On appeal from the Superior Court, Law Division, Ocean County.
Matthews, Morgan and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
Defendant was indicted and convicted of violation of N.J.S.A. 2A:113-9, willful or wanton death by automobile. He was sentenced to 364 days in the Ocean County Jail. Service of three months of the term imposed was suspended. Defendant was also placed on probation for three years and fined $1,000. He appeals asserting error in the trial and excessiveness in the sentence.
The evidence at the trial showed the following. On May 23, 1976, at about 3 p.m., John Marshall was operating a Toyota pickup truck headed in an easterly direction on Surf Avenue in Beachwood, Ocean County, New Jersey. He had two passengers in his vehicle, his son John Marshall, Jr. and Robert Macknowski. All three were in the cab of the truck. Marshall was driving about 30 miles an hour in a 40-mile zone. The speed was slow because he contemplated turning. Surf Avenue is a fairly straight, level, two-lane road at that point. Traffic was light.
At the same time defendant was driving west on Surf Avenue in his 1976 Mercury Cougar. Since defendant was east of Marshall their vehicles were converging. Defendant was accompanied by his wife and an infant child. The evidence showed that defendant's vehicle was swerving erratically from one side of the road to the other. A witness, Sandra Hand, who was driving east toward defendant, was so concerned about the situation that she pulled over to the side of the road. She said
she observed defendant going in a fast speed on both sides of the road. Robert Brindle was operating a vehicle in a westerly direction on Surf Avenue. He testified that he observed defendant in his rear-view mirror moving into the east-bound lane as if to pass him. William Houston was standing in a yard and saw defendant start to pass Brindle. Defendant then swerved onto the east-bound shoulder and then moved back into the east-bound lane. At that point defendant's vehicle hit Marshall's truck practically head-on in the east-bound lane. The impact was seen by both Brindle and Houston. They heard no brake noise from defendant nor did they hear defendant blow his horn. Both thought defendant was going at a high rate of speed. Brindle said Marshall had no way to avoid the accident. The two passengers in the Marshall vehicle were killed in the accident.
Dennis Crump, a corporal and traffic safety coordinator for the Beachwood Police Department, arrived at the scene of the accident at 3:25 p.m. His investigation there showed that defendant's car hit Marshall's truck almost directly head-on in the east-bound lane. He found no evidence that either vehicle braked. Corporal Crump and Sergeant John Wagner met defendant at Community Memorial Hospital where defendant was taken after the accident. The police officers advised defendant of the fatalities, of the possible criminal charge against him, and of his Miranda*fn1 rights. Defendant then gave a statement to the officers and, at Wagner's request, consented to a blood test to determine whether there was any alcohol, narcotics or barbiturates in his bloodstream at the time of the accident. Dr. Edwardo Saguil, the emergency room physician, removed the blood sample at about 6:48 p.m. and gave it to Crump. The sample was later analyzed at the State Police laboratory and admitted into evidence. In the statement defendant gave no real explanation as to now the accident happened. He said he
went around a curve on Surf Avenue and he heard glass and a crash. He stated that he had not been drinking but that he took phenobarbital and dilantin for his nerves at 10 a.m. on that day. He said he did not pass any cars.
Dr. Paritosh De, the supervising forensic chemist at a toxicology laboratory of the State Police Division, was called as a witness by the State. He testified, over objection, that a blood sample would have shown the presence of phenobarbital if defendant had taken his medication after breakfast and lunch on that day. This testimony was significant because the State contended at the trial that the accident was caused by defendant losing control of the vehicle due to an akinetic attack caused by defendant's failure to take medication on the day of the accident. This medication was required because defendant had suffered for many years from a condition which causes such attacks. The drugs forestalled defendant from having attacks. Defendant's objection to the testimony asserted surprise since De had not been listed as a witness before trial in discovery. The record shows, however, that the State had advised the defense of the contents of De's testimony in supplementary discovery during the trial on April 18, 1978. Though the trial judge allowed the testimony, he suggested that defendant find his own expert to testify concerning the absorption rate of the drugs. The trial judge made this ruling on Thursday, April 20, 1978. He said defendant could have the weekend for this purpose.
Over objection of defendant the State introduced evidence of two prior automobile accidents within the six-week period before the accident causing the deaths. In both defendant was operating the vehicle. The first accident was on April 8, 1976. Defendant and Walter Barsnica had been traveling to work at the Elizabeth Post Office in the afternoon. The day was sunny, without rain or fog. While they were on the Garden State Parkway Barsnica was napping. When the Soney vehicle swerved Barsnica awakened and saw a vehicle directly ahead of them. Barsnica yelled at defendant but nevertheless Soney
drove the car into the rear of the other vehicle. Barsnica said defendant was in a "daze," but his eyes were open and he had one hand on the steering wheel with his foot on the accelerator. Yet he did not move or respond when Barsnica called his name. After the impact the cars disengaged. Defendant then swerved across lanes of traffic. But he was still pressing on the accelerator. The car crossed the median strip. Barsnica grabbed the steering wheel and shut off the ignition. The vehicle then stopped. Barsnica got out to assess the damage. Defendant then asked what they were doing there. When Barsnica told defendant they had been in an accident defendant denied it. This accident was investigated by Trooper Richard Sebastian of the New Jersey State Police. When Sebastian questioned defendant he was told by him that he did not know how the accident had happened. Barsnica told Sebastian that defendant had either blacked out or fallen asleep.
The second accident was observed by another state trooper, Thomas Herr. Herr testified that on May 5, or May 11, 1976 he was on routine patrol on the Garden State Parkway. At 1:40 a.m. he saw a vehicle move across lanes on the road and then veer to its right. The vehicle went down an embankment and hit a tree. Herr questioned the driver, who was defendant. Defendant told Herr that he could not recall what had taken place.
Defendant's deposition, taken in a civil lawsuit arising from the accident, was part of the State's case. The portions read related to his physical condition and his efforts to get a driver's license. Defendant was represented by different counsel in the criminal and civil proceedings. The affidavit of his civil attorney, George N. Arvanitis, submitted in that case on a motion to seal defendant's deposition, stated that he was not aware of the criminal matter. ...