Decided: June 20, 1988; Approved for publication October 14, 1988.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
The opinion of the court was delivered by
The primary issue on this appeal is whether the motor vehicle offenses of reckless driving, N.J.S.A. 39:4-96, and careless driving, N.J.S.A. 39:4-97, must be submitted to the jury as lesser included offenses in a trial for death by auto under N.J.S.A 2C:11-5a. We conclude that these motor vehicle offenses are lesser included offenses of death by auto and therefore reverse defendant's conviction for death by auto based on the trial court's failure to so instruct the jury.
Defendant's conviction arose out of an accident at an intersection located in Middletown Township. Decedent had stopped his passenger car for a red light. When the light turned green, decedent drove his car into the intersection and was struck by a pick-up truck operated by defendant.
Defendant was charged in a one count indictment with death by auto. The prosecution contended that defendant had operated the pick-up truck recklessly by attempting to run a red light. The prosecution also contended that defendant had acted recklessly in driving the truck when he knew that the brakes were not operating properly.
The trial court did not submit any lesser included offenses to the jury. Thus, the jury was given the option of convicting defendant of death by auto or of acquitting him. The jury returned a verdict of guilty of death by auto, and the court sentenced defendant to an indeterminate term at the Youth Correctional Institution Complex.
On appeal defendant argues:
POINT I: THE TRIAL COURT'S FAILURE TO CHARGE THE LESSER INCLUDED OFFENSES OF RECKLESS DRIVING AND CARELESS DRIVING CONSTITUTES REVERSIBLE ERROR. (N.J. CONST. (1947) ART. I, PAR. 10; U.S. CAT AMEND. VI, XIV) (Not Raised Below).
POINT II: THE PROSECUTOR'S MISCONDUCT WHICH CULMINATED IN HIS REMARK TO THE JURY THAT THE VICTIM'S FAMILY WOULD ONLY GET PENNIES FROM THE CIVIL SUIT DENIED DEFENDANT A FAIR TRIAL. (N.J. CONST. (1947) ART. I, PAR. 10; U.S. CONST. AMEND. VI, XIV).
POINT III: DEFENDANT SHOULD BE RESENTENCED TO A PROBATIONARY TERM.
Our courts have recognized that the submission of lesser included offenses to the jury affords a defendant the opportunity to argue that he is guilty of a less serious offense than charged by the State. In State v. ...