On appeal from the Superior Court, Law Division, Morris County.
Fritz, Gaulkin and Long. The opinion of the court was delivered by Long, J.A.D.
After a jury trial, Robert Pavin was convicted of the crime of fourth degree death by auto, contrary to the provisions of N.J.S.A. 2C:11-5. He was sentenced to 300 days in the Morris County jail and a fine of $3000. This appeal ensued in which Pavin raises the following issues:
POINT I: Under the attorney client privilege, the communication between the defendant and Joseph Bodnar is a protected communication as between an insurer and its insured and any testimony by Joseph Bodnar should not have been admitted into evidence.
POINT II: The communication between the insurance adjuster, Joseph Bodnar, and defendant, Robert Pavin, was involuntary based on the totality of the circumstances and, therefore, Joseph Bodnar's testimony regarding that communication should not have been admitted into evidence.
POINT III: The sentence defendant, Robert Pavin, received was excessive and it should be modified to comply with the guidelines set forth in N.J.S.A. 2C:44-1(a), (b), (e), (f).
We have carefully analyzed this record and have concluded that Pavin's arguments as to the inadmissibility of his communications with the insurance adjuster are without merit.
The facts which undergird this appeal are as follows: On December 18, 1982 at approximately 7:30 p.m. Pavin, using his mother's car, drove his friend William Rhodes to the Firehouse Pub in Wharton. The men played pool and consumed eight or
ten drinks apiece over the course of nearly six hours. At 2:00 in the morning they left the bar. Thereafter, they were involved in an accident on Route 80. According to Willis, who was the driver of the other vehicle involved in the accident, the Pavin car was traveling at 85 to 90 miles per hour just prior to the time that it hit the rear of his vehicle. When the police arrived at the scene they found Pavin and Rhodes in the eastbound lanes of Route 80. Pavin was face down 16 feet from his car, covered with blood and unconscious, but still breathing. Rhodes, who was not exhibiting signs of life, was lying face down 42 feet away from Pavin's car. It was stipulated that Rhodes died as a result of this accident.
The only testimony as to who was driving the Pavin car came from Joseph Bodnar, an insurance adjuster for Pavin's mother's insurance company. According to Bodnar, ten days after the accident he went to the hospital to interview Pavin, having received permission for the interview from both Pavin's mother and his doctor. Bodnar testified that his purpose in interviewing Pavin was to get his version of the accident in order to evaluate the insurance company's exposure to liability.*fn1 Bodnar utilized his regular format in taking the statement from Pavin. He first inquired regarding Pavin's identity and personal background; then he addressed himself to the insured vehicle involved in the accident; next he interrogated Pavin regarding weather and road conditions, and finally, he asked for an account of the accident itself, including the nature of the injuries. He made every attempt to write down the answers as
accurately as possible and to use Pavin's own words. Although Bodnar handwrote a three-page statement which he asked Pavin to sign at the conclusion of the interview, Pavin refused to sign it because his mother had been advised by an attorney that he should not do so. Instead, Bodnar left a copy of the unsigned statement with Pavin.
According to Bodnar's testimony, during his conversation with Pavin in the hospital Pavin revealed that he was quite intoxicated when he left the bar on the night of the accident but did not think he would have problems driving. He remembered getting into his car, starting to drive, and proceeding on the entrance ramp to Route 80 eastbound. He could remember nothing of the accident itself which occurred several miles down the road. Prior to the trial Pavin filed a motion to suppress with respect to this testimony, which motion was denied.
Pavin's mother testified at trial that Pavin did not regain consciousness until 7:30 on the morning following the accident and that he had sustained severe injuries. John Weed, a friend of Pavin, also testified on his behalf, indicating that he had seen Rhodes driving Pavin's car on several occasions. Pavin testified at trial that he recalled nothing after midnight on the night of the accident since he "blacked out" from drinking. He affirmed Weed's testimony that Rhodes had previously driven his mother's car. Pavin claimed that he had lied to the insurance adjuster when he said he was driving the car on the night of the accident because he feared he would be denied insurance coverage. On cross examination the State produced Pavin's sworn affidavit wherein he alleged that he did not remember what he had told the insurance adjuster. Pavin admitted that this statement in the affidavit was not truthful and further ...