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June 8, 2015


Submitted April 20, 2015 Decided

Before Judges Guadagno and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 17-07-13.

Daggett, Kraemer & Gjelsvik, attorneys for appellant (George T. Daggett, on the brief).

Francis A. Koch, Sussex County Prosecutor, attorney for respondent (Shaina Brenner, Assistant Prosecutor, of counsel and on the brief).


Just before 1:00 a.m. on January 18, 2013, Shawn Sokol was roused from sleep by the barking of his dog. He heard a car door slam, and went to the front door to investigate. Sokol observed a white Volkswagen Jetta in his driveway and a person standing next to it. The person then got into the Jetta and drove partially across Sokol's lawn as it drove off. Given the freezing temperatures, Sokol got dressed before going outside. He then watched as the Jetta proceeded back down his driveway, crashed into his retaining wall, and became stuck there. While the driver revved the engine and spun the tires attempting to free the car, Sokol called police on his cell phone to report the incident. He provided a description of the vehicle, its New York license plate number, and identified the driver as a woman.

Sokol tried unsuccessfully to get the driver's attention. After one or two minutes, the Jetta broke free and drove away, leaving damage to Sokol's retaining wall. He watched the driver stop the car a short distance up the road and get out. She then got back in and drove away.

Sparta Township Sergeant Joseph Pensado was on patrol when he received a call of "a hit-and-run" involving a white Jetta with New York plates. Pensado spotted the Jetta and turned his vehicle around to follow it. The car was travelling at a very low rate of speed and pulled over before Pensado turned on his lights. Pensado approached and observed defendant behind the wheel, with scratches on her legs and wearing nothing but a leather jacket.

After telling her twice to turn her radio down and vehicle off, Pensado asked defendant why she was naked. Defendant responded that she was not naked, and not sick. Pensado inspected the damage on the left side of the Jetta and asked defendant if she knew that she just hit a wall. Defendant responded that she had not hit a wall. Noticing that defendant's face was flushed, her eyes watery, her speech slurred, and a strong odor of alcohol was coming from her mouth, Pensado asked defendant how much she had to drink that night. Defendant indicated that she had had two Tanqueray martinis. When asked why she wasn't wearing clothes, defendant explained, "I had a young lady who made me take them off" and "somebody told me to do that."

When Pensado asked defendant to get dressed, she maintained that she was not naked. After ten minutes, Pensado convinced defendant to put on a dress hanging in the backseat; defendant put the dress on inside-out and backwards. Pensado began to administer field sobriety tests, but after defendant failed the alphabet and finger-to-nose tests, and lost her balance on the one-legged test, he discontinued the tests for her safety. Defendant was placed under arrest for driving while intoxicated and transported to the police station.

Defendant agreed to submit to the Alcotest, but after providing one breath sample, she did not blow hard enough into the machine for a second sample. Defendant's third breath was likewise insufficient for a sample. Pensado considered her actions to be a refusal.

Trial before a municipal judge took place over three days between May and July 2013. Sokol, Pensado, and Sergeant Jeffrey Mase testified for the State. Sergeant Mase responded to assist Pensado on the night of defendant's arrest. Mase confirmed that Pensado was having a difficult time getting defendant to put clothes on and that she was "highly intoxicated, rambling at time[s]." He described her mood as ranging from calm and cooperative to belligerent and verbally abusive.

Defendant testified that she worked for a computer software company and on January 17, 2013, she travelled to a car dealership in Newton to train its employees on the software. She remained at the dealership until 7:15 p.m., when she left to meet an acquaintance identified only as Maggie. Defendant and Maggie dined at a restaurant in Newton where defendant drank the two martinis. Defendant agreed to return to Maggie's house around 10 p.m. to meet her dog, the same breed as defendant's. Maggie gave defendant a glass of wine, which tasted "bizarre," while she was petting the dog. Defendant testified that she has no recollection of the rest of the evening, including her interactions with the police, after one sip of the wine. Defendant had only "spotty" memories of someone "forcefully kissing" her and touching her "privates," and feeling "terribly afraid."

Defendant also testified that she always wore pantsuits for work and was wearing one that day. When pulled over, defendant was not wearing and did not have in her possession the pantsuit she wore earlier that day. The next morning, however, defendant found at the bottom of her driveway a brown paper bag containing her purse, wallet, shoes, and the pantsuit she had been wearing the day before.

Defendant called two witnesses, Teresa Boscia and Warren Klose, who were employed at the Newton car dealership and confirmed that defendant was there on January 17, 2013 and always wore a pantsuit.

Defendant also called Dr. Gary Lage, who was accepted as an expert in pharmacology and toxicology. Lage testified that he watched the video and considered ten facts related by defendant in rendering his opinion

Defendant was naked with cuts on her legs when the police stopped her;

Defendant told the police a woman took her clothes and was put under hard labor;

Defendant consumed two drinks at dinner;

Defendant's dinner companion invited defendant back to her home to see a dog;

Defendant was given a glass of wine that tasted strange;

Sipping the wine is the last thing she remembers from that evening;

Defendant has no recollection of a sexual assault;

Defendant put her clothes on inside-out and backwards in front on the police;

Defendant apparently ran out of the house without her clothes and personal items; and

Defendant's clothing and personal items were returned to her the next day.

Based upon these facts, Lage concluded that, after her arrest, defendant should have been taken to a medical facility to be evaluated to determine if her condition "was alcohol alone, alcohol with drugs or psychiatric in nature" because the police were not qualified to make that determination. Lage concluded that the most consistent explanation was that defendant was administered a "date rape" drug in the glass of wine she sipped at Maggie's house. Although Lage conceded that defendant's symptoms were consistent with alcohol use, he opined that "the circumstances in [his] opinion are much more consistent with some drug administration [than] they are with alcohol alone."

Defendant raised the defense of necessity, arguing that her otherwise criminal conduct in driving while intoxicated was justified because she was avoiding a greater evil, the earlier sexual assault.

The municipal judge accepted the testimony of Sergeant Pensado, Sergeant Mase, and Shawn Sokol and determined that defendant operated a motor vehicle after consuming sufficient alcohol to render her intoxicated, N.J.S.A. 39:4-50; that she refused to provide a breath sample, N.J.S.A. 39:4-50.2; that she carelessly operated her vehicle by driving across Sokol's lawn and striking his retaining wall, N.J.S.A. 39:4-97; that she left the scene of that accident, N.J.S.A. 39:4-129; that she failed to report that accident, N.J.S.A. 39:4-130; and that she failed to exhibit her driver's license, N.J.S.A. 39:3-29.

The judge rejected Lage's conclusion that defendant had been drugged, finding that all of the observations by the police were consistent with alcohol intoxication and there was no proof that defendant had been given either of the two date rape drugs mentioned by Lage.

The judge also rejected the necessity defense. Even assuming defendant had been drugged and assaulted, the judge questioned defendant's failure to mention the alleged assault to police when picking up her car days later

She became aware the next morning. Additionally, when she was with the police she did not tell them anything about what happened. I have to use common sense on . . . cases like this. Someone who has been sexually assaulted and possibly physically assaulted, the scratches, and they're in the company of police, they're protected, wouldn't that be the first thing they would say, is I've been assaulted? [T]hat didn't happen [here].

As such, the judge found defendant's testimony not credible and concluded that he did not believe either her live testimony or her version of events.

Defendant appealed and Judge Thomas J. Critchley, Jr. conducted a trial de novo and heard extensive oral argument. Defendant conceded that she drove while intoxicated but again argued that the defense of necessity applied. On February 7, 2014, Judge Critchley read a thorough and comprehensive decision into the record. Judge Critchley labored over the decision because he found "some evidence" to support defendant's theory. He described "a conundrum . . . where there is a claim of being involuntarily drugged and robbed of memory and then have the [c]ourt find that the evidence of emergency or necessity is too vague and speculative." He resolved this conflict by relying on stronger evidence showing defendant's "consciousness of legal trouble," including her comments to police and unreasonable refusal to give a breath sample. He imposed an aggregate penalty of seven months' license suspension and appropriate fines and penalties on defendant's DWI, refusal, leaving the scene, failure to report an accident, and failure to exhibit a license convictions.

On appeal, defendant raises one argument

point i

the doctrine of necessity should be applied.

Our review of the factual findings of the Law Division and the municipal court is narrow and deferential. State v. Stas, 212 N.J. 37, 48-49 (2012). We must determine "whether the findings could reasonably have been reached on sufficient credible evidence present in the record." Ibid. (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). No such deference is owed, however, "with respect to legal determinations or conclusions reached on the basis of the facts." Id. at 49. Thus, a "trial judge's findings are not entitled to that same degree of deference if they are based upon a misunderstanding of the applicable legal principles." N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002) (citing Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366, 378 (1995)).

The common law defense of "necessity" is often referred to as the "choice-of-evils" defense. State v. Tate, 102 N.J. 64, 73 (1986) (quoting W. LaFave and A. Scott, Handbook on Criminal Law 382 (1972)). "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, or, conversely, if the conduct promotes some value higher than the value of compliance with the law." Ibid. (citation omitted). In Tate, Justice Clifford explained that the defense of necessity is based on public policy

In essence it 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. It would have balanced the competing values and chosen the lesser evil. Obviously, then, the defense is available at common law only when the legislature has not foreseen the circumstances encountered by a defendant. If it 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.


Defendant claims that she was given an unidentified "date rape" drug in a glass of wine by Maggie, who removed defendant's clothes and attempted to sexually assault her, causing her to flee. She argues that her statements to Pensado, the scratches he observed on her legs, her unclothed appearance, and the reappearance of her clothing and personal items the next day, support her claim.

When first asked by Pensado why she was naked, defendant responded, "I am not naked." Later defendant explained, "I had a young lady who made me take [my clothes] off." When Pensado repeated this statement for confirmation, defendant responded, "No no, no, no." When he asked where she was earlier, she told him "Newton," and when asked how she got to be in Sparta, defendant replied, "Somebody sent me home."

On these proofs, Judge Critchley found that there was "some evidence of a possible emergency at another time and place . . . that led to the necessity to exit the scene." But, relying on our decision in State v. Romano, 355 N.J. Super. 21 (App. Div. 2002), he concluded that the State's proofs as to DWI were "direct and really not controvertible" while "the emergency and necessity situation is so attenuated on these facts or so much dependent upon inferences being piled upon inferences that the quantum of evidence needed to override it beyond a reasonable doubt is not substantial." In short, Judge Critchley found that defendant's concession to driving while intoxicated coupled with her failure to seek help from, report, or obtain proof of the alleged assault, outweighed an inference of necessity that could be drawn based on her nakedness, leg scratches, and cryptic comments.

In Romano, supra, we determined that the common law defense of necessity was available to a defendant charged with driving while intoxicated, and outlined the required elements of the defense

(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 outmeasure the criminal wrong.

[355 N.J. Super. at 29 (citation omitted).]

Defendant Romano was leaving a restaurant intoxicated when three angry men brutally beat and threatened to kill him. Id. at 24. Romano made it to his car and drove 350 yards without his lights on before being pulled over. Ibid. He immediately advised the officer that he had been "jumped" and asked for help. Ibid. We found Romano's actions justified, because he had no realistic alternative to avoiding his pursuers but to violate the DWI statute. Id. at 35.

As to the first factor, Judge Critchley found that defendant's voluntary intoxication was uncontroverted. By drinking to incapacity, defendant was partly responsible for creating the situation which gave rise to the harm to be avoided by the DWI statute. See id. at 32.

As to the second factor, the judge found that there was "some evidence" of an emergency at some time and place requiring defendant's exit. Even if the second factor is satisfied because the events in Maggie's home raised a reasonable expectation of harm, the third factor required defendant to demonstrate that there were no other reasonable alternatives to driving while impaired. Even if under Romano, defendant would have been justified in driving far enough to escape Maggie's assault, she told Pensado that she was driving to her home in Warwick, New York, over twenty-five miles from Sparta.

Moreover, defendant had ample opportunity "to avoid the injury" before, during, and after being pulled over. Defendant did not call the police upon leaving Maggie's home. She drove some distance from Maggie's home before entering Sokol's driveway and then being pulled over. At no time did she seek assistance along the way. She neither sought help nor even mentioned an assault when stopped by Pensado, or when questioned by Pensado and Mase. As noted by Judge Critchley, a fleeing sexual assault victim would presumably be relieved to see a police officer and report the assault.

Even if defendant were too intoxicated to discuss the assault during the vehicle stop, she could have reported it and/or obtained medical treatment the following day. Failing that, defendant forewent another opportunity to report the assault upon returning to the police station three days later to recover her car. Yet defendant did not mention the assault until trial, six months after it allegedly occurred.

We reject defendant's claim that she appeared in a "hypnotic state" and her argument that this was proof that she was given a "hypnotic drug." Pensado's mobile video recorder depicts defendant's behavior from the time she drove past the officer just before 1:00 a.m., through the vehicle stop, her questioning, her field sobriety tests, and finally her arrest and transportation to the police station. During the course of the thirty-five-minute video, defendant displayed awareness of her surroundings, knowledge of where she had been, what she had to drink, and where she was going.

Further, she displayed an acute awareness of her legal predicament, especially after she was placed under arrest and remarked that the officers are "fucking up" her life. While still in her vehicle, defendant repeatedly told Pensado and Mase to contact her "good friends" who are "cops" in Warwick, in an apparent attempt to influence the officers. After her arrest, defendant repeated the name of one particular Warwick officer as someone to contact who would help her. Further, defendant's attempts to "fake . . . giving a valid sample" removed any doubt as to whether she was hypnotically incapacitated or unaware of her surroundings and situation.

Finally, we note that the defense of necessity could only apply to defendant's charges of DWI and leaving the scene of an accident, but not to the charges of refusal, failure to report an accident, and failure to exhibit a driver's license. There are simply no set of facts under which it would be necessary to commit the latter three crimes to avoid a greater harm.

We are satisfied that the necessity defense is inapplicable to the charges here and that the evidence amply supports a finding of guilt.



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