Whether a defendant who asserts a justification defense under Penal Law § 35.15(2) is entitled to a "no duty to retreat" jury instruction where the purported self-defense killing occurred in the lobby and stairwell of the apartment building where the defendant resided.

No. Because the stairwell and lobby in which the altercation took place were not under Defendant's exclusive possession and could not be characterized as Defendant's living quarters, the purported self-defense killing did not occur in Defendant's "dwelling"; therefore, Defendant was not entitled to a "no duty to retreat" jury instruction.

Defendant shot James Carter inside an apartment building where Defendant resided. Defendant's testimony, which conflicted in relevant part with the testimony of the People's witnesses, was that Carter, a guest of a tenant, had attacked the Defendant in the building's lobby. Defendant asserted that a struggle followed in a common stairwell, and that the gun that Defendant was holding fired, killing Carter. Given Defendant's testimony, the trial court gave the jury a Penal Law § 35.15 justification defense instruction, but it 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 contended that he was entitled to the "no duty to retreat" instruction because the definition of "dwelling," as defined elsewhere in the Penal Law, encompasses lobbies and stairwells and that, therefore, under § 35.15 he was not required to retreat. The jury convicted Defendant of manslaughter in the first degree and criminal possession of a weapon in the first degree. The Appellate Division affirmed the conviction.

The Court of Appeals affirmed. The Court observed that under Penal Law § 35.15, deadly physical force used in self-defense is not justified if the person exercising force knows that he or she can avoid the use of force by retreating with complete safety. However, as the Court pointed out, there is no duty to retreat if the person is "in his [or her] dwelling and [is] not the initial aggressor." The Court noted that "dwelling" is not defined within § 35.15 and that in instances where a word is not defined in a penal law provision under review, the Court has previously disapproved the practice of importing definitions from other provisions where "the spirit and intent of the various other statutes relied upon, as well as their language, differed materially." See People v. Powell, 54 N.Y.2d 524 (1981).

The Court stated that, in its view, "dwelling," as used in Penal Law § 35.15(2)(a)(i) refers to a person's residence and that the determination of whether a particular location is a part of a defendant's dwelling depends on the extent to which defendant exercises exclusive possession and control over the area in question. Here, the Court found that there was no legislative history underlying the adoption of section 35.15(2)(a)(i) which would suggest that the meaning of "dwelling," as defined elsewhere in the Penal Law, should be incorporated into § 35.15. In addition, the Court noted that the meaning of "dwelling" could not be determined merely by incorporating the definition from an another section of the Penal Law because the spirit and intent of the section that Defendant relied upon differed materially from the spirit and intent of § 35.15. Finally, relying on its own definition of "dwelling," the Court concluded that because the stairwell and lobby in which the altercation took place were not under Defendant's exclusive possession and could not be characterized as Defendant's living quarters, the purported self-defense killing did not occur in Defendant's "dwelling." Accordingly, the Court held that Defendant was not entitled to a "no duty to retreat" jury instruction.