AD4: jury must be charged defendant has no duty to retreat if less-than-deadly force used in self-defense

People v Phillips, 2006 NY Slip Op 07051 [available here]

A defendant only has a duty to retreat to safety before acting in self-defense if he intends to use deadly physical force. If the self-defender just plans on defending with less than deadly physical force, he may do so even if capable of fleeing. In Phillips, the defendant was charged with assault, and argued that whatever injuries he inflicted were done in self-defense. The trial court charged the jury that defendant had a duty to retreat, and the Fourth Department reversed. "It is clear that the jury must determine whether a defendant could have retreated with complete safety only when a defendant uses deadly physical force . . . we conclude that the court's charge left the jury with no choice but to reject the justification defense, inasmuch as the evidence established that defendant did not retreat although he could have done so with complete safety." (Phillips, 2006 NY Slip Op 07051.)