| People v Morgan |
| 2012 NY Slip Op 07197 [99 AD3d 622] |
| October 25, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Simone Morgan, Appellant. |
—[*1] Cyrus R. Vance, Jr., District Attorney, New York (Naomi C. Reed of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered February 19,2010, as amended October 19, 2010, convicting defendant, after a jury trial, of assault in thesecond degree and criminal possession of a weapon in the fourth degree, and sentencing her toconcurrent terms of 2½ years and one year, respectively, unanimously modified, on thefacts, to the extent of vacating the assault conviction and dismissing that count of the indictment,and otherwise affirmed.
Defendant's assault conviction was against the weight of the evidence (see People v Danielson, 9 NY3d342, 348-349 [2007]). Defendant asserts that she was justified in stabbing the complainant inthe cheek because she reasonably believed this was necessary to defend herself against thecomplainant's use or imminent use of deadly force, i.e., she reasonably believed that thecomplainant, although unarmed, was about to seriously injure her (see Penal Law §10.00 [11]). Under the particular circumstances, we find that the People did not disprove thisself-defense claim beyond a reasonable doubt.
The evidence at trial showed that the complainant attacked defendant, who is the mother ofhis children, by punching her in the face. He forced her up against a wall, and then repeatedlypunched her in the head and neck area while she attempted to fight him off. Despite the attemptof two security guards to restrain the complainant, defendant could not get free until she removeda steak knife from her waistband area and stabbed the complainant in the cheek, which causedhim to release her, at which time she fled. Although the complainant momentarily dropped to theground, he rose immediately, pulled the blade from his face, and chased after defendant down 28flights of stairs, still holding the knife, until he was eventually physically restrained in thebuilding's lobby by security and police personnel.
The complainant's testimony described defendant as the initial aggressor, who wielded theknife and threatened him with it prior to the security guards' arrival. Even assuming the veracityof the complainant's version of the events, we note that he admitted that defendant had put theweapon away at the time he struck her. Furthermore, the security guards clearly and consistentlytestified that when they arrived, the complainant and defendant were separated by a significantdistance and were only arguing, whereupon the complainant punched defendant, [*2]threw her up against the wall, and continued to assault her. Theobservations of the guards amply supported defendant's contentions that at the time in questionthe complainant was the aggressor, and that defendant had no opportunity to retreat.
Although the complainant only used his fists, defendant had reason to believe she was indanger of serious physical injury if she continued to allow him to beat her (see Matter ofY.K., 87 NY2d 430, 434 [1996]). The couple's history included multiple instances where thecomplainant had choked and beaten defendant, and she was well aware of his ability to inflictserious physical injury. Under these circumstances, it cannot be said that the People disprovedthe defense of justification beyond a reasonable doubt.
Defendant does not challenge the sufficiency or weight of the evidence supporting theweapon possession conviction. To the extent defendant's claims of trial error relate to thatconviction, we find them to be without merit. Concur—Gonzalez, P.J., Moskowitz,Acosta, Freedman and Abdus-Salaam, JJ.