Recently, the New York Court of Appeals revisited the “choice-of-evils” defense that justifies conduct that would otherwise be criminal but may be necessary to avoid a greater harm. Clearly, the harm prevented must outweigh the harm caused. However, for the first time the Court of Appeals has held that the defense is not available when, under the defendant’s version of the facts, no harm is caused by his or her conduct and it does not, therefore, constitute “evil.”
In People v. Rodriguez,1 an individual parked his overloaded truck on the top of a steep slope facing downhill on a Bronx street. The driver turned off the engine, left the keys in the ignition and went into a store. The vehicle was later seen moving downhill and eventually went through an intersection, striking three persons, severely injuring two and killing one. After the truck collided with oncoming cars, it was brought to a stop. The defendant was then seen leaving the vehicle through the passenger door. At trial, the prosecution and defendant presented dramatically different theories on how, and why, the defendant entered the vehicle.
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