Aggravated Manslaughter and Lesser-Included Offenses (Part 2)

The Appellate panel continued in relevant part: Secondly, prior to adoption of 1995 amendments to N.J.S.A. 2C:11-5 that elevated vehicular homicide from a third-degree crime to a second-degree crime, see L. 1995, c. 285, our courts uniformly held there was a difference between the recklessness required for conviction of vehicular homicide, and the enhanced recklessness required to support a conviction for the then more serious offense of reckless manslaughter. In Jamerson, which involved a pre-amendment crime, the Court explained:

The recklessness required for manslaughter is not the same as that required for death by auto. For reckless manslaughter, the State must prove beyond a reasonable doubt causative acts of recklessness that are different in kind from the acts involved in reckless driving that support a conviction for death by auto. Those additional acts of recklessness must also contribute to causing the death of a victim.

“A defendant’s predriving conduct, such as drinking, and conduct associated with the driving must be so extraordinary and extreme as to satisfy the reckless manslaughter standard.” Id. at 335 (citing State v. Scher, (App. Div. 1994)). “That standard is ‘quantitatively greater than the recklessness contemplated in a death-by-auto charge and qualitatively less than the recklessness required to support an aggravated manslaughter case.'” (quoting State v. Milligan, (1986) (Clifford, J., dissenting)). See also Jiminez, (noting trial judges were “required to craft a charge explaining the subtle and sophisticated distinctions between the concept of recklessness envisioned by the Legislature in death by auto as distinguished from the recklessness envisioned in the manslaughter statute”).

The model charge for reckless manslaughter continues to recognize this distinction in the level of recklessness required for conviction under N.J.S.A. 2C:11-4(b), and that required for conviction of vehicular homicide under N.J.S.A. 2C:11-5. The charge instructs judges that when “it is alleged that the defendant caused the death of another by operating a motor vehicle,” they should “include the following language distinguishing the two offenses.” Model Jury Charges (Criminal), “Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1)” at 1 n.2 (rev. Mar. 22, 2004).

The concept of “recklessness” is the most difficult mind state concept to define. Model penal code describes it as “proceeding in furtherance of an unjustifiable and substantial risk of resultant harm.”