On May 12, 2026, the New Jersey Supreme Court decided the Union County case of State v. Thomas DiNapoli. A principal issue under N.J.S.A. 2C:2-3 concerned when the State is required to give notice of its causation theory to the Defense. Another issue under N.J.S.A. 2C:11-5 concerned the admissible of a defense expert’s opinion regarding the cause of the decedent’s death.
Justice Noriega wrote for a unanimous Court in relevant part: Here, defendant argues that it was not the accident that caused Mele’s death, but rather her family’s decision to seek hospice care. Whereas Buckley did not involve any dispute as to whether the defendant’s conduct resulted in a fatal automobile accident, defendant’s experts in this case do dispute whether defendant’s conduct resulted in a fatal automobile accident. Under their theory — if believed by a jury — Mele would have recovered from the injuries she sustained in the car accident and her death was caused by her family’s decision to seek hospice care, not by the automobile accident, which would fall outside the risk of which defendant was aware. Defendant submits that the reports of Drs. Polimeni, Pandina, and Velez show that Mele would have recovered from her injuries had her family not placed her on palliative care.
The State asserts that defendant’s experts’ testimony cannot be relevant because they fail to refute “but for” causation. Indeed, the opinions of defendant’s experts are not relevant to the causal analysis under subsection (a) of N.J.S.A. 2C:2-3 — whether “but for” the crash, Mele would have died. Even under defendant’s theory of the case, “but for” causation is already established: “but for” the collision on June 4, 2019, Mele’s family would not have made the decision to place her on palliative care the next day, which resulted in her death. However, contrary to the State’s position, defendant’s proffered evidence need not rebut “but for” causation to be admissible at trial on the issue of reckless causation under prong one of N.J.S.A. 2C:2-3(c). The defendant is not limited to theories that challenge “but for” causation but may also raise defenses to the additional elements of causation that the State must prove beyond a reasonable doubt under N.J.S.A. 2C:2-3(c).
For causation to be established under prong one, a jury must determine whether Mele’s death was within the risk of which defendant was aware when he drove under the influence of prescription medication. If, as defendant argues, Mele did not die as a result of the accident, but instead as a result of palliative care administered to ease the symptoms of her dementia and Alzheimer’s disease, then a jury should have the opportunity to consider such testimony in reaching its determination. If the jury credits the testimony of Drs. Polimeni, Pandina, and Velez, it may in fact reasonably infer that defendant’s allegedly reckless driving did not give rise to a fatal motor vehicle accident at all, as each expert opines that absent palliative care, Mele would have ultimately survived her injuries from the accident. Accordingly, because there is a legitimate dispute as to the cause of Mele’s death and whether it was within the risk of which defendant was aware, defendant must be given the opportunity to refute the State’s theory of causation as to the manner and character of Mele’s death under prong one of N.J.S.A. 2C:2-3(c).
The Court’s analysis is complicated. It is likely to be lost on jurors who tend to decide cases based on their feelings as opposed to a detached analysis. Interesting appeal issues will arise if a prosecutor were to argue that it is foreseeable that one who drives intoxicated can injure someone to the point that their family makes a reasonable decision to pursue palliative care.
Justice Noriega, a colleague that taught a class with me in Spanish on criminal and immigration issues, continued in relevant part: The MPC, while not binding, also supports allowing defendant to present such expert testimony. The hypotheticals in the MPC comments illustrate that the jury should decide whether a result is so remote or unusual as to fall outside the culpability contemplated by the defendant’s conduct. See MPC § 2.03 cmt. 3. The “ultimate criterion,” as noted in the MPC commentaries, is whether the “actual result is so remote from the actor’s purpose or contemplation that it should have no bearing on the gravity of the offense for which he is convicted.” A jury may very well decide that the actual result — Mele’s death — resulted from an intervening cause — palliative care to ease her Alzheimer’s symptoms — rather than defendant’s reckless driving, such that it cannot justify a conviction under N.J.S.A. 2C:11-5. Thus, we hold that the testimony of defendant’s experts is relevant to the issue of causation under prong one of N.J.S.A. 2C:2-3(c).
We address one final point regarding the State’s theory under prong one. The State contends that “an intervening cause is irrelevant to a prong one” prosecution, presuming that such arguments are relevant only to prong two. The State’s argument that intervening causes can never be a defense to prong one, and that defendant’s theory is irrelevant because it does not defeat “but for” causation, is unsupported by either the statutory text or the structure of the culpability analysis required under prong one. The State’s argument that intervening causes can only apply when they successfully challenge “but for” causation conflates prong one’s full culpability assessment with “but for” causation, effectively insulating the “within the risk of which the defendant was aware” element from any potential defense. A plain reading of N.J.S.A. 2C:2-3(c) does not limit the consideration of intervening causes in such a way.
Accordingly, the defense is permitted to introduce evidence that challenges the causal chain advanced by the State under prong one, including evidence of an intervening cause.
This Court is also asked to consider whether an N.J.R.E. 104 hearing is necessary to determine whether defendant’s proposed experts may testify. We find that it is not.
According to N.J.R.E. 104(a)(1), “the court shall decide any preliminary question about whether evidence is admissible.” N.J.R.E. 104(a)(2) states that the reviewing court “may hear and determine admissibility outside of the presence or hearing of the jury.”
As we noted above, defendant’s proposed testimony is relevant to a prong one causal analysis. All three experts opine that the manner of Mele’s death was not the accident, but rather the administration of narcotics through palliative care. Thus, such testimony is relevant to whether the manner of Mele’s death diverged from the result that defendant risked through his recklessness. As such, a court need not hold an N.J.R.E. 104 hearing to determine whether the experts’ opinions are relevant. Furthermore, any inconsistencies between the reports do not affect their admissibility. It is the jury’s responsibility to evaluate the “credibility of all of the evidence” and resolve factual disputes. State v. Cole (2017). All three experts’ reports, despite their differences, ultimately opine that Mele’s cause of death was hospice treatment, not accident-related injuries, and it is up to the jury to decide whether to credit such testimony. In addition, neither the State nor defendant requests an N.J.R.E. 104 hearing at this stage.
Finally, we address some practical considerations. We acknowledged in Buckley that the State may elect which prong of N.J.S.A. 2C:2-3(c) it will rely upon in its prosecution, and we see no reason to diverge from that acknowledgment. We do, however, now require that the State disclose to defendants which prong it will be relying on at the earliest possible stage where the application of N.J.S.A. 2C:2-3(c) is warranted. With the earliest possible disclosure, defendants may be given the fairest opportunity to tailor their own evidence and theories to the State’s chosen prong.
At the close of evidence, “the trial court is obliged to provide the jury with appropriate instructions depending on which version of causation it chooses to accept.” Thus, under N.J.S.A. 2C:2-3(c), the court ultimately decides whether to instruct the jury on prong one, prong two, or both, selecting instructions that best fit the applicable portion(s) of the statute. Although “causation is a factual determination for the jury to consider the jury may consider only that which the law permits it to consider.”
We therefore find that an N.J.R.E. 104 hearing is unnecessary and thus reverse the judgment of the Appellate Division. The matter is remanded to the trial court to proceed in accordance with this opinion.
