You are here: / / THE EVIDENCE DEFENDANT USED A PEN TO PUNCTURE THE CHEEK OF THE VICTIM CONSTITUTED...

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

 

/by
You might also like
PLAINTIFF ALLEGED HE WAS NOT PROVIDED WITH A LADDER AND WAS INSTRUCTED TO CLIMB UP THE SIDE OF A BRIDGE FROM WHICH HE FELL, SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION PROPERLY GRANTED, COMPARATIVE FAULT IS NOT A DEFENSE (FIRST DEPT).
DEFENDANTS FAILED TO ELIMINATE QUESTIONS OF FACT RE WHETHER INADEQUATE ILLUMINATION WAS A PROXIMATE CAUSE OF PLAINTIFF’S DECEDENT’S STAIRWAY FALL (FIRST DEPT).
Permission to Re-Submit Charges to a Second Grand Jury Was Required.
ACTION TO RESCIND A PURCHASE CONTRACT CONSTITUTED AN ANTICIPATORY BREACH OF THE CONTRACT WHICH RELIEVED SELLERS OF ANY FURTHER OBLIGATIONS AND ENTITLED SELLERS TO RETAIN THE DEPOSIT.
FOIL Request for Police “Intelligence Division” Documents Re: Surveillance of “Middle Eastern, South Asian or Muslim Persons” Properly Denied
AFTER REMITTAL FROM THE COURT OF APPEALS, THE APPELLATE DIVISION REFUSED TO EXERCISE ITS INTEREST OF JUSTICE JURISDICTION TO HEAR AN UNPRESERVED SENTENCING ISSUE; DEFENDANT WAS NOT ELIGIBLE FOR THE THREE-YEAR SENTENCE PROMISED AS PART OF A PLEA BARGAIN.
EVEN THOUGH PLAINTIFF BICYCLIST HAD THE RIGHT OF WAY AND DEFENDANT’S TRUCK CROSSED INTO HIS PATH, THERE WAS A QUESTION OF FACT WHETHER PLAINTIFF COULD HAVE AVOIDED THE ACCIDENT (FIRST DEPT).
Teachers’ and School Administrators’ Grievances Re Staff Cuts Stemming from School Closings Deemed Arbitrable​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2022 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

STATEMENTS MADE BY DEFENDANT DURING A CONTROLLED PHONE CONVERSATION WITH THE... PLAINTIFF FELL IN A POTHOLE IN THE PATH FROM THE BUS TO THE CURB, TRANSIT AUTHORITY’S...