Opinion
February 3, 1995
Appeal from the Monroe County Court, Marks, J.
Present — Green, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Judgment unanimously reversed on the law and indictment dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury. Memorandum: The trial court erred in refusing to instruct the jury on the justifiable use of deadly force to prevent or terminate a burglary (see, Penal Law § 35.20; People v. Williams, 121 A.D.2d 145). A reasonable view of the evidence would have permitted the jury to find that defendant reasonably believed that the victim was committing a burglary and that deadly force was necessary to prevent or terminate the commission of that burglary (see, People v. McManus, 67 N.Y.2d 541, 549). The court also erred in restricting the testimony of defendant concerning his prior experience as the victim of a near-fatal assault (see, People v Goetz, 68 N.Y.2d 96, 114-115, cert denied 489 U.S. 1053) and in precluding testimony about statements made by others to defendant regarding the victim's conduct on the day of the shooting (see, People v. Goetz, supra, at 114; People v. Loria, 190 A.D.2d 1006). Finally, it was error to permit an Assistant District Attorney to testify about defendant's reply to a bystander's remark at defendant's arraignment. The probative value of that testimony is outweighed by the dangers of unduly prejudicing defendant, confusing the main issue and misleading the jury (see, People v. Davis, 43 N.Y.2d 17, 27, cert denied 435 U.S. 998; People v. Martinez, 177 A.D.2d 600, 601, lv denied 79 N.Y.2d 829; People v. Singh, 142 A.D.2d 743, 744, lv denied 72 N.Y.2d 1050). Inasmuch as defendant was convicted of the lesser included offense of manslaughter in the second degree, the indictment is dismissed without prejudice to the People to re-present any appropriate charges to another Grand Jury (see, People v. Gonzalez, 61 N.Y.2d 633, 635; People v. Jackson, 167 A.D.2d 893, 894).
In light of our determination, we do not reach defendant's remaining contention.