State v. Toscano

Brief Fact Summary. The Defendant, Joseph Toscano (Defendant), was convicted of conspiring to obtain money by false pretenses. The Defendant argued that he acted under duress, but the trial court judge ruled the threatened harm was not sufficiently imminent. The appellate division affirmed the conviction.

Synopsis of Rule of Law. The defense of duress applies to crimes other than murder if an individual participated in conduct because he was coerced to do so by the use of force or threat of force against him or another person whereby a person of reasonable firmness in his situation would have been unable to resist.

Facts. In 1972, eleven defendants were indicted for defrauding insurance companies by staging accidents in public places in order to obtain payments in injury settlement cases. The Defendant, a chiropractor, allegedly conspired to defraud Kemper Insurance Company. The majority of the defendants pled guilty to the crimes, including William Leonardo, the organizer of the conspiracy. The state attempted to show that the Defendant agreed to fill out the false medical report because he owed a gambling debt to Richard Leonardo (William’s brother). The Defendant claims he agreed to William Leonardo’s demands because he was fearful for his safety and the safety of his family. The Defendant testified that he refused several times when William Leonardo asked him to fill out the paperwork. After numerous phone calls to the Defendant, William Leonardo made veiled threats about knowing where he lived and that he should not leave his wife alone. The Defendant thought about calling the police, but
failed to do so in the hope that the problem would just go away. After filling out the fraudulent paperwork, the Defendant received no compensation for his services. Because he was still frightened about the episode, the Defendant moved and had his telephone number unlisted. After the Defendant testified, the trial judge granted the State’s motion to exclude any further testimony relating to his claim of duress stating that the defense only applies where there is an imminent threat of impending death or serious bodily harm. The Defendant was then convicted of conspiring to obtain money by false pretenses and the appellate division affirmed the decision. The Supreme Court of New Jersey granted certification to consider the status of duress as an affirmative defense.

Issue. Does the defense of duress apply to crimes other than murder?

Held. Yes. The Defendant’s conviction is reversed and remanded for a new trial. Judge Pashman delivered the opinion of the court. The common law defense of duress was recognized only when the alleged coercion involved a use or threat of immediate harm. Thus, neither threats of minor injury nor threats of property destruction were thought to be coercive enough to overcome the will of a person of ordinary courage. Where future threats of harm are involved, courts have generally thought that an individual has a duty to seek assistance from law enforcement. However, under some situations, the commission of a minor criminal offense should be excused even if the coercive agent does not use or threaten force likely to result in death or serious bodily injury. It is possible that law enforcement might no be able to prevent a threat of future harm form eventually being carried out. The drafters of the Model Penal Code and the New Jersey Penal Code focused on whether the standard imposed upon
the accused was one that normal members of the community would be able to comply with. The court chooses to adopt this approach as the law of New Jersey. The Defendant’s testimony provided a factual basis for finding that William Leonardo threatened him and his wife with physical violence. The jury might have found from further testimony that the threats produced a reasonable fear in the defendant.

Discussion. Under the Model Penal Code provisions, it is up to the jury to decide whether a person of reasonable firmness in this situation would have failed to seek assistance from law enforcement, or in the alternative, been unable to resist the coercion.