On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 09-02-00180.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012 -
Before Judges Simonelli and Accurso.
Following a jury trial, defendant Wilbur Bussey was convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5 (count one) and third-degree assault by auto, N.J.S.A. 2C:12- 1c(1) and (2) (count two). Judge David Krell sentenced defendant to a five-year term, subject to a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the vehicular homicide conviction and a concurrent three-year term on the assault by auto conviction.
Defendant raises the following arguments on appeal:
POINT I DEFENDANT'S RIGHT TO CONFRONT HIS ACCUSER WAS VIOLATED WHEN THE COURT PERMITTED A LABORATORY SUPERVISOR WHO DID NOT DIRECTLY OVERSEE THE BLOOD TEST TO TESTIFY IN PLACE OF THE CHEMIST WHO CONDUCTED THE TEST.
POINT II THE COURT ABUSED ITS DISCRETION WHEN IT PRECLUDED DEFENDANT FROM CROSS-EXAMINING [A WITNESS] ON HIS PENDING VIOLATION OF PROBATION CHARGE, WHICH WAS RELEVANT TO BIAS - NAMELY, [THE WITNESS'S] INTEREST IN CURRYING FAVOR WITH THE STATE - AND EXPLAINED WHY [THE WITNESS'S] SECOND STATEMENT WAS MORE DAMAGING TO DEFENDANT THAN THE FIRST.
Having considered these arguments in light of the record and existing law, we affirm.
Defendant's conviction and appeal arise out of a head-on collision he caused while attempting to pass an eighteen-wheel tractor-trailer on a two-lane road in a fifty-mile-per-hour zone in Vineland. The accident happened on September 20, 2005, shortly after ten o'clock on a clear, pleasant evening. Defendant himself was not seriously hurt in the crash. The driver of the other car, however, suffered extensive and severe injuries, and his passenger was killed.
Three eyewitnesses testified that defendant was driving a white Jeep Cherokee that had come up fast behind a slow-moving tractor-trailer with its right turn signal on, traveling south on Delsea Drive. When defendant pulled around to pass the truck on the left, he immediately crashed head-on into a black Mazda traveling in the northbound lane.
The two drivers traveling behind the tractor-trailer testified that defendant had passed both of them at a speed of between fifty-five and seventy miles per hour, weaving between them and then braking short behind the truck before pulling around to pass it as well. The third witness was pulling out of a driveway waiting to turn left across the northbound lane of Delsea Drive to go south. She testified that as she waited to let the tractor-trailer pass, the white Cherokee came up close behind the truck, hit its brakes, veered into the northbound lane and collided with the Mazda passing directly in front of her car. All three witnesses testified that the tractor-trailer never stopped or left the travel portion of the southbound lane.
No sobriety tests were administered at the scene, but blood samples were drawn from both drivers at the hospital. Defendant's blood alcohol level measured 0.06 percent at 12:40 a.m. when the sample was drawn. Defendant did not testify at trial, but statements he made to a detective from the Cumberland County Prosecutor's Office two months after the accident were admitted into evidence. Defendant claimed that the tractor-trailer had been driving on the right shoulder with its turn signal on when he began to pull around it in the southbound lane, but that he was forced to swerve sharply to the left when the truck swung back into the lane without warning. He admitted to drinking three beers between five-thirty and nine o'clock on the night of the accident, but believed that it had nothing to do with the cause of the crash. Defendant's counsel argued to the jury that the accident was likely caused by a blow-out of one of the Cherokee's tires.
The State presented two expert witnesses to testify about defendant's blood alcohol content at the time of the accident. Mark Maxwell, the forensic scientist in charge of the toxicology unit at the State Police South Regional Laboratory in Hammonton, testified to the procedures the lab follows in handling, storing, and testing a blood sample for alcohol content. Maxwell explained the workings of the head space sampling unit and the gas chromatograph the lab uses to prepare and analyze the samples. He also explained his role in supervising and reviewing the work of the analyst who conducted the analysis of defendant's blood sample.*fn1 Maxwell explained that he peer reviewed the certified lab report prepared by the analyst, the toxicology worksheets, the alcohol analysis reports generated by the computer, and the drug analysis at the time the analyst prepared the report on defendant's blood in October 2005, and that he again reviewed those same documents in preparing for trial. He testified that he found no discrepancies or errors in the work in either review, and that his independent review of the worksheets and the alcohol analysis reports led him to the same ...