The defendant was tried and found guilty of assault in the first degree, in violation of Penal Law ("P.L.") § 120.10(1), and two counts of criminal trespass in the second degree, in violation of P.L. § 140.15. The defendant now moves pursuant to Criminal Procedure Law § 330.30(1) to set aside the verdict. In support of his motion, the defendant argues that with respect to the conviction of assault in the first degree, (i) the court erred when it failed to charge the defense of justification and (ii) the court, while agreeing to charge assault in the second degree, in violation of P.L. § 120.05(1), failed to charge the requested lesser included offenses of assault in the second degree, in violation of P.L. § 120.05(2), and assault in the third degree, in violation of P.L. § 120.00(1). The defendant also argues, with respect to the defendant's conviction on all three counts, that the introduction, on the People's direct case, of the defendant's prior conviction for criminal contempt was improper.

Relying on People v. Smith, 62 AD3d 411 (1st Dept, 2009), the defendant, contends that this court was required to instruct the jury on the defense of justification because there was a reasonable view of the evidence that supported the defendant's use of self-defense. [*2]

Penal Law ("P.L.") § 35.15(1) provides, in pertinent part, that

A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:

(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force

A court need only charge justification when there is a reasonable view of the evidence which establishes the elements set forth in P.L. § 35.15(1). People v. Reynoso, 73 NY2d 816, 818 (1988). The defense of justification involves both subjective and objective elements. People v. Goetz, 68 NY2d 96, 114 - 115 (1986). The defense is available only to a defendant who "reasonably believes [physical force] to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person." P.L. § 35.15(1) (emphasis added). While the defense argues that the testimony of the eye-witnesses supports the argument that the defendant acted in self defense, it is the defendant's videotaped statement that shows that the defendant did not reasonably believe that physical force was necessary to defend himself from the use of physical force by another person.

The defendant, in his videotaped statement, consistently accepted responsibility for beginning the attack on the complaining witness. His statement of what occurred was wholly inconsistent with a belief that he felt threatened. The defendant stated that when the door was opened there were two men at the door and that one of the men was "stooped down." The defendant admitted to immediately kneeing the man in the face. While the defendant stated that he got cut, the defendant also stated that he did not know that he was poked in the knee until he was running away. The defendant admitted that he was wrong, and when asked what was wrong, the defendant answered that attacking the man was wrong. He also stated that as soon as the door was opened he told the man who was stooping down to get out of the house. The defendant said that he did not hear the man's response and at that point he, the defendant, "blacked out and started punching [the man]." The defendant stated that what he meant by blacked out was that he lost control.

The defendant's video taped statement compels the conclusion that the defendant never had a subjective belief that his use of physical force was necessary to defend himself from the imminent use of unlawful physical force. Numerous times throughout the defendant's videotaped statement, he made it clear that he did not feel threatened, that he wanted the man out of the house and that he, the defendant, began the fight. Thus, there was no factual issue with regard to the subjective element involved in the defense of justification, i.e., the defendant's reasonable belief, for the jury to consider and therefore, no justification charge was required. People v. Garcia, 59 AD3d 211, lv. denied, 12 [*3]NY3d 853 (2009).

The defendant was charged with assault in the first degree, in violation of P.L. § 120.10(1). The defendant requested that the court charge, as lesser included offenses, assault in the second degree, in violation of P.L. § 120.05(1), assault in the second degree, in violation of P.L. § 120.05(2), and assault in the third degree, in violation of P.L. § 120.00(1). The court granted the defendant's request to the extent that the jury was charged with assault in the second degree, in violation of P.L. § 120.05(2). The defendant's request to charge assault in the second degree, in violation of P.L. § 120.05(1), and assault in the third degree, in violation of P.L. § 120.00(1), were denied. The defendant moves to set aside the verdict alleging that the court committed reversible error by not charging the two assault charges as lesser included offenses of assault in the first degree.

"A person is guilty of assault in the first degree when: [w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." P.L. § 120.10(1). The defendant contends that the court should have charged assault in the second degree, in violation of P.L. § 120.05(1), as a lesser included offense of assault in the first degree. The defendant argues that while the jury could have found that the defendant intended to cause serious physical injury, and did cause serious physical injury, they could have found that the defendant did not use a deadly weapon or dangerous instrument while causing the injury. There is no reasonable view of the evidence that the defendant did not use a dangerous instrument.

Penal Law § 10.00(13) defines a dangerous instrument, in pertinent part, as "any instrument, article or substance, . . . , which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." While the defendant in his statement stated that he wanted to punch the complaining witness in the face, he also admitted to punching the complaining witness and then pulling out the knife. The defendant also admitted that "whatever he] had in [his] hand I used it to attack him." While the defendant may have commenced the attack using only his fists, at some point he reached for the knife and began using the knife to attack the complaining witness in a manner that was "readily capable of causing death or other serious physical injury."

Serious physical injury is defined , in pertinent part, as "physical injury which creates a substantial risk of death. . . or serious and protracted disfigurement. . . ." P.L. § 10.00(10). Whether or not the use of the instrument causes serious physical injury, the instrument is a dangerous instrument if it is "readily capable of causing death or other serious physical injury." People v. Lev, 33 AD3d 362 (2006). The evidence is clear that the defendant was hitting and stabbing the complaining witness in the neck. The neck contains the jugular vein and the carotid artery, injury to which could absolutely result in death. (Trial transcript at p. 301). Thus, the defendant used the knife in a manner that was "readily capable of causing death or other serious physical injury" and therefore the defendant's motion to set aside the verdict based upon the court's failure to charge the jury with assault in the second degree, in violation of P.L. § 120.05(1), as a lesser included offense is without merit and the motion is denied. [*4]

The defendant's argument that the court committed error by failing to charge the jury with assault in the third degree, in violation of P.L. § 120.00(1), as a lesser included offense is also without merit. There was no view of the evidence that the defendant did not use a dangerous instrument. Therefore, even if the argument can be made that the injury to the complaining witness was not serious physical injury but only physical injury, the court properly charged the jury with the lesser included offense of assault in the second degree, in violation of P.L. § 120.05(2). A person is guilty of assault in the second degree, in violation of P.L. § 120.05(2) when "[w]ith the intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument." Therefore, the jury was free to find that the defendant did not cause serious physical injury to the complaining witness but caused only physical injury.

The defendant's final argument, that the introduction, on the People's direct case, of the defendant's prior conviction for criminal contempt was improper, does not require that the verdict in this case be set aside. The introduction of prior convictions is admissible when relevant to establishing a material element in the case other than establishing defendant's criminal propensity. People v. Lewis, 69 NY2d 321, 325 (1987). In People v. Molineux, 168 NY 264 (1901), the Court of Appeals held that the introduction of prior bad acts of a defendant may be admitted on the People's direct when such evidence tends to prove motive, intent, lack of mistake or accident, identity, or common scheme or plan. When allowing the introduction of such evidence, which is clearly prejudicial in nature, a court must find that the probative value of the evidence outweighs the prejudice to the defendant. People v. Dorm, 12 NY3d 16, 19 (2009).

The introduction of the defendant's prior conviction for criminal contempt, which resulted in the issuance on April 24, 2008, of an order of protection, effective for five years, was properly admitted as probative for establishing the defendant's his motive and intent for entering or remaining unlawfully in the dwelling in which he committed the crime of assault in the first degree, as well as, providing background for the issuance of the order of protection. People v. Till, 87 NY2d 835, 837 (1995). The probative value of this evidence outweighed any prejudicial effect of the evidence. Additionally, the jury was specifically instructed that the evidence of the defendant's prior conviction for criminal contempt "must not be considered, for the purpose of proving that the defendant had a propensity or predisposition to commit the crimes charged in this case." The jury was told that the evidence was offered "to assist you to understand the background of the relationship between the defendant, Beneto Gumbs and Karelle Talley and Fritz Molin and for your consideration on the question of the defendant's intent" and not for the purpose of finding the defendant guilty in this case because he had been previously been convicted of criminal contempt.

The defendant's motion to set aside the verdict is denied.

The foregoing is the decision and order of the court. [*5]

Dated: New York, New York

October 5, 2009

Laura A. Ward

Acting Justice Supreme Court

Assistant District Attorney

New York County

One Hogan Place

New York, NY 10013

For the Defendant: Gary Greenberg, Esq.

Legal Aid Society

49 Thomas Street

New York, NY 10013