On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-03-323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, R. B. Coleman and Gilroy.
Defendant, Luis Hernandez, appeals from his conviction and sentence on first degree death by auto, contrary to N.J.S.A. 2C:11-5(b)(3) (count one); third degree leaving the scene of a motor vehicle accident resulting in death with a suspended driver's license, contrary to N.J.S.A. 2C:11-5.1 (count two); third degree operating a motor vehicle that was involved in a motor vehicle accident resulting in death with a suspended driver's license, contrary to N.J.S.A. 2C:40-22a (count three); first degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4a(2) (count four); second degree eluding, contrary to N.J.S.A. 2C:29-2b (count five); and third degree endangering an injured victim, contrary to N.J.S.A. 2C:12-1.2a (count six).
On November 21, 2003, defendant, driving a minivan, was pulled over by Clifton Police Officer John Samra. Because defendant did not have a valid driver's license, he panicked and drove away from the officer, who gave chase on his motorcycle. While speeding through a residential neighborhood, defendant's minivan collided with the officer's motorcycle, causing the police officer to be thrown from the motorcycle to his death. Defendant jumped out of his vehicle and attempted to run away, but was brought back to the scene by two witnesses. Defendant later agreed to give blood and urine samples to the police, and waived his Miranda*fn1 rights.
After a trial before Judge Edward V. Gannon and a jury, defendant was found guilty on all counts. On August 26, 2005, defendant, who had an extensive criminal history, was sentenced on count one to an extended term of life imprisonment subject to the No Early Release Act (NERA), and five years of parole supervision on count one. On count two, defendant was sentenced to a consecutive term of five years. A term of five years, which was to run consecutive to count one and concurrent to count two, was imposed on count six. A concurrent term of five years was imposed on count three and a concurrent term of twenty years, subject to NERA parole ineligibility, was imposed on count four. The defendant's conviction for eluding on count five was merged. The aggregate custodial sentence imposed was life imprisonment, subject to the NERA period of parole ineligibility, plus five years.
On appeal, defendant contends:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNT ONE CHARGING DEATH BY AUTO (VEHICULAR HOMICIDE).
POINT II: ALL OF THE DEFENDANT'S ORAL, WRITTEN, AND RECORDED STATEMENTS MADE TO DETECTIVE MAROTTA AT THE PROSECUTOR'S OFFICE SHOULD HAVE BEEN SUPPRESSED.
(A) THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT DID NOT HAVE TO BE READVISED OF HIS MIRANDA RIGHTS AFTER HE WAS TAKEN BACK TO THE PROSECUTOR'S OFFICE AND REPEATEDLY QUESTIONED.
(B) DETECTIVE MAROTTA ENGAGED IN IMPERMISSIBLE SOLICITOUS CONDUCT.
POINT III: DR. COHN'S "EXPERT TESTIMONY" THAT THE DEFENDANT WAS NOT FIT TO OPERATE A MOTOR VEHICLE "SAFELY" CONSTITUTED AN INADMISSIBLE NET OPINION (NOT RAISED BELOW). POINT IV: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
(A) THE PROSECUTOR MISREPRESENTED THE TESTIMONY OF DR. SAFERSTEIN (NOT RAISED BELOW).
(B) THE PROSECUTOR DILUTED THE STATE'S BURDEN OF PROOF AND THE DEFENDANT'S PRESUMPTION OF INNOCENCE BY REPEATEDLY TELLING THE JURY THAT THERE WAS "ABSOLUTELY NO DOUBT" OF THE DEFENDANT'S GUILT (NOT RAISED BELOW).
POINT V: THE AGGREGATE LIFE SENTENCE WITH A NERA PERIOD OF PAROLE INELIGIBILITY PLUS FIVE (5) YEARS IMPOSED ON THE DEFENDANT'S CONVICTIONS WAS MANIFESTLY EXCESSIVE, REPRESENTED AN ABUSE OF THE TRIAL COURT'S SENTENCING DISCRETION, AND VIOLATED THE DEFENDANT'S ...