Opinion
No. KA 06-00536.
November 9, 2007.
Appeal from a judgment of the Ontario County Court (Frederick G. Reed, J.), rendered February 2, 2006. The judgment convicted defendant, upon a jury verdict, of criminal possession of stolen property in the third degree, aggravated unlicensed operation of a motor vehicle in the second degree and unauthorized use of a vehicle in the second degree.
ROBERT TUCKER, CANANDAIGUA, FOR DEFENDANT-APPELLANT.
R. MICHAEL TANTILLO, DISTRICT ATTORNEY, CANANDAIGUA (BRIAN D. DENNIS OF COUNSEL), FOR RESPONDENT.
Present: Scudder, P.J., Hurlbutt, Fahey, Green and Pine, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law, a new trial is granted on counts one and two of the indictment and count three of the indictment is dismissed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of criminal possession of stolen property in the third degree (Penal Law § 165.50), unauthorized use of a vehicle in the second degree (§ 165.06) and aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511 [a] [iv]). The conviction arises out of defendant's operation of a stolen vehicle behind an area consisting of a convenience store/gas station, a lot for overnight truck parking, a motel and a small restaurant. Defendant testified that he and another passenger in the vehicle were arguing and subsequently engaged in a fistfight outside the vehicle. When a group of men gathered around the fistfight, defendant became fearful that he would be attacked by the group, where-upon he entered the vehicle and drove from the scene.
County Court erred in denying defendant's request for a justification charge. Considering the evidence in the light most favorable to defendant, we conclude that there is a reasonable view of the evidence that defendant's conduct was justified "[u]nder the `choice of evils' theory of Penal Law § 35.05 (2)" as a means to avoid an imminent attack ( People v Maker, 79 NY2d 978, 981; see People v Padgett, 60 NY2d 142, 145-146; People v Newman, 3 Misc 3d 361, 363). We therefore reverse the judgment and grant a new trial on counts one and two of the indictment.
Count three of the indictment, charging aggravated unlicensed operation of a motor vehicle in the second degree, must be dismissed. The evidence, viewed in the light most favorable to the People ( see People v Contes, 60 NY2d 620, 621), is legally insufficient to establish that defendant operated the vehicle "upon a public highway" (Vehicle and Traffic Law § 511 [a]; see People v Thew, 44 NY2d 681, 682; People v Ostermeier, 118 Misc 2d 68, 70-71). In view of our decision, we do not address defendant's remaining contentions.