Friday, December 23, 2005

I Give You . . .

the two substantive pro-defendant reversals from the Fourth Department's latest term.

People v Skardinski, __ AD3d __ [available here]
People v Fagan, __ AD3d __ [available here]

Each opinion reaches a good result, but neither breaks any new ground. In People v Skardinski, the Fourth Department found the DWI defendant's purported "consent" to a blood test was not voluntary where, 1) she was very badly injured from the accident, 2) she was receiving copious amounts of morphine, 3) the State Trooper lied to her about the consequences of withholding consent, and 4) "defendant signed the consent for at an irregular angle across the title of the document rather than on the designated signature line." (People v Skardinski, __ AD3d at __.) The Fourth Department's opinion comes to the unremarkable conclusion that any consent obtained from a severely injured, drugged up defendant who has been lied to by the police is not voluntary. The only question raised by this opinion is how the trial court found consent on those facts in the first place.

The other term's reversal is People v Fagan, where the Fourth Department reversed because "County Court erred in refusing to charge the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (People v Fagan, __ AD3d ___.) The facts of Fagan read like a real-life match of paper-rocks-scissors:

When viewed in a light most favorable to defendant, the evidence herein establishes that the victim threatened to kill defendant and then chased defendant into defendant's house while carrying a hatchet. When the victim fell once inside the house and dropped the hatchet, defendant picked up the hatchet. The victim ran outside and then reentered the house, swinging a two-by-four at defendant.

(Id. at __.)

On those facts, the Court concluded "that there is a reasonable view of the evidence that the victim entered and reamained inside defendant's house with the intent to commit a crime, i.e. an assault. The victim's 'violent conduct and numerous threats to kill defendant . . . support the reasonableness of defendant's belief that deadly physical force was necessary to prevent or terminate a burglary.' The court thus erred in failing to instruct the jury on the justifiable use of deadly physical force to prevent or terminate a burglary." (Id..) The lesson of Fagan is a practicle one: a machete will beat a two-by-four every time.