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liibulletin-ny

Matter of Y.K.(Anonymous), 87 N.Y.2d 430 (February 15, 1996).

CRIMINAL LAW - JUSTIFICATION DEFENSE - DEADLY PHYSICAL FORCE - FAMILY COURT

IF DUTY TO RETREAT MAY NOT BE EXERCISED SAFELY, ONE MAY IGNORE IT AND RESPOND TO DEADLY PHYSICAL FORCE IN LIKE MANNER

[SUMMARY] | [ISSUES & DISPOSITION] | [AUTHORITIES CITED] | [COMMENTARY]

SUMMARY

On May 7, 1992, the 13 year old defendant was walking home with two friends when a group of ten to fifteen boys and girls from her school confronted her. Defendant was threatened verbally, then one girl after another ran up behind her, and hit her on the head. Defendant's companions fled to a nearby subway station for safety, but defendant, fearing that she might get trapped or thrown onto the subway tracks, decided to continue walking. She noticed a kitchen knife on the sidewalk, and placed it inside of her jacket. Another girl approached the defendant from behind and hit her. Defendant then turned toward the group and began fighting with the complainant until the two either fell or were pushed to the ground by the group of boys and girls. While on the defendant, the complainant punched her head and chest. Members of the group cheered and kicked defendant's body, head, and face. Defendant estimates that she was beaten for five to eight minutes before she "'couldn't take it anymore.'" She removed the knife from her jacket while she was still pinned to the ground, and stabbed the complainant in the head and back. This continued until the police arrived.

The Family Court found that defendant "was assaulted [] without provocation,' was in fear' and was terrified'" by the attack. (Alteration in original). Family Court found that defendant's failure to retreat to the subway station was not objectively reasonable and thus rejected the defendant's justification defense. The Appellate Division reversed. CPLR § 5601(a) requires that the Court of Appeals hear this case because it originated in the Family Court and two judges dissented at the Appellate Division on the determination of the appropriate legal standard for the justified used of deadly physical force under Penal Law § 35.15.

ANALYSIS

ISSUES

Whether a defendant, when confronted with deadly physical force may respond with deadly physical force to defend herself, if she cannot safely exercise her duty to retreat.

DISPOSITION

Yes. A unanimous court decided that defendant, when confronted with deadly physical force, was justified in responding in like manner because she could not retreat safely.

CASES CITED

Key

  • People v. Goetz, 68 N.Y.2d 96 (N.Y. 1986).
  • People v. McManus, 67 N.Y.2d 541 (N.Y. 1986).
  • People v. Watts, 57 N.Y.2d 299 (N.Y. 1982).

Cited

  • People v. Collice, 41 N.Y.2d 906 (N.Y. 1977).

OTHER SOURCES

Cited by Court

Related Sources

  • Craig v. State, 660 So.2d 1298 (Miss. 1995).
  • Culverson v. State, 797 P.2d 238 (Nev. 1990).
  • Fuller v. State, 620 So. 2d 669 (Ala. 1991).
  • People v. Bush, 111 N.E.2d 326 (Ill. 1953).
  • People v Turner, 269 P. 204 (Cal. 1923).
  • State v. Brown, 414 So. 2d 726 (La. 1982).
  • State v. Reese, 79 A. 217 (Del. 1911).
  • State v. Haakenson, 213 N.W.2d 394 (N.D. 1973).
  • Tice v. State, 382 A.2d 231 (Del. 1977).
  • State v. T.N., 650 So. 2d 288 (La. 1995).
  • Alabama Code 1975 § 13A-3-23(b).
  • Alaska Stat. § 11.81.335(b)

COMMENTARY

Court's Reasoning

The Court of Appeals explained that a person may use proportional force to defend herself against attack if she subjectively and reasonably believes the use of such force is justified. Thus, one may justifiably use "deadly physical force" to defend herself from what she "reasonably believes to be the use or imminent use of unlawful physical force." Moreover, one may justifiably use "deadly physical force" if she "reasonably believes that such other person [attacking her] is using or about to use deadly physical force." N.Y. Penal Law § 35.15 (McKinney 1987). Citing People v. Goetz, 68 N.Y.2d 96 (N.Y. 1986), the Court emphasized that if a defendant attempts to justify her use of force, the factfinder must determine three things before it may agree. First, the factfinder must determine whether the defendant subjectively believed the use of force was necessary. Second, the factfinder must determine whether a person similarly confronted would have reasonably believed the use of force was necessary. Citing Penal Law § 35.15(2)(a), the Court explained the third requirement. When one believes that the use of deadly force is justified, one has a duty to retreat before using such force if one knows one can do so with complete safety. The Court noted that the People bear the burden of disproving the justification defense. Penal Law § 35.00; Goetz, 68 N.Y.2d. at 116; People v. McManus, 67 N.Y.2d 541, 546 (N.Y. 1986).

Applying the law to the present case, the Court of Appeals determined that defendant was initially confronted with physical force and, therefore had no duty to retreat. She was justified in responding with physical force when she chose to turn and face her assailants. After defendant's assailants surrounded her and threw her to the ground, the episode became deadly. The court stated that defendant's duty to retreat arose at that instance. Despite this legal trigger, defendant was unable to retreat safely; her assailants had pinned her to the ground. Acknowledging this, the court held that defendant was justified in using deadly physical force to defend herself.

Survey of Law in Other Jurisdictions

  • ALABAMA: Alabama Code 1975 § 13A-3-23(b) disallows use of deadly force in self-defense where it appears or the defendant knows that he can avoid such force with complete safety by retreating. Moreover, use of deadly force in self-defense may only be invoked in cases of imminent, and not merely prospective, harm. Fuller v. State, 620 So. 2d 669 (Ala. 1991).
  • ALASKA: Alaska Stat. § 11.81.335(b) disallows use of deadly force in self-defense "if the person knows that, with complete personal safety and with complete safety as to others, the person can avoid the necessity of using deadly force by retreating." The statute contains the traditional common-law exception allowing self-defense in the defendant's domicile.
  • CALIFORNIA: If circumstances would lead reasonable person to believe that he is in danger of death or great bodily harm, retreat is not necessary before killing in self-defense against an attack. People v Turner, 269 P. 204 (Cal. 1928).
  • DELAWARE: State common law is still guided by the principle of State v. Reese, 79 A. 217 (Del. 1911), which states that the defendant has a duty to retreat if he can do so safely, or use other reasonable means within his power to avoid killing his assailant. This principle was most recently upheld by the state Supreme Court in Tice v. State, 382 A.2d 231 (Del. 1977).
  • ILLINOIS: Illinois has no requirement of retreat, where defendant is put in apparent danger of his life or of great bodily harm. In such a case, a defendant may repel "force with force,"even to the point of killing his assailant, if necessary or apparently so, to prevent bodily harm. People v. Bush, 111 N.E.2d 326 (Ill. 1953).
  • LOUISIANA: In Louisiana "there is not an unqualified duty to retreat," but "the possibility to escape is a recognized factor in determining whether a defendant had the reasonable belief that deadly force was necessary to avoid the danger." State v. Brown, 414 So. 2d 726, 729 (La. 1982); State v. T.N., 650 So. 2d 288, 289 (La. 1995).
  • MISSISSIPPI: Mississippi denies the self-defense justification if the defendant could have avoided the threat to his safety by escaping. Mississippi requires a jury to find that "the danger was so urgent that the defendant had no reasonable mode of escape," "before the jury . . . accept[s] the theory of self-defense." Craig v. State, 660 So. 2d 1298, 1300 (Miss. 1995).
  • NEVADA: A person who is not the original aggressor has no duty to retreat before using deadly force, if a reasonable person in the position of the non-aggressor would believe that his assailant is about to kill him or cause him serious bodily harm. Culverson v. State, 797 P.2d 238 (Nev. 1990).
  • NORTH DAKOTA: In North Dakota, there is no invariable duty to retreat to safety, even where defendant had a full and ample opportunity to flee. The reasonableness and fact of aggression by one party against the other are circumstances which the jury may consider in deciding whether the right of self-defense exists. Furthermore, flight is not required where it continues or increases the danger. State v. Haakenson, 213 N.W.2d 394 (N.D. 1973).

Implications and Unanswered Questions

Trial level courts must clearly define the threshold burden of proof in cases involving the use of physical force. In reaffirming Goetz, the New York Court of Appeals stated which parties bear the burden of proof in determining an assault victim's use of physical force. The Family Court in the present dispute failed to state whether the People had proved the absence of the elements of the offered justification defense. Thus, it was duly determined to have improperly shifted the burden of proof to the appellant. Matter of Y.K., 624 N.Y.S.2d 243 (N.Y. App. Div. 1995). Trial courts, as fact finders, are on notice to properly and clearly define the burden of proof in their decisions.

Still unanswered with the court's decision in Matter of Y.K. are (1) whether the test for an assault victim's duty to retreat is subjective or objective, and (2) which party has the burden of proof concerning the duty to retreat. Although knowledge of a possible safe retreat defeats a justification defense, it is unclear from the court's decision whether such knowledge is judged under a subjective or an objective test. The words of Penal Law § 35.15(2)(a) imply a subjective test.

The knowledge of the particular party offering the justification defense may be the proper test, or the court may look to the knowledge of a reasonable person similarly situated. Moreover, the court has not indicated whether the party offering the justification defense has the burden of proof regarding the availability of retreat, or whether the People bear this burden.

Prepared By:

  • Adam R. Fox, '96
  • H. Marlow Green, '97
  • Robert D. Grauer, '96
  • Edward M. Lilly, '96
  • Anne Myers, '97
  • Michael Peil, '97
  • Mary E. Windham, '97