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