People v. Griffin

• Decision Date: 08 March 1984
• Citation: 100 A.D.2d 659,473 N.Y.S.2d 851
• Parties: The PEOPLE of the State of New York, Respondent, v. Jesse GRIFFIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 851

473 N.Y.S.2d 851

100 A.D.2d 659

The PEOPLE of the State of New York, Respondent, v. Jesse GRIFFIN, Appellant.

Supreme Court, Appellate Division,

Third Department.

March 8, 1984.

Donald N. Forte, Liberty, for appellant.

Stephen F. Lungen, Dist. Atty., Monticello (Jeffrey L. Kirsch, Asst. Dist. Atty., Monticello, of counsel), for respondent.

Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the County Court of Sullivan County, rendered March 25, 1982, upon a verdict convicting defendant of the crime of assault in the first degree.

Shortly before 8:00 A.M. on September 4, 1981, the Fallsburg Town Police received a call from a person who stated, "You better get right down here, I just stabbed [someone]." The caller, after being asked to identify himself, replied, "This is Jesse Griffin down at Golden Bells [Bungalow Colony]", reiterated that he had stabbed someone, and further stated that the victim would be walking down the street bleeding from his buttocks. Two police cars headed for the bungalow colony and one intercepted a taxi which had picked up the victim, one Hernando Suarez Garcia, a tenant at Golden Bells. The other police car proceeded to Golden Bells, where the police officers found defendant standing by the side of the road holding a knife. One policeman drew his gun and ordered defendant to place the knife on the hood of the car. At this time, defendant stated that he had "cut" Garcia. Defendant further stated, while the policemen attempted to frisk him and read him his Miranda rights, that Garcia was a "faggot" who had "come on" to him, so he "cut" Garcia. After being formally arrested, defendant claimed that Garcia "came on" to him and then came after him with a brick. The police searched the site of the altercation but were unable to find a brick or any other likely instrumentality. Garcia, meanwhile, had been transported to the hospital, where emergency surgery was performed. A doctor who treated Garcia testified that the wound would have been fatal had surgery not stopped the bleeding and that the dimensions of the stab wound were consistent with the knife confiscated from defendant. Defendant was indicted for assault in the first degree (Penal Law, § 120.10, subd. 1).

After a Huntley hearing, defendant's statements were held admissible as spontaneously made. The victim Garcia was not produced at trial, and the prosecution and defense established their diligent, but unsuccessful, efforts to locate him. ^* Apparently Garcia resurfaced several weeks after the trial. The jury found defendant guilty as charged and a term of incarceration of two and one-third to seven years was imposed. This appeal followed and, after reviewing defendant's multitudinous claims of error, we conclude that those claims either have not been preserved for review on this appeal or are without merit and that only the following warrant extended discussion.

County Court, at one point during its charge to the jury, instructed that "the prosecution does not have to prove the defendant guilty beyond a reasonable doubt * * * ". Although this statement, in and of itself, is inaccurate and contrary to defendant's constitutional rights, County Court, several other times immediately before and after the quoted passage, properly instructed the jury as to the prosecutor's burden of proof. Viewing the charge as a whole (see People v. Robinson, 36 N.Y.2d 224, 227-228, 367 N.Y.S.2d 208, 326 N.E.2d 784) and considering the instances where the charge was correctly stated as curative instructions (see People v. Joseph AA., 92 A.D.2d 649, 650, 460 N.Y.S.2d 145), we conclude that the proper standard was conveyed to the jury (see, also, United States v. Rosa, 493 F.2d 1191, 1195, cert. den. 419 U.S. 850, 95 S.Ct. 89, 42 L.Ed.2d 80).

Defendant also contends that County Court erred in its charge on justification by failing to adequately inform the jury that one may use deadly physical force without retreating to repel an attack of deadly physical force in one's own dwelling (Penal Law, § 35.15, subd. 2, par. [a], cl. [i] ). This claim has not been preserved for our review on this appeal because defendant did not object to County Court's instruction (CPL 470.05, subd. 2) and, in any event, the entire justification statute, including the part claimed by defendan...