| People v Smith |
| 2009 NY Slip Op 03606 [62 AD3d 411] |
| May 5, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Charles Smith, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Christopher P. Marinelli of counsel),for respondent.
Judgment, Supreme Court, New York County (Roger S. Hayes, J.), rendered June 9, 2006,convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as asecond felony offender, to a term of three years, unanimously reversed, on the law, and thematter remanded for a new trial.
Although it admirably devoted a great deal of time to considering this very close question,the court should have instructed the jury as to justification. That defense was supported by areasonable view of the evidence, viewed in the light most favorable to defendant. We note thatdefendant's contention that there were two separate incidents is extraordinarily unlikely.Nevertheless, it would not have been entirely implausible for the jury to find that there were twoseparate encounters, that in the second of the two encounters, the complainant bus driver was theaggressor, that defendant's actions in rolling around with the complainant on the ground causedthe complainant's injuries, and that defendant's actions were justified. The fact that defendanttestified that he did not kick or punch the complainant while they rolled on the ground does notalone preclude a justification instruction, since the evidence, viewed as a whole, supported suchan instruction (see People v Suarez, 148 AD2d 367, 368-369 [1989]; People vIngrassia, 118 AD2d 587, 588 [1986]). To accept a justification defense, the jury would nothave been required to speculate as to a scenario not supported by any testimony.
We note that defendant's conviction cannot stand based solely on the fact that defendantstruck the complainant while he was still on the bus. That blow to the face does not appear, onthis record, to have resulted in the physical injury required to sustain the People's burden (seePenal Law § 120.05 [11]; § 10.00 [9]; see also People v McDowell, 28NY2d 373 [1971] [incidental reference to an injury without development of its appearance orseriousness not [*2]sufficient to sustain conviction]).
Finally, the identification testimony at issue on this appeal did not require CPL 710.30 (1)(b) notice (see People v Burgos, 219 AD2d 504 [1995], lv denied 86 NY2d 872[1995]). Concur—Tom, J.P., Mazzarelli, Nardelli, Catterson and Moskowitz, JJ.