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Kenneth Vercammen's Law office represents individuals charged from
criminal and serious traffic violations throughout New Jersey.
Affirmative defenses 2C:2-5. Defenses generally Conduct which would
otherwise be an offense is excused or alleviated by reason of any
defense now provided by law for 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 defense claimed does not otherwise plainly appear.
L.1978, c. 95, s. 2C:2-5, eff. Sept. 1, 1979.
2C:2-6. Liability for conduct of another; complicity a. A person
is guilty of an offense if it is committed by his own conduct or
by the conduct of another person for which he is legally accountable,
or both.
b. A person is legally accountable for the conduct of another person
when:
(1) Acting with the kind of culpability that is sufficient for
the commission of the offense, he causes an innocent or irresponsible
person to engage in such conduct;
(2) He is made accountable for the conduct of such other person
by the code or by the law defining the offense;
(3) He is an accomplice of such other person in the commission
of an offense; or
(4) He is engaged in a conspiracy with such other person.
c. A person is an accomplice of another person in the commission
of an offense if:
(1) With the purpose of promoting or facilitating the commission
of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person in planning
or committing it; or
(c) Having a legal duty to prevent the commission of the offense,
fails to make proper effort so to do; or
(2) His conduct is expressly declared by law to establish his complicity.
d. A person who is legally incapable of committing a particular
offense himself may be guilty thereof if it is committed by another
person for whose conduct he is legally accountable, unless such
liability is inconsistent with the purpose of the provision establishing
his incapacity.
e. Unless otherwise provided by the code or by the law defining
the offense, a person is not an accomplice in an offense committed
by another person if:
(1) He is a victim of that offense;
(2) The offense is so defined that his conduct is inevitably incident
to its commission; or
(3) He terminates his complicity under circumstances manifesting
a complete and voluntary renunciation as defined in section 2C:5-1
d. prior to the commission of the offense. Termination by renunciation
is an affirmative defense which the defendant must prove by a preponderance
of evidence.
f. An accomplice may be convicted on proof of the commission of
the offense and of his complicity therein, though the person claimed
to have committed the offense has not been prosecuted or convicted
or has been convicted of a different offense or degree of offense
or has an immunity to prosecution or conviction or has been acquitted.
L.1978, c. 95, s. 2C:2-6, eff. Sept. 1, 1979.
2C:2-7. Liability of corporations and persons acting, or under
a duty to act, in their behalf a. A corporation may be convicted
of the commission of an offense if:
(1) The conduct constituting the offense is engaged in by an agent
of the corporation while acting within the scope of his employment
and in behalf of the corporation unless the offense is one defined
by a statute which indicates a legislative purpose not to impose
criminal liability on corporations. If the law governing the offense
designates the agents for whose conduct the corporation is accountable
or the circumstances under which it is accountable, such provisions
shall apply;
(2) The offense consists of an omission to discharge a specific
duty of affirmative performance imposed on corporations by law;
or
(3) The conduct constituting the offense is engaged in, authorized,
solicited, requested, commanded, or recklessly tolerated by the
board of directors or by a high managerial agent acting within the
scope of his employment and in behalf of the corporation.
b. As used in this section:
(1) "Corporation" does not include an entity organized
as or by a governmental agency for the execution of a governmental
program;
(2) "Agent" means any director, officer, servant, employee
or other person authorized to act in behalf of the corporation;
(3) "High managerial agent" means an officer of a corporation
or any other agent of a corporation having duties of such responsibility
that his conduct may fairly be assumed to represent the policy of
the corporation.
c. In any prosecution of a corporation for the commission of an
offense included within the terms of subsection a. (1) of this section,
other than an offense for which absolute liability has been imposed,
it shall be a defense if the defendant proves by a preponderance
of evidence that the high managerial agent having supervisory responsibility
over the subject matter of the offense employed due diligence to
prevent its commission. This paragraph shall not apply if it is
plainly inconsistent with the legislative purpose in defining the
particular offense.
d. Nothing in this section imposing liability upon a corporation
shall be construed as limiting the liability for an offense of an
individual by reason of his being an agent of the corporation.
L.1978, c. 95, s. 2C:2-7, eff. Sept. 1, 1979.
2C:2-8. Intoxication
a. Except as provided in subsection d. of this section, intoxication
of the actor is not a defense unless it negatives an element of
the offense.
b. When recklessness establishes an element of the offense, if
the actor, due to self-induced intoxication, is unaware of a risk
of which he would have been aware had he been sober, such unawareness
is immaterial.
c. Intoxication does not, in itself, constitute mental disease
within the meaning of chapter 4.
d. Intoxication which (1) is not self-induced or (2) is pathological
is an affirmative defense if by reason of such intoxication the
actor at the time of his conduct did not know the nature and quality
of the act he was doing, or if he did know it, that he did not know
what he was doing was wrong. Intoxication under this subsection
must be proved by clear and convincing evidence.
e. Definitions. In this section unless a different meaning plainly
is required:
(1) "Intoxication" means a disturbance of mental or physical
capacities resulting from the introduction of substances into the
body;
(2) "Self-induced intoxication" means intoxication caused
by substances which the actor knowingly introduces into his body,
the tendency of which to cause intoxication he knows or ought to
know, unless he introduces them pursuant to medical advice or under
such circumstances as would afford a defense to a charge of crime;
(3) "Pathological intoxication" means intoxication grossly
excessive in degree, given the amount of the intoxicant, to which
the actor does not know he is susceptible.
L.1978, c. 95, s. 2C:2-8, eff. Sept. 1, 1979. Amended by L.1983,
c. 306, s. 1, eff. Aug. 26, 1983.
2C:2-9. Duress a. Subject to subsection b. of this section, it
is an affirmative defense that the actor engaged in the conduct
charged to constitute an offense because he was coerced to do so
by the use of, or a threat to use, unlawful force against his person
or the person of another, which a person of reasonable firmness
in his situation would have been unable to resist.
b. The defense provided by this section is unavailable if the actor
recklessly placed himself in a situation in which it was probable
that he would be subjected to duress. The defense is also unavailable
if he was criminally negligent in placing himself in such a situation,
whenever criminal negligence suffices to establish culpability for
the offense charged. In a prosecution for murder, the defense is
only available to reduce the degree of the crime to manslaughter.
c. It is not a defense that a woman acted on the command of her
husband, unless she acted under such coercion as would establish
a defense under this section. The presumption that a woman, acting
in the presence of her husband, is coerced is abolished.
L.1978, c. 95, s. 2C:2-9, eff. Sept. 1, 1979.
2C:2-10. Consent a. In general. The consent of the victim to conduct
charged to constitute an offense or to the result thereof is a defense
if such consent negatives an element of the offense or precludes
the infliction of the harm or evil sought to be prevented by the
law defining the offense.
b. Consent to bodily harm. When conduct is charged to constitute
an offense because it causes or threatens bodily harm, consent to
such conduct or to the infliction of such harm is a defense 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.
c. Ineffective consent. Unless otherwise provided by the code or
by the law defining the offense, assent does not constitute consent
if:
(1) It is given by a person who is legally incompetent to authorize
the conduct charged to constitute the offense; or
(2) It is given by a person who by reason of youth, mental disease
or defect or intoxication is manifestly unable or known by the actor
to be unable to make a reasonable judgment as to the nature of harmfulness
of the conduct charged to constitute an offense; or
(3) It is induced by force, duress or deception of a kind sought
to be prevented by the law defining the offense.
L.1978, c. 95, s. 2C:2-10, eff. Sept. 1, 1979.
2C:2-11. De minimis infractions
The assignment judge may dismiss a prosecution if, having regard
to the nature of the conduct charged to constitute an offense and
the nature of the attendant circumstances, it finds that the defendant's
conduct:
a. Was within a customary license or tolerance, neither expressly
negated by the person whose interest was infringed nor inconsistent
with the purpose of the law defining the offense;
b. Did not actually cause or threaten the harm or evil sought to
be prevented by the law defining the offense or did so only to an
extent too trivial to warrant the condemnation of conviction; or
c. Presents such other extenuations that it cannot reasonably be
regarded as envisaged by the Legislature in forbidding the offense.
The assignment judge shall not dismiss a prosecution under this
section without giving the prosecutor notice and an opportunity
to be heard. The prosecutor shall have a right to appeal any such
dismissal.
L.1978, c. 95, s. 2C:2-11, eff. Sept. 1, 1979.
2C:2-12. Entrapment a. A public law enforcement official or a person
engaged in cooperation with such an official or one acting as an
agent of a public law enforcement official perpetrates an entrapment
if for the purpose of obtaining evidence of the commission of an
offense, he induces or encourages and, as a direct result, causes
another person to engage in conduct constituting such offense by
either:
(1) Making knowingly false representations designed to induce the
belief that such conduct is not prohibited; or
(2) Employing methods of persuasion or inducement which create
a substantial risk that such an offense will be committed by persons
other than those who are ready to commit it.
b. Except as provided in subsection c. of this section, a person
prosecuted for an offense shall be acquitted if he proves by a preponderance
of evidence that his conduct occurred in response to an entrapment.
The issue of entrapment shall be tried by the trier of fact.
c. The defense afforded by this section is unavailable when causing
or threatening bodily injury is an element of the offense charged
and the prosecution is based on conduct causing or threatening such
injury to a person other than the person perpetrating the entrapment.
L.1978, c. 95, s. 2C:2-12, eff. Sept. 1, 1979. Amended by L.1979,
c. 178, s. 9, eff. Sept. 1, 1979.
2C:3-1. Justification an affirmative defense; civil remedies unaffected
a. In any prosecution based on conduct which is justifiable under
this chapter, justification is an affirmative defense.
b. The fact that conduct is justifiable under this chapter does
not abolish or impair any remedy for such conduct which is available
in any civil action.
L.1978, c. 95, s. 2C:3-1, eff. Sept. 1, 1979.
2C:3-2. Necessity and other justifications in general a. Necessity.
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.
b. Other justifications in general. Conduct which would otherwise
be an offense is justifiable by reason of any defense of justification
provided by law for 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.
L.1978, c. 95, s. 2C:3-2, eff. Sept. 1, 1979.
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