Last month, one of our clients had his murder conviction reversed by the Appellate Division, Fourth Department, after the trial court belatedly charged the affirmative defense of renunciation over objection (People v Brewer, 2014 WL 2782143, __ AD3d __ [4^th Dept June 20, 2014]).  The court recognized the general rule that a court may not charge an affirmative defense over a defendant’s objection, and acknowledged that the Third Department had adopted a rule that the Court can never charge an affirmative defense without the defendant’s consent (see People v Ciborowski, 302 AD2d 620, 622 [3rd Dept 2003]).  Nonetheless, the Brewer Court declined to adopt such a bright line rule and ruled in dicta that there may be “limited circumstances” when an affirmative defense is the only viable defense and can thus be charged over objection.

This case provides an opportunity to examine New York’s affirmative defenses and also provides an interesting “control” regarding the efficacy of such defenses. 

Brewer was charged with murder in the second degree as both a principal and an accomplice.  In his written statement, Brewer, who was only eighteen years old at the time, admitted that he agreed to kill the victim for $10,000 and was driven from Elmira to Rochester for that purpose.  When it came time to actually pull the trigger however, Brewer stated that the victim locked eyes with him and told him not to do it.  Brewer froze, unable to shoot.  In a rage, Brewer’s co-defendant (who had agreed to hire Brewer) grabbed the gun from Brewer, chased the victim down and shot and killed him.

Brewer went to trial twice on the prosecutor’s theory that he was an accomplice to murder.  At the first trial, renunciation was not charged as an affirmative defense.  The jury deadlocked 10 to 2 for acquittal on the murder count.  At the second trial, after two days of deliberation, the jury sent back a note that they were deadlocked but asked if there were anything in the law about “changing your mind at the last minute.”  The trial court charged them with the renunciation defense, over objection, and the jury convicted Brewer within two hours.

This "experiment” suggests what trial attorneys have always suspected: that if there is any way to advance your theory of defense without an affirmative defense, do it.  New York’s affirmative defenses do two things very well.  First, they act as burden-shifting machines, making the prosecutor’s job much less onerous.  Second, they impose almost unattainable standards on the defendant, in an apparent effort to limit the application of the defense to “deserving” defendants and close the door to the rest of us.

Burden Shift

The difference between an affirmative defense and an ordinary defense is the burden of proof.  An ordinary defense, such as justification or alibi, must be disproved beyond a reasonable doubt by the prosecutor, and the jury must be specifically instructed on this.  In contrast, an affirmative defense imposes the burden of proof (usually by a preponderance of the evidence) on the defendant.  Recognizing this burden, and the unfairness of foisting it on an unwilling defendant, the Court of Appeals has repeatedly reversed cases where an affirmative defense was imposed on an unwilling defendant (see e.g., People v Bradley, 88 NY2d 901, 902 [1996] [extreme emotional disturbance]; People v DeGina, 72 NY2d 768, 776-777 [1988] [entrapment]).

New York Affirmative Defenses

New York Penal Law Article 40 groups the general affirmative defenses that apply to all criminal offenses.

1.       Duress (PL § 40.00) (Defendant must be coerced by the use or threatened “imminent” use of force which a person “of reasonable firmness” would be unable to resist.  This defense is not available if a person intentionally or recklessly placed himself in the position where he or she may be subjected to duress.)

2.         Entrapment (PL § 40.50) (Defendant was actively “induced or encouraged” to engage in crime by a public servant or agent attempting to obtain evidence against him.  Methods used by the public servant or agent must be such to create substantial risk that a person “not otherwise disposed to commit the offense” would commit it.  This defense opens the door to “predisposition” evidence.)

3.     Renunciation (PL § 40.10) (Under circumstances showing “voluntary and complete” renunciation, defendant withdrew from participation and made a “substantial effort” to prevent the crime from happening.  Renunciation is not “voluntary or complete” if it is motivated in whole or in part by a fear of getting caught or a decision to postpone the crime to a later date.)

4.        Mental Disease or Defect (PL § 40.15) (At the time of the crime, as a result of mental disease or defect, defendant lacked substantial capacity to know or appreciate either the nature and consequences of such conduct or that such conduct was wrong. This defense, if successfully asserted, triggers psychiatric examinations to determine whether defendant is mentally ill or dangerously mentally ill pursuant to CPL 330.20.)

To these defenses are added offense-specific affirmative defenses, such as extreme emotional disturbance to intentional murder in the second degree (PL § 125.25 [1] [a]) and “not having any reasonable ground to know a co-defendant was armed with a weapon” to felony murder (PL 125.25 [3][c]).

Conclusion

It is a rare defendant who would be able to surmount the burden of proof necessary to show that he or she is “deserving” of an affirmative defense (as is evident by merely listing their elements).  Indeed, it seems that if the elements of these affirmative defenses were met, the defendant would not face prosecution at all.  Or even if prosecuted, the defendant would not need the actual instructions of these affirmative defenses to be charged to the jury; the jury would likely simply refuse to convict on either a generalized “lack of intent” theory or under its traditional mercy-dispensing authority.

Of course, there are times when you must assert an affirmative defense on behalf of your client.  (Note: Because affirmative defenses impose a burden of proof on a defendant, it is your client, not you as the attorney, who ultimately decides whether to assert the defense, as opposed to the decision to submit a lesser included offense which resides with the attorney [see People v Colville, 20 NY3d 20, 32 (2012)]). 

If your client decides he or she wants to assert an affirmative defense, you should be prepared to accentuate the facts of your case instead of the language of the affirmative defense–which, as was demonstrated in Brewer, will only lead the jury to a conviction where they would otherwise not be so disposed.