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DESPITE CONFLICTING EVIDENCE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS MANSLAUGHTER-ASSAULT CASE, DEFENDANT, WHO PROVIDED THE GUN TO THE SHOOTER, WAS DEEMED TO SHARE THE SHOOTER’S INTENT.

The Second Department, in an extensive decision with an equally extensive dissent, determined defendant was entitled to a new trial on manslaughter and assault charges because the trial judge did not instruct the jury on the justification defense. Defendant was not the shooter. Defendant provided the gun to the shooter (Martinez-Mendoza) during a confrontation with a group of people outside a bar, where defendant had been beaten up. Because it was alleged defendant shared the shooter’s intent, and because it was possible (despite conflicting evidence) the shooter feared the use of deadly force when he fired, defendant was entitled to the justification jury charge:

At the outset, we note that whether the defendant intended for Martinez-Mendoza to use the gun he provided or knew that he would use the gun does not preclude a defense of justification … .

… [H]ere, some evidence contradicted the defendant’s testimony. However, the record also included evidence, including testimony from Martinez-Mendoza, that, when viewed in the light most favorable to the defendant and drawing all reasonable permissible inferences in his favor, indicated the propriety of charging the justification defense requested by the defendant. Indeed, a justification defense was found to be appropriate in cases where part of a defendant’s testimony was inconsistent with a justification defense … , where a defendant’s testimony was in conflict with that of other witnesses … , and even where there was “strong” evidence to negate a defendant’s testimony relating to justification … .

Furthermore, we disagree with the conclusion drawn by our dissenting colleague that the defendant could not have reasonably believed that there was no ability to safely retreat, as demonstrated by the fact that the defendant, along with his female companions, were able to get to the car without incident a few minutes earlier. The use of lethal defensive force is limited to circumstances when the defender cannot “with complete personal safety, to oneself and others,” “avoid the necessity of so doing by retreating” … . However, the duty to retreat does not arise until the defendant forms a reasonable belief that another person “is using or about to use deadly physical force” … . More specifically, the other person’s deadly force must be actually occurring or imminent before the duty to retreat arises … . Here, the evidence, when viewed in the light most favorable to the defendant and drawing all reasonable inferences in his favor, might lead a jury to decide that it was not until the point in time that the defendant returned to his companions with the gun that the threat of deadly physical force was imminent. Thus, the justification defense remained available to this defendant, even though it may have been more prudent for his own safety for him to leave the area of [the bar] when he first went to the car to retrieve the gun … . People v Sanchez, 2017 NY Slip Op 01718. 2nd Dept 3-8-17

 

CRIMINAL LAW (DESPITE CONFLICTING EVIDENCE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS MANSLAUGHTER-ASSAULT CASE, DEFENDANT, WHO PROVIDED THE GUN TO THE SHOOTER, WAS DEEMED TO SHARE THE SHOOTER’S INTENT)/EVIDENCE (CRIMINAL LAW, JUSTIFICATION DEFENSE, DESPITE CONFLICTING EVIDENCE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS MANSLAUGHTER-ASSAULT CASE, DEFENDANT, WHO PROVIDED THE GUN TO THE SHOOTER, WAS DEEMED TO SHARE THE SHOOTER’S INTENT)/JUSTIFICATION DEFENSE (DESPITE CONFLICTING EVIDENCE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS MANSLAUGHTER-ASSAULT CASE, DEFENDANT, WHO PROVIDED THE GUN TO THE SHOOTER, WAS DEEMED TO SHARE THE SHOOTER’S INTENT)/ACCOMPLICE (CRIMINAL LAW, JUSTIFICATION DEFENSE, DESPITE CONFLICTING EVIDENCE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE IN THIS MANSLAUGHTER-ASSAULT CASE, DEFENDANT, WHO PROVIDED THE GUN TO THE SHOOTER, WAS DEEMED TO SHARE THE SHOOTER’S INTENT)

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