On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-10-01828.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically September 19, 2011
Before Judges Graves, J. N. Harris and Koblitz.
After leave granted, the State appeals the trial judge's January 7, 2011 order denying its application to bar defendant Keith R. Buckley from introducing certain evidence at his vehicular homicide trial. The State sought to bar evidence concerning the decedent's failure to wear a seatbelt and the improper placement of a utility pole. Defendant wishes to introduce this evidence to argue that the decedent would not have died had he been wearing a seatbelt or had the utility pole been positioned in conformity with the guidelines of section 8.2.4 of the New Jersey Department of Transportation (DOT) Roadway Design Manual (Design Manual). After reviewing the record in light of the contentions advanced by the State on appeal, we affirm.
The State alleges that on the dry, clear day of August 12, 2008, defendant, a fourteen-year veteran North Brunswick Police Lieutenant, rapidly accelerated a borrowed Dodge Viper to ninety-four miles per hour in a forty-five mile per hour zone, lost control of the car and crashed into a guardrail and utility pole. Defendant's passenger, North Brunswick Police Lieutenant Christopher Zerby, was not wearing a seatbelt and died at the hospital shortly thereafter. Defendant, who was wearing a seatbelt, walked away from the accident with minor injuries.
On October 31, 2008, a Middlesex County Grand Jury returned Indictment No. 08-10-01828, charging defendant with second-degree vehicular homicide for "caus[ing] the death of Christopher Zerby by driving a vehicle recklessly." N.J.S.A. 2C:11-5.*fn1
On appeal, the State presents the following issues for our consideration:
FAILURE OF A VICTIM TO WEAR A SEAT BELT IS NOT AN INTERVENING VOLITIONAL ACT THAT ENTITLES DEFENDANT TO THE CAUSATION CHARGE.
THE LOCATION OF THE UTILITY POLE WAS NOT AN INDEPENDENT OR INTERVENING CAUSE OF ZERBY'S DEATH.
We generally review the trial judge's evidentiary rulings during trial under an abuse of discretion standard, provided the judge's rulings are not inconsistent with applicable law. State v. Kemp, 195 N.J. 136, 149 (2008). When interlocutory review is granted on a purely legal decision given prior to trial without an evidentiary hearing, we independently evaluate the issues de novo because the trial court has neither heard nor seen witnesses and therefore has no "feel" of the case. See State v. Mann, 203 N.J. 328, 336-37 (2010) (stating that "a reviewing court owes no deference to the trial court in deciding matters of law.").
Paraphrasing N.J.S.A. 2C:2-3c, the trial judge noted that "the jury is the entity to decide whether it is fair to hold the defendant responsible for criminal conduct when there is an issue of remoteness, an accident, or the volitional conduct of a third party." He concluded that the victim's failure to wear a seatbelt and the placement of the utility pole were factual ...