People v. Rison

130 A.D.2d 596, 515 N.Y.S.2d 304, 1987 N.Y. App. Div. LEXIS 46609

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Heller, J.), rendered April 22, 1985, convicting him of assault in the second degree (two counts), burglary in the second degree, attempted petit larceny, criminal mischief in the fourth degree, and possession of burglar’s tools, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant contends that the court erred in refusing to instruct the jury that he was justified in his assault upon the police officers because their use of force was excessive. A justification charge must be given when, viewing the evidence in the light most favorable to the defendant, an inference may be drawn that the officers’ use of force to effectuate the arrest was excessive (see, People v Padgett, 60 NY2d 142; People v Sanza, 37 AD2d 632). Under no reasonable view of the facts can the defendant’s assault be considered justifiable, especially given the fact that he initially assaulted the officers without provocation (cf., People v Stevenson, 31 NY2d 108).

The sentence imposed was not excessive (see, People v Brathwaite, 63 NY2d 839; People v Suitte, 90 AD2d 80). Mangano, J. P., Niehoff, Weinstein and Kunzeman, JJ., concur.