¶1(dissenting). I am compelled to dissent because the fact remains that the evidence presented in this case raises an issue of fact as to whether the defendant was acting in self-defense. Review of the numerous surveillance videos plainly raises the issue, as it did for defense counsel, the trial judge, and the uninstructed jury. Rather than address the defendant’s contention on the merits, however, the People ask this Court to refrain from exercising its interest of justice jurisdiction, and thereby avoid consideration of the underlying issue. When the merits are reached, however, it cannot be disputed that the evidence presented in this case warranted a justification instruction as a matter of law.
¶2The People fail to adequately address the defendant’s separate contention that he was deprived of the effective assistance of counsel when his attorney refrained from exercising his own professional judgment as to matters of trial tactics and strategy throughout the course of the trial. The People ask this *27Court to propound a novel legal doctrine in order to decide this point in their favor, contending that the decision of whether to request a justification instruction is ultimately reserved to the defendant, who must now personally consent to any action by defense counsel or the court that may implicate this issue. There is no legal precedent for this position and, in fact, the case law indicates that matters of strategy and tactics are ultimately left to the professional judgment of counsel. In this case, the record demonstrates that defense counsel failed to exercise his own professional judgment due to his erroneous belief that he was prohibited from doing so. This failure worked to deprive the defendant of his right to counsel under the State and Federal Constitutions. Accordingly, the defendant is entitled to a new trial, and the judgment must be reversed.
¶3I. Background
¶4The defendant was charged with, inter alia, murder in the second degree and assault in the second degree. At his trial, on the People’s direct case, a witness (hereinafter the eyewitness) testified that she was present with the defendant — who was then 18 years old — on East 17th Street in Brooklyn at about 10:00 p.m. on September 22, 2008, when she witnessed more than five people “beating [the defendant] up.” The group of attackers laughed at the defendant, called him “a pussy and [was] trying to punk him.” During the course of the beating, the defendant’s eye bled and his assailants kicked him while he lay on the ground. At one point during the attack, the eyewitness heard the defendant say, “They got a knife, they are going to cut me.”
¶5The eyewitness testified that after the attackers relented, she walked the defendant to his residence on East 19th Street. However, the defendant’s attackers pursued them. The eyewitness testified that the other individuals “[were] beating [the defendant] up again and they pushed him in the trash.” The eyewitness testified that the defendant was able to reach his residence and he went upstairs with his friend. The defendant and his friend both came back downstairs and went back out into the street. Some time later, the eyewitness heard gunshots, but she did not see where the gunshots came from or who was shooting. Upon hearing the gunshots, the eyewitness ran from the scene.
¶6An individual named Gamard Talleyrand was also called by the People and testified that on September 22, 2008, he fought *28the defendant in the presence of a number of his friends. Talleyrand stated that “[t]here were numerous fights . . . that day” and explained that he was “kind of beating [the defendant] up.” The fight ended in front of the defendant’s residence when Talleyrand “just stopped.” Talleyrand did not observe where the defendant went after he stopped beating him up. Talleyrand testified that he was sitting in front of the defendant’s residence with his friends when he glanced around and saw the barrel of a gun. Talleyrand did not see who was holding the gun. He started running and was struck by a bullet in his calf.
¶7The People also presented recorded footage from several video surveillance cameras which showed the lobby of the building where the defendant resided, the doorway leading to the lobby, and the courtyard outside of the doorway. The eyewitness, who had known the defendant for about five years and had spent time with the defendant and his cousin, identified an individual in the video wearing a white T-shirt as the defendant. The defendant’s face was clearly visible on a number of the videos from a variety of angles. Talleyrand, who was compelled to testify involuntarily for the People pursuant to a material witness order, stated that, to him, the surveillance videos “just look[ed] like a movie,” and he denied that he was able to identify any of the numerous individuals depicted in the portions of the surveillance footage shown to him at trial.
¶8Review of the lobby video shows that the defendant entered the building and went upstairs with another male for about a minute. The defendant and the other male returned downstairs and left the building shortly thereafter. The courtyard video shows that the defendant walked out into the street until he was out of the view of that camera. The other male remained at the entrance to the courtyard. After a period of time elapsed, the defendant returned into the view of the courtyard camera, appearing agitated, and the other male gave him what appeared to be a handgun. The defendant again walked into the street and out of the view of the surveillance cameras. After another period of time elapsed, bystanders began to run.
¶9The defendant then returned into the view of the courtyard camera, walking backwards and holding a handgun at his side. An unidentified individual in a hooded sweat shirt (hereinafter the unidentified individual) appeared to gesture and shout at the defendant, and he backed the defendant into the courtyard of his building and out of the view of the courtyard camera. *29Jamel Wisdom, who was wearing a black sweat shirt and walking purposefully with his head down and hood up, immediately followed the defendant and the unidentified individual into the courtyard.
¶10Inside cameras depicted the defendant back up to the doorway of his building, where Wisdom confronted him. Wisdom moved forward and attacked the defendant. The defendant moved backwards into the doorway of the building. A struggle between the two men ensued, spilling back into the lobby of the building and across to the far wall. Wisdom slammed the defendant’s back against the far wall of the lobby and the two continued to grapple with each other around the lobby until Wisdom abruptly fell to the floor with the defendant on top of him. The entire struggle lasted for only a few moments. The unidentified individual ran over and pulled the defendant and Wisdom apart. The defendant ran from the lobby. The unidentified individual kneeled down, appeared to take something out of Wisdom’s pocket, and fled the scene. Wisdom later died.
¶11Medical evidence presented by the People demonstrated that the decedent sustained six gunshot wounds, including a graze wound, and entrance wounds on his right forearm, the back of his right arm, his left shoulder, and his left chest, and above his right ear. An autopsy revealed that the gunshot wounds were sustained at very close range. Expert testimony indicated that nine cartridge casings recovered from the street and the building lobby were all fired from the same semiautomatic handgun.
¶12At the end of the first day of the trial, defense counsel informed the court that he felt compelled to make a record to explain why he was not raising certain defenses that were available to the defendant by virtue of the People’s evidence:
“[DEFENSE COUNSEL]: Judge, I’ve been assigned pursuant to 18B to represent this defendant. Based on the evidence in this particular case I had suggested to the defendant as Your Honor realized before we even started the case of a disposition with far less time involved if he were to be convicted.
“I have at this point — I was advised by the defendant in court he did not wish to take any type of plea. Today after listening to some of the testimony I suggested to the Court that I may be able to use *30some of the evidence here particularly [the decedent] who went into the building for what purposes.
“I suggested that there is a defense called reduced murder which transfers a murder two into a manslaughter one because it happened in certain circumstances or mental capacity—
“THE COURT: Extreme emotional disturbance defense.
“[DEFENSE COUNSEL]: Extreme emotional distress. I’ve advised him I suggested I would do that but I would need the defendant’s permission to make such an argument before the Judge. Whether Your Honor would grant it or not based on the evidence is something that I did not discuss with him. I just said that if you say no then I will not even question anybody with respect to why [the decedent] went into the building and why other aspects of the case are. The defendant has told me and he said no way. I do not wish to have you indicate in any manner, shape or form as far as justification or diminished capacity on the murder two. Without his permission I’ve told him I cannot do it. The answer was no way.”
¶13The court thereafter engaged in the following colloquy with the defendant:
“THE COURT: All right, Mr. Clark, you understand what counsel is saying? ... I mean the most common defense obviously [is] you got the wrong guy, it wasn’t me. Other times in a homicide case based on the circumstances the defendant may raise the claim, well, I did it but I thought he was going to kill me so it was self defense. Or third in some cases that whatever the circumstances were, even though I did it[,] I did it under an extreme emotional disturbance and, therefore, the law says that if established [it] might reduce a murder charge to a manslaughter charge, do you understand what I’m saying?
“THE DEFENDANT: I understand. I comprehend, Judge.
“THE COURT: Have you had an adequate op*31portunity to discuss these various legal issues and tactical decisions with your attorney?
“THE DEFENDANT: Yes.
“THE COURT: And we’ve indicated now in open court that at least to the justification or self defense claim or the extreme emotional disturbance, . . . [h]ave you had a chance to discuss that?
“THE DEFENDANT: I did.
“THE COURT: And your attorney says that as a tactical decision which you’re entitled to make, that you don’t want to pursue those defenses in terms of justification and or extreme emotional disturbance, is that correct?
“THE DEFENDANT: That is correct.
“THE COURT: Anybody force you or threaten you in any way to make that decision?
“THE DEFENDANT: No.
“THE COURT: Anybody make any promises to you to get you to make that decision?
“THE DEFENDANT: No, sir.
“THE COURT: You doing so voluntarily in full recognition of the potential consequences?
“THE DEFENDANT: I am not making any decision . . . referring to you reducing it to any manslaughter or anything like that cause this is not me.
“THE COURT: Okay. All right.”
¶14Defense counsel stated that, without permission from his client, he would “not even question anybody with respect to why [the decedent] went into the building.” Consistent with this position, defense counsel tried the case on the theory that the defendant was not the individual depicted on the surveillance video recordings. He made no mention of justification or self-defense to the jury and made no attempt to cultivate the record with respect to that issue.
¶15At the charge conference after the parties had rested, defense counsel did not request that the jury receive instruction on the defense of justification and the court did not instruct the jury on that defense. In his summation, defense counsel argued *32that the defendant was not the individual depicted in the video recordings or the person who shot the deceased victim.
¶16On the second day of deliberations, the jurors sent a note which asked, among other things, “[W]ith respect to [the decedent] if he initiated the struggle [and the defendant] was acting defensively does that negate intent to kill [?] ”
¶17Defense counsel argued that the court should not instruct the jurors on the defense of justification. He stated, “[T]he [c]ourt is aware that I have been instructed to use only one defense . . . that the defendant is not the one in the tapes.” After a conference off the record, defense counsel objected “to any reference to self defense.” Defense counsel additionally objected to any response that would “advis[e] the jury that [the] issue [of justification] was not before them and they’re not to rule on it.” Defense counsel argued that the jury should only be instructed that they must determine whether the defendant had the intent to kill.
¶18The court proceeded to re-charge the jury with respect to intent. The court also addressed the jurors’ question regarding the law of self-defense:
“Now under the law there is a concept in the law called justification, self defense. It requires a number of factors to be present. You were not instructed on what’s commonly called the law of self defense. What you were instructed on is the issue of intent that is in order for the People to prove beyond a reasonable doubt that the defendant is guilty of [m]urder in the [s]econd [d]egree, what they have to prove is that the defendant here acted with the intent to cause the death of another when that person’s conscious objective or purpose is to cause the death of another. That is the — what you have to focus on; whether or not the defendant intended to cause the death of [the decedent] in that causing his death was his conscious objective or purpose.”
¶19Defense counsel objected to the court’s instruction.
¶20The jury found the defendant guilty of murder in the second degree and assault in the second degree. The defendant was subsequently sentenced to an indeterminate term of imprisonment of 20 years to life on the conviction on murder in the second degree and a consecutive determinate term of imprisonment of five years on the conviction of assault in the second degree.
¶22The defendant appeals, arguing, among other things, (a) that the verdict of guilt of murder in the second degree was based upon legally insufficient evidence and against the weight of the evidence, (b) that the trial court erred in failing to instruct the jury on the law of justification since the evidence presented in this case raises an issue of fact as to whether the defendant was acting in self-defense, and (c) that he was deprived of the effective assistance of counsel when his attorney failed to exercise his own professional judgment as to matters of trial tactics and strategy due to his erroneous belief that he was prohibited from doing so.
¶23A. Legal Sufficiency and Weight of the Evidence
¶24The defendant’s contention that the evidence was legally insufficient to support his conviction of murder in the second degree because the People failed to prove the element of intent to kill is unpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d 484, 491-492 [2008]; People v Brummel, 103 AD3d 805, 805 [2013]; People v Hollman, 98 AD3d 584, 585 [2012]; People v Arias, 64 AD3d 786, 787 [2009]). However, I agree that the merits of this contention should be reached in the interest of justice. Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), it was legally sufficient to establish the defendant’s guilt of that crime when considered in light of the trial court’s charge as given without exception (see People v Ford, 11 NY3d 875, 878 [2008]; People v Rogers, 94 AD3d 1152, 1152-1153 [2012]).
¶25Additionally, in fulfilling this Court’s responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]), the verdict of guilt with respect to the count of murder in the second degree was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]; People v Romero, 7 NY3d 633 [2006]). It must be stressed, however, that the weight of the evidence review performed by this Court on this appeal does not include an evaluation of the evidence as it pertains to the defense of justification. Even if this Court were to conclude, as a factual matter, that the evidence demonstrated that the defendant was legally justified in shooting the decedent, this Court would not have the authority to vacate the murder conviction on that ground since this Court is constrained to weigh the evidence in light of the crime as it was charged to the jury without objec*34tion by the defendant (see People v Johnson, 10 NY3d 875 [2008]; People v Danielson, 9 NY3d at 349; People v Cooper, 88 NY2d 1056, 1058 [1996]; People v Rogers, 94 AD3d at 1152-1153). In other words, this Court, like the jury in this case, is compelled to make its factual findings regarding guilt or innocence as though the defense of justification does not exist as the law of this state. Given this mandatory constraint, the jury’s verdict was not against the weight of the evidence.
¶26B. The Trial Court’s Instructions to the Jury
¶27The defendant next contends that the trial court erred in failing to instruct the jury on the law of justification since the evidence presented in this case raises an issue of fact as to whether the defendant was acting in self-defense. The defendant concedes that this issue is unpreserved for appellate review. The People argue that the issue should not be considered on the merits since the defendant’s attorney failed to preserve the issue. Tellingly, the People do not dispute the substantive merits of the defendant’s argument and do not dispute that a justification instruction was warranted by the evidence that they presented.
¶28i. Preservation
¶29A review of this Court’s case law indicates that this Court and the other Appellate Divisions have consistently reached this identical issue in the interest of justice (see e.g. People v Jenkins, 93 AD2d 868, 869 [1983] [reversing murder conviction as a matter of discretion in the interest of justice where the defendant failed to request a justification instruction]; People v Rivera, 74 AD2d 589, 589 [1980] [the trial court’s failure to charge justification was reversible error and “(e)ven if defendant may be deemed to have acquiesced in the trial court’s instructions . . . reversal is still mandated in the interest of justice”]; People v Benjamin, 47 AD2d 861, 861-862 [1975] [“(t)he failure of the trial court to instruct the jury on (justification) requires a reversal and a new trial” and “(t)he fact that no exception was taken to the charge as given and that no request to charge was made is of no moment . . . where a (homicide) conviction is founded upon an erroneous charge” (internal quotation marks omitted)]; see also People v Schwartz, 168 AD2d 251, 253 [1990] [where the court erred in failing to give justification charge that was warranted by the evidence, the Appellate Division, First Department, concluded that “(s)uch error, despite defense counsel’s failure to request the charge or to except to the charge provided, requires a reversal *35and a new trial”]; People v Rodwell, 100 AD2d 772, 773 [1984] [“(a)lthough no exception was taken to the court’s charge, justice requires a reversal and new trial” since “(t)he jury may well have found that justification was not disproven but convicted defendant anyway under the mistaken impression that it was permissible to do so”]; People v Butts, 14 AD2d 486, 487 [1961] [“(n)otwithstanding the failure of defense counsel to except to the charge, the inadequacy of the court’s charge with respect to self-defense substantially prejudiced defendant’s rights, and ‘error so fundamental, so substantial’ requires a new trial in the interests of justice” (quoting People v Creasy, 236 NY 205, 221 [1923])]).
¶30The only other two cases from this Department which speak to this issue both reach the substantive merits of the defendant’s unpreserved contention that the trial court should have instructed the jury on justification (see People v Acevedo, 84 AD3d 1390 [2011]; People v Moore, 66 AD3d 707 [2009]). Although, in those cases, this Court ultimately concluded that the defendant was not entitled to a justification instruction, this Court nevertheless exercised its interest of justice jurisdiction to address the substantive merits of the defendant’s arguments (see People v Acevedo, 84 AD3d 1390 [2011]; People v Moore, 66 AD3d 707 [2009]). In both cases there was no reasonable view of the evidence that would have supported a justification instruction, so the defendant’s failure to request one was, in a sense, academic (see People v Acevedo, 84 AD3d 1390 [2011]; People v Moore, 66 AD3d 707 [2009]). Unlike those cases, however, the evidence in this case raises a triable issue of fact as to whether the defendant was acting in self-defense.
¶31There is not a single case from this Department where this Court has refused to consider the merits of this type of argument on a direct appeal. Accordingly, I would reach this issue in the interest of justice, and determine whether, as a matter of law, the evidence presented in this case raises an issue of fact as to whether the defendant was acting in self-defense (see People v Acevedo, 84 AD3d 1390 [2011]; People v Moore, 66 AD3d 707 [2009]; People v Jenkins, 93 AD2d 868 [1983]; People v Rivera, 74 AD2d 589 [1980]; People v Benjamin, 47 AD2d 861 [1975]).
¶32ii. The Merits
¶33“The defense of justification . . . affirmatively permits the use of force under certain circumstances” (People v McManus, 67 NY2d 541, 545 [1986]; see Penal Law art 35). “The defense *36does not operate to excuse a criminal act, nor does it negate a particular element of a crime” (People v McManus, 67 NY2d at 546). “Rather, by recognizing the use of force to be privileged under certain circumstances, it renders such conduct entirely lawful” (id.).
¶34“In any prosecution for an offense, justification . . . is a defense” (Penal Law § 35.00). “When a ‘defense,’ other than an ‘affirmative defense,’ ... is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt” (Penal Law § 25.00 [1]).
¶35“Of course, justification, as an affirmative element, need not be disproved in every case” (People v Steele, 26 NY2d 526, 528 [1970]). As indicated, the statute only requires the People to disprove justification when the defense “is raised at . . . trial” (Penal Law § 25.00 [1]).
¶36Unlike certain other legislatively-defined defenses, a defendant is not statutorily required to provide the People with advance notice of a justification defense (cf. CPL art 250), or to specifically plead justification (cf. CPL 220.15). “Ordinarily, the possibility of the defense would not appear until injected by the defendant” (People v Steele, 26 NY2d at 528). However, the prosecution’s case, viewed separately, may itself raise an issue of fact as to whether the defendant was justified in using force such that his or her conduct was entirely lawful (see id. at 528-529; People v Zayas, 88 AD3d 918, 920 [2011]).
¶37So long as the evidence in the case is sufficient to support it, a court may be required to give an instruction on the defense of justification notwithstanding the fact that the defendant has taken an inconsistent position in his or her testimony before the jury (see People v Butts, 72 NY2d 746, 750 [1988]; People v Perry, 61 NY2d 849, 850-851 [1984]; People v Padgett, 60 NY2d 142, 145 [1983]; People v Watts, 57 NY2d 299, 301 [1982]). Similarly, a court may be required to give an instruction on the defense of justification even though defense counsel did not explicitly argue to the jury that the defendant was justified (see People v Khan, 68 NY2d 921, 922 [1986]).
¶38“To place a defense in issue, ‘all that is required is evidence of the defense, which if credited, is sufficient to raise a reasonable doubt’ ” (William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 25.00, quoting People v Butts, 72 NY2d at 749 n 1). “A trial court must charge the jury with respect to the defense of justification whenever, viewing the record in the light most favorable to the *37defendant, there is any reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified” (People v Fermin, 36 AD3d 934, 935 [2007]; see People v Petty, 7 NY3d 277, 284 [2006]; People v Butts, 72 NY2d at 750; People v Perry, 61 NY2d at 850-851; People v Padgett, 60 NY2d at 145; People v Watts, 57 NY2d at 301; see also Mathews v United States, 485 US 58, 63 [1988]).
¶39Here, viewing the record in the light most favorable to the defendant, there was a reasonable view of the evidence which would permit the jury to conclude that the defendant’s conduct was justified with respect to the count of murder in the second degree. The surveillance video recordings presented by the People on their direct case showed that after shooting at Talleyrand, the defendant retreated back to his residence and was pursued by other members of the group that had attacked him earlier. A reasonable juror could conclude, based on the testimony at trial, that the defendant thought that at least one of his attackers possessed a knife and intended to use it against him. The videos show that the defendant retreated until he was backed up by the two other men to the door of his residence, where he was attacked. The decedent appeared to reach for the defendant’s gun and slammed him against the back wall of the lobby. Viewing the evidence in the light most favorable to the defendant, a reasonable juror could conclude that the defendant’s action in defending himself against the decedent’s attack was justified (see generally People v Zayas, 88 AD3d 918, 920 [2011]).
¶40The majority states that the legal reality of self-defense differs from a layman’s understanding, an observation which itself demonstrates the necessity of a jury instruction on this subject. The argument advanced is that the defendant could not have been justified because he readily assumed the role of the initial aggressor of this single, continuing incident and that the defendant failed to satisfy a duty to retreat into his residence where he simply could have waited until the group outside dispersed.
¶41It is true that “an individual is not justified in using deadly force against another, even if he reasonably believes that person is about to use deadly physical force against him, if he knows that he can, with complete safety to himself and others, retreat” (People v Lopez, 200 AD2d 767, 768 [1994]; see Penal Law § 35.15 [2] [a]). However, the People’s “burden of proving beyond a reasonable doubt that the defendant knew he could *38have retreated in complete safety . . . relate [s] to that point in time when . . . the defendant actually exerted deadly physical force against the decedent” (People v Simmons, 206 AD2d 550, 553 [1994]). Accordingly, under New York law, “the justification defense remains available even if a prudent person in the defendant’s position might have retreated earlier, or avoided the area where the potential assailant was to be found” (Davis v Strack, 270 F3d 111, 127 [2d Cir 2001]; see People v Magliato, 68 NY2d 24, 30 [1986]; People v McManus, 67 NY2d at 549; People v Simmons, 206 AD2d at 552-553).
¶42Accepting the premise that the defendant assumed the role of the aggressor because he was obliged to stay off of public streets and confine himself indefinitely to his residence so as to avoid any confrontation with his attackers “would ultimately mean that victims of threats of violence must either give up their habitat or lose their right to self defense” (Davis v Strack, 270 F3d at 128 n 6). However, that is not the law of New York, and the defendant “was not obligated to withdraw from the place where he made his life, on pain of losing his right of self defense, merely because a tormentor . . . was also to be found on the same streets” (id.). “He was obligated to retreat (if that was safely possible) only when he faced imminent deadly force” (id.; see People v Magliato, 68 NY2d at 30; People v McManus, 67 NY2d at 549; People v Simmons, 206 AD2d at 552-553).
¶43It is a mischaracterization of the record to refer to these repeated beatings of the defendant by a group of five or more individuals as a fistfight. Furthermore, the analysis of the defendant’s options underscores a failure, in considering this issue, to view the evidence in the light most favorable to the defendant, rather than in the light most favorable to the prosecution (see People v Petty, 7 NY3d at 284; People v Butts, 72 NY2d at 750; People v Perry, 61 NY2d at 850-851; People v Padgett, 60 NY2d at 145; People v Watts, 57 NY2d at 301). Any fair view of the evidence in this case raises an issue of fact as to whether the defendant acted in lawful self-defense. Indeed, the People do not dispute that the surveillance video recordings raise a question of fact as to the defendant’s self-defense with respect to the count of murder in the second degree.
¶44Instead, the People argue that the trial court lacked the authority to instruct the jury on self-defense in the absence of explicit authorization from the defendant. This legal conclusion has no basis in either the relevant statutes or the case law.
¶45As a general matter, “[a]t the conclusion of the summations, the court must deliver a charge to the jury” (CPL 300.10 [1]). *39“In its charge, the court must state the fundamental legal principles applicable to criminal cases in general” (CPL 300.10 [2]). In addition, “[t]he court must also state the material legal principles applicable to the particular case, and, so far as practicable, explain the application of the law to the facts” (CPL 300.10 [2]). “Both before and after the court’s charge, the parties may submit requests to charge, either orally or in writing, and the court must rule promptly upon each request” (CPL 300.10 [5]).
¶46The duty to instruct the jury on the material legal issues in a case is statutorily distinct from the parties’ right to request certain instructions or language (see CPL 300.10 [2]). In other words, notwithstanding the fact that the parties are authorized to request specific charges, a court is independently required, as a general matter of law, to “state the material legal principles applicable to the particular case” (CPL 300.10 [2]).
¶47This independent duty stems from constitutional considerations, for, as the Court of Appeals has recognized, “the right to trial by jury ... so jealously guarded, lose[s] force without a . . . Judge to insure . . . that the jury is correctly instructed” (People v Charles F., 60 NY2d 474, 480 [1983]). Indeed, the right to a trial by jury, as conferred by the New York Constitution, requires not simply a collection of jurors, but a jury that has been “instruct [ed] ... on the law of the case” (People v Ahmed, 66 NY2d 307, 311 [1985]).
¶48The People’s contention that the trial court in this case lacked the authority to instruct the jury on the law of justification in the absence of the defendant’s consent is predicated on a recent line of Appellate Division cases which conclude, usually as an alternative holding, that the failure to give a justification charge, sua sponte, was not error since such an instruction could have interfered with an inconsistent defense strategy (see People v Perez, 123 AD3d 592 [2014]; People v Acevedo, 84 AD3d at 1390-1391; People v Kin Wong, 81 AD3d 421, 421-422 [2011]; People v Johnson, 75 AD3d 426, 426 [2010]; People v Moore, 66 AD3d at 709-710; People v Palladino, 47 AD3d 491, 492 [2008]; People v Rhodes, 281 AD2d 225, 226 [2001]; People v Vukel, 263 AD2d 416, 416-417 [1999], abrogated on other grounds by People v Wells, 24 NY3d 971 [2014]).
¶49These cases all either quote or otherwise rely upon a Court of Appeals case in which the Court concluded that the trial *40court erred in giving an instruction on entrapment where such an instruction was opposed by defense counsel (see People v DeGina, 72 NY2d 768 [1988]). In that case, defense counsel had not argued to the jury that the defendant had been induced by police to sell drugs, but rather, that the defendant had not sold any drugs at all (id. at 776). In concluding that it was error to instruct the jury on entrapment over the defendant’s objection, the Court cited two broad considerations.
¶50First, the Court of Appeals recognized that a defendant “unquestionably has the right to chart his own defense” and that “by informing the jury that defendant was claiming he had sold the drugs as a result of the officer’s inducement, the trial court placed defendant in the midst of contradictory defenses on the critical question of whether he had or had not sold any drugs” (id. at 776-777). The Court noted that it was inappropriate to force the defendant to adopt contradictory positions since to do so “not only risks confusing the jury as to the nature of the defense but also may well taint a defendant’s credibility in the eyes of the jury” (id. at 777).
¶51The second consideration cited by the Court of Appeals pertained to the fact that entrapment is an affirmative defense (see id. at 777). Accordingly, by instructing the jury on the law of entrapment, the trial court “imposed on defendant an affirmative burden of proof he had not undertaken by his defense theory” (id.). The Court went on to note that the defendant did not “make any affirmative effort to meet his burden of showing a lack of disposition to commit the charged crimes, as it was his claim that they had never happened at all,” and that “the jury was bound to conclude he had failed to sustain” the affirmative burden imposed by the trial court’s entrapment instruction (id.).
¶52In formulating the oft quoted statement that a defendant has the right to chart his own defense, the Court of Appeals cited exclusively to a decision from the Appellate Division, Fourth Department, which contains similar language and analysis in the context of the same affirmative defense — entrapment (see People v Martin, 66 AD2d 995, 995-996 [1978]). The only subsequent case from the Court of Appeals where this issue was addressed involved another affirmative defense— extreme emotional disturbance (see People v Bradley, 88 NY2d 901 [1996]).
¶53The People are unable to cite a single case which holds that a trial court is precluded, in the absence of the defendant’s *41consent, from instructing the jury on an ordinary defense that is otherwise supported by the evidence. This distinction is critical, since the imposition of an affirmative defense necessarily requires a defendant to address that issue through the submission of evidence to sustain the affirmative burden of proof imposed upon him or her. In the case of an ordinary defense, however, the People bear the additional burden of proof and it is unnecessary for the defendant to embrace that position in front of the jury (see People v Khan, 68 NY2d 921, 922 [1986]), or to otherwise address it at all (cf. People v DeGina, 72 NY2d at 777).
¶54Indeed, there are numerous appellate cases which have reversed convictions due to the trial court’s failure to instruct the jury, sua sponte, on the defense of justification (see e.g. People v Copeland, 216 AD2d 55, 57 [1995] [judgment reversed where trial court “err(ed) in failing to charge justification, sua sponte” (emphasis omitted)]; People v Schwartz, 168 AD2d at 253 [where court erred in failing to give justification charge warranted by the evidence, the Appellate Division, First Department, concluded that “(s)uch error, despite defense counsel’s failure to request the charge or to except to the charge provided, requires a reversal and a new trial”]; People v Rodwell, 100 AD2d at 773 [“(a)lthough no exception was taken to the court’s charge, justice requires a reversal and new trial” where “(t)he jury may well have found that justification was not disproven but convicted defendant anyway under the mistaken impression that it was permissible to do so”]; People v Jenkins, 93 AD2d at 869 [“it was error for the court not to charge justification . . . despite the testimony on the record that defendant specifically declined the charge of justification”]; People v Rivera, 74 AD2d at 589 [“(t)he trial court’s failure to charge justification,” sua sponte, required reversal in the interest of justice]; People v Benjamin, 47 AD2d at 861-862 [“(t)he failure of the trial court to instruct the jury on (justification) requires a reversal and a new trial,” and “(t)he fact that no exception was taken to the charge as given and that no request to charge was made is of no moment . . . where a (homicide) conviction is founded upon an erroneous charge” (internal quotation marks omitted)]).
¶55For instance, in People v Jenkins (93 AD2d 868 [1983]), this Court concluded that the trial court erred in failing to instruct the jury on the law of justification since the jury could have reasonably concluded that the victim was the aggressor and *42that he was killed by the defendant during a struggle. Notably, this Court stated that “it was error for the court not to charge justification. This is so despite the testimony on the record that defendant specifically declined the charge of justification” (id. at 869 [emphasis added]). This Court reversed the judgment of conviction as a matter of discretion in the interest of justice (see id.).
¶56This Court has previously spoken on this issue, and explicitly rejected the position that a court lacks the authority to instruct a jury on justification “over [the defendant’s] objection” (People v Giamanco, 188 AD2d 547, 547 [1992] [“(w)e reject the defendant’s contention that he was deprived of a fair trial by the court giving a charge on justification over his objection” (emphasis added)]; see People v Blouin, 223 AD2d 650, 650 [1996] [“(t)he defendant’s contention that the court improperly charged the law of intoxication, over his objection, is without merit” where there was sufficient evidence on the record for a reasonable person to entertain doubt as to the element of intent on that basis (emphasis added)]).
¶57The need in this case for a jury instruction on the law of justification was further amplified by the fact that the jury itself requested an instruction on self-defense, sending a note which asked, among other things, “[W]ith respect to [the decedent] if he initiated the struggle [and the defendant] was acting defensively does that negate intent to kill[?]” The jury’s request for instruction on the defense of justification could hardly have come as a surprise to either the court or the parties in light of the depiction of the incident on the surveillance video recordings which would naturally lead the average individual to the commonsense application of one of the most popular and widely-known defenses in the history of criminal jurisprudence (cf. People v Gonzalez, 22 NY3d 539 [2014]). The recorded footage from the surveillance cameras gave the jurors what amounted to a firsthand view of the final altercation and, together with the other evidence at trial, provided reason to conclude that the defendant was justified in firing the gun to defend himself after being attacked in the doorway of his building.
¶58The fundamental requirement that a jury be instructed on the law is safeguarded, in part, through statutory procedures afforded to the jury itself. The Criminal Procedure Law provides that “[a]t any time during its deliberation, the jury may request the court for further instruction or information *43with respect to the law” (CPL 310.30). “Upon such a request, the court must direct that the jury be returned to the courtroom and . . . must give such requested information or instruction as the court deems proper” (CPL 310.30).
¶59“The answering of such questions is no mere matter of conventional procedure” (People v Gonzalez, 293 NY 259, 263 [1944]). “It is an integral part of the structure of an adequate trial” (id. at 263). Although the Court of Appeals has recognized that “[t]he trial court ... is vested with some measure of discretion in framing its response” to a jury request, “that discretion is circumscribed ... by the requirement that the court respond meaningfully to the jury’s request for further instruction or information” (People v Malloy, 55 NY2d 296, 302 [1982]; see People v Almodovar, 62 NY2d 126, 131 [1984]; see also People v Miller, 6 NY2d 152, 156 [1959]; People v Gezzo, 307 NY 385, 396 [1954]; People v Lupo, 305 NY 448, 452 [1953]; People v Gonzalez, 293 NY at 263).
¶60Here, the trial court failed to respond meaningfully to the jury’s request for further instruction. The People nevertheless argue that the court did not err since a justification instruction could have distracted the jury from the defendant’s misidentification theory in that it would have required the jury to consider two inconsistent scenarios.
¶61However, when the jury sent a note requesting to be instructed on the law it should apply if the defendant was acting defensively, it should have been apparent that the jury was already considering these inconsistent scenarios. The jury did not need instruction or argument to be alerted to the issue of justification since that defense was raised by the evidence itself and would have been apparent to anyone who watched the surveillance video recordings. Under such circumstances, there was minimal risk that a supplemental instruction on justification would have had any effect on the jury’s consideration of the defendant’s misidentification theory.
¶62Indeed, this Court has previously addressed a nearly identical situation and has cited to a similar jury note as grounds for reversal. In People v Rivera (74 AD2d at 589), this Court concluded that “[t]he trial court’s failure to charge justification based upon defendant’s denial that he assaulted the officers was improper.” This Court stated that “[e]ven if defendant may be deemed to have acquiesced in the trial court’s instructions . . . reversal is still mandated” (id.). This Court reasoned that “[i]f the jury had been properly charged on self-defense, it *44might have decided on the evidence adduced that defendant’s actions were . . . completely justified” (id.). This Court continued, “[i]ndeed, the jury was clearly considering such possibilities, as indicated by its question to the court: Tf we are debating about self-defense, does that have to come into the picture of intent?’ ” (Id.) In light of these concerns, this Court reversed the judgment of conviction as a matter of discretion in the interest of justice (see People v Rivera, 74 AD2d 589 [1980]). Riverais not the only case to have reached such a conclusion based, in part, upon the existence of a jury note requesting instruction on the law of self-defense (see People v Copeland, 216 AD2d 55, 57 [1995] [reversing where the trial court failed to give a justification instruction, sua sponte, despite a note from the jury inquiring whether they could “base a not guilty verdict on ‘self-defense’ ”]).
¶63Furthermore, a supplemental justification instruction in this case would not have forced the defendant to adopt a defense that was inconsistent with his chosen defense theory or otherwise abridged his right to chart his own defense. The defendant was permitted to control the evidence that was presented to the jury on his behalf and to choose which of the available theories were advocated by his attorney to the jury. Under the circumstances of this case, it would have been unnecessary for the trial court to instruct the jury that the defendant was asserting a theory of self-defense, or that he was otherwise advocating inconsistent defenses. The jury simply could have been instructed that the evidence presented by the People had raised an issue of fact as to whether the individual depicted in the surveillance video recordings was acting in self-defense and that it was the People’s burden to disprove justification beyond a reasonable doubt (cf. People v Bradley, 88 NY2d 901 [1996]; People v DeGina, 72 NY2d 768 [1988]; People v Martin, 66 AD2d 995, 995-996 [1978]).
¶64Finally, the record does not support the conclusion that the defendant’s colloquy with the trial court demonstrated that he waived his right to have the jury instructed on the law of justification. As discussed more fully below, the court and defense counsel improperly conveyed to the defendant that he alone was responsible for deciding among the alternative defense theories available to him. Furthermore, the defendant was not informed that he could obtain a justification instruction without testifying and without having his attorney embrace that theory in front of the jury. In addition, review of the *45colloquy shows that defense counsel and the court lumped the defense of justification together with the affirmative defense of extreme emotional disturbance, failing to elicit an understanding of the important evidentiary differences between the two types of defenses. The defendant’s lack of understanding as to these basic issues is apparent on the face of the record in his final statement to the court, when he indicated that he did not want to pursue a justification defense because it would only “reduc[e] it to . . . manslaughter.” As already indicated, the defendant’s statements evince a fundamental misunderstanding of the law of justification, and any contention that the defendant knowingly and intelligently waived his right to an instruction on this issue is without merit (cf. People v Ahmed, 66 NY2d at 311).
¶65In sum, it is undisputed that the evidence in this case presented issues of fact as to whether the defendant was justified, and although the jury itself sought instruction on this issue, the trial court failed to meaningfully respond to the jury’s request. Under the circumstances presented here, there is a very real possibility that the jury in this case would have found that the defendant was justified in killing the decedent during the struggle that ensued after he was attacked in the lobby, but that the jury nevertheless convicted the defendant on the mistaken belief that it could not consider whether the defendant was justified (see People v Schwartz, 168 AD2d at 253; People v Rodwell, 100 AD2d at 772-773; People v Jenkins, 93 AD2d 868 [1983]; People v Rivera, 74 AD2d 589 [1980]).
¶66C. Ineffective Assistance of Counsel
¶67The trial court’s error in failing to instruct the jury on the law of justification does not provide grounds for reversing the defendant’s conviction of assault in the second degree since there was no reasonable view of the evidence that would have supported a justification instruction with respect to that charge. The defendant nevertheless maintains that his assault conviction should be overturned since he was deprived of the effective assistance of counsel. I conclude that the defendant was deprived of the effective assistance of counsel since his attorney failed to exercise his own professional judgment as to matters of trial tactics and strategy throughout the course of the trial.
¶68An “essential ingredient in our system of criminal jurisprudence, rooted deeply in our concept of a fair trial within the adversarial context” (People v Felder, 47 NY2d 287, 295-296*46[1979]), is the right to the assistance of counsel guaranteed under both the Federal and State Constitutions (see US Const Amend VI; NY Const, art I, § 6; People v Turner, 5 NY3d 476, 479 [2005]; People v Benevento, 91 NY2d 708, 711 [1998]). Under the federal standard for ineffective assistance of counsel, a defendant must show that his or her attorney’s performance fell below an objective standard of reasonableness, and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different” (Strickland v Washington, 466 US 668, 694 [1984]). Under the state standard, the constitutional requirements for the effective assistance of counsel “are met when the defense attorney provides meaningful representation” (People v Stultz, 2 NY3d 277, 279 [2004] [internal quotation marks omitted]; see People v Baldi, 54 NY2d 137 [1981]). The state standard has been called “somewhat more favorable to defendants” (People v Turner, 5 NY3d at 480), because its “prejudice component focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case” (People v Caban, 5 NY3d 143, 156 [2005] [internal quotation marks omitted]; see People v Ozuna, 7 NY3d 913, 915 [2006]; see also Rosario v Ercole, 601 F3d 118, 124-125 [2d Cir 2010]).
¶69Regardless of the relative strengths of each of the available defense theories, i.e., whether the misidentification defense was at least as strong as the justification defense, it is not our function in reviewing this issue on appeal to second-guess choices made by a defense attorney, or to retroactively weigh the relative merits of each of the legal theories made available by the evidence (see People v McGee, 20 NY3d 513, 520-521 [2013]).
¶70Indeed, “[i]n many cases, there may be strategic reasons for a lawyer’s choice” to pursue or discard any particular defense theory (People v Nesbitt, 20 NY3d 1080, 1081 [2013]). “For that reason, claims of ineffective assistance based on such choices must usually be adjudicated in posttrial motions, so that evidence may be presented to show why counsel acted as he did” (id. at 1082). But a case such as this, “where the lawyer explained his thinking in plain language on the record, is an exception: The record permits us to decide the claim on direct appeal” (id.).
¶71In this case, the record demonstrates that defense counsel did not exercise any professional judgment in deciding how to try this case. Defense counsel made it clear on the record that *47it was his belief that his client had the absolute final authority over what trial strategy to employ. Accordingly, defense counsel consistently emphasized that he was not exercising his own professional judgment, but rather, that of his 21-year-old client who, the record discloses, did not have an adequate grasp of the legal theories available to him. For instance, during the trial, defense counsel stated that, without permission from his client, he would “not even question anybody with respect to why [the decedent] went into the building,” where he attacked the defendant. When the jury requested to be instructed on the law of justification, defense counsel indicated that he was foreclosed from exercising his own professional judgment, stating “the [c]ourt is aware that I have been instructed to use only one defense.”
¶72The record reflects that in defense counsel’s view, he was bound to follow the strategy and tactics dictated by his 21-year-old client throughout the course of the trial: in his opening statement, cross-examinations, summation, jury charge, and response to the jury’s note. Defense counsel’s failure at every stage of the trial to exercise any professional judgment as to basic matters of trial tactics and strategy deprived the defendant of his right to the effective assistance of trial counsel under both the State and Federal Constitutions (see US Const Amend VI; NY Const, art I, § 6).
¶73The proposition that defense counsel in this case properly refused to exercise his own professional judgment since the defendant had the right to chart his own defense, and that counsel could not override the defendant’s wishes by advancing an inconsistent defense based on counsel’s view of the evidence, is a novel interpretation of the scope of a defense counsel’s duty.
¶74“[A] defendant, having accepted the assistance of counsel, retains authority only over certain fundamental decisions regarding the case such as whether to plead guilty, waive a jury trial, testify in his or her own behalf or take an appeal” (People v Colon, 90 NY2d 824, 825-826 [1997] [internal quotation marks omitted]; see People v White, 73 NY2d 468, 478 [1989]; see also Jones v Barnes, 463 US 745, 751 [1983]; accord ABA Standards for Criminal Justice, Defense Function, standard 4-5.2: Control and Direction of the Case [3d ed 1993]). “Said differently, ‘[b]y accepting counseled representation, a defendant assigns control of much of the case to the lawyer, who, by reason of training and experience, is entrusted with *48sifting out weak arguments, charting strategy and making day-to-day decisions over the course of the proceedings’ ” (People v Parker, 290 AD2d 650, 651 [2002], quoting People v Rodriguez, 95 NY2d 497, 501-502 [2000]).
¶75The United States Supreme Court has recognized that “[although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has — and must have — full authority to manage the conduct of the trial” (Taylor v Illinois, 484 US 400, 417-418 [1988] [footnote omitted]). “The presentation of a criminal defense can be a mystifying process even for well-informed laypersons” (Gonzalez v United States, 553 US 242, 249 [2008]), and “[t]he adversary process could not function effectively if every tactical decision required client approval” (Taylor v Illinois, 484 US at 418). “This is one of the reasons for the right to counsel” (Gonzalez v United States, 553 US at 249).
“Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial” (id.).
¶76“In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process” (id.).
¶77Here, contrary to the majority’s conclusion, the decision of whether to interpose a defense of justification ultimately laid with defense counsel, not the defendant. This decision required an evaluation of the case, analysis of the evidence, and learned consideration of each of the legal theories made available by the evidence (cf. People v Colville, 20 NY3d 20, 29 [2012]; People v Ferguson, 67 NY2d 383, 390 [1986]). Such considerations unquestionably implicate trial strategy and tactics, the hallmarks of matters ultimately left to the professional judgment of defense counsel (see People v Colville, 20 NY3d at 28-29).
¶78The People’s reliance on People v Petrovich (87 NY2d 961 [1996]) and People v DeGina (72 NY2d 768 [1988]) is misplaced. Those cases involved the affirmative defenses of entrapment and extreme emotional disturbance (hereinafter EED) (see People v Petrovich, 87 NY2d at 963; People v DeGina, 72 NY2d at 775). Unlike an entrapment or an EED defense, a justification defense is not an affirmative defense which requires the *49defendant to bear “a substantial burden in asserting [it]” (People v DeGina, 72 NY2d at 775; compare People v Petrovich, 87 NY2d at 963). Rather, the People are required to disprove justification beyond a reasonable doubt (see People v Steele, 26 NY2d at 528). In addition, unlike the defense of justification, “the EED defense can be given to the jury only upon a defendant’s request; the People may not seek and a court may not submit this defense to the jury over a defendant’s objection” (People v Colville, 20 NY3d at 32; compare CPL 300.10 [2]).
¶79Defense counsel was mistaken in his belief that he was forestalled from exercising his own professional judgment and compelled to let his client decide matters of tactics and strategy. This is not a case where, “after consulting with and weighing the accused’s views along with other relevant considerations,” defense counsel made the decision to reject a justification defense in favor of a misidentification defense (People v Colville, 20 NY3d at 32; compare People v Alvarez, 106 AD3d 568, 568-569 [2013]). Defense counsel deferred completely to the defendant’s wishes in this matter because he was under the mistaken impression that he was required to do so (see People v Nesbitt, 20 NY3d at 1081; People v Lee, 120 AD3d 1137, 1137-1138 [2014]). Viewing the process as a whole, the defendant did not receive meaningful representation and was deprived of “the expert judgment of counsel to which the Sixth Amendment entitles him” (People v Colville, 20 NY3d at 32).
¶80III. Conclusion
¶81In light of the foregoing, the defendant is entitled to a new trial. Accordingly, I vote to reverse the judgment.
¶82Ordered that the judgment is affirmed.