Wednesday, May 5, 2021

The Diaper Bag And The Hatchet

A public censure has been imposed by the New York Appellate Division for the Second Judicial Department for a second degree menacing conviction.

The same court had affirmed the conviction

Defendant's contention on appeal that he was entitled to a justification charge under Penal Law §§ 35.25 and 35.15 (2) as to the menacing count of which he was convicted is unpreserved for appellate review (see CPL 470.05 [2]). In any event, viewing the evidence in a light most favorable to defendant, there was no reasonable view of the evidence supporting the elements of a justification defense. Defendant testified that, while driving his vehicle in Long Beach, as he was speeding up to drive around a car that had turned in front of him and was about to hit his vehicle, he saw the complainant and his daughter crossing the street just ahead. The complainant pushed his daughter back as defendant swerved out of the way, and the complainant swung the diaper bag he was carrying like a baseball bat and hit defendant's vehicle's rear window with it. Defendant traveled about 50 feet down the road and stopped his vehicle. Defendant took a quick look, saw damage to his window, grabbed a sheathed hatchet from his tools, exited his vehicle, took seven steps toward the complainant, held up the still-sheathed hatchet, and said, "Come on. If you want a piece of me, come get it." Under the circumstances presented, no reasonable view of the evidence could support the conclusion that defendant committed the act of menacing in the second degree, but did so under circumstances warranting a justification charge under either Penal Law § 35.15 (2) or § 35.25 (see People v Richardson, 115 AD3d 617, 618 [2014]; People v Oakley, 66 Misc 3d 142[A], 2020 NY Slip Op 50160[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2020]).

(Mike Frisch)

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