People v. Ruiz ( 1983 )

— Appeal, by defendant, from a judgment of the Supreme Court, Kings County (Kay, J.), rendered June 22, 1981, convicting him of robbery in the second degree, criminal possession of stolen property in the third degree and assault in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by vacating the conviction for assault in the second degree, and the sentence imposed thereon. As so modified, judgment affirmed and new trial ordered as to said charge. It was error for the trial court to refuse to charge the jury on the defense of justification. In determining whether a justification defense, or any defense for that matter, is available to a defendant the evidence must be viewed in the light most favorable to the accused. If the evidence viewed in such light supports the defense, the court must, when requested, instruct the jury as to the defense. Failure to do so is reversible error (see People v Watts, 57 NY2d 299; People v Huntley, 87 AD2d 488). As this court has previously stated: “Where the evidence adduced at the trial permits the inference that the defendant was the victim of an unprovoked police assault or of the use of excessive physical force to effectuate an arrest, he is entitled to a charge that reasonable acts of self-defense are justifiable” (People v Sanza, 37 AD2d 632; see People v Collesides, 79 AD2d 1063; People v Carneglia, 63 AD2d 734). In this' instance, defendant testified that after running from the scene of a robbery, in which he claimed he did not participate, he was stopped by two police officers who struck him with nightsticks knocking him to the ground. The officer who had been chasing him then arrived and started to hit defendant with the butt of his gun. It was at this time, and not before, that defendant hit the officer in the eye. The officer conceded that he struck defendant’s head six or seven times with his gun. Under this view of the evidence, defendant was merely protecting himself from an unjustified beating. Hence, a justification charge was required (see People v Sanza, supra). We have reviewed defendant’s other contentions and find that they lack merit. Titone, J. P., Lazer and Boyers, JJ., concur.