People v. Torres

140 A.D.3d 478, 31 N.Y.S.3d 881

Opinion

Judgment, Supreme Court, New York County (Laura A. Ward, J.), rendered November 26, 2013, convicting defendant, after a jury trial, of two counts of assault in the second degree, and sentencing him to concurrent terms of five years, unanimously affirmed.

The court properly declined to charge justification, since there was no reasonable view of the evidence, when viewed most favorably to defendant, to support that defense (see People v Goetz, 68 NY2d 96, 105-106 [1986]; People v Watts, 57 NY2d 299, 301 [1982]). Defendant stabbed two undisputedly unarmed men in the back. Even under the exculpatory version of the events contained in defendant’s statements to the police (which was, in any event, undermined by a recorded telephone call he made while incarcerated), defendant was the only person to use deadly physical force, he had the ability to retreat, and he had no reason to believe that the victims or their companions were armed or were about to use deadly force. At most, the group that included the victims engaged in abusive behavior falling far short of what could reasonably be perceived as the imminent use of lethal force.

Concur — Mazzarelli, J.P., Acosta, Saxe, Kapnick and Kahn, JJ.