On certification to the Superior Court, Appellate Division, whose opinion is reported at 228 N.J. Super. 492 (1988).
For reversal and reinstatement -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Handler, J.
This appeal poses the question of whether, in a criminal prosecution for the third-degree crime of death by auto under the New Jersey Code of Criminal Justice, the Motor Vehicle Act offenses of reckless driving and careless driving are lesser-included offenses that should be submitted to the jury in conjunction with its determination of guilt or innocence on the death-by-auto charge. The case comes to the Court following defendant's conviction of death by auto in the Law Division and the reversal of this conviction by the Appellate Division substantially for the reason that the trial court failed to submit to the jury the lesser included motor vehicle violations of reckless or careless driving. We granted the State's petition for certification. 113 N.J. 658, 552 A.2d 179 (1988).
The facts are relatively uncomplicated. J & L Auto Body Shop (J & L), located in Long Branch, advertises that it will pay "top cash" for junk cars and trucks. In response to these ads, on November 6, 1985, Joseph Quirk telephoned J & L and
stated that he wished to sell two vehicles, a Toyota car and a Chevy pick-up truck. J & L then sent Kevin Arkenau and Stephen Muniz, the defendant, to Mr. Quirk's residence to inspect the vehicles.
Muniz and Arkenau arrived later that day and purchased the vehicles. They towed the Toyota away, planning to retrieve the truck the next day. On November 7, Arkenau and defendant arranged to have the Chevy truck registered and insured. After first acquiring a battery for the truck from J & L, the two men and Donald Oliver, another employee of the body shop, arrived at Quirk's home at approximately 11:30 a.m. Arkenau installed the battery and defendant performed a "four corner inspection" of the truck, which included a visual inspection of the brake pads. Defendant drove the Chevy truck, Arkenau rode as a passenger, and Oliver drove the vehicle in which the men had driven to Quirk's residence. Enroute to Long Branch, defendant stopped to purchase a point of brake fluid. After pouring one-third of the pint into the rear brake chamber, defendant continued the trip. Defendant was driving about fifty miles per hour in the fast lane of Highway 36. As he approached one of the intersections, the traffic light turned yellow. Defendant accelerated in order to "beat the light." John Farrington, the driver of a Datsun traveling on Appleton Avenue, proceeded into the intersection with Highway 36 when the light turned green in his favor. Before Farrington cleared the intersection with Highway 36, defendant's truck hit the Datsun. Farringon subsequently died as a result of the ensuing injuries.
The Middletown Police took defendant to the station immediately after the accident and read him his Miranda rights. In neither of the two statements defendant gave to the police did he mention any problems with the truck's brakes or the purchase of brake fluid.
Indicted in one count for death by auto, N.J.S.A. 2C:11-5, defendant was prosecuted on the theory that he operated the
truck recklessly when he knew the brakes were faulty and when he attempted to run the red light. The trial court instructed the jury only on death by auto; no instruction was given or requested on lesser-included offenses. After the jury found defendant guilty of death by auto, the court sentenced him to an indeterminate term at a Youth Correctional Institution.
On appeal, the primary issue the Appellate Division considered was whether the vehicular 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 of death by auto. In a reported decision, the Appellate Division determined that those vehicular offenses were lesser-included offenses, and, therefore, the trial court's failure to submit those offenses to the jury was plain error warranting reversal. 228 N.J. Super. 492, 495, 550 A.2d 487 (App.Div.1988).
Defendant had presented two other arguments to the Appellate Division -- that prosecutorial misconduct denied him a fair trial and that he should be resentenced to a probationary term instead of a custodial term. 228 N.J. Super. at 495-96, 550 A.2d 487. The court concluded that the prosecutor's comments to the jury were manifestly inappropriate, and admonished him to refrain from any similar comments on retrial. Id. at 500, 550 A.2d 487. It found it unnecessary to address defendant's argument that he should have received a probationary sentence. Ibid. The Attorney General then superseded the Monmouth County Prosecutor and filed a motion for reconsideration, which was granted. On reconsideration, the Appellate Division addressed only the issue of the lesser-included offenses, and reaffirmed its reversal of defendant's conviction. Id. at 501, 550 A.2d 487. This single issue was the focus of the State's petition for certification, which, as noted, the Court granted, while denying defendant's cross-petition for certification. 113 N.J. 658, 552 A.2d 179.
The Code, under N.J.S.A. 2C:1-8d, specifies the standards for determining which offenses are lesser-included offenses. That section provides in part that "[a]n offense is . . . included [in an offense charged] when . . . [i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." That test calls for a comparison of the statutory definitions of the respective offenses to ascertain whether they have common or overlapping elements that require proof of identical facts.
The statutory definition of death by auto is set forth in N.J.S.A. 2C:11-5a, which states that "[c]riminal homicide constitutes death by auto when it is caused by driving a vehicle recklessly." "Recklessness" is specifically defined by the Code 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 the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the ...