PEOPLE v. PEQUERO (2009)

Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered February 1, 2007, as amended February 20, 2007, convicting defendant, after a jury trial, of conspiracy in the second degree, murder in the second degree (two counts), attempted murder in the second degree, burglary in the first degree, criminal possession of a weapon in the second degree (three counts), and criminal possession of a weapon in the third degree (three counts), and sentencing him to an aggregate term of 50 years to life, unanimously affirmed.

 The burglary conviction was supported by legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348-49, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ).   The evidence that defendant and two other drug dealers went to a building to resolve a “problem” over territory, and that defendant and one of his companions had firearms in their hands as they unlawfully entered the building, permitted the jury to find that defendant entered the building with at least the intent to commit a crime such as menacing therein (see People v. Lewis, 5 N.Y.3d 546, 552, 807 N.Y.S.2d 1, 840 N.E.2d 1014 [2005];  People v. Ortiz, 173 A.D.2d 189, 569 N.Y.S.2d 81 [1991], lv. denied 78 N.Y.2d 1129, 578 N.Y.S.2d 887, 586 N.E.2d 70 [1991] ).

 The court properly denied defendant's request for a justification charge with respect to the murder committed on August 6, 2001, since there was no reasonable view of the evidence, when viewed most favorably to defendant, to support that defense (see People v. Watts, 57 N.Y.2d 299, 301-302, 456 N.Y.S.2d 677, 442 N.E.2d 1188 [1982] ).   In the first place, defendant was clearly the initial aggressor (see Penal Law § 35.15[1][b] ).  Moreover, although the victim was armed, “there was still no evidence that defendant believed he was in imminent danger of the deceased's use of deadly force, or that such belief was reasonable” (People v. Hubrecht, 2 A.D.3d 289, 290, 769 N.Y.S.2d 36 [2003], lv. denied 2 N.Y.3d 741, 778 N.Y.S.2d 467, 810 N.E.2d 920 [2004];  see also People v. Jones, 3 N.Y.3d 491, 496, 788 N.Y.S.2d 651, 821 N.E.2d 955 [2004] ).   Instead, the victim only revealed his own weapon when he complied with defendant's gunpoint command to remove his hands from his pockets.   The victim then held his weapon at his side, as defendant paused long enough to announce to his companions that the victim had a handgun, and then commenced firing.

 The record does not support defendant's speculative claim, raised for the first time on appeal, that two witnesses to whom he made inculpatory statements while in prison were acting as agents of the prosecution, thereby violating his right to counsel (see People v. Kinchen, 60 N.Y.2d 772, 469 N.Y.S.2d 680, 457 N.E.2d 786 [1983];  see also People v. Bent, 160 A.D.2d 1176, 1177, 555 N.Y.S.2d 454 [1990], lv. denied 76 N.Y.2d 937, 563 N.Y.S.2d 66, 564 N.E.2d 676 [1990] ).   Since the existing record does not reveal a factual basis for such a claim, defendant's argument that his trial counsel rendered ineffective assistance by not raising this issue is unreviewable on direct appeal (see People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 [1988];  People v. Love, 57 N.Y.2d 998, 457 N.Y.S.2d 238, 443 N.E.2d 486 [1982] ).