People v. Melendez

Decision Date28 July 1992
Citation155 Misc.2d 196,588 N.Y.S.2d 718
PartiesThe PEOPLE of the State of New York v. Juan MELENDEZ.
CourtNew York Supreme Court

Legal Aid Society, Sue Wagner, New York City, of counsel, for defendant.

Charles J. Hynes, Dist. Atty., Kings County, Forrest Strauss, Asst. Dist. Atty., of counsel, for the People.

THEODORE T. JONES, Justice.

As part of defendant Juan Melendez' omnibus motion, defendant moves for inspection of the grand jury minutes and upon inspection dismissal of the indictment. 1

The motion to inspect the grand jury minutes is granted.

Defendant Juan Melendez testified at the grand jury. His testimony, in substance, was that he came upon the scene of the incident, and saw a person in civilian clothes fighting with his brother, the codefendant. During the fight the person in civilian clothes took a gun from his side. Whereupon, defendant, believing that his brother was being robbed or assaulted, pushed the person allegedly causing physical injury.

The person fighting with defendant was an undercover police officer making a legitimate arrest. The defendant denied knowing that the person in civilian clothes was a police officer or that he was making an arrest.

The People's evidence showed defendant's involvement to be completely different than defendant's testimony. Thus, an issue of fact for the grand jury was presented.

The prosecutor charged the jury with Assault in the Second Degree (Penal Law 120.05[3] and Assault in the Third Degree (Penal Law 120.00[1] and acting in concert, in helping his brother resist arrest (Penal Law 205.50). The grand jury voted a true bill on the two Assaults and a no true bill on Resisting Arrest. The grand jury thus found that defendant did not help his brother in resisting a lawful arrest, but defendant intentionally prevented a police officer from performing his lawful duty of calling for assistance.

In the charge, the prosecutor instructed the grand jury as to the elements of the crimes, and instructed on "self-defense". The charge on "self-defense" was totally incomprehensible as applied to the facts related by defendant Juan Melendez. In particular the prosecutor completely failed to give any guidance as to the law where a person defends another in the mistaken belief as to what was occurring to such person.

Totally lacking in this charge are any guidelines as to the law where the person protected is a wrongdoer or initial aggressor. The charge as to self-defense in this situation was confusing and misleading. Even without this error the charge was incomprehensible.

However, not every error in charging requires dismissal (People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140). Only when the instruction possibly prejudices a defendant, is dismissal warranted (People v. Di Falco, 44 N.Y.2d 482, 487-488, 406 N.Y.S.2d 279, 377 N.E.2d 732). Generally, an improper charge or no charge on justification is considered prejudicial (see People v. Karp, 158 A.D.2d 378, 380-381, 551 N.Y.S.2d 503, rvs'd on other grounds, 76 N.Y.2d 1006, 565 N.Y.S.2d 751, 566 N.E.2d 1156; People v. Albergo, 181 A.D.2d 683, 581 N.Y.S.2d 609; People v. Davis, 119 Misc.2d 1013, 465 N.Y.S.2d 404).

The issue of "possibility" of prejudice centers on whether justification is properly asserted in defense of another, where the intervenor is mistaken as to the fact regarding the necessity for action. If the defense is unavailable, then there was no prejudice by the confusing charge. If the defense is available, then there is prejudice by the charge as given in this case.

Outside of New York the courts are divided on this issue (see list of case on both sides in State of Chiarello, 69 N.J.Super. 479, 174 A.2d 506, 510). Some courts believe that the defender stands in the shoes of the person being defended. If that person has no justification defense then the intervenor on his behalf has no such right (See cases cited in 71 A.L.R.4th 940 Sections 6 and 8 at pages 961-962, 966-967; 2 Wharton's Criminal Law, 14th Edition, Section 128 pp. 142-143; 6A C.J.S. Assault and Battery Section 21 pp. 348-349, 40 C.J.S. Homicide Section 108(a) p. 502, 40 Am Jur. Homicide Section 172, pp. 458-459). The public policy consideration behind this line of cases is that undercover police officers, or successful victims of attack should not be subjected to the perils of being victimized by others.

Other courts feel that whenever the defender of another acts under a "reasonable belief" that the other needs assistance, the defense is available (See cases cited in 71 A.L.R.4th 940 Sections 7 and 9 pages 962-966, 967-969; 2 Wharton's Supra at pp. 142-143, 40 C.J.S. Homicide Section 108(a) at p. 502, 40 Am Jur.2d Homicide Section 172 pp. 458-459). The policy of these courts is to encourage "good samaritans" to intervene whenever appropriate. A policy requiring such "good samaritans" to accept the risk of mistake is unacceptable, and would discourage legitimate intervention.

The history of this issue in New York is checkered. In People v. Maine, 166 N.Y. 50, 59 N.E. 696, defendant claimed that it was reversible error to permit the prosecutor to introduce into evidence that the person Maine was protecting (his brother) was the initial aggressor. The court agreed and held that the jury must consider only the "situation as it was when he (defendant) first and afterwards saw it" (at p. 52, 59 N.E. 696). Thus, the court held that notwithstanding that the party being defended did not have the justification defense available, the intervenor still had such a defense.

In People v. Perkins, 11 N.Y.2d 195, 227 N.Y.S.2d 663, 182 N.E.2d 274, defendant claimed he was not a second felony offender. Defendant claimed that his manslaughter conviction in North Carolina could not be considered a predicate because North Carolina does not allow the justification defense in defense of another, where the other is the initial aggressor. This it was claimed made North Carolina's manslaughter conviction not parallel to New York's. The majority "assumed" this to be the law but rejected defendant's argument (at p. 198, 227 N.Y.S.2d 663, 182 N.E.2d 274). The court held that in looking to whether statutes are parallel you look to the elements of the crime not the defenses. Judge Froessel in an opinion concurred in by Judge Van Voorhis dissented and argued that People v. Maine, 166 N.Y. 50, 59 N.E. 696 required that defendant not be considered a predicate felon.

One month and 5 days after the Perkins decision the court decided People v. Young, 11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319. The issue in that case as set forth by the court was "whether one, who in good faith aggressively intervenes in a struggle between another person and a police officer in civilian dress attempting to effect the lawful arrest of the third person, may be properly convicted of assault in the third degree is a question of law of first impression here" (at p. 274, 229 N.Y.S.2d 1, 183 N.E.2d 319). In answering this question the court stated "we agree with the settled policy of law in most jurisdictions that the right of a person to defend another ordinarily should not be greater than such person's right to defend himself. Subdivision 3 of Section 246 of the Penal Law does not apply as no offense was being committed on the person of the one resisting the lawful arrest. Whatever may be the public policy where the felony charged requires proof of a specific intent and the issue is justifiable homicide (cf. People v. Maine, 166 N.Y. 50, 59 N.E. 696), it is not relevant in a prosecution for assault in the third degree where it is only necessary to show that the defendant knowingly struck a blow". 2 The court adopted the theory that the right to defend another is no greater than such other's right to defend himself/herself. Once again Judge Froessel and Van Voorhis dissented on the basis of People v. Maine, 166 N.Y. 50, 59 N.E. 696, supra).

Neither the Court of Appeals nor Appellate Courts seem to have addressed this issue since People v. Young, 11 N.Y.2d 274, 229 N.Y.S.2d 1, 183 N.E.2d 319, supra. Courts outside New York and authors have indicated that New York's new Penal Law has overruled Young (Commonwealth v. Martin, 369 Mass. 640, 341 N.E.2d 885 n. 15 at 852; Alexander v. State, 52 Md.App. 171, 447 A.2d 880, aff'd, 294 Md. 600, 451 A.2d 664; State v. Wenger, 58 Ohio St.2d 336, 12 O.O.3d 309, 390 N.E.2d 801 n. 6 at 804; 39 McKinney's Consol. Law of New York Practice Commentary by William Donnino to Article 35 p. 93 [1987 volume]; 7 Zett New York Criminal Practice 65.3[1] pp. 65-27, 65-28 (pages 5/92); see also People v. Goetz, 68 N.Y.2d 96, 111-112, 506 N.Y.S.2d 18, 497 N.E.2d 41, discussing Young and the current law, but not addressing this issue). One Judge in another jurisdiction has reservations whether the current Penal Law overruled Young (see concurring opinion of Judge Teague in Hughes v. State, 719 S.W.2d 560 at 565, 71 A.L.R.4th 919 at 929 entitled "A Requiem Dedicated to the Kitty Genoveses of this Country").

Penal Law 35.15(1)(b) as is relevant reads as follows: "A person may ... use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend ... a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless ... (b) The actor was the initial aggressor...."

Initially, the court must determine in the context of defense of another, who is the "actor" referred to in subdivision (b). If the "actor" referred to is the person being defended then Young has not been overruled. However, if the "actor" referred to in subd. (b) is the "good samaritan" intervenor then Young has been overruled and Maine is possibly the law.

In determining the intent of the legislature the court has looked to subdivision 2(a) of Penal Law 35.15, (the same Penal ...

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4 cases
  • People v. Walker
    • United States
    • New York Court of Appeals Court of Appeals
    • 27 d2 Outubro d2 2015
    ...Laws of N.Y., Book 39, Penal Law § 35.15 at 63 [1967 ed.] ). Indeed, as then-Justice Theodore T. Jones recognized in People v. Melendez, 155 Misc.2d 196, 201, 588 N.Y.S.2d 718 (Sup.Ct., Kings County 1992), the Penal Law was further revised to permit a justification defense to be considered ......
  • People v. Wang
    • United States
    • New York Supreme Court
    • 24 d5 Fevereiro d5 1995
    ...50, 464 N.E.2d 418; People v. Calbud, Inc., 49 N.Y.2d 389, 397, 426 N.Y.S.2d 238, 402 N.E.2d 1140; and see, People v. Melendez, 155 Misc.2d 196, 198, 588 N.Y.S.2d 718 [Sup.Ct. Kings Co. 1992] Under the evidence presented to the grand jury in this case, the court finds that the defendant's s......
  • People v. Walker
    • United States
    • New York Court of Appeals Court of Appeals
    • 27 d2 Outubro d2 2015
    ...Laws of N.Y., Book 39, Penal Law § 35.15 at 63 [1967 ed.] ). Indeed, as then-Justice Theodore T. Jones recognized in People v. Melendez, 155 Misc.2d 196, 201, 588 N.Y.S.2d 718 (Sup.Ct., Kings County 1992), the Penal Law was further revised to permit a justification defense to be considered ......
  • People v. Herbert
    • United States
    • New York Criminal Court
    • 20 d3 Dezembro d3 2000
    ...People v Caracciola, 78 NY2d 1021 [1991]; People v Batashure, 75 NY2d 306, 311-312 [1990]; Calbud, supra, 49 NY2d, at 396; People v Melendez, 155 Misc 2d 196 [Sup Ct, Kings County The defendant's testimony raised the issue of justification. The prosecution, however, failed to initially inst......

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