People v. Montanez , 118 A.D.2d 414 ( 1986 )

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered December 13, 1983, convicting defendant, after a jury trial, of assault in the third degree (Penal Law § 120.00 [1]) and sentencing him to a term of three years’ probation, unanimously reversed, on the law, and the indictment dismissed, without prejudice to further proceedings.

Defendant was tried on an indictment which charged him with assault in the first degree and criminal possession of a weapon in the fourth degree. At trial, he interposed a defense of justification. At the close of the case, the People requested that the second count of the indictment for criminal possession of a weapon in the fourth degree not be submitted to the jury. As a result, the case went to the jury on the remaining count in the indictment for assault in the first degree and, as lesser included offenses, assault in the second and third degrees. As to each of the crimes, the Trial Justice instructed the jury with respect to the defense of justification or self-defense, charging that, "A person may use deadly physical force upon another to defend himself or someone else from what he reasonably believes to be the use or imminent use of deadly physical force by such other person.” Over defense counsel’s objection, the court instructed the jury as follows:

In deciding the issue of reasonableness of the defendant’s belief, it is important for you to remember that reasonableness is not based upon what the defendant actually believed or even what you would have believed under the circumstances, nor is it necessary that the defendant in fact was in danger of imminent death or serious physical injury.

"The test is what a reasonable and prudent man would have believed under the same circumstances. Would a reasonable and prudent man under the circumstances as you determine them to be have believed that Pedro Lopez was using or about to use imminent deadly physical force against the defendant or the other person in this case, Indio.”

The court’s instructions improperly substituted an objective test for the less stringent subjective standard required by Penal Law § 35.15. Under the statute, the critical factor to be determined by the jury on the issue of justification is whether the defendant reasonably believed the use of physical force or deadly physical force was necessary under the circumstances and in accordance with the statute, not whether a reasonable prudent man would share the belief.

In People v Santiago (110 AD2d 569), we held that a charge which similarly substituted an objective standard for the subjective one required by the statute was reversible error since, clearly, there was resulting prejudice. We recognized in Santiago that "it is the defendant’s reasonable belief in the imminénce of a life-threatening situation, not an ordinary and reasonable person’s belief, which must guide the jury in determining whether defendant was justified in responding to such a threat with deadly force [citations omitted].” (Supra, at p 571, citing, inter alia, People v Wagman, 99 AD2d 519, 520.) Under the circumstances, taking into account the significance of the issue of credibility, especially in view of the conflicting account of the street confrontation offered by complainant, in contrast to that testified to by defendant, we find the error was prejudicial and violated the defendant’s fundamental right to a fair trial.

Ordinarily, such a finding would require reversal and remand for a new trial. However, inasmuch as defendant was acquitted of assault in the first degree, the only count in the indictment at this point (the criminal possession count not having been submitted to the jury), further prosecution on that charge is barred under principles of double jeopardy. Thus, there is no pending charge which would support remand for another trial under that accusatory instrument. (See, People v Gonzalez, 61 NY2d 633, 635; People v Mayo, 48 NY2d 245, 253; People v Contreras, 108 AD2d 627, 629.) We may not order a new trial on the lesser included offense of assault in the third degree since no pending charge remains to support further criminal prosecution under the indictment. In addition, assault in the third degree is a misdemeanor and, accordingly, there is no felony charge to be re-presented to another Grand Jury. Concur — Milonas, Kassal, Rosenberger and Ellerin, JJ.