J. Dalack, for appellant.
Gliner, for respondent.
order of the Appellate Division should be affirmed.
was charged with one count of assault in the first degree
(Penal Law § 120.10 ) 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 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."
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,  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
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
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.
the trial, defendant was convicted of the lesser included
offense of assault in the second degree (Penal Law §
120.05 ). On appeal, the Appellate Division affirmed the
judgment of conviction (132 A.D.3d 513');">132 A.D.3d 513 [1st Dept 2015]). A
Judge of this Court granted defendant leave to appeal (26
N.Y.3d 1092 ), and we now affirm the Appellate Division
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 N.Y.2d 299, 301
), 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 N.Y.2d 1002, 1004 ; cf. People v
Petty, 7 N.Y.3d 277, 284 ). 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 N.Y.2d at 1005;
see also People v Wesley, 76 N.Y.2d 555, 559
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 N.Y.2d 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 N.Y.3d at 425; see Penal Law § 35.15 ).
Put simply, the surveillance footage reflects that
defendant's ambush of the victim with the milk crate
cannot be considered self defense.
agree with defendant that the trial court erred in adjusting
its Sandoval ruling based on defendant's trial
testimony (cf. People v Fardan, 82 N.Y.2d 638,
645-647 ). 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 N.Y.2d 230, 241-242 ).
affirmed, in a memorandum.
Judge DiFiore and Judges Rivera, Abdus-Salaam, Stein, Fahey,
Garcia and Wilson concur.