IN THE MATTER OF Y. K. (ANONYMOUS), RESPONDENT, COMMISSIONER OF SOCIAL
SERVICES OF THE CITY OF NEW YORK, APPELLANT.
87 N.Y.2d 430, 663 N.E.2d 313, 639 N.Y.S.2d 1001 (1996).
February 15, 1996
(Case Commentary by Editorial Board)
2 No. 22(1996 NY Int. 28)
Decided February 15, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Elizabeth I. Freedman, for Appellant.
Judith Waksberg, for Respondent.
SIMONS, J.:
Family Court has adjudged respondent a juvenile delinquent because
she committed acts which, if committed by an adult, would constitute
assault in the second and third degrees and criminal possession of a
weapon in the fourth degree. A divided Appellate Division reversed the
order of disposition, denied the petition and dismissed the
proceeding. The majority concluded that the People had failed to
disprove respondent's justification defense.
The question to be decided is the appropriate legal standard for the
justified use of deadly physical force under Penal Law § 35.15 and its
application to the facts of this case.
I
We are confronted at the outset by inconsistent findings of fact in
the courts below. Under those circumstances, we must choose which
findings more nearly comport with the evidence in the record. We adopt
the findings of the Appellate Division. Those facts, with others that
are undisputed, establish that on May 7, 1992, respondent, then age
13, was walking home with two friends when she was set upon by a group
of ten to fifteen boys and girls from her school. While some in the
group shouted threats, first one, then another, girl ran up behind
respondent and hit her on the head. Her companions fled to a nearby
subway station for safety but respondent, fearing that she might get
trapped or thrown onto the subway tracks, decided to continue walking.
As she did so, she noticed a kitchen knife on the sidewalk, picked it
up and held it inside her jacket. At this point, another girl
SNIPPETS:
Judith Waksberg, for Respondent.
Family Court has adjudged respondent a juvenile delinquent because she committed acts which,
A divided Appellate Division reversed the order of disposition, denied the petition and
The question to be decided is the appropriate legal standard for the justified use of deadly
we must choose which findings more nearly comport with the evidence in the record.
Her companions fled to a nearby subway station for safety but respondent, fearing that she
Respondent turned toward the group and began fighting with complainant until the two girls
Complainant ended up on top of respondent and continued punching her in the head and chest
she removed the knife from her jacket and stabbed the complainant in the head and back.
Although it found that respondent was "assaulted without provocation," "was in fear" and "was
The defense of justification permits the use of force under certain circumstances (see,
There is no duty to retreat before using physical force but one may not use deadly physical
we explained that the justification statute imposes a two-part test which involves both
When a defendant claims the use of force was justified, the factfinder must first determine
If the People fail to disprove defendant believed physical force was necessary, the
Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Ciparick concur.
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