People v. Del-Debbio

• Decision Date: 13 November 1997
• Docket Number: DEL-DEBBI,D
• Citation: 244 A.D.2d 195,664 N.Y.S.2d 28
• Parties: , 1997 N.Y. Slip Op. 9400 The PEOPLE of the State of New York, Respondent, v. Peterefendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 28

664 N.Y.S.2d 28

244 A.D.2d 195, 1997 N.Y. Slip Op. 9400

The PEOPLE of the State of New York, Respondent, v. Peter DEL-DEBBIO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

Nov. 13, 1997.

Alan Gadlin, for respondent.

Mark M. Baker, for defendant-appellant.

Before SULLIVAN, J.P., and MILONAS, WALLACH, WILLIAMS and TOM, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County (Bernard Fried, J.), rendered June 21, 1996, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to time served, 5 years probation, and 200 hours of community service, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The jury had ample basis upon which to reject defendant's testimony and to instead credit the testimony of the victim and other People's witnesses, which version was confirmed by the physical evidence. Given these credibility determinations, there was overwhelming evidence that each of the four shots fired by defendant into the victim's back were reckless and unjustified.

The court properly instructed the jury that they must separately analyze each shot fired by the defendant in determining whether the defendant's action was justified. Even if a defendant is justified in using deadly physical force at the beginning of a single, ongoing encounter with an assailant, his right to use that force terminates at the point he can no longer reasonably believe the assailant still poses a threat to him (People v. Reeder, 209 A.D.2d 551, 618 N.Y.S.2d 839, lv. denied 85 N.Y.2d 913, 627 N.Y.S.2d 336, 650 N.E.2d 1338; People v. Cox, 203 A.D.2d 7, 610 N.Y.S.2d 15, lv. denied 83 N.Y.2d 1003, 616 N.Y.S.2d 484, 640 N.E.2d 152). The jury charge neither amended the indictment nor rendered the assault count duplicitous. The court clearly instructed the jury that the assault remained a single crime, consisting of a single course of conduct, composed of several acts, one or more of which had to be found unjustified (see, People v. Charles, 61 N.Y.2d 321, 326-328, 473 N.Y.S.2d 941, 462 N.E.2d 118; People v. Heinzelman, 170 A.D.2d 841, 567 N.Y.S.2d 180, lv. denied 77 N.Y.2d 995, 571 N.Y.S.2d 921, 575 N.E.2d 407; People v. Rivera, 157 A.D.2d 540, 549 N.Y.S.2d 728, lv. denied 77 N.Y.2d 995, 559 N.Y.S.2d 1000, 559 N.E.2d 694).

The court did not err in precluding testimony from three proffered defense expert witnesses. Defendant...