exclusion
of potential testimony that the victim had threatened a witness
with a hammer and a nail gun. A defendant charged with homicide
may "introduce evidence of the victim's prior specific acts of
violence of which the defendant had knowledge, provided that the
acts sought to be established are reasonably related to the crime
of which the defendant stands charged" (People v Miller, 39 NY2d
543, 551 [1976]). Here, defendant did not have specific
knowledge of the prior incidents, but knew only that the victim
had threatened the witness with unspecified "instruments";
moreover, because there was no evidence that the victim
threatened defendant or had anything at all in his hands at the
time of the stabbing, the prior conduct "was not reasonably
related in . . . quality to the present crime[]" (People v
Sawyer, 274 AD2d 603, 607 [2000], affd 96 NY2d 815 [2001]).

      Next, County Court precluded testimony that defendant had
called a friend approximately two months before the incident and
told her that he had locked himself in the bedroom due to the
victim's behavior; the friend would have testified that she could
hear the victim shouting in the background and later drove to the
house to pick up defendant. Although a defendant may introduce
evidence of threats made against him or her by a victim whether
or not the threats were communicated to the defendant, there was
no evidence here that the victim made any threats during the
prior encounter (see People v Petty, 7 NY3d 277, 285 [2006];
People v Miller, 39 NY2d at 549). Moreover, the precluded
testimony would have been cumulative to other testimony regarding
the victim's reputation for being verbally abusive when he drank
                              -8-                107581

alcohol.

      Finally, defendant argues that County Court improperly
precluded testimony about the victim's reputation for violence.
However, the proposed testimony was that of a witness who would
have said that the victim pushed him around on a single occasion,
and there was no evidence that defendant was aware of this
incident (see People v Fore, 33 AD3d 932, 933 [2006], lv denied 7
NY3d 925 [2006]). A defendant is not deprived of meaningful
representation when his or her counsel fails to raise a claim
"that has little or no chance of success" (People v Stultz, 2
NY3d 277, 287 [2004]; see People v Desmond, 118 AD3d 1131, 1135-
1136 [2014], lv denied 24 NY3d 1002 [2014]). For the reasons set
forth above, had the challenged issues been preserved for our
review, we would have found no error.

      Defendant asserts a related claim that he was deprived of a
fair trial by prosecutorial misconduct, and deprived of
meaningful representation by his counsel's failure to object to
the alleged improprieties. As with the evidentiary challenges, a
failure to raise issues that lack merit does not constitute
ineffective assistance; similarly, had these challenges been
preserved, we would have found no impropriety. First, defendant
contends that the People improperly suggested that defendant had
a duty to retreat in his own home by eliciting testimony from the
interviewing officers to the effect that defendant admitted that
he could have avoided the confrontation by going to a nearby
relative's home, putting down the knife or leaving the house.
This testimony was, however, highly probative as to whether
defendant reasonably believed that he was facing imminent danger
of deadly physical force, and whether the nature and extent of
the force used was reasonable under the circumstances. "The
evidence of alternatives was admissible since it was relevant to
the reasonableness of defendant's perceptions and not to the
question of whether defendant was obligated to retreat" (People v
Emick, 103 AD2d 643, 658 [1984]). For similar reasons, we do not
find the People's remarks during summation regarding the
alternatives available to defendant to be improper. Further, the
remarks during summation on Atwell's credibility were fair
responses to suggestions in the defense's summation that his
testimony was inconsistent and incredible, and did not constitute
                              -9-                107581

improper vouching (see People v Wlasiuk, 136 AD3d 1101, 1103
[2016], lv denied 27 NY3d 1009 [2016]). If defendant's
challenges had been preserved, we would have found that the few
remaining challenged remarks, even if better left unsaid, "did
not rise to the flagrant and pervasive level of misconduct which
would deprive defendant of due process or a fair trial" (People v
Heiserman, 127 AD3d 1422, 1424 [2015] [internal quotation marks
and citation omitted]).

      We reject the contention that defendant received
ineffective assistance when his counsel failed to object to the
portion of County Court's justification instruction that
addressed the definition of a "dwelling." During the charge
conference, the court advised counsel that it intended to
instruct the jury on the justification defense, and the court
gave defense counsel the choice whether to include a paragraph in
the pattern instruction that addresses a defendant's duty to
retreat in his or her home, or to entirely avoid references to
the duty to retreat. Defense counsel made the strategic choice
to include this language, and, consistent with this
determination, the court charged the jury that defendant was not
required to retreat if he was in his dwelling and was not the
initial aggressor. Defendant now contends that the court erred
by including a portion of the pattern instruction stating that
"whether a particular location is part of a [d]efendant's
dwelling depends on the extent to which the [d]efendant and
persons actually sharing living quarters with the [d]efendant
exercise[] exclusive possession and control over the area in
question." Defendant contends that this language did not apply
in light of the shared residence and that, since the crime took
place in a shared area of defendant's home, the language may have
confused the jury and led it to conclude, incorrectly, that
defendant had a duty to retreat from the confrontation.

      As defendant's counsel raised no objection to the inclusion
of the challenged language, this claim is unpreserved (see CPL
470.05 [2]; People v Green, 119 AD3d 23, 30 [2014], lv denied 23
NY3d 1062 [2014]). However, if counsel had preserved the claimed
error, we would not have disturbed the verdict. Reversal on the
basis of a confusing jury instruction "is appropriate – even if
the standard criminal jury instruction is given – when the
                              -10-               107581

charge, read as a whole against the background of the evidence
produced at trial, likely confused the jury regarding the correct
rules to be applied in arriving at a decision" (People v Walker,
26 NY3d 170, 174-175 [2015] [internal quotation marks, ellipses
and citations omitted]). We find no such likelihood of confusion
here. We agree that the parenthetical language was not
applicable to defendant's shared residence (see People v Jones, 3
NY3d at 495; People v Hernandez, 98 NY2d 175, 182-183 [2002]),
and thus should not have been included. Nevertheless, all of the
trial testimony unequivocally described the residence where the
crime occurred as defendant's home, and there was no suggestion
at any time in the testimony or arguments that the shared use of
the kitchen by defendant and his tenants altered that fact or
gave rise to any duty to retreat. As previously noted, the
evidence and arguments pertaining to alternatives available to
defendant other than stabbing the victim were addressed to
whether defendant was the original aggressor and whether his
actions and perceptions were reasonable; the record demonstrates
that no argument was made at any time that he had a duty to
retreat in his own dwelling. The evidence disproving the
justification defense – in particular, the undisputed proof that
the victim never had or threatened to use a weapon – was
overwhelming, and we find "no reasonable possibility that the
verdict would have been different had the charge been correctly
given" (People v Petty, 7 NY3d at 286; see generally People v
Crimmins, 36 NY2d 230, 241-242 [1975]). Counsel's failure to
object to this harmless error, without more, "was not so serious
as to compromise defendant's right to a fair trial" and did not
constitute ineffective assistance (People v Gunney, 13 AD3d 980,
983 [2004], lv denied 5 NY3d 789 [2005]; accord People v
Fauntleroy, 108 AD3d 885, 887 [2013], lv denied 21 NY3d 1073
[2013]).

      We find no merit in defendant's contention that he received
ineffective assistance when his counsel failed to object to
medical testimony describing the victim's death as a "homicide."
It is well established that "[s]uch characterization improperly
invade[s] the province of the jury" (People v Odell, 26 AD3d 527,
529 [2006], lv denied 7 NY3d 760 [2006]; accord People v Heath,
49 AD3d 970, 973 [2008], lv denied 10 NY3d 959 [2008]). Contrary
to defendant's contention, however, counsel did promptly object
                                 -11-               107581

to the coroner's testimony that the victim's death was ruled a
homicide, and this objection was sustained.3 Counsel did not
object to Terzian's testimony that "[t]he manner of death, in
[his] opinion, was homicide." However, Terzian immediately
qualified this testimony by stating that this was his medical
opinion; he further explained the meaning of the term "manner of
death" and distinguished it from the cause or mechanism of death.
In view of these qualifications, "if we were to review this error
. . ., we would find it to be harmless" (People v Odell, 26 AD3d
at 529). Despite counsel's failure to object to two harmless
errors, he pursued a cogent trial strategy of challenging the
credibility of the only eyewitness, made appropriate motions,
vigorously cross-examined the People's witnesses and advanced
reasonable defenses in arguing that the death was justified or,
in the alternative, caused by the victim's own actions.
Considering the evidence as a whole, we find that defendant
received meaningful representation (see   People v Blake, 24 NY3d
78, 81-82 [2014]; People v Ramos, 133 AD3d 904, 909 [2015], lvs
denied 26 NY3d 1143, 1149 [2016]).

      Finally, defendant contends that his sentence is harsh and
excessive. We note that the sentence was eight years less than
defendant could have received. In view of the violent nature of
his crime and his failure to express remorse, we find no abuse of
discretion or extraordinary circumstances warranting modification
in the interest of justice (see People v Hartman, 86 AD3d 711,
713 [2011], lv denied 18 NY3d 859 [2011]).

         McCarthy, J.P., Rose and Mulvey, JJ., concur.



Aarons, J. (dissenting).

      While I agree that the verdict was not against the weight
of the evidence, in my view, defendant received the ineffective


     3
        The stated ground for counsel's objection was that only a
physician can state a cause of death with reasonable medical
certainty.
                              -12-               107581

assistance of counsel when defense counsel's cumulative errors
essentially nullified defendant's justification defense and
removed the focus of the case away from defendant's alleged
justified acts and towards a nonexistent duty to retreat.
Accordingly, I respectfully dissent.

      Defendant's defense centered on the theory that he was
justified in stabbing the victim after their altercation. James
Atwell, who resided in defendant's home along with the victim,
testified that he did not see the victim act aggressively towards
defendant. However, defendant, who did not testify at trial,
provided a contrasting version of the events at issue through his
oral statements given to the police investigators after the
stabbing incident. Prior to the stabbing, defendant and the
victim were involved in a verbal, profanity-laced altercation in
defendant's home. This altercation escalated with the victim
physically assaulting defendant and throwing him to the ground
and against the fireplace and wood stove. A chair fell down but
defendant explained that he subsequently picked it up because he
did not like the room to be messy. Defendant went outside so
that he could call 911, which he had done in the past based upon
the victim's prior behavior. Defendant's calls, however, did not
go through because the victim turned off the power from the
inside of the house and prevented defendant's cell phone signal
booster from operating.

      When defendant subsequently returned inside his home, he
initially was not fearful of the victim. The victim, however,
continued to scream at defendant. They resumed their altercation
and the victim "came at [defendant]." Defendant thus grabbed a
knife from the kitchen counter out of the need to protect himself
and backed away into the laundry room. Defendant told the victim
to stay away from him, but the victim refused. Even though the
victim was unarmed, the victim "challenged him," "egg[ed] him on
after he had the knife in his hand" and told him to "go for it."
The victim then lunged at defendant and impaled himself on the
knife that defendant was holding. As a consequence of their
altercation, defendant complained of bruising and had an abrasion
above his eye and a hangnail on his finger.
                              -13-               107581

      James Terzian, a pathologist who performed the autopsy of
the victim, testified that the victim had some bruises on the
knuckles of his right hand and a small laceration on his left
middle finger. Terzian also testified that the toxicology report
revealed marihuana in the victim's body and that the victim had a
blood alcohol level of .27.

      Defendant offered the expert testimony of Thomas Lazzaro, a
forensic psychologist, who testified that defendant suffered from
an anxiety disorder that made him "hyper-vigilant and very aware
of any circumstances that might threaten him." Lazzaro also
opined, within a reasonable degree of psychological certainty,
that it was reasonable for defendant to believe that he had to
defend himself against serious physical injury. More critically,
defendant's expert forensic pathologist testified that it was
possible for the victim to have impaled himself on the knife held
by defendant and that the victim's wound was "consistent with a
defensive wound."

      In my view and contrary to the majority's position, the
evidence disproving the justification defense was not
overwhelming inasmuch as the jury could have reasonably believed
that defendant was justified in using deadly force to protect
himself given that defendant had called the police in the past
regarding the victim's behavior, defendant and the victim had a
physical and verbal altercation resulting in an abrasion above
defendant's eye and an injury to his finger, defendant felt the
need to grab a knife to protect himself from the victim who
continued to "come at him" and defendant's experts concluded that
it was reasonable for defendant to believe that he had to defend
himself from the victim and that the victim could have impaled
himself on the knife. Indeed, these facts are in marked contrast
to the events described by Atwell, the victim's 86-year-old
cousin who was sitting in a wheelchair and admittedly could not
see into the laundry room where the stabbing allegedly took
place.

      Because the justification defense was crucial to defendant,
evidence of whether defendant had the option to retreat from his
home should have never been brought to the jury's attention
inasmuch as defendant had no such duty to retreat (see People v
                              -14-               107581

Jones, 3 NY3d 491, 496 [2004]; People v Ward, 162 AD2d 566, 567
[1990]). Defense counsel, however, allowed such evidence to be
admitted at trial and argued by the People during opening and
closing statements without any restraints or limiting
instructions. As such, defense counsel's inaction let the
justification defense slip away before the first witness even
testified. Based upon such inaction, in my view, defendant was
deprived of meaningful representation inasmuch as "[defense
counsel's] assistance was [not] consistent with [that] of a
reasonably competent attorney" (People v Thiel, 134 AD3d 1237,
1240 [2015] [internal quotation marks and citation omitted], lv
denied 27 NY3d 1156 [2016]), and the record reveals "the absence
of strategic or other legitimate explanations" for his deficient
conduct (People v Caban, 5 NY3d 143, 152 [2005]
[internal quotation marks and citation omitted]).

      First, as defense counsel knew that defendant spoke with
the police investigators after the stabbing incident at issue and
that he was questioned as to whether he could have retreated from
his home, no legitimate strategy can be gleaned by defense
counsel's failure to request that portions of defendant's oral
statements given to the police investigators be redacted to
exclude any statements related to whether defendant should have
retreated from his home, or, at the very least, that a limiting
instruction be given with respect to such statements. During
defendant's interview, the police investigators repeatedly
inquired about defendant's decision to reenter the house, when he
could have walked down the road to his father's or neighbor's
house. The investigator questioned defendant at length about
various scenarios involving defendant's ability to retreat from,
or remain outside, his home. The investigator further commented
to defendant that it did not make sense to him that defendant
returned inside the house given that he could have retreated.

      Notwithstanding the prejudicial nature of these statements
and comments, defense counsel made no pretrial attempt to exclude
them and likewise failed to seek a limiting instruction with
respect to them (see People v Dove, 287 AD2d 806, 807 [2001]).
The voluntariness of defendant's statements to the police
investigators does not prevent defense counsel from seeking to
redact prejudicial information therein (see e.g. People v
                              -15-               107581

Letendre, 247 AD2d 796, 796-797 [1998]) and, therefore, in my
view, no reasonable attorney could have thought that such a
preclusion motion would not have been worth making (see People v
Ramsey, 134 AD3d 1170, 1172 [2015]; People v Langlois, 265 AD2d
683, 684 [1999]). Here, as soon as the jury heard the interview
wherein the investigators preyed on defendant's choice not to
retreat, the idea that defendant had the option to leave his home
was implanted in the juror's minds. With the jury's attention
tethered to the notion that defendant should have retreated –
when defendant had no obligation to do so because he was in his
home when the stabbing occurred – the jury was free to disregard
any of the evidence demonstrating that defendant was justified in
stabbing the victim. When the central component of a defense
involves portraying that a defendant was justified in stabbing a
victim, detracting away from such defense was "not a misguided
though reasonably plausible strategy decision but clear
ineffectiveness of counsel" (People v Bell, 48 NY2d 933, 935
[1979]; People v Brugman, 111 AD2d 562, 563 [1985]).

      Defense counsel also allowed the People to solicit
testimony, and argue on summation, that defendant should have
retreated from his own home, all once again without any objection
or a request for a limiting instruction (see People v Ramsaran,
141 AD3d 865, 871 [2016], lv granted 28 NY3d 1075 [2016]). Even
though the jury had already heard about defendant's chance to
retreat based upon defendant's interview with the police
investigators, the People specifically asked, during the direct
examination of one of the investigators, "Did [defendant] say
anything about whether he had the opportunity to retreat?" The
investigator responded that "[defendant] said he could have
retreated. He said he could have gone to a residence down the
road, he could have gone back outside. And he also said that he
wished he had done that." Another investigator was similarly
questioned on this topic of defendant's ability to retreat and
testified that defendant mentioned that he had the opportunity to
leave his home before the stabbing incident. Indeed, the People
expounded on this point in their summation by arguing that one of
defendant's options was to leave and go down the road to his
father's house as opposed to reentering his home. Such evidence
of defendant's ability to retreat may have been admissible for
other purposes, as the majority notes, but it was also
                              -16-               107581

significantly prejudicial to defendant. As such, it was even
more imperative that defense counsel take the necessary steps to
limit such prejudice. No steps, however, were taken by defense
counsel (see People v Smith, 140 AD3d 1403, 1404 [2016]; People v
Ramsey, 134 AD3d at 1172; People v Fleegle, 295 AD2d 760, 762-763
[2002]; People v Langlois, 265 AD2d at 685).

      Furthermore, defense counsel never objected to County
Court's erroneous qualification of the home exception to the duty
to retreat charge. During the charge conference, County Court
stated that it could omit any reference as to defendant's duty to
retreat or have the jury instructed about the duty to retreat
with the home exception. With the issue of the duty to retreat
having permeated the trial, defense counsel was essentially
compelled to request the latter. As such, after charging the
jury on defendant's duty to retreat and the home exception
thereto, County Court qualified the home exception by instructing
the jury that "[t]he determination of whether a particular
location is part of a [d]efendant's dwelling depends on the
extent to which the [d]efendant and persons actually sharing
living quarters with the [d]efendant exercise[] exclusive
possession and control over the area in question." The majority
acknowledges that County Court should not have included this
language, but views it as harmless error. I disagree. Defendant
was entitled to have the jury charged with the correct standard
of law (see People v Medina, 18 NY3d 98, 104 [2011]). By
instructing the jury that it had to determine the extent over
which defendant exercised control and possession of the area in
question, County Court gave the misleading impression that
defendant may have had the duty to retreat from his own home.
County Court's instruction invited the jury to make a factual
determination as to whether the area where the stabbing occurred
was part of defendant's home when, as a matter of law, it was not
required to do so (cf. People v Santarelli, 99 AD2d 594, 594
[1984]). In other words, County Court's instruction permitted
the jury to impose upon defendant a duty to retreat when, as
discussed, none existed at all (see People v Emick, 103 AD2d 643,
661 [1984]; cf. People v Johns, 122 AD2d 74, 76 [1986]).

      While the majority concludes that all of the trial
testimony demonstrated that the stabbing took place in
                              -17-               107581

defendant's home, in my view, this does not render the error
harmless. It does not change the fact that County Court gave a
charge that was wholly inapplicable to the facts and unnecessary
as a matter of law. Moreover, County Court compounded the error
by reinstructing the jury, upon its request, with the same
inapplicable qualification of the home exception to the duty to
retreat charge (see People v McTiernan, 119 AD3d 465, 468 [2014];
People v Primus, 178 AD2d 565, 566 [1991]). Because the
justification defense was critical to defendant (see People v
Phillips, 32 AD3d 1343, 1344 [2006]), and inasmuch as the
evidence disproving the justification defense was sharply
contested at trial and not overwhelming (see People v Powell, 101
AD3d 1369, 1373 [2012], lv denied 21 NY3d 1019 [2013]; compare
People v Jones, 3 NY3d at 497), County Court's jury charge, in my
view, was not harmless error (see generally People v Walker, 26
NY3d 170, 174-175 [2015]) and required an objection.

      Finally, defense counsel raised no objection when Terzian
testified that the victim's death was a homicide. An objection
to this testimony would not have been without merit inasmuch as
"[s]uch characterization improperly invaded the province of the
jury" (People v Odell, 26 AD3d 527, 529 [2006], lv denied 7 NY3d
760 [2006]; see People v Heath, 49 AD3d 970, 973 [2008], lv
denied 10 NY3d 959 [2008]). Nor do I view the error in Terzian
expressing this opinion as harmless, because, as discussed, the
evidence disproving the justification defense was not
overwhelming.

      In sum, defense counsel's errors – failing to seek
exclusion or request a limiting instruction regarding the
offending portions of defendant's statements to the police
investigators concerning defendant's ability to retreat, failing
to object or request a limiting instruction to the People's
questions and summation pertaining to defendant's duty to
retreat, failing to object to County Court's improper jury charge
regarding the duty to retreat and the home exception thereto and
failing to object to Terzian's testimony that the victim's death
was a homicide – would not rise to the level of ineffective
assistance of counsel when viewed in isolation. Cumulatively,
however, they deprived defendant of meaningful representation in
this case where the evidence disproving the justification defense
                              -18-                 107581

was not overwhelming (see People v Fisher, 18 NY3d 964, 967
[2012]; People v Bush, 107 AD3d 1302, 1303 [2013]; People v
Lindo, 167 AD2d 558, 559 [1990]). For these reasons, I would
reverse the judgment of conviction and remit the matter for a new
trial.



     ORDERED that the judgment is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
