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

574
KA 10-01960
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, AND LINDLEY, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JOEQUELL E. SOLOMON, DEFENDANT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARY P. DAVISON OF COUNSEL), FOR
DEFENDANT-APPELLANT.

R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Ontario County Court (William F.
Kocher, J.), rendered July 20, 2010. The judgment convicted
defendant, upon a jury verdict, of assault in the second degree and
criminal possession of a weapon in the fourth 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 him
upon a jury verdict of assault in the second degree (Penal Law §
120.05 [2]), as a lesser included offense of the first count of the
indictment charging him with assault in the first degree (§ 120.10
[1]), and criminal possession of a weapon in the fourth degree (§
265.01 [2]). Contrary to defendant’s contention, County Court
properly denied his request to charge the jury on assault in the third
degree (§ 120.00 [3]) as a lesser included offense of assault in the
first degree. “There was no reasonable view of the evidence presented
that would support a jury finding that the defendant acted with
criminal negligence rather than [acted intentionally]” (People v
Beckford, 49 AD3d 547, 548, lv denied 10 NY3d 859; see People v
Wright, 105 AD2d 1088, 1089; see generally CPL 300.50 [1]). Further,
we reject defendant’s contention that the count charging criminal
possession of a weapon in the fourth degree was an inclusory
concurrent count of assault in the first degree (see People v
Mitchell, 216 AD2d 863, lv denied 86 NY2d 798; People v Sykes, 194
AD2d 502, lv denied 82 NY2d 759; see generally CPL 300.30 [4]; People
v Perez, 45 NY2d 204, 208-210).

     We agree with defendant, however, that the court erred in
charging the jury that the victim of the assault was justified to use
physical force “to the extent that he . . . reasonably believe[d] such
to be necessary to prevent or terminate what he . . . reasonably
                                 -2-                           574
                                                         KA 10-01960

believe[d] to be the commission . . . of larceny” (Penal Law § 35.25).
“ ‘It is a fundamental rule of law that jury instructions are required
to be responsive to the issues presented by the evidence’ ” (People v
Lewis, 160 AD2d 815, 816, lv dismissed 76 NY2d 738; see generally CPL
300.10 [2]), and it is error for the court to submit to the jury “ ‘a
theory of the facts which had no foundation in the evidence’ ” (People
v Rosenberg, 293 NY 16, 17, rearg denied 293 NY 697, quoting People v
Barberi, 149 NY 256, 274; see People v Duncan, 46 NY2d 74, 79, rearg
denied 46 NY2d 940, cert denied 442 US 910, rearg dismissed 56 NY2d
646). We conclude that the court’s justification charge was not
responsive to the evidence because there is no view thereof that the
victim was justified in using physical force against defendant or that
the victim used such force in the first instance (cf. People v Banks,
2 AD3d 226, lv denied 2 NY3d 737; see generally Penal Law art 35).
Under the circumstances of this case, we agree with defendant that the
patently improper instruction was so prejudicial as to deny him a fair
trial (see generally People v Ashwal, 39 NY2d 105, 111; People v
Lovello, 1 NY2d 436, 439) and, because the evidence of defendant’s
guilt is not overwhelming, it cannot be said that the error is
harmless (see generally People v Crimmins, 36 NY2d 230, 241-242). We
therefore reverse the judgment, and we grant a new trial on the
indictment.

     In light of our conclusion, we need not address defendant’s
remaining contentions.




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
