In People v. Delisme, 2022 NY Slip Op 05130 (N.Y. App. Div. 1st Dep't September 6, 2022), the defendant and the complainant lived in a housing complex where they each had a separate room that gave them access to a shared bathroom to which no one else had access. The complainant and the defendant got into a physical altercation in their shared bathroom. The trial court issued a jury instruction that whether the incident took place in the defendant’s dwelling, for the purposes of justifying self-defense, depended on the extent to which the defendant exercised exclusive possession and control over the area in question. The jury convicted the defendant of assault in the second degree. 

‍

The bathroom was part of the defendant’s dwelling

The New York Appellate Division, First Department, cited People v. Hernandez, 98 N.Y.2d 175 (N.Y. June 13, 2002), and explained that a determination of whether a particular location is part of a defendant's dwelling for the purposes of N.Y. Penal Law § 35.15 depends on the extent to which the defendant, and persons actually sharing living quarters with the defendant, exercises exclusive possession and control over the area in question.

The record contained no evidence that anyone other than the defendant and the complainant had access to the shared bathroom. Therefore, the Court found there was no factual determination for the jury to make as to whether the bathroom was in the defendant’s dwelling in considering the defendant’s justification defense. 

‍

No duty to retreat from the bathroom as a matter of law 

Accordingly, the Court found that the trial court should have granted the defense’s request for a jury instruction that the defendant had no duty to retreat from the bathroom that he shared with the complainant as a matter of law. 

‍

The erroneous jury instruction was not harmless

Since the verdict sheet solely asked the jury to decide if the defendant committed the crime of assault in the second degree, the Court could not ascertain the basis for the verdict. Thus, the Court found that it was plausible that the jury verdict was predicated upon a finding that the defendant had a duty to retreat based upon the trial court's erroneous instruction.

‍

Disposition

The Court reversed the defendant’s conviction and remanded the matter for a new trial.