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State v. Green

Superior Court of New Jersey, Appellate Division

November 12, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
KIMBERLY GREEN, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 7, 2013

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-0537.

Joseph E. Krakora, Public Defender, attorney for appellant (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Parrillo, Harris and Kennedy.

PER CURIAM

Following a jury trial, defendant was convicted of second-degree vehicular homicide arising from the death of Kylie Pinheiro in a motor vehicle collision in South Brunswick, and two counts of third-degree assault by auto arising from injuries to two other occupants in Pinheiro's vehicle. The judge sentenced defendant to an aggregate prison term of twelve years, with the first eight years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals both her conviction and sentence and raises the following arguments:

POINT I
THE COURT ERRED IN PRECLUDING THE DEFENDANT FROM PRESENTING A DEFENSE EXPERT ON ACCIDENT RECONSTRUCTION OR, ALTERNATIVELY, CALLING HIM AS A REBUTTAL WITNESS TO TESTIFY SOLELY TO THE FACT THAT VEHICLE SPEED WAS DETERMINABLE, CONRARY TO THE OPINION OF THE STATE'S EXPERT.
Point II
AS A RESULT OF A MOTION FOR RECONSIDERATION BROUGHT BY THE STATE, THE COURT ERRONEOUSLY REVERSED ITS EARLIER RULING THAT HAD EXCLUDED AS NOT PROBATIVE AND HIGHLY PREJUDICIAL A AUDIO/VIDEO RECORDING OF THE DEFENDANT'S CELL PHONE CONVERSATION MADE WHILE THE DEFENDANT WAS SEATED IN A PATROL CAR.
POINT III
IN SUMMATION, THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY BY APPEALING TO THE JURY'S SYMPATHY, BOLSTERING WITNESS CREDIBILITY, AND INFERRING THAT THE DEFENDANT WAS INDIFFERENT TO THE INJURED VICTIMS.
POINT IV
THE COURT FAILED TO PROPERLY ASSESS THE AGGRAVATING AND MITIGATING FACTORS WHICH RESULTED IN A MANIFESTLY EXCESSIVE AND PUNITIVE SENTENCE.

Defendant, in a pro se supplemental brief, also argues that juror misconduct denied her a fair trial. We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

A grand jury returned a six-count indictment charging defendant with first-degree aggravated manslaughter arising from the death of Kylie Pinheiro, N.J.S.A. 2C:11-4(a) (count one); second-degree vehicular homicide arising from the death of Kylie Pinheiro, N.J.S.A. 2C:11-5 (count two); second-degree aggravated assault arising from the injuries sustained by Heather Pinheiro and Melissa Pinheiro, N.J.S.A. 2C:12-1(b)(1) (counts three and four, respectively); and third-degree assault by auto arising from the injuries sustained by Heather Pinheiro and Melissa Pinheiro, N.J.S.A. 2C:12-1(c) (counts five and six, respectively). Defendant was also issued summonses for six motor vehicle offenses, including driving while intoxicated, running a red light, reckless driving, obstructing the passage of vehicles, failure to maintain her car in a lane, and speeding.

The jury returned its verdict after eighteen days of trial, finding defendant not guilty under counts one, three, and four, but guilty of vehicular homicide under count two and of assault by auto under counts five and six. Defendant appeared before the judge for sentencing on November 9, 2010. After noting the presumption of imprisonment for the second degree vehicular homicide conviction, and finding that two applicable aggravating factors outweighed seven mitigating factors, the judge sentenced defendant to an eight-year term of imprisonment on the conviction of vehicular homicide, subject to the eighty-five percent parole disqualifier under the NERA. The judge also sentenced defendant to a consecutive four-year term of imprisonment on count five, and a concurrent four-year term of imprisonment on count six. The judge imposed appropriate monetary assessments and penalties.

Thereafter, the judge adjudicated the six motor vehicle offenses against defendant. Defendant was found guilty of driving while intoxicated, running a red light, reckless driving, obstructing a roadway, and failure to maintain her car in a lane, but was found not guilty of speeding. The judge imposed appropriate fines and penalties.

Defendant moved for a judgment of acquittal or, alternatively, for a new trial. The motion was argued before the judge on November 19, 2010, and denied that same day.

This appeal followed.

II.

We discern the facts from the trial record.[1]

On December 27, 2007, defendant left her home at about 9:30 p.m. and drove her burgundy-colored Mitsubishi to the home of her friend, Janeen McLendon, in South Brunswick. Defendant and McLendon then went to a restaurant, arriving at about 10:30 p.m.

The restaurant's kitchen had closed for the evening, but the two women stayed and drank some alcoholic beverages. According to McLendon and defendant, defendant drank two mixed drinks, while McLendon drank two Hennessey cognacs and two beers. Both defendant and McLendon stated that no one else bought them a drink.

The two women left the restaurant at around 1:30 a.m. on December 28, 2007, and drove back to McLendon's condominium. McLendon's boyfriend, Tracy Gayden, was in a bedroom asleep. Defendant stayed about fifteen to twenty minutes at the residence, ...


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