There may be circumstances in which a defendant is the initial aggressor and can still justifiably respond with deadly physical force.

In People v Mc Williams 2008 NY Slip Op 01229 [2/8/08] the Court that

…[W]here there is a reasonable view of the evidence that the defendant initiates nondeadly offensive force and is met with deadly physical force, the defendant may be justified in the use of defensive deadly physical force and that, in such cases, the term initial aggressor is properly defined as the first person in the encounter to use deadly physical force (see e.g. People v Daniel, 35 AD3d 877, 878, lv denied 8 NY3d 945; People v Walker, 285 AD2d 364, lv denied 97 NY2d 643; People v Mickens, 219 AD2d 543, lv denied 87 NY2d 904).

Despite this holding, which appears to differ for the CJI charge on justification, the held that

We nevertheless conclude that, despite the absence of the word "deadly" from that part of the court's charge defining the term initial aggressor, the court's justification charge adequately conveyed to the jury that defendant could be justified in the use of deadly physical force to defend himself against deadly physical force initiated by the victim. Thus, the justification charge, viewed in its entirety, was "a correct statement of the law" (People v Coleman, 70 NY2d 817, 819; see People v Melendez, 11 AD3d 983, 983-984, lv denied 4 NY3d 888; see generally People v Ladd, 89 NY2d 893, 895; People v McDaniels, 19 AD3d 1071, lv denied 5 NY3d 830).