Issue before the Court: Does the use of a dangerous instrument require a justification instruction on deadly physical force, not ordinary force?

 

Held: A conviction for assault with a dangerous instrument necessarily determines that the defendant employed deadly, not ordinary, force.  Thus a justification charge may only be given if a reasonable view of the evidence supports the deadly force justification charge.

 

Discussion: Both defendants were convicted of Assault ^2 by means of a dangerous instrument (a belt in Vega and a glass in Rkein), and both requested a justification instruction.  Under PL 35.15, a defendant is entitled to this instruction as long as a reasonable view of the evidence supports the theory that the defendant reasonably believed physical force was necessary to avert the imminent use of force against himself or someone else.  Where a defendant has used deadly physical force, however, he must have reasonably believed that the other person was using or was about to use deadly physical force as well.

 

Defense counsel argued in Vega that the trial court’s instruction that if the jury found Mr. Vega guilty of assault with a dangerous instrument, it must consider only whether he was justified in using deadly force, not ordinary force, precluded the jury from deciding the factual question of whether Mr. Vega had used ordinary or deadly force.  Further, the charge had improperly conflated the element of a dangerous instrument with deadly force and the justification defense, even though People v. McManus, 67 N.Y.2d 541 (1986), held that the defense should be broadly available.

 

Rejecting these arguments in both Rkein and Vega, the Court of Appeals held that because the jury’s conviction of assault 2 by means of a dangerous instrument “necessarily” required a finding that the defendant had used deadly force, not just ordinary force, the trial court was correct in applying the standard for deadly force justification.

 

CAL Observes: Misconstruing defendant’s point about the differing standards for use of a dangerous instrument and deadly force, the court in Vega acknowledged the possibility that in a “rare case” a defendant might be guilty of a crime involving the use of a dangerous instrument yet be entitled to the ordinary force instruction.  In this hypothetical the defendant would merely attempt or threaten to use an item as a dangerous instrument, and then not use it in that matter.  Judge Garcia rejected this possibility in his concurrence, pointing out that a conviction for Assault 2 requires a finding that a physical injury was caused with the dangerous instrument, not merely that the defendant attempted or threatened to do so.

 

The defense in Vega also presented an argument that the burglary charge was legally insufficient where the victim’s bedroom inside of the family home was not “separately secured or occupied” unit within the meaning of PL 140.02(2), but the court found the issue unpreserved.