                                       SYLLABUS

(This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.)

                     State v. Shangzhen Huang (A-62-18) (082140)

(NOTE: The Court did not write a plenary opinion in this case. The Court affirms
the judgment of the Appellate Division substantially for the reasons expressed in
Judge Moynihan’s opinion, published at ___ N.J. Super. ___ (App. Div. 2018).)

Argued September 24, 2019 -- Decided October 23, 2019

PER CURIAM

       In this appeal as of right, the Court considers whether an indictment charging
defendant with second-degree vehicular homicide of a child, N.J.S.A. 2C:11-5, and
fourth-degree assault by auto of the child’s mother, N.J.S.A. 2C:12-1(c)(1), was properly
dismissed. The statutes pertaining to both counts of the indictment require the State to
prove that defendant drove a vehicle recklessly. Defendant argued, and the motion judge
concluded, the evidence presented to the grand jury failed to establish recklessness.

        That evidence indicated that defendant made a left turn onto a four-lane, forty-
mile-an-hour road from a commercial driveway. In the course of the turn, he depressed
the accelerator of his car roughly three-quarters of the way to the car’s floor and never
applied the brakes. Defendant left the roadway, mounted the curb on the side of the road
opposite the driveway from which he set out, and drove with the driver-side wheels on
the sidewalk and passenger-side wheels on the front yard of a structure. He sheared two
street signs before crashing into a concrete planter. A metal support from one of the
signs hit a six-year-old child in the head, causing trauma that led to his death. The child’s
mother, who was walking with him, suffered internal injuries when she was struck by a
piece of sheared metal. Defendant’s car entered an intersection, still driving parallel to
the highway. After crossing the intersecting street, hitting curb-side items along his
route, defendant re-entered the highway and traversed all four lanes without ever
stopping. Defendant ultimately crashed his car into a tree.

        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:


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              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)).”

              [Id. at ___ (slip op. at 5-7).]

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).

        Judge Fuentes dissented, finding that “[v]iewed 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.

HELD: The judgment of the Appellate Division is affirmed substantially for the reasons
expressed in the majority’s opinion.

       AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.




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       SUPREME COURT OF NEW JERSEY
             A-62 September Term 2018
                       082140


                State of New Jersey,

                Plaintiff-Respondent,

                          v.

                 Shangzhen Huang,

                Defendant-Appellant.

         On appeal from the Superior Court,
   Appellate Division, whose opinion is reported at
       ___ N.J. Super. ___ (App. Div. 2018).

       Argued                       Decided
  September 24, 2019            October 23, 2019


Joseph J. Benedict argued the cause for appellant
(Benedict and Altman, attorneys; Joseph J. Benedict and
Philip Nettl, on the brief).

Nancy A. Hulett, Assistant Prosecutor, argued the cause
for respondent (Christopher L.C. Kuberiet, Acting
Middlesex County Prosecutor, attorney; Nancy A. Hulett,
of counsel and on the brief).

Lila B. Leonard, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Gurbir S. Grewal, Attorney General, attorney; Lila B.
Leonard, of counsel and on the brief).




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                                PER CURIAM


      The judgment of the Superior Court, Appellate Division is affirmed

substantially for the reasons expressed in Judge Moynihan’s opinion, reported

at ___ N.J. Super. ___ (App. Div. 2018).



      CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this
opinion.




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