Under what circumstances is the use of deadly force legally justified in defense of others?

§ 35.15. Justification; use of physical force in defense of a person

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

(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or

(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

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

(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:

(i) in his or her dwelling and not the initial aggressor; or

(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction, acting pursuant to section 35.30; or

(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or

(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

Penal Law § 35.15 provides, in pertinent part: "A person may not use deadly physical force upon another person . . . unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use

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deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating" (Penal Law § 35.15[2][a]). A person is justified in using deadly physical force against another if he or she reasonably believes such to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force by such other person (see People v Heron, 130 AD3d 754, 755; People v Ojar, 38 AD3d 684).

"[J]ustification is comprised of both subjective and objective elements. The subjective element is concerned with whether the defendant believed that the use of deadly force was necessary; while under the objective prong, the jury must consider whether a reasonable person in the defendant's circumstances would have believed that deadly force was required" (People v Umali, 10 NY3d 417, 425). When a defense of justification is raised, "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" (id. at 425).

A charge on the defense of justification is required when requested if, viewing the evidence in the light most favorable to the defendant, there is a reasonable view of the evidence permitting the jury to find that the defendant's conduct was justified (see People v Irving, 130 AD3d 844; People v Heron, 130 AD3d at 755; People v Nunez, 120 AD3d 714; People v Ramirez, 118 AD3d 1108, 1112; People v Zayas, 88 AD3d 918, 920; People v Fermin, 36 AD3d 934, 935). To be entitled to a justification charge relating to the use of deadly physical force, the record must include evidence that the defendant reasonably believed the victim was using or was about to use deadly physical force and that he or she could not safely retreat (see People v Ramirez, 118 AD3d at 1112; People v Fermin, 36 AD3d at 935).

The NY Criminal Jury Instructions provide that the determination of whether a person reasonably believes deadly physical force to be necessary to defend himself/herself or someone else from what he or she reasonably believes to be the use or imminent use of deadly physical force by another individual, requires the application of a two-part test (see CJI2d[NY] Penal Law § 35.15). "First, the defendant must have actually believed that [the individual] was using or was about to use deadly physical force against him/her [or someone else], and that the defendant's own use of deadly physical force was necessary to defend himself/herself [or someone else] from it; and Second, a reasonable person' in the defendant's position knowing what the defendant knew and being in the same circumstances, would have had those same beliefs" (id.).

"Thus, under our law of justification, it is not sufficient that the defendant honestly believed in his [or her] own mind that he [or she] was faced with defending himself/herself [or someone else] against the use or imminent use of deadly physical force. An honest belief, no matter how genuine or sincere, may yet be unreasonable" (id.).

A "defendant would not be justified if he/she knew that he/she could with complete safety to himself/herself and others avoid the necessity of using deadly physical force by retreating" (CJI2d[NY] Penal Law § 35.15).

Mr. Brown's shooting of Mr. Cabbagestalk self-evidently constituted the use of deadly physical force. As relevant here, a defendant is justified in using "deadly physical force" upon another only if that defendant "reasonably believes that such other person is using or about to use deadly physical force" (Penal Law § 35.15[2][a]): in other words, both that "he believed deadly force was necessary to avert the imminent use of deadly force [and that] in light of all the circumstances ... a reasonable person could have had these beliefs" (People v. Goetz, 68 N.Y.2d 96, 115, 506 N.Y.S.2d 18, 497 N.E.2d 41 [1986]). However, the Penal Law provides that a defendant is never justified in using deadly physical force if that defendant is the "initial aggressor:" the first person in an altercation who uses or threatens the imminent use of deadly physical force

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(Penal Law § 35.15[1][b]; People v. Petty, 7 N.Y.3d 277, 285, 819 N.Y.S.2d 684, 852 N.E.2d 1155 [2006]).³

"Justification is a defense, not an affirmative defense, and therefore the People bear the burden of disproving it beyond a reasonable doubt" (Matter of Y.K., 87 N.Y.2d 430, 433, 639 N.Y.S.2d 1001, 663 N.E.2d 313 [1996] ). "[I]n considering

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whether the trial court's charge to the jury was adequate, the record must be considered most favorably to defendant ... [and] if[,] on any reasonable view of the evidence, the fact finder might have decided that defendant's actions were justified, the failure to charge the [justification] defense constitutes reversible error" (People v. Padgett, 60 N.Y.2d 142, 145, 468 N.Y.S.2d 854, 456 N.E.2d 795 [1983]). However, "when no reasonable view of the evidence would support a finding of the tendered defense, the court is under no obligation to submit the question to the jury" (People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188 [1982]).

The "initial aggressor" is the first person who uses or threatens the imminent use of physical force in a given encounter. However, even if someone is the initial aggressor with respect to mere physical force, another person may be the initial aggressor with respect to deadly physical force. If mere physical force is employed against a defendant, and the defendant responds by employing deadly physical force, "the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force" (People v. McWilliams, 48 A.D.3d 1266, 1267, 852 N.Y.S.2d 523 [4th Dept. 2008]).⁴

To determine who the "initial aggressor" is, then, both the sequence of the attacks (or imminently threatened attacks)

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and the nature of those attacks matter: which attacks were "physical force" and which attacks were "deadly physical force?" "Deadly physical force means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury" (Penal Law § 10.00[11] ). Deadly physical force, we have held, encompasses not merely the striking of the first blow or infliction of the first wound. It also encompasses acts by a person that cause the defendant reasonably to believe that the defendant is facing the "imminent threat" of deadly force (see People v. Valentin, 29 N.Y.3d 57, 60, 52 N.Y.S.3d 249, 74 N.E.3d 632 [2017] ). As for what constitutes such a threat, we held in People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441, 462 N.E.2d 1159 [1984] ) that the imminent threat to use a gun constituted the threat of deadly physical force even if the gun is never fired.

"The threat presented by a gun does not depend to any significant extent on the manner in which it is used. So long as a gun is operable, it constitutes deadly physical force, and a threat to use a gun, such as was made here, can only be understood as a threat that the weapon

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[125 N.E.3d 813]

is operable" (id. at 415, 474 N.Y.S.2d 441, 462 N.E.2d 1159 ).

Thus, the imminent threat to use a gun against another is, necessarily, a threat of deadly physical force. The first person to make such an imminent threat is, therefore, the initial aggressor with respect to deadly physical force.

Defendant's contention that the law of justification has no bearing on his conduct, solely because the discharge of his pistol was accidental, requires little comment. It is settled that the defense of justification applies fully to a defendant's risk-creating conduct, even though it had unintended consequences (see, People v. McManus, 67 N.Y.2d 541, 505 N.Y.S.2d 43, 496 N.E.2d 202; People v. Huntley, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257). That a defendant causes injury or death, not deliberately, but recklessly or negligently, does not remove his conduct from the scope of Penal Law article 35. As we explained in People v. McManus, supra, 67 N.Y.2d at p. 547, 505 N.Y.S.2d 43, 496 N.E.2d 202), "there is no basis for limiting the application of the defense of justification to any particular mens rea or to any particular crime involving the use of force." Hence, in a prosecution for any "crime involving the use of force, a charge on justification is warranted whenever there is evidence to support it." (Id., at p. 549, 505 N.Y.S.2d 43, 496 N.E.2d 202.) Indeed, in People v. Huntley (supra) we specifically held the defense applicable to a charge of reckless homicide (Penal Law § 125.15[1] ), the very crime at issue here (see also, People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759; People v. Rodwell, 100 A.D.2d 772, 474 N.Y.S.2d 45).

Nor, under these circumstances, can we accept defendant's contention that his allegedly defensive drawing of the pistol did not constitute the "use of deadly physical force" and, therefore, that his actions are not governed by Penal Law § 35.15(2). ² "Deadly physical force" is defined in Penal

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Law § 10.00(11) as that which is "readily capable of causing death or other serious physical injury" (emphasis added). That definition, adopted primarily for the statutory defense of justification (see, Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 10.00, p. 21), hinges on the nature of the risk created--i.e., its imminence or immediac as well as its gravity. The risk of serious injury or death and the capacity presently to inflict the same are central to the definition, not the consequence of defendant's conduct or what he intended.

From the foregoing, it follows that there is no basis for limiting the application of the defense of justification to any particular mens rea or to any particular crime involving the use of force. Indeed, the Legislature has clearly not done so. The introductory provision to article 35 of the Penal Law evinces an intent to give the justification defense the broadest possible scope. It states without qualification that the defense is available "[i]n any prosecution for an offense" (Penal Law § 35.00 [emphasis added]). Likewise, section 35.15, the provision specifically at issue in this case which outlines the circumstances under which the use of physical force and deadly physical force are justified, is devoid of any such limiting language. (See also, Penal Law § 35.05[2] and § 35.10[6].)

Accordingly, this court has rejected a restrictive application of the defense and, instead, has permitted the defense to be raised against diverse charges involving the use of force, regardless of the relevant mens rea (see, e.g., People v. Padgett, supra [criminal mischief, fourth degree; intentional];

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People v. Huntley, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257, affg. 87 A.D.2d 488, 452 N.Y.S.2d 952 [manslaughter, second degree; reckless]; cf. People v. Watts, supra [assault, second degree; intentional]; People v. Stridiron, 33 N.Y.2d 287, 352 N.Y.S.2d 179, 307 N.E.2d 242 [manslaughter, second degree, reckless]; People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759 [manslaughter, second degree; reckless]; compare, People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463 [criminal possession of a weapon, second degree; intentional]). As we made clear in People v. Padgett, (supra, 60 N.Y.2d at p. 146, 468 N.Y.S.2d 854, 456 N.E.2d 795) where we rejected an argument that the justification defense is only available in cases where the defendant's conduct is conceded to have been intentional, such a rule would be "a much too narrow interpretation of the circumstances under which this doctrine may be applicable." Reaffirming our decision in People v. Huntley (supra), where we held the defense applicable to a charge of reckless homicide (Penal Law § 125.15[1] ), we stated that a defendant is entitled to a charge "that his conduct might not have been criminal under the circumstances", whenever the defendant claims that "he engaged in [forceful] conduct in avoidance of [a] perceived attack" (60 N.Y.2d at p. 146, 468 N.Y.S.2d 854, 456 N.E.2d 795). There is no reason why the rule should be different solely because the crime charged is depraved indifference murder.

We have specifically held that justification may be asserted as a defense to manslaughter in the second degree (Penal Law § 125.15[1]), a crime involving the culpable mental state of recklessness (see, People v. Huntley, supra; see also, People v. Torre, supra; People v. Stridiron, 33 N.Y.2d 287, 352 N.Y.S.2d 179, 307 N.E.2d 242, supra). The rule should be applied with equal force to depraved indifference murder which involves the same mens rea (see, People v. Register, 60 N.Y.2d 270, 277-278, 469 N.Y.S.2d 599, 457 N.E.2d 704, supra).² To hold otherwise would permit an incongruous result: murder convictions could be obtained under the depraved indifference statute even where, because the prosecution could not disprove justification, convictions could not be obtained either for the lesser offense of manslaughter in the second degree or for the greater offense of intentional murder (Penal Law § 125.25[1]; § 125.27[1]) (cf. People v. Register, supra, at pp. 286-287, 469 N.Y.S.2d 599, 457 N.E.2d 704 [Jasen, J., dissenting]).

Here, defendant testified that he fired the rifle to "scare off" the five males who were beating and robbing his companion. Some members of the group, he said, were armed, had threatened him and his companion, and had chased him home while brandishing pistols. The evidence was sufficient to support a jury finding that defendant reasonably believed his actions were necessary to protect his companion from the use of deadly force and robbery. Consequently, with regard to the charge of depraved indifference murder--as with intentional murder--defendant was entitled to an instruction that the People had the burden of proving beyond a reasonable doubt that defendant's use of deadly physical force was not justified (Penal Law § 35.15). Here, the court could have given that instruction as part of its charge dealing with the elements of the crime and what must be proven to establish guilt. Alternatively, it could have given the requested charge separately as a "defense" after charging the elements. Because the court did neither, there must be a reversal and a new trial.

Accordingly, the order of the Appellate Division should be reversed, the conviction vacated, and the case remitted for a new trial.

Defendant asserted that when the inebriated victim used a knife to facilitate a sexual assault upon a woman in the apartment, defendant grabbed the knife and stabbed him. This appeal focuses on two elements of the trial court's instructions to the jury, both the subject of timely objection.

On the question of criminal intent, the court charged that "actions speak louder than words... A person is presumed to cause what he engages in doing. A person is presumed to cause and to do what he is doing [sic] to do intentionally." Determination of intent lies within the province of the jury; the court's instruction improperly shifted the burden of persuasion on this crucial element of criminal liability, thus denying defendant a fair trial (Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39).

The trial court further erred in refusing to go beyond a general charge of justification and give the more specific instruction where deadly physical force was assertedly in

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response to a reasonable belief that the victim was "attempting to commit a .... forcible rape" (Penal Law § 35.15[2][b]). The court's general charge did not encompass the specific reference to forcible rape. As counsel noted in pursuing his objection, "[H]ow can [the jury] decide something if they are not instructed on the appropriate law?" Viewing the conflicting testimony most favorably toward defendant, he was entitled to the specific charge, since, on a reasonable view of the evidence, the jury could have found that his actions were justified; failure to charge as requested amounts to reversible error under these circumstances (People v. Padgett, 60 N.Y.2d 142, 144-145, 468 N.Y.S.2d 854, 456 N.E.2d 795).