State v. Green

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Decision Date: 04 April 2023
• Docket Number: A-1158-19
• Citation: State v. Green, A-1158-19 (N.J. Super. App. Div. Apr 04, 2023)
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. CARLOS GREEN, Defendant-Appellant.

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

No. A-1158-19

Superior Court of New Jersey, Appellate Division

April 4, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Argued March 8, 2023

On appeal from the Superior Court of New Jersey, Law Division Essex County, Indictment No. 15-10-2268.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney Brian P. Keenan, of counsel and on the briefs).

Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney Daniel Finkelstein, Deputy Attorney General, of counsel and on the brief).

Before Judges Currier and Mayer.

PER CURIAM

Defendant appeals from an October 7, 2019 judgment of conviction after a jury found him guilty of first-degree vehicular homicide. He also challenges the sentence imposed. We affirm defendant's conviction but remand for resentencing.

We recite the facts from an evidentiary hearing and the trial testimony. On December 27, 2014, around 11:50 p.m., Keyona Barr was in a first-floor apartment located on the northeast corner of 19th and Ellis Avenues in Irvington.^[1] After hearing noise from a car that sounded like "it was going fast," Barr looked out a window and saw a man, who appeared to be drunk, standing near the street. Barr knew the man, Billy Ray Dudley, from the neighborhood. According to Barr, she spoke to Dudley for about five minutes and told him to go home "cause he was intoxicated." Dudley then walked toward the intersection of 19th and Ellis Avenues. Barr described the intersection as dark and "bumpy" with no streetlights. However, she subsequently testified there was a streetlight illuminating the intersection and she saw the incident clearly.

Barr saw Dudley start to cross the street but turned her head away "[j]ust for like one second." When she turned her head back, Barr saw Dudley fall on his back while he was traversing the intersection. Five seconds later, Barr saw Dudley run over by a car. Barr watched as the driver of the car^[2] "pull[ed] off to leave." According to Barr "[e]verybody started coming out . . . screaming for the car to stop, to turn back around." After traveling about ten feet along neighboring Grove Street, the car stopped, drove in reverse, and returned to the accident scene.

Barr testified the driver of the car appeared intoxicated because he stumbled and slurred his speech. She further stated the crowd yelled at the driver and she screamed "look what you did, you killed him, you ran Billy over." Barr later identified the car that struck Dudley on a surveillance video.

Officer Shantay Porter of the Irvington Police Department arrived first at the accident scene. Upon arrival, Porter saw "an African/American male laying on his back with his head smashed in." When she checked, the man had no pulse. Officer Porter testified the area was well lit with street lighting. In addition, Officer Porter explained that the lights from the car that hit Dudley and her own patrol car also illuminated the scene.

The officer saw defendant standing next to the vehicle stopped in the intersection and asked him what happened. According to Officer Porter, defendant said "he was driving and he stopped to talk to a friend, and then someone told him that he had hit someone, so he went back to the incident location."

While speaking with defendant, Officer Porter noticed his eyes were "bloodshot red" and "he smelled of alcohol." As a result of her observations, Officer Porter concluded defendant drank alcohol "that day." After speaking with defendant while standing in the street, the officer decided to place him in her patrol car "[b]ecause the victim was known in the neighborhood, and [she] wasn't sure if it was safe for [defendant] to be standing outside at that particular moment."

After helping other officers at the scene, Officer Porter drove defendant to the hospital, where he signed a consent form for a blood alcohol content (BAC) test. The consent form did not explicitly state that defendant had the right to refuse the BAC test.

The blood draw occurred at 2:50 a.m. on December 28, 2014, just a few hours after the accident. Michael Baklarz, a forensic scientist with the New Jersey State Police, testified defendant's blood sample contained "0.210 percent grams per deciliter of ethyl alcohol or drinking alcohol plus or minus 0.003 grams per deciliter."

Defendant also consented to a search of his car at the accident scene. During that search, the police discovered an open bottle of rum. The bottle was three-quarters full of alcohol.

On October 2, 2015, an Essex County Grand Jury returned Indictment No. 15-10-2268, charging defendant with first-degree vehicular homicide, N.J.S.A. 2C:11-5B(3)(a). Defendant filed a motion to suppress the blood draw evidence and alcohol found in his car.

The motion judge denied the suppression motion. Regarding the blood evidence, the judge found defendant voluntarily consented to the blood test. She further concluded that the absence of explicit language stating defendant could refuse to consent to the blood test was not dispositive because there was no legal requirement to provide such information. Additionally, the judge noted defendant had two prior convictions for driving while intoxicated, suggesting defendant fully understood his rights. Because defendant signed the form giving consent to the search of his car, the judge admitted the evidence found in the car.

Prior to trial, the State moved to admit defendant's statements to Officer Porter as a statement by a party opponent under N.J.R.E. 803(b)(1). A different judge conducted an evidentiary hearing on the State's motion.

At the hearing, Officer Porter testified that when she arrived on scene, someone identified the car positioned in the intersection as the vehicle that struck Dudley. Officer Porter stated she approached defendant and asked if the car stopped in the intersection was his and if he was the driver of that car. When defendant responded "yes" to both questions, Officer Porter asked what happened. According to the officer, defendant said someone told him he hit a person, so he returned to the scene. Officer Porter explained that due to the growing number of onlookers at the scene, and because she was concerned for defendant's safety, she placed defendant in her patrol car.

While seated in the patrol car, a different officer asked defendant if he had been drinking. Defendant replied he had two or three beers. During these inquiries, defendant was not free to leave because the police were actively investigating the accident.

On May 16, 2019, the judge granted the State's motion in part. She allowed the State to admit defendant's statements to the police limited to the statements he made before entering the police car. The judge found Officer Porter to be "very candid in her testimony." The judge determined that the questions asked by Officer Porter prior to placing defendant in the patrol car were investigative and the probative value of defendant's responses substantially outweighed any potential prejudice. However, the judge suppressed defendant's statements made after he entered the patrol car.

The judge who decided the State's motion to admit defendant's statements also presided over the three-day jury trial. During opening statements, defense counsel told the jury that, at the time of the accident, both the street and victim's clothing were dark. Counsel described the events as "a tragic accident." Barr and Officer Porter testified as previously summarized.

Dr. Lyla Perez, a physician who conducted autopsies under the supervision of the State Medical Examiner, testified as an expert in forensic pathology. Dr. Perez performed Dudley's autopsy. She confirmed Dudley was wearing dark clothing on the night of the accident. Based on the toxicology test results, Dr. Perez testified that Dudley had "fairly high levels" of alcohol in his system at the time of the accident. Additionally, Dr. Perez described Dudley's "extensive injuries to the head area and face [and] a lot of blood coming from both ears, and also lacerations of the face and the chin and the hairline and the ear, the left side." She explained her findings were the result of a crush injury.

Dr. Perez further testified that some of Dudley's injuries appeared to be caused by a car tire and such injuries would not have produced a "large amount of blood splatter." Dr. Perez opined Dudley died of "[c]ranial, cerebral and rib injuries."

Lieutenant Cokelet from the Crash and Fire Investigations Unit in the Essex County Prosecutor's Office also testified. He described his specialized training regarding fatal motor vehicle accident investigations and told the jury he had investigated hundreds of fatal car crashes.

Lieutenant Cokelet testified that, on the night of the accident, he smelled alcohol on defendant's breath and heard defendant slur while speaking. He also described defendant's eyes as "glassy and bloodshot." Based on these observations, the lieutenant concluded defendant was "under the influence of alcohol."

Lieutenant Cokelet also testified there was surveillance video footage from two separate cameras affixed to a business located on the southwest corner of the intersection where the accident occurred. Lieutenant Cokelet described what he saw on the surveillance video for the jury. According to Cokelet defendant's car travelled "westbound past the scene and then stop[ped], and then . . ....