NY · jury_instructions
CJI2d[NY] Penal Law former § 130.10(1)
AFFIRMATIVE DEFENSE (Lack of Knowledge of Incapacity to Consent )
Note: If applicable, omit the final two paragraphs of the instructions on the crime charged, and substitute the following:
Therefore, if you find that the People have not proven beyond a reasonable doubt (either one or both/any one or more) of those elements, you must find the defendant not
guilty of (specify) as charged in count.
On the other hand, if you find that the People have proven beyond a reasonable doubt (both / each) of the elements, you must consider an affirmative defense the defendant has raised. Remember, if you have already found the defendant not guilty of (specify), you will not consider the affirmative defense.
Under our law, it is an affirmative defense to this charge of (specify) that the defendant, at the time he/she engaged in the conduct constituting the offense, did not know of the facts or conditions responsible for (specify’s) incapacity to consent.
Under our law, the defendant has the burden of proving an affirmative defense by a preponderance of the evidence.
In determining whether the defendant has proven the affirmative defense by a preponderance of the evidence, you may consider evidence introduced by the People or by the defendant.
A preponderance of the evidence means the greater part of the believable and reliable evidence, not in terms of the number of witnesses or the length of time taken to present the evidence, but in terms of its quality and the
weight and convincing effect it has. For the affirmative defense to be proved by a preponderance of the evidence, the evidence that supports the affirmative defense must be of such convincing quality as to outweigh any evidence to the contrary.
Therefore, if you find that the defendant has not proven the affirmative defense by a preponderance of the evidence, then, based upon your initial determination that the People had proven beyond a reasonable doubt the elements of (specify), you must find the defendant guilty of that crime as
charge in the count.
On the other hand, if you find that the defendant has proven the affirmative defense by a preponderance of the evidence, then you must find the defendant not guilty of
(specify) as charged in the count.]
History
Caption: AFFIRMATIVE DEFENSE (Lack of Knowledge of Incapacity to Consent ) [Penal Law § 130.10(1)]. Read from the committee's Word file. Prepared by the New York State Unified Court System Committee on Criminal Jury Instructions, Model Colloquies, and Evidence Rules; published by the Unified Court System at nycourts.gov (the internet edition is the only current and official publication of CJI2d).
Provenance
- Source
- nycourts.gov
- Retrieved
- 2026-09-25
- Edition
- 2026-09-25
- Content hash
54d668ccef396502a701da5a426959a3f511e83410b92d3a5421e93798ae42bd
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