Opinion
596 KA 18-00912
06-17-2021
The PEOPLE of the State of New York, Respondent, v. Kaesean HALL, Defendant-Appellant.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant pleaded guilty to assault in the second degree ( Penal Law § 120.05 [1] ) and was sentenced to probation. Supreme Court subsequently determined, following a hearing, that defendant had violated a condition of his probation by attacking a stranger on a street corner. The court therefore revoked defendant's probation and imposed a different sentence. Defendant appeals, and we affirm.
Defendant contends that he did not violate his probation because he justifiably attacked the victim in self-defense (see generally Penal Law § 35.15 [1] ). Even assuming, arguendo, that the defense of justification applies at a probation violation hearing to the same extent as at a criminal trial (cf. People v. Miller , 289 A.D.2d 704, 705, 733 N.Y.S.2d 655 [3d Dept. 2001] ; People v. West , 283 A.D.2d 721, 722, 725 N.Y.S.2d 704 [3d Dept. 2001], lv denied 96 N.Y.2d 836, 729 N.Y.S.2d 457, 754 N.E.2d 217 [2001] ), we reject defendant's contention for the following three reasons. First, defendant's own testimony explicitly characterized the underlying incident as a "mutual fight" in which he "got the best of" the victim, and the defense of justification is statutorily unavailable for "combat by agreement not specifically authorized by law" ( § 35.15 [1] [c] ; see Matter of Kim H. , 112 A.D.2d 160, 161, 491 N.Y.S.2d 64 [2d Dept. 1985] ). Second, defendant's own testimony demonstrated that he "lacked a subjective belief that his use of ... physical force was necessary to protect himself against [any] use or imminent use of ... physical force" by the victim ( People v. Box , 181 A.D.3d 1238, 1240, 119 N.Y.S.3d 650 [4th Dept. 2020], lv denied 35 N.Y.3d 1025, 126 N.Y.S.3d 24, 149 N.E.3d 862 [2020], cert denied ––– U.S. ––––, 141 S. Ct. 1099, 208 L.Ed.2d 548 [2021] ; see People v. Grady , 40 A.D.3d 1368, 1371, 838 N.Y.S.2d 207 [3d Dept. 2007], lv denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007] ). Third, any "right to use [physical] force [in self-defense] terminate[d] at the point where [defendant could] no longer reasonably believe that the [victim] still pose[d] a threat to him" ( People v. Colecchia , 251 A.D.2d 5, 6, 674 N.Y.S.2d 10 [1st Dept. 1998], lv denied 92 N.Y.2d 895, 680 N.Y.S.2d 59, 702 N.E.2d 844 [1998] ), and the police officer's eyewitness testimony established that defendant continued attacking the victim even after the victim was lying "helpless" and "unconscious" on the ground.