STATE OF NEW JERSEY v. M.A., JR. (15-12-1349, MERCER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 4, 2022
• Docket: A-0304-19
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0304-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.A., JR.,

Defendant-Appellant. _______________________

Argued May 24, 2022 – Decided October 4, 2022

Before Judges DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 15-12- 1349.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Brian P. Keenan, of counsel and on the brief).

Kyle A. Petit, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Laura Sunyak, Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by

SMITH, J.A.D.

After defendant, M.A., pled guilty to second-degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b), he was sentenced to an eight-year term of

imprisonment with a four-year term of parole ineligibility. He appeals the trial

court's orders denying his motion to suppress, and barring use of the defense of

necessity at trial. Defendant also appeals his sentence, arguing that the

sentencing court failed to find certain mitigating factors and that resentencing

is required in order to account for the youth mitigating factor under N.J.S.A.

2C:44-1(b)(14). We affirm the trial court's order denying the suppression

motion, reverse the trial court's order barring the necessity defense, and

remand for trial.

I.

The record reveals the following undisputed facts. A Lawrence

Township police officer, Jose Corado, testified for the State. On the evening

of June 23, 2015, at approximately 8:47 p.m., Officer Corado pulled over a

blue four-door Acura after noticing that one of its front headlights was not

working. He exited his patrol car and approached the Acura's passenger side

window on foot. He observed a male driver and a female passenger in the

A-0304-19 2 front seats. Out of concern for his safety, the officer asked the driver to lower

the tinted rear windows. Once the windows were lowered, he observed two

male passengers in the rear seat of the vehicle.

The officer stood by the front passenger window. Before requesting the

driver's credentials, Officer Corado observed that the female in the front

passenger seat was behaving in an unusual manner, while nervously smoking a

cigarette and blowing the smoke in his direction.

After obtaining the driver's credentials, Officer Corado smelled an odor

of burnt marijuana coming from the car. He was able to identify the odor

based on his experience and training. He next asked the driver if he could

search the vehicle, and the driver consented in writing. The officer elected to

wait for backup before removing all four individuals from the car.

Eventually defendant, one of the rear seat occupants, was searched by

Officer Corado, who felt a "hard metallic object" between defendant's legs.

The officer pulled out a small black .22 caliber Beretta pistol, with a single

bullet in the chamber and no magazine. Officer Corado also searched the other

individuals and the car, but he discovered no other weapons or contraband.

Defendant was arrested.

A-0304-19 3 After his arrest, defendant gave a statement to the police. He said he had

assisted the police in a previous matter and as a result of that cooperation,

other persons in the community were "after him." Defendant explained that he

had been beaten up twice and shot at once since cooperating with law

enforcement. Seeking protection from law enforcement, defendant contacted

the detective and the prosecutor from the case he cooperated in, however, he

received no assistance. Defendant explained he wanted to move out of state to

avoid the threats, however, he was unable to do so because he was on

probation.

Defendant changed residences in the community where he lived, moving

from his mother's house to his cousin's house in an attempt to avoid the

constant threats on his person. He admitted that he had obtained the Beretta

pistol just days before, and that he acquired it in response to being assaulted

and fired upon. Defendant told the interviewing detective that he knew the

pistol contained only one bullet. He stated that he intended to fire the bullet at

a potential assailant and flee, if assaulted for a fourth time.

A grand jury indicted defendant on second degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b); and fourth degree possession of hollow

nose bullets, N.J.S.A. 2C:39-3(f). The trial court denied defendant's motion to

A-0304-19 4 suppress evidence and later granted the State's motion to preclude the statutory

defense of necessity.

On June 25, 2018, defendant pled guilty. The second weapons charge

was dismissed. After sentencing, defendant appealed, and now makes the

following arguments:

POINT I

THE OFFICER’S REQUEST, WITHOUT A HEIGHTENED AWARENESS OF DANGER, FOR THE DRIVER TO ROLL DOWN THE TINTED REAR WINDOWS SO THAT HE COULD SEE INTO THE PASSENGER COMPARTMENT FOR HIS SAFETY, VIOLATED [M.A.'s] RIGHTS AGAINST UNREASONABLE SEARCHES AND SEIZURES.

POINT II

THE MOTION COURT ERRED IN GRANTING THE STATE’S MOTION TO PRECLUDE THE NECESSITY DEFENSE.

POINT III

BECAUSE [M.A.] WAS TWENTY-ONE YEARS OLD AT THE TIME THE OFFENSE WAS COMMITTED, RESENTENCING IS REQUIRED TO CONSIDER THE RECENTLY ENACTED YOUTH MITIGATING FACTOR, N.J.S.A. 2C:44-1B (14). (NOT RAISED BELOW)

A-0304-19 5 POINT IV

THE SENTENCING COURT ERRED IN FAILING TO FIND MITIGATING FACTORS SUPPORTED BY CREDIBLE EVIDENCE IN THE RECORD, AND TO CONSIDER MITIGATING FACTORS RAISED BY THE DEFENSE. (NOT RAISED BELOW)

II.

The scope of review of a motion to suppress is limited. State v. Robinson,

200 N.J. 1, 15 (2009). "In reviewing a motion to suppress, an appellate court 'must

uphold the factual findings underlying the trial court's decision so long as those

findings are supported by sufficient credible evidence in the record.'" State v.

Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).

An appellate court gives deference to those factual findings in recognition of the

trial court's "opportunity to hear and see the witnesses and to have the 'feel' of the

case, which a reviewing court cannot enjoy." Elders, 192 N.J. at 243.

We will not disturb a lower court's determination unless it is "so clearly

mistaken 'that the interests of justice demand intervention and correction.'" State v.

Gamble, 218 N.J. 412 (2014) (quoting Elders, 192 N.J. at 244). However, legal

conclusions to be drawn from those facts are reviewed de novo. State v. Smith,

212 N.J. 365, 387 (2012).

A-0304-19 6 The appellate court gives deference to the evidentiary rulings made by a

trial court absent an abuse of discretion. State v. Garcia, 245 N.J. 412, 430

(2021); State v. Rochat, 470 N.J. Super. 392, 453 (App. Div. 2022). The

appellate court will not disturb a trial court's determination "unless the

evidentiary ruling is 'so wide of the mark' that it constitutes a 'clear error in

judgment.'" Garcia, 245 N.J. at 430 (quoting State v. Medina, 242 N.J. 412,

430 (2020)). "A trial court's 'discretion is abused when relevant evidence

offered by the defense and necessary for a fair trial is kept from the j ury.'"

State v. R.Y., 242 N.J. 48, 65 (2020) (quoting State v. Cope, 224 N.J. 530,

554-55 (2016)).

III.

A.

In his first appeal point, defendant offers a narrow argument, one which,

as best we can discern, was not raised with the trial court. Recognizing that

we are not bound to address arguments on appeal not raised in the trial court,

State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006), we proceed using

a plain error standard.

Defendant now contends Officer Corado had no articulable basis to

direct the driver to lower the rear tinted windows, and that the court erred by

A-0304-19 7 not applying the heightened awareness of danger standard first articulated in

State v. Smith, 134 N.J. 599 (1994), and reaffirmed by the Supreme Court in

State v. Mai, 202 N.J. 12 (2010) and State v. Bacome, 228 N.J. 94 (2017), to

the officer's instruction. Defendant's theory now is that without that initial act

by the officer, the chain of events which led to the gun seizure would not have

occurred.

The State argues before us that reasonableness is the relevant standard to

use when analyzing Officer Corado's initial act that led to the warrantless

search. Reasonableness is "determined by assessing, on the one hand, the

degree to which [a warantless search] intrudes on an individual's privacy and,

on the other, the degree to which it is needed for the promotion of legitimate

governmental interests." State v. Davila, 203 N.J. 97, 111 (2010) (quoting

United States v. Knights, 534 U.S. 112, 118-19 (2001)).

At the argument on the suppression motion, the court rejected

defendant's argument that the heightened awareness of danger standard should

apply, concluding that Smith and its progeny could be distinguished on the

facts. Instead, the court applied the doctrine of exigent circumstances, citing

State v. Walker, 213 N.J. 281 (2013), to support denial of the motion. The

trial court found Officer Corado was justified in removing the occupants from

A-0304-19 8 the Acura and conducting a warrantless search of the people and the car,

concluding that "the smell of burnt marijuana under the total circumstances

created a heightened and reasonable suspicion that an offense was being

committed." Ibid.

Since defendant now only seeks review of Officer Corado's direction to

the driver to roll down the rear windows, we conclude that the standard by

which we should evaluate the officer's actions is one of reasonableness, not

heightened awareness or exigency.

"The touchstone of the Fourth Amendment and Article I, [P]aragraph 7

of the New Jersey Constitution is reasonableness." State v. Hathaway, 222

N.J. 453 (2015) (citations omitted). To determine whether an officer's conduct

was objectively reasonable, the court must consider "the facts known to the

law enforcement officer at the time of the search." State v Caronna, 469 N.J.

Super. 462, 495 (App. Div. 2021) (quoting State v. Handy, 206 N.J. 39, 46-47

(2011)). In evaluating the sufficiency of the basis for a stop courts "consider

the totality of the information available to the officer at the time of the

conduct.” State v. Myers, 442 N.J. Super. 287, 294 n.2 (App. Div. 2015)

(quoting State v. Presley, 436 N.J. Super. 440, 456 (App. Div. 2014)).

A-0304-19 9 Based on the totality of the information available to him at the time of

the stop, Officer Corado's concern for his own safety was reasonable. The stop

occurred at nighttime, and the Acura's rear tinted windows prevented Corado

from seeing who, if anyone, was in the rear seat of the car. Although this was

supposed to be a routine traffic stop for a broken headlight, "traffic stops may

be dangerous encounters" and "the fact that there is more than one occupant of

the vehicle increases the possible sources of harm to the officer." Maryland v.

Wilson, 519 U.S. 408, 413 (1997). Corado's inability to quickly ascertain how

many passengers were in the vehicle posed a safety risk, and his direction to

lower the rear windows was an appropriate precaution to take. Such an action

required no heightened awareness of danger or exigent conditions to validate

it. The officer's actions simply had to be objectively reasonable. We find no

plain error in the court's denial of the motion to suppress.

B.

Defendant next argues that the trial court erred by granting the State's

motion to bar defendant from asserting the defense of necessity. Defendant

argues he was faced with a "choice-of-evils" decision in which he risked being

killed if he did not break the law and possess the Beretta to protect himself.

The State argues that the defense of necessity is not applicable under State v.

A-0304-19 10 1 Kelly, 118 N.J. 370 (1990) , because defendant was not faced with

"spontaneous and compelling danger." Id. at 386.

N.J.S.A. 2C:3-2(a), Necessity and Other Justifications in General, states:

Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

1 In Kelly, the defendant was previously in an abusive relationship with her ex-boyfriend. 118 N.J. at 373. Although at the time of the altercation the couple was no longer together, the defendant had tried involving the police previously and received no help. Id. at 374. After an argument ensued between the pair, the ex-boyfriend threatened defendant to not come by a specific corner he frequented. Id. at 373. Due to her previous communications with the police, she did not contact them about this specific threat. Id. at 374. The defendant and the ex-boyfriend lived only a few blocks away and she believed there would be no way to avoid him. Ibid. The defendant decided to arm herself with a razor before leaving her home that day because of her ex - boyfriend's threat. Ibid. On her way home she crossed the aforementioned corner and an altercation ensued between the pair, which resulted in the defendant slashing the ex-boyfriend with the razor. Ibid. The court noted that the policy justification of allowing the police to handle the situation rather than encouraging an environment where citizens take matters into their own hands supported their holding that defendant was not entitled to the necessity defense. Id. at 386. In oft-cited dicta, the court stated, "it would appear that the availability of necessity as a justification for the immediate possession of a weapon, as with self-defense, is limited only to cases of spontaneous and compelling danger." Ibid.

A-0304-19 11 The common-law defense of necessity requires a defendant to show:

(1) There must be a situation of emergency arising without fault on the part of the actor concerned;

(2) This emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;

(3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and

(4) The injury impending from the emergency must be of sufficient seriousness to out measure the criminal wrong.

[State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002) (citing State v. Tate, 194 N.J. Super. 622, 628 (App. Div. 1984), rev'd on other grounds, 102 N.J. 64 (1986)).]

The trial court, leaning heavily upon Kelly in its analysis, made findings.

Accepting defendant's statement to detectives that he had been shot at and

beaten up because he had cooperated with police, the court nonetheless

concluded that defendant could not avail himself of the necessity defense. The

court, citing Kelly, concluded the defense was available "only in cases of

spontaneous action in response to immediate compelling danger."

A-0304-19 12 Acknowledging that defendant had unsuccessfully sought help from the

police in stopping the ongoing threat, the court reasoned that defendant's

answer was not to arm himself, citing the public policy rationale given by the

Kelly Court for rejecting use of the necessity defense in that case: "[t]he

answer lies in making law enforcement more responsive so that the embattled

person does not face the Draconian choice of bearing arms or withstanding the

onslaught of abuse." Kelly, 118 N.J. at 387.

Our state courts have not addressed the applicability of the necessity

defense to the circumstances presented here. See State v. Tate, 194 N.J. Super.

622 (Law Div. 1984) (examining necessity's applicability to the unauthorized

use of medicinal marijuana); State v. Morris, 242 N.J. Super. 532, 535 (App.

Div. 1990) (examining necessity's applicability to an escape from a prison due

to conditions); Romano, 355 N.J. Super. at 23-24 (examining necessity's

applicability to defendant's DWI charge received after attempting to escape

attackers). However, some federal courts have analyzed the defense of

justification 2 and have fact patterns similar to the record before us. See

2 The four elements of the defense of justification under federal law are similar but not identical to the four elements of necessity set forth in State v. Romano. They are:

A-0304-19 13 Gomez, 526 F.4d at 775 (defendant entitled to present justification defense to

the jury after assisting authorities with criminal investigation and failing to

receive help when receiving death threats as a result of his assistance); United

States v. Alston, 526 F. 3d 91 (3d Cir. 2008) (defendant was not entitled to

present justification defense because verbal threats and their failure to seek

assistance from authorities did not meet the four factors).

We find these cases, particularly the federal ones, instructive but not

determinative. The New Jersey fact patterns are either inapposite or not

compelling as to the third necessity factor, while the federal cases are factually

aligned, but employ a slightly different legal standard to reach their

conclusion.

We find that the best approach to employ in determining whether to

permit the necessity defense to be used at trial is to analyze the record using

______________________

(1) [the person] was under unlawful and present threat of death or serious bodily injury; (2) [the person] did not recklessly place himself in a situation where [they] would be forced to engage in criminal conduct; (3) [the person] had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

[United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).]

A-0304-19 14 the common-law factors firmly established in our caselaw. Romano, 355 N.J.

Super. at 29. We carefully examine the record to consider whether

circumstances beyond "spontaneous action in response to immediate

compelling danger" exist which would support the "availability of necessity as

a justification for the immediate possession of a weapon . . . ." Kelly, 118 N.J.

at 386. We conclude such circumstances exist.

The record shows defendant cooperated with the police in a previous

investigation, going so far as to wear a wire. By doing so, he assisted police in

performing their duty to protect the public. Through no fault of his own, his

cooperation with the police led to him being beaten up twice and fired upon in

his own community. Defendant was acutely aware that other individuals in the

community wanted to hurt or kill him. We find more than sufficient evidence

in the record to conclude that the threat to defendant was "imminent and

compelling," and raised a reasonable expectation in the defendant that he

would suffer physical injury, if not death.

Defendant's plea to law enforcement for assistance went unanswered.

He tried to move out of state to avoid the threat to his life, however he was

unable to do so. Defendant also changed his local residence to avoid

encounters with his attackers, which didn't work, as he was attacked outside

A-0304-19 15 his new home. Consequently, he faced a crisis with no opportunity to avoid

repeated assaults until he was severely injured or killed. The record also

shows that defendant did not obtain the Beretta until after someone had

attempted to shoot him.

There is sufficient credible evidence in the record for a jury to find that

each of the Romano elements have been satisfied, and that this record

represents circumstances beyond the "spontaneous action" language of Kelly

which can support a necessity defense.

As a result, the trial court mistakenly exercised its discretion in barring

the necessity defense. State v. R.Y., 242 N.J. at 65-66 (quoting Cope, 224 N.J.

at 554-55). The oft-cited dicta in Kelly regarding the limits of the necessity

defense does not relieve a trial court from its obligation to apply facts in the

record to the four necessity factors to determine if the defense should be

presented to the jury.

Because of the error in barring the defense, we vacate the guilty plea and

sentence and remand to the trial court for further proceedings.

Affirmed in part, vacated in part and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.

A-0304-19 16