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People v. Pagan

Supreme Court of New York, Second Department

November 8, 2017

The People, etc., respondent,
v.
Daniel Pagan, appellant. Ind. No. 8695/10

          Submitted - October 2, 2017

         D53809 C/htr

          Paul Skip Laisure, New York, NY (Steven R. Bernhard of counsel), for appellant.

          Eric Gonzalez, Acting District Attorney, Brooklyn, NY (Leonard Joblove and Joyce Slevin of counsel), for respondent.

          RUTH C. BALKIN, J.P. JOSEPH J. MALTESE BETSY BARROS FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Kings County (Chun, J.), rendered January 11, 2013, convicting him of murder in the second degree and attempted assault in the first degree, upon a jury verdict, and imposing sentence.

         ORDERED that the judgment is affirmed.

         At approximately 2:15 a.m. on September 30, 2010, the defendant and his wife were patrons of a bar in Prospect Heights, Brooklyn. They were conversing with friends and allowing their dog to play in a fenced area outside the bar with a dog owned by Chai Eun Hillman, a patron and off-duty bartender. The dogs's leashes became tangled, and the defendant and his wife had a difficult time unraveling them. When Hillman, who was visibly intoxicated, tried to help untangle the leashes, he touched the defendant's wife's arm and allegedly said something rude to her. This resulted in an argument between the defendant and Hillman, which quickly escalated into a physical altercation. During the altercation, the defendant, wielding a knife with a four-inch blade, slashed Daniel Hultquist, an off-duty bartender, who was trying to calm the defendant. Hillman charged at the defendant, the two men grappled, and the defendant eventually stabbed Hillman in the torso. Hillman later died at the hospital from the stab wounds.

         The defendant fled the scene, but he was quickly apprehended by the police and identified by other patrons of the bar as the man who stabbed Hillman. The defendant was charged, with, inter alia, murder in the second degree.

         At trial, the defendant testified on his own behalf and he also presented testimony from his wife and a bar patron who was present before the altercation. The defendant did not deny that he took out a knife during the altercation or that he stabbed Hillman. Among other things, the defendant testified that he knew Hillman from the bar and the neighborhood, he knew that Hillman practiced martial arts, and he saw Hillman punch someone in the face at a different bar about six weeks prior to this incident. The defendant testified that Hillman punched him in the face as he was trying to walk away from the fight, and he knew that he would not be able to fight Hillman because of Hillman's martial arts skills. The defendant also testified that he used the knife because he was afraid that Hillman was going to hurt him.

         At the charge conference, the Supreme Court stated that murder in the second degree would be submitted to the jury with respect to the death of Hillman. Defense counsel requested that the court also submit the lesser-included offenses of manslaughter in the first degree and manslaughter in the second degree. The People objected to a manslaughter in the second degree charge. The court ruled that it would submit manslaughter in the first and second degrees "in the alternative, " observing, "[t]here is some testimony from the defendant that he was intoxicated and testimony from others that he was drinking. It may add credence to a view that [the defendant's] act may have been reckless."

         With respect to the other victim, Hultquist, the parties agreed with the Supreme Court's determination to submit attempted assault in the first degree and, in the alternative, attempted assault in the second degree.

         Thereafter, defense counsel requested a justification charge with respect to the counts concerning Hillman's death, but not the counts pertaining to Hultquist. Over the People's objection, the Supreme Court agreed to give a justification charge with respect to Hillman, noting that the defendant testified that he was afraid.

         The Supreme Court asked defense counsel whether the defendant sought an intoxication charge for "possibly negating the element of intent, " to which defense counsel ...


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