                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: July 28, 2016                     105996
________________________________

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

MICHAEL J. GIBSON, Also Known
   as JO-JO,
                    Appellant.
________________________________


Calendar Date:   May 24, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

                             __________


     George J. Hoffman Jr., Albany, for appellant.

      Stephen K. Cornwell Jr., District Attorney, Binghamton
(Stephen D. Ferri of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the County Court of Broome
County (Cawley, J.), rendered October 30, 2012, upon a verdict
convicting defendant of the crimes of assault in the second
degree and criminal possession of a weapon in the third degree.

      In September 2010, defendant allegedly stabbed the victim
once with a knife in the abdomen during a late night street
altercation in the Village of Endicott, Broome County. Following
a trial, the jury acquitted defendant of attempted assault in the
first degree, but convicted him of assault in the second degree
and criminal possession of a weapon in the third degree.
Thereafter, County Court determined that defendant was a second
felony offender — a status predicated on a 2003 Oklahoma
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conviction — and sentenced defendant to an aggregate prison term
of six years, followed by five years of postrelease supervision.
Defendant appeals.

      Defendant contends that the verdict was against the weight
of the evidence in that, first, the evidence overwhelmingly
supported his justification defense and, second, the People did
not prove that he intended to cause injury to the victim. We
disagree. "Use of deadly physical force is justified when . . .
a defendant reasonably believes 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]). As defendant raised the
justification defense, it was the People's burden to disprove it
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 Umali, 10 NY3d 417,
425 [2008], cert denied 556 US 1110 [2009]).

      The People presented the testimony of three eyewitnesses to
the stabbing, including the victim, the victim's wife and a
passerby who observed the incident. The victim testified that
defendant and the victim's ex-girlfriend approached the victim
and his wife on the street. Defendant demanded that the victim
return a camera that he believed the victim had taken from him at
a party earlier in the evening. At some point, the victim pushed
defendant, and the two engaged in a "shoving match." The victim
stated that he emptied the contents of his pockets, including a
box cutter, and gave them to his wife because he believed a fight
was imminent. When the two men stopped pushing each other, the
victim became aware that he was bleeding, and then realized that
he had been stabbed after he saw defendant holding a butterfly
knife. According to the victim, defendant stated that "he didn't
mean it," but left the area without offering help. Following the
confrontation, police found a closed box cutter – with a lock
that prevented it from being opened with one hand – in the pocket
of the pants that the victim had been wearing. The victim
underwent surgery for a stab wound in the abdominal area, was
hospitalized for approximately two weeks and was prescribed pain
medication.
                              -3-                105996

      On cross-examination, the victim acknowledged that he had
initially lied to police by telling them that he did not have the
box cutter, because he did not want to get into trouble. He
further stated that he could not remember the confrontation
clearly because everyone involved was "pretty drunk," and
conceded that he was "not sure" whether he had tried to use his
box cutter on defendant, and that, while he did not remember, he
"possibly" could have pulled it on defendant first. In her
testimony, the victim's wife denied that the victim gave her the
contents of his pockets during the confrontation. She stated
that she did not see the victim take out a weapon at any point.
She said that, as the victim and defendant scuffled, she saw
defendant push the victim in the stomach. The victim then
attempted to react but was unable to do so, and the wife realized
that he was bleeding.

      The passerby, who did not know defendant or the victim
before the incident, testified that he observed the confrontation
from a distance of approximately 6 to 10 feet. He described
defendant and the victim by race and height, testifying that the
shorter man, who was about 5½ feet tall, approached a man, who
was approximately six feet tall, and asked for his phone or
camera.1 One of the men then pushed the other, who pushed back,
and the struggle "escalated into the road." The passerby stated
that he had a "[r]eal clear" view of the shorter man pulling out
a knife and stabbing the taller man. After the stabbing,
according to the passerby, the taller man said, "[Y]ou stabbed me
in my rib." The taller man then "pulled his knife" out of his
pocket. The passerby stated that he did not see anything in the
taller man's hands before the stabbing, "[b]ut after he did." He
clarified that he was certain that the taller man had nothing in
his hands when he was stabbed and that he was "70 percent" sure
that there was nothing in the taller man's hands at any point


    1
        The evidence established that the victim stood
approximately six feet tall, weighed 200 pounds and was taller
than defendant. Although the passerby was unable to fully
confirm the identification at the time of trial, the evidence and
other testimony left no doubt that defendant and the victim were
the participants in the confrontation that he had witnessed.
                              -4-                105996

before that. After the stabbing, the passerby left the area and
did not see the resolution of the confrontation.

      Defendant did not testify, but his sister testified that
defendant had told her after the fight that the victim had pulled
out a box cutter and tried to cut him with it during the struggle
and that defendant had reacted by stabbing him with the butterfly
knife. The sister and her husband further testified that the
butterfly knife was not defendant's, but belonged instead to the
sister's husband, who had asked defendant to hold onto it
temporarily that night.

      On these facts, as the People concede, a different verdict
would not have been unreasonable (see People v Bleakley, 69 NY2d
490, 495 [1987]; People v Zindle, 48 AD3d 971, 972 [2008], lv
denied 10 NY3d 846 [2008]). Nevertheless, viewing the evidence
in a neutral light and mindful of the deference accorded "to the
fact-finder's opportunity to view the witnesses, hear the
testimony and observe demeanor" (People v Bleakley, 69 NY2d at
495; see People v Newland, 83 AD3d 1202, 1205 [2011], lv denied
17 NY3d 798 [2011]), we find no reason to disturb the jury's
rejection of the justification defense. Despite the evidence
that the victim had the box cutter on his person during the
struggle and the equivocal nature of his statements about it, the
testimony of the passerby and the victim's wife indicated that he
did not wield it before defendant stabbed him, and there was no
clear proof to the contrary (compare People v Young, 240 AD2d
974, 977 [1997], lv denied 90 NY2d 1015 [1997]). Further, there
was no proof that defendant was unable to retreat "with complete
personal safety" (Penal Law § 35.15 [2] [a]; see People v Young,
240 AD2d at 976). Any inconsistencies in the testimony as to who
was the aggressor at each stage of the conflict were 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]).

      "Defendant's intent to cause injury was a factual question
that the jury could infer from his conduct and the surrounding
circumstances" (People v Harden, 134 AD3d 1160, 1163 [2015]
[citations omitted], lv denied ___ NY3d ___ [June 7, 2016]; see
People v Zindle, 48 AD3d at 973). The surgeon who treated the
                              -5-                105996

victim at the hospital testified that the front portion of the
victim's stomach was "completely penetrated" and that his liver
was cut, as well as the ligament supporting the stomach and
colon. The surgeon testified that such an injury would require
"considerable force" and, if left untreated, would potentially
result in "[s]epsis, shock [and] death." This evidence, as well
as the testimony that described defendant's "pushing" movement at
the moment of the stabbing, established defendant's intent to
cause injury (see People v Newland, 83 AD3d at 1204; People v
Francis, 83 AD3d 1119, 1122 [2011], lv denied 17 NY3d 806
[2011]). Accordingly, we find that the verdict was not contrary
to the weight of the evidence (see People v Taylor, 118 AD3d
1044, 1045-1047 [2014], lv denied 23 NY3d 1043 [2014]; People v
Brown, 100 AD3d 1035, 1036-1037 [2012], lv denied 20 NY3d 1009
[2013]; compare People v Morgan, 99 AD3d 622, 622-623 [2012];
People v Jones, 59 AD3d 864, 867 [2009]).

      The People concede that County Court erred in sentencing
defendant as a second felony offender, as the elements of his
predicate Oklahoma felony were not "equivalent to those of a New
York felony" (People v Gonzalez, 61 NY2d 586, 589 [1984]; see
Penal Law § 70.06 [1] [b] [i]; People v Jurgins, 26 NY3d 607, 613
[2015]). As relevant here, the inquiry regarding equivalency is
"limited to a comparison of the crimes' elements as they are
respectively defined in the foreign and New York penal statutes"
(People v Muniz, 74 NY2d 464, 467-468 [1989]; accord People v
Parker, 121 AD3d 1190, 1191 [2014]). Defendant was previously
convicted under an Oklahoma statute prohibiting possession of a
firearm by a felon; however, operability is not a required
element of the Oklahoma statute (see 21 Okla Stat Ann §§ 1283
[A]; 1284; Sims v State, 762 P2d 270, 272 [1988]; Maixner v
Rudek, 492 Fed Appx 920, 923 [10th Cir 2012]). In New York
"[o]perability is a required element of the crime of criminal
possession of a handgun, rifle or shotgun" (People v Rowland, 14
AD3d 886, 887 [2005]; see People v Longshore, 86 NY2d 851, 852
[1995]). Thus, as the comparable New York statute requires an
element that the Oklahoma crime does not, defendant's Oklahoma
conviction cannot support a finding that he was a second felony
offender (see Penal Law § 265.02 [1]; People v Parker, 121 AD3d
at 1191; People v Maglione, 305 AD2d 426, 426-427 [2003]).
Accordingly, defendant's sentence must be vacated. In view of
                              -6-                  105996

this determination, we need not address his contention that his
sentence was harsh and excessive.

     Lahtinen, J.P., McCarthy, Clark and Mulvey, JJ., concur.



      ORDERED that the judgment is modified, on the law, by
vacating the sentence imposed; matter remitted to the County
Court of Broome County for resentencing; and, as so modified,
affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
