People v. Stevens

245 A.D.2d 39, 665 N.Y.S.2d 860, 1997 N.Y. App. Div. LEXIS 12525

Opinion

—Judgment, Supreme Court, Bronx County (Eugene Oliver, J.), rendered July 11, 1995, convicting defendant, after a jury trial, of manslaughter in the first degree, and sentencing him to a term of 8V3 to 25 years, unanimously affirmed.

On the facts of this case, defendant was not entitled to a justification charge. However, the court gave the charge and its erroneous instruction to the jury concerning the duty to retreat does not warrant reversal. There is no reasonable possibility that the jury would have accepted defendant’s justification defense but for the erroneous charge (see, People v Cox, 203 AD2d 7, lv denied 83 NY2d 1003). Defendant’s own recitation of the facts showed that a threat of deadly physical force was not imminent and further indicates he was the initial and only aggressor. Concur—Milonas, J. P., Rubin, Tom, Mazzarelli and Colabella, JJ.