This Court's March 28, 2024 Decision and Order which dismissed the indictment is incorporated herein by reference with the same force and effect as though fully set forth. On April 25, 2024, the People (A.D.A Daniel Johnson, Esq.) moved for reargument, pursuant to CPLR §2221(2)(d). The People request that the Court reverses its initial decision, arguing that the Court misapprehended the law. The People now argue that no view of the evidence before the Grand Jury required consideration of the Penal Law §35.20(3) justification instruction, and the People further argue that their Penal Law §35.15(2) was adequate and not misleading. The People further request that if the Court adheres to its initial decision, that the People be granted leave to submit this matter to a new Grand Jury. Counsel for Defendant, Madeline E. Weiss, Esq., filed opposition to the People's motion on May 14, 2024.

The Court finds the People's request for leave to reargue pursuant to CPLR §2221(2)(d) to be entirely appropriate and comporting with fundamental fairness. The Court's March 28, 2024 Decision was based upon the Court's review of the undisclosed Grand Jury legal Instructions, and neither counsel had an opportunity to brief the issues of concern addressed by the Court's initial decision. Consequently, the People's motion for leave to reargue is GRANTED.

The Court has now carefully reviewed and considered the People's legal arguments presented in their April 25, 2024 filing, as well as Defendant's arguments presented in his counsel's May 14, 2024 filing. Having considered the vigorous, thoughtful, and interesting legal arguments raised by both counsel, the Court has now re-examined and reconsidered its initial March 28, 2024 Decision and Order.

While this Court will not be reversing its initial decision dismissing the indictment, the People and counsel for Defendant have provided the Court with additional and insightful legal arguments, which the Court has harmonized into its modified analysis, as set forth herein below.

The soundness of this Court's initial conclusion that the People's failure to instruct the Grand Jury on the Penal Law §35.20 justification defense impaired the integrity of the [*2]proceedings, has been reinforced after consideration of the People's and Defendant's reargument submissions. Additionally, counsels' reargument submissions have provided the Court with some nuanced insight with respect to proper Penal Law §35.15 justification instructions under the particular circumstance of this case, which, should the People choose to submit, may reduce the likelihood that the integrity of subsequent proceedings will be impaired as a result of misleading or confusing legal instructions.

Defense counsel is correct that the People impermissibly "engage in shifting the burden of proof to the defendant" (Weiss at 3) when the People assert that "there was no evidence whatsoever before the grand jury that the victim was not licensed or privileged to ether his mother's apartment" (Johnson at 4). As this Court, in its initial decision explained, the evidence presented at the Grand Jury must be viewed in the "light most favorable to the Defendant" when assessing whether a complete defense of justification should be provided. People v. Samuels, 12 AD3d 695, 698 (2nd Dept. 2004). Defense counsel accurately summarized the relevant evidence before the Grand Jury, noting:

a. Defendant Bruce Mead and Zacharias Moore are brothers, and D.M. is their mother.

b. The incident in question occurred at the Chestnut Hill Apartments, a multi-unit apartment complex where D.M. was residing at the time.

c. D.M. lived in an apartment on the third floor of the apartment building.

d. Moore lived in an apartment on the second floor of the same apartment building as his mother.

e. At the time of the incident, Bruce was staying with his mother in the third-floor apartment.

f. On the morning of December 19, 2022, D.M. drove Moore to CARS for his methadone dosing and then returned with Moore to the apartment complex.

g. When D.M. and Moore arrived at approximately 11:23 a.m., Moore was, according to D.M.: "very angry . . . very, very upset. In fact, I'd never seen him that upset before . . . he was very upset in the car, and he was yelling about — about [Bruce] . . . Zach was angry in the car, then he got out of the car and came around to my door, and I was trying to get out of my door, and he held it shut, and then he was so angry, he was spitting on the window of my car." Grand Jury Minutes [hereinafter "GJ"] p. 42, Grand Jury Exhibit 81.

h. Moore's rage continued even after his mother instructed him to "ignore" Bruce, and Moore told D.M. that "he was going to go in and have a fight with [Bruce]." GJ p. 43.

i. Moore can be seen walking to and from D.M.'s car, returning to her window, pounding at least twice on the roof, and appearing to yell at or to his mother. Grand Jury Exhibit 81.

j. Moore then entered the apartment building at approximately 11:24 a.m., and "went upstairs to my [D.M.'s] apartment with a fire extinguisher" that he tore from its mount next to the front door of the building. GJ p. 43, Grand Jury Exhibit 81.

k. J.S., a witness who was in bathroom of the third-floor apartment Bruce "shared with his mother," heard a "thumping, and stuff moving around, real loud," causing him to exit the bathroom to "see what was going on." GJ pp. 51-52.

l. Upon emerging from the bathroom, J.S. observed that "Zach was on top of Bruce hitting him, and Bruce was trying to squirm and fight his way out . . . Bruce was holding a knife and Zach had a fire extinguisher . . . while [Moore] had [Bruce] pinned down, he [*3]— I can't count how many times he actually hit him with it, but he was swinging it. He was swinging the fire extinguisher . . . Bruce already had the knife, he was, you know, trying to get his way out of Zach pinning him down and hitting him." GJ pp. 53, 61.

m. J.S. intervened, pulling Moore away from Bruce and attempting to keep them separated.

n. After J.S. pulled Moore off of Bruce, Bruce "got up," but Moore "wasn't standing down at that point." GJ pp. 53-54, 60.

o. Moore "kept trying to corner Bruce, and Bruce kept trying to defend himself." GJ pp. 53-54.

p. Moore continued to strike Bruce "[i]n the face, on the — on the arms, anywhere he could" with "[h]is hands and the fire extinguisher," which was releasing fire extinguisher materials. GJ pp. 54-55.

q. J.S. pulled away from the fray once he "started to inhale some of the fumes from the extinguisher," turned his back and began gathering his belongings. GJ pp. 54, 56.

r. As J.S. was getting ready to leave, he observed Moore walk out of the apartment and Bruce "pacing back and forth . . . holding his head." GJ p. 56.

s. D.M. entered the building a few minutes after Moore, went up the stairs to the second floor, "opened Zach's door to his apartment and yelled for him." GJ p. 44.

t. Receiving no answer, D.M. "started going up the stairs to my apartment, and I heard Zach at the top of the stairs moaning." Id.

u. At approximately the same time, M.J. "Monk," who was "staying with Zach Moore at the time . . . in the second-floor apartment" came out of Moore's apartment after hearing a "commotion" to find Moore "sitting on the steps with blood coming out of his chest." GJ pp. 64-65.

v. After seeing D.M. come down the stairs, Monk went back to Moore's apartment to get his cell phone and call paramedics. GJ pp. 66-67.

w. Numerous individuals were coming up and down the stairs, and approximately two minutes after Moore exited the apartment, Bruce is seen descending the stairs past Moore. GJ Exhibit 81.

x. The time that elapsed from when Moore entered the apartment building to the time he exited his mother's apartment mortally wounded totaled only two minutes. GJ Exhibit 81.

Additionally, as this Court previously noted, the pathologist who performed Moore's autopsy testified that Moore had six stab wounds to his chest area and three to the back. One of the stab wounds, the wound to Moore's right atrium, was the fatal stab wound which resulted in severe blood loss and eventual cardiac arrest. The pathologist also testified that the toxicology analysis of Moore's blood revealed the presence of Alprazolam, Clonazepam, Methadone, Ritalin, Gabapentin, Fentanyl, and Benzoylecgonine, a breakdown product of cocaine. (GJ pp. 20-29). Law enforcement documented that Defendant also suffered injuries during the fight. Defendant was documented to have a "goose egg" contusion on his head, scratches on both sides of his neck, an abrasion in front of his left ear, and two abdomen wounds. (GJ pp. 142-145). Law enforcement recovered both the fire extinguisher (GJ Exhibit #24) and the steak knife (GJ Exhibit #26) from inside Mead's apartment.

Upon considering this evidence in the light most favorable to the Defendant, a Penal Law §35.20(3) justification instruction was mandated, and failure to provide such impaired the integrity of the Grand Jury proceedings, resulting in actual prejudice to the Defendant. When viewing the evidence in the light most favorable to the Defendant, there is certainly a reasonable view of the evidence presented to the Grand Jury that the decedent, Zacharias Moore, unlawfully entered Defendant Mead's apartment with the intent to assault Defendant with a fire extinguisher and that the Defendant actually and reasonably believed his use of a steak knife in order to repel Moore was necessary to prevent or terminate Moore's burglary of Defendant's dwelling. Notably, there is zero evidence before this Grand Jury that Moore was either given permission or possessed license to enter Defendant's dwelling, particularly at the time and manner of Moore's entry while he was wielding a fire extinguisher after expressing his intention to assault Defendant. To the contrary, especially when viewed in the light most favorable to the Defendant, the circumstances of Moore's entry into Defendant's dwelling suggests that the entry was unlawful. The lack of license or privilege may be established by circumstantial evidence. People v. Tennant, 285 AD2d 817 (3rd Dept. 2001). See also, People v. Singer, 121 AD3d 455 (1st Dept. 2014) (lack of permission to enter a dwelling can be established by the "totality of the circumstances" which may include entering individual's "estrangement" and the "egregious circumstances of the entry.")

Defense counsel is further correct that the People's reliance upon People v. Bell, 131 AD2d 859 (2nd Dept. 1987), for the proposition that "children are presumed to have license to enter the dwelling of their parents" (Johnson at 4) is nowhere to be found within the Bell decision and is, as defense counsel notes, sheer "inventive[ness]" by the People (Weiss at 4). Indeed, this Court's close reading of the Bell case reveals that there is nothing in the decision to indicate that an adult child is presumed to have an ongoing license to enter a parent's home. In fact, the Second Department, in finding that the Bell defendant's claim that she possessed a license to enter her mother's apartment at any time was "without merit," noted that at the time of the entry, the defendant daughter had a "strained relationship with her mother" and further that the "time" and forced "manner" of the entry was incompatible with a license. Id. at 861. Just as here, on December 19, 2022, Moore's relationship with his mother was clearly strained as she attempted to talk him down from fighting Defendant, and Moore responded by holding D.M.'s car door shut and spitting on the window. Clearly, Moore's extreme anger, and the timing and manner in which Moore, against his mother's wishes, while clutching a fire extinguisher, rushed into Defendant's dwelling, when viewed in the light most favorable to the Defendant, certainly presents a scenario where a Grand Jury could find that Moore's entry into Defendant's dwelling was unlawful. The People concede that there was no evidence that Moore had permission to enter Defendant's dwelling on December 19, 2022, as the People accurately noted, "the fact of Mr. Moore's license to enter [Defendant's dwelling] did not come up during the grand jury presentation." (Johnson at 13).

Significantly, it must be recalled and the People must be reminded that Defendant bears no burden to establish whether Moore's entry into Defendant's dwelling was in fact unlawful. The People bear the burden of proving that the Defendant was not justified in his use of deadly force to terminate a burglary or attempted burglary of Defendant's dwelling. It is necessary to examine the §35.20(3) CJI charge, in relevant part, which provides:

Under our law, a person in possession or control of [or licensed or privileged to be in] a dwelling [or an occupied building], who reasonably believes that another individual is [*4]committing or attempting to commit a burglary of such dwelling [or occupied building], may use deadly physical force upon that individual when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary.

A person commits BURGLARY when that person knowingly enters or remains unlawfully in a dwelling [or occupied building] with the intent to commit a crime therein.4 DEADLY PHYSICAL FORCE means physical force which, under the circumstances in which it is used, is readily capable of causing death or other serious physical injury.5 A defendant REASONABLY BELIEVES deadly physical force to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission of a burglary by another individual when the following two circumstances exist:

First, the defendant actually believes that another individual is committing or attempting to commit a burglary, and also actually believes that his or her use of deadly physical force is necessary to prevent or terminate the commission or attempted commission of that burglary. It does not matter whether those beliefs are mistaken, provided the defendant actually holds them. (emphases added)

Second, a "reasonable person" in the defendant's position, knowing what the defendant knows and being in the same circumstances, would also hold those same beliefs. CJI2d Penal Law §35.20(3).

The test is not whether Moore actually attempted or committed a burglary, rather the test is, in the light most favorable to the Defendant, does there exist a reasonable view of the evidence that Defendant reasonably believed Moore did not have permission to enter Defendant's dwelling (whether Defendant was mistaken or not) and that Defendant reasonably believed deadly physical force was necessary to terminate Moore's attack or attempted attack. See, People v. Wesley, 76 NY2d 555, 557 (1990), the justification defense "requires an assessment of reasonableness which must be determined from the point of view of the particular defendant under the standard of a reasonable person in defendant's circumstances at the time of the incident." (emphasis added)

This Grand Jury, had it been provided with the §35.20(3) justification defense, could have reasonably concluded that the People failed to disprove, at least from Defendant's point of view, even if such view was mistaken, that Defendant reasonably believed that Moore's sudden enraged entry into Defendant's dwelling was without permission and required deadly force to terminate the threatened and/or actual assault with the fire extinguisher.

It bears repeating that when, in the light most favorable to a defendant, there exists a reasonable view of the evidence that a defendant was justified in using deadly physical force both to resist the imminent use of deadly physical force and to prevent or terminate the burglary of a defendant's dwelling, a Grand Jury must be instructed on both theories of justification. The failure to do so is prejudicial to a defendant because, unlike the defense against deadly physical force, a defendant may use deadly physical force to prevent or terminate the commission, or attempted commission, of a burglary even though no deadly physical force was threatened or used and even though the defendant could have retreated or was the initial aggressor. In People v. Rosario, 173 Misc 2d 641, 643 (Bronx County Court, 1997), in dismissing an attempted murder and assault indictment where the prosecutor had charged Penal Law §35.15(2), but had [*5]failed to charge §35.20(3), the trial court noted that the "distinction between the two [defenses] may be critical, since the defendant may legally use deadly physical force to terminate a burglary attempt even though the victim has threatened or used only physical force, and not deadly physical force, to enter the premises or to commit the crime therein." The People's failure to instruct the Grand Jury on the §35.20(3) defense that could have eliminated a needless or unfounded prosecution renders the proceeding defective, mandating dismissal of the indictment. CPL 210.35[5]; See, People v. Valles, 62 NY2d 36 (1984). See also, People v. Calbud, Inc., 49 NY2d 389 (1980).

Although the failure to charge the Grand Jury with the §35.20(3) justification defense, alone, was prejudicial error which requires dismissal of indictment, since the §35.15(2) justification defense must also be charged, some comments concerning the appropriate §35.15(2) instruction under the particular circumstances of this case are warranted now that the Court has gained some further insight, based upon both the People's and Defendant's submissions. This Court, in its initial March 28th decision, previously held:

Dismissal is also required upon the separate ground that the prosecutor's legal instructions with respect to the Penal Law §35.15(2) justification defense were "so misleading or incomplete as to substantially undermine the integrity of the proceedings." People v. Caracciola, 78 NY2d 1021, 1022 (1991).

This Court still finds that the §35.15(2) as provided were "misleading and incomplete," requiring dismissal of the indictment, but based upon slightly modified rationale. It appears conceded that the "combat by agreement" portion of the §35.15(2) instruction should not be read to a new Grand Jury considering this matter. In its initial March 28th Decision, this Court wrestled with the issue of "initial aggressor" under the unique circumstances of this case and noted:

In order for the "initial aggressor" instruction to be charged to the Grand Jurors, there must exist "a reasonable view of the evidence that [Defendant] was the initial aggressor." People v. Valentin, 29 NY3d 57, 61 (2017). There is simply no reasonable view of the evidence presented under which Defendant could have been the initial aggressor during this encounter. The fact that the Grand Jurors were nonetheless instructed to consider whether the Defendant was the initial aggressor was consequently incorrect, inaccurate, and misleading.

Upon reargument, the People argue that the "gap in proof" between the time Moore was observed ascending the stairs to Defendant's dwelling which clutching the fire extinguisher and "only moments later —the witness J.S. emerging from the bathroom" witnessed Moore on top of Bruce, hitting him with the fire extinguisher, provided an issue of fact by which the Grand Jury "could have reasonably determined that either brother was the initial aggressor." (Johnson at 9). Arguably, although under the evidence presented, certainly not a compelling argument, but when viewed under the light most favorable to the People, this "gap in proof" could possibly lead a Grand Jury to conclude that Defendant, not Moore, was the initial aggressor, i.e., "the first person who uses, or threatens the imminent use of deadly physical force." CJI2d Penal Law §35.15(2). This Court, depending upon all of the trial evidence, may be compelled to instruct a petit jury that Moore was the "initial aggressor" as a matter of law if there is "no reasonable view of the evidence" to the contrary. People v. Jimenez, 39 NY3d 74,77 (2022). However, the [*6]People have convinced the Court, at this Grand Jury procedural posture, that the "gap in proof," when examined under the light most favorable to the People, could lead a Grand Jury to conclude, no matter how unlikely under the evidence presented, that it was the Defendant who was the first to use or threaten to us deadly physical force, necessitating the "initial aggressor" definition as part of a §35.15(2) instruction. Further the Court agrees that the People never implied to the Grand Jury that the Defendant had a duty to retreat while in his own dwelling, and consequently, there is no need to instruct a subsequent Grand Jury concerning a duty that the Defendant did not have.

Nonetheless, the People's initial §35.15(2) was still flawed, confusing and misleading warranting to such an extent that it would still require dismissal of the indictment, and we come back to that "initial aggressor" concept the Court has been struggling with under the unique circumstances of this matter. Not only do the People rely upon the "gap in proof," but they also argue that Moore's possession, threatened use and/or actual use of a fire extinguisher to assault Defendant, might somehow not constitute "deadly physical force" because "defendant suffered only a lump on the head and some scratches." (Johnson at 10). However, the People entirely miss the mark. The operative fact is whether Moore was "the first person who [] threaten[ed] the imminent use of, deadly physical force."^[FN1] CJI2d Penal Law §35.15(2). (emphasis added) It is irrelevant whether Defendant was actually injured at all. The People, relying upon People v. Valentin, 29 NY3d 57 (2017), argue that the Grand Jury here could have determined that Moore's threatened use or actual use of the metal fire extinguisher was akin to the Valentin "plastic mop handle" and as such it did not constitute "deadly physical force." Consequently, the People argue that the Grand Jury could have found that Defendant was the initial aggressor of deadly physical force for using a knife, whereas Moore's threatened use or even actual use of a metal fire extinguisher to attack Defendant was somehow only non-deadly or merely just physical force. Defense counsel has zeroed in on the fatal defect concerning the §35.15(2) instruction that was actually provided to the Grand Jury in this case. Defense counsel astutely observed, "the People's response is notably silent as to whether they instructed, in conjunction with their initial aggressor charge, the Grand Jury as to what constitutes a "dangerous instrument." (Weiss at 9). Defense counsel's surmise is correct. The People failed to provide the Grand Jury with the Penal Law definition of a "dangerous instrument," and such failure was prejudicial error. The Penal Law defines a "dangerous instrument" as "any instrument, article or substance * * * which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." Penal Law §10.00(13). The Court of Appeals has explained:

[A]ny "instrument, article or substance", no matter how innocuous it may appear to be when used for its legitimate purpose, becomes a dangerous instrument when it is used in a manner which renders it readily capable of causing serious physical injury. *** The object itself need not be inherently dangerous. It is the temporary use rather than the inherent vice of the object which brings it within the purview of the statute. People v. [*7]Carter, 53 NY2d 113, 116 (1981)

Innocuous and seemingly inoffensive items such as rubber boots [People v. Ingram, 95 AD3d 1376 (3rd Dept. 2012)], a plastic cast [People v. Davis, 96 AD2d 680 (3rd Dept. 1983)], and even a "wad of paper towels" [People v. Vasquez, 88 NY2d 561 (1996)] have all been found to be "dangerous instruments" under this use-oriented approach. Whether an item is a dangerous instrument depends on the way that it is used, and the "item's capacity to cause serious physical injury [or death] must be proven, not inferred." People v. Matthews, 159 AD3d 1111, 1115 (3rd Dept. 2018). Although, whether an item is a "dangerous instrument" must be established by proof, it has been observed that a trial court may be required to instruct a jury that a particular object is a dangerous instrument "where the uncontradicted nature and use of an instrument renders it capable of causing serious physical injury or death as a matter of law." People v. Almodovar, 62 NY2d 126 (1984). In Almodovar, the Court of Appeals found that the trial court did not err in refusing to charge the jury that a screwdriver was a "dangerous instrument" as a matter of law where there existed unresolved factual issues. This Court cannot find any precedent whereby a prosecutor was required to instruct a Grand Jury that a particular item was a "dangerous instrument" as a matter of law, and consequently this Court declines to require the People to so instruct with respect to the fire extinguisher at issue.

Since the Grand Jury in this matter was tasked with determining whether Moore or the Defendant was the initial aggressor of deadly physical force, it was incumbent upon the People to provide the definition of "dangerous instrument." While it is true that a Grand Jury "need not be instructed with the same degree of precision that is required when a petit jury is instructed on the law," and in most cases the prosecutor's obligations will be met by "reading to the Grand Jury from the appropriate sections of the Penal Law," there are situations when the "instructions to the Grand Jury are so misleading that the indictment could not be permitted to stand even though it is supported by legally sufficient evidence." People v. Calbud, Inc., 49 NY2d 389, 394-395 (1980). Without the definition of "dangerous instrument" the Grand Jury was provided with no guidance in determining whether Moore's threatened and actual use of a fire extinguisher was "under the circumstances in which it is used, attempted to be used or threatened to be used, [ ] readily capable of causing death or other serious physical injury" [Penal Law §10.00(13)], consequently establishing Moore as the initial aggressor of deadly force. The unique and exceptional circumstances of this case required the People to provide the definition of "dangerous instrument" to the Grand Jury in order to provide the necessary context required to assess whether Moore or the Defendant was the initial aggressor.

Interestingly, the Court's initial determination that the failure to charge §35.20(3) burglary termination justification mandated dismissal has now been strengthened as a result of the Court's modified analysis concerning the proper charge with respect to §35.15(2) deadly force termination justification. It bears repeating that unlike the defense against deadly physical force, a defendant may use deadly physical force to prevent or terminate the commission, or attempted commission, of a burglary even though no deadly physical force was threatened or used and the §35.20(3) is not prohibited even though a defendant may have been the initial [*8]aggressor.^[FN2]

The prosecutor's complete failure to charge the Penal Law §35.20(3) justification defense and the inaccurate charge concerning §35.15(2) was "so misleading or incomplete as to substantially undermine the integrity of the proceedings." People v. Caracciola, 78 NY2d 1021, 1022 (1991). This Court must dismiss the indictment in its entirety upon the ground that the Grand Jury proceeding was defective, and the proceeding was so irregular "that the integrity thereof [was] impaired and prejudice to the defendant [likely] result[ed]." CPL §210.35(5); CPL §210.20(1)(c).

The actual prejudice to the Defendant is all the more apparent considering the fact that only the bare minimum of 12 grand jurors voted in favor of the Murder in the Second Degree count (15 votes in favor of the Manslaughter in the Second Degree count). This Court, in its previous decision, cited Collier and Newcombe (citations omitted, March 28, 2024 D&O at 16) merely in order to illustrate that appellate authority supports a trial court's disclosure of the Grand Jury vote count under appropriate circumstances.

Consequently, the Court hereby adheres to and AFFIRMS its March 28, 2024 Order DISMISSING the indictment without prejudice, subject to the modified rationale, as hereinabove articulated.

The People's request, pursuant to CPL §210.20(4), for leave to submit this matter to a new Grand Jury is GRANTED.

Further, it is hereby ORDERED, that Defendant is remanded without bail and said securing order shall remain in effect for no more than 45 days from the date of entry of this order, unless extended, upon application of the People, for "good cause." CPL §210.45(9)(d).

This constitutes the Decision and Order of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of notice of entry of this decision and order.