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

7
KA 08-01206
PRESENT: SCUDDER, P.J., SMITH, CENTRA, CARNI, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CHRISTOPHER E. WALKER, DEFENDANT-APPELLANT.


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

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Joseph D. Valentino, J.), rendered April 4, 2008. 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 upon a jury
verdict of manslaughter in the first degree (Penal Law § 125.20 [1]),
defendant contends that Supreme Court’s justification instruction to
the jury was improper with respect to the “initial aggressor” language
used therein. Initially, we reject the People’s contention that
defendant failed to preserve his contention for our review.
“Regardless of whether defendant’s objection to the testimony was
sufficiently explicit, the trial court, in response to defendant’s
protest, ‘expressly decided the question raised on appeal,’ ” and
defendant’s contention thus is preserved for our review (People v
Smith, ___ NY3d ___, ___ [Dec. 17, 2013], quoting CPL 470.05 [2]; see
People v Eduardo, 11 NY3d 484, 493). We agree with the People,
however, that defendant’s contention lacks merit. It is well settled
that, upon a defendant’s request, “a court must charge the jury on any
claimed defense that is supported by a reasonable view of the
evidence[,] which the court must assess in the light most favorable to
the defendant” (People v Taylor, 80 NY2d 1, 12). The use of the
“initial aggressor” language is warranted where, as here, there is an
issue of fact whether defendant was the first person to use deadly
physical force in the encounter (see People v McWilliams, 48 AD3d
1266, 1267, lv denied 10 NY3d 961; People v Daniel, 35 AD3d 877, 878,
lv denied 8 NY3d 945). With that language, “the court’s justification
charge adequately conveyed to the jury that defendant could be
justified in the use of deadly physical force to defend himself [or
                                 -2-                             7
                                                         KA 08-01206

another] against deadly physical force initiated by” the victim
(McWilliams, 48 AD3d at 1267; see People v Humphrey, 109 AD3d 1173,
1174-1175). Furthermore, the court’s justification instruction,
viewed as a whole, properly stated “the material legal principles
applicable to the particular case, and, so far as practicable,
explain[ed] the application of the law to the facts” (CPL 300.10 [2];
see People v Drake, 7 NY3d 28, 33-34). Thus, “ ‘the jury, hearing the
whole charge, would gather from its language the correct rules [that]
should be applied in arriving at [a] decision’ ” (Drake, 7 NY3d at 34;
see People v Johnson, 103 AD3d 1226, 1226, lv denied 21 NY3d 944).

     We reject defendant’s further contention that, in response to a
jury question, the court erred in providing an expanded definition of
intent with respect to, inter alia, the original charge of murder in
the second degree (Penal Law § 125.25 [1]) and the manslaughter charge
of which he was convicted. When presented with a jury question, the
court is obligated to provide a meaningful response pursuant to CPL
310.30 (see People v Kadarko, 14 NY3d 426, 429), and the court did so
here. Defendant’s contention that the court’s instruction unfairly
highlighted evidence unfavorable to his defense is not supported by
the record. Moreover, the court did not by its supplemental
instruction change the premise upon which defendant’s summation was
based, inasmuch as defendant’s intent was at issue throughout the
trial (cf. People v Greene, 75 NY2d 875, 876-877). Defendant thus
“was not denied an effective summation by reason of the court’s charge
on the issue of” defendant’s intent (People v Dewindt, 156 AD2d 706,
708, lv denied 76 NY2d 733).

     Defendant further contends that the verdict is against the weight
of the evidence. Based upon our independent review of the evidence
pursuant to CPL 470.15 (5), and viewing the evidence in light of the
elements of the crime of manslaughter in the first degree as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we are
satisfied that the verdict is not contrary to the weight of the
evidence (see People v Bleakley, 69 NY2d 490, 495).

     The sentence is not unduly harsh or severe. We have considered
defendant’s remaining contentions and conclude that they are without
merit.




Entered:   February 7, 2014                     Frances E. Cafarell
                                                Clerk of the Court
