Opinion
2013-04-30
The PEOPLE of the State of New York, Respondent, v. Jerkeida GRANT, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (William B. Carney of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (William B. Carney of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Alan Gadlin of counsel), for respondent.
ACOSTA, J.P., MOSKOWITZ, RENWICK, FREEDMAN, CLARK, JJ.
Judgment, Supreme Court, New York County (Michael R. Sonberg, J.), rendered July 22, 2010, as amended July 29, 2010, convicting defendant, after a jury trial, of assault in the second degree and criminal possession of a weapon in the third degree, and sentencing her to an aggregate term of six months, concurrent with five years' probation, unanimously affirmed.
The court's limited justification charge was appropriate under the circumstances of the case when the evidence is viewed in the light most favorable to defendant ( see People v. Watts, 57 N.Y.2d 299, 301–302, 456 N.Y.S.2d 677, 442 N.E.2d 1188 [1982] ).
There was no reasonable view that defendant subjectively believed that the use of deadly physical force against her was imminent, or that such a belief would have been objectively reasonable ( see People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41 [1986] ). Accordingly, the court properly declined to charge the jury on the justifiable use of deadly physical force.
Under the particular facts, there was no reasonable view that defendant committed second degree assault under a theory of use of a dangerous instrument, as defined in Penal Law § 10.00(13), but nevertheless did not use deadly physical force as defined in Penal Law § 10.00(11) ( see People v. Mickens, 219 A.D.2d 543, 631 N.Y.S.2d 687 [1995],lv. denied87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264 [1995] ). Accordingly, the court properly charged the jury on the justifiable use of nondeadly force, but limited that charge to the lesser included offense of third degree assault, which did not require use of a dangerous instrument.