People v. Desmond

• Decision Date: 04 April 1983
• Citation: 460 N.Y.S.2d 619,93 A.D.2d 822
• Parties: The PEOPLE, etc., Respondent, v. Edward DESMOND, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 619

460 N.Y.S.2d 619

93 A.D.2d 822

The PEOPLE, etc., Respondent, v.Edward DESMOND, Appellant.

Supreme Court, Appellate Division Second Department.

April 4, 1983.

William E. Hellerstein, New York City(David Samel, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael J. Halberstam and Luise A. Barrack, Brooklyn, of counsel), for respondent.

Before BROWN, J.P., and NIEHOFF, RUBIN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered September 17, 1980, convicting him of manslaughter in the first degree and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law, and new trial ordered.

Defendant's sole defense at trial was that of justification.There was conflicting testimony as to whether or not the decedent had threatened and attacked defendant with a knife.Defendant admitted that he stabbed the decedent.

Subdivision 2 of section 35.15 of the Penal Law provides that a person may use deadly physical force upon another person when he reasonably believes that such person is using or is about to use deadly physical force against him and he cannot with complete safety avoid it by retreating.The defendant's state of mind is the crucial fact when the defense of justification is asserted (People v. Miller, 39 N.Y.2d 543, 551, 384 N.Y.S.2d 741, 349 N.E.2d 841).His subjective belief as to the imminence and seriousness of danger must be reasonable (People v. Miller, supra, p. 548, 384 N.Y.S.2d 741, 349 N.E.2d 841;People v. Governale, 193 N.Y. 581, 588, 86 N.E. 554).As was observed by Justice HOLMES in Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 502, 65 L.Ed. 961, "[d]etached reflection cannot be demanded in the presence of an uplifted knife".

The jury in this case should have been instructed to consider whether defendant's stated claim of justification was reasonable in light of defendant's knowledge of the decedent and the circumstances as they existed at the time of the slaying (seePeople v. Miller, supra, 39 N.Y.2d p. 551, 384 N.Y.S.2d 741, 349 N.E.2d 841).During the course of its charge with respect to justification, the court instructed the jury that "[t]he basic test of reasonableness is what the ordinary prudent man would have done under the same circumstances with the same knowledge and with the same understanding of what was happening".The court erred in enunciating an "ordinary prudent man" standard for the evaluation of defendant's behavior rather than having the jury consider what defendant must...