People v. Bordowitz

• Decision Date: 25 June 1991
• Citation: 588 N.Y.S.2d 507,155 Misc.2d 128
• Parties: The PEOPLE of the State of New York v. Gregg BORDOWITZ, Cynthia Cochran, Richard Elovich, Debra Levine, Kathryn Otter, Jon Stuen (Parker), Monica Pearl, Dan Keith Williams, Defendants.
• Court: New York City Court

Page 507

588 N.Y.S.2d 507

155 Misc.2d 128

The PEOPLE of the State of New York v. Gregg BORDOWITZ, Cynthia Cochran, Richard Elovich, Debra Levine, Kathryn Otter, Jon Stuen (Parker), Monica Pearl, Dan Keith Williams, Defendants.

Criminal Court of the City of New York New York County, Jury 5.

June 25, 1991.

Robert M. Morgenthau, Dist. Atty., New York County (Paul Schechtman and Michael Solomon, of counsel), New York City, for People.

Robert M. Baum, The Legal Aid Soc., (Jill Harris, Michael Spiegel and David Patterson, of counsel), New York City, for defense.

LAURA E. DRAGER, Judge:

Defendants were each charged with one count of Criminally possessing a hypodermic instrument (PL § 220.45). After a nonjury trial, this court reserved decision on its verdict.

At trial, the People presented evidence (by stipulation) that on March 6, 1990 at approximately 12:10 p.m. each defendant knowingly possessed hypodermic instruments and that no defendant had a prescription or any personal medical reason for possession of the needles.

It was further stipulated that Captain Frey of the Midtown South Task Force and several dozen officers were at Essex and Delancey Streets at that time in anticipation of the defendants' arrival to distribute hypodermic needles to other people. The police learned of the defendants' plan from a Newsday article dated March 2, 1990. The defendants were arrested on March 6th as they set up a table and removed hypodermic needles from a box. The arrests occurred within one minute of the instruments being observed in public. Captain Frey never observed anyone receive a hypodermic needle from the defendants nor exchange a used one for a new needle (Peo's Ex. No. 1).

The defendants admit to their knowing possession of the hypodermic instruments. They argue, however, that their possession of the needles was justified and, therefore, lawful.

The defendants contend that they were engaged in a needle exchange program justified by the exigencies created by the AIDS epidemic. By providing clean needles to drug addicts, coupled with health care counseling, the defendants argue they were helping to prevent the spread of HIV infection, thereby saving lives. They claim that their actions fall squarely within the provisions of the "necessity" justification defense (PL § 35.05(2), see infra, p. 509).

In support of their contention, the defendants presented seven witnesses, including public officials, health care experts and community activists. In addition, each defendant testified.

Discussion

The defendants admit to their knowing possession of hypodermic needles on March 6th, but claim their possession of the needles was justified and, therefore, not unlawful. The defendants rely on the "necessity" provision of the justification statute.

Penal Law Section 35.05(2) reads as follows:

... conduct which would otherwise constitute an offense is justifiable and not criminal when:

(2) Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.

Application of the necessity defense to preserve the physical well being of an individual or group of individuals is well recognized. This is true even under the strict New York statute. The drafters of that provision gave as an acceptable example of the use of the defense as "forcibly confining a person ill with a highly contagious disease for the purpose of preventing him from going to a city and possibly starting an epidemic." Commission Staff Notes, Proposed New York Penal Law (1964), supra § 65.00, p. 317; Commission Staff Notes, McKinney's Cons. Laws of New York, Revised Penal Law (1967), Art. 35, p. 258.

Historically, the defense was found at common law applicable in a number of circumstances involving the physical well-being of those concerned (see, La Fave and Scott, Substantive Criminal Law, § 5.4, at 631-632). From these roots there has evolved in recent cases what has come to be known as the medical necessity defense.

Thus, a District of Columbia Superior Court acquitted a glaucoma sufferer of the charge of possession of marijuana where the defendant established that smoking marijuana eased his condition. U.S. v. Randall, 104 Daily Wash.L.Rep. 2249 (D.C.Super.Ct., November 29, 1976). The court found the defendant had not caused his medical condition and that no other treatment options existed due to defendant's intolerance to other available medication and the risk of complete blindness if he had an operation.

The third limitation to the defense, noted by the court, i.e., whether there was less harm in violating the marijuana possession statute than in defendant's use of marijuana, presented a more difficult issue to the court. The court ultimately found, relying on medical evidence, that any harm caused by defendant's marijuana use was speculative. Significantly, studies sponsored by the United States government as well as studies in other countries suggested that appropriate medical uses of marijuana exist.

Other courts have reached the same conclusion. In State v. Diana, 24 Wash.App. 908, 604 P.2d 1312 (1979) the court remanded the case to give defendant the opportunity to demonstrate the alleged beneficial effect of marijuana to treat his multiple sclerosis symptoms. The court held:

medical necessity exists in this case if the court finds that (1) the defendant reasonably believed his use of marijuana was necessary to minimize the effects of multiple sclerosis; (2) the benefits derived from its use are greater than the harm sought to be prevented by the controlled substances law; and (3) no drug is as effective in minimizing the effects of the disease. To support the defendant's assertion that he reasonably believed his actions were necessary to protect his health, corroborating medical testimony is required. In reaching its decision, the court must balance the defendant's interest in preserving his health against the state's interest in regulating the drug involved. 604 P.2d at 1317.

See also, State v. Bachman, 61 Haw. 71, 595 P.2d 287, 288 (1979). Cf. State v. Tate, 102 N.J. 64, 505 A.2d 941 (1986); U.S. v. Richardson, 588 F.2d 1235 (9th Cir.1978).

An important limitation to a claimed necessity defense is that a defendant may not rely upon it if the legislature has acted on the very issue raised by the defense. In State v. Tate, supra, the Supreme Court of New Jersey, in rejecting a medical necessity defense for the use of marijuana by a quadriplegic found that New Jersey statutes had already contemplated medical use of marijuana and had provided for limited experimental medical testing of these properties. The legislature having made this specific policy determination, precluded defendant from raising a medical necessity defense.

The New York Statute, as previously noted provides the further limitation that the defense "may not rest upon considerations pertaining only to the morality and advisability of the statute," with which the defendant is charged with violating.

(T)he necessity defense cannot be used to 'excuse criminal activity intended to express the protestor's disagreement with positions reached by the lawmaking branches of the government.' U.S. v. Dorrell, 758 F.2d 427, 432 (9th Cir.1985). It is not for the courts to decide if an appropriate decision was made by the legislative or executive branches among competing policy options. To extend the defense this far would violate the principle of separation of powers. People v. Alderson, 144 Misc.2d 133, 540 N.Y.S.2d 948 (Crim.Ct.N.Y.Co.1989).

Typically, the defense has been rejected where protestors demonstrated against existing enacted policies. In People v. Chachere, 104 Misc.2d 521, 428 N.Y.S.2d 781 (Dist.Ct.Suffolk Co.1980) the defendant was charged with trespassing as the result of a protest action at the Shoreham Nuclear Power Plant. Defendant claimed his action was necessary to stop work on the project because of construction defects. The court rejected defendant's justification defense:

There's no question that the defendant sincerely believed both morally and factually that the criminal act he committed would prevent a more serious harm to the public ... (B)ut it is well founded law that a moral conviction (no matter how strong), without the support of substantive and probative evidence is not enough to bring section 35.05 of the Penal Law into play. If that were the case, anarchy would prevail. Each of us could claim justification for criminal acts when we had strong moral convictions that our cause was just. 104 Misc.2d at 524 .

See also U.S. v. Kroncke, 459 F.2d 697 (8th Cir.1972) (Vietnam War Draft Protest); City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo.Ct.App.1982) (abortion clinic protest); State v. Dorsey, 118 N.H. 844, 395 A.2d 855 (1978) (nuclear power site trespass); U.S. v. Seward, 687 F.2d 1270 (10th Cir.1982) (nuclear power site trespass); People v. Hubbard, 115 Mich.App. 73, 320 N.W.2d 294 (1982) (nuclear power plant protest); State v. Diener, 706 S.W.2d 582 (Mo.Ct.App. 1986) (nuclear power plant protest).

Taking into consideration all of these factors, this court finds that under New York law a medical necessity defense requires the following: 1) the defendant acted under a reasonable belief, supported by medical evidence, that his or her action was necessary as an emergency...