| People v Locicero |
| 2011 NY Slip Op 06861 [87 AD3d 1163] |
| September 27, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Johnny Locicero, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Ann Bordley, andAdam M. Koelsch of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Del Giudice,J.), rendered September 10, 2009, convicting him of assault in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is reversed, on the law, and the matter is remitted to the SupremeCourt, Kings County, for a new trial.
The defendant was involved in two physical altercations with the complainant and several ofthe complainant's companions. During the first altercation, the defendant struck the complainantin the face. The defendant was then attacked by approximately 8 to 10 of the complainant'scompanions. The defendant claimed that one of the complainant's companions brandished aknife, and that others screamed that the defendant should be killed. Nevertheless, the defendantmanaged to walk away from his alleged attackers, all the while cursing at them. The complainantand one of his companions pursued the defendant and the defendant's cousin, who was with thedefendant at the time.
During the second altercation, which occurred a few moments after the first, the complainantstruck the defendant and pushed him up against a car, where fighting ensued. The defendantstabbed the complainant in his side and back before fleeing the scene. The defendant turnedhimself in to police a few days later.
The defendant asserted the defense of justification at trial, testifying that he feared for his lifebased upon threats made by several of the complainant's companions and the brandishing of aknife by one of the complainant's companions (see Penal Law § 35.15). TheSupreme Court charged the jury that in determining whether the defendant reasonably believedthat imminent deadly force was to be used against him, it must determine whether a reasonableperson, "being in the defendant's position, knowing what the defendant knew and being in thesame circumstances, would have had those same beliefs." However, over the defendant'sobjection, the court did not instruct the jury to consider the actions of the complainant'scompanions in making this determination.
The Court of Appeals has stated that "a determination of reasonableness must be based onthe 'circumstances' facing a defendant or his 'situation.' Such terms encompass more than [*2]the physical movements of the potential assailant . . .[T]hese terms include any relevant knowledge the defendant had about that person. They alsonecessarily bring in the physical attributes of all persons involved, including the defendant"(People v Goetz, 68 NY2d 96, 114 [1986]). "Accordingly, a jury should be instructed toconsider this type of evidence in weighing the defendant's actions" (id. at 114-115;see People v Wesley, 76 NY2d 555, 559-560 [1990]). Here, the Supreme Court's failureto elaborate on the meaning of "circumstances" and to inform the jury that it could consider theconduct of the complainant's companions rendered the charge insufficient (see People vWesley, 76 NY2d at 560; People v Goetz, 68 NY2d at 115; People v Young, 33 AD3d 1120,1123 [2006]).
Contrary to the People's contention, the Supreme Court's error cannot be deemed harmless.Given that there was conflicting evidence as to whether it was the defendant or the complainantwho pulled out the knife that the defendant used to stab the complainant, and given the testimonythat one of the complainant's companions had brandished a knife during the first altercation andthat there were threats made against the defendant's life by the complainant's companions, therewas not overwhelming evidence to establish that the defendant was not justified, and the jurymay have reached a different conclusion had a proper and complete justification instruction beengiven (see People v Wesley, 76 NY2d at 560; People v Crimmins, 36 NY2d 230,241-242 [1975]; People v Young, 33 AD3d at 1123-1124; People v Lauderdale,295 AD2d 539, 540 [2002]). Accordingly, reversal is required and the matter must be remittedfor a new trial.
Contrary to the defendant's contention, he was not deprived of the effective assistance ofcounsel during the grand jury proceeding (see People v Wiggins, 89 NY2d 872, 873-874[1996]; People v Griffith, 76 AD3d1102 [2010]).
In light of our determination, we need not reach the defendant's remaining contentions.Mastro, J.P., Balkin, Chambers and Lott, JJ., concur.