People v. Cromwell

• Decision Date: 13 June 2019
• Docket Number: 2017-1310 OR CR
• Citation: 104 N.Y.S.3d 825,64 Misc.3d 53
• Parties: The PEOPLE of the State of New York, Respondent, v. James CROMWELL, Appellant.
• Court: New York Supreme Court — Appellate Term

64 Misc.3d 53
104 N.Y.S.3d 825

The PEOPLE of the State of New York, Respondent,
v.
James CROMWELL, Appellant.

2017-1310 OR CR

Supreme Court, Appellate Term, New York.

Decided on June 13, 2019

104 N.Y.S.3d 826

Sussman & Associates (Michael H. Sussman, Goshen, of counsel), for appellant.

Orange County District Attorney (Andrew R. Kass, White Plains, of counsel), for respondent.

PRESENT: THOMAS A. ADAMS, P.J., TERRY JANE RUDERMAN, ELIZABETH H. EMERSON, JJ

Consolidated appeal from (1) a judgment of the Justice Court of the Town of Wawayanda, Orange County (Timothy P. McElduff, Jr., J.), rendered June 7, 2017, and (2) an amended sentence of that court rendered June 29, 2017. The judgment convicted defendant, after a nonjury trial, of disorderly conduct, and imposed sentence. The amended sentence vacated the fine that had been previously imposed and resentenced defendant to a term of imprisonment.

64 Misc.3d 54

ORDERED that so much of the appeal as is from the portion of the judgment of conviction that imposed sentence is dismissed as academic, as that portion of the judgment of conviction was superseded by defendant's resentence on June 29, 2017; and it is further,

ORDERED that the judgment of conviction, insofar as reviewed, is affirmed; and it is further,

ORDERED that the appeal from the amended sentence is dismissed as abandoned.

Defendant was charged with disorderly conduct ( Penal Law § 240.20 [5 ] ) in an accusatory instrument which alleged that, on or about December 18, 2015, at about 9:30 a.m., in the Town of Wawayanda, Orange County, he had obstructed vehicles from entering the Competitive Power Ventures Energy Center (CPV) construction site, where a power plant was being constructed, "by chaining himself and two other people and sitting in the middle of the driveway." The action was consolidated for a joint trial with five others, wherein each defendant was also charged with disorderly conduct for similar acts of civil disobedience at the same construction site at the same time.

Prior to trial, defendant was ordered to identify the experts he intended to have testify on his behalf at trial and to provide an offer of proof as to his claimed defense of justification by necessity ( Penal Law § 35.05 [2 ] ). In letters to the court dated

104 N.Y.S.3d 827

64 Misc.3d 55

June 1, 2016 and July 22, 2016, respectively, defense counsel identified the expert witnesses and asserted that they would testify about the health and environmental threats that the ultimate operation of the CPV power plant would pose, which rendered defendant's acts of civil disobedience necessary. Counsel stated that they would also testify that the threats posed by the power plant were profound and related not merely to the exacerbation of global warming, but also to more localized effects on public health and safety. Defense counsel further asserted that defendant would testify that it was his opinion, as informed by significant research, that stopping the power plant was of critical and imminent importance to public health and safety and that was what had motivated his act of civil disobedience. Defendant would also testify that, prior to the act of civil disobedience, he had engaged in various legal actions to draw attention to the dangers that the construction of the power plant posed, but that, to date, none of these other actions had effectively curtailed the public health emergency or the environmental impact faced by the local community.

The People moved to preclude the expert testimony sought to be introduced at trial, contending that defendant's offer of proof was insufficient to satisfy the statutory requirements for presenting the defense of justification by necessity. They argued that the facts and circumstances asserted by defendant fell short of the statutory "imminent public ... injury" requirement ( Penal Law § 35.05 [2 ] ), since construction of the power plant had yet to be completed. They further contended that the method defendant used to prevent the perceived public injury was not directly intended to stop the power plant from being built, but rather to raise awareness about the potential harms of global warming. It was the People's contention that, based upon defendant's offer of proof, there was no immediate danger posed by the construction site and defendant's actions could not be seen as reasonably calculated to avoid a specific danger.

Defendant opposed the motion and made the same legal arguments he now raises on appeal, maintaining that, even though the defense of justification by necessity has been codified in Penal Law § 35.05 (2) and applies an objective standard to the establishment of the defense, some New York courts have relied on common law precedent from other jurisdictions, which apply a more subjective standard (e.g. People v. Bordowitz , 155 Misc.2d 128, 588 N.Y.S.2d 507 [Crim. Ct., N.Y. County 1991] [while noting that the defense of justification by necessity has typically been

64 Misc.3d 56

rejected by New York courts where protesters demonstrated against existing enacted policies, the Criminal Court, citing to case law from other jurisdictions, found the defense to be applicable in a case where the defendants, who were each charged with criminally possessing a hypodermic instrument, had contended that they were engaged in a needle exchange program justified by the exigencies created by the AIDS epidemic]; People v. Gray , 150 Misc.2d 852, 571 N.Y.S.2d 851 [Crim. Ct., N.Y. County 1991] [while noting that most New York courts have declined to apply the defense of justification by necessity in cases involving defendants who have engaged in acts of civil disobedience and admittedly interpreting some of the elements of this defense in a manner which departs from prior decisions in this area, the Criminal Court, citing to case law from other jurisdictions, found the defense to be applicable in a case where the defendants, who were each charged with disorderly conduct, had participated in a demonstration, during evening hours, at the entrance to one of the roadways of the Queensboro Bridge in opposition to the opening to vehicular traffic of the one lane that had been reserved for bicycles and pedestrians] ). Under the

104 N.Y.S.3d 828

subjective standard, a defendant must show, among other things, that he or she reasonably believed that a criminal action was necessary to avoid a harm more serious than that sought to be prevented by the statute defining the charged offense. Applying that standard, defendant argued that his interference with the access road to the construction site, the purpose of which was to...