People v. Wesley

• Citation: 561 N.Y.S.2d 707,76 N.Y.2d 555,563 N.E.2d 21
• Parties: , 563 N.E.2d 21 The PEOPLE of the State of New York, Respondent, v. Albert WESLEY, Appellant.
• Decision Date: 23 October 1990
• Court: New York Court of Appeals

Page 707

561 N.Y.S.2d 707

76 N.Y.2d 555, 563 N.E.2d 21

The PEOPLE of the State of New York, Respondent, v. Albert WESLEY, Appellant.

Court of Appeals of New York.

Oct. 23, 1990.

[76 N.Y.2d 556] [563 N.E.2d 22]

Carolyn Connors Balowitz, Linda S. Reynolds and Barbara Davies Eberl, for appellant

Kevin M. Dillon, Dist. Atty. (Susan D. Nusbaum and John J. DeFranks, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

Defendant was convicted after a jury trial of second degree manslaughter (Penal Law § 125.15[1], second degree assault (Penal Law § 120.05[2], and fourth degree criminal possession of a weapon (Penal Law § 265.01[2]. His sole contention on appeal is that the court's jury charge on the defense of justification (Penal Law § 35.15) employed an improper standard for determining the reasonableness of defendant's belief that it was necessary to use deadly physical force. We agree with defendant that the trial court's instruction failed to satisfy fully the requirements of Penal Law § 35.15 as explained in People v. Goetz, 68 N.Y.2d 96, 112-115, 506 N.Y.S.2d 18, 497 N.E.2d 41. Section 35.15 requires an assessment of reasonableness which must be determined from the point of view of the particular defendant under the standard of a reasonable person in defendant's circumstances at the time of the incident. Accordingly, there should be a reversal and a new trial.

I

In an indictment dated November 8, 1985, defendant was charged with the second degree murder of Eric Stone, the second degree assault of Keith Robinson, and fourth degree criminal possession of a weapon. The trial testimony, viewed in a light most favorable to defendant (see, People v. Collice, 41 N.Y.2d 906, 394 N.Y.S.2d 615, 363 N.E.2d 340), revealed that defendant, a 19-year-old college student, was on the porch of a house in Buffalo with Diane Jackson, Jelean McMillan, and Arlene Woods. Woods, who had a knife in her possession, got into an argument with Jackson. The argument continued as Jackson and Woods walked away from each other. Suddenly, Woods doubled back after Jackson and threatened to stab her. Defendant managed to get the knife away from Woods and placed it in a paper bag.

At about that time, three male teen-agers arrived on the scene. Two of these youths--Eric Stone and Keith Robinson--began calling defendant "faggot" and Woods a lesbian. Despite defendant's pleas to be left alone, Stone, Robinson and others continued shouting epithets at defendant as he walked down the street. Stone and Robinson also threatened defendant, saying "We'll 'fuck' you up" and "We'll kick your ass".

Stone left the scene for a few minutes and returned carrying a stick (sometimes referred to as a pipe), 2 to 2 1/2 feet in length and 1 to 3 inches in diameter. After more argument, Stone struck defendant with the stick, and defendant stabbed him in the chest. Stone fell to the ground and dropped the stick. Robinson then picked up the stick and began chasing defendant out of the area where the stabbing had taken place. When Robinson returned, he had been stabbed in the hand. Stone died as a result of the stab wound. Defendant was arrested several hours later.

At the precharge conference, the Trial Judge declined to give the defense's proposed justification charge, stating that the proposed charge was not required under People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41, supra. The Judge told both attorneys that he would charge in accordance with Goetz, but was unable at that time to state the precise language. The following is that portion of the court's charge under section 35.15 which pertains to the requirement of reasonableness:

"You have heard the conflicting stories told by the witnesses as to what actually happened, and you must consider these stories under the rules of law as I have explained them to you. Having decided in your own minds that what truly occurred, you must then decide whether there was legal justification for the Defendant's alleged acts. In order to find justification for the Defendant's acts, you must find that he believed his conduct necessary to defend himself from what he reasonably believed to be an unprovoked physical assault against himself even if he was mistaken in his conclusion that the victim was about to assault him. As long as he reasonably believed that such assault was about to take place, he was justified in using physical force to repel such an assault. If from all of the testimony you have heard, you believe that the victim's conduct was provoked by the Defendant himself with an intent to cause a physical injury to the victim, or that the Defendant was the initial aggressor in the altercation, then such conduct was not legally justifiable to warrant a verdict of not guilty."

The defense exception stated, among other things, that the charge "did not direct the jury to place themselves, or a reasonable person in [defendant's] place, and the Goetz decision states * * * a reasonable person * * * is now the standard, but there still is that subjective element * * * and you're looking at it from [defendant's] point of view " (emphasis added). The jury convicted defendant of second degree manslaughter, second degree assault, and fourth degree criminal possession of a weapon. The Appellate Division affirmed, 155 A.D.2d 942, 547 N.Y.S.2d 761, and a Judge of this Court granted defendant leave to appeal.

II

In People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41, supra, we concluded that section 35.15 "retains an objective element" (People v. Goetz, supra, at 112, 506 N.Y.S.2d 18, 497 N.E.2d 41) for assessing the reasonableness of defendant's belief in the necessity for use of deadly force. But, in rejecting the argument that the standard of reasonableness should be purely subjective, we emphasized that the statute requires a determination of reasonableness that is both subjective and objective (id., at 113-115, 506 N.Y.S.2d 18, 497 N.E.2d 41). The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude (see, 1 CJI [N.Y.] PL 35.00, Introductory Comment, at 848-849).

To determine whether a defendant's conduct was justified under Penal Law § 35.15, a two-step inquiry is required. The jury must first determine whether defendant actually believed that deadly physical force was necessary (see, People v. Goetz, supra, at 115, 506 N.Y.S.2d 18, 497 N.E.2d 41)...