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The Defense of Self-Defense is an important defense that gives individuals in New York the right to protect themselves and others from violence including assaults and other violent crimes. The New York Penal Law, Article 35 defines under what circumstances a person may use physical force and even deadly physical force to effect an arrest, stop a crime, and defend himself or herself from force being used against the person or a third person.

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Defense Vs. Affirmative Defense

It is important to understand that Self-Defense which is called the defense of Justification in the New York Penal Law is a defense. This is as opposed to an affirmative defense.

In New York, once a defense is raised, the burden is on the prosecutor to disprove the defense beyond a reasonable doubt. For affirmative defenses, the burden is on the accused but for self-defense or justification the burden is on the prosecutor to disprove the defense.

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Reasonableness is Required

Note that throughout New York Penal Law Article 35 the term reasonably is used repeatedly. In most cases the person using self defense must “reasonably” believe that it is necessary AND must reasonably believe that the perpetrator is doing the bad thing that necessitates the self-defense. If either belief is unreasonable, the person using self defense may find themselves with a problem. Courts will look at how reasonable your belief was both objectively and subjectively, from your point of view.

Defending Yourself or Another Against Physical Force

Under New York Law, Penal Law §35.15, a person is justified in using physical force against another when that person is under the reasonable belief that the physical force is necessary to defend the person or another person from what the person reasonably believes to be the illegal imminent use of force or the illegal use of force. There are certain exceptions to this general principle including “combat by agreement, or instances where the person seeking to use the defense was the initial aggressor or provoked the attack.

Note that the term reasonably is used twice. In order to be able to successfully use the defense of justification, both your belief that force is being used or is about to be used and your belief that your use of physical force is necessary to stop the attack must be reasonable under the circumstances.

The above rule only applies to the use of physical force. Deadly physical force which is the type of force that is capable of causing a serious physical injury or death is not permitted unless a person reasonable believes that deadly physical force is being used or is about to be used on himself, herself or a third person. Even in such a situation however, the law imposes on a person a duty to retreat before he or she can resort to using deadly physical force if they can retreat with complete safety.

New York law does not impose a duty to retreat in your own home if you are not the initial aggressor or if a person is under a reasonable belief that the attacker is attempting to commit or is committing a forcible rape, robbery, kidnapping or forcible criminal sexual act.

Different rules apply for Police Officers which are not covered here.

Using Physical Force to Defend Premises

A person is permitted to use physical force (but not deadly physical force) that the person reasonably believes is necessary to stop a person from committing a crime involving damage to property such as criminal mischief whether or not the person using the physical force is an owner or is in control of the premises. A person may use deadly physical force to defend a premise only when the person reasonably believes that the deadly physical force is necessary to terminate an arson or attempted arson.

A person who has control over or possession of premises is permitted to use physical force (but not deadly physical force) that the person reasonably believes is necessary to stop or prevent a criminal trespass. A person who is in control or possession of an occupied building or dwelling can use deadly physical force which the person reasonably believes is necessary to terminate what the person reasonably believes to be a burglary or attempted burglary.

Using Physical Force to Prevent Stealing or Damage to Property

A person is permitted to use physical force (but not deadly physical force) when the person reasonably believes that the physical force is necessary to prevent or stop what the person reasonably believes is a perpetrator attempting to commit a criminal mischief or larceny.

Use of Physical Force to Make an Arrest by a Civilian

Civilians (non-police or peace officers) are permitted under New York Law to make citizen’s arrests for crimes actually committed in their presence. A civilian is permitted to use physical force (but not deadly physical force) when the civilian reasonably believes that the force is necessary to effect the arrest or to stop the escape from custody of a person who the civilian reasonably believes committed a crime or offense and who in fact committed the crime or offense. This means that in the situation where you are using physical force to make an arrest, it is not enough hat you reasonably believe that the person committed a crime, you must be correct. If you made a mistake about whether the person committed a crime you will not be able to use the defense of justification and you could be prosecuted.

Generally, deadly physical force will not be permitted to be used to make an arrest by a civilian unless the person reasonably believes that such force is necessary to make the arrest of a person who has committed robbery, forcible sexual criminal act, forcible rape, manslaughter in the first degree or murder. Deadly physical force may also be justified, if while you are using non-deadly physical force to make an arrest for a non-violent offense, the perpetrator attempts to use deadly physical force against you or another person.

Summary – Self Defense / Justification is Complicated

This is an extremely complicated area of law with potentially very serious consequences if you make a mistake. This is just a very brief summary of New York Law. We encourage you to read the actual law in Article 35 of the New York State Penal Law and understand it.

If you or someone you know has used self-defense in New York and is facing a criminal investigation or criminal charge, you should contact an experienced criminal defense lawyer who has experience with self defense cases.

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