RECORD IMPOUNDED

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0304-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

M.A., JR.,

Defendant-Appellant.

_______________________

Argued May 24, 2022 – Decided October 4, 2022

Before Judges DeAlmeida and Smith.

On appeal from the Superior Court of New Jersey, 

Law Division, Mercer County, Indictment No. 15-12-

1349.

Brian P. Keenan, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Brian P. Keenan, of 

counsel and on the brief).

Kyle A. Petit, Assistant Prosecutor, argued the cause 

for respondent (Angelo J. Onofri, Mercer County 

Prosecutor, attorney; Laura Sunyak, Assistant 

Prosecutor, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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The opinion of the court was delivered by

SMITH, J.A.D.

After defendant, M.A., pled guilty to second-degree unlawful possession 

of a handgun, N.J.S.A. 2C:39-5(b), he was sentenced to an eight-year term of 

imprisonment with a four-year term of parole ineligibility. He appeals the trial 

court's orders denying his motion to suppress, and barring use of the defense of 

necessity at trial. Defendant also appeals his sentence, arguing that the 

sentencing court failed to find certain mitigating factors and that resentencing 

is required in order to account for the youth mitigating factor under N.J.S.A. 

2C:44-1(b)(14). We affirm the trial court's order denying the suppression 

motion, reverse the trial court's order barring the necessity defense, and 

remand for trial. 

I.

The record reveals the following undisputed facts. A Lawrence 

Township police officer, Jose Corado, testified for the State. On the evening 

of June 23, 2015, at approximately 8:47 p.m., Officer Corado pulled over a 

blue four-door Acura after noticing that one of its front headlights was not 

working. He exited his patrol car and approached the Acura's passenger side 

window on foot. He observed a male driver and a female passenger in the 
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front seats. Out of concern for his safety, the officer asked the driver to lower 

the tinted rear windows. Once the windows were lowered, he observed two 

male passengers in the rear seat of the vehicle. 

The officer stood by the front passenger window. Before requesting the 

driver's credentials, Officer Corado observed that the female in the front 

passenger seat was behaving in an unusual manner, while nervously smoking a 

cigarette and blowing the smoke in his direction. 

After obtaining the driver's credentials, Officer Corado smelled an odor 

of burnt marijuana coming from the car. He was able to identify the odor 

based on his experience and training. He next asked the driver if he could 

search the vehicle, and the driver consented in writing. The officer elected to 

wait for backup before removing all four individuals from the car. 

Eventually defendant, one of the rear seat occupants, was searched by 

Officer Corado, who felt a "hard metallic object" between defendant's legs. 

The officer pulled out a small black .22 caliber Beretta pistol, with a single 

bullet in the chamber and no magazine. Officer Corado also searched the other 

individuals and the car, but he discovered no other weapons or contraband. 

Defendant was arrested. 
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After his arrest, defendant gave a statement to the police. He said he had 

assisted the police in a previous matter and as a result of that cooperation, 

other persons in the community were "after him." Defendant explained that he 

had been beaten up twice and shot at once since cooperating with law 

enforcement. Seeking protection from law enforcement, defendant contacted 

the detective and the prosecutor from the case he cooperated in, however, he 

received no assistance. Defendant explained he wanted to move out of state to 

avoid the threats, however, he was unable to do so because he was on 

probation. 

Defendant changed residences in the community where he lived, moving 

from his mother's house to his cousin's house in an attempt to avoid the 

constant threats on his person. He admitted that he had obtained the Beretta 

pistol just days before, and that he acquired it in response to being assaulted 

and fired upon. Defendant told the interviewing detective that he knew the 

pistol contained only one bullet. He stated that he intended to fire the bullet at 

a potential assailant and flee, if assaulted for a fourth time. 

A grand jury indicted defendant on second degree unlawful possession 

of a handgun, N.J.S.A. 2C:39-5(b); and fourth degree possession of hollow 

nose bullets, N.J.S.A. 2C:39-3(f). The trial court denied defendant's motion to 
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suppress evidence and later granted the State's motion to preclude the statutory 

defense of necessity. 

On June 25, 2018, defendant pled guilty. The second weapons charge 

was dismissed. After sentencing, defendant appealed, and now makes the 

following arguments: 

POINT I

THE OFFICER’S REQUEST, WITHOUT A 

HEIGHTENED AWARENESS OF DANGER, FOR 

THE DRIVER TO ROLL DOWN THE TINTED 

REAR WINDOWS SO THAT HE COULD SEE INTO 

THE PASSENGER COMPARTMENT FOR HIS 

SAFETY, VIOLATED [M.A.'s] RIGHTS AGAINST 

UNREASONABLE SEARCHES AND SEIZURES. 

POINT II

THE MOTION COURT ERRED IN GRANTING 

THE STATE’S MOTION TO PRECLUDE THE 

NECESSITY DEFENSE. 

POINT III

BECAUSE [M.A.] WAS TWENTY-ONE YEARS 

OLD AT THE TIME THE OFFENSE WAS 

COMMITTED, RESENTENCING IS REQUIRED TO 

CONSIDER THE RECENTLY ENACTED YOUTH 

MITIGATING FACTOR, N.J.S.A. 2C:44-1B (14). 

(NOT RAISED BELOW)
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POINT IV

THE SENTENCING COURT ERRED IN FAILING 

TO FIND MITIGATING FACTORS SUPPORTED 

BY CREDIBLE EVIDENCE IN THE RECORD, AND 

TO CONSIDER MITIGATING FACTORS RAISED 

BY THE DEFENSE. (NOT RAISED BELOW)

II.

The scope of review of a motion to suppress is limited. State v. Robinson, 

200 N.J. 1, 15 (2009). "In reviewing a motion to suppress, an appellate court 'must 

uphold the factual findings underlying the trial court's decision so long as those 

findings are supported by sufficient credible evidence in the record.'" State v. 

Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). 

An appellate court gives deference to those factual findings in recognition of the 

trial court's "opportunity to hear and see the witnesses and to have the 'feel' of the 

case, which a reviewing court cannot enjoy." Elders, 192 N.J. at 243. 

We will not disturb a lower court's determination unless it is "so clearly 

mistaken 'that the interests of justice demand intervention and correction.'" State v. 

Gamble, 218 N.J. 412 (2014) (quoting Elders, 192 N.J. at 244). However, legal 

conclusions to be drawn from those facts are reviewed de novo. State v. Smith, 

212 N.J. 365, 387 (2012). 
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The appellate court gives deference to the evidentiary rulings made by a 

trial court absent an abuse of discretion. State v. Garcia, 245 N.J. 412, 430 

(2021); State v. Rochat, 470 N.J. Super. 392, 453 (App. Div. 2022). The 

appellate court will not disturb a trial court's determination "unless the 

evidentiary ruling is 'so wide of the mark' that it constitutes a 'clear error in 

judgment.'" Garcia, 245 N.J. at 430 (quoting State v. Medina, 242 N.J. 412, 

430 (2020)). "A trial court's 'discretion is abused when relevant evidence 

offered by the defense and necessary for a fair trial is kept from the jury.'" 

State v. R.Y., 242 N.J. 48, 65 (2020) (quoting State v. Cope, 224 N.J. 530, 

554-55 (2016)). 

III.

A.

In his first appeal point, defendant offers a narrow argument, one which, 

as best we can discern, was not raised with the trial court. Recognizing that 

we are not bound to address arguments on appeal not raised in the trial court, 

State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006), we proceed using 

a plain error standard. 

Defendant now contends Officer Corado had no articulable basis to 

direct the driver to lower the rear tinted windows, and that the court erred by 
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not applying the heightened awareness of danger standard first articulated in 

State v. Smith, 134 N.J. 599 (1994), and reaffirmed by the Supreme Court in 

State v. Mai, 202 N.J. 12 (2010) and State v. Bacome, 228 N.J. 94 (2017), to 

the officer's instruction. Defendant's theory now is that without that initial act 

by the officer, the chain of events which led to the gun seizure would not have 

occurred. 

The State argues before us that reasonableness is the relevant standard to 

use when analyzing Officer Corado's initial act that led to the warrantless 

search. Reasonableness is "determined by assessing, on the one hand, the 

degree to which [a warantless search] intrudes on an individual's privacy and, 

on the other, the degree to which it is needed for the promotion of legitimate 

governmental interests." State v. Davila, 203 N.J. 97, 111 (2010) (quoting 

United States v. Knights, 534 U.S. 112, 118-19 (2001)).

At the argument on the suppression motion, the court rejected 

defendant's argument that the heightened awareness of danger standard should 

apply, concluding that Smith and its progeny could be distinguished on the 

facts. Instead, the court applied the doctrine of exigent circumstances, citing 

State v. Walker, 213 N.J. 281 (2013), to support denial of the motion. The 

trial court found Officer Corado was justified in removing the occupants from 
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the Acura and conducting a warrantless search of the people and the car, 

concluding that "the smell of burnt marijuana under the total circumstances 

created a heightened and reasonable suspicion that an offense was being 

committed." Ibid.

Since defendant now only seeks review of Officer Corado's direction to 

the driver to roll down the rear windows, we conclude that the standard by 

which we should evaluate the officer's actions is one of reasonableness, not 

heightened awareness or exigency. 

"The touchstone of the Fourth Amendment and Article I, [P]aragraph 7 

of the New Jersey Constitution is reasonableness." State v. Hathaway, 222 

N.J. 453 (2015) (citations omitted). To determine whether an officer's conduct 

was objectively reasonable, the court must consider "the facts known to the 

law enforcement officer at the time of the search." State v Caronna, 469 N.J. 

Super. 462, 495 (App. Div. 2021) (quoting State v. Handy, 206 N.J. 39, 46-47 

(2011)). In evaluating the sufficiency of the basis for a stop courts "consider 

the totality of the information available to the officer at the time of the 

conduct.” State v. Myers, 442 N.J. Super. 287, 294 n.2 (App. Div. 2015) 

(quoting State v. Presley, 436 N.J. Super. 440, 456 (App. Div. 2014)). 
10 A-0304-19

Based on the totality of the information available to him at the time of 

the stop, Officer Corado's concern for his own safety was reasonable. The stop 

occurred at nighttime, and the Acura's rear tinted windows prevented Corado 

from seeing who, if anyone, was in the rear seat of the car. Although this was 

supposed to be a routine traffic stop for a broken headlight, "traffic stops may 

be dangerous encounters" and "the fact that there is more than one occupant of 

the vehicle increases the possible sources of harm to the officer." Maryland v. 

Wilson, 519 U.S. 408, 413 (1997). Corado's inability to quickly ascertain how 

many passengers were in the vehicle posed a safety risk, and his direction to 

lower the rear windows was an appropriate precaution to take. Such an action 

required no heightened awareness of danger or exigent conditions to validate 

it. The officer's actions simply had to be objectively reasonable. We find no 

plain error in the court's denial of the motion to suppress. 

B.

Defendant next argues that the trial court erred by granting the State's 

motion to bar defendant from asserting the defense of necessity. Defendant 

argues he was faced with a "choice-of-evils" decision in which he risked being 

killed if he did not break the law and possess the Beretta to protect himself. 

The State argues that the defense of necessity is not applicable under State v. 
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Kelly, 118 N.J. 370 (1990) 1, because defendant was not faced with 

"spontaneous and compelling danger." Id. at 386. 

N.J.S.A. 2C:3-2(a), Necessity and Other Justifications in General, states:

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.

 

1

 In Kelly, the defendant was previously in an abusive relationship with her 

ex-boyfriend. 118 N.J. at 373. Although at the time of the altercation the 

couple was no longer together, the defendant had tried involving the police 

previously and received no help. Id. at 374. After an argument ensued 

between the pair, the ex-boyfriend threatened defendant to not come by a 

specific corner he frequented. Id. at 373. Due to her previous communications 

with the police, she did not contact them about this specific threat. Id. at 374. 

The defendant and the ex-boyfriend lived only a few blocks away and she 

believed there would be no way to avoid him. Ibid. The defendant decided to 

arm herself with a razor before leaving her home that day because of her exboyfriend's threat. Ibid. On her way home she crossed the aforementioned 

corner and an altercation ensued between the pair, which resulted in the 

defendant slashing the ex-boyfriend with the razor. Ibid. The court noted that 

the policy justification of allowing the police to handle the situation rather 

than encouraging an environment where citizens take matters into their own 

hands supported their holding that defendant was not entitled to the necessity 

defense. Id. at 386. In oft-cited dicta, the court stated, "it would appear that 

the availability of necessity as a justification for the immediate possession of a 

weapon, as with self-defense, is limited only to cases of spontaneous and 

compelling danger." Ibid.
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The common-law defense of necessity requires a defendant to show:

(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.

[State v. Romano, 355 N.J. Super. 21, 29 (App. 

Div. 2002) (citing State v. Tate, 194 N.J. Super.

622, 628 (App. Div. 1984), rev'd on other 

grounds, 102 N.J. 64 (1986)).]

The trial court, leaning heavily upon Kelly in its analysis, made findings. 

Accepting defendant's statement to detectives that he had been shot at and 

beaten up because he had cooperated with police, the court nonetheless 

concluded that defendant could not avail himself of the necessity defense. The 

court, citing Kelly, concluded the defense was available "only in cases of 

spontaneous action in response to immediate compelling danger." 
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Acknowledging that defendant had unsuccessfully sought help from the 

police in stopping the ongoing threat, the court reasoned that defendant's 

answer was not to arm himself, citing the public policy rationale given by the 

Kelly Court for rejecting use of the necessity defense in that case: "[t]he 

answer lies in making law enforcement more responsive so that the embattled 

person does not face the Draconian choice of bearing arms or withstanding the 

onslaught of abuse." Kelly, 118 N.J. at 387. 

Our state courts have not addressed the applicability of the necessity 

defense to the circumstances presented here. See State v. Tate, 194 N.J. Super.

622 (Law Div. 1984) (examining necessity's applicability to the unauthorized 

use of medicinal marijuana); State v. Morris, 242 N.J. Super. 532, 535 (App. 

Div. 1990) (examining necessity's applicability to an escape from a prison due 

to conditions); Romano, 355 N.J. Super. at 23-24 (examining necessity's 

applicability to defendant's DWI charge received after attempting to escape 

attackers). However, some federal courts have analyzed the defense of 

justification 2and have fact patterns similar to the record before us. See

2

 The four elements of the defense of justification under federal law are 

similar but not identical to the four elements of necessity set forth in State v. 

Romano. They are:
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Gomez, 526 F.4d at 775 (defendant entitled to present justification defense to 

the jury after assisting authorities with criminal investigation and failing to 

receive help when receiving death threats as a result of his assistance); United 

States v. Alston, 526 F. 3d 91 (3d Cir. 2008) (defendant was not entitled to 

present justification defense because verbal threats and their failure to seek 

assistance from authorities did not meet the four factors). 

We find these cases, particularly the federal ones, instructive but not 

determinative. The New Jersey fact patterns are either inapposite or not 

compelling as to the third necessity factor, while the federal cases are factually 

aligned, but employ a slightly different legal standard to reach their 

conclusion. 

We find that the best approach to employ in determining whether to 

permit the necessity defense to be used at trial is to analyze the record using 

______________________

(1) [the person] was under unlawful and present threat 

of death or serious bodily injury; (2) [the person] did 

not recklessly place himself in a situation where [they] 

would be forced to engage in criminal conduct; (3) 

[the person] had no reasonable legal alternative; and 

(4) there was a direct causal relationship between the 

criminal action and the avoidance of the threatened 

harm.

[United States v. Gomez, 92 F.3d 770 (9th Cir. 1996).]
15 A-0304-19

the common-law factors firmly established in our caselaw. Romano, 355 N.J. 

Super. at 29. We carefully examine the record to consider whether 

circumstances beyond "spontaneous action in response to immediate 

compelling danger" exist which would support the "availability of necessity as 

a justification for the immediate possession of a weapon . . . ." Kelly, 118 N.J. 

at 386. We conclude such circumstances exist. 

The record shows defendant cooperated with the police in a previous 

investigation, going so far as to wear a wire. By doing so, he assisted police in 

performing their duty to protect the public. Through no fault of his own, his 

cooperation with the police led to him being beaten up twice and fired upon in 

his own community. Defendant was acutely aware that other individuals in the 

community wanted to hurt or kill him. We find more than sufficient evidence 

in the record to conclude that the threat to defendant was "imminent and 

compelling," and raised a reasonable expectation in the defendant that he 

would suffer physical injury, if not death. 

Defendant's plea to law enforcement for assistance went unanswered. 

He tried to move out of state to avoid the threat to his life, however he was 

unable to do so. Defendant also changed his local residence to avoid 

encounters with his attackers, which didn't work, as he was attacked outside 
16 A-0304-19

his new home. Consequently, he faced a crisis with no opportunity to avoid 

repeated assaults until he was severely injured or killed. The record also 

shows that defendant did not obtain the Beretta until after someone had 

attempted to shoot him. 

There is sufficient credible evidence in the record for a jury to find that 

each of the Romano elements have been satisfied, and that this record 

represents circumstances beyond the "spontaneous action" language of Kelly

which can support a necessity defense. 

As a result, the trial court mistakenly exercised its discretion in barring 

the necessity defense. State v. R.Y., 242 N.J. at 65-66 (quoting Cope, 224 N.J. 

at 554-55). The oft-cited dicta in Kelly regarding the limits of the necessity 

defense does not relieve a trial court from its obligation to apply facts in the 

record to the four necessity factors to determine if the defense should be 

presented to the jury. 

Because of the error in barring the defense, we vacate the guilty plea and 

sentence and remand to the trial court for further proceedings. 

Affirmed in part, vacated in part and remanded for further proceedings 

consistent with this opinion. We do not retain jurisdiction.