by Paul D'Emilia | Feb 16, 2023
New York law permits the use of self-defense, also referred to as “justification,” in limited situations. Notably, it is a defense that may be asserted in specific cases where the defendant’s use of physical force would otherwise constitute a criminal act. Cases involving self-defense can be extremely complex — but when justification exists, a defendant may be able to avoid criminal prosecution.
What Constitutes Self-Defense?
Article 35 of the New York Penal Law outlines when an individual is justified in using physical force in self-defense, or in the defense of others. Under the statute, a person can use the amount of physical force they reasonably believe is necessary to defend themselves or others from what they reasonably believe to be the illegal imminent use of force or the illegal use of force.
There are only certain circumstances under which a person can assert the justification of self-defense in cases involving deadly force. Since New York imposes a duty to retreat, it is only permissible to use deadly physical force when there is no other option.
Situations where deadly force can be used in self-defense include circumstances involving:
- Forcible rape
Importantly, you cannot use the justification of self-defense if you were the person who started the fight — unless you withdrew from it and communicated your withdrawal. The defense of justification will also fail if you were the initial aggressor. In other words, if you provoked the other person to attack with the intent to cause physical injury to them, the self-defense justification may not apply.
Understanding New York’s Castle Doctrine and the Duty to Retreat
When it comes to self-defense, New York law recognizes both a “duty to retreat” and the “castle doctrine.” It’s important to understand the difference between these two concepts and how they apply in scenarios involving the use of deadly force.
The duty to retreat means that a person has an obligation to take reasonable steps to mitigate the risk of harm before they can use deadly force. However, the duty to retreat is fact specific and requires actual knowledge of a safe retreat. For instance, if someone pulls out a firearm and shoots it in your direction, you might be justified in asserting deadly force in order to protect yourself — unless you knew of a way in which you could retreat to complete safety.
Notably, there is no duty to retreat inside one’s home under New York law. Under the castle doctrine, an individual is permitted to use deadly force to defend themselves and their family inside their home against an intruder. In these cases, you do not have to retreat to a different room — the law allows you to stand your ground.
Contact an Experienced New York Criminal Defense Attorney
If you have been charged with a crime for acting in self-defense, it’s vital to have an experienced criminal defense attorney on your side who can fight for your rights. The attorneys at D’Emilia Law offer skillful counsel and committed representation for those who have been charged with a crime for acting in defense of themselves or others and work relentlessly to obtain the best possible outcome for every client. To schedule a consultation,contact usat 1-888-DEMILIA.
Although self-defense first appeared in law as an excuse, in the 20th century it has been classified as a justification. Justified conduct is otherwise criminal conduct that under specifiable circumstances does not harm society.Is justification an ordinary defense or an affirmative defense in NYS? ›
Justification can be an affirmative defense for certain criminal charges in New York, but there are many other types of affirmative defenses that you should know about.What is the justification defense in New York State? ›
New York law permits the use of self-defense, also referred to as “justification,” in limited situations. Notably, it is a defense that may be asserted in specific cases where the defendant's use of physical force would otherwise constitute a criminal act.Is self-defense an affirmative defense in New York? ›
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.What is considered a justification defense? ›
Justification is a defense in a criminal case, by which a defendant who committed the acts asserts that because what they did meets certain legal standards, they are not criminally culpable for the acts which would otherwise be criminal.What is a valid justification defense? ›
In order for self-defense to qualify as a justification defense, your actions must have occurred in response to an imminent threat of physical force together with the victim's intent to follow through on the threat.What is the self-defense law in NY? ›
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.Does NY have self-defense law? ›
New York Penal Law 35.15 states that you can use physical force when and to the extent, you reasonably believe such to be necessary to defend yourself, or another individual from what you believe to be the use or imminent use of unlawful physical force by another individual.What are the three types of justification defenses? ›
 Justification defenses include self-defense, defense of others, necessity and consent.How was the law of justification changed in New York? ›
Prior to 1965, the defense of justification in New York had never been fully articulated in the Penal Law. In 1965 however, a new concept, justifiable deadly force, was defined in the law through the adoption of the revised Penal Law. The 1965 revision restricted the use of lethal force only to preserve innocent life.
Justification; use of physical force in defense of premises and in defense of a person in the course of burglary. Justification; use of physical force to prevent or terminate larceny or criminal mischief. Justification; use of physical force in resisting arrest prohibited.Does NY have stand your ground law? ›
Missouri is one of about 30 states with a “stand your ground” law. New York is not, but defendants there and elsewhere can argue that their actions are protected by what is known as the “castle doctrine.”Is a self-defense as an affirmative defense an excuse defense? ›
Self-defense is an affirmative defense to a charged violent crime. This means that if someone is charged with murder, or assault, they can use self-defense as a legal excuse for the conduct if they can prove it in a court of law.Is justification an affirmative defense? ›
In criminal law, an affirmative defense is sometimes called a justification or excuse defense. Consequently, affirmative defenses limit or excuse a defendant's criminal culpability or civil liability.What is the burden of proof justification? ›
Holder of the burden
When two parties are in a discussion and one makes a claim that the other disputes, the one who makes the claim typically has a burden of proof to justify or substantiate that claim especially when it challenges a perceived status quo.
- Principle 1: Innocence. ...
- Principle 2: Imminence. ...
- Principle 3: Proportionality. ...
- Principle 4: Avoidance. ...
- Principle 5: Reasonableness.
Justification defenses include Necessity,Defense of others, Defense of property, Law Enforcement Defense, Consent. Excuse defenses include Duress, Entrapment, Ignorance of the Law, Diminished Capacity Defense, Provocation, Insanity Defense, and Infancy Defense.What are the four most important justification defenses? ›
Criminal courts require that a judge or jury determine guilt beyond a reasonable doubt, and a good defense can help establish enough doubt that a conviction is not justified. In criminal cases, there are usually four primary defenses used: innocence, self-defense, insanity, and constitutional violations.What are the 5 types of justification? ›
The five justification defenses are self-defense, necessity, duress, protecting others from harm, and defending your personal property.What two forms of legal defense are justifications and excuses? ›
The defense of justification is applied when acts are carried out to prevent or redress harm. Excuse, on the other hand, is a defense that asserts the actor's mental inability to consciously do evil. The article discusses the historical evolution of legal exculpation, noting the emphasis on excuse in the last century.
Insanity defense is the single most controversial legal doctrine relating to the mentally ill. All the formulations of the insanity defense require that the impairment claimed in mental functioning being a result of mental disease or defect. Defect is usually understood to refer to mental retardation.Why is self-defense illegal in New York? ›
A: New York enforces a duty to retreat, so it is only legally permissible to kill in self-defense when the situation presents no other option. To legally take lethal action against an attacker, the attacker must present an imminent lethal threat to you or your family member.What is the self-defense clause? ›
The common law principle of “castle doctrine” says that individuals have the right to use reasonable force, including deadly force, to protect themselves against an intruder in their home. This principle has been codified and expanded by state legislatures.Can you use a weapon in self-defense in NYC? ›
The New York penal code (NYPL article 35) states that the use of physical force is justified in self-defense, in defense of another person, or in order to prevent theft or criminal damage to property.What is the best self-defense in NY? ›
- Pepper spray – This is one of the most popular self-defense weapons and for good reason. ...
- Taser – A taser is another great option for self-defense because it can immobilize an attacker from a distance.
Is it illegal to carry a knife for self-defense? Even if you are only carrying a knife for self-defense, you may still be subject to summons and/or arrest if the circumstances indicate that the knife is used or possessed as a weapon. If you feel threatened or in danger, call 911 for police assistance.How do you defend yourself if someone attacks you? ›
- 10 Self-Defense Strategies Everyone Needs to Know.
- TRUST YOUR INSTINCTS. Too many women enroll in a self-defense class after they've been assaulted. ...
- PRACTICE TARGET DENIAL. ...
- PRESENT YOURSELF WITH CONFIDENCE. ...
- SET STRONG VERBAL BOUNDARIES. ...
- MAINTAIN A NON-CONFRONTATIONAL STANCE. ...
- KEEP A SAFE DISTANCE. ...
- USE THE ELEMENT OF SURPRISE.
The insanity defense refers to a defense that a defendant can plead in a criminal trial. In an insanity defense, the defendant admits the action but asserts a lack of culpability based on mental illness. The insanity defense is classified as an excuse defense, rather than a justification defense.What is an example of justification and excuse? ›
An example is that breaking into someone's home during a fire in order to rescue a child inside, is justified. If the same act is done in the belief that there was a fire, when in fact there was no fire, then the act is excused if the false belief was reasonable.What is the failure of proof defense? ›
Failure of Proof – an individual's simplest defense in a criminal prosecution is to claim that the prosecution has not or cannot prove an element of the offense. Mistakes – in certain circumstances, an individual's mistake can be used as a defense.
New York law and forum are the preferred choice in many contracts. This is, in part, because of the predictability and security that comes along with the provisions of its General Obligations Law (“NY GOL”), Sections 5-1401 and 5-1402[i].What is general justification? ›
ADAV NOTI* The general justification defense, also known as the choice-of-evils doctrine, per- mits a criminal defendant to seek acquittal on the grounds that his crimes were necessary to prevent greater harm from occurring.What is Section 35.10 1 of the New York State Penal Law? ›
A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious physical injury upon himself may use physical force upon such person to the extent that he reasonably believes it necessary to thwart such result.What is the no sock law in NY? ›
Basically, New York's “No Sock law” means is that an individual does not have a right to assault an officer, whether the arrest is authorized or unauthorized. The case law in New York has described circumstances and levels of resistance to an unlawful arrest that is deemed acceptable. People v. Jones, 90 N.Y.Is self-defense an excuse or a justification in the context of a defense against criminal charges? ›
Unlike insanity, which provides an excuse, self-defense is a justification.What is Article 70 NY Penal Law? ›
Notwithstanding any other provision of law, a defendant sentenced to life imprisonment without parole shall not be or become eligible for parole or conditional release. For purposes of commitment and custody, other than parole and conditional release, such sentence shall be deemed to be an indeterminate sentence.Does New York State have a leash law? ›
A person who owns or controls a dog may not allow it to be in any public place or in any open or unfenced field abutting a public place, unless the dog is effectively restrained by a leash or chain no more than six feet long.Are no trespassing signs legal in NY? ›
It is a violation of the law for any person to post any sign prohibiting or limiting activities on land unless authorized to do so by the owner, lawful occupant or other person or organization having authority to post such lands.Can you carry pepper spray in NY? ›
Pepper spray is legal in New York for anyone 18 and older to carry and use for self-defense, but there are a few restrictions: Product canisters cannot contain more than 0.75 oz. Pepper spray strength cannot exceed 0.7% major capsaicinoids.Is self-defense a duress defense? ›
A threat to destroy property or a distant threat would not be enough to support a Duress defense. Additionally there must be a reasonable belief in the viability of the threat. Defenses that are related to the Duress defense include the Necessity defense and Self-Defense.
The law regarding self-defense refers to a defendant's “reasonable belief”. There are two components to a “reasonable belief”. First, the person claiming self-defense must have actually believed that the amount of force used was necessary. This is referred to as the defendant's subjective belief.What are the Defences of excuse? ›
Excuse defence is when the defendant admits to committing a criminal act but believes that he or she cannot be held responsible because there was no criminal intent. Excuse defences that are used in courts today are; Age, Mental Disorder, Automatism, Mistake of Fact and Mistake of Law.Is justification an affirmative defense in NY? ›
Justification can be an affirmative defense for certain criminal charges in New York, but there are many other types of affirmative defenses that you should know about.What is an example of a justification? ›
a reason, fact, circumstance, or explanation that justifies or defends: His insulting you was ample justification for you to leave the party. an act of justifying: The painter's justification of his failure to finish on time didn't impress me.Is necessity a justification defense? ›
Because the defense of necessity is essentially a justification for the criminal act, it is imperative that the defendant had no other realistic options available to him at the time the criminal act was committed. If he did, his criminal actions would not be justified.How much evidence is enough to convict someone? ›
Beyond a reasonable doubt.
Every state in the country has laws that make it clear a prosecutor must present enough evidence to show, beyond a reasonable doubt, that the defendant committed the crime they are accused of.
- Crimes Against Minors. It can be challenging to defend clients who have been accused of crimes against minors. ...
- Murder, First Degree. The most severe criminal charge that anybody may face is first-degree murder. ...
- White Collar Crimes.
The burden of proof is often said to consist of two distinct but related concepts: the burden of production, and the burden of persuasion.Is self-defense an example of an excuse defense? ›
This is called self-defense. Self-defense is an affirmative defense to a charged violent crime. This means that if someone is charged with murder, or assault, they can use self-defense as a legal excuse for the conduct if they can prove it in a court of law.What are examples of justification excuse? ›
An example is that breaking into someone's home during a fire in order to rescue a child inside, is justified. If the same act is done in the belief that there was a fire, when in fact there was no fire, then the act is excused if the false belief was reasonable.
A mistake of fact is a type of defense that can be used in a criminal case to demonstrate that the defendant did not have the criminal intent to commit a crime. Under mistake of fact, the defendant contends that they did not have criminal intent because of a misunderstanding regarding a particular fact.What kind of circumstances is self-defense? ›
In order to invoke self-defense, certain conditions must be met such as unlawful aggression, reasonable necessity of the means employed to prevent or repel it, and lack of sufficient provocation on the part of the person defending himself.What are three excuse defenses? ›
Excuse defenses are used when the actor's mental state or belief demonstrate that he should not be held responsible for the criminal act. Excuse defenses include insanity, diminished capacity, duress, mistake, infancy and entrapment.What are some example cases of self-defense? ›
- September 2009 — Johns Hopkins chemistry student John Pontolillo kills an unarmed intruder with a samurai sword. ...
- March 2001 — Brothers Dominic "Tony" Geckle and Matthew Geckle shot three unarmed intruders at their concrete plant in Glyndon.
“Mistake of fact” and “mistake of law” are both legal defenses that a defendant may invoke to challenge certain criminal charges.What is an example of a mistake of fact defense? ›
Mistake of fact may be used in murder cases. An example is a defendant who shot and killed another person but who claims that he did not know the gun was loaded. If the parties were not quarreling but merely examining the firearm, then the death was accidental.What are the 5 factors of self-defense? ›
- Principle 1: Innocence. ...
- Principle 2: Imminence. ...
- Principle 3: Proportionality. ...
- Principle 4: Avoidance. ...
- Principle 5: Reasonableness.
Self-defense can be broken down into three elements; the immediacy of your physical force to protect yourself, your use or threatened use of no more physical force than would have appeared necessary, and your justification in the threat or use of physical force only while the danger continues.What does self-defense include? ›
Self-defense is defined as a person protecting themselves by responding to force or violence with force or violence. This definition may seem simple enough, but it raises many questions when it is put into play in real life.