People v. Crowley

• Decision Date: 17 January 1989
• Citation: 538 N.Y.S.2d 146,142 Misc.2d 663
• Parties: The PEOPLE of the State of New York, Plaintiff, v. James CROWLEY, John Ebel, Sam Hansen, Timothy Lindsay, Sam Mabe and Dayton Reynolds, Defendants.
• Court: New York Justice Court

Page 146

538 N.Y.S.2d 146

142 Misc.2d 663

The PEOPLE of the State of New York, Plaintiff, v. James CROWLEY, John Ebel, Sam Hansen, Timothy Lindsay, Sam Mabe and Dayton Reynolds, Defendants.

Justice Court, Town of Greece Jan. 17, 1989.

Howard R. Relin, Monroe County Dist. Atty. (Joanne M. Winslow, Asst. Dist. Attorney, of counsel), for the People.

Miguel A. Reyes, Rochester, for defendants.

DECISION

CHARLES W. ROGERS, Town Justice.

The nine defendants in this case were arrested on May 18, 1988 at the office of Dr. Victor Poleshuck, 3101 West Ridge Road, Building B, in the Town of Greece, New York, at which time they were protesting and/or attempting to halt the carrying out of abortions at Dr. Poleshuck's office. All of the defendants have been charged with Criminal Trespass in the 3rd Degree pursuant to § 140.10(a) of the Penal Law. Two of the Defendants have also been charged with Resisting Arrest pursuant to § 205.30 of the Penal Law.

The People have asked by cross motion for an Order Precluding the Defendants from introducing evidence in support of the defense of general justification or necessity during the trial.

Although justification is not an affirmative defense under New York statutory law, the issue of the applicability of the necessity defense is properly before the court at this juncture, pursuant to Penal Law § 35.05(2), the statute codifying the necessity defense, the final sentence of which provides that

"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 introductory provisions to Article 35 of the Penal Law evince an intent to give the justification defense the broadest possible scope. (People v. McManus, 67 N.Y.2d 541, 547, 505 N.Y.S.2d 43, 496 N.E.2d 202). Since justification is an ordinary defense rather than an affirmative one, the People must prove its absence to the same degree as any other element of the crime charged whenever justification is sufficiently interposed by the Defendants. (Id at 546, 547, 505 N.Y.S.2d 43, 496 N.E.2d 202.) Interposition of the defense of justification is sufficient where the defendant has shown an underlying evidentiary foundation as to each element of the defense regardless of how weak, inconsistent or dubious, the evidence on any given point may seem so long as a jury might conclude that the evidence supports the Defendants' positions and Defendants' positions, if substantiated by the evidence, would justify their conduct as a matter of law. (See, United States v. Kabat, 797 F.2d 580, 591 (8th Cir.1986)).

Justification in general terms (excluding self defense and other limited areas) was for the first time incorporated into the statutory law of New York in the Revised Penal Law (People v. Brown, 70 Misc.2d 224, 226, 333 N.Y.S.2d 342.) As it is relevant to the instant case, Section 35.05 reads as follows:

"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 outweighed 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 consideratio 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 section, which was derived from the Model Penal Code" (People v. Brown, 68 A.D.2d 503, 508, 417 N.Y.S.2d 966) codifies a "doctrine in substance recognizing and weighing a 'choice of evils' presented by unusual situations 'in which some compelling circumstance or "emergency" warrants deviation from the general rule that transgression of the criminal law will not be tolerated'." (Id. [Citing Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 35.05, p. 83] ). It provides " 'a general justification for conduct which would otherwise constitute an offense; and ... such a qualification (i.e. necessity) is essential to the rationability and justice of all penal prohibitions.' " (People v. Brown, 70 Misc.2d 224 at 228, 333 N.Y.S.2d 342). (Citing American Law Institute Model Penal Code, Tentative Draft No. 8, p. 5) Necessity was viewed in terms of the avoidance of an evil greater than the evil defining the offense charged. (Id.)

It has been noted that, historically, the defense of necessity has not generated a great deal of case law (1 LaFave and Scott, Substantive Criminal Law, at 631 (1986)) and is poorly developed in Anglo Saxon Law (Note: Necessity as a Defense to a Charge of Criminal Trespass in an Abortion Clinic, 48 U.Cin.L.Rev., 501, 503 (1979)) perhaps because courts have been fearful of its abuse. (Id.) A New York Court, for example, in disallowing the necessity defense as a bar to criminal liability for a protester charged with trespass at a nuclear power plant stated that anarchy would prevail if the defendant and others similarly situated could bring § 35.05 into play. (People v. Chachere, 104 Misc.2d 521, 524, 428 N.Y.S.2d 781). ¹

At common law, the necessity defense was a social policy that recognized that individuals should at times be free from legal restraints in order to avoid imminent, serious harms. (See generally, United States v. Bailey, 444 U.S. 394, 409-411, 100 S.Ct. 624, 634-35, 62 L.Ed.2d 575). Examples where the defense has been invoked include: A parent's withdrawing her children from school because of their ill health despite compulsory attendance laws (see, State v. Jackson, 71 N.H. 552, 53 A. 1021), a prisoner's escaping because the prison was on fire (see, People v. Whipple, 100 Cal.App. 261, 262, 279 P. 1008), the master of a ship putting into a port in violation of embargo laws in order to save the lives of those on board (see, The William Gray, 29 F.Cas., 873 (No. 17, 694) (C.C.N.Y.1810) and a doctor's performing an abortion which would otherwise have been illegal on a young rape victim whose life was endangered by the pregnancy. (see, Rex v. Bourne, 1 K.B. 687, 3 All E.R. 615).

Recently, there has been a steadily increasing incidence of cases in which the defense has been raised in an attempt to justify criminally proscribed behavior, such as escape from prison to escape intolerable conditions (see, People v. Brown, 68 A.D.2d 503, 417 N.Y.S.2d 966 and cases cited therein), criminal trespass at nuclear arsenals (see, e.g., United States v. Quilty, 741 F.2d 1031 (7th Cir.1984), United States v. Seward, 687 F.2d 1270 (10th Cir.1982) cert. den. sub nom. Ahrendt v. United States, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995) and at a selective service office (see, e.g., United States v. Simpson, 460 F.2d 515 (9th Cir.1972)), and a nuclear power facilities, (see, e.g., People v. Chachere, 104 Misc.2d 521, 428 N.Y.S.2d 781) where the harm alleged to support the claim of necessity is some condition or circumstance brought about by society rather than the historically typical case of an unusual emergency, often a natural disaster, requiring criminal behavior as an exigency, to save lives or property.

Abortion clinic trespassing has become one of the most prevalent forms of dissent in recent years. (Note: The Necessity Defense in Abortion Clinic Trespass Cases, 32 St. Louis U.L.J. 523, 524 (1987)) and it has given rise to interposition of the necessity defense as a justification for criminal trespass on abortion clinic premises in a number of reported cases, (see, e.g., Gerlach v. State, 699 P.2d 358 (Alaska App.1985), Commonwealth v. Markum, 373 Pa.Super. 341, 541 A.2d 347 (1988), City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo.App.1982), People v. Krizka, 92 Ill.App.3d 288, 48 Ill.Dec. 141, 416 N.E.2d 36) although there are, as yet, none reported in the New York Reports.

Section 35.05(2) of the Penal Law is composed of two separate elements which must be found to exist before conduct which would otherwise constitute an offense can be found to be justifiable and not criminal.

First, such conduct must be found to be necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation or occurrence or developed through no fault of the actor.

Second, the injury must be of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury "clearly outweighs" the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue. (People v. Brown, 70 Misc.2d 224, 227, 333 N.Y.S.2d 342, Zett, supra, at 63-68.)

As to the first requirement, the inquiry rests upon whether the harm alleged, the performance of abortion at a physician's office, can be said to constitute a public or private injury such that emergency measures were required to halt them from taking place. There is no doubt that the defendants sincerely believed that they are. There is also no doubt that the defendants are aware, painfully so, of the status of the law with regard to the legality of abortions in the United States and in New York State.

A woman's right to terminate her pregnancy is...