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ALTHOUGH THE COMPLAINANT WAS USING ONLY HIS FISTS FIGHTING THE MUCH SMALLER DEFENDANT, THE DEFENDANT WAS ENTITLED TO THE DEADLY-FORCE-JUSTIFICATION-DEFENSE JURY INSTRUCTION (SECOND DEPT).

The Second Department, over a strong dissent, reversing defendant’s conviction, determined defendant’s request for a deadly-force-justification-defense jury instruction should have been granted. The person with whom defendant was fighting, Gibson, was five inches taller and 66 pounds heavier than defendant. Gibson testified the defendant struck him with a hammer and a meat cleaver. Although Gibson was using only his fists during the fight, he eventually rendered defendant unconscious with a single punch. The medical evidence did not support Gibson’s claim he had been struck with a hammer and a meat cleaver:

The jury acquitted the defendant of attempted murder in the second degree and criminal possession of a weapon in the third degree, and convicted him of assault in the second degree.  …

… [B]ased on the differences in size and strength between Gibson and the defendant … , the complainant’s own testimony that he held the defendant down and punched him in the face, the significant injuries suffered by the defendant, including a fractured ankle, Hall’s [a roommate’s] statement during the 911 call that “they’re killing each other,” and the significant factual questions presented regarding what weapons were used and by whom, a rational jury could have found that the defendant reasonably believed that deadly physical force was necessary to defend himself … against the use or imminent use of deadly physical force by Gibson … . … [B]ased on the evidence viewed in the light most favorable to the defendant, a rational jury could have determined that Gibson, not the defendant, was the first person to use or threaten the imminent use of deadly physical force … . Under these circumstances, the failure to charge the defense constituted reversible error … . * * *

… Supreme Court failed to view the evidence in the light most favorable to the defendant. The court credited Gibson’s testimony despite evidence which … significantly called into question the credibility of Gibson’s story. … A criminal defendant has no burden to present evidence at trial to prove his innocence, including by showing that his conduct was justified and therefore lawful … . Instead, the burden to disprove justification falls on the People. People v Singh, 2021 NY Slip Op 05134, Second Dept 9-29-21

 

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