Just for clarity I think I was the one in that thread who simply suggested we don’t bury her behind the jail yet as was the suggestion I responded to. Opinions on guilt are fine with me.. this ain’t no court… its the internet.
The language I pasted above is directly from their jury instructions. This part, "under the circumstances in which it is used," appears to me to remove the subjective element from the definition. Contrast with Florida's jury instruction: "Deadly force" means force likely to cause death or great bodily harm." I think Florida's allows more of a subjective element and it more focused on foreseeability as opposed to the actual result. I believe Penny would be better off defending under Florida's instruction than NY's. Deadly force is deadly force..a knife, a tire iron, a gun....if you are authorized to use any of them, it doesn't matter which. If you use any of those, however, it immediately eliminates any possible argument that the force used wasn't deadly. Penny's lawyer can still argue the "choke hold" wasn't deadly force, regardless of whether that is legally correct or not, but the DA will be harping on the actual language of the jury instruction. I anticipate the DA will be trying to select a highly educated jury, if possible. In my experience they are more likely to follow their instructions and apply a law they may not agree with. A bare handed punch or two, absent a trained MMA fighter or boxer as you brought up, likely would not meet NY's definition. Now if it was a savage beating that resulted in death, that likely would meet the definition. It will be interesting to learn as discovery progresses what language and actions are actually attributable to Neely as a justification for Penny's conduct.
