This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 32
The People &c.,
            Respondent,
        v.
Yusuf Sparks,
            Appellant.




          Andrew J. Dalack, for appellant.
          Susan Gliner, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed.
          Defendant was charged with one count of assault in the
first degree (Penal Law § 120.10 [1]) following a dispute at a
Manhattan bodega.   Defendant, then age 19, and the victim, a 50-
year-old man with a long history of substance abuse and criminal


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activity, had a verbal exchange inside the bodega after the
victim provoked defendant.   Based on that affront, defendant
twice threatened to "murder" the victim, who was in an
inebriated, stumbling state, before eventually punching him
inside that store.    In defendant's words, the punch "knocked [the
victim] out."
          The surveillance footage that was admitted into
evidence at the jury trial contains images of what happened
outside the bodega after defendant punched the victim.   In sum,
after defendant struck the victim, defendant and the victim
separately left the immediate vicinity of that store on foot.     A
few minutes later, the footage reflects that defendant re-entered
the bodega; soon thereafter, the victim returned to the area
immediately outside that store and stumbled about.   Inside the
bodega, defendant asked the shopkeeper for a stick,1 but the
shopkeeper refused that request, saying that the punch was
"enough for [the victim]."   Defendant, however, told the
shopkeeper that he was going to walk outside and "knock [the
victim] out again."
          The surveillance footage reflects that defendant did
exactly that.   As he walked out of the bodega, defendant struck
the unsuspecting victim in the face with a milk crate.   The blow
knocked the victim to the sidewalk, and defendant walked away


     1
          The surveillance footage also captured audio of
defendant's altercations with the victim.

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from that store.   The victim, however, was taken by ambulance to
a hospital, where he was determined to have a broken nose and
cheekbone, and where he received potentially life-saving
treatment for a traumatic brain injury.
          Following the trial, defendant was convicted of the
lesser included offense of assault in the second degree (Penal
Law § 120.05 [2]).   On appeal, the Appellate Division affirmed
the judgment of conviction (132 AD3d 513 [1st Dept 2015]).    A
Judge of this Court granted defendant leave to appeal (26 NY3d
1092 [2015]), and we now affirm the Appellate Division order.
          Contrary to defendant's contention, the trial court
properly refused to instruct the jury on the defense of
justification.   Viewing the record in the light most favorable to
defendant, as we must (see People v Watts, 57 NY2d 299, 301
[1982]), we conclude there is no reasonable view of the evidence
that would have permitted the factfinder to conclude that
defendant's conduct was justified (see People v Cox, 92 NY2d
1002, 1004 [1998]; cf. People v Petty, 7 NY3d 277, 284 [2006]).
That is, we agree with the People that there is no evidence that
objectively supports a belief that defendant was in danger of
being physically harmed by the victim at the time defendant used
force against him (see Cox, 92 NY2d at 1005; see also People v
Wesley, 76 NY2d 555, 559 [1990]).2

     2
          To be clear, the

          "justification [defense] is comprised of both

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          Here, after "knocking [the victim] out," defendant was
able to freely and safely walk away from the bodega.   Moreover,
there simply is no evidence that, once he returned to the bodega,
defendant needed to leave that store to strike the victim to
defend himself.   Even if defendant's trial testimony establishes
that he actually believed that the victim was lying in wait for
him with a weapon (see generally Wesley, 76 NY2d at 559), there
is no reasonable view of the evidence that "a reasonable person
in . . . defendant's circumstances would have believed" the
victim to have threatened him with the imminent use of unlawful
physical force (Umali, 10 NY3d at 425; see Penal Law § 35.15
[1]). Put simply, the surveillance footage reflects that


          subjective and objective elements. The
          subjective element [in a case such as this
          one] is concerned with whether the defendant
          believed that the use of [physical] force was
          necessary; while under the objective prong,
          the jury must consider whether a reasonable
          person in the defendant's circumstances would
          have believed that [physical] force was
          required. When a defense of justification is
          raised, 'the People must prove beyond a
          reasonable doubt that [the] defendant's
          conduct was not justified' (People v Craig,
          78 NY2d 616, 619 n 1 [1991]). In other
          words, the People must demonstrate beyond a
          reasonable doubt that the defendant did not
          believe [physical] force was necessary or
          that a reasonable person in the same
          situation would not have perceived that
          [physical] force was necessary (see e.g.
          People v Goetz, 68 NY2d 96, 115 [1986])"
          (People v Umali, 10 NY3d 417, 425 [2008]; see
          Wesley, 76 NY2d at 559).


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defendant's ambush of the victim with the milk crate cannot be
considered self defense.
            We agree with defendant that the trial court erred in
adjusting its Sandoval ruling based on defendant's trial
testimony (cf. People v Fardan, 82 NY2d 638, 645-647 [1993]).          We
further conclude, however, that the error is harmless.       The
evidence of defendant's guilt is overwhelming, and there is no
significant probability that the outcome of the trial would have
been different in the absence of that error (see generally People
v Crimmins, 36 NY2d 230, 241-242 [1975]).
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *     *    *
Order affirmed, in a memorandum. Chief Judge DiFiore and Judges
Rivera, Abdus-Salaam, Stein, Fahey, Garcia and Wilson concur.

Decided March 30, 2017




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