On December 26, 2017, a three-judge appellate panel decided the Atlantic County case of State v. Belton. The principle issue arose under N.J.S.A. 2C:3-5 “Use of Force for the Protection of Other Persons.” It was whether Belton was entitled to have his guilty plea to first degree aggravated manslaughter vacated because he stated during the plea allocution that he placed the victim in a choke-hold to stop the victim from biting a third person’s hand. This suggested that he was innocent based on a justifiable defense of another.
In relevant part, the Court held that it discerned no reason why the principles set forth in Urbina would not apply with equal force to a suggested claim of a defense of others. Like self-defense, it is an affirmative defense that exonerates a defendant; it depends on an honest, actual, and reasonable – but not necessarily accurate – belief that force is necessary; and, once raised, imposes on the State the burden to disprove it. We recognize that the defense includes additional elements. A defendant must establish: he would be justified in using such force to protect himself against the injury threatened to the other person; he reasonably believed the protected person would be justified in using such protective force; and he reasonably believed his intervention was necessary to protect the other person. Also, a person may resort to the use of deadly force – in self-defense or defense of others – only if the person reasonably believes it necessary to protect against “death or serious bodily harm.”
Applying Urbina, we are persuaded that defendant suggested a defense of others. He contended he was asked to come to the aid of two women. Defendant said he applied force to the victim’s neck to get him to stop biting Pugh’s hand. Thus, he suggested he did so to protect against “serious bodily harm” – that is, “bodily harm which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.”
“Serious bodily injury” is a term that is often exploited by prosecutors in arguing that a third-degree aggravated assault is actually a second-degree offense. Third degree aggravated assault requires a less severe degree of injury, namely “significant bodily injury.” Significant bodily injury describes a non-permanent injury, as opposed to the “permanent injury” required for a second degree. In the every-day use of the term, a third degree “significant bodily injury” would be described as “serious.” Therein lies the potential for confusion that can be exploited to the detriment of the accused.