Decided: June 20, 1988; September 13, 1988, Decided.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Pressler, Muir, Jr. and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
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. CONST. 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. Saulnier, 63 N.J. 199 (1973) the Supreme Court stated:
The common law doctrine that a defendant may be found guilty of a lesser offense necessarily included in the greater offense charged in the indictment is well recognized in our State. It was originally designed to aid the prosecution so that it would not fail entirely where some element of the greater offense was not established. But it also redounded to the benefit of the defense since it enabled a finding of lesser consequence and precluded a later independent prosecution of the lesser offense as double jeopardy. [63 N.J. at 205 (emphasis added) (citations omitted)].
Similarly, this court observed in State v. Lopez, 160 N.J. Super. 30, 36 (App.Div.1978) that a defendant is entitled to a charge of a lesser included offense in order to avoid "the coercive prejudice inherent in giving the jury the choice of all-or-nothing." See also Blair, "Constitutional Limitations on the Lesser Included Offenses Doctrine," 21 Am.Crim.L.Rev. 445, 462-475 (1984).
An offense will be considered a lesser included offense in several circumstances. One is where the proof required to establish a greater offense is also sufficient to establish every element of a lesser offense. State v. Zelichowski, 52 N.J. 377, 384 (1968); State v. Midgeley, 15 N.J. 574, 580-581 (1954); see also N.J.S.A. 2C:1-8d(1). Another is where two offenses are the same but a lesser degree of culpability is required to establish the lesser offense. See State v. Sloane, 217 N.J. Super. 417 (App.Div.1987), certif. granted 108 N.J. 669 (1987); State v. Connell, 208 N.J. Super. 688, 694-695 (App.Div.1986); see also N.J.S.A. 2C:1-8d(3).
We conclude that reckless driving is a lesser included offense of death by auto. Death by auto is proscribed by N.J.S.A. 2C:11-5a, which provides that:
Criminal homicide constitutes death by auto when it is caused by driving a vehicle recklessly.
N.J.S.A. 2C:2-2b(3) provides that a person acts "recklessly" 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 ...