| People v Zayas |
| 2011 NY Slip Op 07469 [88 AD3d 918] |
| October 18, 2011 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Raymond Zayas, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Robert H. Middlemiss and AndrewR. Kass of counsel), for respondent.
Appeals by the defendant from (1) a judgment of the County Court, Orange County (Berry,J.), rendered June 2, 2008, convicting him of assault in the first degree, attempted assault in thefirst degree (two counts), criminal possession of a weapon in the second degree (two counts),assault in the second degree, criminal possession of a weapon in the third degree, andendangering the welfare of a child, under indictment No. 07-00720, upon a jury verdict, andimposing sentence, and (2) an amended judgment of the same court rendered June 4, 2008,revoking a sentence of probation previously imposed by the same court, upon a finding that hehad violated conditions thereof, after a hearing, and imposing a sentence of imprisonment uponhis conviction of assault in the second degree under indictment No. 04-00752. The appeal fromthe judgment brings up for review the denial, after a hearing, of that branch of the defendant'somnibus motion which was to suppress his statements to law enforcement officials.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, that branch of the defendant's omnibus motion which was to suppress his statements tolaw enforcement officials is granted, the amended judgment is vacated, and a new trial on thecounts set forth in indictment No. 07-00720 is ordered before a different judge; and it is further,
Ordered that the appeal from the amended judgment is dismissed in light of ourdetermination on the appeal from the judgment.
The defendant's convictions stem from an incident which occurred on July 24, 2007. Thepolice responded to the defendant's residence in response to a report of a domestic dispute. Uponarriving, the police did not hear any sounds coming from the house. One of the officers recalledreceiving a subsequent radio transmission confirming that there was a man with a knife and achild inside the defendant's house. When the officers attempted forcibly to enter the dwelling bykicking in a door and breaking a window, the defendant fired shots through the door, striking oneof the officers. The defendant later emerged from the residence and surrendered to the police.
The defendant contends that the statements given by him to the police were [*2]involuntarily made in that they were obtained by the use of physicalforce. At a suppression hearing, several police officers who observed the defendant emerge fromthe house following the shooting testified that they did not observe the defendant struggle withthe officers when he was taken into custody. In addition, the police officer who transported thedefendant from the scene of the shooting to a police station and escorted him to an interviewroom in the police station testified that he did not observe any injuries or marks on the defendant.This officer was shown a series of photographs of the defendant, which were taken at a jail afterthe defendant had given his statements, and depicted certain marks and injuries. The officertestified that he did not see the injuries or marks depicted in the photographs prior to transferringcustody of the defendant to the detectives who took the defendant's statements. There was alsotestimony that the defendant received medical treatment following his interview with thedetectives. The defendant's medical records, which were submitted to the hearing court,documented injuries sustained by the defendant, including skin abrasions, swelling, and asprained wrist. Under the particular circumstances of this case, the People failed to establish thevoluntariness of the defendant's statements beyond a reasonable doubt (see People vKeller, 185 AD2d 994 [1992]). Accordingly, the hearing court should have granted thatbranch of the defendant's omnibus motion which was to suppress his statements to lawenforcement officials.
Further, the trial court erred in denying the defendant's request for a justification charge withrespect to the counts of assault in the first degree, attempted assault in the first degree, andassault in the second degree. Penal Law § 35.20 (3) provides that "[a] person in possessionor control of, or licensed or privileged to be in, a dwelling . . . who reasonablybelieves that another person is committing or attempting to commit a burglary of such dwelling. . . may use deadly physical force upon such other person when he or shereasonably believes such to be necessary to prevent or terminate the commission or attemptedcommission of such burglary." "A trial court must charge the jury with respect to the defense ofjustification whenever, viewing the record in the light most favorable to the defendant, there isany reasonable view of the evidence which would permit the jury to conclude that the defendant'sconduct was justified" (People vFermin, 36 AD3d 934, 935 [2007]; see People v Minaya, 6 AD3d 728, 730 [2004]). The failure toissue a justification charge under such circumstances constitutes reversible error (see People vMaher, 79 NY2d 978 [1992]; People v Fermin, 36 AD3d at 935). Here, there was areasonable view of the evidence to support the defendant's request for a justification charge underPenal Law § 35.20 (3).
At trial, the three police officers who initially responded to the report of a domestic disputetestified that they had identified themselves as police officers before attempting forcibly to enterthe defendant's house. However, the defendant's wife, who was on the street when the officersarrived, testified that the officers began to kick the side door within less than a minute ofarriving, and that she did not hear anyone yell anything prior to the gunshots. A neighbor testifiedthat, prior to hearing the gunshots, she did not hear any police officers shouting or announcingtheir arrival. Five other neighbors similarly testified that they did not hear any police officersshouting prior to the gunshots. Based on this testimony, the jury reasonably could haveconcluded that the police officers did not identify themselves prior to their attempt forcibly toenter the defendant's house, and that the defendant reasonably believed that a person wasattempting to commit a burglary of his dwelling. In fact, during deliberations, the jury sent a noterequesting "New York State's law regarding the use of deadly force if your house is being brokeninto," which the trial court declined to provide. Moreover, contrary to the trial court'sdetermination, a justification charge was warranted based on the prosecution's case alone (seePeople v Steele, 26 NY2d 526, 528-529 [1970]). Accordingly, based on the foregoing, thetrial court should have granted the defendant's request for a justification charge.
We also agree with the defendant that the trial judge improperly denigrated defense counsel,sometimes in the presence of the jury. The trial judge "demonstrated an antagonistic attitudetowards defendant's counsel and engaged in a disparagement of the manner in which counselconducted himself in the course of his representation of defendant" (People v Johns, 69AD2d 843, 844 [1979]; see People v De Jesus, 42 NY2d 519, 523-524 [1977]; Peoplev Montes, 141 AD2d 767, 768 [1988]; cf. People v Gonzalez, 38 NY2d 208, 210[1975]). Moreover, the trial judge improperly interjected himself into the proceedings byinterrupting defense counsel's cross-examination of a witness to clarify the witness's earliertestimony, and then reading to the jury from his personal notes concerning what the [*3]witness had said (see People v Johns, 69 AD2d at 843).
Although, in fulfilling our responsibility to conduct an independent review of the weight ofthe evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348 [2007]), we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d633, 643 [2006]), under the circumstances of this case, the defendant was deprived of hisright to a fair trial and, thus, a new trial before a different judge is warranted on all counts underindictment No. 07-00720.
In light of our determination, we need not reach the defendant's remaining contentions.Skelos, J.P., Belen, Hall and Roman, JJ., concur.