Because I believe that Supreme Court erred in refusing to give a choice-of-evils justification instruction to the jury (Penal Law § 35.05 [2]), as requested by defendant, I respectfully dissent and would affirm the order of the Appellate Division.
It is well-settled that “a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor” (Mathews v United States, 485 US 58, 63 [1988]). In determining whether the evidence is sufficient, “[a] court must view the evidence adduced at trial in the light most favorable to the defendant” (People v Zona, 14 NY3d 488, 493 [2010]; see also People v Butts, 72 NY2d 746, 750 [1988]). A court’s failure to instruct a jury on an entitled defense, when requested, “constitutes reversible error” (Zona, 14 NY3d at 493, citing People v Watts, 57 NY2d 299, 301 [1982]).
Here, the evidence adduced at trial warranted a justification instruction. As the Appellate Division majority correctly concluded, “the jury could have inferred that defendant took the otherwise reckless risk of driving the truck while in an intoxicated condition in order to prevent the vehicle from *348causing imminent injury to others, there being no time to take any other action” (People v Rodriguez, 72 AD3d 238, 244 [1st Dept 2010]). The majority’s assertion that the jury must have concluded that “defendant caused the truck’s movement” (majority op at 345-346) to find him guilty of the second-degree manslaughter and assault charges has no bearing on whether defendant was entitled to his request to charge prior to the court’s submission of the case to the jury. Had the jurors been properly charged on justification, we do not know what they would have concluded (People v Tucker, 55 NY2d 1, 7 [1981] [it is not the function of this Court to “speculat(e) on how the jury (would have) perceived and weighed the evidence”]).
In sum, because a reasonable view of the evidence supports the theory that defendant unlawfully entered and operated the vehicle while intoxicated in an attempt to avoid injury— confronting a situation not of his own making—the refusal of Supreme Court to give a justification charge relative to all the counts in the indictment was error.
Judges Graffeo, Read, Smith and Jones concur with Judge Pigott; Chief Judge Lippman dissents in part and votes to modify in a separate opinion; Judge Ciparick dissents and votes to affirm in another opinion.
Order reversed, etc.