THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. CHARLES MAJOR DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified on the facts by reversing that part convicting defendant of manslaughter in the second degree and as modified the judgment is affirmed.

Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of manslaughter in the second degree (Penal Law § 125.15 [1]) and two counts of criminal possession of a weapon in the second degree (§ 265.03 [1] [b]; [3]) stemming from a shootout in which defendant and two codefendants were inside a vehicle and exchanged gunfire with two or more people (unnamed assailants) outside the vehicle. The driver of the vehicle was killed by one of the shots allegedly fired by defendant from inside the vehicle. Defendant and the codefendants fled the vehicle, and defendant fired in the direction of a fleeing codefendant, mistaking him for one of the unnamed assailants.

Contrary to defendant's contention, County Court did not err in failing to suppress defendant's statements made at a hospital and police precinct and his clothing seized from the hospital. After the shootout, defendant had a friend transport him to the hospital for treatment of a gunshot wound and he was questioned by police officers while there. It is well settled that Miranda warnings must be given when a defendant is subject to custodial interrogation (see People v Paulman, 5 NY3d 122, 129 [2005]; People v Berg, 92 NY2d 701, 704 [1999]). “To ascertain custodial status, courts must consider whether a reasonable person innocent of any wrongdoing would have believed that they were not free to leave, and whether there was a forcible seizure which curtailed that person's freedom of action to the degree associated with a formal arrest” (People v Robinson, 45 NY3d 243, 247-248 [2025]). The fact that police questioning occurred “in a hospital setting alone is not determinative of whether the questioning is custodial in nature” (People v Allen, 183 AD3d 1284, 1285 [4th Dept 2020], affd 36 NY3d 1033 [2021]). While at the hospital voluntarily, defendant was not restrained in any way, and no indication was given to him that he was not free to leave. We therefore conclude that defendant was not in custody for Miranda purposes when he spoke with officers at the hospital (see Allen, 183 AD3d at 1285; People v Diallo, 137 AD3d 1681, 1681 [4th Dept 2016]).

With respect to the statements defendant made at the police precinct, we reject defendant's contention that he made an unequivocal request for an attorney. “Whether a particular request is or is not unequivocal is a mixed question of law and fact that must be determined with reference to the circumstances surrounding the request including the defendant's demeanor, manner of expression and the particular words found to have been used by the defendant” (People v Glover, 87 NY2d 838, 839 [1995]). Defendant's questions that he did not “really know how that works with the lawyer stuff” and if “there is [going to] be one,” and his later statement that he “didn't really get what you meant with talking ․ with somebody,” were not unequivocal requests for counsel (see People v Adams, 232 AD3d 1302, 1304 [4th Dept 2024], lv denied 42 NY3d 1078 [2025]; People v Montgomery, 221 AD3d 1347, 1348 [3d Dept 2023], lv denied 41 NY3d 966 [2024]; People v Cullop, 57 AD3d 1458, 1458 [4th Dept 2008], lv denied 12 NY3d 815 [2009]). It is well settled that “a query as to whether counsel ought to be obtained will not suffice to unequivocally invoke the indelible right to counsel” (People v Dawson, 38 NY3d 1055, 1055 [2022] [internal quotation marks omitted]; see People v Hicks, 69 NY2d 969, 970 [1987], rearg denied 70 NY2d 796 [1987]; People v Hall, 53 AD3d 1080, 1081 [4th Dept 2008], lv denied 11 NY3d 855 [2008]).

With respect to the seizure of defendant's clothing from the hospital, the police properly seized those items, which were in plain view (see People v Woods, 93 AD3d 1287, 1288-1289 [4th Dept 2012], lv denied 19 NY3d 969 [2012]; People v Johnson, 43 AD3d 1422, 1423 [4th Dept 2007], lv denied 9 NY3d 1035 [2008]). “Under the plain view doctrine, if the sight of an object gives the police probable cause to believe that it is the instrumentality of a crime, the object may be seized without a warrant if three conditions are met: (1) the police are lawfully in the position from which the object is viewed; (2) the police have lawful access to the object; and (3) the object's incriminating nature is immediately apparent” (People v Diaz, 81 NY2d 106, 110 [1993]; see People v Brown, 96 NY2d 80, 89 [2001]). The police knew the incriminating character of the sweatshirt and jacket seized inasmuch as they knew defendant had been shot in the arm, and the entry and exit wounds would have been covered by that clothing (cf. People v Sanders, 26 NY3d 773, 777 [2016]).

Defendant next contends that the evidence is legally insufficient to establish the elements of manslaughter in the second degree because the People failed to prove that he caused the victim's death, that he acted recklessly, or that he was not justified in his actions. Defendant waived that challenge by consenting to the People's request to charge manslaughter in the second degree as a lesser included offense of murder in the second degree (see People v O’Neill, 169 AD3d 1515, 1515 [4th Dept 2019]; People v Green, 60 AD3d 1320, 1321 [4th Dept 2009], lv denied 12 NY3d 915 [2009]; People v McDuffie, 46 AD3d 1385, 1386 [4th Dept 2007], lv denied 10 NY3d 867 [2008]). Nevertheless, “we necessarily review the evidence adduced as to each of the elements of th[at] crime[ ] in the context of our review of defendant's challenge regarding the weight of the evidence” (People v Moore, 232 AD3d 1299, 1300 [4th Dept 2024], lv denied 43 NY3d 945 [2025] [internal quotation marks omitted]; see O’Neill, 169 AD3d at 1515). Viewing the evidence in light of the elements of manslaughter in the second degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), including the charge on the defense of justification, we agree with defendant that the verdict is against the weight of the evidence with respect to the justification defense, and we therefore modify the judgment accordingly.

A person is justified in using deadly physical force against another person if they “reasonably believe[ ] that such other person is using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]). Deadly physical force “encompasses not merely the striking of the first blow or infliction of the first wound. It also encompasses acts by a person that cause the defendant reasonably to believe that the defendant is facing the ‘imminent threat’ of deadly force,” and therefore “the imminent threat to use a gun constitute[s] the threat of deadly physical force even if the gun is never fired” (People v Brown, 33 NY3d 316, 322 [2019], rearg denied 33 NY3d 1136 [2019]; see People v Dodt, 61 NY2d 408, 414-415 [1984]). The evidence at trial established that defendant told the police that the unnamed assailants started shooting at the occupants of the vehicle before any shots were fired by those inside the vehicle. A witness to the shootout testified that she saw one of the unnamed assailants remove a gun out of his pocket and then she saw and heard gunshots. The evidence further established that multiple rounds were fired at the vehicle from the outside. Contrary to the People's contention, they did not establish beyond a reasonable doubt that defendant, who was not the driver of the vehicle, could have retreated with complete personal safety before he used deadly physical force, or that he knew he could do so (see Matter of Y.K., 87 NY2d 430, 434 [1996]; People v Hernandez, 165 AD3d 1473, 1480 [3d Dept 2018]).

Defendant further contends that the evidence is legally insufficient to establish both counts of criminal possession of a weapon in the second degree because he temporarily and lawfully possessed the gun he fired at a codefendant and did not intend to use the gun unlawfully. We reject that contention. Temporary and lawful possession of a weapon may result when there is “a legal excuse for ․ possession as well as facts tending to establish that, once possession has been obtained, the weapon had not been used in a dangerous manner” (People v Ruiz, 39 NY3d 981, 983-984 [2022] [internal quotation marks omitted]; see People v Williams, 36 NY3d 156, 161 [2020]). Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that it was legally sufficient to disprove the defense of temporary and lawful possession beyond a reasonable doubt and to establish that defendant intended to use the gun unlawfully. Even assuming, arguendo, that defendant obtained the weapon in an excusable manner, we conclude that he used the weapon in a reckless and dangerous manner (see generally Ruiz, 39 NY3d at 984; People v Parks, 200 AD3d 1598, 1599 [4th Dept 2021], lv denied 38 NY3d 953 [2022]). Moreover, even if defendant believed that when he exited the vehicle he was firing at one of the unnamed assailants, rather than at a codefendant, his conduct in firing at someone who was fleeing was unlawful (see generally People v Castillo, 42 NY3d 628, 631 [2024]). Viewing the evidence in light of the elements of criminal possession of a weapon in the second degree as charged to the jury (see Danielson, 9 NY3d at 349), including the charge on the defense of temporary and lawful possession, we further conclude that the jury's rejection of that defense and finding of guilt is not against the weight of the evidence (see People v Green, 223 AD3d 914, 914 [2d Dept 2024], lv denied 41 NY3d 1018 [2024]; People v Joyce, 150 AD3d 1632, 1633 [4th Dept 2017], lv denied 31 NY3d 1118 [2018]).

Defendant contends that the court's response to a jury note seeking clarification on the definitions of recklessness and criminal negligence was inadequate, requiring reversal. Defendant's contention is not preserved for our review (see People v Nelson, 178 AD3d 1395, 1397 [4th Dept 2019], lv denied 35 NY3d 972 [2020]; see also People v Socciarelli, 203 AD3d 1642, 1643 [4th Dept 2022], lv denied 38 NY3d 1035 [2022]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). The sentence is not unduly harsh or severe.

We have considered defendant's remaining contentions and conclude that they do not warrant further modification or reversal of the judgment.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court