On February 7, 2025, a three-judge appellate panel decided the Somerset County case of State v. Cindy Keogh. The principal issue under N.J.S.A. 2C:12-1.2 whether a “Endangering an Injured Victim” charge could be based on a delay in calling 9-1-1. The case involved a shooting that the defendant found out about after it occurred at her home. She was not present for the shooting, but did delay in calling 9-1-1 after finding out about it.
Judge Rose wrote for the panel in relevant part: Against that legislative history, we reject the State’s argument that the Senate’s decision to remove the proposed “participants” language from the final version of the statute, reflects the Legislature’s intention that defendants need not have aided or abetted Ryan in causing bodily injury to Coulanges under the first statutory element. The class of individuals contemplated in the proposed definition of “participant” had no bearing on the aider or abettor’s conduct as the “participant” definition included individuals who merely were present at the crime scene, aware of criminal conduct, and had a nexus to the criminal actors. Conversely, in all versions of the bills and the final statute, an aider or abettor is required to do more. An aider or abettor must “solicit, aid, encourage, or attempt or agree to aid another, who causes bodily injury to any person, and leaves the scene of the injury knowing or reasonably believing that the injured person is physically helpless.”
We conclude the indictment charging defendants with endangering an injured person was “manifestly deficient or palpably defective,” because no evidence was presented to the grand jury that defendants aided Ryan by both causing Coulanges’s bodily injury and leaving the scene of the injury. The State’s theory that defendants “responded to the scene of Coulanges’s injury, and did not call 9-1-1 immediately after arriving on the scene of the injury and learning of the shooting” does not satisfy the statutory elements. Based on our de novo review of the record in view of the elements of N.J.S.A. 2C:12-1.2, we discern no error in the court’s dismissal of the endangering charge.
In so holding, we reject the State’s expansive interpretation of after-the-injury third-party culpability. As our colleague Judge Sabatino aptly noted in his concurring opinion in Sanders, “although the statute is aimed at laudable humanitarian objectives, it must be construed and applied sensibly within the broad context of general principles of legal responsibility and criminal justice.” We discern no basis to broaden the scope of third-party liability under N.J.S.A. 2C:12-1.2.
This is a relatively rare fact pattern that seems to justify the defense making a motion to dismiss the indictment. It is often bad strategy for a defense attorney to make such a motion. One reason for this is that it exposes the defense strategy and encourages the prosecution to find ways to fill in the holes in their case before trial. Here, however, the arguments for dismissal were grounded in the law as opposed to the facts that the prosecution could manipulate. It is usually best to argue such issues to a judge and to preserve such issues for appeal. The alternative is to trust that a petit jury would correctly apply the law and not convict based on a disdain for a defendant who delayed in calling 9-1-1 after a fatal shooting.
