On appeal from Superior Court, Law Division, Middlesex County.
Before Judges Pressler, Conley and Newman. The opinion of the court was delivered by Pressler, P.J.A.D.
The opinion of the court was delivered by PRESSLER, P.J.A.D.
Defendant Thomas Gregg, driving while intoxicated, collided with a vehicle driven by Risa Wexier in which her grandfather Herb Falk was the front-seat passenger and her step-sister Elana Falk was the rear-seat passenger. Herb Falk died as a result of the injuries he sustained in the accident and the two women sustained injuries.
The ensuing indictment returned against Gregg charged him with aggravated manslaughter and a variety of assault and aggravated
assault charges. Following a two-week trial by jury, Gregg was convicted of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a; aggravated assault of which Ms. Wexler was the victim, N.J.S.A. 2C:12-1b(1); the disorderly person's offense of simple assault of which Ms. Falk was the victim, N.J.S.A. 2C:12-1a(1); fourth-degree assault by auto causing serious bodily injury of Ms. Wexler, N.J.S.A. 2C:12-1c; and the disorderly person's offense of assault by auto causing bodily injury to Ms. Falk, N.J.S.A. 2C:12-1c. He was sentenced to a thirty-year term with a twelve-year period of parole ineligibility on the aggravated manslaughter conviction and a concurrent seven-year term on the aggravated assault conviction. No custodial term was imposed on the simple assault conviction and the assault by auto convictions were merged into the assault conviction.
In appealing from the judgment of conviction, defendant raises the following issues:
I. DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY PROSECUTORIAL MISCONDUCT.
A. DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS AND SIXTH AMENDMENT RIGHTS TO A FAIR TRIAL WERE SERIOUSLY COMPROMISED WHEN THE COURT ALLOWED THE PROSECUTOR TO REPEATEDLY ELICIT TESTIMONY FROM WITNESSES ABOUT THE DEFENDANT'S CONDUCT AFTER THE ACCIDENT WITHOUT A LIMITING INSTRUCTION BY THE COURT TO THE JURY THAT THIS EVIDENCE COULD ONLY BE USED TO SHOW THE DEFENDANT'S ALCOHOLIC STATE; UNDER N.J.R.E. 402, OR, ALTERNATIVELY N.J.R.E. 403, THIS EVIDENCE SHOULD HAVE BEEN EXCLUDED.
B. DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS AND SIXTH AMENDMENT FAIR TRIAL RIGHTS WERE FURTHER COMPROMISED WHEN THE COURT ALLOWED THE PROSECUTOR TO REPEATEDLY REFER TO THE DEFENDANT'S ALCOHOLIC STATE BY PREJUDICIAL NAMES AND PHRASES.
C. DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS AND SIXTH AMENDMENT FAIR TRIAL RIGHTS WERE FURTHER COMPROMISED WHEN THE COURT ALLOWED THE PROSECUTOR TO REFER TO THE SUFFERING OF THE VICTIM IN HIS SUMMATION.
D. PROSECUTORIAL OVERZEALOUSNESS WAS ALSO APPARENT IN THE PROSECUTOR'S HAVING EACH EYEWITNESS TESTIFY THREE TIMES: BY RELATING THEIR OBSERVATIONS, BY TESTIFYING WITH A DIAGRAM AND BY TESTIFYING WITH AN AERIAL PHOTOGRAPH.
E. THE PROSECUTOR MADE IMPROPER COMMENTS AS TO THE JURY'S DUTY WHICH CONSTITUTED PREJUDICIAL ERROR TO THE DEFENDANT AND CONTRIBUTED TO THE ...