You are here: / / THE JURY SHOULD HAVE BEEN INSTRUCTED DEFENDANT DID NOT HAVE A DUTY TO RETREAT...

THE JURY SHOULD HAVE BEEN INSTRUCTED DEFENDANT DID NOT HAVE A DUTY TO RETREAT FROM A SHARED BATHROOM USED ONLY BY THE DEFENDANT AND THE COMPLAINANT; ASSAULT CONVICTION REVERSED (FIRST DEPT).

The First Department, reversing defendant’s assault second conviction, over an extensive two-justice dissent, determined it was reversible error for the judge to refuse to instruct the jury that the defendant did not have a duty to retreat (re: the justification defense). There is no duty to retreat from one’s own dwelling. Here the incident took place in a portion of the housing complex used only by the defendant and the complainant:

Defendant and the complainant lived in a housing complex where they each had a separate room that gave them access to a shared bathroom to which no one else had access. The court should have granted the defense’s request for a jury instruction that defendant, who asserted a defense of justification, had no duty to retreat from the bathroom he shared with the complainant as a matter of law … .

… [T]his bathroom, unlike a hallway bathroom, was accessible only from the respective rooms of defendant and the complainant. As a matter of law, the shared bathroom was a part of defendant’s dwelling, notwithstanding that he shared it with the complainant, as opposed to a common area in the building. Therefore, under Penal Law § 35.15 (2) (a) (i), defendant had no duty to retreat before using deadly physical force to defend himself … .

… [T]he court’s inaccurate instruction that whether the incident took place in defendant’s dwelling depended on the extent to which defendant exercised exclusive possession and control over the area in question could have led the jury to erroneously conclude that the bathroom was not part of defendant’s dwelling because he shared it with the complainant and that therefore defendant had a duty to retreat. People v Delisme, 2022 NY Slip Op 05130, First Dept 9-6-22

Practice Point: In the context of the justification defense to an assault charge, a defendant does not have a duty to retreat from his own dwelling. Here the incident apparently took place in a bathroom used only by the defendant and the complainant. The bathroom was part of defendant’s own dwelling. The jury should have been instructed that defendant did not have a duty to retreat before using deadly force

 

You might also like
SUBSTANTIAL PAIN ELEMENT OF ASSAULT THIRD EXPLAINED (FIRST DEPT).
TWO VOLUNTARY DISCONTINUANCES OF TWO SUCCESSIVE FORECLOSURE ACTIONS TWICE REVOKED THE ACCELERATION OF THE DEBT RENDERING THE THIRD FORECLOSURE ACTION TIMELY (FIRST DEPT).
Trial Court’s Questioning Jury Whether It Had Reached a Verdict on Any Counts and Its Acceptance of a Partial Verdict Okay
PLAINTIFF’S TRANSLATED AFFIDAVIT WAS NOT ACCOMPANIED BY THE TRANSLATOR’S AFFIDAVIT AND WAS THEREFORE INADMISSIBLE; THE ROADWAY WHERE THE COLLISION OCCURRED WAS NOT DIVIDED INTO TWO OR MORE CLEARLY MARKED LANES; THEREFORE THE “UNSAFE LANE CHANGE” STATUTE (VEHICLE AND TRAFFIC LAW 1128(A)) DID NOT APPLY (FIRST DEPT).
THE CONTENTS OF A SAFE DEPOSIT BOX CONSTITUTED THE PROPERTY OF JOINT TENANTS WITH RIGHTS OF SURVIVORSHIP, THEREFORE THE CONTENTS ARE AVAILABLE TO SATISFY A JUDGMENT AGAINST ONLY ONE OF THE JOINT TENANTS (FIRST DEPT).
DEFENDANT’S BEHAVIOR BEFORE AND DURING THE TRAFFIC STOP DID NOT CREATE “REASONABLE SUSPICION” THE DEFENDANT WAS ARMED; THE FRISK AND SEIZURE OF SMALL PACKETS OF PCP FROM DEFENDANT’S SOCK WAS NOT JUSTIFIED; THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED (FIRST DEPT).
First Degree Burglary Conviction Upheld Even though the Residential Portion of the Building Was Not Accessible from the Basement of the First-Floor Store Where the Defendant Entered the Building
THERE WAS EVIDENCE THE WATER ON THE FLOOR WAS A RECURRENT DANGEROUS CONDITION; PLAINTIFF SHOULD HAVE BEEN ALLOWED TO PRESENT AS A WITNESS DEFENDANT’S EMPLOYEE, THE BUILDING SUPERINTENDENT AT THE TIME OF THE SLIP AND FALL, DESPITE LATE NOTIFICATION; THE DIRECTED VERDICT WAS REVERSED (FIRST DEPT).

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

INSURANCE COVERAGE DEPENDED UPON WHETHER THE INJURED RESPONDENT RESIDED WITH... THE FAMILY COURT JUDGE HAD REPRESENTED MOTHER IN A RELATED CUSTODY MATTER YEARS...