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JUSTIFICATION DEFENSE JURY INSTRUCTION SHOULD HAVE BEEN GIVEN, CONVICTION REVERSED.

The Second Department determined the defense request for a jury instruction on the justification defense should have been granted. There was evidence of a struggle for a knife and defendant feared for his life:

A person is justified in using deadly physical force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person … . “A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified” … . A failure to give a justification charge under such circumstances constitutes reversible error … .

Here, the defendant requested a justification charge to the jury based, inter alia, upon his trial testimony that during his altercation with the decedent, there was a struggle for the Swiss Army-style knife attached to his key chain that he then used to inflict the fatal wounds. The defendant also testified that he feared for his life during the altercation. Under these circumstances, considering the record in the light most favorable to the defendant, the Supreme Court erred in failing to provide the jury with the requested justification charge … . People v Austin, 2015 NY Slip Op 09112, 2nd Dept 12-9-15

CRIMINAL LAW (FAILURE TO GIVE JUSTIFICATION DEFENSE JURY INSTRUCTION REQUIRED REVERSAL)/JUSTIFICATION DEFENSE (FAILURE TO CHARGE JURY REQUIRED REVERSAL)/JURY INSTRUCTIONS (FAILURE TO GIVE JUSTIFICATION DEFENSE JURY INSTRUCTION REQUIRED REVERSAL)

Proper “Initial Aggressor” Jury Instruction Where Defendant Intervenes In an On-Going Fight Explained

The Court of Appeals, in a full-fledged opinion by Judge Stein, determined a flawed “initial aggressor” jury instruction (an exception to the justification defense) required reversal. The defendant alleged that he intervened in an on-going fight on behalf of his brother who was being beaten with a hammer by the victim. The court described how the “initial aggressor” exception to the justification defense should be explained to the jury where a defendant intervenes in an on-going fight. Essentially, if the intervenor knowingly intervenes on behalf of the initial aggressor, the defense is not available. However, if the intervenor had nothing to do with starting the fight and had no reason to know who started the fight, the justification defense is available:

… [T]he standard charge [initial aggressor jury instruction] is misleading unless a supplemental charge is given on the meaning of “initial aggressor” in the defense-of-another scenario … . Thus, the jury should have been charged that, in the context of this case, the initial aggressor rule means — in sum and substance — that if defendant, as “the intervenor[,] somehow initiated or participated in the initiation of the original struggle or reasonably should have known that [his brother, as] the person being defended[,] initiated the original conflict, then justification is not a defense . . . If [defendant] had nothing to do with [the] original conflict and had no reason to know who initiated the first conflict, then the defense is available” … People v Walker, 2015 NY Slip Op 07784, CtApp 10-27-15

 

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Failure to Instruct the Jury on the Justification Defense Required Reversal and a New Trial/Referring to the Defendant as a Liar, Vouching for the People’s Case, and Asking the Jury to Draw Inferences Not Based Upon the Evidence Constitutes Prosecutorial Misconduct

The Second Department determined defendant was entitled to a new trial because his request for a jury instruction on the justification defense should not have been denied.  There was evidence the victim was in defendant’s home and was attempting to beat and rob the defendant at the time the victim was stabbed. That evidence was sufficient to require submission of the justification defense to the jury. Although the error was not preserved for appeal, the Second Department also noted that the prosecutor improperly characterized the defendant as a liar, vouched for the strength of the People’s case, and asked the jury to draw inferences which were not based upon evidence. With respect to the justification defense, the court explained:

” A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified'” … . Here, there was a reasonable view of the evidence to support the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). Viewing the evidence in the light most favorable to the defendant, the jury reasonably could have concluded that the defendant reasonably believed that the use of deadly force was necessary to prevent the victim from robbing him (see Penal Law § 35.15[2][b]…). Contrary to the People’s contention, it would not have been irrational for the jury to credit the defendant’s account of the incident … . Accordingly, the Supreme Court erred in denying the defendant’s request for a justification charge pursuant to Penal Law § 35.15(2)(b). The error in failing to give the requested justification charge was not harmless, as it cannot be said that there was no significant probability that the verdict would have been different absent this error … . People v Irving, 2015 NY Slip Op 06167, 2nd Dept 7-15-15

 

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Failure to Make Clear in the Jury Instructions that the Acquittal on the Top Count Based Upon the Justification Defense Required Acquittal on the Lesser Counts As Well Rendered the Verdict “Ambiguous”—New Trial Ordered in the Interest of Justice

The First Department, in a full-fledged opinion by Justice Tom, exercising the court’s “interest of justice” jurisdiction, determined defendant was entitled to a new trial because the jury instructions did not make clear that, if the jury found the defendant’s actions justified (self-defense), acquittal on all counts was mandatory. The defendant was charged with attempted murder, attempted assault in the first degree, and assault second degree stemming from a stabbing. There was evidence defendant may have acted in self-defense.  Therefore the jury was given the justification-defense instruction. The jury found the defendant not guilty of attempted murder, but guilty of the lesser two counts. If the not guilty verdict was based on the justification defense, then the defendant should have been acquitted of all charges. The jury instructions did not make the effect of finding the defendant’s acts justified clear. Because it could not be discerned whether the jury acquitted the defendant of attempted murder based on the justification defense, the verdict was ambiguous and a new trial was required, notwithstanding that the error in the jury instructions was not preserved:

On this record, review of the issue in the interest of justice is warranted because it is impossible to discern whether acquittal of the top count of attempted murder in the second degree was based on the jurors’ finding of justification so as to mandate acquittal on the two lesser counts. While lack of justification was included as an element of each crime, the verdict sheet and the court’s accompanying explanation created confusion, because they indicated among other things that the jurors “must consider” count three irrespective of their disposition of higher counts and they failed to explicitly convey that a finding of justification on the top count precluded further deliberation. While the trial court did follow the CJI justification instruction in its charge, it also included as an element of each offense “[t]hat the defendant was not justified,” which may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted the defendant of the top count of attempted murder in the second degree based on justification. People v Velez, 2015 NY Slip Op 05619, 1st Dept 6-30-15

 

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Failure to Suppress Statement Was Not Harmless Error Because the Statement Undermined the Justification Defense—Proof Burdens for “Harmless Error” and the Justification Defense Explained

The Court of Appeals determined the Appellate Division properly found that the “unwarned” statement made by 11-year-old Delroy should have been suppressed. The statement was made in Delroy’s apartment when a police officer asked him “what happened?”. Under the circumstances, “a reasonable 11 year old would not have felt free to leave” at the time the question was asked.  Therefore the question amounted to “custodial interrogation” in the absence of the Miranda warnings. The Court of Appeals, disagreeing with the Appellate Division, ruled the error was not harmless because the statement undermined Delroy’s defense of justification. There was no question Delroy stabbed the 12-year-old complainant.  But questions were raised by the trial testimony whether the stabbing was in self-defense. With respect to proof burdens for “harmless error” and the justification defense, the Court of Appeals explained:

A trial court’s error involving a constitutionally protected right is harmless beyond a reasonable doubt only if “there is no reasonable possibility that the error might have contributed to defendant’s conviction” … . “The People must show that any error was harmless beyond a reasonable doubt [and] [i]n deciding whether the People have met this burden, we consider both the overall strength of the case against defendant and the importance to that case of the improperly admitted evidence” … .

The record shows that while there was no doubt that Delroy had stabbed the complainant, there was evidence supporting Delroy’s justification defense. “The defense of justification . . . permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person” … . The People bear the burden of disproving the defense of justification beyond a reasonable doubt … . * * *

…[T]he People have not demonstrated that there is no reasonable possibility that the wrongly admitted evidence might have contributed to the guilty finding. Matter of Delroy S., 2015 NY Slip Op 04676, CtApp 6-4-15

 

Court Should Not Have Instructed the Jury on the Initial Aggressor Exception to the Justification Defense—No Evidence to Support the Exception

The First Department, over a dissent, determined the trial court should not have instructed the jury that the justification defense would not apply if the jury determined defendant was the initial aggressor.  The victim was swinging a mop handle, while the defendant used a gun. The majority held that there were no facts in the record from which it could be inferred the defendant was the initial aggressor: “In charging the jury on the justification defense, the court erred when, over defendant’s objection, it included the initial aggressor exception to the defense embodied in Penal Law § 35.15(1)(b). This concept, that defendant would not have been justified in using deadly physical force if he was the initial aggressor, was completely inapplicable to the facts of the case. Although the jury could have reasonably determined that defendant’s use of deadly force was unjustified (where defendant used a gun against the deceased, who wielded a mop handle), it could not have reasonably found that defendant was the initial aggressor because the evidence does not support such a conclusion. There was no evidence that defendant was the first person in the fatal encounter to use or threaten the imminent use of deadly force, or any kind of force, for that matter. On the contrary, the evidence tended to indicate either that it was the deceased who first used force, by swinging a mop handle at defendant, or that defendant and the deceased used or threatened force simultaneously.” People v Valentin, 2015 NY Slip Op 03914, 1st Dept 5-7-15

 

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The Decision Whether to Raise the Defense of Justification Is for the Defendant, Not Defense Counsel, to Make—Counsel Was Not Ineffective for Failing to Raise the Defense Over Defendant’s Objection—The Court Did Not Err By Failing to Instruct the Jury, Sua Sponte, on the Justification Defense In Response to a Jury Note Which Indicated the Jury Was Considering It

The Second Department, in a detailed and extensive opinion by Justice Mastro (not fully summarized here), over an equally detailed and extensive two-justice dissent, determined that defense counsel was not ineffective, and the court did not err, in rejecting the justification defense.  The defendant, accused of murder, insisted on a misidentification defense in this one-eyewitness case.  The defendant made it clear he did not want to rely on the justification defense (which would contradict his claim of innocence). In response to a jury note which implied the jury was considering whether the defendant had acted in self-defense, the judge, in accordance with the wishes of defense counsel, did not explain the justification defense to the jury and directed the jury to consider only the issue of intent.  On appeal, the defendant argued defense counsel was ineffective in not raising the justification defense and the judge erred by not instructing the jury on the defense sua sponte in response to the jury’s note.  In rejecting those arguments, the Second Department held that the decision whether to rely on the justification defense was for the defendant, not defense counsel, to make, and no error was made by defense counsel or the judge in following defendant’s wishes:

…[W]hen a defendant accepts the assistance of counsel, he or she retains authority only over certain fundamental decisions, such as whether to plead guilty, whether to waive a jury trial, whether to testify at trial, and whether to take an appeal … . Matters of strategy and tactics, such as whether to request the submission of lesser-included offenses for the jury’s consideration …, whether to seek or consent to a mistrial … , or whether to introduce certain evidence at trial …, generally fall within the purview of counsel. However, and of particular significance in the present case, the Court of Appeals has made clear that “a defendant unquestionably has the right to chart his own defense” … . Contrary to the defendant’s current position, his decision to pursue a defense based solely on misidentification, and to affirmatively reject an alternate defense based on justification in steadfast furtherance of that misidentification defense, involved a matter that was “personal” and “fundamental” to him …, and “did not implicate a matter of trial strategy or tactics” … . Indeed, under our law there simply is no more personal and fundamental right than that of the accused to rise before the trial justice and proclaim—to the court and to the world—his or her complete factual innocence of the crimes with which he or she has been charged. To require defense counsel in this case, over his client’s objection, to undermine that assertion of innocence by the injection into the case of a factually and logically inconsistent defense would, under the circumstances presented, impermissibly compromise that personal right. People v Clark, 2015 NY Slip Op 03558, 2nd Dept 4-29-15

 

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Threat and Insults Insufficient to Establish Appellant Was Initial Aggressor

The Second Department determined that the findings that the juvenile appellant had committed acts which would have constituted assault and menacing had the appellant been an adult were against the weight of the evidence. The court determined the appellant was not the initial aggressor and the appellant had acted in self defense.  The court explained that insults can not be the basis of an “initial aggressor” finding:

The defense of justification is available where, inter alia, the actor is acting in self-defense and the actor was not the initial aggressor … . An actor is not the initial aggressor where his or her conduct consists of “mere insults as opposed to threats” … . Where this defense is raised, the presentment agency must disprove it beyond a reasonable doubt (see Penal Law §§ 25.00, 35.00; Family Ct Act § 303.3).

Here, although the evidence established that the appellant verbally threatened to “slap the glasses off [the complainant’s] face,” the complainant testified that the appellant made this threat before the situation degenerated into a physical fight. Moreover, this type of threat, in the context in which it was uttered, did not constitute the type of threat that would support the conclusion that the appellant was the initial aggressor … . Similarly, although the appellant admitted to insulting the complainant, those insults, considered either alone or in connection with the above-described threat, were not sufficient to make the appellant the initial aggressor in the altercation … .  Matter of Mondy E, 2014 NY Slip Op 06821, 2nd Dept 10-8-14

 

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Confusing Jury Instruction Re: the Justification Defense Required Reversal of Murder Conviction in the Interest of Justice/Defendant’s Attorney Should Have Been Allowed to Testify at the Suppression Hearing—There Was a Question of Fact Whether the Attorney Called and Told the Police He Represented the Defendant and Defendant Should Not Be Questioned

The First Department reversed defendant's murder conviction in the interests of justice because of a confusing jury instruction.  The trial court did not make it clear to the jurors that the use of deadly force can be justified in defense of a robbery.   The First Department also noted that defendant's lawyer should have been allowed to testify at the suppression hearing because it was alleged the lawyer called the police station, informed officer Risorto he was representing defendant, and told officer Risorto the defendant should not be questioned:

In its main charge, the court instructed the jury that “[t]he only difference between the law of self-defense to repel a robbery as opposed to assault [is that] in repelling the robbery, the person has no duty to retreat.” This is an incorrect statement of the law because it ignores an additional critical difference between the two grounds for justification, namely, that deadly physical force may be permissible to defend against a robbery even if the alleged robber is using only physical force, and not deadly physical force (see People v Fuller, 74 AD2d at 879 [“a person is justified in using deadly physical force if he reasonably believed it necessary to use such force in order to resist his victim's imminent use of [mere] physical force against himself, in the course of a robbery attempt”]; People v Davis, 74 AD2d 607, 609 [2d Dept 1980] [jury should have been told that the defendant was justified in using deadly physical force if he reasonably believed it necessary to do so to resist the imminent use of physical force against him in the course of a robbery attempt]). The court's error was exacerbated when it repeated this erroneous statement in response to a jury note requesting further instructions on the defense of justification. * * *

The Court of Appeals has held that “an attorney enters a criminal matter and triggers the indelible right to counsel when the attorney . . . notifies the police that the suspect is represented by counsel” … . Once the police have reason to know that the suspect is represented by counsel in the case under investigation, the right to counsel cannot be waived unless the suspect does so in the presence of counsel … . An attorney does not need to enter the case in person, but can communicate his representation to the police by phone, “at which point the police are required to cease all questioning” … .

Here, the court erred in precluding defense counsel from testifying about the critical conversation with Risorto. The police testimony, along with defense counsel's affirmation, raised questions as to what defense counsel actually said to Risorto and, in particular, whether defense counsel told Risorto that he “represented” defendant in the case for which defendant was to be questioned. The court should not have made a factual finding that implicitly accepted Risorto's account, without giving defendant the opportunity to challenge that account. People v McTiernan, 2014 NY Slip Op 05363, 1st Dept 7-17-14

 

Temporary Lawful Possession of Weapon Defense Disproved/Justification Defense in Context of Criminal Possession of a Weapon Explained

The Fourth Department determined the evidence was sufficient to disprove defendant’s defense of temporary and lawful possession of a weapon, and explained how the justification defense relates to criminal possession of a weapon:

Even if, as defendant contends, he originally acquired the gun by disarming his alleged assailant in the course of a robbery, we conclude that the evidence is legally sufficient to establish that he thereafter possessed it with the requisite unlawful intent … .  After evading his alleged robber, defendant returned to the scene of the robbery with the gun drawn and fired five shots, one of which struck his alleged assailant in the leg. Defendant then regained possession of his property, a duffel bag containing $27,000 in cash, and fled upon the approach of the police. Such conduct is “utterly at odds with [defendant’s] claim of innocent possession . . . temporarily and incidentally [resulting] from . . . disarming a wrongful possessor”… .

Defendant further contends that he had no duty to retreat, but was justified in acting as he did, because the People failed to prove that he could have retreated with complete safety.  We reject that contention.  It is well settled that the defense of justification, which involves the “justifiable use of physical force” (Penal Law § 35.05 …), does not apply to criminal possession of a weapon … .  Thus, the “duty to retreat” rule, which applies to the defense of justification in connection with the use of deadly physical force (see § 35.15 [2] [a]), is not relevant here. Nonetheless, justification is relevant to a defendant’s intent in using a weapon.  In other words, “[t]he use of a firearm to engage in conduct that is justifiable under the law is not unlawful.  Thus, an intent to use a firearm against another justifiably is not an intent to use it unlawfully” … .  Here, however, the evidence is legally sufficient to establish that defendant “possessed the firearm with the intent to use it against another unlawfully and not solely with the intent to use it justifiably”… . People v Bailey, 1080, 4th Dept 11-8-13

 

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