THE STATE OF NEW JERSEY v. JOHN SKOURAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0140-04T40140-04T4

THE STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN SKOURAS,

Defendant-Appellant.

_____________________________________

 

Submitted May 17, 2006 - Decided August 30, 2006

Before Judges Conley, Winkelstein and

Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-06-0709.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alyssa Aiello, Assistant Deputy Public Defender, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant John Skouras appeals his conviction and sentence for aggravated sexual assault, distribution of a controlled dangerous substance, and possession of a controlled dangerous substance. We reverse and remand the matter for a new trial.

Defendant's conviction arises out of events occurring on June 7 and 8, 2002, following the close of Rockafella's Restaurant in Point Pleasant. Defendant worked at the restaurant as a co-manager, while the victim, L.S., a college student on summer break whose father was defendant's neighbor, worked at the restaurant as a hostess.

According to L.S.'s testimony at trial, while at work on June 7, 2002, defendant gave her Xanax because she easily became frustrated while working. She also accepted a shot of alcohol from defendant around 5:30 p.m. By 11:30 p.m., the victim and defendant were alone in the restaurant. Defendant gave her two glasses of champagne. The next thing L.S. remembered was being at her mother's house.

The victim's mother testified that she found her daughter the next morning at the home of L.S.'s father. L.S. was lying face-up on a bed with her halter-top around her waist and one of her breasts hanging out of her strapless bra. L.S. had a cut on her neck, a black eye, a bump on her nose, and bruises "all over her body." When L.S. awakened, her mother observed that she was very groggy, had slurred speech, and spoke incoherently.

Police interviewed defendant the following day. He was orally advised of his Miranda rights and also read the rights to himself. He signed a Miranda waiver and consent-to-question form. At the conclusion of questioning, defendant was arrested.

On June 10, 2003, defendant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(7) (Count One), third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5a(1) and -5b(13) (Count Two), third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (Count Three), and second-degree distribution of a controlled dangerous substance in a public recreation zone, N.J.S.A. 2C:35-7.1 (Count Four). Count Four was dismissed before trial.

The trial was initially scheduled for March 22, 2004, but defendant did not appear. The trial court issued a bench warrant at 4:00 p.m. on that day. On March 23, 2004, the court stated that the trial would proceed without defendant because defendant had received the Hudson notice. The court then proceeded to conduct a Miranda hearing.

Investigator Kenneth Hess of the Ocean County Prosecutor's Office testified for the State. He told the court that he spoke with defendant for approximately forty-five minutes on July 9, 2002, and during that time defendant did not appear to be under the influence of any drugs or alcohol. Hess stated defendant told him that he was in pain because of his ankle injury, but defendant did not describe the pain as "extreme." Defendant indicated that he had taken three doses of Percocet that day for the pain. Hess testified that he was not concerned about defendant's ability to give a statement as a result of the Percocet because he "found [defendant] to answer [his] questions in a very understandable type of manner. [He] felt [defendant] carried himself physically and also verbally very well throughout . . . the time [he] spent with him."

According to Hess, defendant initially denied that anything of a sexual nature occurred between himself and L.S. Defendant then told Hess that sexual acts had occurred, but that they were consensual. Defendant agreed to a taped interview. In that interview, defendant stated that he gave L.S. three Xanax during the course of the evening, one around 7:00 p.m., another around 8:30 p.m., and the last Xanax around 11:00 p.m. He later indicated that he had given L.S. six Xanax. Defendant explained that L.S. asked for a ride home from work. After closing and cleaning the restaurant, he and L.S. shared two bottles of champagne, which they drank from pint glasses.

Defendant told Hess that he asked L.S. whether she wanted to go to a hotel and "she said yes." At that point, defendant said that both he and L.S. were "laughing, giggling and the whole thing." He checked into the Atlantic Hotel and helped L.S. up the stairs to the room because she had difficulty walking. He explained:

I'm carrying her, whatever, both, we get in the room, we start kissing, we're fooling around, we make love, she passes out, I'm trying to wake her up, I throw water on her face. I got up, I threw more water on her face, at that point she jumps up she was startled, she jumped up, went to walk, boom she fell, I carried her back, I put her back on the bed, she went to sit up again, she fell, I put her back on the bed, helped her get dressed and then we proceeded to leave. As we were going through the doorway, she fell, I got her by the steps, she looked like she was gonna (sic) fall again, I picked her [up], I carried her down the steps and fell on the last part of the steps, got her in my car, drove, put the car by her parent's house, went to my house, I got up, within an hour, an hour, no longer than an hour, maybe an hour and a half, got my car and put it back in front of my house.

Defendant indicated that he both orally and digitally penetrated L.S.'s rectum and vagina, but he could not recall whether he ejaculated. Defendant stated L.S. was never unconscious "throughout the whole period . . . until after it was all over," including the time when they arrived at the hotel and he helped her up the stairs and into the room. He stated that L.S. "talk[ed] to [him] throughout the whole thing."

After the taped interview, Hess spoke with defendant about the "fact that the last time [the victim] talked to [defendant] was in [defendant's] vehicle." In an apparent effort to explain why the victim did not say anything more to him, defendant told Hess that "[n]ow, after realizing exactly what happened, she was too [expletive] up and I should have never slept with her because she was too [expletive] up." He also told Hess that he was the only one performing sexual acts because she was incapable at the time and that his earlier statement that the victim was never unconscious was not true.

Dr. Daniel Paul Greenfield was retained by the defense to "develop an opinion about defendant's mental state on the two occasions when defendant waived his constitutional rights . . . and gave statements that he did to the investigating officers[.]" Dr. Greenfield testified defendant told him that he had taken Percocet on July 9, 2002, which had been prescribed for his ankle injury; and, that he had also smoked a marijuana cigarette "just before" the police arrived at his house. Dr. Greenfield indicated that Percocet is generally prescribed for ingestion once every four hours. In addition, defendant told Dr. Greenfield that he was "confused" when he gave his statement to the police and that he "felt faint and . . . heavily medicated."

In Dr. Greenfield's opinion, defendant was "not able to have knowingly and voluntarily waived his rights" at the time Hess questioned him. He based his opinion on the volume of medication and marijuana that defendant ingested prior to giving the statement and by listening to the tape of the statement, during which defendant, according to Dr. Greenfield, sounded "tired, confused, spacey." Dr. Greenfield acknowledged that after listening to the tapes, he did not hear anything that would indicate that the police were "offensive" or "aggressive" while questioning defendant.

The trial judge found the State proved beyond a reasonable doubt that defendant's Miranda waiver was knowing, voluntary and intelligent. The judge also found that defendant knew the purpose of his interview with Dr. Greenfield and was therefore less than candid with the doctor. The judge noted it was "extremely convenient" that defendant could recall some details with great specificity, but not others. In addition, the trial judge found defendant's claimed marijuana usage before the police arrived was a "recent fabrication."

The court admitted the confession. Defense counsel then advised the court that he intended to call "Dr. Greenfield in the affirmative part of [his] case on behalf of the defendant." The following colloquy occurred between the court and defense counsel:

MR. PAGANO: No. I intended to call him in both phases of the trial, Judge, in the Miranda and in the defendant's case. And the reason I intended to call him is because in this case, I presume that the [S]tate is going to move into evidence either a copy of the transcript of the statement or the tapes, themselves, for the jurors to listen to. And out of the mouth of the defendant, which will be part of the [S]tate's case, Mr. Skouras has told us about taking certain prescribed substances. He has also mentioned nervousness, he has mentioned pain, and other things that have come out of his mouth.

My purpose for Dr. Greenfield was to have him, as a doctor, testify as to Percocet, what the effects of Percocet are, whether or not the three Percocet that the individual said he took, whether the manifestations that he said in his statement were consistent with Percocet and --

THE COURT: You mean whether or not somebody would tell the truth or not tell the truth about sexually assaulting somebody else?

MR. PAGANO: No, Judge.

THE COURT: I don't understand.

MR. PAGANO: Whether or not the person was nervous, confused or in pain, because the jury has the right to determine the nature and circumstances surrounding the person's statement as to whether it's credible or not credible.

THE COURT: All right. So you're going to offer Dr. Greenfield for the purpose of saying that when Mr. Skouras made the statement, he lied?

MR. PAGANO: No. I'm going to say the evidence in this case shows you that Mr. Skouras said certain things. He was nervous. He was in pain. He took a certain level of medication. Dr. Greenfield has told you, jurors, because we can't show you what Percocet is or what Percocet does -- unless, of course, you're going to let me put in the patient information statement -- and say Dr. Greenfield has told us that when you take Percocet, you can be dizzy, you can be confused, you can exhibit the symptoms that Mr. Skouras does in his statement.

Therefore, ladies and gentlemen, when we give you the jury charge as to statements by defendant, whether they have to accept it or not view it as credible or not, that's a circumstance that they should be able to accept. And without having Dr. Greenfield saying those things on the stand in my case, unless -- I think I might be precluded from making that argument in the closing.

That's why -- and I understand that Dr. Greenfield cannot tell this jury, can never give an opinion --

THE COURT: Well, I don't understand. You know, Dr. Greenfield was called here for the purpose to say that in his professional opinion, based on what Mr. Skouras told him and what he characterized as what he thinks he heard in the voice of Mr. Skouras, he was so much under the influence of Percocet and marijuana that he did not make a knowing waiver of his constitutional rights. I didn't find that to be credible. I found that the [S]tate has proven beyond a reasonable doubt that the waiver was knowing, voluntary and intelligently made.

And I don't know how Dr. Greenfield can shed any competent, relevant or material light on this statement unless he is going to offer in his professional opinion that ingesting Percocet and marijuana would make somebody fabricate a story that they committed a crime.

MR. PAGANO: Judge, I had named him as a witness in my case --

THE COURT: Good.

MR. PAGANO: -- in addition to the Miranda.

THE COURT: Well, if that's your offer of proof, you're not bringing him in here.

MR. PAGANO: Okay.

Defendant's jury trial commenced later that day and continued on March 24 and 25, 2004. At approximately 11:30 a.m., on March 24, 2004, the trial court was informed that officers from the Ocean County Sheriff's Department had located defendant. It was reported to the court that when the officers entered the residence, they heard shots fired and found that defendant had shot himself, but not fatally. The court advised counsel that defendant had been airlifted to a trauma center and was in surgery.

Defense counsel moved for a mistrial. The court denied the motion, finding defendant "clearly and voluntarily absented himself from trial" on its first day. Insofar as the second day, the court found "the gunshot wound was self-inflicted and therefore that voluntary act . . . puts the court in a position to infer that [defendant] continued to voluntarily absent himself from trial." The court stated its denial of the mistrial "was specifically because of the allegations in this indictment." The court concluded that a mistrial would subject the victim to:

having to relive the trauma of this event again and, in this Court's view, unnecessarily, in light of the fact that Mr. Skouras has chosen to voluntarily absent himself from these proceedings . . . and it was clearly not his intention ever to present himself before the Court or a jury for a determination on the facts of the case.

On the third day of trial, defense counsel again moved for a mistrial, arguing that it was unclear whether defendant implicitly waived his right to be at trial because he shot himself. Counsel asked the trial court to continue the trial until defendant could be present to testify. The trial court again denied the motion, noting the trauma to the victim and defendant's implicit waiver for the first two days of the trial. The court noted that defendant was conscious but acknowledged it was too early to tell whether there would be any permanent brain damage. The judge ruled that "[s]elf-infliction of wounds to avoid the judicial process . . . should not frustrate the administration of justice." The jury convicted defendant of the three remaining charges contained in the indictment.

Prior to sentencing, defense counsel filed a motion for a new trial. The defense argued defendant's Sixth Amendment rights were violated because defendant could not, as a result of shooting himself in the head, have knowingly and voluntarily waived his right to be present at trial. The motion was denied. The trial court found defendant clearly waived his right to trial by not showing up on the first day. The court stated that once defendant was "confronted by [the police officers] that were there to bring him to his trial against his will, he took steps, drastic steps, to avoid that [from] happening." Thus, the court concluded defendant voluntarily waived his right to appear at trial.

After denying the motion, the trial court sentenced defendant to twenty years imprisonment with an eighty-five percent No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, parole disqualifier on the first-degree aggravated sexual assault charge. The judge found the aggravated sexual assault charge and the drug offenses were separate and distinct crimes. As such, the court sentenced defendant to a five-year consecutive term for distribution of a controlled dangerous substance and then merged the drug possession conviction into the distribution conviction. The court imposed appropriate fines and penalties.

Defendant raises the following issues for our consideration

on appeal:

POINT I

THE TRIAL COURT ERRONEOUSLY INSTRUCTED THE JURY ON ALTERNATE THEORIES OF AGGRAVATED SEXUAL ASSAULT (partially raised below).

POINT II

THE TRIAL COURT ERRED IN CHARGING CONSENT (not raised below).

POINT III

THE TRIAL COURT FAILED TO CHARGE THE LESSER-INCLUDED OFFENSE (not raised below).

POINT IV

THE TRIAL COURT'S DEFINITION OF "PHYSICALLY HELPLESS" WAS CONFUSING AND MISLEADING (partially raised below).

POINT V

THE TRIAL COURT'S CONTINUATION OF THE TRIAL, IN ABSENTIA, WHEN DEFENDANT WAS IN POLICE CUSTODY AND WITHOUT AN EXPRESS WAIVER CONSTITUTED REVERSIBLE ERROR.

POINT VI

THE TRIAL COURT ERRED IN PROHIBITING DR. GREENFIELD'S TESTIMONY.

POINT VII

THE PROSECUTOR'S CLOSING REMARKS WERE HIGHLY PREJUDICIAL.

POINT VIII

EVIDENCE OF DEFENDANT'S PRIOR DRUG USE WAS INADMISSIBLE AS A PRIOR BAD ACT (partially raised below).

POINT IX

THE SENTENCE IMPOSED BY THE COURT WAS IMPROPER.

A. The trial court abused its discretion in sentencing [d]efendant to the maximum term on the sexual assault count.

B. The trial court erred in imposing consecutive sentences.

We find merit to the claim that once defendant was apprehended, the trial court abused its discretion in continuing the trial in defendant's absence without conducting the necessary inquiry to determine whether defendant expressly or implicitly waived his right to be present for the remainder of the trial. We also agree that the trial judge abused his discretion when he excluded the testimony of Dr. Greenfield. In our view, the cumulative effect of these errors prejudiced the defendant's right to a fair trial and requires reversal and a new trial. See State v. Valenzuela, 262 N.J. Super. 392, 400 (App. Div. 1993), aff'd, 136 N.J. 458 (1994).

I.

Defendant argues that when he was taken into custody, the State had not rested its case. Thus, the trial court should have obtained his express waiver of his right to be present for the remainder of the trial and that the judge's failure to do so violated his right not only to be present for the balance of the trial but also his right to choose whether or not to testify on his own behalf.

A defendant's right to be present at each stage of his criminal trial implicates both the right of confrontation and due process. U.S. Const. amends. V, VI, XIV; N.J. Const. art. I, 10; Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S. Ct. 330, 333, 78 L. Ed. 674, 679 (1934), overruled on other grounds, Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); State v. Dishon, 297 N.J. Super. 254, 267-68 (App. Div.), certif. denied, 149 N.J. 144 (1997). A defendant's presence instills public confidence "in the courts as an instrument of justice." Hudson, supra, 119 N.J. at 172. Moreover, defendant's presence at trial also ensures an accused the opportunity to communicate with counsel and to participate in trial strategy. Ibid. The right, however, is not absolute and does not preclude a court from proceeding or continuing in a defendant's absence. State v. Finklea, 147 N.J. 211, 216 (1996) (citing Diaz v. United States, 223 U.S. 442, 458, 32 S. Ct. 250, 255, 56 L. Ed. 500, 506 (1912)), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997).

At the court's direction in Hudson, supra, 119 N.J. at 181-82, R. 3:16 was amended in 1992 and provides in pertinent part:

The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.

The rule's objective is not an invitation to a defendant to frustrate and disrupt the administration of justice, nor a form of punishment. State v. Whaley, 168 N.J. 94, 104 (2001). Rather, this rule attempts "to strike a proper balance between the careful protection of a criminal defendant's right to be present at trial and the government's prerogative to prosecute." Id. at 105. Consequently, a trial court's compliance with R. 3:16(b) "must be done carefully, in strict adherence to its terms and with sensitivity to the importance of the right being denied." Id. at 104 (citing State v. Sellars, 331 N.J. Super. 110, 121-22 (App. Div. 2000)).

The adequacy of a defendant's waiver to be present at trial is to be determined by examining the totality of the facts. State v. Morton, 155 N.J. 383, 441 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "Implicit in that requirement is the judicial obligation to assure that defendants understand the implications of a waiver of the right to be present. To meet that requirement, trial courts should question defendants about their understanding of the nature and consequences of their absence from the trial." Ibid. Of course, such an inquiry contemplates a defendant's presence before the court at some point during the pre-trial proceedings. See Id. at 470. Otherwise, the court may reach the conclusion that a defendant's conduct implicitly represents a knowing and voluntarily waiver of the right to be present at trial. Id. at 441.

"Trial in absentia is a severe consequence to flow from an implied waiver." Whaley, supra, 168 N.J. at 104. Thus, in absentia trials are only proper in "exceptional circumstances." State v. Givens, 353 N.J. Super. 280, 286 (App. Div. 2002). As such, trial courts should consider other options, such as making an inquiry as to why a defendant is not present, State v. Smith, 346 N.J. Super. 233, 237 (App. Div. 2002); State v. Davis, 281 N.J. Super. 410, 416 (App. Div. 1995), certif. denied, 145 N.J. 376 (1996), or issuing bench warrants, Finklea, supra, 147 N.J. at 221, rather then trying a defendant in absentia.

It is, however, within a trial court's discretion to determine whether to try a defendant in absentia or to adjourn the case when the defendant has not appeared for trial. Hudson, supra, 119 N.J. at 183-84. Thus, our review of the trial court's decision in this matter requires a determination of whether, under the totality of circumstances extant, the trial court abused its discretion in commencing and continuing trial in defendant's absence. See Id. at 184.

When defendant failed to appear on March 22, 2004, the original starting date of the trial, the court issued a bench warrant and revoked his bail. Defense counsel reported that he had been in contact with defendant the previous day in preparation for defendant's defense. Thus, the court concluded that defendant was well aware of the trial date, and his responsibility to attend, and there was no dispute that defendant had been afforded the Hudson warnings. Id. at 182. Therefore, the court determined defendant's conduct represented an implied waiver of his right to be present at trial. Davis, supra, 281 N.J. Super. at 415.

We find no abuse of discretion by the court in commencing the trial in defendant's absence. See Hudson, supra, 119 N.J. at 184. However, once defendant was located and in custody, it was incumbent upon the trial court to take the necessary steps to determine whether defendant's initial and continued absence from trial was a knowing, voluntary and intelligent decision. Givens, supra, 353 N.J. Super. at 289.

While granting defendant's motion for mistrial may not have been warranted, at a minimum, a brief adjournment should have been taken to enable the court to take the necessary prophylactic measures to safeguard defendant's constitutional right to be present for the remainder of the trial. See State v. Schmid, 84 N.J. 535, 559 (1980), appeal dismissed sub nom., Princeton Univ. v. Schmid, 455 U.S. 100, 102 S. Ct. 867, 70 L. Ed. 2d 855 (1982). Instead, without any further fact finding, the court determined, based upon the preliminary information it had received, that defendant's wounds were self-inflicted and not life threatening and that defendant's actions were therefore not an attempt to commit suicide, but instead were efforts to delay the trial.

We are satisfied that the court's oral findings were insufficient to constitute the careful and deliberate findings required of a trial court in these instances. Givens, supra, 353 N.J. Super. at 286-87. We are thus persuaded that the court abused its discretion in continuing the trial under these circumstances. Ibid.

II.

Defendant argues that the trial court erred in prohibiting him from calling Dr. Greenfield to testify as a defense witness. Dr. Greenfield testified during the Miranda hearing and rendered an opinion that at the time defendant waived his rights and provided a statement, "he was in pain, he was under the influence of Percocet and marijuana, and he was therefore not able to have knowingly and voluntarily waived his rights." The trial court precluded the defense from calling Dr. Greenfield during the trial because, in the court's view, it had already heard and rejected Dr. Greenfield's testimony in the Miranda hearing.

A trial court's determination of whether to admit expert testimony is within its sound discretion, State v. Free, 351 N.J. Super. 203, 221 (App. Div. 2002), and should be reversed only when there has been a "clear abuse of discretion." Little Egg Harbor Twp. v. Bonsangue, 316 N.J. Super. 271, 278 (App. Div. 1998).

The court's decision to admit or exclude expert testimony depends "'not only on the jury's comprehension of the subject matter but also on whether the specific proffered testimony will aid the jury in resolving factual issues.'" State v. Summers, 350 N.J. Super. 353, 363 (App. Div. 2002) (quoting State v. Berry, 140 N.J. 280, 291 (1995)), aff'd, 176 N.J. 306 (2003).

The proffered testimony of Dr. Greenfield was intended to assist the jury in evaluating the credibility of defendant's statements to the police. Once the court ruled that defendant's statement was voluntarily given, it was the task of the jury to weigh all relevant facts and to determine the credibility of the statement. State v. Hampton, 61 N.J. 250, 271-72 (1972).

In that regard, defendant was entitled to present any relevant evidence to aid the jury in making its ultimate credibility determination, including expert testimony related to his mental state at the time the statement was given. Free, supra, 351 N.J. Super. at 213.

Dr. Greenfield's qualifications to render an expert opinion on the potential effects of painkillers on defendant at the time he gave his statement to police was never challenged. Moreover, it was not the State that objected to the substance of Dr. Greenfield's testimony during trial. Rather, it was the court that found his testimony objectionable, because the court had already rejected Dr. Greenfield's opinion during the Miranda hearing. The court concluded that based upon its findings in the Miranda hearing, the doctor's testimony was irrelevant and immaterial. We disagree.

A judge's determination in a Miranda hearing is not intended to usurp the jury's ultimate function to weigh the evidence and resolve the credibility issues in the case. State v. Bowman, 165 N.J. Super. 531, 535 (App. Div. 1979) (citing Hampton, supra, 61 N.J. at 270-72). While Dr. Greenberg may not render an expert opinion as to whether the statements defendant made were truthful, State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993), his testimony about the effects of Percocet and marijuana on defendant's mental state at the time he gave the statements was relevant and probative of defendant's mental state. N.J.R.E. 702; see also State v. Townsend, 186 N.J. 473, 490 (2006); State v. Kelly, 97 N.J. 178, 202-03 (1984). The trial judge therefore abused his discretion in excluding the testimony. Ibid. Moreover, because the primary evidence against the defendant was his own statements to the police, which, if believed clearly established that L.S. was "physically helpless. . . or mentally incapacitated", N.J.S.A. 2C:14-2a(7), we cannot say that the exclusion of this evidence was harmless error. Ibid.

III.

In light of our disposition, we will not address defendant's remaining arguments. Resolution of those issues is dependent upon the evidence presented at the time of retrial.

Reversed and remanded for a new trial on all counts. We do not retain jurisdiction.

 

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Hudson, 119 N.J. 165 (1990).

At trial, the State's expert, Dr. John Brick, testified that he estimated the victim's blood alcohol level was between .16 and .21. In his opinion, by 4:00 a.m., the victim could have been "grossly impaired" and could be unconscious. He concluded, based on the victim's height, weight and age, a person with a blood alcohol level of .15 would look visibly impaired. On cross-examination, Dr. Brick, agreeing with defendant's expert, Dr. Saferstein, who did not testify, conceded that the victim may have had a blood alcohol level of .07 at 4:00 a.m.

(continued)

(continued)

23

A-0140-04T4

 

August 30, 2006