New York Criminal Defense Lawyer Blog

Self defense is a justification defense in New York. PL §35.00 If a justification defense is raised by defense counsel, the defendant does not have the burden to prove at trial that their actions were justified.PL § 25.00 Instead, the prosecution has the burden of proving beyond a reasonable doubt that the defendant’s actions were not justified. PL §25.00

In New York, you can use physical force upon a person if you believe it necessary to defend yourself or another individual from what you reasonably believe to be the imminent use of physical force by that person. PL § 35.15 You can be the first to use physical force if you reasonably believe that physical force is about to be inflicted upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] You need not wait until you are struck or wounded before using physical force to defend yourself or someone else so long as you reasonably believe that another person is about to use physical force upon you or someone else. [CJI- Justification: Use of Physical Force in Defense of a Person] It is irrelevant if you were or may have been mistaken in your beliefs so long as your beliefs were honestly held and were reasonable. [CJI- Justification: Use of Physical Force in Defense of a Person] It would not be considered self defense if you were the initial aggressor unless the other person continued the encounter by the use or threatened use of imminent physical force against you after you had withdrawn from the encounter and had effectively communicated such withdrawal to the other person. PL § 35.15(b)

You would not be justified in using physical force in response to an argument, name calling or the use of bad language absent any physical threats or acts. [CJI- Justification: Use of Physical Force in Defense of a Person] You would not be justified in using physical force if you provoked the other person’s conduct with the intent to cause physical injury to that person. You would also not be justified in using physical force to resist an authorized or unauthorized arrest by a police officer or peace officer. PL § 35.27

A person may not use deadly physical force to defend themselves unless he or she believes that the other person is using or is about to use deadly physical force or if he or she is perfectly able to safely retreat. PL 35.15(2)(a) But, a person does not have to resort to retreating if they are inside their home and are not the initial aggressor.PL 35.15(2)(a)(i) A person also does not have to retreat if he or she is a police or peace officer or is assisting a police offer or peace officer at that officer’s request. PL §35.15(2)(a)(ii) A person also does not need to retreat if they reasonably believe that the person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery. PL §35.15(2)(b) A person also does not need to retreat if he or she reasonably believes that the person is committing or attempting to commit a burglary inside a dwelling or occupied building that he or she occupies or controls or is licensed or privileged to be in and deadly force is necessary to prevent or terminate the burglary or attempted burglary. PL §35.15(a)(c) [Please also see: CJI-Justification: Use of Deadly Physical Force in Defense Of A Person]

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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]

Please call me toll free at 1-877-858-2889 if you have been charged with a crime. I am available 24/7. The initial consultation is free. If the case is not dismissed, I will negotiate a plea bargain acceptable to you or take the case to trial.

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An alibi is a defense whereby a defendant claims that at the time of the crime in question he was somewhere other than where the crime charged took place.The prosecution is required to prove beyond a reasonable doubt on all the evidence presented that the defendant was the person who committed the crime in question and therefore was not somewhere else when the crime took place.

The defendant bears no burden of proving an alibi. The prosecutor needs to prove beyond a reasonable doubt that the defendant committed the crime. However, the prosecutor does not need to present other evidence that independently proves that the defendant was not where he claims to have been at the time of the crime.

The identity of alibi witnesses –other than the defendant -is subject to disclosure. The prosecutor has up to twenty days after the arraignment to serve upon the defendant a “Demand for Alibi”. In felony cases, the twenty days begins to run after the arraignment on the indictment. In misdemeanor cases, the twenty days begins to run after the arraignment following the arrest. However, it is common practice for prosecutors to serve a “Demand for Alibi” in all cases at the arraignment following the arrest.

If defense counsel intends to assert an alibi defense at trial, he must serve a “Notice of Alibi” within eight days of the service of the “Demand for Alibi” unless for good cause shown the court extends the time period beyond eight days. The” Notice of Alibi” must state (a) the place or places where the defendant claims to have been at the time of the crime; (b) the name of every alibi witness; (c) the home address of every alibi witness and (d) the place of employment of every alibi witness including its address.

Defense counsel has a duty to promptly supplement the “Notice of Alibi” with the names and address of additional alibi witnesses as they become known. The judge may exclude the alibi testimony of any alibi witness not disclosed in a “Notice of Alibi”. If the court permits an undisclosed alibi witness to testify that the defendant was somewhere other than at the scene of the crime at the time of crime, the prosecutor may ask the court for an adjournment of up to three days to investigate and prepare to cross examine that witness.

Continue reading "The Alibi Defense In New York " »

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Entrapment is an affirmative criminal defense in New York. A jury may find a defendant not guilty if they find that: (1) the defendant committed the crime because he was induced or encouraged to do so by a public servant or a person acting in cooperation with a public servant who was attempting to get evidence against them for the purpose of criminal prosecution and (2) the tactics used by the public servant or the person acting in cooperation with a public servant to get the evidence created a substantial risk that the crime would be committed by a person not otherwise disposed to commit such a crime.

The affirmative defense of entrapment must be raised and proved by the defendant by a preponderance of the evidence. The defense of entrapment requires the active inducement or encouragement of a person who is not pre-disposed to commit the crime. The mere providing of an opportunity to commit a crime does not constitute entrapment. In determining whether a criminal defendant was pre-disposed to committing the crime the jury may consider-amongst any other relevant evidence introduced at trial- the defendant’s prior criminal history.

Entrapment is considered a risky defense by many criminal defense experts. It essentially requires the defendant to admit that he committed the crime. It also opens the door to the admission into evidence of defendant’s prior criminal history- that may not have otherwise been admissible into evidence- to show a pre-disposition to commit the crime.

The affirmative defense of entrapment will always hold a special place in my heart because it was on my bar exam despite my bar exam review instructor telling our class that New York never asks any questions about It. I only was able to successfully complete the essay due to having followed the John DeLorean trial

Please call me at 1-877-858-2998 if you are ever arrested in New York. I am available 24/7. The inital consultation is free. If the case is not dismissed, I will negotiate a plea bargain agreeable to you or take the case to trial.

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