Kolovsky, Lynch and Allcorn.
Defendant, a chiropractor, appeals his conviction of conspiracy to obtain money by false pretenses. His participation in the conspiracy is mainly bottomed on evidence that he signed a medical report certifying that he had treated an allegedly injured person when in fact he had not done so. The purpose of the conspiracy was to defraud an insurance company by use of the medical report signed by defendant.
On appeal defendant makes the following contentions: (1) that he signed the medical report because of threats from one of his codefendants and that the trial judge erred in refusing to submit the defense of "duress" to the jury; (2) that defendant's motion for an acquittal at the conclusion of the entire case should have been granted; (3) that the judge's charge contained erroneous statements of fact and was prejudicial, and (4) that the judge erred in denying defendant's motion for a severance.
We find no merit in defendant's contentions (2), (3) and (4). In our opinion, only defendant's contention as to the defense of "duress" need be commented upon.
Defendant contended that he signed and delivered the false medical report because he had been threatened by one of his codefendants, "Billy" Leonardo. Defendant testified that he received three calls from him. The last of the calls was made on a Friday, when Leonardo allegedly threatened the doctor that if he did not supply the medical report, he and his wife would "jump at shadows" when they left the doctor's office at night. It was on the following Sunday that the doctor delivered the medical report. Thus, there was an interval of approximately two days between the alleged threat and the doctor's act in furtherance of the conspiracy.
Whether duress is available as a defense to a crime has not been specifically decided by the courts of this State. It has been discussed in State v. Dissicini , 126 N.J. Super. 565 (App. Div. 1974), aff'd o.b. 66 N.J. 411 (1975);
State v. Churchill , 105 N.J.L. 123 (E. & A. 1928), and State v. Palmieri , 93 N.J.L. 195 (E. & A. 1919).
In Dissicini the issue was whether duress was a defense to the charge of murder. The court held that it was not.
In State v. Palmieri , the court said:
The effect of duress as a defence in a prosecution for crime does not seem to have been considered in any reported case in this state, and there is considerable divergence of judicial opinion elsewhere concerning it. * * * We are not called upon to decide the fundamental question, because even where duress is recognized as a defence, the rule is substantially uniform that the compulsion which will excuse a criminal act must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. [at 199-200]
In that case, after the alleged threats were made in New York City, defendant went to the scene of the crime and participated therein, "hours, if not days, after the threat," and therefore the threat was not "present, imminent ...