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

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

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

OPINION OF THE COURT

ROSENBLATT, J.

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

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

I.

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

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

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

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

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

II.

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

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

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

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

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

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

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

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

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

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

Order affirmed.

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

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

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

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

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

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.

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.

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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.

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

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

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

[504] HOPKINS, J. P.

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

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

I

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

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

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

[505] II

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

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

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

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

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

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

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

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

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

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

III

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

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

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

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

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

IV

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

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

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

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

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

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

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

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

V

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

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

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

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

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

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

VI

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

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

[514] VII

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

SUOZZI, J. (dissenting).

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

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

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

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

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

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

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

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

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

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

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

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

[7] The offer of proof reads as follows:

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

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

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

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

[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.