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Defending Yourself or Others Against a Physical Attack

The New York self defense law found in Article 35 of the New York State Penal Law, gives a person the authority to use physical force and even in some cases deadly physical force to protect themselves and also to protect others from a physical assault. The defense of self defense, or justification as it is called in New York, is a defense that must be disproven by the prosecutor beyond a reasonable doubt. Self defense can be a very important defense against charges such as assault, attempted assault, murder, manslaughter or attempted murder.

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New York Penal Law §35.15, authorizes the use of physical force when and to the extent the person reasonably believes that the force is necessary to defend either herself, himself or another person from what the person reasonably believes to be the imminent use of physical force or the actual use of physical force. The term ‘reasonably’ is used twice in Penal Law §35.15 (1). This is because whether and to the extent the force is used must be reasonable but also the belief that the force is necessary because force is about to be used against a person must be reasonable. For example, if someone is about to hit you on the arm with a fly swatter you cannot stop that attack by hitting them on the head with a baseball bat and claim that your use of a baseball bat was reasonably necessary to prevent the attach with a fly swatter.

There are several exceptions to this general rule found in Penal Law §35.15. Firstly, in most cases if the person seeking to use the defense was the initial aggressor or provoked the person with the intent to physically injure another, that person would not be able to successfully claim self-defense. If the physical force was used during a fight by agreement, a person cannot successfully claim self defense. Lastly, the use of deadly physical force is a different category in New York and has different rules as we discuss below. Deadly physical force is force is force which is readily capable of causing death, long term impairment of health, or long term impairment of the use of any bodily organ.

Generally, deadly physical force is not authorized unless the person believes that deadly physical force is about to be used against them or another person. Again, the belief that deadly physical force is being used or is about to be used against them must be reasonable. The law imposes the duty to retreat on a person before that person can resort to the use of deadly physical force in defense of themselves or another.

The duty to retreat is only imposed upon a person who has the ability to retreat with complete safety to themselves and others. In addition, there is no duty to retreat for a person who is in their own dwelling and not the initial aggressor or for a police officer, peace officer or a person assisting a law enforcement officer at the officer’s direction. In addition, there is no duty to retreat if the person seeking to use the defense of self-defense reasonably believes that the other person is attempting to commit or is committing forcible rape, kidnapping, robbery, forcible criminal sexual act, or under some circumstances burglary.

New York Self Defense cases are serious and the nuances of applying New York Self Defense law can be complicated. At Tilem & Associates, our lawyers have the experience, knowledge and commitment to handle the most complex self-defense cases.

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