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THE CHARGES AGAINST DEFENDANT STEMMED FROM HIS STRIKING AND SERIOUSLY INJURING AN EIGHT-POUND DOG; THERE WAS NO NEED TO INSTRUCT THE GRAND JURY ON THE JUSTIFICATION DEFENSE; INDICTMENT REINSTATED OVER A DISSENT (SECOND DEPT).

The Second Department, reversing Supreme Court on the People’s appeal, over an extensive dissent, determined the grand jury proceedings were not defective due to the prosecutor’s failure to instruct the grand jury on the justification defense. The charges against the defendant stemmed from his striking and severely injuring a dog. The Second Department held a reasonable view of the evidence did not warrant the justification instruction:

“‘[A] prosecutor should instruct the Grand Jury on any complete defense supported by the evidence which has the potential for eliminating a needless or unfounded prosecution'” … . “The failure to charge justification constitutes reversible error only when the defense is ‘supported by a reasonable view of the evidence—not by any view of the evidence, however artificial or irrational'” … . …

There is no reasonable view of the evidence that forcefully striking and injuring the approximate eight-pound terrier poodle in the manner undertaken by the defendant, who was approximately 6 feet tall and weighed 200 pounds, was necessary as an emergency measure to avoid, at most, a bite by this small animal through denim pants. People v Jimenez, 2020 NY Slip Op 07223, Second Dept 12-2-20

 

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