New York Criminal Law: The Affirmative Defense Part II

In a previous entry I discussed the general concept of the “affirmative defense.” Now that you have an understanding as to what a New York criminal defense attorney means when referring to such a defense, I wanted to take the opportunity to set forth some specific “affirmative defenses” from the New York Penal Law. Again, these defenses are statutory defenses where your criminal defense attorney bears the burden, and not the prosecution, in proving the defense beyond a preponderance of the evidence. The following are some examples:

New York Penal Law 190.15 – Affirmative Defense for Issuing a Bad Check

It is an “affirmative defense” if the defendant or person acting in his behalf made full satisfaction of the amount of the check within ten days after dishonor by the drawer.

New York Penal Law 190.84 – Affirmative Defense for Identity Theft or Unlawful Possession of Personal Identification Information It is an “affirmative defense” if the defendant was under twenty one and possessed or used the identifying information of another for the sole purpose of purchasing alcohol or was under eighteen and possessed or used the personal identifying information of another person for the purpose of purchasing tobacco. In other words, the New York State Legislature did not want to punish young people who were buying alcohol or tobacco with fake IDs as if they were committing felonies.

New York Penal Law 210.25 – Affirmative Defense for Perjury

It is an “affirmative defense” that the defendant retracted his false statement in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became clear that its falsity was or would be exposed.

New York Penal Law 135.30 – Affirmative Defense for Kidnapping

It is an “affirmative defense” that (a) the defendant was a relative of the person abducted, and (b) his sole purpose was to assume control of such person. New York Penal Law 130.10 – Affirmative Defense for Rape and Other Sex Offenses

It is an “affirmative defense” of any prosecution under this article in which the victim’s lack of consent is based solely upon his or her incapacity to consent because he or she was mentally disabled, mentally incapacitated or physically helpless, it is an affirmative defense that the defendant, at the time he or she engaged in the conduct constituting the offense, did not know of the factors or conditions responsible for such incapacity to consent.

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