On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
King, Gaulkin and D'Annunzio. The opinion of the court was delivered by King, P.J.A.D.
This case involves the manner with which defendant was charged with recklessly causing two deaths, N.J.S.A. 2C:11-5a, and one serious bodily injury, N.J.S.A. 2C:12-1c, in a motor vehicle accident. An indictment was returned in Burlington County in three counts charging defendant with committing these offenses on September 18, 1986: Count One -- recklessly causing the death of Harry Applegate; Count Two -- recklessly causing the death of Gordon Woodward; Count Three -- recklessly causing serious bodily injury to James Hall.
On defendant's motion the Law Division judge dismissed the indictment without prejudice on the authority of State v. Pennsylvania Railroad Co., 9 N.J. 194 (1952), stating that the "indictment improperly fractionalizes a single offense and therefore cannot be used to bring him to trial." The State has appealed. We disagree with the dismissal and reverse.
This is the way the State contends that the accident happened. The New Jersey Turnpike (NJT) near milepost 41.2 in Westhampton Township, Burlington County is three lanes wide in each direction. On September 18, 1986 at about 2 p.m. the road conditions were dry and clear. At that time, the southbound Turnpike was undergoing maintenance work and the right-hand lane was closed for line painting. Two vehicles and a number of workers were involved in the maintenance project. An NJT dump-truck and an NJT pick-up truck were in the right-hand land travelling at about 10 to 15 miles per hour about 30 to 40 feet apart. The speed limit on the southbound NJT had been reduced to 45 miles per hour in the area because of the maintenance work.
Trooper O'Donnell of the New Jersey State Police conducted an investigation of the accident and concluded that it occurred in the following manner. The NJT pick-up truck was the lead truck travelling south in the right hand lane. A modified platform had been attached to the tailgate of the pick-up which enabled the passenger, Gordon Woodward, to remove traffic
cones from the roadway as he stood on the platform. The NJT dump-truck, traveling behind the pick-up truck, was towing a single axle "traffic director" with a sign board measuring four-feet by eight-feet standing nine-feet six-inches above the roadway. The signboard had twenty five amber lights, each with a diameter of five and one-eighth inches. Ten of the twenty-five lights were utilized to illuminate a left arrow symbol indicating that the right lane was closed ahead.
The defendant was driving a 1982 Budd tractor-trailer southbound in the center lane. Defendant's truck suddenly pulled into the right lane and struck the left rear of the dump-truck and sign board with its right front. The NJT dump-truck's sign-board platform crumbled to the ground causing indentations in the center of the right lane, marking the point of impact. The dump-truck came to rest against the guardrail, 86 feet south of the point of impact.
Defendant's tractor-trailer continued traveling southbound in the right lane and struck the left rear of the modified platform of the NJT pick-up truck where passenger Gordon Woodward was standing. The impact lifted Woodward and the modified platform of the pick-up truck into the center lane, nearly 203 feet from the original point of impact. Defendant's truck continued onto and over the left side of the NJT pick-up truck, crushing the bed forward and the cab inward. The pick-up truck then spun eastward coming to rest on the right shoulder and the right lane.
After colliding with the NJT pick-up truck, defendant's tractor-trailer veered and jack-knifed as it crossed the center and left southbound lanes. It then collided with the center median guardrail and came to rest 312 feet south of the original point of impact with the NJT dump truck.
The driver of the NJT pick-up truck, Harry Applegate, 31 years old, was crushed inside his vehicle, and the passenger, Gordon Woodward, 24 years old, was thrown across the highway. Both ...