Opinion
2012-12-20
The PEOPLE of the State of New York, Respondent, v. Joseph J. MARIANO, Appellant.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
James P. Milstein, Public Defender, Albany (Theresa M. Suozzi of counsel), for appellant. P. David Soares, District Attorney, Albany (Christopher J. Torelli of counsel), for respondent.
Before: MERCURE, J.P., ROSE, KAVANAGH, STEIN and EGAN, JR., JJ.
ROSE, J.
Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered January 7, 2011, upon a verdict convicting defendant of the crime of assault in the third degree.
Defendant was charged with assault in the third degree, two counts of criminal contempt in the first degree and criminal contempt in the second degree in connection with a physical confrontation he had with his ex-girlfriend and his alleged violations of orders of protection issued in her favor. After a jury trial, he was convicted of assault in the third degree, acquitted of all other charges and sentenced to three years of probation. He now appeals.
Initially, we will review defendant's contention that the verdict is against the weight of the evidence by viewing the evidence in a neutral light and “weigh[ing] the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn,” as well as giving great deference to the jury's credibility determinations ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987];see People v. Valentin, 95 A.D.3d 1373, 1374, 943 N.Y.S.2d 309 [2012],lv. denied19 N.Y.3d 1002, 951 N.Y.S.2d 478, 975 N.E.2d 924 [2012] ). Although the victim's credibility was called into question and defendant's friends testified that she was the aggressor, we cannot say that the jury failed to give her testimony and the medical evidence the weight it should be accorded ( see People v. Clark, 51 A.D.3d 1050, 1052, 857 N.Y.S.2d 758 [2008],lv. denied10 N.Y.3d 957, 863 N.Y.S.2d 141, 893 N.E.2d 447 [2008];People v. Terk, 24 A.D.3d 1038, 1040, 805 N.Y.S.2d 738 [2005] ).
We note that the surveillance video of the incident entered into evidence is equivocal, as the view of the interaction between defendant and the victim is partially obstructed.
We agree, however, that a new trial is required because County Court failed to instruct the jury on justification. During deliberations, the jury requested the definition of self-defense and asked whether defendant had a right to defend himself. Defense counsel then requested the justification charge, but County Court declined on the ground that the issue should have been raised earlier to give the People an opportunity to respond to it. Although counsel did not request the charge earlier, the issue is nevertheless properly preserved. County Court could have alleviated the omission and given the charge when it was requested by the jury, even though deliberations were then under way ( seeCPL 470.05[2]; People v. Lewis, 116 A.D.2d 16, 18–19, 499 N.Y.S.2d 709 [1986];People v. Vasquez, 114 A.D.2d 589, 590–591, 494 N.Y.S.2d 198 [1985];People v. Craft, 101 A.D.2d 984, 985, 477 N.Y.S.2d 467 [1984];see also People v. Khan, 68 N.Y.2d 921, 922, 510 N.Y.S.2d 72, 502 N.E.2d 987 [1986] ). Furthermore, once the defense of justification was placed in issue by the evidence presented at trial, it was the People's burden to disprove it ( seePenal Law §§ 25.00, 35.00; People v. McManus, 67 N.Y.2d 541, 546–547, 505 N.Y.S.2d 43, 496 N.E.2d 202 [1986];People v. Steele, 26 N.Y.2d 526, 528–529, 311 N.Y.S.2d 889, 260 N.E.2d 527 [1970] ).
Although the People argue that justification is not available here because defendant was the initial aggressor, defendant's friends testified that he was backing away from the victim when she attacked him, punching him and ripping his shirt, and then acting as if she was the one being attacked by purposefully falling to the ground and crying out for help. When the evidence is considered in the light most favorable to defendant, there is a reasonable view that “might lead the jury to decide that the defendant's actions were justified” ( People v. Curry, 85 A.D.3d 1209, 1211, 924 N.Y.S.2d 217 [2011],lv. denied17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011];see People v. Padgett, 60 N.Y.2d 142, 144–145, 468 N.Y.S.2d 854, 456 N.E.2d 795 [1983];People v. Dillon, 53 A.D.3d 692, 692–693, 863 N.Y.S.2d 265 [2008],lv. denied11 N.Y.3d 831, 868 N.Y.S.2d 606, 897 N.E.2d 1090 [2008] ). Accordingly, County Court should have instructed the jury on justification and, once the request was made, it was required to do so.
ORDERED that the judgment is reversed, on the law, and matter remitted to the County Court of Albany County for a new trial on count 1 of the indictment.
MERCURE, J.P., KAVANAGH, STEIN and EGAN, JR., JJ., concur.