17.4 - B. Renunciation

• Jurisdiction: New York

B. Renunciation

The statute provides criminal defendants with the opportunity to defend themselves on the basis of a change of heart and withdrawal after embarking on a criminal enterprise.²⁵⁰⁸ The defense must, of course, be established by a preponderance of the evidence,²⁵⁰⁹ but the elements of the defense differ slightly depending upon the kind of offense with which the defendant is charged. In any event, whether the defendant has established his defense is a question of fact to be determined by the jury and not a matter of law for the court.²⁵¹⁰

First, the defense is available when the defendant’s guilt depends upon his criminal liability for the conduct of another person (complicity) under PL § 20.00.²⁵¹¹ Where the defendant is so charged as an accomplice, he may assert the defense of renunciation if “under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof.”²⁵¹²

Second, a defendant may assert the defense in a prosecution for criminal facilitation²⁵¹³ only if, prior to commission of the felony he facilitated, he made a substantial effort to prevent the commission of that felony.²⁵¹⁴

Third, renunciation may be pleaded as a defense in a prosecution for criminal solicitation²⁵¹⁵ or conspiracy,²⁵¹⁶ but only where the crime was not in fact committed, and where the circumstances show that the defendant voluntarily and completely renounced his criminal purpose.²⁵¹⁷ Additionally, in conspiracy and criminal solicitation, the defense is available only where the defendant prevented the commission of the crime and can prove he did so.²⁵¹⁸

Fourth, where the defendant is charged with attempt to commit a crime,²⁵¹⁹ he may plead renunciation “under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.”²⁵²⁰ In addition, the crime must not have actually occurred, and the defendant himself must have been the one responsible for preventing the crime attempted, either by abandoning his criminal effort or, if that is not enough to prevent the crime, “by taking further and affirmative steps which prevented the commission thereof.”²⁵²¹ It has been held that where the defendant was charged with attempted petit larceny and possession of burglar’s tools, renunciation was an available defense only to the attempted crime and not to the possession charge.²⁵²²

Further, the statute defines the phrase “voluntary and complete” renunciation and says that an abandonment of the criminal scheme does not qualify as a defense of statutory renunciation if the defendant does so because of a belief that circumstances exist that increase the likelihood that he will be discovered or caught, or that one of his partners in the scheme will be discovered or caught.²⁵²³ Nor is a...