Leaving the Scene of a Fatal Accident (Part 4)

by | Feb 16, 2022 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Judge Susswein continued in relevant part: Furthermore, both crimes are designed essentially to serve the same purpose, that is, to protect injured individuals by creating incentives for persons to remain at the scene of an injury, to report the incident, and to render or summon aid. The leaving-the-scene crime expressly incorporates by reference the reporting and rendering-assistance duties established in N.J.S.A. 39:4-129. The endangering statute, meanwhile, creates an affirmative defense “that the defendant summoned medical treatment for the victim or knew that medical treatment had been summoned by another person, and protected the victim from further injury or harm until emergency assistance personnel arrived.” N.J.S.A. 2C:12-1.2(c).

Accordingly, both statutes use the threat of criminal sanction to deter absconding from the scene of an injury and to encourage persons to take affirmative steps to protect injured individuals. We therefore conclude that both statutes protect the same interests and, in practical effect, offer an alternative basis for punishing the same conduct. Convictions for offenses that merely offer an alternative basis for punishing the same criminal conduct will merge.

Finally, we turn to the fact-sensitive component of the flexible standard for merger. The trial court at sentencing found, “here, the criminal act in both offenses is the act of leaving the scene. The court finds that the defendant’s act of leaving only occurred once. That is, it’s the single act of leaving the scene which forms the basis of both offenses.”

As we have noted, in Miller, the Court reaffirmed that “the Legislature may fractionalize a single criminal episode into separate offenses when the Legislature intends them to be punished separately and when the fractionalization does not offend constitutional principles.” Stated differently, “the Legislature is empowered to split a single, continuous transaction into stages, elevate each stage to a consummated crime, and punish each stage separately.”

In the matter before us, however, there was no continuous transaction to split into stages. The only criminal conduct attributed to defendant was his decision to leave the scene. The crime was initiated and completed in a brief instant. So too, other fact-sensitive questions that are posed in Miller are either inapposite or militate in favor of merger. As to the “time and place of each purported violation,” ibid., both crimes were committed in the same place at exactly the same time. As to the question “whether one act was an integral part of a larger scheme or episode,” ibid., there was no larger “scheme,” only a single momentary and spontaneous “episode.”

In sum, considering the elements of the two crimes, the Legislature’s intent in creating them, and the specific facts supporting both convictions, we conclude that defendant’s convictions for leaving-the-scene and endangering must merge. Accordingly, we need not consider whether consecutive sentences should have been imposed.

The judgment of the Law Division imposing concurrent sentences is vacated and the matter is remanded to correct the judgment of conviction to reflect the merger of the conviction for third-degree endangering into the conviction for second-degree leaving-the-scene. We do not retain jurisdiction.

Despite both statutes punishing the defendant’s single act, there is always cause for concern that a court will find a way to aggregate the punishment at sentencing. This concern is heightened when the decision to do so is based upon “a flexible standard.”