This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 33
The People &c.,
            Appellant,
        v.
Carlos Valentin,
            Respondent.




          Virginia A. Marciano, for appellant.
          Robert S. Dean, for respondent.




ABDUS-SALAAM, J.:
          The trial court did not commit reversible error by
including an initial aggressor exception in its justification
charge. As there was a reasonable view of the evidence that
defendant was the initial aggressor in the use of deadly physical
force, this factual determination was properly before the jury.


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The order of the Appellate Division should therefore be reversed.
                               I.
          Defendant was charged with murder in the second degree,
attempted murder in the second degree, manslaughter in the first
degree, attempted assault in the first degree, assault in the
second degree, and criminal possession of a weapon in the second
degree for fatally shooting Justin McWillis and shooting Edward
Hogan in the arm. Hogan was the People's primary witness at
trial.
          These three men were known to each other. McWillis and
Hogan were friends of defendant's mother's tenant. Defendant and
his mother had grown increasingly frustrated with these young men
congregating around their house. They alleged the men were using
and selling drugs and instilling fear in the block's residents.
Defendant and his mother had repeatedly called the police to
report the issue, but responding officers usually advised that
there was nothing they could do. The night before the shooting,
after the police informed defendant they could not arrest anyone
because there was no evidence of any criminal activity, defendant
told an officer "I know my Second Amendment rights to bear arms.
If I put a bullet to one of these kids' heads you guys aren't
going to do s**t. I don't need the cops anymore."
          The following day, defendant left his house and
approached a nearby bodega. He had a loaded firearm concealed
under his jacket. Hogan and McWillis saw him from across the


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street. Hogan approached defendant and said "let me speak to you
for a second," to which defendant replied "what do you want, to
get shot?" Hogan and defendant then discussed the incident from
the previous evening, and defendant complained about the group of
men disrespecting his mother. McWillis and two others then
crossed the street, and McWillis entered the bodega. Hogan and
defendant followed him inside, defendant and McWillis got into an
argument in the bodega, and McWillis grabbed a mop handle.
          According to Hogan, defendant and McWillis continued to
argue as they exited the bodega, but as defendant was walking
away from McWillis, back toward his house, McWillis at some point
put down the mop handle. Hogan then saw McWillis pick up the mop
handle again and approach defendant. Hogan's testimony is
inconsistent as to the exact sequence of events that followed: at
some point, McWillis swung the mop handle at defendant, and
defendant pulled a gun out of his open jacket, shot Hogan in his
raised arm, and fatally shot McWillis, hitting him in the chest
at close range.
          At times during Hogan's testimony, he indicated that
defendant took out the gun only after McWillis swung the mop
handle. Several other times, however, he described the actions as
simultaneous. But at one point, Hogan testified that as defendant
"was pulling out, Justin was swinging. I guess, well, you could
say he hit him [with the mop handle] after I got shot; but when
he hit him, the gun was already pulled out." Hogan stated that


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the entire series of events took mere seconds.
          The trial court charged the jury on justification. Over
defendant's objection, the court included language from the
standard Criminal Jury Instructions regarding the initial
aggressor exception:
          "[N]otwithstanding the rules [of
          justification] that I have just explained,
          the Defendant would not be justified in using
          deadly physical force under the following
          circumstances: No. 1, the Defendant would
          not be justified if he was the initial
          aggressor. Initial aggressor means the
          person who first attacks or threatens to
          attack, that is to say, the first person who
          uses or threatens the imminent use of
          offensive physical force. The actual
          striking of the first blow or inflicting of
          the first wound, however, does not
          necessarily determine who was the initial
          aggressor. A person who reasonably believes
          that another is about to use deadly physical
          force upon him need not wait until he is
          struck or wounded. He may, under such
          circumstances, be the first to use deadly
          physical force so long as he reasonably
          believed it was about to be used against him.
          He is then not considered to be the initial
          aggressor under those circumstances, even
          though he strikes the first blow or inflicts
          the first wound. 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
          and does not justify physical force."

          Defendant was convicted of manslaughter in the first
degree. The Appellate Division, with one Justice dissenting,
reversed, holding that the trial court improperly instructed the
jury on the initial aggressor exception to justification (128
AD3d 428 [1st Dept 2015]). The dissenting Justice granted leave

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to appeal, and we now reverse and remit to the Appellate Division
for consideration of the issues raised but not determined on the
appeal to that court.
                               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 Walker, 26 NY3d 170, 174 [2015],
citing People v Medina, 18 NY3d 98, 104 [2011]). In reviewing a
trial court's charge, reversal is only appropriate if "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" (id. at 174-175, quoting People v Andujas, 79 NY2d 113
[1992]). It is uncontested that a justification charge pursuant
to Penal Law § 35.15 was appropriate in this case. In the context
of that self-defense charge, an initial aggressor instruction was
warranted because the charge was requested and there was an issue
of fact on the point.
          Hogan's testimony and timeline placed into issue
whether defendant or McWillis was the initial aggressor as to the
use of deadly force, especially when considering the brevity and
intensity of the altercation. Certainly, there is a reasonable
view of the evidence that McWillis was the initial aggressor as
to physical force, because he picked up the mop handle and


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followed defendant before defendant ever used or threatened the
use of a gun. However, the jury also could have reasonably
concluded that defendant was the initial aggressor as to the use
of deadly physical force, because he pulled out his loaded gun
and shot Hogan and McWillis before McWillis in fact threatened
him with the mop. And while there are instances where a "normally
innocuous item may constitute 'deadly physical force'" (see
dissenting op at 3; People v Dodt, 61 NY2d 408, 414 [1984]),
under these circumstances, the jury reasonably could have
concluded that the swinging mop handle did not. Thus, the court
properly instructed the jury on the definition of an initial
aggressor under Penal Law § 35.15.
          Notably, the instruction given did not imply or suggest
that defendant was the initial aggressor. Rather, the initial
aggressor charge explained the law that defendant, in using
deadly physical force, was not required to wait until he was
struck or wounded if he reasonably believed that deadly force was
about to be used against him. Under the charge given, if the jury
found the use of the mop handle was deadly physical force,
defendant would not be the initial aggressor. The charge, which
aided the jury in understanding justifiable use of force in self-
defense under Penal Law § 35.15, was properly given based on the
evidence, and there is no deficiency requiring reversal.
          Here, as the Appellate Division dissent noted, "[n]o
matter what the court charged in relation to the initial


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aggressor issue, [the jury could have reasonably concluded] there
was simply no evidentiary support for a finding that defendant
was justified in using deadly physical force against McWillis
when faced with McWillis's either threatened or actual use of a
mop handle" (Valentin, 128 AD3d at 433 [dissenting op.]). Our law
has "never required that an actor's belief as to the intention of
another person to inflict serious injury be correct in order for
the use of deadly force to be justified, but [it has] uniformly
required that the belief comport with an objective notion of
reasonableness" (People v Goetz, 68 NY2d 96, 107 [1986]). Thus,
the jury could have concluded that defendant's choice to respond
to a swinging plastic mop handle with a loaded and operable gun
was not reasonable, especially in light of his prior comments to
police about taking the law into his own hands.
          Accordingly, the order of the Appellate Division should
be reversed, and the case remitted to that court for
consideration of the issues raised but not determined on the
appeal to that court.




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People v Carlos Valentin
No. 33




STEIN, J.(dissenting):
          No reasonable view of the evidence could support a
finding that defendant was the initial aggressor.   Because this
case hinged on a justification defense, defendant was prejudiced
by the trial court's error of including the initial aggressor
exception in its justification charge.   Accordingly, I
respectfully dissent, and would affirm the Appellate Division
order remitting for a new trial.
          There is no dispute that defendant used deadly physical
force and that a justification charge was appropriate here.    The
trial court's instruction on justification properly began with
the basic premise of that defense in the context of deadly force:
"[u]nder our 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 from what he
reasonably believes to be the use or imminent use of unlawful
deadly physical force by such individual."   Under appropriate
circumstances, the basic justification charge may be supplemented
by instructions regarding one or more statutory exceptions to
that defense, including the initial aggressor exception (see
Penal Law § 35.15 [1]).    However, in order to avoid confusing the


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jury, a trial court should supplement the basic justification
charge with only those exceptions that are, or may be, applicable
under the facts of the particular case (see CJI2d[NY] Defense,
Justification: Use of Deadly Physical Force in Defense of a
Person).
           Although there was neither evidence to support, nor any
necessity for, an initial aggressor supplement to the basic
justification charge, the court further charged the jury that,
"notwithstanding" the explanation just given regarding
justification, "[d]efendant 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, that is to say, the first person who uses or threatens
the imminent use of offensive physical force," although a person
may protect himself or herself prior to the other person actually
striking the first blow.
           Giving the instruction regarding this exception was
error because there was insufficient record evidence from which
the jury could conclude that defendant was the initial aggressor
(see Penal Law § 35.15 [1] [b]).     Additionally, because of the
extensive use made by the People of that erroneously-given
initial aggressor instruction, defendant was most certainly
prejudiced.
                                I.
           Initially, the People assert that, because the plastic


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mop handle used by the victim was flimsy, its use could not
constitute deadly force.   The majority acknowledges that the
swinging of a mop handle may, under particular circumstances,
reasonably be viewed as presenting a threat of deadly physical
force (see majority op at 6).   Nonetheless, the dissenting
justice at the Appellate Division, with whom the majority here
now agrees, concluded that "there was simply no evidentiary
support for a finding that defendant was justified in using
deadly physical force against [Justin] McWillis when faced with
McWillis's either threatened or actual use of a mop handle" (128
AD3d 428, 433 [1st Dept 2015] [Saxe, J., dissenting]).
          In evaluating the justification defense, "[t]he
critical focus must be placed on the particular defendant and the
circumstances actually confronting him [or her] at the time of
the incident, and what a reasonable person in those circumstances
and having defendant's background and experiences would conclude"
(People v Wesley, 76 NY2d 555, 559 [1990]; see People v Umali, 10
NY3d 417, 425 [2008], cert denied 556 US 1110 [2009]).   Defendant
had recently been terrorized by McWillis and his friends, in
situations requiring police contact.    Moreover, the record before
us is bereft of any evidence that defendant ever held the mop
handle or otherwise knew it was made of plastic, as opposed to
wood or some other substantial material.   Nor does the evidence
reflect whether defendant was initially aware of whether the
metal bracket used to attach a mop head was on the end of the


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handle being held by McWillis or on the end being swung at
defendant.   This Court has previously recognized that,
"[d]epending on how it is used, even a normally innocuous item
may constitute 'deadly physical force'" (People v Dodt, 61 NY2d
408, 414 [1984]).
          Deadly physical force is defined as "physical force
which, under the circumstances in which it is used, is readily
capable of causing death or other serious physical injury," which
can include serious and protracted disfigurement (Penal Law §
10.00 [11], [10]).   Like a baseball bat swung at a person, which
can constitute deadly physical force (see People v Ozarowski, 38
NY2d 481, 491 n 3 [1976]), swinging a mop handle could easily
fall within that definition.   Consistent with the majority's
acknowledgment -- that whether use or threatened use of a mop
handle could reasonably be viewed as deadly physical force is
generally a factual question (see majority op at 6) -- the
circumstances here presented a factual question for the jury as
to whether defendant's use of deadly physical force was
reasonable (i.e., whether such use was justified).   That
question, however, is separate and distinct from the question of
whether defendant was the initial aggressor in the conflict (see
People v Petty, 7 NY3d 277, 285 [2006]), and, on this record, the
latter question should not have been submitted to a jury.
          If the jury were to find -- as the majority does --
that McWillis's use or threatened use of the mop handle did not


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constitute deadly physical force, defendant would not have been
justified in responding with deadly physical force.   In that
case, the basic justification charge would be sufficient to allow
the jury to conclude whether that defense was available to
defendant, and no reference to the initial aggressor exception
was necessary or appropriate.   If, on the other hand, the jury
were to find that the use or threatened use of the mop handle did
constitute deadly physical force, the sole remaining question
relevant to the applicability of the initial aggressor exception
would be who first used or threatened the imminent use of deadly
force.   In that case, the initial aggressor charge was still
inappropriate here because there was no reasonable view of the
evidence to support a finding that defendant was the initial
aggressor.
           The majority accurately describes the record facts
leading up to the final confrontation at issue.    In short, after
defendant and McWillis had a verbal argument, during which
McWillis grabbed the mop handle and defendant did not respond
with any type of weapon, McWillis put the mop handle down.   When
defendant began to walk away in the direction of his home,
McWillis again picked up the mop handle and approached defendant
from behind.   The evidence regarding what happened next came from
Edward Hogan, the only testifying eyewitness.   Hogan testified
that he was not sure about the timing of events.   However, he
testified several times that McWillis was swinging the mop handle


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at defendant at the same time that defendant was pulling out the
gun; i.e., that the two actions occurred simultaneously.    Under
the charge as given, if McWillis swung the mop handle at
defendant either before or at the same time that defendant pulled
out the gun, defendant could not be considered the initial
aggressor.
            In support of its position that the initial aggressor
charge was properly given, the People refer to two portions of
the record.    In one cited portion, the prosecutor asked Hogan,
"Now, at the time that you were being shot by the defendant and
your arm was up, was [McWillis] doing something with the mop or
had he already done something with the mop?"    Hogan responded, "I
really don't remember as far as if it was before or after, but
like I said, it was like -- it was, to me, as my memory, it was
basically simultaneously.    He was pulling out, [McWillis] was
swinging.    I guess, well, you could say he hit him after I got
shot; but when he hit him, the gun was already pulled out."
            Hogan's repeated insistence that the swinging of the
mop handle and defendant pulling out the gun occurred
simultaneously forecloses any reading of this testimony as
establishing that defendant shot before he was threatened.    The
People's view of this rambling answer, which view is accepted by
the majority, ignores any distinction between the initial
swinging of the mop handle and the actual hit, when the handle
made a connection with its intended target -- defendant.    Hogan


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also testified that the entire series of events -- consisting of
McWillis swinging the mop handle, defendant pulling out the gun,
Hogan getting shot, and McWillis getting shot and falling down --
happened very quickly, within a matter of a few seconds.   Hogan's
testimony is insufficient to establish that defendant pulled out
the gun before McWillis held the mop handle in a threatening
manner or started to swing it at defendant, as opposed to when it
actually struck defendant.   Thus, according to this portion of
Hogan's testimony, defendant would not have been the initial
aggressor, as long as he reasonably believed that McWillis was
first using or threatening the imminent use of deadly physical
force against him.
           In the other portion of the record cited by the People,
Hogan testified that McWillis swung the mop handle at defendant
at the same time that Hogan got shot.   From this testimony, an
inference could conceivably be drawn that defendant had the gun
out before McWillis began swinging.    However, in response to the
next substantive question, Hogan clarified that defendant was
pulling out the gun as McWillis was swinging the mop handle at
him.   This indicates either that the mop handle was in motion and
being swung at defendant (i.e., its imminent use against him was
at least threatened) before defendant pulled out the gun, or that
defendant and McWillis acted simultaneously.   Under either of
those scenarios, defendant would not be the initial aggressor.
           In sum, the jury could have found that defendant was


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the initial aggressor only if it relied on a misreading of a
snippet of Hogan's testimony and disregarded his repeated
assertion that defendant and McWillis acted simultaneously.
Because no reasonable view of the evidence would support a
finding that defendant was the initial aggressor, Supreme Court
should not have instructed the jury regarding that exception to
the justification defense.
                              II.
          I agree with the Appellate Division majority's
conclusion that the court's error in instructing the jury
regarding the initial aggressor exception was not harmless.    The
charge, as given, "likely confused the jury regarding the correct
rules to be applied in arriving at a decision" regarding that
defense (People v Walker, 26 NY3d 170, 174-175 [2015], citing
People v Andujas, 79 NY2d 113 [1992]), "'such that the degree of
precision required for a jury charge was not met'" (Walker, 26
NY3d at 177, quoting People v Medina, 18 NY3d 98, 104 [2011]).
This is so, in particular, because of the way the prosecutor
portrayed what actions would be sufficient to classify defendant
as an initial aggressor -- many of which arguably fell within the
court's initial aggressor instruction -- so that a jury following
that instruction could well have concluded that, even if
defendant pulled his gun out and shot McWillis after being
threatened with a deadly weapon, he was not entitled to the
defense of justification.


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          The prosecutor, in summation, argued that there were
nine different facts, each independently sufficient to establish
that defendant was the initial aggressor, thus depriving him of
the defense of justification.   Those facts included that: "the
defendant chose to arm himself with a loaded .22 handgun"; "he
hides the gun in the jacket"; "it's cold enough to snow, but he's
outside . . . [with his] jacket . . . unzipped"; he asked Hogan
"do you want to get shot"; defendant "is a grown man . . .
staring at an 18 year old."   None of these facts would, as a
matter of law, make defendant the initial aggressor, but each
could have been erroneously interpreted by the jury as the
initial "threat[] to attack."   As to these and several other
statements and actions of defendant, the prosecutor's argument
was incorrect and misleading,1 and reliance thereon could have


     1
       The People misconstrued this Court's decision in People v
Petty (7 NY3d 277, 285 [2006]). While not entirely clear, it is
possible that Supreme Court was also misled by one of our
statements therein. In that case, we stated that "[w]hen
justification is in issue, the trier of fact must first determine
whether the defendant was the initial aggressor" (id.). That
sentence does not mean that the initial aggressor instruction
must be given in every case where justification is asserted as a
defense. Rather, that instruction should be given only when
there is sufficient evidence to require it. Based on the
circumstances present in Petty, proof of prior threatening
statements by the defendant was allowed into evidence because it
bore on the likelihood that the defendant was in fact the initial
aggressor -- not that the statements themselves constituted acts
of aggression sufficient to deprive the defendant of the
justification defense, which is how the prosecutor used the prior
threats here. Contrary to the People's summation, however, prior
verbal threats, by themselves, do not make a person the initial
aggressor. Likewise, the fact that defendant armed himself with

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led the jury to find that defendant was the initial aggressor
despite a lack of record evidence for such a finding.
          More specifically, the potential for such a result was
exacerbated by the error introduced by the court's instruction,
which suggested that "notwithstanding" defendant's establishment
of a justification defense, the jury should convict him if he was
the initial aggressor.   This is exemplified by the following: if
the jury concluded that defendant was first threatened with the
mop handle and that the mop handle was a deadly weapon (and
defendant was, therefore, entitled to the defense of
justification), the jury may nevertheless have concluded that,
because defendant had previously asked Hogan if he wanted to get
shot, defendant was the "person who first . . . threaten[ed] to
attack" and, thus, could not assert the defense of justification.
The jury could reasonably come to this conclusion by literally
interpreting the instructions given, in combination with the
prosecutor's incorrect explication of what behavior would qualify
defendant as an initial aggressor.
          Additionally, the notes submitted to the court by the
jury during deliberations indicate that the jurors had a
difficult time deciding the case, lending further support to the
conclusion that there is a reasonable possibility that the
verdict would have been different had the charge not included the



a gun, standing alone, did not make him the initial aggressor.


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initial aggressor exception.     Because the error was not harmless,
defendant should be given a new trial.
*   *   *   *   *   *    *   *     *      *   *   *   *   *   *   *   *
Order reversed and case remitted to the Appellate Division, First
Department, for consideration of issues raised but not determined
on appeal to that court. Opinion by Judge Abdus-Salaam. Chief
Judge DiFiore and Judges Fahey and Garcia concur. Judge Stein
dissents and votes to affirm in an opinion in which Judges Rivera
and Wilson concur.

Decided March 30, 2017




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