| Killon v Parrotta |
| 2012 NY Slip Op 06095 [98 AD3d 828] |
| August 30, 2012 |
| Appellate Division, Third Department |
| Stacey S. Killon, Appellant, v Robert A. Parrotta,Respondent. |
—[*1] Gregory V. Canale, Glens Falls, for respondent.
Rose, J.P. Appeals (1) from an order of the Supreme Court (Muller, J.), entered April 8, 2011in Warren County, which denied plaintiff's motion to set aside a verdict, and (2) from a judgmentof said court, entered April 11, 2011 in Warren County, upon a verdict rendered in favor ofdefendant.
Plaintiff commenced this action against defendant seeking damages for injuries he sustainedas a result of an alleged battery unlawfully committed upon him by defendant. In his answerdefendant raised, as pertinent here, the affirmative defense of justification. After trial, the juryreturned a verdict in favor of defendant, finding that he was justified in his use of what it foundto be deadly physical force upon plaintiff. Plaintiff immediately moved to set aside the verdict asagainst the weight of the credible evidence and sought an order directing judgment in his favor.Supreme Court denied the motion and entered judgment on the verdict. Plaintiff now appealsfrom both the order denying his postverdict motion and the judgment, arguing that no fairinterpretation of the evidence supports the jury's finding that defendant's use of deadly physicalforce was justified.[FN1][*2]
As a general rule, a verdict should not be set aside asagainst the weight of the credible evidence unless " 'the evidence so preponderate[d] in favor ofthe [movant] that [the verdict] could not have been reached on any fair interpretation of theevidence' " (Biello v Albany Mem.Hosp., 49 AD3d 1036, 1037 [2008], quoting Lolik v Big V Supermarkets, 86NY2d 744, 746 [1995]; accord Dentes vMauser, 91 AD3d 1143, 1144 [2012]). We view the evidence in a light most favorableto defendant, as the nonmoving party (see Adami v Wallace, 68 AD3d 1397, 1398-1399 [2009]), and ourreview is tempered by the " 'considerable deference [that] must be accorded to the jury'sinterpretation of the evidence and resolution of credibility issues' " (Harris v Parwez, 13 AD3d 675,677 [2004], quoting Hess v Dart, 282 AD2d 810, 811 [2001]; see Vogel v Cichy, 53 AD3d 877,878 [2008]; Heilbrunn v Town ofWoodstock, 50 AD3d 1377, 1378 [2008]). Nevertheless, as the verdict finding thatdefendant acted in self-defense required a conclusion that defendant was not the initial aggressorin the encounter, we must agree with plaintiff that no fair interpretation of the evidence supportsthat conclusion.
According to defendant's own testimony, he became upset and angry when he received twothreatening phone calls from plaintiff shortly after midnight. Although he knew that plaintiff hadbeen drinking, he immediately got into his pickup truck and drove 20 miles to plaintiff's homewith the intention of settling their ongoing dispute "man to man." When defendant arrived atplaintiff's home, he parked his truck in the driveway with the headlights shining on plaintiff'sfront door and got out. Plaintiff stepped out onto the small front porch of his home, saw thatdefendant was on his property and retrieved a maul handle from inside the house. In order to"level the playing field," defendant then pulled a baseball bat from his truck. As defendant stoodin front of his truck some 30 to 40 feet from plaintiff, who stayed on his porch, the two menyelled obscenities back and forth at each other while plaintiff repeatedly banged the maul handlehard on the deck of the porch. Nevertheless, defendant began to walk toward plaintiff's house.Although plaintiff yelled to his chained dog to "sic" defendant as he approached the house,defendant skirted the limited range of the dog's chain and continued to advance on the porch withthe bat in his hand as each man yelled taunts and challenges at the other. When defendantreached the porch steps and was almost face to face with plaintiff, more angry words wereexchanged and defendant again challenged plaintiff to drop his weapon and come down from theporch for a fist fight. Instead, plaintiff remained on his porch, told defendant to get off hisproperty and then swung the maul handle. In response, defendant struck plaintiff with the bat.
The defense of justification is not available to the initial aggressor (see Penal Law§ 35.15 [1] [b]; People vPeele, 73 AD3d 1219, 1221 [2010], lv denied 15 NY3d 894 [2010]; People v Ham, 67 AD3d 1038,1039 [2009]; People v Mungin, 106 AD2d 519, 519 [1984]). Supreme Court instructedthe jury that the initial aggressor is "the person who first attacks or threatens to attack, that is, thefirst person who uses or threatens the immediate use of . . . physical force."Supreme Court also instructed the jury that verbal threats could not be considered in determiningwho was the initial aggressor.[FN2]Despite plaintiff's prior threatening phone calls and the evidence that plaintiff was the first of thetwo to swing his club, there is no dispute that defendant drove to plaintiff's home and thenadvanced on plaintiff's front porch with [*3]a bat in his handwhile demanding a fist fight. Given these circumstances, the jury's conclusion that defendant wasnot the first to threaten the immediate use of physical force is unreachable on any fairinterpretation of the evidence (seeMatter of Anthony E., 82 AD3d 1544, 1545-1546 [2011]; see also People v Ryan, 55 AD3d960, 963 [2008]; People vGrady, 40 AD3d 1368, 1372 [2007], lv denied 9 NY3d 923 [2007]). Inasmuchas defendant chose to force this encounter, he could have—and shouldhave—withdrawn from it long before he reached plaintiff's porch steps.
Malone Jr. and Garry, JJ., concur.
Stein, J. (dissenting). We respectfully dissent. In our view, there is a fair interpretation of theevidence that supports the conclusion that defendant was not the initial aggressor and, therefore,the jury's verdict should not be disturbed.
It is well settled that the discretionary power to set aside a jury verdict must be exercisedwith great caution, as "a successful litigant is entitled to the benefits of a favorable jury verdict"(Nicastro v Park, 113 AD2d 129, 133 [1985]; see Olmsted v Pizza Hut of Am., Inc., 81 AD3d 1223, 1224[2011]). Appellate review of a trial court's exercise of discretion as to whether to set aside a juryverdict must take into account the fact that the court has "heard and seen the witnesses testify. . . [and] has had the opportunity to observe courtroom events that might have[properly] influenced the jury's evaluation of the evidence" (Nicastro v Park, 113 AD2dat 136-137). Based upon our review of the record here, we agree with Supreme Court'sdetermination that there is a fair interpretation of the evidence to support the jury's verdict.
The evidence at trial included defendant's testimony that, after receiving two telephone callsfrom plaintiff in which plaintiff threatened to "f[. . . defendant] up," defendantdrove to plaintiff's home because he wanted to speak with plaintiff to "end the situation."Defendant testified that, as he approached the porch, plaintiff was repeatedly pounding the maulhandle he had retrieved from inside his home "very hard" on the floor of the porch. Whendefendant reached the porch, plaintiff "cock[ed] his arm" by lifting the handle over his head andthen, "[o]ut of the blue, [plaintiff] swung." Defendant further testified that, at the moment he sawplaintiff raise his arm up to swing, he believed that he was in "jeopardy," "covered up" andswung the bat at plaintiff "as hard as [he] could." We are of the view that, notwithstanding someconflicting testimony, when we accord due deference to the jury's credibility determinations, thisconstitutes viable evidence to support its conclusion that, at the moment that plaintiff raised hisarm, defendant actually believed that plaintiff was about to cause him serious physical injury andthat a reasonable person in defendant's circumstances could have so believed (see People v Fisher, 89 AD3d1135, 1137 [2011], lv denied 18 NY3d 883 [2012]).
Moreover, as the majority notes, Supreme Court instructed the jury, without objection, that"[i]nitial aggressor means the person who first attacks or threatens to attack, that is, thefirst person who uses or threatens the immediate use of . . . physicalforce" [emphasis added]. In our view, the fact that defendant went to plaintiff's home, approachedthe porch holding a bat and invited plaintiff to fist fight with him does not require afinding that defendant was the initial aggressor. The jury was entitled to consider, as it apparentlydid, that defendant—in an effort to verbally resolve a problem with plaintiff—wentto plaintiff's home in response to repeated [*4]belligerent phonecalls from plaintiff, that plaintiff retrieved the maul handle from inside the house when defendanthad no weapon in hand and that plaintiff was the first to actually attempt to use forceimmediately preceding defendant's use thereof.[FN*]While the majority's view of the evidence is not unreasonable, the jury was well within itsprovince to interpret the evidence as it did and we would, therefore, affirm Supreme Court's orderand judgment.
Egan Jr., J., concurs. Ordered that the order and judgment are reversed, on the law, motion toset aside the verdict granted, and matter remitted to the Supreme Court for a new trial, with coststo abide the event.
Footnote 1: The jury's finding that defendantused deadly physical force on plaintiff when he struck him with the baseball bat is not disputed.
Footnote 2: As this charge was givenwithout objection, it is the law of the case (see Passantino v Consolidated Edison Co. ofN.Y., 54 NY2d 840, 842 [1981]; Schnarch v Owen, 124 AD2d 372, 373 [1986];Paul v Kagan, 92 AD2d 988, 988 [1983]; but see People v Petty, 7 NY3d 277, 285 [2006]).
Footnote *: In addition, while SupremeCourt did, indeed, instruct the jury that verbal threats could not be considered in determining whowas the initial aggressor, contrary to the holding in People v Petty (7 NY3d 277, 285 [2006]), it is unclear from therecord whether the instruction was limited to verbal threats made at the time of the parties'encounter or whether it also encompassed prior threats made by plaintiff.