State v. Hessen

• Citation: 145 N.J. 441,678 A.2d 1082
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Florence HESSEN, Defendant-Appellant.
• Decision Date: 22 July 1996
• Court: United States State Supreme Court (New Jersey)

Page 441

145 N.J. 441

678 A.2d 1082

STATE of New Jersey, Plaintiff-Respondent, v. Florence HESSEN, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 28, 1994.

Decided July 22, 1996.

Ronny J.G. Siegal, Newark, argued the cause, for appellant (Hellring, Lindeman, Goldstein & Siegal, attorneys; Ms. Siegal and Peter H. Stoma, of counsel and on the briefs).

John J. Scaliti, Assistant Prosecutor, argued the cause, for respondent (John J. Fahy, Bergen County Prosecutor, attorney).

Boris Moczula, Deputy Attorney General, argued the cause, for intervenor, Attorney General of New Jersey (Deborah T. Poritz, Attorney General, attorney).

Robert Ramsey, Trenton, argued the cause, for amicus curiae, Burbage & Ramsey, Attorneys-at-Law (Burbage & Ramsey, attorneys).

PER CURIAM.

In this case, the defendant allowed a clearly intoxicated person to drive her car, in which she was a passenger. The driver caused a head-on collision with another car, killing the other driver and seriously injuring four other persons, including the defendant. The defendant was charged with the municipal court offense of "permitting" an intoxicated person to drive her vehicle. The State negotiated a plea bargain, enabling the defendant to plead guilty to the lesser charge of allowing an unlicensed driver to operate a motor vehicle.

Plea agreements are currently authorized under the rules of the Supreme Court governing practice and procedures in the municipal courts. There is an exception for "drunken driving offenses." This case requires the Court to determine whether the prohibition against plea bargaining in municipal court drunk-driving cases includes the offense of allowing or permitting an intoxicated person to drive one's car.

I

Florence Hessen was involved in a car accident on the Palisades Interstate Parkway on May 11, 1990, while riding as a passenger in her own automobile. Ms. Hessen had allowed Gerald Scher to drive her Mercedes-Benz automobile. While driving on the Palisades Interstate Highway, Scher swerved to avoid a car that he was attempting to pass, and fishtailed into the lane of oncoming traffic. Hessen's Mercedes crashed into a Mercury Lynx driven by Wayne Commins, and a van driven by Alexander Arbit. Wayne Commins was killed instantly. Arbit and the two passengers in his van were seriously injured. Ms. Hessen suffered a fractured right pelvis, lacerations and contusions.

Blood taken from Scher after the accident revealed a blood alcohol level of .163 and .175, which is considered sufficient to indicate severe intoxication. Subsequent investigation of the accident scene revealed evidence that Scher was travelling at a speed of about 80 m.p.h. Scher was convicted of reckless manslaughter, death by auto, aggravated assault, and three counts of assault by auto. The State declined to charge Hessen as an accomplice to Scher's crimes.

Hessen was charged with the offense of allowing an intoxicated person to operate her motor vehicle, in violation of N.J.S.A. 39:4-50 (hereinafter referred to as an "allowing" or "permitting" offense). The matter was not placed on the trial calendar until January 1993. On June 15, 1993, defendant and the Bergen County Prosecutor and Palisades Police presented to the municipal court an application to dismiss the pending charge against defendant and institute the lesser charge of allowing an unlicensed driver to operate a motor vehicle, in violation of N.J.S.A. 39:3-39(b), to which defendant agreed to plead guilty. The estate of Commins, the victim of the car crash, opposed the plea bargain.

The municipal court ruled that the prohibition in Guideline 4 under Rule 7:4-8 barring any plea bargaining in drunk-driving cases applied to the defendant's offense of permitting an intoxicated person to drive one's car. Accordingly, it rejected the plea bargain. The Superior Court, Law Division, affirmed. This Court then certified the case and requested that the Attorney General participate in the appeal.

II

Rule 7:4-8 was adopted on June 29, 1990. The rule authorized generally plea bargaining in municipal courts subject to specific standards. Prior to the adoption of that rule, specifically since 1974, all plea bargaining in municipal courts had been expressly prohibited, pursuant to a directive issued by the Supreme Court. Municipal Court Bulletin Letter # 3-74, at 2.

The policy underlying that prohibition was the strong concern over the possibility of abuse in the disposition of municipal court offenses, a concern attributable to the part-time nature of the municipal courts and the lack of professionalism in those courts. Supreme Court Committee to Implement Plea Agreements in Municipal Courts, Final Report (hereinafter "Final Report "), Exhibit F at 26 (Oct. 31, 1989) (noting that municipal courts were not required to maintain stenographic record or audio recording of proceedings and "most municipal courts did not have a prosecutor and even fewer had a public defender"). See State v. Gallegan, 117 N.J. 345, 347, 567 A.2d 204 (1989) (considering administrative problems arising from "current governmental structure of part-time municipal courts and prosecutors and the ever-increasing importance of municipal court cases"). Inadequate supervision and accountability were also perceived as a serious problem militating against the disposition of municipal court cases through plea agreements.

Although never fully stated or explained, the reasons for the "no plea bargaining" edict in the municipal courts included the potential for abuses when there was no direct supervision over an extensive number of municipal courts.

[Final Report, Exhibit F at 26.]

Indeed, the municipal court in this case noted that plea bargaining in municipal courts is particularly vulnerable to allegations of "backroom deals." See, e.g., In re Kress, 128 N.J. 520, 608 A.2d 328 (1992) (disciplining municipal prosecutor for remaining silent and allowing municipal judge to dismiss drunk-driving charge). Those concerns over the abuses arising from unregulated plea bargaining outweighed any potential benefits to the justice system that might be realized from the more efficient and expeditious disposition of municipal court charges through plea agreements.

When the Court determined to ban plea bargaining in municipal courts, it was especially emphatic that it should extend the prohibition to intoxicated-driving offenses. The initial Supreme Court directive to the municipal courts contained this instruction:

[T]here should be no plea bargaining in the municipal courts on non-indictable offenses. This means also that the judge should not accept a plea of guilty to a lesser charge when a defendant is charged with a violation of either N.J.S.A. 39:4-50(a) or (b).

[Municipal Court Bulletin Letter # 3-74, at 2].

In 1975, the Supreme Court reaffirmed its policy against plea bargaining in municipal courts. In 1983, Chief Justice Wilentz issued a reminder to Assignment Judges that "without in any way affecting the generality of [the plea bargaining] prohibition, I suggest that you emphasize the particular importance of not allowing plea bargaining in drunken driving cases." Memorandum from Robert N. Wilentz, Chief Justice, Supreme Court of New Jersey, to Assignment Judges (July 5, 1984) in Final Report, supra, at Exhibit C.

In 1988, in response to Reports from the Supreme Court Committee on Municipal Courts and the Supreme Court Task Force on the Improvement of Municipal Courts, this Court authorized a one-year experiment permitting plea agreements in municipal courts. The experiment was extended into 1989. Final Report, supra, at Exhibit G and H. Significantly, although the Court authorized the provisional removal of the general ban on plea bargaining, it did not relax the prohibition of plea bargaining in drunk-driving cases, viz:

No plea agreements whatsoever will be allowed in drunken driving or certain drug offenses. These offenses are:

A. Driving while under the influence of liquor or drugs ( N.J.S.A. 39:4-50)....

[Final Report at 14].

The results of this experiment were considered by the Supreme Court in 1989. The Final Report of the Supreme Court Committee to Implement Plea Agreements in Municipal Courts recommended the authorization of plea bargaining in the municipal courts:

The existence of a regulated plea agreement process is viewed as being essential to serve both the ends of justice and the effective response to burgeoning municipal court caseloads. It will foster increases in the productivity and professionalism of the municipal court bench, administrators, clerks and staff. The process provides for the certainty and fairness of punishment to better protect the rights of the defendants, victims and the interests of society.

[Final Report, at 1].

Moreover, the Committee believed the availability of plea bargaining in municipal courts was necessary to sustain the institution of the municipal courts as constituted. The municipal courts have a volume of cases in excess of 6 million that must be processed and resolved in an expeditious and summary manner. The Committee has been advised and is of the opinion that unless plea agreements are permitted in the carefully defined fashion being proposed, they will certainly take place in an unregulated fashion. Certainly, in the absence of some form of expeditious disposition, these courts would not be able to cope with their heavy calendars at least not given the part-time nature of the courts and the part-time nature of the judges, most of whom have full-time law practices.

[Id. at 36].

Nevertheless, the Committee, while acknowledging the feasibility of plea bargaining in general in the municipal courts, determined that drunk-driving offenses posed special problems. It noted the extraordinary emotional and fiscal costs of drunk driving, and "the public's concern that the process of plea bargaining, as applied to alcohol and drug offenses, might undermine the deterrent...