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