N.Y. Laws » CHAPTER Penal / PART General Provisions / TITLE Defenses / ARTICLE Defense of Justification
New York Consolidated Laws

N.Y. Penal Law § 35.05 (2026)

Justification; generally

✓ current as of May 2026
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§ 35.05 Justification; generally.
  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:
  1. Such conduct is required or authorized by law or by a judicial
decree, or is performed by a public servant in the reasonable exercise
of his official powers, duties or functions; or
  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.
Notes of Decisions
Cited in 141 cases (14 in the last 5 years), 1984–2025 · leading case: People v. Taylor, 2017 NY Slip Op 7649 (N.Y. App. Div. 2017).
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People v. Taylor, 2017 NY Slip Op 7649 (N.Y. App. Div. 2017). · cites it 22× “he basis for his ineffective assistance claim — namely, that counsel failed to (1) use impeachment evidence against the cabdriver, (2) request that a certain lesser included offense be submitted to the jury, (3) object to County Court's allegedly coercive Allen charge and (4)…”
People v. Craig, 585 N.E.2d 783 (NY 1991). · cites it 6× “In a nonjury trial, Rochester City Court rejected the defense of justification under Penal Law § 35.05 (2), which, under certain circumstances, provides that conduct that would otherwise be illegal may be justified as necessary to avoid a greater evil.”
People v. White, 75 A.D.3d 109 (N.Y. App. Div. 2010). · cites it 4× “However, the court denied the defendant’s request for an emergency justification charge pursuant to Penal Law § 35.05 (2) as it related to the count of criminal possession of a weapon in the third degree.”
People v. Williams, 2017 NY Slip Op 4302 (N.Y. App. Div. 2017). · cites it 2× “At trial, the defendant invoked the defense of justification by necessity (Penal Law § 35.05[2]), claiming that he was fleeing from the bouncer who was shooting at him and Harrison, and that he was also rushing Harrison to a hospital because Harrison told him that he had been…”
People v. McManus, 496 N.E.2d 202 (NY 1986). · cites it 2× “15, the provision specifically at issue in this case which outlines the circumstances under which the use of physical force and deadly physical force are justified, is devoid of any such limiting language.”
People v. Rodriguez, 946 N.E.2d 726 (NY 2011). · cites it 4× “That defense, found in Penal Law § 35.05 (2), often referred to as the “choice-of-evils” defense, provides that conduct that would otherwise constitute an offense is justified when it: “is necessary as an emergency measure to avoid an imminent public or private injury which is…”
People v. LaPetina, 872 N.E.2d 1196 (NY 2007). · cites it 3× “But the Court rejected defendant’s claim that he was entitled to a new trial on the burglary charge because the trial court failed to give a “choice of evils” instruction (Penal Law § 35.05). In this Court, defendant asserts that he was entitled to a Penal Law § 35.”
Jocks v. Tavernier, 316 F.3d 128 (2d Cir. 2003). · cites it 2× “; N.Y. Penal Law §§ 35.05 , 35.15 (McKinney 1997).”
People v. Moore, 66 A.D.3d 707 (N.Y. App. Div. 2009). · cites it 3× “Furthermore, we do not join in our dissenting colleague’s conclusion that the distinct “choice of evils” justification defense set forth in Penal Law § 35.05 (2) is applicable to this case (see generally People v Maher, 79 NY2d 978 [1992]).”
People v. Fermin, 36 A.D.3d 934 (N.Y. App. Div. 2007). · cites it 2× “Contrary to the People’s contention, the defendant’s claim that the court erred in refusing to charge the jury as to justification pursuant to Penal Law § 35.”
People v. Cataldo, 260 A.D.2d 662 (N.Y. App. Div. 1999). · cites it 7× “Defendant contends that County Court erred in its refusal to charge justification (see, Penal Law § 35.05) for a second time in response to the jurors’ request for instruction on the law of self-defense.”
People v. Voelker, 172 Misc. 2d 564 (N.Y. City Crim. Ct. 1997). · cites it 4× “(See, Penal Law § 35.05.) Moreover, whether an act of cruelty and infliction of pain was justified or unjustified is a question to be determined by the trier of facts based upon the moral standards of the community.”
Show all 141 citing cases →
— N.Y. Penal Law § 35.05(2) — 4 cases
Wells v. State, 687 P.2d 346 (Alaska Ct. App. 1984).
People v. Jimenez, 2020 NY Slip Op 07223 (N.Y. App. Div. 2020).
People v. Walker, 2025 NY Slip Op 03830 (N.Y. App. Div. 2025).
People v. Brown, 2018 NY Slip Op 1173 (N.Y. App. Div. 2018).
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