Opinion
June 21, 1990
Appeal from the Supreme Court, Bronx County (Gerald Sheindlin, J.).
The defendant contends on appeal that the People failed to disprove the defense of justification beyond a reasonable doubt. We disagree. Viewed in a light most favorable to the People (see, People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), the evidence adduced at trial established that defendant became angered when complainant, Angel Morales, tapped his shoe twice against defendant's thigh as the defendant lay beneath his automobile working. Although complainant walked away upon being told by defendant that no assistance was needed on the automobile, defendant nonetheless discontinued his work, obtained a machete, and pursued the complainant. Eyewitness Sotero Garcia, who observed the ensuing events, yelled for the complainant to "watch out", and added that the defendant was armed with a "machete". Complainant, in response to Garcia's warning, obtained a baseball bat from the garage of eyewitness Jean Ebbesen.
The defendant next swung the machete at complainant and complainant raised the bat to protect himself. The baseball bat was knocked from complainant's grasp and he stumbled. The defendant then immediately struck a second blow to the side of the complainant's head, causing a severe laceration.
We find the credible evidence in the record was therefore sufficient to support a finding that the defendant did not reasonably believe that complainant had either used or threatened the use of deadly physical force during the initial confrontation (see, Penal Law § 35.15 [a]). Additionally, we find while the defendant would have safely retreated following the first encounter, he instead became the aggressor when he actively pursued complainant with the machete and initiated the second conflict (see, People v. Thompson, 125 A.D.2d 511). The defendant, accordingly, was not justified in employing deadly physical force against the complainant during the subsequent encounter (see, Penal Law § 35.15).
Concur — Kupferman, J.P., Sullivan, Carro, Ellerin and Smith, JJ.