On appeal from Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 08-02-00053.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2012
Before Judges Axelrad, Sapp-Peterson and Haas.
Tried before a jury on a one-count indictment, defendant was convicted of second-degree vehicular homicide, N.J.S.A. 2C:11-5. The trial judge had previously granted defendant's motion to acquit him of the motor vehicle charge of driving while intoxicated (DWI), N.J.S.A. 39:4-50. Following the jury's verdict, the judge found defendant guilty of disorderly persons possession of marijuana, N.J.S.A. 2C:35-10a(4), and disorderly persons possession of drug paraphernalia, N.J.S.A. 2C:36-2. With regard to the remaining motor vehicle offenses, the judge found defendant guilty of reckless driving, N.J.S.A. 39:4-96, and possession of a controlled dangerous substance (CDS) in a motor vehicle, N.J.S.A. 39:4-49.1, and not guilty of failure to wear a seatbelt, N.J.S.A. 39:3-76.2f.
The judge sentenced defendant to seven years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on the vehicular homicide conviction.*fn1 He was ordered to pay $5,000 in restitution, together with mandatory fines and penalties. The judge also sentenced defendant to 180 days incarceration on each of the two disorderly persons convictions, to run concurrent with each other and with his vehicular homicide conviction. The judge ordered defendant to pay a fine on the possession of CDS in a motor vehicle charge. Defendant's driver's license was suspended for an aggregate of four years.
On appeal, defendant challenges only his conviction for vehicular homicide and he raises the following contentions:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW BY DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE .04 BLOOD ALCHOHOL READING (BAC) AS EVIDENCE OF RECKLESSNESS UNDER N.J.S.A. 2C:5-11 BECAUSE THE BAC WAS INTRODUCED WITHOUT EXPERT TESTIMONY AS TO ITS SIGNIFICANCE THUS FORCING THE JURY TO IMPROPERLY SPECULATE ON ITS MEANING AND IMPROPERLY SHIFTING THE BURDEN OF PROOF ONTO THE DEFENDANT (Partially Raised Below).
POINT II: WHERE THE COURT HAD ACQUITTED DEFENDANT OF THE DWI BASED ON INSUFFICIENT EVIDENCE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS DRIVING UNDER THE INFLUENCE THE COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY:
A. INSTRUCTING THE JURY THAT IT COULD CONSIDER WHETHER DEFENDANT WAS UNDER THE INFLUENCE FOR PURPOSES OF DECIDING WHETHER DEFENDANT WAS RECKLESS IN THE DEATH BY AUTO TRIAL;
B. NOT INSTRUCTING THE JURY THAT DEFENDANT HAD BEEN ACQUITTED ON THE DWI SUMMONS AND ALLOWING THE STATE TO RAISE INTOXICATION ON SUMMATION; AND
C. ALLOWING THE JURY TO SPECULATE ON THE MEANING OF THE .04 BAC AND MARIJUANA.
THE COURT COMMITTED REVERSIBLE ERROR AND DEPRIVED DEFENDANT OF A FAIR TRIAL BY FAILING TO CHARGE THE JURY WITH VARIOUS STANDARDS OF CULPABILITY, INCLUDING NEGLIGENCE AND BY FAILING TO CHARGE THAT THE COURT COULD DECIDE LESSER INCLUDED CAR[E]LESS DRIVING (Partially Raised Below). POINT IV: THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR:
B. A NEW TRIAL OR IN THE ALTERNATIVE A JUDGMENT THAT THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE; AND
POINT V: THE COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE'S ACCIDENT RECONSTRUCTION WITNESS TO STATE THAT THE .04 ALCHOHOL CONSUMPTION HAD A NEGATIVE EFFECT ON DEFENDANT'S ABILITY TO OPERATE HIS MOTOR VEHICLE AS HE HAD NOT BEEN QUALIFIED AS AN ...