stating defense not available where threat is not capable of immediate exercise or realization
How later courts described this case
- stating defense not available where threat is not capable of immediate exercise or realization
- justification also known as necessity
Written by the judges who cited it.
The opinion
Suozzi, J. (dissenting).
I vote to reverse the judgment of conviction and grant defendant a new trial.
I agree with so much of the majority opinion as holds that "a defendant prosecuted for escape from a penal institution can raise the defense of justification if in fact the escape was compelled by the existence of conditions posing an imminent danger of personal injury to the prisoner, which cannot be avoided by the defendant through resort to the authorities or other legal means.”
However, I disagree with the majority’s conclusion that defendant’s offer of proof on the defense of justification was properly excluded as being insufficient as a matter of law.
As part of his offer of proof, defense counsel indicated that he would introduce testimony from a fellow inmate who was present when numerous threats were made on defendant’s life by prison guards during the period commencing April 18, 1973, when defendant was committed to the Brooklyn House of Detention under an indictment charging him with murder, and September 27, 1973, when defendant was sent to Kings County Hospital (due to a possible ulcer), from whence he escaped on that very date.
In view of the fact, as the majority itself concedes, that an escape from prison may be justified in certain situations, it is clear that the defendant’s offer of proof was of sufficient particularity to raise a genuine factual issue with regard to the defense of justification which could only be resolved upon submission to the jury.
Cohalan and Margett, JJ., concur with Hopkins, J. P.; Suozzi, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.
Judgment of the Supreme Court, Kings County, rendered May 30, 1975, affirmed.