cdTOCtest

but unreasonable belief that the force was necessary to
defend himself, reducing the charge of murder to
manslaughter. State v. Powell, 84 N.J. 305 (1980) (pre-
code). Although the criminal code does not provide an
independent category of justification of imperfect self-
defense automatically reducing the charge to manslaugh-
ter, evidence which would sustain this defense at common
law will frequently be relevant to the presence or absence of
the essential elements of code offenses. State v. Coyle, 119
N.J. 194 (1990); State v. Bowens, 108 N.J. 622 (1987).
Accordingly, the facts constituting imperfect self-defense
may be relevant to whether defendant had a specific intent
of purpose or knowledge required as an element of the
offense. State v. Pridgen, 245 N.J. Super. 239 (App. Div.),
certif. denied, 126 N.J. 327 (1991). However, such facts
will not be relevant to whether defendant was reckless.
State v. Colon, 298 N.J. Super. 569 (App. Div.), certif.
denied, 150 N.J. 27 (1997)(will not reduce manslaughter
charge); Pridgen, supra (will not reduce reckless assault).

IV. USE OF FORCE FOR THE PROTECTION

OF OTHERS

A. Generally

The use of force upon or towards another person to
protect a third person is justifiable if the intervenor would
be justified in defending himself against the injury
threatened to the third person, the third person would be
justified in defending himself under the circumstances as
the intervenor reasonably believes them to be, and the
intervenor reasonably believes that intervention is
necessary. N.J.S.A. 2C:3-5.

B. Reasonable Belief

The intervenor is judged only on his own reasonable
belief, not by facts that may be known by others, including
the third person whom he is assisting. State v. Fair, 45 N.J.
77 (1965); State v. Holmes, 208 N.J. Super. 480 (App. Div.
1986); State v. Moore, 178 N.J. Super. 417 (App. Div.),
certif. denied, 87 N.J. 406 (1981). Accordingly, defendant
may be justified in using force to defend a third person
whom defendant reasonably believes to be a victim of an
attack, even if that person turns out to be the aggressor.
State v. Bryant, 288 N.J. Super. 27 (App. Div.), certif.
denied, 144 N.J. 589 (1996). The facts must justify a
reasonable belief that the person defended is actually in
danger. State v. Martinez, 229 N.J. Super. 593 (App. Div.
1989) (defendant’s belief not reasonable where the person
allegedly defended was inside the house and appeared to be
unconnected to the fight taking place outside); State v.
Wishnatsky, 258 N.J. Super. 67 (Law Div. 1990)

(defendant’s belief not reasonable where attempting to

prevent abortions from being performed in clinic).

C. Retreat

The retreat rule applies if the intervenor can thereby

secure the complete safety of the third person, and the

intervenor is obliged to try and cause the third party to

retreat except in his own dwelling. N.J.S.A. 2C:3-5b;

Holmes, supra.

V. USE OF FORCE IN DEFENSE OF PREMISES

OR PERSONAL PROPERTY

The use of force upon or toward another person is

justifiable when the actor is in possession or control of the

premises or is licenses or privileged to be thereon and he

reasonably believes such force to be necessary to prevent or

terminate what he reasonably believes to be the

commission or attempted commission of a criminal

trespass by such other person in or upon the premises.

N.J.S.A. 2C:3-6a.

Use of force upon or toward another person is

justifiable when the actor reasonably believes it necessary to

prevent what he reasonably believes to be an attempt to

commit theft, criminal mischief, or other criminal

interference with personal property in his possession or in

the possession of another for whose protection he acts.

N.J.S.A. 2C:3-6c.

Use of deadly force is only for defense of premises, not

property. N.J.S.A. 2C:3-6b(3); 2C:3-6d(2). Deadly force

may be used against any person attempting to commit or

committing any kind of criminal theft or property

destruction where defendant reasonably believes that the

use of force less than deadly force would expose him to

“bodily harm.” N.J.S.A. 2C:3-6b(3); see N.J.S.A. 2C:3-11e

(defining “bodily harm” as physical pain, temporary

disfigurement, or impairment of physical condition).

Importantly, there is a rebuttable presumption that a

person within the dwelling had a reasonable belief in the

existence of such danger, obviating the need to come

forward with any evidence on this issue and requiring the

State to overcome the presumption with proof beyond a

reasonable doubt. N.J.S.A. 2C:3-6b(3)(c).