Opinion
February 5, 1993
Appeal from the Monroe County Court, Maloy, J.
Present — Denman, P.J., Balio, Lawton, Fallon and Doerr, JJ.
Judgment unanimously reversed on the law and new trial granted on count two of the indictment; indictment otherwise dismissed without prejudice to the People to re-present any appropriate charge to another Grand Jury. Memorandum: Defendant contends that County Court erred in refusing his request to charge the defense of justification. Because the evidence failed to establish that defendant reasonably believed that the victim was about to use deadly physical force, the court properly refused to charge that defense (see, People v Reynoso, 73 N.Y.2d 816, 818; People v Watts, 57 N.Y.2d 299). Reversal is mandated, however, because County Court prohibited defendant from testifying to the victim's threats against him, which were related to him by third persons. That evidence did not constitute inadmissible double hearsay because it was not introduced for the truth of the matter, but rather to establish the states of mind of defendant and the victim (see, People v Miller, 39 N.Y.2d 543, 549; People v Henderson, 162 A.D.2d 1038; People v Font, 160 A.D.2d 299, lv denied 76 N.Y.2d 734). The court's improper ruling precluded competent evidence that might have supported defendant's claim that he reasonably believed that the victim was about to use deadly physical force against him, and prevented him from presenting adequate evidence to support a defense of justification (see, People v Henderson, supra; People v Dixon, 138 A.D.2d 929, 930).