People v. Gray

• Decision Date: 14 March 1991
• Parties: The PEOPLE of the State of New York v. John GRAY, John Kaehny, Charles Komanoff, Stephen Kretzmann, Jonathan Orcutt and Ann Sullivan, Defendants.
• Court: New York City Court

Page 851

571 N.Y.S.2d 851

150 Misc.2d 852

The PEOPLE of the State of New York v. John GRAY, John Kaehny, Charles Komanoff, Stephen Kretzmann Jonathan Orcutt and Ann Sullivan, Defendants.

Criminal Court of the City of New York New York County, Jury 10.

March 14, 1991.

Ronald B. McGuire, New York City, for Jonathan Orcutt and Stephen Kretzmann, Legal Advisor to Charles Komanoff, Ann Sullivan, John Gray.

Robert M. Morgenthau, Dist. Atty., New York City (Ruth Sussman, of counsel) Linn Davis, Student Asst. Dist. Atty., for people.

LAURA SAFER-ESPINOZA, Justice.

Each of the defendants in this case is charged with disorderly conduct, (Penal Law 240.20, subdivisions 5 and 6). These charges are a result of their participation in a demonstration organized by Transportation Alternatives on October 22, 1990, at the entrance to the south outer roadway of the Queensboro Bridge, in opposition to the opening to vehicular traffic of the one lane that had been reserved for bicycles and pedestrians, during evening rush hours.

Pursuant to an agreement with the Manhattan District Attorney's office, defendants stipulated to the facts constituting the People's direct case. In substance, they admitted their presence on the south outer roadway of the Queensboro Bridge at approximately 4:00 p.m. on October 22, 1990. They also admitted that at about 4:15 p.m., a New York City Police Officer ordered them to move, and that they did not comply with that order until they were placed under arrest, at which time they moved voluntarily and did not resist in any way.

In return for this stipulation, the prosecution agreed not to offer any objections to the presentation of a necessity defense by these defendants.

A non-jury trial was held before this Court on February 5th and 6th, 1991. The People's case consisted of the above-mentioned stipulation. Defendants presented their own testimony, as well as that of several witnesses, including Dr. Steven Markowitz, a specialist in community medicine with the Division of Environmental and Occupational Medicine at Mount Sinai Medical Center and former Commissioner of Transportation, Ross Sandler, as expert witnesses. Several exhibits consisting of Department of Transportation memos were then entered into evidence by the People as rebuttal.

THE NECESSITY DEFENSE AND CITIZEN INTERVENTION

The necessity defense is fundamentally a balancing test to determine whether a criminal act was committed to prevent a greater harm. The common elements of the defense found in virtually all common-law and statutory definitions include the following: (1) the actor has acted to avoid a grave harm, not of his own making; (2) there are not adequate legal means to avoid the harm; and (3) the harm sought to be avoided is greater than that committed. A number of jurisdictions, New York among them, have included two additional requirements--first, the harm must be imminent, and second, the action taken must be reasonably expected to avert the impending danger.

Extensive research revealed that while judges in New York (with one partial exception, discussed infra) have so far declined to rule that a necessity defense has been sufficiently established to allow the trier of fact to consider it in their deliberations in cases involving defendants who have engaged in citizen intervention/civil disobedience, numerous state trial judges in other jurisdictions, as well as some federal district court judges, have so charged juries or acquitted defendants after bench trials in similar cases.

Moreover, when the necessity defense is actually submitted to the trier of fact in such cases, defendants have usually been acquitted (see, e.g., United States v. La Forge and Katt, No Cr 4-84-66 [US Dist Ct Minn Nov 8, 1984]; People v. Brown, No. 78CM2520-40 [Lake City, Ill Jan 1979]; California v. McMillan [San Luis Obispo Jud. Dist. # D00518, 1988]. Other citations omitted). There are also a number of cases in which charges were dropped after the judge's rulings that a necessity defense would be permitted (see, e.g., United States v. Braden, PL 139/20 [WD Ky.1985]; New Jersey v. Driscoll, PL 172/50 [Mun Ct., New Brunswick, # S5484432, 1986]. Citations omitted). While far from an exhaustive listing, these cases are representative of the range of perceived harms against which defendants' actions have been found to be justified; including the effects of nuclear weapons and nuclear power.

In the opinion of this Court, the instant case presents a factual situation which clearly distinguishes it from previous cases in New York which ruled a necessity defense inapplicable. Additionally, upon careful examination of the history and purpose of the justification defense which has come to be known as necessity, this Court has interpreted some of the elements of this defense in a manner which departs from prior decisions in this area.

HISTORY OF THE NECESSITY DEFENSE

BURDENS OF PROOF IN NECESSITY DEFENSE CASES UNDER PENAL LAW 35.05(2).

Justification in New York, as defined in Penal Law Sections 35.05 [150 Misc.2d 855] through 35.30 is an ordinary and not an affirmative defense (Penal Law 35.00). Thus, the People have the burden of disproving such a defense beyond a reasonable doubt. Penal Law 35.05(2) requires, however, that a defendant establish a prima facie case by producing evidence from which a reasonable juror could find that he has met each element of the defense.

Therefore, when seeking to establish a defense under Penal Law 35.05(2), a defendant bears the same initial burden as those presenting affirmative defenses--that of establishing a prima facie case (29 Am Jur 2d Section 156 (1967)). If that burden is met, the People must then disprove the defense of necessity beyond a reasonable doubt. Unlike true affirmative defenses, defendants in cases under Penal Law 35.05(2) do not have the burden of establishing their defense by a preponderance of the evidence.

It is particularly important to clearly delineate and evaluate whether defendants have met their initial burden of production in trials involving the necessity defense, since if that question is resolved in a defendant's favor, the burden of proof then shifts dramatically, and the People must disprove the defense beyond a reasonable doubt. This is true whether the trier of fact is a jury or a judge.

As to the burden of production in affirmative defenses, it is uniformly held that a defendant is obliged to start matters off by putting in some evidence of his defense unless the prosecution does so in presenting its side (LaFave and Scott, Substantive Criminal Law, Chapter 1, Section 1.8) (emphasis added).

Our courts have held that in determining whether a defendant has presented sufficient evidence for an instruction on the defense of justification, the evidence must be viewed in the light most favorable to the accused (People v. Padgett, 60 N.Y.2d 142, 468 N.Y.S.2d 854, 456 N.E.2d 795, (1983); People v. Ruiz, 96 A.D.2d 845, 465 N.Y.S.2d 604 (2d Dept.1983)).

It is the duty of the judge, at least on request, to instruct on the law of justification whenever there is 'some evidence' in the case (People v. Torre, 42 N.Y.2d 1036, 399 N.Y.S.2d 203, 369 N.E.2d 759; supra; People v. Hernandez, 67 A.D.2d 988, 413 N.Y.S.2d 428 (2d Dept.1979).

In light of the strong constitutional considerations in favor of allowing defendants to have their defenses submitted to the trier of fact, the discrepancy between the low standard of production which some courts have articulated in theory (U.S. v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (must meet "minimum standard"); People v. Hubbard, 115 Mich.App. 73, 320 N.W.2d 294 (1982) (must produce "some evidence")), and the extraordinarily high standard ultimately imposed in many instances on civil disobedients who raise the necessity defense seems inappropriate.

THE REASONABLE BELIEF STANDARD

In People v. Goetz, 68 N.Y.2d 96, 506 N.Y.S.2d 18, 497 N.E.2d 41 (1986)), the New York Court of Appeals emphasized that the justification statute requires a determination of reasonableness that is both subjective and objective. The critical focus must be placed on the particular defendant and the circumstances actually confronting him at the time of the incident, and what a reasonable person in those circumstances and having defendant's background and experiences would conclude (see 1 CJI N.Y.P.L. 35.00, Introductory Comment at 848-849). The same basic standards should apply in cases where defendants assert the justification defense defined by Penal Law 35.05(2).

There is only one element of the necessity defense to which a standard more stringent than reasonable belief must be applied--that is the actor's choice of values, for which he is strictly liable.

An actor is not justified, for example, in taking human life to save imperiled property. No matter how real the threat to property is, by making the wrong choice in placing the value of property over human life, the actor loses the defense. Thus, the choice of values requirement ensures that the defense cannot be used to challenge shared societal values.

To apply a strict liability standard in evaluating the other elements of this defense, however, and to find that only those actors who have actually averted a greater harm may avail themselves of the defense, is inconsistent with the law of justification in New York, as well as necessity's basic purpose to promote societal interests. (Note, Applying the Necessity Defense to Civil Disobedience Cases, 64 NYU L.Rev. 79 (1989)). Applying the above standards, the Court will now analyze the elements of the necessity defense as they apply to defendants' actions in this case.

THE CHOICE OF EVILS REQUIREMENT

As stated earlier, defendants' value choice is the one area where they must be held strictly liable. A judge must decide whether the actor's values are so antithetical to shared social values as to bar the defense as a matter of law.

As...