SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4574-95T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RUSSELL J. DORKO, JR.
Defendant-Appellant.
___________________________________
Submitted: January 28, 1997 Decided: February 27,
1997
Before Judges Dreier, Newman and Villanueva.
On appeal from the Superior Court of New
Jersey, Law Division, Somerset County.
Susan L. Reisner, Public Defender, attorney
for appellant (Barbara A. Hedeen, Assistant
Public Defender, of counsel and on the brief).
Peter Verniero, Attorney General, attorney
for respondent (Linda K. Danielson, Deputy
Attorney General, of counsel and on the brief).
The opinion of the court was delivered by
DREIER, P.J.A.D.
Defendant appeals from a conviction of second-degree eluding, N.J.S.A. 2C:29-2b. He was sentenced to an extended term of twelve years with a six-year parole disqualifier. Since the charges also included defendant's alleged commission of seven motor vehicle offenses, the judge adjudicated these offenses following the jury's verdict and imposed the appropriate motor vehicle penalties, after merging the reckless driving conviction
into the eluding conviction.
Defendant was observed shortly after 3:00 a.m. in downtown
Somerville making an illegal right turn at a red light. He was
stopped by a police officer, who asked defendant for his license,
registration and insurance certificate, and inquired whether the
car belonged to defendant. Defendant stated that the car
belonged to a friend and then sped away. He was chased by the
officer through the streets of Somerville. The officer testified
that defendant went through five stop signs without stopping,
although he did slow down at each, and also proceeded through a
red light without slowing down at all. Defendant exceeded the
speed limit by some twenty miles an hour on most streets, and
then when he reached East Main Street and headed toward Bound
Brook, he operated his vehicle at a speed of up to sixty-five
miles per hour. He finally turned into the Bound Brook driveway
of the owner of the vehicle and then ran away down a railroad
track. The officer attempted to pursue, but lost defendant.
Defendant was not arrested until months later when his location
in Florida was discovered by the police.
Defendant raises four points on this appeal, all of which
have some merit.
POINT I
THE TRIAL COURT FAILED TO INSTRUCT THE JURY
ON THE DEFINITION OF INJURY EVEN THOUGH THE
RISK OF INJURY WAS AN ESSENTIAL ELEMENT OF
THE OFFENSE. (Not raised below).
POINT II
BECAUSE THE JURY WAS PERMITTED TO INFER THAT
DEFENDANT'S CONDUCT CREATED "A RISK OF DEATH
OR INJURY" IF IT DETERMINED THAT HIS CONDUCT
VIOLATED ANY OF THE MOTOR VEHICLE OFFENSES
SET FORTH IN CHAPTER
4 OF TITLE 39, AND SUCH
RISK IS AN ELEMENT OF THE SECOND-DEGREE CRIME
OF ELUDING, THE TRIAL COURT COMMITTED
REVERSIBLE ERROR WHEN IT FAILED TO DEFINE AND
DELIMIT THE UNDERLYING MOTOR VEHICLE
OFFENSES. (Not Raised Below).
POINT III
DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD
HAVE BEEN GRANTED BECAUSE DEFENDANT'S CONDUCT
DID NOT CREATE A RISK OF DEATH OR INJURY TO
ANY PERSON.
POINT IV
THE TRIAL COURT'S IMPOSITION OF AN EXTENDED
TERM OF TWELVE YEARS IN PRISON WITH SIX YEARS
OF PAROLE INELIGIBILITY IS PLAINLY EXCESSIVE.
I
Defendant first claims that the trial judge failed to
instruct the jury concerning the definition of "injury," when
such a definition was an element of this offense. The statute
reads in material part:
Any person, while operating a motor vehicle
on any street or highway in this State ...
who knowingly flees or attempts to elude any
police or law enforcement officer after
having received any signal from such officer
to bring the vehicle ... to a full stop
commits a crime of the third degree; except
that, a person is guilty of a crime of the
second degree if the flight or attempt to
elude creates a risk of death or injury to
any person. For purposes of this subsection,
there shall be a permissive inference that
the flight or attempt to elude creates a risk
of death or injury to any person if the
person's conduct involves a violation of
chapter 4 of Title 39....
[N.J.S.A. 2C:29-2b (emphasis added).].
The jury was never told what the word "injury" meant in the phrase "death or injury." This created a significant problem in
that the jury could have speculated concerning the extent of an
injury that would satisfy the statute, or even whether property
damage was sufficient to turn the crime from one of the third-degree into one of the second-degree. The statute provides no
definition. We could engraft upon this statute the definition of
"serious bodily injury" set forth in N.J.S.A. 2C:11-1 because the
Legislature expressed the standard in N.J.S.A. 2C:29-2b as "death
or injury to the person" (emphasis added), and therefore may have
intended that only the risk of serious injury could satisfy the
statute. But the commentary in Cannel, New Jersey Criminal Code
Annotated, comment 4 on N.J.S.A. 2C:29-2 (1996-97), leads us to a
different conclusion. The author states:
Where injury or death of another person is
caused while a person is fleeing in a motor
vehicle as proscribed by subsection b of this
section, the injury is treated as a strict
liability aggravated assault under [N.J.S.A.]
2C:12-1b(6) or (7) and the death as a strict
liability manslaughter under [N.J.S.A.]
2C:11-4b(3).
N.J.S.A. 2C:12-1b(6), which incorporates the eluding offense by reference, answers the question by using the words "bodily injury" when describing aggravated assault based upon N.J.S.A. 2C:29-2b as a crime of the second-degree where the action actually causes "bodily injury," as opposed to the mere "risk of ... injury" language in this case. The Legislature therefore most probably intended the same element to be proven for the creation of the risk as it directed for causing the actual injury. The jury, therefore, should have been charged with the "bodily injury" definition of N.J.S.A. 2C:11-1a, i.e., "physical
pain, illness or any impairment of physical condition." The lack
of this instruction was reversible error, since the injury was an
element of the offense and the jury was left without an
explanatory charge.
The jury was properly instructed concerning the permissible inference stated in the statute, namely that a violation of chapter 4 of Title 39 permits an inference that there was a risk of death or injury.See footnote 1 With regard to the alleged motor vehicle violations, the judge stated:
Now, you may infer such a risk if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of this state. It is alleged in this case that the defendant's conduct involved a violation of the following motor vehicle laws: failure to stop at stop signs; speeding; running a red light; making a right turn on red; driving while suspended; reckless driving; and failure to yield to an emergency vehicle. However, you are never required or compelled to draw this inference.
As I've already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference, and you are always free to accept or reject any inference if you wish. As I started to explain to you before, it is, you do not have to decide the motor vehicle-- the guilt or innocence of the
defendant on the motor vehicle summonses.
Those summonses ... will be in the jury room
with you [and] will be handled by an
appropriate court at a later time.
The judge, however, declined to charge the elements of the
governing motor vehicle offenses. We determine that the failure
of the court to charge the elements of the applicable motor
vehicle statutes was additional reversible error.
Five of the seven offenses were defendant's running of a
stop sign. The statute, N.J.S.A. 39:4-144, provides that a
driver must stop at a stop sign "and shall proceed only after
yielding the right of way to all traffic on the intersecting
street which is so close as to constitute an immediate hazard."
The violation can be either the failure to stop, or after
stopping (or not), proceeding into the intersection when there is
oncoming traffic, or both aspects of the offense. While the mere
failure to stop would warrant a motor vehicle conviction and thus
could raise the inference in the eluding statute, if the
instructions had been given concerning the statute, defendant
could properly have argued, or the jury could on its own have
determined, that if defendant merely failed to stop but put no
one in danger (because there was, in fact, no traffic coming from
either direction), then the jury should not make the inference
that defendant created the danger of death or injury. It would
be only if he violated the second portion of the statute that
such an inference should be made by the jury. Since the statute
was not charged, the jury was deprived of the opportunity to make
this distinction.
Also, we should not assume that a jury knows the difference
between reckless driving and careless driving or the elements of
each offense. Reckless driving requires a "willful or wanton
disregard of the rights or safety of others...." N.J.S.A. 39:4-96. Careless driving requires driving "carelessly, or without
due caution and circumspection...." N.J.S.A. 39:4-97. But both
offenses require that the driving be "in a manner so as to
endanger or be likely to endanger, a person or property...."
N.J.S.A. 39:4-96, 39:4-97 (emphasis added). The jury may have
found that defendant's actions constituted recklessness, but
merely by endangering property, since he was driving at 3:00 a.m.
with no people in the area. The eluding offense requires the
"risk of death or injury to any person." N.J.S.A. 2C:29-2b. The
risk of property damage is not included. Thus, without a
definition of reckless driving or even the lesser-included
careless driving, the jury would not have known that there would
be a distinction between personal injury and property damage in
these offenses. Again, the failure to explain the elements of
these motor vehicle offenses was reversible error.
Defendant's third point raises the issue that there was no showing of any person in the area who was endangered. Consequently, defendant claims, his conduct did not create a risk of death or injury to any person. This was a proper argument for defendant, but the jury was not charged that it must find that some person or persons were actually endangered by plaintiff's
conduct. If the statutory inference cannot be made, then the
State would be required to prove affirmatively that there was at
least one person put at risk within the zone of danger created by
defendant's conduct, because the statute clearly requires that
defendant be shown to have "create[d] a risk of death or injury
to any person." N.J.S.A. 2C:29-2b. The statutory inference is
provided to avoid the necessity for such proof, but, as noted,
the court must give the jury proper guidance to invoke the
inference.
We cannot read into the statute hypothetical persons who
might have been in the area. We thus draw a distinction between
a case where a defendant runs stop signs and red lights and
speeds, all through a heavily-traveled area, thus clearly
fulfilling the element of the statute of putting persons in
danger, and a case (as here) where a defendant commits the same
offenses at 3:00 a.m. on deserted streets. While there is no
requirement of producing the actual person by name, permitting a
second-degree conviction without proof of some person endangered
or providing a foundation for the statutory inference would mean
that there would never be a case where there would be a third-degree conviction. If one could always hypothecate that some
person might be in the area, then every violation would be one of
the second-degree. Since this is a criminal statute, it should
be strictly construed. State v. Valentin,
105 N.J. 14, 17
(1987).
Because we have found substantial grounds for reversal, we
need not treat the issue of the extended term with the maximum
parole disqualifier imposed on defendant.
All of the issues upon which we have reversed defendant's
conviction bear upon the difference between the second- and
third-degree offenses. There is no question that the jury
properly found defendant guilty of third-degree eluding. We
therefore remand this matter either for defendant to be
resentenced for third-degree eluding or for a new trial on
second-degree eluding. Reversed and remanded for further
proceedings.
Footnote: 1The inference could be rebutted, and may have been here, by a showing that there was no person within any zone of danger susceptible to such death or injury, but this looks to defendant's third point, discussed infra. Also, one of the offenses noted by the judge, driving while suspended, has no element of danger to a third party; and another, making a right turn on a red light, occurred before the eluding conduct. These offenses should not have been included in the charge.