This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 147
The People &c.,
            Respondent,
        v.
Christopher E. Walker,
            Appellant.




          Timothy W. Hoover, for appellant.
          Geoffrey Kaeuper, for respondent.




STEIN, J.:
          On this appeal, defendant argues that the standard
Criminal Jury Instruction on the "initial aggressor exception" to
the justification defense misstates the applicable law where
defendant claimed that he intervened in an ongoing fight that
began in his absence in order to shield a third party from an

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unlawful attack.   We agree and, therefore, reverse.
                                I.
          Defendant was charged in an indictment with murder in
the second degree after stabbing and killing the victim during a
fight between the victim, defendant's brother and defendant's
girlfriend that allegedly started at the victim's home, in
defendant's absence.1   Defendant testified that he was at his own
home when his former wife notified him that someone was beating
his brother with a hammer at a house down the street.    Defendant
grabbed a kitchen knife and went to help his brother, who he
found on the victim's porch.   Defendant averred that he ran onto
the victim's porch, and tried to break up the fight after he saw
the victim -- who was high on cocaine and drunk -- hitting his
brother in the head with a hammer.     Defendant claimed that, when
the victim turned to hit him and drew back the hammer as if to
strike him again, defendant threw up his arm to stop the blow and
then swung his arm around, stabbing the victim in the chest.
After the victim jumped or fell from the porch, defendant grabbed
the hammer and walked home with the others.    Defendant's brother
later wrapped the knife and hammer in defendant's bloody shirt
and placed them under the stairs leading to defendant's front
porch, where the police found them.
          Subsequent testing revealed the victim's DNA on the


     1
       Defendant's brother and girlfriend were charged with
manslaughter in the first degree.

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handle of the hammer.    In addition, several eyewitnesses
testified at trial that defendant's brother and girlfriend were
arguing with the victim, that the three of them began physically
fighting with each other, and that, shortly afterward, defendant
ran onto the victim's porch, leading to a larger scuffle at the
end of which the victim staggered and fell off his porch.
According to these witnesses, after the three kicked the victim,
defendant walked back to his house with blood on his shirt and a
knife in his hand.
          At the charge conference, Supreme Court indicated that
it would, at defendant's request, give a charge on the
justification defense.    Defendant then specifically requested
that the court read the standard criminal jury instruction on
justification, but exclude the portion that addressed the initial
aggressor rule, because defendant did not "stand in the shoes of
anybody initially involved in the fight."    Alternatively,
defendant argued that, if an initial aggressor charge "were to be
used at all[, it] should indicate the first person to use deadly
force, not offensive force."    In contrast, the People asserted
that there was "a fair view of the evidence to show that . . .
defendant [was] acting in concert with" his brother and
girlfriend, which "makes him accountable as an initial
aggressor."
          The court reserved decision on the issue, eventually
ruling at a subsequent charge conference that the initial


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aggressor charge, as then set forth in the criminal jury
instructions, was proper because it was supported by a reasonable
view of the evidence.    The court stated, however, that it would
add language, based upon People v McWilliams (48 AD3d 1266 [4th
Dept 2008], lv denied 10 NY3d 961 [2008]), that where a
"defendant initiated non-deadly force and [was] met with deadly
physical force[,] the defendant may be justified in the use of
deadly physical force.   In that case the term initial aggressor
would be properly defined as the first person in the encounter to
use deadly physical force."   Defendant reiterated his request
that any language regarding the initial aggressor rule be omitted
entirely because he was "concerned as to whether or not there
would be confusion as to which person . . . they need to look at
in terms of being an initial aggressor;" the court again denied
that request.
          In summation, the prosecutor argued that the evidence
demonstrated that defendant "brought this butcher knife . . . to
a verbal argument that he had no business being a part of."
Although thereby acknowledging that defendant arrived after the
argument had commenced, the prosecutor described the conflict in
a manner that made it appear as though defendant was acting in
concert with his brother and his girlfriend from the beginning,
characterizing the "circumstances of this argument or
confrontation" as "a three on one.      Three people [20] years
younger than [the victim] on his own porch accosting him."        The


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prosecutor repeatedly stated that "no matter how hard [the
victim] tried, they just wouldn't leave" (emphasis added), "[the
victim] was just trying to get them to leave" (emphasis added),
and that "[i]f the defendant would have just left the porch that
night, [the victim] would have lived to see another day."     The
prosecutor also argued that the evidence showed that defendant
"and his accomplices" brought the hammer to the victim's house,
and asked the jury to consider "[h]ow was it that the defendant
and his accomplices came on to [the victim's] porch?"
          Thereafter, the court charged the jury on defendant's
justification defense, explaining that "[u]nder the law a person
may use deadly physical force upon another individual when and to
the extent that he reasonably believes it to be necessary to
defend himself or someone else from . . . the use or imminent use
of deadly physical force by such individual."   The court further
charged the jury on the initial aggressor rule, stating, as
relevant here,
          "Notwithstanding those rules that I just
          explained, the defendant would not be
          justified in using deadly physical force
          . . . if he was the initial aggressor.
          Initial aggressor means the person who first
          attacks or threatens to attack . . . Where
          there is a reasonable view of the evidence
          that the defendant initiates non-deadly
          offensive force and is met with deadly
          physical force, the defendant may be
          justified in the use of defensive deadly
          physical force and . . . in such cases the
          term initial aggressor is properly defined as
          the first person in the encounter to use
          deadly physical force . . . A person who
          reasonably believes that another is about to

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          use deadly physical force upon him need not
          wait until he is struck or wounded. He may
          in such circumstances be the first to use
          deadly physical force so long as he
          reasonably believed it was about to be used
          against him . . . Arguing, using abusive
          language, calling a person names or the like
          unaccompanied by physical threats or acts
          does not make a person an initial aggressor."
          The jury acquitted defendant of second degree murder,
but found him guilty of manslaughter in the first degree.
Supreme Court subsequently sentenced defendant to 25 years in
prison, to be followed by five years of postrelease supervision.
The Appellate Division unanimously affirmed the judgment of
conviction (114 AD3d 1134 [4th Dept 2014]), and a Judge of this
Court granted leave to appeal (23 NY3d 1044 [2014]).
                                II.
          It is well settled that, "[i]n evaluating a challenged
jury instruction, we view the charge as a whole in order to
determine whether a claimed deficiency in the jury charge
requires reversal" (People v Medina, 18 NY3d 98, 104 [2011]; see
People v Umali, 10 NY3d 417, 426-427 [2008], cert denied 556 US
1110 [2009]).   Reversal is appropriate -- even if the standard
criminal jury instruction is given -- when the charge, "read
. . . as a whole against the background of the evidence produced
at the trial," likely confused the jury regarding the correct
rules to be applied in arriving at a decision (People v Andujas,
79 NY2d 113, 118 [1992]; see Umali, 10 NY3d at 427).   When the
defense of justification is raised in cases involving deadly


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force, "the People must demonstrate beyond a reasonable doubt
that the defendant did not believe deadly force was necessary or
that a reasonable person in the same situation would not have
perceived that deadly force was necessary" (Umali, 10 NY3d at
425).   As the trial court properly recognized, the justification
defense is not available to an initial aggressor except in
circumstances not present here (see Penal Law § 35.15 [1] [b]).
However, while the portions of the charge that the court read to
the jury regarding the initial aggressor rule were accurate in
themselves, defendant correctly argues that the charge, taken as
a whole, was confusing and misleading under the circumstances of
this case because the court did not go on to explain the manner
in which the initial aggressor rule applies when a defendant
intervenes in an on-going struggle to protect a third party who
the defendant reasonably believes is being unlawfully beaten.
           Traditionally, this Court applied an "alter ego rule"
to such scenarios, holding that in cases of simple, third-degree
assault, an intervenor stood in the shoes of the third-party
being assaulted and intervened at his own peril that he was
acting under a mistaken belief of fact regarding the lawfulness
of the beating (see People v Young, 11 NY2d 274, 275 [1962]).
The Court reasoned that the right of a person to defend another
was not greater than the right of the third party to defend




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himself or herself (see id.).2    The Court's decision in Young was
criticized extensively.   In particular, commentators argued that
"a rule of law that an intervener acts at his own peril,
especially if the decision is widely publicized, may well deter
conduct that would actually assist the process of law enforcement
because of the potential intervener's [sic] fear that he may be
mistaken about the facts and therefore may subject himself to
criminal liability" (see Recent Developments, Intervenor Held
Liable for Assault Despite Reasonable Belief That His Conduct
Protected Another from Unlawful Harm, 63 Colum. L. Rev. 160, 168
[1963]).
           Shortly after Young was decided, the Penal Law was
revised.   The Commentaries to Penal Law § 35.15 -- written by the
executive director of the Commission on Revision of the Penal Law
and Criminal Code and counsel to the Commission (see 1967
McKinney's Consolidated Laws of NY, Book 39, at iii-iv) --
indicate that the revisions legislatively overruled Young,
stating that if the case "were to be litigated under the revised
provision, a different result would be required" (Richard G.
Denzer & Peter McQuillan, 1967 Practices Commentaries, McKinney's


     2
        The People's argument for giving the initial aggressor
charge here mirrored the traditional view of the law. They
argued that the charge was required because the evidence showed
that defendant was "acting in concert with" his brother and
girlfriend, thereby "mak[ing] him accountable as an initial
aggressor" -- that is, that he stood in the shoes of the two
others involved in the fight, even if he was not initially
present, because he was acting in concert with them.

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Consolidated Law of NY, Book 39, Penal Law § 35.15, at 63).
Indeed, as then-Justice Theodore T. Jones recognized in People v
Melendez (155 Misc 2d 196, 201 [Sup Ct, Kings County 1992]), the
Penal Law was further revised to permit a justification defense
to be considered even if the defendant had operated under a
mistake of fact regarding the innocence of the person being
defended, providing that "[a] person is not relieved of criminal
liability for conduct because he engages in such conduct under a
mistaken belief of fact, unless . . . [s]uch factual mistake is
of a kind that supports a defense of justification as defined in
article [35] of this chapter" (Penal Law § 15.20 [1] [c]
[emphasis added]).
          The court in Melendez held that a charge on
justification in the context of the defense of another that is
"[t]otally lacking in . . . any guidelines as to the law where
the person protected is a wrongdoer or initial aggressor . . .
[is] confusing and misleading" (155 Misc 2d at 197-198).
Regarding the potential confusion over the term "initial
aggressor" in the context of defense of another, Melendez
explained that
          "[o]rdinarily, the 'good samaritan'
          intervenor would be the initiator of the
          contact between himself/herself and the
          person struggling with the person being
          defended. Thus, if 'initial aggressor'
          referred to the contact between [the]
          intervenor and the person struggling with the
          person being defended, the justification of
          another defense would rarely, if ever, be
          available. The only conclusion is that

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          'initial aggressor' refers to the initial
          conflict between the person being defended
          and the person with whom the third party is
          struggling" (id. at 201).
          This potential confusion over the term "initial
aggressor" is precisely the concern that defense counsel
referenced when objecting to the charge here.   We agree with the
conclusion reached in Melendez, that the standard charge is
misleading unless a supplemental charge is given on the meaning
of "initial aggressor" in the defense-of-another scenario (see
id. at 201-202).   Thus, the jury should have been charged that,
in the context of this case, the initial aggressor rule means --
in sum and substance -- that if defendant, as
          "the intervenor[,] somehow initiated or
          participated in the initiation of the
          original struggle or reasonably should have
          known that [his brother, as] the person being
          defended[,] initiated the original conflict,
          then justification is not a defense . . . If
          [defendant] had nothing to do with [the]
          original conflict and had no reason to know
          who initiated the first conflict, then the
          defense is available" (id. at 201).
The failure to give such a supplemental instruction here was not
harmless because the evidence does not overwhelmingly demonstrate
that defendant was involved in the initiation of the physical
confrontation, that he was the first to use deadly physical
force, or that he had reason to know who initiated the original
conflict (cf. People v Petty, 7 NY3d 277, 285-286 [2006]).     In
short, due to the omission of the supplemental instruction
regarding the intervenor who innocently comes to the defense of


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another who he or she believes is being assaulted, "the
instruction did not adequately convey the meaning of ['initial
aggressor'] to the jury and instead created a great likelihood of
confusion such that the degree of precision required for a jury
charge was not met" (Medina, 18 NY3d at 104).
            Accordingly, the order of the Appellate Division should
be reversed and the indictment dismissed, with leave to the
People, if they be so advised, to resubmit the charge of
manslaughter in the first degree to a new grand jury (see People
v Bradley, 88 NY2d 901, 904 [1996]).
*   *   *    *   *   *   *   *     *      *   *   *   *   *   *     *   *
Order reversed and indictment dismissed, with leave to the
People, if they be so advised, to resubmit the charge of
manslaughter in the first degree to a new grand jury. Opinion by
Judge Stein. Chief Judge Lippman and Judges Pigott, Rivera,
Abdus-Salaam and Fahey concur.

Decided October 27, 2015




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