People v. Delisme
| Decision Date | 06 September 2022 |
| Docket Number | 16186,Ind. No. 3847/18,Case No. 2019–04131 |
| Citation | 208 A.D.3d 1063,174 N.Y.S.3d 63 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Bertrand DELISME, Defendant–Appellant. |
| Court | New York Supreme Court — Appellate Division |
208 A.D.3d 1063
174 N.Y.S.3d 63
The PEOPLE of the State of New York, Respondent,
v.
Bertrand DELISME, Defendant–Appellant.
16186
Ind. No. 3847/18
Case No. 2019–04131
Supreme Court, Appellate Division, First Department, New York.
Entered September 6, 2022
Caprice R. Jenerson, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Sylvia Wertheimer of counsel), for respondent.
Manzanet–Daniels, J.P., Webber, Gesmer, Scarpulla, Shulman, JJ.
Judgment, Supreme Court, New York County (Erika M. Edwards, J.), rendered August 1, 2019, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him, as a second felony offender, to a term of four years, reversed, on the law, and the matter remanded for a new trial.
Defendant and the complainant lived in a housing complex where they each had a separate room that gave them access to a shared bathroom to which no one else had access. The court should have granted the defense's request for a jury instruction that defendant, who asserted a defense of justification, had no duty to retreat from the bathroom he shared with the complainant as a matter of law ( Penal Law § 35.15[2][a][i] ; see People v. Primus, 178 A.D.2d 565, 566, 577 N.Y.S.2d 650 [2d Dept. 1991] [it was
reversible error to charge the jury on duty to retreat where the assault occurred outside a shared bathroom that was part of the defendant's dwelling]; People v. McCurdy, 86 A.D.2d 493, 497–498, 450 N.Y.S.2d 507 [2d Dept. 1982] ).
Under these undisputed facts, this bathroom, unlike a hallway bathroom, was accessible only from the respective rooms of defendant and the complainant. As a matter of law, the shared bathroom was a part of defendant's dwelling, notwithstanding that he shared it with the complainant, as opposed to a common area in the building. Therefore, under Penal Law § 35.15(2)(a)(i), defendant had no duty to retreat before using deadly physical force to defend himself (compare People v. Bradford, 191 A.D.3d 484, 138 N.Y.S.3d 303 [1st Dept. 2021], lv. denied 37 N.Y.3d 954, 147 N.Y.S.3d 522, 170 N.E.3d 396 [2021] ).
Given these facts, the court's inaccurate instruction that whether the incident took place in defendant's dwelling depended on the extent to which defendant exercised exclusive possession and control over the area in question could have led the jury to erroneously conclude that the bathroom was not part of defendant's dwelling because he shared it with the complainant and that therefore defendant had a duty to retreat. Indeed, the court apparently
overlooked that the term "dwelling" in Penal Law § 35.15(2)(a)(i) means "a person's residence, and [that] any definition of the term must therefore account for a myriad of living arrangements ... [so that a] determination of whether a particular location is part of a defendant's dwelling depends on the extent to which defendant (and persons actually sharing living quarters with defendant ) exercises exclusive possession and control over the area in question" ( People v. Hernandez, 98 N.Y.2d 175, 182–183, 746 N.Y.S.2d 434, 774 N.E.2d 198 [2002] [emphasis added]).
On this record, there is no evidence that in addition to defendant and the complainant, strangers had routine access to or use of their shared bathroom ( id. at 183, 746 N.Y.S.2d 434, 774 N.E.2d 198 ). Accordingly, there was simply no factual determination for the jury to make as to whether or not the location of the assault was in a dwelling within the meaning of Penal Law § 35.15(2)(a)(i) in considering defendant's justification defense.
Moreover, we do not find that the error in the court's justification instruction (quoted by the dissent in its entirety) was harmless. The issue of justification was of critical importance in this case, as evidenced by the jury's requests for the definition of intent and for defendant's testimony about how the complainant attacked him. In ( People v. Jones, 3 N.Y.3d 491, 496, 788 N.Y.S.2d 651, 821 N.E.2d 955 [2004] ), cited by the dissent, the defendant testified
that the victim did no more than try to slap him, an act that clearly did not involve deadly physical force. Contrarily, during cross-examination defendant explicitly testified, "I heard the door open quick and he attempt to swing at me with an object," and reiterated that "he tried to hit me with an object, I blocked it and I just grabbed something quickly near the bathroom and I hit him." That testimony, if accepted, was evidence that defendant reasonably believed he was facing an imminent attack that could cause him death or serious physical injury (see Penal Law § 10.00[11] ), and justifiably acted in self-defense.
We fully accord the jurors their proper deference as finders of fact and assessors of the credibility of witnesses ( People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ), and never assume they were required to accept defendant's version of the altercation over that of the complainant. Nonetheless, "[i]n considering a challenge to a jury instruction, the crucial question is whether the charge, in its entirety, conveys an appropriate legal standard and does not engender any possible confusion" for the jury ( People v. Hill, 52 A.D.3d 380, 382, 860 N.Y.S.2d 518 [1st Dept. 2008] [internal quotation marks omitted] [reversing conviction because of potentially confusing jury instructions that, inter alia, failed to distinguish between ordinary and deadly force on justification defense and duty to retreat]).
Our dissenting colleagues fairly marshal the testimonial evidence they perceive as overwhelming. Nonetheless, on this record, and in hindsight, we find that their conclusion rests on speculation that the jury found the complainant more credible than defendant. It is plausible that the jury may have rejected the justification defense by finding that defendant's use of deadly physical force was unwarranted as the initial aggressor. It is equally plausible that the verdict was predicated upon a finding that defendant, despite not being an initial aggressor who reasonably believed the complainant was about to use deadly physical force against him (even without actually being struck), still had a duty to retreat, based upon the court's erroneous instruction. It must be emphasized
that this erroneous instruction did affirmatively direct the jury to consider the duty to retreat in making their factual determination as to whether or not defendant was justified in using deadly physical force. Since the verdict sheet solely asked the jury to decide if defendant committed the crime of assault in the second degree, we cannot ascertain the basis for the verdict. Based on the foregoing, we cannot find that this error was harmless.
Defendant's pro se speedy trial arguments are unpreserved, as well as unreviewable for lack of a sufficient record, and we
decline to review them in the interest of justice. Because we are ordering a new trial, we find it unnecessary to reach any other issues.
All concur except Webber and Scarpulla, JJ. who dissent in a memorandum by Webber, J. as follows:
WEBBER, J. (dissenting)
Penal Law § 35.15(2)(a) prohibits a person from using deadly physical force against another person unless he reasonably believes the other person was using or about to use deadly physical force. In my opinion, even assuming the trial court erred in not instructing the jury that, as a matter of law, defendant had no duty to retreat, the error was harmless, because the record does not support the conclusion that...
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