Was Prosecution Barred by “Choice of Evils” Justification Defense?

Luis Jimenez was indicted on several counts for striking and severely injuring a small dog with a broomstick. Jimenez argued that the indictment should be dismissed because the prosecutor did not charge the grand jury on justification under Penal Law § 35.05(2), the “choice of evils” defense. Was that instruction warranted under the circumstances of the case?

Jimenez was charged with second-degree 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. He testified before the grand jury that J., a former acquaintance, confronted him on a sidewalk and demanded that he repay a $20 debt. When Jimenez refused, J. left and then quickly returned with two metal rods, one in each hand, and threatened to kill him if he did not pay. Jimenez picked up a broom and broke it in half to defend himself as J.’s mother and uncle appeared on the scene. At his mother’s urging, J. turned and began walking away while the uncle began “tussling” with Jimenez, attempting to disarm him of the broom handle. As Jimenez was engaged with the uncle, Gigi—a small dog who was in the mother’s care—ran up to him and started biting at his pant leg. While still physically engaged with the uncle, Jimenez swung the broom handle and hit Gigi.

During his testimony, Jimenez explained that J.’s uncle “[got] in the way” while “trying to stop the fight” as Gigi, who was not on a leash, ran toward them. He then “[m]istakenly” hit the dog; he “fe[lt] bad for it,” and “didn’t mean to hurt the dog.” In response to questioning, Jimenez responded that, when he hit Gigi, J. was swinging the stick as the uncle was “on [him]” and J.’s mother was holding J. back. He also confirmed that, at one point, a surveillance camera recorded J. walking away while J.’s uncle walked toward Jimenez and began “pushing” him back. He claimed, however, that Gigi bit his pant leg but that he “wasn’t really scared” of her; rather, he “was scared of the people around [him] because [he] was by [him]self.” As J.’s uncle was trying to get the stick out of his hand, Jimenez “ended up hitting the dog mistakenly.” Jimenez testified that throughout the encounter, he was “not trying to hit [anything].” The grand jury also viewed surveillance footage, which depicted Jimenez striking Gigi in an upward motion with the broom handle and knocking her to the ground. A forensic veterinarian testified that the strike caused Gigi extreme pain, fractured her cheekbone, and left her blind in one eye.

The prosecutor charged the grand jury on, among other things, the elements of the three counts. The prosecutor did not instruct the grand jury on justification. The grand jury indicted Jimenez on all counts.

Jimenez moved to dismiss the indictment on the ground that the grand jury proceeding was defective under CPL 210.35(5) because the prosecutor failed to instruct the jury on exculpatory defenses. The Supreme Court reviewed the grand jury minutes in camera and dismissed the indictment with leave to re-present, based on the prosecutor’s failure to instruct on justification under section 35.05(2). The court subsequently granted the prosecution’s motion to reargue, but adhered to its original decision on the same grounds. The Appellate Division, with one Justice dissenting, reversed and reinstated the indictment, holding that, as a matter of law, no reasonable view of the evidence supported an instruction on the justification defense. The dissenting Justice granted Jimenez leave to appeal to the Court of Appeals.

Jimenez asserted that the grand jury proceeding was sufficiently impaired to warrant dismissal of the indictment because the prosecutor did not provide an instruction pursuant to Penal Law § 35.05(2), the “choice of evils” defense, which would have allowed the grand jury to consider whether his actions were justified, and maintained that he chose to hit the dog to avoid a potentially fatal dog bite infection. Did the evidence support the defense?

Under CPL 210.35(5), a grand jury proceeding is defective, “mandating dismissal of the indictment” under CPL 210.20(1)(c), when it “fails to conform to the requirements of article one hundred ninety [of the Criminal Procedure Law] to such degree that the integrity thereof is impaired and prejudice to the defendant may result” (CPL 210.35[5]). In turn, article 190 of the Criminal Procedure Law provides that “[t]he legal advisors of the grand jury are the court and the district attorney,” and commands that “[w]here necessary or appropriate, the court or the district attorney, or both, must instruct the grand jury concerning the law with respect to its duties or any matter before it” (CPL 190.25[6]). Failure to furnish adequate or complete instructions may, in a given case, render the grand jury proceedings defective, mandating dismissal of the indictment but that does not mean, however, that the Grand Jury must be charged with every potential defense. Instead, a prosecutor must instruct a grand jury on “exculpatory defense[s],” which are those that would, if believed, result in a finding of no criminal liability. Failure to instruct where the evidence supports a complete defense is grounds for reversal.

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.”

The statute further commands that “[w]henever evidence” related to the defense “is offered by the defendant, the court shall rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a defense.” Thus, the statute’s plain text requires a threshold legal determination that the record is sufficient for the factfinder to conclude that a defendant’s criminal conduct was justified.

This provision reflects a policy decision to absolve a defendant of criminal liability where they commit an otherwise criminal act out of necessity to avoid a greater injury. Choice is a necessary prerequisite to the justification defense, hence the common reference to it as the “choice of evils” defense. Yet the defense is limited in application and intended to be available in rare and highly unusual circumstances. For example, the defense would exempt a defendant from criminal liability for the burning of real property of another in order to prevent a raging forest fire from spreading into a densely populated community.

Here, Jimenez asserted that he chose the lesser evil of striking Gigi to avoid the greater harm of a potentially-infectious dog bite. However, he testified before the grand jury that he was not afraid of Gigi, he never intended to hurt her, and he struck her by mistake during his struggle with the uncle and as a reaction to the surrounding circumstances. Thus, by his own account, Jimenez made no choice at all to strike Gigi, but acted without intending to hit anything or specifically to hurt her. The record, including his own testimony and the surveillance video, foreclosed Jimenez’ argument that he chose to strike Gigi as an “emergency measure to avoid an imminent… private injury”.

Accordingly, the Court of Appeals affirmed the order of the Appellate Division and rejected Jimenez’ “choice of evils” justification defense.