Opinion
2017–08879 Ind. No. 725/16
12-23-2020
The PEOPLE, etc., respondent, v. Joe NEWSOM, appellant.
Joseph W. Carbonaro, New York, NY, for appellant. Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.
Joseph W. Carbonaro, New York, NY, for appellant.
Anthony A. Scarpino, Jr., District Attorney, White Plains, N.Y. (Brian R. Pouliot and William C. Milaccio of counsel), for respondent.
WILLIAM F. MASTRO, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Helen Blackwood, J.), rendered June 21, 2017, convicting him of attempted assault in the first degree, assault in the second degree, and criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant contends that the Supreme Court erred in instructing the jury only with respect to the defense of the justified use of deadly physical force, rather than the justified use of ordinary physical force, with respect to the charges of attempted assault in the first degree and assault in the second degree. This contention is without merit. "[T]he particular justification instruction given to the jury must be consistent with the facts and, where it can be determined as a matter of law that the physical force used by the defendant was in fact, ‘deadly,’ that is, ‘readily capable of causing death or other serious physical injury,’ the trial court may limit the justification instruction to authorizing the use of deadly physical force" ( People v. Mothon, 284 A.D.2d 568, 569, 729 N.Y.S.2d 541, quoting Penal Law § 10.00[11] [internal quotation marks omitted] ). Here, the defendant's use of a kitchen knife with a six-inch metal blade to slash the complainant's kidney area constituted the use of deadly physical force because it was readily capable of causing death or serious physical injury, regardless of the degree of injury he actually intended or inflicted on the complainant (see People v. Carey, 159 A.D.3d 1529, 1530, 73 N.Y.S.3d 709 ; People v. Kerley, 154 A.D.3d 1074, 1075, 63 N.Y.S.3d 538 ; People v. Steele, 19 A.D.3d 175, 175–176, 798 N.Y.S.2d 391 ; People v. Mothon, 284 A.D.2d at 569, 729 N.Y.S.2d 541 ). Accordingly, the court properly instructed the jury only with respect to the defense of the justified use of deadly physical force (see People v. Lugg, 124 A.D.3d 679, 679–680, 998 N.Y.S.2d 459 ).
In addition, because "the defense of justification may excuse only the unlawful use of a weapon, not its unlawful possession" ( People v. White, 75 A.D.3d 109, 122, 901 N.Y.S.2d 346 ; see People v. Pons, 68 N.Y.2d 264, 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 ), the Supreme Court properly declined to give a justification charge with respect to the count of criminal possession of a weapon in the third degree (see People v. Pons, 68 N.Y.2d at 267, 508 N.Y.S.2d 403, 501 N.E.2d 11 ; People v. Negron, 150 A.D.3d 764, 765, 54 N.Y.S.3d 410 ). In any event, there was no reasonable view of the evidence upon which the jury could have found that the defendant's possession of the knife was lawful (see People v. Cruz, 13 A.D.3d 390, 390, 785 N.Y.S.2d 345 ).
MASTRO, J.P., BARROS, CONNOLLY and WOOTEN, JJ., concur.