Polito, J.d.c. (temporarily assigned).
This is a motion by the juvenile defendant, A.S. to dismiss the complaint charging a violation of N.J.S.A. 2C:11-2(a) and N.J.S.A. 2C:11-5(a), (Criminal Homicide and Death by Auto). The defendant also moves to dismiss the complaint charging a violation of N.J.S.A. 2C:12-1(b)(1).
The State and the defendant have consented to the submission of a decision on the motion prior to trial. The Court, in so rendering its decision, relies on R. 3:10-6.
Pursuant to R. 3:10-6 the Court establishes the following facts. On June 10, 1980, A.S. was traveling in his car southbound on River Street, Hackensack. At about the same time,
Charlotte Eilertsen was proceeding northbound in the slow lane of River Street. River Street is a four lane thoroughfare having two lanes for each direction.
A.S. attempted to pass another car by using the slow lane of traffic. As he moved back into the fast lane, A.S. careened across three lanes of traffic and his car collided with the Eilertsen car which was accelerating from a full stop.
Mrs. Eilertsen was with a term pregnancy, three days from the expected date of delivery, and the impact is alleged to have resulted in trauma causing a complete abruption of the placenta and a stillborn fetus.
A.S. has been charged under N.J.S.A. 2C:11-2(a) and N.J.S.A. 2C:11-5(a) with death by auto and homicide of the fetus resulting from his careless and heedless operation of an automobile in willful and wanton disregard for the rights and safety of others. He is further charged under N.J.S.A. 2C:12-1(b)(1) with aggravated assault with an automobile upon the person of Mrs. Eilertsen.
Death by auto, N.J.S.A. 2C:11-5, is criminal homicide under N.J.S.A. 2C:11-2. It is defined as driving carelessly and heedlessly in willful or wanton disregard of the rights or safety of others which causes the death of another human being. The State, in opposition to defendant's motion, contends that a fetus is within the protected class, a human being, under the statute.
N.J.S.A. 2C:1-1 et seq. does not define human being. Pursuant to the rules of statutory construction, a statute shall not be interpreted "beyond the fair meaning of its terms lest it be applied to persons or conduct beyond the contemplation of the legislature". State v. Carbone , 38 N.J. 19, 24 (1962) citing State v. Provenzano , 34 N.J. 318, ...