PEOPLE v. HERNANDEZ (2001)

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), rendered November 3, 1997, convicting defendant, after a jury trial, of manslaughter in the first degree and criminal use of a firearm in the first degree, and sentencing him to concurrent terms of 12 1/212 to 25 years, unanimously modified, as a matter of discretion in the interest of justice, to reduce the sentence imposed to concurrent terms of 10 to 20 years, and otherwise affirmed.

 In charging the jury on the defense of justification, the court properly included the principle of duty to retreat and properly declined to include the exception to that duty applicable to a person “in his dwelling” (Penal Law § 35.15[2][a][i]).   The shooting occurred outside defendant's apartment in an area that was completely accessible to the public as a practical matter.   This area did not constitute a part of defendant's “dwelling” for purposes of a justification charge (People v. Duren, 234 A.D.2d 560, 652 N.Y.S.2d 297, lv. denied 89 N.Y.2d 1034, 659 N.Y.S.2d 865, 681 N.E.2d 1312;  People v. Mickens, 219 A.D.2d 543, 544, 631 N.Y.S.2d 687, lv. denied 87 N.Y.2d 904, 641 N.Y.S.2d 234, 663 N.E.2d 1264;  compare, People v. McCurdy, 86 A.D.2d 493, 450 N.Y.S.2d 507;  People v. Torres, 162 A.D.2d 385, 556 N.Y.S.2d 920, lv. denied 76 N.Y.2d 897, 561 N.Y.S.2d 559, 562 N.E.2d 884).

 Defendant's claim that the court should have instructed the jury on a defense of premises theory of justification pursuant to Penal Law § 35.20(3) is unpreserved and we decline to review it in the interest of justice.   Were we to review this claim, we would find that there was no reasonable view of the evidence to support defendant's claim that he reasonably believed that deadly physical force was necessary to prevent or terminate an attempted burglary by the decedent (People v. Cox, 92 N.Y.2d 1002, 684 N.Y.S.2d 473, 707 N.E.2d 428).

We find the sentence imposed to be excessive to the extent indicated.