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People v. Gavigan

Appellate Division of the Supreme Court of New York, Second Department
Dec 22, 2003
2 A.D.3d 748 (N.Y. App. Div. 2003)

Opinion

2001-08086.

December 22, 2003.

Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered August 8, 2001, convicting him of assault in the second degree (two counts), upon a jury verdict, and imposing sentence.

Rochman Platzer Fallick Sternheim Luca Pearl, LLP, New York, N.Y. (Barry M. Fallick and Jillian S. Harrington of counsel), for appellant.

Thomas J. Spota, District Attorney, Riverhead, N.Y. (James Phillip Cudden of counsel), for respondent.

Before: ROBERT W. SCHMIDT and BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

We agree with the defendant's contention that the trial court erred when it charged justification pursuant to a theory of self-defense ( see Penal Law § 35.15), but refused to submit to the jury the defense of justification in defense of premises.

It is well settled that a jury must be charged on justification as a defense to the crime with which the defendant is charged if any reasonable view of the evidence would support the claimed defense and the defendant has requested the charge ( see People v. Daniels, 248 A.D.2d 723, 724).

Viewing the record in the light most favorable to the defendant ( see People v. Watts, 57 N.Y.2d 299, 301), we conclude that there was a reasonable view of the evidence to support a justification charge pursuant to Penal Law § 35.20(2). The defendant, an employee of a bar, presented evidence that he had repeatedly asked the victims to leave the bar prior to the altercation. This evidence supports a finding that he reasonably believed the victims were committing a criminal trespass and that physical force was necessary to protect the premises. Accordingly, the failure to grant the defendant's request to charge that defense constitutes reversible error ( see People v. Padgett, 60 N.Y.2d 142, 145).

SANTUCCI, J.P., LUCIANO, SCHMIDT and COZIER, JJ., concur.


Summaries of

People v. Gavigan

Appellate Division of the Supreme Court of New York, Second Department
Dec 22, 2003
2 A.D.3d 748 (N.Y. App. Div. 2003)
Case details for

People v. Gavigan

Case Details

Full title:THE PEOPLE, ETC., respondent, v. SHAWN N. GAVIGAN, appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 22, 2003

Citations

2 A.D.3d 748 (N.Y. App. Div. 2003)
768 N.Y.S.2d 652

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