State v. Parker

• Decision Date: 28 November 1984
• Citation: 198 N.J.Super. 272,486 A.2d 1275
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. George PARKER, Jr., Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 272

198 N.J.Super. 272

486 A.2d 1275

STATE of New Jersey, Plaintiff-Appellant, v. George PARKER, Jr., Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Nov. 5, 1984.

Decided Nov. 28, 1984.

Kathy S. Morrissey, Asst. Burlington County Prosecutor, Maple Shade, for plaintiff-appellant (Stephen G. Raymond, Burlington County Prosecutor, Mount Holly, attorney).

Anderson D. Harkov, Asst. Deputy Public Defender, Orange, for defendant-respondent (Joseph H. Rodringuez, Public Defender, Trenton, attorney).

Before Judges MORTON I. GREENBERG, O'BRIEN and GAYNOR.

The opinion of the court was delivered by

GREENBERG, P.J.A.D.

This matter comes on before this court on appeal from an order of June 18, 1984 entered in the Law Division dismissing a five-count indictment returned against defendant for aggravated assault. The appeal raises the far-reaching problem of the application of the New Jersey Code of Criminal Justice, N.J S.A. 2C:1-1 et seq., "Code," to conduct causing a motor vehicle accident with resultant bodily injuries. As will appear the result reached in this case in the trial court is not consistent with other cases on the trial level.

There seems to be no question but that on March 13, 1983 defendant, while operating a motor vehicle in Southampton Township, Burlington County, was involved in an accident with a vehicle operated by Robert Thompson. As a consequence Robert Thompson and his three passengers, Brian Thompson, Michael Thompson and Stephanie Thompson, were injured. An investigation by the New Jersey State Police resulted in two motor vehicle complaints being filed against defendant, one for failure to keep to the right and the other for driving under the influence of intoxicating liquors. We were told at oral argument that neither complaint has been tried. See State v. Dively, 92 N.J. 573, 590, 458 A.2d 502 (1983).

In addition to the conventional motor vehicle charges, the matter was presented to a Burlington County grand jury which on June 22, 1983 returned a five-count indictment against defendant for aggravated assault. Count one charged that defendant did, under circumstances manifesting extreme indifference to the value of human life, recklessly cause serious bodily injury to Stephanie Thompson contrary to N.J.S.A. 2C:12-1(b)(1), a second degree offense. The remaining four counts charged that defendant did recklessly cause bodily injury to each of the four Thompsons with a deadly weapon, a pickup truck, contrary to N.J.S.A. 2C:12-1(b)(3), fourth degree offenses.

Defendant conceived that the indictment was defective because in his view the Code was not intended to be applied to motor vehicle accidents. Further he believed that such application was so unexpected that his prosecution for aggravated assault would deny him due process of law. Further defendant thought that the indictment should be dismissed as it involved at most a de minimis infraction of the law. See N.J.S.A 2C:2-11. Consequently he moved to dismiss the indictment. His brief in support of the motion set forth a statement of facts taken from discovery supplied by the State. The State's answering brief also set forth facts concerning the accident the source of which was not identified but which we presume came from the State's investigation of the accident. We were told at oral argument that there was no transcript of the grand jury testimony prepared and supplied to the motion judge.

The motion judge decided the case in a written opinion on March 30, 1984. He said the question before him was: "This criminal proceeding raises for the first time the question of whether a drunk driver who causes an accident resulting in serious bodily harm to another person may be charged not only with motor vehicle violations but also with criminal offenses under the ... [Code]." The judge then described the facts as he understood them. He indicated that defendant while allegedly intoxicated sped his vehicle around a curve on the wrong side of the road and collided with the Thompson car. He then described the injuries which the Thompsons suffered. The judge indicated that a literal reading of the aggravated assault sections of the Code supported the indictment. In reaching this conclusion he pointed to the broad definition of deadly weapon in N.J.S.A. 2C:11-1(c). But the judge noted that in this penal action the statutes were to be strictly construed, though not to the extent of disregarding the manifest legislative intent. He felt that it was questionable whether a motor vehicle should be considered a deadly weapon. He stated that a charge that a defendant deliberately ran his car into another person while intoxicated contains its own contradiction. He noted that a motor vehicle violation is not included within the definition of offense under the Code, N.J.S.A. 2C:1-14(k), because the procedural and sentencing provisions of the Code were not intended to apply to such violations. Thus he considered it obvious that the assault provisions of the Code were not intended to apply to motor vehicle cases.

The judge indicated that only in the case of death by auto had the Legislature expressly made unlawful use of a motor vehicle a crime. N.J.S.A. 2C:11-5(a). He pointed out that death by auto was a fourth degree offense thus punishable by a maximum penalty of 18 months' imprisonment or a fine of $7,500 or both. See N.J.S.A. 2C:43-3; N.J.S.A. 2C:43-6. On the other hand a violation of N.J.S.A. 2C:12-1(b)(1) is a second degree offense with a maximum penalty of ten years in prison or a $100,000 fine or both. N.J.S.A. 2C:43-3; N.J.S.A. 2C:43-6. He thought this treatment incongruous. He also indicated that the Legislature had considered including an offense of reckless endangerment which could include reckless driving in the Code but had not done so. See II Final Report of the New Jersey Criminal Law Revision Commission at 178-179 (1971). He pointed out that while the drunken driving law has been frequently amended (see N.J.S.A. 39:4-50) since the Code had been adopted, the Legislature has never added any motor vehicle offense to the Code. Finally he noted that the effects of applying the Code to motor vehicle violations would be quite consequential. There would simply be too many potential offenses. Even ordinary negligence with a motor vehicle causing bodily injury could be disorderly conduct. N.J.S.A. 2C:12-1(a)(2). In view of his analysis the judge determined that the indictment did not charge offenses under the Code and thus he dismissed it. This disposition rendered defendant's de minimis argument moot. The order of June 18, 1984 from which the State appeals followed.

We agree with much but not all of what the motion judge said as to the law. We are satisfied that the first count of the indictment was valid and should not have been dismissed but that the judge properly dismissed the remaining counts.

We do not think that the judge properly framed the issue. He considered the question to be whether a drunk driver causing bodily injury could be charged with criminal offenses under the Code yet the indictment never suggests that defendant was intoxicated. Thus in framing the question the judge considered the facts. But this matter came on before the court on a motion to dismiss the indictment. The thrust of defendant's argument was that the indictment was insufficient as a matter of law. This was not a case involving a motion to dismiss at the end of the State's case or at the end of all the evidence. It was not even a motion to dismiss based on the insufficiency of the evidence before the grand jury. At oral argument before us the parties indicated that while there was no question but that the accident happened, they were not in agreement on the facts. For example the State asserts that defendant was intoxicated and had a blood alcohol reading of .142% over one and one-half hours after the accident. Defendant's attorney would not agree that his client had been intoxicated. Indeed he is free to challenge the validity of the test at trial. Accordingly we decide this case solely by reference to the indictment. We will not consider this matter on the basis of what we think the evidence at a trial would be likely to establish. See State v. Lopez, 188 N.J.Super. 170, 173, 457 A.2d 20 (App.Div.1983); State v. Bass, 191 N.J.Super. 347, 351, 466 A.2d 978 (Law Div.1983).

We are in agreement with the motion judge that literally all five counts of the indictment charge a crime under the Code. N.J.S.A. 2C:12-1(b)(1) provides that a person who attempts to cause serious bodily injury to another or who purposely, knowingly or under circumstances manifesting extreme indifference to the value of human life, recklessly causes such injury is guilty of aggravated assault. The first count of the indictment charges an offense under this section for recklessly causing serious bodily injury under circumstances manifesting extreme indifference to the value of human life. Neither the statute nor the count mentions a motor vehicle or a deadly weapon. Any method of recklessly causing a serious bodily injury in the circumstances set forth in N.J.S.A. 2C:12-1(b)(1) is within that section. Thus the first count of the indictment on a literal reading of N.J.S.A. 2C:12-1(b)(1) charges an offense under that section.

The remaining counts of the indictment could be sustained by a literal reading of N.J.S.A. 2C:12-1(b)(3). That section provides that a defendant recklessly causing bodily injury to another with a deadly weapon is guilty of an aggravated assault. A deadly weapon is so broadly defined in N.J.S.A. 2C:11-1(c) that there can be no doubt that a motor vehicle may be so classified. We must therefore determine whether any circumstances justify the court from departing from a literal reading of the aggravated assault sections in considering the validity of the indictment.

We see no reason for the first count of the indictment under ...