On appeal from Superior Court of New Jersey, Law Division, Somerset County.
Approved for Publication December 27, 1995.
Before Judges Baime, Villanueva and Kimmelman. The opinion of the court was delivered by VILLANUEVA, J.A.D.
The opinion of the court was delivered by: VILLANUEVA
The opinion of the court was delivered by VILLANUEVA, J.A.D.
Defendant Thomas J. Lane appeals from his convictions of reckless manslaughter, N.J.S.A. 2C:11-4b(1), death by auto, N.J.S.A. 2C:11-5, and various motor vehicle offenses. We affirm.
At about 2:00 a.m. on April 4, 1992, at the intersection of Route 27 and Juliet Lane in Franklin Township, defendant drove his Pontiac Trans-Am into the rear of a Honda CRX driven by Dr. Robert Ochner. Dr. Ochner was stopped at a red light in the right hand lane of a four-lane highway. The road was dry and visibility was good. Upon impact, the Honda was propelled into the intersection, where it spun around several times before coming to a stop on the northbound side of Route 27. Defendant's Trans-Am stopped when it hit a utility pole.
Prior to the collision, Leonard Cacciatore, who was stopped next to Dr. Ochner in the left lane, noticed defendant's car approaching from behind in the right-hand lane. The posted speed limit was 40 miles per hour, but Cacciatore estimated that defendant's Trans-Am was going about 60 miles per hour. Cacciatore testified that he never heard the sound of brakes being applied before the collision.
A Somerset County Grand Jury returned an indictment charging defendant with aggravated manslaughter, N.J.S.A. 2C:11-4a (count one), and death by auto, N.J.S.A. 2C:11-5 (count two). Defendant was also charged with several motor vehicle offenses.
The State attempted to show that defendant's car struck the victim's Honda before the red light turned green. The State's expert in accident reconstruction, William Pauli, opined that defendant's car was traveling at about 54 miles per hour when it struck the victim's car. No skid marks were made by defendant's car prior to hitting the victim's car. Neither defendant's car nor the victim's car had any mechanical defects that would have affected operation of either car.
Christopher Santi arrived on the scene shortly after the collision and helped defendant out of his car. Santi smelled a strong odor of alcohol emanating from defendant, and asked defendant if he had been drinking. Defendant replied that he had had "a cocktail or two."
Dr. Ochner was taken by medical personnel to Robert Wood Johnson Hospital where he was diagnosed with an overwhelming head injury and a broken neck. Because Dr. Ochner's heart had stopped beating, a trauma team opened his chest and massaged his heart. The team was unable to revive his heart so that it would beat on its own and was also unable to observe any evidence of brain function. Dr. Ochner was pronounced dead at about 5:00 a.m. The cause of death was a fatal hemorrhage of the lining of the brain and the brain itself. A CAT scan revealed that the injuries were consistent with being struck from behind by a car traveling at a high speed.
A test of defendant's blood alcohol level performed at about 3:00 a.m. showed the level to be 0.253 percent, from which Dr. Charles Tindall opined that defendant was severely impaired and under the influence of alcohol at the time of the accident. At such a level defendant's reaction time, peripheral vision, and night vision would have been impaired.
Defendant's sister, Nellie Harris, testified that defendant was home watching television on the night of April 3, 1992, and that he had nothing to drink. She admitted that he left the house in his Trans-Am between 12:15 and 12:30 a.m. on the following morning.
John Desch testified on behalf of defendant as an expert in accident reconstruction. Desch opined that defendant was traveling at about 45 miles per hour when he struck the victim's car. Both experts used the same formula to estimate the speed of the Trans-Am at the point of impact. Desch guessed that the victim's car may have been airborne for about thirty feet. On rebuttal, the State's expert Pauli disagreed with this assertion, stating that if the car had been airborne for that distance it would have left a discernable mark on the road where it landed.
The defense theory was that the traffic light had turned green just before the accident and defendant was traveling only 5 miles per hour over the speed limit. The jury acquitted defendant of aggravated manslaughter, but convicted him of the lesser-included offense of reckless manslaughter, N.J.S.A. 2C:11-4b(1), and death by auto, N.J.S.A. 2C:11-5. Thereafter, the Judge found defendant guilty of several motor vehicle offenses.
At sentencing the Judge merged the death-by-auto conviction and the other motor vehicle convictions with the reckless manslaughter conviction under count one of the indictment. He sentenced defendant to the presumptive term of seven years for reckless manslaughter, and committed him to the custody of the Commissioner of the Department of Corrections. In addition, defendant's driver's license was revoked for a two-year period consecutive to the custodial term and defendant was assessed a $100 V.C.C.B. penalty.
On appeal, defendant argues:
ISSUE I THE JUDGE ERRED IN REFUSING TO DEFINE THE DISTINCTION BETWEEN RECKLESS ...