Facing Self Defense Felony Charges in New York?

There is a common misconception that New York does not allow for self-defense when charged with a crime. This could not be further from the truth. Instead, New York has a specific yet favorable instruction which allows for a jury to consider if an individual acted in reasonable self-defense during the commission of a crime, which lead to an outright acquittal on charges stemming from assault up to murder.

Self Defense Felony Charges in New York - Penal Law 35

Often, self-defense may be at play when someone is charged with one of the following:

• 1st degree assault
• 2nd degree assault
• 3rd degree assault
• 2nd degree manslaughter
• 3rd degree manslaughter
• 1st degree murder
• 2nd degree murder

Just as the term indicates, if an individual was defending himself or defending others from what he perceived to be an act of violence or the use of force, that person can put forth the affirmative defense of self-defense/justification. 

Penal Law § 35.00 in New York defines the circumstances under which the use of physical force may be justified as self-defense.  In sum, self-defense is legally acceptable if the person believes that they are in imminent danger of physical harm and uses force to protect themselves.The law includes provisions for both non-deadly and deadly force, but the amount of force used must be reasonable and proportionate to the threat they are facing. 

1. Justification of Force: A person may use force to defend themselves if they believe they are at risk of harm. This belief must be reasonable and based on the circumstances at the time. Notably, the belief must also be reasonable to another person who would act in the same way if facing the same circumstances. Hence, the belief must be reasonably held to the individual and to everyday citizens. In this regard, self-defense is both subjective and objective. 
2. Non-Deadly Force: The law allows for the use of non-deadly physical force to protect oneself from imminent danger. This could include pushing someone away or using other methods of defense that don’t involve serious harm or risk of death.
3. Deadly Force: Deadly physical force (force likely to cause serious injury or death) may only be used if the person reasonably believes they are facing a threat of death or serious injury. Even then, the force used must be proportionate to the danger.
4. Duty to Retreat: New York follows a "no duty to retreat" rule in certain circumstances. A person is not required to retreat before using force to defend themselves if they are in a place where they have a legal right to be. However, if they are the aggressor or instigate the conflict, the self-defense claim may not be valid.

In summary, Penal Law § 35.00 establishes that self-defense is a valid legal justification if someone is facing a threat of harm and uses appropriate, reasonable force to protect themselves. The law is designed to ensure people can defend themselves, but it limits the use of force to situations where it is necessary and proportional to the threat.

The 3 Elements of Self Defense

In New York, under Penal Law § 35.15 (which outlines self-defense), there are three primary elements that must be present for a claim of self-defense to be valid. These elements are:

1. Reasonable Belief of Imminent Threat

The person must reasonably believe that they are facing an imminent threat of physical harm. This belief must be based on the circumstances at the time. The threat must be immediate, meaning there must be an ongoing or imminent danger of harm (e.g., someone attacking you).

2. Proportional Use of Force

The force used in self-defense must be proportional to the threat faced. The person cannot use excessive or unreasonable force. For example, if someone is threatening you with a punch, using deadly force (like a weapon) may be considered excessive and disproportionate.

• Non-deadly force is allowed when defending against non-deadly threats.
• Deadly force can only be used if the person reasonably believes they are in imminent danger of death or serious injury.

3. No Duty to Retreat (in certain circumstances)

In New York, a person is generally not required to retreat before using force to defend themselves, as long as they are in a place where they have a legal right to be. However, if the person is the initial aggressor or has provoked the situation, self-defense may not apply.

It is also important to note that self-defense is an affirmative defense. Hence, the defense must put forth evidence of justification. However, once such evidence is introduced, the government must then prove beyond a reasonable doubt that the defendant was not justified, creating a huge burden and in turn a favorable advantage for the defense.

Possible Sentencing & Penalties in New York

Even when self-defense is at play, the same sentencing and penalties apply. Hence, if convicted of murder in the second-degree, the range is still 15-life to 25-life, while assault in the third degree charges carry up to one year in jail.

We’ve put together a guide on assault related sentencing and penalties.

Examples and Related Cases

Our office has successfully defended cases through self-defense on a handful of matters.

Most notably, we recently defended an individual in a high-profile matter following a subway homicide. This case was widely reported on and our client was thrust into the spotlight given the uptick in violent crime on the New York City subways.

In turn, we swiftly conducted a defense investigation by taking witness statements and obtaining crucial video surveillance. Finally, we took the enormous step of putting our client on the stand to testify in the grand jury, where the elements of self-defense (penal law 35.00) were made out and ultimately the charges were dismissed outright.

In short, our client

• was unable to retreat safely – indeed, he tried to move subway cars but was unable to because the aggressor was blocking the door.
• was confronted by the aggressor with force, as the aggressor choked our client and indicated that he may be armed.
• only used the reasonable force necessary to get to safety by slashing the aggressor once with a small pocket knife.

This was textbook self-defense and our lawyers brought it to the forefront of his defense both inside the courtroom and in the court of public opinion.

Your Defense Begins Now

If you are facing an assault charge, manslaughter, murder, or even other violent felony offenses, contact our office to discuss how a self-defense theory could be employed favorably at the grand jury phase or trial stage of your case.