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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

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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To: Old Teufel Hunden

Arming yourself and calling 911 isn’t the same as going out to the edge of your property and shooting someone who is yelling at your kid. What do you think they would do to a white guy(and what kind of press there would be)who shot a 17 yo black kid simply because he was trying to get his son to fight? This guy was NOT justified and he is lucky they didn’t charge him with first degree murder.


61 posted on 05/25/2010 9:05:05 AM PDT by calex59
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To: driftdiver

If it is four on one, my life is in danger and I will react accordingly. If the law isn’t on my side, then the three S’s apply.


62 posted on 05/25/2010 9:10:14 AM PDT by Darren McCarty (I don't look for leaders. I follow my own path, my way.)
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To: Old Teufel Hunden
Former Phila. sergeant held on charge of murder

Here's one who made it impossible for them to cover it up.

63 posted on 05/25/2010 9:16:08 AM PDT by Stentor
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To: Darren McCarty

‘If it is four on one, my life is in danger and I will react accordingly.”

Not until you go outside.

“If the law isn’t on my side, then the three S’s apply.”

Murder


64 posted on 05/25/2010 9:25:47 AM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: Mashood
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.

If they were "sitting in the car" that does change the situation, I agree. When it said they "arrived in two cars" I was seeing them out of the cars on the edge of the property.

I have no idea who Quentin Taratino is. I was thinking more of Charles Bronson.

As far as "does not give anyone the right" in Texas, I'd recommend you don't try it here, especially at night. Threatening people with bodily harm IS assault. Threatening ARMED people is stupid (and in this case fatal) assault.

There was a guy is Dallas who shot a guy who was attempting to steal his car unsuccessfully. The perp ran away. The owner pulled his pistol from his truck, chased him down the street and shot him dead. It was the middle of the day. He was no-billed.

In New York he'd have been in deep do-do. Not in Texas. His position was seen as perfectly justifiable.

65 posted on 05/25/2010 9:42:49 AM PDT by jimt
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To: jimt

You can’t kill someone for sitting in the car and running their mouth. Not in Texas, NY or anywhere else in this country. There is a law against doing that.... its called “murder”.


66 posted on 05/25/2010 11:10:41 AM PDT by Mashood
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To: jimt

Race had everything to do with this case. Most of all, what had the black boy done to provoke this - the statement said the son came running into the house around 11PM. Furthermore, I know for a fact that if black boys came to fight, they would have settled this or street fought. The father took the law into his own hands, which is against the law.


67 posted on 05/25/2010 12:08:09 PM 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
yup, kids are always unpredictable...
68 posted on 05/25/2010 2:42:37 PM PDT by Chode (American Hedonist *DTOM* -ww- NO Pity for the LAZY)
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To: driftdiver
When the law protects multiple attackers inflicting great bodily harm on the victims property, then there is no choice but to go outside the law.
69 posted on 05/26/2010 4:49:37 PM PDT by Darren McCarty (I don't look for leaders. I follow my own path, my way.)
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To: Darren McCarty

“When the law protects multiple attackers inflicting great bodily harm on the victims property, then there is no choice but to go outside the law.”

There was no great bodily harm being done, only words. A fist fight fight does not constitute ‘great bodily harm’.

The law in most places protects against anyone inflicting great bodily harm. The law does not protect against murder, nor does morality.


70 posted on 05/26/2010 5:21:13 PM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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To: driftdiver

Four on one on one’s own property isn’t a fistfight.


71 posted on 05/26/2010 6:05:10 PM PDT by Darren McCarty (I don't look for leaders. I follow my own path, my way.)
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To: Darren McCarty

They weren’t on his property, they were on the street. His son was in no danger. He was in no danger until he walked out to shoot the kid.


72 posted on 05/26/2010 6:57:50 PM PDT by driftdiver (I could eat it raw, but why do that when I have a fire.)
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