Opinion
2014–02088 Ind. No. 1319/13
02-14-2018
The PEOPLE, etc., respondent, v. Benito LIJO, appellant.
Heriberto Cabrera, Brooklyn, NY, for appellant. Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Kristen A. Carroll of counsel), for respondent.
Heriberto Cabrera, Brooklyn, NY, for appellant.
Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Diane R. Eisner, and Kristen A. Carroll of counsel), for respondent.
L. PRISCILLA HALL, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, ANGELA G. IANNACCI, JJ.
DECISION & ORDERAppeal by the defendant from a judgment of the Supreme Court, Kings County (John G. Ingram, J.), rendered February 11, 2014, convicting him of assault in the second degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered.
The defendant struck the complainant with a cane during an altercation between himself and the complainant and her husband. After a jury trial, in which the defendant presented a justification defense, the defendant was convicted of assault in the second degree.
Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt (see Penal Law § 35.15 ; People v. Acquista, 41 A.D.3d 491, 492, 837 N.Y.S.2d 309 ; People v. Suphal, 7 A.D.3d 547, 776 N.Y.S.2d 101 ; People v. Williams, 304 A.D.2d 595, 759 N.Y.S.2d 329 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
However, a new trial is required because the trial court erroneously declined the defendant's request that the jury be instructed that it could consider the actions of the complainant's husband in determining whether the defendant's use of force was justified (see People v. Locicero, 87 A.D.3d 1163, 1164, 930 N.Y.S.2d 58 ; People v. Morgan, 290 A.D.2d 566, 566–567, 737 N.Y.S.2d 108 ). Contrary to the People's contention, the error cannot be deemed harmless, as the evidence to establish that the defendant was not justified was not overwhelming, and the jury may have reached a different conclusion had a proper and complete justification instruction been given (see People v. Crimmins, 36 N.Y.2d 230, 241–242, 367 N.Y.S.2d 213, 326 N.E.2d 787 ; People v. Locicero, 87 A.D.3d at 1164–1165, 930 N.Y.S.2d 58 ; People v. Morgan, 290 A.D.2d at 567, 737 N.Y.S.2d 108 ). Significantly, the defendant's case rested on finding that he was justified in responding to the actions of the complainant's husband (see People v. Morgan, 290 A.D.2d at 567, 737 N.Y.S.2d 108 ).
In light of our determination, we need not reach the defendant's remaining contentions.
HALL, J.P., HINDS–RADIX, MALTESE and IANNACCI, JJ., concur.