Articles Posted in Self Defense

As we have discussed, the defense of justification, or self-defense is one of the most important defenses that exist in New York criminal law.  Once the defense of self defense is raised the burden is on the prosecution to disprove self-defense beyond a reasonable doubt.  Recently, the Appellate Division, Second Department in New York denied a defendant’s appeal in a 2019 assault case in which the defense of self-defense was raised. Faced with the defendant’s appeal, the court looked at the entire trial record to see if it agreed with the defendant’s claim that he acted in self-defense. The Court pointed out that many of the issues raised on appeal were unpreserved for appellate review.  Ultimately deciding the defendant’s argument was not persuasive, however, the court denied his appeal and kept the defendant’s original conviction and sentence in place.

The Facts of the Case

According to the opinion, the defendant faced criminal charges after he hit the victim of his in the face with an unknown hard object. The defendant hit the acquaintance multiple times with the object, then proceeded to punch him in the face. After the incident, the victim was rushed to the hospital, where he received emergency treatment and reconstructive surgery for his injuries.

The State charged the defendant with assault in the first degree. His case went to trial, after which a group of jurors unanimously found him guilty. The court sentenced the defendant to time in prison, and he promptly appealed. The higher court issued a decision on the appeal in July 2023.

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Last month, the defendant in a New York assault case challenged the constitutionality of a rule that worked against him in his 2018 jury trial. This case is a very important case about the limits of evidence of prior bad acts of the victim in self-defense cases.  Originally, the defendant was charged with assault in the second degree after an altercation between him and another individual. His case went to trial, the defendant was found guilty, and he promptly appealed. The Appellate Division affirmed the verdict, and the defendant challenged the order of the Appellate Division, hoping again to get his conviction reversed. Ultimately, the Court of Appeals, New York’s highest Court, reviewing the defendant’s second appeal disagreed with him and sustained the guilty verdict.

Facts of the Case

According to the opinion, the defendant stabbed another individual with a penknife after the two strangers began arguing. Officers quickly arrived at the scene, and the defendant was charged with assault. When the case went to trial, the defendant argued that he was acting in self-defense. As evidence that he was not the first aggressor, the defendant tried to introduce evidence of the victim’s past criminal history which included a history of attacking strangers.

The victim’s prior criminal acts were referred to as “youthful offender adjudications,” meaning the acts happened when the victim was between the age of 16 and 19 years old. Under New York law, some of these criminal acts can be sealed so that no one can later access the records. The sealing takes place largely because the State recognizes that youth deserve the chance to start adulthood with a clean slate after their brains have fully developed.

Because these acts were sealed under the law, the trial court allowed the defendant to use them as evidence in his case for only the limited purpose of determining the victim’s credibility but not for determining whether the victim was in fact the initial aggressor. The jury ultimately found the defendant guilty, and the defendant’s series of appeals began.

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As New York Self Defense lawyers, and as the providers of the only pre-paid legal plan for gun owners available in New York, we actively monitored the Kyle Rittenhouse case with both shock and amazement.  Shock at the fact that the case was brought but also amazement at the lengths the prosecutor would go to get a conviction.  To be clear, the jury verdict was correct and Kyle Rittenhouse appeared justified to use deadly physical force to protect his own life.  At the very least, it is clear, that there was a reasonable doubt about whether he reasonably believed that deadly physical force was necessary to protect his own life, thus justifying the jury verdict.

The prosecutions’ own witnesses largely helped the defense.  The testimony of the only surviving “victim” Gage Grosskreutz was critical for the prosecution but turned out to help the defense case when he admitted that Kyle Rittenhouse didn’t shoot him until he pointed a weapon at Rittenhouse and advanced toward him pointing a gun.  The testimony of another prosecution witness, Richard McGinniss, also severely damaged the prosecution’s case when he testified that Joseph Rosenbaum, who was shot and killed by Rittenhouse seemed very angry as he lunged for Rittenhouse’s gun.  Presumably, the prosecutor knew what these witnesses were going to say.  Presumably, the prosecutor had interviewed these witnesses and prepared them for their testimony and cross-examination.  Yet the case was brought anyway.

Additionally, the prosecutor’s cross-examination of Kyle Rittenhouse himself, shows a certain level of desperation.  The prosecutor asked Mr. Rittenhouse about his post-arrest silence, a clear no-no which provoked a severe rebuke from the judge.  That line of questioning was really bewildering considering that even a first year law student who has taken basic Constitutional Law would know not to ask a defendant about his post arrest silence.  Then the prosecutor, in violation of the trial judges pre-trial rulings went into an area of questioning that he was specifically ordered by the judge not to ask.  However, one of the most surprising and truly desperate questions came when the prosecutor asked Rittenhouse if his user name on TikTok was “4doorsmorewhores” in an attempt to make him look dirty.

Tilem & Associates, New York’s premier law firm for gun owners is pleased to announce the creation of a new pre-paid legal program, NY Tac Defense,  for New York gun owners which includes legal representation for self-defense Pre-Paid Legal services for gun ownerscases and red flag (ERPO) cases for enrolled clients.  Clients enrolled in the NY TAC DEFENSE can pay either a low monthly rate of $38.50 per month or can enroll in a discounted annual plan which is $385 for the year and is the equivalent of getting two months free.

Peter H. Tilem, the owner of Tilem & Associates, PC, spent 10 years in the New York County District Attorney’s Office where he was assigned to work on a variety of cases which included gun cases and homicides.  Since entering private practice Mr. Tilem has represented a large number of gun owners and has been involved in many justification or self-defense cases.

As of May 2018, several insurance programs, including NRA Carry Guard and a USCCA (United States Concealed Carry Association) program were being offered in New York but were subsequently alleged to be violating New York insurance regulations.  Both programs and others have since pulled out of the New York market.  The NY TAC Defense Program is a pre-paid legal product that allows clients to retain the firms services and pre-pay the legal services so that if they need to hire a lawyer for a self-defense shooting the client will not need to come up with a large lump sum retainer of $50,000 or more to retain a law firm.  It is not insurance and therefore does not indemnify against any losses.  It is simply an opportunity to retain a lawyer in advance.

New York Self-Defense laws give a person broad authority to use physical force and even deadly physical force to defend themselves and to defend others from attack.  Article 35 of the New York Penal Law creates a defense to even the most serious criminal charges such as murder, attempted murder, assault and attempted assault.  The question is what do you do in the aftermath of a self defense shooting?  Who do you call?  What do you do?  What do you say?  Do I need an attorney?  How do I find the right attorney?  Will I be arrested?  Will I be charged with a crime?  Could I be charged with murder? Assault?  Attempted Murder? Reckless Endangerment?

The immediate aftermath of a New York self-defense incident are critical.  Some of the considerations are tactical and not legal such as what do I do with my weapon before the police arrive?  There are some excellent articles that you should read by the USSCA and the NRA about those issues.  It is important that your weapon be safeguarded and not hidden so that when the police arrive you do not appear to be a threat.  Remember, you are shaken up, in shock and not reasoning or thinking clearly.  If possible, someone else should call 911, which will be the first statement about the incident to law enforcement and will be recorded.  That recording may very well end up being played in Court either during proceedings brought against you or your attacker.  Make sure that medical help is requested either for you or your attacker or both.  If anyone asks are you ok the true answer to that question is that you don’t know.  Adrenalin will be pumping you may be physically injured or in shock.

It is important that you not touch or tamper with the crime scene and probably is better in most circumstances to stand away and not attempt to render aid to your attacker.  When the police arrive it is important that you not present as a threat.  Make sure that you are not displaying a weapon, even if its holstered.  As criminal defense attorneys we always recommend not speaking to the police but in the unique situation of a self defense shooting we recommend a small modification of that general rule.  Have a short, one or two sentence, statement ready for the police just to start their investigation on the right track and then invoke your right to counsel.

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