State of New York                                                        OPINION
Court of Appeals                                          This opinion is uncorrected and subject to revision
                                                            before publication in the New York Reports.




 No. 32
 The People &c.,
         Appellant,
      v.
 Darryl Brown,
         Respondent.




 Clara H. Salzberg, for appellant.
 Joey Jackson, for respondent.




 WILSON, J.:

        Defendant Darryl Brown shot and killed Vonde Cabbagestalk in the lobby of Mr.

 Brown’s apartment building after an argument. At trial, Mr. Brown sought a jury

 instruction on justification, which the court declined to give. We agree with the trial court

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that no reasonable view of the evidence warranted a justification charge, and, accordingly

reverse.

                                             I

        Mr. Brown and his pregnant daughter lived in an apartment building in the Bronx;

Mr. Cabbagestalk was Mr. Brown’s daughter’s boyfriend and the father of her child. Three

witnesses who saw at least a part of the events surrounding Mr. Cabbagestalk’s death

testified at trial.

        The first witness, Yvette Flores, lived across the hall from Mr. Brown. Ms. Flores

heard arguing in the hallway. Looking through the peephole in her front door, she saw Mr.

Brown and Mr. Cabbagestalk arguing in front of the open door to Mr. Brown’s apartment,

with Mr. Brown’s daughter standing there as well. The argument between Mr. Brown and

Mr. Cabbagestalk continued after both men passed out of Ms. Flores’ view; shortly

afterwards, she heard Mr. Brown’s daughter yell, “No, daddy, no!” followed by a loud

boom. Ms. Flores left her apartment, saw Mr. Cabbagestalk lying on the lobby floor, and

saw Mr. Brown and his daughter re-enter their apartment. She called 911.

        A second witness, Sheila Thomas, observed the argument as she was entering the

building. Looking through the interior glass door, she saw two men in the lobby, one older

than the other. She saw the older man (Mr. Brown) walk away and the younger man (Mr.

Cabbagestalk) follow. Ms. Thomas said the older man was walking and the younger man

was following him with his hands out and elbows bent so that his palms were up, facing

the older man, as if he was “trying to reason” with him. The argument continued after Ms.
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Thomas could no longer see them, when suddenly a shot rang out. She saw the younger

man fall and heard a woman scream. She then fled outside.

       The third witness, Raymond Wolf, a postal carrier, was delivering mail to the

building at the time of the incident. When he arrived at the building, Mr. Cabbagestalk and

Cordarell Marshall, an acquaintance of Mr. Cabbagestalk’s, opened the building’s locked

door to admit Mr. Wolf.1 While Mr. Wolf was in the lobby, distributing mail into the

residents’ individual mailboxes, an older man (Mr. Brown) entered the lobby where the

two younger men had been talking, and started arguing with the taller of the two younger

men (Mr. Cabbagestalk). Mr. Wolf said he heard the older man say, “Stay away from my

daughter, don’t come around here.” Mr. Cabbagestalk responded, “you can’t tell me where

to be.” According to Mr. Wolf, Mr. Cabbagestalk was “getting in the older guy’s face a

little bit,” “trying to back him down,” and Mr. Marshall was trying to calm Mr.

Cabbagestalk down.

       Mr. Wolf testified at trial that he observed Mr. Cabbagestalk throwing a few

punches at Mr. Brown but that he believed those punches did not reach Mr. Brown. Mr.

Wolf also testified that Mr. Brown was holding a gun slightly “above waist high” and

“pointed away from him.” Mr. Cabbagestalk then “swiped” at Mr. Brown’s gun, though

Mr. Wolf’s testimony about the exact number of swings and sequence of events was




1
  The identity of Mr. Cabbagestalk’s companion was not definitively resolved at trial, but
for purposes of the present appeal we will follow the Appellate Division’s finding that this
individual’s name is Cordarell Marshall (160 AD3d 39, 42 n 1).

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inconsistent, at times testifying to three swings followed by one swipe, at other times

interspersing one swipe amid swings. In any event, Mr. Wolf averred that he could not

recall if any of the swings or swipes was with an open or closed hand. According to Mr.

Wolf, at some point before Mr. Cabbagestalk’s last swing or swipe, Mr. Cabbagestalk said,

“if you going to pull a gun out, you got to use it.” Mr. Brown did just that, shooting Mr.

Cabbagestalk in the chest. When Mr. Wolf first saw the gun, he started up the stairs to the

second floor. From his vantage point on the stairs, he did not see “the flash [of the gun

firing] or anything,” but heard the shot and saw Mr. Cabbagestalk fall.

       When the police arrived, they found Mr. Cabbagestalk lying face down in the lobby,

dead at the scene with a shell casing next to him. During their canvass of the building, the

police spoke to Ms. Flores, who directed them to the Browns’ apartment. Mr. Brown

admitted the police, where they recovered a semiautomatic Glock pistol in a kitchen

drawer. Testing later revealed it was the gun that fired the shell casing found next to Mr.

Cabbagestalk’s body.

       Mr. Brown was indicted for murder in the second degree, manslaughter in the first

degree, and criminal use of a firearm in the first degree. Defense counsel asked the court

for a justification instruction; the People objected. The court denied the request because

the evidence, taken in the light most favorable to Mr. Brown, did not warrant a justification

charge.2 The jury acquitted Mr. Brown of murder in the second degree but found him guilty


2
 Contrary to the position of Mr. Brown and the conclusion of the Appellate Division
majority below (160 AD3d at 49 n 9), the question of whether the trial court correctly

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of manslaughter in the first degree. The Appellate Division, over a two-Justice dissent,

reversed, holding Mr. Brown was entitled to a jury instruction on justification (People v

Brown, 160 AD3d 39 [1st Dept 2018]). A Justice of the Appellate Division granted the

People leave to appeal to this Court, and we now reverse.

                                              II

       Mr. Brown’s shooting of Mr. Cabbagestalk self-evidently constituted the use of

deadly physical force. As relevant here, a defendant is justified in using “deadly physical

force” upon another only if that defendant “reasonably believes that such other person is

using or about to use deadly physical force” (Penal Law § 35.15 [2] [a]): in other words,

both that “he believed deadly force was necessary to avert the imminent use of deadly force

[and that] in light of all the circumstances . . . a reasonable person could have had these

beliefs” (People v Goetz, 68 NY2d 96, 115 [1986]). However, the Penal Law provides that

a defendant is never justified in using deadly physical force if that defendant is the “initial

aggressor:” the first person in an altercation who uses or threatens the imminent use of

deadly physical force (Penal Law § 35.15 [1] [b]; People v Petty, 7 NY3d 277, 285

[2006]).3




denied Mr. Brown’s request for a justification instruction, including on initial aggressor
grounds, is preserved (CPL 470.05 [2]; cf. People v Miranda, 27 NY3d 931, 932 [2016]).
3
   We have no need to consider the People’s argument that Mr. Brown was not entitled to
a justification instruction because he does not satisfy the subjective and objective criteria
of the defense set out in People v Goetz (68 NY2d at 114-15) and its progeny.

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       “Justification is a defense, not an affirmative defense, and therefore the People bear

the burden of disproving it beyond a reasonable doubt” (Matter of Y.K., 87 NY2d 430, 433

[1996]). “[I]n considering whether the trial court’s charge to the jury was adequate, the

record must be considered most favorably to defendant . . . [and] if[,] on any reasonable

view of the evidence, the fact finder might have decided that defendant’s actions were

justified, the failure to charge the [justification] defense constitutes reversible error”

(People v Padgett, 60 NY2d 142, 145 [1983]). However, “when no reasonable view of the

evidence would support a finding of the tendered defense, the court is under no obligation

to submit the question to the jury” (People v Watts, 57 NY2d 299, 301 [1982]).

       Mr. Brown’s argument that he was entitled to a justification charge rests entirely on

Mr. Wolf’s testimony; the testimony of the other witnesses does not provide any basis for

a justification charge. Even fully crediting Mr. Wolf’s testimony, it is uncontested both that

Mr. Cabbagestalk was unarmed and that Mr. Cabbagestalk swiped at the gun only after Mr.

Brown wielded it. On the facts of this case, taken in the light most favorable to Mr. Brown,

we hold that the trial court’s refusal to charge justification was not error, because Mr.

Brown was the initial aggressor as a matter of law.

       The “initial aggressor” is the first person who uses or threatens the imminent use of

physical force in a given encounter. However, even if someone is the initial aggressor with

respect to mere physical force, another person may be the initial aggressor with respect to

deadly physical force. If mere physical force is employed against a defendant, and the

defendant responds by employing deadly physical force, “the term initial aggressor is


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                                             -7-                                       No. 32

properly defined as the first person in the encounter to use deadly physical force” (People

v McWilliams, 48 AD3d 1266, 1267 [4th Dept 2008]).4

       To determine who the “initial aggressor” is, then, both the sequence of the attacks

(or imminently threatened attacks) and the nature of those attacks matter: which attacks

were “physical force” and which attacks were “deadly physical force?” “Deadly physical

force means physical force which, under the circumstances in which it is used, is readily

capable of causing death or other serious physical injury” (Penal Law § 10.00[11]). Deadly

physical force, we have held, encompasses not merely the striking of the first blow or

infliction of the first wound. It also encompasses acts by a person that cause the defendant

reasonably to believe that the defendant is facing the “imminent threat” of deadly force

(see People v Valentin, 29 NY3d 57, 60 [2017]). As for what constitutes such a threat, we

held in People v Dodt (61 NY2d 408 [1984]) that the imminent threat to use a gun

constituted the threat of deadly physical force even if the gun is never fired. “The threat

presented by a gun does not depend to any significant extent on the manner in which it is

used. So long as a gun is operable, it constitutes deadly physical force, and a threat to use

a gun, such as was made here, can only be understood as a threat that the weapon is

operable” (id. at 415). Thus, the imminent threat to use a gun against another is, necessarily,




4
 See also People v Valentin, 29 NY3d 57, 61 (2017); People v Kerley, 154 AD3d 1074,
1076 (3d Dept 2017); People v Daniel, 35 AD3d 877, 878 (2d Dept 2006); People v
Walker, 285 AD2d 364, 365 (1st Dept 2001); People v Mickens, 219 AD2d 543, 544 (1st
Dept 1995); CJI2d[NY] Justification: Use of Deadly Physical Force in Defense of a Person,
Penal Law § 35.15 (2).
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                                            -8-                                       No. 32

a threat of deadly physical force. The first person to make such an imminent threat is,

therefore, the initial aggressor with respect to deadly physical force.

       Those principles control this case. Here, Mr. Brown placed his gun in a position

where he was readily able to aim and fire it imminently, and did so before Mr.

Cabbagestalk’s efforts to “swipe” at the gun. The circumstances surrounding that act—

where a verbal altercation between Mr. Brown and the victim preceded it, where the victim

was unarmed, where an armed Mr. Brown pursued the victim into the building’s lobby,

and where both Mr. Brown’s daughter (“No, daddy, no!”) and the victim himself (“you

going to pull a gun out, you better use it”) expressed their subjective belief that Mr. Brown

had threatened the imminent use of deadly force—provide further support for the trial

court’s conclusion that Mr. Brown’s drawing of a gun here could only be understood as an

imminent threat of deadly physical force.

       Even the Appellate Division majority, holding that Mr. Brown was not an initial

aggressor, nonetheless characterized Mr. Cabbagestalk’s errant punches as “undeterred by

[Brown’s] weapon” (160 AD3d at 45). Mr. Brown’s display of the gun as a “deterrent”

was, on this record, a deterrent precisely because it threatened the imminent use of deadly

physical force. We reached the same conclusion in People v Magliato (68 NY2d 24

[1986]), in which we held that the defendant was the initial aggressor when he drew his

firearm to “scare off” the victim, because the gun was “readily capable of causing death or

physical injury” (id. at 30) as those terms are defined in Penal Law § 10.00(11). We

explained “the risk of serious injury or death and the capacity presently to inflict the same


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                                             -9-                                        No. 32

are central to the definition [of deadly physical force], not the consequence of defendant’s

conduct or what he intended” (Magliato, 68 NY2d at 29).

       Because Mr. Brown’s drawing of his gun under these circumstances constituted the

imminent threat of deadly physical force, the “initial aggressor” rule bars Mr. Brown from

claiming justification unless a reasonable jury could conclude either: (1) that Mr. Brown

withdrew from the encounter after drawing his gun, communicated that withdrawal to

Mr. Cabbagestalk, and Mr. Cabbagestalk thereafter used or threatened imminent use of

deadly physical force (Penal Law § 35.15[1][b]), or (2) that Mr. Cabbagestalk himself was

the initial “deadly force” aggressor. No reasonable jury could reach either conclusion based

on the evidence in this case, even viewing the evidence in the light most favorable to Mr.

Brown (as we must).

       First, there is no evidence that Mr. Brown withdrew after drawing his gun. Instead,

after drawing his gun, Mr. Brown shot Mr. Cabbagestalk dead. All testimony as to Mr.

Brown carrying a firearm indicates that Mr. Brown had his firearm out during all or part of

the argument in the lobby—there was no withdrawal between the imminent threat to use

the gun (the first threat of deadly physical force) and the grim realization of that threat.

       Second, Mr. Cabbagestalk was not the initial deadly force aggressor because of his

“swipe” at Mr. Brown’s gun. No reasonable view of the evidence supports the proposition

that Mr. Brown was ever threatened by Mr. Cabbagestalk with the imminent use of deadly

force prior to the point at which Mr. Brown drew his gun. Mr. Cabbagestalk sought to

swipe the gun only after Mr. Brown had first threatened the imminent use of deadly

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                                             - 10 -                                     No. 32

physical force by displaying his gun, leaving Mr. Brown as the initial deadly force

aggressor. There is no evidence that Mr. Cabbagestalk was ever armed; indeed, both Mr.

Wolf and Ms. Thomas testified that Mr. Cabbagestalk had nothing in his hands. As for Mr.

Cabbagestalk’s argument with Mr. Brown, as we said in Valentin, “calling a person names

or the like unaccompanied by physical threats or acts does not make a person an initial

aggressor and does not justify physical force” (29 NY3d at 61), let alone deadly physical

force.5 As the dissenting Justices below explained, “when defendant became the first and

only participant in the altercation to threaten the use of deadly physical force . . . he did so

without any basis for fearing that Cabbagestalk was about to use such force on him” (160

AD3d 39, 60 [Kahn, J. dissenting]).6 To hold that one who wields a gun during a nondeadly

altercation may claim justification because the unarmed victim subsequently attempted to

swipe, grab or dislodge the gun would be to disregard the requirements of Penal Law §

35.15.




5
 There is no evidence in this case remotely akin to that presented in People v Petty (7 NY3d
277 [2006]), in which we held a reasonable jury could infer an imminent threat of deadly
physical force from the victim’s unambiguous, credible death threats uttered repeatedly to
the defendant over an 11-day period. The uncontroverted evidence in this case is that Mr.
Cabbagestalk did no more than argue with Mr. Brown before Mr. Brown drew his gun.
6
  Mr. Brown further argues that the reasonableness of his alleged belief that Mr.
Cabbagestalk threatened the imminent use of deadly physical force is demonstrated by the
jury’s decision to acquit him of murder, because the acquittal shows that Mr. Brown did
not intend to cause the death of Mr. Cabbagestalk. But whether proof beyond a reasonable
doubt existed that Mr. Brown intended to kill Mr. Cabbagestalk is a different question than
whether Mr. Brown reasonably believed he himself was threatened with deadly physical
force.

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                                             - 11 -                                        No. 32

                                               III

         In holding that Mr. Brown is not entitled to a justification charge on this record, we

do not disturb in the slightest “the well-settled principle that, in considering whether the

trial court’s charge to the jury was adequate, the record must be considered most favorably

to defendant [and i]f, taking that view of the record, the evidence supports the defense of

justification, the trial court should instruct the jury as to the defense and must when so

requested” (Padgett, 60 NY2d at 144-45). However, where, as here, there is no reasonable

view of the evidence that Mr. Brown was anything other than the initial aggressor in his

use of deadly physical force, he is not entitled to a jury instruction on justification.

         Accordingly, the order of the Appellate Division should be reversed and the case

remitted to the Appellate Division for a determination of the facts and issues raised but not

determined on appeal to that Court.

*    *       *     *    *     *     *    *     *      *    *    *     *     *     *        *   *

Order reversed and case remitted to the Appellate Division, First Department, for
determination of the facts and issues raised but not determined on appeal to that court.
Opinion by Judge Wilson. Chief Judge DiFiore and Judges Rivera, Stein, Fahey, Garcia
and Feinman concur.


Decided May 7, 2019




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