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THE EVIDENCE DEFENDANT USED A PEN TO PUNCTURE THE CHEEK OF THE VICTIM CONSTITUTED EVIDENCE THE DEFENDANT USED A DANGEROUS INSTRUMENT IN THIS ASSAULT SECOND CASE, THE DEFENDANT WAS NOT ENTITLED TO A JURY INSTRUCTION ON THE ORDINARY-NONDEADLY-FORCE JUSTIFICATION DEFENSE (FIRST DEPT).

The First Department determined defendant’s request for a jury instruction on the ordinary-nondeadly-force justification defense in this Assault Second prosecution was properly denied. The defendant did not request a jury instruction on the deadly-force-justification defense. Defendant’s use of a pen to puncture the victim’s cheek constituted use of a dangerous instrument:

The video surveillance captures the defendant reaching into his bag or pocket with his right hand and then immediately striking the complainant with that same hand. Photographs of the complainant’s cheek reflect what appears to be a puncture of the cheek. The photograph of the outside of the complainant’s cheek shows that there was a thin, horizontal cut adjacent to the round through-and-through puncture on the complainant’s cheek, consistent with a sharp object, such as the point of a pen, scratching the complainant’s cheek before the object plunged into it.

The record further reveals that police officers who arrived at the scene observed the complainant bleeding from a puncture wound on the side of his face. At the time of defendant’s arrest, the police recovered a pen that defendant was holding in his right hand. …

Under the facts presented, the only possible justification charge that would have been available to defendant would have been a charge of justifiable use of deadly, not ordinary, physical force (see Penal Law § 35.15[2]; People v Mickens, 219 AD2d 543, 544 [1st Dept 1995] …). People v Marishaw, 2019 NY Slip Op 05320, First Dept 7-2-19

 

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