Opinion
February 2, 1996
Appeal from the Supreme Court, Erie County, Cosgrove, J.
Present — Green, J.P., Lawton, Fallon, Callahan and Doerr, JJ.
Judgment unanimously reversed on the law and new trial granted. Memorandum: Supreme Court erred in denying defendant's request for a charge on the defense of justification (see, Penal Law § 35.15). A reasonable view of the evidence, considered in the light most favorable to defendant, supports that defense (see, People v. Padgett, 60 N.Y.2d 142, 145-146; People v. Steele, 26 N.Y.2d 526, 528-529). The testimony of defendant that the wound to the victim's chin was the unintended result of the struggle over the broken plate does not defeat his entitlement to a justification charge (see, People v. McManus, 67 N.Y.2d 541, 547; People v Padgett, supra, at 146). Based upon defendant's version of the incident, the jury could have reasonably found that the victim was the initial aggressor and that the actions of defendant in defending himself were justified, even though the resulting injury was unintended (see, People v. Magliato, 68 N.Y.2d 24, 28-29; People v. Khan, 68 N.Y.2d 921, 922; People v. Badillo, 218 A.D.2d 811; People v. Jeffries, 166 A.D.2d 665, lv denied 77 N.Y.2d 962; People v. Suarez, 148 A.D.2d 367).