STATE OF NEW JERSEY v. AMY LOCANE

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant/

Cross-Respondent,

v.

AMY LOCANE a/k/a AMY BOVENIZER,

AMY LOCANE-BOVENIZER,

Defendant-Respondent/

Cross-Appellant.

July 22, 2016

 

Submitted February 24, 2016 Decided

 
Before Judges Alvarez, Haas, and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-12-0770.

John J. Hoffman, Acting Attorney General, attorney for appellant/cross-respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent/cross-appellant (Monique D. Moyse, Designated Counsel, on the brief).

PER CURIAM

Tried by a jury, defendant Amy Locane was convicted of the lesser-included offense of second-degree vehicular homicide, N.J.S.A. 2C:11-5(a),1 and third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2). The trial judge, at the close of the trial, found her guilty of committing the following motor vehicle offenses in Princeton Township: driving while intoxicated (DWI) in a school zone, N.J.S.A. 39:4-50(g); leaving the scene of an accident, N.J.S.A. 39:4-29(a); and reckless driving,2N.J.S.A. 39:4-96. Defendant was convicted of two additional motor vehicle offenses committed in Montgomery Township: drunken driving and reckless driving.

On February 14, 2013, the trial judge sentenced defendant as a third-degree offender on the second-degree crime, and imposed a three-year state prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He also imposed a concurrent three-year term on the assault by auto. The judge assessed a $15,000 Violent Crimes Compensation Board (VCCB) penalty, along with mandatory fines and assessments, and terms of license suspension. The State appealed the sentence; defendant cross-appealed her convictions and the imposition of the VCCB penalty. We affirm but remand for resentencing.

I.

A.

The following facts and circumstances are derived from the transcripts of the lengthy proceedings. On the afternoon of June 27, 2010, defendant, an actress, attended a cast party at which she was observed drinking both red and white wine. At approximately 7:30 p.m., she drove to a barbecue at the home of friends, Carlos and Rachel Sagebien. Defendant's husband, accompanied by the parties' three and one-half-year-old and seventeen-month-old children, was already there. At the barbecue, defendant was seen tripping over her baby, spilling a glass of wine that she was holding, behaving flamboyantly, and using profanities despite the presence of other guests' children. She slurred her words and seemed to have difficulty standing. Between 8:30 and 9:00 p.m., defendant and her husband left in their separate vehicles. The children traveled with their father.

Just after 9:00 p.m., defendant rear-ended a Honda Odyssey stopped at a red light at the intersection of Route 206 and Cherry Valley Road in Princeton Township. The driver, Maureen Ruckelshaus, approached defendant to obtain her insurance information. When Ruckelshaus asked defendant, who never left her vehicle, what had happened, she mumbled, "I, I guess I wasn't paying attention." Ruckelshaus concluded defendant was intoxicated because of her slurred speech and glassy eyes. Ruckelshaus, who did not have her cell phone with her, asked the driver of the car behind defendant's SUV, Shantanu Deshpande, to call police because defendant was drunk. Deshpande called 911 at 9:06 p.m.

While on the phone, Deshpande watched Ruckelshaus attempt to remove what he presumed were defendant's car keys from inside the driver's compartment. Ruckelshaus then yelled "[y]ou're drunk" to defendant. When Ruckelshaus asked defendant to turn off her ignition and told her the police were on their way, defendant responded, "No, I'm good. Don't worry about me[,]" and pulled around Ruckelshaus's Honda, forcing her to jump back to avoid being struck. Deshpande witnessed Ruckelshaus jumping out of the way when defendant drove off.

Ruckelshaus followed defendant, observing her driving erratically, tailgating the car in front of her and weaving from side to side as she attempted to pass in a no-passing zone. Defendant alternated between speeding to pass and then abruptly dropping back. Attempting to get defendant's attention, Ruckelshaus flashed her headlights and honked her horn.

Ruckelshaus followed defendant onto Cherry Hill Road, staying behind at least one car length. While swerving from side to side, and tailgating the car in front of her, defendant knocked down a mailbox. She drove on.

At the next intersection, while her right blinker was engaged, defendant turned left onto Cherry Valley Road and then made an immediate right back onto Cherry Hill Road and sped up. Ruckelshaus called out to the driver behind her, Perry Weitzner, to call police. Ruckelshaus was unable to follow, but watched as defendant sped away over an incline. When Ruckelshaus finally reached the top of the incline, she saw defendant approximately 800 or 900 feet ahead. She also saw the headlights of a car turning left into a driveway.

Without visibly swerving or braking, defendant drove her SUV into the passenger side of the vehicle, a silver Mercury Milan. The two cars spun apart, and the Milan struck a tree while defendant's SUV came to rest partially in a ditch. Ruckelshaus stopped and ran towards the crash again calling to Weitzner to phone police. Ruckelshaus saw defendant, who had a smile on her face, get out of her car, spin around, and fall back into the ditch.

Weitzner also saw defendant veering in and out of her lane across double yellow lines, speeding up and slowing down, and striking a mailbox. The vehicle's left blinker was engaged the entire time.

According to Weitzner, Ruckelshaus was following defendant, honking her horn and intermittently flashing her lights. In his opinion, however, Ruckelshaus was not riding her bumper, although Weitzner conceded that he had previously stated that Ruckelshaus was staying "pretty close" to the SUV, as though she were "riding" it. When defendant reached the stop sign at Cherry Valley Road, she stopped for an excessive amount of time before turning left. It was at this juncture that Ruckelshaus first yelled to him to call 911.

Weitzner saw defendant's SUV disappear while Ruckelshaus was stopped at the stop sign. He drove behind Ruckelshaus onto Cherry Valley Road but did not see the accident take place.

At trial, Ruckelshaus denied yelling at defendant or reaching into her car. She admitted refusing defendant's offer to use her cell phone to call police. Ruckelshaus testified that she pursued defendant hoping to get her license plate number and to get her off the road. She honked her horn and flashed her lights a few times, but not all the way to Cherry Hill Road. She denied tailgating defendant, insisting that she stayed back, concerned for her own safety.

The driver of the Milan was Fred Seeman.3 His passenger was his wife, Helene. When he got out of the vehicle, he asked Ruckelshaus for help, telling her, "I think my wife is dying."

Weitzner called 911 at 9:18 p.m., and police and paramedics promptly responded. After arriving, Montgomery Township Police Officer Christopher Bleistine approached defendant, assuming that she was Fred's wife. She told him that she was "fine," had no injuries, and did not know why they were "making such a big deal out of this." Bleistine described defendant, who smelled of alcohol, as talkative, laughing, and "very giddy."

Fred's wife Helene was pronounced dead at the scene, while Fred was airlifted in a Medivac helicopter and taken to the Robert Wood Johnson University Hospital Trauma Center. He was informed of his wife's death during the trip.

Defendant gave her name and address to Officer Jason Clifford and told him that her identification was in her purse in the car. She also told him she had consumed four glasses of wine and asked him to check whether her children were in the car. According to Clifford, defendant responded promptly to his questions and seemed alert. Her speech was slurred, her eyes were watery, and she was laughing and giggling.

Ali Larcombe, an EMT called to the scene, agreed that defendant's speech was slurred even though she correctly answered basic questions. Defendant reported that she had not been thrown from her vehicle because she was wearing her seatbelt and had never lost consciousness. She did not answer when Larcombe asked her if she remembered the accident. Defendant acknowledged having drunk some wine but was able to stand up and step out of the ditch unassisted.

Officer William Wilkes, who traveled in the ambulance with defendant, recalled that she insisted that she did not need a neck brace. She did not appear to understand the circumstances, and said everyone was being over-dramatic. Defendant was friendly, talkative, and laughed a great deal. She explained that she had been coming from Hopewell and had consumed four glasses of wine and a beer. When Wilkes told her she had been in a serious car accident, she responded, "God bless America I wasn't hurt" and laughed. Wilkes said a second car was involved, but defendant did not ask about the occupants.

Larcombe and a second EMT, Peter Jozwick, both traveled in the ambulance with defendant and Wilkes. Jozwick also remembered defendant appeared alert and spoke continuously while giggling and laughing. Her eyes were glassy and her speech a little slurred at times.

Defendant did not complain of pain and repeatedly asked to return to her car and go home. She did not mention being followed by anyone before the crash. Eventually defendant asked whether anyone was hurt, but when no one answered, continued laughing and repeating herself.

In the emergency room, defendant told Karen Buttry, the Assistant Nurse Manager, that she had no physical complaints, and had consumed four glasses of wine and one beer that evening. According to Buttry, defendant was oriented, able to answer questions, and had no problem communicating, although her speech was slurred.

About fifteen or twenty minutes after arrival, defendant became agitated and upset about the delay. She began to ask, "why the f--- am I here?" and "[w]hy can't I f---ing go?" in a loud voice.

Christine Wiggins, a nurse on staff, examined defendant, discovering a small laceration on her tongue and small contusions on her body. Wiggins recalled that defendant's speech was slurred, her appearance disheveled, and she smelled of alcohol. Initially, she was very agitated and confused and could not describe the accident. Defendant urinated on the bed twice. She was very uncoordinated when Wiggins attempted to help her use a bed pan. As the evening wore on, defendant was able to walk to the bathroom without difficulty.

Wiggins said defendant talked incessantly, was quite lucid, and answered most questions appropriately. Defendant denied any prior medical history, including allergies, knew the day of the week, and discussed her children, and that night's cast party. She repeated that she had consumed a few glasses of wine and a beer. Defendant also said her husband was going to be very angry with her, and that "if it's a matter of the mailboxes, don't worry, my husband has money and he will pay for the mailboxes."

Wilkes waited in a hospital cubicle with defendant. She seemed happy, talkative, and giggled. Defendant asked about her car and carried on a conversation with the officer, mentioning that she had two daughters. At one point she denied driving, but then admitted she had driven for a few miles. Defendant said her husband was going to "kill" her.

At 10:48 p.m., samples were taken of defendant's blood. Wilkes recalled that afterwards, she asked if she was "pregnant or just drunk[.]" She also asked if she was going to get a DWI. Initial testing indicated that defendant's blood alcohol content (BAC) was between 0.2679% and 0.269%.

The examining physician testified that despite defendant's ability to speak and communicate, she appeared intoxicated, and was confused as to the reason for her hospitalization. At 11:11 p.m., he directed that Wiggins intravenously administer two milligrams of Ativan to defendant to reduce her increasing anxiety. She subsequently calmed, but continued to ramble.

At 11:50 p.m., Somerset County Prosecutor's Office Detective Michael Schutta arrived at the hospital to interview defendant. In the next eighteen minutes, she waived her Miranda4 rights and was questioned.

On tape, defendant confirmed that she knew that she was in Princeton Medical Center, provided her address, date of birth, and social security number. She denied remembering being in an accident; however, she recalled taking Zoloft that morning, acting in a play that day, taking down the set with others in the cast, going to a barbecue, being bored and wanting to leave, and eventually driving away in her SUV.

Defendant made a number of contradictory statements regarding her alcohol consumption: (1) that she had two glasses of wine during her performance or none at all; (2) had a glass of wine after striking the set; (3) had two or three glasses of wine after striking the set, plus some beer; (4) had two or three glasses of wine at the barbecue; (5) had one or two glasses of wine after dinner; and (6) "maybe" had an unspecified amount of wine at the barbecue.

Defendant denied mixing Zoloft and wine. She claimed she was "conservative" in her drinking because she knew she would probably have to drive her daughters home after the barbecue. Defendant did not recall being involved in any collisions that night but added that, "[a]s far as [she] was concerned[,] [her] girls were not in . . . the back seat so . . . [w]hat the f--- [did] [she] care."

Schutta observed that defendant's eyes were bloodshot, her hair disheveled, her speech "somewhat" slurred, and that she smelled of alcohol. After taking her statement, Schutta advised defendant of the charges against her. She was released into police custody at 1:24 a.m. Three days later, she sought medical attention for three broken toes on her left foot and one, perhaps two, rib fractures.

B.

Fred's treating physician, Dr. Vincente Gracias, the Chief of the Trauma and Acute Care Surgery Division, testified that Fred suffered seven rib fractures, pulmonary contusions, bruising of both lungs, and a punctured right lung. Fred's bilateral rib fractures and bruised lungs created a substantial risk of death had he received no medical treatment. Because each broken rib carries a five to ten percent risk of mortality in the over-sixty population, Fred had a thirty-five to seventy percent risk of death without treatment.

Fred remained in the hospital for only thirty-six hours, leaving early in order to attend his wife's funeral services. During the months of his recovery, he was prescribed painkillers and required assistance for all aspects of his day-to-day living, including bathing and dressing.

The forensic pathologist, Dr. Lyla Perez of the Northern Regional Medical Examiner's Office, opined that Helene's cause of death was severe blunt force trauma. She had lacerations, abrasions, and contusions covering her body. Helene's right and left sacroiliac joints were fractured, as were her pelvis and pubic bone. Her spleen and kidney were injured. Helene's left lung and rib cage collapsed, with ten right rib fractures and several left rib fractures.

Helene's brain was swollen, with hemorrhages on both hemispheres. The corpus callosum and right lateral ventricle were lacerated. Her head had dislocated at the base of her skull and first cervical vertebrae causing hemorrhages in her neck; her spinal cord had become compressed and stretched. This type of injury typically causes sudden and usually immediate death.

C.

The posted speed limit on the road at the location of the accident was thirty-five miles per hour. There were no street lights in the immediate vicinity of the Seemans' home, and the roadway had no shoulder. The distance between the intersection of Cherry Valley Road and Cherry Hill Road to the Seemans' home was 873 feet.

When defendant turned right onto Cherry Hill Road, she would have first driven uphill before the road crested and she began to travel downhill towards the Seemans' driveway. Fred was traveling steadily uphill. Both had activated their headlights, and Fred's turn signal was on. Both drivers would have seen the other's headlights at least five seconds before the accident.

Based upon the physical evidence at the scene, the authorities determined that the collision occurred at the apron of Seemans' driveway when the Milan's two front tires were in the driveway and two rear tires were still in the northbound roadway. The SUV, traveling far to the right in its lane of travel, actually brushed the Seemans' mailbox, then struck the passenger side of the Milan.

There were no skid marks indicating that defendant had attempted to brake; nor was there any indication that the front end of her SUV had dipped down as a result of panic braking.

After the crash, the SUV struck a tree and rolled over, eventually righting itself. The Milan also spun and ended up off the road in a grove of trees.

Fred was aware that defendant's SUV was approaching, but thought he had enough time to turn because she was "very, very far away" at the top of the hill. As he turned into his driveway, he felt an "unbelievable explosion, like [they] were hit by a bomb." Fred acknowledged turning very slowly because of the posts and gates on either side of his driveway.

Dr. John Brick, the State's forensic psychopharmacologist specializing in alcohol consumption and its effect on behavior, testified that if defendant began to drink at 5:30 p.m., she would have had to consume between eight to nine-and-a-half glasses of wine (forty-one to forty-eight ounces) to achieve a BAC of .264% (the lowest end of the range reported by the police) when her blood was drawn. He calculated that her BAC was .22% at 9:06 p.m. when she rear-ended Ruckelshaus's car and .23% at 9:15 p.m. when she crashed into the Seemans' car.

Brick opined that defendant's extreme level of intoxication "significantly increased" the likelihood that she would cause a fatal crash. The physical consequences of her intoxication included impairment of her cognition and judgment, and overall slowing of her motor control, eye hand coordination, and reaction time.

Richard Ruth, the State's expert on the operation of event data recorders (EDR), testified that the Milan's EDR revealed that at 4.9 seconds before impact, Fred had begun the process of turning left. During the final five seconds, he alternated between pressing the accelerator and the brake, and his speed slowed from 9.2 miles per hour to about 3.47 miles per hour as he turned. At the time of impact, he had not fully straightened his car.

Defendant's SUV EDR recorded only the final 2.5 seconds before the crash. It indicated she neither accelerated nor braked during this period, but instead was coasting downhill at a steady fifty-three miles per hour or seventy-seven feet per second. After the crash, her vehicle traveled eighty-five feet at thirty-three miles per hour.

Ruth also opined that defendant's SUV's post-impact speed indicated no reduction during the unrecorded final half-second before the crash. There was no evidence she employed her brakes. Defendant would have needed two or three-tenths of a second for maximum braking.

Lieutenant William Pauli of the Somerset County Collision Analysis Reconstruction Team (CART) also testified as an expert in accident reconstruction. Employing EDR-recorded approach speeds, he conducted a time/distance evaluation pinpointing how the two cars were positioned relative to each other leading up to the crash.

Given defendant's initial speed and EDR results, Pauli calculated defendant's speed did not deviate during the final .5 seconds before the crash. He concluded the SUV was 194 feet away from the crash site 2.5 seconds before it occurred.

In order to position the SUV at the five second mark, with only 2.5 seconds worth of data, Pauli extrapolated back using the same speed. He testified this extrapolation was reasonable in the field of accident reconstruction, and that it was accurate under these circumstances, although total precision was not possible. Taking into account the downhill grade of the road, five seconds before the crash defendant's SUV would have been 388 feet away from the crash site.

At the same time, the Milan was forty-seven feet away from the point of impact five seconds before the crash. Fred began his turn at that five second mark. The two vehicles were approximately 435 feet apart five seconds before the accident.

Had defendant been traveling at the posted speed of thirty-five miles per hour, at a distance of 388 feet from the crash site, no accident would have occurred even if she had not braked. The principal contributing factor to the accident therefore was defendant's excessive speed.

Furthermore, defendant was so far to the right of her lane that she would have gone off the road when it subsequently began to curve. The outcome of the accident might have been different had defendant simply steered the SUV four feet to the left, a distance still within her lane of travel.

Pauli also testified that Fred's slow turn into the driveway was appropriate in light of overgrown foliage, the incline and geometry of the road and driveway. Shrubs and trees lined the property, and the foliage encroached into the throat of the driveway.

Defendant presented several witnesses who denied that she was drinking excessively at either the cast party or the barbecue, or that she was visibly intoxicated. Her expert in accident reconstruction, a forensic engineer, Steven Schorr, basically agreed with Ruth's analysis. He did not agree, however, that defendant's SUV would have veered off the road had it continued on the roadway. Schorr also testified that defendant's SUV was traveling at a steady fifty-three miles per hour prior to .5 seconds before the crash.

Schorr maintained that defendant may have attempted to take action during the .5 seconds before impact. He did not believe the lack of physical evidence that she had done so was dispositive.

Schorr conceded that even if defendant had attempted to brake or engage in evasive maneuvers, the vehicle would not have responded quickly enough to avoid the crash. Nor did he dispute that defendant's SUV was 194 feet south of the point of impact 2.5 seconds before the crash. Schorr acknowledged that had defendant been driving at the speed limit, no accident would have occurred.

Schorr opined that defendant would not have been able to see the Milan turning left until 2.5 seconds before the collision. Although the headlights were visible at five seconds, the initiation of the turn was not. Defendant might have been able to perceive and react to the Milan's left turn 2.5 seconds before the impact, but this measurement of time was not enough for "a reasonably prudent driver" traveling fifty-three miles per hour from 194 feet away to avoid the crash. He acknowledged his analysis presupposed that a "reasonably prudent driver" was sober and not fatigued. He also stated that nothing prevented Fred from making a more typical, closer to ninety-degree turn into his driveway. That would have lessened the distance he had to travel across defendant's lane.

II.

A.

At the Miranda hearing, several witnesses testified regarding defendant's consumption of wine and beer, and her conduct both before and after the accident. They included Wilkes, Ruckelshaus, Clifford, Bleistine, Jozwick, Larcombe, and Wiggins.

Daniel Farber, the examining physician at the hospital, testified as to his order that defendant be administered two milligrams of Ativan. He said he prescribed the medication because defendant seemed manic and agitated, and he believed it to be in her best interest to have some moderate sedation. Farber recalled that afterwards she was "markedly more calm[,]" not "manic anymore[,]" and "seemed to start to have an understanding of what had happened that evening."

Farber agreed that at a "sufficient" dosage, Ativan could impact recent memory and is often administered to block recall of unpleasant medical procedures. The amount necessary to reach that level of sedation and memory loss varied by individual. Farber contended that the amount he prescribed for defendant merely calmed her and did not sedate her.

Farber also testified that defendant's liver function test was abnormal, indicating a mildly elevated level of transaminases. This abnormality was consistent with chronic and above average use of alcohol.

When Montgomery Township Detective Brian Hofacker arrived at the hospital at approximately 11:10 p.m., defendant was jovial and happy-go-lucky. He was acquainted with her because she and his wife worked together at a store in Princeton. Defendant seemed intoxicated but they had a brief conversation about their respective families. He told her he could not talk about the accident until after Schutta's arrival. Although Hofacker remained in defendant's cubicle while Schutta read defendant her rights and took her statement, he did not ask any questions.

Schutta denied that defendant was restrained in any way during the interview, which lasted only eighteen minutes. She appeared alert. He acknowledged deliberately failing to tell her about the fatality before taking her statement so that she would speak to him candidly. When told that the accident resulted in a fatality, defendant began to cry, and became quiet when advised of the charges against her.

After defendant gave her formal statement, Officer Michael Strobel of the Princeton Township Police Department unsuccessfully attempted to interview her regarding the Ruckelshaus accident. She could not focus on the questions and kept referring to the Seeman accident.

At the jail, defendant denied having injuries or being under the influence, and filled out the necessary forms without difficulty. Although she seemed upset, Corrections Officer Andrew Klein testified that she was "in her right state of mind." Nurse Yolanda Hernandez, who medically assessed defendant at the jail before admission, also found her to be coherent.

Dr. Robert Pandina testified as defendant's expert in psychology and psychopharmacology. The State did not contest his credentials. He opined that the combination of alcohol and Ativan in defendant's system compromised her cognitive and emotional capacities such that she could not have knowingly and intelligently waived her Miranda rights. She was capable only of "low order processing" rather than "effortful" thinking and decision-making, and would not have understood the significance of many of the questions put to her. Defendant's recollection would have been compromised and she would not have been able to act rationally and appropriately. At her level of intoxication, many would have experienced a total blackout regarding recent events.

Pandina stated that Ativan interacts significantly with alcohol and exacerbates its effects. He opined that the Ativan administered to defendant would have increased her mental and emotional confusion and actually resulted in an amnesiac state.

Pandina disputed the State's interpretation of defendant's liver function test, attributing her elevated enzyme levels to that day's excessive consumption of alcohol. Pandina also acknowledged that he did not interview defendant, and knew nothing of her medical or psychiatric history beyond that which was contained in discovery. He did not review the testimony of other fact witnesses who testified during the Miranda hearing.

B.

In her fifty-eight-page decision denying defendant's motion to suppress, the judge thoroughly summarized the witness testimony. She concluded defendant voluntarily, knowingly, and intelligently waived her Miranda rights.

The judge found that defendant was capable of understanding the nature of the rights being waived, regardless of her intoxication. She carefully described the timeline of the accident, the blood analysis, and the administration of the Ativan some forty-five minutes before her statement was taken.

The judge rejected Pandina's opinion regarding the effect of consuming alcohol and Ativan in this case in light of the witnesses' observations of defendant's demeanor and ability to respond to questions. She was also persuaded that defendant had a high tolerance level for alcohol, given her ability to function, walk, converse, and respond to questions while having a .268 BAC, in addition to the liver function results that suggested chronic alcohol use, and defendant's admission in jail records to drinking beer and wine three times per week.

C.

On appeal, defendant raises the following points of error

POINT ONE

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS MS. LOCANE'S ORAL, RECORDED STATEMENT BECAUSE THE TOTALITY OF CIRCUMSTANCES ESTABLISH THAT SHE WAS UNDER THE INFLUENCE OF ALCOHOL AND ATIVAN AND UNABLE TO KNOWINGLY AND VOLUNTARILY WAIVE[] HER MIRANDA RIGHTS (U.S. Const. amends. V, VI, XIV; N.J. Const., art. I, 1, 9, 10.).

POINT TWO

THE TRIAL COURT ABUSED ITS DISCRETION BY FAILING TO INDIVIDUALLY VOIR DIRE THE JURORS AFTER ONE JUROR BROUGHT TO THE COURT'S ATTENTION INFORMATION ABOUT FACTS NOT IN EVIDENCE WHICH HAD ENTERED DELIBERATIONS. (U.S. Const. amends. VI, XIV; N.J. Const., art. I, 10.).

POINT THREE

THE TRIAL COURT'S INCOMPLETE JURY CHARGE ON CAUSATION AND INTERVENING CAUSES DEPRIVED MS. LOCANE OF HER RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. Const. amends. V, VI, XIV; N.J. Const., art. I, 1, 9, 10.).

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING THE STATE'S EXPERT TO RENDER AN OPINION THAT WAS BASED ON RANK SPECULATION UNDER THE GUISE THAT IT WAS SCIENTIFIC FACT.

POINT FIVE

A FACT WITNESS'S TESTIMONY THAT MR. SEEMAN'S INJURIES CAUSED A "SUBSTANTIAL RISK OF DEATH" WAS IMPERMISSIBLE, AND RENDERED MS. LOCANE'S CONVICTION ON COUNT TWO UNFAIR.

POINT SIX

THE TRIAL COURT ERRED IN FINDING MS. LOCANE GUILTY OF TWO MOTOR VEHICLE SUMMONSES.

POINT SEVEN

THE SENTENCING COURT'S FINDINGS OF FACT WERE GROUNDED IN COMPETENT, REASONABLY CREDIBLE EVIDENCE, THE COURT APPLIED THE CORRECT LEGAL PRINCIPLES AND THE SENTENCE WAS NOT CLEARLY UNREASONABLE SUCH THAT IT SHOCKS THE CONSCIENCE; HOWEVER, THE MATTER MUST BE REMANDED FOR RE-IMPOSITION OF FINANCIAL PENALTIES.

The State's issue on appeal is

POINT VII

DEFENDANT'S SENTENCE MUST BE VACATED FOR RESENTENCING AS IT IS ILLEGAL IN DEPARTING FROM THE MANDATORY-MINIMUM SENTENCE, AS IT FAILED TO MEET THE HIGH STANDARD FOR A DOWNGRADED SENTENCE, AND AS CONCURRENT SENTENCES WERE AN ABUSE OF DISCRETION.

A. Defendant's Sentence is Illegal Because the Judge Did Not Impose the Correct Period of Parole Ineligibility.

B. The Sentencing Court Abused its Discretion in Imposing a Downgraded Sentence, Without an Adequate Basis for Doing So.

C. Consecutive Sentences Should Have Been Applied for the Injuries Suffered by the Two Victims Under the Principles of Yarbough, Carey, and Molina.

We describe the trial judge's charge regarding causation and intervening causes, and the circumstances surrounding his questioning of one juror during deliberations, in the relevant section of this opinion.

III.

Defendant's first point is that the judge who decided the motion to suppress erred when she discounted Pandina's expert opinion, misconstrued the facts in evidence, and improperly ignored Hofacker's influence on defendant's seeming willingness to talk to the authorities. We do not agree.

The State bears the burden of establishing beyond a reasonable doubt that a confession is knowing and voluntary. State v. Nyhammer, 197 N.J. 383, 401 n.9, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). The State similarly bears the burden of proving beyond a reasonable doubt that a defendant waived his rights before making such a statement. State v. Carpenter, 268 N.J. Super. 378, 383-84 (App. Div. 1993), certif. denied, 135 N.J. 467 (1994).

"A suspect's waiver of his [or her] Fifth Amendment right to silence is valid only if made 'voluntarily, knowingly[,] and intelligently.'" State v. Adams, 127 N.J. 438, 447 (1992) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). The determination of the voluntariness of a custodial statement requires an assessment of the totality of the circumstances surrounding the giving of the statement. State v. Roach, 146 N.J. 208, 227, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). A court must look at the characteristics of the suspect, such as his or her age, education, intelligence, and prior encounters with the law. State v. Galloway, 133 N.J. 631, 654-55 (1993); State v. Miller, 76 N.J. 392, 402 (1978). It must also consider the nature of the interrogation, such as whether it was prolonged and resulted in the suspect's mental exhaustion and also, whether the suspect was subjected to physical or psychological coercion. Miller, supra, 76 N.J. at 402. Efforts by a law enforcement officer to persuade a suspect to talk "are proper as long as the will of the suspect is not overborne." Id. at 403.

The intoxication of a defendant does not automatically mean that he or she cannot knowingly and intelligently waive his or her Miranda rights. State v. Warmbrun, 277 N.J. Super. 51, 61-62 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Rather, in applying the totality of the circumstances test, the court must consider whether the defendant spoke freely and with understanding, was able to correctly provide pedigree information, and was capable of narrating the past events and her participation in them. Id. at 62, 64; State v. Bindhammer, 44 N.J. 372, 383-84 (1965). Once a statement is deemed admissible, the fact that defendant was intoxicated affects only the weight of her confession. Bindhammer, supra, 44 N.J. at 383-84.

We engage in a "'searching and critical' review of the record to ensure protection of a defendant's constitutional rights" when assessing the propriety of a trial court's decision to admit a police-obtained statement. State v. Hreha, 217 N.J. 368, 381-82 (2014) (quoting State v. Pickles, 46 N.J. 542, 577 (1966)). Nonetheless, we defer to the trial court's credibility and factual findings because of the trial court's ability to see and hear the witnesses, and thereby obtain the intangible but crucial feel of the case. State v. Maltese, 222 N.J. 525, 543 (2015), cert. denied, ___ U.S. ___, 136 S. Ct. 1187, 194 L. Ed. 2d 241 (2016).

To warrant reversal, a defendant must show that the admission of the statement was error capable of producing an unjust result. Id. at 543. This defendant has failed to do so.

The Mirandized statement must be placed in context. Before it was made, defendant volunteered inculpatory information to numerous witnesses, and the admissibility of those volunteered statements cannot be challenged. Additionally, defendant's BAC established a level of intoxication in excess of three times the legal limit. Indeed, defendant's recorded statement was actually cumulative evidence in light of these circumstances. Hence it could not have produced an unjust result.

It is undisputed that defendant was administered Ativan, and that the drug's effects are magnified when mixed with alcohol. But Farber testified that the dosage given to her was measured to do no more than calm her, and that the medication had the desired effect. He was present and had the opportunity to view defendant before and after the drug was administered defendant's expert was not. By the time defendant was formally interviewed, defendant was able to joke with Schutta, at one point correcting him when he misinterpreted one of her answers. A trial judge always has the option to discount expert testimony at her discretion, and we see nothing untoward in the decision to do so in this case. See State in re W.M., 364 N.J. Super. 155, 169 (App. Div. 2003) (quoting State v. Berry, 140 N.J. 280, 301 (1995)) ("It is well established that the trier of fact is not bound to accept expert opinion[.]").

Additionally, defendant's interrogation was brief. She has not drawn our attention to any point in the interrogation at which Hofacker's presence made a difference nor can she because he did not participate in the formal interview process. Neither the circumstances surrounding the taking of the statement, nor the expert testimony, compel us to find that the admission of the statement was error, or if error, one capable of producing an unjust result.

IV.

Defendant also contends that the trial judge abused his discretion in the management of jury deliberations. The foreperson sent the judge a note advising that "one of the deliberating jurors was involved in a serious car accident several years ago. As a result of this discovery, one of the other jurors feels that the court should be made aware of same." After consulting with counsel, the judge elected to speak only to the juror in question, juror number six. He denied defendant's request that he make further inquiries as to the reason for the concern, or to explore discussions that had taken place in the jury room.

On the record, outside of the presence of other jurors, juror number six said sometime prior to 1974 she was stopped at a stop sign and struck head-on by a car that crossed over the median. No alcohol was involved, and no one was seriously hurt. When asked, the juror responded that the accident did not affect her ability to serve fairly and impartially. The judge then advised the jury that he had addressed the issue, and did not consider it necessary to take further action.

Defense counsel again objected, requesting the judge interview the juror who expressed discomfort about juror number six to the foreperson. After the judge denied the request, counsel then asked the judge to remove juror number six, but did not ask for a mistrial. The judge denied that request as well, and stated he would have denied a mistrial motion had one been made.

The judge observed that if juror number six had remembered the accident during the jury selection, so long as her responses were the same, she would have remained on the panel. So long as she could be impartial regardless of her prior life experiences, she would not have been excused.

On appeal, defendant has a high burden to meet to prevail on this point. "[A]fter deliberations have begun, juror substitution 'should be invoked only as a last resort.'" State v. Jenkins, 182 N.J. 112, 126 (2004) (quoting State v. Hightower, 146 N.J. 239, 254 (1996)). A court's decision to discharge a juror is reviewed under the abuse of discretion standard. State v. Valenzuela, 136 N.J. 458, 470, 472 (1994).

A deliberating juror's expressed inability to be impartial is a personal reason justifying removal. Jenkins, supra, 182 N.J. at 128. When a deliberating juror has declared that he or she is unable to follow the law due to bias, prejudice, or sympathy, the juror must be removed from the jury, and the court must determine whether the circumstances permit substitution with an alternate. Id. at 128-29; State v. Adams, 320 N.J. Super. 360, 367 (App. Div.), certif. denied, 161 N.J. 333 (1999). Neither circumstance exists here.

We see no abuse of discretion in the judge first asking the juror if her life experience affected her ability to be fair and impartial. Having been told it would not, no further action was required. Given the circumstances, the judge did not abuse his discretion by declining to substitute an alternate for that juror and allowing deliberations to continue.

V.

A.

Defendant contends for the first time on appeal that the trial court's instructions regarding intervening causes were erroneous, and that the prosecutor's comments during summation, only one of which was objected to, also prejudiced her on this key issue. It is axiomatic that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Maloney, 216 N.J. 91, 104 (2013) (alteration in original) (quoting State v. Green, 86 N.J. 281, 287 (1981)). Erroneous instructions on "matters or issues that are material to the jury's deliberations" are presumed to be reversible error. State v. Jordan, 147 N.J. 409, 422 (1997); State v. Grunow, 102 N.J. 133, 148 (1986). The presumption of prejudicial error exists even when no objection was raised below by defense counsel. State v. Federico, 103 N.J. 169, 176 (1986).

However, if defense counsel fails to challenge the instructions given, reversal is warranted only where the alleged error was "clearly capable of producing an unjust result." R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005); Jordan, supra, 147 N.J. at 421. Plain error in this context requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Burns, 192 N.J. 312, 341 (2007) (quoting Jordan, supra, 147 N.J. at 422).

A jury charge "must be read as a whole in determining whether there was any error." Torres, supra, 183 N.J. at 564. Moreover, the effect of any error must be considered "in light 'of the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

When causation is at issue, the court must instruct the jury to initially determine whether the State has established "but for" causation, i.e., "that the event would not have occurred absent the defendant's conduct." State v. Buckley, 216 N.J. 249, 263 (2013); N.J.S.A. 2C:2-3(a). In cases involving the mens rea of recklessness, the court must next instruct the jury to conduct a "culpability assessment" as set forth in N.J.S.A. 2C:2-3(c). Buckley, supra, 216 N.J. at 263-64; State v. Pelham, 176 N.J. 448, 460, cert. denied, 540 U.S. 909, 124 S. Ct. 284, 157 L. Ed. 2d 198 (2003).

Pursuant to N.J.S.A. 2C:2-3(c)

When the offense requires that the defendant recklessly . . . cause a particular result, the actual result must be within the risk of which the actor is aware . . . or, if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another s volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

In a vehicular homicide case, the first prong of N.J.S.A. 2C:2-3(c) requires that the jury determine whether the State has proven beyond a reasonable doubt that the defendant understood that the manner in which he or she drove created a risk of a traffic fatality. Buckley, supra, 216 N.J. at 264.

Alternately, the second prong of N.J.S.A. 2C:2-3(c) directs the jury to consider whether the actual result, i.e., the victim's death or injury, was the same kind of injury or harm as the probable result of the defendant's conduct. Id. at 264-65. If so, the jury must then decide "whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result." Pelham, supra, 176 N.J. at 461 (quoting State v. Martin, 119 N.J. 2, 13 (1990)).

The Code does not identify what may qualify as an intervening cause, but "deals only with the ultimate criterion by which the significance of such possibilities ought to be judged." Buckley, supra, 216 N.J. at 265 (quoting Martin, supra, 119 N.J. at 13). An intervening cause is an event that "comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury." Ibid. (quoting Pelham, supra, 176 N.J. at 461). The trial court is obligated to instruct the jury on all supportable intervening causes of an accident. State v. Eldridge, 388 N.J. Super. 485, 497-500 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007).

When the State and the defendant disagree as to what "caused" the victim's death or injury, the court should instruct the jury to consider all facts relevant to the differing theories. Martin, supra, 119 N.J. at 16-17. A summary of the parties' contrasting causation theories is required because "it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result." Id. at 13. But the court may only instruct the jury to "consider . . . that which the law permits it to consider." Buckley, supra, 216 N.J. at 267 (quoting Pelham, supra, 176 N.J. at 466).

Defendant's attorney asked the court to charge the jury that it could consider "the character of the roadway" as an intervening cause because it prevented defendant from detecting that Fred was turning until 2.5 seconds before the crash, by which time it was too late for her to react. The State's position was that defendant's own conduct, speeding, was the reason she did not see Fred making the left-hand turn into his driveway. Even the defense expert agreed that defendant's perceptions were limited in the final five seconds before impact because she was traveling at fifty-three miles per hour. Had defendant been driving the posted speed limit, the two cars would have had an additional 1.28 seconds before impact and the accident might not have occurred.

The court instructed the jury that it was defendant's position that she was not "reckless in failing to . . . perceive, react and avoid the accident, and that not even an attentive driver in her position could have avoided this accident." The trial court thus did not err in identifying defendant's claimed alleged intervening causes. The instruction sufficiently conveyed defendant's theory.

The court also instructed the jury regarding defendant's theory that the manner in which Fred turned was an intervening cause of the accident. The court repeatedly explained to the jury the defense theory that Fred was unreasonably slow in making his turn and failing to yield to an oncoming vehicle, and that his conduct was an intervening act that absolved her of any liability. The judge repeatedly explained it was the State's burden to prove that Fred's driving was not an intervening cause of the death or injury. These instructions were also sufficient.

After a short break, the judge realized that, while he had identified all the motor vehicle offenses the State relied upon as proof of defendant's recklessness, he had omitted reading the motor vehicle statutes that defendant had requested be given as they considered them relevant to Ruckelshaus's and Fred's conduct. The judge then added the following

Ladies and gentlemen, I told you this morning that the State alleged that the Defendant's operation of her motor vehicle was in violation of certain sections of the New Jersey Motor Vehicle Act, and then I read to you those sections and indicated the use to which they could be put in terms of recklessness on the part of the Defendant as alleged.

The Defendant asserts that there was an intervening cause, that's part of the two-part causation consideration; but-for, and then intervening cause. That is that the accident and consequent death and injury was not caused by the recklessness of [defendant], but rather was produced by an intervention of the conduct of [Ruckelshaus] in the operation of her motor vehicle in following [defendant] too close, and whatever other conduct attended that, and the conduct of [Fred] in the operation of his motor vehicle in making a left-hand turn across the northbound lane of Cherry Valley Road as [defendant's] vehicle approached.

I neglected, my fault, to read you those portions of the New Jersey Motor Vehicle Act which describe the conduct of a motorist in circumstances that the defense alleges [Ruckelshaus] and [Fred] were in. So I need to do that now.

The judge then instructed that the left turn statute pertained to the positions of both parties with regard to their driving, and he read the left turn statute. He focused on defendant's theory that Fred's speed and failure to yield while making a left-hand turn "constituted an intervening cause of the accident, subsequent death and injuries."

Defendant now contends that the trial court should have read the jury the model charge on left-hand turns. But a defendant is not entitled to a verbatim recitation of a model charge. State v. W.B., 205 N.J. 588, 621 (2011). A defendant "is entitled only to a charge that is accurate and that does not, on the whole, contain prejudicial error." State v. Labrutto, 114 N.J. 187, 204 (1989).

The court in this case outlined defendant's attribution of liability for the accident to Fred's left-hand turn. That the court chose to rely on the exact language of the statute, N.J.S.A. 39:4-90, rather than the corresponding model charge, was within his discretion and not error. The statute is not complex, nor does it convey complex notions. Reading the statute adequately conveyed the argument to the jury.

The jury requested that the judge reinstruct as to "the law concerning intervening causes[,]" and the judge provided generalized law regarding causation, including a discussion of the but-for test and intervening causes. As the case with all the instructions, no objection was forthcoming. In our view, his explanation was adequate.

In sum, we see no error in the judge's charge to the jury. It clearly summarized defendant's theories and the relevant law. Viewing the charge as a whole, it is clear no error occurred.

B.

Defendant also contends that during summation the prosecutor improperly referred to photos, taken by Pauli, which recreated defendant's view from the interior of her SUV as she approached the Milan five seconds before impact. The prosecutor said that the photos demonstrated that the Milan would have initially appeared motionless, and that this should have prompted defendant to proceed with caution.

This was nothing more than fair comment on Pauli's and Schorr's expert testimony regarding the point at which defendant should have perceived that the Milan was turning. The observations constituted no more than legitimate inferences drawn from the facts and items in evidence. See State v. Perry, 65 N.J. 45, 48 (1974).

During summation, the prosecutor also gave examples of intervening causes, such as if a store owner is shot, and while being removed on a stretcher was killed by a random bullet from an unknown person, that bullet would be an intervening cause and an independent unforeseeable act of a third person. In this case, however, the prosecutor argued that the Seemans were "within the zone of danger, as [were] all of the motorists that day. It's not some independent third person[.]" This and the other examples, although presenting facts different from the ones involved in this case, simply did not have potential to confuse the jury. The jurors knew they had the option of rejecting anything the prosecutor said, including these hypotheticals, and accepting defendant's theory.

Since defendant has not demonstrated error in the prosecutor's closing remarks, we conclude the remarks did not prejudice the fairness of her trial. See State v. Jackson, 211 N.J. 394, 407-09 (202) (quoting State v. Frost, 158 N.J. 76, 83 (1999)) ("[Prosecutorial] misconduct does not warrant reversal unless it is 'so egregious that it deprived the defendant of a fair trial.'").

VI.

Defendant also contends that Pauli's expert opinion was based on "assumptions" that made it unreliable, misleading, and prejudicial. It has been long established that the decision to admit or exclude expert testimony rests within the sound discretion of the trial court. Townsend v. Pierre, 221 N.J. 36, 52 (2015); State v. Berry, 140 N.J. 280, 293 (1995). Such decisions will be reversed only for the abuse of that discretion. Townsend, supra, 221 N.J. at 53.

Pursuant to N.J.R.E. 703, expert opinion must be grounded in facts or data derived from: "(1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts." Townsend, supra, 221 N.J. at 53. In light of the weight that a jury may accord to expert testimony, care must be taken that an expert is not permitted to express "speculative opinions" or "personal views" that are either unfounded in the record or that contradict the record. Id. at 55.

The jury must be apprised of the data and facts an expert has relied upon in formulating his opinion in order to determine the weight, if any, to be given to it. State v. Atwater, 400 N.J. Super. 319, 334 (App. Div. 2008). The jury may reject opinions which are undermined by insufficient factual support. Ibid.

Hypothetical questions may be used in the presentation of expert testimony so long as the questions include facts admitted or supported by the evidence. Townsend, supra, 221 N.J. at 58. When an expert is asked to form an opinion based on a hypothetical set of assumed facts, the facts to be assumed must be in evidence and the expert must indicate which of those facts provides the basis for the opinion. State v. Odom, 116 N.J. 65, 82 (1989).

Defendant now claims that Pauli unfairly speculated as to the location of defendant's SUV five seconds before the crash because he did not have specific information regarding the first 2.5 seconds in his five-second calculation. The testimony was not objected to, and defendant's attorney conceded it was not objectionable.

Pauli opined that the SUV was traveling at the same rate over the five seconds before the crash because of the absence of evidence of hard acceleration or deceleration, the recorded engine revolutions per minute (RPMs) indicative of coasting, and the downhill grade of the road. This point lacks merit as the factors seem an unimpeachable basis for the conclusion.

Defendant also contends, as she did below, that Pauli had insufficient data to place the SUV at 388 feet five seconds from the point of impact. We do not agree, as the rate of speed allowed for the calculation. Ultimately, Pauli's point was that had defendant been driving the legal speed limit of thirty-five miles per hour, a change in only one variable, she would not have hit the Seemans' vehicle.

Even defendant's own expert did not challenge that portion of Pauli's testimony. Schorr said that if in drawing the calculations the only change was in the speed of the SUV, then Pauli's conclusion was correct.

Thus the judge properly exercised his discretion in admitting the testimony. It was based on data properly derived from the vehicles in question, their path of travel, and calculations typically employed by experts in the field. The opinions were neither speculative nor misleading. See Townsend, supra, 221 N.J. at 53.

VII.

"Bodily injury" is defined as "physical pain, illness or any impairment of physical condition[.]" N.J.S.A. 2C:11-1(a). "Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death[,] or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(b).

"[A] determination of whether the victim was subjected to a substantial risk of death requires the primary focus to be upon the nature and extent of the injury rather than on the effectiveness of medical treatment[.]" State v. Turner, 246 N.J. Super. 22, 27 (App. Div.), certif. denied, 126 N.J. 335 (1991).

A trial court is vested with considerable latitude in determining whether to admit evidence, and that determination will only be reversed on appeal if it constitutes an abuse of discretion. State v. Kuropchak, 221 N.J. 368, 385 (2015); accord State v. Rose, 206 N.J. 141, 157 (2011); State v. Marrero, 148 N.J. 469, 484 (1997). Moreover, "if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" Rose, supra, 206 N.J. at 157 (quoting R. 2:10-2).

Defendant also contends that Gracias's testimony regarding Fred's injuries was prejudicial and inadmissible. Treating physicians are "doubtless 'experts,'" but "are more accurately fact witnesses" when testifying about the care they render to a patient. Stigliano v. Connaught Labs. Inc., 140 N.J. 305, 313-14 (1995). Due to their unique status, our Supreme Court had adopted an expansive view of the scope of questions which may be asked of a treating physician. Hutchinson v. Atlantic City Med. Ctr., 314 N.J. Super. 468, 479 (App. Div. 1998). They may testify about any subject relevant to a patient's diagnosis, treatment and prognosis without being qualified as an expert. Stigliano, supra, 140 N.J. at 314; Carchidi v. Iavicoli, 412 N.J. Super. 374, 381 (App. Div. 2010); Ginsberg v. St. Michael's Hosp., 292 N.J. Super. 21, 32-33 (App. Div. 1996).

In another context, our Supreme Court has recently characterized the distinction between a treating physician's fact and opinion testimony as artificial. See Delvecchio v. Twp. of Bridgewater, 224 N.J. 559, 577 (2016). Under Rule 701, a treating physician may testify as to any subject relevant to the evaluation and treatment of their patients. Delvecchio, supra, 224 N.J. at 577-78.

In this case, Gracias's treatment of Fred's multiple rib fractures, bruises, and lung injuries was predicated on his opinion that they were life-threatening. The testimony, not objected to at trial, detailed not only the extent of the injuries, but the nature of the care.

The prosecutor asked Gracias whether the injuries resulted in a substantial risk of death, to which Gracias gave an affirmative response. He explained that the mortality calculation, based on the number of rib fractures in a patient over sixty, made Fred's risk of death between thirty-five and seventy percent had there been no medical intervention. Clearly, the testimony satisfied an element of the offense, the nature of the injuries. But it did not do so prejudicially because it did not address the ultimate issue of defendant's guilt, which required the determination of other factors.

The jury asked for a reinstruction on the difference between bodily injury and serious bodily injury as well as a read-back of Gracias's testimony. After listening to the instruction and the read-back, the jury sent out another note requesting an explanation of the term "substantial risk of death." The court then told the jury that substantial risk of death meant a probability of death without medical intervention.

Defendant is correct that the questions indicated that the jury was wrestling with the issue but that, after all, is their obligation during deliberations. The conclusion that the jury improperly relied upon Gracias's testimony is sheer speculation. If it was reliance, it was not improper.

The Court's expansive view of the scope of questions that may be asked a treating physician included the mortality calculations Gracias made in this case. The jury also heard that Fred left the hospital after only thirty-six hours, a fact that, on its face, ran contrary to the notion his injuries were life-threatening. In order to satisfy the statutory elements of the offense, the State had to present the evidence on the issue, to which defendant did not object. We see no abuse of discretion in Fred's treating physician's admission of testimony.

VIII.

Additionally, defendant argues that she should have been acquitted of the DWI in Princeton Township as well as the DWI in a school zone. The State did not produce a map in order to pinpoint the site of defendant's collision with Ruckelshaus's vehicle, which defendant now claims means the State failed to prove the elements of the offense. Defendant further contends that instead of merging the Princeton Township DWI with the Montgomery Township DWI in a school zone, the prosecution should have been limited to one offense, as the night's events included one course of conduct. We do not agree.

Defendant's act of driving, obviously, was interrupted by her collision with Ruckelshaus's vehicle. That break in time made the act of drunken driving two separate events in two municipalities, not one. See State v. Metcalf, 166 N.J. Super. 46-48 (App. Div. 1979). In Metcalf, the defendant engaged in two episodes of drunk driving during one evening, separated by an arrest, and was found guilty of two offenses as opposed to a single unitary continuous offense. Id. at 47-48. Here the Ruckelshaus accident effectively divided defendant's course of conduct into two separate episodes of wrongdoing. Defendant, who stopped her vehicle and engaged in conversation with the other driver, could have chosen to stop driving after the first accident.

We conclude that not only was the prosecution of two offenses proper, merger was inappropriate. Had the offenses been correctly treated as two motor vehicle convictions, defendant would have been sentenced as a second offender, required by law, to the Montgomery Township charge. Accordingly, we vacate the sentence as to the two charges and direct that defendant be resentenced in accord with this opinion.

Officer Strobel testified that a school was located within 1000 feet of the intersection where the accident occurred. That suffices, as the statute does not require the production of a map. See N.J.S.A. 39:4-50(g)(1). Accordingly, the State's proofs were adequate.

IX.

Turning to the State's appeal, we conclude that the trial court did not comply with the mandatory sentence provisions found in N.J.S.A. 2C:11-5(b)(1). The statute requires a defendant convicted of second-degree vehicular homicide to serve a minimum term of imprisonment of three years, even when sentenced as a third-degree offender. The sentence was illegal and must be corrected.

On appellate review of a sentence, we employ a deferential standard. We ask if legislative guidelines have been followed, if competent credible evidence supports each finding of fact upon which the judge based his sentence, and determine whether application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). We do not substitute our judgment for that of the trial court. State v. Lawless, 214 N.J. 594, 606 (2013). We must determine, however, whether the court properly assessed aggravating and mitigating factors. State v. Bieniek, 200 N.J. 601, 607-09 (2010).

At the sentencing hearing, the trial judge understandably focused on defendant's younger child, who suffers from Crohn's Disease, among other significant issues. The condition was exacerbated by her mother's absence. The judge as a result gave great weight to mitigating factor eleven, the impact defendant's incarceration would have on the child, N.J.S.A. 2C:44-1(b)(11). Unfortunately, the judge did not sufficiently explain his reasons for the downgrade.

N.J.S.A. 2C:44-1(f)(2) provides that

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

A judge is required to engage in a two-part analysis before imposing a downgrade. State v. Megargel, 143 N.J. 484, 495 (1996).

Our Supreme Court has cautioned that

in sentencing under [N.J.S.A. 2C:44-1(f)(2)], a court must apply the basic principles that are applicable to all sentencing decisions under the Code. It is therefore, paramount that the sentence reflect the Legislature's intention that the severity of the crime now be the most single important factor in the sentencing process. The focus on the offense rather than the offender is inexorable in formulating a sentence. The paramount reason we focus on the severity of the crime is to assure protection of the public and the deterrence of others. The higher the degree of the crime, the greater the public need for protection and the more need for deterrence.

[Id. at 500 (emphasis added) (citations omitted).]

In evaluating the severity of the crime, the trial court must consider "the nature of and the relevant circumstances pertaining to the offense[,]" such as whether it was very similar to a lower degree offense. Ibid. The court should also consider "facts personal to the defendant" that are offense-specific, such as whether the defendant played a primary or secondary role in the incident. Id. at 501.

However, determining the "interest of justice" does not include consideration of the defendant's overall character. Id. at 499; State v. Lake, 408 N.J. Super. 313, 328-29 (App. Div. 2009). N.J.S.A. 2C:44-1(f)(2) is an "offense-oriented" provision. Lake, supra, 408 N.J. Super. at 328. The primary focus of the inquiry should remain on the severity of the crime and not the defendant's personal circumstances. State v. Read, 397 N.J. Super. 598, 612 (App. Div.), certif. denied, 196 N.J. 85 (2008).

In addition to applying general sentencing principles, a court must assess whether there exists a "compelling reason to downgrade defendant's sentence in the interest of justice[.]" Megargel, supra, 143 N.J. at 501. This reason must be "in addition to, and separate from," the applicable mitigating factors which substantially outweigh the aggravating factors under the first prong of the two-part analysis. Id. at 502.

It is essential that a trial court "clearly identify the relevant sentencing factors and describe how it exercised its discretion balancing these factors." Ibid. A trial court should also state why sentencing the defendant to the lowest permitted sentence for the particular offense for which she was convicted is not a more appropriate sentence than a downgraded sentence under N.J.S.A. 2C:44-1(f)(2). Ibid.

The trial judge did not identify compelling reasons to downgrade defendant's second degree offense, other than the harm defendant's children were likely to experience as a result of her incarceration. He also found that defendant no longer posed a risk to the public, but neither the rationale for the conclusion nor the record support for it were fully stated.

Furthermore, in State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court emphasized that sentencing courts "should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing."

Sentencing courts are required to identify and weigh the appropriate mitigating and aggravating factors in determining whether sentences should run concurrently or consecutively in order to facilitate appellate review. State v. Miller, 108 N.J. 112, 122 (1987). When imposing either consecutive or concurrent sentences, the court's "focus should be on the fairness of the overall sentence[.]" State v. Abdullah, 184 N.J. 497, 515 (2005) (quoting Miller, supra, 108 N.J. at 122). Significantly, "[t]he 'no free crimes' guideline does not require the court automatically to impose consecutive sentences for multiple offenses." State v. Rogers, 124 N.J. 113, 121 (1991). But all of the Yarbough guidelines must be considered, with special emphasis placed on the five subparts to the third guideline. Ibid. These subparts should be applied qualitatively, and consecutive sentences may be imposed even though a majority of the subparts support concurrent sentences. State v. Carey, 168 N.J. 413, 427-28 (2001). We are troubled by the absence of discussion regarding the fact defendant's conduct affected two victims. A more expansive assessment of the Yarbough factors is necessary to explain the concurrent sentences in light of the grave harm inflicted on them.

Finally, defendant claims that the judge's imposition of a $15,000 VCCB penalty, although also within the range, lacked any adequate explanation. We agree. The judge made no comment regarding his imposition of the fine. This aspect of the sentence is also vacated.

A new sentence hearing must take place. Other than requiring the court to remain within legal confines when sentencing, and to comprehensively explain the reasons for sentence, we take no position regarding any new sentence.

Affirmed as to the convictions, vacated as to the sentence and the $15,000 VCCB penalty. The matter is remanded for resentence.


1 The indictment charged her with first-degree manslaughter, N.J.S.A. 2C:11-4.

2 Defendant's careless driving, N.J.S.A. 39:4-97, conviction was merged with the reckless driving charge.

3 We refer to the Seemans by their first names for ease of reference and mean no lack of respect by the usage.

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