| People v Hall |
| 2021 NY Slip Op 03968 |
| Decided on June 17, 2021 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on June 17, 2021 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., NEMOYER, TROUTMAN, WINSLOW, AND BANNISTER, JJ.
596 KA 18-00912
v
KAESEAN HALL, DEFENDANT-APPELLANT.
JEFFREY WICKS, PLLC, ROCHESTER (JEFFREY WICKS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered March 7, 2018. The judgment revoked defendant's sentence of probation and imposed a sentence of imprisonment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant pleaded guilty to assault in the second degree (Penal Law § 120.05 [1]) and was sentenced to probation. Supreme Court subsequently determined, following a hearing, that defendant had violated a condition of his probation by attacking a stranger on a street corner. The court therefore revoked defendant's probation and imposed a different sentence. Defendant appeals, and we affirm.
Defendant contends that he did not violate his probation because he justifiably attacked the victim in self-defense (see generally Penal Law § 35.15 [1]). Even assuming, arguendo, that the defense of justification applies at a probation violation hearing to the same extent as at a criminal trial (cf. People v Miller, 289 AD2d 704, 705 [3d Dept 2001]; People v West, 283 AD2d 721, 722 [3d Dept 2001], lv denied 96 NY2d 836 [2001]), we reject defendant's contention for the following three reasons. First, defendant's own testimony explicitly characterized the underlying incident as a "mutual fight" in which he "got the best of" the victim, and the defense of justification is statutorily unavailable for "combat by agreement not specifically authorized by law" (§ 35.15 [1] [c]; see Matter of Kim H., 112 AD2d 160, 161 [2d Dept 1985]). Second, defendant's own testimony demonstrated that he "lacked a subjective belief that his use of . . . physical force was necessary to protect himself against [any] use or imminent use of . . . physical force" by the victim (People v Box, 181 AD3d 1238, 1240 [4th Dept 2020], lv denied 35 NY3d 1025 [2020], cert denied — US &mdash, 141 S Ct 1099 [2021]; see People v Grady, 40 AD3d 1368, 1371 [3d Dept 2007], lv denied 9 NY3d 923 [2007]). Third, any "right to use [physical] force [in self-defense] terminate[d] at the point where [defendant could] no longer reasonably believe that the [victim] still pose[d] a threat to him" (People v Colecchia, 251 AD2d 5, 6 [1st Dept 1998], lv denied 92 NY2d 895 [1998]), and the police officer's eyewitness testimony established that defendant continued attacking the victim even after the victim was lying "helpless" and "unconscious" on the ground.
Entered: June 17, 2021
Mark W. Bennett
Clerk of the Court