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Black Homeowner's Claim of Self-Defense Rejected in Fatal Shooting(NY)
New York Law Journal ^ | 25 May, 2010 | Daniel Wise

Posted on 05/25/2010 4:58:51 AM PDT by marktwain

An appeals court in Brooklyn on Friday upheld the conviction for manslaughter and gun possession of a Long Island, N.Y., black man who shot a white teenager to death in a confrontation in front of the man's home.

John H. White was sentenced to two to four years in prison for killing the teen, Daniel Cicciaro Jr., 17, who arrived at White's house along with four other teens in two cars and challenged White's son Aaron, 19, to fight as the group shouted racial epithets at the son and father, both of whom were armed.

A unanimous panel of the Appellate Division, 2nd Department, upheld the jury's rejection of White's defense that the shooting was justified because he believed he was defending his family from a "lynch mob."

The appellate panel found that the jury's rejection of the defense was not against the weight of the evidence. Justice Randall T. Eng writing for the panel noted that White testified that he had not observed any weapons in the hands of the teens, and Aaron had testified that Cicciaro had challenged him to come into the street to fight.

"The victim's clearly expressed desire to fight Aaron outside undercuts the claim that the defendant reasonably believed the youths were going to attempt to enter his home," Eng wrote in People v. White, 2662/06.

In addition, Eng wrote, White could have called 911 for police assistance, a "clear alternative" to confronting the youths who had gathered outside his home.

Justices Steven W. Fisher, Daniel D. Angiolillo and Plummer E. Lott joined the decision.

White has been free on $200,000 bail pending the appeal. Once a surrender date is set by Suffolk County Court Judge Barbara Kahn she will be required to order him to begin serving his prison term unless a stay is issued by the New York Court of Appeals.

White's appellate lawyer, Richard E. Mischel, said he had asked the court to continue White's bail until it decides his application for leave to appeal.

Mischel said that "the argument before the 2nd Department seemed to go well, and we are hopeful that the court will grant our application to take the case to the next level."

The Aug. 9, 2006, killing inflamed racial tensions in Miller Place, a predominately white community on eastern Long Island where the White home was located.

The prosecution and defense presented "sharply different" versions of how the confrontation developed, the circumstances in which the fatal shot was fired and the role of race in the shooting, Eng wrote.

White, testifying in his defense, said he was awakened around 11 p.m. when Aaron told him, with "absolute terror" in his voice, "these people are coming to try to kill me."

All four of Cicciaro's friends denied at the trial that they had used racial epithets during the confrontation in front of the White home, but Eng noted that "in a tape-recorded 911 call, one of the youths can be heard shouting racial slurs as he vows to avenge the victim."

At the conclusion of the 14-page opinion, Eng expressed some sympathy for White's predicament, writing "the law does not require that we turn a blind eye to human emotion, and we can appreciate that a parent in the defendant's situation would be concerned for the welfare of his son, and feel anger as the situation began to unfold."

He concluded, however, that White "took the life of a 17-year-old, shooting him at close range under circumstances which do not amount to legal justification."

At White's sentencing, according to The New York Times, Judge Kahn went out of her way to describe Cicciaro's four companions as "moral accessories" in the death of their friend. "They did not hold the gun, they did not pull the trigger, but they share responsibility," she was quoted as saying.

CONVICTION ON GUN CHARGE

The 2nd Department also upheld White's conviction for possession of a weapon outside his home. White had argued that his possession of a loaded .32 caliber Beretta pistol in his driveway constituted possession within his home.

Possession of an unlicensed loaded firearm outside of the home was at the time of the sentencing a Class D felony punishable by a maximum term of 2 1/3 to seven years in prison. Possession of a loaded gun inside one's home is a misdemeanor, carrying a top punishment of one year in jail.

The sentences all ran concurrently. White could have been sentenced to up to 15 years in prison for second-degree manslaughter.

Eng found unavailing White's argument that possession of the gun in his driveway was tantamount to possessing it in his home. The court's precedents have narrowly construed the word "home" in Penal Law §70.02[1][b], the justice wrote, as reflecting a legislative judgment that possession of a gun in one's home is "less reprehensible that possession for other purposes" (quoting from People v. Powell, 54 NY2d 524).

White's possession of a gun at the "edge of his driveway, inches away from the public street," Eng concluded, does not warrant the same concerns for privacy as would possession in his home.

In asking for permission to take the case to the Court of Appeals, Mischel said he would press a legal point that took up a large portion of his 50-minute oral argument on Oct. 23.

The defense argued that it only belatedly received a tip that Cicciaro had used racial slurs while in the showroom of a Ford dealership only two weeks before the incident at the White home. Had the prosecution provided timely notice of the incident, which had been investigated by the police, the defense could have used the information to test the testimony of Cicciaro's four friends that there was no racial component to the confrontation, Mischel said.

Suffolk County Assistant District Attorney Thomas C. Costello, who argued the appeal for the prosecution, said the panel had conducted an "exhaustive review" of White's legal claims and reached a result "that comports with the law on each point."

Lisa Marlow, also of Mischel & Horn, worked on White's brief; Suffolk Assistant District Attorney Marion M. Tang worked on the prosecution brief.


TOPICS: Crime/Corruption; Extended News; News/Current Events; US: New York
KEYWORDS: banglist; defense; gun; ny
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To: Old Teufel Hunden

In “TEXAS” the shooting of the “ILLEGALS” during a home invastion was “JUSTIFIABLE”.

Read the state laws, each State is different.


41 posted on 05/25/2010 6:00:21 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: Old Teufel Hunden

You can’t shoot somebody standing in a public street unless he’s armed and threatening you. The fact that you disapprove of the WORDS coming out of his mouth, is no justification. Had the man acted properly and they came onto his property after them, it would be different.

You find it acceptable because you’re offended by the words.
Name calling is not a life threatening attack. If the home owner believed an attack was coming by an armed group, why would he expose himself to attack at the end of the driveway? I would have defended from inside the house, where I could return fire from cover.


42 posted on 05/25/2010 6:05:55 AM PDT by Robbin (If Sarah isn’t welcome, I’m not welcome, it’s just that simple…)
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To: Old Teufel Hunden

The charge of manslaughter seems to fit the facts perfectly, imo. Seems to be the very definition of manslaughter in the U.S.


43 posted on 05/25/2010 6:07:17 AM PDT by ltc8k6
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To: Old Teufel Hunden

“Put yourself in the homeowners position. He doesn’t know they don’t have any weapons. He doesn’t know they don’t have knives are even small pistols hidden away on their person somewhere”

Then how do you justify going out to the edge of the property to meet them? Why didn’t he call the cops ( maybe he was afraid they would shoot his dog)?


44 posted on 05/25/2010 6:08:08 AM PDT by Hacklehead (Liberalism is the art of taking what works, breaking it, and then blaming conservatives.)
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To: Old Teufel Hunden

Any threat could be eliminated/avoided by not going out to the street.

He took the life of a kid showing bad judgment but was not a threat.


45 posted on 05/25/2010 6:13:22 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: driftdiver

You can’t help but contrast this situation with the SEIU mob attack on the banker’s home in DC...


46 posted on 05/25/2010 6:14:09 AM PDT by MrB (The difference between a (de)humanist and a Satanist is that the latter knows who he's working for.)
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To: Robbin
"You find it acceptable because you’re offended by the words."

I never said that. Don't assume. I'm not offended by anything. I'm trying to analyse what went on. The article was not well written as it did not present all the facts and make you assume certain things that happened.

Four teens who I don't know out in front of my house issuing threats and challenging my son to a fight would concern me. Just by these four unknown kids showing up in front of my house is threatening. He was wrong in the fact that he should have called the cops. If you would read my posts I've said this numerous times. What's never mentioned in there is what escalated this altercation? There had to be something.

As for why he would expose himself to attack at the end of the driveway. I don't know if you have ever been a part of something violent but people don't always think logically when exposed to violence or possible violence. Emotion and fear get all mixed together and you don't always think as clearly.
47 posted on 05/25/2010 6:16:27 AM PDT by Old Teufel Hunden
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To: Grizzled Bear
The four thugs were looking for trouble. They found it.

I agree. As I'm sure he now agrees in hindsight, the father should have called the police at the outset. But the fact remains that a mob descended on this man's home and threatened his son. Any reasonable person in this day and time should assume that such a group might be armed, and their refusal to back down in the face of armed resistance sent a clear signal that they indeed might have been.

Sad that it ended this way, but the kid chose his own path when he joined a mob and went to somebody's home. I would acquit in a New York minute...

48 posted on 05/25/2010 6:17:39 AM PDT by Always A Marine
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To: Hacklehead
He should have called the cops. Theres no doubt about that. I've said he screwed up on that a bunch of times in this thread. I will cut and paste what I said in another post about why he went to the edge of the property to meet them.

"As for why he would expose himself to attack at the end of the driveway. I don't know if you have ever been a part of something violent but people don't always think logically when exposed to violence or possible violence. Emotion and fear get all mixed together and you don't always think as clearly."
49 posted on 05/25/2010 6:19:18 AM PDT by Old Teufel Hunden
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To: driftdiver
"He took the life of a kid showing bad judgment but was not a threat."

He definitely showed bad judgement by not calling the police. I would not assume these kids were not a threat. I would have assumed the opposite. He didn't know if they were armed or not. All he knew was that there were four kids outside his home threatening his son. He didn't know if they were armed or not. It's easy to know this now after its all over.
50 posted on 05/25/2010 6:25:21 AM PDT by Old Teufel Hunden
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To: Old Teufel Hunden

Why would you go outside if you didn’t know if they were armed? Heck it would be better to assume there were armed and stay away from the threat.


51 posted on 05/25/2010 6:38:11 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: Old Teufel Hunden

I wonder how this would play out if I was a banker and 500 thugs showed up at my house? They were screaming slurs because of who I was, my 14 year old was home alone, they actually came on the property to the front door, the cops were called and refused to enforce the law because they did not want to inflame the situation. Could I then defend my family and home? After all 500 sounds like more of a lynch mob than 4 not to mention premeditated due to the fact it would take organization to hire 14 buses to get these 500 thugs to my house. Just something to think about!


52 posted on 05/25/2010 6:42:14 AM PDT by nd2bfree
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To: Old Teufel Hunden; SeaHawkFan

You’ve got to know the laws of your state re deadly force ... NY and Texas definitely differ.


53 posted on 05/25/2010 6:42:24 AM PDT by Tunehead54 (Nothing funny here ;-)
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To: marktwain

This case was a real tragedy. A teenager who died for being low-class and stupid. A father whose conduct wouldn’t qualify as self-defense, even by Texas standards.

Long Island’s not the paragon of the judicial system, but it seems like the judge and jury came to a good outcome here: a conviction with a very reduced sentence (2-4 years). Not so much as to make thugs feel that homeowners will hesitate to defend themselves, not so little as to send the message that self-defense with deadly force has no boundaries.


54 posted on 05/25/2010 6:47:27 AM PDT by only1percent
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To: nd2bfree

I agree. Everyone of those SEIU and Acorn punks disgust me!!! The banker needed an M-2 .50 cal!!


55 posted on 05/25/2010 6:48:26 AM PDT by Old Teufel Hunden
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To: Tunehead54
"You’ve got to know the laws of your state re deadly force ... NY and Texas definitely differ."

Which is why I would never live in New York!
56 posted on 05/25/2010 6:49:09 AM PDT by Old Teufel Hunden
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To: Paige
In “TEXAS” the shooting of the “ILLEGALS” during a home invastion was “JUSTIFIABLE”.

Read the state laws, each State is different.

I think this one would be justifiable as well. Pulling up in front of somebody's house, yelling challenges and racial epithets, etc., could be taken as assault, a felony. You are legally permitted to use deadly force to stop a felony in progress in Texas, or to prevent a felon from fleeing.

The colors of the respective parties is immaterial, other than that race was an element.

Continuing to yell and threaten when they saw the homeowner was armed is really, really stupid. Continuing to yell and threaten after shots had been fired is suicidal.

I'm on the homeowner's side.

57 posted on 05/25/2010 7:43:22 AM PDT by jimt
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To: jimt

“Pulling up in front of somebody’s house, yelling challenges and racial epithets, etc., could be taken as assault, a felony. You are legally permitted to use deadly force to stop a felony in progress in Texas, or to prevent a felon from fleeing.”

Sitting in a car and yelling threats and challenges does not give anyone the right to shoot you dead... either in NY or Texas or anywhere in the US. Thats only in Quentin Taratino movies.


58 posted on 05/25/2010 8:06:52 AM PDT by Mashood
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To: marktwain
Possession of a loaded gun inside one's home is a misdemeanor, carrying a top punishment of one year in jail.

This is likely to be an unconstitutional law after SCOTUS decides the Chicago case. The other possession law might be too. He should appeal both of these on Constitutional grounds.

59 posted on 05/25/2010 8:16:47 AM PDT by Jack Black ( Whatever is left of American patriotism is now identical with counter-revolution.)
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To: marktwain
All four of Cicciaro's friends denied at the trial that they had used racial epithets during the confrontation in front of the White home, but Eng noted that "in a tape-recorded 911 call, one of the youths can be heard shouting racial slurs as he vows to avenge the victim."

Typical Lawn Guyland Coogines. Its amazing that they would have considered having a trial in Suffolk County in the past, as the majority of those on the jury would have been folks like these meatballs.

60 posted on 05/25/2010 8:19:09 AM PDT by Clemenza (Remember our Korean War Veterans)
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