On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
J.h. Coleman, Bilder and Stern. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
In a bench trial, defendant was convicted of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1). Sitting as a Municipal Court Judge, the same Law Division Judge found defendant guilty under summons SPN 040759 charging him with driving while under the influence of alcohol (DWI), contrary to N.J.S.A. 39:4-50. For the aggravated assault, defendant was sentenced to a custodial term of eight years with four years of parole ineligibility. He was fined $1,000 and his driving privileges were suspended for two years, to begin when the custodial term has been served. On the DWI, defendant was sentenced to pay a fine of $250 and to attend a program at the Intoxicated Drivers Resource Center. His driving privileges were suspended for a concurrent six month period. Defendant was granted bail pending this appeal.
On this appeal, defendant contends that:
I THE TRIAL COURT ERRED IN ADMITTING PRIOR STATEMENTS OF THE DEFENDANT GIVEN BEFORE THE NEW JERSEY BOARD OF MEDICAL EXAMINERS ON APRIL 23, 1986, AND FEBRUARY 24, 1988, WHEREIN DEFENDANT WAS NOT ADVISED OF HIS RIGHT AGAINST SELF-INCRIMINATION AND DID NOT KNOWINGLY WAIVE SAME.
II THE TRIAL COURT ERRED IN ALLOWING THE STATE TO INTRODUCE EXPERT TESTIMONY IN THE FORM OF AN OPINION AS TO THE DEFENDANT'S BLOOD ALCOHOL LEVEL AT THE TIME OF THE MOTOR VEHICLE ACCIDENT BY EXTRAPOLATING BACK FROM THE BREATHALYZER TEST.
III THE LOWER COURT'S VERDICT OF GUILTY AS TO THE SECOND DEGREE AGGRAVATED ASSAULT WAS ERRONEOUS AS SAME COULD NOT REASONABLY HAVE BEEN REACHED BASED UPON SUFFICIENT CREDIBLE EVIDENCE PRESENT IN THE RECORD.
IV THE TRIAL JUDGE'S SENTENCE TO THE DEFENDANT ON THE CHARGE OF AGGRAVATED ASSAULT WAS MANIFESTLY EXCESSIVE AND IMPROPER IN THAT IT CONSIDERED ELEMENTS OF THE OFFENSE ITSELF AS AGGRAVATING FACTORS, AND FAILED TO RECOGNIZE CERTAIN MITIGATING FACTORS, AND CONSIDERED INFORMATION IN THE PRESENTENCING REPORT CONCERNING DISMISSED AND/OR EXPUNGED CHARGES.
V THE TRIAL COURT ERRED IN CONVICTING THE DEFENDANT OF THE BOTH [sic] AGGRAVATED ASSAULT AND THE LESSOR [sic] INCLUDED OFFENSE OF DRUNK DRIVING WITHOUT MERGING SAME.
The trial Judge sitting without a jury, found the following occurred. On February 16, 1985, the victim, German Soto, and members of his family were travelling southbound on the New Jersey Turnpike. Car trouble developed forcing them to stop at milepost 92.6. Soto, the driver, pulled onto the shoulder of the road, leaving about two feet between his car and the solid white line separating the travelled portion of the roadway from the shoulder or emergency lane. Soto activated the car's emergency lights as he and his brother exited the vehicle from the passenger door.
While Soto and his brother were checking the car's engine compartment at approximately 12:20 a.m., defendant suddenly struck the left rear corner of the Soto car and then sideswiped the entire left side with his red Camaro. At the same time, defendant struck Soto and the force of the impact hurled Soto approximately 60 feet. Soto sustained a skull fracture, cerebral concussion, bilateral sub-dural hematoma, a pneumothorax, multiple rib fractures on the left side, fractures of the fibula, tibia and medial malleolus. He was hospitalized from February 16, 1985 to April 13, 1985. It was stipulated that the injuries satisfied the requirement of serious bodily injuries as required by N.J.S.A. 2C:12-1b(1) and as defined in N.J.S.A. 2C:11-1b.
The Judge found that defendant was highly intoxicated at the time of the accident and that defendant made no attempt to avoid the accident. Defendant left the scene of the accident without even stopping or slowing down from the 55 to 60 miles per hour speed at which he was travelling. Following the accident, defendant travelled approximately three and one-half miles to Exit 11 on the Turnpike, the nearest exit. Very soon after exiting from the Turnpike and upon entering the Garden State Parkway, defendant was observed operating his vehicle in an erratic manner by two State Troopers. He was stopped by State Troopers Morelli and Stalling at approximately 12:30 a.m.
Prior to the stop, defendant veered over two lanes, almost hitting the State Troopers' vehicle. He was also observed arguing with his passenger, Mary Krisza. When asked for his driving credentials, defendant fumbled with his wallet. A strong odor of alcohol emanated from defendant's breath. He failed field sobriety tests administered to him. Fresh damage was observed to the right side of defendant's vehicle, but he denied any recent accident. Defendant was then arrested for DWI. A check with the Holmdel State Police Barracks did not reveal any report of an accident involving defendant's vehicle. The reason was the State ...