PEOPLE v. ARTICA (2007)

Defendant appeals from a judgment convicting her upon a jury verdict of two counts of assault in the first degree (Penal Law § 120.10 [1], [2] ).   Contrary to the contention of defendant, the evidence is legally sufficient to establish the element of intent with respect to each count of assault, i.e., her intent to cause serious physical injury and to disfigure the victim (see People v. Stoby, 4 A.D.3d 766, 766-767, 771 N.Y.S.2d 623, lv. denied 2 N.Y.3d 807, 781 N.Y.S.2d 306, 814 N.E.2d 478;  see generally People v. Tedesco, 30 A.D.3d 1075, 1076, 816 N.Y.S.2d 269, lv. denied 7 N.Y.3d 818, 822 N.Y.S.2d 493, 855 N.E.2d 809), and the evidence otherwise is legally sufficient to establish the remaining elements of each count of assault (see People v. Gagliardo, 283 A.D.2d 964, 964, 724 N.Y.S.2d 919, lv. denied 96 N.Y.2d 901, 730 N.Y.S.2d 798, 756 N.E.2d 86;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   Also contrary to defendant's contention, the verdict is not against the weight of the evidence with respect to either count (see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   We further conclude that Supreme Court properly denied defendant's request for a justification charge because “no reasonable view of the evidence establishes the elements of that defense” (People v. Marzug, 280 A.D.2d 974, 974, 721 N.Y.S.2d 220, lv. denied 96 N.Y.2d 904, 730 N.Y.S.2d 801, 756 N.E.2d 89;  see People v. Jackson, 236 A.D.2d 821, 653 N.Y.S.2d 885, lv. denied 91 N.Y.2d 893, 669 N.Y.S.2d 7, 691 N.E.2d 1033).  “Defendant's ‘use of a dangerous instrument against an unarmed individual cannot be viewed as anything other than an excessive use of force, thereby precluding the defense of justification’ ” (Marzug, 280 A.D.2d at 974, 721 N.Y.S.2d 220, quoting People v. Vecchio, 240 A.D.2d 854, 855, 658 N.Y.S.2d 720).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed and the matter is remitted to Supreme Court, Monroe County, for proceedings pursuant to CPL 460.50(5).

MEMORANDUM: