| People v Mariano |
| 2012 NY Slip Op 08828 [101 AD3d 1367] |
| December 20, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Joseph J.Mariano, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), forrespondent.
Rose, J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered January 7, 2011, upon a verdict convicting defendant of the crime of assault in the thirddegree.
Defendant was charged with assault in the third degree, two counts of criminal contempt inthe first degree and criminal contempt in the second degree in connection with a physicalconfrontation he had with his ex-girlfriend and his alleged violations of orders of protectionissued in her favor. After a jury trial, he was convicted of assault in the third degree, acquitted ofall other charges and sentenced to three years of probation. He now appeals.
Initially, we will review defendant's contention that the verdict is against the weight of theevidence by viewing the evidence in a neutral light and "weigh[ing] the relative probative forceof conflicting testimony and the relative strength of conflicting inferences that may be drawn," aswell as giving great deference to the jury's credibility determinations (People v Bleakley,69 NY2d 490, 495 [1987]; see People vValentin, 95 AD3d 1373, 1374 [2012], lv denied 19 NY3d 1002 [2012]).Although the victim's credibility was called into question and defendant's friends testified thatshe was the aggressor, we cannot say that the jury failed to give her testimony and the medicalevidence the weight it should be accorded (see People v Clark, 51 AD3d 1050, 1052 [2008], lv denied10 NY3d 957 [2008]; People vTerk, 24 AD3d 1038, 1040[*2][2005]).[FN*]
We agree, however, that a new trial is required because County Court failed to instruct thejury on justification. During deliberations, the jury requested the definition of self-defense andasked whether defendant had a right to defend himself. Defense counsel then requested thejustification charge, but County Court declined on the ground that the issue should have beenraised earlier to give the People an opportunity to respond to it. Although counsel did not requestthe charge earlier, the issue is nevertheless properly preserved. County Court could havealleviated the omission and given the charge when it was requested by the jury, even thoughdeliberations were then under way (see CPL 470.05 [2]; People v Lewis, 116AD2d 16, 18-19 [1986]; People v Vasquez, 114 AD2d 589, 590-591 [1985]; People vCraft, 101 AD2d 984, 985 [1984]; see also People v Khan, 68 NY2d 921, 922[1986]). Furthermore, once the defense of justification was placed in issue by the evidencepresented at trial, it was the People's burden to disprove it (see Penal Law §§25.00, 35.00; People v McManus, 67 NY2d 541, 546-547 [1986]; People vSteele, 26 NY2d 526, 528-529 [1970]).
Although the People argue that justification is not available here because defendant was theinitial aggressor, defendant's friends testified that he was backing away from the victim when sheattacked him, punching him and ripping his shirt, and then acting as if she was the one beingattacked by purposefully falling to the ground and crying out for help. When the evidence isconsidered in the light most favorable to defendant, there is a reasonable view that "might leadthe jury to decide that the defendant's actions were justified" (People v Curry, 85 AD3d 1209, 1211 [2011], lv denied 17NY3d 815 [2011]; see People v Padgett, 60 NY2d 142, 144-145 [1983]; People v Dillon, 53 AD3d 692,692-693 [2008], lv denied 11 NY3d 831 [2008]). Accordingly, County Court should haveinstructed the jury on justification and, once the request was made, it was required to do so.
Mercure, J.P., Kavanagh, Stein and Egan Jr., JJ., concur. Ordered that the judgment isreversed, on the law, and matter remitted to the County Court of Albany County for a new trialon count 1 of the indictment.
Footnote *: We note that the surveillancevideo of the incident entered into evidence is equivocal, as the view of the interaction betweendefendant and the victim is partially obstructed.