On the facts of this case, defendant was not entitled to a justification charge. However, the court gave the charge and its erroneous instruction to the jury concerning the duty to retreat does not warrant reversal. There is no reasonable possibility that the jury would have accepted defendant's justification defense but for the erroneous charge ( see, People v. Cox, 203 A.D.2d 7, lv denied 83 N.Y.2d 1003). Defendant's own recitation of the facts showed that a threat of deadly physical force was not imminent and further indicates he was the initial and only aggressor.
Concur — Milonas, J. P., Rubin, Tom, Mazzarelli and Colabella, JJ.