RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0304-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
M.A., JR.,
Defendant-Appellant.
_______________________
Argued May 24, 2022 – Decided October 4, 2022
Before Judges DeAlmeida and Smith.
On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Indictment No. 15-12-
1349.
Brian P. Keenan, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Brian P. Keenan, of
counsel and on the brief).
Kyle A. Petit, Assistant Prosecutor, argued the cause
for respondent (Angelo J. Onofri, Mercer County
Prosecutor, attorney; Laura Sunyak, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
SMITH, J.A.D.
After defendant, M.A., pled guilty to second-degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b), he was sentenced to an eight-year term of
imprisonment with a four-year term of parole ineligibility. He appeals the trial
court's orders denying his motion to suppress, and barring use of the defense of
necessity at trial. Defendant also appeals his sentence, arguing that the
sentencing court failed to find certain mitigating factors and that resentencing
is required in order to account for the youth mitigating factor under N.J.S.A.
2C:44-1(b)(14). We affirm the trial court's order denying the suppression
motion, reverse the trial court's order barring the necessity defense, and
remand for trial.
I.
The record reveals the following undisputed facts. A Lawrence
Township police officer, Jose Corado, testified for the State. On the evening
of June 23, 2015, at approximately 8:47 p.m., Officer Corado pulled over a
blue four-door Acura after noticing that one of its front headlights was not
working. He exited his patrol car and approached the Acura's passenger side
window on foot. He observed a male driver and a female passenger in the
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front seats. Out of concern for his safety, the officer asked the driver to lower
the tinted rear windows. Once the windows were lowered, he observed two
male passengers in the rear seat of the vehicle.
The officer stood by the front passenger window. Before requesting the
driver's credentials, Officer Corado observed that the female in the front
passenger seat was behaving in an unusual manner, while nervously smoking a
cigarette and blowing the smoke in his direction.
After obtaining the driver's credentials, Officer Corado smelled an odor
of burnt marijuana coming from the car. He was able to identify the odor
based on his experience and training. He next asked the driver if he could
search the vehicle, and the driver consented in writing. The officer elected to
wait for backup before removing all four individuals from the car.
Eventually defendant, one of the rear seat occupants, was searched by
Officer Corado, who felt a "hard metallic object" between defendant's legs.
The officer pulled out a small black .22 caliber Beretta pistol, with a single
bullet in the chamber and no magazine. Officer Corado also searched the other
individuals and the car, but he discovered no other weapons or contraband.
Defendant was arrested.
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After his arrest, defendant gave a statement to the police. He said he had
assisted the police in a previous matter and as a result of that cooperation,
other persons in the community were "after him." Defendant explained that he
had been beaten up twice and shot at once since cooperating with law
enforcement. Seeking protection from law enforcement, defendant contacted
the detective and the prosecutor from the case he cooperated in, however, he
received no assistance. Defendant explained he wanted to move out of state to
avoid the threats, however, he was unable to do so because he was on
probation.
Defendant changed residences in the community where he lived, moving
from his mother's house to his cousin's house in an attempt to avoid the
constant threats on his person. He admitted that he had obtained the Beretta
pistol just days before, and that he acquired it in response to being assaulted
and fired upon. Defendant told the interviewing detective that he knew the
pistol contained only one bullet. He stated that he intended to fire the bullet at
a potential assailant and flee, if assaulted for a fourth time.
A grand jury indicted defendant on second degree unlawful possession
of a handgun, N.J.S.A. 2C:39-5(b); and fourth degree possession of hollow
nose bullets, N.J.S.A. 2C:39-3(f). The trial court denied defendant's motion to
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suppress evidence and later granted the State's motion to preclude the statutory
defense of necessity.
On June 25, 2018, defendant pled guilty. The second weapons charge
was dismissed. After sentencing, defendant appealed, and now makes the
following arguments:
POINT I
THE OFFICER’S REQUEST, WITHOUT A
HEIGHTENED AWARENESS OF DANGER, FOR
THE DRIVER TO ROLL DOWN THE TINTED
REAR WINDOWS SO THAT HE COULD SEE INTO
THE PASSENGER COMPARTMENT FOR HIS
SAFETY, VIOLATED [M.A.'s] RIGHTS AGAINST
UNREASONABLE SEARCHES AND SEIZURES.
POINT II
THE MOTION COURT ERRED IN GRANTING
THE STATE’S MOTION TO PRECLUDE THE
NECESSITY DEFENSE.
POINT III
BECAUSE [M.A.] WAS TWENTY-ONE YEARS
OLD AT THE TIME THE OFFENSE WAS
COMMITTED, RESENTENCING IS REQUIRED TO
CONSIDER THE RECENTLY ENACTED YOUTH
MITIGATING FACTOR, N.J.S.A. 2C:44-1B (14).
(NOT RAISED BELOW)
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POINT IV
THE SENTENCING COURT ERRED IN FAILING
TO FIND MITIGATING FACTORS SUPPORTED
BY CREDIBLE EVIDENCE IN THE RECORD, AND
TO CONSIDER MITIGATING FACTORS RAISED
BY THE DEFENSE. (NOT RAISED BELOW)
II.
The scope of review of a motion to suppress is limited. State v. Robinson,
200 N.J. 1, 15 (2009). "In reviewing a motion to suppress, an appellate court 'must
uphold the factual findings underlying the trial court's decision so long as those
findings are supported by sufficient credible evidence in the record.'" State v.
Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).
An appellate court gives deference to those factual findings in recognition of the
trial court's "opportunity to hear and see the witnesses and to have the 'feel' of the
case, which a reviewing court cannot enjoy." Elders, 192 N.J. at 243.
We will not disturb a lower court's determination unless it is "so clearly
mistaken 'that the interests of justice demand intervention and correction.'" State v.
Gamble, 218 N.J. 412 (2014) (quoting Elders, 192 N.J. at 244). However, legal
conclusions to be drawn from those facts are reviewed de novo. State v. Smith,
212 N.J. 365, 387 (2012).
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The appellate court gives deference to the evidentiary rulings made by a
trial court absent an abuse of discretion. State v. Garcia, 245 N.J. 412, 430
(2021); State v. Rochat, 470 N.J. Super. 392, 453 (App. Div. 2022). The
appellate court will not disturb a trial court's determination "unless the
evidentiary ruling is 'so wide of the mark' that it constitutes a 'clear error in
judgment.'" Garcia, 245 N.J. at 430 (quoting State v. Medina, 242 N.J. 412,
430 (2020)). "A trial court's 'discretion is abused when relevant evidence
offered by the defense and necessary for a fair trial is kept from the j ury.'"
State v. R.Y., 242 N.J. 48, 65 (2020) (quoting State v. Cope, 224 N.J. 530,
554-55 (2016)).
III.
A.
In his first appeal point, defendant offers a narrow argument, one which,
as best we can discern, was not raised with the trial court. Recognizing that
we are not bound to address arguments on appeal not raised in the trial court,
State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006), we proceed using
a plain error standard.
Defendant now contends Officer Corado had no articulable basis to
direct the driver to lower the rear tinted windows, and that the court erred by
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not applying the heightened awareness of danger standard first articulated in
State v. Smith, 134 N.J. 599 (1994), and reaffirmed by the Supreme Court in
State v. Mai, 202 N.J. 12 (2010) and State v. Bacome, 228 N.J. 94 (2017), to
the officer's instruction. Defendant's theory now is that without that initial act
by the officer, the chain of events which led to the gun seizure would not have
occurred.
The State argues before us that reasonableness is the relevant standard to
use when analyzing Officer Corado's initial act that led to the warrantless
search. Reasonableness is "determined by assessing, on the one hand, the
degree to which [a warantless search] intrudes on an individual's privacy and,
on the other, the degree to which it is needed for the promotion of legitimate
governmental interests." State v. Davila, 203 N.J. 97, 111 (2010) (quoting
United States v. Knights, 534 U.S. 112, 118-19 (2001)).
At the argument on the suppression motion, the court rejected
defendant's argument that the heightened awareness of danger standard should
apply, concluding that Smith and its progeny could be distinguished on the
facts. Instead, the court applied the doctrine of exigent circumstances, citing
State v. Walker, 213 N.J. 281 (2013), to support denial of the motion. The
trial court found Officer Corado was justified in removing the occupants from
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the Acura and conducting a warrantless search of the people and the car,
concluding that "the smell of burnt marijuana under the total circumstances
created a heightened and reasonable suspicion that an offense was being
committed." Ibid.
Since defendant now only seeks review of Officer Corado's direction to
the driver to roll down the rear windows, we conclude that the standard by
which we should evaluate the officer's actions is one of reasonableness, not
heightened awareness or exigency.
"The touchstone of the Fourth Amendment and Article I, [P]aragraph 7
of the New Jersey Constitution is reasonableness." State v. Hathaway, 222
N.J. 453 (2015) (citations omitted). To determine whether an officer's conduct
was objectively reasonable, the court must consider "the facts known to the
law enforcement officer at the time of the search." State v Caronna, 469 N.J.
Super. 462, 495 (App. Div. 2021) (quoting State v. Handy, 206 N.J. 39, 46-47
(2011)). In evaluating the sufficiency of the basis for a stop courts "consider
the totality of the information available to the officer at the time of the
conduct.” State v. Myers, 442 N.J. Super. 287, 294 n.2 (App. Div. 2015)
(quoting State v. Presley, 436 N.J. Super. 440, 456 (App. Div. 2014)).
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Based on the totality of the information available to him at the time of
the stop, Officer Corado's concern for his own safety was reasonable. The stop
occurred at nighttime, and the Acura's rear tinted windows prevented Corado
from seeing who, if anyone, was in the rear seat of the car. Although this was
supposed to be a routine traffic stop for a broken headlight, "traffic stops may
be dangerous encounters" and "the fact that there is more than one occupant of
the vehicle increases the possible sources of harm to the officer." Maryland v.
Wilson, 519 U.S. 408, 413 (1997). Corado's inability to quickly ascertain how
many passengers were in the vehicle posed a safety risk, and his direction to
lower the rear windows was an appropriate precaution to take. Such an action
required no heightened awareness of danger or exigent conditions to validate
it. The officer's actions simply had to be objectively reasonable. We find no
plain error in the court's denial of the motion to suppress.
B.
Defendant next argues that the trial court erred by granting the State's
motion to bar defendant from asserting the defense of necessity. Defendant
argues he was faced with a "choice-of-evils" decision in which he risked being
killed if he did not break the law and possess the Beretta to protect himself.
The State argues that the defense of necessity is not applicable under State v.
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1
Kelly, 118 N.J. 370 (1990) , because defendant was not faced with
"spontaneous and compelling danger." Id. at 386.
N.J.S.A. 2C:3-2(a), Necessity and Other Justifications in General, states:
Conduct which would otherwise be an offense is
justifiable by reason of necessity to the extent
permitted by law and as to which neither the code nor
other statutory law defining the offense provides
exceptions or defenses dealing with the specific
situation involved and a legislative purpose to exclude
the justification claimed does not otherwise plainly
appear.
1
In Kelly, the defendant was previously in an abusive relationship with her
ex-boyfriend. 118 N.J. at 373. Although at the time of the altercation the
couple was no longer together, the defendant had tried involving the police
previously and received no help. Id. at 374. After an argument ensued
between the pair, the ex-boyfriend threatened defendant to not come by a
specific corner he frequented. Id. at 373. Due to her previous communications
with the police, she did not contact them about this specific threat. Id. at 374.
The defendant and the ex-boyfriend lived only a few blocks away and she
believed there would be no way to avoid him. Ibid. The defendant decided to
arm herself with a razor before leaving her home that day because of her ex -
boyfriend's threat. Ibid. On her way home she crossed the aforementioned
corner and an altercation ensued between the pair, which resulted in the
defendant slashing the ex-boyfriend with the razor. Ibid. The court noted that
the policy justification of allowing the police to handle the situation rather
than encouraging an environment where citizens take matters into their own
hands supported their holding that defendant was not entitled to the necessity
defense. Id. at 386. In oft-cited dicta, the court stated, "it would appear that
the availability of necessity as a justification for the immediate possession of a
weapon, as with self-defense, is limited only to cases of spontaneous and
compelling danger." Ibid.
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The common-law defense of necessity requires a defendant to show:
(1) There must be a situation of emergency
arising without fault on the part of the actor
concerned;
(2) This emergency must be so imminent and
compelling as to raise a reasonable expectation
of harm, either directly to the actor or upon
those he was protecting;
(3) This emergency must present no reasonable
opportunity to avoid the injury without doing
the criminal act; and
(4) The injury impending from the emergency
must be of sufficient seriousness to out measure
the criminal wrong.
[State v. Romano, 355 N.J. Super. 21, 29 (App.
Div. 2002) (citing State v. Tate, 194 N.J. Super.
622, 628 (App. Div. 1984), rev'd on other
grounds, 102 N.J. 64 (1986)).]
The trial court, leaning heavily upon Kelly in its analysis, made findings.
Accepting defendant's statement to detectives that he had been shot at and
beaten up because he had cooperated with police, the court nonetheless
concluded that defendant could not avail himself of the necessity defense. The
court, citing Kelly, concluded the defense was available "only in cases of
spontaneous action in response to immediate compelling danger."
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Acknowledging that defendant had unsuccessfully sought help from the
police in stopping the ongoing threat, the court reasoned that defendant's
answer was not to arm himself, citing the public policy rationale given by the
Kelly Court for rejecting use of the necessity defense in that case: "[t]he
answer lies in making law enforcement more responsive so that the embattled
person does not face the Draconian choice of bearing arms or withstanding the
onslaught of abuse." Kelly, 118 N.J. at 387.
Our state courts have not addressed the applicability of the necessity
defense to the circumstances presented here. See State v. Tate, 194 N.J. Super.
622 (Law Div. 1984) (examining necessity's applicability to the unauthorized
use of medicinal marijuana); State v. Morris, 242 N.J. Super. 532, 535 (App.
Div. 1990) (examining necessity's applicability to an escape from a prison due
to conditions); Romano, 355 N.J. Super. at 23-24 (examining necessity's
applicability to defendant's DWI charge received after attempting to escape
attackers). However, some federal courts have analyzed the defense of
justification 2 and have fact patterns similar to the record before us. See
2
The four elements of the defense of justification under federal law are
similar but not identical to the four elements of necessity set forth in State v.
Romano. They are:
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Gomez, 526 F.4d at 775 (defendant entitled to present justification defense to
the jury after assisting authorities with criminal investigation and failing to
receive help when receiving death threats as a result of his assistance); United
States v. Alston, 526 F. 3d 91 (3d Cir. 2008) (defendant was not entitled to
present justification defense because verbal threats and their failure to seek
assistance from authorities did not meet the four factors).
We find these cases, particularly the federal ones, instructive but not
determinative. The New Jersey fact patterns are either inapposite or not
compelling as to the third necessity factor, while the federal cases are factually
aligned, but employ a slightly different legal standard to reach their
conclusion.
We find that the best approach to employ in determining whether to
permit the necessity defense to be used at trial is to analyze the record using
______________________
(1) [the person] was under unlawful and present threat
of death or serious bodily injury; (2) [the person] did
not recklessly place himself in a situation where [they]
would be forced to engage in criminal conduct; (3)
[the person] had no reasonable legal alternative; and
(4) there was a direct causal relationship between the
criminal action and the avoidance of the threatened
harm.
[United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).]
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the common-law factors firmly established in our caselaw. Romano, 355 N.J.
Super. at 29. We carefully examine the record to consider whether
circumstances beyond "spontaneous action in response to immediate
compelling danger" exist which would support the "availability of necessity as
a justification for the immediate possession of a weapon . . . ." Kelly, 118 N.J.
at 386. We conclude such circumstances exist.
The record shows defendant cooperated with the police in a previous
investigation, going so far as to wear a wire. By doing so, he assisted police in
performing their duty to protect the public. Through no fault of his own, his
cooperation with the police led to him being beaten up twice and fired upon in
his own community. Defendant was acutely aware that other individuals in the
community wanted to hurt or kill him. We find more than sufficient evidence
in the record to conclude that the threat to defendant was "imminent and
compelling," and raised a reasonable expectation in the defendant that he
would suffer physical injury, if not death.
Defendant's plea to law enforcement for assistance went unanswered.
He tried to move out of state to avoid the threat to his life, however he was
unable to do so. Defendant also changed his local residence to avoid
encounters with his attackers, which didn't work, as he was attacked outside
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his new home. Consequently, he faced a crisis with no opportunity to avoid
repeated assaults until he was severely injured or killed. The record also
shows that defendant did not obtain the Beretta until after someone had
attempted to shoot him.
There is sufficient credible evidence in the record for a jury to find that
each of the Romano elements have been satisfied, and that this record
represents circumstances beyond the "spontaneous action" language of Kelly
which can support a necessity defense.
As a result, the trial court mistakenly exercised its discretion in barring
the necessity defense. State v. R.Y., 242 N.J. at 65-66 (quoting Cope, 224 N.J.
at 554-55). The oft-cited dicta in Kelly regarding the limits of the necessity
defense does not relieve a trial court from its obligation to apply facts in the
record to the four necessity factors to determine if the defense should be
presented to the jury.
Because of the error in barring the defense, we vacate the guilty plea and
sentence and remand to the trial court for further proceedings.
Affirmed in part, vacated in part and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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