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State v. Kotter

Decided: February 28, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
GAIL KOTTER, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

Stern, Keefe and Newman. The opinion of the court was delivered by Stern, J.A.D.

Stern

Defendant was indicted for aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one); aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); assault by auto, N.J.S.A. 2C:12-1c (count three); aggravated assault, N.J.S.A. 2C:12-1b(2) (count four) and assault by auto, N.J.S.A. 2C:12-1c (count five). Count one dealt with the death of Meryl Wasserman; counts two and three related to Ralph Parillo, and counts four and five concerned Lynncaryl Shafer. Tried to a jury, defendant was convicted on all but the fourth count. As to the third count the jury found defendant caused "serious bodily injury," a fourth degree crime, but on count five it found only "bodily injury," a disorderly persons offense. She was also convicted of drunk driving at the time.

Defendant was sentenced to thirty years with a ten year period of parole ineligibility on count one. Count three was merged into count two and concurrent sentences were imposed on counts two and five.*fn1 Defendant appeals and argues:

POINT I THE TRIAL COURT COMMITTED ERROR BY GRANTING THE STATE'S MOTION TO EXCLUDE THE TESTIMONY OF DR. ROTGERS ON THE ISSUE OF DIMINISHED CAPACITY.

POINT II DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE BIAS AND PREJUDICE OF THE TRIAL JUDGE.

POINT III DEFENDANT WAS DENIED A FAIR TRIAL DUE TO UNCORRECTED COMMENTS ON FLIGHT IN THE STATE'S SUMMATION.

POINT IV THE CHARGE TO THE JURY WAS IN ERROR REGARDING THE CONCEPT OF RECKLESSNESS APPLICABLE TO AGGRAVATED MANSLAUGHTER AND THE LESSER INCLUDED OFFENSES (Plain Error).

POINT V THE CHARGE TO THE JURY WAS IN ERROR REGARDING THE CONCEPT OF RECKLESSNESS APPLICABLE TO AGGRAVATED MANSLAUGHTER AND THE ELEMENT OF KNOWLEDGE OF SPECIFIC EXTENUATING CIRCUMSTANCES (Plain Error).

POINT VI THE CHARGE TO THE JURY WAS IN ERROR REGARDING THE CONCEPT OF RECKLESSNESS APPLICABLE TO AGGRAVATED ASSAULT AND THE ELEMENT OF KNOWLEDGE OF SPECIFIC EXTENUATING CIRCUMSTANCES (Plain Error).

POINT VII DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE AND WAS AN ABUSE OF THE TRIAL COURT'S DISCRETION.

Our careful review of the record satisfies us that the issues raised are without merit and do not warrant Discussion except as hereinafter stated, R. 2:11-3(e)(2). We reach our Conclusion in light of the overwhelming, and essentially uncontested, proofs that defendant caused the accident and injuries for which she was indicted.

On August 1, 1989, at approximately 4:10 p.m., defendant struck and killed Meryl Wasserman, then fifteen years old, who was standing on the side of the road with her bicycle picking flowers. After striking Ms. Wasserman, the pickup truck defendant was driving returned to the road, and crossed the roadway into oncoming traffic, where it struck the vehicles in which the other victims were riding. The vehicle travelled about 500 feet before coming to a stop. Defendant was found to have had a blood alcohol reading of .17 shortly after the accident, together with .63 micrograms of prozac and .16 micrograms of xanax per milliliter of blood.

The principal issue on this appeal flows from the trial Judge's ruling that defendant could not offer the testimony of a psychologist, Dr. Frederick Rotgers, in support of a diminished capacity defense. The Judge concluded that the essence of testimony, proffered through Dr. Rotgers at an Evid.R. 8 hearing, was relevant only to the defense of intoxication which could only excuse crimes requiring purposeful or knowing conduct. See N.J.S.A. 2C:2-8b. As defendant was charged only with crimes requiring reckless culpability,*fn2 the Judge determined that defendant

could not introduce the evidence in support of a diminished capacity "defense" under N.J.S.A. 2C:4-2. That provision of the Code of Criminal Justice provided ...


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