17.15 - B. Justification

• Jurisdiction: New York

B. Justification

The defenses of self-defense, defense of another, the rights of peace officers to use force and defense of property are codified under the generic heading of “justification.”²⁷¹³ The justification defense is most frequently encountered in homicide and assault prosecutions.

The defense of justification ordinarily must be raised by the defendant through the production of evidence. Once raised, the People must disprove it beyond a reasonable doubt.²⁷¹⁴ In People v. Di Bella,²⁷¹⁵ the appellate court held that the prosecution’s evidence had adequately disproved the defendant’s justification defense beyond a reasonable doubt. The defendant had contended that the victim was considerably larger than he was at the time of the stabbing and had been lying on top of him with an arm across the side of the defendant’s neck, causing the defendant to begin to lose consciousness. The People’s evidence showed that the defendant stabbed the victim as the victim was standing up and that applying pressure to the side of the defendant’s neck would not have caused a loss of consciousness. A justification charge should be granted when a reasonable view of the evidence viewed in a light most favorable to the defendant supports the charge. The charge should also make clear the legal principles to be applied to the situation at hand.²⁷¹⁶ When justification is not disproved, the conduct is regarded as noncriminal and thereby lawful.²⁷¹⁷ Justification can be based on self-defense, defense of other persons, defense of premises and defense of personal property, and its use may depend upon the status of the victim and the status of the defendant. In some instances, the defendant’s good faith reasonable belief as to a situation is sufficient to establish the justification, while in others the defendant acts at his peril and the defense will fail, even though the defendant’s conduct was reasonable under the circumstances. In addition, PL § 35.05 makes the defense available when the conduct performed is required by law; done “by a public servant in the reasonable exercise of his official powers, duties or functions”; or when the conduct “is necessary as an emergency measure” to avoid injury, where the emergency was not caused by the actor and where it is clearly preferable to commit the otherwise criminal act than to allow the emergency to continue unchecked. The latter is the statutory embodiment of the so-called “choice of evils” doctrine.²⁷¹⁸

The use of “force” when justified under the statute means ordinary physical force unless deadly physical force, as defined in PL § 10.00(11), is specifically included.²⁷¹⁹ In all cases, regardless of the nature of the justification defense, the amount of force used by the defendant must be reasonable under all circumstances.²⁷²⁰ Since the defense of justification based on self-defense pertains only to the use of physical force, the defense is not applicable to the crime of possessing a weapon or possessing a weapon with intent to unlawfully use it against another.²⁷²¹

A person is permitted to use such ordinary physical force as he reasonably believes is necessary to defend himself or others against what he reasonably believes is the use or imminent use of unlawful physical force.²⁷²² However, a person who in self-defense causes injury to another must believe he is in danger and must in fact have a reasonable ground for that belief. The question is not only what he believed, but what he had a right to believe.²⁷²³ The defense is never available where the defendant provoked the attack with intent to cause physical injury to another or was the initial aggressor and failed to effectively communicate to the victim his desire to withdraw from aggression. The defense is also precluded where the victim and the defendant engage in unlawful combat by agreement.²⁷²⁴ The defendant’s knowledge of past violent acts by the victim as well as the defendant’s knowledge and awareness of the victim’s reputation are admissible on the issue of the reasonableness of the defendant’s fear.²⁷²⁵

The statute and case law provide that the use of deadly physical force is justifiable where the defendant reasonably believed that the victim was using or was about to use unlawful deadly physical force. The courts have established that a two-pronged test, which is both subjective and objective, must be utilized to reach a determination of reasonableness. The two-pronged test was first enunciated in 1986.²⁷²⁶ It has been rigidly followed ever since.²⁷²⁷ The defendant must retreat rather than use deadly physical force if he knows he can avoid the use of such force for self-protection by retreating, and if he can retreat with safety to himself and others.²⁷²⁸ This duty to retreat applies alike to homicide and assault cases.²⁷²⁹ The duty to retreat also applies only to the use of deadly physical force, not to ordinary physical force.²⁷³⁰

Retreat is not required if the defendant was in his dwelling and was not the initial aggressor,²⁷³¹ or if he was a peace officer²⁷³² or was acting at the direction of a peace officer.²⁷³³ With respect to the lack of any duty to retreat while in one’s dwelling, case law has restricted this exception to persons who are in their own homes and has failed to extend it to guests or invitees.²⁷³⁴

A trial judge commits error when he refuses to instruct the jury on the home exception with regard to the duty to retreat.²⁷³⁵ Penal Law § 35.15’s exception exists for someone who would otherwise have to retreat but for the fact that he is in his own home. The exception applies even when the assailant and the defendant share the same dwelling.

A defendant has a duty to retreat from an adversary at his doorstep before using deadly physical force.²⁷³⁶ Deadly physical force is justified if the defendant reasonably believes that the other person is committing or attempting a burglary, and deadly force is specifically authorized by the statutes governing the use of force in defense of a person in the course of a burglary²⁷³⁷—also when the defendant reasonably believes...