Necessity defense (New York)
The Penal Law of the State of New York combines justification and necessity into a single article, Article 35. "Defense of Justification" comprises sections 35.05 through 35.30 of the Penal Law. The general provision relating to necessity, section 35.05, provides: Under the "choice-of-evils" theory of section 35.05, it is a question of fact for the criminal jury whether the conduct was justified under the circumstances. See People of the State of New York v. Maher, 79 N.Y.2d 978 (1992). As discussed in People of the State of New York v. Gray, 150 Misc. 2d 852 (N.Y. Co. 1991), the defendant is generally held to a "reasonableness" standard—the question is whether a reasonable person in the defendant's position would have reached the conclusion that the relevant conduct was necessary. It is not necessary that the defendant actually avert a greater harm, just that his belief be reasonable. As the court observed: However, the defendant is subject to strict liability as to which harm is greater. For example, a defendant cannot choose to value property over life. Physical force Similarly, when using physical force in defense of a person, the focus of the defense is not on whether the actor was in fact correct that his conduct was necessary to prevent harm, but whether that belief was reasonable. Section 35.15 (1) provides in relevant part: Thus, with respect to the example given above, the actor may, provided his belief was reasonable, be entitled to have a defense of justification presented to a jury. In quoting Graham v. Connor, 490 U.S. 386, 396 (1989), "The right of a law enforcement officer [or a private citizen] to make an arrest necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Citizen's Arrest There is an important distinction between the defense of justification/necessity under Article 35 and the law of citizen's arrest. In general, to use physical force a private citizen must in fact be correct that a person has committed an offense, while a police officer must only have a reasonable belief. Apart from the "citizen arrest" statutes of New York, which authorize any "person" to use force necessary to arrest and hold a guilty offender in custody until the police take him, there exists a separate common law/statutory privilege that permits property owners, including shop-keepers and landowners, to restrain or "detain" persons whom they have probable cause to believe have committed or are about to commit violations of their property rights (e.g., by theft or by trespass or property damage): In the event that the defiant guilty intruder is an unknown stranger in an act of malfeasance, a landowner or lawful occupant may choose to invoke his statutory right to "arrest" the intruder and to hold him for, or to "deliver" him promptly to, the Police. CPL 140.30 et. seq. The privilege of Citizen's Arrest in New York is granted by statute to "any person," and is a right that a land-owner enjoys in