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Karin R. Vandevenne, for respondent.
David Blair-Loy, for defendant-appellant.
Before MILONAS, J.P., and WALLACH, KUPFERMAN, TOM and ANDRIAS, JJ.
MEMORANDUM DECISION.
Judgment, Supreme Court, Bronx County (Frank Torres, J.), rendered August 24, 1993, convicting defendant, after jury trial, of assault in the first degree and sentencing him to a term of 1 1/2 to 4 1/2 years imprisonment, unanimously reversed, on the law, and the matter remanded for new trial.
Defendant asserted that when the inebriated victim used a knife to facilitate a sexual assault upon a woman in the apartment, defendant grabbed the knife and stabbed him. This appeal focuses on two elements of the trial court's instructions to the jury, both the subject of timely objection.
On the question of criminal intent, the court charged that "actions speak louder than words... A person is presumed to cause what he engages in doing. A person is presumed to cause and to do what he is doing [sic] to do intentionally." Determination of intent lies within the province of the jury; the court's instruction improperly shifted the burden of persuasion on this crucial element of criminal liability, thus denying defendant a fair trial (Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39).
The trial court further erred in refusing to go beyond a general charge of justification and give the more specific instruction where deadly physical force was assertedly in
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response to a reasonable belief that the victim was "attempting to commit a .... forcible rape" (Penal Law § 35.15[2][b] ). The court's general charge did not encompass the specific reference to forcible rape. As counsel noted in pursuing his objection, "[H]ow can [the jury] decide something if they are not instructed on the appropriate law?" Viewing the conflicting testimony most favorably toward defendant, he was entitled to the specific charge, since, on a reasonable view of the evidence, the jury could have found that his actions were justified; failure to charge as requested amounts to reversible error under these circumstances (People v. Padgett, 60 N.Y.2d 142, 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795).