State v. Toscano

OPINION BY: PASHMAN

Defendant Joseph Toscano was convicted of conspiring to obtain money by false pretenses in violation of N.J.S.A. 2A:98-1. Although admitting that he had aided in the preparation of a fraudulent insurance claim by making out a false medical report, he argued that he had acted under duress. The trial judge ruled that the threatened harm was not sufficiently imminent to justify charging the jury on the defense of duress. After the jury returned a verdict of guilty, the defendant was fined $ 500.

The Appellate Division affirmed the conviction. It stressed that defendant had ample opportunity between the time of the threat and the commission of the allegedly coerced act to report the matter to the police or to avoid participation in the conspiracy altogether. Relying on State v. Churchill, it also concluded that defendant failed to satisfy the threshold condition that the threatened harm be "present, imminent and impending."

We granted certification to consider the status of duress as an affirmative defense to a crime. We hold that duress is an affirmative defense to a crime other than murder, and that it need not be based upon an alleged threat of immediate bodily injury. Under the standard announced today, we find that this defendant did allege sufficient facts to warrant charging the jury on his claim of duress. Accordingly, we reverse his conviction and remand for a new trial.

On April 20, 1972, the Essex County Grand Jury returned a 48-count indictment alleging that eleven named defendants and two unindicted co-conspirators had defrauded various insurance companies by staging accidents in public places and obtaining payments in settlement of fictitious injuries. The First Count of the indictment alleged a single conspiracy involving twelve different "staged" accidents over a span of almost three years. In the remaining counts, the participants were charged with separate offenses of conspiracy, obtaining money by false pretenses and receiving fraudulently obtained money.

Dr. Joseph Toscano, a chiropractor, was named as a defendant in the First Count and in two counts alleging a conspiracy to defraud the Kemper Insurance Company. Prior to trial, seven of the eleven defendants pleaded guilty to various charges, leaving defendant as the sole remaining defendant charged with the conspiracy to defraud Kemper. Among those who pleaded guilty was William Leonardo, the architect of the alleged general conspiracy and the organizer of each of the separate incidents. Although the First Count was dismissed by the trial judge at the conclusion of the State's case, the evidence did reveal a characteristic modus operandi by Leonardo and his cohorts which is helpful in understanding the fraudulent scheme against Kemper. Typically, they would stage an accident or feign a fall in a public place. A false medical report for the "injured person, together with a false verification of employment and lost wages, would then be submitted to the insurer of the premises. The same two doctors were used to secure the medical reports in every instance except that involving the claim against Kemper. Likewise, the confirmations of employment and lost wages were secured from the same pool of friendly employers. The insurance companies made cash payments to resolve the claims under their "quick settlement" programs, usually within a few weeks after the purported accidents. Leonardo took responsibility for dividing the funds to the "victims" of the accidents, to the doctors and employers, taking a substantial portion for himself.

The State attempted to show that Toscano agreed to fill out the false medical report because he owed money to Richard Leonardo for gambling debts. It also suggested that Toscano subsequently sought to cover up the crime by fabricating office records of non-existent office visits by Hanaway. Defendant sharply disputed these assertions and maintained that he capitulated to William Leonardo's demands only because he was fearful for his wife's and his own bodily safety. Since it is not our function here to assess these conflicting versions, we shall summarize only those facts which, if believed by the jury, would support defendant's claim of duress.

The third and final call occurred on Friday evening. Leonardo was "boisterous and loud" repeating, "You're going to make this bill out for me." Then he said: "Remember, you just moved into a place that has a very dark entrance and you leave there with your wife. . . . You and your wife are going to jump at shadows when you leave that dark entrance." Leonardo sounded "vicious" and "desperate" and defendant felt that he "just had to do it" to protect himself and his wife. He thought about calling the police, but failed to do so in the hope that "it would go away and wouldn't bother me any more."
In accordance with Leonardo's instructions, defendant left a form in his mailbox on Saturday morning for Leonardo to fill in with the necessary information about the fictitious injuries. It was returned that evening and defendant completed it. On Sunday morning he met Hanaway at a prearranged spot and delivered a medical bill and the completed medical report. He received no compensation for his services, either in the form of cash from William Leonardo or forgiven gambling debts from Richard Leonardo. He heard nothing more from Leonardo after that Sunday.

Shortly thereafter, still frightened by the entire episode, defendant moved to a new address and had his telephone number changed to an unlisted number in an effort to avoid future contacts with Leonardo. He also applied for a gun permit but was unsuccessful. His superior at his daytime job with the Newark Housing Authority confirmed that the quality of defendant's work dropped so markedly that he was forced to question defendant about his attitude. After some conversation, defendant explained that he had been upset by threats against him and his wife. He also revealed the threats to a co-worker at the Newark Housing Authority.

After defendant testified, the trial judge granted the State's motion to exclude any further testimony in connection with defendant's claim of duress, and announced his decision not to charge the jury on that defense. He based his ruling on two decisions by the former Court of Errors and Appeals, State v. Palmieri, and State v. Churchill, which referred to the common law rule that a successful claim of duress required a showing of a "present, imminent and impending" threat of harm. As he interpreted these decisions, the defendant could not satisfy this standard by establishing his own subjective estimate of the immediacy of the harm. Rather, the defendant was obliged to prove its immediacy by an objective standard which included a reasonable explanation of why he did not report the threats to the police. Since Toscano's only excuse for failing to make such a report was his doubts that the police would be willing or able to protect him, the court ruled that his subjective fears were irrelevant.

After stating that the defense of duress is applicable only where there is an allegation that an act was committed in response to a threat of present, imminent and impending death or serious bodily harm, the trial judge charged the jury:

Now, where the peril is not imminent, present and pending to the extent that the defendant has the opportunity to seek police assistance for himself and his wife as well, the law places upon such a person the duty not to acquiesce in the unlawful demand and any criminal conduct in which he may thereafter engage may not be excused. Now, this principle prevails regardless of the subjective estimate he may have made as to the degree of danger with which he or his wife may have been confronted. Under the facts of this case, I instruct you, as members of the jury, that the circumstances described by Dr. Toscano leading to his implication in whatever criminal activities in which you may find he participated are not sufficient to constitute the defense of duress.

Since New Jersey has no applicable statute defining the defense of duress, n6 we are guided only by common law principles which conform to the purposes of our criminal justice system and reflect contemporary notions of justice and fairness.

At common law the defense of duress was recognized only when the alleged coercion involved a use or threat of harm which is "present, imminent and pending" and "of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done."

It was commonly said that duress does not excuse the killing of an innocent person even if the accused acted in response to immediate threats. Aside from this exception, however, duress was permitted as a defense to prosecution for a range of serious offenses.

The broad assertion that duress is unavailable as a defense to homicide appears repeatedly in the cases and treatises, but several commentators have observed that the decisions have involved murder as opposed to manslaughter. In repeating this adage, moreover, courts have typically gone on to stress the opportunities for resistance or escape.

To excuse a crime, the threatened injury must induce "such a fear as a man of ordinary fortitude and courage might justly yield to." Although there are scattered suggestions in early cases that only a fear of death meets this test, an apprehension of immediate serious bodily harm has been considered sufficient to excuse capitulation to threats. Thus, the courts have assumed as a matter of law that neither threats of slight injury nor threats of destruction to property are coercive enough to overcome the will of a person of ordinary courage. A "generalized fear of retaliation" by an accomplice, unrelated to any specific threat, is also insufficient.

More commonly, the defense of duress has not been allowed because of the lack of immediate danger to the threatened person. When the alleged source of coercion is a threat of "future" harm, courts have generally found that the defendant had a duty to escape from the control of the threatening person or to seek assistance from law enforcement authorities.

Assuming a "present, imminent and impending" danger, however, there is no requirement that the threatened person be the accused. Although not explicitly resolved by the early cases, recent decisions have assumed that concern for the well-being of another, particularly a near relative, can support a defense of duress if the other requirements are satisfied.

The insistence under the common law on a danger of immediate force causing death or serious bodily injury may be ascribed to its origins in early cases dealing with treason, or simply to judicial fears of perjury and fabrication of baseless defenses. We do not discount the latter concern as a reason for caution in modifying this accepted rule, but we are concerned by its obvious shortcomings and potential for injustice. Under some circumstances, the commission of a minor criminal offense should be excusable even if the coercive agent does not use or threaten force which is likely to result in death or "serious" bodily injury. Similarly, it is possible that authorities might not be able to prevent a threat of future harm from eventually being carried out.

Some commentators have advocated a flexible rule which would allow a jury to consider whether the accused actually lost his capacity to act in accordance with "his own desire, or motivation, or will" under the pressure of real or imagined forces. The inquiry here would focus on the weaknesses and strengths of a particular defendant, and his subjective reaction to unlawful demands. Thus, the "standard of heroism" of the common law would give way, not to a "reasonable person" standard, but to a set of expectations based on the defendant's character and situation.

The drafters of the Model Penal Code and the New Jersey Penal Code sought to steer a middle course between these two positions by focusing on whether the standard imposed upon the accused was one with which "normal members of the community will be able to comply.

Thus, they proposed that a court limit its consideration to an accused's "situation" to "stark, tangible factors which differentiate the actor from another, like his size or strength or age or health," excluding matters of temperament. They substantially departed from the existing statutory and common law limitations requiring that the result be death or serious bodily harm, that the threat be immediate and aimed at the accused, or that the crime committed be a non-capital offense. While these factors would be given evidential weight, the failure to satisfy one or more of these conditions would not justify the trial judge's withholding the defense from the jury.

Although they are not entirely identical, under both model codes defendant would have had his claim of duress submitted to the jury. Defendant's testimony provided a factual basis for a finding that Leonardo threatened him and his wife with physical violence if he refused to assist in the fraudulent scheme. Moreover, a jury might have found from other testimony adduced at trial that Leonardo's threats induced a reasonable fear in the defendant. Since he asserted that he agreed to complete the false documents only because of this apprehension, the requisite elements of the defense were established. Under the model code provisions, it would have been solely for the jury to determine whether a "person of reasonable firmness in his situation" would have failed to seek police assistance or refused to cooperate, or whether such a person would have been, unlike defendant, able to resist.

Exercising our authority to revise the common law, we have decided to adopt this approach as the law of New Jersey. Henceforth, duress shall be a defense to a crime other than murder if the defendant engaged in conduct because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.

We have deliberately followed the language of the proposed New Jersey Penal Code in stating our holding and we expect trial judges to frame their jury charges in the same terms. No longer will there be a preliminary judicial determination that the threats posed a danger of "present, imminent and impending" harm to the defendant or to another. In charging the jury, however, the trial judge should advert to this factor of immediacy, as well as the gravity of the harm threatened, the seriousness of the crime committed, the identity of the person endangered, the possibilities for escape or resistance and the opportunities for seeking official assistance. He should also emphasize that the applicable standard for judging the defendant's excuse is the "person of reasonable firmness in the accused's situation."

Defendant's conviction of conspiracy to obtain money by false pretenses is hereby reversed and remanded for a new trial.