People v. Toscano

74 N.J. 421, 378 A.2d 755 (1977)

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Nature of the Case

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Facts

A Grand Jury returned a 48-count indictment alleging that eleven named defendants and two unindicted co-conspirators had defrauded various insurance companies by staging accidents in public places and obtaining payments in settlement of fictitious injuries. Toscano (D), a chiropractor, was named as a defendant in the First Count and in two counts for conspiracy to defraud the Kemper Insurance Company (Kemper). The other defendants plead out, and D was left as the sole remaining defendant charged with the conspiracy to defraud Kemper. P attempted to show that D agreed to fill out the false medical report because he owed money to the ring leader, Richard Leonardo, for gambling debts. D subsequently sought to cover up the crime by fabricating office records of non-existent office visits by Hanaway. D maintained that he capitulated to Leonardo's demands only because he was fearful for his wife's and his own bodily safety. D received various threatening phone calls from Leonardo, and after supplying the forms, he moved to a new address and changed his phone number and even applied for a gun permit. D also showed evidence that his job performance at the Newark Housing Authority had fallen and when questioned he replied that he was worried about threats against him and his wife. The trial judge granted P's motion to exclude any further testimony in connection with D's claim of duress, and announced his decision not to charge the jury on that defense; D could not establish his own subjective estimate of the immediacy of the harm. After stating that the defense of duress is applicable only where there is an allegation that an act was committed in response to a threat of present, imminent and impending death or serious bodily harm, the trial judge charged the jury: Now, one who is standing and receiving instructions from someone at the point of a gun is, of course, in such peril. One can describe such threat as being imminent, present and pending, and a crime committed under those circumstances, or rather conduct engaged in under those circumstances, even though criminal in nature, would be excused by reason of the circumstances in which it was committed. Now, where the peril is not imminent, present and pending to the extent that the defendant has the opportunity to seek police assistance for himself and his wife as well, the law places upon such a person the duty not to acquiesce in the unlawful demand and any criminal conduct in which he may thereafter engage may not be excused. Now, this principle prevails regardless of the subjective estimate he may have made as to the degree of danger with which he or his wife may have been confronted. Under the facts of this case, I instruct you, as members of the jury, that the circumstances described by Dr. Toscano leading to his implication in whatever criminal activities in which you may find he participated are not sufficient to constitute the defense of duress. D was convicted and appealed.