Define That Term #183
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Justification Defense--Knowledge of Ability to Retreat a Required Element

A recent Third Department case, People v Soriano, 2007 NY Slip Op 00445, is yet another example of how important it is on appeal to carefully scrutinize a trial court's jury charge on the issue of justification.  I learned this lesson early on in my career when I was successful on appeal in a similar case, People v. Sierra, 231 A.D.2d 907, 647 N.Y.S.2d 891 (4th Dep't 1996).

In this case, the defendant was charged with second-degree murder and first-degree manslaughter and alleged that when he killed the victim he was defending himself and his brother, and thus his actions were justified.  The jury convicted him of manslaughter, but acquitted him of murder.

The Third Department first set forth the standard jury charge for this defense and explained the prosecution's burden of proof:

"The defendant would not be justified if he/she knew that he/she could with complete safety to himself/herself and others avoid the necessity of using deadly physical force by retreating" (CJI2d[NY] Justification: Use of Deadly Force in Defense of a Person [emphasis added]). Thus, to defeat a justification defense in a prosecution for the use of deadly physical force, the People must prove beyond a reasonable doubt, not only that it was objectively possible for the defendant to retreat "with complete personal safety," but also that the defendant was subjectively aware that it was possible to do so.

In this case, the trial court's instruction on the defense of justification was as follows:

(T)he "defense of justification does not apply...if a defendant uses deadly physical force, knowing that with complete safety to himself and others, he can avoid the necessity of using such force by retreating." That part of the charge was correct. The court did not let the matter rest there, however, but went on to restate the standard as follows: "Once again, the People have the burden of establishing, beyond a reasonable doubt, that under the circumstances, [defendant] could have retreated with complete safety to himself and to Kenny Santos"...

The Third Department held that the trial court's instruction improperly misstated the law "by eliminating the subjective component of the test, and omitting from the prosecution's case knowledge as an essential element of proof..."

Accordingly, the Court reversed the judgment of conviction in the interests of justice, even though the defendant failed to object at trial.  In my mind, that's the most unusual aspect of this decision.  A reversal in the absence of an objection to the jury charge is a rarity indeed.

Although I've not discussed it in this post, there is an interesting evidentiary issue regarding rebuttal testimony that is addressed at the end of the decision that might also be worth a quick read. 


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If he was also concerned for the safety of his brother, and used deadly force to protect the life of his brother as well as his own, is he required to also take into account the brother's situation?

What if he can retreat but the brother cannot? Can he use deadly force using the argument that he was "standing in his brother's shoes" as a justification?


That's a really good question, Carlos.

I think that since he's acting in defense of his brother, he only has to retreat if his brother would be safe as well.

The quoted language above states: "The defendant would not be justified if he/she knew that he/she could with complete safety to himself/herself and others avoid the necessity of using deadly physical force by retreating".

Thus, he would only be obligated to retreat if he knew that both he *and* his brother would be safe if he retreated.

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