People v. Davis

• Decision Date: 11 July 1986
• Citation: 504 N.Y.S.2d 885,118 A.D.2d 206
• Parties: PEOPLE of the State of New York, Respondent, v. Anthony DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 885

504 N.Y.S.2d 885

118 A.D.2d 206

PEOPLE of the State of New York, Respondent, v. Anthony DAVIS, Appellant.

Supreme Court, Appellate Division Fourth Department.

July 11, 1986.

Edward J. Nowak, Rochester, (Howard Broder, of counsel) for appellant.

Howard R. Relin, Rochester, (Melvin Bressler, of counsel) for respondent.

Before CALLAHAN, J.P., and DOERR, DENMAN, BALIO and SCHNEPP, JJ.

DENMAN, Justice.

Defendant was convicted after a jury trial of assault in the second degree (Penal Law § 120.05 [2] [intentionally causing physical injury to a person by means of a dangerous instrument] ). On appeal, defendant challenges the propriety of the court's instruction to the jury on the defense of justification, particularly the rules governing the use of deadly physical force and the opportunity to retreat, and of the court's twice repeating the charge upon the jury's requests for further instructions. We find the court's instructions proper in all respects and therefore affirm.

Defendant was charged with stabbing his former housemate in the course of a street fight stemming from a dispute concerning their prior living arrangement. The prosecution's proof established that defendant had a chance encounter with the victim, David Reed, while attempting to retrieve his girlfriend's car parked in front of Reed's house. Reed swore at defendant, began to argue with him, and instigated a fist fight which lasted five to ten minutes until both men became too tired to continue. Reed apparently had gotten the better of the match. Defendant then left the area in order to obtain gasoline for the car. Subsequently, he returned to the area, entered the car for a short time, then emerged and invited Reed to "finish the fight." When Reed approached for the second time, defendant pulled a knife from his sock, ¹ grabbed Reed by the shirt, and slashed him on the leg, face, shoulder and forearm. Reed's neighbor, Alfred Brown, interceded and enabled Reed to break away. Defendant continued to swing the knife at Brown, who picked up a rake and began swinging it at defendant. When the rake broke, Brown ran into the house, returned with a butcher knife, and swung it at defendant without striking him. The confrontation ended when Brown threw down the knife and jumped into the truck of Nathaniel Moss, who took Reed to the hospital. The medical testimony established that Reed suffered major but not life threatening injuries which required him to receive stitches to his shoulder and surgery to repair several tendons in his forearm. Reed testified that he was hospitalized four days, that he wore a cast for a month, and that he had to undergo three weeks of physical therapy in order to regain the use of the fingers on his left hand.

Defendant's testimony in support of his self-defense claim differed substantially although it conformed to that of the prosecution witnesses through the account of the initial fist fight. Then, however, defendant testified that when he returned to the scene with the gasoline, he looked in the car's glove compartment for a funnel. Instead, he found a knife which he placed in his sock in order to protect himself. As Reed approached within 5-10 feet of defendant, Brown also approached brandishing a machete. Defendant pulled the knife, but Brown and Reed continued to advance toward him. Before Brown came within six feet, defendant grabbed Reed, accidentally cutting him. Reed fled but Brown continued to threaten defendant with the machete until Brown's girlfriend persuaded Brown to put it down, whereupon Brown picked up the rake and began swinging it at defendant. Defendant left the area after Brown, Reed and Moss departed for the hospital.

Defendant's requested charge on justification concerned the use of ordinary physical force but omitted reference to the use of deadly physical force. In the alternative, defendant requested that the court charge in accordance with the Criminal Jury Instructions insofar as the model charge dispenses with the retreat rule when defendant is threatened by an "up-lifted knife in close combat" and cautions against charging deadly physical force where defendant is accused of causing only ordinary physical injury (see 1 CJI [N.Y.] 35.00, pp. 843-844, 851, 853). The court rejected defendant's requests and charged justification with respect to both physical force (see Penal Law § 35.15[1] ) and deadly physical force, including opportunity to retreat (see Penal Law § 35.15[2] ).

After deliberating about one and one-half hours, the jury returned with a request that the court reinstruct it, inter alia, on the requirements for justification. The court indicated its understanding that the jury desired the "instructions regarding justification read back to you." The jury foreman said, "Yes". The court thereupon reiterated its charge on justification, asked the jury if it required anything else, and was told, "No". Defense counsel again specifically objected to the instruction on deadly physical force and retreat.

After an additional three and one-half hours, the jury returned with a specific request that the court "reread justification," specifically, "retreat opportunity" and "physical versus deadly physical force." The court reiterated its justification instruction and the jury again retired without further questions or comments. Defense counsel again objected to the court's charging deadly physical force and retreat. Additionally, defense counsel objected to the court's "just read(ing) what it has previously read." The jury subsequently found defendant guilty of assault in the second degree.

Relying on the model charge and commentaries in the CJI, defendant contends that the court's charge on justification was erroneous. Specifically, he contends that the court erred in instructing on the use of deadly physical force where he was charged with inflicting only ordinary physical injury. Additionally, defendant contends that the court erred in charging on the opportunity to retreat when defendant was confronted by an "up-lifted knife in close combat." We find the court's charge to have been proper and defendant's challenge to be without merit.

There was ample evidentiary basis for delivering the charge on use of deadly physical force, including the duty to retreat. According to defendant's testimony, he pulled his knife when approached by Reed, who was not armed, and Brown, who was. However, even according to defendant's testimony, he stabbed Reed before Brown got close to him and Brown was never closer than six feet. The prosecution's proof, to the contrary, showed that defendant brandished and used the knife to inflict injury when confronted by a single unarmed man. Unquestionably, using a knife to inflict injury upon one's victim constitutes the use of deadly physical force (see People v. Albino, 104 A.D.2d 317, 478 N.Y.S.2d 908, affd. for reasons stated below 65 N.Y.2d 843, 493 N.Y.S.2d 305, 482 N.E.2d 1221; see also 1 CJI [N.Y.] 35.00, p. 846 [use of knife by assailant constitutes deadly physical force]; cf. People v. Dingley, 50 A.D.2d 361, 378 N.Y.S.2d 90, revd. on other grounds 42 N.Y.2d 888, 397 N.Y.S.2d 789, 366 N.E.2d 877 [defendant's act in biting off victim's ear constitutes use of deadly physical force] ).

The CJI admonition against charging duty to retreat where defendant is confronted by an "up-lifted knife in close combat" is inapplicable on these facts. However desirable it might be to dispense with that rule in a case where it is undisputed that defendant was confronted with deadly force (see, e.g., Matter of Charles W., 61 A.D.2d 1033, 1034, 403 N.Y.S.2d 105), here the prosecution witnesses testified that defendant stabbed an unarmed man. In these circumstances, the prosecution is entitled to have the jury measure defendant's justification defense by the more restrictive standard imposing on him a duty to retreat if he knows retreat is possible (see People v. Dingley, supra, 50 A.D.2d pp. 363-364, 378 N.Y.S.2d 90, revd. on other grounds 42 N.Y.2d 888, 397 N.Y.S.2d 789, 366 N.E.2d 877; People v. Crespo, 64 A.D.2d 529, 530, 406 N.Y.S.2d 484).

We reject defendant's contention, based on the advisory notes in the CJI, that a charge on deadly physical force is impermissible where defendant is charged only with inflicting ordinary physical injury. Defendant was indicted and convicted for assault in the second degree (Penal Law § 120.05 [2] [intentionally causing physical injury by means of a dangerous instrument] ). Conviction of this charge requires proof that defendant employed...