91 N.Y.2d 714 (1998)
A person in control of an occupied building may use deadly physical force when they reasonably believe another is committing a burglary and that such force is necessary to prevent or terminate the commission of the burglary.
Summary
DeFreese, a store employee, was convicted of criminally negligent homicide after fatally stabbing an unruly customer who had been asked to leave the store but re-entered and became violent. The New York Court of Appeals reversed the Appellate Division’s affirmation of the conviction, holding that the trial court erred in not charging the jury on the justifiable use of deadly force in defense of burglary. The Court reasoned that a reasonable view of the evidence could lead a jury to conclude that the customer’s initial lawful entry became unlawful when he defied the order to leave, and his violent conduct supported the belief that deadly force was necessary.
Facts
Troy Alexander, heavily intoxicated, entered a convenience store where DeFreese worked. Alexander bumped into a customer, accosted another, and argued with DeFreese’s brother. Alexander physically threatened DeFreese’s brother. DeFreese escorted Alexander out, but Alexander re-entered, throwing items and threatening to kill DeFreese and his brother. Alexander punched DeFreese, who then grabbed a knife and swung it, fatally striking Alexander in the neck.
Procedural History
DeFreese was indicted for second-degree murder and first-degree manslaughter. The trial court instructed the jury on self-defense but declined to instruct on justifiable use of deadly force in defense of burglary. The jury convicted DeFreese of criminally negligent homicide. The Appellate Division affirmed. The Court of Appeals reversed, dismissing the indictment without prejudice to the People’s application to resubmit the criminally negligent homicide charge to a grand jury.
Issue(s)
Whether the trial court erred in failing to instruct the jury on the justifiable use of deadly force in defense of burglary, pursuant to Penal Law § 35.20, given the defendant’s claim that he reasonably believed the victim was committing a burglary.
Holding
Yes, because a reasonable view of the evidence supported the conclusion that the victim’s initial lawful entry became unlawful when he defied the defendant’s order to leave the premises, and the victim’s violent conduct and threats supported the reasonableness of the defendant’s belief that deadly physical force was necessary to prevent or terminate a burglary.
Court’s Reasoning
The Court of Appeals applied Penal Law § 35.20(3), which permits the use of deadly force by a person in control of an occupied building who reasonably believes another is committing a burglary, and reasonably believes such force is necessary to prevent or terminate the commission of the burglary. The court noted that burglary occurs when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20). Citing People v. Brown, the Court stated that a licensee’s privilege to be on the premises is revoked when “he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person” (Penal Law § 140.00 [5]).
The Court concluded that a jury could reasonably find that Alexander’s entry became unlawful when he defied DeFreese’s order to leave. Further, Alexander’s violent conduct and threats supported the reasonableness of DeFreese’s belief that deadly force was necessary. The Court emphasized it must view the record in the light most favorable to the defendant. The Court cited People v. Padgett, 60 NY2d 142, 144 (1983) and People v. Torre, 42 NY2d 1036, 1037 (1977) for the standard that a reasonable view of the evidence entitles the defendant to a justification charge pursuant to Penal Law § 35.20.
Because the defendant was convicted of a lesser-included offense, the court dismissed the indictment, allowing the prosecution to seek leave to resubmit the criminally negligent homicide charge to a grand jury.