| People v Fletcher |
| 2018 NY Slip Op 07747 [166 AD3d 796] |
| November 14, 2018 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Pedro Fletcher, Appellant. |
Thomas R. Villecco, Jericho, NY, for appellant.
Madeline Singas, District Attorney, Mineola, NY (Laurie K. Gibbons and Evan T.King of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Nassau County(William J. O'Brien, J.), rendered May 19, 2017, convicting him of assault in the seconddegree and criminal possession of a weapon in the third degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is reversed, as a matter of discretion in the interest ofjustice, and a new trial is ordered.
This case arises from an altercation among the defendant, Dyene Herron, andJowanico Grandu inside a house, during which the defendant stabbed Grandu in thehand. At trial, the Supreme Court instructed the jury on justification with respect to thecharges of assault in the first degree and assault in the second degree, both of whichrelated to the defendant's conduct toward Grandu, but did not instruct the jury on thedefense of temporary and lawful possession of a weapon with respect to the charge ofcriminal possession of a weapon. The jury found, insofar as relevant here, the defendantguilty of assault in the second degree and criminal possession of a weapon in the thirddegree, but found the defendant not guilty of assault in the first degree.
On appeal, the defendant raises arguments regarding the justification charge and theSupreme Court's failure to charge the defense of temporary and lawful possession of aweapon. Although these arguments are unpreserved for appellate review, we review themin the exercise of our interest of justice jurisdiction (see CPL 470.15 [6] [a]; People v Sackey-El, 149 AD3d1104, 1105-1106 [2017]; People v Feuer, 11 AD3d 633, 634 [2004]).
The defense of justification renders the use of force "entirely lawful" (People vCastro, 131 AD2d 771, 773 [1987] [internal quotation marks omitted]). Thus, a courtproperly instructs the jury to consider justification for all relevant counts, and the courtshould also instruct the jury "that a finding of not guilty by reason of justification as toany one of the counts would preclude a verdict of guilty as to its lesser includedoffenses" (id. at 773). The jury should be instructed that if it reaches "a verdict ofnot guilty by reason of justification as to any of the offenses submitted to it, it shouldsimply render a verdict of acquittal and cease deliberation, without regard to anyremaining lesser included offenses" (id. at 773-774; see People v Feuer,11 AD3d at 634-635).
[*2] Here, we agree withthe defendant that the Supreme Court's jury charge in conjunction with the verdict sheetfailed to convey to the jury that if it found the defendant not guilty based on justificationas to assault in the first degree, then "it should simply render a verdict of acquittal andcease deliberation, without regard to" assault in the second degree (People vCastro, 131 AD2d at 773-774; see People v Braithwaite, 153 AD3d 929, 930 [2017]).Thus, the court's instructions, together with the verdict sheet, may have led the jurors toconclude that deliberation on each assault count as to Grandu required reconsideration ofthe justification defense, even if they had already acquitted the defendant of assault in thefirst degree based on justification (see People v Braithwaite, 153 AD3d at 930).Since we cannot say with any certainty and there is no way of knowing whether theacquittal on assault in the first degree was based on a finding of justification, a new trialis necessary (see People v Feuer, 11 AD3d at 635). In light of the defendant'sacquittal on the charge of assault in the first degree, the highest offense for which thedefendant may be retried is assault in the second degree (see id.).
"When evidence at trial viewed in the light most favorable to the accused,sufficiently supports a claimed defense, the court should instruct the jury as to thedefense, and must when so requested" (People v Watts, 57 NY2d 299, 301[1982]). "As a corollary, when no reasonable view of the evidence would support afinding of the tendered defense, the court is under no obligation to submit the question tothe jury" (id. at 301). "Justification is not a defense to criminal possession of aweapon" (People v Sackey-El, 149 AD3d at 1105). However, "[i]n somecircumstances, a person may possess an unlicensed or proscribed weapon and still not beguilty of a crime because of the innocent nature of the possession" (id. at 1106)."The innocent nature of the possession negates both the criminal act of possession andthe intent with which the act is undertaken when intent is an element of the crime"(People v Almodovar, 62 NY2d 126, 130 [1984]). "[A] defendant is not entitledto the charge where the evidence presented is utterly at odds with any claim of innocentpossession" (People v Reel,150 AD3d 1028, 1028 [2017] [internal quotation marks omitted]). "To warrant ajury instruction on the defense of temporary and lawful possession, there must be proofin the record showing a legal excuse for [the defendant's possession of] the weapon. . . as well as facts tending to establish that, once possession has beenobtained, the weapon had not been used in a dangerous manner" (People vSackey-El, 149 AD3d at 1106 [internal quotation marks omitted]; see People v Bonilla, 154AD3d 160, 164 [2017]).
Here, viewing the evidence in the light most favorable to the defendant, the evidencesufficiently supported the defense of temporary and lawful possession of a weapon(see People v Watts, 57 NY2d at 301). The defendant testified that he picked up akitchen knife from the floor only after Grandu jumped on his back, at which pointHerron was hitting the defendant in the head with her hands and with a pan while Grandurestrained the defendant. Although the defendant then stabbed Grandu with the knife,"should a jury believe that the defendant's use of the knife was justified, such use wouldhave been lawful, and not utterly at odds with [the defendant's] claim of" temporary andinnocent possession (People v Sackey-El, 149 AD3d at 1106 [citation andinternal quotation marks omitted]; see People v Bonilla, 154 AD3d at 164).Accordingly, the Supreme Court should have instructed the jury on the defense oftemporary and lawful possession of a weapon. "The failure to give the instruction wasnot harmless, as it cannot be said that there was no significant probability that the verdictwould have been different had the instruction been given" (People v Sackey-El,149 AD3d at 1106). Accordingly, we also order a new trial on the count of theindictment charging criminal possession of a weapon in the third degree.
In light of the foregoing, we need not address the defendant's remaining contention.Austin, J.P., Roman, Sgroi and LaSalle, JJ., concur.