On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-0541.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 25, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Justin Hagin appeals from his conviction on five charges of vehicular homicide and related offenses and from sentences aggregating twenty years stemming from a hit-and-run accident on June 18, 2004. We affirm.
Defendant was charged on March 10, 2005, in an eight-count indictment with (1) first-degree vehicular homicide, contrary to N.J.S.A. 2C:11-5(b)(3)(a), (b), (c); (2) first-degree aggravated manslaughter, contrary to N.J.S.A. 2C:11-4(a)(1); (3) third-degree leaving the scene of a fatal accident, contrary to N.J.S.A. 2C:11-5.1; (4) second-degree eluding police, contrary to N.J.S.A. 2C:29-2(b); (5) third-degree endangering an injured victim, contrary to N.J.S.A. 2C:12-1.2; (6) third-degree unlawful taking a means of conveyance, contrary to N.J.S.A. 2C:20-10(c); (7) third-degree causing death while being an unlicensed driver, contrary to N.J.S.A. 2C:40-22(a); and (8) third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2.
The matter was tried commencing on January 31, 2006, with the jury returning a verdict of guilty of vehicular homicide, leaving the scene of an accident, eluding, endangering an injured victim and driving while unlicensed. He was acquitted of the remaining charges. On March 31, 2006, he was sentenced to twelve years in state prison subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the first-degree vehicular homicide. He received two consecutive four-year terms on third-degree leaving the scene of an accident and endangering an injured victim. He was given a term of seven years on second-degree eluding to run concurrently with the vehicular homicide sentence. Finally, he received a four-year term for third-degree causing a fatality while being an unlicensed driver, also concurrent to the vehicular homicide.
The evidence at trial established that defendant and his son lived in Newark with his girlfriend Larissa Montgomery and her daughter. Montgomery owned a 1997 green Ford Explorer that defendant would drive on occasion.*fn1 Defendant and Montgomery had an argument in the afternoon of June 18, 2004, and defendant hid her car keys. Montgomery called the police and, at their direction, defendant returned the keys. Montgomery used the car to run some errands and went to bed at 8:00 p.m. She woke at 10:00 p.m. for her 11:00 p.m. shift at the post office, only to discover that the car was gone. Defendant's son explained that defendant had left. Montgomery unsuccessfully tried to get a message to defendant to return her car and as a result was unable to go to work.
Defendant took the Explorer to meet his friend Olanrewaju "Larry" Sule in Irvington to go for a ride and "hang out." Defendant told Sule that he had a drink before he left the house, but Sule saw no effect on his ability to drive. The two drove around with no destination, until defendant stopped to let Sule buy some beer for him. Sule drank nothing and drove the car while defendant consumed two 40-ounce bottles.
Defendant drove the car to bring Sule back to his house. He was traveling at what Sule believed to be 80 to 100 m.p.h. eastward down Lyons Avenue in Newark, headed away from Sule's home, when Sule saw a police car. Sule then saw a pedestrian appear "out of nowhere" on the driver's side of the vehicle. The vehicle struck the pedestrian. Sule insisted that defendant stop the car, but he continued to drive down Lyons Avenue.
Police officers Michael Grainger and Elvin Polanco witnessed the accident. They drove an unmarked vehicle northbound on Clinton Place. Officer Grainger saw the green vehicle approach a crosswalk, obviously in excess of the 25 m.p.h. speed limit, followed by a marked police car in pursuit. He saw the green vehicle strike a pedestrian walking near the crosswalk in the lane of travel, throwing him into the eastbound lane. Officer Polanco did not see the impact, but heard a "loud thump."
Officers Grainger and Polanco blocked off the street with their vehicle and called for emergency assistance. The pedestrian, Robert Williams, was face down on the street, motionless, unresponsive and bleeding from his ears, mouth and nose. An ambulance arrived and Polanco accompanied Willams to UMDNJ hospital where he was pronounced dead at 1:50 a.m. Williams's body suffered numerous lacerations, abrasions and fractures. The Medical Examiner determined they were the cause of death and were consistent with injuries resulting from an impact with a motor vehicle and the street. The victim's blood alcohol level was 0.139%.
The police officers pursuing defendant were Michael Ramirez and Vincent Feliciano, Jr. That night they were patrolling in uniform in a marked police car. The officers saw the green Explorer speeding and driving recklessly on Lyons Avenue. Ramirez heard a loud thump and saw a pedestrian thrown from the front of the vehicle into the air. Officers Ramirez and Feliciano pursued the Explorer down Lyons Avenue and saw it proceed through four red lights at what they believed to be 40 m.p.h. Eventually, the vehicle was forced to stop because of traffic on Lehigh and Elizabeth Avenues. Feliciano ordered Sule to exit the vehicle, while Ramirez did the same to defendant. Sule complied and was handcuffed, but defendant refused to release the steering wheel. Both officers struggled with defendant to force him out of the car. He cursed and flailed his hands until the officers were able to get him on the ground, injuring his face in the process, and handcuff him. The officers saw empty bottles in the car and smelled alcohol on defendant. They believed that defendant was intoxicated because he stumbled and had red eyes, a flushed face and a sweaty appearance. The officers took defendant to UMDNJ hospital to have his injuries treated and obtain a blood sample. The test revealed a blood alcohol level of .294%.
Investigator Vincent Nardone testified for the State at defendant's trial. He determined that the vehicle's speed was between 45 and 55 m.p.h. and the victim fell 140 feet from the point of impact. Defendant's expert, Dr. Ira Kuperstein, challenged Nardone's determinations, opining that Nardone misapplied the formula for calculating the Explorer's speed and the distance that the victim was thrown. Dr. Kuperstein believed that the rate of speed was actually 29 to 35 ...