AD1 order dated May 7, 2015, reversing judgment of conviction. Decision below: 128 AD3d 428, 8 NYS3d 428. Saxe, J. (AD dissenter), granted leave to People October 15, 2015.

ISSUES PRESENTED: (1)Whether there was any evidence that defendant, who raised a justification defense, had acted as an “initial aggressor,” so as to justify the trial court’s initial aggressor charge. (2) Whether any error was harmless. (Assigned counsel for defendant: Robert S. Dean, Center for Appellate Litigation, 120 Wall Street, 28th Floor, NYC 10005.)

Issue before the Court: Whether, in its justification charge, the trial court properly gave an initial aggressor instruction.

 

Held: By a 4 to 3 vote:  Yes, because there was a scintilla of evidence that the defendant, although not the first one to use force, was the first one to use deadly physical force.

 

CAL Observes: For an accurate explanation of the law on the reasonable use of deadly physical force vis-vis the  “initial aggressor” exception, one should read Judge Stein’s dissent.  The majority decision unwittingly muddles the issue.  How can the jury find the defendant to be the initial aggressor simply because they find, in hindsight, that he was the first one to use deadly physical force, when they are also told that the defendant may use deadly physical force if he reasonably believes that deadly physical force is about to be used on him–even if, in hindsight, that turns out not to be the case?  In reality, the ”initial aggressor” instruction is appropriate where it was the defendant “who started it”–i.e., was the first one to use offensive physical force.  In the right case, the majority’s mis-analysis will really screw up the verdict.