On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, whose opinion is reported as State v. Saxon, 226 N.J. Super. 653 (Law Div. 1988).
Michels, Deighan and Brochin. The opinion of the court was delivered by Michels, P.J.A.D.
Tried to a jury, defendants Julius Morris (Morris) and Harry Saxon, Jr. (Saxon) were convicted of escape in violation of N.J.S.A. 2C:29-5a. Defendants' motion for a new trial was denied. The trial court committed Morris to the custody of the Commissioner of the Department of Corrections for five years with a two-and-one-half year period of parole ineligibility, which sentence to be served consecutively to the sentence he was then serving. In addition, the trial court assessed Morris a $30 Violent Crimes Compensation Board penalty. The trial court granted the State's motion pursuant to N.J.S.A. 2C:43-7 and N.J.S.A. 2C:44-3 for an extended term on the ground that Saxon was a persistent offender, and committed him to the custody of the Commissioner of the Department of Corrections for a term of eight years with a four-year period of parole ineligibility, which sentence was also to be served consecutively to the sentence that he was then serving. The trial court also imposed a $30 Violent Crimes Compensation Board penalty. Defendants appealed and we consolidated the appeals.
According to the State's proofs, Leesburg State Prison is a large penal institution located in Cumberland County. In addition to a minimum security farm area, the prison has a medium security complex which is surrounded by a fence. The medium
security complex consists of six housing units which are labeled A through F. Behind the E and F housing units is an infrared alarm system. When the infrared beam is broken an alarm registers in the prison's central office. At the time of the incident in question, Saxon was housed in Unit E and Morris in Unit F.
On August 11, 1986, at approximately 8:55 p.m. the infrared alarm sounded in the central office. Correction officers dispatched to the area behind Units E and F noticed that a shield on one of the infrared alarm posts had been bent down. In addition, there was a footprint and blood on the post itself. Later, other officers found a pair of tin snips near the damaged post. Additionally, it was discovered that one of the windows in Unit F was broken and that the bars were bent. Blood was also found on the pavement outside the window. A count of the prison population at approximately 9:15 p.m. revealed that Saxon and Morris were missing along with two other inmates, Hiawatha Bibby and Albert McNeil. A search of Saxon's cell revealed that a laundry bag was arranged in the bed to look like a body.
On August 12, 1986, the day after the inmates left the medium security area, search patrols were dispatched to look for the missing men. At approximately 6:44 p.m. Officer Emil Gardner, one of the searching officers, responded to a restaurant located some five miles from the prison grounds. Behind the restaurant is a marshy area covered with high reeds which leads into a forest. Officer Gardner entered the marshy area and noticed that a path had been made in the reeds. Gardner followed the path and found inmates Saxon, Morris and McNeil crouched down in a clearing. Defendants and the other inmate were apprehended and brought back to the prison.
Defendant Morris seeks a reversal of his conviction, or alternatively, a modification of his sentence on the following grounds set forth in his brief:
I. THE TRIAL COURT'S DECISION TO PRECLUDE DEFENDANT FROM PRESENTING THE AFFIRMATIVE DEFENSE OF DURESS AND/OR NECESSITY WAS ERROR.
II. THE COURT'S DECISION TO ALLOW ADMISSION OF PRIOR CONVICTIONS OF THE DEFENDANT WAS ERROR.
III. THE TRIAL COURT'S LIMITATION OF THE QUESTIONING OF CERTAIN WITNESSES DENIED THE DEFENDANT A FAIR TRIAL (Partially raised below).
IV. IT WAS ERROR FOR THE COURT TO FAIL TO CHARGE THE JURY ON DURESS.
V. COMMENTS MADE BY THE STATE DURING SUMMATION WERE IMPROPER AND DENIED THE DEFENDANT OF A FAIR TRIAL (not raised below).
VI. THE PERIOD OF PAROLE INELIGIBILITY IMPOSED UPON THE DEFENDANT IN HIS SENTENCE SHOULD BE VACATED (not raised below).
Defendant Saxon also seeks a reversal of his conviction or, alternatively, a modification of his sentence on the following grounds:
I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PRECLUDING DEFENDANT FROM RAISING THE AFFIRMATIVE DEFENSES OF DURESS AND/OR NECESSITY.
II. THE PROSECUTOR'S SUMMATION FAR EXCEEDED THE BOUNDS OF PROPRIETY, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL.
III. THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-APPELLANT TO AN EXTENDED TERM OF IMPRISONMENT.
IV. THE TRIAL JUDGE ERRED IN IMPOSING THE FOUR YEAR PERIOD OF PAROLE INELIGIBILITY.
We have carefully considered these contentions and all of the arguments advanced by both defendants in support of them and find that they are clearly without merit. R. 2:11-3(e)(2). However, further comment may be helpful with respect to some of these contentions.
We are satisfied that the trial court properly conducted a pretrial hearing on whether to allow defendants to raise the defense of duress and necessity. The procedure that was followed here conforms to the practice approved by the United States Supreme Court in United States v. Bailey, 444 U.S. 394,
100 S. Ct. 624, 62 L. Ed. 2d 575 (1980). We are also satisfied that the trial court properly precluded defendants from presenting their duress and necessity defense to the jury. We, therefore, affirm these pretrial rulings substantially for the reasons expressed by Judge Serata in his opinion reported as State v. Saxon, 226 N.J. Super. 653, 545 A.2d 255 (Law Div.1988).
Additionally, we point out that defendants' duress defense is specifically precluded by the statute proscribing escape. N.J.S.A. 2C:29-5 provides:
a. Escape. A person commits an offense if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. "Official detention" means arrest, detention in any facility for custody of persons under charge or conviction of a crime or offense, or committed pursuant to chapter 4 of this Title, or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but "official detention" does not include supervision of probation or parole, or constraint incidental to release on bail.
b. Permitting or facilitating escape. A public servant concerned in detention commits an offense if he knowingly or recklessly permits an escape. Any person who knowingly causes or facilitates an escape commits an offense.
c. Effect of legal irregularity in detention. Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority, shall not be a defense to prosecution under this section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings. In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if:
(1) The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; or
(2) The detaining authority did not act in good faith under color of law.
d. Grading of offenses. An offense under this section is a crime of the second degree where the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape. Otherwise it is a crime of the third degree. [Emphasis added].
Although N.J.S.A. 2C:29-5(c) has not been construed by a New Jersey court, the legislative history makes absolutely clear that deficiencies in prison life do not ...