A trial court need not charge a jury with respect to an accused’s proffered defense of justification if no view of the evidence establishes the basic elements of the defense. There was such a failure here, and defendant’s conviction should therefore be affirmed.
Defendant was convicted after a jury trial of assault in the second degree and criminal possession of a weapon in the fourth degree arising out of the shooting of a woman on August 13,1977. He contends that the trial court’s refusal to charge the jury on the defense of justification violated his right to due process.
A court is required to instruct the jury on “fundamental legal principles applicable to criminal cases in general” and those “material legal principles applicable to the particular case” (CPL 300.10, subds 1, 2; see People v Murch,
The defense of justification, as raised in the present case, permits one to use deadly physical force on another when one reasonably believes that deadly physical force is being used or imminently will be used by such other person (see Penal Law, § 35.15, subd 2, par [a]). The defense is qualified by a duty to retreat, unless the person acting defensively was in his or her home and was not the original aggressor (see id.). Thus, defendant here could have reached the jury with his asserted defense only if the record would support findings that defendant: (1) reasonably believed that the complainant was about to use deadly physical force; and (2) he had satisfied his duty to retreat or was under no such duty.
Defendant also argues that the 18-month delay from his arrest until trial deprived him of his constitutional right to a speedy trial and, therefore, his conviction should be reversed and the indictment dismissed. The constitutional right to speedy trial affords a humanitarian protection to mitigate the injury to an untried suspect who is imprisoned for a prolonged period (People v Johnson,
Due to the factual inquiry unique to each case, however, “no rigid precepts may be formulated which apply to each and every instance” (People v Taranovich, supra, at p 445). The delay in this case was 18 months during the first 12 of
Notably, inasmuch as delay based on an inability to provide sufficient court facilities may not be as readily deterred by the extraordinary remedy of dismissing an indictment, such cause tends to “weigh less heavily” on the State when a court evaluates constitutional speedy trial claims (People v Johnson, supra, at p 278).
Although the nature of the crime here was serious, that did not contribute to the delay. As to the question of prejudice, defendant argues that the delay so weakened his memory that he was “less able to articulate exactly what had transpired” (People v Taranovich, supra, at p 447), and he therefore decided not to testify. Although this court has held that acuity of memory, whether that of a defendant or a nonparty witness, when dulled by a substantial pretrial delay, may sufficiently impair a defense so as to warrant a finding of a denial of a defendant’s speedy trial right (see People v Moore,
Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed
Notes
In sharp contrast, in People v Torre (supra), error was found in the trial court’s failure to charge the jury on the issue of justification because there was testimony of the defendant and an eyewitness that detailed the victim’s first aggression with deadly force. In People v Steele (supra), the Assistant District Attorney admitted that the complainant was the initial aggressor and that he possessed a knife.