State v. Scher

• Decision Date: 23 December 1994
• Citation: 650 A.2d 1012,278 N.J.Super. 249
• Parties: STATE of New Jersey, Plaintiff-Respondent/Cross-Appellant, v. Gerald SCHER, Defendant-Appellant/Cross-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 249

278 N.J.Super. 249

650 A.2d 1012

STATE of New Jersey, Plaintiff-Respondent/Cross-Appellant, v. Gerald SCHER, Defendant-Appellant/Cross-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Nov. 16, 1994.

Decided Dec. 23, 1994.

Gerald L. Shargel, New York City, for appellant/cross-respondent (Mr. Shargel and Vivian Shevitz, New York City, admitted pro hac vice, and Hellring, Lindeman, Goldstein & Siegal, attorneys; Richard D. Shapiro, Newark, on the brief).

John J. Scaliti, Asst. Bergen County Prosecutor, for respondent/cross-appellant (John J. Fahy, Prosecutor, attorney).

Before Judges GAULKIN, BAIME and ARIEL A. RODRIGUEZ.

The opinion of the court was delivered by

BAIME, J.A.D.

Following a protracted trial, a jury found defendant guilty of reckless manslaughter ( N.J.S.A. 2C:11-4b(1)), vehicular homicide ( N.J.S.A. 2C:11-5), aggravated assault ( N.J.S.A. 2C:12-1b(1)), and three counts of assault by auto ( N.J.S.A. 2C:12-1c). In the same proceedings, the trial judge found defendant guilty of driving while intoxicated ( N.J.S.A. 39:4-50), operating a motor vehicle while on the suspended list ( N.J.S.A. 39:3-40), presenting a false license to a police officer ( N.J.S.A. 39:3-38.1b), and driving a motor vehicle while unlicensed ( N.J.S.A. 39:3-10). The trial judge merged the convictions for vehicular homicide, assault by auto, and driving while intoxicated. On the remaining convictions, the trial judge imposed an aggregate sentence of seventeen years with an eight year parole ineligibility term. Defendant was fined $213,000.

On appeal, defendant argues that (1) he was denied an opportunity to exercise a peremptory challenge because a juror failed to disclose he was related to persons involved in law enforcement, (2) his conviction for reckless manslaughter should be reversed because the statute is vague, the evidence was insufficient, and the jury instructions were faulty, (3) the trial judge erred by failing to enter a judgment of acquittal on the aggravated assault count, (4) the trial judge abused his discretion when he barred a defense expert from testifying, and (5) the sentence is excessive. The State cross-appeals, challenging several of the trial judge's evidentiary decisions. The State also asks us to unmerge defendant's convictions for assault by auto.

While we find technical errors in the sentences imposed, we discern no basis to reverse defendant's convictions. On the cross-appeal, we reinstate defendant's convictions for assault by auto.

I.

The convictions arose out of an automobile accident in which a Mercedes Benz roadster driven by defendant traversed the grass median of the Palisades Interstate Parkway and collided with two oncoming vehicles. Wayne Commins, the driver of one of the automobiles, was killed instantly and others were seriously injured.

The facts were hotly disputed at trial. The State contended that defendant caused the accident by driving recklessly while intoxicated. Defendant claimed that he lost control of the Mercedes when it was struck by another car.

The State's proofs were substantial. In the early evening hours of May 11, 1990, defendant was observed driving a Mercedes roadster erratically in the southbound lanes of the Palisades Interstate Parkway. Arthur Lair, a motorist who was passed by defendant, estimated that the Mercedes was traveling at 85 m.p.h. Others at the scene confirmed his account. According to Lair, defendant was driving in the left lane, flashing his headlights as a signal to let him pass. Lair testified that when a maroon "Japanese-type car" traveling in the left lane at approximately 55 m.p.h. did not move immediately to the slower lane, defendant attempted to pass on the right. Lair recounted that the maroon car simultaneously moved into the right lane, causing defendant to swerve the Mercedes into the entrance path leading to an Exxon gasoline station. As the Mercedes veered toward the gasoline pumps, defendant "jerked" the steering wheel to the left, causing the automobile to "fishtail" and swerve across the southbound lanes and the center median into oncoming traffic.

Alexander Arbit was traveling in one of the northbound lanes when he observed the Mercedes crossing the grass median at "tremendous speed." As Arbit watched in horror, the side of the Mercedes crashed into Commins' Mercury Lynx, sending it careening across the highway. The Mercedes then wildly gyrated, striking the front of Arbit's van.

Lair immediately pulled his car onto the shoulder to render assistance. He first encountered defendant, trapped in the front seat of the Mercedes. According to Lair, defendant was moaning incoherently and, at one point, claimed to be a New York sheriff's officer. Florence Hessen, defendant's fiancee and the owner of the Mercedes, was trapped in the passenger seat and also appeared to be seriously injured.

Police Officer John Elliott responded to the scene within minutes of the accident. Elliott first approached Commins in the front seat of the Mercury. Finding no vital signs, Elliott directed his attention to the van where he found Arbit and several passengers, all with substantial injuries. Elliott next proceeded to the Mercedes where he noticed the strong odor of alcohol on defendant's breath. Eventually, firefighters extricated defendant and Hessen from the Mercedes and transported them to the Hackensack Medical Center.

Police Officer Paul Abbott was dispatched to the hospital where he found defendant in the emergency room. Abbott smelled alcohol on defendant's breath and noticed that his eyes were red and his skin was pale. Defendant told Abbott that the Mercedes had suddenly accelerated, causing him to lose control of the vehicle.

We briefly digress to note that defendant provided similar explanations of mechanical failure to others in the days immediately following the accident. In a conversation with Commins' brother, defendant said "there was some sort of physical deficiency with the car" and that there was a possibility the brakes had locked. Defendant offered essentially the same explanation to his insurance agent. Defendant also attributed the accident to a mechanical failure in an insurance claim form he signed approximately one month after the accident. In none of these accounts did defendant mention that the Mercedes was struck by another automobile.

While at the hospital, Abbott obtained two vials of defendant's blood. Tests performed at the State Police Laboratory revealed a .163 blood alcohol content. Emergency room personnel also took a blood sample which yielded an alcohol content of .175. Dr. Ram Setia, one of defendant's treating physicians, decided to postpone surgery for arterial bleeding because he was concerned defendant might react negatively to the mix of anesthesia and alcohol. Dr. Setia also testified that defendant was violent, "cursing and kicking at" medical and nursing personnel.

At trial, the State presented evidence indicating that an individual with a blood alcohol of .163 would be severely intoxicated and his reflexes, distance and depth perception, peripheral vision, and judgment and motor skills would be significantly impaired. It was estimated that a person having a .163 blood alcohol would be twenty five times more likely to be involved in a motor vehicle accident than if he were sober. The State's expert testified that a person of defendant's weight would have to drink a minimum of 33 ounces of wine in order for his blood alcohol to reach .163 Much of the State's evidence consisted of accident reconstruction testimony. We need not describe this evidence in detail. Through skid and yaw marks left by the Mercedes on the road and the median, investigators traced the car's path across the southbound and northbound lanes of traffic to the points of impact. Utilizing "drag" tests and computer models, the State's experts estimated that the Mercedes was traveling at 80 m.p.h. when it began its slide across the southbound lanes.

Defendant did not testify. However, he presented witnesses whose testimony differed markedly from the State's version of the incident. Hessen testified that she met defendant at his home in Alpine shortly before the accident. After consuming a cocktail, defendant dismissed his chauffeur and departed with Hessen in her car for a business meeting in Mountainside. Because Hessen had driven a substantial distance that afternoon, defendant agreed to drive. According to Hessen, defendant was traveling at approximately 62 m.p.h. when he attempted to pass a small red car that was proceeding slowly in the left lane. Hessen recounted that as defendant steered the Mercedes into the right lane the red automobile simultaneously moved in the same direction, "clipp[ing] the front left part of [Hessen's] car." Hessen then felt the Mercedes accelerate, "shimmying" and "rocking" back and forth as it crossed the southbound lanes and the center median.

The State presented evidence that at the hospital, Hessen mentioned to defendant's friend, Leslie Halle, she intended to tell the authorities she was driving the Mercedes at the time of the accident. Halle's wife testified that after her husband was subpoenaed by the State, a defense investigator, William Sewell, asked her to "influence" her husband not to testify. Sewell reminded Mrs. Halle that defendant had given her husband substantial amounts of money and had permitted him to say he worked for defendant's company when that was untrue.

The defense presented expert witnesses who challenged the accuracy of the State's blood test results. The defense also attacked the State's accident reconstruction evidence. We need not describe these proofs in detail. Suffice it to say that much of the defense evidence was countered by the State's experts in rebuttal.

II.

We first consider defendant's argument that he was deprived of the opportunity to exercise a peremptory challenge during the voir dire because a juror...