PEOPLE v. DELGADO (2023)

Judgment, Supreme Court, Bronx County (April A. Newbauer, J.), rendered January 15, 2020, convicting defendant, after a jury trial, of assault in the second degree and criminal obstruction of breathing or blood circulation, and sentencing him, as a second volent felony offender, to an aggregate term of five years, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence (see People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007]).  Defendant used a cell phone in a hard plastic case to strike the victim once on his forehead and nose, causing a two-inch, profusely bleeding laceration on the victim's forehead and fracturing his nose in multiple places.  The evidence supported the conclusion that the phone was a dangerous instrument (see Penal Law § 10.00[13]) because “under the circumstances of its use, it was readily capable of causing serious physical injury” (Matter of Joy T., 106 A.D.3d 456, 964 N.Y.S.2d 511 [1st Dept. 2013];  see People v. Mitcham, 159 A.D.3d 641, 642, 74 N.Y.S.3d 256 [1st Dept. 2018], lv denied 31 N.Y.3d 1085, 79 N.Y.S.3d 106, 103 N.E.3d 1253 [2018]).

The court properly denied defendant's request for a jury instruction on ordinary force justification.  Viewing the evidence in the light most favorable to defendant, there was no reasonable view of the evidence to support a justification charge.  The evidence unequivocally established that the physical altercation began when defendant struck the victim in the face with the phone, rendering defendant the “initial aggressor” (Penal Law § 35.15[1][b]), and there was no evidence in the record from which the jury could have drawn a different conclusion.  Defendant cites various facts having no bearing on the issue of who was the initial aggressor, or speculation as to facts not in evidence.  Accordingly, defendant was not entitled to a justification charge (see People v. Brown, 33 N.Y.3d 316, 325, 102 N.Y.S.3d 143, 125 N.E.3d 808 [2019]).