People v. McManus

• Decision Date: 10 June 1986
• Citation: 505 N.Y.S.2d 43,496 N.E.2d 202,67 N.Y.2d 541
• Parties: , 496 N.E.2d 202 The PEOPLE of the State of New York, Respondent, v. Jerry McMANUS, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 43

505 N.Y.S.2d 43

67 N.Y.2d 541, 496 N.E.2d 202

The PEOPLE of the State of New York, Respondent, v. Jerry McMANUS, Appellant.

Court of Appeals of New York.

June 10, 1986.

Hillard Wiese and Philip L. Weinstein, New York City, for appellant.

William L. Murphy, Dist. Atty. (Paul J. Angioletti, and Karen F. McGee, Staten Island, of counsel), for respondent.

OPINION OF THE COURT

HANCOCK, Judge.

Justification is a defense to depraved indifference murder and, where evidence supporting the defense has been presented, refusal to instruct the jury that the People must disprove justification beyond a reasonable doubt is reversible error. We, therefore, reverse the order of the Appellate Division, 108 A.D.2d 474, 489 N.Y.S.2d 561, which affirmed defendant's conviction and remit for a new trial.

Defendant was indicted on one count each of intentional murder (Penal Law § 125.25[1] ) and depraved indifference murder (Penal Law § 125.25[2] ) for firing a shot into a group of youths and fatally wounding one of them. Defendant never denied firing the shot. Rather, he insisted that he did so to "scare off" the five youths who were robbing and assaulting his companion.

In a written statement, given at the station house on the night of the incident, defendant told the police that he and his companion were approached by five males. One put a pistol to his friend's stomach and, when defendant attempted to intervene, another drew a pistol on him. Defendant was ordered to give up his money but instead turned and ran. When he looked back, defendant saw his friend being beaten and robbed. The group began to chase defendant and he fled to his home, locked the door and retrieved his uncle's rifle. The group stood outside, yelling for defendant and brandishing their pistols. Defendant opened the door and, when they saw his rifle, the group fled. Defendant gave chase. During the chase, the group came upon defendant's friend and began assaulting him again. At his friend's desperate urging, defendant fired the rifle, hitting someone in the group.

Defendant was questioned again that night on videotape. His answers, given over a one hour period and covering about 70 pages of transcript, corresponded substantially with the former written statement.

At trial, the People sought to prove that defendant fired the rifle without provocation. Members of the group testified that, although some of them had chased defendant to his home, none was armed and none had assaulted defendant or his companion. The People introduced defendant's written and videotaped statements and, when defendant took the stand in his own defense, he recounted the incident, albeit with some discrepancies, in essentially the same detail as he had previously.

During their summations, both counsel addressed the issue of justification and, prior to the court's instructions, counsel for defendant requested a charge on that defense. The court assured him that the jury would be instructed on justification and the court did so with respect to the intentional murder count. The court gave no such charge, however, concerning depraved indifference murder and, at the conclusion of the court's instructions, counsel requested that the charge of justification be repeated for that offense. The following exchange ensued:

"THE COURT: You want me to charge justification twice and I'm not going to do it.

"COUNSEL:L: If the jury has reasonable doubt as to whether or not the district attorney disproved the defense of justification, then they must acquit on all charges.

"THE COURT:T: No, that's not necessarily true here.

"COUNSEL:L: I take an exception.

"THE COURT:T: Depraved justification is not a defense as [to] depraved indifference.

* * *

* * *

"THE COURT: You see, let me explain something to you [counsel], as one lawyer to another. In order for you to have justification, you must have intent. You are admitting that you killed somebody. You did it because you were justified. How can you have a reckless depraved indifference and say you were justified. I don't think it applies. I decline your request.

The jury acquitted defendant of intentional murder, failed to reach a verdict on the lesser included charge of manslaughter under extreme emotional disturbance, but convicted defendant of depraved indifference murder.

The Appellate Division unanimously affirmed. The court held that the evidence that defendant fired into a crowd of five persons causing death to one of them was legally sufficient to support a verdict of depraved indifference murder. We agree that defendant's conduct, as portrayed by the People's witnesses, could be found by a jury to have displayed the requisite wanton indifference to a very substantial risk to human life (see, People v. Gomez, 65 N.Y.2d 9, 10-11, 489 N.Y.S.2d 156, 478 N.E.2d 759; People v. Register, 60 N.Y.2d 270, 277, 469 N.Y.S.2d 599, 457 N.E.2d 704).

The Appellate Division further held that the defendant's request for a charge on justification with regard to the depraved indifference murder count was properly refused. The court reasoned that a depraved mind murder, by its very definition, cannot be justified and hence, that the defense is necessarily precluded. The argument is that justification and depraved indifference are incompatible concepts: that the defense cannot excuse a reckless disregard of an unjustified risk. Such reasoning, we believe, misconceives the essential nature of the defense. Justification does not make a criminal use of force lawful; if the use of force is justified, it cannot be criminal at all.

The defense of justification (Penal Law art. 35) affirmatively permits the use of force under certain circumstances (see, People v. Watts, 57 N.Y.2d 299, 301, 456 N.Y.S.2d 677, 442 N.E.2d 1188; see also, Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 35.15, p. 93 [1975] ). Pursuant to Penal Law § 35.15, a person "may" use physical force to defend himself or a third person, and his conduct, which would otherwise constitute an offense, is simply not criminal (see, People v. Padgett 60 N.Y.2d 142, 145, 468 N.Y.S.2d 854, 456 N.E.2d 795; cf. People v. Sullivan, 7 N.Y. 396, 400). ¹ The defense does not operate to excuse a criminal act, nor does it negate a particular element of a crime. Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful (see, People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534; cf. People v. Padgett, supra, 60 N.Y.2d at p. 145, 468 N.Y.S.2d 854, 456 N.E.2d 795; compare, Penal Law §§ 15.25, 15.05[3] on the effect of intoxication).

In this regard, the current statutory defense reflects the common-law "right" of an individual to repeal a threat to life or limb (People v. Governale, 193 N.Y. 581, 587-588, 86 N.E. 554; see also, Shorter v. People, 2 N.Y. 193). Defense of oneself or one's relations, deemed a natural, inalienable right at common law, justified the use of force, making even homicide lawful. Thus, one who committed an act of "justifiable homicide", whether in defense of himself or another, was considered to have "no kind of fault whatsoever, not even in the minutest degree" (4 Blackstone's Commentaries, at 932 [Chase's 3d ed.], see also, 69-70, 619).

This right to defend oneself or another was early codified in this State as an integral part of the murder statutes (see, e.g., L.1787, ch. 22; 2 Rev.Stat. of N.Y., part IV, ch. I, tit. II, § 3 [1829] ), and this court has long held the People have the burden of disproving beyond a reasonable doubt a defendant's claim that he was acting in the exercise of that right (see, e.g., People v. Taylor, 177 N.Y. 237, 245, 69 N.E. 534, supra; People v. Riordan, 117 N.Y. 71, 74-75, 22 N.E. 455). Accordingly, justification under the Penal Law is an ordinary defense rather than an affirmative one (see, Penal Law § 35.00). As such, whenever justification is sufficient interposed by the defendant, the People must prove its absence to the same degree as any element of the crime charged (People v. Reed, 40 N.Y.2d 204, 209, 386 N.Y.S.2d 371, 352 N.E.2d 558; People v. Steele, 26 N.Y.2d 526, 528, 311 N.Y.S.2d 889, 260 N.E.2d 527).

From the foregoing, it follows that there is no basis for limiting the application of the defense of justification to any particular mens rea or to any particular crime involving the use of force. Indeed, the Legislature has clearly not done so. The introductory provision to article 35 of the Penal Law evinces an intent to give the justification defense the broadest possible scope. It states without qualification that the defense is available "[i]n any prosecution for an offense" (Penal Law § 35.00 [emphasis added] ). Likewise, section 35.15, the provision specifically at issue in this case which outlines the circumstances under which the use of physical force and deadly physical force are justified, is devoid of any such limiting language. (See also, Penal Law § 35.05[2] and § 35.10[6].)

Accordingly, this court has rejected a restrictive application of the defense and, instead, has permitted the defense to be raised against diverse charges involving the use of force, regardless of the relevant mens rea (see, e.g., People v. Padgett, supra [criminal mischief, fourth degree; intentional]; People v. Huntley, 59 N.Y.2d 868, 465 N.Y.S.2d 929, 452 N.E.2d 1257, affg. 87 A.D.2d 488, 452 N.Y.S.2d 952 [manslaughter, second degree; reckless]; cf. People v. Watts, supra [assault, second degree; intentional]; People v. Stridiron, 33 N.Y.2d 287, 352 N.Y.S.2d 179, 307 N.E.2d 242 [manslaughter, second degree, reckless]; People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759 [manslaughter, second degree; reckless]; compare, People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463 [criminal possession of a weapon, second degree; intentional] ). As we made clear in People v. Padgett, (supra, 60 N.Y.2d at p. 146, 468 N.Y.S.2d 854,...