The PEOPLE of the State of New York, Respondent,
SULLIVAN, Justice Presiding.
Defendant was convicted, after a jury trial, of attempted murder in the second degree as a result of a stabbing that occurred in the aftermath of an argument between friends outside a social club.
The People's evidence showed that on the evening of July 26, 1988 Osman Nur Hussein, who, earlier that day, had been drinking in Morningside Park with fellow Somalians, defendant Maik Dahir Hagi and Hassan Mohammed Ali, left a social club frequented by Somalians at 148 Street and St. Nicholas Avenue and found defendant yelling and cursing at Ali outside of the Somali social club next door, to which the latter two had repaired several hours earlier after they left [p. 207] the park. Khaire Abdillah, a Somali-born 22-year old, was also standing outside the club next door, as was Adawi Mohammed.
Hussein walked over to the group and asked what had happened. Defendant responded by cursing at Hussein and telling him, "It's none of your business. Get out of my way." When Hussein took umbrage at these remarks, defendant said that he would "cut" him and, to prove the point, reached into his pocket and pulled out a knife. Ali, who had not, at least until then, been paying attention to the exchange, noticed that Hussein was empty-handed.
Wielding the knife, which had a three- or four-inch blade, defendant came at Hussein, who stepped back and, using a "karate-type" kick, tried to knock the knife away. When defendant moved his hand, thereby avoiding the kick, Hussein turned and headed toward a nearby subway entrance. His walk turned to a run, however, when he heard shouted warnings that defendant was following him with the knife. Defendant, knife in hand, caught up with Hussein and chased him around a trash can, shouting, "I'm going to kill you." Retreating, Hussein picked up the trash can and threw it, hitting defendant in the head and knocking him to the ground. The force of the blow caused the blade of the knife to cut into defendant's hand.
Thinking that defendant was unconscious, Hussein left, walking in the direction of the subway entrance. Again he heard shouting, warning him of defendant's approach. Hussein tried to run; defendant, however, was right behind him. Hussein turned and, as he did so, slipped and fell. As he was falling, defendant stabbed him on the left side of the abdomen, about two or three inches above the waist. Hussein could feel the knife go "all the way in." Defendant kneeled over him and stabbed him again, on the left side of his chest just under the nipple. As Hussein struggled to free himself, defendant stabbed him two more times. When Hussein pleaded with him to stop, defendant responded, "I don't care, I'm going to kill you."
Hussein eventually succeeded in pushing defendant off of him and was helped by a bystander into the subway station as defendant, bleeding, but no longer holding the knife, ran off. Before departing by ambulance for the hospital, Hussein told a detective that "Adam" had "cut" him in a "fight". Defendant was arrested later that evening. Although the area [p. 208] around the subway station was searched, the knife used in the incident was never recovered.
Hussein sustained two three-centimeter wounds, one located between the ribs, the other on the left side of his abdomen just below the navel. With respect to the former, the knife penetrated the lung and punctured the diaphragm, causing extensive bleeding into the abdominal cavity. Surgery was required.
Several weeks before trial, after Ali had testified at a pre-trial hearing, he met defendant, who accused him of being "a witness against [him]". Defendant told Ali, "[S]ee what I'm going to do to you; this is going to be over very soon." Thereafter, whenever defendant saw Ali, he repeated the threat.
Defendant, known to his friends as Adam, testified that he spent the evening of July 26, 1988 with Hussein at a Somali social club eating, drinking and talking. Around 8:30 or 9:00 p.m., they were joined by Ali, who, at some point, told Hussein that it was defendant who had been spreading the "story" that, one week earlier, he and Hussein had taken money from Mohammed Shech, who was drunk and asleep on a park bench. Hearing this, Hussein threatened to kill defendant. Defendant, Hussein and Ali were then asked by the club owner to leave. Outside, some Somalians warned defendant that Hussein was a killer.
As defendant walked away, Adawi yelled, "watch out". Defendant turned and saw Hussein throwing a trash can at him. After being struck and knocked to the ground, defendant got up and ran. Hussein, now holding a knife, renewed the chase. As Hussein approached, defendant reached out and "caught the blade", cutting his hand. The two men struggled over the knife and fell to the ground. As they "roll[ed] several times in the fall," Hussein was pushing the knife toward defendant, who, in turn, was pushing the knife toward Hussein. Defendant did not stab Hussein, although he believed the knife went into Hussein's body twice after they both had fallen. At the approach of a police officer, Hussein, who had the knife, ran away. Defendant denied ever speaking to Ali after July 26th.
Defendant does not challenge the sufficiency of the People's proof, which we find strong and persuasive. Hussein's account of defendant's attack, credible and consistent, was sufficient by itself to sustain the jury's finding that defendant [p. 209] had stabbed him, intending to kill. In addition, Khaire Abdillah, who had never seen either defendant or Hussein before this incident, testified that he had been standing in front of the social club when defendant took a knife out of his pocket, held it at his side and walked toward Hussein. Abdillah also confirmed that Hussein, before being stabbed several times, attempted to fend off defendant's attack by trying to kick the knife away and then knocking defendant to the ground with a trash can. Ali further corroborated Hussein's testimony. Finally, the medical testimony with respect to the depth and severity of Hussein's wounds provided graphic evidence of defendant's intent to kill. While the People's witness, Yussef Mohammed, offered a somewhat different version, testifying that Hussein first threatened to kill defendant during an argument in the social club and that defendant was not holding a knife when Hussein threw the trash can at him, this evidence did not impugn the force of the People's proof. Mohammed admitted that he had not seen the stabbing. More importantly, given his admission that he had feared defendant in the past and had previously obtained an order of protection after defendant had threatened him with a knife, the jury had good reason to question his account. On the question of a threat, the jury also heard Officer Torres testify that, during the trial, he had seen defendant and Mohammed standing together and talking near the witnesses' room.
Although defendant does not question the sufficiency of the People's proof, he does challenge the adequacy of the court's charge, claiming it undermined his justification defense by failing to instruct the jury that the reasonableness of his conduct must be assessed in light of his individual circumstances and situation. Defendant also complains that the prosecutor's conduct deprived him of a fair trial. We find his claims to be lacking in merit and, in some instances, unpreserved as a matter of law and, accordingly, affirm.
At trial, defendant submitted a proposed charge on the defense of justification which would have asked the jurors to determine whether, "in light of all the circumstances," he was reasonable in his belief that deadly physical force was necessary. As requested, the charge would explain that these "circumstances" included "any relevant knowledge the defendant, Maik Hagi, had about [Hussein]," "the physical attributes of [the] persons involved, including the defendant, Maik Hagi" and "any prior experiences [defendant] had which could provide a reasonable basis for a belief that Osman Hussein's [p. 210] intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances." Although the court did instruct the jury on the defense of justification, it declined to give the requested charge. Defendant excepted, arguing that the court's charge failed to specify "all the factors, circumstances and experience" that the jury should consider in determining the reasonableness of his belief that he was in imminent danger.
It is now well settled that the defense of justification contains a subjective as well as objective component. (People v. Goetz, 68 N.Y.2d 96, 112-115, 506 N.Y.S.2d 18, 497 N.E.2d 41; People v. Wesley, 76 N.Y.2d 555, 559, 561 N.Y.S.2d 707, 563 N.E.2d 21.) Under Penal Law § 35.15(2)(a), a person is justified in using deadly force against another if he or she "reasonably believes" that the other person is about to use such force against him. Thus, the jury must engage in a two-step analysis. It must first determine whether the defendant actually believed that his life was in imminent danger (People v. Goetz, supra, 68 N.Y.2d at 113, 506 N.Y.S.2d 18, 497 N.E.2d 41) and then ascertain whether the defendant's perceptions concerning the need for the use of such force were reasonable (id. at 114-115, 506 N.Y.S.2d 18, 497 N.E.2d 41). It is clear, however, that a jury's "reasonableness" exploration is not purely an objective one. The determination of the "reasonableness" of a defendant's belief must be based on the "circumstances" facing the defendant or his "situation." (Id. at 114, 506 N.Y.S.2d 18, 497 N.E.2d 41; People v. Wesley, supra, 76 N.Y.2d at 559, 561 N.Y.S.2d 707, 563 N.E.2d 21.) These circumstances, which are not limited to the physical movements of the defendant and complainant during the altercation, involve a host of subjective factors, including any relevant knowledge that the defendant has concerning the complainant (id.; People v. Goetz, 68 N.Y.2d supra, at 114, 506 N.Y.S.2d 18, 497 N.E.2d 41), the physical attributes of the defendant and the complainant, the complainant's reputation for violence or assaultive behavior and any specific prior acts of violence on his part, if known to the defendant (People v. Goetz, supra, at 113-114, 506 N.Y.S.2d 18, 497 N.E.2d 41). We find, defendant's claims notwithstanding, that the trial court's charge directed the jurors to apply the proper standard to the facts of this case.
In explaining the defense of justification, the court instructed the jurors, pursuant to Penal Law § 35.15, that "a person may ... use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself ... from what he reasonably believes to be the use [or] imminent use of unlawful physical force by such other person...." Later, the court told the jury that, in determining the reasonableness of defendant's belief, [p. 211] "it is important for you to remember that reasonableness is not based upon what you or the defendant should have done under the circumstances. The basic test for reasonableness is what an ordinary prudent man would have done under the circumstances. The same is true with the degree of force used. The test is what amount of force a reasonably prudent man would have exerted under the circumstances of this case as you find them to be." Thus, in directing the jury to consider "the circumstances of this case as you find them to be", the court clearly directed the jurors to take into account defendant's particular circumstances.
Given the paucity of evidence as to defendant's knowledge of Hussein, the court was not obliged to elaborate any further. Virtually non-existent, the evidence on this point was limited to the fact that Hussein was taller and heavier than defendant, a circumstance which the jury could obviously observe for itself, and that when, according to defendant, he, Hussein and Ali were asked to leave the social club, other Somalians warned defendant that Hussein was a killer. There is no evidence that defendant knew that Hussein was karate trained so that even this factor, which defendant cites, is of no relevance. Thus, there was no need to recount these limited circumstances, so straightforward and so obviously relevant to the reasonableness of defendant's belief that he was in imminent danger. A juror would surely appreciate that the "ordinary person" would feel a greater threat from a physically bigger person or one described as a killer. A juror would not need a detailed instruction to remind them about such "subjective factors" or to assess properly their significance.
More significantly, however, further elaboration about the "subjective" factors listed in defendant's proposed charge would, in any event, have been unnecessary in this case since these factors could not reasonably have played any role in the jurors' assessment of the evidence. According to defendant, Hussein, after threatening to kill him, struck him with a trash can and, wielding a knife, chased him. This testimony, if credited, would have, even under a standard wholly objective, justified the use of deadly physical force since it is certainly objectively reasonable to believe that a knife-wielder who threatens to kill poses an imminent threat of unlawful physical force. Under such circumstances, what defendant knew about Hussein, had there even been anything to speak of, would have been utterly beside the point; if the jury credited defendant's version, it had no need to resort to any "subjective" [p. 212] factors in order to justify his conduct. Nor was there anything in the People's presentation of the case, upon which the jury could fasten its attention, suggesting any relevant subjective factors justifying defendant's conduct. Thus, reminding the jurors about defendant's prior relationship with Hussein or his physical attributes could not reasonably have affected the outcome of the case.
Indeed, in light of defendant's trial position, such a charge would have been out of place since, as noted, he categorically denied stabbing Hussein at all; rather, he maintained that after threatening to kill him, Hussein had hit him with a trash can, chased him with a knife and then gotten "cut" accidentally during a struggle over the knife. Significantly, in his summation, defendant's attorney made only a passing reference to the defense of justification and then only as a preface to his remarks about the People's burden of proof and the reasonable doubt standard. Under such circumstances, any detailed discussion of the subjective aspect of the justification defense, even if warranted, would have been surplusage. The function of a charge is to correlate applicable legal principles to a body of evidence for the guidance of a jury, not to intone abstract legal propositions. Thus, we conclude that the court's charge adequately conveyed the requisite principles of the justification defense.
* * *
We have examined defendant's other contentions and find that they are without merit.
Accordingly, the judgment of the Supreme Court, New York County
(Clifford A. Scott, J.), rendered June 26, 1989, convicting defendant of
attempted murder in the second degree and sentencing him to an indeterminate
term of imprisonment of from seven to twenty-four years, should be affirmed.