Opinion
03-18-2016
The PEOPLE of the State of New York, Respondent, v. Nancy JAMES, Defendant–Appellant.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant. Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
Timothy P. Donaher, Public Defender, Rochester (James A. Hobbs of Counsel), for Defendant–Appellant.
Sandra Doorley, District Attorney, Rochester (Scott Myles of Counsel), for Respondent.
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, and SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting her upon a jury verdict of manslaughter in the first degree (Penal Law § 125.20[1] ) and assault in the second degree (§ 120.05[2] ). The charges stem from defendant'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 broken glass and then fatally stabbed a second victim. Defendant contends that Supreme Court erred in denying her request to charge the defense of justification on the assault count with respect to both ordinary and deadly physical force, requiring reversal of the assault count and the factually related manslaughter count. We agree with defendant that the court committed reversible error in refusing to charge the defense of justification with respect to deadly physical force under Penal Law § 35.15(2)(a).
"A trial court must charge the factfinder on the defense of justification ‘whenever there is evidence to support it’ ... Viewing the record in the light most favorable to the defendant, a court must determine whether any reasonable view of the evidence would permit the factfinder to conclude that the defendant's conduct was justified. If such evidence is in the record, the court must provide an instruction on the defense" (People v. Petty, 7 N.Y.3d 277, 284, 819 N.Y.S.2d 684, 852 N.E.2d 1155 ; see People v. Cox, 92 N.Y.2d 1002, 1004, 684 N.Y.S.2d 473, 707 N.E.2d 428 ; People v. Gentile, 23 A.D.3d 1075, 1075, 804 N.Y.S.2d 199, lv. denied 6 N.Y.3d 813, 812 N.Y.S.2d 452, 845 N.E.2d 1283 ). Where deadly physical force is used, the evidence must establish that the defendant reasonably believed that the other person was using or about to use deadly physical force (see Penal Law § 35.15[2][a] ; People
v. Goetz, 68 N.Y.2d 96, 106, 506 N.Y.S.2d 18, 497 N.E.2d 41 ).
We agree with the court that defendant used deadly physical force and not ordinary physical force when she used a piece of broken glass to slash the first victim's forehead (see People v. Mason, 132 A.D.3d 777, 777, 17 N.Y.S.3d 768 ; see also People v. Saenz, 27 A.D.3d 379, 380, 811 N.Y.S.2d 395, lv. denied 7 N.Y.3d 762, 819 N.Y.S.2d 888, 853 N.E.2d 259 ). We therefore reject defendant's contention that the court erred in failing to charge the jury on justification using nondeadly physical force for the assault count. We agree with defendant, however, that the court erred in denying her request to charge the jury on justification using deadly physical force in defense of a third party for the assault count. There was a reasonable view of the evidence, viewed in the light most favorable to defendant, that the first victim was using deadly physical force by striking defendant's brother in the head with a champagne bottle when defendant assaulted her (see generally People v. Ponder, 34 A.D.3d 1314, 1315, 823 N.Y.S.2d 792 ; People v. Liggins, 2 A.D.3d 1325, 1326–1327, 770 N.Y.S.2d 263 ). We further agree with defendant that the error in failing to give the justification charge on the assault count requires reversal of the manslaughter count as well. Although the court instructed the jury on justification for that count, there was a "significant factual relationship" between the two counts (People v. McDaniel, 81 N.Y.2d 10, 20, 595 N.Y.S.2d 364, 611 N.E.2d 265 ), particularly on the issue whether defendant was the initial aggressor (see Penal Law § 35.15 [1][b] ). We therefore reverse 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 judicial economy that the court erred in allowing the People to impeach one of their witnesses with her grand jury testimony. The witness's testimony that she did not see defendant stab the second victim did not affirmatively damage the People's case (see People v. Ayala, 121 A.D.3d 1124, 1125, 997 N.Y.S.2d 81, lv. denied 25 N.Y.3d 987, 10 N.Y.S.3d 530, 32 N.E.3d 967 ; People v. Rios, 166 A.D.2d 616, 617, 560 N.Y.S.2d 901, lv. denied 77 N.Y.2d 842, 567 N.Y.S.2d 211, 568 N.E.2d 660 ; People v. Garrett, 147 A.D.2d 905, 905–906, 537 N.Y.S.2d 379, lv. denied 74 N.Y.2d 664, 543 N.Y.S.2d 406, 541 N.E.2d 435 ).
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.