People v. Dingley

Larkin, J. (dissenting).

We respectfully dissent.

In spite of a strict New York rule as to the duty to retreat, a common-law exception has long existed when the defendant was charged with assault rather than homicide. In People v Lopez (238 App Div 619, 621), the trial court charged that the defendant, who had been indicted for assault in the second degree, was obligated "to avoid the attack if within his power *365to do so, and the right of attack for the purpose of self-defense does not exist until he has done everything in his power to avoid its necessity”. In reversing the conviction, the…