On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-01-0001-I.
Before Judges Stern, Collester and Fall.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Pursuant to leave granted, the State appeals from an order denying its motion for recusal of the hearing judge and dismissing count one of Indictment 99-01-0001 based on prosecutorial vindictiveness.
On March 12, 1996, at approximately 12:30 a.m. John McGovern, one of nine Scottish tourists, was walking along the eastbound side of Route 3 in Clifton, in the same direction as the flow of traffic. McGovern and the others had been dropped off by a bus and were headed toward their hotel. They were walking on the roadway because snow embankments were on the shoulder of the road. As they walked, they separated into three groups with McGovern in the middle group. McGovern and Katherine McSherry were struck by an eastbound vehicle. While McSherry's injuries were not severe, McGovern was killed. The hit and run vehicle fled the scene.
Within a short time, suspicion centered on defendant Fatima Gomez. She acted to conceal her involvement the day after the accident by taking her Lincoln Continental to an auto body shop for repairs, claiming that someone else was driving when the car was in an accident. She replaced the windshield that same morning and was seen cleaning the interior. The following day she filed a false police report that her car was hit in a parking lot in Kearney.
When defendant was arrested, she told police that she had left work at a Little Falls restaurant after 11:00 p.m. on the night of the accident and was driving on Route 3 when she felt an impact as if someone had thrown something at her windshield. She said she pulled into a Shell station down the highway, saw her windshield was broken and continued driving to her home in Kearny.
The prosecutor presented the matter to a grand jury with instructions on the second degree charge of death by auto, N.J.S.A. 2C:11-5, and the third degree charge of hindering apprehension for the crime of death by auto by volunteering false information to a law enforcement officer, N.J.S.A. 2C:29-3b(1) or (4). On September 24, 1996, the grand jury returned a one count indictment charging defendant only with hindering apprehension.
Defendant entered a plea of not guilty and made application to the Pretrial Intervention Program (PTI). The Program Director rejected her application because she had denied any prior arrest, and a record check disclosed that on November 4, 1986 she had been arrested for welfare fraud, entered a plea of guilty to a disorderly persons offense and was placed on probation for five years.
Defendant appealed, claiming that she was never arrested, that she paid the money owed to Welfare and was unaware that she was placed on probation. The Law Division judge remanded the matter back to the Program Director for reconsideration in light of defendant's contentions. Once again the Program Director rejected defendant's application, and this time her appeal to the Law Division was denied.
Between the defendant's arraignment and her unsuccessful appeal of PTI rejection, various plea offers were extended by the prosecutor. The State's first offer was that defendant plead guilty to the indictment with exposure of 364 days in the county jail and also plead guilty to driving on the revoked list with the State reserving the right to argue that the mandatory forty-five day sentence be served consecutively. In subsequent status conferences the State raised the plea offer to three years "flat." In its final offer the State indicated it would recommend probation with up to 364 days in the county jail plus forty-five days consecutive on the revoked list violation. No agreement was reached, plea cutoff was entered and a trial date was fixed.
Defendant obtained an adjournment of the first trial date in order to file a motion to dismiss the indictment. On December 12, 1997, the motion was denied. The subsequent trial date of January 20, 1998 was adjourned, this time at the State's request in order to prepare for trial. Defendant did not object to the adjournment. A new firm trial date was set for March 9, 1998.
In February 1998, defendant appeared in the Jersey City Municipal Court on a post-conviction relief (PCR) application to vacate her 1988 disorderly persons conviction. She was successful, and the conviction was vacated. Prior notice had not been given to the Passaic County Prosecutor's Office, which received a copy of the order on the day before the time for appeal lapsed. An appeal by the Hudson County Prosecutor's Office was made at the behest of the Passaic County Prosecutor, but it was dismissed by the presiding judge of the Jersey City Municipal Court for lack of jurisdiction. Defendant then moved for reconsideration of her PTI rejection in light of the expungement of her disorderly persons conviction. However, the Law Division judge assigned to her PTI appeal denied the motion.
Five days before the March 9, 1998 trial date the State moved for another adjournment, this time in order to seek a superseding indictment. Chief Assistant Prosecutor John Snowden argued that the expungement of defendant's disorderly persons conviction created a material change in the State's view of the case. He said that when he received the case for trial, he believed it had been "undercharged" since there was no count for death by auto. Nonetheless, he thought it unnecessary to return to the grand jury for a superseding indictment. He said that in his experience a sentence on a second degree charge would probably result in a defendant actually serving a custodial sentence of eleven months before parole on the presumptive sentence as opposed to incarceration of nine months before parole on the presumptive third degree sentence. However, as a result of the expungement of defendant's disorderly persons charge, she would be entitled as a first offender to a presumption of non-incarceration on a conviction of the third degree crime. In Snowden's view a non- custodial sentence was inappropriate because of the nature and facts of the case.
Snowden also told the trial judge that new and additional evidence had been obtained during his pretrial preparation that would support an indictment for death by auto. The defendant's employer was re-interviewed and said that defendant finished her duties that night as a bartender for a private party at an earlier time than he previously stated. Photographs had been taken of the roadway depicting a clear line of sight for defendant of over 600 feet, enabling a calculation that defendant had almost ten seconds to see the people walking on the roadway. Furthermore, a tape from Texas A&M University showing automobile crash-dummy collisions would illustrate by sight and sound the impact of a human body with a vehicle traveling at defendant's claimed rate of speed and would discredit her statement that she believed an object struck her windshield.
The trial judge denied the State's request for a continuance. When the State declined to move the case for trial on the scheduled date, the trial judge dismissed the indictment "with prejudice." The State appealed.
On December 30, 1998, we issued an opinion affirming the dismissal of the indictment but modified the order to eliminate the "with prejudice" designation on the ground that it was premature and unwarranted in the absence of a motion by defendant for a speedy trial or to fix a "date certain." State v. Gomez, A-4364- 97T1 ...