People v. Samuel

• Citation: 525 N.Y.S.2d 918,138 A.D.2d 543
• Parties: The PEOPLE, etc., Respondent, v. Leon J. SAMUEL, Appellant.
• Decision Date: 14 March 1988
• Court: New York Supreme Court — Appellate Division

Page 918

525 N.Y.S.2d 918

138 A.D.2d 543

The PEOPLE, etc., Respondent, v. Leon J. SAMUEL, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 14, 1988.

John F. Clennan, Ronkonkoma, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Annette Cohen, of counsel), for respondent.

Before MOLLEN, P.J., and KUNZEMAN, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Posner, J.), rendered September 23, 1986, convicting him of assault in the first degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the case is remitted to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50(5).

The defendant's guilt was established by direct as well as circumstantial evidence. The direct evidence included a statement by the defendant to a police officer at the scene in which he essentially admitted that he had hit the complainant, his son, with a crowbar ( see, People v. Rumble, 45 N.Y.2d 879, 410 N.Y.S.2d 806, 383 N.E.2d 108; People v. Browne, 106 A.D.2d 510, 483 N.Y.S.2d 44). As the prosecution's case did not rest solely on circumstantial evidence, the court did not err in refusing the defendant's request to charge that the circumstantial evidence must be inconsistent with his innocence and must exclude, to a moral certainty, every other reasonable hypothesis but guilt ( see, People v. Johnson, 65 N.Y.2d 556, 561, 493 N.Y.S.2d 445, 483 N.E.2d 120, rearg. denied 66 N.Y.2d 759, 497 N.Y.S.2d 1029, 488 N.E.2d 118; People v. Ruiz, 52 N.Y.2d 929, 437 N.Y.S.2d 665, 419 N.E.2d 343).

The evidence was sufficient to support submission to the jury of the charge of reckless assault in the first degree. The defendant's testimony tended to show that the defendant was not the initial aggressor but was only attempting to protect himself from his son's attack upon him. However, the evidence also showed that, at some point during the struggle, the defendant followed his son into another room and inflicted serious injury by repeatedly hitting him in the head with a crowbar. The jury could have found that the defendant acted recklessly by hitting his son each time he tried to rise from the floor but did not act with the conscious objective to cause death. Further, the jury could have concluded that the use of such force was no longer necessary for the defendant to defend himself and was, therefore, not justified (...