[112] [113] [114] [115] Frances Gallagher, The Legal Aid Society, New York, NY, for Appellant.

Rona Feinberg, Assistant District Attorney (Morrie I. Kleinbart, Assistant District Attorney, of counsel), for Robert M. Morgenthau, District Attorney, New York County, New York, NY, for Appellee.

Before LEVAL, SACK, and SOTOMAYOR, Circuit Judges.

LEVAL, Circuit Judge:

This appeal from the denial of a writ of habeas corpus under 28 U.S.C. § 2254 by the United States District Court for the [116] Southern District of New York (Berman, J.) raises the question whether a trial judge's denial of a jury instruction on justification for the use of deadly force requires that the petitioner's convictions for manslaughter and second-degree criminal possession of a weapon be set aside. At his trial for murder, petitioner credibly testified that he killed to protect himself from a man who had assaulted, raped, and threatened to kill him. The New York Supreme Court, New York County, ruled that the petitioner was not entitled to a jury instruction on justification because he had failed to retreat to avoid the danger of a confrontation when he had an earlier opportunity to do so. In an opinion issued after Davis's trial, In the Matter of Y.K., 87 N.Y.2d 430, 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313 (1996), the New York Court of Appeals clarified that the trial judge relied on a mistaken standard in ruling that petitioner had forfeited the justification defense.

On the evidence, taken in the light most favorable to the petitioner as New York law requires, the jury could have found that (a) petitioner used deadly force because he reasonably believed this was necessary in his defense as the other person was about to use deadly force against him; (b) at the earlier time when petitioner could have withdrawn in safety, there was as yet no imminent threat of deadly force against him; and (c) when the time came that petitioner used deadly force in his defense, he reasonably believed he could no longer retreat in safety. Petitioner was accordingly entitled under New York law to a jury instruction on the defense of justification. The court's refusal to instruct the jury on justification deprived petitioner of the opportunity to have his defense to the homicide charge considered by the jury. Because it was a credible defense — one which the jury might well have accepted — the error had a profound effect on the trial, and resulted in a denial of due process under the test of Cupp v. Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). We further find that the requirements of 28 U.S.C. § 2254(d) are satisfied and therefore remand with instructions to grant the writ with respect to the petitioner's manslaughter conviction. The denial of the writ is affirmed as to the petitioner's conviction for illegal weapon possession.

BACKGROUND

On June 20, 1992, petitioner Ronald Davis, a twenty-three-year-old numbers runner in Harlem, fatally shot Eddie Ray Leonard, also known as "Bubblegum." Bubblegum, who was six feet tall, weighed 435 pounds, and was twenty years older than Davis, had previously robbed Davis three times at gunpoint, raped him, and recently threatened to kill him when he next saw him. Given this background, together with Bubblegum's actions at the time of their final encounter on June 20, 1992, it was entirely reasonable for Davis to believe that Bubblegum was about to assault him with deadly force.

The history of the relationship between Davis and Bubblegum is as follows. The evidence is presented in the light most favorable to Davis, as New York law requires it to be in evaluating whether Davis was entitled to a charge on justification. See People v. McManus, 67 N.Y.2d 541, 549, 505 N.Y.S.2d 43, 496 N.E.2d 202 (1986); People v. Magliato, 68 N.Y.2d 24, 29, 505 N.Y.S.2d 836, 496 N.E.2d 856 (1986); People v. Torre, 42 N.Y.2d 1036, 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759 (1977). Nevertheless, we note that Davis's testimony was in almost all respects uncontested, and in several important respects corroborated.

[117] Davis had known Bubblegum's violent reputation for a long time. He had tried to avoid Bubblegum because Bubblegum had a reputation for being "a bad guy.... Everybody knows him as a stick up kid, he is dangerous." Davis had heard that he

beat a lady with a chain and robbed her. And there was an old lady and old man he had robbed and he had stabbed the old man. He had robbed the [drug] dealers that were on the street.... They had their girlfriend with him. He had tied him up and raped the girl. He had beaten somebody up bad around his block and he had to go to the hospital. He robbed and raped a lady in his building.

Davis knew that Bubblegum used "[d]ust [phencyclidine or PCP], cocaine and dope," and said that when Bubblegum was on drugs he "would get wild and violent and go on his missions ... sticking people up in the neighborhood."

James Bluitt, who lived in Bubblegum's building, testified that Bubblegum had broken a stick over his head and assaulted him, putting Bluitt in the hospital. Bluitt subsequently went to the police and obtained orders of protection against Bubblegum. Bluitt said Bubblegum had a reputation in the community for being vicious and violent, and for carrying a gun.

Davis was first robbed by Bubblegum when he was fifteen or sixteen years old. He described the incident as follows:

One morning, I was running the numbers and I got to 146th Street, I seen a friend named Gregory [Pearce], I was talking to him. Then this guy named CC .... come up to me. He is asking me questions that I couldn't answer. He kept talking to me. He pulled out the gun and made me go into the hallway.... After he forced me into the building, we got to look in the building, then I see Bubblegum picked up groceries and carried [them] into the building .... Then they made us go upstairs .... They had the guns to us.... Both of them had a gun.... [When we got upstairs] [t]hey went and took — they went in our pocket took the money we had and made us strip.... They said "Take off your clothes." ... CC had the gun on me.... [Bubblegum's gun was pointed] at Gregory. [Davis and Gregory took their clothes off and put them] [o]n the floor.... They kept demanding more money. They thought I had more money but I didn't have any more. Bubblegum said I was lying. He told CC to shoot us.... [CC] said, "We got the money, why shoot him?" Then they was arguing. Then they left down the stairs.

Gregory Pearce, the other victim, a store manager who did not have a criminal record, also testified to those events, corroborating Davis in all material respects.

Two or three years later when Davis was about eighteen, Bubblegum robbed Davis again. Davis was walking alone on 147th Street and Saint Nicholas Avenue in the evening as darkness arrived. He testified:

[A]s soon as I turned the corner on 147th Street, Bubblegum was there.... He grabbed me by my shirt and said, "Come here, come here, little bitch." He had a gun out. He went in my pocket.... [He was pointing the gun] towards my chest.... He took the money I had in my pocket.... [After taking the money he] told me to get the fuck out of here.

Davis did not report these incidents to the police. He believed the police would be unsympathetic to a numbers runner and would do little to protect him. Also, Davis feared that if he reported the incidents Bubblegum would retaliate. After the second robbery, whenever Davis saw [118] Bubblegum on the street, he hid. Bubblegum was later imprisoned for robbery, and Davis did not see him for a while.^[1]

In the spring of 1992, Bubblegum again robbed Davis at gunpoint, raped him, and threatened to kill him. Davis testified:

I was on 146th Street, 518, where I usually take the numbers. I was hanging out there, drinking coffee and I had a danish. It was early in the morning.... A tall guy comes up to me and he is asking me about drugs. Did I know where to get them from. I was telling him no, I don't know. You know what I am saying.... I didn't know that person.... He kept talking to me. I was trying to walk away from him and ignore him because once I told him, no, he still kept talking to me. Then he pulled out the gun and pushed me in the hallway. When I got to the back of the hallway that is when Bubblegum came in.... [Bubblegum] said, ["T]ake him upstairs.["] [Bubblegum had a gun, and] [t]he other guy had the gun to my back. They both led me upstairs.... [t]o the top landing of the building. When it is the top landing, as soon as you step outside the door, you're outside on the roof.... They went into my pocket.... He was going through my pocket. [Bubblegum] said[,] "I know you got more money." I didn't have any more money. He made me strip. He figured I had some money in my drawers.... [Bubblegum] kicked [Davis's clothes] into the corner.... Then he sent the guy downstairs, told him to go watch out.... When he left, Bubblegum hit me in my head with the gun.... After he hit me in my head I bent down. He took my head and slammed it into the wall.... That is when he did what he did to me.... That is when he raped me.... He stuck his penis in me ... I was bent down. I told you he held me against the wall.... I kept screaming, telling him "stop." I was in pain.... He said, "Shut the fuck up." He said he would treat me like one of the bitches. [Davis said he did not know how long the attack lasted, but it stopped] because somebody had opened the door downstairs and they had closed it.... I heard the door open and I heard it close. I started screaming even more, figuring somebody would come out.... I was saying "please stop." [Bubblegum was saying] ["]Shut the fuck up before I kill you.["] ... After he stopped he hit me again. I was on the floor. Then he was zipping up his pants. Then he tells me, next time he sees me he is going to kill me....

After Bubblegum left, Davis, who was bleeding, went home. Davis explained that did not report the rape because "it bothers me to talk about it.... I never told nobody, my mother, nobody." Davis then went away to Maryland for a few weeks, returning to New York on June 19, 1992, so that he could be with his family on his birthday, June 21.

On June 20, 1992, in the evening at about 9 p.m., Davis came out of a grocery store on the southwest corner of 146th Street and Amsterdam Avenue. As he talked there with a friend, he saw Bubblegum, on the same side of Amsterdam Avenue, a short distance down toward 145th Street. Bubblegum was then involved in a conversation with a man Davis did not recognize, and was kibitzing (or playing) a game of "chug-a-lug." This was the first time Davis has seen Bubblegum since the rape and death threat. Bubblegum looked in his direction, and made eye contact with Davis.

[119] Davis was frightened. He went around the corner to get a gun for his protection. Davis went west on 146th Street to an apartment known as "The Spot," at 518 West 146th Street, where he knew someone could give him a gun. Davis testified that he got the gun "[b]ecause last time he left me he told me he was going to kill me." Davis testified that he did not intend to "go after" Bubblegum. He "just got the gun for [his] protection" because he "wasn't going to let [Bubblegum] hurt [him] again."

Davis then returned to the corner of 146th Street and Amsterdam Avenue. At first, he did not see Bubblegum, but saw the stranger who had been with Bubblegum, standing to the south of him, closer to 145th Street. Davis was afraid of the stranger because Bubblegum had twice used accomplices to hold up and rob Davis. He then spotted Bubblegum up the block on the same (west) side of Amsterdam Avenue, closer to 147th Street.

In order to distance himself, Davis crossed to the east side of Amsterdam, intending to take refuge at the apartment of his friend Gregory Reid. Reid lived in a building just north of a take-out chicken store on the northeast corner of 146th Street and Amsterdam.^[2] Davis entered the vestibule and rang Reid's doorbell "[t]o get out of the street to get away from [Bubblegum]." No one answered the bell, and Davis could not get into the building without being buzzed in. Davis then looked out and saw that Bubblegum had followed him to the east side of Amsterdam and was coming his way, walking with a woman.

Davis came out of the building because he was afraid to be trapped in the vestibule. The stranger who had been with Bubblegum was now "right across the street" from Davis. Bubblegum was coming toward him from the direction of 147th Street. Davis "put [his] back against the wall right by the chicken place." Asked why he did not flee, either eastward on 146th Street or down Amsterdam toward 145th Street, Davis said that he was scared to turn his back. "I didn't want to get shot in my back. He [had] told me he was going to kill me." Davis characterized himself as "stuck." Bubblegum again made eye contact with Davis at a distance of fifteen to twenty feet. "[Bubblegum] was looking at me but was talking to [the woman]. As he got closer and closer he was looking, I am looking at him and the guy across the street — I was scared."

Bubblegum passed in front of Davis and continued a few more steps past him to the corner. When Bubblegum reached the corner, he began to turn back toward Davis, and reached with his hand toward his waist. The woman walking with him, Diane Ellen Symonette, a drug user and thief, had been trying to sell Bubblegum a telephone. She had seen Bubblegum come out of a drug spot on Amsterdam with his eyes "bugging out" and "popping out real sweats." She testified that Bubblegum "looked kind of nervous like shook up about something." Bubblegum said to her "there is something I have to take care of you know. I am going to take care of it and I still want the phone." As they arrived at the corner, just before turning, [120] Bubblegum said to her, "I have to hit this guy off."

Davis believed that Bubblegum, who in their three prior confrontations had carried a gun, was turning to shoot him. Stricken with panic and hoping to "beat [Bubblegum] to the draw," Davis ran out to his right behind Bubblegum and shot him several times in the back. Davis then ran away down 146th Street.

It turned out that Bubblegum was armed that day not with a gun but with a carpet knife. The medical examiner testified that he had various drugs in his system, including "a fair amount of phencyclidine" (PCP). The examiner further testified that a person under the influence of PCP is often violent.

Professor Ellen Treacy, a consultant in sexual abuse, assault and child development testified that rape victims often suffer from "rape trauma syndrome," which involves fear of the offender. The fear is especially pronounced where the attacker is known to the victim and where a weapon was used or threats were made.

I. The Jury Charge at Trial

Just before the summations were to begin, the trial judge announced that she did not believe the record supported a justification charge. Defense counsel protested that he had prepared his summation to rely on a justification defense and that the court had never previously indicated that it would not charge on the defense of justification. The trial judge summarized what she saw as the crucial question for the justification defense as follows:

[I]nstead of going away from ... where he knows the danger is ... he walked towards Amsterdam Avenue. . . . [W]hen he gets to Amsterdam Avenue and 146th Street he sees the deceased a block away on 147th street ... [H]e did not walk back to where he knew was a safe avenue.... [He] walked across the street to a building he couldn't get in because he knew the door would be locked and could only get in if someone answered the door and no one answered it.... [S]o my question is very simple .... If the defendant has a duty to retreat ... can he thereafter invoke self-defense by putting himself back in the same position with the gun at the ready? ... Instead of continuing to get away, he went back to where Bubblegum was minutes before.... [C]an ... the first clear opportunity to retreat with complete safety be ignored?

Essentially, the trial judge's view was that, once Davis had seen Bubblegum on Amsterdam Avenue, knowing of Bubblegum's past violence and his threat of future violence, he could not return with a gun to Amsterdam Avenue where Bubblegum was without violating the duty to retreat specified in N.Y. Penal Law § 35.15(2)(a) (McKinney 1998). Having failed to retreat when he had the opportunity, Davis was not entitled to raise the defense of justification.

The court refused to instruct the jury on justification and prohibited Davis's attorney from arguing justification in his summation. The judge did charge the jury on the partial defense of "extreme emotional disturbance," under N.Y. Penal Law §§ 125.20(2), 125.25(1)(a), which, if accepted by the jury, reduces murder to first-degree manslaughter. The jury accepted Davis's testimony with respect to his extreme emotional disturbance; it acquitted him of the murder charge, but convicted him of manslaughter in the first degree and criminal possession of a weapon in the second degree. He was sentenced to concurrent prison terms of seven to twenty-one years for manslaughter and five to fifteen years for gun possession.

[121] II. The Appeal

In the time between the trial and Davis's appeal to the Appellate Division, First Department, the New York Court of Appeals decided In the Matter of Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d 313. The Court of Appeals made clear in that decision that, for a defendant claiming justification in the use of deadly physical force under N.Y. Penal Law § 35.15(1), the duty to retreat does not arise until the point at which the defendant reasonably believes that deadly physical force against him is "imminent." Y.K., 87 N.Y.2d at 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313. After Y.K., the trial judge's reasoning — to the effect that Davis's duty to retreat barred him from returning to Amsterdam Avenue armed for his protection — could not stand. Accordingly, the Appellate Division, although it affirmed the conviction, did not adopt or even discuss the trial court's reasoning that Davis's return to Amsterdam Avenue with a gun precluded a defense of justification. See People v. Davis, 232 A.D.2d 209, 648 N.Y.S.2d 79 (1st Dep't 1996). Instead, the Appellate Division gave two new reasons why it considered the trial court's refusal to charge the jury on justification to be proper. The first was that Davis, having seen no gun on Bubblegum's person, had no reasonable basis for believing Bubblegum was about to use deadly physical force against him. See id. at 80. The second was that Davis had offered no convincing reason for his failure to retreat from the scene "at the time of the actual shooting." Id.^[3]

Following denial of leave to appeal to the Court of Appeals, see People v. Davis, 89 N.Y.2d 921, 654 N.Y.S.2d 723, 677 N.E.2d 295 (1996), Davis filed the present habeas corpus petition, raising the single claim that the trial court's refusal to instruct the jury on the defense of justification deprived him of his due process right to present his defense. The State opposed the petition both on procedural grounds and on the merits.

Magistrate Judge Andrew Peck found that the petition was not procedurally barred, but recommended that it be denied on the merits. See Davis v. Strack, No. 97 Civ. 5375(RMB)(AJP), 1999 WL 1565178 (S.D.N.Y. Apr. 13, 1999). Magistrate Judge Peck rejected the reasons given by the Appellate Division for affirming the conviction. He concluded the jury could have found that Davis reasonably believed Bubblegum was about to use deadly force, and that Davis had reasonably explained why he did not retreat at the time the shooting occurred. Magistrate Judge Peck agreed, however, with the trial judge's view that Davis's duty to retreat [122] arose when he first saw Bubblegum on Amsterdam Avenue, and that Davis therefore forfeited the defense of justification by returning to Amsterdam. See id. The district court (Berman, J.) adopted the magistrate judge's recommendations in all material respects. See Davis v. Strack, 1999 WL 1565178, No. 97 Civ. 5375(RMB)(AJP), slip op. (S.D.N.Y. Apr. 17, 2000). Finding the issue "deserving of appellate review," the court granted a certificate of appealability. Davis v. Strack, No. 97 Civ. 5375(RMB)(AJP), slip op. at 1 (S.D.N.Y. May 24, 2000).

On appeal Davis argues that the trial court's refusal to instruct the jury on the defense of justification deprived him of his due process right to a fair trial by preventing him from relying on a complete defense that was supported by credible evidence.

DISCUSSION

I. Was Davis's Constitutional Claim Fairly Presented to the State Courts?

The State first argues that Davis's federal due process claim was not fairly presented to the State courts, see Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), and that Davis's claim is therefore procedurally barred. While admitting that Davis cited the Fourteenth Amendment of the United States Constitution and mentioned "due process" in his state court brief to the Appellate Division, the State contends that these references were "pro forma" and ineffective because petitioner's argument was entirely devoted to state law.

Davis raised only one argument on his direct appeal to the Appellate Division. The point heading in his brief, printed in bold, read: "THE COURT'S REFUSAL TO CHARGE JUSTIFICATION ... DEPRIVED APPELLANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.Y. CONST., ART. 1, § 6." We have held that if a petitioner cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court. See Jones v. Vacco, 126 F.3d 408, 413-14 (2d Cir.1997) (citing a specific constitutional provision alerts state courts to the nature of the claim); Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir.1992) (even a minimal reference to the Fourteenth Amendment presents federal constitutional claim to state courts and satisfies exhaustion requirement). We therefore reject the State's argument that Davis's constitutional claim was not fairly presented.

Making the claim for first time, the State also argues that Davis's letters applying for leave to appeal to the Court of Appeals did not fairly present his federal claim. Davis submitted two letters — the first to Chief Judge Kaye and the second to Judge Ciparick. This Court has held that if a defendant, in an initial leave letter to the Chief Judge of the Court of Appeals, states that he "request[s] this court to consider and review all issues outlined in Defendant-Appellant's [Appellate Division] brief," such a request is "sufficiently specific" to present any federal constitutional claim set forth in the Appellate Division brief to the state Court of Appeals, regardless of whether the defendant reiterates the claim in any subsequent letter to the court. See Morgan v. Bennett, 204 F.3d 360, 369-72 (2d Cir.2000). Davis's letter to Chief Judge Kaye used language identical to that approved in Morgan. This fairly presented his constitutional claim to the Court of Appeals, notwithstanding that his subsequent letter to Judge Ciparick made no express mention [123] of the Constitution. The second letter was not a revocation of the first.

Since Davis has fairly presented his due process claim to the New York courts, we proceed to the merits.

II. Federal Review of State Court Jury Instructions

We note at the outset that "it is not the province of a federal habeas court to reexamine state-court determinations of state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Where an error in a jury instruction is alleged, "it must be established not merely that the instruction is undesirable, erroneous, or even `universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973). The question is not whether the trial court gave a faulty instruction, but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. 396; see also Estelle, 502 U.S. at 72, 112 S.Ct. 475 (quoting and reaffirming Cupp).

This Court has repeatedly held that "[i]n order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's instructions to the jury on matters of state law, the petitioner must show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law." Casillas v. Scully, 769 F.2d 60, 63 (2d Cir.1985); see also Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir.1990) (quoting Casillas, 769 F.2d at 63) (same); Sams v. Walker, 18 F.3d 167, 171 (2d Cir.1994) (quoting Casillas, 769 F.2d at 63) (same). The fact that "federal habeas corpus relief does not lie for errors of state law," Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990), does not mean, however, that errors under state law cannot result in cognizable violations of a constitutional right to due process. What due process requires will often depend on what state law is. States are free to define the elements of, and defenses to, crimes. See Apprendi v. New Jersey, 530 U.S. 466, 484-87, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); McMillan v. Pennsylvania, 477 U.S. 79, 84-86, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). Once states have promulgated laws to define criminal conduct, however, federal due process protects a defendant from conviction unless he is shown in a fair proceeding to have violated those laws.

Thus, while we may not grant habeas relief for a "mere error of state law," Blazic, 900 F.2d at 541, a finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights. Accordingly, courts have granted habeas relief for a failure to charge justification where the evidence supported a justification charge under state law^[4] and where [124] the erroneous failure to give such a charge was sufficiently harmful to make the conviction unfair. Cupp, 414 U.S. at 146, 94 S.Ct. 396. See Means v. Solem, 646 F.2d 322, 332 (8th Cir.1980) (granting habeas relief for error of state law on justification in jury instruction); Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir.1999) (same); Zemina v. Solem, 573 F.2d 1027, 1028 (8th Cir.1978) (adopting reasoning of Zemina v. Solem, 438 F.Supp. 455 (D.S.D.1977)) (same).

We cannot grant relief here without answering three questions in the petitioner's favor. First, was the justification charge required as a matter of New York state law? Second, if so, did the failure to give the requested charge violate the standard set out in Cupp. Third, if so, was the state court's failure of such a nature that it is remediable by habeas corpus, given the limitations prescribed by 28 U.S.C. § 2254?

III. Was a Justification Charge Required under New York Law?

N.Y. Penal Law § 35.15 sets out the defense of justification for the use of force:

1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person....

2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:

(a) He reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating. . . .

Under New York law justification is a defense, not an affirmative defense; therefore, when the defense is raised on a proper evidentiary record, the People bear the burden of disproving it beyond a reasonable doubt. See N.Y. Penal Law §§ 25.00(1), 35.00 (McKinney 1998); Y.K., 87 N.Y.2d at 433, 639 N.Y.S.2d 1001, 663 N.E.2d 313. "[W]henever justification is sufficiently interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged." McManus, 67 N.Y.2d at 546-47, 505 N.Y.S.2d 43, 496 N.E.2d 202. "[A] charge on justification is warranted whenever there is evidence to support it." Id. at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202. "[I]f on any reasonable view of the evidence, the fact finder might have decided that the defendant's actions were justified.... the trial court should instruct the jury as to the defense and must when so requested." People v. Padgett, 60 N.Y.2d 142, 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795 (1983).

Under New York law, in determining whether the evidence warrants a justification charge, the court must assess the record in the light most favorable to [125] the defendant. See Magliato, 68 N.Y.2d at 29, 505 N.Y.S.2d 836, 496 N.E.2d 856; McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202; Padgett, 60 N.Y.2d at 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795 (even where an aspect of defendant's testimony was inconsistent with justification defense, justification should have been charged); People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 (1982); Torre, 42 N.Y.2d at 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759; People v. Steele, 26 N.Y.2d 526, 529, 311 N.Y.S.2d 889, 260 N.E.2d 527 (1970) (because jury may believe portions of both defense and prosecution evidence, justification should have been charged even when defendant claimed alibi); People v. Huntley, 87 A.D.2d 488, 452 N.Y.S.2d 952, 956 (Fourth Dep't 1982), aff'd, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257 (1983) (justification should have been charged where defendant testified, in conflict with other witnesses, that decedent had approached him with knife demanding money). In sum, if the record includes evidence which, viewed in the light most favorable to the defendant and drawing all reasonably permissible inferences in his favor, satisfies the essential elements of the defense of justification, the charge must be given.

Where a justification charge is warranted, a court's refusal to instruct the jury that the People must disprove the defendant's claim of justification constitutes reversible error. See, e.g., McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202 (new trial ordered where justification instruction did not charge that People must disprove justification); cf. Padgett, 60 N.Y.2d at 144-47, 468 N.Y.S.2d 854, 456 N.E.2d 795 (failure to charge justification warranted new trial); Steele, 26 N.Y.2d at 529, 311 N.Y.S.2d 889, 260 N.E.2d 527 (same); People v. Scott, 224 A.D.2d 926, 637 N.Y.S.2d 586 (4th Dep't 1996) (same); Huntley, 452 N.Y.S.2d at 956-57 (same); People v. Almond, 37 A.D.2d 571, 322 N.Y.S.2d 500, 502 (2d Dep't 1971) (People have to prove ability to retreat beyond a reasonable doubt; charge's failure to inform jury of this is reversible error, even absent objection); cf. Torre, 42 N.Y.2d at 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759 (new trial warranted where justification charge erroneously failed to include charge on justification in defense of third persons); People v. Rivera, 138 A.D.2d 169, 530 N.Y.S.2d 802, 805-07 (1st Dep't 1988) (same).

As we understand the statute and the leading New York cases construing it, Y.K., 87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d 313; People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41 (1986); McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202, for a person seeking to assert the defense of justification for his use of deadly force by reason of his belief that deadly force would be used against him, the essential elements of the defense (which the People must disprove) are as follows:

I. If the defendant reasonably believes

(a) that another person is using or is about to use deadly physical force against him,^[5] and

(b) that it is necessary for him to use deadly physical force to defend himself, then the defendant is justified in using deadly physical force against the other person, but only to the extent he reasonably believes necessary to defend himself; provided the defendant did not have a duty to retreat instead of using deadly physical force in his defense.

[126] II. The defendant has a duty to retreat if

(a) he knows he can retreat with complete safety as to himself and others, and

(b) he reasonably believes the other person's use of deadly physical force against him is either actually occurring or is imminent.

We proceed to examine these aspects of the defense of justification as they applied to Davis's trial.

a. The trial court's ruling: Did Davis violate a duty to retreat at the time he returned to Amsterdam Avenue?

The trial judge believed Davis was not entitled to a charge on justification because, by returning to Amsterdam Avenue where he knew Bubblegum was, he violated the statutory duty to retreat. At that moment, Davis was able to retreat with complete safety, simply by leaving the vicinity. The trial judge believed Davis's duty to retreat arose as of that moment, so that his return to Amsterdam Avenue caused a forfeiture of his right to receive a charge on justification.

Under the terms of Section 35.15, the duty to retreat does not arise until the defendant forms a reasonable belief that the other person "is using or about to use deadly physical force." N.Y. Penal Law § 35.15(1). The ruling of the New York Court of Appeals in Y.K., further spelled out that this duty does "not arise until the point at which [the other person's use of] deadly physical force was [actually occurring] or imminent." Y.K., 87 N.Y.2d at 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313.

In Y.K., a girl and her companion were taunted by a gang of kids, who shouted at them and ran up behind Y.K., hitting her on the head. Y.K.'s companions fled to a nearby subway station for safety, but Y.K. simply kept walking and picked up a knife she found on the ground. The gang subsequently advanced again on Y.K. and pinned her to the ground; she fought back with the knife, stabbing one of her assailants. The Court of Appeals concluded that Y.K. had no duty to retreat at the time when her friend fled to the subway station, because at that time she was not yet imminently threatened with deadly physical force. By the time the use of deadly force against her was imminent, she was unable to retreat (because she was pinned to the ground) and was hence justified in using deadly force for her defense. See Y.K., 87 N.Y.2d at 432-34, 639 N.Y.S.2d 1001, 663 N.E.2d 313.

This holding made abundantly clear that Davis's failure to retreat from the scene at the time he returned to Amsterdam Avenue did not violate the duty to retreat, causing forfeiture of his right to the charge on justification. When Davis first saw Bubblegum on Amsterdam Avenue, he did not reasonably believe Bubblegum was "about to use deadly physical force," N.Y. Penal Law § 35.15, or in the words of the Court of Appeals, that such use of deadly physical force against him was "imminent," Y.K., 87 N.Y.2d at 434, 639 N.Y.S.2d 1001, 663 N.E.2d 313. Bubblegum had merely made eye contact with Davis; he had not moved in Davis's direction, much less made any threatening gestures. Thus, even though it would have been more prudent of Davis to leave the 146th Street and Amsterdam area when he saw Bubblegum there, his failure to do so was not a breach of a legal duty and did not cause the forfeiture of the defense of justification.

Davis's situation had much in common with that of Y.K. Y.K., like Davis could have retreated, as her friends did, when they were taunted by the accosting gang. Instead, she held her ground and picked up a knife for her protection. The Court [127] of Appeals clarified that her failure to retreat, which she could easily have done at the time, did not forfeit the defense of justification because at that time the use of deadly force against her was not yet immanent, although she was already menaced. Later, when she used deadly force in her defense, retreat was no longer possible. When Davis saw Bubblegum on Amsterdam Avenue, he had reason to be apprehensive that Bubblegum might use deadly force against him; but such force was not imminent. See People v. Roldan, 222 A.D.2d 132, 647 N.Y.S.2d 179, 183 (1st Dep't 1996) (defendant did not have reasonable fear of imminent deadly force based solely on previous violent encounters with decedent since a defendant "cannot be responding to the past use of deadly force, but only to its present or imminent use"). Davis was therefore not obligated to leave the scene on pain of forfeiting the defense of justification.

Thus, the justification defense remains available even if a prudent person in the defendant's position might have retreated earlier, or avoided the area where the potential assailant was to be found. See Magliato, 68 N.Y.2d at 30, 505 N.Y.S.2d 836, 496 N.E.2d 856 (justification charge warranted where decedent threatened defendant, defendant left and retrieved gun, defendant went back to area, and defendant shot decedent after decedent came toward him with a club); McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202 (justification charge warranted where, after several men drew guns on defendant and assaulted his companion, defendant left, retrieved gun, and after chasing assailants, killed one of the men after the men again assaulted his companion); People v. Simmons, 206 A.D.2d 550, 615 N.Y.S.2d 56, 58 (2d Dep't 1994) (reversing conviction where a jury instruction on justification did not make clear that the People's "burden of proving beyond a reasonable doubt that the defendant knew he could have retreated in complete safety ... related to that point in time when ... the defendant actually exerted deadly physical force against the decedent," rather than to fistfight which occurred immediately before); cf. Rivera, 530 N.Y.S.2d at 803-06 (charge of justification should have included not just self-defense but also justification in defense of third persons where decedent had previously terrorized family, family fled to another apartment building followed by decedent, defendant father saw his family into building, defendant then returned to street to confront decedent, and decedent, while reaching for his waistband, threatened to kill defendant and his family).^[6]

[128] We do not dispute that Davis's return to the Amsterdam Avenue corner, armed with a gun was imprudent, and also illegal. Davis's return carrying a gun unquestionably violated New York's gun possession law and perhaps also constituted the offense, as the jury found, of illegal gun possession, second degree (possession of a firearm with intent to use illegally). But New York Law does not obligate a person to leave a place he is entitled to be merely because there is another person present who might represent a future threat. It is only when the threat becomes imminent that the actor is obligated to withdraw if he can do so in complete safety.^[7]

We conclude that, under the law of New York, Davis did not lose his entitlement to the defense of justification by reason of his failure to withdraw from the Amsterdam Avenue neighborhood on seeing Bubblegum there.

(b) The Appellate Division's Ruling.

Although the Appellate Division affirmed the trial court's denial of justification charge, it implicitly rejected the trial court's reasoning. As noted above, given the intervening decision of Y.K., the Appellate Division gave no approval (nor even mention) to the trial judge's erroneous theory that Davis by returning to Amsterdam Avenue after fetching a gun forfeited the right to self defense under § 35.15. The Appellate Division instead approved the denial of a justification charge on two different theories. The first was that the evidence did not support a finding that the defendant reasonably believed Bubblegum was about to use deadly physical force against him. The second was that the defendant "offered no convincing reason why he did not retreat from the scene at the time of the actual shooting." Davis, 648 N.Y.S.2d at 80.

In making this ruling the Appellate Division relied on correct propositions of New York law. Davis was not justified in using deadly force in his defense unless he "reasonably believe[d] that [Bubblegum was] using or about to use deadly physical force [against him]." N.Y. Penal Law § 35.15(2)(a). And, as extensively discussed above, he was not permitted to use [129] deadly force in his defense "if he [knew] that he [could] with complete safety as to himself and others avoid the necessity of so doing by retreating...." Id.

The problem we find with the Appellate Division's reasoning is that it is not compatible with the evidence, construed in the light most favorable to Davis as New York law requires. See, e.g. McManus, 67 N.Y.2d at 549, 505 N.Y.S.2d 43, 496 N.E.2d 202; Magliato, 68 N.Y.2d at 29, 505 N.Y.S.2d 836, 496 N.E.2d 856; Torre, 42 N.Y.2d at 1037, 399 N.Y.S.2d 203, 369 N.E.2d 759; Watts, 57 N.Y.2d at 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188. Had Davis been convicted on correct instructions and challenged the sufficiency of the evidence, the evidence would be construed in the light most favorable to the People. See, e.g. Rattley, 539 N.Y.S.2d at 102 ("Viewing the evidence adduced at the trial in light most favorable to the prosecution .... [the jury could] discredit the defendant's justification defense."). Without question, the jury would have been entitled to disbelieve Davis's testimony about his own state of mind and to find that Davis did not believe Bubblegum was about to use deadly force against him. Perhaps (although this is less clear), the jury would also have been entitled to find that Davis could have retreated with safety at the time Bubblegum was turning back toward him (presumably by running north toward 147th Street).

But if the jury could reasonably have found facts that would sustain a defense of justification, Davis was entitled to rely on that defense under New York law. In our view, the evidence seen in the light most favorable to Davis is not compatible with either the proposition that Davis did not have a reasonable fear of deadly force or that he knew at the time of the shooting that he could retreat with complete safety.

(i) Davis's reasonable belief that Bubblegum was about to use deadly force against him.

Under New York law, a determination of the "reasonableness" of a defendant's fear must be based on the "`circumstances' facing a defendant or his `situation.'" Goetz, 68 N.Y.2d at 114, 506 N.Y.S.2d 18, 497 N.E.2d 41. Such a determination properly includes "any relevant knowledge the defendant had about that person," including the perceived assailant's "physical attributes" and "any prior experiences [the defendant] had which could provide a reasonable basis for a belief that [the] person's intentions were to injure or rob him." Id. Viewed in the light most favorable to Davis, there was solid evidence that Davis's fear was reasonable.

The Appellate Division relied on the fact that Davis had not seen a gun on Bubblegum's person. See Davis, 648 N.Y.S.2d at 80. But Davis believed Bubblegum always carried a gun, and knew he had used it on Davis repeatedly.

Davis knew that Bubblegum, a six foot tall, 435-pound felon, had robbed, raped, and beaten other people at gun point. Bubblegum had robbed Davis at gun point three times, forced him to strip naked twice, raped him once, once urged his co-assailant to shoot Davis, and at their last meeting, after raping him, promised to kill Davis when he next saw him. This was that next meeting. When Davis crossed to the east side of Amsterdam to distance himself from Bubblegum, Bubblegum, who, according to eyewitness testimony, was visibly high on drugs, had followed and was advancing towards him. As he advanced, Bubblegum was keeping his eyes on Davis while conversing with the woman next to him, showing that he was preoccupied with Davis. A possible accomplice of Bubblegum's had moved to a [130] position directly across the street. After passing a few feet beyond Davis, Bubblegum said to the woman with him, "I have to take care of something ... I have to hit this guy off." While Davis did not hear these words, he saw Bubblegum stop and turn back in Davis's direction, reaching toward his waistband. On all this evidence, we think it was undisputably reasonable for Davis to believe that within a second, Bubblegum's gun would once again be pointing at him, and he would be dead.

(ii) At the moment of the shooting, Davis did not know he could retreat with complete safety.

In one sentence at the end of its discussion, the Appellate Division asserted as a second reason justifying the trial court's refusal to charge on self defense that Davis "offered no convincing reason why he did not retreat from the scene at the time of the actual shooting." Davis, 648 N.Y.S.2d at 80. We find the observation quite puzzling.

The "time of the actual shooting" was the moment when Bubblegum, having followed Davis across Amsterdam Avenue and having advanced toward him, staring at him, suddenly turned in Davis's direction, and reached toward his waistband for what Davis reasonably believed to be a gun. If Davis's reasonable belief that Bubblegum had a gun had been correct, he had one or two seconds left to live. See People v. Desmond, 93 A.D.2d 822, 460 N.Y.S.2d 619, 620 (2d Dep't 1983) (question is not whether the defendant was "in actual peril of his life," but whether "he reasonably believed he was in such peril"). Undoubtedly, he could have run northward up Amsterdam, in the direction of 147th Street. But the statute imposes the duty to retreat only when the actor "knows he can [do so] with complete safety." N.Y. Penal Law § 35.15(2)(a). In view of how close Bubblegum was to him, Davis could not have fled without offering his back as an easy target. He could retreat, but not with "complete safety," as New York's justification statute requires. In response to questions why he did not run away eastward on 146th Street as Bubblegum approached him from the 147th Street side, Davis explained that, believing that Bubblegum was armed and intended to kill him, he was terrified to turn his back on Bubblegum. We therefore find no basis for the Appellate Division's observation that Davis "offered no convincing reason as to why he did not retreat from the scene at the time of the actual shooting," Davis, 648 N.Y.S.2d at 80, particularly given that it was the People's burden to prove beyond a reasonable doubt that defendant knew that he could have retreated with complete safety. Almond, 322 N.Y.S.2d at 502.

* * *

We believe the evidence, when viewed in the light most favorable to Davis, easily satisfied all the elements of the justification defense under § 35.15. On that evidence, a jury could have found Davis reasonably believed that Bubblegum was "about to use deadly physical force" against him, and that it was necessary for Davis to use deadly force against Bubblegum to defend himself. The jury could have found that, when Davis had the opportunity to retreat from the scene in safety, he was not yet threatened with imminent use of deadly force. But when the time came that he reasonably believed Bubblegum was about to shoot him, it was no longer possible for him to retreat in safety.

We conclude that under New York Law Davis was entitled to rely on the defense [131] of justification under § 35.15 and to have the jury instructed on that issue.^[8]

IV. Did the denial of an instruction required by New York State Law result in a denial of Due Process?

Having concluded that the failure to charge justification was an error of state law, we must next consider whether the error "so infected the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147, 94 S.Ct. 396.

Under the circumstances of this case, the trial court's ruling completely deprived Davis of his highly credible defense to the homicide charge and guaranteed his conviction. In his testimony, Davis had confessed to intentionally shooting Bubblegum. Without an instruction on the justification defense, the question whether he was guilty of the homicide was thus open and shut. On the other hand, if the trial court had not ruled justification out of the case, Davis had a compelling defense for the jury to consider — on which the People had bore the burden of proof.^[9] The evidence on the issue was quite favorable to Davis. And the jury, by ruling in Davis's favor on the question of extreme emotional disturbance, showed that it generally accepted the truthfulness of Davis's testimony.^[10] Taking all this into account, there is a substantial likelihood that a properly instructed jury would have found in Davis's favor on the homicide charge.

This case is markedly different from Blazic, 900 F.2d at 541-43. In Blazic we denied habeas relief where the petitioner was erroneously deprived of a justification charge. We did so because we found the denial would not have influenced the jury's verdict. Blazic's principal claim (to which he testified) was that the gun had gone off accidentally — a claim inconsistent with his subordinate claim of justified intentional use of deadly force. Because the jury was instructed extensively on intent in connection with Blazic's principal defense, and because the erroneous failure to instruct related only to Blazic's secondary defense (which was incompatible with his own testimony), we concluded that the failure to instruct did not affect the jury's deliberations [132] and that the error therefore did not infect the trial in the manner contemplated by Cupp as required for relief on habeas review. See id.

Here, in contrast, the error was of immense importance. This is not a case of a minor error of state law in explaining the legal standards to the jury. It is not a case of a refusal to instruct on a fantastic, improbable defense that the jury was unlikely to adopt. Nor was the absence of an instruction on justification mitigated by other portions of the charge. See, e.g., Kibbe, 431 U.S. at 156-57, 97 S.Ct. 1730 (omission of instruction on causation did not infect trial so as to violate due process because jury, in determining that defendant had acted recklessly, necessarily found that the ultimate harm was foreseeable); Blazic, 900 F.2d at 542-43 (although defendant was entitled to justification charge as a matter of New York law, in light of instruction on accidental and intentional killing, failure to charge justification did not deprive petitioner of due process because there was no basis to conclude that jury would have responded differently if charge was given); Pedroza, 750 F.2d at 205 (new trial warranted where court's instructions, which were general in form, were inadequate to inform jury of defense theory).

The effects of the court's error were to deprive Davis entirely of his defense — on which he had a significant possibility of prevailing — and to insure his conviction. The effect of the error was catastrophic.

In similar circumstances, the Eighth Circuit in Means granted habeas relief where the trial court's erroneous refusal to give an instruction on self-defense infected the trial so as to be of "constitutional magnitude." 646 F.2d at 331-32. The court concluded that the error had so infected the trial as to violate due process. See id. at 332; see also Zemina, 573 F.2d at 1028, adopting reasoning of Zemina, 438 F.Supp. at 465-70 (granting writ where state courts erred in determining that there was inadequate evidence to support instructions on justification and ailing instruction violated due process under Cupp); Duckett v. Godinez, 67 F.3d 734 (9th Cir.1995) (where, in light of the instructions as a whole and the given evidence in the case, the failure of state trial court to give requested instruction rendered trial fundamentally unfair, the trial court's refusal to give the instruction violated the petitioner's federal due process rights under Cupp); cf. Barker, 199 F.3d at 875 (where Michigan Supreme Court held that trial court erred by refusing to instruct that deadly force would have been justified to stop imminent rape, but concluded that error was harmless because no reasonable juror could have believed force used was necessary to prevent rape by elderly man, Michigan Supreme Court improperly invaded province of jury, and the error so infected the trial as to violate due process under Cupp).

We are confident that this error had such enormous practical importance for Davis's conviction on the homicide charge that it must be considered a violation of due process. The error seriously infected "the entire trial," so that its result cannot be considered fair. The Cupp standard was satisfied.

V. Application of 28 U.S.C. § 2254(d)

Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a state prisoner may not be granted unless "the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in [133] the light of the evidence presented in the State court proceeding."

Subsection (1) requires as a predicate to a writ of habeas corpus a state court decision that "was either `contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,' or `involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.'" Williams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (emphasis omitted). Justice O'Connor explained for the Court in Williams that the "contrary to" branch applies only if the "state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law ... [or if] the state court confronts facts that are undeniably indistinguishable from a relevant Supreme Court precedent and arrive at a result opposite to [the Supreme Court's result]." Id. at 405, 120 S.Ct. 1495. In this case, a writ cannot be justified under the "contrary to" clause of § 2254(d)(1) because there is no indication that the Appellate Division construed the due process clause in a manner "opposite to" the Supreme Court's rulings.

On the other hand, Williams explained, "A state-court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular person's case certainly would qualify as a decision `involving an unreasonable application of ... clearly established Federal law.'" Id. at 407-08, 120 S.Ct. 1495. (internal punctuation omitted). The "unreasonable application" clause squarely covers these facts. The Appellate Division unreasonably rejected Davis's due process challenge. On the basis of the evidence presented, Davis had a clear right under New York law to have the jury consider his defense, and the trial in which he was denied that right was egregiously at odds with the standards of due process propounded by the Supreme Court in Cupp.

We think the case also fits comfortably under subsection (2) of § 2254(d) in that it resulted in a "decision that was based on an unreasonable determination of the facts in the light of the evidence." 28 U.S.C. § 2254(d)(2). See also Holden v. Miller, 2000 WL 1121551, at *17 (S.D.N.Y. Aug.8, 2000) (applying 28 U.S.C. § 2254(d)(2) to state trial court's decision not to give justification charge). The Appellate Division rejected Davis' due process challenge on the basis of its findings that (1) Davis had no reasonable belief that Bubblegum was about to use deadly force because he did not see a weapon on Bubblegum's person and did not give Bubblegum a chance to turn before shooting and (2) Davis offered no convincing reason as to why he did not retreat at the time of the shooting. For reasons explained above, those conclusions are without reasonable basis. We conclude that the writ must be granted on either the unreasonable application prong of § 2254(d)(1) or on the basis of unreasonable determinations of fact under § 2254(d)(2).

VI. The Charge of Criminal Possession of a Loaded Firearm with Intent to Use Unlawfully

Davis was convicted not only of first-degree manslaughter, but also of criminal possession of a weapon, second degree, in violation of N.Y. Penal Law § 265.03(2). On this charge, he received a sentence of five to fifteen years imprisonment. The statute provides: "A person is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another ... [h]e possesses a loaded firearm." Id. (emphasis added.) Davis contends his conviction on this charge was also obtained in violation of due process. But his claim with [134] respect to the conviction for criminal possession of a weapon is quite different from his claim relating to the manslaughter conviction.

Under New York Law, justification under § 35.15 is not a defense to second degree criminal possession of a weapon. See People v. Pons, 68 N.Y.2d 264, 265, 508 N.Y.S.2d 403, 501 N.E.2d 11 (1986); People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463 (1984). While a weapons-possession crime may be made more serious by the defendant's intent, it is the act of possessing a weapon unlawfully which is the essence of the possession offenses defined in N.Y. Penal Law §§ 265.01-265.05. See Almodovar, 62 N.Y.2d at 130, 476 N.Y.S.2d 95, 464 N.E.2d 463. Thus, "a person either possesses a weapon lawfully or he does not and he may not avoid the criminal charge by claiming that he possessed the weapon for his protection." Id. A defendant may use his illegally possessed gun only in a manner that falls within the protection of the justification statute and nonetheless be guilty of criminal possession, second degree. That is because, regardless that his actual, ultimate use of the gun might not have been unlawful (because it was justified under § 35.15), he may have harbored intentions to use the gun in other circumstances that would have been unlawful. See Pons, 68 N.Y.2d at 267-68, 508 N.Y.S.2d 403, 501 N.E.2d 11 ("[I]t does not follow that because defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting."); People v. Lide, 210 A.D.2d 507, 620 N.Y.S.2d 462, 463 (2d Dep't 1994) (upholding second-degree possession conviction despite acquittal on murder charge because jury could have concluded defendant intended to use weapon unlawfully during time he possessed it prior to shooting). Thus, the trial court's denial of a charge on justification did not deny Davis the opportunity to have the jury consider a defense to the charge of criminal possession.

The denial of the charge on justification nonetheless prejudiced Davis's defense in a somewhat different way. If the jury found that Davis had intended to use the gun only in circumstances falling within the protection of the justification statute (i.e., only in necessary self defense and only in circumstances where he could not safely retreat), then the jury might have determined that the People had failed to prove the essential element of intent to use the gun unlawfully. The jury might thus have found Davis guilty of the lesser included offense of criminal possession, third degree (for possession of a loaded firearm)^[11], but not of criminal possession, second degree, requiring intent to use unlawfully. Without an explanation from the court in the course of its instructions on how use of a gun against another might be justified (and thus not "unlawful"), the jury lacked information that would have explained how an intention to use the gun against Bubblegum in certain circumstances might not be an "intent to use the same unlawfully against another." N.Y. Penal Law § 265.03(2).

We conclude, nonetheless, that Davis does not state a valid claim under 28 U.S.C. § 2254. Given the fact that justification under § 35.15 is not a defense to criminal weapon possession, second degree, the denial of the instruction did not, with respect to the possession charge, violate [135] "clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). Nor was it "based on an unreasonable determination of the facts." 28 U.S.C. § 2254(d)(2). See also Cupp, 414 U.S. at 147, 94 S.Ct. 396. Therefore Davis's petition relating to his conviction for illegal gun possession, second degree, must be denied.

Conclusion

With respect to Davis's conviction for manslaughter, we reverse the judgment of the district court and remand with instructions to grant the writ, directing that the conviction be vacated. The State of New York is, of course, free to retry Davis for manslaughter if it chooses. With respect to Davis's conviction for criminal possession of a weapon, second degree, the judgment of the district court dismissing the petition is affirmed.

[1] A certificate of Bubblegum's robbery conviction was introduced into evidence.

[2] Both the Magistrate Judge and District Court described Bubblegum as standing across the street from Davis when Davis first returned to 146th and Amsterdam. These courts therefore concluded that by crossing Amsterdam, Davis was moving towards Bubblegum. However, the evidence shows, and the respondents do not dispute, that when Davis came out of the Spot, Davis and Bubblegum were on the same (west) side of Amsterdam. When Davis then crossed to the east side of the Amsterdam Avenue, he was moving away from Bubblegum.

[3] The Appellate Division's analysis was as follows:

The trial court properly declined to charge the jury on the defense of justification since there was no objective view of the evidence that would support a finding that defendant's belief that the victim was using or about to use deadly physical force was reasonable (Penal Law § 35.15[2][a]; Matter of Y.K.[, 87 N.Y.2d 430, 639 N.Y.S.2d 1001, 663 N.E.2d 313 (1996)]) at the time defendant fatally shot the victim. Although defendant testified that the victim reached toward his waist immediately before the shooting, defendant acknowledged that he did not see any weapon on the victim's person and that he did not give the victim a chance to turn around before repeatedly shooting him in the back. Defendant claimed that the victim kept looking at him right before the shooting and that defendant feared that the victim would again attack him as in the past. However, defendant did not explain why that final encounter posed a threat of deadly physical force when their previous exchanges of glances minutes earlier did not. Finally, we note that defendant offered no convincing reason as to why he did not retreat from the scene at the time of the actual shooting.

Davis, 648 N.Y.S.2d at 80.

[4] In determining whether a petitioner was entitled to a defense under state law, federal courts must of course defer to state-court interpretations of the state's laws, so long as those interpretations are themselves constitutional. See Clemmons v. Delo, 177 F.3d 680, 685 (8th Cir.1999) (distinguishing between "case where the defense of self-defense was withheld completely from the jury" and one where the petitioner argued that "the contours of the defense, under [state] law, were not properly explained"); Johnson v. Rosemeyer, 117 F.3d 104, 108 (3d Cir.1997) (where petitioner complained that the justification charge given misinterpreted state law on justification, where state appellate court explicitly rejected the defendant's preferred reading of state justification statute, and where state court interpretation did not impermissibly shift state's constitutional burden of proof on elements of the offense, federal court would not "re-examine state court determinations of state law"). In other words, our role here is not to interpret New York's law of justification, but to determine whether the evidence was sufficient to warrant a justification charge under that law.

[5] If the defendant believed the threat of deadly physical force was directed against a third person, the elements would be adjusted accordingly.

[6] The district judge and magistrate judge, in concluding that Davis's duty to retreat arose during the first encounter, relied heavily on cases in which New York appellate courts were reviewing convictions for the sufficiency of evidence after juries rejected proffered self-defense claims. These cases are inapposite not only because justification was charged, but because the New York courts were looking at the facts in the light most favorable to the People, whereas, in deciding whether the defendant was entitled to a charge, we must assess the facts in the light most favorable to the petitioner. See, e.g., People v. Russell, 91 N.Y.2d 280, 290, 670 N.Y.S.2d 166, 693 N.E.2d 193 (1998) (evidence that defendants did not avail themselves of opportunities for safe retreat was adequate to support jury's rejection of justification defense); People v. Snell, 256 A.D.2d 480, 682 N.Y.S.2d 80 (2d Dep't 1998) (same); People v. Rattley, 148 A.D.2d 642, 539 N.Y.S.2d 101, 102-03 (2d Dep't 1989) (same); cf. People v. Seit, 86 N.Y.2d 92, 96-99, 629 N.Y.S.2d 998, 653 N.E.2d 1168 (1995) (where court erred in excluding evidence relevant to reasonableness of belief that decedent had gun, error was harmless because jury would not have acquitted on self-defense grounds in any case since numerous witnesses testified to belief that decedent had gun; defendant first shot decedent in face and then, after decedent fell, walked over and shot him three times in the back from a distance of one or two feet; and defendant had the opportunity to retreat safely into his home when the decedent walked to his nearby van after initial confrontation).

[7] The writer, speaking for himself alone, would add the following observation. The reasonableness of New York's imminence rule is illustrated by the circumstances Davis faced. The evidence showed that the 146th Street and Amsterdam neighborhood was the center of Davis's life. That was where he earned his living as a numbers runner. That, it appeared, was his social center. The evidence shows it was also the place where the vicious Bubblegum hung out. If the law required Davis to retreat whenever Bubblegum was present on the block — as opposed to only when he faced an imminent threat of violence — Davis would be forced to leave the social and business center of his life on pain of forfeiting the legal right to defend himself against a deadly attack by a repeat tormentor. The law would essentially give over ascendancy to the bullies of the world.

For the situation Davis faced was not momentary. Had Davis left that evening on seeing Bubblegum, he would presumably have seen Bubblegum again on his return the next day, or the day after, and the same choice whether to leave on the chance that Bubblegum might attack him would present itself. The trial court's interpretation would ultimately mean that victims of threats of violence must either give up their habitat or lose their right to self defense. That is not the law of New York. Davis was not obligated to withdraw from the place where he made his life, on pain of losing his right of self defense, merely because a tormentor who had threatened to kill him was also to be found on the same streets. He was obligated to retreat (if that was safely possible) only when he faced imminent deadly force.

[8] Judge Sotomayor would add the following comments. In support of its contention that there is no objective view of the evidence under which the defendant could have had a reasonable belief that there was an imminent danger, the Appellate Division says: "[D]efendant did not explain why that final encounter posed a threat of deadly physical force when their previous exchanges of glances minutes earlier did not." 648 N.Y.S.2d at 80. Conceivably, the state court could have credited the defendant's contention that he did not reasonably believe that there was an imminent threat of deadly danger during the initial brush with Bubblegum. The Appellate Division, apparently concluding that the two encounters were in all relevant respects equivalent, therefore held that even under defendant's view of the case, a justification defense was not supported by the evidence. Yet even if this is the appropriate interpretation of the Appellate Division's decision, that court still unreasonably applied New York law. As discussed supra at III(a), the passive eye contact between Bubblegum and Davis, absent the more threatening physical gestures that accompanied the moments before the shooting, could not lead a reasonable person to believe that a threat of fatal harm was imminent.

[9] Under New York law, the justified use of force does not constitute a crime. See McManus, 67 N.Y.2d at 545, 505 N.Y.S.2d 43, 496 N.E.2d 202 ("Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all.").

[10] See Henderson v. Kibbe, 431 U.S. 145, 156, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977) ("[It is] logical to assume that the jurors would have responded to an instruction [that was not given] consistently with their determination of the issues that were comprehensively explained.").

[11] N.Y. Penal Law § 265.02(4) provides: "A person is guilty of criminal possession of a weapon in the third degree when ... [h]e possesses any loaded firearm."

[492] Edward J. Nowak, Public Defender, Rochester (Timothy P. Donaher of counsel), for appellant.

Michael C. Green, District Attorney, Rochester (Arthur G. Weinstein of counsel), for respondent.

Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, GRAFFEO, READ and R.S. SMITH concur.

OPINION OF THE COURT

ROSENBLATT, J.

In essence, our self-defense statute provides that a person attacked with deadly force may respond in kind only if unable to retreat with complete safety. Penal Law § 35.15 (2) (a) contains an exception relevant to this appeal: someone who would otherwise have to retreat need not do so if attacked at home (see Penal Law § 35.15 [2] [a] [i]). The question before us is [493] whether the exception applies when the assailant and the defender share the same dwelling. We hold that it does.

Defendant choked his live-in girlfriend to death after she picked up a knife during a heated argument with him. In its charge on justifiable homicide, the trial court refused to instruct the jury that because defendant was in his own home he had no duty to retreat before using deadly force. This refusal was error.

I.

Using a public telephone in his neighborhood, defendant called 911 and revealed that three weeks earlier he had killed his girlfriend in their Rochester apartment. He added that her body was still at the residence and that "I'm admitting to it; there's no denying it. There ain't nobody else's fault. Just me." The police picked defendant up and went to the apartment. On the way, defendant admitted that he and his girlfriend had a fight in which he "choked the shit out of her" and wanted the police to see for themselves. Inside the apartment, they saw the decayed body and, under the television set, discovered a knife.

After warning defendant of his Miranda rights, the police investigators took a signed statement from him. Defendant said that he and the deceased had been in an argument over money she owed a drug dealer. She called the police, at whose behest defendant left the premises for a short time to cool off. When defendant returned, there was a party going on, which irritated him and generated another argument. The girlfriend slapped defendant and picked up a steak knife. When she tried to slap him a second time, he grabbed her, and she dropped the knife on the floor. "I had her by the throat," defendant said, and "ended up choking the crap out of her." He called 911 to turn himself in after hearing a church sermon, following which he felt that "every man has to pay his dues for the sins and the crap that he does." The medical examiner concluded that the likely cause of death was asphyxiation by manual strangulation.

By and large, defendant's trial testimony tracked his confession. He said that he and his girlfriend had argued and that when she picked up a knife, he grabbed her neck, adding that he then blacked out and did not remember much until after he realized she was on the floor.^[1] He lifted her up but did not call [494] for medical help to see if she could be revived. During cross-examination, the prosecutor several times implied that before strangling the deceased, defendant should have left the apartment and was entirely free to do so. Further, the prosecutor argued in summation that defendant could have walked out the door just as easily as he placed his hand on the deceased's neck.

At the precharge conference, the defense asked for a justification charge. The prosecutor objected, asserting that under no view of the evidence could a jury find defendant justified in using deadly force. The court instructed the jury as to the justifiable use of deadly force but refused defendant's request to tell the jury that under Penal Law § 35.15 (2) (a) (i) defendant owed no duty to retreat when under attack in his own home.

The jury found defendant guilty of manslaughter first degree, in violation of Penal Law § 125.20 (1). The Appellate Division affirmed, ruling that the trial court did not err in refusing to instruct the jury that defendant had no duty to retreat before using deadly force. The Court stated that it was preferable for the trial court to avoid any confusion on the part of the jury by not mentioning the duty to retreat at all, as opposed to mentioning a general duty to retreat and then qualifying that duty by delineating the applicable home exception. We disagree and conclude that the trial court erred in refusing to include the home exception instruction in its justification charge. For reasons that follow, however, we find the error harmless and affirm defendant's conviction.

II.

Penal Law § 35.15 (2) (a) provides that deadly force may not be used upon another person unless the defender reasonably believes that such other person is using or about to use deadly force. Even then, the defender may not use deadly force "if he knows that he can with complete safety as to himself and others avoid the necessity of doing so by retreating."

The duty to retreat reflects the idea that a killing is justified only as a last resort, an act impermissible as long as other reasonable avenues are open. This has been true throughout New [495] York's statutory and decisional law, which in turn grew out of the common law.^[2]

Clause (i) of Penal Law § 35.15 (2) (a) creates an exception to the duty to retreat, under which the person attacked "is under no duty to retreat if he is . . . in his dwelling and not the initial aggressor." The language underlying the home exception stems from the common-law teaching that people's homes are their castles, and that as such one's home is a place of sanctuary; a castle to which, and not from which, a person retreats.^[3] Thus, it has long been held that people might defend themselves "against felonious attack without retreating from [their castles], since that would be to give up the protection of a `castle' which the law allows."^[4]

The rationale for standing one's ground when attacked at home is most obvious when defending against an assailant who is an intruder, or at least not a member of the defender's household. Although the home exception seems less obvious when the assailant and the defender are members of the same household (and thus, so to speak, share the same castle), we have unwaveringly applied the exception ever since the issue arose 90 years ago in People v Tomlins (213 NY 240 [1914]). There, the defendant shot and killed his son in a residence they shared. Judge Cardozo traced the common-law development of the general duty to retreat and the exception the "castle" doctrine by which a defender, attacked at home, need not become a "fugitive" before responding in kind. Most pertinent to the appeal before us, Tomlins (at 243-244) underscored that it makes [496] no difference "whether the attack proceeds from some other occupant or from an intruder."^[5]

We affirm the castle doctrine in its application to occupants of the same household. This has been our decisional law at least since Tomlins, and it has particular importance in cases of domestic violence, most often against women.

Here, having instructed the jury on the use of deadly force, the court should have gone on to discuss the rules governing retreat, including the home exception, particularly because the prosecutor argued to the jury that defendant should have retreated. Under the circumstances of this case, however, this omission does not warrant reversal.

Penal Law § 35.15 (2) (a) prohibited defendant from using deadly force unless he reasonably believed that the deceased was using or about to use deadly force. The proof supports no such belief. In his confession, defendant stated that, when the deceased tried to slap him, he grabbed her, she dropped the knife, and he had her by the throat. Moreover, in his trial testimony, defendant said that when the decedent picked up a knife, he grabbed her neck and blacked out. However we interpret this sequence, the predicate for the use of deadly force the reasonable belief that one is under deadly attack is lacking.

In People v Watts (57 NY2d 299, 302 [1982]), the sole basis for justification was the defendant's statement to the police that the victim "came after [defendant] in his room with a kitchen knife." This bare contention, we held, provided no possible basis to conclude that the defendant reasonably believed he was in imminent danger of being subjected to deadly force. In the [497] case before us, there was even less of a basis. In Watts, the victim "came after" the defendant with the weapon; here, she merely picked up the knife and while she tried to slap defendant, he choked her to death. Although defendant testified that after killing her, he experienced fear, he never claimed, and there is no reason to believe, that he was fearful of being killed or harmed by the actions of the deceased. In this context we note that defendant had a considerable height and weight advantage over the deceased, and also knew that she had been drinking. Her blood alcohol level tested at .22.

In sum, the court gave an incomplete justification charge which, under the circumstances, was neutral if not to defendant's benefit. The court's failure to elaborate and add the home exception does not warrant reversal. The overwhelming evidence disproved the justification defense, and there is no reasonable possibility that the verdict would have been different had the court given the requested instruction (see People v Crimmins, 36 NY2d 230, 242 [1975]; People v Stevens, 245 AD2d 39 [1st Dept 1997]).

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

[1] On cross-examination, defendant stated the deceased was 47 years old, stood 5 feet, 1 inch or 5 feet, 2 inches and weighed about 100 to 105 pounds. Defendant weighed 165 pounds and stood about 5 feet, 9 inches or 5 feet, 10 inches.

[2] See e.g. Ex parte Tayloe (5 Cow 39 [1825]); People v McLeod (25 Wend 483, 587, 1 Hill 377, 420 [1841]); People v Sullivan (7 NY 396 [1852]); Shorter v People (2 NY 193 [1849]).

[3] The home exception to the duty to retreat, sometimes referred to as the "castle" doctrine, may have been first articulated in Semayne's Case (5 Co Rep 91a, 91b, 77 Eng Rep 194, 195 [KB 1603] ["That the house of every one is to him as his castle and fortress, as well as for his defence against injury and violence, as for his repose. . . ."]). Blackstone noted that the "law of England has so particular and tender a regard for the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity" (4 Blackstone, Commentaries on Laws of England, at 223 [1765-1769]).

[4] Beale, Retreat From a Murderous Assault (16 Harv L Rev 567, 574-575 [1903]); see also Alberty v United States (162 US 499, 505 [1896]; Beard v United States (158 US 550, 563-564 [1895]).

[5] See also People v Emmick (136 AD2d 892 [4th Dept 1988]); People v Primus (178 AD2d 565 [2d Dept 1991]); People v Emick (103 AD2d 643, 656 [4th Dept 1984]). Most states have agreed, some citing Tomlins, in applying the castle doctrine to cohabitants as well as intruders. See e.g. State v Phillips (38 Del 24, 187 A 721 [1936]); Weiand v State (732 So 2d 1044 [Fla 1999]); State v Leeper (199 Iowa 432, 200 NW 732 [1924]); People v Lenkevich (394 Mich 117, 229 NW2d 298 [1975]); State v Glowacki (630 NW2d 392 [Minn 2001]); State v Grantham (224 SC 41, 77 SE2d 291 [1953]). But see Cooper v United States (512 A2d 1002, 1006 [DC 1986]); State v Gartland (149 NJ 456, 694 A2d 564, 569 [1997]); State v Warren (147 NH 567, 568-569, 794 A2d 790, 792 [2002]). See generally Etheredge, The Castle Doctrine: Extension of the Rule to Co-Inhabitants, 52 Fla L Rev 695 (2000); Wheatcroft, Duty to Retreat for Cohabitants — In New Jersey a Battered Spouse's Home is Not Her Castle (30 Rutgers LJ 539 [1999]); Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense (86 Marq L Rev 653 [2003]). For a comprehensive catalog of cases, see Annotation, Homicide: Duty to Retreat Where Assailant and Assailed Share the Same Living Quarters (67 ALR5th 637).

[176] Legal Aid Society Criminal Appeals Bureau, New York City (Amy Donner and Andrew C. Fine of counsel), for appellant.

[177] Robert T. Johnson, District Attorney, Bronx (Nisha M. Desai, Joseph N. Ferdenzi and Allen H. Saperstein of counsel), for respondent.

[184] Chief Judge KAYE and Judges SMITH, LEVINE, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

GRAFFEO, J.

Defendant was convicted of manslaughter and criminal use of a firearm after he shot and killed James Carter inside the Bronx apartment building where defendant resided. At trial, defendant pursued a Penal Law § 35.15 (2) justification defense, asserting that the victim, a guest of another tenant, had attacked him in the lobby and a struggle ensued on a common stairwell which culminated in the shooting. On appeal, defendant contends Supreme Court erred when it refused to instruct the jury that defendant had no duty to retreat from the lobby and stairwell because these areas were part of his dwelling under Penal Law § 35.15 (2) (a) (i). We disagree.

Defendant was charged with two counts of murder in the second degree (intentional and depraved indifference), and single counts of manslaughter in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree, all arising out of the shooting of James Carter. Defendant not only resided in a first-floor apartment in the building but also was employed as the on-site building superintendent.

[178] The People's primary witnesses at trial were three other tenants: Milagros and Sari Santiago, two sisters who lived together in a second-floor apartment, and Mary S., another resident. Sari's boyfriend, James Carter, was a frequent visitor to the building. The morning of the shooting, Milagros Santiago and James Carter went to defendant's apartment and requested that repairs be undertaken in the Santiagos' apartment. Mary S. testified that she was present in the lobby and heard defendant respond by swearing and referring to Carter, who was African-American, in racially derogatory terms. Defendant and his brother (a building handyman) then accompanied Milagros and Mary S. upstairs to survey the damage while Carter stepped outside the building. After defendant loudly berated her for bringing Carter to his apartment to lodge a complaint, Milagros departed to find Carter.

Defendant, his brother and Mary S. soon left the Santiago apartment and began walking downstairs, meeting Carter and Milagros on the landing midway between the first and second floors. Carter asked defendant whether he had a problem and defendant responded "no problem." Mary S. testified that defendant told his brother he had to get something and would be back, and then he descended the remaining stairs and entered his apartment. Moments later, she heard a door open and defendant's wife say: "No, don't do it. Don't do it." Defendant responded: "Let me go. Let me go. I'm going to kill this black * * *." Defendant proceeded up the stairs carrying a sawed-off shotgun. Carter tried to run up the stairs but defendant's brother blocked his path. Defendant then shot Carter in the chest and Carter collapsed on the landing.

Three police officers who heard the gunshot ran into the lobby where they discovered defendant standing near the bottom of the stairs. After they repeatedly directed defendant to drop his weapon, the officers disarmed him. A firearms expert who later examined the shotgun testified that it was in proper working order and could not have fired unless someone had cocked it and pulled the trigger. The People also offered forensic evidence that, based on the nature of the wound, Carter was seven or eight feet away from the gun when he was fatally shot.

Defendant's trial testimony relating the events of that morning generally corresponded with that of Mary S. and the Santiagos until the verbal exchange with Carter on the stairwell. According to defendant, after he told Carter there was "no problem," he went into his apartment. About 40 minutes later, someone began banging on his door with such force that he [179] feared the lock would give way. He asserted that, two weeks earlier, someone had knocked his door down while he and his family were not at home. He had been told by another building employee that the damage was inflicted by drug dealers who frequented the building.

Defendant and the building manager, who testified on his behalf, claimed the building was plagued by illegal drug activity. They contended that the front door of the building was missing and that the lock on the security gate had to be replaced on a daily basis because drug dealers would break the lock and use vacant apartments for their transactions. Although defendant testified that he had never seen Carter sell drugs, he believed that Carter was involved in drug activities in the building.

When the banging stopped, defendant retrieved a sawed-off shotgun from his closet. He asserted that he had found the gun in the basement months before but did not know it was loaded and did not know how to fire it. Carrying the shotgun, he stepped into the lobby and walked toward the stairwell when Carter jumped him from behind. In the course of this altercation, Carter grabbed the stock of the gun and pulled him up several stairs. Defendant testified that the gun "went off," although he had not cocked it and his hand was nowhere near the trigger, and Carter was shot at point blank range. Defendant stated that he turned around in shock and saw the police enter the building. He contended that he complied with police orders and submitted to arrest.

In light of defendant's testimony that Carter attacked him in the lobby, Supreme Court gave the jury a Penal Law § 35.15 justification defense instruction. However, the court rejected defendant's request for an instruction that defendant had no duty to retreat from Carter's aggression because he was in his dwelling when the altercation occurred. Defendant was convicted of manslaughter in the first degree and criminal use of a firearm in the first degree and sentenced to 12½ to 25 years for each offense, to be served concurrently. On appeal, the Appellate Division affirmed the conviction but modified the sentence to concurrent terms of 10 to 20 years. We now affirm.

The sole issue on appeal is whether Supreme Court erred in denying defendant's request for a "no duty to retreat" instruction under Penal Law § 35.15 (2) (a) (i). Penal Law § 35.15 was enacted in 1965 when the Penal Law was reorganized and substantially revised (see L 1965, ch 1030). The provision [180] reflects the principle, first established under the common law and long recognized by statute, that deadly physical force may be justified—with no criminal liability—if the deadly force was used in self-defense or in defense of others. Penal Law § 35.15 (1) states that a person may use physical force upon another "when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person." The use of deadly physical force is prohibited under section 35.15 (2) (a) in the circumstances set forth in subdivision (1) unless the person "reasonably believes that such other person is using or about to use deadly physical force." Even then, deadly physical force is not justified if the person knows he or she can avoid the use of force by retreating with complete safety. The statute contains only one exception: there is no duty to retreat if a person is "in his [or her] dwelling and not the initial aggressor" (Penal Law § 35.15 [2] [a] [i]).

Pivotal to defendant's argument is his contention that the lobby and stairwell areas were part of his dwelling. Although this Court has addressed the Penal Law § 35.15 justification defense many times (see e.g. People v Russell, 91 NY2d 280 [1998]; Matter of Y.K., 87 NY2d 430 [1996]; People v Goetz, 68 NY2d 96 [1986]; People v Berk, 88 NY2d 257, cert denied 519 US 859 [1996]), we have never interpreted the meaning of the term "dwelling" in section 35.15 (2) (a) (i). Section 35.15 does not contain a definition, although the term is defined and used elsewhere in the Penal Law. Most notably, Penal Law § 35.20, which describes when a defendant may use force to prevent or terminate a criminal trespass or burglary, refers to "dwelling" and incorporates various definitions from article 140 of the Penal Law, the article addressing burglary offenses (see Penal Law § 35.20 [4] [a]). There, "dwelling" is defined as "a building which is usually occupied by a person lodging therein at night" (Penal Law § 140.00 [3]). In turn, "building" includes "any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein * * *" and, of particular relevance here, "[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building" (Penal Law § 140.00 [2]). Noting that the lobby of the apartment building fell within the article 140 definition of building and therefore meets the definition of dwelling, defendant urges [181] this Court to rely on these definitions to define dwelling in Penal Law § 35.15 (2) (a) (i). This we decline to do.

In instances where a word is not defined in a Penal Law provision under review, we have cautioned against reliance upon a definition of that term found in another Penal Law statute absent legislative authority for doing so (see People v McNamara, 78 NY2d 626 [1991] [declining to rely on definition of "public place" contained in Penal Law article 240 to inform the use of that term in Penal Law article 245]; see generally People v Powell, 54 NY2d 524 [1981]). Penal Law § 35.20, the defense of premises provision, explicitly refers to the definitions set forth in article 140, but such a reference is conspicuously absent from section 35.15 (2). Although the Legislature modified the justification scheme when it enacted section 35.20 in 1968, it did not conform the language of the two statutes by adding a reference to the article 140 definitions in section 35.15 (see L 1968, ch 73; see generally 1968 NY Legis Doc No. 29, at 7-9). This suggests that the Legislature chose not to incorporate the definitions in section 35.15.

In Powell (54 NY2d at 529), we disapproved the practice of importing definitions from other Penal Law provisions because "[t]he spirit and intent of the various other statutes relied upon, as well as their language, differ[ed] materially * * * from that of the gun control law" under review in that case. That rationale applies here. Penal Law § 35.15 (2) involves the grave circumstance when a person is justified in using deadly physical force without first exhausting all known avenues of retreat or escape. Penal Law article 140 addresses a different concern—when a person may be charged with burglary and related offenses. The interests underlying article 140 are implicated when a defendant pursues a section 35.20 defense predicated on evidence that the person subjected to force was committing a criminal trespass or burglary at the time of the incident. But those interests are not implicated when a defendant raises a section 35.15 defense which is available even when the person subjected to force was lawfully present on the property. The significance of this distinction is evident in this case: defendant could not rely on section 35.20 because Carter was a guest of a tenant but he was nonetheless entitled to present a section 35.15 defense. Therefore, the meaning of the word "dwelling" in Penal Law § 35.15 (2) (a) (i) cannot be determined merely by incorporating the definitions in article 140.

Because section 35.15 was part of an omnibus package of legislation, there is no specific legislative history underlying [182] the adoption of section 35.15 (2) (a) (i). The legislation was drafted by the Temporary Commission on Revision of the Penal Law and Criminal Code. According to Richard Denzer and Peter McQuillan, the Commission's Executive Director and Counsel, section 35.15 (2) (a) was a reaffirmation of traditional self-defense principles and a rejection of a 1940 decision of this Court that suggested a person attacked on a public street had no duty to retreat (see Denzer and McQuillan, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15, at 64 [1967 ed]; cf. People v Ligouri, 284 NY 309 [1940]).

Denzer and McQuillan cite People v Tomlins (213 NY 240 [1914]) as representative of the application of the traditional rule which section 35.15 (2) (a) (i) was intended to codify. There, this Court reversed a conviction because the trial court erroneously charged the jury that a man who killed his son in the cottage they shared had a duty to retreat before using deadly physical force. Then-Judge Cardozo eloquently described the "no duty to retreat" exception as follows:

"It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home * * * Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home" (Tomlins, 213 NY at 243).

Tomlins discussed People v Sullivan (7 NY 396 [1852]), a case involving the use of deadly physical force by one boardinghouse resident against a fellow resident on the common stairwell inside the boardinghouse. Sullivan held that defendant had a duty to retreat to his room to avoid the altercation, thereby implicitly holding that the common stairwell was not part of defendant's home or dwelling for purposes of the "no duty to retreat" rule. The Tomlins Court distinguished Sullivan but did not disturb the holding. Neither decision, however, precisely defines what constitutes a person's dwelling.

In our view the word "dwelling," as used in Penal Law § 35.15 (2) (a) (i), refers to a person's residence, and any definition of the term must therefore account for a myriad of living arrangements, from rural farm properties to large apartment buildings. For purposes of section 35.15, the determination of whether a particular location is part of a defendant's dwelling [183] depends on the extent to which defendant (and persons actually sharing living quarters with defendant) exercises exclusive possession and control over the area in question. The term encompasses a house, an apartment or a part of a structure where defendant lives and where others are ordinarily excluded—the antithesis of which is routine access to or use of an area by strangers.

Considering the evidence in this case in the light most favorable to defendant and crediting, as we must, his testimony that he was attacked in the lobby, we conclude defendant was not entitled to a "no duty to retreat" jury instruction. The lobby and stairwell areas were used multiple times each day by tenants of the six-story apartment building and their guests. These areas were not under defendant's exclusive possession and could not fairly be characterized as defendant's living quarters. Accordingly, the lobby and common stairwell were not part of defendant's dwelling and Supreme Court did not err in declining to give a section 35.15 (2) (a) (i) charge.

In so holding, we have not followed the reasoning of the Appellate Division, which focused on the degree of security in the lobby and found that, because the lock on the building's front gate was broken on the day of the incident, the area was accessible to the general public and defendant therefore had a duty to retreat. Whether a person is entitled to the benefit of the "no duty to retreat" rule should not turn on how well protected the area in question is at the time of the attack. Such an approach would require a person to assess the security status of an area before deciding whether to attempt a retreat or to stand ground and resist an aggressor. Inequities in application of the rule would undoubtedly arise due to the greater likelihood that residents in secure buildings with locked doors and security guards would be afforded the benefit of the "no duty to retreat" charge while persons living in buildings without such protections and who may have more reason to feel threatened in their buildings would be denied the benefit of the charge. Here, for example, it is undisputed that both defendant and Carter had a right to be in the lobby at the time of the incident. Because the altercation would not have been avoided had a locked door or gate prevented intruders from entering the building, defendant's duty to retreat in the face of attack should not and does not rest on the presence or absence of such security devices.

Accordingly, the order of the Appellate Division should be affirmed.

Order affirmed.

James S. Carroll, III (Gregory Traverse Crawford of counsel), for appellant.

Eugene Gold, District Attorney (Laurie Stein Hershey of counsel), for respondent.

COHALAN and MARGETT, JJ., concur with HOPKINS, J. P.; SUOZZI, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.

[504] HOPKINS, J. P.

The defendant has been convicted of escape in the second degree. He claims that Criminal Term erroneously excluded evidence which he was prepared to submit in the form of testimony which would have substantiated his defenses of justification and duress. In short, the defendant argues that his evidence would have shown the escape was motivated because of threats on his life made by prison guards and other inmates, and because conditions in the prison were intolerable, thus vitiating the criminal intent which is an essential ingredient of the crime of escape in the second degree.

We affirm. The evidence tendered by the defendant would not have met the statutory standards established for the maintenance of the defenses of justification and duress, and Criminal Term was therefore correct in rejecting the proof.

I

On April 18, 1973 the defendant was committed to the Brooklyn House of Detention under an indictment charging him with murder. He had been brought to New York from Missouri where he had been serving a sentence of imprisonment for a term of 25 years for a conviction of assault with intent to kill. On September 27, 1973 the defendant was sent under guard to the Kings County Hospital for treatment of a possible ulcer. At the hospital the defendant was escorted to the X-ray department in the out-patient building.

The defendant's handcuffs were removed and the defendant undressed, donned a hospital gown and was X-rayed. He was then returned to the dressing booth. Hearing the door slam, the guards opened the booth to find the defendant gone. The guards were told that the defendant had been seen outside the building and gave chase. The pursuit was unsuccessful. The defendant was not apprehended until October 3, 1973.

The defendant was thereafter indicted for escape in the second degree.

[505] II

At the trial the defendant made several offers of proof. First, the defendant stated that Pedro Monges, a fellow prisoner, would testify that he had first met the defendant in the Brooklyn House of Detention and had heard the defendant's life threatened by prison guards on numerous occasions; that he knew that the defendant had gone to the hospital for medical treatment; and that the defendant had complained about pains in his chest caused by the threats.^[1]

Second, the defendant stated that Paul Gulielmetti, a lawyer, would testify that he had acted as attorney for the plaintiffs in litigation involving conditions in the Brooklyn House of Detention, in which certain improvements had been directed by the court.^[2]

[506] Third, the defendant stated that Stephen Lapimer,^[3] a lawyer, would testify that he also had conducted litigation challenging conditions in the Brooklyn House of Detention, and that he had heard the Judge officiating in the litigation say that conditions in the prison were such as to lead to attempts to escape.^[4]

Fourth, the defendant stated that Dan Pachoda, a lawyer, would testify that he had been associated with Mr. Gulielmetti in litigation relating to the Brooklyn House of Detention, some of which actions had been successful.^[5]

Fifth, the defendant stated that Melvin Haywood, a lawyer, would testify that he had visited the Brooklyn House of Detention and was familiar with the actions in which conditions there had been challenged.^[6]

Sixth, the defendant stated that Doctor Michael Smith, a psychiatrist, would testify that the effect of threats against an individual would result in personal stress, lowering the "individual's voluntariness with respect to his actions."^[7]

[507] The Criminal Term sustained the prosecution's objections to the offer of proof, holding that the proof was irrelevant to the issue of guilt. In effect, the court ruled that neither fear arising from threats nor intolerable prison conditions constituted defenses to the crime of escape.

The defendant, however, was permitted to introduce evidence through a doctor's testimony that the defendant was suffering from chronic gastritis and had suffered from peptic ulcers. The doctor further testified that stress was a contributing factor in the development of an ulcer. The defendant himself testified that in 1971 he had been treated for stomach ailments and had complained of an ulcer in 1972 while in prison in Missouri. He further testified that as a result of his complaints in New York he had seen the prison doctor and finally had been sent to Kings County Hospital for X-ray examination. He admitted that he had escaped from custody during the time of that medical procedure.

Criminal Term refused to admit testimony of the defendant under an offer of proof to the effect that the police officer assigned to bring the defendant from Missouri to New York had pointed his revolver at him on several occasions and told him that he did not deserve to live.^[8]

The defendant excepted to the failure of the court to charge [508] justification as a defense and specifically to the failure to charge that if the jury found that the defendant's escape was an effort to protect himself from imminent personal harm, then the jury should find that the defendant did not possess the criminal intent to commit the crime of escape.

III

Section 35.05 of the Penal Law, so far as pertinent, reads:

"Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when: * * *

"2. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense."

This provision was derived from section 3.02 of the Model Penal Code and enters an area of criminal behavior not previously the subject of legislation in the law of New York. It is, as a commentator has said, a doctrine in substance recognizing and weighing a "choice of evils" presented by unusual situations "in which some compelling circumstance or `emergency' warrants deviation from the general rule that transgression of the criminal law will not be tolerated" (Hechtman, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law, § 35.05, p 83). To put it more concretely, the statute authorizes the defense of justification — or necessity, as it sometimes is called — in a limited number of cases where conduct otherwise condemned is found necessary as an emergency measure to avoid an imminent public or private injury about to occur through no fault of the actor, and the impending [509] injury is of such gravity that the desirability and urgency of avoiding the injury clearly outweigh the objectives of the statute condemning the conduct (cf. People v Bieniek, 60 AD2d 777; People v Brown, 70 Misc 2d 224, 227-228 [BIRNS, J.]).

Whether conditions in a prison may ever justify a defense to the crime of escape is a question expressly left open by the Court of Appeals in People v Barkman (34 N.Y.2d 624, 626). In Barkman the issue was not reached because the defendants had not made an offer of proof following a colloquy in which the trial court had said that it would not admit proof of conditions of the jail in support of a defense of justification. However, the Court of Appeals noted that the defendants had referred to the conditions only in general terms, without giving details or particulars concerning the conditions claimed to underlie and support the defense. Hence, the Court of Appeals held that "[w]ithout at least such a tender of proof we do not reach the question whether conditions or treatment in a correctional facility can ever constitute proof of justification as a defense to the crime of escape" (People v Barkman, supra, p 626).

IV

The existence and content of a defense of justification to the crime of escape have been discussed with varying conclusions in a steadily increasing incidence of cases. Certain States have held that intolerable prison conditions do not justify escape (State v Palmer, 45 Del 308; State v Cahill, 196 Iowa 486; State v Alberigo, 109 Ariz 294; Coley v State, 135 Ga App 810; State v Boleyn, 328 So 2d 95 [La]; State v Green, 470 SW2d 565 [Mo], cert den 405 US 1073). Other States have allowed the defense (Cantrell v State, 21 Ala App 558; People v Lovercamp, 43 Cal App 3d 823; People v Unger, 33 Ill App 3d 770, affd 66 Ill 2d 333; People v Luther, 394 Mich 619). Some States have not sanctioned the defense if mere threats on the life of the defendant are the basis of the claim, holding that the threats must be accompanied by immediate or imminent danger (State v Milum, 213 Kan 581; Pittman v Commonwealth, 512 SW2d 488 [Ky]; State v Fitzgerald, 14 Ore App 361; State v Pearson, 15 Utah 2d 353). Few Federal courts have considered the question, and most have not sustained the defense in the context of the circumstances presented in the particular case (see United States v Boomer, 571 F.2d 543, cert den sub nom. Heft v United States, 436 US 911; [510] United States v Michelson, 559 F.2d 567; United States v Woodring, 464 F.2d 1248; United States v Dempsey, 283 F.2d 934; but, see, United States v Bailey, 585 F.2d 1087).

In People v Lovercamp (supra) the California Court of Appeals addressed the question at length. There the defendants offered proof that over a period of two and one-half months they had been sexually threatened, that a fight had ensued, and that after the fight the defendants had been told that their assailants would see them again. The defendants escaped from prison, but were promptly captured. The California court held that the defense must show the existence of these elements (People v Lovercamp, supra, pp 831-832):

"(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future;

"(2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;

"(3) There is no time or opportunity to resort to the courts;

"(4) There is no evidence of force or violence used towards prison personnel or other `innocent' persons in the escape; and

"(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat." (Emphasis supplied.)

The California court found that the offer of proof satisfied these conditions. In United States v Michelson (559 F.2d 567, 569, 570, supra) the Court of Appeals for the Ninth Circuit did not adopt the principles of Lovercamp. Instead, the court focused on the necessity of the prisoner to return promptly to the custody of the law enforcement authorities, reasoning that even if imminent personal danger excuses escape, once the danger is remote, continued absence cannot be excused. In United States v Bailey (585 F.2d 1087, supra) the Court of Appeals for the District of Columbia, by a divided vote, sustained the defense, even where the prisoner did not return to custody promptly.

V

Whatever the merits of the Lovercamp analysis — and they appear to be considerable — our statute must be the final bench mark in assessing the defendant's conduct and his offer of [511] proof. In addressing the ultimate question of the validity of the defense of justification, we confront initially, whether, as broached under People v Barkman (34 N.Y.2d 624, supra), section 35.05 of the Penal Law ever authorizes the defense in a prosecution for the crime of escape. Second, assuming that inquiry is answered affirmatively, we must then consider whether the defendant's offer of proof fell within the statute.

In examining the statute vis-à-vis the crime of escape, we observe at once that it is not limited in scope to particular criminal conduct, for the statute reads generally that "conduct which would otherwise constitute an offense is justifiable * * * when" (Penal Law, § 35.05). The thrust of the statute is rather directed toward a situation occurring through no fault of the defendant, and the desirability and urgency of avoiding an imminent public or private injury overbalance the desirability of avoiding the injury which is contemplated by a violation of the statute for which the defendant is being prosecuted. In a broad sense, then, we think that a defendant prosecuted for escape from a penal institution can raise the defense of justification if in fact the escape was compelled by the existence of conditions posing an imminent danger of personal injury to the prisoner, which cannot be avoided by the defendant through resort to the authorities or other legal means.

We entertain no doubt that a convict, punished by imprisonment for the commission of a crime, is under a continuing duty to serve his sentence without resort to disorder or surreptitious attempts to escape; and under our system of justice it is socially desirable that a person found guilty of a crime be incarcerated for the period of time set by law as a form of punishment for his misdeed. At the same time, our system recognizes that if the imprisonment imposed on the convict suffers the existence of conditions beyond the bounds of the law, so that the convict is subjected to brutal and intolerable measures or to the danger of imminent personal injury, either from the prison guards or from other inmates, without hope of relief after reasonable appeals to the authorities, then the prisoner may claim justification for an escape if he thereafter surrenders to custody within a reasonably prompt time, and the defendant's proof must be submitted to the jury. Brutality in the treatment of a prisoner is not sanctioned simply because the prisoner was sentenced to imprisonment for the commission of a crime.

[512] Nonetheless, there are prescriptions in the statute which must be emphasized. It provides that imminent personal injury must be present before justification may be pleaded as a defense to a criminal act. Conditions in a prison may be crowded or unsanitary and yet not pose imminent danger to those confined. Relief from these conditions may be sought by the prisoner through appropriate legal action in the courts (see, e.g., Wilkinson v Skinner, 34 N.Y.2d 53, 59; Matter of Brabson v Wilkins, 45 Misc 2d 286, mod 25 AD2d 610, affd 19 N.Y.2d 433; Commonwealth ex rel. Bryant v Hendrick, 444 Pa 83; Coffin v Reichard, 143 F.2d 443; cf. Woodhous v Virginia, 487 F.2d 889; Perez v Turner, 462 F.2d 1056, cert den 410 US 944; see, generally, Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv L Rev 610). Indeed, the offer of proof made by the defendant included references to pending court proceedings concerning conditions in the institution where the defendant was confined. If, in contrast to the existence of unhealthful conditions generally in the prison, the prisoner's personal safety is threatened to the point of imminent injury and no other means of relief is reasonably available, the prisoner's escape to avoid the injury would constitute justification under the statute. Even in this extreme case, however, the prisoner should, as soon as possible, make known his presence and surrender to the law enforcement authorities (United States v Michelson, 559 F.2d 567, 570, supra).

Having determined in the affirmative the initial query whether an escape under any circumstances may be justified, we turn to the second query whether the defendant's offer of proof in this case was sufficient. We think that it was not. In the first place, the defendant remained at liberty from September 27, 1973, the date of his escape, to October 3, 1973, when he was apprehended, without any endeavor by him to return to custody. Moreover, his escape was not from the prison but from a hospital where he was undergoing treatment for an ailment; at the time it is clear that he was not under any imminent danger of personal injury. Beyond this, his offer of proof of threats in prison by prison guards was not specific as to individuals making the threats or time; and the proof that a detective bringing him to New York had threatened his life did not establish imminent danger, as the threat allegedly occurred in April, 1973 and the escape occurred some five months later. The offer of proof relating to the [513] existence of litigation challenging the conditions in Brooklyn House of Detention could not serve as a ground justifying escape, since in itself such legal proceedings did not establish imminent danger to the defendant, but rather proved the existence and use of remedies to correct such conditions. Finally, the offer of proof of psychiatric testimony concerning pressure on an individual confined under unhealthful prison conditions to escape from prison in our judgment does not satisfy the tests which the defense of justification demands. It is the presence of intolerable conditions and threats of imminent danger which establishes the defense, and the defense of justification implies stress on the prisoner arising from those conditions, without the need of psychiatric testimony.

We find, therefore, that the defendant's offer of proof was properly excluded.

VI

The defendant also urges that his escape was excused by duress. Our statute permits the defense of duress in the following language (Penal Law, § 40.00): "1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist."

We do not think that the circumstances of this case, even viewed in the light of the testimony offered to be proved, give rise to the defense of duress under the statute.^[9] There was no physical force exercised on the defendant at the time of the escape, nor was there a threat of imminent use of physical force on the defendant at the time of the escape. The defendant fled from a hospital where he had gone to receive treatment. Duress in the sense of the statute means immediate physical force or immediate threat of physical force. It may not be used as a defense when the force or threat is incapable of immediate exercise of realization.

[514] VII

Consequently, we hold that the defendant's conviction must stand, and that Criminal Term was not in error in excluding the defendant's offer of proof.

SUOZZI, J. (dissenting).

I vote to reverse the judgment of conviction and grant defendant a new trial.

I agree with so much of the majority opinion as holds that "a defendant prosecuted for escape from a penal institution can raise the defense of justification if in fact the escape was compelled by the existence of conditions posing an imminent danger of personal injury to the prisoner, which cannot be avoided by the defendant through resort to the authorities or other legal means."

However, I disagree with the majority's conclusion that defendant's offer of proof on the defense of justification was properly excluded as being insufficient as a matter of law.

As part of his offer of proof, defense counsel indicated that he would introduce testimony from a fellow inmate who was present when numerous threats were made on defendant's life by prison guards during the period commencing April 18, 1973, when defendant was committed to the Brooklyn House of Detention under an indictment charging him with murder, and September 27, 1973, when defendant was sent to Kings County Hospital (due to a possible ulcer), from whence he escaped on that very date.

In view of the fact, as the majority itself concedes, that an escape from prison may be justified in certain situations, it is clear that the defendant's offer of proof was of sufficient particularity to raise a genuine factual issue with regard to the defense of justification which could only be resolved upon submission to the jury.

Judgment of the Supreme Court, Kings County, rendered May 30, 1975, affirmed.

[1] The offer of proof was as follows: "Mr. Monges will testify to the fact that there were numerous threats made against Mr. Brown's life; that Mr. Monges first met Mr. Brown at around the time he was received into the Brooklyn House of Detention, around April 18th or thereabouts; that he was present while Correction Officers made numerous threats against Mr. Brown's life; that these threats continued up and until September 27th, 1973; that he had noted that Mr. Brown had gone to the hospital — or rather, I should say had gone for medical treatment on several occasions and that this was occasioned by the fact that Mr. Brown said he had pains in his chest and he complained about the — stating that these pains in the chest were caused by the numerous threats that were made. That's essentially what Mr. Monges will testify to. And of course, again, Your Honor, this goes to the whole issue of intent, which we have been trying to get the Court to — excuse me, to agree with. In other words, to agree with our position on the requisite intent in a criminal escape."

[2] The offer of proof was as follows: "Your Honor, Mr. Gulielmetti is a member of a law firm. He's a practicing attorney. He's been practicing the law since his admission to the bar in 1973. He's presently a member of a firm. Mr. Gulielmetti had previously worked with legal services. He was one of the attorneys who brought the suit Wilson (phonetic) v Beam (phonetic). And he has been involved extensively in prison rights litigation. Mr. Gulielmetti particularly has been involved in the litigation with respect to the conditions in the Brooklyn House of Detention. The suit, Wilson v. Beame, deals with the conditions on the 10th floor of the Brooklyn House of Detention, where Mr. Brown is presently housed. And that suit was started back in 1973. Mr. Gulielmetti can also testify, and I was going to ask that he be qualified as an expert witness, that he can also testify to the fact that there are numerous law suits going on at this time, challenging the conditions in the Brooklyn House of Detention. Many of them have been successful. One particular lawsuit, Jenkins (phonetic), I forget — Jenkins case, I forget who the defendant was. On that particular case, in this Jenkins case, it was found that the conditions were unconstitutional and they deprived the defendant's standing — all ready to stand trial several constitutional rights. And an order was entered which was stated that the conditions are so bad that the Court ordered that inmates be housed one cell, rather than several to a cell, as they were previously housed. That's basically the essence of the testimony."

[3] The trial transcript indicated that the name was spelled "Lapimer"; the defendant's brief spells the name "Latimer".

[4] The offer of proof reads as follows: "Mr. Lapimer's testimony is somewhat similar to Mr. Gulielmetti's. Mr. Lapimer is also a lawyer. He's been practicing law since 1968. He's presently working with Bronx Legal Services. Mr. Lapimer is or was the spear head in a suit which was commenced in 1972; also challenging conditions in the Brooklyn House of Detention. That suit was in the Federal Court and I think it was assigned to Judge Weinstein (phonetic). Mr. Lapimer can also testify to the fact that he has gone through the Brooklyn House of Detention on several occasions, with the Court, and that during the course of that lawsuit Judge Weinstein stated the conditions were so eronerous [sic] that they would in fact lead to escape, rather than discourage escape attempts. That's the essence of what Mr. Lapimer will testify to."

[5] The offer of proof reads as follows: "The other witnesses' names, Dan Pachoda. Mr. Pachoda works at the Legal Aid Society, Prison Rights project. And Mr. Pachoda has also been involved in a lawsuit, Wilson v. Beame, along with Mr. Gulielmetti. He presently is spear head in that particular lawsuit. Mr. Gulielmetti is basically concerned in his private practice, at this point. And Mr. Pachoda has taken over that lawsuit. Mr. Pachoda could also testify to the conditions in the Brooklyn House of Detention and he can testify to several lawsuits that have been brought challenging the conditions in the Brooklyn House of Detention; some of them successful."

[6] The offer of proof reads as follows: "Doctor Melvin Haywood is an attorney. He has a Doctorate of Jurisprudence. He works with a private law firm. Now he teaches law at Staten Island Community College and at Brooklyn College. He formerly was the head of the Community Defender at 1230 Fulton Street, which is a branch of the Legal Aid Society located in the Bedford-Stuyvesant area. He would have testified to his numerous visits to the Brooklyn House of Detention. He would have testified to his experience in the Court and he would have testified as to suits that have been brought challenging the jail conditions at the Brooklyn House of Detention."

[7] The offer of proof reads as follows:

"Doctor Michael Smith was our second witness. He's a Psychiatrist. He's presently from private practice. Doctor Smith would have testified as the effect of threats against an individual in terms of stress caused — personal stress caused in the individual and the lowering of the individual's voluntariness with respect to his actions.

"Those are the two witnesses that we had today. I was going to ask Doctor Smith a hypothetical question about threats made against Mr. Brown and what effect he feels that such threats might have had on Mr. Brown's volition in terms of his actions."

[8] The offer of proof reads as follows: "Mr. Artason is a member of the Major Case Squad. I think Mr. Spadaro at least knows of him. He's been a central key figure in most of Mr. Brown's cases. Mr. Artason picked Mr. Brown up in St. Louis around April, I think, of 1973, escorted him from St. Louis to New York, first by car and then he took Mr. Brown on a plane. He was handcuffed to Mr. Brown on the way back from St. Louis to New York. On several occasions during that trip, Mr. Artason took his revolver out, pointed it at Mr. Brown's head, stated on several occasions that he was a cop killer and didn't deserve to live. On one occasion, when they were driving in St. Louis with several other officers in the car, an automobile came alongside of the car. Mr. Artason and the other officers thought that the automobile was in some way related to Mr. Brown. All of the officers withdrew their pistols, put their pistols next to Mr. Brown's head and again stated that he didn't deserve to live. When it turned out that the automobile was not in any way related to Mr. Brown, they put their pistols back in. Mr. Artason followed Mr. Brown's murder case and was transported back around April of 1973 from St. Louis. The murder trial, I think, took place, either the latter part of 1973 or the first part of 1974."

[9] Some confusion arises in differentiating between the defense of duress and the defense of justification with respect to the crime of escape. Helpful discussions on this point appear in United States v Michelson (559 F.2d 567, 570-571, supra) and in United States v Bailey (585 F.2d 1087, 1096-1100, supra).