Opinion
2021-03968
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.
596 KA 18-00912
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.
Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered. The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.
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 [3d Dept 2001]; People v West, 283 A.D.2d 721, 722 [3d Dept 2001], lv denied 96 N.Y.2d 836 [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 [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 [4th Dept 2020], lv denied 35 N.Y.3d 1025 [2020], cert denied — U.S. &mdash, 141 S.Ct. 1099 [2021]; see People v Grady, 40 A.D.3d 1368, 1371 [3d Dept 2007], lv denied 9 N.Y.3d 923 [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 [1st Dept 1998], lv denied 92 N.Y.2d 895 [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.