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THE DEFENDANT TESTIFED THE VICTIM WAS ON TOP OF HIM REPEATEDLY STRIKING HIM IN THE HEAD WHEN HE PULLED OUT HIS FIREARM AND SHOT THE VICTIM; EVEN IF DEFENDANT’S VERSION WAS DEEMED UNLIKELY, THE JURY SHOULD HAVE BEEN INSTRUCTED ON THE JUSTIFICATION DEFENSE; NEW TRIAL ORDERED (FOURTH DEPT).

The Fourth Department, reversing defendant’s murder conviction and ordering a new trial, determined defendant was entitled to a jury instruction on the justification defense. Defendant testified he was on the ground with the victim on top of him, repeatedly striking him in the head, when he drew his weapon and shot the victim:

“Even if [the … victim] had not already employed deadly physical force against . . . defendant at the time . . . defendant allegedly used deadly physical force against [the … victim], the question remains whether . . . defendant could reasonably have believed that the use of such force against him was imminent” … . The … victim was not armed, but defendant testified that he knew that the … victim owned at least one gun and that, at the time of the shooting, he did not know whether the … victim was armed. Further, defendant’s testimony that the … victim pinned him down and was repeatedly punching his face and head could support a finding that defendant reasonably believed that such conduct presented an imminent threat of deadly force inasmuch as “[t]he natural and probable consequences of repeatedly striking a man while he is on the ground defenseless is that he will sustain a serious physical injury within the meaning of Penal Law § 10.00 (10)” … . Although defendant’s version of the incident may be “dubious, a trial court is required to give the justification charge even where the defendant’s version of events is ‘extraordinarily unlikely’ ” … . People v Swanton, 2023 NY Slip Op 02433, Fourth Dept 5-5-23

Practice Point: Here defendant testified he was on the ground with the victim on top of him, repeatedly striking him in the head, when he pulled out his firearm and shot the victim. Even though the victim was not using deadly force, and even if the defendant’s version of events was deemed unlikely, defendant was entitled to a jury instruction on the justification defense; new trial ordered.

 

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