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DEFENDANT, WHO WAS CHARGED WITH STRIKING A SMALL DOG WITH A BROOM HANDLE, WAS NOT ENTITLED TO THE “CHOICE OF EVILS” INSTRUCTION TO THE GRAND JURY; DEFENDANT ARGUED HE STRUCK THE DOG TO PREVENT A “GREATER EVIL,” I.E., AN INFECTION FROM A BITE; THE EVIDENCE DID NOT SUPPORT THE DEFENDANT’S ARGUMENT BECAUSE DEFENDANT TESTIFIED STRIKING THE DOG WAS AN ACCIDENT (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the defendant was not entitled to a “choice of evils” instruction in the grand jury proceedings. Defendant was charged with criminal mischief under Penal Law § 145.10, aggravated cruelty to animals under Agriculture and Markets Law § 353-a, and Overdriving, Torturing, or Injuring an Animal under Agriculture and Markets Law § 353. During a confrontation with a person, a small dog (Gigi) started biting at defendant’s pant leg and defendant struck the dog with a broom handle. Defendant argued the grand jury should have been instructed on the “choice of evils” defense because he struck the dog to prevent an infection from a dog bite:

Section 35.05 (2) of the Penal Law provides that conduct that would otherwise be criminal may be justifiable when “[s]uch conduct is necessary as an emergency measure to avoid an imminent . . . private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is 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 offense in issue.” * * *

… [D]efendant testified before the grand jury that he was not afraid of Gigi, that he never intended to hurt her, and that he struck her by mistake during his struggle with the uncle and as a reaction to the surrounding circumstances. Thus, by his own account, defendant made no choice at all to strike Gigi, but acted without intending to hit anything or specifically to hurt her. The record, including defendant’s own testimony and the surveillance video, forecloses defendant’s argument that he chose to strike Gigi as an “emergency measure to avoid an imminent . . . private injury” … . Accordingly, the prosecutor was not obligated to instruct the grand jury on the “choice of evils” defense under section 35.05 (2) … . People v Jimenez, 2022 NY Slip Op 06541, CtApp 11-17-22

Practice Point: There is a “choice of evils” defense which allows the argument that the charged act was necessary to prevent a “greater evil.” Here the defendant argued the grand jury should have been so instructed, claiming that he struck the small dog to prevent an infection from a dog bite (the greater evil). However defendant testified he struck the dog by accident, which foreclosed the availability of the defense; no “choice” between evils was made.

 

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