At 1:30 a.m. on March 28, 2010, a drunk 31 year-old elementary school teacher from Albany, NY, intruded into the wrong house on the street where he was staying, and was shot to death by the homeowner, after failing to heed warnings and instructions to leave.
The tragic incident was presented to the Erie County Grand Jury, and it declined to charge the homeowner, David D'Amico, with any crime.
New York Penal Law §35.20(3) authorizes a person to use deadly physical force against another person if he or she reasonably believes that such force is necessary to prevent or terminate a burglary of his or her home.
In its deliberations, the Grand Jury would examine whether a potential defendant had a reasonable belief that deadly force was necessary to prevent or terminate a burglary, and that inquiry would employ a "reasonableness standard" which has both objective and subjective elements (see People v Wesley, 76 NY2d 555, 559; People v Goetz, 68 NY2d 96, 112).
As the Court said in Wesley: "The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude".
Recently, the widow of David Park has brought suit for wrongful death against Mr. D'Amico. According to WGRZ.com, "Widow Sues Homeowner in Amherst Shooting", the lawsuit alleges that D'Amico was "malicious" and acted "without just cause". Was there a death caused by a "wrongful act, neglect, or default", sufficient to satisfy the requirements of the wrongful death statute?
The homeowner/defendant's reasonable beliefs and actions under the circumstances have already been examined by a Grand Jury.
It is unlikely that a civil jury will find differently.
***In response to the WGRZ.com story, there are in excess of 200 comments posted, the vast majority favoring the homeowner. Many pointed out Mr. Park's voluntary intoxication and mistake in entering the wrong house as the cause of his own demise.