People v. Magliato, 68 N.Y.2d 24 (1986)

Conduct intended to scare off an assailant, but which places the assailant in imminent danger of grave bodily injury or death, constitutes the “use of deadly physical force,” making the defense of justification applicable.

Summary

Magliato was convicted of depraved indifference murder for the shooting death of Giani after an altercation that began with a traffic incident. Magliato argued that drawing and aiming a loaded gun at Giani was a justified protective action and that he should not have been required to have the jury instructed on the duty to retreat. The New York Court of Appeals held that because Magliato’s conduct created an imminent risk of serious harm, it constituted the use of deadly physical force, and the justification defense under Penal Law § 35.15 applied, including the duty to retreat. The court affirmed the Appellate Division’s reduced conviction of manslaughter in the second degree.

Facts

Magliato’s Ferrari was struck by a station wagon driven by Giani, who then sped away. Magliato chased the station wagon, which stopped at an intersection. Giani exited the station wagon, brandishing a club and threatening Magliato. The station wagon drove off, leaving Giani behind. Magliato reentered his car, followed the station wagon, and then stopped at his apartment to retrieve his gun, for which he had a permit. Later, seeing the station wagon parked, Magliato stopped to call the police. Giani approached Magliato with the club. Magliato drew his gun, cocked it, and pointed it at Giani. As a car passed by, Giani moved towards the curb, and the gun fired, killing Giani. Magliato claimed the gun discharged accidentally due to a hair trigger.

Procedural History

Magliato was convicted of depraved indifference murder in the trial court. The Appellate Division reduced the conviction to manslaughter in the second degree. The People’s appeal was dismissed. Magliato was granted leave to appeal from the reduced conviction.

Issue(s)

1. Whether the defense of justification applies when the defendant claims the discharge of the pistol was accidental and not in self-defense.

2. Whether drawing and cocking a pistol constitutes the “use of deadly physical force” within the meaning of Penal Law § 35.15.

Holding

1. Yes, because the defense of justification applies to risk-creating conduct, even with unintended consequences.

2. Yes, because conduct that places another person in imminent risk of grave danger constitutes the “use of deadly physical force.”

Court’s Reasoning

The court reasoned that the defense of justification applies to a defendant’s risk-creating conduct, even if there are unintended consequences, citing People v. McManus, 67 N.Y.2d 541 and People v. Huntley, 59 N.Y.2d 868. The court stated, “[T]here 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.” The court also reasoned that “Deadly physical force” is defined in Penal Law § 10.00 (11) as that which is “readily capable of causing death or other serious physical injury.” The court emphasized that “[t]he risk of serious injury or death and the capacity presently to inflict the same are central to the definition, not the consequence of defendant’s conduct or what he intended.” The court found that Magliato’s conduct in drawing, cocking, and aiming the pistol at Giani constituted the “use” of deadly force. The court emphasized that Penal Law § 35.15 (2) is the operative law of self-defense, stating that “[a] person may not use deadly physical force upon another person… unless certain specified conditions are met.” Therefore, since Magliato’s actions constituted deadly physical force, he was subject to the requirements of the justification defense, including the duty to retreat.