Risking Widespread Injury

On March 10, 2020, a three-judge appellate panel decided the Middlesex County case of State v. Kyle P. Brown. The principal issue under N.J.S.A 2C:17-2 was whether setting a car on fire that exploded is a basis for “Causing or Risking Widespread Injury or Damage.”

Judge Sumners held in relevant part: In order for defendant to be convicted for second-degree risking widespread injury or damage under N.J.S.A. 2C:17-2(a)(1), there must be proof that he “purposely or knowingly, unlawfully causes an explosion, flood, avalanche, collapse of a building, release or abandonment of poison gas, radioactive material, or any other harmful or destructive substance . . . .” (Emphasis added). Defendant seeks to interpret the term “explosion” based on the perceived meaning of the remaining terms in N.J.S.A. 2C:17-29(a)(1) through the principle of noscitur a sociis, meaning “words may be indicated and controlled by those with which they are associated.” Herzog v. Twp. of Fairfield (App. Div. 2002) (quoting Germann v. Matriss (1970). We reject this reasoning.

All the words in the statute connote serious harm, i.e., “flood, avalanche, collapse,” among others. Regardless of noscitur a sociis, which is “not an absolute” rule and should only be viewed as “a helpful guide,” the term “explosion” is appropriately grouped with other potentially significant hazards. The fact that one could imagine a less lethal “explosion” does not render its inclusion ambiguous when less lethal versions of the remaining terms could also be imagined. Contrary to defendant’s assertion, the terms “flood” and “avalanche” are not “tantamount to terrorism in which the safety of large groups of citizens are threatened.”

Considering the video of the fireball and McClarren’s testimony confirming her observation of the fireball simultaneous with the sound of a cannon-like explosion, the judge refused to order an acquittal because there was sufficient proof beyond a reasonable doubt that “there was some sort of explosion” under N.J.S.A. 2C:17-2(a)(1). The judge determined it was for the jury to decide whether defendant purposely or knowingly set the fire for the purpose of causing the car to explode. We concur with this reasoning. The common meaning of the term “explosion” does not require that it “cause or risk injury to a large group of people” as defendant asserts. Expert testimony is not required when the term is unambiguous. There is no evidence of legislative intent to exclude the factual scenario in this case – a car with gasoline in its tank set on fire and bursting into a fireball – from qualifying as an explosion. Hence, we are convinced that denial of defendant’s motion for a judgment of acquittal was proper because the evidence supported the jury’s guilty verdict on count four that defendant violated N.J.S.A. 2C:17-29(a)(1).

This is not a common charge in New Jersey. The Attorney General’s Office likely took over the case on appeal due to the relative lack of caselaw and the related opportunity to create controlling law.