NY JUSTIFICATION: DEFENSE OF NECESSITY, AS AN EMERGENCY MEASURE1 PENAL LAW 35.05(2)
State: New York
CRIMINAL JURY INSTRUCTIONS 2d (CJI2d-NY)
NY JUSTIFICATION: DEFENSE OF NECESSITY, AS AN EMERGENCY MEASURE1 PENAL LAW 35.05(2) (Effective Mar. 21, 1968)
NOTE: This charge should precede the reading of the elements of the charged crime, and then, the final element of the crime charged should read as follows: “and, # ___. That the defendant was not justified.”
The defendant has raised the defense of justification [with respect to count(s) (specify)]. The defendant, however, is not required to prove that he/she was justified. The People are required to prove beyond a reasonable doubt that the defendant was not justified.
I will now explain our law’s definition of the defense of justification as it applies to this case.
Under our law, conduct which would otherwise constitute an offense is justifiable and not criminal when 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. That imminent public or private injury must be 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 charged crime(s).
[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.]
The People are required to prove beyond a reasonable doubt that the defendant was not justified. It is thus an element of [each] count [specify] that the defendant was not justified.
As a result, if you find that the People have failed to prove beyond a reasonable doubt that the defendant was not justified, then you must find the defendant not guilty of [all] count(s) [specify].