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Duress Defense

New York Penal Law 40.00 codifies the duress defense in New York. New York Penal Law 40.00 states that whenever a crime is prosecuted it is an affirmative defense that a defendant committed the crime because he or she was coerced into doing it by the use or threat of immediate and illegal violence against themselves or another person, where a person of reasonable fortitude would not be able to resist.

If you have been accused of a crime and you were coerced, threatened, or a third person that you love was threatened which caused you to commit that crime you may have a defense to your charges, the defense of duress.

Our experienced New York Criminal Attorneys can help argue this defense and potentially reduce your charges or get them dismissed.

The defense of duress is not available to people who purposefully, or carelessly and with intentional disregard for the risks presented to others and thus cause themselves to be subjected to coercion or threats of violence.

Here is a hypothetical scenario where a duress defense may help a defendant: Daniella and her child Carla are being abused by her husband Paul. Paul is a drug addict who needs money to keep funding his heroin addiction. Paul threatens Daniella and tells her that if she does not get him money so that he can get high, he will force their daughter into prostitution that very day. Paul says that if Daniella says anything to anyone that Paul will beat her to death right then and there. Paul regularly hits Daniella and she’s needed to go to the hospital after his beatings before. Paul regularly spends time with drug dealers who are also involved in prostitution. Daniella is terrified.

Desperate and afraid, Daniella buys a gun illegally and gets a ski mask. She looks for a bank without an armed guard. As she pulls on her ski mask and gets ready to rob the bank, blue and red lights flash behind her. Two police cars pull up, blocking her in and they officers arrest her. Daniella is brought to the station where she is interrogated and ends up confessing to the police. She tells them everything and she is charged with attempted robbery. In this scenario, Daniella’s attorneys could present a defense of duress. Despite the fact that Daniella was caught in the act and confessed to the crime, she still may not be criminally liable. This is because Paul threatened to kill her unless she complied with his demand to get him money for his heroin addiction. Her fears were amplified by the fact that Paul had hospitalized Daniella with his beatings before, and the fact that he threatened to force their daughter into prostitution that very day. Paul also spent time with drug dealers who were involved in the sex trade. Therefore, arguably Daniella’s fears were well founded, and a reasonable person in her position would have been unable to resist Paul’s threats.

This second hypothetical scenario distinguishes the type of threats that would not place a criminal defendant under duress. Darren and his friends are playing basketball. A local gang member named Percy approaches Darren and tells him that he can’t play basketball on the court anymore and that the basketball court is Percy’s gang’s turf. Percy tells Darren that he better leave if he values his health. Darren punches Percy in the mouth. Percy fights back knocking Darren out. Police officers arrive quickly and arrest both Percy and Darren for assault.

Darren was not, legally speaking, under duress. Although one might say that Darren was threatened by a local bully, and he had to stick up for himself, there are a number of factors that distinguish Percy’s threat. First, Percy’s threat was not immediate. Percy did not say he would attack Darren right away. Second, that the threat was not coercive in the sense that it caused Darren to fight. Darren may have not wanted to appear weak, but, that in and of itself is not a justification for fighting. Therefore, since the threat was neither immediate, nor coercive, Darren would not have duress available as a defense in his case.

Duress is a complex and nuanced defense. You need skilled and experienced New York Criminal Attorneys to present the defense of duress to the judge and jury. If you or a loved one were coerced or forced under threat of violence to commit a crime, and they were arrested for that crime, please call our New York Criminal Defense attorneys today.

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