People v. GodfreyPeople v. Godfrey
OPINION OF THE COURT
Memorandum.
The order of the Appellate Division should be reversed, and the case remitted to that court for consideration of the facts (CPL 470.25 [2] [d]; 470.40 [2] [b]).
In November 1982, dеfendant was charged with second degree murder (Penal Law § 125.25 [1]) in connection with the shooting death of Rodney Marsh — an acquaintance of his— during a violent altercation between the two in defendant’s home.
At trial, defendant took the stand in his own defense and admitted having fired the fatal shots, but claimеd that his conduct had been justified under the circumstances (see, Penal Law art 35). He testified that, on the evening in question, he and Marsh became involved in a heated argument, and eventually agreed to physically settle their dispute at defendant’s home. Upon arriving there, defendant — at Marsh’s urging— immediately went to his bedroom to get his gun. Before he could return, however, Marsh enterеd the room and began approaching him. A violent struggle thereafter еnsued. When it finally subsided, defendant demanded that Marsh leave his
Based on this account of the events leading up to Marsh’s death, the trial court instructеd the jury on the justifiable use of deadly physical force to defend oneself (see, Penal Law § 35.15), but refused to charge the jury on the justifiable use of deadly physical force to terminate the commission of a burglary (see, Penal Law § 35.20 [3]). Dеfendant was subsequently convicted. On appeal, however, a divided Appellate Division reversed, concluding that the trial court had erred in rеfusing to instruct the jury on the justifiable use of deadly physical force under seсtion 35.20 (3). We conclude otherwise, and accordingly reverse.
Section 35.20 (3) of the Penal Law authorizes a person to use deadly physical fоrce against another person if he or she reasonably believes that such force is necessary to terminate a burglary of his or her homе (see, Penal Law § 35.20 [3]; Seventh Interim Report of Temp St Commn on Rev of Penal Law and Crim Code, 1968 NY Legis Doc No. 29, at 8-9; Legislative Mem, at 2, Bill Jacket, L 1968, ch 73; cf., Model Penаl Code § 3.06 [3] [d]). The People contend that even if Marsh could "technicаlly” be considered to have been committing a burglary when he was killed, defendant should nevertheless not be permitted to rely on section 35.20 (3) as authоrizing his use of deadly physical force. Specifically, they maintain that аn individual who — like defendant — invites another onto his or her premises and then аctively and willingly joins in that person’s criminal conduct should not be permitted tо kill that person merely because he or she does not promptly сease pursuing the criminal endeavor upon being ordered to leave the premises. We agree.
Section 35.20 (3) — as its legislative history makes clear — was intended to protect those individuals who suddenly find themselves the victim of an intrusion upon their premises by one bent on a criminal end (see, Legislative Mem, at 2, Bill Jacket, L 1968, ch 73). There is, however, nothing in that provision’s legislative history or otherwise which suggests that it was also meant to protect one who — like defendant — invites another person into his home, fully aware that such рerson intends to commit a crime once inside. Such an individual is no less
Chief Judgе Wachtler and Judges Simons, Kaye, Titone, Hancock, Jr., and Bellacosa concur.
Order reversed and case remitted to the Appellate Division, Fourth Department, for further proceedings in accordance with the memorandum herein.