Two juveniles, J.R. and H.O., are charged with felony murder for causing a death during an automobile chase following the commission of a burglary. On July 1, 1988, the State filed a motion requesting that the case be referred from the Superior Court, Chancery Division, Family Part, to the Law Division, for trial of the juveniles as adults pursuant to N.J.S.A. 2A:4A-26a(2)(a). A third juvenile, E.T., is also charged but is under 14 years of age and therefore not subject to referral.
At issue is the meaning of "immediate flight" within the context of the New Jersey Code of Criminal Justice's felony murder provision, N.J.S.A. 2C:11-3a(3).
On June 4, 1988, six juveniles left Newark in a stolen Chevrolet Camaro for the purpose of stealing another vehicle. They arrived in Jersey City that evening and pulled into a K-Mart parking lot on Route 440. The Camaro stopped next to a Chevrolet van owned by Beverly Wade. Wade had parked her vehicle in the lot at about 7:15 p.m. Three of the juveniles, J.R., H.O., and E.T., left the Camaro and broke into the van. The juveniles started the van and J.R. drove it out of the lot with H.O. and E.T. as passengers.
At approximately 7:48 p.m., Officer Charles B. Casserly of the Jersey City Police Department was on routine patrol proceeding north on Route 440. As the officer approached the intersection of 440 and Danforth Avenue, he observed the van and the Camaro coming from the opposite direction on Route 440, approximately 500 feet from the K-Mart parking lot. At the intersection, both vehicles made an illegal left turn and pulled into a restaurant parking lot, a short distance from the intersection. Casserly followed the juveniles and activated his police emergency lights and siren. The Camaro and the van suddenly accelerated, fleeing north on Route 440. The Camaro then crossed the highway center divider and proceeded north in the south bound lane, against the flow of traffic. Officer James J. Lynch, who had been parked on the highway divider,
observed the chase and took up the pursuit of the Camaro as Casserly continued after the van. The Camaro then turned into a shopping mall where it was parked and abandoned. All three of its occupants were later captured and taken into custody.
In the meantime, the van continued its flight, weaving in and out of traffic while disregarding a number of traffic signals. Near the intersection of Route 440 and Routes 1 & 9, the van struck the highway curb divider blowing out both tires on the left side. Notwithstanding, the van continued for several more miles through Kearny and into Newark. Officer Casserly testified that the speed of pursuit began at about 60 or 70 miles per hour, then dropped to about 25 to 30 miles per hour as the van shredded its deflated tires.
In Newark, at the intersection of Raymond Boulevard and University Avenue, J.R. drove the van through a red traffic signal, striking the side of a car being operated by Julia Woods. The force of the impact ejected Woods from her vehicle. She died later that day from injuries sustained in the accident. The juveniles were taken into custody at the scene.
Under the Criminal Code's felony murder provision, homicide constitutes murder when a person, acting alone or in concert with others, is engaged in the commission of, or attempts to commit one of six predicate felonies, of which burglary is one, and "in the course of such crime or of immediate flight therefrom, any person causes the death of a person other than one of the participants." N.J.S.A. 2C:11-3a(3).
The State claims that in the course of committing a burglary into a vehicle in Jersey City, and in "immediate flight therefrom," the juveniles caused a death. Defense Counsel argue that the juveniles were not immediately fleeing from a burglary since the State's proofs show that the van was parked at about 7:15 p.m., whereas Casserly's pursuit began after 7:48 p.m. Furthermore, they contend, the burglary was completed in Jersey City after the juveniles entered the vehicle and drove it out of the parking lot. Thus, they argue, the death in this case
occurred during the commission of an auto theft under N.J.S.A. 2C:20-7, or while "joyriding," under N.J.S.A. 2C:20-10, but not in the course of a burglary. Accordingly, defense counsel request that ...