Court of Appeals Grants Leave to Review the Denial of a Justification Defense

Yesterday, Hon. Jenny Rivera of the New York Court of Appeals granted leave to appeal in one of OAD's cases. Our client was convicted of second-degree assault after getting into a bar fight during which he threw a pint glass at the complainant. The second-degree assault charge was premised on the theory that throwing the glass constituted use of a “deadly weapon or dangerous instrument.” The record was undisputed that the complainant initially pushed OAD's client but the trial court refused to instruct the jury on justification because it essentially held that the use of a dangerous instrument can never be justified against an unarmed complainant. The court would only give a deadly force justification instruction -- i.e., that OAD's client was justified in throwing the glass only if he was being confronted with deadly physical force -- but not an ordinary force justification instruction. You can read the underlying decision here. This case was litigated by OAD Supervising Attorney, Eunice Lee, and Matt Wilkins of Jenner & Block who, as a student in OAD's Criminal Appeals clinic at NYU Law School, argued the case in the Appellate Division and in the leave conference.