On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-09-00936.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and C.L. Miniman.
A jury found defendant Brijesh Shah guilty of first degree vehicular homicide, N.J.S.A. 2C:11-5, and third degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1. The judge imposed a seven-year term of imprisonment with an 85% parole ineligibility term for vehicular homicide*fn1 and a consecutive term of three years in prison for leaving the scene of a fatal accident. The judge also imposed all appropriate fines, assessments, and penalties. Defendant remains free on bail pending appeal.
The conviction arises from a collision of a motor vehicle driven by defendant and a bicycle ridden by the victim, James Lake. On May 9, 2006, defendant was driving south on St. Georges Avenue in Rahway at approximately 9:50 p.m. The roadway is a busy, four-lane road connecting several Union County towns. On his way home from work, defendant stopped at a liquor store where he purchased a small bottle of Irish whiskey. He then drove to a Hess Station in Linden, a neighboring town, where he drank the whiskey. Having purchased gasoline and consumed his drink, defendant proceeded driving south on St. Georges Avenue.
The victim was riding a bicycle and was attempting to cross St. Georges Avenue. The traffic was not heavy at the time, but the victim was carrying a pizza in a box on top of which he had placed a six-pack of beer. The victim was also very intoxicated; his blood alcohol registered 0.417. As the victim crossed traffic, defendant was driving in the lane closest to the double yellow line separating the north- and south-bound traffic. The victim had crossed the road halfway and was stopped on the double yellow line. Defendant moved from the left lane to the right to pass a car in front of him and immediately returned to the left lane. At this point, the bicycle was moving and defendant struck him.
Manuel Arismendi, one of the motorists who defendant passed, testified that he had seen the victim on his bicycle in the middle of the roadway and had applied his brakes to slow down. At the same time, he observed in his rearview window defendant quickly approach him from behind. He saw defendant move quickly to the right to pass him and then quickly to the left to resume travel in the left lane. In fact, Arismendi testified that defendant "cut [him] off," and estimated defendant's speed at 60 m.p.h. Arismendi also stated that he saw the victim and could have avoided hitting him.
Cesar Rebolledo, another motorist traveling south-bound in the right lane on St. Georges Avenue that evening, testified that he noticed defendant's car weaving in and out of traffic. As defendant approached Rebolledo, defendant moved from the left lane to the right lane, and "pretty much cut [Rebolledo] off." The posted speed limit was 35 m.p.h.; Rebolledo estimated that he was traveling at 30 m.p.h., and defendant was driving at approximately 40 m.p.h. Rebolledo observed defendant return to the left lane quite close to another car and then saw debris fly through the air. He described the time interval between the time he first saw the bicycle and the debris as "very fast."
Defendant testified at trial. He asserted that he drove cautiously and did not exceed the speed limit. He admitted the consumption of a slightly larger than airline-size bottle of Irish whiskey shortly before the accident but denied that he was intoxicated at the time. He also denied that he was conscious at the time that he struck a person. He thought he had struck a large dog. He also explained that the mint smell detected by the officer was attributable to an Indian tobacco he chewed; he denied that he tried to obscure the smell of alcohol.
After defendant struck the bicycle and its rider, Arismendi and Rebolledo saw defendant's brake lights and also observed him leave the scene of the accident. The victim was declared dead at the scene.
Police found defendant twenty minutes later about a block and one-half from the scene of the collision. The police officer described defendant as disoriented, covered in glass, and bleeding. He was arrested at the scene and transported to the police station.
At the police station, defendant spoke to two officers: Corporal Apice and Sergeant Desordi. Corporal Apice did not detect the odor of alcohol, bloodshot eyes, fumbling movements, flushed face, slurred speech, or any other outward signs of intoxication. Another policeman at the station, Officer Seiden, performed a horizontal gaze test on defendant and determined that he "might" be intoxicated. Corporal Apice encouraged defendant to provide the police with a blood sample, but never informed him that he could decline their request. Defendant agreed, signed a consent form, and was taken to the hospital by Officer McComb in order to draw blood. The sample recorded a blood alcohol concentration of 0.130.
Defendant returned to the Rahway Police Station, where he gave a DVD-recorded statement. He told the police about his activities prior to the accident. In response to a question about alcohol consumption, he denied drinking at the liquor store where he worked part-time or at the liquor store where he purchased the whiskey.
On appeal, defendant presents the following arguments:
I. The trial court erred in denying Defendant's Motion to Suppress his blood sample, which was taken without probable cause or valid consent. (raised below).
II. The State committed prosecutorial misconduct by repeatedly commenting on Defendant's silence to the police regarding consumption of alcohol on the night of the accident. (partially raised below).
III. The trial court committed prejudicial error in failing to tailor the jury charge to the facts of the case, despite promising ...