Self defense is a common legal defense in an assault case. People who have been charged with assault in New York State for simply defending themselves during an altercation can assert self-defense in an effort to have assault charges reduced or dismissed.
When the accused raises self defense against assault charges, it is up to the criminal defense attorney to show that the use of force was justified. The District Attorney, however, still has the burden of proof in trying to show that the defendant is guilty beyond a reasonable doubt.
Also known as “justification”, the law of self-defense is complicated.
Self-defense involving the use of physical force
New York criminal defense law states that a person may use non-deadly physical force on someone when he or she reasonably believes it to be necessary to defend themselves or another from what is believed to be the use or imminent use of unlawful physical force by another person, unless:
- The victim’s conduct was provoked by the defendant with intent to cause physical injury to another person; or
- The defendant was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the defendant has withdrawn from the encounter and effectively communicated such withdrawal to the other person who persists in continuing the incident by the use or threatened use of unlawful physical force; or
- The physical force involved is the product of a combat by agreement, not specifically authorized by law.
Self-defense involving the use of deadly physical force
According to New York criminal law, a person may not use deadly physical force upon another person unless:
- The defendant reasonably believes that the other person is using or is about to use deadly physical force. Even in such case, however, the defendant may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others, he or she may avoid the situation by retreating. The defendant does not need to retreat if he or she is:
- in his or her dwelling and not the initial aggressor; or
- a police officer or peace officer, or a person assisting a police officer or a peace officer at the officer’s direction; or
- under the reasonable belief that the other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
- under the reasonable belief that the other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force as authorized by law.
A person who has been charged with assault should immediately contact an attorney to seek legal advice on how to proceed. Robert S. Gershon has over two decades of experience successfully representing clients who have found themselves in this unfortunate situation.
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