On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. 3A-2010-K13.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
Defendant appeals his conviction for driving under the influence, N.J.S.A. 39:4-50, and other traffic offenses, arguing he should have been acquitted because he operated a vehicle on that occasion out of necessity, N.J.S.A. 2C:3-2a. We find no merit in this argument and affirm.
Defendant did not dispute that, at approximately 2:30 a.m. on June 23, 2009, he was driving in Lambertville while under the influence of alcohol. The vehicle defendant was operating belonged to the passenger, H.B., an older male. An officer traveling in the opposite direction observed defendant's vehicle cross the roadway's centerline and effected a stop. Defendant and H.B. failed field sobriety tests and both were arrested. Defendant stipulated in municipal court that a breath test was valid and proved his blood alcohol content was .18.
Despite the concession he was driving while intoxicated, defendant asserted at the trial in municipal court and in appealing to the Law Division that he operated the vehicle out of necessity. This defense was based on defendant's claim that when he was eleven years old he was sexually assaulted by an older boy. Based on this past event, defendant claimed he became fearful that H.B., who had made implicit overtures during the evening, would sexually assault him. Rather than find an alternative course of action to avoid H.B., defendant drove H.B.'s car -- with H.B. as a passenger -- from the hotel/bar in New Hope, Pennsylvania, toward defendant's place of employment in Pennington. To support the reasonableness of that choice, defendant also presented expert testimony to support his claim that H.B.'s alleged sexual overtures caused him to regress to a child-like state of mind. Both the municipal judge and the Law Division judge rejected defendant's necessity defense and found him guilty of driving while intoxicated. N.J.S.A. 39:4-50. Because this was defendant's third such conviction, the Law Division judge imposed a 180-day jail sentence, revoked defendant's driving privileges for ten years, and assessed appropriate monetary penalties.
Defendant appeals, presenting the following single argument for our consideration:
THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT BASED UPON THE RECORD BELOW THAT THE NECESSITY DEFENSE DOES NOT APPLY; THE LAW DIVISION ERRED BY HOLDING DEFENDANT TO AN UNREALISTICALLY HIGH STANDARD IN EVALUATING WHETHER THE STATE DISPROVED THE ELEMENTS OF THE NECESSITY DEFENSE AND IN FAILING TO IMPOSE A STANDARD OF OBJECTIVE REASONABLENESS, THEREBY SHIFTING THE BURDEN OF PROOF TO DEFENDANT.
We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.
N.J.S.A. 2C:3-2a declares, in pertinent part, that "[c]onduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law[.]" This defense is understood as requiring evidence of: (1) an emergent situation arising through no fault of the actor; (2) an emergency so "imminent and compelling as to raise a reasonable expectation of harm" either to the actor or others; (3) the absence of a "reasonable opportunity" to avoid the consequences of the emergent situation without committing the criminal offense; and (4) the jeopardy resulting from the emergency "must be of sufficient seriousness to outmeasure the criminal wrong." State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002) (citations omitted). Law Division Judge Stephen B. Rubin, in his comprehensive written opinion, examined the evidence adduced in the municipal court and found that the State disproved beyond a reasonable doubt the second and third elements of the defense. As a result, Judge Rubin rejected defendant's contention that his offensive conduct should be excused pursuant to N.J.S.A. 2C:3-2a.
We review Judge Rubin's findings by application of the standard enunciated in State v. Locurto, 157 N.J. 463, 471 (1999), which requires appellate deference to factual findings when the findings could reasonably be reached through reliance on credible evidence in the record. See also State v. Yohnnson, 204 N.J. 43, 62 (2010). Only when the record produces a "feeling of 'wrongness'" -- that is, when the appellate court is "thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction" -- will we disregard a judge's factual finding. Locurto, supra, 157 N.J. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Having applied this standard of review, we are compelled to defer to the judge's disposition of defendant's claim that he acted out of necessity when driving while intoxicated on the occasion in question.
Judge Rubin agreed with defendant that the State failed to disprove the first and fourth elements of necessity, so we need only examine his findings on the second and third elements in disposing of defendant's arguments.
In rejecting the second element -- the existence of an imminent and compelling expectation of harm -- Judge Rubin recognized that the evidence demonstrated defendant "was younger and physically larger" than H.B.,*fn1 who was extremely intoxicated. Although there was evidence that might have suggested H.B. had made "untoward advances," the judge found that defendant was not "fearful" of -- only "uncomfortable" with -- the circumstances. The judge recognized that, in an effort to suggest defendant's reaction was reasonable, defendant offered expert evidence in an attempt to prove that defendant was fearful because the circumstances had caused him to "regress to a child-like state during the incident." Although the State did not offer expert testimony, the judge was entitled to reject ...