People v Izzo (Pasquale)

[*1] People v Izzo (Pasquale) 2005 NYSlipOp 50791(U) Decided on May 24, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 24, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: McCABE, P.J., COVELLO and TANENBAUM, JJ.
2004-260 N CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

PASQUALE IZZO, Appellant.

Appeal by defendant from a judgment of the District Court, Nassau County (M. Fiechter, J.), rendered January 21, 2004, convicting him of assault in the third degree (Penal Law § 120.00 [2]) and imposing sentence.

Judgment of conviction unanimously reversed on the law and matter remanded to the court below for a new trial.

Defendant was convicted of assault in the third degree (Penal Law § 120.00 [2]) based upon an altercation with the complainant. Following the trial, the court denied defendant's request for a charge to the jury on the defense of justification. Defendant contends that the denial of said request constituted reversible error.

When a court, after viewing the evidence in the light most favorable to the defendant, concludes that a reasonable view thereof supports a finding of justification, the court must, when requested, instruct the jury as to said defense (see People v Watts, 57 NY2d 299 [1982]; People v Collice, 41 NY2d 906 [1977]). Moreover, once the evidence supports such a finding, the burden is on the People to negate said defense beyond a reasonable doubt (Penal Law §§ 35.00, 25.00 [1]; see also People v McManus, 67 NY2d 541, 546-547 [1986]).

The testimony adduced upon the trial established that the complainant was initially cleaning a swimming pool. Defendant, a landscaper, approached the complainant and asked him to move his hose, pump and electrical equipment so that defendant could mow the lawn. [*2]Complainant refused. As defendant attempted to move some of complainant's equipment, the complainant, a younger and larger person, ran toward defendant and, while hurling epithets at defendant, shoved him to the ground approximately three times, causing defendant to fear for his physical well being. Defendant took a "weed whacker," which was running, and hit complainant on the side of his head, on his ear and shoulder. A struggle for the "weed whacker" ensued. During the struggle, defendant "revved" the engine causing the plastic string used to trim grass to spin at a fast rate of speed and cut complainant.

The foregoing testimony, viewed in the light most favorable to defendant, supported a finding of justification and, as a result, the court's refusal to instruct the jury as to said defense constituted reversible error (see People v Watts, 57 NY2d at 301 supra).
Decision Date: May 24, 2005