On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Michels, Shebell and Gaynor. The opinion of the court was delivered by Michels, P.J.A.D.
[223 NJSuper Page 414] Tried before a jury, defendant Martin Bogus was found guilty of two counts of aggravated manslaughter by recklessly causing the deaths of Linda Kaminski and Walter Kaminski under circumstances manifesting extreme indifference to human life, crimes of the first degree, in violation of N.J.S.A. 2C:11-4a. The trial court granted defendant's motion for a new trial on the ground that it failed to advise defendant of his right not to testify. The State's motion for reconsideration was denied. However, we granted the State leave to appeal and summarily reversed the order granting defendant a new trial on the ground that his motion was untimely. We remanded the matter to the trial court for resentencing. The trial court thereupon committed defendant to the custody of the Commissioner of the Department of Corrections for 15 years with a seven-and-one-half year period of parole ineligibility for the
aggravated manslaughter of Linda Kaminski (First Count) and to a concurrent term of 15 years for the aggravated manslaughter of Walter Kaminski (Second Count). Finally, defendant was assessed penalties totaling $50, payable to the Violent Crimes Compensation Board.
According to the State's proofs, at approximately 8:18 p.m. on April 1, 1983, defendant was driving his pickup truck on Main Street in Woodbridge, New Jersey, in the right lane of traffic. At that time, Walter Kaminski and his wife Linda were stopped in their Corvette on Woodbridge Center Drive at the traffic light at the intersection of Main Street. The Kaminski vehicle, the first car in the left lane, was preparing to turn left onto Main Street. The first car in the right lane on Woodbridge Center Drive was a Camaro driven by John Fernandez and Vicky Bates Fernandez.
From the passenger seat of the Fernandez vehicle, Mrs. Fernandez noticed the traffic light on Main Street turn amber. Although the left lane of traffic was slowing down, defendant was accelerating and, in Mrs. Fernandez' estimation, was traveling at about 50 or 60 miles per hour as he approached the intersection. The speed limit on Main Street was 40 miles per hour.
When the light turned green for traffic on Woodbridge Center Drive, the Fernandezes proceeded into the intersection. However, upon realizing that the pickup truck traveling on Main Street was not braking, Mrs. Fernandez screamed and Mr. Fernandez stopped the car in the middle of the intersection. Swerving to avert the Fernandez vehicle, defendant crashed into the Kaminski's Corvette as it was turning onto Main Street. The collision pushed the Kaminski vehicle up onto the curb, tore down a traffic light and stanchion and left defendant's truck laying on its side on the ground. From the injuries sustained in the accident, Mrs. Kaminski died within a day; Mr. Kaminski died May 7, 1983.
While speaking with defendant, Patrolman Robert Kelly of the Woodbridge Police Department, the police officer who investigated the accident, noticed a strong odor of alcohol on defendant's breath. Defendant "appeared to be dazed or drunk." Defendant was swaying and staggering from side to side. However, Patrolman Kelly could not determine if defendant's condition was attributable to inebriation or to injury from the accident. Transported to Perth Amboy General Hospital, defendant at first refused to submit to a blood test, but eventually relented. The sample taken from defendant was tested and showed a blood-alcohol content of approximately .23.
Dr. Richard Saferstein, the chief forensic chemist for the New Jersey State Police, testified that for someone of defendant's body weight to have a blood-alcohol reading of .23, he would have had to consume 11 beers or 16 ounces of 80-proof alcohol. Moreover, Dr. Saferstein testified that a .23 reading was indicative of severe intoxication and would result in a very high reaction time, that is, hand-eye and hand-foot coordination would be extremely delayed. Additionally, Dr. Saferstein testified that an individual with a .23 blood-alcohol level would exhibit "a significant deterioration in judgment and self-control" and that such "individual would lose his sense of caution and self-restraint." Dr. Saferstein was of the opinion that one's ability to perceive distance and depth is severely affected by a .23 blood-alcohol level and thus such a level would increase one's chances of being in a vehicular accident by a factor of 60. In Dr. Saferstein's opinion, an individual with a .23 blood-alcohol level is "severely intoxicated and highly impaired." At the conclusion of trial defendant was found guilty on two counts of aggravated manslaughter. This appeal followed.
Defendant seeks (1) a reversal of his convictions and a judgment dismissing the indictment charging him with aggravated manslaughter; or, (2) a reversal of his convictions and a remand for a new trial, or, alternatively, (3) a modification of his sentences. The grounds on which he seeks this relief are set forth in his brief as follows:
POINT I DEFENDANT'S PRETRIAL MOTION TO DISMISS THE SUPERSEDING INDICTMENT CHARGING AGGRAVATED MANSLAUGHTER SHOULD HAVE BEEN GRANTED.
POINT II TRIAL JUDGE HAD AN OBLIGATION TO ADVISE APPELLANT OF HIS RIGHT NOT TO TESTIFY AND OF THE CONSEQUENCES HIS TESTIFYING MAY PRODUCE.
POINT III THE TRIAL JUDGE ERRED IN ADMITTING APPELLANT'S DRIVING RECORD AS EVIDENCE OF HABIT OR CUSTOM.
POINT IV TRIAL JUDGE'S FAILURE TO PROPERLY CHARGE THE JURY REGARDING CHARACTER TESTIMONY AND ITS POTENTIAL FOR CREATING REASONABLE DOUBT CONSTITUTED PLAIN ERROR.
POINT V THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED TO SEVEN YEARS.
A. The Trial Judge Improperly Included an Element of the Offense as an Aggravating Circumstance.
B. The Trial Judge Improperly Included Appellant's Attitude as an Aggravating Circumstance.
C. The Appellate Court has the Power to Review the Trial Court's Sentencing Where, as Here, There is an Abuse of Discretion.
D. A Sentence Modification in Accord with N.J.S.A. 2C:44-1f(2) is Justified Where, as Here, the Mitigating Factors Outweigh the Aggravating Factors.
Defendant was originally indicted by the Middlesex County Grand Jury and charged with two counts of manslaughter, crimes of the second degree, in violation of N.J.S.A. 2C:11-4b(1). Defendant thereafter entered a plea of not guilty to the indictment. The matter, however, was re-presented to the Grand Jury which filed a superseding indictment charging defendant with two counts of aggravated manslaughter, crimes of the first degree, in violation of N.J.S.A. 2C:11-4a. The trial court thereafter denied defendant's motion to dismiss the indictment which defendant now challenges on this appeal.
Relying upon State v. Milligan, 202 N.J. Super. 336 (App.Div.1985), aff'd o.b. 104 N.J. 67 (1986), defendant argues that "death by auto is the exclusive charge when a driver's reckless conduct in operating an automobile causes the death of another." Moreover, he asserts that his "conduct in trying to beat a traffic light turning red by doing 50 mph in a 40 mph zone is certainly not uncommon on New Jersey roads and does not rise
to that level of recklessness which constitutes the equivalent of a high probability of causing death." Thus, defendant contends that there was insufficient evidence to support a sentence for aggravated manslaughter and both his motion to dismiss the superseding indictment and his motion for judgment of acquittal should have been granted.
Codified in N.J.S.A. 2C:11-4a, aggravated manslaughter is defined as follows:
Criminal homicide constitutes aggravated manslaughter when the actor recklessly causes death under circumstances manifesting extreme indifference to human life.
In contrast, the death by auto statute, N.J.S.A. 2C:11-5 provides, in part, that:
Criminal homicide constitutes death by auto when it is caused by driving a vehicle recklessly.
Although both offenses require that a defendant cause death by acting recklessly, N.J.S.A. 2C:11-4a has the additional element of "manifesting extreme indifference to human life." The distinction between these two standards of conduct and, hence, the respective offenses, was explained in State v. Potts, 200 N.J. Super. 488 (Law Div.1985), as follows:
[T]he elements of the death by auto statute and the aggravated manslaughter statute overlap, but are not identical. Aggravated manslaughter has an additional element which the State must prove. The element of culpability is greater than mere recklessness. It is recklessness under circumstances manifesting extreme indifference to human life. See State v. Curtis, 195 N.J. Super. 354 (App.Div.1984) (distinction between aggravated and reckless manslaughter). [ Id. at 495].
See also Milligan, 202 N.J. Super. at 351.
Thus, aggravated manslaughter and death by auto are separate indictable offenses, and, depending upon the circumstances of a given case, a defendant causing death by reckless driving may be prosecuted for either or both offenses. See Potts, 200 N.J. Super. at 495.
Additionally, defendant's reliance upon Milligan is misplaced. At issue in Milligan was whether a homicide caused by reckless driving could be ...