State v. Tate

• Court: New Jersey Supreme Court
• Writing for the Court: CLIFFORD; HANDLER; GARIBALDI
• Citation: State v. Tate, 102 N.J. 64, 505 A.2d 941 (N.J. 1986)
• Decision Date: 24 February 1986
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Michael TATE, Defendant-Respondent.

Page 64

102 N.J. 64

505 A.2d 941

STATE of New Jersey, Plaintiff-Appellant, v. Michael TATE, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Sept. 23, 1985.

Decided Feb. 24, 1986.

Paul F. Chaiet, Asst. Prosecutor, for plaintiff-appellant (John A. Kaye, Monmouth County Prosecutor, atty., James W. Kennedy, Asst. Prosecutor, of counsel and on brief).

Robert I. Ansell, Oakhurst, for defendant-respondent (Anschelewitz, Barr & Ansell, Oakhurst, attys.).

Linda L. Yoder, Deputy Atty. Gen., for amicus curiae Atty. Gen. (Irwin I. Kimmelman, Atty. Gen., atty.).

Richard L. Plotkin, Morristown, submitted a brief on behalf of amicus curiae The Alliance for Cannabis Therapeutics (Pitney, Hardin, Kipp & Szuch, Morristown, attys., Karen J. Henderson and Mikol S.B. Neilson, Washington, D.C., members of the District of Columbia bar, of counsel).

The opinion of the Court was delivered by

CLIFFORD, J.

Defendant, Michael Tate, is afflicted with quadriplegia. The spasticity associated with that condition is sometimes so severe as to render defendant completely disabled. He claims that the use of marijuana provides relief. Indicted under N.J.S.A. 24:21-20(a)(4) for possession of over twenty-five grams of marijuana, defendant notified the State of his intention to rely on the defense of "medical necessity." He claims the defense under N.J.S.A. 2C:3-2(a), which provides standards for determining whether conduct that would otherwise constitute a criminal offense is justifiable by reason of necessity.

The trial court denied the State's motion to strike that defense, ruling that under the circumstances presented defendant was not foreclosed from asserting the defense of "necessity" based on justifiable conduct. 194 N.J.Super. 622, 477 A.2d 462 (1984). The Appellate Division affirmed, with one judge dissenting. 198 N.J.Super. 285, 486 A.2d 1281 (1985). We granted the State's motion for leave to appeal, and now reverse.

I

The record discloses that the Manalapan Police Department received a report from an informant that defendant was selling narcotics from his parents' home to Manalapan High School students. Pursuant to a search warrant the police conducted a search of Tate's room on March 29, 1983. The officers recovered a large amount of marijuana, a scale, paraphernalia, and money. They thereupon charged defendant with possession of marijuana and possession with intent to distribute. He was indicted only for possession of over twenty-five grams of marijuana in contravention of N.J.S.A. 24:21-20(a)(4).

Defendant served notice on the Monmouth County Prosecutor that he would rely at his trial on the "justification" defense by virtue of "medical necessity." He contended that he was prepared to present evidence that he uses marijuana because it eases the effects of spastic contractions regularly suffered by quadriplegics, and that no other prescribable medication gives him such relief. The prosecutor moved to strike the defense, contending that defendant's claim of "medical necessity" does not fall within the ambit of the Code defense of "justification," N.J.S.A. 2C:3-2(a). The State argued that defendant had failed to seek a legal alternative to his self-prescriptions in that he had not applied for such use under the Controlled Dangerous Substances Therapeutic Research Act, N.J.S.A. 26:2L-1 to -9 (TRA), and that defendant had failed to indicate through discovery any medical evidence that his condition is alleviated by the use of marijuana.

At the hearing conducted by the trial court, Dr. Thomas Culkin, who was the Executive Director of the Drug Utilization Review Council in the State Department of Health, and Administrator of the Controlled Dangerous Substances Therapeutic Research Program testified for defendant. He stated that the purpose of the TRA was "to make available through physicians in the State of New Jersey under highly controlled circumstances Schedule I substances. Among those are marijuana, heroin and a number of other substances * * * for the purposes of alleviating patients in whom regular therapy has not worked." He noted that at its inception, the program was funded at a level of $25,000, but that it "has never gotten off the ground in any practical sense."

II

Before turning to the statute on which defendant relies, N.J.S.A. 2C:3-2(a), we deem a few preliminary observations to be in order, particularly in light of the thoughtful dissenting opinions.

We focus first on the purposes behind the New Jersey Penal Code, in which the legislature manifested a deep concern with the common-law development of our criminal law. That concern found expression in a broad and sweeping codification that had as one of its main objectives the taking away from the courts of much of their discretion. The Criminal Law Revision Commission (Commission) adopted the following statement when it submitted its final report The time has come to create, for the first time in our history, a systematic, consistent, comprehensive [state] code to replace the hodge-podge that now exists. If criminal law is to be respected, it must be respectable. Important areas of [state] criminal law have never been put in statutory form * * *. It seems clear that such matters should not be left entirely to shifting and contradictory disposition by judges. [The New Jersey Penal Code, Final Report of New Jersey Criminal Law Revision Commission, Vol. I at ix (1971) (hereinafter Final Report ).]

The codification of New Jersey's criminal law reflected a "change in the basic responsibility for the growth and modernization of the criminal law--from court to legislature." Final Report, Vol. II: Commentary at 11. There is no question that included in the responsibilities shifted from the courts to the legislature was the responsibility for defining the scope of former common-law defenses.

The Commission would recommend codification of the general part of the criminal law. It is no longer sufficient for our statutes to simply define the elements of offenses. Modernization and rationalization compel enactment of statutory law on topics relating to culpability, excuse, justification, responsibility, etc. While our Supreme Court has done well to keep the common law alive and fluid in these areas, a more adequate job can be done by moving them into the area of legislative responsibility. The court itself has recognized that many changes must come from the Legislature. [Final Report, Vol. I at ix.]

Among the Commission's recommendations was one calling for the codification of the common-law defense of necessity. In urging that codification the Commission recognized that the definition and application of the defense, as well as its scope, should for the most part be left to the judiciary. Final Report, Vol. II at 80. It would be a mistake, however, to interpret that recognition as signalling a conclusion that this Court is free to define the defense without any restrictions by the Penal Code. We are reminded that "[t]he discretionary powers conferred by the code shall be exercised in accordance with the criteria stated in the code * * *." N.J.S.A. 2C:1-2(c).

III

It is with the foregoing observations in mind that we examine N.J.S.A. 2C:3-2(a), the statutory section covering "necessity." The discretion left to the courts by that statute is governed by criteria specifically set forth therein. The section reads:

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.

In that one short paragraph the Legislature managed to set forth three limiting criteria governing the defense: (1) conduct is justifiable only to the extent permitted by law, (2) the defense is unavailable if either the Code or other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved, and (3) the defense is unavailable if a legislative purpose to exclude the justification otherwise plainly appears.

If we follow the mandate to limit the exercise of our discretion in accordance with these governing criteria, the conclusion is inescapable that Michael Tate is not entitled to the defense of "necessity" in this case. First, the conduct is not "permitted by law." Second, other code provisions have dealt with the specific situation involved. And third, legislative intent to exclude the justification urged here does "otherwise plainly appear." Hence, the legislature has made clear its determination that this Court shall not have the discretion to make the "necessity" defense available to this defendant.

Three separate provisions of Title 24 compel the conclusion that Tate is precluded from arguing the defense that he seeks to assert. The first is N.J.S.A. 24:21-5(a), which classifies marijuana as a Schedule I controlled dangerous substance. Its denomination as such means that the legislature has determined that marijuana has "high potential for abuse" and has "no accepted medical use in treatment * * * or lacks accepted safety for use in treatment under medical supervision." The possibility of medical use of marijuana was thus specifically contemplated and specifically rejected.

The legislature nonetheless demonstrated foresight by leaving room for the possibility that scientific developments and advances in knowledge could ultimately render marijuana's Schedule I classification inappropriate: it enacted the second significant provision, N.J.S.A. 24:21-3(a), which granted to the Commissioner of Health the authority to reschedule marijuana (and all scheduled controlled dangerous substances), giving consideration to, inter alia, current scientific knowledge. At this juncture the Commissioner has not exercised that authority...