People v. Mena

70 A.D.2d 550, 416 N.Y.S.2d 611, 1979 N.Y. App. Div. LEXIS 11935

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1979
• Status: Published

Opinion

—Judgment, Supreme Court, Bronx County, rendered June 23, 1977, convicting defendant of assault in the second degree, and sentencing him thereupon to a term of one year, unanimously reversed, on the law, and the matter remanded for a new trial. It was error to refuse to charge assault in the third degree as a lesser included offense. The jury could have found that the cue stick with which defendant concededly struck the victim (for reasons which were at issue—defendant raised justification as a defense) was not a deadly weapon or dangerous instrument. This is an element of assault in the first degree (Penal Law, § 120.10, subd 1) and assault in the second degree (Penal Law, § 120.05, subd 2), both of which were submitted to the jury. A reasonable view of the evidence would support a finding that defendant did not commit either of these offenses, but was guilty of the lesser offense, assault in the third degree. (See CPL 300.50, subd 1.) Moreover, reversible error was committed in allowing evidence of repeated incidents of defendant’s assaultive behavior later that night at the station house and in the ambulance. These subsequent altercations had no legally probative value as to who was the initial aggressor, but only served impermissibly to foster speculation that defendant, as a person with a violent disposition, was likely to have provoked the assault. There is no merit to defendant’s other contentions. Concur—Birns, J. P., Sandler, Sullivan, Lane and Markewich, JJ.