The PEOPLE, etc., Respondent,

Henry BROWN, Appellant
Supreme Court, Appellate Division, Second Department
68 A.D.2d 503,  417 N.Y.S.2d 966 (1979)

 HOPKINS, Justice Presiding.

 The defendant has been convicted of escape in the second degree.  He claims that Criminal Term erroneously excluded evidence which he was prepared to submit in the form of testimony which would have substantiated his defenses of justification and duress.  In short, the defendant argues that his evidence would have shown the escape was motivated because of threats on his life made by prison guards and other inmates, and because conditions in the prison were intolerable, thus vitiating the criminal intent which is an essential ingredient of the crime of escape in the second degree.

 We affirm.  The evidence tendered by the defendant would not have met the statutory standards established for the maintenance of the defenses of justification and duress, and Criminal Term was therefore correct in rejecting the proof.


 On April 18, 1973 the defendant was committed to the Brooklyn House of Detention under an indictment charging him with murder.  He had been brought to New York from Missouri where he had been serving a sentence of imprisonment for a term of 25 years for a conviction of assault with intent to kill.  On September 27, 1973 the defendant was sent under guard to the Kings County Hospital for treatment of a possible ulcer.  At the hospital the defendant was escorted to the X-ray department in the out-patient building.

 The defendant's handcuffs were removed and the defendant undressed, donned a hospital gown and was X-rayed.  He was then returned to the dressing booth. Hearing the door slam, the guards opened the booth to find the defendant gone. The guards were told that the defendant had been seen outside the building and gave chase.  The pursuit was unsuccessful.  The defendant was not apprehended until October 3, 1973.

 The defendant was thereafter indicted for escape in the second degree.

[p. 505] II

 At the trial the defendant made several offers of proof.  First, the defendant stated that Pedro Monges, a fellow prisoner, would testify that he had first met the defendant in the Brooklyn House of Detention and had heard the defendant's life threatened by prison guards on numerous occasions; that he knew that the defendant had gone to the hospital for medical treatment; and that the defendant had complained about pains in his chest caused by the threats.[n. 1]

 Second, the defendant stated that Paul Gulielmetti, a lawyer, would testify that he had acted as attorney for the plaintiffs in litigation involving conditions in the Brooklyn  House of Detention, in which certain improvements had been directed by the court.[n. 2]
   [p. 506] Third, the defendant stated that Stephen Lapimer,[n. 3] a lawyer, would testify that he also had conducted litigation challenging conditions in the Brooklyn House of Detention, and that he had heard the Judge officiating in the litigation say that conditions in the prison were such as to lead to attempts to escape.[n. 4]
   Fourth, the defendant stated that Dan Pachoda, a lawyer, would testify that he had been associated with Mr. Gulielmetti in litigation relating to the Brooklyn House of Detention, some of which actions has been successful.[n. 5]
   Fifth, the defendant stated that Melvin Haywood, a lawyer, would testify that he had visited the Brooklyn House of Detention and was familiar with the actions in which conditions there had been challenged.[n. 6]
   Sixth, the defendant stated that Doctor Michael Smith, a psychiatrist, would testify  that the effect of threats against an individual would result in personal stress, lowering the "individual's voluntariness with respect to his actions." [n. 7]
   [p. 507] The Criminal Term sustained the prosecution's objections to the offer of proof, holding that the proof was irrelevant to the issue of guilt.  In effect, the court ruled that neither fear arising from threats nor intolerable prison conditions constituted defenses to the crime of escape.

 The defendant, however, was permitted to introduce evidence through a doctor's testimony that the defendant was suffering from chronic gastritis and had suffered from peptic ulcers.  The doctor further testified that stress was a contributing factor in the development of an ulcer.  The defendant himself testified that in 1971 he had been treated for stomach ailments and had complained of an ulcer in 1972 while in prison in Missouri.  He further testified that as a result of his complaints in New York he had seen the prison doctor and finally had been sent to Kings County Hospital for X-ray examination.  He admitted that he had escaped from custody during the time of that medical procedure.

 Criminal Term refused to admit testimony of the defendant under an offer of proof to the effect that the police officer assigned to bring the defendant from Missouri to New York had pointed his revolver at him on several occasions and told him that he did not deserve to live.[n. 8]

 The defendant excepted to the failure of the court to charge [p. 508] justification as a defense and specifically to the failure to charge that if the jury found that the defendant's escape was an effort to protect himself from imminent personal harm, then the jury should find that the defendant did not possess the criminal intent to commit the crime of escape.


 Section 35.05 of the Penal Law, so far as pertinent, reads:
"Unless otherwise limited by the ensuing provisions of this article defining justifiable use of physical force, conduct which would otherwise constitute an offense is justifiable and not criminal when:
 "2. Such conduct is necessary as an emergency measure to avoid an imminent public or 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 necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.  Whenever evidence relating to the defense of justification under this subdivision 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."

 This provision was derived from section 3.02 of the Model Penal Code and enters an area of criminal behavior not previously the subject of legislation in the law of New York.  It is, as a commentator has said, a doctrine in substance recognizing and weighing a "choice of evils" presented by unusual situations "in which some compelling circumstances or 'emergency' warrants deviation from the general rule that transgression of the criminal law will not be tolerated" (Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law, s 35.05, p. 83).  To put it more concretely, the statute authorizes the defense of justification or necessity, as it sometimes is called in a limited number of cases where conduct otherwise condemned is found necessary as an emergency measure to avoid an imminent public or private injury about to occur through no fault of the actor, and the impending [p. 509] injury is of such gravity that the desirability and urgency of avoiding the injury clearly outweigh the objectives of the statute condemning the conduct (cf. People v. Bieniek, 60 A.D.2d 777, 400 N.Y.S.2d 640; People v. Brown, 70 Misc.2d 224, 227-228, 333 N.Y.S.2d 342, 346-347 (BIRNS, J.)).

 Whether conditions in a prison may ever justify a defense to the crime of escape is a question expressly left open by the Court of Appeals on People v. Barkman, 34 N.Y.2d 624, 626, 355 N.Y.S.2d 367, 368, 311 N.E.2d 502, 503. In Barkman the issue was not reached because the defendants had not made an offer of proof following a colloquy in which the trial court had said that it would not admit proof of conditions of the jail in support of a defense of justification.  However, the Court of Appeals noted that the defendants had referred to the conditions only in general terms, without giving details or particulars concerning the conditions claimed to underlie and support the defense.  Hence, the Court of Appeals held that "(w)ithout at least such a tender of proof we do not reach the question whether conditions or treatment in a correctional facility can ever constitute proof of justification as a defense to the crime of escape" (Supra, p. 626, 355 N.Y.S.2d p. 368, 311 N.E.2d p. 503).


 The existence and content of a defense of justification to the crime of escape have been discussed with varying conclusions in a steadily increasing incidence of cases.  Certain states have held that intolerable prison conditions do not justify escape (State v. Palmer, 45 Del. 308, 72 A.2d 442; State v. Cahill, 196 Iowa 486, 194 N.W. 191; State v. Alberigo, 109 Ariz. 294, 508 P.2d 1156; Coley v. State, 135 Ga.App. 810, 219 S.E.2d 35; State v. Boleyn, 328 So.2d 95 (La.); State v. Green, 470 S.W.2d 565 (Mo.), cert. den. 405 U.S. 1073, 92 S.Ct. 1491, 31 L.Ed.2d 806).  Other states have allowed the defense (Cantrell v. State, 21 Ala.App. 558, 110 So. 54; People v. Lovercamp, 43 Cal.App. 3d 823, 118 Cal.Rptr. 110; People v. Unger, 33 Ill.App.3d 770, 338 N.E.2d 442, affd. 66 Ill.2d 333, 5 Ill.Dec. 848, 362 N.E.2d 319; People v. Luther, 394 Mich. 619, 232 N.W.2d 184).  Some states have not sanctioned the defense if mere threats on the life of the defendant are the basis of the claim, holding  that the threats must be accompanied by immediate or imminent danger (State v. Milum, 213 Kan. 581, 516 P.2d 984; Pittman v. Commonwealth, 512 S.W.2d 488 (Ky.); State v. Fitzgerald, 14 Or.App. 361, 513 P.2d 817; State v. Pearson, 15 Utah 2d 353, 393 P.2d 390).  Few Federal courts have considered the question, and most have not sustained the defense in the context of the circumstances presented in the particular case (see United States v. Boomer, 571 F.2d 543, cert. [p. 510] den. 436 U.S. 911, 98 S.Ct. 2250, 56 L.Ed.2d 411; United States v. Michelson, 559 F.2d 567; United States v. Woodring, 464 F.2d 1248; United States v. Dempsey, 283 F.2d 934; but see United States v. Bailey, 585 F.2d 1087).

 In People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110, Supra ) the California Court of Appeals addressed the question at length.  There the defendants offered proof that over a period of two and one-half months they had been sexually threatened, that a fight had ensued, and that after the fight the defendants had been told that their assailants would see them again.  The defendants escaped from prison, but were promptly captured.  The California court held that the defense must show the existence of these elements (Supra, pp. 831-832, 118 Cal.Rptr. p. 115):
"(1) The prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the Immediate future;
"(2) There is No time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory;
"(3) There is no time or opportunity to Resort to the courts ;
"(4) There is no evidence of force or violence used towards prison personnel or other 'innocent' persons in the escape; and
"(5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat."  (Emphasis supplied.)

 The California court found that the offer of proof satisfied these conditions.  In United States v. Michelson, 559 F.2d 567, 569, 570, Supra the Court of Appeals for the Ninth Circuit, did not adopt the principles of Lovercamp.  Instead, the court focused on the necessity of the prisoner to return promptly to the custody of the law enforcement authorities, reasoning that even if imminent personal danger excuses escape, once the danger is remote, continued absence cannot be excused.  In United States v. Bailey, 585 F.2d 1087, Supra the Court of Appeals for the District of Columbia, by a divided vote, sustained the defense, even where the prisoner did not return to custody promptly.


 Whatever the merits of the Lovercamp analysis and they appear to be considerable our statute must be the final bench mark in assessing the defendant's conduct and his offer of [p. 511] proof.  In addressing the ultimate question of the validity of the defense of justification, we confront initially, whether, as broached under People v. Barkman, 34 N.Y.2d 624, 355 N.Y.S.2d 367, 311 N.E.2d 502, Supra, section 35.05 of the Penal Law ever authorizes the defense in a prosecution for the crime of escape.  Second, assuming that inquiry is answered affirmatively, we must then consider whether the defendant's offer of proof fell within the statute.

 In examining the statute vis-a-vis the crime of escape, we observe at once that it is not limited in scope to particular criminal conduct, for the statute reads generally that "conduct which would otherwise constitute an offense is justifiable * * * when" (Penal Law, s 35.05).  The thrust of the statute is rather directed toward a situation occurring through no fault of the defendant, and the desirability and urgency of avoiding an imminent public or private injury overbalance the desirability of avoiding the injury which is contemplated by a violation of the statute for which the defendant is being prosecuted.  In a broad sense, then, we think 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.

 We entertain no doubt that a convict, punished by imprisonment for the commission of a crime, is under a continuing duty to serve his sentence without resort to disorder or surreptitious attempts to escape; and under our system of justice it is socially desirable that a person found guilty of a crime be incarcerated for the period of time set by law as a form of punishment for his misdeed.  At the same time, our system recognizes that if the imprisonment imposed on the convict suffers the existence of conditions beyond the bounds of the law, so that the convict is subjected to brutal and intolerable measures or to the danger of imminent personal injury, either from the prison guards or from other inmates, without hope of relief after reasonable appeals to the authorities, then the prisoner may claim justification for an escape if he thereafter surrenders to custody within a reasonably prompt time, and the defendant's proof must be submitted to the jury.  Brutality in the treatment of a prisoner is not sanctioned simply because the prisoner was sentenced to imprisonment for the commission of a crime.

 [p. 512] Nonetheless, there are prescriptions in the statute which must be emphasized.  It provides that imminent personal injury must be present before justification may be pleaded as a defense to a criminal act.  Conditions in a prison may be crowded or unsanitary and yet not pose imminent danger to those confined.  Relief from these conditions may be sought by the prisoner through appropriate legal action in the courts (see, e. g., Wilkinson v. Skinner, 34 N.Y.2d 53, 59, 356 N.Y.S.2d 15, 21, 312 N.E.2d 158, 162; Matter of Brabson v. Wilkins, 45 Misc.2d 286, 256 N.Y.S.2d 693, mod. 25 A.D.2d 610, 267 N.Y.S.2d 580, affd. 19 N.Y.2d 433, 280 N.Y.S.2d 561, 227 N.E.2d 383; Commonwealth ex rel. Bryand v. Hendrick, 444 Pa. 83, 280 A.2d 110; Coffin v. Reichard, 143 F.2d 443; cf. Woodhous v. Virginia, 487 F.2d 889; Perez v. Turner, 462 F.2d 1056, cert. den. 410 U.S. 944, 93 S.Ct. 1381, 35 L.Ed.2d 611; see, generally, Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv.L.Rev. 610).  Indeed, the offer of proof made by the defendant included references to pending court proceedings concerning conditions in the institution where the defendant was confined.  If, in contrast to the existence of unhealthful conditions generally in the prison, the prisoner's personal safety is threatened to the point of imminent injury and no other means of relief is reasonably available, the prisoner's escape to avoid the injury would constitute justification under the statute.  Even in this extreme case, however, the prisoner should, as soon as possible, make known his presence and surrender to the law enforcement authorities (United States v. Michelson, 559 F.2d 567, 570, Supra ).

 Having determined in the affirmative the initial query whether an escape under any circumstances may be justified, we turn to the second query whether the defendant's offer of proof in this case was sufficient.  We think that it was not.  In the first place, the defendant remained at liberty from September 27, 1973, the date of his escape, to October 3, 1973, when he was apprehended, without any endeavor by him to return to custody.  Moreover, his escape was not from the prison but from a hospital where he was undergoing treatment for an ailment; at the time it is clear that he was not under any imminent danger of personal injury.  Beyond this, his offer of proof of threats in prison by prison guards was not specific as to individuals making the threats or time; and the proof that a detective bringing him to New York had threatened his life did not establish imminent danger, as the threat allegedly occurred in April, 1973 and the escape occurred some five months later.  The offer of proof relating to the [p. 513] existence of litigation challenging  the conditions in the Brooklyn House of Detention could not serve as a ground justifying escape, since in itself such legal proceedings did not establish imminent danger to the defendant, but rather proved the existence and use of remedies to correct such conditions.  Finally, the offer of proof of psychiatric testimony concerning pressure on an individual confined under unhealthful prison conditions to escape from prison in our judgment does not satisfy the tests which the defense of justification demands.  It is the presence of intolerable conditions and threats of imminent danger which establishes the defense, and the defense of justification implies stress on the prisoner arising from those conditions, without the need of psychiatric testimony.

 We find, therefore, that the defendant's offer of proof was properly excluded.


 The defendant also urges that his escape was excused by duress.  Our statute permits the defense of duress in the following language (Penal Law, s 40.00):
"1. In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist."

 We do not think that the circumstances of this case, even viewed in the light of the testimony offered to be proved, give rise to the defense of duress under the statute.[n. 9]  There was no physical force exercised on the defendant at the time of the escape, nor was there a threat of imminent use of physical force on the defendant at the time of the escape.  The defendant fled from a hospital where he had gone to receive treatment.  Duress in the sense of the statute means immediate physical force or immediate threat of physical force. It may not be used as a defense when the force or threat is incapable of immediate exercise or realization.

    [p. 514] VII

 Consequently, we hold that the defendant's conviction must stand, and that Criminal Term was not in error in excluding the defendant's offer of proof.

 COHALAN and MARGETT, JJ., concur in the opinion of HOPKINS, J.

 SUOZZI, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.

 SUOZZI, Justice (dissenting).