New York Criminal Jury Instructions & Model Colloquies
Criminal Jury Instructions
General Applicability
Defenses
Justification

Justification: Defense of Necessityas an Emergency Measure Penal Law 35.05(2)

(Effective Mar. 21, 1968)
Revised Jan. 2018)

For a defense to a specific crime, see the “Additional Charges” section on the Penal Law page listing the charge for that crime.
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.

NOTE: At this point, the trial court must select the appropriate alternative set forth below to fulfill the mandate of appellate decisions. See endnote. Those decisions require that in a case with multiple counts, in which some or all of the counts include the same definition of justification as an element, the trial court’s instructions (as well as its verdict sheet) need to convey to the jury that once the jury has determined that the People have failed to prove that the defendant was not justified as to a count, the jury must not reconsider that same justification defense as to any other count and they must find the defendant not guilty of each and every count for which that same definition of justification is an element. (For a sample verdict sheet, see CJI2d Model Verdict Sheet for Justification.)

Select appropriate alternative:

(1) If justification applies to only one count, add the following:

It is thus an element of count [ specify number and name of offense ] 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 that count.

(2) If justification applies to more than one count submitted to the jury on the verdict sheet, add the following:

It is thus an element of counts [ specify numbers and names of the offenses on verdict sheet ] that the defendant was not justified. As a result, if you find, as to the first of those counts that you consider pursuant to my instructions, 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 that count and of the remaining count(s) to which that same definition of justification applies.

(3) If there are additional counts for which justification is not an element, add the following:

If you find the defendant not guilty of counts ( specify numbers and names of the offenses for which lack of justification was an element ), you still must consider the count(s) ( specify name of count ) for which the People are not required to prove that the defendant was not justified.

 

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