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State of New Jersey v. Nelson D. Villanueva

November 5, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NELSON D. VILLANUEVA, DEFENDANT-APPELLANT



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-10-2372.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 17, 2012

Before Judges Axelrad, Sapp-Peterson and Haas.

Tried before a jury on a multi-count indictment, defendant was convicted of three counts of second-degree vehicular homicide of three victims, N.J.S.A. 2C:11-5a (counts four, five and six); fourth-degree assault by auto, causing serious bodily injury to a fourth victim, N.J.S.A. 2C:12-1c(1) (count eight); three counts of third-degree causing death while driving with a suspended or revoked license, N.J.S.A. 2C:40-22a (counts nine, ten and eleven), and fourth-degree causing serious bodily injury while driving with a suspended or revoked license. N.J.S.A. 2C:40-22b (count twelve). Defendant was found not guilty of three counts of first-degree manslaughter, N.J.S.A. 2C:11-4 (counts one, two and three), and aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1b(1) (count seven).

The judge sentenced defendant to eight years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on counts four, five and six. These convictions were to run consecutive to each other. The judge also sentenced defendant to a consecutive eighteen-month prison term on count eight, and to concurrent five-year prison terms on counts nine, ten, eleven and twelve. At sentencing, the judge found defendant guilty of the motor vehicle offenses of driving while suspended, being an unlicensed driver, speeding, and reckless driving. Those convictions were merged with the indictable offenses for purposes of sentencing. In addition to other mandatory fines and penalties, the judge suspended defendant's driver's license for one year, consecutive to his State prison sentences.

On appeal, defendant has raised the following contentions:

POINT I

THE LOWER COURT IMPROPERLY AND INADEQUATELY INSTRUCTED THE JURY ON THE ISSUE OF CAUSATION IN RELATION TO THE VEHICULAR HOMICIDE CHARGES.

A. The Trial Court Inadequately Instructed The Jury On The Issue Of Legal Causation.

B. The Court's Charge To The Jury Mischaracterized The Defense Villanueva Presented At Trial.

POINT II

ROBERT RODRIGUEZ'S VIDEOTAPED STATEMENT TO POLICE SHOULD NOT HAVE BEEN ADMITTED AS SUBSTANTIVE EVIDENCE.

POINT III

DEFENSE COUNSEL SHOULD NOT HAVE BEEN PRECLUDED FROM CHALLENGING LAZARUS ROSEBORO'S CREDIBILITY ON CROSS-EXAMINATION. POINT IV

CONSECUTIVE SENTENCES WERE INAPPROPRIATE BECAUSE VILLANUEVA WAS CONVICTED OF ONLY A SINGLE ABERRANT CRIMINAL ACT.

A. The New Jersey Supreme Court's Decisions in Carey and Molina Are Meant To Apply To Drunk-Driving Cases.

B. The Lower Court Improperly Imposed

Consecutive Sentences.

In a supplemental brief filed by defendant on his own behalf, he has raised the following contentions:

POINT I

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF DUE PROCESS TO A FAIR TRIAL BY THE EXCLUSION OF LAZARUS ROSEBORO'S DRIVER STATUS OF HAVING ONLY A LEARNER'S PERMIT AND DRIVING WITHOUT BEING ACCOMPANIED BY A LICENSED DRIVER.

POINT II

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT OF A SPEEDY TRIAL BY 39 MONTHS OF OPPRESSIVE, PRETRIAL CONFINEMENT IN VIOLATION OF DUE PROCESS, WHEREFORE THE CONVICTION SHOULD BE SET ASIDE AND THE INDICTMENT DISMISSED.

POINT III

THE DEFENDANT WAS DENIED HIS RIGHT OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT, WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL AWARDED.

POINT IV

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE[,] WHEREFORE THE CONVICTION MUST BE SET ASIDE AND THE INDICTMENT MUST BE DISMISSED.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence.

I.

The State developed the following proofs at trial. On March 14, 2007, defendant called his friend, co-defendant Carlos Ortiz,*fn1 to see if he wanted to buy a car engine. The two men agreed to meet at their friend Miguel Marrero's house in Neptune and then drive together to inspect the engine. They also invited five other friends, Valentin Otero, Jesse Ortero, John Richardson, Robert Rodriguez, and Moses Pacheco, to accompany them.

Around 8:00 p.m., the eight men left Marrero's house in three cars. Defendant was driving one vehicle, with Valentin and Jesse Ortero, Richardson, and Rodriguez as passengers. Ortiz drove a second vehicle, with Pacheco as his passenger. Marrero drove by himself.

The three cars drove westbound on Route 33. At a red light, defendant began revving his engine to invite Ortiz to "battle" or "race" with him. As soon as the light turned green, defendant sped off aggressively, with Ortiz in hot pursuit. The two vehicles began zigzagging through traffic as they attempted to pass each other. The posted speed limit was 45 miles per hour. However, defendant and Ortiz reached speeds of up to 90 miles per hour. Marrero did not attempt to keep up with the two men.

Defendant and Ortiz eventually approached an intersection, where Route 33 met West Bangs Avenue. At that point, Ortiz was ahead of defendant's vehicle. At the intersection, Lazarus Roseboro was driving his car eastbound on Route 33. He had a green left-turn arrow and he began to turn left at the intersection onto West Bangs Avenue. Roseboro saw Ortiz's headlights approaching the intersection at a high rate of speed. Because he had a green left-turn arrow, however, Roseboro thought the other vehicle would slow down and stop. Roseboro did not see defendant's vehicle.

Ortiz and Pacheco saw Roseboro turning and Ortiz swerved around Roseboro's car into the oncoming eastbound lane of traffic. Ortiz avoided colliding with Roseboro or any other vehicle.

However, defendant was unable to avoid Roseboro's car. At that point, he was directly behind Ortiz's vehicle and could not brake in time. Defendant crashed his car into Roseboro's vehicle and the resulting collision ...


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