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NOT FOR PUBLICATION WITHOUT THE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

2 A-2256-13T1
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

3 A-2256-13T1
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

4 A-2256-13T1
 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

5 A-2256-13T1
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-

6 A-2256-13T1
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

7 A-2256-13T1
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.

8 A-2256-13T1
 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)

9 A-2256-13T1
(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)

10 A-2256-13T1
(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.

11 A-2256-13T1
 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).

12 A-2256-13T1
 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.

13 A-2256-13T1
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

14 A-2256-13T1
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.

15 A-2256-13T1