State v. Feintuch

• Decision Date: 06 June 1977
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Philip FEINTUCH, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 414

150 N.J.Super. 414

375 A.2d 1223

STATE of New Jersey, Plaintiff-Respondent, v. Philip FEINTUCH, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued May 17, 1977.

Decided June 6, 1977.

Seymour Margulies, Jersey City, for defendant-appellant (Brigadier & Margulies, Jersey City, attorneys).

Michael H. Kessler, Sp. Deputy Atty. Gen., for plaintiff-respondent (J. Michael Evans, Sp. Deputy Atty. General-In-Charge, Acting Prosecutor, Union County, attorney).

Before Judges LORA, CRANE and MICHELS.

PER CURIAM.

Defendant was tried and found guilty in the Hillside municipal court of leaving the scene of an accident contrary to N.J.S.A. 39:4-129(b). Following a trial de novo on the record, defendant was found guilty by the Union County Court and fined $25 plus $15 costs.

On appeal defendant contends that (1) he is not in violation of N.J.S.A. 39:4-129(b) since this statute should be construed to require knowledge that there was an accident; (2) it would be an unconstitutional violation of due process to construe N.J.S.A. 39:4-129(b) as a strict liability statute; (3) defendant's motion for acquittal made at the close of the State's case should have been granted since the State failed to prove defendant's guilt beyond a reasonable doubt and (4) the Appellate Division should, in considering its scope of review, reverse the judgment of the County Court.

The record reveals that on September 13, 1976, at about 4:10 p. m., complainant Joyce Zagieboylo was driving her small foreign car in the center westbound lane of Route 22 in Hillside. Traffic was rather heavy. She testified that traffic in her lane slowed down. Traffic in the left lane had stopped. Defendant, who had been driving his Lincoln Continental in that lane, "skidded to a halt and when he did so his car swerved a little bit as he screeched to a halt and touched the rear fender" of her car.

Complainant then testified:

I proceeded to pull over into the parking lot of the supermarket and traffic was stop and go, I honked my horn and sort of waved my arms and Mr. Feintuch continued driving down 22.

She stated that defendant never stopped, he did not exhibit his license or registration, nor did he ever get out of his car. Complainant knew it was the vehicle driven by defendant which had struck her vehicle because she had seen it in her rear view mirror, she turned around and saw his car, and it was the only car next to her when she felt the impact. She copied down the license plate number.

The left rear fender of complainant's vehicle was damaged. There was a dent about a foot long in the fender right behind the wheel. She received an estimate of $157 from an auto body repair shop to repair the damage.

On questioning by the municipal court judge complainant explained that the rear bumper was not on her car at the time since she had had the rear fender repainted shortly prior to this incident, so that when defendant's bumper hit her car, it hit the fender.

A motion for judgment of acquittal was denied.

Defendant recalled that he had made a rather sudden stop and that his car had swerved to the right. He stated that the lane to his right was open when he did so swerve into it. Defendant further testified that there was no impact, he felt no impact, heard no one's horn honking, and did not see anyone trying to attract his attention. He first learned of the incident when he was served with a summons by mail. Subsequent examination of his car revealed there was not a thing on it.

Defendant first contends that a conviction for leaving the scene of an accident requires proof that defendant knew he was involved in an accident.

Prior to 1967 the relevant statute provided in pertinent part:

The driver of any vehicle knowingly involved in an accident resulting in injury or death to a person or damage to property shall immediately stop the vehicle at the scene of the accident, give his name and address and exhibit his operator's license and registration certificate of his vehicle to the person injured or struck and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person.

(Emphasis added)

In State v. Gill, 47 N.J. 441, 445, 221 A.2d 521 (1966), the court emphasized that the hit and run statute needed revision and that the Uniform Vehicle Code, § 10-101 et seq. (1962), was a possible model.

Shortly thereafter the Legislature adopted a portion of the Code. Of particular importance, §§ 10-103, 104 were adopted with minor variations. L. 1967, c. 189, § 1, N.J.S.A. 39:4-129(b) and (c) now reads as follows:

(b) The driver of any vehicle involved in an accident resulting only in damage to a vehicle, including his own vehicle, or other property which is attended by any person shall immediately stop his vehicle at the scene of such accident or as close thereto as possible, but shall then forthwith return to and in every event shall remain at the scene of such accident until he has fulfilled the requirements of subsection (c) of this section. Every such stop shall be made without obstructing traffic more than is necessary. Any person who shall violate this subsection shall be fined not less than $25.00 nor more than $100.00, or be imprisoned for a period of not more than 30 days, or both, for the first offense, and for a subsequent offense, shall be fined not less than $100.00 nor more than $200.00, or be imprisoned for a period of not less than 30 days nor more than 90 days, or both.

(c) The driver of any vehicle involved in an accident resulting in injury or death to any person or damage to any vehicle or property shall give his name and address and exhibit his operator's license and registration certificate of his vehicle to the person injured or whose vehicle or property was damaged and to any police officer or witness of the accident, and to the driver or occupants of the vehicle collided with and render to a person injured in the accident reasonable assistance, including the carrying of that person to a hospital or a physician for medical or surgical treatment, if it is apparent that the treatment is necessary or is requested by the injured person.

In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under this subsection, and no police officer is present, the driver of any vehicle involved in such accident after fulfilling all other requirements of subsections (a) and (b) of this section, insofar as possible on his part to be performed, shall forthwith report such accident to the nearest office of the local police department or of the county police of the county or of the State Police and submit thereto the information specified in this subsection.

(Emphasis added)

In adopting this statute, New Jersey became the 30th state to adopt a hit-and-run statute in substantial conformity with the Uniform Vehicle Code. Now there are 34.

A comparison of the underscored language of the present and former versions of N.J.S.A. 39:4-129 reveals the problem posed in this case. The former statute purports to apply to those drivers who are "knowingly involved in an accident." See Lo Biondo v. Allan, 132 N.J.L. 437, 40 A.2d 810 (Sup.Ct.1945); State v. Valeriani, 101 N.J.Super. 396, 244 A.2d 510 (App.Div.1968). The present statute, on the other hand, deletes the word "knowingly" and applies to "the driver of any vehicle involved in an accident." The question is whether this deletion means that knowledge is no longer an essential element of the offense.

In State v. Labato, 7 N.J. 137, 80 A.2d 617 (1951), which involved possession of lottery slips, it was held:

Knowing possession is not to be confused with criminal intent or guilty knowledge. At common law, scienter is an indispensable element. The constituents of a criminal offense at common law are an evil intention and an unlawful act. Actus non facet reum, nisi mens sit rea. State v. Woodward, 99 N.J.L. 49, 122 A. 609 (Sup.Ct.1923). But it is within the competency of the lawgiver, in the common interest, to declare an act criminal irrespective of the knowledge or motive of the doer of the act. The Legislature may make the doing of the prohibited act criminal or penal, regardless of a corrupt or criminal purpose or even knowledge of the illegal character of the act; and in such case only the doing of the proscribed act need be shown. (Citations omitted.) The criminal mind is not essential where the Legislature has so willed. The doer of the act may be liable criminally even though he does not know the act is criminal and does not purpose to transgress the law. But it is quite another thing to assess with criminal or penal consequences the unknowing "possession" of contraband articles. That would constitute an abuse of the police power. (at 149-150, 80 A.2d at 623)

See also, State v. Hatch, 64 N.J. 179, 313 A.2d 797 (1973). In every case, the question is whether the Legislature, in enacting the statute at issue, intended to impose absolute criminal liability without regard to criminal intent. State v. De Meo, 20 N.J. 1, 8-9, 118 A.2d 1 (1955); State v. Tillem, 127 N.J.Super. 421, 426, 317 A.2d 738 (App.Div.1974), certif. den. 65 N.J. 557, 325 A.2d 691 (1974), cert. den. 419 U.S. 900, 95 S.Ct. 183, 42 L.Ed.2d 146 (1974).

Unfortunately, there is no legislative history of N.J.S.A. 39:4-129 to aid in resolving this problem. Nor does the Uniform Vehicle Code discuss the issue.

The State's sole argument is that the adoption of the 1967 statute evidenced a conscious legislative decision to impose strict liability on those who leave the scene of accidents. We are of the view, however, that the statute...