L. Ed. 2d 54 (1988); State v. Branam, 161 N.J. Super. 53
(App. Div. 1978), aff’d o.b., 79 N.J. 301 (1979).
VIII. NECESSITY AND JUSTIFICATION
A. Generally
N.J.S.A. 2C:3-2 provides that necessity and other
justifications may in certain circumstances excuse an
actor from culpability for conduct which would
otherwise be an offense. The statute contains three
limitations to the applicability of the defense: “(1)
conduct is justifiable only to the extent permitted by law,
(2) the defense is unavailable if either the Code or other
statutory law defining the offense provides exceptions or
defenses dealing with the specific situation involved, and
(3) the defense is unavailable if a legislative purpose to
exclude the justification otherwise plainly appears.” State
v. Tate, 102 N.J. 64, 70 (1986).
The common-law defense of necessity is referred to as
the “choice-of-evils” defense. It relies on a theory that
when the legislature defined the offense, if it had foreseen
the circumstances faced by the defendant, it would have
created an exception. To claim the common-law defense
of necessity, a defendant must demonstrate an absence of
an available alternative. State v. Tate, 102 N.J. 64, 73-74
(1986).
Justification defenses are not available in a
prosecution for an offense for which recklessness or
negligence is the requisite mental state. State v. Moore,
158 N.J. 292, 303 (1999).
Where the defendant armed herself with a carpet
cutter in order to protect herself in the event of an attack
by her former boyfriend, she could not rely on self-
defense as justification to defend against a charge of
possession of a weapon “under circumstances not
manifestly appropriate for such lawful uses as it may
have,” in violation of N.J.S.A. 2C:39-5d. In reaching this
conclusion, the Court acknowledged that self-defense
might constitute justification where an individual “arms
himself spontaneously to meet an immediate danger.”
State v. Kelly, 118 N.J. 370 (1990).
A defendant who used marijuana to relieve the
spasticity associated with his quadriplegia was precluded
from asserting the defense of medical necessity to charges
of possession of marijuana. First, the designation of
marijuana as a Schedule I controlled dangerous substance
indicated that the legislature contemplated and
specifically rejected the possibility of medical use of
marijuana. Second, although the legislature delegated to
the Commissioner of Health the authority to reschedule
controlled dangerous substances based on, among other
things, current scientific knowledge, the Commissioner
had not exercised that authority regarding marijuana.
And third, the statutory provision defining the offense
creates an exception for medically-necessary possession of
marijuana pursuant to a valid prescription. Since the
legislature created an exception dealing with the specific
situation presented by defendant’s case, there was no
authority for the Court to create an alternative exception.
Thus, defendant’s conduct was not “permitted by law;”
other Code provisions dealt with the specific situation
involved, and legislative intent to exclude the
justification asserted by defendant did “otherwise plainly
appear.” In addition, since defendant’s possession of
marijuana required a supplier who obtained and supplied
the substance in contravention of the law, the Court
determined it was “inconceivable” that the legislature
intended to sanction that activity by permitting the use
of the drug under those circumstances. On these bases,
defendant could not assert the defense of medical
necessity. State v. Tate, 102 N.J. 64, 70-73 (1986).Defendants were not entitled to reversal of their
convictions for furnishing or giving a hypodermic needle
to another, a disorderly persons offense, based on the
defense of medical necessity to combat the spread of the
human-immunodeficiency virus (HIV). The limiting
criteria of the statute, excepting designated medical
professions from the prohibition on distribution of
hypodermic needles, rendered the defense inapplicable
to the facts in this case. Moreover, the defendants were
not confronted with a clear and imminent danger to
themselves or others. State v. McCague, 314 N.J. Super.
254, 263-64 (App. Div.), certif. denied, 157 N.J. 542
(1998).No legal excuse or justification existed for
defendants’ commission of defiant trespass in an attempt
to prevent the performance of a abortion. The legislature
could not have intended to authorize other persons to use
force to prevent a woman from doing something which
she has a legal right to do. State v. Loce, 267 N.J. Super.
102 (Law Div. 1991), aff’d, 267 N.J. Super. 10 (App.
Div.), certif. denied, 134 N.J. 563 (1993), cert. denied,,
510 U.S. 1165, 114 S.Ct. 1192, 127 L. Ed. 2d 542
(1994).Defendants were precluded from asserting a defense
of necessity in a prosecution for escape, where the claimed
necessity was to avoid exposure to AIDs in the event they
were sexually assaulted by other prisoners. First, escape