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May 18, 2015


Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Municipal Appeal No. 4999.

Robert J. Cascone, attorney for appellant.

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Keith E. Hoffman, Senior Assistant Prosecutor, on the brief).


After a trial de novo on June 15, 2012, the Law Division rejected defendant's necessity defense and found her guilty of driving while intoxicated (DWI), N.J.S.A. 39:4-50. The court entered an order sentencing defendant, as a third-time offender, to 180 days of incarceration.1 The court also imposed a ten-year driver's license revocation, one-year ignition interlock, twelve hours attendance in an Intoxicated Driver Resource Center, along with applicable fines, assessments and court costs. The court stayed the jail sentence and fine pending appeal. We affirm.

This appeal arises from the following facts. In the early morning of August 16, 2011, defendant was drinking beer at her boyfriend's apartment. Her boyfriend's brother found defendant in a roommate's bedroom, and told her, "I think it's time for you to leave." According to defendant, when she refused to leave, the brother became upset

[H]e said you better leave or I'm going to call the cops. . . . [T]hen when he took the phone, I tried to take it from him[.] . . . [W]e were trying to calm him down and assure him there was nothing going on, and I had no intentions of driving, and that's why I kept arguing . . . to stay . . . . [T]hen he said he called the cops.

The brother continued to yell at defendant from the porch as she walked to her car, threatening that the police would arrest her. Claiming that she feared physical abuse and arrest, defendant began driving home, but then changed her mind, turned around in a convenience store parking lot, and began to return to her boyfriend's apartment. She then struck two parked vehicles, causing her airbag to deploy, and injuring her head and shin.

When the police arrived at the scene of the accident, they observed that defendant had watery, bloodshot eyes, slurred speech, and an odor of alcohol. Emergency responders transported defendant to the hospital, where a blood test revealed that her blood alcohol content was .274 percent, over three times the legal limit. N.J.S.A. 39:4-50(a).

After the police read defendant her Miranda rights,2 she admitted to drinking four or five beers earlier in the evening. The police issued defendant a summons for DWI, N.J.S.A. 39:4-50.

At municipal court, defendant testified that she was scared of her boyfriend's brother because, on other occasions, she had seen him scream loudly, drink excessively, and punch holes in the wall. She said that she felt emotional and ashamed because of the brother's accusations against her.

Defendant testified that, after a few minutes of driving, she decided to turn around because she did not think she could safely drive to her home, which was farther away. She also thought that if the police were at the apartment by the time she got there, they might help her. Despite having a cell phone with her, she never thought to call the police herself. She considered pulling over, but was afraid of getting in trouble for drinking and driving.

At trial de novo, as in the municipal court, defendant argued that her drunk driving had been necessary to flee from her boyfriend's brother. Both courts rejected defendant's argument, finding that the brother did not pose an imminent threat of harm, and that defendant had several alternatives to avoid harm without driving while intoxicated.

Defendant filed her notice of appeal on July 22, 2012. However, due to a clerical error by the court, her appeal was dismissed on June 17, 2013, apparently without notice to defendant. Defendant eventually learned of the dismissal, and on November 17, 2014, she moved to reinstate her appeal. We granted defendant's motion on December 15, 2014, and placed the appeal on an accelerated schedule.

On appeal, defendant argues



After carefully considering the record in light of these contentions, we reject defendant's arguments. We accordingly affirm the order of June 15, 2012, substantially for the reasons stated by the Law Division judge on the record on that date. We add the following comments.

Defendant's appeal arises out of the Law Division trial de novo, and not from the municipal court's decision. R. 3:23-1; State v. Joas, 34 N.J. 179, 184 (1961); State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). At trial de novo, the Law Division judge must give "due, although not necessarily controlling, regard to the opportunity of the [municipal court] to judge the credibility of the witnesses." State v. Johnson, 42 N.J. 146, 157 (1964); State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011), certif. denied, 209 N.J. 430 (2012).

We limit our decision to whether the findings of the Law Division "could reasonably have been reached on sufficient credible evidence present in the record." Johnson, supra, 42 N.J. at 162. However, we address issues of law de novo. Adubato, supra, 420 N.J. Super. at 176.

N.J.S.A. 2C:3-2 provides, in pertinent part, "Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law . . . ." The elements of necessity 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 [or she] 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.

[State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002) (citation omitted).]

A defendant must present some evidence to support the affirmative defense of necessity, but the burden ultimately rests on the State to "disprove the defense beyond a reasonable doubt." Id. at 36.

Here, the record fully supports the Law Division's findings. The boyfriend's brother did not threaten to injure defendant, and instead called the police. Absent an imminent and compelling threat, there was no reasonable expectation of harm.

Even assuming defendant reasonably feared her boyfriend's brother, she had several reasonable alternatives to avoid harm. She could have locked herself in her car and slept off her intoxication in the back seat, she could have called for a taxi, or she could have simply waited for the police to arrive.

Moreover, the defense of necessity is severely undermined by the fact that, according to defendant, she was driving back towards her boyfriend's apartment at the time of the accident. Accordingly, her continued drunk driving was not necessary to flee from her boyfriend's brother, and the Law Division properly rejected her necessity defense.

As to defendant's argument of undue delay, the Third Circuit has recognized "that the [Federal] Due Process Clause guarantees a reasonably speedy appeal . . . ." Simmons v. Beyer, 44 F.3d 1160, 1169 (3d Cir.) (citation and internal quotations omitted), cert. denied, 516 U.S. 905, 116 S. Ct. 271, 133 L. Ed. 2d 192 (1995). We apply the same framework and standard as in a speedy trial argument. State v. Misurella, 421 N.J. Super. 538, 544 (App. Div. 2011).

We consider four factors: "(1) the length of the delay, (2) the reasons for the delay, (3) whether and how defendant asserted his [or her] speedy trial right, and (4) the prejudice to defendant caused by the delay." State v. Townsend, 186 N.J. 473, 487 (2006). No factor is dispositive, and we also consider "such other circumstances as may be relevant." State v. Szima, 70 N.J. 196, 201 cert. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).

Here, there has been significant delay. Nearly three years have passed since defendant's conviction in the Law Division.3 The delay resulted from the court's clerical error, but it was not intentional. See Townsend, supra, 186 N.J. at 489. As the delay arose while on appeal, defendant had no previous opportunity to raise this issue, but the record also lacks any evidence that defendant ever made an attempt to inquire as to the status of her appeal during the delay.

Finally, there has been no prejudice to defendant's ability to present her defense. The delay here occurred after trial, and did not impair defendant's ability to create a complete record and raise all relevant arguments. With the exception of the revocation of her license, the Law Division stayed her sentence.

Defendant argues emotional anxiety over the uncertain outcome, but her argument is undercut by her failure to inquire as to the status of her appeal during the lengthy delay. Moreover, a bald assertion regarding "[t]he hardship of waiting for disposition of [her] appeal, standing alone, is insufficient to constitute meaningful prejudice." Misurella, supra, 421 N.J. Super. at 546 (citation and internal quotations omitted).

Given the lack of prejudice to defendant, and balancing the other three factors set forth in Townsend, we conclude that defendant's constitutional rights were not violated by the delay in the disposition of this appeal.


1 The order further provided that ninety days of the jail sentence could be served in an alcohol rehabilitation program. N.J.S.A. 39:4-50(a)(3).

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

3 Defendant relies, in part, on the sixty-day objective for DWI trials. See State v. Tsetsekas, 411 N.J. Super. 1, 11 (App. Div. 2009). We briefly note that the sixty-day goal applies to the municipal court proceeding, and was not meant to encompass Law Division trials de novo or appeals therefrom.