People v. Chachere

• Decision Date: 08 January 1980
• Citation: 428 N.Y.S.2d 781,104 Misc.2d 521
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Matthew J. CHACHERE, Defendant.
• Court: New York District Court

Page 781

428 N.Y.S.2d 781

104 Misc.2d 521

The PEOPLE of the State of New York, Plaintiff, v. Matthew J. CHACHERE, Defendant.

District Court, Suffolk County, First District.

Jan. 8, 1980.

John Buonora, Asst. Dist. Atty., for the People.

Barry Sheck, for defendant.

DECISION AFTER TRIAL

ANGELO MAUCERI, Judge.

On June 3, 1979, the defendant participated in a mass demonstration at the Shoreham Nuclear Power Plant owned by the Long Island Lighting Company (LILCO). Police officers and duly appointed employees of LILCO were behind the wire fence which enclosed the plant buildings. A LILCO employee warned the defendant that climbing the fence would be a trespass and he would be arrested by the police officers. The defendant ignored the warning and climbed the fence. He was promptly arrested for the crime of trespass, Section 140.10 of the Penal Law as a misdemeanor.

On the day of trial the District Attorney reduced the charge to simple trespass, a violation of Section 140.05 of the Penal Law and a non-jury trial was held by this Court.

The defendant admits to the trespass but asks the Court to acquit him pursuant to Section 35.05 of the Penal Law interposing the defense of justification, or in the alternative asks that the information be dismissed in the interest of justice.

The Court must decide whether justification as defined by the statute and case law applied to this case as the facts existed on June 3, 1979. The People and defense have submitted detailed briefs and have made cogent arguments in support of their respective positions, and the Court has deliberated the question extensively.

Justification is a statutory defense and as such it must be strictly construed. Section 35.05 provides as follows: "Unless otherwise limited by 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."

The parties have put forth a number of cases both in New York and in other jurisdictions to support their contentions. The defense cites Hirabayashi v. U. S., 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; Korematsu v. U. S., 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) dealing with the internment of Japanese Americans at the outset of World War II where the Court said about the internment that "public necessity may sometimes justify the existence of this restriction." These cases may show the extent that circumstances give birth to justification, but it is the Court's opinion that these cases are not applicable and would not be the law today.

They have also cited other cases which have a direct bearing on the case at hand. U. S. v. Ashton, 24 Fed.Cas. (No. 14,470 at p. 873) (C.C.D.Mass.1834) the Court concluded that a crew which refused to sail a ship upon a "bona fide reasonable belief" that the ship was not seaworthy was justified in their refusal to sail. In U. S. v. Simpson, 460 F.2d 515 (9th Cir.); in State v. Dorsey, 395 A.2d 855, 118 N.H. 844; People v. Brown, 70 Misc.2d 224, 333 N.Y.S.2d 342; State v. Kee, 398 A.2d 384 (Me.); and in other cases on the subject defense, the recurring word and basis of all actions is reasonableness. It is necessary that there is a reasonable belief that an emergency exists; that the action taken by the party is reasonable in light of the facts and circumstances known by the party at the time of his act, and that the harm he seeks to prevent is greater than that which he will commit; and most important there is a reasonable certainty that the condition acted against will be completely stopped or overcome.

The defendant testified that he committed the violation to stop the construction of the nuclear plant because there were defects in construction which would cause the reactor to be unsafe when it went into normal operation although the reactor was not as yet completed. He also states that these defects would have gone undetected and that the reactor when put "on line" could create a nuclear accident.

The defendant had no personal knowledge of any of these defects but relied upon statements made to him by other persons. Of necessity the testimony and exhibits must be directed to the allegations of the defendant as to his knowledge and reasons for committing trespass on June 3, 1979.

The only witness produced at the trial who had spoken to the defendant before June 3, 1979, was...