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

1040
KA 13-01079
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

EZEIEKILE NAFI, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (BARBARA J. DAVIES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Erie County (Russell
P. Buscaglia, A.J.), rendered May 29, 2013. 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 §§ 20.00,
125.20 [1]) as a lesser included offense of murder in the second
degree (§§ 20.00, 125.25 [1]), defendant contends that the verdict is
against the weight of the evidence and that the evidence is legally
insufficient to support the conviction because the evidence at trial
was insufficient to establish either that he intended to cause the
victim serious physical injury or that he aided and abetted the
perpetrators who inflicted the fatal stab wounds. “Given defendant’s
failure to argue with particularity that the evidence was legally
insufficient to prove that he acted with the requisite mens rea,” we
conclude that defendant’s current challenge to the sufficiency of the
evidence concerning his mens rea has not been preserved for our review
(People v Carncross, 14 NY3d 319, 325; see People v Vanderhorst, 117
AD3d 1197, 1198, lv denied 24 NY3d 1089; see generally People v Gray,
86 NY2d 10, 19).

     In any event, we conclude that defendant’s challenges to the
weight and sufficiency of the evidence are without merit. “A person
is guilty of manslaughter in the first degree when . . . [w]ith intent
to cause serious physical injury to another person, he [or she] causes
the death of such person or of a third person” (Penal Law § 125.20
[1]). Thus, in order for defendant to be found guilty of manslaughter
in the first degree as an accomplice, the People had to establish
that, “when [defendant] aided [those] whose acts resulted in the death
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                                                         KA 13-01079

of a person, [he] did so with the intent to cause serious physical
injury to the victim” (People v Vasquez, 179 Misc 2d 854, 866, affd
298 AD2d 230, lv denied 100 NY2d 543; see People v Browne, 307 AD2d
645, 645-646, lv denied 1 NY3d 539).

     Addressing first the sufficiency of the evidence, we conclude
that, “[v]iewing the evidence in the light most favorable to the
People, and giving them the benefit of every reasonable inference, as
we must” (People v Bay, 67 NY2d 787, 788), the evidence is legally
sufficient to establish that defendant intended to cause serious
physical injury to the victim (see generally People v Bleakley, 69
NY2d 490, 495). Although the evidence established that the stab
wounds inflicted by defendant were not the fatal stab wounds, “[t]he
evidence that defendant stabbed the victim multiple times is legally
sufficient to establish that defendant intended to cause serious
physical injury to the victim” (People v Simpson, 35 AD3d 1182, 1182,
lv denied 8 NY3d 990; see People v Rivera, 23 NY3d 112, 124; People v
Collins, 43 AD3d 1338, 1338, lv denied 9 NY3d 1005; cf. People v
Stevens, 153 AD2d 768, 769, affd 76 NY2d 833).

     Defendant further contends that, by acquitting him of intentional
murder, the jury necessarily decided that he was not an accessory of
the other participants and was thus liable for only his conduct and
could not be guilty of manslaughter based on the actions of the other
perpetrators. We reject that contention. “Accessorial liability
requires only that defendant, acting with the mental culpability
required for the commission of the crime, intentionally aid another in
the conduct constituting the offense” (People v Chapman, 30 AD3d 1000,
1001, lv denied 7 NY3d 811 [internal quotation marks omitted]). Here,
the evidence established that defendant “intended to cause serious
physical injury to the victim and that death resulted” (People v
Lewis, 300 AD2d 827, 828, lv denied 99 NY2d 630; see People v
Rutledge, 70 AD3d 1368, 1369, lv denied 15 NY3d 777; see also People v
Monaco, 14 NY2d 43, 47). The fact that the jury acquitted defendant
of intentional murder establishes only that, when defendant aided
those whose acts resulted in the victim’s death, defendant did not do
so with the intent to cause death.

     For the same reasons, we conclude that the verdict is not against
the weight of the evidence (see Rutledge, 70 AD3d at 1369; Chapman, 30
AD3d at 1001; see generally Bleakley, 69 NY2d at 495).

     Contrary to defendant’s further contention, his rights to due
process and a fair trial, and his right of confrontation were not
violated when Supreme Court allowed a prosecution witness to testify
that defendant nodded in agreement to a statement made by a
nontestifying codefendant. Defendant’s nonverbal response was
admissible as an adoptive admission (see People v Campney, 94 NY2d
307, 311-312; see generally People v Lourido, 70 NY2d 428, 433), and
the court properly instructed the jury in accordance with Lourido that
the codefendant’s statements were being admitted solely to establish
defendant’s “reaction . . . to that statement . . . [and] not for the
truth of the statement” made by the codefendant (see Campney, 94 NY2d
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                                                         KA 13-01079

at 316-317).

     We agree with the People that the court properly allowed the same
prosecution witness to testify at trial that, when he observed police
officers near the scene of the homicide, he went to the crime scene
“looking for . . . [t]he body . . . To see if it was true . . . That
they had killed somebody.” Those statements were not offered for
their truth but, rather, “[were] properly admitted to explain [the
witness’s] presence at the scene, and to avoid speculation by the
jury” (People v Baez, 7 AD3d 633, 633; see generally People v Tosca,
98 NY2d 660, 661). Although defendant now contends that the court
erred in failing to issue limiting instructions to the jury, that
contention is not preserved for our review because “defendant failed
to request that the court instruct the jury as to the proper use of
that testimony” (People v Wisdom, 120 AD3d 724, 726, lv denied 24 NY3d
1048; see People v Martinez, 100 AD3d 537, 538, affd 22 NY3d 551;
People v Tucker, 291 AD2d 663, 665, lv denied 98 NY2d 703). Moreover,
“[a]ny error in the court’s failure to sua sponte issue a limiting
instruction was harmless. The evidence of the defendant’s guilt was
overwhelming and there was no significant probability that the
defendant would have been acquitted had the court given a limiting
instruction with respect to this evidence” (Wisdom, 120 AD3d at 726;
see generally People v Crimmins, 36 NY2d 230, 242). Based on the
foregoing, we further conclude that the admission of the testimony and
“the absence of a limiting instruction did not deprive the defendant
of a fair trial” (Wisdom, 120 AD3d at 726), and thus the court
properly denied defendant’s request for a mistrial based on the
admission of that testimony (see CPL 280.10 [1]).

     Contrary to defendant’s further contention, the court properly
denied defendant’s request for a jury instruction on the affirmative
defense of duress (see Penal Law § 40.00 [1]). The testimony and
exhibits admitted at trial, “when . . . viewed in the light most
favorable to defendant, did not create a reasonable view of the
evidence supporting such a charge” (People v Thompson, 34 AD3d 325,
325, lv denied 8 NY3d 885). While there was evidence that one of the
other perpetrators threatened to kill defendant if he told anyone
about the homicide, “[p]ost-crime threats and force are irrelevant as
a matter of law” (People v Staffieri, 251 AD2d 998, 998-999). To the
extent that defendant contends that he had no choice but to
participate because he was told to do so by a higher ranking member of
the gang with which he was affiliated, we note that there was no
testimony from any witness concerning what higher ranking gang members
would do to lesser ranking members if their instructions were
disobeyed. In any event, even assuming, arguendo, that such testimony
had been presented, we conclude that the defense of duress would not
be available because, by voluntarily joining a gang, defendant
“intentionally or recklessly place[d] himself in a situation in which
it [was] probable that he [would] be subjected to duress” by the
higher ranking gang members (§ 40.00 [2]; see People v Morson, 42 AD3d
505, 506, lv denied 9 NY3d 924).

     Finally, we reject defendant’s contentions that the court abused
its discretion in denying his request for youthful offender status and
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                                                         KA 13-01079

that the sentence is unduly harsh and severe. “The decision ‘whether
to grant or deny youthful offender status rests within the sound
discretion of the court and depends upon all the attending facts and
circumstances of the case’ ” (People v Williams, 204 AD2d 1002, 1002,
lv denied 83 NY2d 973). Given the particularly heinous nature of the
crime perpetrated on the 16-year-old victim, there is “no basis to
conclude that the court abused its discretion in refusing to grant
defendant youthful offender status,” and we decline to modify the
sentence (id.).




Entered:   October 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
