Judgment reversed on the law and new trial granted. Memorandum: The court was required to instruct the jury on the defense of justification for the use of deadly physical force to prevent or terminate the commission of a burglary if there was any reasonable view of the evidence by which the jury could find that defendant reasonably believed that the victim was committing or attempting to commit a burglary and that defendant reasonably believed that the use of deadly physical force was necessary to terminate the commission or attempted commission of the burglary (see, People v Argibay, 45 NY2d 45, 53, rearg denied 45 NY2d 839; People v Roche, 45 NY2d 78, 86, cert denied 439 US 958; People v Behlin, 150 AD2d 591, Iv denied 74 NY2d 805; People v Williams, 121 AD2d 145, 148-149; Penal Law § 35.20 [3]).
Here, there was such a reasonable view of the evidence. Defendant testified that the victim and defendant went to defendant’s house where the victim threatened to "kick his ass”. Twice defendant told the victim to leave his house and the victim refused, telling defendant to get his gun and "use it. If you don’t, I will.” When the victim came at defendant, defendant discharged his gun, killing the victim. Viewing the evidence in the light most favorable to defendant, the jury could conclude that, once the victim was ordered to leave the premises, his license to be on the premises was revoked and, thereafter, he remained unlawfully. The jury could also conclude that the victim remained in the building unlawfully with the intent to commit the crime of assault therein and, thus, was in the process of committing a burglary (Penal Law § 140.20), or that defendant so reasonably believed. Further, *1008the jury could conclude that defendant reasonably believed that the use of deadly physical force was necessary to terminate the burglary.
The District Attorney argues that other sections of Penal Law article 35, governing the defense of justification, should be read into Penal Law § 35.20 (3) so that the use of physical force to prevent or terminate a burglary should be limited to instances where the defendant reasonably believes that his life is in danger. The legislative history of section 35.20 (3) indicates otherwise. When the new Penal Law was enacted in 1965 (L 1965, ch 1030), it did not contain a provision authorizing the use of deadly physical force to prevent or terminate a burglary. The present section 35.20 (3) was added by chapter 73 of the Laws of 1968. The legislative memorandum in support of the legislation explains one "significant change” proposed by the legislature. "[T]he scope of the authorization to use deadly force is expanded by according such right to the burglary victim when he reasonably believes such to be necessary in order to prevent or terminate the burglary or attempted burglary. This meets the fear espoused by persons across the State that they had been placed in the dangerous posture of responding to force during home burglaries” (1968 McKinney’s Session Laws of NY, at 2246; see also, Leibovitz, Justifiable Use of Force Under Article 35 of the Penal Law of New York, 18 Buffalo L Rev 285, 294 [1968-1969]). The legislative intent not to qualify the authorization of Penal Law § 35.20 (3) is expressed by Penal Law § 35.10 (6), which provides that whenever a person is authorized by any of the ensuing provisions of article 35 "to use deadly physical force in any given circumstance, nothing contained in any other such provision may be deemed to negate or qualify such authorization.”
Because the court denied defendant’s request to charge the defense of justification under Penal Law § 35.20 (3), the judgment must be reversed.
We have reviewed defendant’s remaining contentions and find them to be without merit.
All concur, except Dillon, P. J., and Davis, J., who dissent and vote to affirm, in the following Memorandum.