Opinion
March 20, 1978
In a proceeding pursuant to article 7 of the Family Court Act, the appeal is from an order of the Family Court, Kings County, dated September 27, 1976, which, upon a determination made after a fact-finding hearing that appellant had committed acts which, if done by an adult, would have constituted a crime, adjudged him to be a juvenile delinquent and placed him in the custody of the Commissioner of Social Services for a period of 18 months. Order reversed, on the law and the facts, without costs or disbursements, and proceeding dismissed. There is no dispute that on June 3, 1976 Louis Goins, while holding an iron bar in his hands, began to chase the appellant, who attempted to retreat by running behind a parked car, where Goins might be unable to reach him. Goins continued his pursuit and came within five feet of appellant. At that point, appellant threw a baseball bat at Goins, which struck him in the head. Goins later died as the result of that injury. We are of the opinion that appellant was not obligated to retreat until Goins attempted to attack him with an iron bar (see Penal Law, § 35.15, subd 2, par [a]). Under the circumstances, the use of the iron bar constituted deadly physical force (see Penal Law, § 10.00, subd 11). Appellant did then attempt to retreat and did not throw the bat at Goins until Goins continued to chase and almost reached him. In our view, the People did not disprove the defense of justification beyond a reasonable doubt (see Penal Law, § 25.00, 35.00 Penal). Suozzi, Gulotta and Cohalan, JJ., concur; Titone, J.P., and Hawkins, J., dissent and vote to affirm the order under review.