You are here: / / BECAUSE THE DEFENDANT DREW HIS GUN BEFORE THE UNARMED VICTIM “SWIPED”...
,

BECAUSE THE DEFENDANT DREW HIS GUN BEFORE THE UNARMED VICTIM “SWIPED” AT IT, THE DEFENDANT WAS THE INITIAL “DEADLY FORCE” AGGRESSOR AND WAS NOT ENTITLED TO THE JUSTIFICATION-DEFENSE JURY INSTRUCTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Wilson, reversing the Appellate Division, determined defendant (Mr. Brown) was not entitled to the jury instruction on the justification defense. The Court of Appeals found that the defendant was the initial “deadly force” aggressor because he was wielding the gun before the unarmed victim (Mr. Cabbagestalk) “swiped” at the gun:

Mr. Wolf [an eyewitness who testified at trial] said he heard the older man [defendant] say, “Stay away from my daughter, don’t come around here.” Mr. Cabbagestalk responded, “you can’t tell me where to be.” According to Mr. Wolf, Mr. Cabbagestalk was “getting in the older guy’s face a little bit,” “trying to back him down,” and Mr. Marshall [who was with Mr. Cabbagestalk] was trying to calm Mr. Cabbagestalk down.

Mr. Wolf testified … he observed Mr. Cabbagestalk throwing a few punches at Mr. Brown but that he believed those punches did not reach Mr. Brown. Mr. Wolf also testified that Mr. Brown was holding a gun slightly “above waist high” and “pointed away from him.” Mr. Cabbagestalk then “swiped” at Mr. Brown’s gun …  … [A]t some point before Mr. Cabbagestalk’s last swing or swipe, Mr. Cabbagestalk said, “if you going to pull a gun out, you got to use it.” Mr. Brown did just that, shooting Mr. Cabbagestalk in the chest.  * * *

Because Mr. Brown’s drawing of his gun under these circumstances constituted the imminent threat of deadly physical force, the “initial aggressor” rule bars Mr. Brown from claiming justification unless a reasonable jury could conclude either: (1) that Mr. Brown withdrew from the encounter after drawing his gun, communicated that withdrawal to Mr. Cabbagestalk, and Mr. Cabbagestalk thereafter used or threatened imminent use of deadly physical force (Penal Law § 35.15[1][b]), or (2) that Mr. Cabbagestalk himself was the initial “deadly force” aggressor. No reasonable jury could reach either conclusion based on the evidence in this case, even viewing the evidence in the light most favorable to Mr. Brown (as we must). People v Brown, 2019 NY Slip Op 03529, CtApp 5-7-19

 

You might also like
COURT’S FAILURE TO ORDER READBACK OF CROSS-EXAMINATION IN ADDITION TO DIRECT WAS NOT A MODE OF PROCEEDINGS ERROR, PRESERVATION REQUIRED.
A SUBSEQUENT INJURY TO THE SAME BODY “MEMBER” WHICH WAS THE SUBJECT OF A PRIOR SCHEDULE LOSS OF USE (SLU) AWARD NEED NOT BE REDUCED BY THE PERCENTAGE LOSS OF THE PRIOR AWARD (CT APP).
Defendant May Not Be Cross-Examined About Criminal Conviction on Direct Appeal
DEFENDANT HAS THE RIGHT TO BE PRESENT WHEN, IN RESPONSE TO A MOTION TO VACATE BECAUSE THE PERIOD OF POST-RELEASE SUPERVISION (PRS) WAS NOT MENTIONED AT THE ORIGINAL SENTENCING, THE COURT IMPOSES A SENTENCE WITHOUT A PERIOD OF PRS (CT APP).
LEAD AGENCY TOOK THE REQUISITE HARD LOOK AT LEAD DUST AND NOISE CONCERNS RAISED IN CONNECTION WITH CONSTRUCTION NEAR A SCHOOL IN NEW YORK CITY AND, AFTER IMPOSING MITIGATION MEASURES, PROPERLY APPROVED THE CONSTRUCTION (CT APP).
MISDEMEANOR COMPLAINT ADEQUATELY ALLEDGED POSSESSION OF BRASS KNUCKLES.
Statutory Attorney’s Fees Awarded in a Human Rights Law Action Should Not Be Added to the Jury Award to Determine the Amount of the Contingency Fee
THREE-YEAR-OLD SEXUAL ABUSE VICTIM’S STATEMENTS AND GESTURES, MADE WITHIN A HALF HOUR OF THE ABUSE, PROPERLY ADMITTED AS EXCITED UTTERANCES.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE TRIAL JUDGE’S NEGOTIATION OF A PLEA DEAL DIRECTLY WITH THE CO-DEFENDANT,... THE MAJORITY DID NOT RULE OUT THE POSSIBILITY THAT THE NON-DEADLY-FORCE JUSTIFICATION-DEFENSE...