People v. Frazier

86 A.D.2d 557, 446 N.Y.S.2d 287, 1982 N.Y. App. Div. LEXIS 15082

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 26, 1982
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Reilly, J.), rendered on November 3, 1979, convicting defendant, after a jury trial, of two counts of assault in the second degree and sentencing him to two concurrent indeterminate terms of five years, affirmed. On appeal defendant does not challenge the legal sufficiency of the proof of his assaults, which in the main came from the mouth of the victim, Whitfield Pratt. He testified that, after a verbal argument in the afternoon of September 24, 1978, defendant first slashed him with a razor and, after Pratt ordered him out of the apartment, stabbed him with a switchblade knife. An ambulance came for Pratt shortly after 5:00 p.m. Defendant denied any assault on Pratt, testifying that the only assault occurred when Pratt lunged at him with a dagger which cut him on the thigh after he had raised his arm to deflect the blow. Defendant testified that he then ran from the apartment. He went to a hospital at 7:30 that evening. He told the physician who treated him for a superficial laceration on his leg that he had been injured at 6:30. On summation, neither the prosecution nor the defense made any arguments touching upon justification, both having concentrated on the issue of witness credibility. Then, just before the court’s charge, defense counsel requested a charge on justification. The court refused because defendant had denied stabbing the victim. This refusal is defendant’s primary point on appeal. We agree with the dissent that defendant’s denial of the stabbing would not alone preclude him from a justification charge and that, for the purpose of the request to charge, the court was required to view the evidence in a light most favorable to defendant. Where, however, there is no evidence that would support justification, the court may refuse to charge it (People v Collice, 41 NY2d 906). We recognize, too, the general rule that a jury may credit selected portions of the prosecution’s or the defendant’s case to reach its verdict, given a “rational basis for sorting out proof” (People v Scarborough, 49 NY2d 364, 373). Most important here is the exception to the general rule, that is, that it “has never been applied to countenance selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor” (People v Scarborough, supra, p 373). A justification charge would have been required here if the jury could have found from a reasonable view of the evidence that Pratt’s injuries were sustained in the course of defendant’s defending himself from an assault by Pratt (see Penal Law, § 35.15, subd 1). When requesting the charge, defendant’s trial counsel cited defendant’s testimony that he had swung his arm to resist a dagger assault by Pratt. This would not account for the wounds on Pratt and would, therefore, be an irrational view of the evidence. Defendant’s appellate counsel has filled this gap. He argues that the jury could find that Pratt came at defendant “with a dagger, cutting him on the thigh, and that in the ensuing struggle, [defendant] wrested the weapon from him, slashing him once and stabbing him once in self-defense”. Apart from defendant’s testimony that Pratt slashed him with a dagger, this has no basis in the record. There is no evidence that there was a struggle or that defendant wrested a dagger from Pratt. Slashing and stabbing a disarmed man scarcely comports with self-defense. The dissenting opinion takes a third approach, that the jury could find by a process of selective credence that both men were armed and that defendant responded to an initial attack by Pratt. We must disagree; there is no evidence that both men were armed, and this approach runs afoul of the exception to the general rule above quoted. Essentially this case hinges on the “integrated test imony of a single witness” on each side (cf. People v Steele, 26 NY2d 526; People v Ortiz, 52 AD2d 518): Pratt, who claims an unprovoked and unanswered attack by defendant; defendant, who claims an unprovoked and unanswered attack by Pratt. There is no evidence to support a middle ground. The jury was called upon to elect which to believe and it had no reason to indulge in “selective dissection”. In consequence, a justification charge was unwarranted. Defendant could have been given a seven-year term on each count. The victim was seriously wounded. We find that imposition of concurrent indeterminate terms of five years with no minimum is not an abuse of discretion and is not excessive (see People v Junco, 43 AD2d 266, affd 35 NY2d 419, cert den 421 US 951). Concur — Murphy, P. J., Sullivan, Ross and Lynch, JJ.