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State v. McGrath

October 9, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KEVIN MCGRATH, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-11-2637.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2009

Before Judges Carchman, Parrillo and Lihotz.

Defendant Kevin McGrath was charged under a four-count Essex County indictment. Following a jury trial, defendant was convicted on two counts of second-degree vehicular homicide, N.J.S.A. 2C:11-5, and acquitted on two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a). The trial judge sentenced defendant to two consecutive seven and one-half year terms of imprisonment, subject to the eighty-five percent period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant seeks reversal of his conviction, based upon the following challenges:

POINT I

THE TRIAL COURT'S FAILURE TO CHARGE THE DIFFERENCE BETWEEN RECKLESSNESS AND NEGLIGENCE DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT'S FAILURE TO CHARGE THE LESSER-INCLUDED OFFENSES OF RECKLESS AND CARELESS DRIVING DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT III

THE ADMISSION OF EVEN A SINGLE CRIME SCENE OR AUTOPSY PHOTOGRAPH WAS IMPROPER SINCE NEITHER THE CAUSE NOR THE MANNER OF DEATH WAS IN DISPUTE. THE INTRODUCTION OF EIGHT HORRIFIC CRIME SCENE AND FIVE AUTOPSY PHOTOGRAPHS TOGETHER WITH REPEATED INJURY-BY-INJURY DESCRIPTIONS DEPRIVED DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).

POINT IV

THE ENTRANCE INTO EVIDENCE OF THE VICTIMS' WEDDING AND SCHOOL PICTURES DENIED DEFENDANT A FAIR TRIAL.

POINT V

THE ERRONEOUS ADMISSION INTO EVIDENCE OF A CUT GREEN STRAW AND A "LITTLE VIAL" WITH TESTIMONY CONCERNING THE DNA TESTING OF THE STRAW TOGETHER WITH THE TESTIMONY REGARDING THE ALLEGED UNTRUTHFULNESS OF DEFENDANT'S ACCOUNT OF HIS ACTIVITIES IN NEWARK ON THE MORNING OF THE COLLISION INAPPROPRIATELY RAISED THE INFERENCE OF DRUG USE BY THE DEFENDANT CREATING EXTREME PREJUDICE DEPRIVING HIM OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT VI

THE PROSECUTOR'S PERSISTENT RELIANCE UPON INFLAMMATORY PHOTOS AND OTHER IRRELEVANT BUT HIGHLY PREJUDICIAL TESTIMONY AND EVIDENCE DESIGNED TO CAST A SHADOW OF DRUG USE OVER DEFENDANT TOGETHER WITH THE USE OF VICTIM IMPACT EVIDENCE ...


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