| People v James |
| 2016 NY Slip Op 01946 [137 AD3d 1587] |
| March 18, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vNancy James, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Monroe County (Francis A. Affronti,J.), rendered March 13, 2012. The judgment convicted defendant, upon a jury verdict, ofmanslaughter in the first degree and assault in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law and a new trial is granted.
Memorandum: Defendant appeals from a judgment convicting her upon a juryverdict of manslaughter in the first degree (Penal Law § 125.20 [1]) andassault in the second degree (§ 120.05 [2]). The charges stem fromdefendant's conduct during a New Year's Eve party when several people began fighting.The People alleged that defendant cut one victim on the forehead with a piece of brokenglass and then fatally stabbed a second victim. Defendant contends that Supreme Courterred in denying her request to charge the defense of justification on the assault countwith respect to both ordinary and deadly physical force, requiring reversal of the assaultcount and the factually related manslaughter count. We agree with defendant that thecourt committed reversible error in refusing to charge the defense of justification withrespect to deadly physical force under Penal Law § 35.15 (2) (a).
"A trial court must charge the factfinder on the defense of justification 'wheneverthere is evidence to support it' . . . Viewing the record in the light mostfavorable to the defendant, a court must determine whether any reasonable view of theevidence would permit the factfinder to conclude that the defendant's conduct wasjustified. If such evidence is in the record, the court must provide an instruction on thedefense" (People v Petty, 7NY3d 277, 284 [2006]; see People v Cox, 92 NY2d 1002, 1004 [1998]; People v Gentile, 23 AD3d1075, 1075 [2005], lv denied 6 NY3d 813 [2006]). Where deadly physicalforce is used, the evidence must establish that the defendant reasonably believed that theother person was using or about to use deadly physical force (see Penal Law§ 35.15 [2] [a]; People v Goetz, 68 NY2d 96, 106 [1986]).
We agree with the court that defendant used deadly physical force and not ordinaryphysical force when she used a piece of broken glass to slash the first victim's forehead(see People v Mason, 132AD3d 777, 777 [2015]; seealso People v Saenz, 27 AD3d 379, 380 [2006], lv denied 7 NY3d 762[2006]). We therefore reject defendant's contention that the court erred in failing tocharge the jury on justification using nondeadly physical force for the assault count. Weagree with defendant, however, that the court erred in denying her request to charge thejury on justification using deadly physical force in defense of a third party for the assaultcount. There was a reasonable view of the evidence, viewed in the light most favorableto defendant, that the first victim was using deadly physical force by striking defendant'sbrother in the head with a champagne bottle when defendant assaulted her (see generally People v Ponder,34 AD3d 1314, 1315 [2006]; People v Liggins, 2 AD3d 1325, 1326-1327 [2003]). Wefurther agree with defendant that the error in failing to give the justification charge on theassault count requires reversal of the [*2]manslaughtercount as well. Although the court instructed the jury on justification for that count, therewas a "significant factual relationship" between the two counts (People vMcDaniel, 81 NY2d 10, 20 [1993]), particularly on the issue whether defendant wasthe initial aggressor (see Penal Law § 35.15 [1] [b]). We thereforereverse the judgment and grant a new trial on both counts.
In view of our determination, we need not review defendant's remaining contentions.Nevertheless, because we are granting a new trial, we note in the interest of judicialeconomy that the court erred in allowing the People to impeach one of their witnesseswith her grand jury testimony. The witness's testimony that she did not see defendant stabthe second victim did not affirmatively damage the People's case (see People v Ayala, 121 AD3d1124, 1125 [2014], lv denied 25 NY3d 987 [2015]; People v Rios,166 AD2d 616, 617 [1990], lv denied 77 NY2d 842 [1991]; People vGarrett, 147 AD2d 905, 905-906 [1989], lv denied 74 NY2d 664 [1989]).Present—Whalen, P.J., Centra, Lindley, Troutman and Scudder, JJ.