On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Antell, Havey and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).
Defendant Bruce Travers was convicted of three counts of death by auto in violation of N.J.S.A. 2C:11-5 and of operating a vehicle while intoxicated in violation of N.J.S.A. 39:4-50. For the death by auto convictions, he was sentenced to three concurrent terms of five years' probation conditioned on 364 days of incarceration, with a 150-day period of parole ineligibility and, in addition, a penalty of $1750 payable to the Violent Crimes Compensation Board. For the conviction of driving while intoxicated, defendant was sentenced to a concurrent two-day period of detainment to be served pursuant to the Intoxicated Driver Resource Program, a fine of $250 and a surcharge of $100. His driver's license was suspended for a period to end concurrently with a 28-month period of suspension imposed by the Department of Motor Vehicles.
Mr. Travers has appealed his convictions, claiming that his constitutional protection against double jeopardy precluded his being tried concurrently for death by auto and for driving while intoxicated, that testimony admitted to prove the charge of driving while intoxicated prejudiced his trial for death by auto, that he was denied effective assistance of counsel, and that his sentence was excessive. We have considered all of these grounds. For the following reasons, we are of the opinion that they are without merit and we affirm.
At approximately 9:30 p.m. on January 29, 1985, a 1976 Chevette which defendant Travers was driving in the southbound lane of a two-lane roadway in West Milford, New Jersey, failed to round a curve of the road, crossed the center line into the northbound lane, and struck a tree located twelve feet beyond the outer edge of the roadway. The force of the impact buckled the frame of the automobile and forced the engine into the passenger compartment. Accident reconstruction experts testified that the defendant must have been driving at least fifty miles per hour on a section of the roadway posted for a speed of thirty miles per hour. The eighteen-year old defendant
was injured and his three passengers, two of whom were also eighteen years old and one who was twenty, were killed.
When the accident occurred, the defendant and his passengers were returning from New York, where the minimum drinking age at that time was nineteen and where the defendant and his passengers had been "partying" and "having a few drinks with friends." A truck driver who stopped to help shortly after the accident smelled alcohol as he approached the car. The police officers who arrived at the scene a few minutes later testified that the whole car had a very strong odor of beer, that a piece of a Budweiser six-pack had fallen out of the car when the floor was cut to extricate the passengers, and that they detected the odor of alcohol coming from the defendant's breath. An analysis of the defendant's blood taken approximately an hour after the accident showed a blood alcohol content of .15 percent.
Defendant's trial on the indictment for death by auto began before the court and jury on May 29, 1986. On June 2, 1986, after two State's witnesses had already testified, the prosecutor moved to try the complaint of operating a vehicle while intoxicated concurrently with the trial of the indictment. The prosecutor represented that the defendant had received all discovery relevant to the charge of driving while intoxicated and was aware of the State's intention to bring that charge to trial, but that, through inadvertence, he had omitted to make a formal statement at the commencement of trial.
The court inquired carefully of defendant's attorney whether Mr. Travers would be prejudiced because two State's witnesses had already testified. The defense attorney replied that he would not be. The court offered to recall the witnesses who had already testified to allow defendant further cross-examination. However, the defendant declined the offer and objected to the State's motion only on the ground that the trial of the complaint for driving while intoxicated was barred by the doctrine of double jeopardy because jeopardy had already attached.
The trial judge granted the State's motion and ruled that he, and not the jury, would decide the charge of driving while intoxicated and that any testimony pertinent only to that charge would be presented outside the presence of the jury.
If at the very commencement of the trial the State had formally announced its intention of trying the complaint of driving while intoxicated concurrently with the indictment for death by auto, defendant would have had no basis for any objection to that procedure. In fact, State v. DeLuca, 108 N.J. 98 (1987), cert. den. U.S. , 108 S. ...