| People v Sackey-El |
| 2017 NY Slip Op 03198 [149 AD3d 1104] |
| April 26, 2017 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Jaad Sackey-El, Appellant. |
Douglas M. Jones, Florida, NY, for appellant.
David M. Hoovler, District Attorney, Middletown, NY (Andrew R. Kass of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (De Rosa, J.),rendered December 18, 2008, convicting him of attempted murder in the second degree, assaultin the first degree, and criminal possession of a weapon in the third degree, upon a jury verdict,and imposing sentence.
Ordered that the judgment is reversed, on the law and as a matter of discretion in the interestof justice, and a new trial is ordered.
The defendant was indicted on charges of attempted murder in the second degree, assault inthe first degree, and criminal possession of a weapon in the third degree following an altercationwith the complainant which resulted in the complainant suffering four stab wounds. At trial, thecomplainant testified that he and the defendant got into a physical fight during which thedefendant repeatedly stabbed him with a knife. The defendant testified that the complainant cameup behind him and punched him, then approached him with an object in his hand. The defendanttestified that he tried to block the complainant by grabbing at the object, and that he caught theobject in his hand and started swinging, trying to keep the complainant away so he did not getkilled, as they rolled around on the ground. The County Court denied the defendant's request thatthe jury be charged on the defense of justification. The defendant was convicted of allcharges.
We agree with the defendant that the County Court erred in denying his request for a chargeon the defense of justification. "A person is justified in using deadly force against another if he orshe reasonably believes such to be necessary to defend himself or herself . . . fromwhat he or she reasonably believes to be the use or imminent use of deadly physical force by suchother person" (People v Heron, 130AD3d 754, 755 [2015]; see Penal Law § 35.15 [2]; People v Umali, 10 NY3d 417,425 [2008]; People v Singh, 139AD3d 761 [2016]). A justification defense is generally not available to the initial aggressor(see Penal Law § 35.15 [1] [b]; People v Walker, 26 NY3d 170, 175 [2015]), and an actor outsideof his or her home "may not use deadly physical force if he or she knows that with completepersonal safety, to oneself and others he or she may avoid the necessity of so doing by retreating"(Penal Law § 35.15 [2] [a]). "A trial court must charge the factfinder on the defenseof justification 'whenever there is evidence to support it' " (People v Petty, 7 NY3d 277, 284[2006], quoting People v McManus, 67 NY2d 541, 549 [1986]). Viewing the evidence inthe light most favorable to the defendant, [*2]if any reasonableview of the evidence would permit the jury to conclude that the defendant's conduct wasjustified, the court must provide the instruction, if requested (see People v Petty, 7 NY3dat 284; People v Butts, 72 NY2d 746, 750 [1988]; People v McManus, 67 NY2dat 549; People v Padgett, 60 NY2d 142, 144-145 [1983]).
Here, viewing the evidence in the light most favorable to the defendant, there was areasonable view of the evidence that the complainant was the aggressor, that the defendant couldnot safely retreat, that the defendant's actions during the fight caused the complainant's injuries,and that the defendant's actions were justified. The fact that the defendant did not testify that hestabbed the complainant did not preclude a charge as to a justification defense, since theevidence, viewed as a whole, supported such a charge (see People v Butts, 72 NY2d at750; People v Singh, 139 AD3d761 [2016]; People v Smith, 62AD3d 411 [2009]; People v Suarez, 148 AD2d 367 [1989]; People vHuntley, 87 AD2d 488 [1982], affd 59 NY2d 868 [1983]). The error in failing to givethe requested justification charge was not harmless, as it cannot be said that there was nosignificant probability that the verdict would have been different absent this error (see Peoplev Crimmins, 36 NY2d 230, 242 [1975]; People v Singh, 139 AD3d 761 [2016]). Accordingly, we vacate thedefendant's convictions of attempted murder in the second degree and assault in the first degree,and a new trial is ordered on those counts.
Justification is not a defense to criminal possession of a weapon (see People v Pons,68 NY2d 264 [1986]; People vBailey, 111 AD3d 1310 [2013]). However, we agree with the defendant that he wasentitled to a jury charge on the defense of temporary and lawful possession of a weapon withrespect to that count of the indictment (see People v Almodovar, 62 NY2d 126, 130-131[1984]). Although this contention was not preserved for appellate review, we review it in theexercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]; People vJenkins, 93 AD2d 868 [1983]).
In some circumstances, a person may possess an unlicensed or proscribed weapon and stillnot be guilty of a crime because of the innocent nature of the possession (see People vAlmodovar, 62 NY2d at 130). To warrant a jury instruction on the defense of temporary andlawful possession, "there must be proof in the record showing a legal excuse for [the defendant'spossession of] the weapon . . . as well as facts tending to establish that, oncepossession has been obtained, the weapon had not been used in a dangerous manner" (Peoplev Banks, 76 NY2d 799, 801 [1990]; see People v Williams, 50 NY2d 1043 [1980];People v Madore, 145 AD3d1440, 1442 [2016]; People vCurry, 85 AD3d 1209, 1211 [2011]). A person may be found to have had temporary andlawful possession of a weapon if he or she took the weapon from an assailant in the course of afight (see People v Banks, 76 NY2d at 801; People v Almodovar, 62 NY2d at130; People v Hicks, 110 AD3d1488 [2013]; People v Harmon, 7 AD2d 159 [1959]). Viewing the evidence in thelight most favorable to the defendant, there was a reasonable view of the evidence supporting thisdefense. The defendant testified that he only possessed the knife, if at all, when he attempted todisarm the complainant during the fight. Further, although the defendant's use of the knifethereafter resulted in the complainant being stabbed, should a jury believe that the defendant'suse of the knife was justified, such use would have been lawful (see People v Holmes, 129 AD3d1692, 1695 [2015]), and not "utterly at odds with [the defendant's] claim of innocentpossession . . . temporarily and incidentally [resulting] from . . .disarming a wrongful possessor" (Peoplev Hawkins, 113 AD3d 1123, 1124 [2014] [internal quotation marks omitted]; cf.People v Banks, 76 NY2d at 801; People v Holmes, 129 AD3d at 1695; People v Robinson, 63 AD3d1634, 1634 [2009]). Accordingly, the County Court should have instructed the jury on thedefense of temporary and lawful possession of a weapon (see People v Almodovar, 62NY2d at 130; People v Harmon, 7 AD2d 159 [1959]). The failure to give the instructionwas not harmless, as it cannot be said that there was no significant probability that the verdictwould have been different had the instruction been given (see People v Crimmins, 36NY2d at 242; People v Singh, 139AD3d 761 [2016]). Accordingly, we vacate the defendant's conviction of criminalpossession of a weapon in the third degree, and order a new trial on that count as well.
In light of our determination, we need not address the defendant's remaining contentions.Leventhal, J.P., Cohen, LaSalle and Barros, JJ., concur.