People v. Deis

—Judgment affirmed. Memorandum: County Court properly instructed the jury on the justifiable use of deadly physical force to defend oneself (see, Penal Law § 35.15) and did not err in refusing to instruct the jury on the justifiable use of deadly physical force to prevent or terminate a burglary (see, Penal Law § 35.20 [3]). “As its legislative history makes clear, section 35.20 (3) ‘was intended to protect those individuals who suddenly find themselves the victim of an intrusion upon their premises by one bent on a criminal end’ ” (People v Cox, 92 NY2d 1002, 1004-1005, quoting People v Godfrey, 80 NY2d 860, 862). No 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 physical force was necessary to prevent or terminate the commission of that burglary (see, People v Cox, supra, at 1004-1005; People v Godfrey, supra, at 862). The victim, a customer at a grocery store owned by defendant’s brother, was asked to leave the store after he created a disturbance. The conduct of the victim in reentering the store did not convert his status from that of a licensee (see, Penal Law § 140.00 [5]) to that of a trespasser who “remains unlawfully” on the premises within the meaning of the burglary statute (Penal Law § 140.20; see, People v Gaines, 74 NY2d 358, 362-363; People v Konikov, 160 AD2d 146, 152-153, lv denied 76 NY2d 941; People v Hutchinson, 124 Misc 2d 487, 490-493, affd 121 AD2d 849, lv denied 68 NY2d 770). Thus, on the facts of this case, the court properly refused to instruct the jury on the justifiable use of deadly physical force under Penal Law § 35.20 (3). All concur except Green and Kehoe, JJ., who dissent and vote to reverse in the following Memorandum.