The three-judge panel concluded with the following in relevant part: One noted commentator, however, has concluded the 1995 amendments to N.J.S.A. 2C:11-5, elevating vehicular homicide to a second-degree offense and permitting separate convictions only for aggravated, not reckless, manslaughter and vehicular homicide, demonstrates the Legislature’s intent that vehicular homicide, “rather than reckless manslaughter is the appropriate section to charge.” Cannel, New Jersey Criminal Code Annotated, cmt. 3 on N.J.S.A. 2C:11-5 (2022). Even if that is so, when the State charges a defendant with aggravated manslaughter by vehicle, as well as vehicular homicide, a court must provide instructions on reckless manslaughter as a lesser-included offense of aggravated manslaughter. Moreover, since the 1995 amendments, we have “continued to recognize the need to differentiate the degree of recklessness required for reckless manslaughter,” and, therefore also aggravated manslaughter, “and death by auto as expressed by State v. Jiminez.” State v. Pigueiras (App. Div. 2001) (citing State v. Lane (App. Div. 1995).
The failure to give the jury instructions on reckless manslaughter was not harmless error for two reasons. The failure to explain the relationship between aggravated manslaughter caused by a vehicle and the offense of vehicular homicide left the jury with the false belief that the two charges were unrelated. The jury was not told that an available option was to acquit defendant of the greater charge and convict him of the lesser charge. The instructions also deprived the jury of an opportunity to understand distinctions in the level of recklessness required to convict defendant of either manslaughter charge versus recklessness that is an element of vehicular homicide. We therefore reverse defendant’s convictions for counts one and two and vacate the sentences imposed.
The State has not urged us to mold the jury’s verdict and affirm defendant’s convictions on count three and four for vehicular homicide if we reversed defendant’s convictions for aggravated manslaughter. See State v. R.P. (2015) (“The authority to mold a verdict rests upon a trial court’s ‘power to enter a judgment of conviction for a lesser included offense where the jury verdict necessarily constitutes a finding that all the elements of the lesser included offense have been established and where no prejudice to the defendant results.'” (quoting State v. Farrad (2000)). We do not foreclose the State from moving before the trial judge to dismiss counts one and two and enter an amended judgment of conviction on two counts of vehicular homicide rather than proceed to a new trial. The evidence clearly supported the jury’s verdict of guilty on counts three and four.
Efficiency and judicial economy are always underlying considerations for courts in making their decisions. The importance of those considerations is amplified since the court closures related to COVID have aggravated the backlog of cases. Under the circumstances, it seems likely that the State will follow the panel’s suggestion and will move to amend the judgement as opposed to conducting a new trial.