| People v Delin |
| 2016 NY Slip Op 08465 [145 AD3d 566] |
| December 15, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Shao Delin, Also Known as De Lin Shao,Appellant. |
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), forrespondent.
Judgment, Supreme Court, New York County (Patricia M. Nuñez, J.),rendered April 4, 2013, convicting defendant, after a jury trial, of assault in the first andsecond degrees, and sentencing him to an aggregate term of 10 years, unanimouslyreversed, as a matter of discretion in the interest of justice, and the matter remanded for anew trial.
As in cases such as People vVelez (131 AD3d 129 [1st Dept 2015]), the court's charge did not convey to thejury that an acquittal on the top count of attempted murder based on a finding ofjustification would preclude consideration of the other charges.
In addition, the court's charge on the use of excessive force contained a significantomission. Even if a defendant is initially justified in using deadly physical force inself-defense, he or she may not continue to use deadly physical force after the assailantno longer poses a threat (People v Del-Debbio, 244 AD2d 195, 195 [1st Dept1997], lv denied 91 NY2d 925 [1998]). However, in such a situation the Peoplemust prove that it was the unnecessary additional force that caused the alleged harm(People v Hill, 226 AD2d 309, 310 [1st Dept 1996], lv denied 88 NY2d937 [1996]), which in this case was serious physical injury. The court's charge onexcessive force omitted the latter principle and thus impermissibly permitted the jury toconvict defendant based upon a finding that although he was justified when he initiallystabbed the complainant in the abdomen, defendant was not justified in inflictingsubsequent wounds on the fleeing complainant, even if these additional wounds did notconstitute serious physical injury. Although the parties dispute whether the additionalwounds were serious, the jury could reasonably have concluded that they were not. Itcannot be determined whether the jury found that defendant's conduct was not justifiedbecause he was the initial aggressor or because, although not the initial aggressor, hesubsequently used unnecessary physical force.
We find that the two errors in the charge were not harmless, and that they warrantreversal in the interest of justice. Concur—Sweeny, J.P., Renwick, Richter,Manzanet-Daniels and Kapnick, JJ.