STATE OF NEW JERSEY v. DANIEL ST. CLAIRE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5928-04T4

A-3392-05T43392-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL ST. CLAIRE,

Defendant-Respondent.

___________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THERESA THOMPSON,

Defendant-Appellant.

___________________________________

 

Argued/Submitted April 30, 2007 - Decided

 
Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Ocean County,

04-07-1243.

Stephen W. Kirsch, Assistant Deputy Public Defender, argued the cause for appellant in A-5928-04T4 (Yvonne Smith Segars, Public Defender, attorney; Mr. Kirsch, of counsel and on the brief).

Yvonne Smith Segars, Public Defender, attorney for appellant in A-3392-05T4

(Roger L. Camacho, Designated Counsel,

of counsel and on the brief).

William Kyle Meighan, Assistant Prosecutor, argued the cause for respondent in A-5928-04T4 (Thomas F. Kelaher, Ocean County Prosecutor, attorney in A-5928-04T4 and A-3392-05T4; Samuel Marzarella, Senior Assistant Prosecutor, of counsel; Mr. Meighan, on the briefs).

PER CURIAM

These two appeals, calendared back-to-back, arise out of a single indictment and are consolidated for the purpose of this opinion. On July 27, 2004, an Ocean County grand jury returned Indictment No. 04-07-1243 charging defendants, Daniel St. Claire and Theresa Thompson, with second-degree robbery, N.J.S.A. 2C:15-1 (Count One). On March 14, 2005, following a four-day trial in which St. Claire did not participate and Thompson testified, a jury found both defendants guilty of second-degree robbery. On May 20, 2005, St. Claire was sentenced to a seven-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Thompson was sentenced as a third-degree offender, N.J.S.A. 2C:44-1f(2), to a three-year term with a NERA period of parole ineligibility. Both defendants appeal and we reverse both convictions and remand for a new trial.

During the afternoon of May 20, 2004, Daniel Senkeleski, then eighteen years old, went to an abandoned railroad bridge known as the trestle in Lacey Township with three of his friends, Tom Carapelho, Dave Jesuele, and Anthony Sestitto. Senkeleski was wearing a long, fourteen-karat gold chain around his neck. When Senkeleski arrived, he observed a group of three other people, two males and a female, whom he did not know, already at the trestle. One of those individuals, St. Claire, was described by Senkeleski as a "pretty big guy . . . kind of like built a little bit . . . a little taller than [six feet and weighing] [t]wo something. Maybe three. Pretty big." St. Claire was drinking beer. Senkeleski identified Thompson as the woman. The third member of the group, Thompson's fiancé, Donald Radomski, stayed by a nearby car and did not talk to Senkeleski or his friends.

Senkeleski and his friends sat on the edge of the trestle with their backs to the water below. They had just begun drinking vodka. Within five minutes of their arrival, St. Claire approached Senkeleski and began talking to him, noting that Senkeleski's necklace was "nice." Standing directly in front of Senkeleski at arm's length with Thompson approximately two to five feet behind him, St. Claire asked Senkeleski if he wanted to trade his necklace for one St. Claire was wearing, which was a "shark tooth type thing." St. Claire said, "let me try yours on. You could try mine on." Senkeleski declined the offer.

Approximately a minute later, St. Claire asked again to trade necklaces. Senkeleski indicated he would not trade necklaces or give his necklace to St. Claire. Senkeleski also claimed that his gold necklace was fake. Senkeleski was sitting on the edge of the trestle, which was twenty feet above water four feet in depth with jagged rocks. Senkeleski felt intimidated because St. Claire was twice his size. He "was looking for . . . a way to escape."

After Senkeleski declined to trade the second time, St. Claire, in a "dead serious" manner, placed Senkeleski's necklace in his hand while it was still around Senkeleski's neck and said "you better give it to me. I just got out of jail. I'll throw you off the bridge." Senkeleski was "[p]retty scared at [this] point," and "just wanted to get out of there," but did not want to give up his necklace. Carapelho explained that he, Sestitto, and Jesuele did not try to help Senkeleski because they all would have been beaten up by St. Claire and there was nothing they could do to prevent St. Claire from pushing Senkeleski over the edge.

As St. Claire threatened Senkeleski, Thompson remained "[r]ight there by him." She tried to persuade St. Claire to stop by telling him, "[N]o. Let's go. Let's get out of here. . . . [I]t looks fake." Senkeleski testified on direct that St. Claire then let go of the necklace, turned his back and walked a couple of feet away. Senkeleski felt relieved because St. Clair was not so close that he could just push Senkeleski over the edge. Thompson then came over and ripped the necklace off Senkeleski's neck, breaking the clasp.

On cross-examination, Senkeleski was confronted by Thompson's counsel with a statement he had given to the police. Senkeleski acknowledged that in the statement he said St. Claire was right there in his face when Thompson snatched the necklace. Senkeleski also stated, "I don't remember the exact, you know, if he was an inch, a foot. I don't remember."

Carapelho's testimony essentially mirrored that given by Senkeleski. He confirmed that Thompson attempted to get St. Claire to leave by telling him not to bother with the necklace because it was fake. He also described Thompson's actions as "unexpected" because Thompson "[w]as being all calm and [then] all of [a] sudden [she] ripped it off his neck." Carapelho estimated that twenty seconds elapsed between the time St. Claire let go of the necklace and Thompson grabbed it. According to Carapelho, St. Claire did not walk away nor did he turn around after he released the necklace. "[H]e was still standing there making remarks to [Senkeleski]."

After Thompson took the necklace, St. Claire got "in [Senkeleski's] face" and said, "you better remember these eyes." As St. Claire and Thompson walked away, Thompson gave the necklace to St. Claire who tried it on. St. Claire and Thompson got into a car with Radomski and, as they drove away, St. Claire was "waving . . . and laughing" at Senkeleski and his friends. Senkeleski took down the license plate number and contacted the police.

Sergeant Michael DiBella of the Lacey Township Police Department and Steve Korman of the Seaside Heights Police Department investigated Senkeleski's report regarding the incident. One day after the incident, DiBella's investigation led him to the Village Inn, a hotel in Seaside Heights, where he believed Thompson and Radomski were staying. DiBella and Korman went to room 318, which was registered to Radomski, and knocked on the door. Thompson opened the door and DiBella observed St. Claire in the room wearing a gold necklace matching the description of the necklace taken from Senkeleski. Thompson came out of the room to speak with DiBella and volunteered the information that she was the person who ripped the necklace off of Senkeleski's neck. Following this conversation, DiBella observed that St. Claire was no longer wearing the gold chain in the room. Eventually, Thompson retrieved the necklace from the room and turned it over to DiBella.

Thompson, thirty-two years old at the time of trial, gave the following testimony in her own defense. She admitted that she had previously been convicted of a third-degree offense in 1996, and two third-degree offenses and a fourth-degree offense in 1998. Although she had dated St. Claire when she was fifteen years old, she had not seen him for many years prior to May 20, 2004. On that day, Thompson saw St. Claire at a payphone, recognized him, and they, along with Radomski, decided to go to the trestle to catch some sun and to swim. They were at the trestle for hours before Senkeleski and his friends arrived, during which time St. Claire drank more than a twelve pack of beer. Over objection from St. Claire's counsel, Thompson gave her opinion regarding St. Claire's character, explaining that based on her having been with St. Claire on many occasions when they were younger, she was of the opinion that "[w]hen [St. Claire] drinks, he becomes very violent."

Thompson indicated that she heard St. Claire threaten to throw Senkeleski off the trestle if he did not give St. Claire the gold necklace. She maintained that St. Claire just "stood there . . . never walked away . . . [a]nd he was antagonizing" Senkeleski. Thompson told St. Claire to stop, and not to hurt Senkeleski. She claimed that in order to prevent St. Clair from hurting Senkeleski or anyone else, she took the necklace off Senkeleski's neck. She stated that she knew "when [St. Claire's] eyes change that he is going to strike."

According to Thompson, after she took Senkeleski's necklace, she, Radomski and St. Claire left the trestle. On cross-examination, Thompson admitted that she told police the trio drove by a pawnshop after leaving the trestle, but did not stop at the shop because it was closed. Radomski and Thompson dropped off St. Claire, who was wearing the necklace, and then returned to the Village Inn for the evening. The next day, St. Claire came to the Village Inn and told Radomski and Thompson not to say anything about the incident at the trestle. When police arrived later in the day, Thompson voluntarily told the police what happened at the trestle, indicating that she took the necklace because she thought Senkeleski would be injured by St. Claire if St. Claire did not get the necklace. Thompson then retrieved the necklace and gave it to the police.

On appeal, St. Claire raises the following points:

POINT I

DEFENSE COUNSEL WAS UNCONSTITUTIONALLY INEFFECTIVE WHEN HE CONCEDED THE DEFENDANT'S GUILT OF ROBBERY -- THE ONLY OFFENSE IN THE INDICTMENT -- IN HIS SUMMATION, NOT FOR ANY CONCEIVABLE STRATEGIC REASON, BUT, RATHER, BECAUSE HE DID NOT KNOW THAT A MERE ATTEMPTED THEFT, NOT A COMPLETED ONE, SATISFIED THE THEFT ELEMENT OF ROBBERY, NOR THAT A THREAT OF BODILY INJURY RATHER THAN ACTUAL FORCE IS ALL THAT IS REQUIRED FOR ROBBERY, POINTS QUICKLY SEIZED UPON BY BOTH THE PROSECUTOR AND THE CODEFENDANT'S ATTORNEY IN THEIR SUMMATIONS. (Not Raised Below).

POINT II

AS WAS THE BASIS FOR REVERSAL IN STATE V. GONZALEZ, THE TRIAL JUDGE CHARGED THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT EVER DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).

POINT III

THE CODEFENDANT'S TESTIMONY THAT DEFENDANT'S CHARACTER IS ONE OF A VIOLENT DRUNK AND THAT DEFENDANT HAS BEEN VIOLENT IN THE PAST WHILE DRUNK WAS GROSSLY IMPROPER AND INADMISSIBLE.

Because we are convinced that the failure to instruct the jury on the elements of criminal attempt as raised in Point II requires reversal of the judgment, we need not discuss St. Claire's Point I contention that he received ineffective assistance of trial counsel. In its closing argument, the State asserted that St. Claire committed robbery either (1) independent of Thompson by threatening Senkeleski with force during an attempted theft, or (2) as an accomplice of Thompson who actually perpetrated the robbery. In his summation, the prosecutor maintained:

You could look at it as one robbery by two people. And I submit to you that the evidence supports that. You can parse it another way. You could look at it as two separate robberies. . . .

When . . . St. Claire threatened bodily injury to Danny Senkeleski and attempted to commit a theft, he completed a robbery. That doesn't mean it didn't continue. But he completed a robbery.

If you walk up to somebody and you threaten them with bodily injury and you demand their money or their property or a dollar or a dime, that's a robbery, in the course of committing a theft, that includes an attempted theft. . . .

You don't need force. You need the threat of bodily injury. . . .

On . . . St. Claire's behalf, he completed a robbery. . . . [O]nce he walked up to that kid and got in his face and took his necklace in his hands and threatened to throw him off that trestle. . . .

. . . .

He threatened force and attempted a theft and then continued to participate. That's a robbery. She used force and actually committed a theft by using force.

. . . .

Don't be fooled. . . . [The judge] is going to tell you about accomplice liability. And that is part of this case. She is his accomplice. He is her accomplice. And they both committed an independent robbery, by the way. . . .

. . . .

[St. Claire] threatened Danny Senkeleski to get a necklace, intending to get that necklace. That's a robbery. [Thompson] snatched it off his neck, broke

it, using force, and gave it to [St. Claire]. . . . That is a robbery. . . .

(emphasis added.)

The judge gave the following instruction on the elements of robbery:

A person is guilty of robbery if, in the course of committing a theft, he or she knowingly inflicts bodily injury or uses force upon another; or threatens another with or purposely puts him in fear of immediate bodily injury.

. . . .

. . . [A]n act is considered to be "in the course of committing a theft" if it occurs in an attempt to commit the theft, during the commission of the theft itself, or in immediate flight after the attempt or commission.

Theft is defined as the unlawful taking or exercise of unlawful control[] of the property of another with a purpose to deprive him thereof. (emphasis added.)

Although the judge instructed the jury on purposeful and knowing use of force and threats as elements of robbery in the course of committing a theft, he did not similarly explain the elements of attempt. In his charge on accomplice liability, the judge explained to the jury that an "[a]ttempt to aid means that a person takes substantial steps in a course of conduct designed to or planned to lend support or assistance to the efforts of another to cause the commission of the substantive offense." Because St. Claire did not raise the failure to charge attempt at the time of trial, we must review his contention on appeal under the plain error standard. R. 2:10-2. The underlying principles are well settled. In the context of a jury charge, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). The charge must be taken as a whole, and the alleged error should not be viewed in isolation. Ibid. "[A]ny finding of plain error depends on an evaluation of the overall strength of the State's case." Ibid. (citing State v. Cotto, 182 N.J. 316, 326-27 (2005)). However, generally jury instructions are "poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987). A jury instruction that does not fully and accurately define the standard of culpability is deficient. See State v. Clausell, 121 N.J. 298, 316-19 (1990).

N.J.S.A. 2C:5-1 defines the elements of criminal attempt in the following manner:

a. Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(1) Purposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be;

(2) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing such result without further conduct on his part; or

(3) Purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

b. Conduct which may be held substantial step under subsection a. (3). Conduct shall not be held to constitute a substantial step under subsection a. (3) of this section unless it is strongly corroborative of the actor's criminal purpose.

c. Conduct designed to aid another in commission of a crime. A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under section 2C:2-6 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

State v. Gonzalez, 318 N.J. Super. 527, 532-37 (App. Div.), certif. denied, 161 N.J. 148 (1999), addressed, in the context of plain error, the failure of a trial court to charge a jury on purposeful conduct under N.J.S.A. 2C:5-1a(1) or substantial step under N.J.S.A. 2C:5-1a(3) and -1b when charging the jury on the elements of robbery. The defendant in Gonzalez was convicted of robbery and felony murder. Id. at 528. In order to sustain the felony murder conviction, the State was required to show that the victim was killed as a result of the defendant's attempted robbery of the victim. Id. at 533. However, the State was unable to offer any evidence that the victim was ever robbed. Id. at 534. The defendant had given the police an inculpatory statement, later recanted, which if believed by the jury would have established that he intended to rob the victim. Ibid. Thus, there was compelling evidence that the defendant intended to commit a robbery and took substantial steps to commit the robbery. Although the judge charged and defined purposeful and knowing conduct in conjunction with robbery under N.J.S.A. 2C:15-1, he omitted instructing the jury as to attempt under N.J.S.A. 2C:5-1a and b and the required element of purposeful conduct. Id. at 536.

Reversing the defendant's convictions, the panel found:

Although [strong evidence existed which], if believed by the jury, would allow a conclusion that defendant intended to commit robbery and took a substantial step to commit robbery . . . the jury was not charged by the judge as to the inchoate crime of attempt as defined by N.J.S.A. 2C:5-1. The jury was thus never apprised that attempt requires purposeful conduct as compared to purposeful or knowing conduct, nor was the jury charged as to a "substantial step," N.J.S.A. 2C:5-1a(3), or that a "substantial step" may be dispositive if "it is strongly corroborative of the actor's criminal purpose." N.J.S.A. 2C:5-1b.

[Id. at 534.]

Noting that the Model Criminal Charge regarding attempt should have been provided to the jury, the panel concluded that failure "to apprise the jury that the standard of culpability [for attempt] is purposeful conduct" constituted plain error. Id. at 536.

In State v. Smith, 322 N.J. Super. 385, 398-400 (App. Div.), certif. denied, 162 N.J. 489 (1999), another panel addressed whether plain error existed where the trial court failed to charge the jury on attempt in the context of a robbery charge in conjunction with a defendant being tried for, among other things, robbery and felony murder. The Smith panel distinguished Gonzalez, explaining that the trial court fully and accurately explained the elements of attempt when it instructed the jury on the charge of attempt to sell a weapon. Id. at 399. The panel concluded that "the overwhelming evidence of defendant's guilt, and the appearance elsewhere in the jury instructions of a proper charge on attempt, [left] no doubt that the failure to define attempt in the robbery charge did not prejudice defendant's rights." Id. at 400.

The State conceded at oral argument on appeal that, like the circumstances in Gonzalez, the trial judge failed to charge the jury on the elements of criminal attempt as set forth in Model Jury Charge (Criminal), "Attempt" (1997). The State, however, argues that because its primary theory of the case was that both defendants acted together as accomplices, the failure to charge attempt was harmless error. We disagree. One need only look to the closing statement of the prosecutor to see that the state forcefully argued that St. Claire's conduct constituted an attempted theft and was, therefore, sufficient to satisfy the "in the course of committing a theft" element of robbery. N.J.S.A. 2C:15-1.

The State also points to the judge's instructions regarding attempt to aid in a theft in which the judge defined purposeful and knowing conduct in the context of accomplice liability, arguing that, in the context of the entire charge, the jury understood the need to find beyond a reasonable doubt that St. Claire acted purposely in taking a substantial step toward commission of a theft. The State's argument is unavailing. The State's contention fails to recognize that an attempt to aid, N.J.S.A. 2C:5-1c, is a separate and distinct way of incurring criminal liability apart from an attempt under N.J.S.A. 2C:5-1a and b. Compare Model Jury Charge (Criminal), "Attempt" (1997) with Model Jury Charge (Criminal), "Criminal Liability for Another's Conduct/Complicity-Lesser-Includeds (Charge 2)" (1995) (defining attempt to aid).

As in Gonzalez, the jury was not provided with an adequate "road map" to guide their deliberations on the standard of culpability in conjunction with the essential elements of an attempted theft or the parameters of a "substantial step" as required by N.J.S.A. 2C:5-1a and b, despite the existence of compelling evidence of guilt. We therefore conclude that the erroneous jury instruction constituted plain error and was not harmless beyond a reasonable doubt. We are, therefore, constrained to reverse the judgment of conviction and remand for a new trial.

Before addressing the issues raised by Thompson, we make the following brief comments regarding St. Claire's Point III argument. St. Claire asserts that the evidence elicited from Thompson on both her direct testimony and cross-examination by the State that he is violent and aggressive when he drinks is contrary to the proscription against character evidence under N.J.R.E. 404(a) and evidence of other wrongs under N.J.R.E. 404(b). The State conceded at oral argument on appeal that because the evidence was offered as character evidence it is inadmissible but asserted that it was nevertheless harmless. On retrial, N.J.R.E. 404(a) would preclude its admission as evidence of a character trait for the purpose of proving that St. Claire acted in conformity therewith on a particular occasion. However, that does not necessarily mean that the evidence would not be admissible under N.J.R.E. 404(b) on Thompson's behalf to show absence of mistake on her part in grabbing the necklace, providing that issue is raised and an adequate limiting instruction is given. We leave that for consideration by the Law Division on remand.

On appeal, Thompson raises the following points:

POINT I

THE TRIAL COURT REVERSIBLY ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THOMPSON'S (1) ORAL STATEMENT GIVEN AT THE DOOR OF THE APARTMENT OF THE VILLAGE INN BECAUSE THE POLICE HAD NOT PROVIDED HER WITH HER MIRANDA RIGHTS UNDER THE "FUNCTIONAL EQUIVALENT" OF INTERROGATION BEFORE SHE GAVE THAT STATEMENT AND (2) TAPED AND TRANSCRIBED STATEMENT GIVEN AT POLICE HEADQUARTERS UNDER THE "FRUIT OF THE POISON TREE DOCTRINE."

U.S. CONST. AMENDS V & VI; N.J. CONST. (1947) ART. I PARAS. 7 AND 10.

POINT II

THOMPSON WAS ENTITLED TO HER REQUESTED NECESSITY CHARGE UNDER N.J.S.A. 2C:3-2(a) TO PERMIT THE JURY TO DECIDE THE FACTUAL ISSUES UNDERLYING WHETHER THAT DEFENSE APPLIED UNDER THE FACTS OF THE CASE AT BAR.

U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. I PARA. 10.

POINT III

THOMPSON WAS ENTITLED TO HER REQUESTED CHARGE OF MISTAKE OF FACT OR LAW UNDER THESE FACTS IN WHICH SHE CONTENDED THAT SHE BELIEVED THAT ST. CLAIRE WAS GOING TO THROW SENKELESKI OFF THE TRESTLE AND HER INTERCESSION IN TAKING THE CHAIN TO AVOID ST. CLAIRE'S KILLING OR SERIOUSLY MAIMING SENKELESKI WAS A LEGAL DEFENSE TO A ROBBERY CHARGE. U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. I PARA. 10.

POINT IV

THE TRIAL COURT REVERSIBLY ERRED IN PROVIDING AN ACCOMPLICE CHARGE AS TO THOMPSON ON THE SECOND DEGREE ROBBERY CHARGE AND A LESSER INCLUDED THEFT FROM THE PERSON CHARGE, OVER HER OBJECTION, WHERE THE EVIDENCE FAILED TO INDICATE A RATIONAL BASIS FOR ACCOMPLICE LIABILITY. U.S. CONST. AMEND. VI; N.J. CONST. (1947) ART. I PARA. 10.

POINT V

THOMPSON'S SENTENCE OF THREE YEARS OF IMPRISONMENT WITH AN 85% PERIOD OF PAROLE INELIGIBILITY UNDER NERA, ALTHOUGH REACHED BY DROPPING A DEGREE FROM A SECOND DEGREE CONVICTION TO A THIRD DEGREE CONVICTION WAS STILL EXCESSIVE GIVEN HER MEDICAL CONDITION OF BEING HIV POSITIVE AND HAVING HEPATITIS C AND THE NEED TO CARE FOR HER FATHER WHO IS ALSO HIV POSITIVE.

Thompson argues in Point I that her initial statement to the police, given at the Village Inn while outside an opened door, that she took the chain from Senkeleski's neck immediately after DiBella identified himself and indicated he was investigating a robbery should be excluded because she was not first given her Miranda rights. She also maintains that because she was not given her Miranda rights prior to her initial statement, the taped statement she provided at police headquarters, after being given her rights, should have been suppressed as fruit of the poisonous tree.

Our review of the record satisfies us that Thompson was not entitled to the protection of Miranda because she was not in custody at the time she made her initial statement. See Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706; State v. Pearson, 318 N.J. Super. 123, 132 (App. Div. 1999). Moreover, DiBella's introductory statement to Thompson did not amount to an interrogation because it was not known to be reasonably likely to evoke an incriminating response. See State v. Ward, 240 N.J. Super. 412, 418 (App. Div. 1990) (citing Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S. Ct. 1682, 1689-90, 64 L. Ed. 2d 297, 307-08 (1980)); see also State v. Cryan, 363 N.J. Super. 442, 452 (App. Div. 2003). The judge correctly denied Thompson's pretrial motion to suppress her statements.

Next, Thompson asserts that the trial judge erred in refusing to instruct the jury on the affirmative defense of necessity. We restate the applicable principles. N.J.S.A. 2C:3-2a provides for an affirmative justification defense of necessity:

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.

In codifying the defense, the Legislature "set forth three limiting criteria governing the defense: (1) conduct is justifiable only to the extent permitted by law, (2) the defense is unavailable if either the Code or other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved, and (3) the defense is unavailable if a legislative purpose to exclude the justification otherwise plainly appears." State v. Tate, 102 N.J. 64, 70 (1986).

Here, the robbery statute does not address the specific situation encountered by Thompson and there does not appear to be any clear legislative intent to provide for or to preclude the defense under those circumstances. Thus, whether the defense is available depends on whether Thompson satisfied the common-law requirements for asserting a necessity defense. See Id. at 73.

"'The common-law defense of "necessity" is often referred to as the "choice-of-evils" defense.'" State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002) (quoting Tate, supra, 102 N.J. at 73). "'Conduct that would otherwise be criminal is justified if the evil avoided is greater than that sought to be avoided by the law defining the offense committed . . . .'" Ibid. The four elements for the common-law defense are:

"(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."

[Ibid. (quoting State v. Tate, 194 N.J. Super. 622, 628 (App. Div. 1984), rev'd on other grounds, 102 N.J. 64 (1986)).]

The defense is rooted in public policy and

"reflects a determination that if, in defining the offense, the legislature had foreseen the circumstances faced by the defendant, it would have created an exception." Tate, supra, 102 N.J. at 73. Thus, "the defense is available at common law only when the legislature has not foreseen the circumstances encountered by a defendant." Id. at 74. If the legislature "has in fact anticipated the choice of evils and determined the balance to be struck between the competing values, defendants and courts alike are precluded from reassessing those values to determine whether certain conduct is justified." Ibid.

[Romano, supra, 355 N.J. Super. at 29-30.]

Although the judge found that there was a rational basis to believe that Thompson reasonably and genuinely perceived a threatened harm and that the threatened harm arose through no fault of Thompson, he rejected Thompson's request to instruct necessity as a defense. The judge found that committing a criminal act was not the only way to avoid the threatened harm.

I'm not persuaded that the only way to avoid the harm is by committing the criminal act has been satisfied in this case.

Although there is some fine factual disputes, there is no question that Mr. St. Claire had taken his hand off the chain and stepped back and/or walked away, depending on which State witness you believe.

I am satisfied there are other means that Ms. Thompson could have availed herself of: One, to interpose herself between the victim and Mr. St. Claire. A person with whom she had a relationship with, presumably a good one. She was socializing with him that day.

She could have walked to the car and said she was going to call the police. She didn't do those things.

The judge also concluded that public policy did not favor charging the jury on necessity because the avoidance of the harm did not outweigh the values protected by the criminal law that was violated.

State v. Tate . . . says the underlying value judgment, assuming the required elements do have factual underpinning[s] as to whether the individual's need outweighs society's interest in enforcing the criminal law, must be made by the judge after hearing the proofs.

And I'm not persuaded that that fourth tier has been met here.

Essentially, the defense is arguing that the act of Ms. Thompson in committing an act of violence to prevent an act of violence here is justified under the doctrine of necessity.

The Court would note, from policy consideration, that [it] is her conduct subsequent to the events in question [that] militate against that finding. She left with [St. Claire]. There was evidence that they went to a pawn shop. Although she disavowed any intent to participate in that. She gave the chain to [St. Claire]. The next day, she again resocialized with [St. Claire] at her residence. He was wearing the chain. She didn't go to the police or call the police or take any steps to correct the wrong that she sought to avoid.

So from a public policy standpoint, under the facts of this case, I'm not persuaded the avoidance of the harm outweighs the values protected by the criminal law.

By this analogy, someone could walk into a convenience store, a person could point a gun at the individual behind the counter, and the person could come into court and say, I took the money from the cash register to avoid the grocer being shot by the person holding the weapon.

And I'm not so sure that's the policy situation we want to further here.

She was not a disinterested party who intervened. She was acting in concert, at least socializing with [St. Claire]. And didn't take any steps to detach herself from him after the fact.

We focus our analysis first on the judge's conclusion that the evidence failed to establish the third element of the defense, that is, established the lack of a reasonable opportunity to avoid the injury without doing the criminal act. In reaching his conclusion, the judge found that "there is no question that Mr. St. Claire had taken his hand off the chain and stepped back and/or walked away, depending upon which State witness you believe." However, these findings go to the second element requiring an emergency that is so imminent and compelling as to raise a reasonable expectation of harm, not the existence of a reasonable legal alternative. The judge initially found that there were sufficient facts to establish the second element, namely, that Thompson reasonably and genuinely perceived a threatened harm. Indeed, Senkeleski's acknowledged statement to the police, as well as Carapelho's testimony, and the version given by Thompson all raised a question whether St. Claire backed off Senkeleski or was still within striking distance after taking his hands off the necklace.

There was conflicting testimony as to whether St. Claire was still facing Senkeleski when Thompson snatched the necklace from Senkeleski's neck. Moreover, Thompson testified that she continued to harbor the belief that St. Claire was going to injure Senkeleski after he removed his hands from the necklace. Indeed, after Thompson grabbed the necklace from Senkeleski, St. Claire continued to taunt Senkeleski. The trial judge alluded to Thompson being able to either call the police or interpose herself between Senkeleski and St. Claire. The record does not establish that there was a cell phone available to Thompson. Whether or not she could have successfully diffused the situation by inserting herself between St. Claire and Senkeleski or walking to the car is a question for the jury.

The judge's findings regarding the fourth element focused on Thompson's conduct after the threat of harm had dissipated rather than whether the impending harm to Senkeleski was sufficiently serious at the time Thompson acted to out-measure the criminal wrong. The law deems death or serious injury as the distinguishing factor between first-degree and second-degree robbery. N.J.S.A. 2C:15-1. Thus, the infliction or attempted infliction of serious injury or death is a greater evil under our law than mere bodily injury or threats. Thompson's post event conduct may be considered by the jury in rejecting the credibility of Thompson's belief that St. Claire would carry out his threat. However, if the jury accepted Thompson's testimony that she believed, based upon the threats St. Claire made to Senkeleski, that he would push Senkeleski off the trestle into the water and rocks below, it could necessarily conclude that being thrown off of the bridge twenty feet above shallow water and exposed rocks would result in serious bodily injury or death, thus establishing the fourth element.

The State asserts that permitting Thompson to argue the defense of necessity will "generate a very high potential for pretext." In support of its argument, the State points to the following analogy cited by the judge:

[S]omeone could walk into a convenience store, a person could point a gun at the individual behind the counter, and the person could come into court and say, I took the money from the cash register to avoid the grocer being shot by the person holding the weapon.

Here, the pretext argument fails because Thompson was not "partially responsible for creating the situation which gave rise to the harm." Romano, supra, 355 N.J. Super. at 32. Indeed, the judge so found. We conclude that, under the circumstances, the judge erred by not instructing the jury on the defense of necessity.

After the judge rejected Thompson's request to charge the defense of necessity, counsel asked the judge for a charge on mistake of law and fact under N.J.S.A. 2C:2-4, reasoning that he was "overly optimistic" in expecting the judge would charge the defense of necessity. No other reason was given by defense counsel. The judge denied the request, noting that he was prepared for Thompson's argument on the necessity defense but not on the belated request under N.J.S.A. 2C:2-4.

It is well settled that "[q]uestions not raised below 'will ordinarily not be considered on appeal.'" State v. Cryan, 320 N.J. Super. 325, 332 (App. Div. 1999) (quoting State v. Bobo, 222 N.J. Super. 30, 33 (App. Div. 1987)); see also State v. Lakomy, 126 N.J. Super. 430, 437 (App. Div. 1974). Thompson did not rely on a particular subsection of N.J.S.A. 2C:2-4 in requesting an instruction on mistake of law or fact. On appeal, Thompson essentially argues that if her testimony that her intention in taking the necklace was to save Senkeleski did not constitute a legal defense of necessity, the rejection of "her request for a mistake of fact or law charge . . . doomed [her] to a fait accompli conviction for second degree robbery." Because we reverse Thompson's conviction and remand to afford her on retrial the opportunity to assert the defense of necessity under N.J.S.A. 2C:3-2a, we decline further consideration of her contention regarding the applicability of N.J.S.A. 2C:2-4.

Thompson's Point IV contention that the evidence failed to indicate a rational basis for accomplice liability lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Simply stated, the evidence supported a rational basis for accomplice liability. Lastly, Thompson's Point V contention that the sentence imposed was excessive is rendered moot by our reversal of her robbery conviction.

 
Reversed and remanded for new trial.

Defendant was taken into custody on March 17, 2005.

On cross-examination, Thompson admitted that she did not tell police that St. Claire said not to say anything about the trestle.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-5928-04T4

May 18, 2007