People v Nelson (Terrence)

[*1] People v Nelson (Terrence) 2012 NY Slip Op 51435(U) Decided on July 17, 2012 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2009-217 K CR.

The People of the State of New York, Respondent,

against

Terrence Nelson, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Michael Gerstein, J.), rendered December 18, 2008. The judgment convicted defendant, upon a jury verdict, of criminal possession of a weapon in the fourth degree, menacing in the third degree, and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.
Defendant was convicted, after a jury trial, of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [2]), menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 [1]). On appeal, defendant contends that the Criminal Court committed reversible error by refusing to provide the jury with a justification charge or with a charge pursuant to CJI2d(NY) Penal Law art 265, Intent to Use Unlawfully and Justification, with respect to the count of criminal possession of a weapon in the fourth degree.

When a court, after viewing the evidence in the light most favorable to a defendant, concludes that a reasonable view thereof supports a finding of justification, the court must, when requested, instruct the jury as to such defense (see People v Izzo, 7 Misc 3d 137[A], 2005 NY Slip Op 50791[U] [App Term, 9th & 10th Jud Dists 2005]; see also People v Watts, 57 NY2d 299 [1982]; People v Collice, 41 NY2d 906 [1977]). However, we agree with the Criminal Court that no reasonable view of the evidence in this case could have led the jury to conclude that defendant's use of a knife was subjectively necessary. Thus, the court's refusal to provide the jury with a justification charge was not error. [*2]

Furthermore, we find that the Criminal Court also properly refused to charge the jury with CJI2d(NY) Penal Law art 265, Intent to Use Unlawfully and Justification, with respect to the count of criminal possession of a weapon in the fourth degree. "Such a charge is appropriate only where the evidence indicates that the act of possession is of an innocent nature and there is no use of the weapon in a dangerous manner" (People v Britton, 27 AD3d 1014, 1015 [2006], citing People v Banks, 76 NY2d 799 [1990]; see also People v Hayes, 51 AD3d 688 [2008]; People v Caldarola, 45 AD3d 600 [2007]). The evidence here, when viewed in the light most favorable to defendant, does not suggest an innocent and innocuous use of the weapon. The way defendant waved the knife towards the complainant was indicative of its use in a manner "readily capable of causing death or other serious physical injury" (Penal Law § 10.00 [11]), "regardless of the degree of injury he actually intended or inflicted" (People v Steele, 19 AD3d 175, 175-176 [2005], citing People v Magliato, 68 NY2d 24, 29 [1986]). In any event, defendant's possession of the knife prior to the time that he waved it cannot be said to be of an innocent and lawful nature (see People v Pons, 68 NY2d 264, 267-268 [1986]).

Accordingly, the judgment of conviction is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 17, 2012