State of New Jersey v. Jean A. Sene

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2256-13T1
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, November 25, 2015
v. APPELLATE DIVISION
JEAN A. SENE,
Defendant-Appellant.
_______________________________
Argued October 7, 2015 - Decided November 25, 2015
Before Judges Fuentes, Koblitz, and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment
No. 12-08-1914.
Laura B. Lasota, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Ms. Lasota, of counsel and on the
brief).
Emily R. Anderson, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Ms. Anderson, of counsel and on the brief).
The opinion of the court was delivered by
GILSON, J.S.C. (temporarily assigned).
Defendant Jean A. Sene was driving a taxi when a pedestrian
stepped into his lane of traffic. The pedestrian fell into the
adjoining lane of traffic and was killed when she was run over
by another vehicle. Defendant did not stop his taxi at the
scene and left without speaking to anyone. A jury convicted
defendant of leaving the scene of a fatal motor vehicle accident
under N.J.S.A. 2C:11-5.1. The question of first impression
presented in this appeal is whether contact between a
defendant's vehicle and a victim is a necessary element of the
second-degree crime of leaving the scene of an accident under
N.J.S.A. 2C:11-5.1.
Defendant contends that contact between his vehicle and the
victim is a necessary element of this crime. We disagree and
hold that such contact is not a necessary element of this crime.
We, therefore, affirm defendant's conviction. Defendant also
challenges his sentence to five years in prison and the
imposition of $5000 in restitution without a hearing. Because
the sentencing judge did not correctly identify the aggravating
and mitigating factors, we remand for resentencing consistent
with the Supreme Court's holding in State v. Fuentes, 217 N.J.
57 (2014). We also vacate the restitution award and remand for
a hearing in accordance with N.J.S.A. 2C:44-2(b), (c).
I.
Defendant's conviction arose out of the death of a
pedestrian who was struck and killed by a jitney bus while
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crossing Pacific Avenue, a four-lane street, in Atlantic City.
Defendant was driving a taxi in the lane to the left of the
jitney, traveling in the same direction, slightly ahead of the
jitney bus. The victim was crossing Pacific Avenue as both
defendant's taxi and the jitney bus were approaching. She was
either struck by the taxi and fell backwards, or stepped back
without being struck and fell, and was run over by the jitney.
After the jitney bus ran over the victim, the jitney driver
immediately stopped and called the police. The jitney driver
then waited at the scene and gave a statement to the police.
Although he saw the victim was hit, defendant did not stay at
the accident scene, nor did he call the police. Instead,
defendant testified that he drove to the next street, made a
right-hand turn and parked his cab. Defendant then walked back
to the accident scene. At the scene, he noted police officers
and other people, but he did not speak to anyone and after a few
minutes he left.
The jitney had a dashboard camera that video recorded the
accident. The police also obtained several other videos of the
accident scene from surrounding businesses. By reviewing the
videos, the police were able to identify defendant's taxi.
At trial, the State called a number of witnesses, including
a police accident investigator, who testified as an expert in
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accident reconstruction that defendant's taxi hit the victim
causing her to fall back. The State's expert also opined that
the jitney did not have time to avoid the accident. Defendant's
accident reconstruction expert opined that no evidence
established that the taxi made contact with the victim, while
acknowledging that he could not definitively state whether or
not defendant's taxi hit the victim.
On appeal, defendant contends:
POINT I
THE TRIAL COURT ERRED WHEN IT DENIED
DEFENDANT'S REQUEST TO TAILOR THE
OFFENSE CHARGE FOR N.J.S.A. 2C:11-5.1,
"THE HIT AND RUN STATUTE," TO THE FACTS
OF THE CASE AND DEFINE THE PHRASE
"INVOLVED IN AN ACCIDENT" AS REQUIRING
CONTACT BETWEEN DEFENDANT'S VEHICLE AND
THE VICTIM. THE ERROR WAS EXACERBATED
WHEN THE TRIAL COURT INSTRUCTED THE
JURY TO COMPLETELY DISREGARD EVIDENCE
OF CONTACT.
POINT II
BY FAILING TO PROVIDE A DEFINITION FOR
THE PHRASE "INVOLVED IN AN ACCIDENT",
N.J.S.A. 2C:11-5.1 IS
UNCONSTITUTIONALLY VAGUE BECAUSE IT
FAILS TO PROVIDE ADEQUATE NOTICE OF
PROHIBITED CONDUCT AND LIKEWISE FAILS
TO PROVIDE THE STATE WITH GUIDELINES
FOR ENFORCEMENT, LEADING TO ARBITRARY
RESULTS. (Not Raised Below)
POINT III
THE TRIAL COURT IMPROPERLY ASSESSED THE
AGGRAVATING AND MITIGATING FACTORS AT
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SENTENCING, AND THUS IMPROPERLY RULED
OUT THE POSSIBILITY OF A DOWNGRADED
SENTENCE UNDER N.J.S.A. 2C:44-1f(2).
POINT IV
THE RESTITUTION ORDER SHOULD BE VACATED
BECAUSE DEFENDANT'S ACTIONS WERE NOT
THE CAUSE OF THE ACTUAL LOSS TO THE
VICTIM AND HER FAMILY. ALTERNATIVELY,
THE RESTITUTION ORDER SHOULD BE VACATED
AND THE MATTER REMANDED FOR A HEARING
REGARDING DEFENDANT'S ABILITY TO PAY.
(Not Raised Below)
II.
Defendant argues in Point I that, in the context of these
facts, the phrase "involved in an accident" in N.J.S.A. 2C:11-
5.1 required that the vehicle driven by defendant make contact
with the victim. Thus, defendant contends that the trial judge
erred in not providing such an instruction to the jury and
compounded that error by instructing the jury that contact was
not an element of the crime. We reject these arguments.
We consider the jury charges as a whole, applying "deep-
seated and meticulous" care, State v. Lykes, 192 N.J. 519, 537
(2007), because proper jury charges "are essential for a fair
trial," State v. Maloney, 216 N.J. 91, 104 (2013) (quoting State
v. Green, 86 N.J. 281, 287 (1981)). Here, the trial judge gave
the model jury charge for N.J.S.A. 2C:11-5.1, Model Jury Charge
(Criminal), "Leaving the Scene of an Accident Resulting in
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Death" (January 1998), and also instructed the jury that contact
was not a necessary element.
"The primary goal of statutory interpretation is to
determine as best [as possible] the intent of the Legislature,
and to give effect to that intent." In re Registrant N.B., 222
N.J. 87, 98 (2015) (alteration in original) (quoting State v.
Lenihan, 219 N.J. 251, 262 (2014)). "[T]he best indicator of
that intent is the plain language chosen by the Legislature."
Ibid. (alteration in original) (quoting State v. Gandhi, 201
N.J. 161, 176 (2010)). Unless inconsistent with that intent,
the statute's words will "be given their generally accepted
meaning, according to the approved usage of the language."
N.J.S.A. 1:1-1.
Defendant was convicted of violating N.J.S.A. 2C:11-5.1,
which states, in relevant part:
A motor vehicle operator who knows he [or
she] is involved in an accident and
knowingly leaves the scene of that accident
under circumstances that violate the
provisions of [N.J.S.A. 39:4-129] shall be
guilty of a crime of the second degree if
the accident results in the death of another
person.
Nothing in the plain meaning of the phrase "involved in an
accident" requires the element of contact between the vehicle
driven by defendant and the victim. The word "involved" is
defined as "having a part in something." Involved, Merriam-
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Webster.com, http://www.merriam-webster.com/dictionary/involved
(last visited Nov. 20, 2015). The word "accident" is defined to
include "a sudden event (such as a crash) that is not planned or
intended and that causes damage or injury." Accident, Merriam-
Webster.com, http://www.merriam-webster.com/dictionary/accident
(last visited Nov. 20, 2015).
Coupling those words in the phrase "involved in an
accident" does not suggest that defendant's vehicle needed to
come into contact with the victim. Instead, the plain reading
of those words means that a driver whose actions contribute to
an accident, and who knows of the causal relationship, must not
leave the scene of the accident.
A few examples illustrate that the Legislature intended to
include situations where a defendant's vehicle does not make
contact with the victim. If car A struck car B and caused car B
to strike and kill a pedestrian, the driver of car A would have
been involved in an accident, even though car A never came into
contact with the pedestrian. Similarly, if a car struck a
telephone pole and the pole fell over and killed a pedestrian,
the driver of the car would have been involved in an accident,
even though the car never made direct contact with the victim.
In enacting N.J.S.A. 2C:11-5.1, the Legislature
criminalized knowingly leaving the scene of a motor vehicle
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accident. See N.J.S.A. 2C:11-5.1 (referencing N.J.S.A. 39:4-
129). The motor vehicle offense of leaving the scene of an
accident, in turn, distinguishes between colliding with another
vehicle or property, and being involved in an accident with
another vehicle or property. N.J.S.A. 39:4-129(d). Thus,
N.J.S.A. 39:4-129(d) states:
The driver of any vehicle which knowingly
collides with or is knowingly involved in an
accident with any vehicle or other property
which is unattended resulting in any damage
to such vehicle or other property shall
immediately stop and shall then and there
locate and notify the operator or owner . . . .
Accordingly, the Legislature knew the distinction between
colliding (that is, contact) as contrasted to "involved in an
accident." In short, the plain reading of N.J.S.A. 2C:11-5.1
establishes that the Legislature was aware of the distinction
between contact and being involved in an accident, and used the
broader phrase "involved in an accident" in criminalizing
leaving the scene of an accident that results in a fatality.
Consequently, the trial judge did not err in denying
defendant's proposed jury instruction requiring the jury to find
that contact occurred as a necessary element under N.J.S.A.
2C:11-5.1. Moreover, it was not an error for the trial judge to
instruct the jury that contact is not an element of violating
N.J.S.A. 2C:11-5.1. We find no error with the instructions.
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III.
Defendant argues in Point II that if contact is not
required as an element of the statute, then N.J.S.A. 2C:11-5.1
is unconstitutionally vague as applied in this case. We also
reject this argument.
We review questions of law, including the interpretation of
statutes and whether a statute is unconstitutionally vague,
under a de novo standard of review. Lenihan, supra, 219 N.J. at
263, 267. A "statute is not impermissibly vague so long as a
person of ordinary intelligence may reasonably determine what
conduct is prohibited so that he or she may act in conformity
with the law." State v. Borjas, 436 N.J. Super. 375, 395-96
(App. Div.) (quoting State v. Saunders, 302 N.J. Super. 509,
520-21 (App. Div.), certif. denied, 151 N.J. 470 (1997)),
certif. denied, 220 N.J. 208 (2014). The requirement that all
criminal statutes be clear and unambiguous "is essentially a
procedural due process concept grounded in notions of fair
play." State v. Saavedra, 222 N.J. 39, 68 (2015) (quoting State
v. Lee, 96 N.J. 156, 165 (1984)). A statute is vague "as
applied" only "if the law does not, with sufficient clarity,
prohibit the conduct against which it is sought to be enforced."
Heyert v. Taddese, 431 N.J. Super. 388, 423 (App. Div. 2013)
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(citing State v. Afanador, 134 N.J. 162, 175 (1993) and State v.
Cameron, 100 N.J. 586, 594 (1985)).
No New Jersey case has addressed the question of whether
N.J.S.A. 2C:11-5.1 is unconstitutionally vague as applied.
Other jurisdictions have ruled that statutes with similar
language are constitutional and are not void for vagueness.
See, e.g., People v. Bammes, 71 Cal. Rptr. 415, 422 (Ct. App.
1968) (holding that "involved in" was not vague when the
defendant turned into victims' path, who then swerved and were
struck by another vehicle); State v. Carpenter, 334 N.W.2d 137,
140 (Iowa 1983) (holding that "[t]he meaning of the terms
'accident' and 'involved' is sufficiently certain" and not vague
when applied to a scenario where a victim was injured jumping
out of the defendant's moving truck); State v. Watters, 208 P.3d
408, 412-15 (Mont. 2009) (holding that the phrase "involved in
an accident" is neither vague on its face, nor as applied to the
defendant who crashed his motorcycle and left his injured
passenger at the scene); Clancy v. State, 313 P.3d 226, 231
(Nev. 2013) (holding that "involved" and "accident" gave fair
notice of prohibited conduct when contact between the
defendant's minivan and victims' motorcycle was in dispute);
Sheldon v. State, 100 S.W.3d 497, 500-01 (Tex. App. 2003)
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(holding that the statute "gives a person of ordinary
intelligence reasonable notice" and is not vague on its face).
For example, a California appellate court has found a
similarly worded statute to be constitutional and not void for
vagueness. Bammes, supra, 71 Cal. Rptr. at 422. In that case,
the court said the California statute required "[t]he driver of
any vehicle involved in an accident resulting in . . . death . . .
[to] immediately stop the vehicle." Id. at 418 (quoting Cal.
Veh. Code § 20001). The California appellate court rejected a
challenge on vagueness grounds, reasoning that:
"[I]nvolved in an accident" means connected
with that accident in a natural or logical
manner [that] is wholly reasonable and
delineates anything but an
unconstitutionally vague standard. It is
inconceivable that a driver as a reasonable
[person], whose actions contributed to an
immediately subsequent accident and who knew
of that causal relationship, would conclude
otherwise than that he [or she] was involved
in that accident.
[Id. at 422.]
We agree with the reasoning of the California appellate
court. Here, defendant by his own admission saw the pedestrian,
he abruptly stopped his taxi, the victim fell backwards and was
then run over by the jitney bus. Under those facts, a
reasonable person would know that he had been involved in an
accident.
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We also reject defendant's argument that the trial judge
erred in not defining the phrase "involved in an accident" for
the jury. Again, the language of that phrase is sufficiently
clear without further explanation that a jury could understand
the plain meaning of the language. We note, however, that the
language used by the California appellate court in Bammes could
also be used to explain the phrase "involved in an accident" in
N.J.S.A. 2C:11-5.1. Such language could be modified and then
added to the model jury charge and that language might help
jurors. We reiterate, however, that even on its own, the phrase
"involved in an accident" has a clear meaning that ordinary
jurors can understand.
IV.
Defendant argues in Point III that the trial judge erred in
assessing the aggravating and mitigating factors and, thus, the
trial judge should have sentenced defendant lower in the range
of a third-degree crime. Defendant was convicted of a second-
degree crime which carries a presumption of incarceration.
N.J.S.A. 2C:44-1(d). There is some confusion in the record
concerning which aggravating and mitigating factors the trial
judge found. See generally N.J.S.A. 2C:44-1(a), (b) (defining
the various aggravating and mitigating factors).
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The trial judge stated that he found mitigating factors
two, nine, and ten. N.J.S.A. 2C:44-1(b)(2), (9), (10).
Although he did not expressly find mitigating factor seven,
N.J.S.A. 2C:44-1(b)(7), the judge noted that defendant did not
have a criminal history. The judge also inconsistently found
aggravating factors six, "[t]he extent of the defendant's prior
criminal record and the seriousness of the offenses of which he
has been convicted," and nine, deterrence. N.J.S.A. 2C:44-
1(a)(6), (9). Finally, despite the presumption of imprisonment
applicable to a second-degree offense, N.J.S.A. 2C:44-1(d), the
judge also found mitigating factor ten, N.J.S.A. 2C:44-1(b)(10),
concluding defendant would be "particularly likely to respond to
probationary treatment," although defendant did not receive a
probationary sentence. Thus, mitigating factor ten is not
applicable. Consideration of a probationary term in a context
of sentencing a defendant for a first- or second-degree offense
that carries a presumption of imprisonment under N.J.S.A. 2C:44-
1(d) is only appropriate when the record supports a finding of a
"serious injustice." State v. Evers, 175 N.J. 355, 388 (2003).
In weighing the aggravating and mitigating factors, the
court found that the aggravating factors outweighed the
mitigating factors and, thus, the judge did not find any legal
grounds to sentence defendant within the third-degree range.
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N.J.S.A. 2C:44-1(f)(2). Instead, the judge sentenced defendant
to five years in prison, which is the lowest legally permissible
term of imprisonment for a second-degree crime, as well as the
highest end of the third-degree range. See N.J.S.A. 2C:43-
6(a)(2), (3).
We remand for resentencing to give the sentencing judge an
opportunity to clarify the sentencing factors found and re-weigh
those factors. See generally Fuentes, supra, 217 N.J. at 71-74.
We are not suggesting that this process will necessarily result
in sentencing defendant to a lesser sentence within the third-
degree range. As the trial judge correctly noted, to sentence a
defendant to a lower range, the court must find "that the
mitigating factors substantially outweigh the aggravating
factors" and that the interest of justice would support such a
sentence. N.J.S.A. 2C:44-1(f)(2); see also State v. Megargel,
143 N.J. 484, 497-500 (1996) (explaining that the standard for
downgrading a sentence is a high standard and there must be
"some compelling reason" supporting such a downgrade).
V.
In his final Point, defendant seeks a restitution hearing.
The trial judge ordered defendant to pay restitution without
such a hearing, and the State concedes that a remand is required
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so that a restitution hearing can take place. See N.J.S.A.
2C:44-2(b), (c).
The conviction is affirmed, we vacate the sentence, and
remand for resentencing and a restitution hearing. We do not
retain jurisdiction.
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