People v. Johnson

• Citation: 91 A.D.3d 1121,2012 N.Y. Slip Op. 00258,936 N.Y.S.2d 748
• Parties: The PEOPLE of the State of New York, Respondent, v. Shawndell JOHNSON, Appellant.
• Decision Date: 19 January 2012
• Court: New York Supreme Court Appellate Division

2012 N.Y. Slip Op. 00258
91 A.D.3d 1121
936 N.Y.S.2d 748

The PEOPLE of the State of New York, Respondent,
v.
Shawndell JOHNSON, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Jan. 19, 2012.

[936 N.Y.S.2d 749]

Mitch Kessler, Cohoes, for appellant.

Robert M. Carney, District Attorney, Schenectady (Gerald A. Dwyer of counsel), for respondent.

Before: MERCURE, Acting P.J., PETERS, ROSE, LAHTINEN and GARRY, JJ.

GARRY, J.

[91 A.D.3d 1121] Appeal from a judgment of the Supreme Court (Coccoma, J.), rendered March 17, 2010 in Schenectady County, upon a verdict convicting defendant of the crime of assault in the second degree.

While incarcerated in the Schenectady County jail, defendant engaged in violent conduct with another inmate. Correction officer Stephen Redmond (hereinafter the victim) was standing in front of the two inmates when they began to fight. Upon hearing other officers shouting commands for the two to “stop,” the [91 A.D.3d 1122] victim turned and attempted to restrain defendant. Defendant kicked and struggled, and the two fell to the ground. As a result, the victim sustained arm and shoulder injuries.

Defendant was indicted on two counts of assault in the second degree. Following a jury trial, he was acquitted of the count pertaining to the other inmate and convicted of the count pertaining to the victim. Supreme Court conducted a restitution hearing, ordered defendant to pay restitution, and sentenced defendant as a second felony offender to a prison term of five years and five years of postrelease supervision. Defendant appeals.

[2] Defendant contends that Supreme Court erred in failing to instruct the jury on the defense of justification as to the assault charge pertaining to the

[936 N.Y.S.2d 750]

victim ( see Penal Law § 120.05[3] ).¹ Generally, “a justification charge is proper when, viewing the evidence in the light most favorable to the defendant, the jury, based upon a reasonable view of the evidence, could find that the defendant's acts were justified” ( People v. Mothon, 284 A.D.2d 568, 569, 729 N.Y.S.2d 541 [2001], lv. denied 96 N.Y.2d 865, 730 N.Y.S.2d 40, 754 N.E.2d 1123 [2001]; see People v. Curry, 85 A.D.3d 1209, 1211–1212, 924 N.Y.S.2d 217 [2011], lv. denied 17 N.Y.3d 815, 929 N.Y.S.2d 803, 954 N.E.2d 94 [2011] ). In making this determination, the jury would be required to consider whether defendant reasonably believed that physical force was necessary to defend himself against another person's use or imminent use of physical force, and whether a reasonable person would have held this belief in the same circumstances ( see Penal Law § 35.15[1]; People v. Young, 33 A.D.3d 1120, 1122–1123, 825 N.Y.S.2d 147 [2006], lvs. denied 8 N.Y.3d 921, 925, 929, 834 N.Y.S.2d 511, 512, 516, 519, 866 N.E.2d 457, 458, 462, 465 [2007] ). The testimony of the victim and other witnesses to the altercation fully established that the other inmate had already been subdued and was cooperating with other officers by the time the victim intervened, and that defendant continued to struggle with the victim even after the other inmate had been handcuffed. Viewed in the light most favorable to defendant, there was no evidence supporting a reasonable belief that, after the victim intervened, physical force was necessary to avert any threat posed by the other inmate to defendant. Accordingly, defendant was not entitled to a justification instruction on the charge pertaining to the victim ( see People v. Pine, 82 A.D.3d 1498, 1500–1501, 919 N.Y.S.2d 564 [2011], lv. denied 17 N.Y.3d 820, 929 N.Y.S.2d 809, 954 N.E.2d 100 [2011]; People v. Grady, 40 A.D.3d 1368, 1371, 838 N.Y.S.2d 207 [2007], lv. denied 9 N.Y.3d 923, 844 N.Y.S.2d 178, 875 N.E.2d 897 [2007] ).

[91 A.D.3d 1123] We further reject defendant's contention that the People improperly impeached their own...