People v. Jenkins , 93 A.D.2d 868 ( 1983 )

— Appeal by defendant from a judgment of the Supreme Court, Kings County (Kooper, J.), rendered April 22, 1980, convicting him of murder in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. Defendant was indicted and charged with the murder of one Alfred Schuler. The evidence adduced at the trial by the prosecution showed that defendant stabbed the victim with a knife. Defendant’s testimony at the trial regarding the homicide was that the victim attacked him with the knife by hitting him with the back of the handle under his eye. A struggle ensued during which he was in a daze from the blow. Defendant tried to fend off the victim’s thrusts with the knife. At some point the two disengaged and defendant fled. On this appeal defendant argues, inter alia, that the trial court’s failure to charge the jury as to the defense of justification was error. The trial court, ruling that justification would not be charged, stated “his [defendant’s] story is he didn’t stab him at all. If he didn’t stab him at all, he couldn’t have stabbed him in self defense * * * [t]hen there is no charge of justification”. Defendant’s position at the trial to the effect that he did not stab the victim does not bar submission of the justification defense (see People u Steele, 26 NY2d 526; People v Burnell, 84 AD2d 566; People v Davis, 74 AD2d 607). Where, however, there is no evidence to support justification, the court may refuse to charge it (People v Collice, 41 NY2d 906; People v Frazier, 86 AD2d 557). For the purposes of the charge, a defendant is entitled to a view of the trial testimony in a light most favorable to him (People v Steele, supra; People v Burnell, supra). There was sufficient evidence presented to the jury by defendant’s own testimony, as well as the testimony of some of the prosecution’s witnesses, which partially corroborated defendant’s version of the incident, to raise the defense of justification {see People v Frazier, 86 AD2d 557, 558, supra [Sandler, J., dissenting]). According to defendant’s version of the incident the victim was the aggressor, hitting him with the handle of the knife. A struggle ensued in which defendant attempted to protect himself from Schuler. In People v Collice {supra, p 907) the justification defense was held not available because “[e]ven if defendant had actually believed that he had been threatened with the imminent use of deadly physical force, and there is no evidence that he had so believed, his reactions were not those of a reasonable man acting in self-defense”. Contrariwise, in the instant case the jury, after considering and accepting portions of the defense and prosecution evidence, which it is permitted to do {People v Scarborough, 49 NY2d 364, 372), reasonably could have concluded that Schuler, the aggressor, was killed during the struggle and not by an intentional act on the part of defendant. Sufficient motive for defendant’s contention that Schuler was the aggressor is found in the undisputed evidence that defendant formerly lived with Elease Fields, and that Schuler was her present boyfriend. Defendant testified that while he was attending a party at Fields’ apartment he and Fields were in her bedroom alone when Schuler came into the room and demanded to know what was going on. According to defendant, Schuler didn’t believe Fields when she told him they were just discussing defendant’s possible subleasing of Fields’ apartment. Part of defendant’s version of the story was substantially corroborated by Dorina Bryant, a friend of Fields, who attended the party. She testified that when she met defendant as he was leaving the party his lip was swollen and his eye had a mark under it. She did not see these marks on defendant when she was dancing with him earlier in the evening. Finally, Dr. Milton Wald, who testified after reading Schuler’s autopsy report, stated that Schuler was “definitely drunk”. Wald could not determine from the autopsy report where the person was who inflicted the wounds. He also could not state whether the superficial slicing wounds or the two deeper wounds were inflicted first. Notably, Wald did state that it would not take a great deal of strength to inflict the wound that caused Schuler’s death, thus further supporting the inference that it was not caused by an intentional thrust by defendant but perhaps during the struggle. Indeed Wald testified that the two deep wounds found on Schuler’s body could have been either intentionally or accidentally inflicted. In light of the above evidence, if the jury had been apprised of the justification defense, it might have concluded that defendant’s actions were either completely justified or, at least, that they negated the intent element of the murder count (see Penal Law, § 125.25, subd 1) and instead found him guilty of manslaughter in the second degree (see Penal Law, § 125.15, subd 1; People v Rivera, 74 AD2d 589). As such, it was error for the court not to charge justification. This is so despite the testimony on the record that defendant specifically declined the charge of justification. The record of the pretrial proceedings and the trial indicates strong animosity between defendant and his court-appointed counsel. Indeed on this appeal he raises additional arguments concerning ineffective assistance of counsel and improper revocation of his pro se status. While we need not pass upon those issues in light of the holding herein, those problems provide sufficient cause for finding that defense counsel’s unequivocal statement that defendant did not request the justification charge should not be deemed a waiver by defendant of his right to the charge. Moreover, the record demonstrates that defendant did expect justification to be charged. When defense counsel explained to the court defendant’s request regarding the charge on manslaughter in the second degree to the effect that if the jury finds that the defendant “was so intoxicated that he could not consciously disregard, because he could not consciously appreciate the danger, that if the man was stabbed under those circumstances * * * that the jury should find him * * * not guilty”, defendant interjected “I said justified”. In light of this outburst, the court at least should have told defense counsel to confer with defendant concerning his statement that he was justified. Furthermore, defense counsel’s determination not to request the charge was made in response to the trial court’s erroneous statement that the charge was not available under the circumstances of this case. His consultation with defendant before declining the charge may very well have consisted of erroneously advising defendant that the charge was not available. We therefore review the charge error as a matter of discretion in the interest of justice (People v Flores, 75 AD2d 649; People v Davis, 74 AD2d 607, supra). Titone, J. P., Mangano and Gibbons, JJ., concur.