People v. Velez

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: TOM, J.P.
• Citation: People v. Velez, 2015 NY Slip Op 5619, 131 A.D.3d 129, 13 N.Y.S.3d 354 (N.Y. App. Div. 2015)
• Decision Date: 30 June 2015
• Docket Number: 14545, 4461/10
• Parties: The PEOPLE of the State of New York, Respondent, v. Daniel VELEZ, Defendant–Appellant.

131 A.D.3d 129

13 N.Y.S.3d 354

2015 N.Y. Slip Op. 05619

The PEOPLE of the State of New York, Respondent

v.Daniel VELEZ, Defendant–Appellant.

14545, 4461/10

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

June 30, 2015.

Robert S. Dean, Center for Appellate Litigation, New York (Susan H. Salomon of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Eric C. Washer of counsel), for respondent.

TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, KAPNICK, JJ.

Opinion

TOM, J.P.

A jury found defendant guilty of the lesser charges arising out of the stabbing of his girlfriend's son but acquitted him of the top count of the indictment, attempted murder in the second degree. Since justification was a central issue at trial and the court's instructions did not convey that acquittal of the greater charge of attempted murder based on a finding of justification precluded consideration of the lesser included offenses, the verdict is at best ambiguous. Thus, defendant was deprived of a fair trial, and a reversal is warranted in the interest of justice.

Rodger Meredith, the alleged victim, testified at trial that he was suspicious of the relationship between defendant, who is close to him in age, and Rodger's mother, Milagros Rolon. Both because of the age difference between defendant and Ms. Rolon and because Rodger noticed that defendant always came around near the end of the month when Ms. Rolon received her disability check, Rodger had never felt comfortable around defendant. When defendant did come to their apartment, he and Ms. Rolon would go right to her bedroom and get drunk.

Rodger's 13–year–old brother, Benjamin Jiminez, testified concerning a July 22, 2010 altercation between Rodger and defendant after their middle brother, Damian Meredith, pushed Ms. Rolon, who was drunk, causing her to fall to the floor. Defendant emerged from the bedroom and confronted Damian, who called Rodger. The following morning, Rodger came to the apartment and argued with defendant in his mother's bedroom. When the two men emerged, they were fistfighting. About a week later, Damian went to live in Florida, and Rodger began staying at his girlfriend's apartment.

As to the assault that took place on the night of November 13, 2010, Rodger testified that he called Benjamin, as had become his practice following the July incident, to ask if his mother had company, by which he meant defendant, and Benjamin told him that “everything is okay, go ahead, come over.” Just after entering the apartment building at about 10:40 p.m., as Rodger was putting away his keys, he saw defendant running down the stairs toward him holding a knife. Rodger put up his hand to protect his face but was cut on both his hand and his neck. He tripped, falling onto his right side, and defendant got on top of him, stabbing him in the stomach and left leg. Rodger bit defendant on the hand in an attempt to cause him to drop the knife, and defendant bit Rodger in the head. From the beginning of the assault, Rodger was yelling for his mother, and Benjamin, who heard the commotion from inside the apartment, called the police. When Ms. Rolon came down the stairs, defendant broke off the attack and ran out of the entrance door.

A police officer called by the defense testified that he filled out the initial complaint report in which Rodger stated that defendant pulled out a box cutter following a verbal dispute and stabbed him. The detective who arrested defendant testified that he noticed cuts on defendant's hands, and defendant's brother testified that, on the night of the stabbing, defendant came home with bleeding hands wrapped in a T–shirt. Medical records revealed that while being treated for his wounds at the hospital, defendant stated that he had been assaulted with a knife by an unknown person.

The trial court granted the defense request for a justification charge based, among other things, on defendant's palm-side injuries, which the jury might reasonably consider as defensive wounds. The court explained the justification defense and advised the jurors that they were to determine whether defendant had used, and had been entitled to use, physical or deadly physical force. The court further advised that to the extent they could distinguish among the multiple wounds Rodger allegedly sustained, they were required to “separately analyze the defense of justification with respect to each,” and could conclude that defendant had acted reasonably in inflicting all, some or none of them. The jurors were additionally instructed that “an element of each count” was that defendant acted without justification and if they found that the People “failed to prove beyond a reasonable doubt the defendant was not justified, then you must find the defendant not guilty of the crimes charged.” Finally, even if the justification defense were disproved, the jurors were still required to find that the People had established all the other elements of an offense before finding defendant guilty. In setting forth the elements of each of the charged crimes (namely, attempted murder in the second degree, attempted assault in the first degree, and assault in the second degree), the court included, as the last element of each, “[t]hat the defendant was not justified.”

In its explanation of the verdict sheet, the court gave the jurors the following instructions:

“You should consider the counts in the order listed on the verdict sheet, the attempted murder count first, as the verdict sheet indicates you must consider counts one and three. One is attempted murder in the second degree, and count three is assault in the second degree. And you are to consider each of them no matter what your verdict is on each. However, you should consider count two, which is attempted assault in the first degree, only if your verdict on count one, the attempted murder count, is not guilty, and the verdict sheet indicates that.”

On the verdict sheet, count one, attempted murder, was accompanied by an instruction that this count must be considered. Count two, attempted assault in the first degree, provided that the jurors were to “[c]onsider this count only if your verdict on count one is Not Guilty.” Count three, assault in the second degree, contained the direction that the “[j]ury must consider this count.” Neither the verdict sheet nor the court's verbal explanation of its contents mentioned justification.

Defendant's primary contention on appeal is that the court failed to instruct the jury that acquittal on the...