PEOPLE v. JONES (2004)

 Defendant appeals from a judgment convicting him following a jury trial of manslaughter in the first degree (Penal Law § 125.20 [1] ) and sentencing him as a second felony offender to a determinate term of incarceration of 20 years and five years of postrelease supervision.   We reject defendant's contention that the verdict is against the weight of the evidence (see People v. Pierre, 300 A.D.2d 1070, 752 N.Y.S.2d 491, lv. denied 99 N.Y.2d 631, 760 N.Y.S.2d 112, 790 N.E.2d 286;  People v. Gardner, 289 A.D.2d 1006, 735 N.Y.S.2d 307, lv. denied 97 N.Y.2d 704, 739 N.Y.S.2d 105, 765 N.E.2d 308;  People v. Mills, 287 A.D.2d 657, 658, 731 N.Y.S.2d 873, lv. denied 97 N.Y.2d 731, 740 N.Y.S.2d 704, 767 N.E.2d 161;  see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).   County Court did not err in declining to instruct the jury regarding the home exception to the duty to retreat.   In a case such as this, where the encounter unquestionably occurred in the home shared by defendant and the victim (see People v. Emmick, 136 A.D.2d 892, 894, 525 N.Y.S.2d 77) and in which defendant's justification defense raised no question with respect to who was the initial aggressor (see People v. Ward, 162 A.D.2d 566, 567, 556 N.Y.S.2d 753;  People v. Williams, 121 A.D.2d 145, 149, 509 N.Y.S.2d 674), it is preferable for the court to avoid any confusion on the part of the jury by not mentioning the duty to retreat at all, as opposed to mentioning a general duty to retreat and then qualifying that duty by delineating the applicable home exception (see Ward, 162 A.D.2d at 567, 556 N.Y.S.2d 753;  Emmick, 136 A.D.2d at 894, 525 N.Y.S.2d 77;  People v. Emick, 103 A.D.2d 643, 661, 481 N.Y.S.2d 552;  cf. People v. Berk, 88 N.Y.2d 257, 267, 644 N.Y.S.2d 658, 667 N.E.2d 308, cert. denied 519 U.S. 859, 117 S.Ct. 160, 136 L.Ed.2d 104).   In any event, the charge as given completely favored defendant insofar as the court never suggested that defendant had or might have had any duty to retreat, and there is no significant probability that the jury would have inferred and applied any such duty in the absence of an instruction concerning retreat.   Thus, any error in denying defendant's request to charge is harmless (see People v. Crimmins, 36 N.Y.2d 230, 241-242, 367 N.Y.S.2d 213, 326 N.E.2d 787).   The sentence is not unduly harsh or severe.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: