People v. Doctor
| Decision Date | 19 December 1983 |
| Citation | 469 N.Y.S.2d 797,98 A.D.2d 780 |
| Parties | The PEOPLE, etc., Respondent, v. Charles DOCTOR, Appellant. |
| Court | New York Supreme Court — Appellate Division |
William E. Hellerstein, New York City (Elaine Unkeless, New York City, of counsel), for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Shulamit Rosenblum and Nikki Kowalski, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.
Before MANGANO, J.P., and O'CONNOR, WEINSTEIN and BROWN, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered February 3, 1981, convicting him of manslaughter in the first degree, upon a jury verdict, and imposing sentence.
Judgment affirmed.
In instructing the jury with regard to defendant's asserted defense of justification (Penal Law, § 35.15), the trial court committed several errors. With regard to the degree of force reasonably necessary to repel a homicidal attack, the trial court several times erroneously referred to the standpoint of an "ordinary reasonable man" in defendant's situation, thereby substituting an external, objective standard for the correct one, which is the extent to which defendant reasonably believed deadly physical force to be necessary to defend himself (cf. People v. Desmond, 93 A.D.2d 822, 460 N.Y.S.2d 619). However, the trial court, in the course of this portion of the charge, also accurately stated several times the correct legal standard, including a verbatim reading of the statutory language. In light of the fact that the correct instructions predominated over the incorrect ones, we find that the charge as a whole adequately conveyed the proper law to the jury (see People v. Woods, 41 N.Y.2d 279, 392 N.Y.S.2d 400, 360 N.E.2d 1082). Further, in light of the extreme violence of defendant's actions, it is difficult to conclude that the jury could have found them to be justified under either standard, and we therefore also hold that any error was harmless beyond a reasonable doubt (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787). In this regard, we note, finally, that defendant failed to except to these instructions at trial (see People v. Gonzalez, 80 A.D.2d 543, 436 N.Y.S.2d 293). The trial court also instructed the jury incorrectly with regard to the standard to be applied to the possibility of retreat, stating several times that the jury should determine whether defendant "could have retreated" with complete safety, thereby again articulating an external, objective standard, in contrast to the statute, which requires a defendant to retreat "if he knows that he can" do so with complete safety (Penal Law, § 35.15, subd. 2, par. [a], emphasis supplied; cf. People v. La Susa, 87 A.D.2d 578, 447 N.Y.S.2d 738). However, on the facts of this case, assuming, arguendo, that the jury found that decedent's apartment was not also defendant's "dwelling", and retreat, if known to him to be possible, was therefore required, the error was also harmless beyond a reasonable doubt (see People v. Crimmins, supra ). Whether or not the apartment was in fact defendant's "dwelling" at the time of the crime, defendant had lived there, together with decedent and their children, for several years prior thereto, so that there can be no reasonable contention that there were any actual, objective means of retreat from the apartment which were unknown to him. Thus, under the circumstances, the incorrect charge could not have induced the jury to find that defendant could have retreated by some means of which he was not aware. We also note that no exception was taken thereto (cf. People v. Gonzalez, supra ).
The trial court also failed to...
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