by: Mace H. Greenfield

Affirmative defenses and ordinary defenses are the two types of defenses which are found in the penal laws and can be utilized in either a criminal court or family court family offense proceeding. Since family offenses are based on and defined in the penal laws, it is both common sense and case law that the defenses to a family offense are to be found within the penal laws. Affirmative defenses include duress, entrapment, mental disease or defect and renunciation. Ordinary defenses, also referred to as simple defenses, are usually just called “defenses” and include infancy and justification.

In People v. Vasquez, the appellate court found that the raising of the justification defense as opposed to any other defense is that the burden of proof shifts, and the petitioner must then disprove the “defense.” Should the respondent attempt to use an affirmative defense, the burden to prove this defense will be the respondent’s. By raising an affirmative defense, the respondent basically admits the offense and attempts to avoid the law. We will not explore this defense in this article, we will mostly concern ourselves with the “defense” of justification.

The appellate court in People v. Dare, held that the defense of justification is not limited to any particular crime involving use of force or any particular mens rea. By raising the justification defense, the respondent seeks to negate the mens rea of the offense alleged. For example, in a harassment allegation which requires the mens rea of “intent to” harass, alarm or annoy, the respondent asserts that his intent was not to harass, alarm or annoy. In one of the offenses requiring the mens rea of recklessness or negligence, the respondent asserts that his intent was to defend himself or another “from what he reasonably believed was the use or threatened use of unlawful physical force,” because the appellate court in People v. Clouette, held that justification is a proper defense to recklessness. In other words, the justification defense requires the assertion of the respondent’s state of mind at the time of the family offense was allegedly committed.

When the defense of justification is raised, it should be assessed as to the reasonableness of respondent’s belief that he or she was in deadly peril. The situation should be judged from the point of view of the respondent, placing one’s self as though he was actually in the respondent’s place. In deciding the question of reasonableness, one must consider circumstances in which the respondent found himself or herself, as well as other characteristics and attributes of the petitioner and respondent. The court of appeals in People v. Wesley, held that the justification should be assessed from a respondent’s circumstances and position; standing in respondent’s shoes. However, to assert the defense of justification to an allegation of attempted assault is to admit the essential element of intent to commit the assault.

To prove the requisite state of mind for those family offenses for which state of mind is relevant, the appellate court in People v. Loria, held that allegations of prior attacks or threats are admissible, not as truth of the evidence presented, but rather to prove the state of mind of the respondent, even if the threats were related to him by a third person. Further, in both Loria and People v. Dixon, the appellate courts have held that such evidence does not constitute inadmissible double hearsay if it is not introduced for truth of matter asserted, but rather to establish the states of mind of both respondent and petitioner.

In People v. Macklowe, the appellate court found that in order to use the justification of self-defense, it must be established that the duty to first attempt to retreat where reasonable was exercised. Thus, in In re Y. K., the appellate court held that a failure to retreat must be objectively reasonable, and the victim must be blameless and not have provoked the attack from which he or she is defending himself or herself.

However, in People v. Gibaldi, the criminal court held that the justification defense will fail, even if respondent fears for his or her safety due to a previous incident, if respondent hits petitioner several times, never having been struck by petitioner. In contrast, in People v. Williams, the appellate court found that the assertion of justification against an allegation of third degree assault arising from a stabbing is permissible, when, in the course of being beaten by petitioner, respondent perceived that the petitioner is about to take a weapon from his or her pocket and use it against him or her. But, in People v. Henegan, the appellate court held that if the petitioner was disarmed of the weapon prior to respondent inflicting a stab wound, then the justification defense will fail because the respondent could not have “reasonably believed” that the petitioner would have used imminently deadly physical force compelling respondent to use deadly physical force to avert a perceived threat. In addition, in People v. Spotfordt, the appellate court found that a respondent’s prior acts of violence against petitioner are relevant to the issue of intent to counter the defense of justification, and to show absence of mistake or accident.

Moreover, in People v. Bruner, the appellate court held that statements allegedly made by a petitioner during a prior altercation between the petitioner and respondent, are admissible to prove the petitioner’s potential to be the aggressor. These statements may also be used to show that the respondent had reason to fear petitioner, in order to support a justification defense, and are not to be excluded as hearsay. Such statements are admissible as an out-of-court statement to show states of mind of petitioner and respondent, and not for their truth.

In a recent interesting case, a custodial parent filed a petition against her spouse in family court, Nassau County, for an order of protection for his having shoved her. Simultaneously, the non-custodial parent filed a petition against the custodial parent in family court for interference with his visitation. He had left their eight year old daughter with his girlfriend, at the liquor store where his girlfriend works, while he brought his ten year old son to little league baseball practice. The custodial parent, it seems, had told the non custodial parent many times prior that she didn’t approve of the children being left at the liquor store, and therefore picked up their daughter from the liquor store. The girlfriend beeped the non-custodial parent and informed him of this. He went to the site of the custodial parent’s job, and an argument ensued. He shoved her and took his child back. The custodial parent was refused an order of protection by Judge Medowar, because she had provoked her ex-husband, by interfering with his visitation.

© 1997 All rights reserved.