New York Criminal Law: The Affirmative Defense Part I

An experienced and skilled New York criminal attorney should be able to advise you on possible and potential defenses to the crimes you stand accused of in any New York jurisdiction from Manhattan and Brooklyn to White Plains and Yonkers. For example, you may have an alibi in a Burglary case, the gun you are charged with possessing was inoperable in a Criminal Possession of a Weapon case or maybe the alleged stolen proceeds you possessed were aggregated or added up improperly in a Grand Larceny case. Even better yet, maybe you just did not commit any crimes!!

While the above scenarios are merely hypothetical examples, an examination of New York criminal law reveals that at trial, an accused may have a defense that is or is not an “affirmative defense.” Generally, according to Article 25 of the New York Penal Code, if a defendant raises a defense at trial the People, also called the prosecution, have the burden of disproving the defense beyond a reasonable doubt. This means that once set forth, the prosecutors must prove to the jury or the judge beyond a reasonable doubt that the defense is not legitimate. On the other hand, certain statutes set forth an “affirmative defense” that the defendant, not the prosecution, has the burden of establishing beyond a preponderance of the evidence.

So, when is a defense to a crime an “affirmative defense” that you and your criminal defense attorney must prove beyond a preponderance of the evidence as opposed to a “regular”defense that the prosecution must disprove beyond a reasonable doubt. The answer to this question is to look specifically at the statute of the crime you are charged with.

For example, in a prosecution for Grand Larceny or Petit Larceny there are two affirmative defenses built into the statute under New York Penal Law 155.15. The first of theses defenses states that where one is being prosecuted for a larceny by trespassory taking or embezzlement, it is an “affirmative defense” that the property was appropriated or taken under a claim of right made in good faith. Additionally, if alleged crime is a larceny by extortion where the extortion was committed by instilling in the victim a fear that he or another person would be charged with a crime, it is an affirmative defense that the defendant reasonably believed the threatened charge to be true and the sole purpose was to compel or induce the victim to take reasonable action to make good the wrong which was the subject of such threatened charge.

While it is important to note that a specific “affirmative defense” is clearly set forth by statute, after reading the paragraph above it is also apparent that the language of the “affirmative defense” may not be so clear. Not only can a NY criminal defense lawyer explain a specific “affirmative defense” a criminal lawyer will also be able to examine the facts of your case to see whether such a defense applies.

Before pleading guilty to any crime or considering to do the same, consult a criminal defense attorney and determine what, if any, type of defense you may have.

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