On appeal from the Superior Court, Law Division, Morris County.
Morton I. Greenberg, J. H. Coleman and Havey. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
[208 NJSuper Page 335] This matter comes on before this court on defendant's interlocutory appeal from an order of the trial court denying his motion to dismiss an indictment returned in Morris County charging him with a violation of N.J.S.A. 2C:11-5, causing a death by reckless driving of an automobile. The basis for the
motion was that following his indictment defendant pleaded guilty and was fined on complaints for motor vehicle violations filed in a municipal court as a result of the incident generating the indictment. In defendant's view, the municipal court proceedings gave him a defense to the indictment on the grounds of double jeopardy.
The circumstances germane to this appeal are not in dispute. On April 19, 1985 while defendant was operating a vehicle in Rockaway Township, Morris County, he was involved in an accident in which a passenger in his vehicle was killed. As a result a police officer issued four motor vehicle summonses to defendant: reckless driving (N.J.S.A. 39:4-96); following too closely (N.J.S.A. 39:4-89); improper passing (N.J.S.A. 39:4-86), and failure to wear a seatbelt (N.J.S.A. 39:3-76.2). The summonses were made returnable on July 19, 1985. This return date was longer than that usually fixed for motor vehicle violations but was apparently selected because of the death. Of course complaints for the charges were subsequently filed in the municipal court.
In light of the death, the case was referred to the Morris County Prosecutor's Office pursuant to directive 10-82 from the administrative director of the courts promulgated May 3, 1983 in response to State v. Dively, 92 N.J. 573 (1983), which held that a defendant pleading guilty to certain motor vehicle charges and being penalized for the violations was entitled to have a subsequently returned indictment for death by auto (N.J.S.A. 2A:113-9) dismissed on double jeopardy grounds. The directive, intending to avoid a repetition of a Dively situation, provides that when a municipal court complaint is filed for a motor vehicle violation involving an accident causing death or serious personal injury the prosecutor is to be notified so he may determine if an indictable offense is involved. If the prosecutor determines that there was such an offense, the municipal court is not to act on the motor vehicle complaint pending presentment of the matter to a grand jury. If an indictment is returned all the charges, including those for motor
vehicle violations, are to be heard in the Superior Court. If there is no indictment the municipal court may proceed with the motor vehicle charges.
The prosecutor, to preclude the municipal court from acting contrary to the directive, physically obtained the original complaints from the municipal court. The matter was then presented to the Morris County grand jury which, on June 17, 1985, returned the indictment. On July 12, 1985 defendant represented by an attorney appeared in the Superior Court and pleaded not guilty to the indictment. At that time a trial date was fixed.
On July 19, 1985 defendant, not represented by and indeed without the knowledge of his attorney, appeared in the municipal court in response to the motor vehicle charges. No prosecutor, county or local, represented the State in the municipal court. At the outset of the proceedings no mention was made of the death or the fact that the prosecutor had custody of the complaints. Rather, the record reflects that the municipal court judge was not happy with the lengthy delay in the return date of the summonses and was further disturbed by the fact that he could not find the complaints. He then asked defendant how he pleaded to reckless driving and defendant responded "guilty." The judge asked about the following too closely charge and defendant explained he had an accident, was thrown from the car and could not remember whether he was following too closely. Defendant subsequently pleaded guilty to improper passing and failure to wear seat belts. The charge for following too closely was merged and dismissed. Fines and costs in the aggregate of $205 were imposed and paid. Neither defendant nor anyone else prior to the imposition of the fine and costs or before defendant paid them told the judge that the case involved a death. Later, however, while the court was still in session but after defendant had left, the death was brought to the judge's attention. The judge then attempted to void the pleas.
Defendant subsequently brought the municipal court proceedings to the attention of his attorney, who then made a motion to dismiss the indictment. The matter came on before Judge Stanton on October 4, 1985 who denied the motion. He reasoned that not only did the State not put defendant in jeopardy twice, it did everything it could do to see he was not put in jeopardy in the municipal court. Further, he distinguished State v. Dively, supra, 92 N.J. at 573, on the grounds that here, unlike in Dively, defendant was indicted before the municipal court acted and on the additional basis that the Superior Court had taken jurisdiction over the entire matter. He also indicated that the municipal judge did not know of the death and was not authorized to act in this case. Judge Stanton further pointed out that the public was entitled to have the indictment prosecuted. On October 8, 1985 Judge Stanton signed an order denying defendant's motion to dismiss the indictment. Defendant sought leave to appeal from that order and on November 14, 1985 we granted that motion.
On this appeal defendant relies principally on Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), and State v. Dively, supra, 92 N.J. at 573. In defendant's view the reckless driving charge is a lesser included offense within the charge under N.J.S.A. 2C:11-5 as reckless driving requires proof of no fact not within the greater offense. Thus defendant asserts that every "death by auto necessarily includes a finding of reckless driving" and the "same evidence utilized to establish reckless driving is to be relied upon to establish the death ...