DIVISION'S RULING THIS CASE IS NOT JUST ABOUT DEFENDANT'S SINGULAR ACT OF PLEADING
TO LEAVING THE SCENE OF AN ACCIDENT. IT IS ALSO ABOUT AN OMISSION THAT
IS DEFENDANT'S FAILURE OF COMPLYING WITH THE REQUIREMENTS SET FORTH IN 39-FOUR,
MOST DEFENDANT'S DUTY TO RENDER AID TO EACH VICTIM OF THE ACCIDENT AND THIS
IS WHAT THE MINORITY HUH FOCUSED ON. FOR THE PANEL'S RUMG AND ADOPT THE MAJORITY
RULE. THIS COURT WOULD HAVE TO NECESSARILY FIND THAT DEFENDANT OWED A
DUTY OF AID TO ONLY ONE OF THE BOYS THAT CANNOT BE THE LEGISLATURE'S INTENT WHICH
IS THE MOST IMPORTANT FACTOR. IT'S THE PARAMOUNT GOAL IN GIVING EFFECT TO THE
STATUTE. JUSTICE ALBIN: IF THERE ARE TWO VICTIMS OR EVEN THREE
VICTIMS AND AID IS RENDERED TO THE TWO, BUT NOT TO THE THIRD THAT. WOULD BE A VIOLATION
OF THE STATUTE. WHAT DOES IT NECESSARILY HAVE TO RESULT IN MULTIPLE VIOLATION
TO THE STATUTE? WHY IS A REASONABLE INTERPRETATION YOU HAVE TO COMPLY WITH EVERY
PROVISION OF THE STATUTE, IF YOU DON'T YOU VIOLATED IT BUT ONLY ONCE.
STEVEN A. YOMTOV: WE'RE NOT SAYING THAT IT'S NOT A REASONABLE
INTERPRETATION OF THE STATUTE. WHAT WE'RE SAYING IS WE'VE LOOKED AT THE STANDARDS
OF STATUTORY CONSTRUCTION, THE MOST IMPORTANT THING IS TO GIVE EFFECT TO
THE LEGISLATURE'S INTENT AND YES YOU LOOK AT THE PLAIN LANGUAGE BUT THERE IS SOME
AMBIGUITY IN THE STATUTE. JUST BECAUSE THERE'S AMBIGUITY INTERPRETATION
THERE'S A REASONABLE INTERPRETATION. THE RULE OF LEVEN TEA WOULD APPLY. WE ALSO HAVE
TO LOOK AT THE LANGUAGE OF THE STATUTE, THE POLICY BEHIND IT, CONCEPT OF
REASONABLENESS LIKE I SAID THE LEGISLATIVE HISTORY. NOW, IF
THERE IS AMBIGUITY THIS COURT CAN TURN CONTEMPORANEOUS CONSTRUCTION. THE
CONTEMPORANEOUS CONSTRUCTION COMES FROM THE OTHER STATES WHICH HAVE ANALYZED
THIS PARTICULAR TYPE OF STATUTE OF KNOWINGLY LEAVING THE SCENE OF A CRIME WHERE
THERE'S FATAL TEASE AND/OR SBI. AND IN THOSE CASES THE MAJORITY OF THE STATES
HAVE FOCUSED ON THE USE OF THE WORD ANY. ANY THEY SAID IS IN DID HE TERM INFORMANT.
IT CAN MEAN ONE, IT CAN BE SOME. IT CAN MEAN ALL. AND IN THOSE CASES THERE'S
SEVERAL OF THEM AND I CITE THEM IN MY BRIEF, THEY ACTUALLY SAY, WELL, IT WOULD
BE DIFFERENT, WE WOULD REACH A DIFFERENT RESULT IF THERE WAS A DEFINITE
ARTICLE BEFORE THE WORD PERSON SUCH AS AH OR THE AND, MOST IMPORTANTLY, ANOTHER.
ANOTHER IS WHAT OUR LEGISLATURE HAS USED. SO WHEN THE WORD ANOTHER IS USED,
IT SHOWS THAT THERE IS A DUTY AND THAT'S WHAT THESE MINORITY OF STATES HAVE DONE AND
I'M CITING TO WISCONSIN AND TEXAS WHERE THEY SAID THAT IT'S A POLICY CALL.
THAT THEY SAY THAT A DUTY IS, IT'S VICTIM DRIVEN AND NOT SCENE DRIVEN.
SO IF THIS COURT WERE TO ADOPT THIS SO-CALLED MAJORITY RULE THIS WOULD BE AS FAR
AS I KNOW THE FIRST STATE WHICH WOULD HAVE THE WORD ANOTHER IN IT FOLLOWING
THE MAJORITY RULE. SO LIKE I SAID CONTEMPORANEOUS CONSTRUCTION IS
PART OF THE ANALYSIS. IT DOESN'T JUST STOP AT THE MAIN LANGUAGE AND REASONABLENESS.
JUSTICE ALBIN: MR. YOMTOV TELL ME IT I'M MISTAKEN ABOUT THE
DOCTRINE OF CONTEMPORANEOUS CONSTRUCTIONS. I TOUT THAT CONTEMPORANEOUS
CONSTRUCTION IS THERE'S A PASSAGE OF A PIECE OF LEGISLATION, LET'S SAY MANY YEARS
AGO, THERE IS AN INTERPRETATION OF THE STATUTE BY THE LEGISLATURE AND THEN
OVER A COURSE OF A TIME, THE LEGISLATURE DOESN'T ACT AND THE CASE FINALLY COMES
UP TO OUR COURT. AND IT'S THE FAILURE OF THE LEGISLATURE TO OVERRULE THE LOWER
COURT THAT CONSTITUTES THE CONTEMPORANEOUS CONSTRUCTION. WHAT YOU'RE ARGUING TO
US IS THERE'S PERSUASIVE AUTHORITY IN OTHER STATES. IT'S NOT THE DOCTRINE
OF CONTEMPORANEOUS CONSTRUCTION UNLESS I'M MISTAKEN. IF I AM, CORRECT ME.
STEVEN A. YOMTOV: I'M NOT IN A POSITION TO CORRECT, YOUR HONOR, BUT I AM
WHAT I AM SAYING IS THAT -- AND IF YOU WANT TO GO WITH PERSUASIVE AUTHORITY, YOU
WOULD BE CREATING AN INCONSISTENCY IN THE OVERALL CONSTRUCTION OF THIS TYPE
OF STATUTE THAT HAS BEEN INTERPRETED THROUGHOUT THE UNITED STATES.
LET ME JUST POINT OUT ANOTHER THING. I KNOW I'M VERY MUCH AWARE OF THE RULE
OF LENITY BUT THIS COURT ALSO HAS TO AVOID OBSERVED RESULTS. WHAT IF ONE OF THE
BOYS HAD SURVIVED THE ACCIDENT? WE KNOW THAT IN THIS CASE ONE OF THE BOYS WAS
FOUND BRAIN DEAD AND HE DIED THE NEXT DAY BUT WHAT IF HE HAD SURVIVED? DOES
THAT MEAN THAT THE DEFENDANT GETS A FREE PASS IN WHICH HE WOULD NOT BE CHARGED WITH
KNOWINGLY LEAVING THE SCENE OF AN ACCIDENT WITH A VICTIM WHO SUFFERED FROM SBI?
DOES THAT BOY NOT COUNT DO WE NOT EVEN INCLUDE HIS NAME IN THE INDICTMENT AND WE
JUST PICK AND CHOOSE, THE BOY WHO DIED AND NOT THE BOY WHO GOES ON SUFFERING?
IT LEADS TO -- AND IT ALSO LEADS TO A PARA DOCKS WHERE A DRIVER
WHO HAS REMAINED AND IT GIVENS THE POLICE THE OPPORTUNITY TO DETERMINE THE CAUSE
OF THE ACCIDENT. AND LET'S SAY THAT DRIVER WAS IMPAIRED, EITHER THROUGH
DRUGS OR ALCOHOL AND THERE WERE MULTIPLE FATAL TEASE, THAT PARTICULAR DEFENDANT
WAS GOING IT FACE MULTIPLE CHARGES AND RECEIVE SEPARATE PUNISHMENTS FOR
EACH VICTIM. CHIEF JUSTICE RABNER: MR., I'M SORRY, FINISH.
STEVEN A. YOMTOV: SO DEFENDANT RECEIVES A WINDFALL TWICE.
ONE, HE IMPEDES THE OPPORTUNITY FOR THE STATE TO DETERMINE THE CAUSE OF THE ACCIDENT
AND, TWO, HE ONLY IS, WILL ONLY FACE A SINGLE CHARGE. CHIEF
JUSTICE RABNER: I WANT TO MAKE SURE I UNDERSTOOD YOUR FIRST EXAMPLE OF AN
INTERPRETATION. WERE YOU SUGGESTING THAT THE STATUTE MAKES IT A CRIME OF THE
SECOND DEGREE IF AN ACCIDENT TAKES PLACE, THERE'S AN INJURY AND IT DOES NOT RESULT
IN DEATH? STEVEN A. YOMTOV: THEN IT FALLS UNDER THE ASSAULT
STATUTE. CHIEF JUSTICE RABNER: YOU WERE ARGUING SOME FORM
OF ABSURD RESULT AND I'M JUST LOOKING AT THE FIRST PARAGRAPH OF THE STATUTE WHICH
I DON'T BELIEVE YOUR EXAMPLE FITS WITH. STEVEN A. YOMTOV:
WELL IF THERE'S TWO VICTIMS, ONE DIES AND ONE SURVIVES BUT THAT SUFFERS FROM
SBI, UNDER THE MAJORITY RULE THE ONE THE STATE WOULD HAVE TO CHOOSE OBVIOUSLY THE
GREATER OFFENSE. CHIEF JUSTICE RABNER: MAKE IT SIMPLER
STILL. LET'S ASSUME IT'S ONE VICTIM WHO DOES NOT DIE BUT OTHERWISE SUFFERS INJURY
ARE THEY COVER BY THE FIRST PARAGRAPH OF THE STATUTE BY ITS PLAIN TERMS?
STEVEN A. YOMTOV: NO. IT'S COVERED BY 2C 12-1.1, WHICH IS KNOWINGLY LEAVING THE
SCENE OF AN ACCIDENT IN WHICH ONE VICTIM -- A VICTIM IS SUFFERS FROM SBI.
CHIEF JUSTICE RABNER: WE'RE ATTEMPTING TO INTERPRET 5.1.
IS HE YOU'RE TRYING TO DO SO BY REFERENCING A RESULT THAT WERE NOT BRING IT
WITHIN THE LANGUAGE OF 5.1. STEVEN A. YOMTOV: WELL, I'M BRINGING
IT UP BECAUSE IN THESE MULTI VERY OFTEN AS WE'VE SEEN IN CASES LIKE LEAP
PEE HAVE YOU A VARIETY OF INJURIES. EVERYTHING FROM GOING DO YOU THINK, SBI DOWN
TO, YOU KNOW, JUST WHAT WE WOULD CALL A MINOR INJURY. AND BECAUSE OF THAT
THERE WILL BE SITUATIONS WHERE IF THIS COURT ADOPTS THE MAJORITY RULE THEN WHAT
IS THE STATE SUPPOSED TO DO IN TERMS OF CHARGING? IS THE SECOND, UNDER
THE MAJORITY RULE IF ONCE THE LEASE THE SCENE OF THE ACCIDENT THAT'S THE ONE HE'S
BEEN CHARGED WITH, THE ONE WHERE THE PERSON DIED. WHAT ABOUT THE OTHER VICTIM
WHO SURVIVED THE CRASH AND IS NOW SUFFERING FROM THE EFFECTS OF IT AND
SUFFERS AN SBI? CHIEF JUSTICE RABNER: NOW I UNDERSTAND YOUR
POINT. ARE YOU SUGGESTING YOU COULD GET DOUBLE PUNISHMENT FOR THAT SINGLE ACCIDENT,
MUCH LIKE IN THIS CASE WHERE YOU COULD HAVE A SECOND-DEGREE CHARGED UNDER 5.1
AND A THIRD-DEGREE CHARGED UNDER 1.1 AND A MERGER AT THE TIME OF SENTENCING? OR
ARE YOU SUGGESTING THAT THEY WOULD BOTH PERMIT INDEPENDENT SENTENCES?
STEVEN A. YOMTOV: I THINK YOU WOULD NEED INDEPENDENT SENTENCES ON THAT, THAT
THERE WOULD BE NO MERGER. BECAUSE THE MERGER PROVISION TALKS ABOUT, I'M
SORRY, IT WOULDN'T BE THE MERGER PROVISION, IT WOULD BE THE CONSECUTIVE SENTENCE
PROVISION BECAUSE IT'S BROADER THAN THE MERGER. THE MERGER ONLY APPLIES WHEN YOU
HAVE A SUBSTANTIVE CHARGE OF, SAY, MANSLAUGHTER, VEHICULAR HOMICIDE OR
FOR THE SBI BEING AGGRAVATED ASSAULT. JUSTICE ALBIN: MR. YOMTOV,
IS IT ANTISPASMODICS MERGER PROVISION, EXCUSE ME, WITHIN 2C 11-5.1, CORRECT?
STEVEN A. YOMTOV: YES. JUSTICE ALBIN: THE LEGISLATION
KNEW HOW TO CRAFT AN ANTI MERGER. THEY COULD PUT THE SAME LANGUAGE IN WITH
RESPECT TO, THEY DIDN'T DO IT. WHY SHOULDN'T WE CONSIDER THAT AS INDICATING SOMEHOW
THE LEGISLATIVE WILL. GO AHEAD. STEVEN A. YOMTOV: WE LOOK
AT THE FIRST PROVISION OF THAT AND IT SAYS IF THE ACCIDENT RESULTS IN THE
DEATH OF ANOTHER PERSON AND THEN WE GO TO THE STATUTORY CONSTRUCTION THAT IS, THAT
HAS BEEN, YOU KNOW, THAT WE'VE DEEMED IT BE PERSUASIVE AUTHORITY AND ANOTHER
PERSON MEANS EACH PERSON ESSENTIALLY, EACH INDIVIDUAL WHO HAS BEEN KILLED IN THE
ACCIDENT. SO THAT, AND THEN YOU GO DOWN TO THE MERGER PROVISION, THE MERGER
PROVISION JUST SAYS THAT THE, THAT IF THERE IS, BECAUSE IT ACTUALLY SAYS UNDER
THE PARAGRAPH BEFORE THAT, IF THERE'S EVIDENCE TO PROVE AGGRAVATED
MANSLAUGHTER OR A FORM OF VEHICULAR HOMICIDE THAT THOSE OFFENSES THEN WOULD NOT
MERGE WITH KNOWINGLY LEAVING THE SCENE OF AN ACCIDENT. JUSTICE
ALBIN: SO LOOKING AT ANOTHER PERSON, THIS GOES BACK TO THE ISSUE OF AMBIGUITY.
IS IS ANOTHER PERSON REFERRING TO MOTOR VEHICLE OPERATOR? WOULD IT BE ANY
DIFFERENT IF IT SAID ANY PERSON? YOU'RE SAYING IT MEANS EACH PERSON WITH REFERENCE
TO, IT'S DIFFICULT TO FIGURE THAT OUT, JUST FROM LOOKING AT THE LANGUAGE
OF THE STATUTE, WOULD YOU AGREE? STEVEN A. YOMTOV: I WOULD AGREE
IF WE WERE LOOKING AT THIS IN, YOU KNOW, IN A VACUUM. BUT WE'RE NOT. WE
ACTUALLY HAVE PERSUASIVE AUTHORITY WHICH GETS INTO THE WEEDS OF THIS ISSUE WHICH
SAYS,. JUSTICE FABIANA PIERRE-LOUIS: MR., SO BOTH YOU AND
MS. CAMPBELL HAVE REFERRED BACK TO OF COURSE TITLE 39. TITLE 39 USES ANY PERSON.
SO IN NOT LOOKING AT THIS IN A VACUUM HOW DO YOU SQUARE YOUR ARGUMENT WHERE
YOU'RE ALL IN ON THE WORD ANOTHER WITH THE FACT THAT THE STATUTE THAT BEING
CROSS-REFERENCED IN 5.1 USES THE TERM ANY, ANY PERSON. STEVEN A.
YOMTOV: THE ONLY THING I CAN R I COULD SURPRISE WITH 394-ONE BETWEEN SECTION C IS
THE BEGINNING OF IT DOES REFER TO AS YOUR HONOR POINT OUT TO INJURY OR DEATH
TO ANY PERSON. BUT LATER ON WHEN YOU GET TO THE ACTUAL DUTIES THAT ARE OWED IT
DOES USE MORE SPECIFIC LANGUAGE SUCH AS RENDER A PERSON INJURED IN THE
ACCIDENT INCLUDING CARRYING THAT PERSON TO A HOSPITAL IF IT IS APPARENT THAT THE
TREATMENT IS NECESSARY OR IS REQUESTED BY THE INJURY PERSON. SO
THAT WOULD MEAN THAT THE DUTY WOULD BE OWED TO MULTIPLE VICTIMS OF THE OFFENSE.
JUSTICE PIERRE-LOUIS: SO HERE IN TITLE 39 WE SHOULD DISREGARD
THE USE OF ANY IN SUBSECTION A AND DISREGARD THE USE OF ANY IN SUBSECTION C.
GOING TO JUSTICE ALBIN'S POINT IT'S NOT VERY CLEAR, YOU KNOW, IF YOU'RE NOT
LOOKING AT IN A VACUUM. IT'S NOT VERY CLEAR. AND WE SEE ANY, ANY, ANY THAT, AH,
I MEAN IT'S HARD TO SAY THAT IT'S VERY CLEAR IN USING THE AUTHORITY FROM
OTHER STATES TO SHED LIGHT ON WHAT OUR LEGISLATURE MEANT IN USING THESE
DIFFERENT TERMS THROUGHOUT THESE TWO STATUTES, WOULDN'T YOU AGREE?
STEVEN A. YOMTOV: NO. BECAUSE WHAT I THINK HAPPENED IS THAT THIS STATUTE
ACTUALLY TRIED TO FIND THE ORIGINS OF 4-129 AND THE CASE LAW TALKS ABOUT
AMENDMENTS GOING AS FAR BACK AS THE 1920S. SO IT IS POSSIBLE THAT THAT LANGUAGE
WITH REGARD TO INJURY OR DEATH TO ANY PERSON JUST CARRIED OVER. BUT WHEN IT
CAME TO REALLY DESCRIBING THE DUTIES THAT ARE OWED, IT USED THE MORE SPECIFIC
LANGUAGE OF LIKE I SAID USED IN THE ARTICLES AH, THE AND THAT WHICH I THINK IS AN
ADJECTIVE. BUT MOST IMPORTANT IS THE LANGUAGE IN THE CRIMINAL, IN THE
STATUTE WHICH CRIMINALIZED THE HIT AND RUNS, THIELT 39 WHICH IS 2C 11-5.1. IT USES
THE SPECIFIC WORD ANOTHER PERSON WHO HAS BEEN EITHER, WHO HAS, WHO HAS BEEN
KILLED IN THE ACCIDENT. IN TERMS OF THE PERSUASIVE AUTHORITY, I'LL
CITE YOU TO MY BRIEF, IT'S ON PAGES 26 AND 27, 28, 29, 30. SO THERE'S A
LOT OF, 31, I THINK. SO THERE'S A LOT OF CASE LAW ON THIS SUBJECT AND WHEN YOU'VE
LOOKED AT THESE CASES, THEY GET INTO THE DIFFERENCE BETWEEN THE USE OF THE
WORD ANY, WHICH AMBIGUOUS AND COMPARE IT TO ANOTHER WHICH IS DEFINITE. AND FROM
THAT THE COURT ASCERTAINED THE LEGISLATURE'S INTENT WITH RESPECT TO
WHETHER IT'S SCENE DRIVEN VERSUS ACCIDENT DRIVEN. WITH ONE CAVEAT. THE WISCONSIN
CASE OF POWELL, THAT'S THE WISCONSIN SUPREME COURT CASE, THEY ACTUALLY USED THE
WORD ANY. BUT BASED ON THEIR POLICY OF THEIR STATE AS WELL AS THEIR SS
KIND OF BIFURCATED WHICH IS SIMILAR TO OURS. IT USES THE WORD ANY IN DESCRIBING
THE SCENARIO THAT THE PERSON PRESENTS THEMSELVES. BUT IN THE PENALTY
SECTION IT USES THE ARTICLE AH AND THE AND IN AN INTERMEDIATE APPELLATE DIVISION
CASE IN WISCONSIN THEY SAID THAT THAT WAS A SIGNIFICANT DIFFERENCE AND THAT
IT WAS VICTIM DRIVEN RATHER THAN SCENE DRIVEN. CHIEF JUSTICE RABNER: IS
THERE ANYTHING YOU'D LIKE TO ADD TO YOUR PRESENTATION, MR. YOMTOV?
STEVEN A. YOMTOV: I'M JUST LOOKING OVER MY NOTES HERE. WELL,
I THINK THAT'S PRETTY MUCH IT. I'D JUST, YOU KNOW, I'D JUST URGE THE COURT TO
WHEN IT LOOKS AT THIS THAT IT'S NOT JUST A SINGULAR ACT HERE. IT'S TO RENDER
AID TO EACH VICTIM AND THAT IT WILL CREATE THESE ANOMALIES IF THE MAJORITY RULE
IS ADOPTED. AND IF THERE'S NO FURTHER QUESTIONS I'LL,. CHIEF
JUSTICE RABNER: THANK YOU. MS. ROMEO. SUSAN L. ROMEO:
CHIEF JUSTICE, YOUR HONORS, MAY IT PLEASE THE COURT. I HAVE A REQUESTED A FIVE
MINUTE WITH OPENING BUT WITH YOUR PERMISSION I'LL PROCEED DIRECTLY INTO MY ARGUMENTS.
CHIEF JUSTICE RABNER: GO AHEAD. SUSAN L. ROMEO:
YOUR HONOR, THE STATE HAS ARGUED THAT YOU SHOULD FOCUS ON WHETHER THE LEAVING
STATUTE USES THE WORD AH THE A, ANY, ANOTHER PERSON TO DETERMINE WHETHER OR
NOT A PERSON WHO VIOLATES THE STATUTE CAN BE VOIKD OF MULTIPLE OFFENSES BASED ON
THE NUMBER OF VICTIMS. BUT IT'S VERY CLEAR WERE YOU LOOK AT THE UNIVERSE
OF STATE STATUTES THAT THAT LANGUAGE IS NOT AT ALL DISC POS TESTIFIED OF ANYTHING.
SOME OF THE STATUTES WHERE THE STATE APPELLATE COURTS HAVE FOUND THE RULE
OF MULTIPLICITY WAS VIOLATED. THEY USE THE WORD AH OR ANOTHER. I WOULD POINT THE COURT
TO IN THE INDIANA STATUTE IN STATE, NEIL V STATE WHICH IS CITED IN MY APPELLATE
BRIEF. THAT IS 667. I WOULD POINT THE COURT TO THE NEVADA STATUTE IN FIRE STONE,
NEVADA V FIRE STONE WHICH IS CITED IN THE APPELLATE DIVISION DECISION THAT
IS AT 83P THIRD 279. BOTH OF THOSE STATUTES USE THE WORD THE SINGULAR WORD A.
FOR ALL OF THESE COURTS -- AND SOME OF THE STATUTES THAT ARE CONSIDERED
BY THE COURTS INCLUDE THE RENDERING A PROVISION RIGHT IN THE STATUTE, SOME OF THEM
DON'T CLUE A RENDERING AID PROVISION. SOME OF THEM USE THE WORDS INJURY
OR DEATH RIGHT IN THE STATUTE. SOME HAVE SEPARATE SECTIONS SOME HAVE DIFFERENT
STATUTES. ALL THOSE COURTS DETERMINED AND IF THE OVERWHELMING MAJORITY THAT
A PERSON CAN BE CONVICTED ONLY ON A SING OFFENSE FOR LEAVING THE SCENE OF A SING
ACCIDENT AND THE REASON FOR THAT IS BECAUSE THERE'S NO FAULT COME POINT
IN THESE STATUTES. IT IS NOT AN ELEMENT OF THE OFFENSE THAT THE PERSON HAVE CAUSED
THE ACCIDENT. AND WHAT THAT MEANS IS THAT WHEN MR. BELL HAD BEEN SITTING AT A
STOP LIGHT AT THE BOTTOM OF THAT HILL AND BEEN BROADSIDED BY THIS BICYCLE WITH
THE WAY HE WAS AND IF HE GOT UP AND RAN, HE WOULD STILL BE JUST AS GUILTY. THE
STATE IS URGING YOU TO IMPOSE AN INTERPRETATION ON THE STATUTE THAT WOULD LEAD TO THOSE
KIND OF RESULTS. FOR EXAMPLE, IF A PERSON IS SIT AGO AT STOPLIGHT, A RED LIGHT
AND A DRUNKEN BUS DRIVER WITH 20 PASSENGERS BLOWS THROUGH A STOP SIGN AND HITS
THAT CAR, AND THOSE 20 PASSENGERS DIE AND THE PERSON SITTING AT THE STOPLIGHT
RUNS AWAY ACCORDING TO THE STATE'S INTERPRETATION THE PERSON WHO RAN AWAY
WOULD BE FACING 20 FIVE YEARS TERMS DESPITE HAVING HAD MONTH RESPONSIBILITIES FOR
THE ACCIDENT. THERE IS NO FAULT COMPONENT IN THIS STATUTE. ANY FAULT OF THE
FLEEING DRIVER IS ASSESSED AND PUNISHED ACCORDING TO WHERE IT BELONGS IN THE HOMICIDE
OR THE ASSAULT PROVISION, AGGRAVATED MANSLAUGHTER, RECKLESS STRICT
LIABILITY MANSLAUGHTER OR IN THE CASE OF INJURY AGGRAVATED ASSAULT OR ASSAULT BY
AUTO. YOUR HONORS AS YOU HAVE RECOGNIZED MANY TIMES THAT IN ORDER
TO DETERMINE WHETHER OR NOT A PARTICULAR PROSECUTION OR A TYPE OF PROSECUTION
VIOLATES THE RULE OF MULTIPLICITY WE HAVE TO LOOK TO THE RULES AND STATUTORY
INTERPRETATION AND THE PLAIN LANGUAGE OF THE STATUTE. WE'VE ALREADY
DISCUSSED, I'VE SPOKEN ABOUT THE FACT THAT THERE'S NO FAULT COMPONENT BUT THERE'S
OTHER ASPECTS THAT THIS LANGUAGE IN THIS STATUTE THAT I BELIEVE WE SHALL
LOOK AT. THE STATUTE WAS PASSED AS PART ONE OF A TWO PART ACT,
CHAPTER ONE 11 OF THE LAWS OF 1997. THE TWO SECTIONS HAVE AN IDENTICAL FORMATS.
THE FIRST PARAGRAPH SETS FORTH THE ELEMENT OF THE CRIME. THE PREDICATES
FOR PROSECUTION THAT THE MOTOR VEHICLE OPERATOR KNOWS HE'S INVOLVED IF AN ACCIDENT,
KNOWINGLY LEAVING THE SCENE OF AN ACCIDENT UNDER THE CIRCUMSTANCES THAT
VIOLATE THE PROVISION EVER THE RULE. THAT THE PERSON AT THE TIME WOULD BE GUILTY
OF A THIRD CRIME IF THE ACCIDENT RESULTS IN THE DEATH OF ANOTHER PERSON.
OR IN THE SECOND PART OF THAT SAME ACT IS THE 2C:12 PROVISION OR SERIOUS BODILY INJURY.
BUT OTHERWISE THOSE TWO PARAGRAPHS ARE IDENTICAL. THE SECOND
PARAGRAPH THEY'RE ALSO IDENTICAL THEY PROVIDED THAT A CONVICTION UNDER THIS STATUTE
DOES NOT PRECLUDE A 56 FOR AGGRAVATED MANSLAUGHTER, RECKLESS, IN THE
ORIGINAL STATUTE IT WAS AGGRAVATED MANSLAUGHTER, VEHICULAR HOMICIDE. IN OTHER
WORDS, WHEN A PERSON IS CONVICTED UNDER THIS STATUTE IS ALSO AT FAULT FOR
THE ACCIDENT, IF THEY ARE AT FAULT, HE OR SHE CANNOT CLAIM DOUBLE JEOPARDY PROTECTIONS
PRECLUDING A CONVICTION FOR THE INJURIES HIS ACTIONS CAUSED WHEN THAT PERSON
IS AT FAULT. THE SAME PROVISION IS IN PARAGRAPH TWO OF THE
SECOND PART OF THE ACT. AND THEN THE THIRD PARAGRAPH CONTAINS THE AIZ MERGER PROVISION.
AND I ASKED THE COURT TO LOOK, THIS IS AGAIN IN THE CHAPTER 11, THE ORIGINAL
ENACTMENT THAT HAS THESE TWO STATUTES. IN PARAGRAPH THREE OF THE FIRST
PART IT SAYS IN THE AINZ MERGER PROVISION THAT CONVICTIONS SHALL NOT MERGE
AND A SEPARATE SENTENCE SHALL BE IMPOSED UPON EACH SUCH CONVICTION.
THEN WE GET TO PARAGRAPH FOUR OF BOTH PARTS THE SAME ACT. IN PARAGRAPH FOUR OF THE
2C 11, WHICH IS SECTION ONE OF THE FIRST ACT, WE SEE A PHRASE THAT SAYS WHEN
THE COURT IMPOSES MULTIPLE SENTENCES OF IMPRISONMENT FOR MORE THAN ONE OFFENSE THOSE
SINCE SHALL RUN CONSECUTIVELY. IN THE SECTION TWO OF THE SAME
ACT REGARDING THE 2C 12 PROVISION THERE IS AN ADDITIONAL EXPLANATORY PHRASE
INSERTED IN THERE. AND IT SAYS WHENEVER IN THE CASE OF SUCH MULTIPLE CONVICTIONS
THE COURT IMPOSES MULTIPLE SENTENCES OF IMPRISONMENT FOR MORE THAN ONE
OFFENSE, THOSE SENTENCES SHALL RUN CONSECUTIVELY. SO IT CONTINUES WITH THE
EXACT SAME LANGUAGE. IT IS NOT LOGICAL THAT THE LEGISLATURE FOLLOW THE EXACT
SAME FORMAT IN PARTS ONE AND TWO OF THIS STATUTE AND THEN IT INTENDED A COMPLETELY
DIFFERENT MEANING TO BE AS DESCRIBED TO PARAGRAPH FOUR OF THE SECOND PART
OF THE ACT. IT IS LOGICAL THAT THE LEGISLATURE MAY HAVE INTENDED THIS PROVISION
OF SUCH MULTIPLE CONVICTIONS TO REFER BACK TO THE PREVIOUS LANGUAGE.
THE LANGUAGE OF THE LEGISLATURE RECOGNIZES THAT A PERSON'S FACTUAL AND LEGAL
CULPABILITY FOR THE INJURIES SUFFERED BY THE VICTIM IS ENTIRELY DISTINCT FROM
THEIR CULPABILITY FOR VIOLATING THIS STATUTE BY LEAVING THE SCENE OF A SINGLE ACCIDENT
AND THE PUNISHMENT FOR ACTUALLY CAUSING THE INJURIES OR DEATH IS -- HAS
TO BE BASED ON THE SEVERITY OF THE ARM AND HAS TO BE BASED ON THE NUMBER OF VICTIMS
AND IT HAS TO BE ACCOUNTED FOR IN THE MANSLAUGHTER AND ASSAULT PROVISIONS
OF THE SEPARATE ACT, OPERATE STATUTES. YOUR HONOR, I'LL JUST, I WOULD
JUST RESPOND TO THE CONCEPT THAT IF WE HAVE A SITUATION WHERE ONE PERSON
SURVIVED AND ONE PERSON WAS INJURED, THAT SOMEHOW OR ANOTHER THE, THERE WOULDN'T
BE A SITUATION WHERE ONE PERSON'S INJURIES WERE NOT ACCOUNTED FOR, WHERE
THEY WERE NOT VINDICATED. I WOULD SAY THAT IF WE'RE IN A SITUATION WHERE THERE'S
ONE CAR, ONE PERSON DYES AND ONE PERSON IS INJURED WE WERE AT THE LEVEL OF THE
SECOND-DEGREE CRIME. THAT ONE CREATES THE CIRCUMSTANCE THAT WHERE THE PREDICATE
OF THE SECOND-DEGREE CRIME. AND THAT'S WHERE THIS PARTICULAR ACT WOULD BE
PUNISHED AND IF THE PERSON WAS AT FAULT, THEN THE ACT, THE FAULT PERTAINING TO THE
PERSON WHO WAS INJURED AND THE FAULT PERTAINING TO THE PERSON WHO DIED
WOULD BE ACCOUNTED FOR IN A SEPARATE HOMICIDE OR ASSAULT STATUTES AS APPROPRIATE.
YOUR HONOR, TO RESPOND TO THE STATE'S, SORRY, YOUR HONORS DO YOU
HAVE ANY QUESTIONS ON THIS ISSUE OR WOULD YOU LIKE ME TO DISCUSS THE OTHER ISSUE?
YOUR HONOR, LET ME BE VERY CLEAR AND CONVINCING THAT THERE WAS
NO RESENTENCING HERE. THERE WAS ONLY ONE ISSUE ON APPEAL. WHETHER OR NOT THE TRIAL
COURT ERRED WHEN IT DENIED THE MOTION TO DISMISS. THE CASES RELIED ON BY
THIS STATE ARE ALL IN OPPOSITE BECAUSE THEY ALL INVOLVE APPEALS BY THE DEFENDANT
AFTER A JURY TRIAL AND THAT IS A CRITICAL DISTINCTION. WHEN A DEFENDANT
PLEADS GUILTY HE WAIVES HIS RIGHT TO A JURY TRIAL, A RIGHT IT AVOID SELF-INCRIMINATION,
A RIGHT TO CONFRONT HIS ACCUSERS. THE RIGHT TO PROVE BEYOND A REASONABLE
DOUBT. THAT WAIVER REMAINS IN EFFECT EVEN AFTER HE WINS HIS APPEAL. THE CONCEPT
THAT THAT WAS NO MEETING OF THE MINDS IS DIRECTLY BELIED BY THE BLACK AND
WHITE WORDS OF THE PLEA AGREEMENT. BOTH PARTIES KNEW THE TERMS OF THE AGREEMENT.
IT WAS VERY CLEAR, THE STATE AGREED IT WOULD MAKE CERTAIN SENTENCING
RECOMMENDATIONS, KNOWING THAT THE STATE, THAT THE DEFENDANT INTENDED TO APPEAL THE
DISMISSAL MOTION. THE DEFENDANT PLED GUILTY, THE STATE MADE THE
RECOMMENDATION, THE COURT ACCEPTED THE PLEA, SENTENCED HIM AND THE DEFENDANT
APPEALED. NOW, THE STATE IS SEEKING A POST PLEA POST SENTENCING
POST APPEAL WITHDRAWAL FROM A PLEA AGREEMENT AND NO, SIR NO BASIS IN THE LAW FOR
IT TO DO SO. CHIEF JUSTICE RABNER: WHY? THE LOGIC OF HESS
APPLICABLE HERE WHERE YOU HAD A PLEA AGREEMENT, PART OF IT WAS VOIDED AND THE CASE
WAS THEN SENT BACK. THE PLEA WAS VACATED AND WE START ANEW. WHY ISN'T THAT THE
APPROPRIATE COURSE HERE? SUSAN L. ROMEO: IN A SITUATION WHERE, YOUR
HONOR, I'M NOT PULLING THE CASE RIGHT NOW TO MY MIND, TO BE HONEST. BUT.
JUSTICE PATTERSON: I MISSED WHAT YOU JUST SAID. YOUR HONOR
YOUR HONOR I'M NOT PULLING THE. SUSAN L. ROMEO: THE FACTS.
CHIEF JUSTICE RABNER: LET ME HELP YOU A LITTLE BIT IT LIKE. I BELIEVE HESS
INVOLVED A SITUATION WHERE THE DEGENERATION PARTY WAS BARRED UNDER
THE PLEA AGREEMENT FOR ARGUING FOR A LESSER SENTENCE. AND THE COURT SAID
UNACCEPTABLE. WE GO BACK AND WE DO IT AGAIN. SUSAN L. ROMEO:
YES. AND THAT WAS A VERY UNIQUE SITUATION THERE. AND THE COURT DETERMINED THAT
THAT'S SIMPLY NOT AN ACCEPTABLE WAY TO CONDUCT THE PLEA AGREEMENTS AND
SENTENCING. IN THAT PARTICULAR SITUATION THE,. CHIEF
JUSTICE RABNER: AND IF I COULD, THAT THERE WAS NO MEETING OF THE MINDS. THAT WAS
PART OF THE ANALYSIS AS WELL. THE PARTIES SETTLED ON AN AGREEMENT, PART
OF IT WAS INVALIDATED, MUCH LIKE IN THIS SITUATION HERE IF YOUR FIRST ARGUMENT
PREVAILS. WHY IS THERE STILL A MEETING OF MINDS THAT DOESN'T CALL FOR IN VALUE
RELY DAG OF THE PLEA AND A RETURN TO THE TRIAL COURT TO START AGAIN?
SUSAN L. ROMEO: YOUR HONORS BECAUSE THERE WAS A DETERMINATION THAT THE ACTUAL
PLEA PROCESS IN THAT SITUATION HAD, IS ESSENTIALLY AN ILLEGAL COMPONENT TO
IT. THAT IS NOT THE CASE HERE. AND IF, FOR EXAMPLE, THIS WAS AN ILLEGAL SENTENCE,
YES, THEN IT WOULD BE, IT CAN BE VOIDED AND WE CAN GO BACK AGAIN BECAUSE
AN ILLEGAL SENTENCE CAN BE CORRECTED AT ANY TIME. BUT THAT'S NOT WHAT HAPPENED
HERE. CHIEF JUSTICE RABNER: YOU'RE ARGUING THIS IS AN ILLEGAL
SECOND COUNT BASED ON MULTIPLICITY, THE LAW, THE DOCTRINE RELATING TO MULTIPLICITY,
NO? SUSAN L. ROMEO: YOUR HONOR, I'M ARGUING THAT THE TRIAL
COURT ERRED WHEN HE FAILED TO DISMISS THE SECOND COUNT. IT MAY HAVE BEEN DOCUMENTED
BACK IN THE BEGINNING AND THEY HAD DISMISSED THE SECOND COUNT AND THE
STATE COULD HAVE ASKED FOR WHATEVER SENTENCE IT DESIRED, TEN YEARS ON THE REMAINING
COUNT. AND IF THE DEFENDANT AGREED, THEN OBVIOUSLY WE WOULD NOT BE HERE. I'M
NOT SAYING THAT IT WAS, THAT THERE WAS ANYTHING ILLEGAL AT ALL ABOUT THE PLEA PROCESS.
IT'S WAY SOONER WHEN THE MOTION TO DISMISS WAS FILED. IT'S SIMILAR TO WHEN
THERE'S A SUPPRESSION MOTION FILED. IT DOESN'T MAKE THE PLEA PROCESS ILLEGAL IF
ANY RESPECT. AND IN HESS WHAT THE COURT WAS TAKING ABOUT THERE WAS SOMETHING
ABOUT THAT ENTIRE PROCESS THAT WAS ILLEGAL AND THAT COULD NOT HAPPEN AND COULD
NOT EVER HAPPEN AGAIN IN THE FUTURE. WE'RE NOT TALKING ABOUT ANYTHING WRONG
WITH THIS PLEA PROCESS. THERE'S BEEN NO ATTACK ON THE PLEA AGREEMENT OR ANY OF THE
TERMS OF THE PLEA AGREEMENT. SO WE DON'T HAVE AN ILLEGAL PLEA PROCESS.
JUSTICE ALBIN: DO YOU RECALL WHEN THE JUDGE IMPOSED SENTENCE HOW HE WEIGHED
THE AGGRAVATING AND MITIGATING FACTORS? DO YOU KNOW WHETHER OR NOT HE FOUND
THEM IN, MUND THE AGGRAVATING EXCEEDING OR, GO AHEAD. SUSAN L.
ROMEO: YES. YOUR HONOR, THE COURT FOUND NO MITIGATING FACTORS. IT FOUND AS
AGGRAVATING FACTORS THREE SIX AND NINE THE RISK THAT THE DEFENDANT WOULD COMMIT
ANOTHER OFFENSE AREN'T THE EXTENT OF HIS PRIOR RECORD AND FOUND NO MITIGATING
FACTORS AND THAT THE AGGRAVATING FACTORS PREPONDERATED. JUSTICE
ALBIN: SO THIS GOES TO THE QUESTION OF THE COURT'S INTENT. BECAUSE WE'RE DEALING
WITH A SECOND-DEGREE CRIME. AND THE LOWEST END IS FIVE. THE RANGE IS FIVE
TO TEN. THE JUDGE ULTIMATELY GAVE CONSECUTIVE SENTENCES SO WE HAVE A TEN YEAR
SENTENCE. SO I MEAN IF THE AGGRAVATING FACTORS PREPONDERATE OVER THE
MITIGATING FACTORS YOU TYPICALLY TO NOT GET A SENTENCE AT THE LOWEST END OF THE
RANGE, WOULD YOU AGREE. SUSAN L. ROMEO: WHERE THERE'S A PLEA
THAT WOULD BE SENTENCING AFTER A TRIAL FOR SURE. BUT WHEN THERE'S A PLEA
AGREEMENT ANYTHING IS POSSIBLE AS LONG AS THE PARTIES, THE COURT WAS PERFECTLY AWARE
OF THE TERMS OF THE PLEA AGREEMENT PERFECTLY AWARE THAT THIS COULD BE
REVERSED ON APPEAL. CHIEF JUSTICE RABNER: ANYTHING YOU'D LIKE
TO ADD TO YOUR ARGUMENT, MS. ROMEO? SUSAN L. ROMEO: YOUR HONOR, I WILL
JUST WANT TO POINT OUT A SOMETHING FACTUAL THAT WAS RAISED BY JUDGE FUENTES.
JUDGE FUENTES RECOGNIZED THAT IN THIS CASE THE STATE COULD HAVE CHARGED THE DEFENDANT
WITH WHATEVER OTHER OFFENSE IT BELIEVED WAS WARRANTED BASED ON THE SPEED
OF THE CAR AND I'D LIKE TO JUST POINT OUT THAT THAT EVIDENCE WAS PRESENTED TO THE
GRAND JURY. SO IT IS NOT THE SITUATION HERE WHERE ANY OF THAT WAS CONCEALED
OR THE STATE WAS PREVENTED. CHIEF JUSTICE RABNER: YOU JUST MUTED
YOURSELF BY ACCIDENT. SUSAN L. ROMEO: I'M SORRY. I HAVE A
TOUCH PAD. SO WE'RE NOT IN A SITUATION WHERE THAT EVIDENCE OF THE SPEED
INVOLVED IN THE ACCIDENT THAT WAS PRESENTED TO THE GRAND JURY. SO AS JUDGE
FUENTES POINT OUT THE STATE COULD HAVE TAKEN ANY OTHER STEPS IT WISHED TO,
THAT IT WISHED TO BELIEVE WERE WARRANTED BY THAT EVIDENCE. THANK YOU. MR.
LEVY: THANK YOU CHIEF JUSTICE AND, I'LL KEEP MY COMMENTS BRIEF. THE ISSUE THAT I'D LIKE
TO ADDRESS IS THE LEGISLATURE'S DECISION TO USE THE TERM ANOTHER IN SECTION 5.ONE INSTEAD
OF ANY AND OTHERS HAVE URGED WOULD IT MEAN SOMETHING DIFFERENT. IN A STATUTE THAT
RELATES TO A FATAL ACCIDENT IT WOULD HAVE BEEN IMPRECISE FOR THE LEGISLATURE TO USE THE
TERM ANY WHICH WOULD HAVE BEEN INCLUSIVE OF THE DRIVER SO THE LEGISLATURE'S DECISION TO
USE ANOTHER INSTEAD IS PRECISE THAT WHEN THE STATUTE IS IMPLICATED WHEN THE PERSON WHO
DIED IS ANOTHER PERSON BESIDES THE DEFENDANT. AND THIS CONSISTENT WITH THE LAST PARAGRAPH OF THE MOTOR VEHICLE STATUTE WHICH SAYS THE TERM OF IMPRISONMENT REQUIRED BY THE SECTION
THIS SECTION, SO THE LEGISLATURE'S DECISION TO USE THE TERM ANOTHER DOES NOT NECESSARILY
REFLECT THAT THEY WANTED TO CREATE SINGLE VICTIM BASED OFFENSES BUT SIMPLY A DECISION
TO USE MORE PRECISE LANGUAGE AND MAKE CLEAR THAT IT MUST BE ANOTHER PERSON BESIDES THE
DEFENDANT WHO WAS THE FATALITY. OBVIOUSLY P IT WOULD NOT MAKE MUCH SENSE TO HAVE A STATUTE
TO PENALIZE A PERSON WHO IS DEAD AS THE RESULT OF THE ACCIDENT. IF THERE ARE NO QUESTIONS
OF THE COURT, I WOULD JUST RELY ON THE ARGUMENTS IN MY BRIEF AND REQUEST THAT THE COURT
AFFIRM THE APPELLATE DIVISION'S DECISION. CHIEF JUSTICE RABNER: THANK YOU
MR. LEVY. MISS CAMPBELL, REBUTTAL? MS. CAMPBELL: UNLESS YOUR HONORS HAVE
ANY QUESTIONS I'LL SUBMIT ON THE ARGUMENTS ALREADY MADE. CHIEF JUSTICE
RABNER: THANK YOU. WE'LL TAKE THE MATTER UNDER ADVISEMENT.