People v. Rkein

2017 NY Slip Op 5678, 152 A.D.3d 434, 55 N.Y.S.3d 653

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 13, 2017
• Docket: 4450 2781/11
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Rena K. Uvil-ler, J. at jury trial; Robert M. Stolz, at sentencing), rendered May 14, 2014, convicting defendant of assault in the second and third degrees, and sentencing him, as a second felony offender, to an aggregate term of five years, unanimously affirmed.

The court properly denied defendant’s request for a justification charge regarding the second-degree assault count, because there was no reasonable view of the evidence, viewed in the light most favorable to defendant, to support either the objective or subjective aspects (see People v Goetz, 68 NY2d 96 [1986]) of that defense (see People v Watts, 57 NY2d 299, 301-302 [1982]). Under the facts presented, there was no reasonable view that defendant used anything less than deadly physical force as defined in Penal Law § 10.00 (11) when he struck the victim in the head with a pint beer glass, or that defendant was justified in using such force against the unarmed victim, who had merely pushed defendant (see e.g. People v Mason, 132 AD3d 777 [2d Dept 2015], appeal dismissed 29 NY3d 972 [2017]; People v White, 66 AD3d 585 [1st Dept 2009], lv denied 14 NY3d 807 [2010]).

We perceive no basis for reducing the sentence.

Concur— Sweeny, J.P., Mazzarelli, Webber, Kahn and Kern, JJ.