        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

145
KA 12-01039
PRESENT: WHALEN, P.J., CENTRA, LINDLEY, TROUTMAN, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NANCY JAMES, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES A. HOBBS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (SCOTT MYLES OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County
(Francis A. Affronti, J.), rendered March 13, 2012. The judgment
convicted defendant, upon a jury verdict, of manslaughter in the first
degree and assault in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law and a new trial is granted.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of manslaughter in the first degree (Penal Law
§ 125.20 [1]) and assault in the second degree (§ 120.05 [2]). The
charges stem from defendant’s conduct during a New Year’s Eve party
when several people began fighting. The People alleged that defendant
cut one victim on the forehead with a piece of broken glass and then
fatally stabbed a second victim. Defendant contends that Supreme
Court erred in denying her request to charge the defense of
justification on the assault count with respect to both ordinary and
deadly physical force, requiring reversal of the assault count and the
factually related manslaughter count. We agree with defendant that
the court committed reversible error in refusing to charge the defense
of justification with respect to deadly physical force under Penal Law
§ 35.15 (2) (a).

     “A trial court must charge the factfinder on the defense of
justification ‘whenever there is evidence to support it’ . . . Viewing
the record in the light most favorable to the defendant, a court must
determine whether any reasonable view of the evidence would permit the
factfinder to conclude that the defendant’s conduct was justified. If
such evidence is in the record, the court must provide an instruction
on the defense” (People v Petty, 7 NY3d 277, 284; see People v Cox, 92
NY2d 1002, 1004; People v Gentile, 23 AD3d 1075, 1075, lv denied 6
NY3d 813). Where deadly physical force is used, the evidence must
                                 -2-                           145
                                                         KA 12-01039

establish that the defendant reasonably believed that the other person
was using or about to use deadly physical force (see Penal Law § 35.15
[2] [a]; People v Goetz, 68 NY2d 96, 106).

     We agree with the court that defendant used deadly physical force
and not ordinary physical force when she used a piece of broken glass
to slash the first victim’s forehead (see People v Mason, 132 AD3d
777, 777; see also People v Saenz, 27 AD3d 379, 380, lv denied 7 NY3d
762). We therefore reject defendant’s contention that the court erred
in failing to charge the jury on justification using nondeadly
physical force for the assault count. We agree with defendant,
however, that the court erred in denying her request to charge the
jury on justification using deadly physical force in defense of a
third party for the assault count. There was a reasonable view of the
evidence, viewed in the light most favorable to defendant, that the
first victim was using deadly physical force by striking defendant’s
brother in the head with a champagne bottle when defendant assaulted
her (see generally People v Ponder, 34 AD3d 1314, 1315; People v
Liggins, 2 AD3d 1325, 1326-1327). We further agree with defendant
that the error in failing to give the justification charge on the
assault count requires reversal of the manslaughter count as well.
Although the court instructed the jury on justification for that
count, there was a “significant factual relationship” between the two
counts (People v McDaniel, 81 NY2d 10, 20), particularly on the issue
whether defendant was the initial aggressor (see Penal Law § 35.15 [1]
[b]). We therefore reverse the judgment and grant a new trial on both
counts.

     In view of our determination, we need not review defendant’s
remaining contentions. Nevertheless, because we are granting a new
trial, we note in the interest of judicial economy that the court
erred in allowing the People to impeach one of their witnesses with
her grand jury testimony. The witness’s testimony that she did not
see defendant stab the second victim did not affirmatively damage the
People’s case (see People v Ayala, 121 AD3d 1124, 1125, lv denied 25
NY3d 987; People v Rios, 166 AD2d 616, 617, lv denied 77 NY2d 842;
People v Garrett, 147 AD2d 905, 905-906, lv denied 74 NY2d 664).




Entered:   March 18, 2016                       Frances E. Cafarell
                                                Clerk of the Court
