People v. Comfort

Schnepp, J. (dissenting).

The conviction of Joseph Comfort of second degree murder should be reversed in the interest of justice, the sentence therein vacated and a new trial ordered. Justification was defendant’s sole defense at trial to the charge that he murdered Trooper Van Hall and a proper charge on that issue was crucial to his receiving a fair trial. In our view, the trial court’s charge erroneously emphasized an objective standard of review and deprived defendant of a fair trial.

The majority opinion on this issue fails to distinguish properly between the objective standard charged by the court and the subjective standard required by the statute or to appreciate the prejudice to the defendant’s case which results from an erroneous and confusing charge in a close case such as this one.

In our view, there is a meaningful and important distinction between the objective and subjective standards of reasonableness. Proper use of the subjective standard places on the People the burden of disproving defendant’s claim that his belief as to the imminence and gravity of danger was a rational response to the facts, regardless of whether the ordinary reasonable person would interpret events the same way. This standard has long been the basis for examining claims of self-defense (see, e.g., People v Miller, 39 NY2d 543; People v Governale, 193 NY 581, 588; People v Swinson, 111 AD2d 275; People v Santiago, 110 AD2d 569; People v Macon, 110 AD2d 718; People v Long, 104 AD2d 902; People v Wag-man, 99 AD2d 519; People v Green, 98 AD2d 908; People v Desmond, 93 AD2d 822). Consequently, there can be no question that the use of a subjective standard is required and that "[t]he court erred in enunciating an 'ordinary reasonable person’ standard for the evaluation of defendant’s actions, rather than having the jury consider what defendant himself thought” (People v Wagman, 99 AD2d 519, 520, supra).

The evidence concerning the initial shooting of Van Hall was sufficient to show Joseph Comfort’s intent to kill the trooper, but not strong enough to permit the conclusion that a properly instructed jury would have rejected his claim of self-defense. The testimony adduced at trial raised a substantial issue of self-defense "and the outcome might well have been different had the jury been properly instructed.” (People v Long, 104 AD2d 902, 903, supra.) Accordingly, reversal of the conviction for second degree murder is warranted in the interest of justice (see, People v Macon, 110 AD2d 718, supra; People v Long, supra; People v Wagman, 99 AD2d 519, supra; People v Jenkins, 93 AD2d 868; People v La Susa, 87 AD2d 578; People v Flores, 75 AD2d 649; People v Fuller, 74 AD2d 879).

O’Donnell, J., concurs with Boomer, J; Doerr, J. P., concurs on the constraint of People v Crosby (115 AD2d — [decided Dec. 20, 1985]); Pine and Schnepp, JJ., dissent and vote to reverse defendant Joseph Comfort’s conviction of murder, second degree, and grant a new trial in an opinion by Schnepp, J.