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When Is Homicide Justifiable in New York?

Manhattan District Attorney Alvin Bragg filed a motion to drop murder charges against a bodega worker in July 2022 after determining there was evidence he acted in self-defense. Earlier that month, deli clerk Jose Alba stabbed a man who stormed him behind the counter. Alba was initially charged with second-degree murder.

This case and others have shined a spotlight on New York’s self-defense laws:

New York has self-defense laws that allow people to defend themselves against a threat. But when self-defense is needed can be up for debate.

Self-defense is an affirmative defense used against various criminal charges:

A declaration of self-defense is not enough to escape criminal charges. A well-argued self-defense strategy backed by evidence can mean the difference between freedom and spending years in state prison.

New York’s Justifiable Use of Force

Article 35 of the Penal Law of New York addresses when force is justified:

“A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person … .”

The person who started the altercation cannot claim self-defense unless the other person continues the incident after the initial aggressor withdraws. Deadly force can only be used if they reasonably believe that the other person is using or about to use deadly force.

New York does not allow the use of deadly force to counter nonviolent property crimes such as someone breaking into an unoccupied vehicle.

Physical force, but not deadly force, can be used to prevent or stop the following:

  • Larceny
  • Criminal mischief
  • Burglary

Duty to Retreat vs. Stand Your Ground

The Empire State is one of about a dozen states that impose a duty to retreat in its self-defense laws. This duty requires the person to first attempt to escape the confrontation before resorting to force. The exception to New York’s duty to retreat is when they are in their home. This concept is referred to as the Castle Doctrine, where you do not have to retreat in your “castle” – typically your home, your car, or another personal setting.

New York Sen. George Borrello introduced a bill in January 2022 that would remove the duty to retreat in all self-defense circumstances and provide immunity from civil lawsuits. The bill has not moved forward.

In Stand Your Ground laws, there is no duty to try to flee the scene before using force. Stand Your Ground laws apply to public settings as well. New York does not have a Stand Your Ground law.

The Right to Defend Yourself in New York

If you use physical force – even deadly – to protect yourself or others, you must have an attorney experienced in arguing self-defense. You need to call our attorneys at Collins Gann McCloskey & Barry PLLC.

We doggedly defend our clients against even the most serious offenses. We understand that your future is at stake. Tell us about your case. Contact us online or (516) 218-5131.