STATE OF NEW JERSEY v. WARREN R. GERHARD

NOT FOR PUBLICATION WITHOUT THE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-4065-16T4

STATE OF NEW JERSEY,

       Plaintiff-Respondent,

v.

WARREN R. GERHARD,

     Defendant-Appellant.
_______________________________

                Submitted June 26, 2018 – Decided October 26, 2018

                Before Judges Nugent and Accurso.

                On appeal from Superior Court of New Jersey, Law
                Division, Cape May County, Indictment No.
                16-03-0317.

                Joseph E. Krakora, Public Defender, attorney for
                appellant (Molly O'Donnell Meng, Assistant Deputy
                Public Defender, of counsel and on the briefs).

                Jeffrey H. Sutherland, Cape May County Prosecutor,
                attorney for respondent (Gretchen A. Pickering,
                Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Warren R. Gerhard was convicted by a jury of operating a

motor vehicle during a license suspension for a second or subsequent conviction

for driving while intoxicated,  N.J.S.A. 2C:40-26(b). He appeals his conviction,

contending the court erred in refusing to instruct the jury on the defense of

necessity and in permitting the State to call a witness on rebuttal to testify as to

the temperature on the day in question. Finding no error, we affirm.

      The responding officer testified at trial that early in the afternoon of

February 2, 2016, he was dispatched to the area of Gorham and Scott Avenues

in Lower Township on the report of a disoriented individual. When he arrived,

he saw the individual getting into a car. The officer stopped the car, driven by

defendant, to check on the welfare of the passenger, whom he observed to be

intoxicated. The officer was familiar with the passenger, one Shipley, from prior

encounters. The officer called the rescue squad for Shipley and learned that

defendant's license was suspended, prompting the officer to write him a

summons.     Emergency medical technicians examined Shipley, who refused

further treatment, and defendant called his wife to drive him and Shipley home.

      The EMTs testified for defendant. The technician who examined Shipley

explained the officer advised him that Shipley had tripped and fallen and asked

that they evaluate him. The technician testified he knew Shipley and that he had


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previously suffered a traumatic brain injury that could affect his equilibrium,

causing him to trip and fall. He testified Shipley was oriented as to person, place

and time, was not injured and refused treatment.

      Defendant, who had three prior convictions for driving while intoxicated,

testified in his own behalf, initially outside the presence of the jury. He told the

judge he was outside raking leaves when Shipley telephoned him. According to

defendant, Shipley said "he had fallen, that he was very cold, and that he was

disoriented and wasn't exactly sure where he was." He told defendant "there

was a main road" and that "he was about a block from [defendant's] home, could

[defendant] please come get him."

      Defendant testified that Shipley "wasn't sounding coherent" and suspected

he was in the early stages of hypothermia. Defendant explained that based on

his "previous experience in rescue" in the Coast Guard and his "EMT training"

he concluded Shipley's situation was dire and required immediate action. He

testified he rejected calling 911 because he was not exactly sure where Shipley

was located and defendant's wife was unavailable to drive him because she was

in the shower. Believing he "didn't have much time to make this decision, [he]

grabbed his keys" and drove the block to assist Shipley.




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      After hearing defendant's testimony, the judge declined his request to

charge the jury on necessity. Relying on State v. Tate,  102 N.J. 64, 74 (1986),

the judge found the defense unavailable to defendant because he could not

demonstrate that driving to Shipley's rescue was the only available alternative.

The judge noted that Shipley telephoned defendant at 1:30 in the afternoon,

when there are "a lot of people in the street." Indeed, the judge noted, someone

else had already called the police to assist Shipley. Further, the judge found

defendant could have called 911 with where he suspected Shipley could be found

or have waited the few minutes to allow his wife to drive him.

      Although ruling that defendant was not entitled to a charge on necessity,

the judge did not limit defendant's testimony. Defendant thus explained to the

jury why he drove to Shipley's aid, although aware he was on the suspended list.

Defendant testified Shipley, as suspected, was "disoriented" and "in the early

stages of hypothermia." Defendant also testified at length about the weather,

claiming it "was in the teens" and that Shipley was dressed in a sweatshirt and

was without a hat or gloves.

      After the defense rested, the State sought to call a detective in the

prosecutor's office on rebuttal to testify to the temperature according to national

weather databases on the day defendant went to Shipley's aid. The prosecutor


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noted the court had already observed out of the presence of the jury that the prior

February had been warm, and he asserted defendant's testimony about the

temperature and hypothermia had been a surprise. Over defendant's objection,

the court permitted the State to call the detective for the limited purpose of

presenting the temperature in Cape May on that day. The detective testified that

according to the database he consulted, the temperature was forty-eight degrees.

      Defendant raises the following issues for our consideration:

            POINT I

            THE TRIAL COURT ERRED IN FAILING TO
            CHARGE THE JURY ON THE DEFENSE OF
            NECESSITY, WHICH WAS THE ONLY DEFENSE
            OFFERED TO THE CHARGE OF DRIVING WITH A
            SUSPENDED LICENSE.     NECESSITY WAS
            CLEARLY INDICATED BY DEFENDANT'S
            TESTIMONY THAT HE DROVE IN RESPONSE TO
            AN EMERGENCY CALL THAT HIS FRIEND, WHO
            HAD A TRAUMATIC BRAIN INJURY, HAD
            FALLEN AND NEEDED MEDICAL HELP. THE
            TRIAL   COURT    FURTHER    ERRED   BY
            PERMITTING THE STATE TO TELL THE JURY
            THAT THERE WERE NO DEFENSES AVAILABLE
            TO DEFENDANT.

            POINT II

            THE TRIAL COURT ERRED BY PERMITTING THE
            STATE   TO   INTRODUCE    IMPERMISSIBLE
            HEARSAY     TESTIMONY     ABOUT     THE
            TEMPERATURE ON THE DATE OF THE
            INCIDENT, GLEANED FROM A WEBSITE, AFTER

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             THE DEFENDANT COMPLETED HIS CASE-IN-
             CHIEF, AND WITHOUT PROVIDING NOTICE TO
             THE DEFENSE OR EVEN PLACING DETECTIVE
             BERG ON ITS WITNESS LIST.

Our review of the record convinces us that neither of these arguments is of

sufficient merit to warrant extended discussion in a written opinion. R. 2:11-

3(e)(2).

       "The defense of necessity is strictly limited under the Code." State v.

Morris,  242 N.J. Super. 532, 541 (App. Div. 1990). Even assuming the defense

is not clearly precluded by the language of  N.J.S.A. 2C:3-2,1 which we do not

acknowledge, it is plain defendant did not establish the elements of common-

law necessity, which 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,


 1 N.J.S.A. 2C:3-2(a) provides:

             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.
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            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.

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

      Assuming the danger to Shipley was as grave as defendant perceived, the

trial court found defendant had reasonable alternatives to getting in his car and

driving to Shipley's aide, namely calling 911 or waiting for his wife to drive

him. Because "a legal alternative was available, the illegal alternative was not

'necessary,' and resort to it was not justified." Tate,  102 N.J. at 75. Accordingly,

we find no error in the trial court's refusal to charge the jury on necessity.

      The court's determination to allow the State's rebuttal witness requires

only brief comment.      The law is well established that rebuttal evidence is

permissible in a criminal prosecution "when necessary because of new subjects

introduced on direct or cross-examination of defense witnesses." State v. Cook,

 330 N.J. Super. 395, 418 (App. Div. 2000). Where, as here, the evidence would

have been admissible in the State's case in chief, the trial court has broad


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discretion as to its admission, which will not be disturbed absent gross abuse.

State v. Provoid,  110 N.J. Super. 547, 557 (App. Div. 1970). As the temperature

outside on the day of Shipley's mishap was a fact that could have been judicially

noticed pursuant to N.J.R.E. 201(b)(3), we cannot find the court abused its

discretion in permitting the State to present such testimony in rebuttal to counter

defendant's unexpected testimony about the coldness of the day.

      Affirmed.




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