86 A.D.2d 557 | N.Y. App. Div. | 1982
Lead Opinion
Judgment, Supreme Court, New York County (Reilly, J.), rendered on November 3, 1979, convicting defendant, after a jury trial, of two counts of assault in the second degree and sentencing him to two concurrent indeterminate terms of five years, affirmed. On appeal defendant does not challenge the legal sufficiency of the proof of his assaults, which in the main came from the mouth of the victim, Whitfield Pratt. He testified that, after a verbal argument in the afternoon of September 24, 1978, defendant first slashed him with a razor and, after Pratt ordered him out of the apartment, stabbed him with a switchblade knife. An ambulance came for Pratt shortly after 5:00 p.m. Defendant denied any assault on Pratt, testifying that the only assault occurred when Pratt lunged at him with a dagger which cut him on the thigh after he had raised his arm to deflect the blow. Defendant testified that he then ran from the apartment. He went to a hospital at 7:30 that evening. He told the physician who treated him for a superficial laceration on his leg that he had been injured at 6:30. On summation, neither the prosecution nor the defense made any arguments touching upon justification, both having concentrated on the issue of witness credibility. Then, just before the court’s charge, defense counsel requested a charge on justification. The court refused because defendant had denied stabbing the victim. This refusal is defendant’s primary point on appeal. We agree with the dissent that defendant’s denial of the stabbing would not alone preclude him from a justification charge and that, for the purpose of the request to charge, the court was required to view the evidence in a light most favorable to defendant. Where, however, there is no evidence that would support justification, the court may refuse to charge it (People v Collice, 41 NY2d 906). We recognize, too, the general rule that a jury may credit selected portions of the prosecution’s or the defendant’s case to reach its verdict, given a “rational basis for sorting out proof” (People v Scarborough, 49 NY2d 364, 373). Most important here is the exception to the general rule, that is, that it “has never been applied to countenance selective dissection of the integrated testimony of a single witness as to whom credibility, or incredibility, could only be a constant factor” (People v Scarborough, supra, p 373). A justification charge would have been required here if the jury could have found from a reasonable view of the evidence that Pratt’s injuries were sustained in the course of defendant’s defending himself from an assault by Pratt (see Penal Law, § 35.15, subd 1). When requesting the charge, defendant’s trial counsel cited defendant’s testimony that he had swung his arm to resist a dagger assault by Pratt. This would not account for the wounds
Dissenting Opinion
dissents in a memorandum as follows: This is an appeal from a judgment rendered after a jury trial, convicting defendant of two counts of assault in the second degree and sentencing him to two concurrent indeterminate terms of five years. The principal issue is whether the trial court erred in refusing defendant’s request to submit to the jury the issue of justification. Giving the defendant the “ ‘most favorable view of the record’ ” (People v Steele, 26 NY2d 526, 529), as the law requires, there is disclosed a reasonable view of the evidence that would have supported a jury finding of justification if the issue had been submitted. Accordingly, the judgment of conviction should be reversed, and the case remanded for a new trial. The trial concerned an event that occurred on September 24, 1978. Some time before that date, the defendant came to live on a temporary basis with the complaining witness, Whitfield Pratt, and his common-law wife, under disputed circumstances not here relevent. The precise time of day at which the incident occurred is not clear. The testimony of both men on this question was vague and the best estimates of each appear extremely improbable in light of contradictory information provided by hospital records. As to the quarrel which, according to the complaining witness, resulted in the defendant stabbing him, the accounts given by both witnesses were in sharp disagreement as to virtually every detail, except that it in some way related to the complaining witness’ common-law wife, who was not present, and to a claim by the defendant to have given her $20. Pratt testified that a time came when he asked the defendant to leave. The defendant refused to do so without the return of the $20, and then slashed him on the right side of the chest with a razor knife. Pratt said that he went to the kitchen to get something to stop the bleeding and then returned to the living room._ The defendant produced a switchblade knife, stabbed him, and left. Pratt then went to a neighbor’s apartment where an ambulance was called, remained in the hospital one week, and then reported the incident. He denied that he was in possession of a knife at any time during the incident or