People v. Velez, 14545, 4461/10

CourtNew York Supreme Court Appellate Division
Writing for the CourtTOM, J.P.
Citation2015 N.Y. Slip Op. 05619,13 N.Y.S.3d 354,131 A.D.3d 129
Decision Date30 June 2015
Docket Number14545, 4461/10
PartiesThe 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.


13 N.Y.S.3d 355

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.

131 A.D.3d 130

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,

131 A.D.3d 131

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

13 N.Y.S.3d 356

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

131 A.D.3d 132

conclude that defendant had acted reasonably in inflicting all, some or none of them. The jurors were additionally instructed...

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30 practice notes
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...2005) (rejecting such a rule), aff'd on other grounds 7 N.Y.3d 874, 826 N.Y.S.2d 174, 859 N.E.2d 913 (2006).6 Compare People v. Velez , 131 A.D.3d 129, 133–34, 13 N.Y.S.3d 354 (1st Dep't 2015) (reversing a conviction in the interest of justice based on the trial court's failure to give a st......
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...A.D.3d 1195, 1196-97 (4th Dep't 2005) (rejecting such a rule), aff'd on other grounds 7 N.Y.3d 874 (2006). [6] Compare People v. Velez, 131 A.D.3d 129, 133-34 (1st Dep't 2015) (reversing a conviction in the interest of justice based on the trial court's failure to give a stop-deliberation i......
  • People v. Daggett
    • United States
    • New York Supreme Court Appellate Division
    • May 5, 2017
    ...an instruction or object to the instruction as given and thus failed to preserve that contention for our review (see People v. Velez, 131 A.D.3d 129, 133, 13 N.Y.S.3d 354 ; People v. Palmer, 34 A.D.3d 701, 703–704, 826 N.Y.S.2d 77, lv. denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 ;......
  • People v. Daniels, 109319
    • United States
    • New York Supreme Court Appellate Division
    • July 3, 2019
    ...jurisdiction to take corrective action and reverse the judgment of conviction 104 N.Y.S.3d 396 (see CPL 470.15[6][a] ; People v. Velez , 131 A.D.3d 129, 133, 13 N.Y.S.3d 354 [2015] ; People v. Feuer , 11 A.D.3d 633, 635, 782 N.Y.S.2d 858 [2004] ). "[I]n a case involving a claim of self-defe......
  • Request a trial to view additional results
30 cases
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...2005) (rejecting such a rule), aff'd on other grounds 7 N.Y.3d 874, 826 N.Y.S.2d 174, 859 N.E.2d 913 (2006).6 Compare People v. Velez , 131 A.D.3d 129, 133–34, 13 N.Y.S.3d 354 (1st Dep't 2015) (reversing a conviction in the interest of justice based on the trial court's failure to give a st......
  • Simpson v. Bell, 18-cv-1378 (ERK)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 27, 2021
    ...A.D.3d 1195, 1196-97 (4th Dep't 2005) (rejecting such a rule), aff'd on other grounds 7 N.Y.3d 874 (2006). [6] Compare People v. Velez, 131 A.D.3d 129, 133-34 (1st Dep't 2015) (reversing a conviction in the interest of justice based on the trial court's failure to give a stop-deliberation i......
  • People v. Daggett
    • United States
    • New York Supreme Court Appellate Division
    • May 5, 2017
    ...an instruction or object to the instruction as given and thus failed to preserve that contention for our review (see People v. Velez, 131 A.D.3d 129, 133, 13 N.Y.S.3d 354 ; People v. Palmer, 34 A.D.3d 701, 703–704, 826 N.Y.S.2d 77, lv. denied 8 N.Y.3d 848, 830 N.Y.S.2d 707, 862 N.E.2d 799 ;......
  • People v. Daniels, 109319
    • United States
    • New York Supreme Court Appellate Division
    • July 3, 2019
    ...jurisdiction to take corrective action and reverse the judgment of conviction 104 N.Y.S.3d 396 (see CPL 470.15[6][a] ; People v. Velez , 131 A.D.3d 129, 133, 13 N.Y.S.3d 354 [2015] ; People v. Feuer , 11 A.D.3d 633, 635, 782 N.Y.S.2d 858 [2004] ). "[I]n a case involving a claim of self-defe......
  • Request a trial to view additional results

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