The Affirmative Defense of Duress in New York
In New York, it is an affirmative defense if the criminal defendant was forced into committing the alleged crime by the use or threatened imminent use of unlawful physical force upon him or another person. [PL§40.00(20] The force or threatened force must be such that a person of reasonable firmness standing in the defendant’s shoes would not have been able to resist. [PL §40.00(1)] This affirmative defense is called “Duress”.
The defense of duress does not apply if the defendant intentionally or recklessly put himself in a position in which it was probable that he would be subjected to duress. [PL§40.00(2)] Like any New York criminal affirmative defense, the defendant must prove he acted under duress by a preponderance of the evidence. [PL §25.00(2)]
A jury may consider whether the defendant was predisposed to criminal conduct and was not someone whose resolve needed to be overpowered. [CJI2d. Duress] In this regard, the prosecution may be allowed to show that on a separate occasion the defendant: engaged in criminal conduct; was convicted of a crime; or committed some other bad act. [CJI2d.Duress]
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