People v. Akbar

• Decision Date: 06 February 2019
• Docket Number: 2015–08494,Ind. No. 3076/14
• Citation: 169 A.D.3d 708,93 N.Y.S.3d 366
• Parties: The PEOPLE, etc., Respondent, v. Waheed AKBAR, Appellant.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 708
93 N.Y.S.3d 366

The PEOPLE, etc., Respondent,
v.
Waheed AKBAR, Appellant.

2015–08494
Ind. No. 3076/14

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 2, 2018
February 6, 2019

93 N.Y.S.3d 367

Paul Skip Laisure, New York, N.Y. (Meredith S. Holt of counsel), for appellant.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Kathryn E. Mullen of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

169 A.D.3d 708

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered August 26, 2015, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered.

The defendant slashed his roommate across the neck and

169 A.D.3d 709

stabbed him in the abdomen with a large kitchen knife during

93 N.Y.S.3d 368

a physical altercation in their apartment. At the trial, the Supreme Court submitted to the jury the charges of attempted murder in the second degree, two counts of assault in the first degree and the lesser included offenses of assault in the second and third degrees, and criminal possession of a weapon in the fourth degree. The court also instructed the jury on the justification defense. The jury acquitted the defendant of attempted murder in the second degree and assault in the first degree with intent to disfigure, but found him guilty of assault in the first degree with intent to cause serious physical injury by means of a dangerous instrument. The defendant appeals.

The defendant contends that the People did not disprove his justification defense beyond a reasonable doubt. Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to disprove the defendant's justification defense beyond a reasonable doubt (see People v. Flores, 165 A.D.3d 695, 84 N.Y.S.3d 543 ; People v. Simpson, 151 A.D.3d 762, 762, 56 N.Y.S.3d 253 ; People v. Landri, 104 A.D.3d 791, 791, 960 N.Y.S.2d 504 ; People v. Terrero, 31 A.D.3d 672, 672–673, 818 N.Y.S.2d 288 ). Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the...