Why arrest Pena?
He under state law has the right to hit her in the head with “like force”, a boot.
He responded with less force, open hand slap.
She physically assaulted this man at least 3 times before he responded there is no way he should be charged unless it is to appease the black community.
“Like force” is not in the NY statute (linked below).
The phrase "when and to the extent he or she reasonably believes such to be necessary" is the operable phrase in the statute.
A reasonable person, confined, to some extent, within a subway car, facing a group of feral yutes who are instigating a confrontation, would reasonably ascertain violent intent, and that the group of feral yutes intended to inflict serious bodily harm or death.
In spite of NY being NY, any competent attorney should be able to demonstrate, using recent documented cases, that the use of deadly force against any of a group of feral yutes would be reasonable and justified in such circumstances.
As of yet, no non-police citizen has exercised the use of deadly force against these urban sub-humans since Bernie Goetz, who obviously did not have a competent attorney. Eventually, someone will.
Article 35 - NY Penal Law - DEFENSE OF JUSTIFICATION
S 35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or
(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.
2. A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless:
(a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter`s direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.