People v. Lewis
| Decision Date | 11 March 1986 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Johnny LEWIS, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Calvin C. Saunders, of counsel (Hesper A. Jackson, Jr., Brooklyn), for defendant-appellant.
David Haxton, of counsel (Norman Barclay with him on brief; Robert M. Morgenthau, New York City), for respondent.
Before SANDLER, J.P., and FEIN, MILONAS, ROSENBERGER and ELLERIN, JJ.
The defendant Johnny Lewis, was convicted of one count of criminal possession of a weapon in the second degree. This charge, as well as a charge of criminal possession of a weapon in the third degree also contained in the indictment, arose out of an incident which occurred on the afternoon of September 27, 1981. While pushing an invalid neighbor in a wheelchair, the defendant approached the door of the apartment building where he lived. The defendant motioned to Hector Paquero, the security guard on duty in the lobby, to open the door. Paquero refused, and, after defendant opened the door using his key, he and Paquero exchanged heated words. What happened next is disputed.
Paquero testified that defendant, after threatening him with a knife and observing Paquero grab his nightstick, left the lobby. A short while later, defendant returned with a loaded gun and put the gun to Paquero's temple. Another security guard corroborated Paquero's testimony as to the second confrontation.
Defendant's version of the altercation was entirely different. Admitting to the possession of the gun when he first entered the lobby, he testified that he displayed its handle in self-defense about a minute or two after the argument began when he observed the guard advancing towards and circling him while brandishing a pipe or a stick. He indicated that he "showed the weapon so he [the security guard] wouldn't advance with the pipe if he had any common sense he wouldn't strike me with a pipe knowing I had something to protect myself".
The defendant did not initially request the court to instruct the jury on the defense of justification. Nor did he object to the charge given, which lacked such an instruction. The jury retired to deliberate. During its deliberations, the jury requested instruction on the issue of justification. The following transpired:
"THE COURT: I have a note ... as follows: .
* * *
* * *
Madam Forelady, members of the jury, if you find beyond a reasonable doubt that the defendant [sic] only intention was to threaten, or scare, another person and that he did not intend to cause any bodily harm to that person, such actions would constitute an unlawful intent to use the weapon.
Madam Forelady, has the jury's request been satisfied?
FORELADY: Yes."
After further deliberations, the jury requested further instructions and returned to the courtroom. The trial court refused defendant's request, made after the receipt of the second note and before the jury's reentry into the courtroom, to instruct the jury as to the defense of justification in response to their note requesting clarification of the element "intent to use unlawfully". The court then instructed the jury as follows:
"THE COURT: Madam Forelady, ladies and gentlemen of the jury, I have received a note from you. It's addressed to me and it reads as follows: 'We the jury request that you clarify if "Does intent to use unlawfully include use in self-defense? Does self-defense enter into this case at all?'
Now, ladies and gentlemen of the jury, I have charged you with respect to all of the applicable law there is to this case. There is no other law applicable to this case.
Now, with respect to that which I have already charged you on, if you want clarification of my instructions on the law, then send me a note and I'll give you that, but any law that I did not charge you on, is not in the case.
Does that satisfy the request of the jury?"
(All jurors answer in the affirmative.)
The jury thereafter returned a verdict of guilty of criminal possession of a weapon in the second degree. Sentence was imposed and stayed pending disposition of this appeal.
Defendant contends, and we agree, that the trial court erred in failing to give a supplemental instruction on the defense of justification, and in specifically excluding that defense in response to the jury's second question during deliberations.
It is well-accepted that, in considering whether the trial court's instructions to the jury were adequate, the record must be considered in the light most favorable to the defendant. People v. Steele, 26 N.Y.2d 526, 529, 311 N.Y.S.2d 889, 260 N.E.2d 527 (1970). If any reasonable view of the evidence supports the defense of justification, the trial court should instruct the jury as to the defense, and must do so when requested. The failure to charge justification where the jury could have found that defendant's actions were justified constitutes reversible error. People v. Padgett, 60 N.Y.2d 142, 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795 (1983), People v. Hunter, 61 A.D.2d 990, 402 N.Y.S.2d 604 (2d Dept.1978). See also People v. Pendergraft, 50 A.D.2d 531, 374 N.Y.S.2d 669 (1st Dept.1975).
The issue is preserved since the defendant requested such a charge in response to the jury's second note. A request to charge may properly be made after the completion of the charge to the jury. CPL 300.10(5). A "protest need not be in the form of an 'exception' " and may be made "at any subsequent time when the court had an opportunity of effectively changing the same." CPL 470.05(2).
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