People v. Heiserman

204 A.D.3d 1249

166 N.Y.S.3d 387

The PEOPLE of the State of New York, Respondent,

v.Michael HEISERMAN, Appellant.

112214

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 17, 2022

Decided and Entered: April 21, 2022

G. Scott Walling, Slingerlands, for appellant.

Jonathan J. Miller, Acting District Attorney, Malone (Jennifer M. Hollis of counsel), for respondent.

Before: Garry, P.J., Lynch, Pritzker, Colangelo and McShan, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the County Court of Franklin County (Champagne, J.), rendered September 4, 2019, upon a verdict convicting defendant of the crime of assault in the second degree.

In February 2019, defendant was charged by indictment with assault in the second degree stemming from allegations that, while being processed at the Franklin County Jail for harassment, he struck a police sergeant intentionally causing him injury. After a jury trial, defendant was convicted as charged and thereafter sentenced, as a second felony offender, to a prison term of five years, to be followed by five years of postrelease supervision. Defendant appeals.

Defendant argues that County Court erred in denying his request for a jury charge on the defense of justification. In a criminal action, "[i]n judging whether to accede to a defendant's request to charge an affirmative defense, a court is bound to view the evidence in the light most favorable to the defendant.... The charge must be given if there is evidence reasonably supportive of the defense, even if there is other evidence which, if credited, would negate it" ( People v. McKenzie, 19 N.Y.3d 463, 466, 951 N.Y.S.2d 691, 976 N.E.2d 217 [2012] [citation omitted]; see People v. J.L., 36 N.Y.3d 112, 119, 139 N.Y.S.3d 103, 163 N.E.3d 34 [2020] ; People v. Vega, 33 N.Y.3d 1002, 1004–1005, 102 N.Y.S.3d 140, 125 N.E.3d 805 [2019] ). "The rule serves as a bulwark against judicial intrusion into the fact-finding province of the jury" ( People v. J.L., 36 N.Y.3d at 121, 139 N.Y.S.3d 103, 163 N.E.3d 34 ).

Specific to the affirmative defense of justification, as relevant here, "[a] person may ... use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself [or] herself ... from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person" ( Penal Law § 35.15[1] ; see People v. Goetz, 68 N.Y.2d 96, 105–106, 506 N.Y.S.2d 18, 497 N.E.2d 41 [1986] ). This defense involves both subjective and objective elements whereby the "determination of reasonableness must be based on the circumstances facing a defendant or his [or her] situation" ( People v. Goetz, 68 N.Y.2d at 114, 506 N.Y.S.2d 18, 497 N.E.2d 41 [internal quotation marks and citations omitted]; see People v. Young, 33 A.D.3d 1120, 1122–1123, 825 N.Y.S.2d 147 [2006], lvs denied 8 N.Y.3d 921, 925, 929, 834 N.Y.S.2d 511, 512, 516, 519, 866 N.E.2d 457, 458, 462, 465 [2007]). It is well settled that a defendant charged with assault of a police officer or a correction officer can, under certain circumstances, assert self-defense where the officer uses excessive force (see e.g. People v. Stevenson, 31 N.Y.2d 108, 112, 335 N.Y.S.2d 52, 286 N.E.2d 445 [1972] ; People v. Banyan, 187 A.D.3d 643, 644, 131 N.Y.S.3d 150 [2020], lv denied 36 N.Y.3d 1049, 140 N.Y.S.3d 865, 164 N.E.3d 952 [2021] ; People v. Brown, 169 A.D.3d 1488, 1489, 93 N.Y.S.3d 766 [2019], lv denied 35 N.Y.3d 1064, 129 N.Y.S.3d 406, 152 N.E.3d 1208 [2020] ; compare Penal Law § 35.27 ).

Here, since justification is a complete defense, and given the overwhelming evidence that defendant committed the crime of assault, the instruction is of crucial importance. Most notably, the People introduced into evidence a video recording of the assault, in which defendant can clearly be seen punching a police sergeant after defendant is sprayed in the face with pepper spray. Testimony revealed, and the video corroborated, that the pepper spray was deployed because defendant was refusing to take off his shoes and change into footwear provided by the jail so that an officer could finish searching him before bringing him into the jail. However, the video depicts a very brief time period between the initial directive for defendant to remove his footwear and the deployment of the pepper spray.¹ Based on this fact, combined with other circumstances surrounding the incident, we find that there is a reasonable view of the evidence that the use of the pepper spray constituted excessive force in this scenario.² Thus, when "viewing the evidence in the light most favorable to ... defendant" ( People v. Johnson, 91 A.D.3d 1121, 1122, 936 N.Y.S.2d 748 [2012] [internal quotation marks and citation omitted], lv denied 18 N.Y.3d 959, 944 N.Y.S.2d 487, 967 N.E.2d 712 [2012] ), there is a reasonable view of the evidence by which the jury could find that defendant's acts were justified (see People v. Taylor, 156 A.D.3d 86, 96, 64 N.Y.S.3d 714 [2017], lv denied 30 N.Y.3d 1120, 77 N.Y.S.3d 345, 101 N.E.3d 986 [2018] ; People v. Ball, 154 A.D.3d 1060, 1061–1062, 63 N.Y.S.3d 117 [2017] ). Accordingly, it was error for County Court not to instruct the jury on the defense of justification such that a new trial is required. In light of this determination, defendant's remaining contention has been rendered academic.

Garry, P.J., and Lynch, J., concur.

Colangelo, J. (dissenting).

We respectfully dissent.

In our view, County Court acted properly in admitting evidence of defendant's earlier behavior and in refusing to charge the jury on the defense of justification.

In our view, County Court did not err in permitting the People to elicit testimony on redirect examination of the police officer who arrested defendant regarding crimes or bad acts that he allegedly committed earlier in the day, prior to the indicted instant offense. "When a party opens the door during cross-examination to excluded evidence, the opponent may seek to admit the excluded evidence in order to explain, clarify and fully elicit the question that has been only partially exposed on cross-examination" ( People v. Mateo, 2 N.Y.3d 383, 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 [2004] [internal quotation marks and citations omitted], cert denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828 [2004] ). "A trial court has the discretion to decide door opening issues by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression" ( People v. George, 199 A.D.3d 1064, 1066, 156 N.Y.S.3d 549 [2021] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 1146, 159 N.Y.S.3d 332, 180 N.E.3d 496 [2021] ; see People v. Massie, 2 N.Y.3d 179, 184, 777 N.Y.S.2d 794, 809 N.E.2d 1102 [2004] ).

On cross-examination, defense counsel asked the police officer who defendant allegedly harassed and who had transported defendant to the jail if he knew defendant on December 1, 2018 and if he knew whether defendant called the police station because his son was missing. The officer testified that he was dispatched to the vicinity of an apartment building earlier that day for that reason. Then, defense counsel asked the officer if defendant "appear[ed] calm" while being processed at the jail, to which the officer responded that "[defendant] was calm inside [his] vehicle [during the transport and when he] brought him in." Prior to redirect examination, the prosecutor argued – outside of the jury's presence – that he could ask the officer about the initial police call because defense counsel had opened the door to such. County Court agreed and permitted such questioning. The officer testified that the call he responded to was that a young child was missing from an apartment building. The officer, after speaking to the property manager and learning that defendant was behaving aggressively toward him and did not live in the building, was approached by defendant. When defendant reached approximately 18 inches away from the officer, the officer asked him, "Hey, give me some space. What's your name?" Defendant identified himself and did not move back. The officer "put [his] hand up, [placed his] hand lightly on [defendant's] chest where his jacket was and said ‘[j]ust please step back, give me some space.’ " The officer testified that he again requested that defendant step back, and defendant took the officer's arm and "slapped [it] off of him," and then the officer "went hands on and attempted to take [defendant] to the ground." The officer arrested defendant for the offense of harassment in the second degree. Before defendant was placed inside the car, he spat on the hood of the car, and told the officer, "When you're out of blue, you're f* * * * * * dead. You're dead."

County Court determined that, even though defense counsel had not questioned the officer about why defendant was arrested or what specifically had transpired that led to his arrest, it was appropriate for the People to follow up on the question that defense counsel had initially asked "in such a way to impress upon the jury that [defendant] was simply calling the police because his son was missing and that may not be at all accurate." We agree. The evidence elicited on cross-examination was incomplete and misleading and provided the jury with no context as to how defendant's seemingly innocuous call to the police about his son led to his arrest and the eventual assault on a sergeant at the jail. In our view, the details elicited on redirect were essential to explain, clarify and fully elicit the question that had been only partially exposed on cross-examination (see People v. Mateo, 2 N.Y.3d at 425, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ). Accordingly, the redirect examination as to defendant's behavior earlier in the day was "reasonably...