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State v. Romano

November 12, 2002

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH ROMANO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Appeal No. 4165.

Before Judges Petrella, Braithwaite and Parker.

The opinion of the court was delivered by: Braithwaite, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2002

Defendant Joseph Romano was convicted in the Clifton Municipal Court of driving while intoxicated ("DWI"), N.J.S.A. 39:4-50. Following a trial de novo in the Law Division, he was again found guilty. An appropriate sentence was imposed, ultimately, and that issue is not raised on appeal.

The issues on appeal are whether the common-law defense of

necessity entitled defendant to an acquittal and whether the Law Division judge committed reversible error by perceiving defendant's defense as duress, as opposed to necessity, and by shifting the burden of proof to defendant to prove the defense of duress by a preponderance of the evidence, rather than imposing the burden of proof on the State to disprove the defense beyond a reasonable doubt. We hold that defendant has established the common-law defense of necessity, and is entitled to a judgment of acquittal on the charge of DWI. We are also satisfied that the Law Division judge erred in shifting the burden of proof to defendant and comment on that issue for future cases.

I.

Essentially, the underlying facts leading to defendant's DWI charge are not in dispute. The State conceded as much at oral argument. On December 1, 1999, at 2:18 a.m., Police Officer W. Stine was on routine patrol on Allwood Road in Clifton when he saw defendant's vehicle traveling "without its headlights on." Officer Stine followed and stopped the vehicle. Upon approaching the vehicle, Officer Stine saw defendant with "[h]is face . . . covered in blood and . . . bleeding profusely from [his] nose . . . . He was physically shaken . . . [and] frightened." Officer Stine summoned an ambulance. Defendant told Officer Stine that he was "scared" and that he was "jumped by some individuals" in the parking lot of Bucco's Restaurant ("Bucco's"), in Clifton." He also stated he was pleased to see Officer Stine and that "he needed help."

On cross-examination, Officer Stine testified that he first observed defendant's vehicle when it was approximately 350 yards from Bucco's parking lot. *fn1 He testified that his attention was drawn to the vehicle because the headlights were off, and not because defendant was speeding or driving erratically. Officer Stine further testified that "[t]he observations [he] made appeared [that] [defendant] was frightened, he was scared, he possibly could be trying to get away from something," and that defendant was vague in identifying his assailants "for fear of making retaliation or some kind of revenge taken on him." The officer also confirmed that defendant was "full of blood" when he first saw him and that "[i]t was on his shirt, on his jeans, you know, it was all over his hands also." Officer Stine also testified that there was blood on the "[s]teering wheel." "There was a lot of blood," and that defendant told him he was coming from the parking lot of Bucco's and Joey's Nightclub ("Joey's"), which is attached to the restaurant.

Patrol cars were subsequently dispatched to the scene but no suspects were found. Defendant was taken to the hospital. At the hospital, defendant furnished Officer Stine with the name and description of an individual. However, no one fitting that description was found. Furthermore, Officer Stine testified that when he first stopped defendant, he saw no sign of the individual described by defendant.

At the hospital, defendant was treated for his injuries, including a broken nose, lacerations, bruises and cuts. Due to the smell of alcohol on defendant's breath, Officer Stine requested that blood be drawn to determine defendant's blood alcohol content. The result of the blood test, which was stipulated to by defense counsel, revealed that defendant had a blood alcohol level of .16.

In the municipal court trial, defendant testified that on November 30, 1999, at 9:30 p.m., he and his girlfriend Dana Corolla went to Bucco's *fn2 for dinner. Defendant and Corolla had dinner and drinks and then moved to the bar around 10:30 p.m., where they engaged in social conversation with the restaurant proprietor's son, Frank Bucco, Jr., ("Bucco, Jr.") and his girlfriend, Jeanine Gingarelli. At some point, while the men were discussing sports, Corolla and Gingarelli left to see defendant's new apartment after making arrangements to return to pick up defendant.

At about 1:45 a.m., defendant went into the bathroom at Bucco's and was approached by three men who "smacked [him around]" and claimed he knew someone who "owed them money."

Defendant believes that Bucco, Jr., may have had something to do with the attack because he and Bucco, Jr., had been arguing at the bar about sports and Bucco, Jr., disappeared around the same time. Defendant left the bathroom and went outside to the parking lot to await Corolla's return. While in the parking lot, defendant was struck from behind by two men, who pulled him on top of a car while a third man proceeded to beat him in the face. Defendant testified that the beating on the car felt like forever but may have been only four or five minutes long. Defendant fell off the car to the ground and his attackers continued to "[t]o kick [him], punch [him], pulled [his] hair, kicking [him] under the car." Defendant testified that he was struck all over and even his ring was bent. "They were stepping on [him]."

Defendant testified that he somehow managed to break free and ran to his car, which was parked approximately fifteen feet away on the side of the building. His attackers pursued him but he managed to get into his car because the driver's side door was broken and remained unlocked. He locked the door from the inside, but the attackers jumped onto the hood of his car, shook and kicked the car and screamed "come out here, we're going to get you, you're dead after this, you'll see what's going to happen . . . ." Defendant testified that there was no one else in the parking lot at the time of the incident and "[he] got scared and [he] just started the car and [he] had to get out of there" because the assailants were threatening "to kill [him]."

As he drove out of the parking lot, defendant saw a police cruiser in front of him. He stated that he was relieved to see the police car because he feared that his attackers would chase after him. He testified that he felt the timely presence of Officer Stine at the scene "might have possibly saved [his] life."

Defendant further testified that he did not have a cell phone or any other means of seeking assistance from his car. He testified that he drove out of Bucco's parking lot about "100 to 150 feet," before being pulled over by Officer Stine. Defendant admitted driving without his headlights on, but stated "[he] was confused . . . [he] couldn't describe it. You know it was fear for [his] life basically and shaken up and [he] wasn't concentrating on the headlight." He further testified that he knew he was seriously injured upon entering his ...


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