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State v. Milligan

Decided: September 29, 1986.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MALCOLM D. MILLIGAN, A/K/A DOUGLAS MILLIGAN, DEFENDANT-RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 202 N.J. Super. 336 (1985).

For affirmance -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern and Garibaldi. For reversal and remandment -- Justices Clifford and Stein. Clifford, Justice, dissenting.

Per Curiam

The judgment is affirmed, substantially for the reasons expressed in the opinion of the Appellate Division, reported at 202 N.J. Super. 336 (1985).

CLIFFORD, Justice, dissenting.

Relying on the painstaking opinion of the Appellate Division, State v. Milligan, 202 N.J. Super. 336 (1985), the Court holds that a criminal homicide in which the death of the victim is caused by reckless driving may be prosecuted only under N.J.S.A. 2C:11-5, the "death by auto" statute. According to both courts below, and now this Court, that proposition compels dismissal of the indictment against defendant for manslaughter in violation of N.J.S.A. 2C:11-4(b)(1). I think not.

I

Because the trial court granted defendant's motion to dismiss the manslaughter indictment, the evidentiary record consists only of the testimony and documents presented to the grand jury. That evidence tends to show that at around 9:30 or 10:00 a.m. on May 22, 1984, defendant began drinking at Murphy's Restaurant in Greenwood Lake, New York, where he had two twelve-ounce bottles of Beck's beer and two shots of Canadian whiskey. He left there sometime before 10:30 a.m. At about 11:30 a.m. he purchased three eight-packs of beer (seven-ounce bottles) at Art and Carol's Tavern in Hewitt, New Jersey, and departed shortly thereafter. We next pick up his trail at around 4:30 p.m., again at Art and Carol's where, after three more bottles of beer and three blackberry brandies, the proprietor endeavored to limit defendant's consumption to beer only. Defendant, apparently not reacting kindly to being refused any more brandy, thereupon threatened to visit violence on the proprietor (who did not take the threat seriously) and to remove his trade to another bistro, the Nineteenth Green. About twenty minutes after having been "cut off," defendant, visibly annoyed, left Art and Carol's. One patron offered to drive defendant home, and another asked defendant to let her drive him home, both of which offers defendant refused.

It was only minutes after his departure from Art and Carol's that defendant was involved in the fatal accident that resulted

in this prosecution. According to a witness who was driving behind defendant's truck as it proceeded in a northerly direction on Greenwood Lake Turnpike in West Milford, New Jersey, defendant moved from the right side of the road to the left and back about ten times before striking the victim's southbound automobile in the southbound lanes, in a "no passing" zone. The collision, which occurred at about 5:45 p.m., resulted in the death of the other driver.

The investigating police officer concluded that defendant had been drinking. Two breathalyzer tests, the first at 7:00 p.m. and the second at 7:11 p.m., produced readings of .18 and .19 respectively. A blood test subsequently administered at a local hospital yielded a reading of .203. According to the investigating officer, who was offered to the grand jury as an expert in "drinking and driving," defendant had to have consumed about 12.8 ounces of 86-proof alcohol to have produced the foregoing readings. The officer concluded that defendant was under the influence of alcohol at the time of the accident and could not have had the capacity to operate his truck safely.

II

The New Jersey Code of Criminal Justice (Code) declares that when criminal homicide is committed recklessly, it constitutes the second-degree crime of manslaughter. N.J.S.A. 2C:11-4(b)(1), -4(c). At the time of the offense with which this appeal is concerned, death by auto -- a criminal homicide caused by driving a vehicle recklessly -- was a fourth-degree offense. N.J.S.A. 2C:11-5(a), (b). (It has since been elevated to an offense of the third degree, L. 1984, c. 212.) The word "recklessly," which appears in both the "reckless manslaughter" and "death by auto" statutes, is defined in N.J.S.A. 2C:2-2(b)(3) as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe

in the actor's situation. "Recklessness," "with recklessness" or equivalent terms have the same meaning.

The Appellate Division concluded that "the elements of reckless manslaughter and death by auto are therefore really identical where the instrumentality is a motor vehicle," 202 N.J. Super. at 339, and that the legislature intended death by auto to be a specific offense rather than a general one under the manslaughter statute, id. at 340. After a careful review of the pertinent cases that discuss the circumstances in which a specific statute (here, the "death by auto" statute) supersedes a general one (the manslaughter provision) that overlaps the same conduct, id. at 342-46, the court below concluded that in those instances in which, as here, the instrumentality of death is a motor vehicle, the legislature intended to preclude prosecutions under the manslaughter statute and to limit the State to a ...


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