It all started when an 8th grader decided to wear his mother’s wig to school as a joke.

What could go wrong?

Apparently, a great deal. By the end of the day that awesome judgment call had cost the wig wearer an eye, within weeks leading to a juvenile hate crime conviction on the 7th grader responsible for the injury, and as of this week led the Appellate Division of the Supreme Court of the State of New York to reverse that conviction on self-defense grounds (PDF of the decision and order to reverse is embedded below).

(Note: New York is one of a small number of states in which “Supreme Court” does NOT refer to the highest court in the state.  In New York that highest court is instead referred to as the Court of Appeals–a term that in most states refers to the court of intermediate jurisdiction.)

On June 5, 2012, the (then) 8th grade complainant, as mentioned, decided to wear mom’s wig to Junior High.  Shockingly, other students began to taunt him over this, among them a group of 7th graders that included Mondy E., the appellant.  Also shockingly, their taunts included anti-homosexual/transgender epithets, thus opening up the “hate crimes” can of worms. The complainant asked the taunters to stop, which had the efficacy one might expect under the circumstances.

One of Mondy’s fellow 7th graders approached the complainant and continued his taunting at close range. Mondy decided to join his classmate.  Soon a physical fight was in progress.  The 8th grader was wearing, in addition to mom’s wig, a pair of eye glasses with an already cracked lens. One of the Mondy’s blows further fractured the lens, driving a piece of the lens into the complainant’s eye, permanently blinding him in that eye.  Much of the fight was caught on surveillance video.

The authorities initiated a juvenile delinquency proceeding against Mondy in Family Court alleging that had his conduct been committed by an adult it would have constituted third degree assault as a hate crime, third degree menacing as a hate crime, and fourth degree criminal mischief as a hate crime.

Mondy relied on a defense of self-defense.

On April 26, 2013 (10 months after the fight) the Family Court deemed Mondy’s claim of self-defense disproved beyond a reasonable doubt and adjudged him a juvenile delinquent, placing him on probation for 18 months.  Mondy filed his appeal the same day, and the Appellate Division handed down its decision this week, reversing lower court’s findings and dismissing the charges.

In its decision the Appellate Division noted some of New York State’s requirements for self defense relevant to this case:

The defense of justification is available where, inter alia, the actor is acting in self- defense and the actor was not the initial aggressor (see Penal Law §§ 35.05, 35.10, 35.15; People v Petty, 7 NY3d 277, 284-285). . . . Where this defense is raised, the presentment agency must disprove it beyond a reasonable doubt (see Penal Law §§ 25.00, 35.00; Family Ct Act § 303.3).

They then applied these requirements to the facts of the case, effectively conducting their own fact-finding of the underlying evidence, particularly the surveillance video.

(Note that in general appellate courts shy away from reinterpreting evidence, and stick only to determining whether the law was properly applied to the evidence as interpreted by the lower court.  A major rationale for this is that it appellate court cannot, for example, replicate the experience of seeing witnesses testify on the stand as could the finder of fact at trial.  In this case, it appears they relied primarily on the surveillance tape–which obviously does not change from trial to appeal–and on varied concessions by the parties.)

Of particular emphasis in the appellate court’s review of the evidence was the question of whether Mondy was the initial aggressor in the fight.  As noted, the initial aggressor cannot justify their use of force as self-defense.  There was, indeed, some conduct on the part of Mondy arguably suggestive of  initial aggression, but the appellate court decided in each instance that the the conduct was insufficient to assign Mondy that status and thereby strip him of self-defense:

An actor is not the initial aggressor where his or her conduct consists of “mere insults as opposed to threats”. . . . Here, although the evidence established that the appellant verbally threatened to “slap the glasses off [the complainant’s] face,” the complainant testified that the appellant made this threat before the situation degenerated into a physical fight. Moreover, this type of threat, in the context in which it was uttered, did not constitute the type of threat that would support the conclusion that the appellant was the initial aggressor. Similarly, although the appellant admitted to insulting the complainant, those insults, considered either alone or in connection with the above-described threat, were not sufficient to make the appellant the initial aggressor in the altercation. (internal citations removed)

The court also refers to the fact that Mondy, immediately after his inflammatory comments, retreated from the conflict.  In every state a person who was the initial aggressor can “recover their innocence” by withdrawing from the conflict and effectively communicating that withdrawal to the other party.  If the other then re-engages in the fight, the result is that a second fight has been started in which the other party is now the “initial aggressor” and against which the person who withdrew can lawfully defend themselves.  Thus the court determined that even if Mondy’s inflammatory conducts had constituted initial aggression, the harm to his claim of self-defense was cured by his withdrawal.

In any event, the surveillance video recording that was entered into evidence showed that, after the appellant allegedly threatened to knock the complainant’s glasses off, he extended his hands, palms up, in a peace-making gesture and then withdrew for approximately 20 seconds. Accordingly, the evidence did not support the conclusion that the appellant, by his conduct or by verbal threats, was the initial aggressor. Moreover, the evidence also showed that the appellant withdrew from the confrontation in any event. Contrary to the presentment agency’s contention, under these circumstances, the appellant was not barred from invoking the defense of justification based on self- defense (see Penal Law § 35.15[b][1]) (internal citations removed)

Indeed, they concluded, it was the wig-wearer who was the initial aggressor in the fight, as revealed by the surveillance video:

The evidence further demonstrated that, when the appellant again approached the complainant, who was then engaged in a verbal altercation with the appellant’s companion, the complainant, not the appellant, initiated the physical confrontation by pushing the appellant’s left shoulder and grabbing his shirt. Although the video recording showed that the appellant then briefly raised his fist, and then lowered it, it was the appellant’s companion who hit the complainant while the appellant grabbed the complainant’s backpack in an apparent attempt to pull him away. Only when the complainant turned to the appellant and grabbed him by the neck with both hands did the appellant throw a wild punch toward the complainant’s face.

Having made that determination, the outcome of the appeal was determined:

[T]he crimes of assault in the third degree as a hate crime and criminal mischief in the fourth degree as a hate crime must be dismissed since they were based upon the appellant’s conduct in punching the complainant in the face and breaking his glasses, respectively, acts which were justified in the appellant’s self-defense.

[ . . . ]

The appellant’s verbal threat to knock the complainant’s glasses off was not sufficient to sustain a charge of menacing, and although the complainant testified that he was afraid of the appellant, the video recording did not establish that the complainant had “a well-founded fear of physical injury.”  The video recording showed, and the complainant admitted, first, that the complainant was both larger and several inches taller than the appellant and, more importantly, that the complainant repeatedly re-engaged both the appellant and his companion despite ample opportunities to retreat safely, and that the complainant was the primary physical aggressor. Accordingly, this charge must also be dismissed. (internal statutory references deleted)

The moral of the story? Wearing your mom’s wig to your Junior High School as a joke can cost you an eye.

More relevant for our purposes, however, it also highlights the importance of a tactical doctrine that I strongly urge everyone to adopt–if it is possible to safely withdraw from a fight, only a fool does not do so.

New York happens to be a duty-to-retreat state, so withdrawal (if safely possible) is an explicit condition of self-defense.  Even in one of the 34 stand-your-ground states, however, withdrawal can play a vital role in “regaining your innocence” in the event you were–or more importantly, can be made to look as if you were–the initial aggressor in a fight.

Remember: not fighting is a win for the good guys.

Below is the PDF of the Appellate Court’s decision and order dismissing Mondy’s charges.

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–-Andrew, @LawSelfDefense


Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He also holds Law of Self Defense Seminars around the country, and provides free online self-defense law video lectures at the Law of Self Defense Institute and podcasts through iTunes, Stitcher, and elsewhere.