Full Opinion (html_with_citations)

State of New York                                              MEMORANDUM
Court of Appeals                                          This memorandum is uncorrected and subject to
                                                        revision before publication in the New York Reports.




 No. 109 SSM 17
 The People &c.,
         Appellant,
      v.
 Michael Heiserman,
         Respondent.




 Submitted by Jennifer M. Hollis, for appellant.
 Submitted by G. Scott Walling, for respondent.




 MEMORANDUM:

        The order of the Appellate Division should be reversed and the case remitted to the

 Appellate Division for consideration of the facts and issues raised but not determined on

 the appeal to that Court.




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       Defendant was charged with assault in the second degree (Penal Law § 120.05 [7])

based on allegations that while being processed for an arrest at the Franklin County Jail,

he struck a police sergeant. The People’s witnesses testified at trial that after being frisked,

defendant was directed to remove his footwear, a command given to all those in custody at

the jail so that footwear could be searched for weapons and contraband. Defendant refused

to remove his footwear despite multiple orders to do so. After the sergeant called for

backup, he specifically warned defendant that he would pepper spray defendant if

defendant did not remove his footwear. Defendant continued to refuse, and the sergeant

sprayed him in the face. Five seconds after he was sprayed, defendant charged at the

sergeant and punched him in the head, after which defendant was subdued by other officers.

Video surveillance of the incident corroborated the testimony of the officers. Defendant

was convicted as charged.

       On appeal, the Appellate Division reversed, holding that the trial court erred in

refusing to grant defendant’s request for a justification charge (
204 AD3d 1249
 [3d Dept

2022]). The Appellate Division concluded that, viewing the evidence in the light most

favorable to defendant, there was a “reasonable view of the evidence that the use of the

pepper spray constituted excessive force in this scenario” (id. at 1251). Two Justices

dissented, and a dissenting Justice granted the People leave to appeal to this Court.

       “A trial court must charge the factfinder on the defense of justification ‘whenever

there is evidence to support it’ ” (People v Petty,
7 NY3d 277, 284
 [2006], quoting People

v McManus,
67 NY2d 541, 549
 [1986]). The court must view the evidence in the light

most favorable to the defendant, and if there is “any reasonable view of the evidence [that]

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                                           -3-                                     SSM 17

would permit the factfinder to conclude that the defendant’s conduct was justified,” the

charge must be given (Petty,
7 NY3d at 284
). “As a corollary, when no reasonable view

of the evidence would support a finding of [justification], the court is under no obligation

to submit the question to the jury” (People v Watts,
57 NY2d 299, 301
 [1982]).

       “[A] citizen may use reasonable force in self-defense where the force exerted by the

police . . . is excessive” and therefore unlawful (People v Stevenson,
31 NY2d 108, 112

[1972]; see Penal Law § 35.15 [1]). Here, however, viewing the evidence in the light most

favorable to defendant, there is no reasonable view of the evidence that the sergeant’s use

of pepper spray was excessive or otherwise unlawful. The trial evidence was that defendant

was given a lawful command to remove his footwear, that he was given that verbal

command several times yet persisted in his refusal, and that he was specifically warned

that he would be pepper sprayed if he did not comply. The officers further testified that

the use of pepper spray was considered a “minimal” use of force compared to using “hands

on” force to remove the footwear. Defendant’s contention that the force exerted was

unlawful because the sergeant’s use of pepper spray was inconsistent with facility policy

is without merit. No reasonable factfinder could conclude on this record that defendant

reasonably believed that the use of force was necessary to defend himself from the use of

unlawful physical force (see Penal Law § 35.15; cf. Stevenson,
31 NY2d at 112-113
).




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                                          -4-                                    SSM 17


On review of submissions pursuant to section 500.11 of the Rules, order reversed and case
remitted to the Appellate Division, Third Department, for consideration of the facts and
issues raised but not determined on appeal to that Court, in a memorandum.
Acting Chief Judge Cannataro and Judges Rivera, Garcia, Wilson, Singas and Troutman
concur.



Decided December 13, 2022




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