Rejection By DMV of "Choose Life" License Plates Results in Federal Claim
UPDATE: New NY 60 Day Motion Rule

A Machete Will Beat A Two-By-Four Every Time

In People v. Fagan, 2005 N.Y. Slip Op. 09819, the Fourth Department considered the issue of whether the trial court improperly refused to charge the jury on the justifiable use of deadly force to prevent or terminate a burglary.  I found this case to be of particular interest since it is very similar to an appeal that I perfected and successfully argued before the Fourth Department in 1996, People v. Sierra, 231 A.D.2d 907.

In People v. Fagan, the Court first concluded that the issue of the failure to charge the jury regarding  justifiable use of deadly force to prevent a burglary had been preserved for review as a result of defense counsel's request for the charge and subsequent objection on the record to the charge as it was given.  The Court then set forth the applicable Penal Law provision, Penal Law § 35.20 (3), which provides that :

A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building, who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling or building, may use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

The Court stated that the evidence at trial, when viewed in the light most favorable to Mr. Fagan, established that: 1)the victim threatened to kill Mr. Fagan, 2)the victim then chased Mr. Fagan into his house while carrying a hatchet, 3)the victim fell while inside Mr. Fagan's house and dropped the hatchet and Mr. Fagan picked it up, 4)the victim ran outside and then reentered the house while swinging a two by four at Mr. Fagan, and 5) Mr. Fagan then injured the victim with the hatchet.

The Court concluded that a jury could have reasonably believed that the victim entered and remained inside Mr. Fagan's home with the intent to commit the crime of assault therein and, further, that the victim's violent conduct supported the reasonableness of Mr. Fagan's belief that deadly force was necessary to prevent or terminate the burglary.  Accordingly, the Court held that the lower Court erred by failing to instruct the jury as to that defense and dismissed the indictment without prejudice.

Indignant Indigent  also has a good discussion of this case, and provides the following useful lesson to be learned from Fagan:  a machete will beat a two-by-four every time.


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This reminds me of one of the strangest cases I was ever involved with. The complaining witness was a 95 year old man who lived with his alzheimers suffering wife in Harlem. One night, he heard rustling sounds in the basement of their Harlem brownstone. He took his machete down to the basement to discover a young russian guy (the defendant) sleeping under a pile of laundry that had been abandoned in the basement years ago by the couples' children. After waking the defendant up, a brief struggle ensued, ending with the old guy completely chopping the defendant's hand off.

The defendant - who spoke not a word of English -had a gun in his pocket and later claimed that he was hiding from Columbian drug dealers.

Very strange.


Your Sierra case looks like it presented a much more difficult set of facts than the Fagan case. Well done! If I was practicing I'd cite (or distinguish) Sierra first.

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