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).