The First Department, in a full-fledged opinion by Justice Richter, over a two-justice dissent, determined that the request that the jury be instructed on the justification defense in this manslaughter case should have been granted. There was evidence that the decedent, Cabbagestalk, was aggressively striking the defendant and trying to grab a gun defendant was holding:
… [A] jury could conclude that defendant reasonably believed that Cabbagestalk, who was younger and taller than defendant, and just two feet away, would gain control of defendant’s gun … . A jury could also reasonably conclude that Cabbagestalk’s statement to defendant — “[Y]ou going to pull a gun out, you better use it” — constituted a threat that if defendant did not use the gun, Cabbagestalk would take the gun and use it to shoot defendant. This is particularly true in light of the evidence that Cabbagestalk was advancing toward defendant, throwing punches at his face, and grabbing for the gun at the same time he made the threat. People v Brown, 2018 NY Slip Op 01173, First Dept 2-20-18
CRIMINAL LAW (JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE THE DECEDENT WAS ADVANCING TOWARD DEFENDANT, THROWING PUNCHES AND TRYING TO GRAB THE GUN DEFENDANT WAS HOLDING (FIRST DEPT))/JUSTIFICATION DEFENSE (CRIMINAL LAW, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE THE DECEDENT WAS ADVANCING TOWARD DEFENDANT, THROWING PUNCHES AND TRYING TO GRAB THE GUN DEFENDANT WAS HOLDING (FIRST DEPT))/JURY INSTRUCTIONS (CRIMINAL LAW, JUSTIFICATION DEFENSE, JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE, THERE WAS EVIDENCE THE DECEDENT WAS ADVANCING TOWARD DEFENDANT, THROWING PUNCHES AND TRYING TO GRAB THE GUN DEFENDANT WAS HOLDING (FIRST DEPT))