NY JUSTIFICATION: USE OF PHYSICAL FORCE TO PREVENT CRIMINAL TRESPASS

NY JUSTIFICATION: USE OF PHYSICAL FORCE TO PREVENT CRIMINAL TRESPASS

State: New York

 

CRIMINAL JURY INSTRUCTIONS 2d (CJI2d-NY)

NY JUSTIFICATION: USE OF PHYSICAL FORCE TO PREVENT CRIMINAL TRESPASS 

PENAL LAW 35.20(2) 

NOTE: This charge should precede the instructions for the crime(s) to which the defense applies, and then, the final element of any such crime should read as follows: “and, #. That the defendant was not justified.”

With respect to count(s) (specify count(s) and name(s) of crime(s) ), one of the elements that the People must prove beyond a reasonable doubt is that the defendant was not justified. The defendant is not required to prove that he/she was justified; the People must prove that he/she was not.

I will now explain when, under our law, a person is justified in using physical force to prevent or terminate a criminal trespass or attempted criminal trespass.

Under our law, a person in possession or control of [or a person licensed or privileged to be on or in] any premises may use any degree of physical force, other than deadly physical force, upon another individual when that person reasonably believes such to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission by such other individual of a criminal trespass upon such premises.

Some of the terms used in this definition have their own special meaning in our law. I will now give you the meaning of the following terms: “premises,” [“person licensed or privileged,” “criminal trespass,” [“deadly physical force,”] and “reasonably believes.”

PREMISES includes the term “building” and any real property.

A person commits CRIMINAL TRESPASS when that person knowingly enters or remains unlawfully in or upon premises.

[DEADLY PHYSICAL FORCE means physical force which, under the circumstances it is used, is readily capable of causing death or other serious physical injury.]

A defendant REASONABLY BELIEVES physical force to be necessary to prevent or terminate what he or she reasonably believes to be the commission or attempted commission of a criminal trespass by another individual when the following two circumstances exist:

First, the defendant actually believes that another individual is committing or attempting to commit a criminal trespass, and also actually believes that his or her use of physical force is necessary to prevent or terminate the commission or attempted commission of that criminal trespass. It does not matter whether those beliefs are mistaken, provided the defendant actually holds them.

Second, a “reasonable person” in the defendant’s position, knowing what the defendant knows and being in the same circumstances, would also hold those same beliefs.

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).

By | 2013-01-15T08:50:13+00:00 January 15th, 2013|Comments Off on NY JUSTIFICATION: USE OF PHYSICAL FORCE TO PREVENT CRIMINAL TRESPASS