October 15, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JULIE L. MICHAELS A/K/A LYNN MICHAELS, JULIE LYNN, JOLINE BROOKS, JODIE L. CALLOWAY, JODIE CALLAWAY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 [for] blood samples to be taken. . . . refused to sign." He testified regarding the chain of custody for the blood sample.
Defendant told the officer she had not had any alcohol that night but had taken Xanax, which was prescribed to her, at about 3:00 pm. She also admitted she would test positive for cocaine as she had used it about four days prior to help her cope with her grandmother's recent death. Det. Ludwig observed her eyes to be droopy and red, noted her speech was slurred, and she seemed very tired and lethargic, but he did not smell alcohol on her breath. He testified that when defendant was asked information regarding her date of birth, she provided three different dates. Although defendant did not appear to be in any pain, her ankle appeared broken. She told the detective that her ankle injury was an old injury from Iowa. Based on his observations, Det. Ludwig opined that defendant was intoxicated, and planned to charge her with the assault by auto and DWI offenses. He asked another officer to deliver the complaints to her.
Telischak-Payne was the night supervisor nurse at St. Clare's when defendant arrived. She testified about defendant's injuries, noting defendant had no indication of a head injury. The nurse testified that defendant's speech was slurred, she was lethargic, and she initially refused treatment. She corroborated that defendant consented to give a blood sample but refused to sign the consent forms.
Telischak-Payne testified that the blood sample taken from defendant did not contain any ethyl alcohol; however, a rapid toxicology screening of a urine sample, which was taken prior to defendant being issued any medications, tested positive for cocaine and benzodiazepines, found in anti-anxiety medications such as Xanax.
Patrolman Calandra relieved Det. Ludwig at St. Clare's on the morning of March 4. He made an in-court identification of defendant as the woman he spoke to in the hospital, who had identified herself as Jodie Callaway, from Iowa, who had a sister, Julie Michaels, who lived in Hardyston Township. Patrolman Calandra testified that when he served her with the complaints, defendant stated she did not know why she was being charged with a crime because "she thought she was driving on the two lane roadway that was divided by a grass median." The officer testified that the area of the Route 23 where the accident occurred did not have a median.
Once defendant was released from the hospital and fingerprinted, Det. Ludwig was notified that defendant was actually Julie Michaels, not Jodie Callaway, and the complaints filed against her were corrected to reflect the proper name. On March 8, Det. Ludwig responded to defendant's residence in Hardyston Township because while Patrolman Michael Petershack was there serving her with the updated complaints, he called an ambulance when defendant reported having difficulty breathing. Det. Ludwig accompanied defendant to the Newton Memorial Hospital and spoke with her after the hospital's initial assessment. He testified:
She said she wanted to talk to me and further in length about the whole case, . . . [and he replied] I am not allowed to talk to you. You have an attorney, whatever. She said, I want to talk. I said okay. Before, let me advise you again of your rights.
Defense counsel objected and moved for a mistrial based on the fact that defendant had an attorney at the time Det. Ludwig spoke to her. The court denied the motion, concluding the testimony did not rise to the level of a manifest denial of justice. Nevertheless, he conducted an N.J.R.E. 104 hearing to determine the admissibility of the officer's testimony regarding defendant's statements.
Outside of the presence of the jury, Det. Ludwig testified that at the time he spoke to defendant at the hospital he was not aware of whether she had an attorney. He only "assume[d] she had an attorney, based upon the charges," and he made the statement "[b]ecause, [he] wanted to make sure she knew and she was aware of her rights. That if she had an attorney, or whatever, that she did not have to talk to [him]." He re-advised her of her Miranda rights, she acknowledged her understanding by signing the Miranda card, and never during their conversation did she tell him she had an attorney, request an attorney, or request to remain silent.
The defense presented evidence that defendant had been represented by counsel prior to the accident on unrelated matters, and this attorney was aware of the motor vehicle accident. Judge Conforti denied defendant's motion to suppress, finding there was no evidence to indicate Det. Ludwig was aware defendant had counsel, and the detective did re-advise defendant of her rights.
Det. Ludwig thereafter testified before the jury regarding his conversation with defendant in the hospital on March 8. He reiterated that defendant stated she wanted to speak to him, he advised her of her rights, and she acknowledged her understanding by signing the back of the Miranda card. The detective further testified that defendant apologized to him for providing him with a false name. She explained that she had been on her way to her brother-in-law's home but it was very dark on the night of the accident and she could not see the road, and when she realized she was in the wrong lane, she hit the other car. Det. Ludwig asked her if she had consumed any alcohol that night, and she replied that "she understood how everyone would think that [b]ecause she was told there was a half bottle of brandy found in her car . . . [but] she did not have anything to drink that night." However, defendant did admit she had taken Xanax and used cocaine that evening.
Det. Ludwig also testified that on May 13 he conducted a search of the two vehicles involved in the accident at the auto body shop where they were taken. On the driver's seat of defendant's jeep, the officer found "a small clear plastic Ziploc bag containing a hard white substance [he] believed to be crack cocaine[,]" and three prescription medication receipts for Ambien, Tramadoll, and Metaxalone, each bearing the name Julie Michaels.
Rios testified regarding her review of defendant's motor vehicle record, noting that defendant's license had been suspended indefinitely in New Jersey on May 20, 2007, for non-payment of her insurance surcharge, as well as two prior suspensions. Moreover, although defendant was issued a motor vehicle I.D., she was never issued a New Jersey license.
Sgt. Gray testified regarding an "after-accident diagram" he created. Based on the location of the gouge marks, surface scrapes, and undercarriage debris on the street, and on pictures he took of the scene before and after the cars were removed, he concluded the vehicles hit head-on.
The State presented three expert witnesses: Edward John Barbieri, Ph.D, a forensic toxicologist and pharmacologist; Lisa DeCotiis, a forensic chemist; and Captain George Kately, Captain Bureau Commander of the Law Enforcement Bureau of the Sussex County Sheriff's office and an accident reconstructionist. The State also presented Dr. Jaroslaw W. Bilaniuk, M.D., a trauma surgeon who was the victim's admitting and treating physician.
Dr. Bilaniuk was the admitting and treating physician for both Vecchiarelli and Diaz. Prior to his testimony, defense counsel objected to the doctor testifying regarding causation, arguing the State never provided an expert report. The judge denied this objection and permitted Dr. Bilaniuk to testify, noting that defendant never filed a motion on the issue. He found the lack of expert report did not render the testimony inadmissible considering that the State had provided defendant with all of Vecchiarelli's medical records, including his discharge summary.
Dr. Bilaniuk testified at length about Diaz's and Vecchiarelli's injuries. He explained that Vecchiarelli was conscious when he first arrived at the hospital; however, his neck was immobilized and he had multiple facial abrasions and a left femur deformity reflecting a likelihood of a fracture. Diagnostic studies further revealed a laceration on his spleen, which could have caused traumatic bleeding, a "fracture of the condoyle at the base of the skull [a]nd base of the spinal cord," and a "traumatic injury" to his thoracic aorta as part of the layers were pre-ruptured. Because of these injuries, Vecchiarelli was admitted to the Intensive Care Unit.
Dr. Bilaniuk testified that Vecchiarelli was brought to the operating room to have surgery for his injuries on March 5, but his blood pressure dropped too low to proceed. Vecchiarelli remained unstable and continued to have respiratory functioning problems. As a result of the diminished oxygen in his blood, he ended up developing organ failure and needed dialysis for kidney function. Dr. Bilaniuk diagnosed Vecchiarelli with Adult Respiratory Distress Syndrome (ARDS), which results when the lungs do not function properly and do not carry oxygen from the blood. Vecchiarelli ultimately became hypoxic, meaning he was not carrying enough oxygen in his blood for his organs to work properly.
Vecchiarelli died on April 2, 2008, approximately one month after the accident. Dr. Bilaniuk opined that the cause of Vecchiarelli's death was "him being a multi-trauma patient, having these injuries, [which] subsequently led . . . these organs to fail. Sort of one-by-one until ultimately, . . . he couldn't survive these injuries at this level of failure." He further opined that all of the injuries stemmed from those injuries sustained in the motor vehicle accident.
On cross-examination, Dr. Bilaniuk admitted there were many inconsistencies in Vecchiarelli's medical records. For example, Vecchiarelli's admitting diagnosis was a fractured femur, but his discharge summary stated he was admitted for ARDS and organ failure. The physician testified that many of these errors may have come from someone else typing the discharge summary, or that he misspoke when he was dictating. Moreover, Dr. Bilaniuk noted that it was "hard to know exactly what [Vecchiarelli] died from," as he ultimately developed several medical issues. On re-direct, Dr. Bilaniuk reiterated that the injuries were sustained during the crash, and that Vecchiarelli died as a result of these injuries.
The court permitted this testimony over defense counsel's objection that the questions on re-direct were leading. Upon the conclusion of Dr. Bilaniuk's testimony, defense counsel objected again and moved for a mistrial on the grounds that the State was leading the witness to the ultimate question of the cause of Vecchiarelli's death. The court denied the motion, noting the issue of cause of death was a fact for the jury to determine, and the doctor was simply giving his expert opinion on the nature of the injuries sustained.
Dr. Barbieri testified at length regarding the testing and analysis of defendant's blood samples, referencing his expert report that was later entered into evidence over defense counsel's objection. He explained the general process by which the samples were submitted and tested and the specific tests which were run on defendant's blood. Dr. Barbieri testified that the results of the tests revealed that defendant's blood contained 270 ng/mL of Xanax, explaining that Xanax prescribed at the highest level for panic disorder would result in concentration in a person's bloodstream of approximately 100 ng/mL. Defendant's blood sample also contained 140 ng/mL of cocaine and 2500 ng/mL of benzoylecgonine, a by-product of cocaine. Based on these tests, Dr. Barbieri opined, within reasonable scientific certainty, that at around the time of specimen collection two hours after the crash, defendant was "impaired and unable to drive a motor vehicle safely." Moreover, the combination of Xanax and cocaine "would have a greater effect than each individual drug."
Explaining the metabolic elimination of both drugs, Dr. Barbieri testified that his conclusion would be the same at the time of the crash. He concluded that defendant "would not be able to operate a motor vehicle safely from these drugs," explaining she would have had "trouble concentrating," her "[j]udgment would be affected," "her coordination [would] have been impaired," and her "responsive time and sense of care and caution would ['absolutely'] be impaired."
On cross-examination, Dr. Barbieri admitted he did not personally conduct the tests that were run on defendant's blood. He explained, "[w]e have an entire lab staff that does these things. It's my job to final review the data, evaluate the data, and produce the report." Dr. Barbieri noted that 957 pages of raw data were provided to defendant, most of it generated by others; however, he explained he had been trained on all of the tests that had been performed and he reviewed all the testing that was done. He testified, "all of the tests were done appropriately, according to [their] standard operating procedures, including [their] quality controls, calibration, blanks, and all the testing was done." He opined that the "results produced were accurate and true representations of what was there in the blood of [defendant]."
DeCottiis testified that the Ziploc bag found in defendant's car contained .14 grams of cocaine.
Capt. Kately testified regarding his reconstruction of the crash scene. Based on his analysis, the Jeep struck the Mitsubishi head-on in the northbound lane, with the Jeep continuing in its southerly direction and the Mitsubishi rotating counterclockwise. The collision forced the Mitsubishi downward such that its undercarriage made contact with the roadway surface. Capt. Kately found no indication of evasive maneuvers from either vehicle prior to the collision, commenting that a normal individual would not have had time to perceive and react to the event.
At the close of the State's case, defense counsel made a motion for a judgment of acquittal on counts one and three, arguing there was insufficient proof on the record to establish the cause of Vecchiarelli's death because no autopsy report was provided, and the discharge summary did not deal with causation. Defendant urged that because she was not provided with a causation report in the discovery documents, she was not able to properly defend against it. The State countered that an autopsy report was not necessary to proceed with the death-by-auto counts, as it had provided Vecchiarelli's extensive medical records in discovery over two years before trial, detailing his course of treatment and deterioration in the hospital.
Defense counsel also moved to strike the testimony of Dr. Barbieri as violative of the confrontation clause as he did not personally perform, or help perform, the tests that formed the basis of his report and testimony. The State noted that Dr. Barbieri reviewed all of the generated data with respect to the analysis of the testing of defendant's blood sample, analyzed it, and submitted a report containing his own conclusions as to defendant's impaired condition at the time of the collision.
The court denied both of defendant's motions. The court found the absence of an autopsy report or other report defining the exact cause of death was not fatal to the State pursuing the death-by-auto counts through the testimony of Dr. Bilaniuk, who had described the victim's deteriorating medical condition caused by the accident as his treating physician.
The judge denied defendant's motion to strike Dr. Barbieri's testimony, noting he was a qualified forensic toxicologist who was a supervisor at the lab, he explained the procedures and testing, he analyzed the tests, and he "offered his opinions with regard to that analysis." The court found "[a]s the supervisor . . . he's qualified to give his testimony relating to the testing that was done, which he explained, and what conclusions can flow from the results of that testing." The court noted that the jury would determine the weight to give to the testimony of each of these witnesses.
Defendant presented two other individuals, whose testimony is not relevant to the current appeal. Defendant did not testify on her own behalf.
Upon the conclusion of the trial, the jury returned a verdict finding defendant guilty on all six counts. Prior to sentencing, defendant filed a motion for a new trial, reasserting those objections regarding Dr. Bilaniuk's and Dr. Barbieri's testimony. The court denied the motion from the bench.
Defendant was sentenced on May 13, 2011. Judge Conforti found aggravating factors two, the seriousness of the harm inflicted on the victim; three, the risk of defendant committing another offense; six, the extent of defendant's prior criminal record and the seriousness of the offenses; and nine, the need to deter defendant and others. N.J.S.A. 2C:44-1a(2), (3), (6) and (9). The judge noted defendant had prior convictions for DWI, a prior conviction for driving with a suspended license, and the fact that defendant's license had been suspended indefinitely since June 2006. He also noted defendant's history with cocaine going back at least twenty years, and her previous convictions in other states regarding CDS, which included periods of probation. He concluded, "there's no doubt, based upon the testimony received in this trial, that she was significantly impaired[.]"
The judge found mitigating factor two, defendant did not contemplate her conduct would cause serious harm, based on her remorse. N.J.S.A. 2C:44-1b(2). He declined to find mitigating factor eleven, imprisonment of defendant would cause excessive hardship, N.J.S.A. 2C:44-1b(11), even though defendant was pregnant with triplets at the time of sentencing. Instead, he found the hardship was "somewhat self-induced" as she became pregnant near the end of the trial.
Finding the aggravating factors substantially outweighed the mitigating factors, the judge sentenced defendant to an aggregate extended term of eighteen years subject to twelve years and two months parole ineligibility as follows: a twelve-year term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by a three-year period of parole supervision on count one; a consecutive five-year term subject to two years parole ineligibility on count two; a concurrent five-year term with two years parole ineligibility on count three; a concurrent eighteen-month term with nine months parole ineligibility on count four; a consecutive one-year term on count five; and a concurrent five-year term on count six. Count one also carried suspension of driving privileges for life and the other counts carried additional terms of loss of license privileges.
Defendant first argues the court erred in permitting Dr. Bilaniuk to testify as an expert regarding the cause of Vecchiarelli's death in the absence of an autopsy or other written report on that issue. According to defendant, her receipt only of Vecchiarelli's medical records denied her a fair trial warranting reversal of her conviction. We are not persuaded by this argument.
The admissibility of evidence, including that of expert testimony, is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.), certif. denied, 208 N.J. 335 (2011). See also State v. Summers 176 N.J. 306, 312 (2003); State v. Fortin, 189 N.J. 579, 597 (2007). "Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997) (internal quotation marks and citation omitted)); see also R. 2:10-2.
We disagree with the court that defendant was obligated to file a motion to secure an expert report. See R. 3:13-3(c)(9) (requiring the State to identify its experts and provide "a copy of the report, if any" and if there is no report, "a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion"). The requirements of Rule 3:13-3(c)(9) were not satisfied by simply naming Dr. Bilaniuk as a witness and providing over 1000 pages of medical records. Nevertheless, we discern no error in the court permitting his testimony.
Failure to comply with these requirements does not automatically preclude the expert testimony if the defendant will not be prejudiced by its inclusion. State v. Toro, 229 N.J. Super. 215, 222-24 (App. Div. 1988), certif. denied, 118 N.J. 216 (1989). Rather, "[a] trial court is vested with broad discretion to determine what remedy, if any, it should impose because of a failure to make expert disclosures." State v. Heisler, 422 N.J. Super. 399, 414-15 (App. Div. 2011). In determining whether to bar or permit expert testimony, the court should consider whether the party intended to mislead by failing to disclose the required discovery, and whether the aggrieved party was surprised or prejudiced by the admission of such expert testimony. State v. LaBrutto, 114 N.J. 187, 205 (1989); Heisler, supra, 422 N.J. Super. at 415.
Dr. Bilaniuk was the victim's admitting and treating physician, not an expert retained by the State in anticipation of defendant's prosecution. To that extent, Dr. Bilaniuk can be regarded as a hybrid fact-expert witness who is permitted to testify about his diagnosis and treatment of Vecchiarello's injuries and downward spiral while in the hospital, including his professional determination that the victim's death was the direct result of multiple traumatic injuries sustained in the collision. See Stigliano v. Connaught Labs, Inc., 150 N.J. 305, 314 (1995) (permitting a treating physician to testify about the cause of the patient's disease or injury, and holding "the characterization of such testimony as 'fact' or 'opinion' creates an artificial distinction" because causation is an essential part of diagnosis and treatment).
There is no evidence that the State intended to mislead defendant by Dr. Bilaniuk's testimony, that he was a surprise witness, or that defendant was prejudiced by his testimony. Dr. Bilaniuk was identified as a testifying witness. The State produced Vecchiarelli's complete medical records in discovery, which detailed his injuries upon admission, the complications and deterioration of his system, and the discharge summary authored by Dr. Bilaniuk indicating that the victim died of a collapsed lung within a month of the accident. Moreover, due to the fact defendant was charged with death by auto, N.J.S.A. 2C:11-5(b), it logically follows the victim's treating physician would testify about the injuries sustained and the cause of death resulting from the car accident. Additionally, as Judge Conforti pointed out, the lack of an expert report on causation did not preclude defense counsel from being able to meaningfully cross-examine Dr. Bilaniuk and point out the errors and inconsistencies in the medical records.
Defendant next argues Dr. Bilaniuk's testimony was improper as it was elicited by leading questions and thus amounted to an objectionable net opinion. We disagree.
During Dr. Bilaniuk's testimony, the State asked several times, over defense counsel's objection, whether the injuries Vecchiarelli sustained were a result of the motor vehicle accident. Specifically, the State asked, "[a]nd, the course of injuries and developing organ failure, . . . is that what ultimately caused  Vecchiarelli's death?" and "[t]hroughout the chart, these . . . 1370 some pages of medical records of  Vecchiarelli, does the chart indicate that the precipitating event is this motor vehicle crash?" Dr. Bilaniuk responded that all of Vecchiarelli's injuries were sustained in the accident, and was asked, "[a]nd but for that motor vehicle crash, and  Vecchiarelli sustaining [these] multiple injuries, would he have become hypoxic?" Dr. Bilaniuk replied, "most likely not." Defense counsel unsuccessfully moved for a mistrial.
When Dr. Bilaniuk's testimony is taken as a whole, the leading questions were more foundational and the doctor's responses, overall, do not reflect a net opinion. His testimony was based upon the 1377 pages of Vecchiarelli's medical records and his experience as the treating physician. Moreover, Dr. Bilaniuk referenced the portions of the medical records upon which he relied and all of the medical records were admitted into evidence. This evidence was "of a type reasonably relied upon by experts in the particular field[,]" N.J.R.E. 703, and the doctor clearly gave the "why and wherefore" of his opinion, State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). Moreover, the fact that expert testimony is in the form of an opinion that embraces the ultimate issue in the case does not render it objectionable. N.J.R.E. 704. Under N.J.S.A. 2C:11-5, with which defendant was charged, the State must prove causation as defined in N.J.S.A. 2C:2-3(a), which requires a "but for" test. See Pelhman, supra, 176 N.J. at 460; State v. Eldridge, 388 N.J. Super. 485, 494 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007). However, as noted by Judge Conforti, "[c]ausation is a factual determination for the jury to consider," in light of the evidence presented during trial. Id. at 466. As it is up to the jury to determine the weight of the relevant evidence, it was up to the jury to evaluate Dr. Bilaniuk's conclusion on causation. As we held in State v. Atwater, 400 N.J. Super. 319, 334 (App. Div. 2008):
Once an expert opinion is deemed admissible (that is, it is not excluded as a net opinion), the data and the totality of the facts on the basis of which the expert arrived at the opinion must be made known to the factfinder so that it may evaluate the validity of the opinion and conclude what weight, if any, it should give to that opinion.
In Point III, defendant next asserts error by the court in not suppressing her inculpatory statements to Detective Ludwig on March 8, 2011. She alleges the detective believed she was represented by an attorney, and he "exerted the coercion of suggesting" that she speak to him. She further argues that he should have informed her that criminal charges had been brought against her, and the traditional Miranda warnings in this case were insufficient. We discern no error in the court's ruling.
The court appropriately conducted an N.J.R.E. 104 hearing before admitting defendant's statements. Det. Ludwig explained he was not aware of whether defendant had an attorney at that time, he only "would assume she had an attorney, based upon the charges." He elaborated that, from his experience, "when somebody is charged [with traffic violations and violations of criminal acts], what they do, they obtain counsel."
Judge Conforti then denied defendant's motion to suppress. The judge recognized that Det. Ludwig's comment to defendant of "[y]ou have an attorney, whatever" when she initiated the conversation with him at the hospital was inartful, but he was satisfied by the detective's explanation that he only assumed this was the case. Though defendant may have been represented by counsel in an unrelated matter, the judge found no evidence suggesting the detective knew she was represented by an attorney in this matter, or any other matter.
"[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence on the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citation omitted). See also State v. Locurto, 157 N.J. 463, 474 (1999). We defer to the trial judge who had the opportunity to hear and see the witnesses and establish a "feel" of the case. Elders, supra, 192 N.J. at 244. The trial court's findings should only be reversed when so clearly mistaken "'that the interests of justice demand intervention and correction.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
We discern no basis in law to second-guess Judge Conforti's ruling. There is no evidence Det. Ludwig was aware defendant was represented, and attempted to keep defendant from her attorney and then "double[d] [his] efforts to extract a confession in the attorney's absence." See State v. O'Neil, 193 N.J. 148, 178-79 (2007) (holding that "officers conducting custodial interrogations cannot withhold essential information necessary for the exercise of the privilege" against self-incrimination). Defendant initiated the conversation with the detective and he then re-advised her of her Miranda rights, see State v. Hartley, 103 N.J. 252, 267-68 (1986), including that she had the right to an attorney and did not have to talk to him. Defendant then proceeded to apologize for giving the police false information and to admit she had used cocaine and Xanax on the night of the accident.
The judge properly concluded that State v. Reed, 133 N.J. 237 (1993) was inapposite. There, not only did an attorney-client relationship exist between the defendant and his attorney, but the attorney was "present or readily available to assist that person[.]" Id. at 269. Although defendant apparently was represented by an attorney in a prior criminal matter, defendant presents no evidence the attorney was readily available to assist her while she was being questioned. Neither the attorney nor defendant advised the detective of that relationship and defendant points to nothing in the record demonstrating knowledge on the part of the detective.
Defendant's reliance on State v. A.G.D., 178 N.J. 56, 68 (2003), holding "[t]he government's failure to inform a suspect that a criminal complaint or arrest warrant has been filed or issued deprives that person of information indispensable to a knowing and intelligent waiver of rights," is also inapposite. An officer personally served defendant with criminal complaints on the morning of March 4, and she was served anew on March 8 under her true name.
We also reject defendant's argument in Point IV that the testimony and report of Dr. Barbieri, who did not perform the forensic testing on her blood sample, violated her Sixth Amendment right to confrontation.
Over defendant's objection, Judge Conforti permitted Dr. Barbieri to testify and admitted his report into evidence as a business record, N.J.R.E. 803(c)(6). As the judge noted, this was not a situation where someone else prepared a report and that individual was unavailable to testify. As the forensic toxicologist explained, analysts under his supervision performed the testing in accordance with standard operating procedures in which he was trained, and the results were true and accurate. Dr. Barbieri relied on the raw data produced by their tests regarding the levels of Xanax and cocaine in defendant's system, and drew his own conclusions as to defendant's impaired condition at the time of the collision. Dr. Barbieri testified in detail regarding these conclusions as reflected in the report he had drafted.
The Confrontation Clause contained in the Sixth Amendment, which applies to the states by way of the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]" The Supreme Court of the United States has held that the Confrontation Clause bars the admission of "[t]estimonial statements of witnesses absent from trial" except "where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004).
The Court interpreted Crawford in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), considering whether the Confrontation Clause permitted, over defendant's objection, the admission of "affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine." Id. at 307, 129 S. Ct. at 2530, 174 L. Ed. 2d at 319. The Court held the laboratory analysts' notarized certificates, created to serve as evidence in a criminal prosecution, were testimonial for the purposes of the Confrontation Clause because they constitute a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id. at 310, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321.
Thus, absent a stipulation, the prosecution could not introduce such a report into evidence without offering a witness competent to testify as to its accuracy. Id. at 305, 129 S. Ct. at 2532, 174 L. Ed. 2d at 318. Finding the certificates were "functionally identical to live, in-court testimony," the Court explained that "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits" and unless "the analysts were unavailable to testify at trial" and the "petitioner had a prior opportunity to cross-examine them," he was "entitled to 'be confronted with' the analysts at trial." Id. at 310-11, 329, 129 S. Ct. at 2532, 2542, 174 L. Ed. 2d at 321-22, 33 (internal citation omitted).
The issue arose again in Bullcoming v. New Mexico, ___ U.S. ___, ___, 131 S. Ct. 2705, 2710-11, 180 L. Ed. 2d 610, 616-17 (2011), where the State's primary evidence at the petitioner's drunk driving trial was a forensic laboratory report certifying that his blood-alcohol concentration was above the legal threshold. Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 616. However, at trial the prosecution neither called as a witness the forensic analyst who performed the test and signed the certification, nor asserted he was unavailable. Id. at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Instead, to admit the report, the prosecution called another analyst who was familiar with the testing device used to analyze the petitioner's blood sample and with the lab procedures, but who had neither participated in nor observed the test. Id. at ___, 131 S. Ct. at 2709, 180 L. Ed. 2d at 616.
The Supreme Court found that the defendant's right of confrontation had been violated by the introduction of the report since the defendant was denied an opportunity to confront the actual analyst. Id. at ___, 131 S. Ct. at 2717, 180 L. Ed. 2d at 624.
The Supreme Court held that the "surrogate testimony" of a person who did not "sign the certification or perform or observe the test" did not meet the constitutional requirements. Id. at ___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. The Court explained, "[t]he accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist." Ibid.
However, the decision was made by only five of the nine members of the court. In a concurrence, Justice Sotomayor stressed the "limited reach" of the majority's holding. Id. at ___, 131 S. Ct. at 2719, 180 L. Ed. 2d at 626 (Sotomayor, J., concurring). Specifically, she observed that the Court had not resolved whether the petitioner's right of confrontation would have been satisfied "if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results." Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629 (Sotomayor, J. concurring). She noted that the Court had not been presented with "a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." Ibid.
This situation recently was presented in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012),*fn3 where a plurality of the Supreme Court held that the prosecution does not violate the Confrontation Clause where a testifying forensic expert relies on a laboratory certificate of DNA analysis for the basis of an opinion but does not offer the certificate itself in evidence. That report reflected the technicians had received material from a vaginal swab taken from the crime victim, identified semen in that material, and derived a male DNA profile produced from the semen. Id. at ___, S. Ct. 2229, 132 L. Ed. 2d at 100. The testifying expert then entered that profile into the state DNA computerized data base, which showed a match to a profile produced by the lab from a sample of the petitioner's blood taken during a prior arrest on unrelated charges. Ibid.
In the petitioner's trial for rape, the expert testified that the DNA profile produced by the outside lab matched a profile produced by the state police lab using a sample of petitioner's blood. Id. at ___, 132 S. Ct. at 2227, 183 L. Ed. 2d at 98. She testified about the techniques to generate DNA profiles from forensic samples such as blood and semen and described the matching process. Id. at ___, 132 S. Ct. at 2229, 183 L. Ed. 2d at 100. The expert stated that it was a "commonly accepted" practice in the scientific community for DNA experts to rely on one another's records. Id. at ___, 132 S. Ct. at 2229, 183 L. Ed. 2d at 100-01. She further testified that the lab was an accredited crime lab that routinely provided the police with a DNA profile. Id. at ___, 132 S. Ct. at 2230, l83 L. Ed. 2d at 101.
On cross-examination, the expert confirmed she did not conduct or observe any of the testing on the swabs, and her testimony relied on the DNA profile produced by the outside lab. Ibid. She also admitted she had not seen any of the calibrations or work that the lab had done in deducing a male DNA profile from the vaginal swabs. Id. at ___, 132 S. Ct. at 2230, 183 L. Ed. 2d at 102.
The Court concluded the testifying expert simply relied on the work of a non-testifying analyst in explaining the basis of her own opinion that it contained a profile matching the profile deduced from the petitioner's blood as allowed by Fed. R. Evid. 703; she was not submitting the underlying report for its truth. Id. at ___; 132 S. Ct. at 2235, 183 L. Ed. 2d at 106-07. The Court stated:
This conclusion is entirely consistent with Bullcoming and Melendez-Diaz. In those cases, the forensic reports were introduced into evidence, and there is no question that this was done for the purpose of proving the truth of what they asserted: in Bullcoming that the defendant's blood alcohol level exceeded the legal limit and in MelendezDiaz that the substance in question contained cocaine. Nothing comparable happened here. In this case, the [laboratory] report was not introduced into evidence. [Id. at ___; 132 S. Ct. at 2240; l83 L. Ed. 2d at 112.]
Nevertheless, even if the laboratory report had been introduced for its truth, the Court would have found no Confrontation Clause violation because "the primary purpose of the [laboratory] report, viewed objectively, was not to accuse [the] petitioner or to create evidence for use at trial." Id. at ___; 132 S. Ct. at 2242-43; 183 L. Ed. 2d at 121.
In a concurrence, Justice Breyer stated he would have requested reargument, but in its absence, he would "adhere to the dissenting view set forth in Melendez-Diaz and Bullcoming, under which the [laboratory] report would not be considered 'testimonial' and barred by the Confrontation Clause" because it "embodies technical or professional data, observations, and judgments; the employees who contributed to the report's findings were professional analysts working on technical matters at a certified laboratory; and the employees operated behind a veil of ignorance that likely prevented them from knowing the identity of the defendant in this case." Id. at ___; 132 S. Ct. at 2255; 183 L. Ed. 2d at 121. Justice Thomas also concurred with the plurality's conclusion of no constitutional violation but based "solely because [the lab's] statements lacked the requisite 'formality and solemnity' to be considered 'testimonial' for purposes of the Confrontation Clause." Id. at ___; 132 S. Ct. at 2255; 183 L. Ed. 2d at 129. He found the subject report distinguishable from the laboratory reports the Court determined were testimonial in Melendez-Diaz and Bullcoming, noting in the former case, the reports were "'sworn to before a notary public by [the] analysts' who tested a substance for cocaine," and in the latter case, "the report, though unsworn, included a 'Certificate of Analyst' signed by the forensic analyst who tested the defendant's blood sample." Id. at ___; 132 S. Ct. at 2260; 183 L. Ed. 2d at 134 (citation omitted).
Justice Kagan dissented, joined by Justices Scalia, Ginsburg and Sotomayor. She noted that, "[v]iewed side-by-side with the Bullcoming report, [this DNA] analysis has a comparable title; similarly describes the relevant samples, test methodology, and results; and likewise includes the signatures of laboratory officials." Id. at ___; 132 S. Ct. at 2267; 183 L. Ed. 2d at 141. She emphasized that the testifying expert had no knowledge at all of the outside lab's operations and may never have set foot in that lab. Ibid. The dissent concluded that when the State sought to introduce the substance of that laboratory's report into evidence, "the analyst who generated that report became a witness whom [the petitioner] had the right to confront." Id. at ___; 132 S. Ct. at 2268; 183 L. Ed. 2d at 142 (internal quotation marks and citation omitted).
In State v. Rehmann, 419 N.J. Super. 451, 457 (App. Div. 2011), we held a defendant's right to confrontation is satisfied when a testifying expert witness relies on hearsay evidence to form an independent opinion about the results. In that DWI case, the State called a forensic scientist to testify about the defendant's blood alcohol content, although he had only observed another chemist examine the defendant's blood sample and did not perform the test himself. Id. at 453. The testifying witness had "signed the laboratory report, certifying the accuracy of the testing." Ibid.
We noted, "[o]ur courts have yet to consider this surrogate-witness problem." Id. at 457. We held:
After careful consideration, we have no hesitation in agreeing . . . that experts and their opinions are not fungible; to hold otherwise would make a mockery of the Confrontation Clause. We thus agree with the argument that the Confrontation Clause is not satisfied by calling just anyone to the stand to testify about laboratory tests or other scientific results. A "straw man" will not do. The State must provide a witness who has made an independent determination as to the results offered.
The right of cross-examination must be meaningful and is not satisfied when the State calls a witness whose knowledge is limited to the four corners of the laboratory certification produced and executed by another. [Id. at 457-58 (footnote omitted).]
We concluded, however, that the testifying expert was the appropriate person to testify about the results of the testing of defendant's blood sample, even though another person had actually operated the gas chromatograph. Id. at 458-59. We explained that the testifying expert had supervised the test, making it a "joint effort"; he had personal knowledge of the equipment and manner in which the test was performed; he drew his own conclusions from the data gathered; he authored the laboratory certificate; and he was able to thoroughly respond to the questions about both the tests the results obtained. Ibid.
The New Jersey Supreme Court has recently granted certification in two unpublished opinions limited solely to the rulings involving the Confrontation Clause. In State v. Roach, No. A-1890-07 (App. Div. August 1, 2011) (slip op. at 4), the State's DNA expert testified in a sexual assault case about the DNA analysis of specimens from the victim's body that were obtained by a non-testifying forensic scientist in his lab. We found the qualified DNA expert established the requirement of reasonable reliance upon the other scientist's work as a matter of "customary practice" under N.J.R.E. 703, she carefully reviewed the analysis and found no basis to question its reliability, she found it appropriate to use the other scientist's DNA profile to compare to the profile generated by the defendant's buccal swab, and she was "subjected to vigorous cross examination on these points, including her use of the prior analyst's DNA profile." Slip op. at 21. The non-testifying expert's report or sworn statement was not moved into evidence. Ibid. We concluded that even if we construed the statements in the other report "to be 'testimonial,' there was no unconstitutional denial of confrontation in the manner in which [the State's DNA expert] referred to [the non-testifying scientist's] work in her expert testimony." Ibid. The Supreme Court granted certification on July 10, 2010. ___ N.J. ___ (2012).
In State v. Williams, No. A-3619-09 (App. Div. March 9, 2012) (slip op. at 23, 24), we held there was no Confrontation Clause violation when a pathologist who did not perform an autopsy on the victim testified in a murder trial about the cause of death. We reasoned that he testified about his own "independent determination" based, not only on the autopsy report, but also on the photographs of the autopsy and his personal examination of the victim's clothing. Id. at 23. "Moreover, the autopsy report was not admitted into evidence[,]" the "defendant never objected to [the expert's] testimony[,]" and "defense counsel extensively cross-examined him." Id. at 24. The Supreme Court granted certification on September 5, 2012. ___ N.J. ___ (2012).
Here, too, we are satisfied that, assuming the statements in Dr. Barbieri's report are considered "testimonial," defendant's confrontation rights were not violated. In our case, the State did not call "just anyone" to testify about the analysis of defendant's blood sample. Dr. Barbieri was qualified to offer his independent opinion as an expert, and could thus rely on inadmissible hearsay to reach that opinion under N.J.R.E. 703. Although Dr. Barbieri did not actually perform the tests, he did not, as defendant contends, only "put his name on a lab report that represented the work product of others." Rather, he made an independent assessment of the data collected by the analysts he supervised; testified at length about both the general process by which blood samples are submitted and tested and the specific tests on defendant's blood sample; and explained the results of each test. For example, Dr. Barbieri gave a detailed description of the gas chromatogram, which tested the blood for cocaine, including how the machine worked, the parts of the machine, how to quantify the results of the testing, and the specific results pertaining to defendant's blood sample. He also testified he was trained in regards to all of the testing, knew how to perform all of the tests, and noted they were "done appropriately, according to [the] standard operating procedures, including our quality controls[.]"
This is not a scenario where Dr. Barbieri testified regarding a report authored by someone else; rather, he authored the report himself based on the 957 pages of data that he reviewed. He explained that there is "an entire lab staff that does these [tests]. It's my job to final review the data, evaluate the data, and produce the report." Moreover, the State did not attempt to admit the foundational documents relied on by Dr. Barbieri. Thus, the jury only based its decision on Dr. Barbieri's verbal testimony and his expert report reflecting his independent analysis and assessment of the degree to which defendant's driving skills were impaired as a result of the levels of cocaine and Xanax in her blood at the time of the collision.
Dr. Barbieri's testimony was also consistent with his report. Although it would have been preferable for his report to have provided full disclosure of his role, we are satisfied defendant's ability to meaningfully cross-examine him was not compromised as a result of his not personally performing these tests. There were no questions asked on cross-examination regarding the specifics of the testing procedures, or results of the tests, that Dr. Barbieri could not thoroughly answer.
We turn now to defendant's sentence. Judge Conforti declined to find mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), that imprisonment of defendant would cause excessive hardship to her or her dependants, concluding her hardship of being pregnant was "somewhat self-induced." He noted that defendant must have gotten pregnant near the end of the trial, as she was due approximately six months from the date of sentencing, "at a point in time when she had to be aware of what was taking place in terms of a potential conviction and what is mandated under New Jersey law for any individual who is convicted of a vehicular homicide regarding incarceration."
In reviewing claims of excessive sentences, the Appellate Division is charged with ensuring the trial judge applied the correct legal principle. State v. Roth, 95 N.J. 334, 363 (1984). The trial judge is afforded considerable discretion, and provided the findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we do not substitute our own view of a proper sentence. State v. Bieniek, 200 N.J. 601, 608 (quoting Roth, supra, 95 N.J. at 364). We should only modify sentences when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Roth, supra, 95 N.J. at 363-64. We discern no such error here. Defendant's extended-term sentence of twelve years on count one, second-degree vehicular homicide, was within the court's discretion and considerably less than the twenty-year maximum. N.J.S.A. 2C:43-7(a)(3). As the prosecutor commented at sentencing, it appeared defendant became pregnant through artificial insemination, clearly making her condition self-induced.
The effect a mother's incarceration has on minor children does not amount to a "serious injustice" to overcome a presumption of imprisonment. Roth, supra, 95 N.J. at 358. The analysis focuses on whether or not a defendant's needs will be adequately met while in prison. State v. M.A., 402 N.J. Super. 353, 371-72 (App. Div. 2008). See also State v. Lebra, 357 N.J. Super. 500, 511-12 (App. Div. 2003) (finding imprisonment would pose excessive hardship when the defendant was diagnosed with a brain tumor between his arrest and sentencing). There is no reason to believe defendant would not receive appropriate prenatal care while incarcerated, and the children would be placed once they were born.