section 35.15 defense of justification in New York

2023Here, viewing the evidence in the light most favorable to defendant ( see Padgett , 60 NY2d at 144 ), we conclude that a reasonable view of the evidence supports defendant's request for a justification charge pursuant to Penal Law § 35.15 (2) (a).

1998Considering the evidence in the light most favorable to defendant (see, People v Padgett, 60 NY2d 142, 144-145 ), we conclude that the court erred in refusing to charge the defense of justification under Penal Law § 35.15 (1) with respect to the use of ordinary physical force as a defense to the charge of assault in the second degree (see, People v Davis, 118 AD2d 206 , lv denied 68 NY2d 768 ; see also, People v Ogodor, 207 AD2d 461, 462 ; People v Jones, 148 AD2d 547, 548-549 ).

2018The defendant's contention that the Supreme Court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, because defense counsel never requested such a charge ( see CPL 470.05[2]; People v Clark , 129 AD3d 1, 17-18 , affd 28 NY3d 556 ; People v Moore , 66 AD3d at 709-710 ).

2011The defendant’s contention that the Supreme Court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, since he never requested such a charge (see People v Harrell, 59 NY2d 620, 622 [1983]; People v Moore, 66 AD3d 707 , 709-710 [2009], affd 15 NY3d 811 [2010]; People v White, 305 AD2d 616 [2003]).

2018Viewed as a whole, the record of the trial proceedings demonstrates that the defendant was afforded meaningful representation ( see People v Honghirun , 29 NY3d 284, 289 ; People v Benevento , 91 NY2d 708, 712 ; People v Moore , 66 AD3d 707, 710 , affd 15 NY3d 811 ).

2011The defendant’s contention that the Supreme Court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, since he never requested such a charge (see People v Harrell, 59 NY2d 620, 622 [1983]; People v Moore, 66 AD3d 707 , 709-710 [2009], affd 15 NY3d 811 [2010]; People v White, 305 AD2d 616 [2003]).

2011The defendant’s contention that the Supreme Court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, since he never requested such a charge (see People v Harrell, 59 NY2d 620, 622 [1983]; People v Moore, 66 AD3d 707 , 709-710 [2009], affd 15 NY3d 811 [2010]; People v White, 305 AD2d 616 [2003]).

2009The defendant’s contention that the trial court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, since he never requested such a charge (see CPL 470.05 [2]; People v Harrell, 59 NY2d 620 [1983]; People v White, 305 AD2d 616 [2003]).

2011In any event, contrary to the defendant’s contention, the Supreme Court was not required to give the charge, sua sponte, as such an instruction would have interfered with the defendant’s theory of the case that the People failed to demonstrate that he possessed the requisite intent, and that he was not an accessory under Penal Law § 20.00 (see People v Kin Wong, 81 AD3d 421 [2011]; People v Johnson, 75 AD3d 426 [2010]; People v Moore, 66 AD3d at 711-712 ; People v Castano, 236 AD2d 215 [1997]; see generally People v DeGina, 72 NY2d 768, 776 [1988]).

2009Moreover, the trial court was under no obligation to give the charge, sua sponte, under the circumstances of this case (see People v Castano, 236 AD2d 215 [1997]), nor did a reasonable view of the defendant’s trial testimony support the submission of such a defense.

2007Contrary to the People’s contention, the issue is preserved for appellate review (see CPL 470.05 [2]; People v Edwards, 95 NY2d 486 , 491 n 2 [2000]; People v Duncan, 177 AD2d 187, 191 [1992]).

2007Although defense counsel specifically sought a justification charge pursuant to Penal Law § 35.05, the Supreme Court, in making its ruling in terms pertinent to Penal Law § 35.15 (2), “expressly decided the question” now raised on appeal in response to a “protest by a party” (see CPL 470.05 [2]; People v Edwards, 95 NY2d 486 , 491 n 2 [2000]; People v LaPetina, 34 AD3d 836 [2006]; People v Duncan, 177 AD2d 187, 191 [1992]).

1998Considering the evidence in the light most favorable to defendant (see, People v Padgett, 60 NY2d 142, 144-145 ), we conclude that the court erred in refusing to charge the defense of justification under Penal Law § 35.15 (1) with respect to the use of ordinary physical force as a defense to the charge of assault in the second degree (see, People v Davis, 118 AD2d 206 , lv denied 68 NY2d 768 ; see also, People v Ogodor, 207 AD2d 461, 462 ; People v Jones, 148 AD2d 547, 548-549 ).

1987Additionally, the trial court did not err in charging the justification defense pursuant to Penal Law § 35.15 (2) and in declining to charge the provisions of Penal Law § 35.15 (1), as the defendant’s actions clearly constituted the use of deadly physical force under the circumstances of this ease (see, e.g., People v Davis, 118 AD2d 206 , lv denied 68 NY2d 768 ; Matter of Charles W., 61 AD2d 1033 ; People v Dingley, 50 AD2d 361 , revd on other grounds 42 NY2d 888 ).

1997(People v Goetz, 68 NY2d 96 ; People v Valles, 62 NY2d 36 .) However, despite the defendant’s testimony that he cut the complainant while forcing him from his mother’s apartment, where the complainant had trespassed to assault him (see, Penal Law § 140.20), the Assistant District Attorney failed to charge justification under Penal Law § 35.20.

1986As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes” that such force is necessary to avert the perceived threat. 6 Because the evidence before the second Grand Jury included statements by Goetz that he acted to protect himself from being maimed or to avert a robbery, the prosecutor correctly chose to charge the justification defense in section 35.15 to the Grand Jury (see, CPL 190.25 [6]; People v Valles, 62 NY2d 36, 38 ).

2025Viewing the record in the light most favorable to the defendant, there was no reasonable view of the evidence that supported a justification defense under Penal Law § 35.15(2)(b) ( see People v DeLaCruz , 192 AD3d 1042, 1043 ; People v Sadler , 153 AD3d 1285, 1286 ).

2025Viewing the record in the light most favorable to the defendant, there was no reasonable view of the evidence that supported a justification defense under Penal Law § 35.15(2)(b) ( see People v DeLaCruz , 192 AD3d 1042, 1043 ; People v Sadler , 153 AD3d 1285, 1286 ).

2025Further, the defendant's contention that the verdict sheet submitted to the jury was improper is unpreserved for appellate review, since he failed to object to the verdict sheet as submitted to the jury ( see CPL 470.05[2]; People v Abushatara , 176 AD2d 946, 947 ).

2025Viewing the record in the light most favorable to the defendant, there was no reasonable view of the evidence that supported a justification defense under Penal Law § 35.15(2)(b) ( see People v DeLaCruz , 192 AD3d 1042, 1043 ; People v Sadler , 153 AD3d 1285, 1286 ).

2025Viewing the record in the light most favorable to the defendant, there was no reasonable view of the evidence that supported a justification defense under Penal Law § 35.15(2)(b) ( see People v DeLaCruz , 192 AD3d 1042, 1043 ; People v Sadler , 153 AD3d 1285, 1286 ).

2020In any event, there was no reasonable view of the evidence, when viewed in the light most favorable to defendant ( see People v Torre , 42 NY2d 1036, 1037 [1977]; People v Duka , 173 AD3d 764 [2019]), that would support an instruction on the defense of justification pursuant to Penal Law § 35.15 (2) ( see People v Small , 80 AD3d 786 , 787 [2011]).

2020In any event, there was no reasonable view of the evidence, when viewed in the light most favorable to defendant ( see People v Torre , 42 NY2d 1036, 1037 [1977]; People v Duka , 173 AD3d 764 [2019]), that would support an instruction on the defense of justification pursuant to Penal Law § 35.15 (2) ( see People v Small , 80 AD3d 786 , 787 [2011]).

2018Moreover, the trial court was under no obligation to give a justification charge, sua sponte, under the circumstances of this case, where such instruction would interfere with the defendant's trial strategy ( see People v Clark , 129 AD3d at 18-19 ; People v Moore , 66 AD3d at 710 ).

2018The defendant's contention that the Supreme Court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, because defense counsel never requested such a charge ( see CPL 470.05[2]; People v Clark , 129 AD3d 1, 17-18 , affd 28 NY3d 556 ; People v Moore , 66 AD3d at 709-710 ).

2018Viewed as a whole, the record of the trial proceedings demonstrates that the defendant was afforded meaningful representation ( see People v Honghirun , 29 NY3d 284, 289 ; People v Benevento , 91 NY2d 708, 712 ; People v Moore , 66 AD3d 707, 710 , affd 15 NY3d 811 ).

2018Viewed as a whole, the record of the trial proceedings demonstrates that the defendant was afforded meaningful representation ( see People v Honghirun , 29 NY3d 284, 289 ; People v Benevento , 91 NY2d 708, 712 ; People v Moore , 66 AD3d 707, 710 , affd 15 NY3d 811 ).

2018The defendant's contention that the Supreme Court should have instructed the jury with regard to the defense of justification under Penal Law § 35.15 is unpreserved for appellate review, because defense counsel never requested such a charge ( see CPL 470.05[2]; People v Clark , 129 AD3d 1, 17-18 , affd 28 NY3d 556 ; People v Moore , 66 AD3d at 709-710 ).

2018Under these circumstances, where the defendant used his shoes or boots to stomp the victim after the threat had terminated, the use of deadly physical force and the failure to retreat precluded any claim of justification ( see Penal Law § 10.00[11], [13]; People v Carter, 53 NY2d 113 ; People v O'Keefe, 105 AD3d 1062 ; People v Richardson, 95 AD3d 791 ).