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State of New Jersey v. Kirby Lenihan

August 13, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KIRBY LENIHAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 09-02-00086.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued March 6, 2012

Before Judges Messano, Kennedy and Guadagno.

The opinion of the court was delivered by GUADAGNO, P.J.F.P. (temporarily assigned).

In this case we are asked to determine whether a violation of N.J.S.A. 39:3-76.2f, the "seat belt law," can serve as a predicate offense to support a conviction under N.J.S.A. 2C:40-18(b), which proscribes knowingly violating a law or failing to perform a duty imposed by law intended to protect the public health and safety and recklessly causing serious bodily injury. Defendant appeals her plea-bargained conviction under N.J.S.A. 2C:40-18(b), arguing the law is unconstitutionally vague and the seat belt law is not a law intended to protect the public health and safety as contemplated by this statute. We reject both arguments and affirm.

I.

We discern the following facts from the record. At approximately 12:39 a.m. on Friday, August 10, 2007, the eighteen-year-old defendant was driving her 1999 Hyundai southbound on Route 519 in Hampton Township, with her sixteen-year-old friend, K.G., in the front passenger seat. Defendant lost control of the vehicle and it veered to the right, crossing the shoulder of the road, striking the guardrail head-on. Both defendant and K.G. were seriously injured and transported to a local hospital. K.G. died the following day.

Police officers investigating the scene determined that neither occupant of the car was wearing a seat belt at the time of the accident. They also found a can of aerosol dust remover and a can of carpet deodorizer on the driver's side floor of the vehicle. The can of carpet deodorizer was missing the lid and nozzle.

Suspecting that the occupants in the car might have been inhaling or "huffing" the propellants in these cans to get high, the police requested that a blood sample be taken from defendant. Approximately forty-five minutes after the accident, defendant's blood was drawn at the hospital and laboratory analysis later revealed that her blood sample contained a concentration of 1,1-Difluoroethane, a chemical compound that was also found in the can of dust remover.

On August 13, 2007, defendant was issued summonses charging her with her own, and K.G.'s failure to wear a seatbelt, N.J.S.A. 39:3-76.2f; driving under influence, N.J.S.A. 39:4-50a;*fn1 and reckless driving, N.J.S.A. 39:4-96. On October 17, 2007, defendant was charged in a complaint with causing the death of K.G. by driving recklessly, while under the influence of an inhalant within 1000 feet of school property, N.J.S.A. 2C:11-5(b)(3)(a).

On February 24, 2009, a Sussex County grand jury returned a three-count indictment charging defendant with second-degree violation of a public safety law and recklessly causing K.G.'s death, N.J.S.A. 2C:40-18(a) (count one); second-degree vehicular homicide, N.J.S.A. 2C:11-5a (count two); and first-degree vehicular homicide within 1,000 feet of school property, N.J.S.A. 2C:11-5(b)(3)(a) (count three). Under count one, the predicate public safety law defendant was charged with violating was N.J.S.A. 39:3-76.2f, the "seat belt law."

Defendant thereafter moved to dismiss the indictment. With respect to count one, defendant argued that the seat belt law was not a law intended to protect the public health and safety within the meaning of N.J.S.A. 2C:40-18. On October 19, 2010, the trial court denied defendant's motion as to counts one and two of the indictment, and the State consented to the dismissal of count three.

On February 28, 2011, pursuant to a plea agreement, the State agreed to amend count one, reducing the charge from a second to a third-degree crime. Instead of causing K.G.'s death, the reduced charge alleged defendant recklessly caused her serious bodily injury. N.J.S.A. 2C:40-18 (b). Count two of the indictment and the charge of operating a motor vehicle while under the influence were dismissed, and the other pending charge of reckless driving was merged with the amended charge in count one. The plea agreement reserved defendant's right to appeal the trial court's denial of her motion to dismiss count one of the indictment on the ground that N.J.S.A. 39:3-76.2f cannot serve as a predicate offense under N.J.S.A. 2C:40-18.

The defendant entered a guilty plea to the amended charge, but claimed, as a result of injuries suffered in the crash, she had no specific recollection of the crash or the events leading up to the crash. Her plea allocution was apparently based on her review of the record including police reports.

On May 19, 2011, defendant was sentenced to three years probation and 180 days imprisonment with credit for eight days of jail time served. We granted defendant's application for a stay on May 25, 2011. On appeal, defendant raises the following issues for our consideration:

POINT I

THE TRIAL COURT'S DETERMINATION THAT N.J.S.A. 39:3-76.2f IS A PROPER PREDICATE OFFENSE TO SUPPORT A CONVICTION FOR N.J.S.A. 2C:40-18 IS NOT ENTITLED TO ANY SPECIAL DEFERENCE BY THE APPELLATE DIVISION.

POINT II

COUNT 1 OF THE INDICTMENT CANNOT SUPPORT DEFENDANT'S CONVICTION, AS THE GENERAL REFERENCE IN N.J.S.A. 2C:40-18(b) TO "PUBLIC HEALTH AND SAFETY" DOES NOT APPLY TO A DISCRETE INDIVIDUAL'S FAILURE TO WEAR A SEAT BELT WITHIN A PRIVATE VEHICLE.

In her reply brief, defendant raised this additional argument:

THE STATUTE N.J.S.A. 2C:40-18 IS

UNCONSTITUTIONALLY VAGUE AND THEREFORE VOID AND ...


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