On appeal from the Superior Court, Law Division, Burlington County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
[198 NJSuper Page 274] 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 (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 ...