People v. Wagman

• Decision Date: 16 January 1984
• Citation: 99 A.D.2d 519,471 N.Y.S.2d 147
• Parties: The PEOPLE, etc., Respondent, v. Bradley WAGMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 147

471 N.Y.S.2d 147

99 A.D.2d 519

The PEOPLE, etc., Respondent, v.Bradley WAGMAN, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 16, 1984.

William E. Hellerstein, New York City(Susan E. Hofkin Salomon, New York City, of counsel), for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Lois M. Raff and Debra W. Petrover, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.

Before TITONE, J.P., and MANGANO, O'CONNOR and BROWN, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 27, 1981, convicting him of manslaughter in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence.

Judgment reversed, on the law and as a matter of discretion in the interest of justice, and new trial ordered on the present indictment solely with respect to the count of criminal possession of a weapon in the second degree, and indictment otherwise dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury (seePeople v. Beslanovics, 57 N.Y.2d 726, 454 N.Y.S.2d 976, 440 N.E.2d 1322).

Defendant's sole defense at trial was that of justification.Although he admitted shooting the decedent, there was conflicting testimony as to how the incident occurred.Defendant testified that the decedent and a group of decedent's friends attacked him, and that he feared for his life because of the group's violent reputation.Some of decedent's friends testified that the decedent had initially attacked defendant, but that defendant immediately drove away.They testified that defendant parked his car on a side street and, when the decedent was walking home along this street, defendant called to him and then shot him twice.The assistant medical examiner's testimony supported both versions of these events.

Section 35.15 (subd. 2) of the Penal Law provides that a person may use deadly physical force against another person when he reasonably believes that such person is using or about to use deadly physical force against him and he cannot with complete safety avoid it by retreating.When a defendant asserts a claim of justification, his state of mind is the crucial inquiry (People v. Miller, 39 N.Y.2d 543, 384 N.Y.S.2d 741, 349 N.E.2d 841;People v. Desmond, 93 A.D.2d 822, 460 N.Y.S.2d 619).The jury must consider the defendant's subjective belief as to the imminence and gravity of danger and whether this subjective belief was reasonable (People v. Miller, supra;People v. Desmond, supra ).

The trial court's enunciation of the justification defense herein was, at best, confusing.Although the subjective test was initially stated, the court abruptly switched to an "ordinary reasonable person" standard stating:

"You should place yourself in the shoes of the defendant and determine whether an ordinary reasonable person knowing the facts and circumstances and observing the acts and conduct of the decedent and certain members of the group as you found such facts and circumstances and conduct to be from the evidence, would you as an ordinary reasonable person be justified in reasonably believing that the victim or members of the group were using or about to use offensively deadly physical [sic ] against him, and would you be justified in reasonably believing that the defensive deadly physical force was necessary to defend yourself if you were in the shoes of the defendant.

"If by applying such tests you determine that an ordinary reasonable man would be justified in so reasonably believing, then you should find te [sic ]the defendant was justified in so reasonably believing".

The court erred in enunciating an "ordinary reasonable person" standard for the evaluation of defendant's actions, rather than having the jury consider what defendant himself thought (seePeople v. Desmond, supra ).Although defense counsel did not object to this portion of the charge, its potential for harm warrants reversal...