On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 08-10-0415.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 12, 2012
Before Judges Axelrad, Sapp-Peterson and Haas.
Defendant Julie Michaels appeals from her conviction and sentence in a vehicular homicide case in which she killed one person and injured another. She challenges evidentiary rulings permitting the expert testimony of the decedent's treating physician regarding causation and of the forensic toxicologist concerning the testing of defendant's blood sample, and denying her motion to suppress inculpatory statements. Defendant also challenges her sentence as excessive. We affirm.
Defendant was charged by a Sussex County Grand Jury in a six-count indictment, No. 08-10-415, for charges arising from a motor vehicle accident occurring on March 3, 2008, in Hardyston Township. She was charged with second-degree vehicular homicide of Dylan Vecchiarelli by driving recklessly while intoxicated, N.J.S.A. 39:4-50, N.J.S.A. 2C:11-5 (count one); third-degree assault by auto of Danilo Diaz while intoxicated, N.J.S.A. 39:4-50, N.J.S.A. 2C:12-1c(2) (count two); third-degree causing Vecchiarelli's death while driving unlicensed or with a suspended license, N.J.S.A. 39:3-40, N.J.S.A. 2C:40-22a (count three); fourth-degree causing serious bodily injury to Diaz while driving unlicensed or with a suspended license, N.J.S.A. 39:3-40, N.J.S.A. 2C:40-22b (count four); third-degree giving false information to a law enforcement officer, N.J.S.A. 2C:29-3b(4) (count five); and third-degree possession of a controlled dangerous substance (CDS), cocaine, N.J.S.A. 2C:35-10a(1) (count six). Defendant was also issued six motor vehicle citations.
Defendant filed several in limine motions to dismiss the indictment, all of which were denied by the court. Judge N. Peter Conforti presided over a fourteen-day trial in February and March 2011. On March 17, 2011, the jury returned a verdict, unanimously finding defendant guilty on all six counts of the indictment.
Defendant filed a motion for a new trial, which the court denied from the bench following oral argument. The court granted the State's motion to sentence defendant to an extended term as a repeat offender, N.J.S.A. 2C:44-3(a) and 2C:43-7. Defendant was sentenced on May 13, 2011 to an aggregate custodial term of eighteen years with twelve years and two months parole ineligibility. The court also imposed mandatory fees, fines, and penalties. This appeal ensued.
On appeal, defendant argues:
IT WAS REVERSIBLE ERROR FOR THE TREATING PHYSICIAN, DR. BILANIUK, TO TESTIFY TO HIS OPINION AS AN EXPERT THAT THE DECEDENT DIED AS A RESULT OF THE CAR ACCIDENT, NOT HAVING FURNISHED A WRITTEN OR ORAL REPORT TO THE DEFENSE DISCLOSING HIS OPINIONS AND GROUNDS. POINT II
THE TESTIMONY OF THE STATE'S EXPERT, DR. [BILANIUK]*fn1
WAS IMPROPERLY ELICITED BY
LEADING QUESTIONS AND CONSTITUTED AN IMPROPER NET OPINION THAT SHOULD HAVE BEEN EXCLUDED.
THE DEFENDANT'S CONFESSION TO DETECTIVE LUDWIG SHOULD HAVE BEEN SUPPRESSED AS GIVEN IN VIOLATION OF HER CONSTITUTIONAL RIGHTS.
TESTIMONY AND REPORT FROM DR. BARBIERI, WHO DID NOT PERFORM THE LABORATORY ANALYSIS OF THE DEFENDANT'S BLOOD SAMPLE, VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION.
THE TRIAL COURT ABUSED ITS DISCRETION AND FAILED TO APPLY CORRECT LEGAL PRINCIPLES BY DISREGARDING MITIGATING FACTOR NO. 11 (EXCESSIVE HARDSHIP) WHEN DETERMINING TO IMPOSE AN EXTENDED TERM OF IMPRISONMENT.
Based on our review of the record and applicable law, we are not persuaded by any of these arguments and affirm defendant's conviction and sentence.
At trial, the State presented the testimony of the following witnesses: Sergeant John Broderick, Detective Karl Ludwig, and Patrolman Nicholas Calandra of the Hardyston Township Police Department; Lisa Rios, a Driver Improvement Analyst of the New Jersey Motor Vehicle Commission; Sergeant John Gray of the Sussex County Crash Analysis Reconstruction Team; Sandra Telischak-Payne, a nurse at St. Clare's Hospital; two bystanders, Carole Ann Terraneo and Lance Smith; and Diaz.
On March 3, 2008 at about 10:15 p.m., on what Sgt. Broderick described as a clear night, he was dispatched to the intersection of Route 23 and Silver Grove Road in Hardyston Township in response to a two-car motor vehicle accident. At this intersection, Route 23 is a two-lane roadway, one lane going southbound and the other northbound, divided by a double-yellow line, and has a 45 miles-per-hour speed limit. The intersection is at the top of what is referred to as "Hamberg Mountain," below which Route 23 turns into a four-lane highway with two lanes going in either direction.
Sgt. Broderick testified that upon his arrival at the intersection he saw two vehicles: a Jeep Grand Cherokee facing southbound, straddled over the yellow line, and a Mitsubishi Galante perpendicular to the Jeep. He exited his vehicle and approached the driver of the Mitsubishi, later identified as Diaz, who was screaming, "[s]he was on my side," and seemed to be in pain. The front-seat passenger, later identified as Vecchiarelli, was conscious but not responding to questions. He disregarded the sergeant's commands to remain in the vehicle, exiting the car and falling down.
Sgt. Broderick approached the Jeep and saw the driver, later identified as defendant, "slumped into the steering wheel." He asked her what happened and she responded in what Sgt. Broderick described as a slurred voice, "[i]n Iowa, you can drive on both sides of the road." The officer observed that defendant's eyes were barely open and she did not appear to be in pain although she "was walking on what seemed to be a 90-degree broken ankle." He testified that defendant appeared to be under the influence of alcohol or drugs, but Diaz, the driver of the Mitsubishi, did not.
The occupants of the Mitsubishi were transported to Morristown Memorial Hospital, while defendant was transported to St. Clare's Hospital in Sussex Borough.
Terraneo arrived at the scene shortly after the accident, but she did not witness it. She testified that she, her husband, and her cousin were driving toward their home on Route 23 when she noticed a Jeep Cherokee a few cars ahead "a little bit swerving" and she saw "the vehicle go way over into the northbound lane, but going south." Terraneo attempted to call 9-1-1 when she thought the Jeep was going to hit the guardrail, but she could not get a signal. She was traveling behind the Jeep when it disappeared over the hill, and she lost sight of it for about five to ten minutes. When her car reached the top of the hill, she came across the accident, which involved the same Jeep that had been in front of her. She called, and was able to reach, 9-1-1.
Smith, who witnessed the accident, testified that on that evening he was traveling northbound on Route 23. When the car in front of him reached the intersection with Silver Grove Road, he "saw a person on the south end switch , came in, and right there. Crash."
Diaz was twenty years old at the time of the accident. He testified that he picked up sixteen-year-old Vecchiarelli from his home around 9:00 pm, made a stop in West Milford, and then headed to WalMart via Route 23 North. Diaz noted it was a clear night, "the roads were fine," and he had not consumed any alcohol or drugs.
Diaz testified he reached the point on Route 23 where it was only a two-lane roadway, when he saw headlights approaching his car from the other direction, "on [his] side of the road. And then it struck [him] head on." He explained it happened so fast he did not have time to react, explaining, "I asked [Vecchiarelli] . . . if this car [was] going to hit me. And before you know it, it did. By the time I even said anything, it struck my vehicle and caused an accident." He stated he lost consciousness and when he woke up, he was in pain.
Diaz's injuries included a fractured cheekbone, a broken nose, a broken femur, and a broken kneecap. He remained in the hospital for about a month, followed by an additional two to three weeks at a rehabilitation center.
Det. Ludwig was directed by Sgt. Broderick to respond to St. Clare's Hospital to obtain blood samples from the female driver involved in the accident. The woman identified herself as Jodie Callaway of Moscow, Iowa, but she did not have identification to verify her identity. The detective made an in-court identification of defendant as this same woman.
Det. Ludwig asked defendant what happened, and she replied, "[i]n Iowa, we can drive on both sides of the street. I was on the wrong side of the road and hit a car." She told him she had come from her sister's friend's home in Hardyston Township, and was on her way, in her sister's car, to pick up her and her friends, when the accident occurred. The police dispatcher informed the detective that a search for Jodie Callaway of Iowa yielded three results: a Jodie Callaway from Iowa, a Judy Michaels from Illinois, and Julie Michaels from Wayne, New Jersey, to whom the Jeep Cherokee was registered.
Det. Ludwig advised defendant of her Miranda*fn2 rights by reading from a card and defendant acknowledged she understood her rights, but the detective printed the name Jodie Callaway on the back of the card because she refused to sign it. Defendant also consented to providing the officer with a blood sample, but she again refused to sign the consent form. Det. Ludwig subsequently filled out the form by printing the name Jodie Callaway and writing "granted permission ...