The New Jersey Supreme Court continued in relevant part: A majority of the Appellate Division panel reversed the motion court’s dismissal of the indictment, finding that the State had put forth “some evidence establishing each element of the crime to make out a prima facie case.” ___ N.J. Super. ___, ___ (App. Div. 2018) (slip op. at 5) (quoting State v. Saavedra, 222 N.J. 39, 57 (2015)). As to recklessness, the majority stated:
The detective testified that defendant’s passenger told him that defendant enjoyed the feeling of acceleration to the point of feeling his back pushed against the seat, thus establishing defendant’s familiarity with the effect of acceleration on a driver. Defendant’s acceleration onto the highway, his loss of control, and the degree to which he lost control — never braking, stopping only after hitting a tree — sufficiently established that he “was aware that he was operating a vehicle in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death” to the child, Model Jury Charges (Criminal), “Vehicular Homicide (N.J.S.A. 2C:11-5)” (rev. June 14, 2004), and “serious bodily injury” to the child’s mother, Model Jury Charges (Criminal), “Assault by Auto or Vessel (N.J.S.A. 2C:12-1(c))” (approved June 14, 2004); and “that the defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted himself in the situation.” Model Jury Charges (Criminal), “Vehicular Homicide (N.J.S.A. 2C:11-5)”; Model Jury Charges (Criminal), “Assault by Auto or Vessel (N.J.S.A. 2C:12-1(c)).”
The majority thus concluded that there was some evidence before the grand jury establishing the element of recklessness and that defendant’s motion to dismiss the indictment should have been denied. Id. at ___ (slip op. at 7). Here, the indictment is being re-instated with the thinnest of evidence to support one of the required elements of the charge. This evidence is supplied through hearsay, i.e. a statement from the defendant to the passenger (a hearsay exception), from the passenger to the detective, and from the detective to the grand jury.
Judge Fuentes dissented, finding that “viewed in the light most favorable to the State, this tragic occurrence bespeaks of civil negligence, not criminal recklessness.” Id. at ___ (slip op. at 11) (Fuentes, P.J.A.D., dissenting). Defendant appealed as of right pursuant to Rule 2:2-1. The Supreme Court held that the judgment of the Appellate Division is affirmed substantially for the reasons expressed in the majority’s opinion.