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State v. Hessen

July 22, 1996

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FLORENCE HESSEN, DEFENDANT-APPELLANT.



On certification to the Superior Court, Law Division, Bergen County.

Justices Handler, Pollock, O'hern, Garibaldi and Stein join in this opinion. Chief Justice Wilentz did not participate.

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. Florence Hessen (A-49-94)

Argued November 28, 1994 -- Decided July 22, 1996

PER CURIAM

The issue on appeal is whether the prohibition against plea bargaining in municipal court drunk-driving cases includes the offense of allowing or permitting an intoxicated person to drive one's car.

Florence Hessen allowed a clearly intoxicated person to drive her car, in which she was a passenger. The intoxicated driver caused a head-on collision with another car, killing the other driver and seriously injuring four other persons, including Hessen.

Hessen was charged with the municipal court offense of permitting an intoxicated person to drive her vehicle. The State negotiated a plea bargain, enabling Hessen to plead guilty to the lesser charge of allowing an unlicensed driver to operate a motor vehicle. The estate of the deceased victim opposed the plea bargain.

The municipal court ruled that the prohibition in the Guideline 4 under Rule 7:4-8 barring any plea bargaining in drunk-driving cases applied to the offense of permitting an intoxicated person to drive one's car. Accordingly, the municipal court rejected the plea bargain. The Superior Court, Law Division, affirmed.

The Supreme Court directly certified the case and requested that the Attorney General participate in the appeal.

HELD:

The imposition of a ban on plea bargaining in cases involving violations of N.J.S.A. 39:4-50 does not violate the constitutional separation of powers and does not impermissibly infringe on the powers of the municipal prosecutor to dispose of cases. The prohibition against plea bargaining in municipal court drunk-driving cases includes the offense of allowing or permitting an intoxicated person to drive one's car.

1. Rule 7:4-8, adopted in June 1980, authorizes plea bargaining in municipal court subject to specific standards. Prior to the adoption of that rule, specifically since 1974, all plea bargaining in municipal courts had been expressly prohibited, pursuant to a directive issued by the Supreme Court. The policy underlying that prohibition was the strong concern over the possibility of abuse in the Disposition of municipal court offenses. The Court specifically and emphatically extended the prohibition on plea bargaining to drunk-driving offenses. (pp. 4-6)

2. Following a one-year experiment permitting plea agreements in municipal courts, the October 1989 Final Report of the Supreme Court Committee to Implement Plea Agreements In Municipal Courts recommended the authorization of plea bargaining in the municipal courts. The Committee believed that the availability of plea bargaining in municipal courts was necessary to sustain the institution of municipal courts as presently constituted. The Committee's report recommended, however, that the prohibition on plea agreements in drunk-driving offenses should continue. In 1990, the Court approved the institution of a regulated system of plea agreements in municipal courts. The Court allowed plea bargaining pursuant to Rule 7:4-8, in conformity with the Guidelines. However, Guideline 4 adopted the recommendation of the Committee that plea bargaining not be allowed in drunk-driving cases. (pp. 6-8)

3. The Supreme Court has the prerogative and the power to limit plea bargaining in the municipal courts. The limited ban on plea bargaining is one aspect of the Supreme Court's authority to use plea bargaining in the exercise of its supervening responsibility and authority over the administration of the criminal Justice system. The plea bargaining process is based on the need to improve efficiency and to reduce and enhance the management of the heavy case load in municipal courts, and the need to assure the sound, fair and just supervision of the Justice system at the municipal level. Although any regulation imposed on the process of plea bargaining will condition and restrain the discretionary authority of the prosecutor, the Court has previously imposed such limits on prosecutorial discretion in order to foster legislative or executive goals. In addition, the Court's decision to implement regulated plea bargaining in municipal courts was motivated by the recognition that plea bargains had been conducted informally in the municipal courts, even though formally prohibited. Furthermore, the imposition of a ban on plea bargaining in drunk-driving cases is intended to support the policy decisions of the legislative and executive branches in their commitment to eliminate drunk driving. (pp. 8-15)

4. The prefatory description of the offenses covered by the Guideline was not intended to be a definitive substantive description of each of the offenses subject to the plea bargain prohibition; this general description is designed to identify the source of the substantive provisions that constitute the specific subject matter of the regulation. The meaning of the scope of the ban on plea bargaining in drunk-driving cases is indicated by the considerations of public policy that motivated its promulgation. The Court's intention in upholding the ban effectuates the strong legislative and public policy to eliminate drunk driving. The commitment to eliminating drinking and driving can be accomplished only through consistent, uniform and vigorous enforcement of the plea bargaining ban in drunk-driving cases. To carve out an exception for the offense of permitting an intoxicated person to drive undermines the important policy behind the prohibition. Moreover, the Legislature clearly views one who allows an intoxicated person to drive equal in offender status to the actual drunk driver. Thus, these two types of offenders should be subject to the identical restrictions in plea bargaining. (pp. 15-23)

Judgment of the Law Division is AFFIRMED.

JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and STEIN join in this opinion. CHIEF JUSTICE WILENTZ did not participate.

PER CURIAM.

In this case, the defendant allowed a clearly intoxicated person to drive her car, in which she was a passenger. The driver caused a head-on collision with another car, killing the other driver and seriously injuring four other persons, including the defendant. The defendant was charged with the municipal court offense of "permitting" an intoxicated person to drive her vehicle. The State negotiated a plea bargain, enabling the defendant to plead guilty to the lesser charge of allowing an unlicensed driver to operate a motor vehicle.

Plea agreements are currently authorized under the rules of the Supreme Court governing practice and procedures in the municipal courts. There is an exception for "drunken driving offenses." This case requires the Court to determine whether the prohibition against plea bargaining in municipal court drunk-driving cases includes the offense of allowing or permitting an intoxicated person to drive one's car.

I

Florence Hessen was involved in a car accident on the Palisades Interstate Parkway on May 11, 1990, while riding as a passenger in her own automobile. Ms. Hessen had allowed Gerald Scher to drive her Mercedes-Benz automobile. While driving on the Palisades Interstate Highway, Scher swerved to avoid a car that he was attempting to pass, and fishtailed into the lane of oncoming traffic. Hessen's Mercedes crashed into a Mercury Lynx driven by Wayne Commins, and a van driven by Alexander Arbit. Wayne Commins was killed instantly. Arbit and the two passengers in his van were seriously injured. Ms. Hessen suffered a fractured right pelvis, lacerations and contusions.

Blood taken from Scher after the accident revealed a blood alcohol level of .163 and .175, which is considered sufficient to indicate severe intoxication. Subsequent investigation of the accident scene revealed evidence that Scher was travelling at a speed of about 80 m.p.h. Scher was convicted of reckless manslaughter, death by auto, aggravated assault, and three counts of assault by auto. The State declined to charge Hessen as an accomplice to Scher's crimes.

Hessen was charged with the offense of allowing an intoxicated person to operate her motor vehicle, in violation of N.J.S.A. 39:4-50 (hereinafter referred to as an "allowing" or "permitting" offense). The matter was not placed on the trial calendar until January 1993. On June 15, 1993, defendant and the Bergen County Prosecutor and Palisades Police presented to the municipal court an application to dismiss the pending charge against defendant and institute the lesser charge of allowing an unlicensed driver to operate a motor vehicle, in violation of N.J.S.A. 39:3-39(b), to which defendant agreed to plead guilty. The estate of Commins, the victim of the car crash, opposed the plea bargain.

The municipal court ruled that the prohibition in Guideline 4 under Rule 7:4-8 barring any plea bargaining in drunk-driving cases applied to the defendant's offense of permitting an intoxicated person to drive one's car. Accordingly, it rejected the plea bargain. The Superior Court, Law Division, affirmed. This Court then certified the case and requested that the Attorney General participate in the appeal.

II

Rule 7:4-8 was adopted on June 29, 1990. The rule authorized generally plea bargaining in municipal courts subject to specific standards. Prior to the adoption of that rule, specifically since 1974, all plea bargaining in municipal courts had been expressly prohibited, pursuant to a directive issued by the Supreme Court. Municipal Court Bulletin Letter # 3-74, at 2.

The policy underlying that prohibition was the strong concern over the possibility of abuse in the Disposition of municipal court offenses, a concern attributable to the part-time nature of the municipal courts and the lack of professionalism in those courts. Supreme Court Committee to Implement Plea Agreements in Municipal Courts, Final Report (hereinafter "Final Report "), Exhibit F at 26 (Oct. 31, 1989) (noting that municipal courts were not required to maintain stenographic record or audio recording of proceedings and "most municipal courts did not have a prosecutor and even fewer had a public defender"). See State v. Gallegan, 117 N.J. 345, 347, 567 A.2d 204 (1989) (considering administrative problems arising from "current governmental structure of part-time municipal courts and prosecutors and the ever-increasing importance of municipal court cases"). Inadequate supervision and accountability were also perceived as a serious problem militating against the Disposition of municipal court cases through plea agreements.

Although never fully stated or explained, the reasons for the "no plea bargaining" edict in the municipal courts included the potential for abuses when there was no direct supervision over an extensive number of municipal courts.

[Final Report, Exhibit F at 26.]

Indeed, the municipal court in this case noted that plea bargaining in municipal courts is particularly vulnerable to allegations of "backroom deals." See, e.g., In re Kress, 128 N.J. 520 (1992) (disciplining municipal prosector for remaining silent and allowing municipal Judge to dismiss drunk-driving charge). Those concerns over the abuses arising from unregulated plea bargaining outweighed any potential benefits to the Justice system that might be realized from the more efficient and expeditious Disposition of municipal court charges through plea agreements.

When the Court determined to ban plea bargaining in municipal courts, it was especially emphatic that it should extend the prohibition to intoxicated-driving offenses. The initial Supreme Court directive to the municipal courts contained this instruction:

There should be no plea bargaining in the municipal courts on non-indictable offenses. This means also that the Judge should not accept a plea of guilty to a lesser charge when a defendant is charged ...


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