Ismael S., Matter of

• Decision Date: 07 March 1995
• Citation: 213 A.D.2d 169,623 N.Y.S.2d 571
• Parties: In the Matter of ISMAEL S., A Person Alleged to be A Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 571

623 N.Y.S.2d 571

213 A.D.2d 169

In the Matter of ISMAEL S., A Person Alleged to be A Juvenile Delinquent, Appellant.

Supreme Court, Appellate Division First Department.

March 7, 1995.

K. Rabb, for appellant.

A.O. Spanier, for Presentment Agency.

Before MURPHY, P.J., and ELLERIN, KUPFERMAN, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Order, Family Court, New York County (Bruce M. Kaplan, J.), entered June 14, 1994, which adjudicated respondent a juvenile delinquent upon a finding that he committed an act which, if committed by an adult, would constitute the crime of assault in the second degree (Penal Law § 120.05[2], and placed respondent with the New York State Division for Youth until October 31, 1995, unanimously reversed, on the law and the facts, the order is vacated and the petition is dismissed, without costs.

In a delinquency petition filed on July 16, 1993, the presentment agency alleged that respondent Ismael S. committed two felonies and three misdemeanors in connection with an incident which occurred on June 7, 1993 during which Robert Maldonado was slashed across his neck. At the fact-finding hearing conducted on October 26, 1993, Donald Swinton, a foreign editor for Associated Press, testified that as he jogged near Columbus Avenue and 93rd Street he saw a group of people standing in a circle and that a fight was in progress between Maldonado, a large individual in his twenties, and respondent, who was younger, shorter and lighter.

Mr. Swinton stated that Maldonado hit respondent so hard he heard the blow thirty feet away. At that point, respondent recoiled, regained his composure and swung at Maldonado with a cupped hand. Maldonado's neck then started to bleed and respondent as well as two other youths fled the scene. Swinton testified that two of the men in the circle then jumped into a blue van and sped off in the direction the youths had run. Later, Swinton saw one of the men from the van turning respondent over to the Police.

New York City Police Officer Michael Donato testified that he arrived at the scene and approached respondent, who had a black eye and was being attended to by ambulance personnel. Respondent explained that he had been in a fight with Maldonado, which he was losing, and that he picked up a piece of glass from the ground and cut Maldonado's throat. Officer Donato then placed respondent under arrest and arrested Maldonado at the hospital later that evening. At this juncture, the presentment agency rested and respondent moved for a missing witness charge with respect to Maldonado, which was denied.

Respondent called his friend, Noel Cruz, who averred that at approximately 9:00 PM on June 7, 1993, he, respondent and another friend, Caesar, were leaving Cruz' apartment building when Maldonado approached and told Cruz to leave his uncle alone. Cruz continued that when respondent attempted to intercede and smooth things over, Maldonado grabbed him, placed him in a headlock and started punching him in the face. The three men with Maldonado formed a circle around the combatants and cheered as Maldonado delivered over 20 blows to respondent's face. Cruz stated that respondent broke free but Maldonado grabbed him again, placed him back in a headlock and resumed punching him.

Cruz testified that the men with Maldonado would not let him or Caesar interfere and that two of the men began to kick respondent in the ribs and back. While still on the ground, respondent allegedly picked up a piece of glass and swung at Maldonado, cutting him. Respondent, Cruz and Caesar then ran off toward Columbus Avenue with the blue van in pursuit.

At the conclusion of the fact-finding hearing, the court rejected respondent's claim that he was justified in using deadly physical force since "being involved in a fight where someone is smacked but not even knocked off their feet does not implicate the use of deadly physical force." Accordingly, the court found that the respondent committed an act, which, if committed by an adult, would constitute the crime of assault in the second degree, adjudicated respondent a juvenile delinquent, and placed him with the Division for Youth until October 31, 1995. Respondent appeals and we now reverse.

Penal Law § 35.15 provides, in relevant part, that an individual may not use deadly physical force unless he or she reasonably believes that another person is using or is about to use deadly physical force. Even in such case, however, deadly physical force may not be used if the individual, with complete safety as to himself and others, can avoid the necessity of doing so by retreating.

In order to determine whether a person's actions are reasonable within the meaning of the statute, a determination of reasonableness must be made that is both subjective and objective and "[t]he critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude ..." (People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21; People v. Goetz, 68 N.Y.2d 96, 113-115, 506 N.Y.S.2d 18, 497 N.E.2d 41; People v. Davis, 201 A.D.2d 827, 608 N.Y.S.2d 348, lv. denied 83 N.Y.2d 910, 614 N.Y.S.2d 392, 637 N.E.2d 283).

The Court of Appeals thereafter set forth a two-step inquiry which must be undertaken to determine whether a defendant's conduct was justified. First, it must be ascertained whether defendant actually believed deadly physical force was necessary and, if the presentment agency fails to prove that the defendant did not actually believe the use of deadly physical force was necessary, then the fact-finder must proceed to the second step of the inquiry and assess the reasonableness of respondent's belief (People v. Wesley, supra, at 559, 561 N.Y.S.2d 707, 563 N.E.2d 21; People v. Goetz, supra, at 115, 506 N.Y.S.2d 18, 497 N.E.2d...