| People v Johnson |
| 2012 NY Slip Op 00258 [91 AD3d 1121] |
| Jnury 19, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v ShawndellJohnson, Appellant. |
—[*1] Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), forrespondent.
Garry, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered March 17,2010 in Schenectady County, upon a verdict convicting defendant of the crime of assault in thesecond degree.
While incarcerated in the Schenectady County jail, defendant engaged in violent conductwith another inmate. Correction officer Stephen Redmond (hereinafter the victim) was standingin front of the two inmates when they began to fight. Upon hearing other officers shoutingcommands for the two to "stop," the victim turned and attempted to restrain defendant.Defendant kicked and struggled, and the two fell to the ground. As a result, the victim sustainedarm and shoulder injuries.
Defendant was indicted on two counts of assault in the second degree. Following a jury trial,he was acquitted of the count pertaining to the other inmate and convicted of the count pertainingto the victim. Supreme Court conducted a restitution hearing, ordered defendant to payrestitution, and sentenced defendant as a second felony offender to a prison term of five years andfive years of postrelease supervision. Defendant appeals.
Defendant contends that Supreme Court erred in failing to instruct the jury on the defense ofjustification as to the assault charge pertaining to the victim (see Penal Law §120.05[*2][3]).[FN1]Generally, "a justification charge is proper when, viewing the evidence in the light mostfavorable to the defendant, the jury, based upon a reasonable view of the evidence, could findthat the defendant's acts were justified" (People v Mothon, 284 AD2d 568, 569 [2001],lv denied 96 NY2d 865 [2001]; see People v Curry, 85 AD3d 1209, 1211-1212 [2011], lvdenied 17 NY3d 815 [2011]). In making this determination, the jury would be required toconsider whether defendant reasonably believed that physical force was necessary to defendhimself against another person's use or imminent use of physical force, and whether a reasonableperson would have held this belief in the same circumstances (see Penal Law §35.15 [1]; People v Young, 33AD3d 1120, 1122-1123 [2006], lv denied 8 NY3d 929 [2007]). The testimony of thevictim and other witnesses to the altercation fully established that the other inmate had alreadybeen subdued and was cooperating with other officers by the time the victim intervened, and thatdefendant continued to struggle with the victim even after the other inmate had been handcuffed.Viewed in the light most favorable to defendant, there was no evidence supporting a reasonablebelief that, after the victim intervened, physical force was necessary to avert any threat posed bythe other inmate to defendant. Accordingly, defendant was not entitled to a justificationinstruction on the charge pertaining to the victim (see People v Pine, 82 AD3d 1498, 1500-1501 [2011], lvdenied 17 NY3d 820 [2011]; Peoplev Grady, 40 AD3d 1368, 1371 [2007], lv denied 9 NY3d 923 [2007]).
We further reject defendant's contention that the People improperly impeached their ownwitness by calling an inmate to testify about his observations of the altercation and then inquiringinto his criminal history. Although it is well established that a party may not impeach its ownwitness unless "that witness gives testimony upon a material issue or fact which 'tends todisprove the party's position or affirmatively damages the party's case' "(People v Andujar, 290 AD2d 654, 656 [2002], lv denied 98 NY2d 648 [2002],quoting People v Saez, 69 NY2d 802, 804 [1987]), nothing in the testimony hereindicates that the People made the inquiry to discredit the witness—whose testimony wasconsistent with that of the victim and other witnesses who testified for the People. Instead, thepurpose of the questions pertaining to the inmate's criminal history was to mitigate the damagingeffect this information would have had if elicited on cross-examination (see People v Alcantara, 78 AD3d721, 722 [2010], lv denied 16 NY3d 827 [2011]; People v Guy, 223 AD2d723, 724 [1996]).[FN2]In any event, even if the testimony constituted improper impeachment, any error was harmless inlight of the overwhelming evidence of defendant's guilt (see People v Saez, 69 NY2d at804; People v West, 85 AD3d1393, 1394 [2011], lv denied 17 NY3d 905 [2011]).
Finally, defendant challenges Supreme Court's restitution award. In seeking restitution, thePeople bore the burden of demonstrating the amount of the victim's out-of-pocket losses by a[*3]preponderance of the evidence (see Penal Law§ 60.27 [2]; People v Stevens,84 AD3d 1424, 1427 [2011], lv denied 17 NY3d 822 [2011]). The amount gained bydefendant or taken from the victim must be offset against the value of any benefit that may havebeen conferred upon the victim, and "the People must show both components of the restitutionequation, the amount taken minus the benefit conferred" (People v Tzitzikalakis, 8 NY3d 217, 221-222 [2007]; accord People v Russo, 68 AD3d1437, 1438 [2009]). Here, the restitution award represents deductions taken from thevictim's pay during a disability leave following his injury, for meal and uniform allowances in theamount of $549.99 and for holiday pay in the amount of $594.87. An employee of theSchenectady County Auditor's office testified that correction officers are paid an annual mealallowance to compensate them for regular meal breaks that they are unable to take duringworking hours because they are in continuous service, as well as a uniform allowancereimbursing them for the purchase and upkeep of their uniforms. The employee further testifiedthat these payments are deducted on a prorated basis from the pay of officers who are on leave,on vacation, or otherwise not physically present at work, as they are not then necessary. Theseallowances are reimbursements for expenses and losses actually incurred by working officers,and thus were not properly awarded to the victim. He was not required to forgo meal breaks norwear his uniform during his disability leave and, thus, he did not incur these losses (seePeople v Tzitzikalakis, 8 NY3d at 221-222). The employee further testified that correctionofficers do not receive time off for holidays, and therefore receive holiday pay for 13 scheduledwork days each year. However, these payments are not made under certain circumstances,including disability leaves. Accordingly, during the victim's leave, an amount was deducted fromhis pay for three days on which he would have received holiday pay if he had been working. Thisamount thus represents an out-of-pocket loss incurred by the victim as a direct result ofdefendant's actions and was properly ordered as restitution (see id.; People vStevens, 84 AD3d at 1427; People vFord, 77 AD3d 1176, 1176-1177 [2010], lv denied 17 NY3d 816 [2011]).
Mercure, A.P.J., Peters, Rose and Lahtinen, JJ., concur. Ordered that the judgment ismodified, on the law, by reversing so much thereof as ordered the payment of $549.99 inrestitution for meal and uniform allowances, and, as so modified, affirmed.
Footnote 1: This issue was preserved forreview by Supreme Court's ruling on defense counsel's request for a justification instruction,which expressly denied the request as to the charge pertaining to the victim, while granting it asto the charge pertaining to the inmate (see CPL 470.05 [2]; People v Edwards, 95NY2d 486, 491 n 2 [2000]).
Footnote 2: We note that the fact that thewitness had a criminal history was self-evident from his testimony that he witnessed the incidentwhile incarcerated at the prison where it occurred.