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State v. Huang

Superior Court of New Jersey, Appellate Division

October 22, 2019

STATE OF NEW JERSEY, Plaintiff-Appellant,
v.
SHANGZHEN HUANG, Defendant-Respondent.

          Approved for Publication October 23, 2019

          Argued September 13, 2018

          On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 17-10-1138.

          Nancy A. Hulett, Assistant Prosecutor, argued the cause for appellant (Andrew C. Carey, Middlesex County Prosecutor, attorney; Nancy A. Hulett, of counsel and on the briefs).

          Philip Nettl argued the cause for respondent (Benedict and Altman, attorneys; Joseph J. Benedict and Philip Nettl, on the brief).

          Before Judges Fuentes, Accurso and Moynihan

          OPINION

          MOYNIHAN, J.A.D.

         The State of New Jersey appeals from the dismissal of an indictment charging defendant with second-degree vehicular homicide of a child, N.J.S.A. 2C:11-5 (count one) and fourth-degree assault by auto of the child's mother, N.J.S.A. 2C:12-1(c)(1) (count two) arising from a tragic motor vehicle incident. The State argues the motion judge abused his discretion in dismissing the indictment because it presented a prima facie case that defendant was reckless when he turned his vehicle onto a four-lane highway from a commercial driveway, left the roadway and sheared two street signs before crashing into a concrete planter. A metal support from one of the signs hit a six-year-old child in the head, causing trauma that led to his death. The child's mother, who was walking with him, suffered internal injuries when she was struck by a piece of sheared metal. Reviewing the motion judge's decision to dismiss the indictment for abuse of discretion, State v. Hogan, 144 N.J. 216, 229 (1996), and recognizing that the judge's exercise of discretion will not be disturbed on appeal unless there is a clear abuse of discretionary authority, State v. Saavedra, 222 N.J. 39, 55-56 (2015), we agree the State presented sufficient evidence to the grand jury to sustain both counts of the indictment and reverse.

         The statutes pertaining to both counts of the indictment require the State to prove the element that defendant drove a vehicle recklessly.[1] Defendant contends, and the motion judge concluded, the evidence presented to the grand jury failed to establish recklessness.[2] That evidence included a detective's testimony that the data recorder from defendant's vehicle recorded the rate of acceleration during the attempted left turn onto the highway. Defendant's vehicle reached seventy-two percent acceleration .65 seconds prior to the impact with the planter. The rate of travel ranged from an idling speed of 3.1 miles-per-hour to a maximum speed of 37.3 miles-per-hour .15 seconds prior to impact. The maximum speed was reached after 4.65 seconds. The recorder also showed that defendant never applied the brakes. A report placed in evidence at the presentment contained the information from the recorder. The detective, describing the seventy-two percent acceleration rate, said defendant pressed the accelerator "about three-quarters the way to the floor." The speed limit on the highway defendant entered was forty miles-per-hour.

         The State presented a video to the grand jury - also described by the detective in testimony - that showed defendant's vehicle enter the highway after observing constant traffic for approximately twenty-seven seconds. A car was in sight approaching from defendant's driver side when defendant accelerated from a standing position with his front tires on the sidewalk and rear tires on the pavement of the parking lot from which he exited. Defendant crossed all four lanes of the highway veering toward the sidewalk. He mounted the curb on the side of the road opposite the driveway from which he set out and drove with the driver-side wheels on the sidewalk and passenger-side wheels on the front yard of a structure, shearing both signs and hitting the planter. The vehicle then entered an intersection, still driving parallel to the highway. After crossing the intersecting street, hitting curb-side items along his route, he reentered the highway and traversed all four lanes, disappearing from view without ever stopping.

         The State also presented evidence that defendant ultimately crashed his car into a tree on the same side of the highway on which he began his first turn. The detective also testified that the driver of a car travelling on the roadway when defendant turned told the detective that he had to switch lanes to avoid defendant's vehicle which, he said, was travelling at a high rate of speed.

         The motion judge was compelled to view this evidence under the standard prescribed by our Supreme Court and determine:

"whether, viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it." State v. Morrison, 188 N.J. 2, 13 (2006) (citing State v. Reyes, 50 N.J. 454, 459 (1967)). A court "should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." Id. at 12 (citing Hogan, 144 N.J. at 236, State v. Vasky, 218 N.J.Super. 487, 491 (App. Div. 1987)).
[Saavedra, 222 N.J. at 56-57.]

         We determine that the evidence presented by the State and the rational inferences from that evidence, viewed in the State's favor, established the element of defendant's reckless operation of the vehicle. The record was not bereft of evidence of the necessary element, and the motion judge abused his discretion in dismissing the indictment.

         The detective testified that defendant's passenger told him that defendant enjoyed the feeling of acceleration to the point of feeling his back pushed against the seat, thus establishing defendant's familiarity with the effect of acceleration on a driver. Defendant's acceleration onto the highway, his loss of control, and the degree to which he lost control - never braking, stopping only after hitting a tree - sufficiently established that he "was aware that he was operating a vehicle in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death" to the child, Model Jury Charges (Criminal), "Vehicular Homicide (N.J.S.A. 2C:11-5)" (rev. June 14, 2004), and "serious bodily injury" to the child's mother, Model Jury Charges (Criminal), "Assault by Auto or Vessel (N.J.S.A. 2C:12-1(c))" (approved June 14, 2004); and "that the defendant consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted himself in the situation."[3] Model Jury Charges (Criminal), "Vehicular Homicide (N.J.S.A. 2C:11-5)"; Model Jury Charges (Criminal), "Assault by Auto or Vessel (N.J.S.A. 2C:12-1(c))". Whether or not a jury finds the State established these elements beyond a reasonable doubt is not the question before us. We conclude only that there was some evidence before the grand jury establishing the element of recklessness to warrant denial of defendant's motion to dismiss the indictment.

         In his merits brief, defendant mentions the detective's misleading testimony about the passenger's statement. He does not argue that improper testimony necessitated dismissal of the indictment; only that

the court found that [the detective's] misleading testimony about [the passenger] was not clearly exculpatory, and therefore was not relied upon in dismissing the indictment. Rather, [d]efendant's acceleration and speed, which was essentially all the State presented, "by itself, is not the type of conduct that in [the motion judge's] view would constitute recklessness."

         As such, we will not consider the detective's alleged misleading testimony as a ground for dismissing the indictment. 539 Absecon Blvd., L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J.Super. 242, 272 n.10 (App. Div. 2009) (noting claims that have not been briefed are abandoned on appeal).

         We also determine defendant's other arguments: the State's failure to appeal the dismissal of a prior indictment handed down against defendant in connection with this same incident bars this appeal under the doctrine of res judicata; and the State's failure to present any additional inculpatory evidence to the second grand jury requires the same result as the prior motion to dismiss - which were either not raised to or not addressed by the motion judge - to be without sufficient merit to warrant discussion here. R. 2:11-3(e)(2). We add only that in granting defendant's motion to dismiss a prior indictment against defendant, the judge specified that same was without prejudice and told the assistant prosecutor, "You can re-present." The State, in presenting its case to the second grand jury, addressed errors which the judge found justified dismissal of the first indictment: what the judge termed, the detective's "misleading, if not false response, to a grand juror's question" about defendant's medical condition. Before the second grand jury, the State also narrowed the charges presented from five to two, presented medical records and reports, as well as an ...


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