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

Justification: Use of Physical Force to Prevent Criminal Trespass Penal Law 35.20(2)

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 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.

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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