THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. JOEQUELL SOLOMON DEFENDANT APPELLANT (2012)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law and a new trial is granted.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of assault in the second degree (Penal Law § 120.05[2] ), as a lesser included offense of the first count of the indictment charging him with assault in the first degree (§ 120.10[1] ), and criminal possession of a weapon in the fourth degree (§ 265.01[2] ).   Contrary to defendant's contention, County Court properly denied his request to charge the jury on assault in the third degree (§ 120.00[3] ) as a lesser included offense of assault in the first degree.  “There was no reasonable view of the evidence presented that would support a jury finding that the defendant acted with criminal negligence rather than [acted intentionally]” (People v. Beckford, 49 AD3d 547, 548, lv denied 10 NY3d 859;  see People v. Wright, 105 A.D.2d 1088, 1089;  see generally CPL 300.50[1] ).   Further, we reject defendant's contention that the count charging criminal possession of a weapon in the fourth degree was an inclusory concurrent count of assault in the first degree (see People v. Mitchell, 216 A.D.2d 863, lv denied 86 N.Y.2d 798;  People v. Sykes, 194 A.D.2d 502, lv denied 82 N.Y.2d 759;  see generally CPL 300.30[4];  People v. Perez, 45 N.Y.2d 204, 208–210).

We agree with defendant, however, that the court erred in charging the jury that the victim of the assault was justified to use physical force “to the extent that he ․ reasonably believe[d] such to be necessary to prevent or terminate what he ․ reasonably believe[d] to be the commission ․ of larceny” (Penal Law § 35.25).  “ ‘It is a fundamental rule of law that jury instructions are required to be responsive to the issues presented by the evidence’ “ (People v. Lewis, 160 A.D.2d 815, 816, lv dismissed 76 N.Y.2d 738;  see generally CPL 300.10[2] ), and it is error for the court to submit to the jury “ ‘a theory of the facts which had no foundation in the evidence’ “ (People v. Rosenberg, 293 N.Y. 16, 17, rearg. denied 293 N.Y. 697, quoting People v. Barberi, 149 N.Y. 256, 274;  see People v. Duncan, 46 N.Y.2d 74, 79, rearg. denied 46 N.Y.2d 940, cert denied 442 U.S. 910, rearg dismissed 56 N.Y.2d 646).   We conclude that the court's justification charge was not responsive to the evidence because there is no view thereof that the victim was justified in using physical force against defendant or that the victim used such force in the first instance (cf.  People v. Banks, 2 AD3d 226, lv denied 2 NY3d 737;  see generally Penal Law art 35).   Under the circumstances of this case, we agree with defendant that the patently improper instruction was so prejudicial as to deny him a fair trial (see generally People v. Ashwal, 39 N.Y.2d 105, 111;  People v. Lovello, 1 N.Y.2d 436, 439) and, because the evidence of defendant's guilt is not overwhelming, it cannot be said that the error is harmless (see generally People v. Crimmins, 36 N.Y.2d 230, 241–242).   We therefore reverse the judgment, and we grant a new trial on the indictment.

In light of our conclusion, we need not address defendant's remaining contentions.

Frances E. Cafarell

Clerk of the Court