People v. Franklin

79 A.D.2d 611, 433 N.Y.S.2d 482, 1980 N.Y. App. Div. LEXIS 13957

Opinions

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 27, 1978, convicting him of assault in the third degree (two counts) and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, indictment dismissed and the case is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The charges in this case stem from an incident in which defendant, using a belt, struck Anthony and Andre Burke, the children of Edwina Burke, a woman with whom defendant was living and by whom he had fathered a child. The blows struck by defendant landed on various parts of the boys’ bodies. Andre, who was five at the time of the incident, received bruises on his face, a swollen lip, and welts on his arms, trunk, buttocks and thighs. Anthony, who was then eight, received welts on his face, ear, neck, arms, chest, buttocks and thighs. It appears from all the evidence that defendant and Mrs. Burke had agreed that defendant would share the responsibility for the supervision, care and discipline of the children. It further appears that at the time of the incident the boys had been fighting, that Andre had complained to defendant that Anthony had hit him and that defendant had warned the boys that if they persisted in their fighting they would be beaten. When they did persist, defendant, angered, hit the boys with a strap while they ran about the room. There, was also evidence tending to show that Anthony, an albino, is a pseudohemophiliac so that he bruises more easily and shows greater discoloration than other people. Throughout the instant proceedings defendant admitted beating the children. He based his defense on a claim that his use of force was not criminal and was justified under subdivision 1 of section 35.10 of the Penal Law, which provides: “The use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances: 1. A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teacher or other person entrusted with the care and supervision of a person under the age of twenty-one for a special purpose, may use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.” The jury acquitted defendant of assault in the second degree but convicted him of assault in the third degree (two counts), a lesser included offense submitted at defendant’s request, and of endangering the welfare of a child (two counts). Reversal is required because the jury was not properly instructed with regard to the defense of justification. After reading the statute, reproduced above, to the jury, the trial court applied the law to the facts of the case and attempted to summarize for the jury the parties’ respective contentions. It stated: “If you determine, based upon all the evidence in the case, that at the time of the alleged crime on May 29, 1977, the defendant was a parent, guardian or other person entrusted with the care and supervision of Andre and Anthony Burke, then the defendant could have used physical force but not deadly , physical force upon Anthony and Andre Burke to the extent he reasonably believed it necessary to maintain discipline or to promote their welfare. The People will contend,, however, that the defendant used unreasonable force and that there was no necessity for the defendant to use such force in any event to maintain discipline, in the circumstances or under1 the circumstances on May 29, 1977, in that the defendant could have taken other and different means or methods or steps to maintain discipline. And the People contend that there was no justification for the physical force used. The defendant, on the other hand, asserts that he gave Anthony and Andre Burke several warnings that they would be disciplined if they persisted in their disruptive fighting, since they, were then being punished for breaking a window in the premises. He testified that he used physical force to maintain discipline after the warnings failed to accomplish any results” (emphasis added). In so summarizing what it believed to be the parties’ contentions, the trial court misled the jury with regard to an element of the justification defense. The issue before the jury was not whether “the defendant used unreasonable force” or whether there was a “necessity for the defendant to use such force in any event to maintain discipline.” Rather, the issue was whether the defendant believed the force he used was necessary to maintain discipline and, if he did so believe, whether that belief was reasonable. The court’s misstatement acted to deprive defendant of the benefit of a reasonable belief, a benefit expressly reserved to him by statute (cf. Hechtman, Practice Commentaries, Me-Kinney’s Cons Laws of NY, Book 39, Penal Law, §35.15, p 92). Defendant was thus denied a fair trial and ordinarily would be entitled to a new trial. However, since he has already completed his sentence, dismissal of the indictment, rather than a new trial, is appropriate (see People v Fondal, 64 AD2d 638). Hopkins, J. P., O’Connor and Weinstein, JJ., concur.

1

. Subdivision 6 referred to the necessary restraint of the mentally retarded.