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“non-deadly” force. “Deadly” force has different rules and is not discussed here. But if an assault is charged as a misdemeanor, then likely the injuries were not severe and self defense rules regarding the use of non-deadly force would apply. Otherwise, if the injuries from an alleged assault are serious, or if a deadly weapon or dangerous instrument was used, the prosecutor would have sought or will seek an Indictment for felony assault or even attempted murder.

But, as always, the law is very tricky and self defense is a very tricky defense. There is a very fine line between what constitutes self defense and what does not, so anyone charged with assault should discuss “self defense” with their lawyer. Often, persons in New York charged with assault confuse conduct that constitutes retaliation with justifiable self-defense conduct. In New York, a person may only use physical force upon another individual when, and to the extent that, he/she reasonably believes it to be necessary to defend himself/herself or a third party from what he/she reasonably believes to be the use or imminent use of unlawful physical force by such individual. Inflicting injury on an individual due to an earlier use of unlawful physical force by that individual—after the danger has passed-- is usually not going to be justifiable as self defense

In New York, A person has to REASONABLY BELIEVE that physical force is necessary to defend himself/herself or a third part from what he/she reasonably believes to be the use or imminent use of physical force by another individualThe “reasonable belief” prong requires the application of a two-part test:1. First, the defendant must have actually believed that

the individual was using or was about to use physical force againsthim/her or a third party, and that the defendant’s own use ofphysical force was necessary to defend himself/herself ora third party from it; and

2. a “reasonable person” in the defendant’s position,

knowing what the defendant knew and being in the same

circumstances, would have had those same beliefs.

It is interesting to note that New York law provides that whether the defendant was or may have been mistaken in his/her belief does not matter, as long as such belief was both honestly held and reasonable.

But it is also clear that the “iminent” “using” and the “about to use” language noted above does not allow for a self defense theory when the threat of physical force has passed and the ensuing assault is just retaliatory conduct.

Also, even if the threat of physical force is imminent, under New York Law of Assault the defendant would not be justified in assaulting someone (using physical force with intent to cause physical injury if:

1. Defendant was the initial aggressor, except—even if the initial aggressor, the defendant’s use of physical force would be justified if he/she had withdrawn from the encounter and effectively communicated such withdrawal to the other person but the other person persisted in continuing the incident by the use or threatened imminent use of unlawful physical force.

Under New York Law, the “Initial aggressor” means the person who firstattacks or threatens to attack; that is, the first person who uses or threatens the imminent use of offensive physical force. The actual striking of the first blow orinflicting of the first wound, however, does not necessarily determine who was the initial aggressor.

A person who reasonably believes that another is about to use physical force upon him/her need not wait until he/she is struck or wounded. He/she may, in suchcircumstances, be the first to use physical force, so long as he/she reasonably believed it was about to be used against him/her or someone else. He/she is then not considered to

be the “initial aggressor,” even though he/she strikes the firstblow. New York law says that arguing, using abusivelanguage, calling a person names, unaccompanied by physical threats or acts, does not make a person an initial aggressor and does not justify physicalforce by another.

2. The defendant would not be justified if the other person's conduct was provoked by the defendant himself/herself with intent to cause physical injury to the other person.

3. The defendant would not be justified if the physical force involved was the product of a combat by agreement not specifically authorized by law.

(4) A person may not use physical force to resist an arrest, whether authorized or unauthorized, which is being effected or attempted by a police officer or peace officer when it would reasonably appear that the latter is a policeofficer or peace officer.In summary, Self Defense as a justification to an assault is very complicated and should be discussed with a lawyer who understands the intricacies and nuances of this area.

The Defense of Self Defense to a misdemeanor Assault charge in New York

​A. The Defense of Self Defense (using non-deadly force) to a misdemeanor assault charge in New York is complicated and can be very difficult to litigate.

​​What follows are some rules taken mainly from the “non-deadly force” self defense jury instruction in New York which is critical to understanding just how self defense might be used in an assault case. These rules apply mainly to a misdemeanor assault charge in New York since they are rules regarding the use of

Self Defense