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 December 20, 2012
Tom, J.P., Sweeny, DeGrasse, Manzanet-Daniels, Clark, JJ.
Judgment, Supreme Court, Bronx County (John W. Carter, J.), rendered on April 4, 2012, convicting defendant, after a jury trial, of attempted assault in the first degree, and sentencing him to a term of 3½ years, unanimously reversed, on the law, and the matter remanded for a new trial.
The trial court should have instructed the jury on justification pertaining to the use of non-deadly physical force and should not have limited the justification charge to those circumstances in which the use of deadly physical force would have been justified (see Penal Law § 35.15). Although the People's theory was that defendant attacked the complainant with a scissors, there was a reasonable view of the evidence, viewed in the light most favorable to the defendant, that defendant used non-deadly force. Defendant testified that the complainant initially punched defendant in the face, and defendant then grabbed the complainant, causing him to fall on the floor and sustain injuries (see People v Smith, 62 AD3d 411 [1st Dept 2009], lv denied 12 NY3d 929 ; People v Ogodor, 207 AD2d 461 [2d Dept 1994]). Furthermore, the error was not harmless, since defendant's case rested entirely on his contention that he used only non-deadly force, and that such use was justified (see People v Lauderdale, 295 AD2d 539, 540 [2d Dept 2002]; see also Ogodor, 207 AD2d at 463).
Since we are ordering a new trial, we find it unnecessary to discuss defendant's other arguments, except that we find that the verdict was based on legally sufficient evidence and was not against the weight of the evidence.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 20, 2012
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