People v. Gavigan

2 A.D.3d 748, 768 N.Y.S.2d 652, 2003 N.Y. App. Div. LEXIS 13887

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2003
• Status: Published

Opinion

Appeal by the defendant from a judgment of the County Court, Suffolk County (Farneti, J.), rendered August 8, 2001, convicting him of assault in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is reversed, on the law, and a new trial is ordered.

We agree, with the defendant’s contention that the trial court erred when it charged justification pursuant to a theory of self-defense (see Penal Law § 35.15), but refused to submit to the jury the defense of justification in defense of premises.

It is well settled that a jury must be charged on justification as a defense to the crime with which the defendant is charged if any reasonable view of the evidence would support the claimed defense and the defendant has requested the charge (see People v Daniels, 248 AD2d 723, 724 [1998]).

Viewing the record in the light most favorable to the defendant (see People v Watts, 57 NY2d 299, 301 [1982]), we conclude that there was a reasonable view of the evidence to support a justification charge pursuant to Penal Law § 35.20 (2). The defendant, an employee of a bar, presented evidence that he had repeatedly asked the victims to leave the bar prior to the altercation. This evidence supports a finding that he reasonably believed the victims were committing a criminal trespass and that physical force was necessary to protect the premises. Accordingly, the failure to grant the defendant’s request to charge that defense constitutes reversible error (see People v Padgett, 60 NY2d 142, 145 [1983]). Santucci, J.P., Luciano, Schmidt and Cozier, JJ., concur.