[239] Yalkut & Israel, Bronx (Arlen S. Yalkut of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for respondent.

DEGRASSE and FREEDMAN, JJ., concur with TOM, J.P.; SWEENY and MCGUIRE, JJ., dissent in a separate opinion by MCGUIRE, J.

OPINION OF THE COURT

TOM, J.P.

The prosecution's theory of this case is that defendant entered a delivery truck, without authorization and while intoxicated, and caused it to strike vehicles and pedestrians in the intersection below. Defendant, however, alleges that he entered the vehicle only after it was already in motion, rolling downhill and, without starting the engine, unsuccessfully attempted to stop it. No witness actually saw defendant enter the vehicle, which was poorly maintained and grossly overloaded. Since there is a reasonable view of the evidence that defendant unlawfully entered and operated the vehicle while intoxicated in an attempt to avoid injury while confronting a situation not of his making, he was entitled to a justification charge, and Supreme Court's unexplained omission to so instruct the jury constitutes reversible error.

It is uncontroverted that on the afternoon of August 1, 2005, a box truck being used to make deliveries was parked at the right-hand curb, facing downhill on Mt. Eden Avenue in the Bronx, between the Grand Concourse and Walton Avenue. The driver, Francisco Rios, turned off the engine, left the keys in the ignition and went into a store. The vehicle was later observed proceeding downhill along Mt. Eden Avenue coming from the [240] direction of Walton Avenue and traveling westbound toward Townsend Avenue, where it went through the intersection, striking three persons. It was brought to a stop after colliding with oncoming cars approaching the intersection at Jerome Avenue. Defendant was then seen leaving the vehicle through the passenger door. Defendant did not have permission to operate the truck, nor did he possess the appropriate operator's license.

Carlos Montilla recognized the truck that he observed approaching Jerome Avenue as a vehicle that was parked every day on the hill at the corner of Mt. Eden and Walton Avenues. He also recognized defendant, whom he had known for about 10 years, as he emerged from the truck's passenger-side door. Montilla testified that defendant told him that he was "joking around" and "had taken the truck to play a trick on the owner." Montilla had also observed defendant drinking beer on the corner.

Following his arrest, defendant was subjected to blood alcohol and narcotics testing, which disclosed a blood alcohol level of.09%. The People's expert opined that at the approximate time of the accident, defendant's blood alcohol level would have been between .13% and .17%.

From Walton Avenue where the truck was parked, westbound to Townsend Avenue, Mt. Eden Avenue slopes down at a grade of 10%, which increases to 12% between Townsend and Jerome Avenues. Francisco Rios testified that it was his custom to leave the truck in reverse gear with the wheels either angled toward the curb or straight and the parking brake set. However, as the People concede, during his grand jury testimony, Rios stated that the truck's parking brake was not operational.

The People's interpretation of events is that "defendant, while intoxicated, got into Francisco Rios's truck to play a `trick' and recklessly caused the truck to move down Mt. Eden Avenue, hitting and killing Saquan Williams, Jr. and seriously injuring Tasha Gibbs and Giselle Buie."

The justification defense contained in Penal Law § 35.05 provides, in pertinent part:

"[C]onduct 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, [241] 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 ... 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."

Supreme Court refused defendant's request to instruct the jury on justification, stating, "I do not see how a Justification Charge would be warranted under the particular facts and circumstances." The court did not elaborate on its reasoning.

On appeal, the People adopt the unusual argument asserted by the prosecutor at trial—that by intentionally entering a truck that was already endangering the public in an effort to prevent harm, defendant did not create a risk of injury. They theorize that Penal Law § 35.05 (2) contemplates a situation confronting the defendant with a "choice of evils," where the defendant has engaged in conduct that, because it is criminal, requires justification to avoid criminal liability, and the defendant attempts to demonstrate that he resorted to such criminal behavior to avoid a greater injury. Since defendant denied either being intoxicated or speaking with Montilla, the People contend that "when the defense evidence is viewed in the light most favorable to defendant, defendant did not act recklessly or operate a vehicle while intoxicated." Thus, they conclude, he was not engaged in any statutorily prohibited conduct that would require justification, and the defense is unavailable.

The People advance the untenable argument that a defendant must first present a case that warrants conviction for criminal conduct before the right to assert a defense of justification can be invoked. The extent to which a law requiring a defendant to incriminate himself before putting in a defense might infringe upon constitutional rights guaranteed to the accused need not be addressed because the position advocated by the People is simply not the law.^[1] As stated in People v Butts (72 NY2d 746, 748 [1988]), "It is established New York case law that a defendant's entitlement to a charge on a claimed defense is not [242] defeated solely by reason of its inconsistency with some other defense raised or even with the defendant's outright denial that he was involved in the crime."

Nor is consideration of the availability of the justification defense confined to the evidence presented by the defendant, as the People propose. When deciding "whether a particular theory of defense should have been charged to the jury, the evidence must be viewed in the light most favorable to the defendant" (People v Farnsworth, 65 NY2d 734, 735 [1985]). The availability of the defense rests on the record as a whole, not merely the evidence produced by the defendant (People v Steele, 26 NY2d 526, 529 [1970] [alibi defense does not preclude possibility of justification raised by the People's case]).

People v Huntley (87 AD2d 488, 494 [1982], affd 59 NY2d 868 [1983]) is illustrative. There,

"a defendant charged with murder and manslaughter had testified, quite in conflict with other witnesses, that the victim of the stabbing death had initiated their encounter by approaching defendant with a knife and demanding his money. When defendant attempted to flee, he was pursued, and in the ensuing scuffle, the knife inadvertently went into the victim's back. The defendant's claimed effort to thwart an attempted armed robbery was held sufficient to require presentation of the justification issue to the jury, even though the defendant never admitted that he had intended to stab the victim" (People v Padgett, 60 NY2d 142, 145 [1983], citing Huntley, 87 AD2d at 494).

In Padgett, the defendant requested that the jury be instructed on the justification defense with respect to the offense of criminal mischief arising out of his breaking a pane of glass in an emergency door. As here, the appeal involved a finding that no reasonable view of the evidence supported the requested instruction (Padgett, 60 NY2d at 144), and the People likewise attempted to "limit the availability of the justification defense to cases in which the conduct is admitted to have been intentional, but in avoidance of a greater injury" (id. at 146). Noting that "the People have tendered a much too narrow interpretation of the circumstances under which this doctrine may be applicable," the Court of Appeals observed that, "as in Huntley, an aspect of the defendant's testimony is inconsistent with the defense," concluding that "it appears well settled that this type of inconsistency [243] should not deprive defendant of the requested charge" (id.). In short, the position advocated by the People has been rejected by the Court of Appeals on more than one occasion (see e.g. People v Steele, 26 NY2d 526 [1970], supra), as well as by this Court (see People v Smith, 62 AD3d 411, 412 [2009], lv denied 12 NY3d 929 [2009]; People v Suarez, 148 AD2d 367, 368-369 [1989]), and must be rejected here.

There was ample evidence presented at trial to warrant a justification charge. According to defendant, when he left a friend's store in the vicinity of the accident, he observed Rios's truck parked near 103 Mt. Eden Avenue. As he watched, the truck began to move. In an attempt to stop the truck, defendant climbed onto the passenger-side step and got into the truck, moving over to the steering wheel and brake. Defendant stated that he grabbed the wheel but was not able to steer the truck. Moreover, he testified that although he stepped on the brake many times, the truck did not stop and began picking up speed as it approached the intersection with Townsend Avenue. The truck then hit a car, taking off its side mirror. According to defendant, he tried to steer the truck but the wheel would not turn, and there was nothing he could do. The truck then struck pedestrians and other cars. Defendant stated that he never touched the ignition key when he was in the truck, nor did he press the gas pedal. The evidence showed that the speed of the truck, as it proceeded downhill striking vehicles and pedestrians, never exceeded 10 to 20 miles per hour.

After the truck stopped, defendant testified that he got out of the passenger's side and went into a bodega. However, contrary to Montilla's testimony, defendant stated that Montilla was not a friend of his; indeed, defendant asserted that he had never seen Montilla before. Defendant further stated that he did not speak to Montilla after the accident.

In addition to defendant's testimony, an accident investigator testified that the truck was overloaded to almost twice its maximum gross vehicle weight of 8,800 pounds and that the brake fluid reservoir was only two thirds full. Among other defects noted were lack of proper motor vehicle registration and emissions inspection, missing accelerator pedal, and electrical wiring that was exposed and unsecured in a harness. The investigator acknowledged that the truck could move and roll down the hill if left in a gear other than reverse, that steering and braking would be possible but more difficult without the engine running, and that both the low level of brake fluid and [244] the excess weight of the vehicle (15,800 pounds) would make braking more difficult. The investigator did not test the parking brake.

Whether it is credible that a parked truck should begin moving on its own and whether defendant, although intoxicated, would have been able to climb into a moving truck from the passenger side are not material to the availability of the justification defense, and the People do not suggest as much. Determinations of credibility are for the trier of fact. It is the function of the court to assure that a defendant's guilt is proven beyond a reasonable doubt (Steele, 26 NY2d at 528).

A justification defense would not have required the jury to speculate as to a scenario unsupported by any testimony (cf. People v Bonilla, 51 AD3d 585 [2008], lv denied 11 NY3d 734 [2008]). The jury could have rejected defendant's denial of being intoxicated, particularly since it was contradicted by ample prosecution evidence, while at the same time crediting the balance of his testimony; this is not a case where "no identifiable record basis exists upon which the jury might reasonably differentiate between segments of a witness' testimony" (People v Negron, 91 NY2d 788, 792 [1998]). If it made that distinction, the jury could have inferred that defendant took the otherwise reckless risk of driving the truck while in an intoxicated condition in order to prevent the vehicle from causing imminent injury to others, there being no time to take any other action.

As to the law, justification is defined as a defense, not an affirmative defense (Penal Law § 35.00), and the burden of disproving it rests upon the People (Penal Law § 25.00[1]; Steele, 26 NY2d at 528). Where the jury instruction is warranted, either by the defendant's evidence or from the People's case, viewed independently, the failure to disprove it requires reversal of the judgment of conviction on the ground that the defendant's guilt has not been proved beyond a reasonable doubt (Steele).

As to the views expressed by the dissent, the omission to charge a jury on justification is only harmless error if no prejudice to the defendant results. Thus, where a trial court instructed the jury on justification with respect to first-degree manslaughter involving intentional conduct, and the defendant was convicted of that offense, he was not prejudiced by the failure to give the instruction with respect to second-degree manslaughter and third-degree assault (People v Albino, 104 AD2d 317 [1984], affd for reasons stated below 65 NY2d 843 [1985]). [245] Likewise, it was harmless error to refuse to instruct a jury on justification where the defendant was charged with murder and attempted murder of two police officers since the jury's guilty verdict on the murder charge reflected the implicit finding that the defendant knew or should have known his victims were police officers, and the court's instructions on Penal Law § 35.27 made it clear that the defense of justification was not available under such circumstances (People v Degondea, 269 AD2d 243, 245 [2000], lv denied 95 NY2d 834 [2000]). Similarly, a trial court's failure to inform the jury that the victim's prior threats against the defendant could be considered in assessing whether the victim was the initial aggressor, in addition to assessing whether the defendant acted reasonably in shooting him, was found to be harmless where the victim, shot in the back of the neck, was unarmed, made no threat toward the defendant and could not have been facing the defendant when shot (People v Petty, 7 NY3d 277, 285-286 [2006]). Finally, as previously noted, the People do not suggest that the perceived improbability of defendant's actions is material to the issue of whether it was necessary to instruct the jury on the justification defense. It is for the trier of fact, not this Court, to decide which of the "[t]wo starkly different versions of what happened" is the more credible.

Accordingly, the judgment of the Supreme Court, Bronx County (Robert Torres, J.), rendered June 30, 2008, convicting defendant, after jury trial, of manslaughter in the second degree, assault in the second degree (two counts), vehicular manslaughter in the second degree, vehicular assault in the second degree (two counts), and operating a motor vehicle while intoxicated (two counts), and sentencing him to an aggregate term of 6 to 15 years, should be reversed, on the law, and the matter remanded for a new trial.

McGUIRE, J. (dissenting).

I respectfully dissent. With respect to the counts of second-degree manslaughter and assault, the court's refusal to charge the choice-of-evils defense pursuant to Penal Law § 35.05 (2) was correct. With respect to the lesser crimes of which defendant was convicted, operating a motor vehicle while intoxicated and offenses that have as an element the operation of a motor vehicle while intoxicated, any error in refusing to give the charge was inconsequential.

Two starkly different versions of what happened on Mt. Eden Avenue in the Bronx on the afternoon of August 1, 2005 were [246] presented to the jury. The People's evidence was that defendant, while intoxicated, got into the truck to play a "trick" on the operator and recklessly caused the truck to careen down a steep slope on Mt. Eden Avenue, hitting and killing a young boy and seriously injuring two adults. The crux of the defense case, consisting principally of defendant's testimony, was that defendant heroically jumped into the already moving truck in an effort to stop it from moving down the hill and the victims were struck by the truck after all his attempts to stop the truck failed. As the prosecutor argued on summation without contradiction from the defense, "there is one central issue in this case. Everything else flows from the answer to that central issue and [sic] as to the guilt of the defendant, and that central issue is how and why the defendant got behind the wheel of that truck."

In opposing defendant's request for an instruction on the choice-of-evils defense, the prosecutor correctly argued, "What the defendant did, according to the defense theory, was not a crime." Stressing that defendant's position was that "the truck was already moving" and "he was getting into it to try to prevent it from moving," the prosecutor went on to point out that "[i]f that is true, if the jury believes that, then it is not a reckless act, and the jury would have to find defendant not guilty. There is no need for a justification charge. That would confuse the issues even more and does not apply in this case." After taking a short recess, the judge denied the request, stating that he did "not see how a justification charge would be warranted under these particular facts and circumstances." The judge added that he was denying the request "based on [his] reading of the statute, and appropriate case law."^[2]

To convict defendant of the second-degree manslaughter count and the second-degree assault counts, the People were required to prove that his conduct recklessly caused death and serious physical injury (Penal Law § 125.15 [1]; § 120.05 [4]). That is, the People were required to prove, inter alia, that defendant's conduct created a "substantial and unjustifiable risk" (Penal Law § 15.05 [3]) of death and serious physical injury, and that he was "aware of and consciously disregard[ed]" each risk. But if defendant jumped into an already moving truck, it would be irrational to think that his conduct created a substantial and unjustifiable risk of either death or serious physical injury, let alone that he was aware of and consciously disregarded either [247] risk. If the jury accepted defendant's version, the only rational conclusion it could come to would be that defendant's conduct reduced rather than created these risks. Manifestly, the jury could have convicted defendant for committing conduct that created these risks only if it found that the People had proven beyond a reasonable doubt that he entered the parked truck and caused it to start moving.

That defendant was not entitled to an instruction on the choice-of-evils defense also can be seen by supposing that the court had expressly instructed the jury that defendant could be convicted of the second-degree manslaughter and assault counts only if the People proved beyond a reasonable doubt that he got into the truck and caused it to start moving. Had the jury been given such an instruction (or its equivalent, an instruction that the People were required to disprove beyond a reasonable doubt defendant's testimony that he jumped into an already moving truck), the pointless character of an instruction under Penal Law § 35.05 (2) would be all the more evident. To be sure, neither instruction was given—defendant never asked for either— but such an instruction was implicit in the court's correct instructions on both the elements of the second-degree manslaughter and assault offenses and the People's burden of proving every element beyond a reasonable doubt.

Although I agree with the majority that defendant need not have admitted that his conduct recklessly caused death or serious physical injury, there had to be some reasonable view of the evidence supporting the choice-of-evils defense (People v Cox, 92 NY2d 1002, 1004 [1998]; People v Hubrecht, 2 AD3d 289, 290 [2003], lv denied 2 NY3d 741 [2004]). Accordingly, there had to be a reasonable view of the evidence that, inter alia, defendant recklessly caused death or serious physical injury even though he jumped into an already moving truck. Indeed, Penal Law § 35.05 presupposes, as its opening sentence expressly provides, "conduct which would otherwise constitute an offense" (emphasis added). Similarly, Penal Law § 35.10 specifies when "[t]he use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal" (emphasis added). When the defendant's commission of an offense is not supported by a reasonable view of the evidence the defense relies upon, a justification charge is unwarranted, pointless and potentially confusing. Here, the notion that defendant jumped into an already moving truck and nonetheless created somehow a grave risk of death or serious physical injury is [248] simply absurd. Not surprisingly, neither defendant nor the majority outlines or suggests a line of reasoning that would support that notion.

By contrast, if the jury concluded that defendant jumped, or may have jumped, into an already moving truck, the jury reasonably could have found defendant guilty of both counts of operating a motor vehicle while intoxicated (Vehicle and Traffic Law § 1192 [2], [3]). However, if the jury concluded that defendant jumped, or may have jumped, into an already moving truck, whether the jury also reasonably could have found that defendant was guilty of the other lesser crimes with which he was charged is another matter entirely. These crimes, vehicular manslaughter in the second degree (Penal Law § 125.12 [1]) and vehicular assault in the second degree (Penal Law § 120.03 [1]), require proof not only that defendant operated the truck while intoxicated, but that "as a result of such intoxication" (Penal Law § 125.12 [1]; § 120.03 [1]), he "operate[d] such motor vehicle... in a manner that cause[d]" (id.) death (vehicular manslaughter) or serious physical injury (vehicular assault). Suffice it to say, it is far from obvious how either result was caused not by whoever or whatever caused the truck to careen down the hill but by the manner in which defendant operated the truck. (Nor, for that matter, is it at all obvious how any such culpable operation of the truck was the "result" of defendant's intoxication.) The point, however, need not be debated. Even assuming that on defendant's version of the facts a reasonable theory of causality can be articulated, the court's refusal to instruct the jury on the choice-of-evils defense as to these lesser crimes was inconsequential. After all, the jury's verdict establishes that it concluded that the People had proven beyond a reasonable doubt that defendant caused the truck to begin moving, i.e., that defendant had not jumped into an already moving truck in an attempt to stop it. We know the jury so concluded because it was correctly instructed on the elements of the counts charging reckless conduct—second-degree manslaughter (Penal Law § 125.15 [1]) and second-degree assault (Penal Law § 120.05 [4])—and the jury could not rationally have convicted defendant of these crimes if it entertained a reasonable doubt about whether he got into an already moving truck.

Moreover, our cases make clear that in light of the particular facts of a case, a jury's verdict can render irrelevant the issue of whether the jury should have been instructed on a defense (see e.g. People v Degondea, 269 AD2d 243, 245-246 [1st Dept 2000], [249] lv denied 95 NY2d 834 [2000] ["as the jury made findings which precluded the defense of justification, the court's refusal to charge the `defense of a third person' prong of the justification defense did not prejudice him"]; cf. People v Ruiz, 223 AD2d 418, 419 [1st Dept 1996], lv denied 88 NY2d 853 [1996] [failure to charge lesser included offense of seventh-degree criminal possession of a controlled substance harmless error as "(i)t would be irrational to find that the jury, in considering the possession count, would have credited defendant's claim that he had purchased the ... glassines for his personal use" and "(t)he verdict itself implies that the error did not affect the result"]). Here, too, for the reasons stated above, the jury's verdict makes clear that defendant was not prejudiced by the court's refusal to instruct the jury on the choice-of-evils defense with respect to the lesser crimes.^[3]

Returning to the convictions for second-degree manslaughter and assault, if an instruction under Penal Law § 35.05 (2) nonetheless should have been given, we should affirm just the same. First, as with the lesser crimes, the verdict makes clear that the jury found that the People had proven beyond a reasonable doubt that defendant caused the truck to start moving. Second, the evidence presented on the People's case proving that defendant entered the parked truck and caused it to start moving was overwhelming, and it included damning admissions defendant made immediately after the accident to a man, Carlos Montilla, who testified that he had played dominos with defendant and had known him for some 10 years. Specifically, after asking Montilla how many people he had killed, defendant said that he had been "joking around with the truck," that he "was making a joke and look what I've done." Moreover, defendant's claim that he jumped into the truck only after it started moving was preposterous, particularly because the evidence that defendant was intoxicated also was overwhelming and unrefuted.^[4] To accept defendant's story, the jury would have had to believe that [250] the truck inexplicably began moving of its own accord and that, despite his intoxication, defendant had the dexterity to climb the high step to the passenger side of the truck as it moved down the hill, pull up the door latch, open the door by pulling it toward his body while balancing on the step of the moving truck, and then clamber over the gear shift after managing to enter. In addition, the jury also would have had to credit defendant's claim that there was nothing he could do to stop or steer the truck, despite expert testimony to the contrary elicited by the People.^[5] Putting aside all these incredible aspects of his testimony, defendant failed to give the jury any explanation for why he would have jumped into the truck in the first place. To the contrary, defendant testified that before he got into the cab of the moving truck he could not see inside the cab. As for the damning testimony from Carlos Montilla, defendant sought to neutralize it only with the confounding claim that he did not know and had never seen him before. Defendant offered nothing by way of an explanation for Montilla's willingness to falsely accuse him. In short, if it was error not to charge the jury under Penal Law § 35.05 (2) as to the second-degree manslaughter and assault convictions, any error was harmless (see People v Petty, 7 NY3d 277, 285-286 [2006] [erroneous omission in justification charge harmless error]). For these same reasons, any error in not charging the jury on the choice-of-evils defense as to the lesser charges also was harmless.

Finally, defendant's challenges to the prosecutor's summation are meritless and warrant no discussion; also meritless is his claim that the concurrent sentences (the longest of which are an indeterminate sentence of 5 to 15 years on the second-degree manslaughter count and determinate terms of six years on each of the second-degree assault counts) are excessive.

Judgment, Supreme Court, Bronx County, rendered June 30, 2008, reversed, on the law, and the matter remanded for a new trial.

[1] "No person ... shall be compelled in any criminal case to be a witness against himself" (US Const Amend V).

[2] Unfortunately, the majority nonetheless refers to the "unexplained" omission of an instruction on the choice-of-evils defense.

[3] The majority misses the point when it stresses that "[i]t is for the trier of fact, not this Court, to decide which of the `[t]wo starkly different versions of what happened' is the more credible." The point, of course, is that the jury's verdict makes clear which of these two versions it credited.

[4] Contrary to the majority, defendant did not deny either being intoxicated or having consumed alcohol. Neither subject was broached during direct or cross-examination. In the course of testifying that he never gave his consent to having his blood drawn, however, defendant advanced the remarkable claim that at the hospital one of the police officers, not a nurse or doctor, drew his blood.

[5] Although the majority notes the accident investigator's testimony that "the brake fluid reservoir was only two thirds full," it does not mention the witness' testimony that although the fluid "was a little low," "[t]here was sufficient pressure while the vehicle was running to tell me that there was no problem with the brakes at that particular point." Nor does the majority mention the same witness' testimony that even with the ignition off, "the foot brake would work. It would be a little harder to push, but it would work."

[342] Robert T. Johnson, District Attorney, Bronx (Stanley R. Kaplan and Joseph N. Ferdenzi of counsel), for appellant.

[343] Yalkut & Israel, Bronx (Arlen S. Yalkut of counsel), for respondent.

OPINION OF THE COURT

PIGOTT, J.

The issue in this case is whether defendant was entitled to a charge of justification with respect to his conduct during a bizarre series of events that ended with the tragic death of one person and serious injury to two others. That defense, found in Penal Law § 35.05 (2), often referred to as the "choice-of-evils" defense, provides that conduct that would otherwise constitute an offense is justified when it:

"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."

Certain facts in this case are not in dispute. On August 1, 2005, one Francisco Rios double-parked his overloaded box truck, facing downhill, at 103-105 Mt. Eden Avenue in the Bronx. Rios placed the truck in reverse and turned the engine [344] off, leaving the keys in the ignition before going into a store. Defendant, who was walking by, entered the truck. While defendant was inside, the truck descended Mt. Eden Avenue and struck several cars and three pedestrians, seriously injuring two and killing one. At trial, the People and defendant offered the jury markedly different stories as to how all of this occurred.

The People claimed that an intoxicated defendant, who admittedly knew Rios, wanted to play a trick on him by moving his truck to the bottom of the hill. This theory was supported by the testimony of an eyewitness, Carlos Montilla, who had known defendant for 10 years and witnessed the accident. Montilla testified that defendant exited the truck after the incident and asked him, "How many people did I kill?" Montilla, seeing three people laying in the road, responded, "[Y]ou killed three people," to which defendant replied, "Oh, I was joking around with the truck. I was making a joke and look at what I've done." A police officer, called to the scene, testified that defendant had "glassy" eyes and "slurred" speech. Evidence established that defendant had a blood alcohol content of .09% nearly four hours after the incident which, according to an expert called by the People, meant that his blood alcohol content at the time of the incident was between .13% and .17%, substantially above the "legal limit" of .08%.

Defendant had a different version of events. He testified that he had previously owned a supermarket on Mt. Eden Avenue and was familiar with Rios's truck because Rios had delivered produce to his store. On this day as he was walking past the truck, he "saw a movement of the truck." He ran between parked cars to get to the truck which, by this time, was descending the hill and approaching an intersection. Defendant opened the passenger side door, jumped inside, slid over behind the steering wheel and pumped the brakes, to no avail. He tried steering, but the wheel was hard to move. Despite his best efforts, the truck struck several pedestrians crossing the street. He exited the truck on the passenger's side, and went to a nearby bodega. Defendant denied knowing Montilla or making any statement to him after the incident.

At the charge conference following the close of proof, defense counsel sought the justification charge in accordance with Penal Law § 35.05 (2). The court denied the request, stating that based upon its reading of the statute and case law, it failed to "see how a [j]ustification [c]harge would be warranted under these particular facts and circumstances."

[345] The jury found defendant guilty of manslaughter in the second degree (Penal Law § 125.15 [1]), two counts of assault in the second degree (Penal Law § 120.05 [4]), vehicular manslaughter in the second degree (Penal Law § 125.12), two counts of vehicular assault in the second degree (Penal Law § 120.03 [1]), and two counts of operating a motor vehicle while under the influence of alcohol (Vehicle and Traffic Law § 1192 [2], [3]).

The Appellate Division, in a 3-2 decision, reversed, holding that because there was "a reasonable view of the evidence that defendant unlawfully entered and operated the [truck] while intoxicated in an attempt to avoid injury while confronting a situation not of his making, he was entitled to a justification charge," further stating that Supreme Court's "unexplained omission" of the charge constituted reversible error (72 AD3d 238, 239 [1st Dept 2010]). The dissenting Justices would have affirmed the trial court. A Justice of that Court granted the People leave to appeal, and we now reverse.

Addressing the most serious felonies of which defendant was convicted—manslaughter in the second degree and assault in the second degree—we conclude that there was no reasonable view of the evidence that would have supported a justification charge relative to either of those crimes (see People v Cox, 92 NY2d 1002, 1004-1005 [1998]). Penal Law § 35.05 (2) is often referred to as the "choice-of-evils" defense, and properly so. To be entitled to such a charge there must be two "evils." And here, even under defendant's scenario, there was no "evil" on his part. According to defendant, he was not committing any offense when he jumped into a runaway vehicle to prevent it doing harm to others. So, as to the most serious charges, a justification charge was clearly unwarranted.

Supreme Court erred, however, in refusing to give a justification charge relative to the counts of operating a motor vehicle while intoxicated. If defendant elected to operate a motor vehicle, here the truck, while under the influence of alcohol, in an attempt to prevent injury, he faced the choice of two evils: drive while intoxicated or risk a runaway truck causing injury. Therefore, Supreme Court should have granted defendant's request for a justification charge with respect to the operating a motor vehicle while intoxicated counts. However, any error was harmless as evidenced by the jury's conviction of defendant of the second-degree manslaughter and assault counts. To find defendant guilty of those charges, the jury was required to conclude, beyond a reasonable doubt, that defendant caused the [346] truck's movement, i.e., that it was not moving before he entered it. Because the jury concluded that it was defendant who caused the truck to move, and not, as defendant contended, that the truck was already moving, the jury never would have considered his "choice-of-evils" defense on the charge of driving while intoxicated. As a result, the error of not giving the justification charge with respect to the vehicular manslaughter and vehicular assault counts, which include as an element the operation of a motor vehicle while intoxicated, was harmless, and defendant is not entitled to a new trial to correct the error.

Accordingly, the order of the Appellate Division should be reversed and the case remitted to the Appellate Division for consideration of the facts and issues raised but not determined on the appeal to that court.

Chief Judge LIPPMAN (dissenting in part).

I agree with the majority that defendant was not entitled to a justification charge with respect to the crimes of manslaughter in the second degree and assault in the second degree. However, as to the remaining counts, viewing the evidence in the light most favorable to defendant, he was entitled to the benefit of a choice-of-evils defense. Since the error in failing to give the requested instruction was not harmless, I dissent in part.

"Justification is a defense—as opposed to an affirmative defense—and the [P]eople have the burden of disproving such defense beyond a reasonable doubt" (People v Steele, 26 NY2d 526, 528 [1970] [internal quotation marks and citation omitted]). "When evidence at trial viewed in the light most favorable to the accused, sufficiently supports a claimed defense, the court should instruct the jury as to the defense, and must when so requested. A failure by the court to charge the jury constitutes reversible error" (People v Watts, 57 NY2d 299, 301 [1982]).

Viewing the evidence in the light most favorable to defendant, he engaged in criminal conduct—driving while intoxicated—in an attempt to avoid the potentially greater harm that could result from an unattended truck rolling down a busy street in a densely populated area. There is no support for the conclusion that defendant recklessly caused death and serious physical injury to the victims in order to avoid greater harm. In other words, as the majority concludes as to the top two counts against him, defendant was not forced to choose between two evils (see majority op at 345). Defendant's version of events does, however, [347] clearly support the requested justification charge as to the counts of driving while intoxicated and the alcohol-related assault and manslaughter charges. It was therefore error for the court to refuse to charge the jury with the justification defense as to those counts.

This type of error will be considered harmless when there is overwhelming evidence refuting the justification defense and no reasonable possibility that the requested charge would have led to a different verdict (see People v Petty, 7 NY3d 277, 286 [2006]; People v Jones, 3 NY3d 491, 497 [2004]). It cannot be said that the People produced overwhelming proof disproving defendant's claim of justification. One version of events may seem more likely than the other, but this presented a question of credibility for the jury to resolve. The absence of the charge certainly hurt the defense, depriving it of the judicial imprimatur of its perspective of the matter and the benefit of a favorable burden of proof. The majority's reliance on the convictions obtained without the warranted charge hardly shows the lack of impact of the error. I would, therefore, modify to reinstate the convictions of manslaughter in the second degree and assault in the second degree, and otherwise affirm.

CIPARICK, J. (dissenting).

Because I believe that Supreme Court erred in refusing to give a choice-of-evils justification instruction to the jury (Penal Law § 35.05 [2]), as requested by defendant, I respectfully dissent and would affirm the order of the Appellate Division.

It is well-settled that "a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor" (Mathews v United States, 485 US 58, 63 [1988]). In determining whether the evidence is sufficient, "[a] court must view the evidence adduced at trial in the light most favorable to the defendant" (People v Zona, 14 NY3d 488, 493 [2010]; see also People v Butts, 72 NY2d 746, 750 [1988]). A court's failure to instruct a jury on an entitled defense, when requested, "constitutes reversible error" (Zona, 14 NY3d at 493, citing People v Watts, 57 NY2d 299, 301 [1982]).

Here, the evidence adduced at trial warranted a justification instruction. As the Appellate Division majority correctly concluded, "the jury could have inferred that defendant took the otherwise reckless risk of driving the truck while in an intoxicated condition in order to prevent the vehicle from [348] causing imminent injury to others, there being no time to take any other action" (People v Rodriguez, 72 AD3d 238, 244 [1st Dept 2010]). The majority's assertion that the jury must have concluded that "defendant caused the truck's movement" (majority op at 345-346) to find him guilty of the second-degree manslaughter and assault charges has no bearing on whether defendant was entitled to his request to charge prior to the court's submission of the case to the jury. Had the jurors been properly charged on justification, we do not know what they would have concluded (People v Tucker, 55 NY2d 1, 7 [1981] [it is not the function of this Court to "speculat(e) on how the jury (would have) perceived and weighed the evidence"]).

In sum, because a reasonable view of the evidence supports the theory that defendant unlawfully entered and operated the vehicle while intoxicated in an attempt to avoid injury— confronting a situation not of his own making—the refusal of Supreme Court to give a justification charge relative to all the counts in the indictment was error.

Judges GRAFFEO, READ, SMITH and JONES concur with Judge PIGOTT; Chief Judge LIPPMAN dissents in part and votes to modify in a separate opinion; Judge CIPARICK dissents and votes to affirm in another opinion.

Order reversed, etc.

Walsh & Cleary, P. C. (Thomas Cleary of counsel), for appellant.

Patricia K. Fogerty for respondent.

HANCOCK, JR., J. P., CALLAHAN, DENMAN and BOOMER, JJ., concur.

[644] MOULE, J.

Early on the morning of February 25, 1983, in a trailer on North Shore Road in the Town of Cuba which she shared with Marshall Allison, defendant shot him in the head while he was sleeping.

She immediately called Chief Sweet of the Town of Cuba police to report the shooting. Officer Mackney of the Cuba police arrived a short time later and determined that Allison was dead. After executing a written waiver of her rights, defendant told Mackney that the decedent was the father of her two children, ages 2 and 1½. She also told Mackney that the decedent had been physically abusing her and, in fear that the abuse would continue, she killed him.

Defendant was subsequently indicted under subdivision 2 of section 125.20 of the Penal Law, which provides that a person is guilty of first degree manslaughter when: "With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision".

[645] At trial, the prosecution based its case principally on the testimony of Chief Sweet, State Police Investigator Emerson, Donya Abrams, a worker at a domestic violence hotline center, and Richard Meyers, a friend of both the decedent and defendant. Defendant did not dispute the prosecutor's claim that she had shot and killed Allison; rather, based upon the pattern of physical abuse she had been subjected to by the decedent in the past and her alleged belief that he was going to kill her when he awoke, she raised the defense of justification. The defense presented three principal witnesses: Dr. Taylor from Cuba, defendant and Dr. Rice, a psychiatrist.

Chief Sweet testified that he arrived at the scene of the shooting shortly after Officer Mackney and heard defendant tell Mackney that the decedent had been physically abusing her for the past year and a half and that, on the evening before the shooting, he told her that he wanted her to commit suicide or he would kill her. Sweet stated that his department had never received any complaints from defendant regarding domestic violence but that, at approximately 11:30 P.M. on the night before the shooting, he had been informed by Richard Meyers that defendant was being physically abused by the decedent. Meyers told Sweet that defendant had told him earlier that same evening of the abuse she was receiving. Meyers then said that he had reported the situation to the decedent's father, the Olean police and a domestic violence hotline service in Salamanca. Sweet offered to visit the couple's trailer, but Meyers told him not to because he had promised the defendant that he would not tell anyone. Meyers told Sweet that everything was fine at the trailer when he left earlier at about 6:30 P.M. and that the decedent's father had mentioned that he was going to speak with his son about the matter.

Investigator Emerson testified that he interviewed defendant at the trailer shortly after the shooting. Defendant told him that she killed the decedent because she could not stand the abuse any longer and felt that it was the only thing she could do to end the violence. After making sure that arrangements had been made for the children, Emerson felt that it would be better to continue their conversation [646] at the Wellsville State Police Barracks. After arriving there, defendant gave a five-page statement describing the couple's relationship, particularly during the days just prior to the shooting.

Defendant told Emerson that she and the decedent had been living together since 1978. She stated that from 1978 until July or August of 1981, her life with the decedent had been fairly normal. Shortly after the birth of their second child, however, the decedent began to frequently physically abuse her and accuse her of having sexual relations with other men. Beginning in September of 1981 the decedent became especially violent; this pattern of violence escalated dramatically after Christmas, 1982 and continued until the shooting.

Emerson further testified that defendant told him that Richard Meyers, on the afternoon prior to the shooting, had stopped in to see her and that she told Meyers of the abuse the decedent had recently been inflicting upon her. Meyers stayed at the trailer after the decedent arrived home from work at 3:30 P.M. and remained there until about 7:00 P.M., when he left to visit the decedent's father. Defendant and the decedent spent the remainder of the evening watching television without incident. At about midnight, Meyers returned to talk to the decedent about his abuse of defendant. From 12:30 A.M. to 3:00 A.M., the three sat and discussed the couple's problems. Thereafter, Meyers fell asleep in the living room and the couple proceeded to the bedroom, where decedent told defendant that "this is the last straw" and that she should kill herself. He then asked her how she intended to do so and she mentioned pills. He replied that pills were "not good enough". He repeatedly asked her if she had ever had sex with Meyers, which she denied. He then accused her of having sex with other men, grabbed her by the throat and choked her for a while. They argued further and eventually fell asleep.

At 4:20 A.M., an alarm clock went off and Meyers stuck his head into the bedroom. The defendant motioned to him trying to indicate that she wanted him to return to the living room without waking decedent. Meyers apparently misinterpreted the signal and left the residence. The defendant noticed his car lights from the bedroom window as [647] he left. Defendant then got out of bed to "walk about the house" and assess her situation. She feared that the decedent was going to abuse her even worse or possibly kill her when he awoke and decided that the only way out for her was to kill him.

Investigator Emerson was certain that the defendant had related no instances of physical abuse in the 24-hour period immediately preceding the shooting, other than the choking incident which occurred just before the couple fell asleep. Emerson testified that he did not believe that the choking incident was serious nor did he get the impression that the defendant considered it so. Emerson stated that he had asked defendant if she had ever sought official or familial help for her problems, but she indicated that she had not.

Donya Abrams testified that she was an employee of Cattaraugus Community Action, a nonprofit organization that sponsors various community programs. She was the director of the domestic violence program which, among other services, provided a 24-hour crisis "hotline".^[1] Abrams stated that she had never had any contact with defendant. On the evening of February 24, one of the volunteers staffing the hotline told her that she was having difficulty handling a call from Richard Meyers. Abrams subsequently telephoned Meyers and had two conversations with him lasting a total of 2¼ hours. Meyers described the defendant as a friend who was the victim of abuse and asked for assistance. Abrams described the call as "odd" in that Meyers seemed to be in fear for the defendant's safety and yet he would not accept any of the options offered by Abrams. Abrams offered medical attention and help with police protection as well as help with removing the defendant from the home to a shelter. Meyers responded that, if defendant left, the decedent would find her and that he did not want any police contact because, if they visited the home, the decedent would kill defendant after they left. Abrams then testified as follows:

[648] "Q. During any of those conversations, did he [Meyers] describe any violence that was threatened for that evening or the next day?

"A. He said that the only option that he could see that Leslie had was that she was going to have to kill her assailant, and it was the only possible way she could save herself. Shelter was not feasible, pressing charges was not feasible. Her only option was that she kill him.

"Q. He told you that?

"A. Yes, and he said that he wanted to know if she killed him in self defense, if she could come into the shelter after that. Obviously, no.

"Q. So you told him no?

"A. Yes.

"Q. Did this particular issue come up more than once?

"A. Over and over and over again with every option I gave, that was his pretty standard reply.

"Q. With every option you gave, he told you that Leslie would have to kill him?

"A. Yes."

Defendant repeatedly objected to Abrams' testimony as being inadmissible hearsay.

On cross-examination, Abrams stated that Meyers did not indicate that he had been requested to call the hotline by either the defendant or the decedent. Meyers had, in fact, stated that the situation at the trailer would become worse if it was learned that he told anyone. Abrams stated that on the evening of February 24, 1983, defendant called the hotline and spoke to a volunteer staff person for about one minute.

Richard Meyers testified that the decedent was his former brother-in-law^[2] and that he had known him for some 10 years. Meyers usually visited the couple at the trailer once or twice a month. In January and February, 1983 he visited a total of four or five times.

Prior to 1983, Meyers became aware through a phone conversation with the defendant that the couple was experiencing domestic problems. On New Year's Eve, Meyers [649] learned that the decedent was going out and he decided to visit the defendant to give her a pamphlet on abused wives. The pamphlet contained the hotline number for Cattaraugus Community Action. When Meyers went to the trailer, defendant told him she could not let him in because the decedent had "glued the door shut" so he could determine whether someone had entered. She told Meyers to hide the pamphlet in some boxes on the porch and that she would get it later. She also asked Meyers to leave quickly.

Meyers testified that he went to the trailer the day before the shooting to check on defendant and the children. At that time he noticed a burn mark on her face and various bruises on her legs. Meyers offered defendant some money to enable her to move out of the trailer, but she declined because she feared the decedent would find her. Defendant asked Meyers if she could live with him until she could find an apartment and he told her that she could. Meyers offered to take the defendant away from the trailer in his vehicle numerous times that day, but she repeatedly declined. Meyers told her that, if she pressed charges, she could move into a shelter for at least 30 days, but she responded that she was frightened the decedent would find out. When the decedent returned home from work, he talked with Meyers and stated that he wished he could find a way to get rid of his wife. Meyers then persuaded the decedent to go into town with him for some groceries, hoping that in the interim defendant would call the hotline. After returning to the trailer and watching television, Meyers left to go to the Olean police.

Meyers stopped first at the decedent's father's house and explained the situation. He suggested to the father that on Monday they go to the trailer while the decedent was at work and "get her out of there". He then went to the police and eventually called the hotline. Later that evening Meyers went to the Cuba police to ask them if they would go to the trailer and occupy the decedent so that he could remove defendant. The police told him they would go to speak with the defendant the following day while the decedent was at work. Meyers called the hotline again and mentioned that he felt the defendant was suicidal. Contrary to Abrams' testimony, Meyers stated that he never indicated that he felt the decedent's life was in danger.

[650] Meyers returned to the trailer later in the evening. He spoke privately in the bathroom with decedent and told him that he had seen the marks on defendant's face. Meyers also expressed his belief that defendant was suicidal and should get medical or psychological attention. The decedent stated that the couple was going to see a therapist in the future. The decedent then spoke privately with defendant in the bathroom. When they came out, defendant stated that she had told the decedent "everything". The decedent seemed confused and began to mumble. Meyers then announced that he was going to call a therapist but instead he called the hotline again. He put defendant on the phone and she talked for about 15 minutes. Meyers heard her setting up an appointment with a therapist. After the phone call, Meyers told defendant privately that he wanted to leave. She asked him to stay because she was afraid the decedent would kill her if he left. Meyers told the decedent that his mother's house, where he was living, would be locked at that time of the morning and asked if he could stay at the trailer. The decedent allowed him to stay in the living room. At about 2:00 A.M. the couple retired to their bedroom; Meyers fell asleep and awoke at about 4:00 to 4:30 A.M. He decided to leave because he was confused and depressed. He knocked on the couple's bedroom door to announce his departure as an alarm clock in the bedroom sounded. Defendant motioned to him to be quiet and he subsequently left.

On cross-examination, Meyers stated that defendant had told him that the decedent would often glue the door of the trailer shut when he would go out in order to tell if defendant left the trailer. He also testified that she had told him of being physically abused by the decedent with various instrumentalities. Meyers stated that the decedent never admitted abusing defendant.

The decedent's parents, Frances and Jack Allison, both testified that they had offered to remove defendant from the domestic situation at the trailer on numerous occasions in the months preceding the shooting. Additionally, Nanette Nowak, the decedent's sister, testified that defendant had at least two relatives living nearby in Olean.

[651] For the defense, Dr. Taylor testified that he had conducted a physical examination of defendant following the shooting and had discovered multiple wounds covering her body which were in various stages of healing. She had abrasions over her left eye, on the right side of her face and on her neck. The abrasions on her neck were transverse and appeared both on the front and back of her neck and, according to Dr. Taylor, could have been caused by rope burns. Defendant had several puncture wounds, welts and bruises on her arms and torso, a contusion and an abrasion inside her vagina, and superficial burns, abrasions and contusions on her legs and feet. Dr. Taylor estimated that the injuries were anywhere from a few days to three weeks old and might have been the result of abuse or battering.

Defendant testified in detail concerning physical abuse she suffered from the time she moved in with decedent in 1978. Through Christmas of 1981 the severity of the abuse increased; on one occasion the decedent took her outside and beat her head against a tree and on another he stabbed her in the foot with a pencil, which resulted in a visit to the hospital to remove part of the pencil. Defendant indicated that the abuse was almost always related to the decedent's accusations that she was "sleeping around". She admitted that she had had sexual relations with another man in the fall of 1979 but insisted that she had otherwise been faithful to the decedent. Defendant testified that she eventually told the decedent of the incident because she was suffering from guilt.

In the fall of 1982 the abuse took on an even more sinister tone. The decedent discovered a bull whip in a utility building on the property and began using it to beat defendant while she was hog-tied. He told her that he was teaching her a lesson about lying as to her fidelity. Around Thanksgiving the decedent forced defendant to get a piece of wood from the woodpile and used it to beat her about the body, striking numerous blows to the head and, in addition, breaking one of her toes. Defendant testified that decedent also abused her with various devices, including ropes, belts, a wooden dildo, a lighter, a vacuum cleaner attachment, gloves, needle-nosed pliers and a hunting knife. On New Year's Day, 1983 defendant spoke to a third [652] party about the abuse for the first time, telling the decedent's mother that she had been whipped.

Defendant acknowledged that she continued to have sexual relations with the decedent despite the abuse because she felt that she was his slave; at times the decedent insisted that she call him master.

The week of the shooting, defendant stated that violence escalated to an even higher level. On Monday, February 21, 1983, the decedent roughed up defendant prior to leaving for work in the morning and verbally abused her upon his return in the afternoon. On Tuesday, the 22nd, the decedent told defendant he intended to prevent her from having sex with other men and proceeded to place an electric immersion coil into her vagina. When defendant removed the hot coil, the decedent took it from her and applied it to various parts of her body. That same day the decedent attempted to hang defendant in the shed. Defendant testified that the decedent struck her with a mallet when she tried to position herself to keep from choking. The decedent eventually hit defendant in the head, causing her to black out, and later forced her to put her hands on a table so that he could beat them with the mallet.

On the day before the shooting, the decedent punched defendant and beat her head against the cupboards because of the manner in which she had awakened him for work. Defendant stated that, when Meyers came to the trailer on the night before the shooting to talk with the decedent, she had wanted to prevent their discussion. When the decedent brought her into the bathroom after talking to Meyers, defendant testified that he told her: "You know, I had a talk with God, and God says I have to kill you, and he said that I have to kill the kids, too." The decedent also indicated that he was going to take his own life in order to escape punishment. All of this was going to occur after Meyers left. Defendant subsequently told Meyers privately that she wanted him to stay.

When decedent and defendant returned to the living room, the subject of abuse was discussed and the decedent told Meyers that defendant was a liar. When the couple retired to the bedroom, the decedent told the defendant that she had "really blown it" and that tomorrow she would [653] die. He gave her the choice of being killed or killing herself. He concluded that he would have to kill her, the children and himself after Meyers left. Defendant felt that he was serious because of his tone of voice and the look on his face. When Meyers later appeared at the bedroom door to announce his departure, defendant motioned for him to stay; she did not call out for fear of waking the decedent. Defendant stated that she could not drive and that decedent's truck outside the trailer was of no use to her. In any event, the truck keys were in decedent's pocket. As defendant contemplated her situation, she noticed the guns in the living room and decided that shooting decedent was her only way out. She then took a .22 caliber rifle and shot decedent in the head five times from short range while he was sleeping in the couple's bed.

Defendant stated that she never considered going to her parents about her suffering because they did not approve of her choice of living arrangements and running back to them would have been an admission of failure. She testified the decedent would use anything he could come up with as a basis for abusing her. He told her on numerous occasions that he would find her and kill her if she ever left him. Instead of seeking help, defendant stated that she tried to be the best wife and mother that she could be so as to make the decedent happy. Defendant testified that, while she told Meyers of some of the abuse she had been suffering, she swore him to secrecy about it. She never read the pamphlet on abuse he gave her for fear that the decedent would find out.

On cross-examination, defendant stated that while she saw a gynecologist during her pregnancies, she never mentioned the abuse she had been receiving. She did not seek help because she did not know where to go and because she hoped that decedent was merely going through a phase and the problem would resolve itself. Defendant acknowledged that she had been receiving public assistance but she never broached the subject of abuse with the social services authorities. Defendant also acknowledged that the decedent's mother had offered to help remove her from the situation at the trailer but that, by the time she realized that she should leave, the decedent had already begun to make his threats.

[654] Defendant said that, while there were opportunities for her to have read the pamphlet on abuse in private, at such times she had forgotten about it. She acknowledged that on the day prior to the shooting, Meyers had told her that he could help remove her from the trailer and find a safe place for her to stay. She also stated that the written statement prepared by the police after the shooting did not contain all of the information which she had provided including decedent's reference to God's directives prior to the shooting. Defendant admitted that she did not mention this statement by the decedent during her Grand Jury testimony. The incident on the morning before the shooting, where the decedent had attacked the defendant upon awakening, had also not been mentioned in either the written statement or at the Grand Jury.

Dr. Matilda Rice, a certified psychoanalyst, testified concerning the battered wife syndrome. Dr. Rice described the battered wife syndrome as a multistage form of familial "disease". In stage one there is verbal abuse and possibly minor physical abuse. Stage two involves an escalation of physical abuse in degree and quantity and stage three occurs when the abuse "gets totally out of control". Having examined defendant only a few months after the shooting, Dr. Rice opined that defendant displayed the classic signs of the battered wife syndrome and that her situation was at "the worst end of stage three".

Dr. Rice stated that the abused wife undergoes a personality change as the abuse increases. She becomes frightened and unable to project her thinking into the future. She lives her life from one beating to the next and her thoughts relate solely to her efforts to avoid the next beating. The wife is usually hopeful that, if she pleases the husband, the abuse will stop. For his part, the husband usually expresses remorse after a beating and attempts to reconcile with gifts and/or promises to refrain from abuse in the future. The wife then sees the husband in a different light and is filled with false hope. Another aspect of the syndrome is that the wife eventually feels that she cannot escape her tormentor and that she will be tracked down if she attempts to flee the situation. Her self-esteem vanishes and her confidence is shattered. She feels that no one [655] would believe her if she told them about the abuse and, thus, she keeps it to herself.

Dr. Rice stated that a battered wife does not consider retaliation and, in her opinion, defendant was not planning to retaliate when she awoke on the fateful morning. She also opined that the decedent had given "signals" to the defendant, such as the hanging, that he was close to actually killing her. According to Dr. Rice, defendant was terrified on the morning of the shooting and she saw killing the decedent as a means of escape. Dr. Rice had "no doubt" that, when the defendant pulled the trigger, she was reasonably in fear for her life and the lives of her children. Dr. Rice opined that defendant was neither psychotic nor emotionally disturbed at the time of the shooting.

On cross-examination, she acknowledged that the battered wife syndrome had not been completely accepted in psychiatric circles. She said that a woman in stages one and two of the syndrome still generally has the capability of reaching out for help.

On rebuttal for the People, Investigator Emerson testified that defendant had never mentioned that the decedent had claimed to have spoken with God.

In his closing statement, defense counsel told the jury that the sole issue in this case was whether defendant justifiably had acted in self-defense. He went on to emphasize Dr. Rice's opinion that defendant was not emotionally disturbed at the time of the shooting. Defense counsel subsequently requested that the court delete any reference to extreme emotional disturbance in its charge to the jury. The stated basis of this request was defense counsel's concern that the jury would dwell on the concept of emotional distress and neglect to give defendant's justification defense the consideration it deserved. The court denied this request and made the following references to extreme emotional distress in its charge:

"THE COURT: As you will note, the law of this State is explicit in stating that the fact that homicide was committed under the influence of extreme emotional disturbance need not be proved in any prosecution for the crime of [656] manslaughter in the first degree. Therefore, in your deliberation, you need not consider whether or not the defendant acted under the influence of extreme emotional disturbance * * *

"Again, I want to caution you that because the charge of manslaughter in the first degree, under subdivision 2 of Section 125.20 of the Penal Law, presupposes the existence of extreme emotional disturbance, it is not necessary for the People or the Defense to prove the existence or nonexistence of extreme emotional disturbance on the part of the defendant."

Defense counsel also specifically requested that the court delete any reference in its charge on justification to the concept of retreat. The prosecution conceded that defendant was under no legal obligation to retreat since the incident occurred in defendant's dwelling and even went so far as to request the court to distinguish between the availability of alternatives to defendant prior to the shooting and the concept of retreat. Despite both these requests, the court charged the jury on justification as follows: "THE COURT: If the defendant, Leslie A. Emick, was confronted by the appearance of danger on February 25, 1983, which aroused in her mind an honest and reasonable conviction and fear that she was about to suffer death or serious physical injury, she would be justified in using deadly physical force in her self-defense. Even so, a person is not justified in the use of deadly physical force if she knows that she can retreat without the use of such deadly physical force with complete safety to herself and other persons. However, she does not have to retreat if she is in her own dwelling, and she is not the initiator of the agression [sic]. If a person is not the initiator of the aggression, she is not required to leave her home to avoid the threat of physical danger even if the party making the threat is a member of the same household."

The jury thereafter returned from its deliberations three times to request clarification of the court's charge on justification. The jury's third request was for the court to clarify the concept of retreat and the requirement that defendant must have "exhaust[ed] all possible means of retreat". In each case the court merely reread the relevant [657] portion of its original charge. Approximately one-half hour after its third request, the jury returned a guilty verdict. Defendant was thereafter sentenced to an indeterminate term of imprisonment of 2 to 6 years.

Four issues are presented on this appeal: (1) whether the indictment made extreme emotional distress an element of the crime of manslaughter in the first degree; (2) whether the trial court erred in permitting testimony regarding the availability of alternatives to defendant prior to the shooting; (3) whether the court erred in allowing the introduction of Donya Abrams' testimony concerning her conversation with Richard Meyers the night before the shooting; and (4) whether the court's charge on extreme emotional disturbance, as set forth in subdivision 2 of section 125.20 of the Penal Law, and the concept of retreat was erroneous as a matter of law.

The first issue to be considered is whether the indictment made extreme emotional distress an element of the crime of manslaughter in the first degree. This issue stems from the last sentence of subdivision 2 of section 125.20 of the Penal Law, the section under which defendant was indicted, which provides: "The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision". Defendant's argument that this sentence makes extreme emotional disturbance an element of the crime charged is refuted by the statute's characterization of that concept as a "mitigating circumstance" which need not be proven. The rejection of extreme emotional disturbance as an element of first degree manslaughter is further supported by the staff notes of the Temporary Commission on Revision of the Penal Law and Criminal Code which provide, in relevant part, that the last sentence of subdivision 2 of section 125.20 of the Penal Law was intended to "assure that [extreme emotional disturbance] is neither an element of first degree manslaughter nor a defense thereto and need not be alleged by the People or proved by either party in a prosecution therefor" (Fourth Interim Report of NY Temporary Comm on Revision of Penal Law and Criminal Code, p 30).

[658] The second issue presented is whether the court erred in permitting testimony regarding the availability of alternatives to a defendant prior to the shooting. Defendant argues that the following evidence was highly prejudicial in view of the fact that she was under no obligation to retreat and, thus, should not have been admitted at trial: decedent's parents' testimony that they had made numerous offers to remove defendant from the trailer in the months preceding the shooting; decedent's sister's testimony that defendant had two relatives living nearby in Olean at the time of the shooting; and Donya Abrams' testimony about the various avenues of relief available to defendant through the community domestic violence program.

Generally, "all relevant evidence is admissible * * * unless to admit the evidence would violate some exclusionary rule" (Richardson, Evidence [Prince, 10th ed], §§ 5, 146-147; see Ando v Woodberry, 8 N.Y.2d 165; People v Murray, 90 AD2d 640; People v Ahearn, 88 AD2d 691). Here, the People correctly assert that the evidence in question is extremely relevant and probative as to defendant's state of mind at the time of the shooting. This evidence was critically important since it was up to the jury to determine, from a subjective standpoint, whether defendant reasonably believed that she was in imminent danger of having deadly physical force inflicted upon her and whether the nature and extent of the force used to meet that danger was reasonable under the circumstances. Since defendant's alleged fear of being immediately killed when the decedent awoke was premised, to a large extent, on the escalating pattern of abuse she had been subjected to over the preceding months, it was proper for the People to show how defendant apparently ignored offers of help during this time and, instead, elected to remain at the trailer with the decedent.^[3] The evidence of alternatives was admissible since it was relevant to the reasonableness of defendant's perceptions and not to the question of whether defendant was obligated to retreat.

[659] The third issue is whether the court erred in admitting Donya Abrams' testimony concerning her conversation with Richard Meyers the night before the shooting. Defendant argues that Abrams' testimony was inadmissible hearsay, and that its introduction was extremely prejudicial to her defense of justification.

The hearsay rule "forbids the use of an assertion made out of court as testimony to the truth of the fact asserted (Richardson, Evidence [10th ed — Prince], § 201; People v Settles, 46 N.Y.2d 154, 166)" (People v Edwards, 47 N.Y.2d 493, 496). The People argue that Abrams' testimony concerning her conversation with Meyers was not hearsay since it was not offered for its truthfulness, but, rather, to show the climate of the evening preceding the shooting. This argument is without merit. The People do not explain, nor can we conceive of, how the jury could have possibly been enlightened as to the climate of the evening by Meyers' statements without necessarily accepting them as true. At best, these statements were offered to show Meyers' state of mind on the night before the shooting. Even if this were the case, however, the statements were not properly admissible "to show the state of mind of the witness, since [Meyers'] state of mind was in no way relevant in this matter" (People v Allen, 74 AD2d 640, 642).

Given the fact that defendant's defense of justification was based upon her claim that she feared for her life on the morning of the shooting, principally because of the death threat issued only a few hours earlier by the decedent, permitting the jury to hear that Meyers believed that on the night before the shooting, prior to the decedent's alleged death threat, she would have to resort to killing the decedent was extremely prejudicial to defendant's case. While Meyers indicated only that it was his belief that defendant would have to resort to killing the decedent, his belief may well have been impermissibly imputed to defendant by the jury because of the frequent contact between Meyers and defendant on the day before and the morning of the shooting. Imputing this belief to defendant would have fatally undermined defendant's claim that she did not formulate the intent to kill the decedent until the morning of the shooting by injecting premeditation into the case.^[4]

[660] Since defendant's justification defense was not overwhelmingly disproved beyond a reasonable doubt, the court's error in allowing Abrams to testify concerning her conversation with Meyers requires reversal of defendant's conviction and the granting of a new trial (People v Crimmins, 36 N.Y.2d 230).

While resolution of this appeal does not require reaching the final issue, whether the court's charge on extreme emotional disturbance and retreat was erroneous, since these questions may recur upon retrial, they merit discussion.

The first aspect of defendant's attack on the court's charge with respect to extreme emotional disturbance is that it impermissibly shifted the burden of proof on intent to defendant. While it is true that the court instructed the jury to presuppose the existence of extreme emotional disturbance, the jury was clearly instructed on the nature of the element of intent and that the People had the burden of establishing that element. Defendant's argument incorrectly equates extreme emotional disturbance with intent. As the Court of Appeals stated in People v Patterson (39 N.Y.2d 288, 302, affd 432 US 197): "In New York, the prosecution is at all times required to prove, beyond a reasonable doubt, the facts bearing the defendant's intent. That the defendant acted because of an extreme emotional disturbance does not negate intent. The influence of an extreme emotional disturbance explains the defendant's intentional action, but does not make the action any less intentional."

Defendant also argues that the court's direction to the jury to presuppose the existence of extreme emotional disturbance confused the jury with respect to defendant's justification defense. The basis of this argument is the claim that, without clarifying instructions, there is a logical conflict between saying a person is emotionally disturbed and yet capable of thinking and acting reasonably. [661] While the two concepts are not mutually exclusive, given that the reasonable belief standard set forth in the justification statute (Penal Law, § 35.15) refers to the subjective belief of the defendant (People v Miller, 39 N.Y.2d 543, 548; People v Wagman, 99 AD2d 519, 520), the failure of the court to properly explain to the jury the concept of extreme emotional disturbance and emphasize that the statutory presumption should not influence and should not prevent consideration of defendant's justification defense was error.

Finally, since defendant was in her own dwelling and, pursuant to her theory of justification, was not the initial aggressor (Penal Law, § 35.15, subd 2), the court should not have mentioned retreat in its charge. The prosecution even agreed that it was improper for the court to charge retreat. The effect of this charge, particularly as evidenced by the jury's third request for clarification on the concept of retreat,^[5] was to needlessly confuse the jury and divert it from the central question in this case, whether defendant reasonably believed she was about to suffer death or serious physical injury at the hands of the decedent on the morning of the shooting.

The judgment of conviction should be reversed and defendant granted a new trial.

Judgment unanimously reversed, on the law and facts, and a new trial granted.

[1] While the hotline is located in neighboring Cattaraugus County, there are no precise boundaries for the organization's services.

[2] Meyers had been divorced from the decedent's sister since the shooting.

[3] It would seem that the principal reason the defense put Dr. Rice on the stand to testify concerning the "battered wife syndrome" was to rebut the common perception that defendant could have left the decedent and their turbulent domestic setting. It would have been improper for the court to allow this testimony, explaining why defendant did not leave the decedent, and not allow the People the opportunity to show that she was given various alternatives to remaining alone with the decedent.

[4] Worthy of note is the extremely prejudicial form of the first question put to Abrams concerning her conversation with Meyers: "During any of those conversations, did [Meyers] describe any violence that was threatened for that evening or the next day?" It is unclear whether the question was referring to violence threatened by the decedent or by defendant. Abrams' response, that Meyers said defendant was going to have to kill the decedent in order to save herself, could have been taken by the jury to mean the only imminent threat of violence known to Meyers came from defendant.

[5] That the jury was obviously confused and preoccupied with the concept of retreat is evident from the reference in their third request to that part of the court's charge dealing with "exhausting all possible means of retreat". This language was never used by the court.

26 N.Y.3d 170
42 N.E.3d 688
21 N.Y.S.3d 191
2015 N.Y. Slip Op. 07784

The PEOPLE of The State of New York, Respondent
v.
Christopher E. WALKER, Appellant.

No. 147.

Court of Appeals of New York.
Oct. 27, 2015.

Phillips Lytle LLP, Buffalo (Timothy W. Hoover and Patrick A. Sheldon of counsel), and Timothy P. Donaher, Public Defender (James Eckert of counsel), for appellant.

Sandra Doorley, District Attorney, Rochester (Geoffrey Kaeuper of counsel), for respondent.

OPINION OF THE COURT

STEIN, J.

[42 N.E.3d 689]

On this appeal, defendant argues that the standard criminal jury instruction on the initial aggressor exception to the justification defense misstates the applicable law where defendant claimed that he intervened in an ongoing fight that began in his absence in order to shield a third party from an unlawful attack. We agree and, therefore, reverse.

I.

Defendant was charged in an indictment with murder in the second degree after stabbing and killing the victim during a fight between the victim, defendant's brother and defendant's girlfriend that allegedly started at the victim's home, in defendant's absence.^[1] Defendant testified that he was at his own home when his former wife notified him that someone was beating his brother with a hammer at a house down the street. Defendant grabbed a kitchen knife and went to help his brother, who he found on the victim's porch. Defendant averred that he ran onto the victim's porch, and tried to break up the fight after he saw the victimwho was high on cocaine and drunkhitting his brother in the head with a hammer. Defendant claimed that, when the victim turned to hit him and drew back the hammer as if to strike him again, defendant threw up his arm to stop the blow and then swung his arm around, stabbing the victim in the chest. After the victim jumped or fell from the porch, defendant grabbed the hammer and walked home with the others. Defendant's brother later wrapped the knife and hammer in defendant's bloody shirt and placed them under the stairs leading to defendant's front porch, where the police found them.

Subsequent testing revealed the victim's DNA on the handle of the hammer. In addition, several eyewitnesses testified at trial that defendant's brother and girlfriend were arguing with the victim, that the three of them began physically fighting with each other, and that, shortly afterward, defendant ran onto the victim's porch, leading to a larger scuffle at the end of which the victim staggered and fell

[42 N.E.3d 690]

off his porch. According to these witnesses, after the three kicked the victim, defendant walked back to his house with blood on his shirt and a knife in his hand.

At the charge conference, Supreme Court indicated that it would, at defendant's request, give a charge on the justification defense. Defendant then specifically requested that the court read the standard criminal jury instruction on justification, but exclude the portion that addressed the initial aggressor rule, because defendant did not stand in the shoes of anybody initially involved in the fight. Alternatively, defendant argued that, if an initial aggressor charge were to be used at all[, it]

should indicate the first person to use deadly force, not offensive force. In contrast, the People asserted that there was a fair view of the evidence to show that ... defendant [was] acting in concert with his brother and girlfriend, which makes him accountable as an initial aggressor.

The court reserved decision on the issue, eventually ruling at a subsequent charge conference that the initial aggressor charge, as then set forth in the criminal jury instructions, was proper because it was supported by a reasonable view of the evidence. The court stated, however, that it would add language, based upon People v. McWilliams, 48 A.D.3d 1266, 852 N.Y.S.2d 523 (4th Dept.2008), lv. denied 10 N.Y.3d 961, 863 N.Y.S.2d 145, 893 N.E.2d 451 (2008), that where a defendant initiated non-deadly force and [was] met with deadly physical force[,] the defendant may be justified in the use of deadly physical force. In that case the term initial aggressor would be properly defined as the first person in the encounter to use deadly physical force. Defendant reiterated his request that any language regarding the initial aggressor rule be omitted entirely because he was concerned as to whether or not there would be confusion as to which person ... they need to look at in terms of being an initial aggressor; the court again denied that request.

In summation, the prosecutor argued that the evidence demonstrated that defendant brought this butcher knife ... to a verbal argument that he had no business being a part of. Although thereby acknowledging that defendant arrived after the argument had commenced, the prosecutor described the conflict in a manner that made it appear as though defendant was acting in concert with his brother and his girlfriend from the beginning, characterizing the circumstances of this argument or confrontation as a three on one. Three people [20] years younger than [the victim] on his own porch accosting him. The prosecutor repeatedly stated that no matter how hard [the victim] tried, they just wouldn't leave (emphasis added), [the victim] was just trying to get them to leave (emphasis added), and that [i]f the defendant would have just left the porch that night, [the victim] would have lived to see another day. The prosecutor also argued that the evidence showed that defendant and his accomplices brought the hammer to the victim's house, and asked the jury to consider [h]ow was it that the defendant and his accomplices came on to [the victim's] porch?

Thereafter, the court charged the jury on defendant's justification defense, explaining that [u]nder the law a person

may use deadly physical force upon another individual when and to the extent that he reasonably believes it to be necessary to defend himself or someone else from ... the use or imminent use of deadly physical force by such individual. The court further charged the jury on the initial aggressor rule, stating, as relevant here,

[42 N.E.3d 691]

Notwithstanding those rules that I just explained, the defendant would not be justified in using deadly physical force ... if he was the initial aggressor. Initial aggressor means the person who first attacks or threatens to attack ... Where there is a reasonable view of the evidence that the defendant initiates non-deadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and ... in such cases the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force ... A person who reasonably believes that another is about to use deadly physical force upon him need not wait until he is struck or wounded. He may in such circumstances be the first to use deadly physical force so long as he reasonably believed it was about to be used against him ... Arguing, using abusive language, calling a person names or the like unaccompanied by physical threats or acts does not make a person an initial aggressor.

The jury acquitted defendant of second-degree murder, but found him guilty of manslaughter in the first degree. Supreme Court subsequently sentenced defendant to 25 years in prison, to be followed by five years of postrelease supervision. The Appellate Division unanimously affirmed the judgment of conviction (114 A.D.3d 1134, 980 N.Y.S.2d 181 [4th Dept.2014] ), and a Judge of this Court granted leave to appeal (23 N.Y.3d 1044, 993 N.Y.S.2d 257, 17 N.E.3d 512 [2014] ).

II.

It is well settled that, [i]n evaluating a challenged jury instruction, we view the charge as a whole in order to determine whether a claimed deficiency in the jury charge requires reversal (People v. Medina, 18 N.Y.3d 98, 104, 936 N.Y.S.2d 608, 960 N.E.2d 377 [2011] ; see People v. Umali, 10 N.Y.3d 417, 426427, 859 N.Y.S.2d 104, 888 N.E.2d 1046 [2008], cert. denied 556 U.S. 1110, 129 S.Ct. 1595, 173 L.Ed.2d 685 [2009] ). Reversal is appropriateeven if the standard criminal jury instruction is givenwhen the charge,

read ... as a whole against the background of the evidence produced at the trial, likely confused the jury regarding the correct rules to be applied in arriving at a decision (People v. Andujas, 79 N.Y.2d 113, 118, 580 N.Y.S.2d 719, 588 N.E.2d 754 [1992] ; see Umali, 10 N.Y.3d at 427, 859 N.Y.S.2d 104, 888 N.E.2d 1046 ). When the defense of justification is raised in cases involving deadly force, the People must demonstrate beyond a reasonable doubt that the defendant did not believe deadly force was necessary or that a reasonable person in the same situation would not have perceived that deadly force was necessary (Umali, 10 N.Y.3d at 425, 859 N.Y.S.2d 104, 888 N.E.2d 1046 ). As the trial court properly recognized, the justification defense is not available to an initial aggressor except in circumstances not present here (see Penal Law 35.15[1][b] ). However, while the portions of the charge that the court read to the jury regarding the initial aggressor rule were accurate in themselves, defendant correctly argues that the charge, taken as a whole, was confusing and misleading under the circumstances of this case because the court did not go on to explain the manner in which the initial aggressor rule applies when a defendant intervenes in an ongoing struggle to protect a third party who the defendant reasonably believes is being unlawfully beaten.

Traditionally, this Court applied an alter ego rule to such scenarios, holding that in cases of simple, third-degree assault, an intervenor stood in the shoes of

[42 N.E.3d 692]

the third party being assaulted and intervened at his own peril that he was acting under a mistaken belief of fact regarding the lawfulness of the beating (see People v. Young, 11 N.Y.2d 274, 275, 229 N.Y.S.2d 1, 183 N.E.2d 319 [1962] ). The Court reasoned that the right of a person to defend another was not greater than the right of the third party to defend himself or herself (see id. ).^[2] The Court's decision in Young was criticized extensively. In particular, commentators argued that

a rule of law that an intervener acts at his own peril, especially if the decision is widely publicized, may well deter conduct that would actually assist the process of law enforcement because of the potential intervener's fear that he may be mistaken about the facts and therefore may subject himself to criminal liability (see Recent Developments, Intervenor Held Liable for Assault Despite Reasonable Belief That His Conduct Protected Another from Unlawful Harm, 63 Colum. L. Rev. 160, 168 [1963] ).

Shortly after Young was decided, the Penal Law was revised. The Commentaries to Penal Law 35.15 written by the executive director of the Commission on Revision of the Penal Law and Criminal Code and counsel to the Commission (see McKinney's Cons. Laws of N.Y., Book 39 at iii-iv [1967 ed.] )indicate that the revisions legislatively overruled Young, stating that if the case were to be litigated under the revised provision, a different result would be required (Richard G. Denzer & Peter McQuillan, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 39, Penal Law 35.15 at 63 [1967 ed.] ). Indeed, as then-Justice Theodore T. Jones recognized in People v. Melendez, 155 Misc.2d 196, 201, 588 N.Y.S.2d 718 (Sup.Ct., Kings County 1992), the Penal Law was further revised to permit a justification defense to be considered even if the defendant had operated under a mistake of fact regarding the innocence of the person being defended, providing that [a] person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless ... [s]uch factual mistake is of a kind that supports a defense of justification as defined in article [35] of this chapter (Penal Law 15.20[1][c] [emphasis added] ).

The court in Melendez held that a charge on justification in the context of the defense of another that is [t]otally lacking in ... any guidelines as to the law where the person protected is a wrongdoer or initial aggressor ... [is] confusing and misleading (155 Misc.2d at 197198, 588 N.Y.S.2d 718 ). Regarding the potential confusion over the term initial aggressor in the context of defense of another, Melendez explained that

[o]rdinarily, the good samaritan intervenor would be the initiator of the contact between himself/herself and the person struggling with the person being defended. Thus, if initial aggressor referred to the contact between [the] intervenor and the person struggling with the person being defended, the justification of another defense would rarely, if ever, be available.

The only conclusion is that initial aggressor refers to the initial conflict between the person being defended and

[42 N.E.3d 693]

the person with whom the third party is struggling (id. at 201, 588 N.Y.S.2d 718 ).

This potential confusion over the term initial aggressor is precisely the concern that defense counsel referenced when objecting to the charge here. We agree with the conclusion reached in Melendez , that the standard charge is misleading unless a supplemental charge is given on the meaning of initial aggressor in the defense-of-another scenario (see id. at 201202, 588 N.Y.S.2d 718 ). Thus, the jury should have been charged that, in the context of this case, the initial aggressor rule meansin sum and substancethat if defendant, as

the intervenor[,] somehow initiated or participated in the initiation of the original struggle or reasonably should have known that [his brother, as] the person being defended[,] initiated the original conflict, then justification is not a defense ... If [defendant] had nothing to do with [the] original conflict and had no reason to know who initiated the first conflict, then the defense is available (id. at 201, 588 N.Y.S.2d 718 ).

The failure to give such a supplemental instruction here was not harmless because the evidence does not overwhelmingly demonstrate that defendant was involved in the initiation of the physical confrontation, that he was the first to use deadly physical force, or that he had reason to know who initiated the original conflict (cf. People v. Petty, 7 N.Y.3d 277, 285286, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006] ). In short, due to the omission of the supplemental instruction regarding the intervenor who innocently comes to the defense of another who he or she believes is being assaulted, the instruction did not adequately convey the meaning of [initial aggressor] to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met (Medina, 18 N.Y.3d at 104, 936 N.Y.S.2d 608, 960 N.E.2d 377 ).

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed, with leave to the People, if they be so advised, to resubmit the charge of manslaughter in the first degree to a new grand jury (see People v. Bradley, 88 N.Y.2d 901, 904, 646 N.Y.S.2d 657, 669 N.E.2d 815 [1996] ).

Chief Judge LIPPMAN and Judges PIGOTT, RIVERA, ABDUSSALAAM and FAHEY concur.

Order reversed and indictment dismissed, with leave to the People, if they be so advised, to resubmit the charge of manslaughter in the first degree to a new grand jury.

--------

Notes:

[1] Defendant's brother and girlfriend were charged with manslaughter in the first degree.

[2] The People's argument for giving the initial aggressor charge here mirrored the traditional view of the law. They argued that the charge was required because the evidence showed that defendant was acting in concert with his brother and girlfriend, thereby mak[ing] him accountable as an initial aggressorthat is, that he stood in the shoes of the two others involved in the fight, even if he was not initially present, because he was acting in concert with them.

--------

Carolyn Connors Balowitz, Linda S. Reynolds and Barbara Davies Eberl for appellant.

Kevin M. Dillon, District Attorney (Susan D. Nusbaum and John J. DeFranks of counsel), for respondent.

Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE and BELLACOSA concur.

[556] HANCOCK, JR., J.

Defendant was convicted after a jury trial of second [557] degree manslaughter (Penal Law § 125.15 [1]), second degree assault (Penal Law § 120.05 [2]), and fourth degree criminal possession of a weapon (Penal Law § 265.01 [2]). His sole contention on appeal is that the court's jury charge on the defense of justification (Penal Law § 35.15) employed an improper standard for determining the reasonableness of defendant's belief that it was necessary to use deadly physical force. We agree with defendant that the trial court's instruction failed to satisfy fully the requirements of Penal Law § 35.15 as explained in People v Goetz (68 N.Y.2d 96, 112-115). Section 35.15 requires an assessment of reasonableness which must be determined from the point of view of the particular defendant under the standard of a reasonable person in defendant's circumstances at the time of the incident. Accordingly, there should be a reversal and a new trial.

I

In an indictment dated November 8, 1985, defendant was charged with the second degree murder of Eric Stone, the second degree assault of Keith Robinson, and fourth degree criminal possession of a weapon. The trial testimony, viewed in a light most favorable to defendant (see, People v Collice, 41 N.Y.2d 906), revealed that defendant, a 19-year-old college student, was on the porch of a house in Buffalo with Diane Jackson, Jelean McMillan, and Arlene Woods. Woods, who had a knife in her possession, got into an argument with Jackson. The argument continued as Jackson and Woods walked away from each other. Suddenly, Woods doubled back after Jackson and threatened to stab her. Defendant managed to get the knife away from Woods and placed it in a paper bag.

At about that time, three male teen-agers arrived on the scene. Two of these youths — Eric Stone and Keith Robinson — began calling defendant "faggot" and Woods a lesbian. Despite defendant's pleas to be left alone, Stone, Robinson and others continued shouting epithets at defendant as he walked down the street. Stone and Robinson also threatened defendant, saying "We'll `fuck' you up" and "We'll kick your ass".

Stone left the scene for a few minutes and returned carrying a stick (sometimes referred to as a pipe), 2 to 2½ feet in length and 1 to 3 inches in diameter. After more argument, Stone struck defendant with the stick, and defendant stabbed him in the chest. Stone fell to the ground and dropped the [558] stick. Robinson then picked up the stick and began chasing defendant out of the area where the stabbing had taken place. When Robinson returned, he had been stabbed in the hand. Stone died as a result of the stab wound. Defendant was arrested several hours later.

At the precharge conference, the Trial Judge declined to give the defense's proposed justification charge, stating that the proposed charge was not required under People v Goetz (68 N.Y.2d 96, supra). The Judge told both attorneys that he would charge in accordance with Goetz, but was unable at that time to state the precise language. The following is that portion of the court's charge under section 35.15 which pertains to the requirement of reasonableness:

"You have heard the conflicting stories told by the witnesses as to what actually happened, and you must consider these stories under the rules of law as I have explained them to you. Having decided in your own minds that what truly occurred, you must then decide whether there was legal justification for the Defendant's alleged acts. In order to find justification for the Defendant's acts, you must find that he believed his conduct necessary to defend himself from what he reasonably believed to be an unprovoked physical assault against himself even if he was mistaken in his conclusion that the victim was about to assault him. As long as he reasonably believed that such assault was about to take place, he was justified in using physical force to repel such an assault. If from all of the testimony you have heard, you believe that the victim's conduct was provoked by the Defendant himself with an intent to cause a physical injury to the victim, or that the Defendant was the initial aggressor in the altercation, then such conduct was not legally justifiable to warrant a verdict of not guilty."

The defense exception stated, among other things, that the charge "did not direct the jury to place themselves, or a reasonable person in [defendant's] place, and the Goetz decision states * * * a reasonable person * * * is now the standard, but there still is that subjective element * * * and you're looking at it from [defendant's] point of view" (emphasis added). The jury convicted defendant of second degree manslaughter, second degree assault, and fourth degree criminal [559] possession of a weapon. The Appellate Division affirmed and a Judge of this Court granted defendant leave to appeal.

II

In People v Goetz (68 N.Y.2d 96, supra), we concluded that section 35.15 "retains an objective element" (People v Goetz, supra, at 112) for assessing the reasonableness of defendant's belief in the necessity for use of deadly force. But, in rejecting the argument that the standard of reasonableness should be purely subjective, we emphasized that the statute requires a determination of reasonableness that is both subjective and objective (id., at 113-115). The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude (see, 1 CJI[NY] PL 35.00, Introductory Comment, at 848-849).

To determine whether a defendant's conduct was justified under Penal Law § 35.15, a two-step inquiry is required. The jury must first determine whether defendant actually believed that deadly physical force was necessary (see, People v Goetz, supra, at 115). If the People fail to meet their burden of proving that defendant did not actually believe that the use of deadly physical force was necessary, then the jury must move to the second step of the inquiry and assess the reasonableness of this belief (id., at 115).

We held in Goetz that Penal Law § 35.15 requires a jury to consider both subjective and objective factors in determining whether a defendant's conduct was reasonable. We stated that "a determination of reasonableness must be based on the `circumstances' facing a defendant or his `situation' * * * [A] jury should be instructed to consider this type of evidence in weighing the defendant's actions." (Id., at 114-115.) Evidence of a defendant's "circumstances" includes relevant knowledge that the defendant may have had about the victim, the physical attributes of all those involved in the incident, and any prior experiences that the defendant may have had "which could provide a reasonable basis for a belief that another person's intentions were to injure or rob him or that the use of deadly force was necessary" (id., at 114).

III

In this case, the jury was never instructed that they should [560] assess the reasonableness of defendant's belief that he was in deadly peril by judging the situation from the point of view of defendant as though they were actually in his place. They were never told, in words or substance, that in deciding the question of reasonableness they "must consider the circumstances [that] defendant found himself in" (id., at 113) as well as defendant's background and other characteristics and the attributes of the other persons involved (id., at 114). The Trial Judge's repetition of the word "reasonable" and the phrase "reasonably believed" was not sufficient to inform the jurors that they should assess defendant's circumstances from defendant's position. The charge did not direct the jury's attention to the factors that we outlined in Goetz as critical to the jury's consideration of the defendant's circumstances, and did not inform the jurors that they should mentally place themselves in defendant's circumstances when judging reasonableness.

We are unpersuaded by the People's contention that a subjective element was sufficiently injected into the charge on reasonableness in the court's instruction that the jury must consider "the conflicting stories told by the witnesses" in deciding what truly occurred. This instruction was no more than a reiteration of the general charge to the jury on its duty to resolve conflicts in the testimony and it was not related to the particular instruction on justification which followed.

The People's alternative argument that the deficiency in the justification charge should be treated as harmless error is unavailing. Consideration of the factors required by Goetz (see, People v Goetz, supra, at 113-115), including defendant's background and characteristics and the circumstances confronting him at the time of the incident — given the heightening tensions and the threats and epithets — might have been significant in the jury's assessment of the reasonableness of defendant's belief that he was in peril. In view of the sharply conflicting testimony of the witnesses, we cannot say that the proof of guilt was so forceful and compelling that, had a proper and complete justification instruction been given, the result would not have been different (see, People v Crimmins, 36 N.Y.2d 230, 241-242).

Accordingly, the order of the Appellate Division should be reversed and a new trial ordered.

Order reversed, etc.