People v. Delin
| Decision Date | 15 December 2016 |
| Citation | 43 N.Y.S.3d 47,2016 N.Y. Slip Op. 08465,145 A.D.3d 566 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Shao DELIN, also known as De Lin Shao, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
145 A.D.3d 566
43 N.Y.S.3d 47
2016 N.Y. Slip Op. 08465
The PEOPLE of the State of New York, Respondent,
v.
Shao DELIN, also known as De Lin Shao, Defendant–Appellant.
Supreme Court, Appellate Division, First Department, New York.
Dec. 15, 2016.
Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Beth Fisch Cohen of counsel), for respondent.
SWEENY, J.P., RENWICK, RICHTER, MANZANET–DANIELS, KAPNICK, JJ.
Judgment, Supreme Court, New York County (Patricia M. Nuñez, J.), rendered April 4, 2013, convicting defendant, after a jury trial, of assault in the first and second degrees, and sentencing him to an aggregate term of 10 years, unanimously reversed, as a matter of discretion in the interest of justice, and the matter remanded for a new trial.
As in cases such as People v. Velez , 131 A.D.3d 129, 13 N.Y.S.3d 354 (1st Dept.2015), the court's charge did not convey to the jury that an acquittal on the top count of attempted murder based on a finding of justification would preclude consideration of the other charges.
In addition, the court's charge on the use of excessive force contained a significant omission. Even if a defendant is initially justified in using deadly physical force in self-defense, he or she may not continue to use deadly physical force after the assailant no longer poses a threat (People v. Del–Debbio, 244 A.D.2d 195, 195, 664 N.Y.S.2d 28 [1st Dept.1997], lv. denied 91 N.Y.2d 925, 670 N.Y.S.2d 406, 693 N.E.2d 753 [1998] ). However, in such a situation the People must prove that it was the unnecessary additional force that caused the alleged harm (People v. Hill, 226 A.D.2d 309, 310, 642 N.Y.S.2d 222 [1st Dept.1996], lv. denied 88 N.Y.2d 937, 647 N.Y.S.2d 170, 670 N.E.2d 454 [1996] ), which in this case was serious physical
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