On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Michels, Muir, Jr., and Keefe. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant John H. Devlin appeals from his conviction for death by auto and from the sentences imposed on that conviction as well as on his convictions for assault by auto and operating a motor vehicle while under the influence of intoxicating liquor (DWI).
The facts giving rise to this appeal are essentially uncontroverted. On the afternoon of April 24, 1987, defendant, a 24-year veteran of the Linden City Fire Department, attended an awards dinner for policemen and firemen at the Spring Lake Golf Club in Monmouth County. At this function, defendant consumed numerous drinks consisting of scotch and water. Following the dinner, defendant left his automobile at the golf club and accompanied a friend to the latter's store. Defendant's
friend entered the store to conduct some business while defendant remained in his friend's automobile and slept.
Approximately two hours later, between 7 p.m. and 7:30 p.m., defendant and his friend left the store and drove to a bar. Defendant continued to drink scotch and water. Defendant and his friend met the nephew of defendant's friend at that bar and subsequently drove to another bar. Defendant declined to drink any more alcohol at the second bar, reasoning that he had "had enough." Thereafter, at some time before 10 p.m., defendant was dropped off by his friend at the golf club where his automobile was parked.
Defendant drove north on Route 34 toward Linden. At approximately 10 p.m., defendant failed to navigate his car through a veer in the roadway as Route 34 changes from two lanes to four lanes, which are divided by a median strip of grass. Instead of bearing right as the northbound road expands from one lane into two, defendant continued straight, driving onto the median strip and striking a traffic sign on the grass. Defendant drove on the grass for several hundred feet before reentering the roadway in the east lane of the two southbound lanes of Route 34. Defendant traveled in the wrong direction in this lane for several hundred feet, apparently under the impression that he was still in the northbound lane of a two-lane highway, before his automobile collided head-on with a smaller automobile being driven by Bobbi Burdge. Ms. Burdge, who was unconscious following the accident, and her passenger, her two-year old daughter, Stephanie, were transported to Jersey Shore Medical Center. Ms. Burdge died on May 1, 1987, as a result of massive head injuries, without having regained consciousness. Stephanie was treated for a concussion and a broken jaw, and released two weeks after the accident.
According to Patrolman John Weighell of the Colts Neck Township Police Department, defendant suffered only a cut lip from the accident. At the scene of the accident, Patrolman
Weighell noted the odor of alcohol on defendant's breath and that defendant's movements were uncoordinated and concluded that defendant might have been drinking. Defendant was arrested for DWI before being taken to Riverview Hospital, where a blood test was administered to defendant that indicated a Blood Alcohol Content (BAC) of 0.27%. Defendant was released from the hospital after midnight on April 25, 1987.
The day after the accident, defendant gave a voluntary statement to the police, in which he claimed that he had lost control of his automobile because a tire had gone flat while he was driving. This assertion was refuted at trial by State Trooper Paul Krupa, an expert in reconstructing traffic accidents, who testified that he discovered no evidence that defendant's car had malfunctioned prior to the collision. Additionally, in defendant's statement to the police he failed to mention that he had slept for two hours in a friend's car earlier that evening, or that he had visited two bars between the end of dinner and the time of the accident. Defendant explained at trial that he had not realized the extent of the injuries to the occupants of the other automobile in the accident and that he chose not to inform the police of the full truth because he failed to see at the time why such facts were important.
Three days after the accident, defendant entered an alcohol rehabilitation center, where he remained for approximately five weeks. Subsequent to his discharge, he attended 12 weeks of outpatient rehabilitation and was attending Alcoholics Anonymous sessions at the time of the trial.
Defendant was indicted by the Monmouth County Grand Jury and charged with (1) aggravated manslaughter, a crime of the first degree, in violation of N.J.S.A. 2C:11-4 (First Count); (2) death by auto, a crime of the third degree, in violation of N.J.S.A. 2C:11-5 (Second Count), and (3) assault by auto, a crime of the fourth degree, in violation of N.J.S.A. 2C:12-1c (Third Count). In addition, defendant was charged with several traffic violations, including DWI, in violation of N.J.S.A. 39:4-50.
Defendant was tried to a jury and found guilty on the Third Count, assault by auto. While the jury was deliberating, the trial court, based on the proofs before the jury, found defendant guilty of DWI. The jury was unable to reach a verdict, however, regarding the First and Second Counts and, thus, the trial court declared a mistrial as to those two counts. Defendant's motion to dismiss the First and Second Counts of the indictment on double jeopardy grounds was denied by the trial court, which granted, however, the State's motion to vacate defendant's conviction for DWI. Following a retrial, the jury acquitted defendant of aggravated manslaughter on the First Count and convicted him of death by auto on the Second Count. The trial court on the proofs before the jury again convicted defendant of DWI.
The trial court thereupon sentenced defendant to the custody of the Commissioner of the Department of Corrections for a term of five years, with a two-and-one-half-year period of parole ineligibility, for the conviction for death by auto on the Second Count and to a concurrent term of 18 months, with a nine-month period of parole ineligibility, for the conviction for assault by auto on the Third Count, and assessed against defendant a penalty of $5,000, payable to the Violent Crimes Compensation Board (VCCB). In addition, the trial court determined that defendant's DWI conviction was his second offense, and sentenced defendant for that conviction to a 90-day term in the Monmouth County Correctional Institution, to run consecutively to the terms imposed on the indictable offenses; suspended his driver's license for two years, which suspension was to run consecutively to any additional suspension imposed by the Division of Motor Vehicles; fined him $1,000, and surcharged him $100. The trial court denied defendant's request for a stay of the sentences pending appeal. We denied a stay of the sentence imposed for the DWI conviction, but stayed pending appeal the sentences imposed for the convictions for death by auto and assault by auto.
Defendant seeks a reversal of his conviction for death by auto, contending that his conviction for DWI in the first trial should have prevented the subsequent retrial on the charges of death by auto and aggravated manslaughter.*fn1 Defendant concedes, however, that his acquittal on the charge of ...