The People &c.,
Respondent,
v.
Jose Hernandez,
Appellant.
2002 NY Int. 75
Defendant was convicted of manslaughter and criminal
use of a firearm after he shot and killed James Carter inside the
Bronx apartment building where defendant resided. At trial,
defendant pursued a Penal Law § 35.15(2) justification defense,
asserting that the victim, a guest of another tenant, had
attacked him in the lobby and a struggle ensued on a common
stairwell which culminated in the shooting. On appeal, defendant
contends Supreme Court erred when it refused to instruct the jury
Defendant was charged with two counts of murder in the second degree (intentional and depraved indifference), and single counts of manslaughter in the first degree, criminal use of a firearm in the first degree and criminal possession of a weapon in the second degree, all arising out of the shooting of James Carter. Defendant not only resided in a first-floor apartment in the building but also was employed as the on-site building superintendent.
The People's primary witnesses at trial were three
other tenants: Milagros and Sari Santiago, two sisters who lived
together in a second-floor apartment, and Mary S., another
resident. Sari's boyfriend, James Carter, was a frequent visitor
to the building. The morning of the shooting, Milagros Santiago
and James Carter went to defendant's apartment and requested that
repairs be undertaken in the Santiagos' apartment. Mary S.
testified that she was present in the lobby and heard defendant
respond by swearing and referring to Carter, who was African-
American, in racially derogatory terms. Defendant and his
brother (a building handyman) then accompanied Milagros and Mary
S. upstairs to survey the damage while Carter stepped outside the
building. After defendant loudly berated her for bringing Carter
to his apartment to lodge a complaint, Milagros departed to find
Defendant, his brother and Mary S. soon left the Santiago apartment and began walking downstairs, meeting Carter and Milagros on the landing midway between the first and second floors. Carter asked defendant whether he had a problem and defendant responded "no problem." Mary S. testified that defendant told his brother he had to get something and would be back, and then he descended the remaining stairs and entered his apartment. Moments later, she heard a door open and defendant's wife say: "No, don't do it. Don't do it." Defendant responded: "Let me go. Let me go. I'm going to kill this black ****." Defendant proceeded up the stairs carrying a sawed-off shotgun. Carter tried to run up the stairs but defendant's brother blocked his path. Defendant then shot Carter in the chest and Carter collapsed on the landing.
Three police officers who heard the gunshot ran into the lobby where they discovered defendant standing near the bottom of the stairs. After they repeatedly directed defendant to drop his weapon, the officers disarmed him. A firearms expert who later examined the shotgun testified that it was in proper working order and could not have fired unless someone had cocked it and pulled the trigger. The People also offered forensic evidence that, based on the nature of the wound, Carter was seven or eight feet away from the gun when he was fatally shot.
Defendant's trial testimony relating the events of that
Defendant and the building manager, who testified on his behalf, claimed the building was plagued by illegal drug activity. They contended that the front door of the building was missing and that the lock on the security gate had to be replaced on a daily basis because drug dealers would break the lock and use vacant apartments for their transactions. Although defendant testified that he had never seen Carter sell drugs, he believed that Carter was involved in drug activities in the building.
When the banging stopped, defendant retrieved a sawed-
off shotgun from his closet. He asserted that he had found the
gun in the basement months before but did not know it was loaded
and did not know how to fire it. Carrying the shotgun, he
stepped into the lobby and walked toward the stairwell when
Carter jumped him from behind. In the course of this
altercation, Carter grabbed the stock of the gun and pulled him
In light of defendant's testimony that Carter attacked him in the lobby, Supreme Court gave the jury a Penal Law § 35.15 justification defense instruction. However, the court rejected defendant's request for an instruction that defendant had no duty to retreat from Carter's aggression because he was in his dwelling when the altercation occurred. Defendant was convicted of manslaughter in the first degree and criminal possession of a weapon in the first degree and sentenced to 12 ½ to 25 years for each offense, to be served concurrently. On appeal, the Appellate Division affirmed the conviction but modified the sentence to concurrent terms of 10 to 20 years. We now affirm.
The sole issue on appeal is whether Supreme Court erred
in denying defendant's request for a "no duty to retreat"
instruction under Penal Law § 35.15(2)(a)(i). Penal Law § 35.15 was enacted in 1965 when the Penal Law was reorganized
and substantially revised (see L 1965, ch 1030). The provision
reflects the principle, first established under the common law
and long recognized by statute, that deadly physical force may be
justified -- with no criminal liability -- if the deadly force
The statute contains
only one exception: there is no duty to retreat if a person is
"in his [or her] dwelling and not the initial aggressor" (Penal Law § 35.15[2][a][i]).
Pivotal to defendant's argument is his contention that
the lobby and stairwell areas were part of his dwelling.
Although this Court has addressed the Penal Law § 35.15
justification defense many times (see e.g. People v Russell, , 91 NY2d 280 [1998]; Matter of Y.K., , 87 NY2d 430 [1996]; People v
Goetz, , 68 NY2d 96 [1986]; People v Berk, , 88 NY2d 257, cert denied
519 US 859 [1996]), we have never interpreted the meaning of the
term "dwelling" in section 35.15(2)(a)(i). Section 35.15 does
not contain a definition, although the term is defined and used
elsewhere in the Penal Law. Most notably, Penal Law § 35.20,
In instances where a word is not defined in a penal law
provision under review, we have cautioned against reliance upon a
definition of that term found in another penal law statute absent
legislative authority for doing so (see People v McNamara, , 78 NY2d 626 [1991] [declining to rely on definition of "public
place" contained in Penal Law article 240 to inform the use of
that term in Penal Law article 245]; see generally People v
In Powell (54 2 at 529), we disapproved the practice
of importing definitions from other penal law provisions because
"[t]he spirit and intent of the various other statutes relied
upon, as well as their language, differ[ed] materially *** from
that of the gun control law" under review in that case. That
rationale applies here. Penal Law § 35.15(2) involves the grave
circumstance when a person is justified in using deadly physical
force without first exhausting all known avenues of retreat or
escape. Penal Law article 140.00 addresses a different concern -
- when a person may be charged with burglary and related
offenses. The interests underlying article 140.00 are implicated
when a defendant pursues a section 35.20 defense predicated on
evidence that the person subjected to force was committing a
criminal trespass or burglary at the time of the incident. But
those interests are not implicated when a defendant raises a
Because section 35.15 was part of an omnibus package of legislation, there is no specific legislative history underlying the adoption of section 35.15(2)(a)(i). The legislation was drafted by the Temporary Commission on Revision of the Penal Law and Criminal Code. According to Richard Denzer and Peter McQuillan, the Commission's Executive Director and Counsel, section 35.15(2)(a) was a reaffirmation of traditional self- defense principles and a rejection of a 1940 decision of this Court that suggested a person attacked on a public street had no duty to retreat (see Denzer and McQuillan, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 35.15 [1967 ed], at 64; cf. People v Ligouri, 284 NY 309 [1940]).
Denzer and McQuillan cite People v Tomlins (213 NY 240
[1914]) as representative of the application of the traditional
rule which section 35.15(2)(a)(i) was intended to codify. There,
this Court reversed a conviction because the trial court
erroneously charged the jury that a man who killed his son in the
Tomlins discussed People v Sullivan (7 NY 396 [1852]), a case involving the use of deadly physical force by one boardinghouse resident against a fellow resident on the common stairwell inside the boardinghouse. Sullivan held that defendant had a duty to retreat to his room to avoid the altercation, thereby implicitly holding that the common stairwell was not part of defendant's home or dwelling for purposes of the "no duty to retreat" rule. The Tomlins Court distinguished Sullivan but did not disturb the holding. Neither decision, however, precisely defines what constitutes a person's dwelling."It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home *** Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home" (Tomlins, 213 NY at 243).
In our view the word "dwelling," as used in Penal Law § 35.15(2)(a)(i), refers to a person's residence, and any
definition of the term must therefore account for a myriad of
living arrangements, from rural farm properties to large
apartment buildings. For purposes of section 35.15, the
determination of whether a particular location is part of a
defendant's dwelling depends on the extent to which defendant
Considering the evidence in this case in the light most favorable to defendant and crediting, as we must, his testimony that he was attacked in the lobby, we conclude defendant was not entitled to a "no duty to retreat" jury instruction. The lobby and stairwell areas were used multiple times each day by tenants of the six-story apartment building and their guests. These areas were not under defendant's exclusive possession and could not fairly be characterized as defendant's living quarters. Accordingly, the lobby and common stairwell were not part of defendant's dwelling and Supreme Court did not err in declining to give a section 35.15(2)(a)(i) charge.
In so holding, we have not followed the reasoning of
the Appellate Division, which focused on the degree of security
in the lobby and found that, because the lock on the building's
front gate was broken on the day of the incident, the area was
accessible to the general public and defendant therefore had a
duty to retreat. Whether a person is entitled to the benefit of
the "no duty to retreat" rule should not turn on how well
protected the area in question is at the time of the attack.
Accordingly, the order of the Appellate Division should be affirmed.