On January 3, 2022, a three-judge appellate panel decided the Passaic County case of State v. Jesus Herrera. The principal issue before the Court under N.J.S.A. 2C:11-5.1 was whether the conviction for knowingly leaving the scene of an accident merged with the related conviction for the crime of endangering an injured victim.
Judge Susswein wrote for the Appellate Division in relevant part: In this instance, we need not focus solely on N.J.S.A. 2C:1-8 and the cases construing the overarching framework established by that general merger provision. Both crimes at issue before us include express provisions instructing on merger that operate “notwithstanding the provisions of N.J.S.A. 2C:1-8 or any other provisions of law.” We thus presume that in drafting both crimes, the Legislature intended to indicate the specific circumstances in which merger would be inappropriate.
The merger provision in 2C:11-5.1 specifies the types of convictions that do not merge with a leaving-the-scene conviction: aggravated manslaughter, reckless vehicular homicide, and strict liability vehicular homicide. The plain text thus shows conclusively that the Legislature knew how to specify the types of convictions that are not subject to merger with a conviction for N.J.S.A. 2C:11-5.1, but did so only with respect to these homicide offenses.
The canon of statutory construction, expressio unius est exclusio alterius–expression of one thing suggests the exclusion of another left unmentioned–sheds some light on the interpretative analysis.'” We think it is especially noteworthy that the specified non-merger crimes all require that a defendant commit a criminally culpable act resulting in death. This suggests that the Legislature only intended to preclude merger of a leaving-the-scene conviction with crimes that require proof of a voluntary criminal act besides leaving the scene.
This is another example of a Court applying the precedent that says that we assume that the Legislature had a thorough knowledge of the law with regard to all potentially applicable offenses. The reality is that new laws are routinely passed and our criminal code has become so voluminous that very few people are aware of all of the statutes that can apply in a case like this.