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Bayman beats bat-brawl rap
Conviction of clammer over turned due to error in use-of-force charges

By DAVID AMBRO, The Observer
An East Northport clammer convicted of beating
another bayman with a baseball bat—a wooden
Louisville Slugger—has had the verdict overturned
on appeal because the jury was not advised of a
person’s right to use deadly force in self defense
when they are victims of a burglary.
While they were clamming at the mouth of
Huntington Bay and the Long Island Sound on the
morning of October 17, 2006, baymen Dennis Hurley,
30, and Race Burgess, 56, both of East Northport,
became embroiled in a violent territorial dispute.
Mr. Hurley had a deck hand on his boat, and there
were two other clammers working nearby.
Mr. Burgess began yelling profanities at Mr.
Hurley, telling him to get away from his area. Mr.
Burgess then backed his boat into Mr. Hurley’s
boat. Mr. Hurley responded by smashing the rakes
on Mr. Burgess’s boat with a baseball bat. Enraged,
Mr. Burgess then threatened to kill Mr. Hurley, and
then jumped onto his boat with a raised fist, and
attempted to hit Mr. Hurley.
Before Mr. Burgess could strike a blow, Mr. Hurley
hit him with the bat. Mr. Burgess then lunged at Mr.
Hurley, who responded with a second blow with the
bat. Mr. Burgess lunged at Mr. Hurley again, who
responded with a third and final blow with the bat.
This time Mr. Burgess retreated and drove to the
United States Coast Guard Station at Eaton’s Neck.
He suffered a fractured scull and required stitches
to close a head wound.
According to legal papers in the case, witnesses
testified that Mr. Hurley did not invite Mr. Burgess
onto his boat or challenge him to come aboard. Mr.
Hurley testified that when Mr. Burgess come onto
his boat he was fearful that he could be thrown
overboard and he cannot swim.
After the incident, Mr. Hurley
also went to the Coast Guard
Station, where he was subsequently
arrested and charged with assault
with intent to cause injury with a
weapon. December 8, 2006, after
an investigation, three additional
assault charges were added.
Represented by Central Islip attorney
Michael Brown, Mr. Hurley pleaded
not guilty and took the case to trial,
where he was convicted of one of
the four counts, assault: recklessly
causing physical injury.
He was sentenced April 14, 2008 by
the trial judge, Dennis Cohen, to 30
days in Suffolk County jail and three
years probation. The sentenced was
executed June 19, 2008, but after
Mr. Hurley spent five days in jail Mr.
Brown obtained a stay of the sentence
pending an appeal of the verdict to
the State Supreme Court Appellate
On appeal, Mr. Brown argued that
Judge Cohen had an obligation after
the trial to instruct the jury about
Mr. Hurley’s rights to self defense.
According to Mr. Brown, the judge
instructed the jury about the right
of self defense, but not about the
right to use deadly force during the
commission of a burglary.
According to Mr. Brown, under New
York State law, once Mr. Burgess
jumped onto Mr. Hurley’s boat, which
is his place of business, it constituted
a burglary in progress at an occupied
location. Mr. Brown said that under
those circumstances, Mr. Hurley has
a right to use deadly force in his own
In a four-page decision handed down
June 29, 2009, the Appellate Division
agreed with Mr. Brown. “[Mr. Hurley’s]
version of events demonstrates his
reasonable belief that deadly physical
force was necessary to prevent
or terminate the commission, or
attempted commission, of a burglary
of an occupied building, since it
was alleged that [Mr. Burgess] had
attempted to enter [Mr. Hurley’s]
occupied commercial fishing boat…
without permission, to commit a crime
therein, to wit, assault [Mr. Hurley],”
says the Appellate Division decision.
“Consequently, the trial court
should have provided the jury with a
justification charge pursuant to Penal
Law Section 35.20(3), and committed
reversible error in failing to do so.”
“Accordingly,” says the unanimous
four-judge appellate division decision,
“the judgment of conviction is reversed
and a new trial is ordered.”
Based on the appellate division
decision, State Supreme Court Judge
Madalion Fitzgibbon vacated the
sentence. Mr. Hurley was due back in
court Thursday, September 1. During
an interview at Suffolk County Court
in Riverhead Monday, July 27, Mr.
Brown said that he never tries the
same case twice, therefore, he has
referred Mr. Hurley to obtain a new
“Because the judge would not charge
the applicable law, I knew from that
point it was a good case for appeal,”
Mr. Brown said. “In burglary situations
you can use deadly physical force to
prevent a burglary, plain and simple.
The judge did instruct the jury about
the right to self defense, but he left out
the aspect of deadly physical force in a
burglary situation.”
Mr. Brown said with its June 29
decision the appellate division decision
got it right. “The decision was right on
point. It was everything that I argued
to the trial judge.”