People v. Delin

CourtNew York Supreme Court Appellate Division
Citation43 N.Y.S.3d 47,2016 N.Y. Slip Op. 08465,145 A.D.3d 566
Decision Date15 December 2016
Parties The PEOPLE of the State of New York, Respondent, v. Shao DELIN, also known as De Lin Shao, Defendant–Appellant.

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.


43 N.Y.S.3d 47

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.

145 A.D.3d 566

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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4 practice notes
  • People v. Wah, 8503
    • United States
    • New York Supreme Court Appellate Division
    • April 23, 2019
    ...148 A.D.3d 550, 48 N.Y.S.3d 897 [1st Dept. 2017] ; lv dismissed 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017] ; People v. Delin , 145 A.D.3d 566, 43 N.Y.S.3d 47 [1st Dept. 2016], lv dismissed 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ).171 A.D.3d 575 Here, reversal is war......
  • People v. Breckenridge, 6347
    • United States
    • New York Supreme Court Appellate Division
    • June 7, 2018
    ...A.D.3d 568, 569, 41 N.Y.S.3d 890 [1st Dept. 2016], lv dismissed 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; People v. Delin , 145 A.D.3d 566, 567, 43 N.Y.S.3d 47 [1st Dept. 2016], lv dismissed 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017]. In my opinion the facts in this c......
  • Cruz v. W. Heritage Ins. Co.
    • United States
    • New York Supreme Court Appellate Division
    • December 15, 2016
    ...to enter judgment declaring that defendant has no duty to defend or indemnify plaintiff in the underlying personal injury action. 145 A.D.3d 566Plaintiff's unexplained delay of at least two months in notifying defendant of the underlying personal injury action against him constitutes late n......
  • People v. Blackwood,
    • United States
    • New York Supreme Court Appellate Division
    • February 7, 2017
    ...reversal in the interest of justice (see e.g. People v. Flores, 145 A.D.3d 568, 41 N.Y.S.3d 890 [1st Dept.2016] ; People v. Delin, 145 A.D.3d 566, 43 N.Y.S.3d 47 [1st Dept.2016] ).In light of this determination, we find it unnecessary to reach any other issues.FRIEDMAN, J.P., ANDRIAS, MOSKO......
4 cases
  • People v. Wah, 8503
    • United States
    • New York Supreme Court Appellate Division
    • April 23, 2019
    ...148 A.D.3d 550, 48 N.Y.S.3d 897 [1st Dept. 2017] ; lv dismissed 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017] ; People v. Delin , 145 A.D.3d 566, 43 N.Y.S.3d 47 [1st Dept. 2016], lv dismissed 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ).171 A.D.3d 575 Here, reversal is war......
  • People v. Breckenridge, 6347
    • United States
    • New York Supreme Court Appellate Division
    • June 7, 2018
    ...A.D.3d 568, 569, 41 N.Y.S.3d 890 [1st Dept. 2016], lv dismissed 29 N.Y.3d 997, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ; People v. Delin , 145 A.D.3d 566, 567, 43 N.Y.S.3d 47 [1st Dept. 2016], lv dismissed 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017]. In my opinion the facts in this c......
  • Cruz v. W. Heritage Ins. Co.
    • United States
    • New York Supreme Court Appellate Division
    • December 15, 2016
    ...to enter judgment declaring that defendant has no duty to defend or indemnify plaintiff in the underlying personal injury action. 145 A.D.3d 566Plaintiff's unexplained delay of at least two months in notifying defendant of the underlying personal injury action against him constitutes late n......
  • People v. Blackwood,
    • United States
    • New York Supreme Court Appellate Division
    • February 7, 2017
    ...reversal in the interest of justice (see e.g. People v. Flores, 145 A.D.3d 568, 41 N.Y.S.3d 890 [1st Dept.2016] ; People v. Delin, 145 A.D.3d 566, 43 N.Y.S.3d 47 [1st Dept.2016] ).In light of this determination, we find it unnecessary to reach any other issues.FRIEDMAN, J.P., ANDRIAS, MOSKO......

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