To be submitted

KA 10-01054

STATE OF NEW YORKSUPREME COURT

APPELLATE DIVISION: FOURTH DEPARTMENT

PEOPLE OF THE STATE OF NEW YORKRespondent,

-v-

JESUS TORRES,Defendant-Appellant.

Seneca CountyIndictment No. 08-043

APPELLANT’S BRIEF

STEVEN J. GETMAN, ESQ.Attorney for Defendant-Appellant

7185 Main StreetPO Box 449

Ovid, NY 14521607.869.9646

February 27, 2011

i

CONTENTS

Table of Authorities iiCases iiConstitutions and Statutes iii

Preliminary Statement v

Questions Presented vii

Statement of Facts 1

Argument 6

Conclusion 13

ii

TABLE OF AUTHORITIES

Cases

Davis v. Strack, 270 F.3d 111 (2001) 8

Garrido-Valdez v. Poole, 384 F. Supp. 2d 591 (2005) 6

Irvin v. Dowd, 366 U.S. 717 (1961) 6

Matter of Y.K., 87 N.Y.2d 430 (1996) 7

People v. Atkinson, 21 A.D.3d 145 (2nd Dept., 2005), aff’d 7 N.Y.3d 765 12

People v. Balsano, 51 A.D.2d 130 (4th Dept., 1976) 6

People v. Bradley, 297 A.D.2d 640 (2nd Dept., 2002) 7

People v. Butts, 72 N.Y.2d 746 (1988) 6

People v. Collice, 41 N.Y.2d 906 (1977) 8

People v. Dare, 175 A.D.2d 586 (4th Dept., 1991) 7

People v. Ford, 66 N.Y.2d 428 (1985) 12

People v. Henriquez, 3 N.Y.3d 210 (2004) 6

People v. Khan, 68 N.Y.2d 921 (1986) 8

People v. Liggins, 2 A.D.3d 1325 (4th Dept., 2003) 6

People v. McManus, 67 N.Y.2d 541 (1986) 8

People v. Pagnotta, 144 A.D. 265 (2nd Dept., 1911) 7-8

People v. Ramos, 193 Misc. 2d 564 (2002) 7

iii

People v. Rosen, 81 N.Y.2d 237 (1993) 10

People v. Ruiz, 96 A.D.2d 845 (2nd Dept., 1983) 8

People v. Seeley, 179 Misc. 2d 42 (1998) 7

People v. Tai, 39 N.Y.2d 894 (1976) 12

People v. Vasquez, 114 A.D.2d 589 (3rd Dept., 1985) 9-10

People v. Vecchio, 240 A.D.2d 854 (3rd Dept., 1997) 7

People v. Watts, 57 N.Y.2d 299 (1982) 8

Spencer v. State of Texas, 385 U.S. 554 (1967) 6

Constitutions and Statutes

CPL § 70.20 12

CPL § 300.10 5

CPL § 300.10(5) 10

CPL § 470.05(1) 10

CPL § 470.05(2) 10

NY Const. Art. 1, § 6 6

Penal Law § 15.05 (1) 12

Penal Law § 15.05 (3) 12

Penal Law § 25.00(1) 8

Penal Law § 35.00 7, 8

iv

Penal Law § 35.10(6) 7

Penal Law § 35.13 5

Penal Law § 35.15(1) 7

Penal Law § 120.00(2) 5, 11

Penal Law § 120.05(7) 3, 11

Penal Law § 240.32 3

U.S. Const. Amend. 14 6

v

PRELIMINARY STATEMENT1

On June 26, 2008, a Seneca County grand jury charged the defendant-

appellant, Jesus Torres, with the following: Assault Second Degree, in violation of

Penal Law § 120.05(7), a Class D felony; Aggravated Harassment of an Employee

by an Inmate, in violation of Penal Law § 240.32, a Class “E” felony. (A6-8).

The Assault Second charge stemmed from a fight in the Five Points

Correctional Facility in which the defendant was attacked by another inmate for

refusing to participate in an illegal strike. (Trial 294, 308, 319-321). Corrections

Officer Peggy Brewer was injured, allegedly by Torres, while trying to break up

the fight. (Trial 271, 277, 323-325).

Torres appeared with counsel on August 18, 2008 and pleaded “not guilty.”

(08/18/08 Transcript 3).

The case came on for jury trial on March 8, 2010. The trial lasted until

March 10. (Trial 1).

Prior to the jury charge, the defendant requested a jury instruction on

justification, pursuant to Penal Law § 35.13, CPL § 300.10 and other applicable

authority. The court denied the request. (Trial 453-456).

1 References to the Appendix will be prefaced with an “A,” followed by the page number[s]. References to the trialtranscript will be prefaced with the word “Trial,” followed by the page number[s]. In regard to other transcripts(hearings, motions, sentencing, etc.) the page reference will be preceded by a date (e.g., 08/18/08 Transcript,09/29/08 Transcript, etc.), followed by the page number[s].

vi

The defendant then requested a jury instruction on Assault in the Third

Degree pursuant to Penal Law § 120.00(2), as a lesser-included offense of the

Assault Second charge set forth in “Count One” of the indictment. The court

granted that request. (Trial 456-459).

The jury found the defendant not guilty on the Aggravated Harassment

charge (“Count Two”). In regard to “Count One,” the jury found the defendant not

guilty of Assault Second Degree and guilty of the lesser-included offense of

Assault Third Degree. (Trial 530-531).

On April 12, 2010, the Seneca County Court (Bender, J.) sentenced the

defendant to one year of incarceration on the Assault Third conviction. (A4;

04/12/10 Transcript 4-5).

By written notice dated April 12, 2010, the defendant appealed. (A2-3).

vii

QUESTION PRESENTED

Did the trial court err in refusing to instruct the jury on the defense of

justification as requested by the defendant?

1

STATEMENT OF FACTS

On August 21, 2007, at the Five Points Correctional Facility in the Town of

Romulus, County of Seneca, State of New York, a group of approximately four

inmates tried to organize an illegal work stoppage, or strike, in the prison

commissary. (Trial 280, 294, 297, 318, 332, 335-336).

The commissary is a supply storehouse at the facility. The walls are made

of cinderblocks. Inmates assigned to work there have access to the stored

supplies. The supplies include canned food, canned sodas, metal objects, plastic

bins, pens, and other objects. The inmates on duty sometimes use mops and

brooms. (Trial 289-290, 329-333).

Only one inmate stationed in the commissary that day refused to participate

in the strike and kept working. That inmate was Jesus Torres, the defendant

herein. (Trial 294, 320-321, 335).

Because Torres refused to strike, one of the other inmates attacked him. That

other inmate, an individual named Johnson, had participated in the attempted

strike. (Trial 294, 308, 319-321).

Johnson’s attack on Torres occurred while both inmates were locked in the

commissary. Once locked in the commissary inmates are unable to escape and can

only leave if a corrections officer lets them out. (Trial 309-310, 333).

2

Three or four other inmates were also locked in the commissary. These

inmates, like Johnson, were part of the strike. (Trial 286, 306, 333).

The other inmates were close enough to Johnson and Torres to jump into the

fight in a matter of seconds. (Trial 347). Except for being locked in the

commissary, none of them were restrained. (Trial 309).

Corrections Officer Peggy Brewer tried to break up the fight between

Johnson and Torres. She ordered them to stop fighting. However, Johnson kept

attacking Torres and Torres continued to fight back. (Trial 321-322, 337-338).

Corrections Officers Lawrence Morley and Daniel Walawender quickly

arrived on the scene. Again, Johnson and Torres were ordered to cease fighting

but neither stopped. The scene, according to Brewer, was chaotic and confusing.

The officers and inmates struggled while Johnson and Torres continued fighting.

(Trial 282-286, 299, 302-303, 340).

The entire fight lasted only a minute or two. (Trial 288, 340).

During the struggle, Brewer fell to ground. While on the ground, someone

kicked her in the head. She believed it to be Torres. (Trial 323-324).

The officers generally concluded that Torres had kicked Brewer while

attempting to either escape from Johnson or continue his struggle with Johnson.

At the time, Johnson was still only approximately five to eight feet from Torres.

(Trial 284, 285, 295, 303, 343).

3

Once the fight was broken up, both inmates were escorted from the

commissary. Both were compliant with the escort officers. (Trial 288-298).

After the fight, Johnson admitted to being the initial aggressor and said that

he attacked Torres because Torres refused to participate in the illegal strike. (Trial

294). When filling out his report on the incident, Morley specified that Johnson’s

actions, not Torres’, had caused the commissary to be delayed. (Trial 308).

As an apparent result of the incident, Brewer suffered a concussion. (Trial

271, 277, 325).

Torres suffered several injuries during the fight with Johnson. These

included some cuts and a swollen lip. After the fight, corrections officers took

him to the prison infirmary for treatment. (Trial 385-386).

While in the infirmary, Torres allegedly spat upon another corrections

officer, Sam Dibble. (Trial 376-377).

On June 26, 2008, a Seneca County grand jury charged Torres with the

following:

Count One. Assault Second Degree, in violation of Penal Law §

120.05(7), a Class D felony.

Count Two. Aggravated Harassment of an Employee by an Inmate, in

violation of Penal Law § 240.32, a Class “E” felony.

4

The first count stemmed from the fight with Johnson. It alleged that Torres

had intentionally caused physical injury to Brewer when he kicked her in the head.

The second count alleged that Torres had intentionally spit blood on Dibble while

in the infirmary, while intending to harass, annoy, threaten or alarm Dibble. (A6-

8).

Torres appeared with counsel on August 18, 2008 and pleaded “not guilty.”

(08/18/08 Transcript 3).

The case came on for jury trial on March 8, 2010. The trial lasted until

March 10. (Trial 1).

Following the close of the prosecution’s proof, the defense moved to dismiss

“Count One” of the indictment. The defense said that the indictment charged

Torres with having a specific intent to injure Brewer. However, the defense

argued, the evidence showed no such intent. Instead, the defense noted, the

evidence indicated that Torres had kicked Brewer to either get away from or back

at Johnson. The defense renewed its motion at the close of the defense case. (Trial

439-440, 445).

The trial court denied the motion to dismiss each time. However, it also

ruled that the wording of the indictment prohibited the prosecution from arguing

transferred intent. (Trial 440, 445-448).

5

Prior to the jury charge, the defense requested a jury instruction on

justification, pursuant to Penal Law § 35.13, CPL § 300.10 and other applicable

authority. The court denied the request, finding no indication that Torres was

trying to defend himself against Johnson at the time he allegedly kicked Brewer.

(Trial 453-456).

The defendant then requested a jury instruction on Assault in the Third

Degree pursuant to Penal Law § 120.00(2), as a lesser-included offense of the

Assault Second charge set forth in “Count One” of the indictment. The court

granted that request. (Trial 456-459).

Following deliberations, the jury found Torres not guilty on “Count Two.”

In regard to “Count One,” the jury found Torres not guilty of Assault Second

Degree and guilty of the lesser-included offense of Assault Third Degree. (Trial

530-531).

On April 12, 2010, the Seneca County Court (Bender, J.) sentenced Torres

to one year of incarceration on the Assault Third conviction. (A4; 04/12/10

Transcript 4-5).

By written notice dated April 12, 2010, the defendant appealed. (A2-3).

6

ARGUMENT

The Court Erred in Refusing toCharge the Requested Defense of

Justification.

The due process clause of the 14th Amendment requires that a person

accused of a crime be afforded a fair trial. U.S. Const. Amend. 14; Spencer v.

State of Texas, 385 U.S. 554 (1967); Irvin v. Dowd, 366 U.S. 717 (1961); People v.

Henriquez, 3 N.Y.3d 210 (2004). This due process requires that the state courts

conduct criminal trials in a manner consistent with the fundamental fairness that is

essential to the very concept of justice. Garrido-Valdez v. Poole, 384 F. Supp. 2d

591 (2005).

Like the United States Constitution, the New York State Constitution

guarantees a defendant due process and a right to a fair trial. NY Const. Art. 1, §

6.

When an essential element of a fair trial is missing, there must be a reversal,

regardless of whether a fair trial would have produced the same result. People v.

Balsano, 51 A.D.2d 130 (4th Dept., 1976).

Upon a defendant's request, the trial court must instruct the jury on a defense

if the defense is sufficiently supported by a reasonable view of the evidence.

People v. Butts, 72 N.Y.2d 746 (1988); People v. Liggins, 2 A.D.3d 1325 (4th

Dept., 2003). The failure to do so may constitute reversible error. Butts, supra.

7

One such potential defense is justification. Penal Law §§ 35.00, 35.10(6).

In an assault case, justification, if properly established, is a complete defense.

Penal Law § 35.15(1); People v. Ramos, 193 Misc. 2d 564 (2002); People v. Dare,

175 A.D.2d 586 (4th Dept., 1991). If the use of force is justified, the force is legal

and proper. People v. Seeley, 179 Misc. 2d 42 (1998).

Subject to certain limitations, “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... 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).

In considering a defense of justification, generally, the force permitted is

related to the degree of force reasonably believed necessary to repel various

threats. Matter of Y.K., 87 N.Y.2d 430 (1996); People v. Vecchio, 240 A.D.2d 854

(3rd Dept., 1997). In addition, there is generally no duty to retreat before using

non-deadly physical force. People v. Bradley, 297 A.D.2d 640 (2nd Dept., 2002).

Furthermore, the mere fact that a defendant may have voluntarily or

willingly taken part in a quarrel, or that he may have been willingly quarreling at

the time of an assault, does not deprive him of the right to defend himself against

death or serious bodily injury. People v. Pagnotta, 144 A.D. 265 (2nd Dept.,

8

1911). In fact, a justification instruction may be proper even when the act on which

the defense is based was not intentional. People v. Khan, 68 N.Y.2d 921 (1986).

In determining whether the evidence supports a potential defense, the court

must view the evidence in a light most favorable to the accused. People v. Ruiz, 96

A.D.2d 845 (2nd Dept., 1983); People v. Watts, 57 N.Y.2d 299 (1982); People v.

Collice, 41 N.Y.2d 906 (1977).

Once the evidence properly places justification in issue, the prosecution

bears the burden of proving beyond a reasonable doubt that the defendant was not

justified. Penal Law §§ 35.00, 25.00(1); People v. McManus, 67 N.Y.2d 541

(1986); Davis v. Strack, 270 F.3d 111 (2001).

In the case at hand, viewing the evidence in a light most favorable to the

defendant, a reasonable jury could have found that Torres was attempting to defend

himself when he kicked Brewer and, therefore, Torres was justified in using force.

At the time of the incident, Torres was locked in a cinderblock room with at

least three other inmates and several civilians. (Trial 333). The other inmates had

attempted to organize an illegal strike. (Trial 280, 294, 297, 318, 332, 335-336).

Torres had refused to participate in the strike. (Trial 294, 320-321, 335). As a

result, one of the other inmates, Johnson, attacked him. (Trial 294, 308, 319-321).

The scene became chaotic and confusing. (Trial 340). Johnson ignored orders to

stop fighting and struggled with the officers. (Trial 321-322, 337-338). Torres

9

became injured. (Trial 385-386). The room was full of items that could be used as

a weapon against Torres. (Trial 289-290, 329-333). The other inmates, Johnson’s

allies in the planned strike, could have joined in the attack in a matter of seconds.

(Trial 309, 347). There was no way for Torres to escape the room until the door

was unlocked. (Trial 309-310, 333). Even after corrections officers restrained

Johnson, he was only feet from Torres. At trial, witnesses conceded that it was

possible that Torres had kicked Brewer in an attempt to escape from Johnson.

(Trial 284, 285, 295, 303, 343).

Given the above, a finder of fact may have very well reasonably found that

Torres was trying to defend himself from Johnson when he kicked at Brewer. As

such, Torres was entitled to have the court instruct the jury on justification.

Furthermore, at least one reported appellate decision supports the view that

justification was a proper defense under the facts of this case. In People v.

Vasquez, 114 A.D.2d 589 (3rd Dept., 1985), a trial court was found to have erred

in failing to adequately instruct a jury on the justification defense where a prison

inmate was charged with Assault Second Degree for kicking a corrections officer

in the head.

Like the instant case, in Vasquez, the defendant was alleged to have been

fighting with another inmate when a corrections officer attempted to break up the

fight. The officer pulled the inmates apart and they fell to the floor. Vasquez,

10

much like the defendant herein, was alleged to have then kicked the corrections

officer in an attempt to either get back at the other inmate or protect himself. Id.

Based upon the facts of that case, the court gave a justification charge to the

jury. However, on appeal, the charge was found lacking because the court did not

adequately explain the prosecution’s burden to disprove the defense. Therefore,

the appellate court reversed and ordered a new trial. Id.

If it is reversible error to inadequately instruct a jury on justification under

the facts presented in both Vasquez and the instant case, it follows that it is also

reversible error to refuse to issue the instruction at all.

Therefore, the trial court’s failure to instruct the jury on the defense of

justification in this case was an error, requiring reversal.

The prosecution may argue that the defendant waived this objection by

requesting the court to charge the jury with the option to consider the lesser-

included offense of Assault Third Degree.

However, in the case at hand, the defense made the request for a lesser-

included instruction only after the court denied the request to charge justification.

(Trial 453-456). As such, the defense had preserved its objection. CPL §§

300.10(5), 470.05(2); People v Rosen, 81 N.Y.2d 237 (1993).

Further, it cannot be said that the trial court’s error was harmless under CPL

§ 470.05(1).

11

As noted above, justification is a complete defense to criminal liability. A

finding of a lesser-included offense, however, results in a criminal conviction, in

this case, for Assault Third Degree, a Class “A” misdemeanor. Penal Law §

120.00(2).

Furthermore, based upon the facts as presented to them, the jury acquitted

Torres of Assault Second Degree, but found him guilty of Assault Third Degree.

(A4). Given the elements of each crime, it appears that the jury based their

verdict on the question of Torres’ intent.

Under Penal Law § 120.05(7), as charged, a person is guilty of Assault

Second Degree when, “[h]aving been charged with or convicted of a crime and

while confined in a correctional facility...with intent to cause physical injury to

another person, he causes such injury to such person....” Conversely, a person is

guilty of Assault Third Degree when, in relevant part, “[h]e recklessly causes

physical injury to another person.” Penal Law § 120.00(2).

There is no difference in the degree of injury to the victim in the two

statutes. Penal Law §§ 120.05(7), 120.00(2). Furthermore, it was without dispute

that Torres was an inmate, confined in a correctional facility. (Trial 7, 14). The

only relevant difference between the original charge and the crime as convicted is

the defendant’s intent, or lack thereof, to cause injury.

12

A person acts “intentionally” when his or her “conscious objective is to

cause such result or to engage in such conduct.” Penal Law § 15.05 (1).

However, for a reckless crime, the defendant does not act with the conscious

objective of causing the unlawful result. People v. Atkinson, 21 A.D.3d 145 (2nd

Dept., 2005), aff’d 7 N.Y.3d 765. A person acts “recklessly” merely when he or

she “is aware of and consciously disregards a substantial and unjustifiable risk that

such result will occur or that such circumstance exists.” Penal Law § 15.05 (3).

“Intentionally” is a higher mental culpability than “recklessly.” People v. Ford, 66

N.Y.2d 428 (1985); People v. Tai, 39 N.Y.2d 894 (1976).

Therefore, under the facts as presented, in order to have convicted Torres of

Assault Third, the jury must have had reasonable doubt as to Torres’ actual intent

during the fight. CPL § 70.20.

As such, had the trial court given the jury an option to consider whether

Torres’ intent was to defend himself it is very possible that the jury would have

found that to be his intent. If they had, this would have resulted in a complete

acquittal.

Furthermore, as noted above, had the trial court instructed the jury on

justification, it would have been required to instruct the jury that the prosecution

had the burden to disprove the defense beyond a reasonable doubt. This increases

the likelihood that, given the probable question in the jurors’ minds as to Torres’

13

intent in kicking Brewer, the jury would have found that Torres was justified in

using force.

Accordingly, the court’s refusal to charge justification was reversible error.

CONCLUSION

Therefore, for all the reasons set forth above, it is respectfully submitted that

the judgement of conviction and sentence should be reversed as set forth herein,

together with such other and further relief as to this court may be just and proper.

Dated: February 27, 2011

Respectfully submitted,

STEVEN J. GETMAN, ESQ.Attorney for Defendant-Appellant

7185 Main Street, PO Box 449Ovid, NY 14521

607.869.9646