People v. Fisher

89 A.D.3d 1135, 932 N.Y.2d 218
Appellate Division of the Supreme Court of the State of New York·Decided November 3, 2011·Published·Cited by 49 cases

Opinion

Peters, J.

Defendant was charged with assault in the second degree stemming from an incident during which he inflicted multiple stab wounds upon his mother’s then-boyfriend, George Wilson. The trial evidence established that, during the early morning hours of October 25, 2008, a number of individuals were consuming alcohol at the apartment shared by defendant and his mother, Dorothy Jean Moye. At some point, Moye and Wilson began arguing and Wilson physically assaulted Moye. The police were called and, upon their arrival, Wilson was instructed to leave the apartment. Undaunted, Wilson returned shortly thereafter and, according to defendant and his girlfriend, Ashley Munson, began brandishing knives and making threatening statements towards them. After discarding the knives, Wilson went into Moye’s bedroom where he again engaged in a verbal and physical altercation with her. Defendant and his brother, Donielle Fisher, then proceeded to enter the bedroom and confront Wilson. During the confrontation, Fisher struck Wilson in the head with a baseball bat, causing a large gash upon Wilson’s forehead that resulted in a substantial amount of blood. Wilson left the apartment following this incident, but returned yet again. While Wilson was in the bedroom with Moye, defendant and Fisher retrieved knives from the kitchen and entered the bedroom to again confront Wilson. It was during this confrontation that defendant repeatedly stabbed Wilson.

Following a jury trial, defendant was found guilty of assault in the second degree and sentenced to a prison term of four years, to be followed by five years of postrelease supervision. He was also ordered to pay restitution in the amount of $3,448.86 for Wilson’s medical expenses, but this amount was subse[1136] quently reduced by County Court to $671.50. Defendant appeals.

Defendant claims that the verdict is not supported by legally sufficient evidence and is against the weight of the evidence, specifically arguing that the proof did not support a finding that Wilson suffered a physical injury and that the People failed to disprove the defense of justification beyond a reasonable doubt. His challenge to the legal sufficiency of the evidence is unpreserved for our review inasmuch as he presented evidence after his unsuccessful motion to dismiss and failed to renew the motion at the close of all proof (see People v Lane, 7 NY3d 888, 889 [2006]; People v Dancy, 87 AD3d 759, 760 [2011]; People v Vargas, 72 AD3d 1114, 1116 [2010], lv denied 15 NY3d 758 [2010]). Since defendant also attacks the verdict as against the weight of the evidence, we will consider his arguments in the context of that review.

Physical injury is an “impairment of physical condition or substantial pain” (Penal Law § 10.00 [9]). “A variety of factors are relevant in determining whether physical injury has been established, including the injury viewed objectively, the victim’s subjective description of the injury and [his or] her pain, and whether the victim sought medical treatment” (People v Dixon, 62 AD3d 1036, 1039 [2009], lv denied 12 NY3d 914 [2009] [internal quotation marks and citation omitted]; accord People v Dove, 86 AD3d 715, 716 [2011]). Here, defendant stabbed Wilson approximately 13 times in various areas around his back, shoulder, arm and head, with the force of the blows causing the blade of the knife to bend. Following the incident, Wilson walked to the hospital where his wounds were treated and he was prescribed pain medication. Although he ultimately refused further treatment and left the hospital later that morning, Wilson explained that he did so because he did not have insurance and could not afford to incur any further medical bills. He described continuing pain in his chest and arms that lasted for approximately one month and made it difficult to move, rendering him unable to work and perform certain routine activities, such as dressing himself. He testified further that, at the time of trial, he continued to experience pain in his shoulder due to the scar tissue that had formed from the stab wounds. Based on this proof, we are satisfied that the weight of the evidence supports the jury’s finding that Wilson suffered a physical injury (see People v Perser, 67 AD3d 1048, 1049 [2009], lv denied 13 NY3d 941 [2010]; People v Dixon, 62 AD3d at 1039; People v Rivera, 42 AD3d 587, 588-589 [2007], lv denied 9 NY3d 880 [2007]).

[1137] We next address defendant’s assertion that the People failed to disprove the defense of justification. Use of deadly physical force is justified when, as relevant here, a defendant reasonably believes that such force is necessary to prevent or terminate a burglary of his or her dwelling or to protect against the use or imminent use of deadly physical force (see Penal Law § 35.15 [1], [2] [a], [c]; § 35.20 [3]; People v Scharpf, 60 AD3d 1101, 1102 [2009], lv denied 13 NY3d 862 [2009]). “Evaluation of the actor’s belief ‘requires a determination of reasonableness that is both subjective and objective . . . The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant’s background and experiences would conclude’ ” (People v DiGuglielmo, 75 AD3d 206, 215 [2010], affd 17 NY3d 771 [2011], quoting People v Wesley, 76 NY2d 555, 559 [1990]; see People v Goetz, 68 NY2d 96, 114-115 [1986]).

Here, Wilson testified that he did not possess any weapons upon his final entry into the apartment and that he only returned in order to gather his belongings and seek assistance getting to the hospital for the head injuries that he sustained from being struck with the baseball bat by Fisher. Munson’s testimony was confirmatory. Moreover, according to both Wilson and Munson, Wilson was speaking with Moye in the bedroom when defendant and Fisher appeared at the doorway with knives. Both further explained that, although Moye put her hands across the doorway and instructed the two that “everything is fine” and she would “handle it,” defendant and Fisher pushed Moye aside and entered the room. Wilson testified that he stumbled and fell to the ground as he was backing up out of fear, after which both defendant and Fisher got on top of him and began stabbing him. He stated that he did not threaten them prior to the attack nor did he make any movements towards an object that could be used as a weapon. Defendant, on the other hand, testified that when he and Fisher entered Moye’s bedroom and instructed Wilson to leave, Wilson, took an “aggressive posture” towards him as if he was going to attack, at which point defendant pulled a knife out of his back pocket. On cross-examination, defendant conceded that he never saw a weapon or dangerous instrument in Wilson’s possession and that Wilson was not reaching for anything in the room that could be used as a deadly weapon. According to defendant, Wilson then grabbed ahold of him and a struggle ensued, during the course of which he stabbed Wilson.

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Fisher, 89 A.D.3d 1135, 932 N.Y.2d 218 (N.Y. Ct. App. 2011).

89 A.D.3d 1135 (People v. Fisher) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Chappell
2020 NY Slip Op 05978 (Appellate Division of the Supreme Court of New York, 2020)
People v. Harris
2020 NY Slip Op 4431 (Appellate Division of the Supreme Court of New York, 2020)
People v. Mamadou
2019 NY Slip Op 3697 (Appellate Division of the Supreme Court of New York, 2019)
People v. McGahan (Brendon)
Appellate Terms of the Supreme Court of New York, 2018
People v. Conklin
2018 NY Slip Op 1213 (Appellate Division of the Supreme Court of New York, 2018)
People v. Every
146 A.D.3d 1157 (Appellate Division of the Supreme Court of New York, 2017)
People v. Gibson
141 A.D.3d 1009 (Appellate Division of the Supreme Court of New York, 2016)
People v. Ramsaran
141 A.D.3d 865 (Appellate Division of the Supreme Court of New York, 2016)
People v. Rodriguez
135 A.D.3d 1181 (Appellate Division of the Supreme Court of New York, 2016)
People v. Harden
134 A.D.3d 1160 (Appellate Division of the Supreme Court of New York, 2015)
People v. Stanford
130 A.D.3d 1306 (Appellate Division of the Supreme Court of New York, 2015)
People v. Brabham
126 A.D.3d 1040 (Appellate Division of the Supreme Court of New York, 2015)
People v. Salce
124 A.D.3d 923 (Appellate Division of the Supreme Court of New York, 2015)
People v. Robinson
123 A.D.3d 1224 (Appellate Division of the Supreme Court of New York, 2014)
PeoplevRobinson
Appellate Division of the Supreme Court of New York, 2014
PeoplevGreen
Appellate Division of the Supreme Court of New York, 2014
People v. Green
121 A.D.3d 1294 (Appellate Division of the Supreme Court of New York, 2014)
People v. Simmons
111 A.D.3d 975 (Appellate Division of the Supreme Court of New York, 2013)
People v. Fauntleroy
108 A.D.3d 885 (Appellate Division of the Supreme Court of New York, 2013)
People v. Wilbur
108 A.D.3d 878 (Appellate Division of the Supreme Court of New York, 2013)