People v. Brown

• Citation: 417 N.Y.S.2d 966,68 A.D.2d 503
• Parties: The PEOPLE, etc., Respondent, v. Henry BROWN, Appellant.
• Decision Date: 18 June 1979
• Court: New York Supreme Court Appellate Division

Page 966

417 N.Y.S.2d 966

68 A.D.2d 503

The PEOPLE, etc., Respondent, v. Henry BROWN, Appellant.

Supreme Court, Appellate Division, Second Department.

June 18, 1979.

James S. Carroll, III, New York City (Gregory Crawford, law student, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Laurie Stein Hershey, Asst. Dist. Atty., Brooklyn, of counsel), for respondent.

Before HOPKINS, J. P., and SUOZZI, COHALAN and MARGETT, JJ.

HOPKINS, Justice Presiding.

The defendant has been convicted of escape in the second degree. He claims that Criminal Term erroneously excluded evidence which he was prepared to submit in the form of testimony which would have substantiated his defenses of justification and duress. In short, the defendant argues that his evidence would have shown the escape was motivated because of threats on his life made by prison guards and other inmates, and because conditions in the prison were intolerable, thus vitiating the criminal intent which is an essential ingredient of the crime of escape in the second degree.

We affirm. The evidence tendered by the defendant would not have met the statutory standards established for the maintenance of the defenses of justification and duress, and Criminal Term was therefore correct in rejecting the proof.

I

On April 18, 1973 the defendant was committed to the Brooklyn House of Detention under an indictment charging him with murder. He had been brought to New York from Missouri where he had been serving a sentence of imprisonment for a term of 25 years for a conviction of assault with intent to kill. On September 27, 1973 the defendant was sent under guard to the Kings County Hospital for treatment of a possible ulcer. At the hospital the defendant was escorted to the X-ray department in the out-patient building.

The defendant's handcuffs were removed and the defendant undressed, donned a hospital gown and was X-rayed. He was then returned to the dressing booth. Hearing the door slam, the guards opened the booth to find the defendant gone. The guards were told that the defendant had been seen outside the building and gave chase. The pursuit was unsuccessful. The defendant was not apprehended until October 3, 1973.

The defendant was thereafter indicted for escape in the second degree.

II

At the trial the defendant made several offers of proof. First, the defendant stated that Pedro Monges, a fellow prisoner, would testify that he had first met the defendant in the Brooklyn House of Detention and had heard the defendant's life threatened by prison guards on numerous occasions; that he knew that the defendant had gone to the hospital for medical treatment; and that the defendant had complained about pains in his chest caused by the threats. ¹

Second, the defendant stated that Paul Gulielmetti, a lawyer, would testify that he had acted as attorney for the plaintiffs in litigation involving conditions in the Brooklyn House of Detention, in which certain improvements had been directed by the court. ²

Third, the defendant stated that Stephen Lapimer, ³ a lawyer, would testify that he also had conducted litigation challenging conditions in the Brooklyn House of Detention, and that he had heard the Judge officiating in the litigation say that conditions in the prison were such as to lead to attempts to escape. ⁴

Fourth, the defendant stated that Dan Pachoda, a lawyer, would testify that he had been associated with Mr. Gulielmetti in litigation relating to the Brooklyn House of Detention, some of which actions has been successful. ⁵

Fifth, the defendant stated that Melvin Haywood, a lawyer, would testify that he had visited the Brooklyn House of Detention and was familiar with the actions in which conditions there had been challenged. ⁶

Sixth, the defendant stated that Doctor Michael Smith, a psychiatrist, would testify that the effect of threats against an individual would result in personal stress, lowering the "individual's voluntariness with respect to his actions." ⁷

The Criminal Term sustained the prosecution's objections to the offer of proof, holding that the proof was irrelevant to the issue of guilt. In effect, the court ruled that neither fear arising from threats nor intolerable prison conditions constituted defenses to the crime of escape.

The defendant, however, was permitted to introduce evidence through a doctor's testimony that the defendant was suffering from chronic gastritis and had suffered from peptic ulcers. The doctor further testified that stress was a contributing factor in the development of an ulcer. The defendant himself testified that in 1971 he had been treated for stomach ailments and had complained of an ulcer in 1972 while in prison in Missouri. He further testified that as a result of his complaints in New York he had seen the prison doctor and finally had been sent to Kings County Hospital for X-ray examination. He admitted that he had escaped from custody during the time of that medical procedure.

Criminal Term refused to admit testimony of the defendant under an offer of proof to the effect that the police officer assigned to bring the defendant from Missouri to New York had pointed his revolver at him on several occasions and told him that he did not deserve to live. ⁸

The defendant excepted to the failure of the court to charge justification as a defense and specifically to the failure to charge that if the jury found that the defendant's escape was an effort to protect himself from imminent personal harm, then the jury should find that the defendant did not possess the criminal intent to commit the crime of escape.

III

Section 35.05 of the Penal Law, so far as pertinent, reads:

"Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, 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. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense."

This provision was derived from section 3.02 of the Model Penal Code and enters an area of criminal behavior not previously the subject of legislation in the law of New York. It is, as a commentator has said, a doctrine in substance recognizing and weighing a "choice of evils" presented by unusual situations "in which some compelling circumstances or 'emergency' warrants deviation from the general rule that transgression of the criminal law will not be tolerated" (Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, § 35.05, p. 83). To put it more concretely, the statute authorizes the defense of justification or necessity, as it sometimes is called in a limited number of cases where conduct otherwise condemned is found necessary as an emergency measure to avoid an imminent public or private injury about to occur through no fault of the actor, and the impending injury is of such gravity that the desirability and urgency of avoiding the injury clearly outweigh the objectives of the statute condemning the conduct (cf. People v. Bieniek, 60 A.D.2d 777, 400 N.Y.S.2d 640; People v. Brown, 70 Misc.2d 224, 227-228, 333 N.Y.S.2d 342, 346-347 (BIRNS, J.)).

Whether conditions in a prison may ever justify a defense to the crime of escape is a question expressly left open by the Court of Appeals on People v. Barkman, 34 N.Y.2d 624, 626, 355 N.Y.S.2d 367, 368, 311 N.E.2d 502, 503. In Barkman the issue was not reached because the defendants had not made an offer of proof following a colloquy in which the trial court had said that it would not admit proof of conditions of the jail in support of a defense of justification. However, the Court of Appeals noted that the defendants had referred to the conditions only in general terms, without giving details or particulars concerning the conditions claimed to underlie and support the defense. Hence, the Court of Appeals held that "(w)ithout at least such a tender of proof we do not reach the question whether conditions or treatment in a correctional facility can ever constitute proof of justification as a defense to the crime of escape" (Supra, p. 626, 355 N.Y.S.2d p. 368, 311 N.E.2d p. 503).

IV

The existence and content of a defense of justification to the crime of escape have been discussed with varying conclusions in a steadily increasing incidence of cases. Certain states have held that intolerable prison conditions do not justify escape (State v. Palmer, 45 Del. 308, 72 A.2d 442; State v. Cahill, 196 Iowa 486, 194 N.W. 191; State v. Alberigo, 109 Ariz. 294, 508 P.2d 1156; Coley v. State, 135 Ga.App. 810, 219 S.E.2d 35; State v. Boleyn, 328 So.2d 95 (La.); State v. Green, 470 S.W.2d 565 (Mo.), cert. den. 405 U.S. 1073, 92 S.Ct. 1491, 31 L.Ed.2d 806). Other states have allowed the defense (Cantrell v. State, 21 Ala.App. 558, 110 So. 54; People v. Lovercamp, 43 Cal.App. 3d 823, 118 Cal.Rptr. 110; People v. Unger, 33 Ill.App.3d 770, 338 N.E.2d 442, affd. 66 Ill.2d 333, 5 Ill.Dec. 848, 362 N.E.2d 319; People v. Luther, 394 Mich. 619, 232 N.W.2d 184). Some states have not sanctioned the...