Is Defense of Justification Applicable to a Trespass Charge ?
In People v. Craig, 78 NY2d 616, 620 , the Court of Appeals held that the defense of justification was not applicable to a charge of trespass which followed upon the refusal of defendants to leave the office of a member of Congress as part of a demonstration protesting the policy of the United States with respect to Nicaragua.
In holding that Penal Law 35.05 (2) "was not intended to cover the sort of actions pursued in [that] case by defendants in protest of a government policy" (at 624), the Court carefully considered the history of the statute.
It first determined that the standard by which a defendant's conduct was to be measured was an objective one, not dependent upon the actor's "belief."
The Court then explained that conduct "necessary as an emergency measure" (Penal Law 35.05 ) contemplates conduct warranted by the circumstances as an emergency response and reasonably calculated to prevent the harm.
This excludes from the defense conduct for which there is a reasonable, legal alternative course of action. (See Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 35, at 130-131.) In addition, the Court determined that the requirement that the impending injury must be "imminent" and "about to occur" (Penal Law 35.05 ) denotes a danger which is actual and at hand.
Finally, the Court noted that section 35.05 (2) was envisioned by its drafters as providing a defense of justification " 'in rare and highly unusual circumstances' " (at 622, citing Staff Notes of Temp St Commn on Revision of Penal Law and Criminal Code).