People v Hurley (Dennis)
Annotate this CaseDecided on June 29, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., MOLIA and NICOLAI, JJ
2008-721 S CR.
The People of the State of New York, Respondent,
against
Dennis Hurley, Appellant.
Appeal from a judgment of the District Court of Suffolk County, First District (Dennis M.
Cohen, J.), rendered April 14, 2008. The judgment convicted defendant, upon a jury verdict, of
assault in the third degree.
Judgment of conviction reversed, on the law, and matter remitted to the District Court for a new trial.
Defendant was convicted, after a jury trial, of assault in the third degree (Penal Law § 120.00 [1]), arising out of an incident which occurred on his commercial fishing boat. On appeal, defendant argues, inter alia, that the trial court committed reversible error by refusing to provide the jury with a justification charge pursuant to Penal Law § 35.20 (3). In our opinion, this error warrants a new trial.
It is well settled that "[w]hen evidence at trial viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury as to the defense, and must when so requested. A failure to charge the jury constitutes reversible error" (People v Watts, 57 NY2d 299, 301 [1983]; see also People v Petty, 7 NY3d 277, 284 [2006]; People v Padgett, 60 NY2d 142, 144-145 [1983]). When the evidence supports a finding that the defendant was justified in using deadly physical force to resist the imminent use of deadly force, the court upon request, must charge the justification defense set forth in Penal Law § 35.15 (2), and where the defendant is in possession of an "occupied building" and was justified in preventing or terminating the commission, or attempted commission, of a burglary in such "building," the court, upon request, must instruct the jury as to the justification defense set forth in Penal Law § 35.20 (3). Where both situations exist, the court must charge both theories of justification (see e.g. People v Rosario, 173 Misc 2d 641, 643 [Sup Ct, Bronx County 1997]; see also People v Flores, 75 AD2d 649 [1980]; People v Wang, 164 Misc 2d 707, 710 [Sup Ct, NY [*2]County 1995]). The distinctions between these two theories of justification are critical, since the defendant may use deadly physical force to prevent or terminate the commission, or attempted commission, of a burglary of an occupied building even though no deadly physical force was threatened or used (see Penal Law § 35.20), and even though the defendant could have retreated (cf. Penal Law § 35.15 [2]) or was the initial aggressor (cf. Penal Law § 35.15 [1]).
The record, viewed in the light most favorable to defendant (see People v Watts, 57 NY2d at 301), establishes the following facts. On the morning of October 17, 2006, defendant and his deckhand were on defendant's commercial fishing boat clamming in the Long Island Sound. Two other boats were also clamming in the area; one was occupied by the complainant and the other was occupied by two witnesses. At some point, defendant moved his boat past the complainant's boat in order to clam in a different area, in which the complainant had also clammed. The complainant responded by driving his boat towards defendant, yelling that defendant was in his area and to "get the fuck out of here." Defendant testified the complainant then backed his boat into defendant's boat, and defendant responded by hitting the rake on the back of the complainant's boat with a baseball bat. The complainant, then enraged, threatened to kill defendant, jumped onto his boat with a raised fist, and attempted to hit defendant. However, before the complainant could hit him, defendant hit the complainant with the bat. The defense witnesses testified that defendant did not invite the complainant onto defendant's boat. Defendant testified that he never challenged the complainant to come onto his boat, and when the complainant jumped onto his boat he thought that the complainant was going to hurt him and was afraid that the complainant would throw him overboard since he could not swim. After getting hit with the bat, the complainant lunged at defendant again, and defendant hit the complainant with the bat a second time. The complainant again lunged at defendant, and defendant hit him with the bat a third time, after which the complainant stopped lunging at defendant and defendant stopped hitting the complainant. When the third boat pulled up, the complainant got onto that boat and was brought back to his own boat which had drifted away. The complainant then drove his boat to a nearby coast guard station. Defendant also drove to the station and was subsequently charged with assault in the third degree.
The People's version of the events is somewhat different. According to the complainant, although defendant moved his boat into an area in which the complainant was clamming, the complainant did not hit defendant's boat with his boat. The complainant testified that he did not threaten defendant; rather, defendant challenged him to come onto his boat. The People's witnesses testified that the complainant did not have a raised fist when he attempted to enter defendant's boat, and that defendant hit the complainant with the bat before the complainant was able to get both feet onto defendant's boat. After the complainant was hit with the bat, he fell onto the floor of defendant's boat and defendant kept hitting him with the bat as he lay on the floor. It was only after the third boat pulled up, and defendant was told that 911 was being called, that defendant stopped hitting the complainant. The complainant then got onto the other boat, and was taken to his own boat, which had drifted away, and drove to the coast guard station.
The evidence adduced at trial, when viewed in the light most favorable to defendant (see People v Watts, 57 NY2d at 301), supports the conclusion that the District Court erred in denying defendant's request for a justification charge pursuant to Penal Law § 35.20 (3). Contrary to the [*3]determination of the District Court, the record clearly included the issue of burglary. A "person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with the intent to commit a crime therein" (Penal Law § 140.20). Pursuant to Penal Law § 140.00 (2), a "building" is defined to include a "watercraft . . . used by persons for carrying on business therein" (see also Penal Law § 35.20 [4] [a]). Defendant's version of the events demonstrates his reasonable belief that deadly physical force was necessary to prevent or terminate the commission, or attempted commission, of a burglary of an "occupied building" (see Penal Law § 35.20 [3]), since it was alleged that the complainant had attempted to enter defendant's occupied commercial fishing boat, i.e. a watercraft, without permission, to commit a crime therein, to wit, to assault defendant (see People v Deis, 97 NY2d 717, 719-720 [2002]; People v Padgett, 60 NY2d at 144-145). Consequently, the trial court should have provided the jury with a justification charge pursuant to Penal Law § 35.20 (3), and committed reversible error in failing to do so.
Accordingly, the judgment of conviction is reversed and a new trial is ordered.
Rudolph, P.J., Molia and Nicolai, JJ., concur.
Decision Date: June 29, 2009
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