On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels, O'Brien and Havey. The opinion of the court was delivered by O'Brien, J.A.D.
The opinion of the court was delivered by
Defendant appeals from his conviction of third degree theft by receiving stolen property (N.J.S.A. 2C:20-7) and two counts of second degree reckless manslaughter (N.J.S.A. 2C:11-4b(1)). He was sentenced on the theft charge to a term of five years. On the manslaughter convictions he was sentenced to concurrent terms of ten years, but to be served consecutively to the sentence imposed for the theft. An appropriate penalty payable to the Violent Crimes Compensation Board was also imposed. We affirm the theft conviction, but reverse the manslaughter convictions and remand for a new trial.
Carmen Sanchez was the owner of a brown 1975 Pontiac to which she had lost the keys and, unable to afford a locksmith, had broken the ignition so only a pin was required to start the engine. When Sanchez was incarcerated she gave exclusive permission to use the car to her boyfriend, Anibal Figueroa. Figueroa never gave anyone else permission to use the car.
Late on December 2, 1989, Figueroa was arrested on Bloomfield Avenue in Newark, in the presence of defendant and 17-year-old Alexander Nozario. The brown Pontiac was parked around the corner from the place where Figueroa was arrested. Figueroa was not released from custody for five days.
At approximately 2:00 a.m. on December 4, 1989, two Belleville police officers began following the brown 1975 Pontiac, which the jury found defendant was driving with Nozario as his passenger. They chased it for approximately one mile. During the chase, the brown Pontiac proceeded east on Verona Avenue followed by the police car, with lights flashing and sirens wailing. Michael Rosario was driving a white Pontiac north on Mt. Prospect Avenue approaching its intersection with Verona Avenue; Rosario proceeded into the intersection with the green light in his favor. At the same time, the speeding brown Pontiac driven by defendant at between 45 and 80 miles an hour, with the police car chasing it, proceeded through the red light and collided into the driver's side of Rosario's car. Both vehicles flew into the air on impact and spun counterclockwise. The brown Pontiac hit a tree and both occupants were ejected from it. The white Pontiac crashed into a building and a utility pole. There were no skid marks at the scene. Rosario and Nozario were both killed in the collision. Defendant suffered substantial injuries. Toxicology reports on Nozario indicated Valium, codeine and morphine in his bloodstream. There were no such reports regarding defendant.
On August 16, 1990, defendant was indicted for third degree theft by receiving a stolen automobile and two counts of aggravated manslaughter pursuant to N.J.S.A. 2C:11-4a. Although defendant did not testify, his defense was that he was not the driver of the brown 1975 Pontiac. An autopsy had been performed on the body of Nozario by Dr. Fhito Pierre-Louis, who later testified that Nozario's injuries were mostly to the right side of his body, indicating he had been the right-seat passenger. The injuries were not compatible with his having been either the driver or left rear-seat passenger. Dr. Michael
Dunne, who had performed the autopsy on Rosario, was qualified as an expert in medicine, forensic pathology, and the analysis of the nature and cause of injuries. From his analysis of the nature and cause of the injuries suffered by Nozario and defendant, he found it "most probable" that at the time of the collision defendant was driving the automobile and Nozario was the right-front passenger. The State also produced the testimony of John T. Barry, a Nutley Township police officer, who qualified as an expert in accident reconstruction and traffic safety. He expressed the view that both occupants of the brown Pontiac were still in the vehicle when it hit the tree and they were both thrown violently through the space where the popped windshield had been. Finally, because of a suggestion in cross-examination as to the absence of fingerprints, the State produced a detective who testified as an expert that it is almost impossible to obtain fingerprints from a steering wheel.
The defense called two witnesses. A female friend of defendant testified that at approximately 1:00 a.m. on the morning of December 4, defendant had stopped at her house and tried to convince her to go out with him. When she refused and defendant left, she saw him get into the passenger side of the car, which she recognized as belonging to Carmen Sanchez or Anibal Figueroa. A consulting engineer, who qualified as an expert in biomechanical engineering and accident reconstruction, testified that in his opinion the injuries suffered by defendant and Nozario were not consistent with their having still been in the car when it struck the tree. In his opinion, defendant was the passenger and flew out the passenger side when the brown car crashed into the Rosario automobile, suffering his head injuries when he hit the ground. He concluded that Nozario, as the driver, also flew out the passenger-side door.
At the end of the State's case, defendant moved for a judgment of acquittal on the theft charge, contending that no evidence had been produced to show defendant knew the car was stolen. The Judge denied defendant's motion. The Judge
charged the jury on aggravated manslaughter and, as lesser included offenses, reckless manslaughter (N.J.S.A. 2C:11-4b(1)) and death by auto (N.J.S.A. 2C:11-5).
Defendant was acquitted of the two counts of aggravated manslaughter, but found guilty of two counts of reckless manslaughter as well as theft by receiving the stolen automobile. He was sentenced as noted above and now appeals asserting the following legal arguments:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING DUNNE, FIORENZA AND BARRY TO TESTIFY AS EXPERT WITNESSES DESPITE THE PROSECUTOR'S BREACH OF THE PRETRIAL DISCOVERY ORDER AND BREACH OF HIS DUTY TO DISCLOSE PURSUANT TO R. 3:13-3(a)(11).
POINT II: (Not Raised Below)
THE CONVICTIONS OBTAINED BELOW SHOULD BE VACATED AND THE DEFENDANT SHOULD BE GRANTED A NEW TRIAL BECAUSE THE TRIAL COURT'S INSTRUCTION TO THE JURY ON THE CHARGES OF RECKLESS MANSLAUGHTER AND DEATH BY AUTO WERE UNDULY CONFUSING AND DID NOT ACCURATELY REFLECT THE STATE OF THE LAW WITH RESPECT TO THESE STATUTES.
POINT III: (Not Raised Below)
THE RECKLESS MANSLAUGHTER AND DEATH BY AUTO STATUTES OF THIS STATE VIOLATED THE DEFENDANT'S RIGHTS OF DUE PROCESS AND EQUAL PROTECTION UNDER THE FEDERAL AND STATE CONSTITUTIONS BECAUSE THEY WERE IMPERMISSIBLY VAGUE AND INCAPABLE OF BEING APPLIED IN A CONSISTENT OR LOGICAL MANNER WITH RESPECT TO SIMILARLY SITUATED PERSONS.
THE TRIAL COURT ERRED BY DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL WITH RESPECT TO THE CHARGE OF RECEIVING STOLEN PROPERTY.
THE MAXIMUM SENTENCE IMPOSED UPON THE DEFENDANT ON ALL THREE CONVICTIONS WAS MANIFESTLY EXCESSIVE BECAUSE THE COURT IMPROPERLY COUNTED AN AGGRAVATING FACTOR AND FAILED TO ACCOUNT FOR A MITIGATING FACTOR IN ITS REASONS IN SUPPORT OF THE DEFENDANT'S SENTENCE.
THE DEFENDANT IS ENTITLED TO A RE-SENTENCING BECAUSE THE COURT BELOW FAILED TO PROPERLY WEIGH AND EXPLICITLY DETAIL ITS REASONS FOR THE SENTENCE IMPOSED.
We first address defendant's Point IV concerning the denial of his motion for acquittal on the charge of receiving stolen property. In considering such a motion, the court is required to determine whether
viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond ...