| People v Beckford |
| 2008 NY Slip Op 01958 [49 AD3d 547] |
| March 4, 2008 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Norman Beckford, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Jennifer Etkin of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (McGann,J.), rendered January 10, 2006, convicting him of assault in the second degree and criminalpossession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
After renting his basement apartment to the complainant for approximately four months, thedefendant informed the complainant that he would have one week to move out. The followingnight, however, the complainant returned to the defendant's house to find his belongings in thedriveway. After the complainant knocked and, at times banged, on the defendant's door forapproximately 10 minutes, the defendant opened the door and lunged at the complainant with amachete, striking him four times. The jury convicted the defendant of assault in the seconddegree (see Penal Law § 120.05 [2]) as a lesser-included offense of assault in thefirst degree, which was charged in the indictment (see Penal Law § 120.10 [1]),and criminal possession of a weapon in the fourth degree (see Penal Law § 265.01[2]).
Contrary to the defendant's contention, the trial court did not err in denying his request tocharge the jury on assault in the third degree (see Penal Law § 120.00 [3]) as alesser-included offense of assault in the first degree and assault in the second degree. There wasno reasonable view of the evidence presented that would support a jury finding that the defendantacted with criminal negligence rather than intent to cause serious physical injury or physicalinjury (see People v Miceli, [*2]235 AD2d 551 [1997];CPL 300.50 [1]).
Further, the trial court properly denied the defendant's request for a jury charge on thejustifiable use of "physical force" (Penal Law § 35.20 [1], [2]) and "deadly physical force"(Penal Law § 35.20 [3]). Viewed in the light most favorable to the defendant (seePeople v Padgett, 60 NY2d 142, 144 [1983]; People v Watts, 57 NY2d 299, 301[1982]), the evidence did not support a justification charge under either theory. Given the factthat the defendant stabbed the complainant four times with an approximately five-poundmachete, it cannot be said that he utilized anything other than deadly physical force (seePeople v Magliato, 68 NY2d 24, 29 [1986]; People v Samuels, 198 AD2d 384[1993]). Additionally, the evidence did not support a charge on the justifiable use of deadlyphysical force to prevent or terminate the commission or attempted commission of a burglary(see People v Godfrey, 80 NY2d 860 [1992]; People v White, 305 AD2d 616[2003]). Mastro, J.P., Covello, Eng and Belen, JJ., concur.