| People v Molina |
| 2012 NY Slip Op 08808 [101 AD3d 577] |
| December 20, 2012 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Marino Molina, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Robert R. Sandusky, III of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered on April 4, 2012,convicting defendant, after a jury trial, of attempted assault in the first degree, and sentencinghim to a term of 3½ years, unanimously reversed, on the law, and the matter remanded for anew trial.
The trial court should have instructed the jury on justification pertaining to the use ofnondeadly physical force and should not have limited the justification charge to thosecircumstances in which the use of deadly physical force would have been justified (seePenal Law § 35.15). Although the People's theory was that defendant attacked thecomplainant with scissors, there was a reasonable view of the evidence, viewed in the light mostfavorable to the defendant, that defendant used nondeadly force. Defendant testified that thecomplainant initially punched defendant in the face, and defendant then grabbed the complainant,causing him to fall on the floor and sustain injuries (see People v Smith, 62 AD3d 411 [1st Dept 2009], lvdenied 12 NY3d 929 [2009]; People v Ogodor, 207 AD2d 461 [2d Dept 1994]).Furthermore, the error was not harmless, since defendant's case rested entirely on his contentionthat he used only nondeadly force, and that such use was justified (see People vLauderdale, 295 AD2d 539, 540 [2d Dept 2002]; see also Ogodor, 207 AD2d at463).[*2]
Since we are ordering a new trial, we find it unnecessaryto discuss defendant's other arguments, except that we find that the verdict was based on legallysufficient evidence and was not against the weight of the evidence. Concur—Tom, J.P.,Sweeny, DeGrasse, Manzanet-Daniels and Clark, JJ.