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- The Penal Law of the State of New York combines justification and necessity into a single article, Article 35. "Defense of Justification" comprises sections 35.05 through 35.30 of the Penal Law. The general provision relating to necessity, section 35.05, provides: § 35.05 Justification; generally. 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:
* Such conduct is required or authorized by law or by a judicial decree, or is performed by a public servant in the reasonable exercise of his official powers, duties or functions; or
* 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. Under the "choice-of-evils" theory of section 35.05, it is a question of fact for the criminal jury whether the conduct was justified under the circumstances. See People of the State of New York v. Maher, 79 N.Y.2d 978 (1992). As discussed in People of the State of New York v. Gray, 150 Misc. 2d 852 (N.Y. Co. 1991), the defendant is generally held to a "reasonableness" standard—the question is whether a reasonable person in the defendant's position would have reached the conclusion that the relevant conduct was necessary. It is not necessary that the defendant actually avert a greater harm, just that his belief be reasonable. As the court observed: 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. However, the defendant is subject to strict liability as to which harm is greater. For example, a defendant cannot choose to value property over life. (en)
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