People v. Dingley

366 N.E.2d 877, 42 N.Y.2d 888, 397 N.Y.S.2d 789, 1977 N.Y. LEXIS 2226

Opinion

Memorandum. Of the several issues raised by defendant, one requires a reversal of the conviction and a new trial.

Although the determination at trial, which precluded the introduction of evidence of the victim’s prior specific acts of violence of which the defendant had knowledge, was correct when made, People v Miller (39 NY2d 543) has since changed the rule and requires a reversal here.

As was recognized by the Appellate Division, however, no error was made in the court’s charge on justification. The common-law exception, which made the duty to retreat inapplicable when assault was charged, did not survive the statutory amendment embodied in section 35.15 of the Penal Law.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order reversed and a new trial ordered in a memorandum.