                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5691-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

S.E.,

     Defendant-Appellant.
______________________________

                   Argued October 17, 2019 – Decided December 30, 2019

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Municipal Appeal No. 17-14.

                   Philip G. Pagano argued the cause for appellant.

                   Dina Rochelle Khajezadeh, Assistant Prosecutor,
                   argued the cause for respondent (Bradley D. Billhimer,
                   Ocean County Prosecutor, attorney; Samuel J.
                   Marzarella, Chief Appellate Attorney, of counsel;
                   Cheryl L. Hammel, Assistant Prosecutor, on the brief).

PER CURIAM
      Defendant S.E.1 pleaded guilty in Toms River Township Municipal Court

to driving while intoxicated, N.J.S.A. 39:4-50. Prior to sentencing, defendant

requested to withdraw her plea. The municipal court judge denied defendant's

motion, sentencing defendant to a ninety-day license suspension, fines and

penalties. Defendant appealed to the Law Division, but her motion to withdraw

her plea again was denied. Defendant appeals the order entered on June 27,

2018.2 She claims the trial court erred by not vacating the plea based on the

common law defense of necessity. She also alleges a Brady violation occurred,

requiring the plea to be vacated. We discern no legal or constitutional error and

affirm the order denying withdrawal of the plea.

                                        I.

      Based on information from a tow truck driver, officers from the Toms

River Police Department found defendant asleep in the driver's seat of her car at

2:00 a.m. on September 19, 2015, in the parking lot of a food store. The keys

were in the ignition and the lights were on. Her dog was in the car. A patrolman



1
  We use initials for defendant's name because of the allegations involving
domestic violence. R. 1:38-3(d)(9).
2
   Defendant's motion was denied by order dated May 23, 2018. There was a
clerical error in that order. The June 27, 2018 order corrected the clerical error
and reiterated that defendant's motion was denied.
                                                                          A-5691-17T1
                                        2
roused her by knocking several times on the window. Defendant "fumbled" with

the keys, turned off the vehicle, turned the key into the auxiliary position, and

opened the window. The patrolman reported "a strong odor of an alcoholic

beverage." Defendant's eyes reportedly were "bloodshot and watery;" her hand

movements were "slow." She told the patrolman she had "[a] lot" to drink or

"words to that effect." She told the patrolman "she was having problems at home

and just wanted to sleep in the parking lot for the night." Defendant would not

elaborate on the issues but told the patrolman her boyfriend was "not being nice

to me."

      Exiting the vehicle for the field sobriety tests, defendant was "swaying for

balance and staggering when she walked." She told the patrolman she had

consumed "[seven] shots of Jack Daniels Whiskey." She denied she was injured

in any way. She did not want to perform the sobriety tests because she would

"fail." Defendant was arrested for driving while under the influence. Her breath

samples yielded a blood alcohol level of .19 percent. Defendant was charged

with reckless driving, N.J.S.A. 39:4-96, and driving while intoxicated (DWI),

N.J.S.A. 39:4-50.




                                                                          A-5691-17T1
                                        3
      In March 2016, with representation by a Public Defender, defendant

pleaded guilty to a first offense DWI violation.3       Defendant did not raise

common law necessity as a defense. She did not mention that on September 19,

2015, when she was arrested, she had been assaulted by her boyfriend.

Defendant answered affirmatively she understood the plea, was not forced to

accept it, and waived her right to a trial. She answered "yes" that she understood

by pleading guilty, she was admitting consuming alcohol, operating a vehicle

and that she had done so under the influence of alcohol. She was sentenced to

a ninety-day suspension of her driving privileges, twelve hours at the Intoxicated

Drivers Recovery Center and fines, court costs and surcharges. 4 The other

charges were dismissed.

      In October 2016, defendant filed a motion to vacate her guilty plea. In

her supporting certification, she alleged on the night she was arrested for DWI

in September 2015, her boyfriend dragged her out of bed by her leg wh ile she


3
  The blood alcohol reading was not the basis for her guilty plea because of a
proof issue. Defendant's counsel advised that the case was before the municipal
court "without reading, there being a [twenty]-minute issue with regard to the
Alcotest administration." This is an apparent reference to State v. Chun, 194
N.J. 54, 79 (2008).
4
  These included $306 in fines, $33 in court costs, $50 to the Violent Crimes
Compensation Bureau, a $225 DWI surcharge and a $75 assessment to the Safe
Neighborhood Services Fund.
                                                                          A-5691-17T1
                                        4
was asleep, struck her in the face and head, several times, knocked her to the

floor, grabbed her purse and threw her out the door, locking it. She claimed she

was "hurting, disoriented and in severe pain." She had no cell phone service.

Defendant drove to the parking lot where she was found. Defendant claimed

she was "scared, injured and terrified" and "hiding out away from [her

boyfriend]."

        Defendant's certification alleged that subsequent to her DWI arrest, she

was assaulted twice by her boyfriend in October 2015, causing her injuries

requiring hospitalization. She obtained a temporary restraining order. She

asserted he assaulted her twice again in December 2015, and she obtained a final

restraining order. Defendant claimed she was not provided with discovery about

the DWI charge nor did she speak with her Public Defender or review the proofs

against her.

        Defendant argued the plea was not knowingly or intelligently entered

because she was not advised of her right to assert necessity as a defense. Her

counsel argued the Slater5 factors were satisfied.

        In June 2017, the municipal court judge denied defendant's motion to

vacate her guilty plea, finding there was nothing to indicate there was a necessity


5
    State v. Slater, 198 N.J. 145, 157-58 (2009).
                                                                           A-5691-17T1
                                         5
defense. The prosecutor's "Google search" indicated defendant had been driving

"a couple miles from the house . . . ." Defendant's certification did not allege

she told the patrolman or her attorney about the September 2015 assault. The

subsequent assaults did not support a necessity defense for this DWI charge.

       The municipal court judge granted defendant's motion to require the Toms

River Police Department to provide defendant with a copy of her mugshot taken

after her arrest in September 2015. The judge denied defendant's request to

supplement the record with the mugshot.

       Defendant's appeal to the Law Division was denied on May 23, 2018.

That court also rejected the necessity defense.         Relying on defendant's

certification, the court found defendant's boyfriend was in the house and "did

not follow [d]efendant, nor continue to assault her outside of the home." She

"could have walked to a neighbor's home and requested help." She was not in

"present danger" when she chose to drive her vehicle a few miles to the

supermarket parking lot. The court noted this case was different from Romano6

where the defendant was assaulted by multiple assailants who were following

him, "rocking his vehicle while threatening to kill him."        Defendant "had

multiple other options after the assault ended instead of getting into her vehicle


6
    State v. Romano, 355 N.J. Super. 21 (App. Div. 2002).
                                                                          A-5691-17T1
                                        6
and driving in order to find somewhere to sleep." She could have "asked to use

someone's phone." She did not tell the police about the assault.

      The court found the defense of necessity, under which defendant

acknowledged driving while intoxicated, was not consistent with the first factor

under Slater that required a "colorable claim of innocence." Defendant did not

explain why the defense of necessity was "forgotten or missed" as required

under the second Slater factor. She did not tell the police or her attorney she

had been assaulted. The court gave "moderate weight" to the existence of the

plea under the third Slater factor. The court found under the fourth factor there

would be no real prejudice to the State or unfair advantage to the accused if the

plea were withdrawn. Defendant's appeal was denied.

      On appeal, defendant raises these issues:

            POINT ONE

            THE COURT BELOW ERRED IN DENYING THE
            DEFENDANT'S MOTION TO VACATE HER
            GUILTY PLEA UNDER THE FACTS AND
            CIRCUMSTANCES OF THIS CASE UNDER
            PRINCIPLES OF LAW.

            POINT TWO

            THE COURT BELOW ERRED IN NOT
            DETERMINING THAT THE BRADY VIOLATION
            WARRANTED THAT THE COURT VACATE
            DEFENDANT'S GUILTY PLEA.

                                                                         A-5691-17T1
                                       7
                                     II.

      On appeal, we consider only "the action of the Law Division and not that

of the municipal court." State v. Palma, 219 N.J. 584, 591-92 (2014) (quoting

State v. Joas, 34 N.J. 179, 184 (1961)). Under Rule 3:23-8(a)(2), the Superior

Court makes independent findings of fact and conclusions of law de novo, based

on the record from the municipal court. See State v. States, 44 N.J. 285, 293

(1965). Our review is to determine "whether the findings made could reasonably

have been reached on sufficient credible evidence present in the record." State

v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146,

161-62 (1964)). Our review of legal determinations is plenary. See State v.

Handy, 206 N.J. 39, 45 (2011).

      Defendant appeals the denial by the Law Division of her request to vacate

her guilty plea. "In moving to withdraw a guilty plea, the defendant bears the

burden of presenting a 'plausible basis for [her] request' and a good-faith basis

'for asserting a defense on the merits.'" State v. Munroe, 210 N.J. 429, 442

(2012) (quoting State v. Smullen, 118 N.J. 408, 416 (1990)).             "Before

sentencing, the standard for plea withdrawal is 'the interests of justice.'" State

v. Lipa, 219 N.J. 323, 332 (2014) (quoting R. 3:9-3(e)).




                                                                          A-5691-17T1
                                           8
      In Slater, the Court set forth factors to assess claims to withdraw a guilty

plea. Specifically,

             [i]n evaluating motions to withdraw a guilty plea, trial
             courts should consider the following factors: (1)
             whether the defendant has asserted a colorable claim of
             innocence; (2) the nature and strength of defendant’s
             reasons for withdrawal; (3) the existence of a plea
             bargain; and (4) whether withdrawal would result in
             unfair prejudice to the State or unfair advantage to the
             accused.

             [Slater, 198 N.J. at 150.]

We review "the trial court's denial of defendant's request to withdraw [her]

guilty plea [for ] . . . an abuse of discretion which renders [a] lower court's

decision clearly erroneous." Lipa, 219 N.J. at 332 (quoting State v. Simon, 161

N.J. 416, 444 (1999)).

      Defendant argued the common law defense of necessity applied to create

a colorable claim of innocence under the Slater analysis. The common law

defense of necessity has been applied in defense of a DWI charge. See Romano,

355 N.J. Super. at 30 (applied where defendant was being severely beaten by

several assailants).

             The elements of the common law defense of necessity
             are:

             (1) There must be a situation of emergency arising
             without fault on the part of the actor concerned;

                                                                          A-5691-17T1
                                          9
            (2) This emergency must be so imminent and
            compelling as to raise a reasonable expectation of harm,
            either directly to the actor or upon those he was
            protecting;

            (3) This emergency must present no reasonable
            opportunity to avoid the injury without doing the
            criminal act; and

            (4) The injury impending from the emergency must be
            of sufficient seriousness to outmeasure the criminal
            wrong.

            [Id. at 29 (quoting State v. Tate, 194 N.J. Super. 622,
            628 (App. Div. 1984), rev'd on other grounds, 102 N.J.
            64 (1986)).]

"The 'necessity' defense is based on public policy . . . . [And] 'reflects a

determination that if, in defining the offense, the legislature had foreseen the

circumstances faced by the defendant, it would have created an exception.'"

Ibid. (quoting Tate, 102 N.J. at 73). Defendant has the burden to show evidence

in support of the defense and then the State has the burden "to disprove the

affirmative defense beyond a reasonable doubt." Romano, 355 N.J. Super. at

35-36.

      The court applied the four-part test, concluding the elements of the defense

were not met. Defendant was not in "present danger" when she drove her vehicle a

few miles to the supermarket parking lot. She had other options rather than driving



                                                                           A-5691-17T1
                                       10
in the car. She "could have walked to a neighbor's house and requested help" or

asked to use someone's phone.

      The record supported the court's findings. Defendant did not deny she

drove her vehicle "a couple" miles while under the influence of alcohol.      She

was not seeking help or medical attention. She did not tell the police or her

attorney she had been assaulted.

      The court properly distinguished this case from Romano where the

defense of necessity was applied. In Romano, the police officer observed the

defendant's vehicle when it was "approximately 350 yards" from a restaurant

parking lot because its lights were not on.      When the officer stopped the

defendant, he was covered in blood and bleeding profusely from his nose.

Romano, 355 N.J. Super. at 24.

      We reversed the DWI conviction in Romano. The defendant was "brutally

beaten and was faced with three angry men who were intent on continuing to

beat him." Id. at 35. The car where he had taken refuge, was being "shaken,

kicked, and rocked, with his attackers threatening to kill him." Ibid. Defendant

"had no realistic alternative but to violate the DWI statute." Ibid. We noted that

"[i]n a DWI prosecution, the distance a driver travelled might be relevant to the




                                                                          A-5691-17T1
                                       11
defense of necessity if the driver had escaped the harm and continued to drive."

Id. at 36 n. 1.

      This case did not present the same type of imminent and compelling

reason to drive while intoxicated that would support the defense of necessity.

Taking the facts in defendant's certification as true and the reasonable inferences

drawn therefrom, we are satisfied there were other opportunities for defendant

to avoid injury without driving a few miles to a parking lot while intoxicated. It

was not contradicted that the immediacy of the assault was over, contrary to

Romano. Under these facts, defendant did not make a showing that she was

compelled to drive while intoxicated to avoid immediate injury. Defendant's

argument she satisfied Slater was based on the necessity defense. Without this,

defendant did not show a "colorable claim of innocence," which was the first

factor under Slater.

      The second Slater factor —the nature and strength of the defendant's

reasons for withdrawal—"depend[s] on the circumstances peculiar to the case."

Munroe, 210 N.J. at 442. A defendant needs to make a "plausible showing of a

valid defense" and then explain why this was overlooked at the plea. Id. at 443.

Defendant asserts she did not have a copy of her mugshot from the night of her

arrest, but she would have known the circumstances of the assault and how she


                                                                           A-5691-17T1
                                       12
appeared. She did not tell her attorney or the police about the assault. She did

not explain why she did not raise the issue earlier. Therefore, the record

supports the court did not abuse its discretion by denying defendant's application

to vacate her guilty plea to the DWI charge because the Slater factors were not

satisfied.7 We affirm denial of defendant's application to vacate her guilty plea

to the DWI charge.

       Defendant alleges the State committed a Brady8 violation by not providing

a copy of her mugshot in discovery. She argues the mugshot was "crucial to the


7
  The court gave moderate weight to the third Slater factor—the existence of a
plea bargain and found that neither party would be harmed by withdrawal of the
plea, under the fourth factor.

Under Guideline Four of the Guidelines for Operation of Plea Agreements in the
Municipal Courts of New Jersey, Pressler & Verniero, Current N.J. Court Rules,
Appendix to Part VII (2020), "[n]o plea agreements whatsoever will be allowed
in drunken driving or certain drug offenses." Neither the municipal court nor
Law Division could approve a plea bargain.

There are references to a plea bargain in this case. What the record shows,
however, is that the Alcotest results were not the basis for defendant's plea
because of an apparent proof issue involving the twenty-minute observation
period. Defendant acknowledged driving while under the influence. She
pleaded guilty under N.J.S.A. 39:4-50(a)(l)(i) and was sentenced in accord with
that statute. Under the comment to the Guidelines, the prosecutor had the ability
"to amend the charges to conform to the proofs." Part VII Guidelines Comment.
The Guidelines permit the exercise of prosecutorial discretion, which is what
occurred in this case. Ibid.
8
    Brady v. Maryland, 373 U.S. 83 (1963).
                                                                          A-5691-17T1
                                       13
defense and clearly material . . . since the trial court below stated that there was

no evidence of assault or need to leave the residence."

      "[T]o establish a Brady violation, defendant must show that: (1) the

prosecution suppressed evidence; (2) the evidence is favorable to the defense;

and (3) the evidence is material[.]" State v. Nelson, 330 N.J. Super. 206, 212

(App. Div. 2000) (citing State v. Martini, 160 N.J. 248, 268 (1999)). "Evidence

is material 'if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been

different.'" State v. Robertson, 438 N.J. Super. 47, 67 (App. Div. 2014) (quoting

State v. Knight, 145 N.J. 233, 246 (1996)), aff'd on other grounds, 228 N.J. 138

(2017).

      Critically, there was no evidence the State withheld the mugshot from

defendant. It is not clear how the result of the proceeding would have been

different when defendant knew the mugshot was taken, was aware she was

assaulted, and of her appearance. This record does not support a finding that

Brady was violated.

      We conclude defendant's further arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2).

      Affirmed.


                                                                            A-5691-17T1
                                        14
