The Court continued in relevant part: Arguably, other circumstances not present here, such as Anthony continuing to pose a threat after he had been stabbed by defendant, are addressed by other defenses, like the defense of necessity. Similar to “use of force,” necessity, also referred to as the “choice of evils” defense, State v. Tate (1986), is a justification included in the third chapter of the Code, and provides: 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. N.J.S.A. 2C:3-2(a). There is no plain legislative purpose to exclude the necessity defense as a defense to endangering.
Similarly, had Anthony continued to pose a threat after the stabbing, defendant’s conduct in “leaving the scene” without summoning medical assistance could have arguably been consonant with his legal duty to retreat in lieu of continuing to use deadly force. See N.J.S.A. 2C:3-4(b)(2)(b) (requiring “avoiding the necessity of using force . . . by retreating”); see also Rodriguez, 195 N.J. at 174-75 (noting that the question of whether a defendant “knew that he could have avoided the use of deadly force by safely retreating” was a jury question). In that sense, retreating by leaving would not only have been “permitted,” but required by law.
Defendant argues anecdotally that “it would be absurd for a person, after acting justifiably in self-defense, to have to stay and check if his attacker was ‘physically helpless.'” While the argument is appealing, it presumes facts not in evidence. Here, after defendant stabbed Anthony in the chest, both parties immediately stopped fighting as Anthony, realizing that he had been stabbed, stumbled around before collapsing to the ground. As defendant watched Anthony bleed profusely from the stab wound, stumble, and collapse to the ground, he backed away, eventually walking home without any attempt to summon medical assistance. Rather than imposing an obligation on defendant to secure the safety of his attacker while endangering himself, the application of the endangering statute in this case sought to preserve a life after the threat or need for force had been neutralized. Thus, self-defense does not apply to these circumstances. Because of our decision, we need not address defendant’s remaining arguments.
This decision hints that trial counsel may have been ineffective for failing to pursue a “necessity” defense. The general rule is that a defendant’s direct appeals must be exhausted before trial counsel’s strategic decisions (or lack of a reasonable strategy) can be collaterally attacked through post-conviction relief proceedings.
