| People v Ryan |
| 2008 NY Slip Op 07808 [55 AD3d 960] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Robert Ryan,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered October 14,2005 in Albany County, upon a verdict convicting defendant of the crime of assault in the seconddegree.
Defendant was charged in an indictment with assault in the first degree, assault in the second degreeand criminal possession of a weapon in the fourth degree. The charges arose from an incident in whicha fistfight broke out after defendant and the victim engaged in a game of "beer pong" at a party. Thevictim left and, approximately 10 minutes later, defendant departed with his girlfriend in her car. Whenthey saw the victim walking down the street, they stopped, defendant got out of the car and said, "hey,motherf . . . r, let's finish this fight." He then walked over to the victim, who punched himin the face and, after the two exchanged blows, defendant stabbed the victim. The fight stopped whensomeone came out of a house and broke it up. Unaware of the severity of his injuries, the victimresumed his walk home.
When he began to have trouble breathing and discovered that he was bleeding profusely, the victimwent to the hospital. While there, he felt a bulge protruding from his waist area and lifted his shirt to findhis "guts were hanging out." The victim was treated for superficial [*2]lacerations to his chest and forearms, and underwent surgery to repair alaceration to his abdomen through which his small intestine was protruding, as well as injuries to theintestine itself.
Following a suppression hearing, County Court (Herrick, J.) concluded that defendant's statementsto police were admissible but that the knife seized from him would not be admitted. The matter thenproceeded to a jury trial in Supreme Court (Lamont, J.), at the close of which defendant was convictedof assault in the second degree and acquitted of all other charges. He was subsequently sentenced tothree years in prison, to be followed by 1½ years of postrelease supervision. Defendant appeals,and we now reverse.
Initially, we reject defendant's arguments that the evidence was legally insufficient to support hisconviction and that the verdict was against the weight of the evidence. To prove assault in the seconddegree, the People must establish, as relevant here, that a defendant "recklessly cause[d] seriousphysical injury to another person by means of a deadly weapon or a dangerous instrument" (Penal Law§ 120.05 [4]). Defendant argues that the People failed to prove that the victim suffered a "seriousphysical injury," which is defined as a "physical injury which creates a substantial risk of death, or whichcauses death or serious and protracted disfigurement, protracted impairment of health or protractedloss or impairment of the function of any bodily organ" (Penal Law § 10.00 [10]). The recordreveals, however, that although the victim was conscious and initially able to communicate with hospitalpersonnel, the knife had penetrated through his abdominal wall, lacerating his small intestine and causingit to protrude from the abdomen—an emergency situation and serious, life-threatening medicalproblem. As a result, the victim required surgery and hospitalization, and now suffers from disfigurementin the form of scarring, as well as pain; described as feeling "like a piece of glass runningthrough [his] body"—when he eats. In our view, this evidence was legally sufficient to establishthat the victim suffered a "serious physical injury" within the meaning of Penal Law § 10.00 (10);nor can it be said under these circumstances that the verdict was against the weight of the evidence(see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Coon, 34 AD3d 869, 870-871 [2006]; People v Johnson, 23 AD3d 686,687-688 [2005], lv denied 6 NY3d 895 [2006]; People v Barnett, 16 AD3d 1128, 1129 [2005], lv denied 4NY3d 883 [2005]; see also People vPrince, 51 AD3d 1052, 1054-1055 [2008], lv denied 10 NY3d 938 [2008]; cf. People v Gray, 30 AD3d 771,772-773 [2006], lv denied 7 NY3d 848 [2006]; People v Sleasman, 24 AD3d 1041, 1042-1043 [2005]; People v Horton, 9 AD3d 503,504-505 [2004], lv denied 3 NY3d 707 [2004]).
We are similarly unpersuaded by defendant's contention that his oral and written statements topolice—which were given after defendant was read his Mirandawarnings—should have been suppressed, in addition to the knife that was seized, because therewas no pronounced break in the police interrogation. Contrary to defendant's argument, the evidence atthe suppression hearing established that the seizure of the knife occurred at defendant's residence, andthat approximately two hours passed between the seizure and the time that defendant gave hisstatement at the precinct. During that time, defendant traveled to the police station, where his friendswere interviewed while he waited in the booking area. We note that defendant went willingly to thepolice station and agreed to speak to police after receiving his Miranda warnings, and that thecircumstances surrounding the earlier violation—the officer simply indicated that he knewdefendant had a knife and demanded that defendant retrieve it—were different in nature andmethod from the later interrogation at the station. Thus, "there was a sufficiently 'definite, pronouncedbreak in the interrogation' to dissipate the taint from the Miranda violation," and County Courtproperly determined that the subsequent statements were admissible (People v Paulman, 5 NY3d 122, 131[2005], quoting People v Chapple, 38 NY2d 112, 115 [1975]; see [*3]People v Hicks, 226 AD2d 938, 939-940 [1996], lv denied88 NY2d 937 [1996]; cf. People v Hall,41 AD3d 880, 883 [2007], lv denied 9 NY3d 876 [2007]; People v Durrin, 32 AD3d 665, 668[2006]).
Also unavailing is defendant's argument that Supreme Court erred in denying his request to instructthe jury on the justification defense. "Although the record must be considered in the light most favorableto the accused, a court need not charge justification if no reasonable view of the evidence establishesthe elements of the defense" (People v Reynoso, 73 NY2d 816, 818 [1988] [citationsomitted]). Particularly relevant here, the justification defense is not available where the defendant wasthe initial aggressor, or where deadly physical force was used—as in this case (see People v Jones, 24 AD3d 815,816 [2005], lv denied 6 NY3d 777 [2006]; People v Mothon, 284 AD2d 568, 569[2001], lv denied 96 NY2d 865 [2001])—and the defendant knows he or she cansafely retreat (see Penal Law § 35.15 [1] [b]; [2] [a]; People v Petty, 7 NY3d 277, 285[2006]; People v Grady, 40 AD3d1368, 1371 [2007], lv denied 9 NY3d 923 [2007]). Inasmuch as there is no reasonableview of the evidence under which the jury could conclude that defendant was not the initial aggressor inthe street encounter or that he lacked an available avenue of safe retreat, Supreme Court properlyrefused defendant's request (see People v Reynoso, 73 NY2d at 818; People vGrady, 40 AD3d at 1372-1373).
We agree with defendant, however, that Supreme Court committed reversible error in refusing tocharge the lesser included offense of assault in the third degree. A defendant who requests that a lesserincluded offense be submitted to the jury is entitled to the charge if (1) "it is impossible to commit thegreater crime without concomitantly committing the lesser offense by the same conduct" and (2) "there[is] a reasonable view of the evidence to support a finding that the defendant committed the lesseroffense but not the greater" (People v Van Norstrand, 85 NY2d 131, 135 [1995]; see People v Miller, 6 NY3d 295, 302[2006]). Here, while the court was giving the jury charge, defendant requested that the court alsocharge reckless assault in the third degree, i.e., that defendant "recklessly cause[d] physical injury" tothe victim (Penal Law § 120.00 [2]), which is a lesser included offense of assault in the firstdegree (see Penal Law § 120.10 [1]). Notably, the elements of reckless assault in thethird degree, i.e., recklessness and physical injury, were present in other lesser included charges to besubmitted at the People's request (see Penal Law § 120.05 [2], [4]). Indeed,given the People's implicit concession that those elements should have been charged to the jury, thecourt concluded that a reasonable view of the evidence supported a finding that defendant committedthe lesser but not the greater offense. Nevertheless, the court rejected defendant's charge-down requestsolely on the ground that it was untimely.
While "[a]s a general rule requests for submission of lesser included offenses should be made priorto the summations . . . , whe[n] a defendant requests submission of a lesser includedoffense before the jury retires for deliberations, the request cannot be rejected as untimely" (Peoplev Hanley, 87 AD2d 850, 851 [1982]; see CPL 300.50 [1]; People v Cabrera,268 AD2d 316, 317-318 [2000], lv denied 94 NY2d 945 [2000]; People v McInnis,179 AD2d 781, 782 [1992], lv denied 79 NY2d 1004 [1992]; People v Noguera,102 AD2d 775, 775 [1984], lv denied 63 NY2d 777 [1984]; cf. People v Duncan,46 NY2d 74, 80 [1978], cert denied 442 US 910 [1979]). Under the circumstances here andparticularly in light of the People's charge-down requests, defendant was also entitled to the lesserincluded instruction that he requested, and we are constrained to reverse and remit for a new trial onthe charge of assault in the second degree under Penal Law § 120.05 (4) (see People v Devonish, 6 NY3d 727,728 [2005]; People v Van Norstrand, 85 NY2d at 136; cf. People v Burnett, 270AD2d 901, 901 [2000], lv denied 95 NY2d [*4]851[2000]).[FN*]
Spain, Carpinello, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is reversed, on thelaw, and matter remitted to the Supreme Court for a new trial.
Footnote *: It is unclear whether defendant alsoseeks to argue that assault in the third degree pursuant to Penal Law § 120.00 (3), whichinvolves a mens rea of criminal negligence, should have been charged to the jury. To the extent that hedoes so argue, we reject his assertions in this regard inasmuch as there is no reasonable view of theevidence that defendant acted with criminal negligence (see Penal Law § 15.05 [4]).