Mitigating Factor Five and Strict Liability Offenses (Part 1)

by | Jun 19, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On April 6, 2020, a three-judge appellate panel decided the Middlesex county case of State v. Jake Pascucci. This was a case that was transferred to Middlesex due to the defendant being a police officer in Monmouth County.

The principal issue arose under N.J.S.A. 2C:44-1. It concerned whether the victim’s facilitation of the strict liability crime could be considered at sentencing.

Presiding Judge Fuentes held in relevant part: Here, the appellate record contains an independent eyewitness account of the incident. This person gave a formal statement to Detective Eric Kerecman on September 26, 2017. The witness was stopped at a traffic light located on Broadway waiting to turn right onto Ocean Avenue.

The statement the witness gave to Detective Kerecman provides the following account of how the incident occurred: There was somebody in front of me who wasn’t turning that’s why I was stationary. At that point I saw across the street there was a woman wearing an oversized white t-shirt, it looked like she was in pajamas. She was crossing the street on the North bound side and didn’t have the right of way. She walked through the grassy median and casually took a few steps off into the South bound lanes and started sprinting. The car came full speed and never saw her, from what I could tell, and hit her head on. She flew over the entire intersection and landed about approximately ten feet in the south bound lane on the road but against the medians curb. [(Emphasis added).

The judge made the following comments with respect to the applicability of mitigating factor five: Defendant argues that [the victim] may have . . . some responsibility for being in the roadway that night, at night, perhaps not in the crosswalk, and subjecting herself to oncoming traffic. The State, on the other hand, argues that [the victim] did not force . . . defendant to consume any alcohol.

Strict liability vehicular homicide cases present a lack of fundamental fairness to the accused who were “legally intoxicated”, but still driving in an objectively safe manner. But for the victim’s reckless behavior, there would be no offense. However, “strict liability” makes the victim’s reckless behavior irrelevant. It goes without saying that a reckless pedestrian does not deserve to be injured or killed. At the same time, an objectively safe driver does not deserve to be imprisoned because they had a blood alcohol content that barely reached the legal limit for “intoxication”, when that limit is consistently lowered as a result of politics as opposed to science.