People v. FranklinPeople v. Franklin
Lead Opinion
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 27, 1978, convicting him of assault in the third degree (two counts) and endangering the welfare of a child (two counts), upon a jury verdict, and imposing sentence. Judgment reversed, on the law and as a matter of discrеtion in the interest of justice, indictment dismissed and the case is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. The charges in this case stem from an incident in which defendant, using a belt, struck Anthony and Andre Burke, the children of Edwina Burke, a womаn with whom defendant was living and by whom he had fathered a child. The blows struck by defendant landed on various parts of the boys’ bodies. Andre, who was five at the time of the incident, received bruises on his face, a swollen lip, and welts on his arms, trunk, buttocks and thighs. Anthony, who was then eight, received welts оn his face, ear, neck, arms, chest, buttocks and thighs. It appears from all the evidence that defendant and Mrs. Burke had agreed that defendant would share the responsibility for the supervision, care and discipline of the children. It further appears that at the time of thе incident the boys had been fighting, that Andre had complained to defendant that Anthony had hit
Notes
. Subdivision 6 referred to the necessаry restraint of the mentally retarded.
Dissenting Opinion
dissents and votes to affirm the judgment, with the following memorandum: The majority holds, in effect, that when the defense of justification, as defined in subdivision 1 of section 35.10 of the Penal Law is raised in a criminal matter, its validity should be measured solely according to defendant’s beliefs regarding the use of physical force in disciplining his children. As viewed by the majority, the focus of such a determination is not whether defendant “used reasonable force”, but whether he reasonably believed such force was necessary. The majority therefоre decides that the jury charge in the instant case was misleading. By commenting on the People’s contention that the issue herein concerned the reasonableness of the physical force applied by defendant in disciplining his children, Criminal Term is held to have improperly diverted the jury’s focus from defendant’s belief in the necessity of force, to the force itself. The majority thus implies that whether discipline was reasonably administered is irrelevant. The only relevant question is whether defendant, pursuant to his own attitudes and beliefs, reasonаbly concluded such discipline was necessary. I am firmly convinced that both questions are relevant to a determination of the validity of the justification defense under subdivision 1 of section 35.10 of the Penal Law. I am further convinced that the meaning and intent of the statute dictatе a fact-finding process that first resolves the issue of the reasonableness of the disciplinary force exercised as a prerequisite for determining the reasonableness of a defendant’s belief in the necessity of resorting to such force. Finally, I consider Criminal Tеrm’s jury charge to be entirely consistent with this interpretation of the statute. Subdivision 1 of section 35.10 allows “A parent, guardian or other person entrusted with the care and supervision of a person under the age of twenty-one or an incompetent person, and a teаcher * * * [to] use physical force, but not deadly physical force, upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.” Logically, a person’s belief in the necessity of his own action cannot be considered reasonable, unless, under the circumstances and conditions leading to and surrounding it, the action could itself be viewed as reasonable. Conversely, if the action were unreasonable, one could nоt form a reasonable belief that it was necessary. Thus, even though an individual’s beliefs are subjective in nature, their reasonableness can only be tested according to an objective standard. Otherwise, everything or nothing is reasonable, depending on the state of аn individual’s conscience. At common law, a parent, or one standing in loco parentis, had the right, and even the duty, to discipline his children. In order to exercise this right and fulfill this obligation, corporal punishment was permitted within reasonable limits (Matter of Carl,
. By the rules of statutory construction subdivision 1 of section 35.10 must be interpreted as restating the common law. For if it were interpreted as somehow changing the common law, there would have to be clear and unambiguous language in the statute expressing a legislative intent to that effect (Statutes, §§ 153, 301, subd b). Since a manifestation of such an intent cannot be found in subdivision 1 of section 35.10, the presumption is that no such change was intended (see Jones v City of Albany,