The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The People disproved defendant's justification defense beyond a reasonable doubt. Even if defendant subjectively believed that the complainant was about to use deadly physical force against him, based upon the prior incident in defendant's apartment, such belief was not objectively reasonable given that the complainant had left the apartment and was fleeing down the hallway when defendant left the safety of his apartment and lured the victim back, while concealing a gun behind his leg. Defendant clearly provoked the confrontation in the hallway and was not acting in self-defense when he shot at the complainant (see, People v. Walker, 168 A.D.2d 983, lv denied 77 N.Y.2d 83).
Defendant's request that the court instruct the jury on the defense of premises theory of justification pursuant to Penal Law § 35.20(3) was properly denied since 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 a burglary (see,People v. Cox, 92 N.Y.2d 1002). Viewing the evidence most favorably to defendant, it is clear that any burglary was over at the time defendant fired at the complainant.
Defendant could not have been prejudiced by any error in the court's definition of the term "dwelling" in its explanation to the jury of the duty to retreat. Essentially, this case involved the duty to refrain from staging a counteroffensive rather than the duty to retreat.
Defendant received meaningful representation (see, People v. Benevento, 91 N.Y.2d 708, 713-714). Defendant was not prejudiced by his trial counsel's failure to discuss the extreme emotional disturbance defense with defendant or to raise that defense at trial, since there was no evidentiary support for such a defense. Furthermore, the emotional disturbance defense would have undermined the justification defense and counsel made a reasonable tactical choice.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.