No. 105 People v Frank LaPetina

This case arises from a fight between families over a blocked driveway in Ozone Park, Queens, in September 2002. Members of the Persaud family complained that defendant Frank LaPetina's daughter, Justine, blocked their driveway with her car when she stopped to visit her boyfriend, who
lived next door. The dispute led to threats and punches by members of the two households, who
offered conflicting testimony. LaPetina testified that he drove to the scene after receiving a elephone
call alerting him that Justine was in danger. Upon arriving, he said, he asked a group of people standing outside if they knew where she was, and someone pointed toward the Persaud home; at the same time, he heard a scream from inside. LaPetina went into the house and exchanged blows with or, according to other testimony, simply assaulted several members of the Persaud family. He admitted he entered the home without permission, but said he did so only because he believed, albeit erroneously, that Justine was inside and in danger.

At trial, Supreme Court denied LaPetina's request that it instruct the jury on justification as a
defense to burglary and assault. He was convicted of first degree burglary, third degree assault (two counts), and endangering the welfare of a child.

The Appellate Division, Second Department held that a justification charge should have been given on the assault counts, vacated those convictions and remitted for a new trial. It also reduced his
burglary conviction from first degree to second degree, but it ruled no justification charge was required. A reasonable view of the evidence would have permitted the jury to conclude that LaPetina's conduct was justified, based on his testimony that he believed Justine was in danger, the court said."Nevertheless, on the peculiar facts here, the Supreme Court correctly denied the requested charge in connection with the burglary charge. The jury was required ... to determine whether the People established, beyond a reasonable doubt, that the defendant entered the Persaud residence with the intent to commit a crime therein (see Penal Law § 140.30). If the defendant had such intent, however, the defendant could not have entered the residence on the basis of his belief that Justine was being held inside and required assistance."

LaPetina argues, in part, that the Appellate Division "took an unduly narrow view of the law
regarding justification" when it ruled his conduct might reasonably be found to have been justified with respect to the underlying assault counts, but not the burglary count. He says the decision "would preclude criminal defendants charged with burglary from raising a defense of justification under any circumstances, even when the underlying conduct was justified. The flaw in the Appellate Division's decision was its undue reliance on the fact that burglary has as an element that the defendant must intend to commit a crime at the time he entered a dwelling, from which the court reasoned that the jury's guilty verdict on the burglary count indicates it necessarily found that LaPetina had criminal intent, and intent to commit a crime cannot be justified."