In the wake of a sexual encounter where a man died of asphyxiation, a Brooklyn appellate court has downgraded the partner’s murder conviction because the requisite intent was not shown.
The Appellate Division, Second Department on Wednesday determined that Larry Davis’ 2012 conviction for second-degree murder was against the weight of the evidence, and remitted the casefor sentencing on a count of second-degree manslaughter.
The panel found that acquittal in People v. Davis, 2012-04045 “would not have been unreasonable,” because while Davis fatally tightened a ligature around Richard McCoy’s neck, “it does not prove beyond a reasonable doubt that it was the defendant’s conscious objective to kill the victim,” the panel said.
Davis had told police he didn’t realize the ligature, made at McCoy’s request, was dangerous and never intended his partner to die.
A medical examiner said at trial that it would take up to 15 seconds for someone to lose consciousness and three minutes to die with enough pressure applied to the neck.
The jury deliberated for three days and declared a deadlock before finding Davis guilty.
On appeal, Davis’ attorney argued the death was the “tragic result of appellant’s recklessness, for which he is guilty of” second-degree manslaughter.
Prosecutors in the Brooklyn District Attorney’s office responded that Davis’ “claim of obliviousness” was “beyond believability.” Instead, the jury’s conclusions were “eminently reasonable,” they said.
The panel said Davis “acted recklessly by continuing to hold the ligature … but not as a part of a calculated effort to kill the victim.”
Justices William Mastro, Cheryl Chambers, Plummer Lott and Colleen Duffy sat on the panel.
Barry Stendig of Appellate Advocates appeared for Davis.
Assistant District Attorneys Leonard Joblove, Victor Barall, and Howard Jackson appeared for the prosecution.