| People v Mills |
| 2007 NY Slip Op 08573 [45 AD3d 1348] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v James L.Mills, Jr., Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), renderedFebruary 2, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possessionof stolen property in the third degree, aggravated unlicensed operation of a motor vehicle in thesecond degree and unauthorized use of a vehicle in the second degree.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law, a new trial is granted on counts one and two of the indictmentand count three of the indictment is dismissed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial ofcriminal possession of stolen property in the third degree (Penal Law § 165.50),unauthorized use of a vehicle in the second degree (§ 165.06) and aggravated unlicensedoperation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [2] [a][iv]). The conviction arises out of defendant's operation of a stolen vehicle behind an areaconsisting of a convenience store/gas station, a lot for overnight truck parking, a motel and asmall restaurant. Defendant testified that he and another passenger in the vehicle were arguingand subsequently engaged in a fistfight outside the vehicle. When a group of men gatheredaround the fistfight, defendant became fearful that he would be attacked by the group, whereuponhe entered the vehicle and drove from the scene.
County Court erred in denying defendant's request for a justification charge. Considering theevidence in the light most favorable to defendant, we conclude that there is a reasonable view ofthe evidence that defendant's conduct was justified "[u]nder the 'choice of evils' theory of PenalLaw § 35.05 (2)" as a means to avoid an imminent attack (People v Maher, 79NY2d 978, 981 [1992]; see People v Padgett, 60 NY2d 142, 145-146 [1983]; People v Newman, 3 Misc 3d 361,363 [2004]). We therefore reverse the judgment and grant a new trial on counts one and two ofthe indictment.
Count three of the indictment, charging aggravated unlicensed operation of a motor vehiclein the second degree, must be dismissed. The evidence, viewed in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), is legally insufficient toestablish that defendant operated the vehicle "upon a public highway" (Vehicle and Traffic Law§ 511 [1] [a]; see People v Thew, 44 NY2d 681, 682 [1978]; People vOstermeier, 118 Misc 2d 68, 70-[*2]71 [1983]). In view ofour decision, we do not address defendant's remaining contentions. Present—Scudder, P.J.,Hurlbutt, Fahey, Green and Pine, JJ.