| People v Garcia |
| 2009 NY Slip Op 00999 [59 AD3d 211] |
| February 10, 2009 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v CesarGarcia, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Marc A. Sherman of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Darcel D. Clark, J.), rendered June 18, 2008,convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as asecond felony offender, to a term of five years, unanimously affirmed.
The court properly denied defendant's request for a justification charge, since there was noreasonable view of the evidence, when viewed in the light most favorable to defendant, thatwould support that charge (see People v Watts, 57 NY2d 299, 301-302 [1982]). It wasundisputed that after defendant's stepson, who was unarmed, struck defendant a single blow withhis hand, defendant struck his stepson on the head and shoulder with the claw side of a clawhammer, causing significant injuries.
Defendant's conduct constituted deadly physical force within the meaning of Penal Law§ 10.00 (11). There was no factual issue for resolution by the jury with respect to whetherdefendant used deadly or ordinary physical force, and no reason to instruct the jury on thejustifiable use of ordinary force (see People v Mickens, 219 AD2d 543 [1995], lvdenied 87 NY2d 904 [1995]). Moreover, in order to convict defendant of second-degreeassault by means of a dangerous instrument (Penal Law § 120.05 [2]), the jury essentiallyhad to find that he used deadly force (see Penal Law § 10.00 [13]).
As for defendant's use of deadly force, there was no evidence presented by either the Peopleor defendant that defendant reasonably believed such force to have been necessary to defendhimself from deadly force. Defendant argues that the evidence supports inferences that hebelieved that his stepson was armed, and also believed that his wife was about to join the attack.However, there is nothing but speculation to support either the objective or subjective aspects(see People v Goetz, 68 NY2d 96 [1986]) of the justification defense (see People v Hubrecht, 2 AD3d289, 290 [2003], lv denied 2 NY3d 741 [2004]).
To the extent that defendant is raising a constitutional claim, such claim is unpreserved andwe decline to review it in [*2]the interest of justice. As analternative holding, we also reject it on the merits. Concur—Tom, J.P., Saxe, McGuire,Moskowitz and Freedman, JJ.