aggressor exception in New York

2017The Appellate Division, with one Justice dissenting, reversed, holding that the trial court improperly instructed the jury on the initial aggressor exception to justification ( 128 AD3d 428 [1st Dept 2015]).

2017The Appellate Division, with one Justice dissenting, reversed, holding that the trial court improperly instructed the jury on the initial aggressor exception to justification ( 128 AD3d 428 [1st Dept 2015]).

2025Defendant failed to preserve for our review his challenge to the court's use of the initial aggressor exception as part of its justification charge ( see CPL 470.05 [2]; People v Ford , 114 AD3d 1221 , 1221 [4th Dept 2014], lv denied 23 NY3d 962 [2014]; People v Johnson , 103 AD3d 1226, 1226 [4th Dept 2013], lv denied 21 NY3d 944 [2013]), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice ( see CPL 470.15 [6] [a]).

2018Therefore, we should not consider it ( see Misicki v Caradonna , 12 NY3d 511, 519 [2009] [courts should decide appeals only on rationales advanced by the parties]). [FN9] Even if we were to address this argument, we would reject it.

2017The charge, as given, "likely confused the jury regarding the correct rules to be applied in arriving at a decision" regarding that defense (People v Walker, 26 NY3d 170, 174-175 [2015], citing People v Andujas, 79 NY2d 113 [1992]), "'such that the degree of precision required for a jury charge was not met'" (Walker, 26 NY3d at 177 , quoting People v Medina, 18 NY3d 98, 104 [2011]).

2017The charge, as given, "likely confused the jury regarding the correct rules to be applied in arriving at a decision" regarding that defense (People v Walker, 26 NY3d 170, 174-175 [2015], citing People v Andujas, 79 NY2d 113 [1992]), "'such that the degree of precision required for a jury charge was not met'" (Walker, 26 NY3d at 177 , quoting People v Medina, 18 NY3d 98, 104 [2011]).

2017Those facts included that: "the defendant chose to arm himself with a loaded .22 handgun"; "he hides the gun in the jacket"; "it's cold enough to snow, but he's outside . . . [with his] jacket . . . unzipped"; he asked Hogan "do you want to get shot"; defendant "is a grown man . . . staring at an 18 year old." None of these facts would, as a matter of law, make defendant the initial aggressor, but each could have been erroneously interpreted by the jury as the initial "threat[] to attack." As to these and several other statements and actions of defendant, the prosecutor's argument was incorrec

2017The charge, as given, “likely confused the jury regarding the correct rules to be applied in arriving at a decision” regarding that defense (People v Walker, 26 NY3d 170, 174-175 [2015], citing People v Andujas, 79 NY2d 113 [1992]), “ ‘such that the degree of precision required for a jury charge was not met’ ” (Walker, 26 NY3d at 177 , quoting People v Medina, 18 NY3d 98, 104 [2011]).

2017The charge, as given, "likely confused the jury regarding the correct rules to be applied in arriving at a decision" regarding that defense (People v Walker, 26 NY3d 170, 174-175 [2015], citing People v Andujas, 79 NY2d 113 [1992]), "'such that the degree of precision required for a jury charge was not met'" (Walker, 26 NY3d at 177 , quoting People v Medina, 18 NY3d 98, 104 [2011]).

2015Traditionally, this Court applied an “alter ego rule” to such scenarios, holding that in cases of simple, third-degree assault, an intervenor stood in the shoes of the third party being assaulted and intervened at his own peril that he was acting under a mistaken belief of fact regarding the lawfulness of the beating (see People v Young, 11 NY2d 274, 275 [1962]).