Opinion
November 20, 1995
Appeal from the Supreme Court, Kings County (Gerges, J.).
Ordered that the order is reversed, on the law, and the indictment is reinstated.
A prosecutor need not instruct a Grand Jury as to every conceivable defense suggested by the evidence, but rather must charge the Grand Jury only as to any "complete" defense that is supported by the evidence and that could potentially obviate a needless or unfounded prosecution (People v Lancaster, 69 N.Y.2d 20, 26-28, cert denied 480 U.S. 922; People v Valles, 62 N.Y.2d 36). Justification is such a complete defense.
However, a person is "justified" in using "deadly physical force" (Penal Law § 10.00) against another only when "[h]e reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he knows that he can with complete safety as to himself and others avoid the necessity of so doing by retreating" (Penal Law § 35.15; see, People v Hall, 220 A.D.2d 615).
The evidence before the Grand Jury establishes that when the defendant shot Earl Smalls, Smalls was not armed, and the defendant had no reason to believe that Smalls either had a weapon or was about to use deadly physical force against him (People v Reynoso, 73 N.Y.2d 816; People v Guido, 198 A.D.2d 433; People v Porter, 161 A.D.2d 811; People v Harris, 134 A.D.2d 369; People v Figueroa, 111 A.D.2d 765).
In addition, at the time the defendant fired the gun, his friend Dudley McCormick was at his side and Smalls' uncle was actively trying to disengage the two combatants, who were some six to seven feet apart from each other on a public street. Under these circumstances, it is clear that the defendant could have retreated in safety from whatever threat Smalls may have posed to him (see, e.g., People v Vasquez, 161 A.D.2d 678, 679; People v Porter, supra; People v Harris, supra; People v Pabon, 106 A.D.2d 587, 588; People v Alston, 104 A.D.2d 653).
Since neither of the two prerequisites justifying the use of deadly physical force set out in Penal Law § 35.15 (2) was met in this case, no justification charge was warranted, and the indictment voted by the Grand Jury was improperly dismissed. Sullivan, J.P., Altman, Hart and Friedmann, JJ., concur.