For reversal and remandment -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the court was delivered by Pashman, J. Conford, P.J.A.D., Temporarily assigned, concurring in part and dissenting in part. Conford, P.J.A.D., concurring in the result.
[74 NJ Page 423] Defendant Joseph Toscano was convicted of conspiring to obtain money by false pretenses in violation of N.J.S.A. 2A:98-1. Although admitting that he had aided in the preparation of a fraudulent insurance claim by making out a false medical report, he argued that he had acted under duress. The trial judge ruled that the threatened
harm was not sufficiently imminent to justify charging the jury on the defense of duress. After the jury returned a verdict of guilty, the defendant was fined $500.
The Appellate Division affirmed the conviction. 153 N.J. Super. 7 (App. Div. 1975). It stressed that defendant had ample opportunity between the time of the threat and the commission of the allegedly coerced act to report the matter to the police or to avoid participation in the conspiracy altogether. Relying on State v. Churchill, 105 N.J.L. 123 (E. & A. 1928) and State v. Palmieri, 93 N.J.L. 195 (E. & A. 1919), it also concluded that defendant failed to satisfy the threshold condition that the threatened harm be "present, imminent and impending."
We granted certification to consider the status of duress as an affirmative defense to a crime. 68 N.J. 487 (1975). We hold that duress is an affirmative defense to a crime other than murder, and that it need not be based upon an alleged threat of immediate bodily injury. Under the standard announced today, we find that this defendant did allege sufficient facts to warrant charging the jury on his claim of duress. Accordingly, we reverse his conviction and remand for a new trial.
On April 20, 1972, the Essex County Grand Jury returned a 48-count indictment alleging that eleven named defendants and two unindicted co-conspirators had defrauded various insurance companies by staging accidents in public places and obtaining payments in settlement of fictitious injuries. The First Count of the indictment alleged a single conspiracy involving twelve different "staged" accidents over a span of almost three years. In the remaining counts, the participants were charged with separate offenses of conspiracy, obtaining money by false pretenses and receiving fraudulently obtained money.
Dr. Joseph Toscano, a chiropractor, was named as a defendant in the First Count and in two counts alleging a [74 NJ Page 425] conspiracy to defraud the Kemper Insurance Company (Kemper). Prior to trial, seven of the eleven defendants pleaded guilty to various charges, leaving defendant as the sole remaining defendant charged with the conspiracy to defraud Kemper. Among those who pleaded guilty was William Leonardo, the architect of the alleged general conspiracy and the organizer of each of the separate incidents. Although the First Count was dismissed by the trial judge at the conclusion of the State's case,*fn1 the evidence did reveal a characteristic modus operandi by Leonardo and his cohorts which is helpful in understanding the fraudulent scheme against Kemper. Typically, they would stage an accident or feign a fall in a public place.*fn2 A false medical report for the "injured person, together with a false verification of employment and lost wages, would then be submitted to the insurer of the premises. The same two doctors were used to secure the medical reports in every instance except that involving the claim against Kemper. Likewise, the confirmations of employment and lost wages were secured from the same pool of friendly employers. The insurance companies made cash payments to resolve the claims under their "quick settlement" programs, usually within a few weeks after the purported accidents. Leonardo took responsibility for dividing
the funds to the "victims" of the accidents, to the doctors and employers, taking a substantial portion for himself.
Michael Hanaway, an unindicted co-conspirator who acted as the victim in a number of these staged accidents, testified that defendant was drawn into this scheme largely by happenstance. On January 6, 1970, Hanaway staged a fall at E. J. Korvette's in Woodbridge, New Jersey under the direction of Leonardo and Frank Neri, another defendant who pleaded guilty prior to trial. Dr. Miele, one of the two doctors repeatedly called upon by Leonardo to provide fraudulent medical reports, attested to Hanaway's claimed injuries on a form supplied by the insurer. Hanaway was subsequently paid $975 in settlement of his claim by the Underwriters Adjusting Company on behalf of Korvette's insurer.
In the meantime, however, the same trio performed a similar charade at the R.K.O. Wellmont Theater in Montclair, New Jersey. Kemper, which insured the R.K.O. Theater, was immediately notified of Hanaway's claim, and Dr. Miele was again enlisted to verify Hanaway's injuries on a medical report. However, because the R.K.O. accident occurred on January 8, 1970 -- only two days after the Korvette's incident -- Dr. Miele confused the two claims and mistakenly told Kemper's adjuster that he was treating Hanaway for injuries sustained at Korvette's. When Hanaway learned of the claims adjuster's suspicions, he informed William Leonardo who, in turn, contacted his brother Richard (a co-defendant at trial)*fn3 to determine whether Toscano would agree to verify the treatments.
The State attempted to show that Toscano agreed to fill out the false medical report because he owed money to Richard Leonardo for gambling debts. It also suggested that
Toscano subsequently sought to cover up the crime by fabricating office records of non-existent office visits by Hanaway. Defendant sharply disputed these assertions and maintained that he capitulated to William Leonardo's demands only because he was fearful for his wife's and his own bodily safety. Since it is not our function here to assess these conflicting versions, we shall summarize only those facts which, if believed by the jury, would support defendant's claim of duress.
Defendant first met Richard Leonardo in 1953 as a patient and subsequently knew him as a friend. Defendant briefly encountered the brother, William, in the late 1950's at Caldwell Penitentiary when Toscano served as a prison guard. Although William was an inmate, the doctor did not know him personally. Through conversations with some police officers and William's brother and father, however, he did learn enough about William to know of his criminal record.*fn4 In particular, Richard told him many times that William was "on junk," that he had a gang, that "they can't keep up with the amount of money that they need for this habit," and that he himself stayed away from William.
Thus, when William first called the defendant at his office, asking for a favor, he immediately cut off the conversation on the pretext that he was with a patient. Although William had not specifically mentioned the medical form at that time, defendant testified that he was "nauseated" by "just his name." A few days later, on a Thursday evening, he received another call in his office. This time Leonardo asked defendant to make out a report for a friend in order to submit a bill to a claims adjuster. He was more insistent, stating that defendant was "going to do it," but defendant
replied that he would not and could not provide the report. Once again the doctor ended the conversation abruptly by claiming, falsely, that he was with other persons.
The third and final call occurred on Friday evening. Leonardo was "boisterous and loud" repeating, "You're going to make this bill out for me." Then he said: "Remember, you just moved into a place that has a very dark entrance and you leave there with your wife. . . . You and your wife are going to jump at shadows when you leave that dark entrance."*fn5 Leonardo sounded "vicious" and "desperate" and defendant felt that he "just had to do it" to protect himself and his wife. He thought about calling the police, but failed to do so in the hope that "it would go away and wouldn't bother me any more."
In accordance with Leonardo's instructions, defendant left a form in his mailbox on Saturday morning for Leonardo to fill in with the necessary information about the fictitious injuries. It was returned that evening and defendant completed it. On Sunday morning he met Hanaway at a prearranged spot and delivered a medical bill and the completed medical report. He received no compensation for his services, either in the form of cash from William Leonardo or forgiven gambling debts from Richard Leonardo. He heard nothing more from Leonardo after that Sunday.
Shortly thereafter, still frightened by the entire episode, defendant moved to a new address and had his telephone number changed to an unlisted number in an effort to avoid future contacts with Leonardo. He also applied for a gun permit but was unsuccessful. His superior at his daytime job with the Newark Housing Authority confirmed that the quality of defendant's work dropped so markedly that he was forced to question defendant about his attitude. After some conversation, defendant explained that he had been upset by threats against him
and his wife. He also revealed the threats to a co-worker at the Newark Housing Authority.
After defendant testified, the trial judge granted the State's motion to exclude any further testimony in connection with defendant's claim of duress, and announced his decision not to charge the jury on that defense. He based his ruling on two decisions by the former Court of Errors and Appeals, State v. Palmieri, supra, and State v. Churchill, supra, which referred to the common law rule that a successful claim of duress required a showing of a "present, imminent and impending" threat of harm. As he interpreted these decisions, the defendant could not satisfy this standard by establishing his own subjective estimate of the immediacy of the harm. Rather, the defendant was obliged to prove its immediacy by an objective standard which included a reasonable explanation of why he did not report the threats to the police. Since Toscano's only excuse for failing to make such a report was his doubts that the police would be willing or able to protect him, the court ruled that his subjective fears were irrelevant.
After stating that the defense of duress is applicable only where there is an allegation that an act was committed in response to a threat of present, imminent and impending death or serious bodily harm, the trial judge charged the jury:
Now, one who is standing and receiving instructions from someone at the point of a gun is, of course, in such peril. One can describe such threat as being imminent, present and pending, and a crime committed under those circumstances, or rather conduct engaged in under those circumstances, even though criminal in nature, would be excused by reason of the circumstances in which it was committed.
Now, where the peril is not imminent, present and pending to the extent that the defendant has the opportunity to seek police assistance for himself and his wife as well, the law places upon such a person the duty not to acquiesce in the unlawful demand and any criminal conduct in which he may thereafter engage may not be excused. Now, this principle prevails regardless of the subjective estimate he may have made as to the degree of danger with which he or his wife may have been confronted. Under the facts of this case,
I instruct you, as members of the jury, that the circumstances described by Dr. Toscano leading to his implication in whatever criminal activities in which you may find he participated are ...