People v. Wah, 8503

CourtNew York Supreme Court Appellate Division
Citation171 A.D.3d 574,99 N.Y.S.3d 19
Docket Number8503,Ind. 1083/12
Parties The PEOPLE of the State of New York, Respondent, v. John Hop WAH, Defendant–Appellant.
Decision Date23 April 2019

171 A.D.3d 574
99 N.Y.S.3d 19

The PEOPLE of the State of New York, Respondent,
v.
John Hop WAH, Defendant–Appellant.

8503
Ind. 1083/12

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

ENTERED: APRIL 23, 2019


99 N.Y.S.3d 20

Justine M. Luongo, The Legal Aid Society, New York (Tomoeh Murakami Tse of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York (Patricia Curran of counsel), for respondent.

Sweeny, J.P., Manzanet–Daniels, Webber, Oing, Singh, JJ.

171 A.D.3d 574

Judgment, Supreme Court, New York County (Bruce Allen, J.), rendered July 17, 2015, convicting defendant, after a jury trial, of assault in the second degree, and sentencing him to a term of three years, reversed, on the law, and the matter remanded for a new trial.

In People v. Velez , 131 A.D.3d 129, 13 N.Y.S.3d 354 (1st Dept. 2015), we held that, where justification is a central issue at trial, the court's instructions, as a whole, must convey that acquittal of a greater charge precludes consideration of lesser offenses that are based on the same conduct. We have consistently reversed convictions where the court's jury charge failed to comply with Velez , even where the claim was unpreserved (see e.g. People v. Breckenridge , 162 A.D.3d 425, 79 N.Y.S.3d 122 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1169, 97 N.Y.S.3d 628, 121 N.E.3d 255 [2018] ; People v. Marcucci , 158 A.D.3d 434, 67 N.Y.S.3d 818 [1st Dept. 2018], lv dismissed 31 N.Y.3d 1015, 78 N.Y.S.3d 285, 102 N.E.3d 1066 [2018] ; People v. Valentin , 154 A.D.3d 474, 61 N.Y.S.3d 479 [1st Dept. 2017] ;

99 N.Y.S.3d 21

People v. Santiago , 155 A.D.3d 506, 65 N.Y.S.3d 35 [1st Dept. 2017], lv dismissed 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ; People v. Kareem , 148 A.D.3d 550, 48 N.Y.S.3d 897 [1st Dept. 2017] ; lv dismissed 29 N.Y.3d 1033, 62 N.Y.S.3d 302, 84 N.E.3d 974 [2017] ; People v. Delin , 145 A.D.3d 566, 43 N.Y.S.3d 47 [1st Dept. 2016], lv dismissed 29 N.Y.3d 996, 57 N.Y.S.3d 718, 80 N.E.3d 411 [2017] ).

171 A.D.3d 575

Here, reversal is warranted despite the lack of preservation, because, contrary to our dissenting colleague's contention, the court's charge, as a whole, failed to properly instruct the jury that if it found defendant not guilty of first-degree assault based on a finding of justification, the jury must not consider the lesser second-degree assault counts arising from defendant's use of force. The dissent posits that the instruction here is meaningfully different from Velez in that the court "made it clear that a finding of not guilty on the basis of justification of the greater charge of assault in the first degree necessitated an acquittal on all counts." However, we have already considered and rejected the specific argument that it is proper or meaningfully different from Velez where a court employs the same language that the jury "must find the defendant not guilty on all counts " if it finds justification on the greater charge (emphasis added). This language is not sufficient to convey to the jury the "stop deliberations" principle (see Velez , 131 A.D.3d at 133, 13 N.Y.S.3d 354 ).

We acknowledge that the instant trial was conducted in January 2014, before Velez was decided, and that the CJI and model verdict sheet were not revised until January 2018 to reflect the Velez line of cases. Reversal is warranted nonetheless (see People v. Feuer , 11 A.D.3d 633, 634, 782 N.Y.S.2d 858 [2d Dept. 2004] ). The court here included as an element of each offense that defendant was not justified, which may have led the jurors to conclude that deliberation on each crime required reconsideration of the justification defense, even if they had already acquitted defendant of the top count based on justification. Additionally, the verdict sheet directed that each charge be considered in the alternative and failed to mention justification (see People v. Colasuonno , 135 A.D.3d 418, 420, 23 N.Y.S.3d 179 [1st Dept. 2016] ). In light of this improper charge, it is impossible to discern whether acquittal of the top count was based on the jurors' finding of justification so as to mandate acquittal on the two lesser counts.

Moreover, we reject our dissenting colleague's contention that the error was harmless. The facts, as set forth at length in the dissent, do not demonstrate that there was "overwhelming evidence disproving the justification defense and no reasonable possibility that the verdict would have been different had the charge been correctly given" ( People v. Breckenridge , 162 A.D.3d at 425–426, 79 N.Y.S.3d 122, quoting People v. Petty , 7 N.Y.3d 277, 286, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006] ). The credibility of the parties was a key component of this trial. The jury may very well have concluded that defendant's first-degree assault (with a dangerous instrument) was justified, in light of defendant's testimony that he acted in self-defense

171 A.D.3d 576

after the complainant punched him first and ripped his ear lobe, and acquitted him of the top charge, but convicted him of the lesser assault charge for some other reason.

Proper instruction, that deliberations must stop once justification is found on the top count, would prevent such a verdict ( People v. Velez , 131 A.D.3d at 133, 13 N.Y.S.3d 354 ). Thus, the possibility remains that the verdict would have been different had the charge been correctly

99 N.Y.S.3d 22

given, particularly since the evidence against defendant disproving justification was not overwhelming.

We have considered and rejected the People's arguments for affirmance.

In light of this determination, we find it unnecessary to reach defendant's remaining contentions, except that we find that the verdict is supported by legally sufficient evidence and is not against the weight of the evidence.

All concur except Webber, J. who dissents in part in a memorandum as follows:

WEBBER, J. (dissenting, in part)

I disagree that the court's charge to the jury on justification was erroneous and that a new trial is mandated. Accordingly, I would affirm the conviction in all respects.

The 63–year–old complainant, Samuel Walker, testified that he moved to the Bellevue Shelter in midtown Manhattan in July 2011. From around November 2011 until December 16, 2011, Walker shared a room at the shelter with defendant and two other men. During this period, Walker had at least two altercations with defendant, including one in which defendant attempted to take Walker's DVD player.

On the evening of December 16, 2011, when Walker returned to his room, he turned on the light and began to change his clothes. Defendant, who was in his bed, told Walker that he "can't turn the light on," and Walker responded that he had to change his clothes. Defendant got up from his bed, went over to Walker's bed, and reached for Walker's DVD player. Walker told defendant he could not have the DVD player. Walker grabbed it and bent down to put it in his locker. According to Walker, defendant then punched him on the left side of his jaw, causing him to bleed from his mouth and nose. Walker fell to the floor and was unconscious for some time. While he was on the floor, defendant hit him several times in the head, ribs, and back, with a steel-toed construction boot, which felt like a hammer. Walker tried to get up, but he was too dizzy.

Walker testified that his jaw was broken and that it was wired for a period of time after he had surgery on it. He stated

171 A.D.3d 577

that he still had numbness in his jaw and was limited to eating only soft foods. He also had to take painkillers in order to sleep at night and aspirin for pain during the day, and he still had pain in his back and...

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6 practice notes
  • People v. Daniels, 109319
    • United States
    • New York Supreme Court Appellate Division
    • July 3, 2019
    ...People v. Castro , 131 A.D.2d 771, 772–773, 516 N.Y.S.2d 966 [1987] ). Such failure constitutes reversible error (see People v. Hop Wah , 171 A.D.3d 574, 575, 99 N.Y.S.3d 19 [2019] ; People v. Braithwaite , 153 A.D.3d at 930, 60 N.Y.S.3d 403 ; People v. Ross , 2 A.D.3d 465, 466, 767 N.Y.S.2......
  • People v. Herrera, Appeal No. 12929
    • United States
    • New York Supreme Court Appellate Division
    • February 23, 2021
    ...the judgment, in the interest of justice, and remanded for a new trial ( id. at 133, 13 N.Y.S.3d 354 ; see also People v. Hop Wah, 171 A.D.3d 574, 99 N.Y.S.3d 19 [1st Dept. 2019] ; People v. Breckenridge, 162 A.D.3d 425, 79 N.Y.S.3d 122 [1st Dept. 2018], appeal dismissed 32 N.Y.3d 1072, 88 ......
  • People v. Macon, 11765
    • United States
    • New York Supreme Court Appellate Division
    • August 13, 2020
    ...no objections to jury instructions that failed to comply with Velez , even though the claim was unpreserved ( People v. Hop Wah, 171 A.D.3d 574, 99 N.Y.S.3d 19 [2019] ). In People v. Davis, 176 A.D.3d 634, 109 N.Y.S.3d 222 [2019], lv denied 34 N.Y.3d 1157, 120 N.Y.S.3d 233, 142 N.E.3d 1135 ......
  • People v. Sidibe, 2021-04281
    • United States
    • United States State Supreme Court (New York)
    • July 8, 2021
    ...to convey the "stop deliberations" principle discussed in People v Velez (131 A.D.3d 129 [1st Dept 2015]; see People v Hop Wah, 171 A.D.3d 574 [1st Dept 2019]). However, our review of the record persuades us that there is no reasonable possibility that the jury acquitted defendant of attemp......
  • Request a trial to view additional results
6 cases
  • People v. Daniels, 109319
    • United States
    • New York Supreme Court Appellate Division
    • July 3, 2019
    ...People v. Castro , 131 A.D.2d 771, 772–773, 516 N.Y.S.2d 966 [1987] ). Such failure constitutes reversible error (see People v. Hop Wah , 171 A.D.3d 574, 575, 99 N.Y.S.3d 19 [2019] ; People v. Braithwaite , 153 A.D.3d at 930, 60 N.Y.S.3d 403 ; People v. Ross , 2 A.D.3d 465, 466, 767 N.Y.S.2......
  • People v. Herrera, Appeal No. 12929
    • United States
    • New York Supreme Court Appellate Division
    • February 23, 2021
    ...the judgment, in the interest of justice, and remanded for a new trial ( id. at 133, 13 N.Y.S.3d 354 ; see also People v. Hop Wah, 171 A.D.3d 574, 99 N.Y.S.3d 19 [1st Dept. 2019] ; People v. Breckenridge, 162 A.D.3d 425, 79 N.Y.S.3d 122 [1st Dept. 2018], appeal dismissed 32 N.Y.3d 1072, 88 ......
  • People v. Macon, 11765
    • United States
    • New York Supreme Court Appellate Division
    • August 13, 2020
    ...no objections to jury instructions that failed to comply with Velez , even though the claim was unpreserved ( People v. Hop Wah, 171 A.D.3d 574, 99 N.Y.S.3d 19 [2019] ). In People v. Davis, 176 A.D.3d 634, 109 N.Y.S.3d 222 [2019], lv denied 34 N.Y.3d 1157, 120 N.Y.S.3d 233, 142 N.E.3d 1135 ......
  • People v. Sidibe, 2021-04281
    • United States
    • United States State Supreme Court (New York)
    • July 8, 2021
    ...to convey the "stop deliberations" principle discussed in People v Velez (131 A.D.3d 129 [1st Dept 2015]; see People v Hop Wah, 171 A.D.3d 574 [1st Dept 2019]). However, our review of the record persuades us that there is no reasonable possibility that the jury acquitted defendant of attemp......
  • Request a trial to view additional results

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