People v. Newman, 2004 NY Slip Op 24052 (NY 2/4/2004)
| Decision Date | 04 February 2004 |
| Citation | 2004 NY Slip Op 24052 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff, v. KENNETH NEWMAN, Defendant. |
Henri Shawn, Monticello, for defendant.
Stephen F. Lungen, District Attorney, Monticello (Michael McGuire of counsel), for plaintiff.
At 3:10 a.m. on a Sunday morning, after a night of consuming cocaine, marihuana and alcohol, the defendant Kenneth Newman and three of his friends1 left Kilcoin's Bar in Swan Lake, New York, following a melee involving at least 30 people and a bottle being thrown at the defendant's car breaking the lower driver's side windshield with a loud "bang." The defendant accelerated down the road, state Route 55, approximately 1,300 feet and struck a utility pole killing one passenger and seriously injuring two other passengers. According to witnesses who testified at trial, both for the People and the defense, the defendant and occupants of the car had been celebrating the bachelorette party of the decedent with cocaine, beer and shots (alcohol), became involved in a fistfight in the bar that poured out into the parking lot and the defendant and the wedding party fled the scene with the defendant driving them away in his car at great speed.
One occupant of the car testified at trial to seeing headlights following their vehicle immediately before the crash, while the People's witness on rebuttal testified that no person or vehicle followed the defendant's car out of the parking lot. The defendant never testified at trial and the defendant's written and oral admissions were admitted into evidence on consent.
Yet, it is interesting to note, that nowhere in the written or oral admissions did the defendant raise the lesser of two evils decision to flee the threatening "mob." He now claims he made that decision in the parking lot because of the circumstances raised by the several witnesses to the barroom fight and the parking lot melee.
The focus of the justification defense was whether the defendant was justified in driving/speeding down Route 55 at 3 o'clock in the morning under the influence of alcohol, cocaine and marihuana.
The issue of fact that the jury has to decide is, was there a necessity for the defendant to speed away and was the defendant out of the zone of danger, if any, at the time and place of the crash.
The People argue that the zone of danger is not for the jury to decide but that it has to be decided as a matter of law by the trial judge before the justification defense may be submitted to the jury. This court disagrees2 based upon the clear dictates of People v. Maher (79 NY2d 978 [1992]) and People v. Gray (150 Misc 2d 852 [Crim Ct, NY County 1991]).
The duty of the trial judge, at least if requested by the defendant, is to instruct on the law of justification, whenever there is some evidence in the case. There is no requirement that the defendant has to testify to his state of mind or anything else to be entitled to the charge. Indeed, "[i]f on any reasonable view of the evidence, the jury might have decided that the defendant's actions were justified, the failure to charge the defense constitutes reversible error (see, People v. Padgett, supra)." (Maher at 982 [emphasis added].)
Justification in New York, as defined in Penal Law §§ 35.05 through 35.30, is an ordinary and not an affirmative defense. Thus, Penal Law § 35.05 (2) requires 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. Since the defense of necessity is not an affirmative defense wherein the defendant has the burden of establishing that defense by a preponderance of the evidence, it has been uniformly accepted by courts in New York that a defendant is obliged to put in "some evidence of his defense unless the prosecution does so in presenting its side." (Gray at 855.) Thus, as in People v. Gray (150 Misc 2d 852 [1991] []), the facts presented by the defense here clearly distinguish the instant case from those situations where the courts have found the harm or threat in question to be too remote (see, People v. O'Grady, 147 Misc 2d 118 [1990], lv denied 76 NY2d 942 [1990]). Thus, the imminency of the threat as it existed at the bar on state Route 55 at the specific time and location of the crash must be decided by the trier of fact taking into consideration all the surrounding circumstances. (See, People v. Harmon, 53 Mich App 482, 220 NW2d 212 [1974].)
Accordingly, this court will grant the defendant's application to charge the defense of justification and consistent with the rationale herein will give a jury charge attached hereto as exhibit No. 1 since there is no Criminal Jury Instruction for CPL 35.05 (2) as it applies to intoxicating driving.
To continue reading
Request your trial