People v. Torre

Memorandum. The order of the Appellate Division is reversed and a new trial ordered. The primary question at trial was whether the defendant was justified in striking the victim (Penal Law, § 35.15). During trial, defendant explained that he was drawn to the scene of the altercation when he heard his brother calling out, and upon arrival, he saw his brother lying on the ground with the victim, James Kelly, standing over him and kicking him. He further testified that he climbed over a fence which separated him from the scene of the incident, and approached Kelly who turned abruptly and swung…