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Self-Defense in New York State

Posted by Arthur R. Frost | Jun 01, 2018 | 0 Comments

In the State of New York, self-defense can be a defense to certain crimes. While the conduct involved in self-defense, specifically, the use of physical force, would generally be considered an assault, in certain, very specific circumstances, that same conduct is legally permissible.

Who May Use Physical Force?

One can use physical force to defend themselves from someone who is using or is about to use unlawful physical force on them if they are not the aggressor in the incident. If someone was originally the aggressor in an incident, but later withdraws from the incident and communicates this, that person may also use physical force.

Example of one who is not the aggressor: Andre is minding his own business when Bill comes up to Andre and begins assaulting him or threatening to assault them. Andre may use physical force to defend himself.

Example of one who withdraws: – Andre raises his fist to Bill in a threatening manner, but then says, “I don't know what I was thinking. I am sorry. I'm not going to hit you,” and walks away. While Andre's back is turned and he's walking away, Bill attacks Andre from behind. Andre had withdrawn from the physical confrontation and clearly communicated his withdrawal. He may now use physical force to defend himself.

How Much Force Can be Used?

A person may use physical force to the extent necessary to stop the force being exerted on them. In other words, if someone is punched, they may attempt to forcibly restrain the other person, perhaps even punch them one or more times to subdue them. However, a person may not respond to a punch by shooting their attacker in the head.

Can Deadly Force Be Used?

Deadly force can be used only under very specific circumstances, including:

  • When a person is in their own home and was not the original aggressor;
  • When a person reasonably believes the other person is committing or attempting to commit forcible criminal sexual conduct, kidnapping, or robbery; or
  • When a person is under a reasonable belief the other person is committing or attempting to commit burglary and such force is necessary to stop the crime or prevent the crime.

What is the Duty to Retreat?

The duty to retreat refers to a person's obligation to not use force of any kind if they can safely escape the situation. In other words, if a person is in their car at a stop sign, and someone walks up to them and punches them in the face through the open window, the person can drive away to stop the force. Using force is not necessary to protect themselves and, in this situation, the person has a duty to retreat. Contrast, if the person is sitting in gridlocked traffic, the person may have a self-defense claim.

Every Situation is Different

Self-defense can be a defense to certain criminal charges. However, self-defense is very fact specific. There is any number of variables that may negate or validate a claim of self-defense. If you are charged with a criminal offense involving the use of physical force of any kind, you need a qualified criminal defense attorney to review the facts and circumstances of your case. At Frost & Kavanaugh, we have the experience you need for your criminal case. Contact us today for a no-cost consultation.

About the Author

Arthur R. Frost

Art graduated from Thomas More College in Merrimack, NH in 1991 with a B.A. in Philosophy, and graduated from Gonzaga University School of Law in Spokane, WA in 1995. He was admitted to practice in all New York State Courts and the United States District Court for the Northern District of New York in 1996. He w...

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