Self Defense in a New York Assault Case: Justification & Initial Aggressor

New York Assault arrests easily make up the majority of violence related crimes in New York as a singular group of offenses. Whether the crime is a Domestic Violence offense, a bar fight constituting Third Degree Assault, a misdemeanor Desk Appearance Ticket or a more serious Second or First Degree Assault where either a weapon is used or an alleged victim suffered a serious physical injury, Assault crimes expose those accused to potentially long terms of incarceration. Because of this, it is critical for your New York Assault lawyer or criminal defense attorney to identify potential defenses and pursue the same as soon as he or she is retained. After all, witnesses may forget what happened, defensive injuries may heal over time and other evidence may just be lost.

Before addressing the affirmative defense of “self defense,” also called the defense of “justification,” in a New York Assault arrest, I want to briefly address New York Assault law. Generally, the basic idea or concept of a New York Assault case is that you intentionally (there are reckless crimes as well) cause physical injury to another person. These actions are the elements of Assault in the Third Degree (New York Penal Law 120.00). What enhances the misdemeanor offense to the felony crimes of Second Degree Assault (New York Penal Law 120.05) or First Degree Assault (New York Penal Law 120.10) are such factors as the nature of an injury being classified as “serious physical injury” or the use of a dangerous instrument or weapon during the crime.

Although the different levels or degrees of Assault are certainly relevant in any criminal case, the law of self defense can apply to any of these crimes. This blog entry will address the concept of “initial aggressor” in a self defense case. In other words, can you be the first attacker and then later claim self defense? According to legal decisions and and New York Penal Law 35.15 [1] [b], the answer (general, of course, with exceptions) is “no.”

In Killon v. Parrotta, 513821, NYLJ 1202572721705, at *1 (App. Div., 3rd, Decided August 30, 2012), a civil case involving damages for injuries sustained as the result of an Assault, a prior criminal trial resulted in a favorable verdict for the defense. There, a jury found the defendant justified in the use of deadly physical force. Despite the previous criminal court decisions, as will be described bellow, the Appellate Court found that “the verdict finding that defendant acted in self-defense required a conclusion that defendant was not the initial aggressor in the encounter.”

In examining who the initial aggressor was, the Court reviewed evidence at trial that revealed the defendant became angry after the plaintiff (a complainant in a criminal case) made two threatening phone calls to the defendant. In response, the defendant drove twenty miles to the plaintiff’s home to settle the dispute “man to man.” The defendant parked his car in the plaintiff’s driveway, got out and pointed his headlights at the plaintiff’s porch.

In response to these actions, the plaintiff picked up a maul handle from inside the home and the defendant in return took a baseball bat from his vehicle. Although at least thirty feet away from one another, the two men yelled profanities. The defendant proceeded to the plaintiff’s home and ultimately confronted him face to face on the plaintiff’s porch. More words were exchanged and ultimately the plaintiff swung the maul and the defendant returned with swings of his bat.

At trial, the court instructed the jury that an initial aggressor cannot claim justification. The initial aggressor was the individual who first attacks or threatens the same. However, the court also instructed the jury that verbal threats could not be considered when determining who was the initial aggressor. Despite this, the Appellate Division believed that the jury wrongfully found that justification was a viable defense for the defendant where, as a result of offensive and threatening language in the plaintiff’s phone call, the defendant drove twenty miles to the plaintiff’s home, exited his vehicle and approached the porch. The Appellate Division believed that the defendant forced the encounter instead of withdrawing.

It is worth noting that a judge dissented with this ruling and found that the justification defense was properly established while a concurring judge acknowledge that words can be part of the “initial aggressor” elements.

Just one case in a litany of Assault and self defense decision, InKillon v. Parrotta is worth examination should the allegations against you fit a similar pattern as established there.

To educate yourself about violent crimes in including the various degrees of Assault, New York Domestic Violence crimes and New York Desk Appearance Tickets, please follow any of the links above or review the websites listed below.

Crotty Saland PC is a New York criminal defense firm established by two former Manhattan Assistant District Attorneys. The New York Assault attorneys and criminal lawyers at Crotty Saland PC represent clients throughout New York City and the New York area.

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