In State v. Kotter, 271 N.J. Super. 214 (App. Div.),
certif. denied, 137 N.J. 313 (1994), the court held that
defendant was not entitled to a diminished capacity
defense against a charge of reckless aggravated assault
because defendant’s actions were actually due to her
voluntary ingestion of drugs and alcohol rather than her
mental condition, and when recklessness establishes an
element of the offense, unawareness of a risk due to self-
induced intoxication is immaterial.
Mixing medication with alcohol was held to be “self
induced” so that recklessness was not negated in simple
assault prosecutions. State v. Holtzman, 176 N.J. Super.
590 (Law Div. 1980). Furthermore, the affirmative
defense of “pathological intoxication” was not available
where there was no proof that the defendant suffered from
some underlying organic condition which caused severe
intoxication.
C. Consent
Consent, previously a common law defense, is a
defense under N.J.S.A. 2C:2-10 when the conduct causes
or threatens bodily harm, if (1) the bodily harm
consented to or threatened by the conduct consented to
is not serious; or (2) the conduct and the harm are
reasonably foreseeable hazards of joint participation in a
concerted activity of a kind not forbidden by law; or (3)
the consent establishes a justification for the conduct
under chapter 3 of the code. The express requirements
that the bodily harm consented to not be serious appears
to be consistent with pre-Code law. State v. Brown, 143
N.J. Super. 571 (Law Div. 1976), aff’d o.b. 154 N.J.
Super. 511 (App. Div. 1977) (The Appellate Division
found no necessity to consider whether and under what
circumstances consent might be a defense to simple
assault and battery, inasmuch as the defendant had been
charged with and convicted of atrocious assault and
battery).
D. Defense of Premises or Personal Property
Protection of premises or personal property,
previously a common law defense, is now codified by the
Code in N.J.S.A. 2C:3-6. Under the pre-code common
law, a person who was in possession of real or personal
property had the right to protect that possession if it was
actual and not merely constructive. However, when one
had parted with possession he could not regain it by
means of an assault. See State v. Rullin, 79 N.J. Super. 221,
229-231 (App. Div. 1963).
A constable attempting to serve process in a civil
action is not a trespasser when he enters the defendant’s
home or business premises, and the defendant is not
entitled to use reasonable force to eject him. In re
Burroughs, 125 N.J. Super. 221 (App. Div. 1973). See
N.J.S.A. 2C:3-3.E. Self Defense: N.J.S.A. 2C:3-4a and b (See also, SELF DEFENSE, this Digest)
Even if defendant’s beliefs about use of force at the
time were unreasonable, they may negate purposeful or
knowing culpability requirement but not one for which
recklessness or negligence may suffice. State v. Murphy,
185 N.J. Super. 72, 75 (Law Div. 1982).