STATE OF NEW JERSEY v. SCOTT M. HAHN (16-09-1174, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4755-18

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

August 17, 2022
v.
APPELLATE DIVISION

SCOTT M. HAHN,

Defendant-Appellant.
_______________________

Argued March 30, 2022 – Decided August 17, 2022

Before Judges Messano, Accurso and Marczyk.

On appeal from the Superior Court of New Jersey,
Law Division, Hudson County, Indictment No. 16-09-
1174.

Marcia Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Marcia Blum, of counsel
and on the brief).

Patrick R. McAvaddy, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez, Hudson
County Prosecutor, attorney; Patrick R. McAvaddy, on
the brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.
 On Monday afternoon, February 22, 2016, defendant Scott Hahn exited

the Holland Tunnel from New York City and drove southbound on the New

Jersey Turnpike extension toward the toll booths at Interchange 14C in Jersey

City. Timothy O'Donnell was also proceeding southbound and stopped his car

to obtain a toll ticket at the left-most toll booth; his five-year-old daughter was

in the backseat. Defendant's car slammed into the O'Donnell car, propelling it

into oncoming traffic, where there was a second collision with an ambulance

van. O'Donnell was pronounced dead at the scene; his daughter died en route

to the Jersey City Medical Center.

A Hudson County grand jury returned an indictment charging defendant

with two counts of first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a)

(counts one and two), two counts of second-degree vehicular homicide,

N.J.S.A. 2C:11-5(a) (counts three and four), one count of third-degree

possession of gamma hydroxybutyrate (GHB), N.J.S.A. 2C:35-10.2(a) (count

five), and one count of third-degree possession of a controlled dangerous

substance, gamma-butyrolactone (GBL), N.J.S.A. 2C:35-10(a)(1) and (3)

(count six). A jury convicted defendant of all counts.

The judge denied defendant's motion for judgment notwithstanding the

verdict or alternatively a new trial. After merging the vehicular homicide

convictions into the aggravated manslaughter convictions, the judge sentenced

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defendant to consecutive sixteen-year terms of imprisonment subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge imposed

concurrent five-year terms of imprisonment on the two drug convictions but

ordered they run consecutive to the manslaughter convictions. In the

aggregate, the judge imposed a thirty-seven-year term of imprisonment, with a

twenty-seven-year, two-month, and eleven-day period of parole ineligibility.

Defendant raises the following issues for our consideration:

POINT I

DEFENDANT'S STATEMENT MUST BE
SUPPRESSED BECAUSE THE POLICE FAILED TO
HONOR HIS ATTEMPTS TO EXERCISE HIS
MIRANDA[1] RIGHTS AND WITHHELD
INFORMATION ESSENTIAL TO AN INFORMED
WAIVER OF HIS RIGHTS, RESULTING IN A
WAIVER THAT WAS NEITHER KNOWING AND
INTELLIGENT NOR VOLUNTARY. [2]

POINT II

THE OMISSION OF A CHARGE ON SECOND-
DEGREE MANSLAUGHTER AS A LESSER-
INCLUDED OFFENSE OF FIRST-DEGREE
AGGRAVATED MANSLAUGHTER IS
REVERSIBLE ERROR. (Not Raised Below)

1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
We have eliminated the subpoints in defendant's brief.

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 POINT III

THE ASSURANCE THAT THE EXPERT OPINIONS
OF THE STATE'S PSYCHOPHARMACOLOGIST
AND ITS ACCIDENT-RECONSTRUCTIONIST
WERE BASED ON "A REASONABLE DEGREE OF
SCIENTIFIC CERTAINTY" VIOLATED
DEFENDANT'S RIGHT TO DUE PROCESS AND A
FAIR TRIAL. (Not Raised Below)

POINT IV

THE SENTENCE OF [THIRTY-SEVEN] YEARS,
[TWENTY-SEVEN] YEARS AND TWO-AND-
[ONE]-HALF MONTHS WITHOUT PAROLE, IS
BASED ON FLAWED FINDINGS OF
AGGRAVATING AND MITIGATING FACTORS
AND A FAILURE TO CONSIDER THE OVERALL
FAIRNESS OF THE CONSECUTIVE, AGGREGATE
TERM, AND IS EXCESSIVE.

We affirm in part, reverse in part, and remand for further proceedings

consistent with this opinion.

I.

The State's evidence at trial included data retrieved from defendant's

Mercedes. The vehicle's computer revealed defendant's car was going fifty-

three miles per hour when the crash occurred. Subsequent investigation of the

Mercedes revealed no defects or mechanical problems that may have caused

the crash.

Defendant told a responding New Jersey State Police (NJSP) Trooper

that he had a seizure, and he was taken by ambulance to the Jersey City

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Medical Center. Although he denied at the scene having taken any drugs,

defendant acknowledged at the hospital emergency room that he took an

amphetamine, Adderall, over the weekend. Blood drawn from defendant

pursuant to a warrant approximately four hours after the crash revealed the

presence of methamphetamines, amphetamines, and GHB.

The day after the crash, while still hospitalized, defendant waived his

Miranda rights and provided a formal audio statement to Detective Adam

Brozek, assigned to the NJSP Homicide North Unit. Among other things,

defendant admitted having ingested Adderall over the prior weekend. The

statement was played for the jury, and we discuss further its contents b elow.

A search of defendant's car pursuant to a warrant resulted in the recovery

of an eyedropper bottle from the passenger side floorboard and a clear plastic

bottle under the driver's seat, both containing liquid. The eyedropper bottle

contained GBL, and the plastic bottle contained mostly GHB with a small

portion of GBL. The State's expert forensic toxicologist, Bridget Verdino,

explained GHB is an illegal central nervous system depressant taken to

produce euphoria, but once the euphoria wears off, the drug causes

"drowsiness, dizziness, and overall depression of heart rate, blood pressure,

[and] loss of motor coordination." GBL is a precursor drug that becomes GHB

when ingested.

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 Dr. Robert Pandina, the State's expert in psychopharmacology who

specializes in the effects of drugs on human physiology and behavior,

explained that high doses of amphetamines like Adderall engender feelings of

well-being and excitement, and can cause drivers to speed up, or take risks,

and can affect their attention in controlling their vehicle. However, Pandina

could not opine that defendant was under the influence of amphetamines or

methamphetamines at the time of the crash.

Pandina explained that GHB, a synthetic drug which "mimic[s] the

effects of naturally-occurring" opiates such as heroin and morphine, acts as "a

central nervous system depressant" and may be prescribed to treat anxiety and

serious sleep disorders. Because GHB is a sedative, it "slow[s a person's]

reaction time . . . decrease[s the] ability to react . . . appropriately to the

environmental demands," and affects a person's "focus." Combining the

"upper" of an amphetamine or methamphetamine with the "downer" of GHB

may potentially cause an erratic interaction or may prolong the "euphoric

effect."

Pandina opined defendant "was under the influence of GHB at the time

of the crash, . . . the GHB level was significantly higher at the time of the

crash than when his blood was tested four hours later, and . . . it . . . would

cause impairment in fundamental abilities to operate a motor vehicle." He

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further opined defendant's level of impairment was "a significant contributing

factor to the crash."

The jury also heard from a driver who saw defendant slumped over the

wheel of his car, apparently asleep, while stopped at a traffic light after

emerging from the Holland Tunnel. The driver of the ambulance that struck

the O'Donnell vehicle also testified, and the jury saw video traffic camera

footage of the actual crash.

Defendant produced a forensic toxicologist as an expert to criticize the

NJSP lab procedures, refute the level of GHB in defendant's blood, and

question whether the drug "may or may not [have been] present." Defendant

also testified that he suffered a seizure as he emerged from the Holland

Tunnel. He did not know how GHB was in his system, or in his car, and

claimed to have discovered the bottle in his overnight bag, opened it, and

spilled some on his lap, burning his skin. As for the presence of

methamphetamines in his blood, defendant assumed it was due to second-hand

smoke he was exposed to on the previous Saturday and Sunday night while

spending time with friends who were smoking crystal meth.

II.

We consider the arguments raised by defendant in Point I regarding the

audio-recorded statement he provided the day after the crash while in the

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hospital. As the prosecutor recognized in his opening statement, "[s]ome of

the admissions that . . . defendant made are . . . crucial in this case." A judge,

who was not the trial judge, conducted a hearing pursuant to N.J.R.E. 104(c)

regarding the admissibility of the statement. Detective Brozek testified at the

hearing.3

Brozek described meeting defendant at the Jersey City Medical Center

on the morning of February 23, 2016, after obtaining permission from medical

personnel attending to defendant to speak with him. Defendant was alert and

able to answer questions. Brozek advised defendant he, along with Detectives

Christian Velazquez and Jason Kazan, were "currently investigating the motor

vehicle crash and how it occurred." Brozek testified defendant was not under

arrest because "[t]here was still an ongoing investigation into the crash." He

3
At trial, defendant testified that he asked police when he first arrived at the
hospital if other people were injured, and they told him, "Let's worry about
you right now." Defendant also testified at trial that when the troopers arrived
to question him at the hospital, he asked again; they only said, "everything's
fine," and they were interviewing other people that day about the accident.

Defendant did not testify or call any witnesses at the N.J.R.E. 104(c)
hearing. These alleged facts, therefore, were not before the hearing judge, and
we do not consider them in our review of the judge's decision on the
admissibility of defendant's statement. Cf. State v. Tavares, 364 N.J. Super.
496, 501 (App. Div. 2003) (explaining in the analogous context of a motion to
suppress physical evidence, "[T]he only proofs relevant on appellate review of
the motion to suppress are the proofs at the motion hearing.").

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advised defendant of his Miranda rights and had defendant sign a Miranda

waiver card. The audiotaped statement includes defendant's oral responses to

the detective's questions, including defendant's affirmations that he understood

his rights and felt well enough to give a statement.

The following colloquy 4 transpired:

Det. Brozek: So[,] you wish to continue with the
interview?

Defendant: Can I ask a question? Just because I'm
sure . . . my car is the one that caused all this, I should
probably have an attorney present? [5]

Det. Brozek: Okay. Like I said, it's a pending
investigation we have. I'm in the unit with the State
Police that's currently investigating the motor vehicle
crash and how it occurred, and we're trying to get –

4
We compared the transcript of the Rule 104 hearing, with the trial transcript
of the audio recording as played for the jury, and the transcript of playbacks
the jury requested during its deliberations. We also compared these to the
judge's written decision, which included her findings following the Rule 104
hearing and relied in part on a transcript of the statement furnished by the
State, which is not in the appellate record. The parties' briefs sometimes cite
the record differently. We rely on the official certified transcript from the
Rule 104 hearing, and none of the differences between the versions affects our
decision.
5
This is an example of the discrepancies to which we alluded. The transcriber
placed a question mark at the end of this sentence in the transcript of the Rule
104 hearing. However, the same transcriber placed a period instead of a
question mark in the trial transcript and the transcript of the playback during
deliberations. We have listened to the recorded statement; it does appear
defendant was asking a question.

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 Defendant: Right.

Det. Brozek: — you know, surveillance footage. So
as far as a final . . . result of the investigation, that's
still pending. We have no final result on the
investigation just yet.

Defendant: Okay.

....

Det. Brozek: So[,] you wish to continue?

Defendant: Yeah.

Det. Brozek: Okay. All right.

Before Detective Brozek could ask anything more than defendant's name and

address, Detective Kazan clarified whether defendant was asking for an

attorney:

Det. Kazan: Mr. Hahn, you just mentioned you were
talking about an attorney. At this time[,] are you
requesting the presence of an attorney? Is that what
you're saying? Or not requesting that?

Defendant: I'm . . . I guess what I'm asking is, . . . if
this . . . accident did turn out to be my fault, . . . I
should probably have an attorney present, right?

Det. Brozek: We can't advise you on that. . . .

Det. Kazan: We can only advise you that it's your
right to have an —

Det. Brozek: Request it.

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Det. Kazan: — attorney present. . . . To request an
attorney present.

Det. Brozek: If you're requesting the presence of an
attorney, that's what we're asking you. At this time,
are you requesting the presence of an attorney?

Defendant: No. I guess, I mean.

Det. Kazan: We can show you the questions if you
wanted to —

Det. Brozek: Yeah.

Det. Kazan: — look at them.

....

Det. Kazan: You're welcome to look at the template,
like you said. The same question —

Defendant: It's not that. It's not that. It's just, I mean,
. . . I'm an honest person. It's just that —

Det. Kazan: Okay. Yeah.

Defendant: — I don't know, like, saying something
too soon.

Det. Brozek: Like I said, we can't tell you, you know,
what you should do.

Defendant: Okay.

Det. Brozek: We can't give you like —

Defendant: That's fine.

Det. Brozek: — legal advice what you should do.
What . . . we have to do is just, kind of, advise you of

A-4755-18
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 your legal right, that you can have an attorney present.
So[,] do you wish to have one present?

Defendant: It's — it's okay.

Det. Brozek: So then —

Det. Kazan: That's fine.

Det. Brozek: Okay. Just wanted to be clear.

Det. Kazan: So[,] at this time, you're declining the
presence of an attorney.

Defendant: Yeah.

Det. Kazan: Is that correct, Mr. Hahn?

Defendant: Yeah.

Det. Kazan: Thank you very much.

Defendant proceeded to answer all the questions posed and never stopped the

interview or requested an opportunity to consult with an attorney.

Defendant said he suffered a seizure while coming through the Holland

Tunnel. His seizures were "stress related," and doctors had specifically

concluded he was not epileptic. Defendant recalled his eyes "crossed" as he

exited the tunnel, he "couldn't undo them," and he was unable to pull to the

side of the road. Defendant wore prescription glasses but had lost them and

believed they might have helped him when his eyes "crossed." Defendant had

no idea he struck another vehicle.

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 Defendant told the troopers he was visiting a friend in New York over

the weekend and helping him move. Defendant slept until 1 p.m. on Sunday

but had not slept again before the accident, which occurred at 3:19 p.m. on

Monday. Defendant's friend gave him ten Adderall pills Sunday, telling

defendant they were "caffeine pill[s]." Defendant took all of them

intermittently, starting about 1 p.m. on Sunday and taking the last pill before

sunrise on Monday. Defendant denied taking any other drugs, except medicine

prescribed for his bleeding ulcer, and thought moving furniture with his friend

and staying up all night may have created the stress that caused his seizure.

The statement took approximately thirty-five minutes to complete.

Before the hearing judge, defendant argued the troopers did not

scrupulously honor his request for counsel after he waived his Miranda rights,

and the troopers' claim to still be investigating an "accident" was misleading.

The judge reserved decision and subsequently issued a written opinion

permitting the State to introduce defendant's statement at trial.

The judge found Brozek was a credible witness. Relying primarily on

State v. Alston, 204 N.J. 614 (2011), the judge concluded defendant's inquiry

regarding counsel "was neither an assertion of his right to counsel, ambiguous

or otherwise." Further, the judge concluded:

Even if . . . [d]efendant's repeated inquiry [w]as an
ambiguous assertion requiring clarification, the record

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 clearly indicates that Detectives Brozek and Kazan
took ample time to re-Mirandize . . . [d]efendant,
clarify whether he understood his rights, and ensure
[d]efendant understood the potential consequences
with regards to his waiver before any further
questioning took place.

The judge found defendant made a knowing, voluntary waiver of his Miranda

rights, but she did not address whether the troopers were obligated to clarify

they were investigating a traffic accident that resulted in two deaths and

whether their failure to do so vitiated the knowing and voluntary nature of

defendant's waiver.

A.

Before us, defendant reiterates the troopers did not scrupulously honor,

but rather discouraged, his attempts to invoke his right to counsel. He also

claims that because the troopers "withheld essential information," i.e., that two

people died in the accident, defendant did not know his "true status," and,

therefore, he did not make a knowing, intelligent and voluntary waiver of his

Miranda rights. The State counters by arguing the troopers clarified any

ambiguity regarding defendant's invocation of his right to counsel, were under

no obligation to disclose the full nature of their investigation, and defendant

voluntarily waived his Miranda rights and provided the statement.

"[O]ur review requires that we 'defer to the factual findings of the trial

court . . . supported by sufficient evidence in the record,' because a trial court's

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decision is influenced by the opportunity to hear and see the witnesses." State

v. Gonzalez, 249 N.J. 612, 628 (2022) (quoting State v. Hubbard, 222 N.J.

249, 262 (2015)). "When, as here, we consider a ruling that applies legal

principles to the factual findings of the trial court, we defer to those findings

but review de novo the application of those principles to the factual findings."

State v. Hinton, 216 N.J. 211, 228 (2013) (citing State v. Harris, 181 N.J. 391,

416 (2004)); see also State v. A.M., 237 N.J. 384, 396 (2019) ("An appellate

court owes no deference, however, to 'conclusions of law made by lower

courts in suppression decisions' . . . . " (quoting State v. Boone, 232 N.J. 417,

426 (2017))).

We reject any contention that the troopers did not properly respond to

what may have been defendant's ambiguous request for counsel. Most

recently, the Court reaffirmed Alston's prior guidance, and held "in situations

where 'a suspect's statement "arguably" amount[s] to an assertion of Miranda

rights,' conducting a follow-up inquiry is the only way to ensure that a

suspect's waiver of their right was knowing and voluntary." Gonzalez, 249

N.J. at 630 (alteration in original) (quoting Alston, 204 N.J. at 621–23).

In Alston, the Court held the defendant's response to the officer's

question whether the defendant wanted a lawyer — "No, I'm asking you guys,

man." — was not "even an ambiguous request for counsel; rather, it was an

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emphatic 'no' followed by a continued effort to secure advice and guidance

from the police about what they thought [his] best course of action was at the

time." 204 N.J. at 626. In Gonzalez, the Court distinguished Alston and held,

the "defendant's first mention of counsel, '[b]ut what do I do about an attorney

and everything?' was an ambiguous invocation of her right to counsel that

required the detective to cease all questioning and seek clarification." 249 N.J.

at 631 (alteration in original). The detective's response — "I can't give you an

opinion about anything" — "failed to clarify what [the] defendant meant." Id.

at 632.

In this case, the troopers carefully explained defendant had the right to

have counsel, and while they could not advise whether he should request

counsel, they clearly explained defendant had the right not to proceed without

an attorney present. They also sought defendant's unequivocal affirmation that

he wished to proceed. We find no error. The more difficult issue, considering

the recently evolving legal landscape, is whether defendant knowingly and

voluntarily waived his rights given the troopers' failure to advise him that the

crash resulted in two deaths, and they were assigned to the homicide unit of

the NJSP.

B.

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 In State v. A.G.D., the Court held that a defendant's waiver of his

Miranda rights is invalid when police fail to inform him that a criminal

complaint has been filed or an arrest warrant has been issued against him. 178

N.J. 56, 58–59 (2003). The Court reasoned, "a criminal complaint and arrest

warrant signify that a veil of suspicion is about to be draped on the person,

heightening his risk of criminal liability." Id. at 68. "[R]egardless of other

factors that might support his confession's admission[,]" a defendant cannot

make an intelligent waiver when unaware of "his true status." Ibid.

In State v. Nyhammer, the Court clarified that A.G.D. was limited to its

facts. 197 N.J. 383, 404–05 (2009). In Nyhammer, the defendant argued his

waiver was invalid because police failed to disclose he was a suspect when

they questioned him. Id. 387–88. The Court emphasized the critical

difference from A.G.D. was the issuance of the arrest warrant in that case. Id.

at 404. Although the defendant in Nyhammer was a suspect, the Court

reasoned it would be impossible to foresee the actual charges that might be

lodged against him. Id. at 405. As a result, the Court applied the totality-of-

the-circumstances test and determined the failure to tell the defendant of his

suspect status was "only one of the many factors to be considered[.]" Id. at

407–08.

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 In State v. Vincenty, the Court reaffirmed its adherence to A.G.D. and

held that interrogating officers must not only inform a suspect that a n arrest

warrant or complaint has been issued but must also notify the defendant of the

specific charges. 237 N.J. 122, 126 (2019). The Court concluded that police

must provide a "simple declaratory statement" identifying those charges before

questioning the defendant. Id. at 134.

In State v. Sims, detectives arrested the defendant for attempted murder

prior to the issuance of a complaint-warrant. 466 N.J. Super. 346, 357 (App.

Div. 2021). Although the defendant asked, "why he was under arrest," the

detectives never told him prior to the defendant's waiver of his Miranda rights.

Id. at 357–58. We held that "because [the] defendant was under arrest, he

faced the same risk of self-incrimination as the defendants in A.G.D. and

Vincenty. To find that he was not entitled to the same information as those

defendants simply because he was arrested without a warrant would

contravene both of the Court's holdings." Id. at 368.

The Court disagreed and reversed. State v. Sims, 250 N.J. 189, 197

(2022). Citing Judge Susswein's dissenting opinion from our court, the Court

agreed that "even when there is probable cause for an arrest, there may be

insufficient information about the victim's injuries, the arrestee's mental state,

and other key issues to enable an officer to accurately identify the charges."

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Id. at 215 (citing Sims, 464 N.J. Super. at 381–83). The Court found the

majority opinion from our court "relie[d] not on an objective statement of the

charges pending against the arrestee, but on an officer's prediction, based on

information learned to date in a developing investigation, of what charges may

be filed." Ibid. The Court affirmed the trial "court's application of the totality-

of-the-circumstances standard to deny defendant's motion to suppress his

statement." Id. at 217.

C.

Since the briefs were filed in this case, our court has issued two

decisions, State v. Diaz, 470 N.J. Super. 495 (App. Div. 2022), filed before the

Court issued its reversal in Sims, and State v. Cotto, 471 N.J. Super. 489 (App.

Div. 2022), filed after the Court's decision in Sims. Defendant argues Diaz

should control our disposition of his appeal, but both cases bear on our

consideration of the issue presented.

In Diaz, police were investigating an overdose death with the aid of a

cooperating witness, Ludeman, the decedent's roommate who used the same

drugs and claimed they came from the defendant. Police arranged through

Ludeman to purchase more of the same drugs from the defendant. 470 N.J.

Super. at 503–05. When the defendant appeared outside the door of his

residence, police approached, identified themselves, and read the defendant his

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Miranda rights. Id. at 505. The defendant "asked the detective 'what [this]

was about[,]'" and the detective "responded . . . 'we [are] conducting an

investigation involving narcotics' and asked if defendant 'had anything on his

person.' . . . Defendant then removed a 'bundle of heroin' from his pocket." Id.

at 506 (first and third alterations in original).

The defendant was arrested and, at police headquarters, he provided a

statement after again being Mirandized. Id. at 506–07. The detectives never

told the defendant "what the interrogation was about," or "specif[ied] the

potential criminal charges . . . [he] was facing"; at the time, no complaint or

warrant had issued. Id. at 507. The defendant admitted providing eight bags

of heroin to Ludeman the day of the overdose, and, after that admission, "the

tenor and substance of the stationhouse interrogation changed." Ibid. Police

for the first time "referred to an overdose," and explained the defendant was

facing "a strict liability charge[,] . . . a manslaughter charge." Id. at 508.

The trial court denied the defendant's motion to suppress, concluding the

statement was made following a knowing, voluntary and intelligent waiver of

the defendant's Miranda rights. Id. at 509. On reconsideration, and relying on

our decision in Sims, which at that time was pending before the Court, the

judge reversed course and suppressed the statement. Id. at 510–11. The State

appealed. Id. at 511.

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 We noted "the Court in Nyhammer stressed, 'evidence that the accused

was threatened, tricked, or cajoled into a waiver of his [or her] privilege will

render the waiver involuntary.'" Id. at 516 (alteration in original) (quoting

Nyhammer, 197 N.J. at 407). We therefore "focus[ed] on whether the State

proved beyond a reasonable doubt that [the] defendant knowingly waived his

right against self-incrimination in view of the detectives' stratagem to withhold

the fact that someone had died following defendant's act of distributing heroin

to Ludeman." Id. at 518.

We concluded "the detectives in th[e] case affirmatively misled

defendant as to his 'true status,' by providing a deliberately vague and

incomplete answer to his question as to the reason why he was taken into

custody." Ibid. (quoting A.G.D., 178 N.J. at 68).

It is one thing for police to withhold
information. It is another thing entirely for them to
provide an explanation that creates or reinforces a
false impression as to the seriousness of the sentence
that a defendant is facing. Any such deception or
trickery as to the true reason a defendant is taken into
custody, whether made in response to a question posed
by the defendant, as in this case, or made on the police
interrogator's own initiative, is an important
circumstance to be considered as part of the totality of
circumstances when determining whether the State has
proved beyond a reasonable doubt that the defendant
made a knowing and voluntary waiver of the right
against self-incrimination.

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 [Id. at 519. Cf. State v. L.H., 239 N.J. 22, 47–48
(2019) (noting that minimizing the seriousness of the
crimes under investigation is a relevant factor under
the totality of circumstances test).]

We concluded, "[T]he detectives were following a deliberate investigative

strategy to withhold information about the overdose death from defendant until

after he admitted that he sold heroin to Ludeman the day before." Id. at 522.

We also rejected the State's assertion that detectives lacked probable

cause to charge the defendant with strict liability drug-induced death before

questioning him. Id. at 527. "We . . . [we]re satisfied that at the time [the]

defendant was taken into custody, the detectives were aware of facts that,

viewed collectively, would lead an objectively reasonable police officer to

believe that [the] defendant was criminally responsible for the victim's death."

Id. at 528. As already noted, we issued our judgment in Diaz before the Court

issued its decision in Sims.

In Cotto, detectives arrested the defendant for outstanding traffic

warrants, while suspecting he was involved in an arson at a local nightclub.

471 N.J. Super. at 506. They told the defendant he was under arrest for the

traffic warrants, but, after he waived his Miranda rights, they said they wanted

to speak with him "about something else," and began questioning the

defendant about his familiarity with the nightclub. Id. at 506–07. The

detectives disclosed surveillance camera footage showing the person who

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22
started the fire, told the defendant they believed it was him, and, although the

defendant did not admit to the crime, the detectives told the defendant he

would be charged with aggravated arson. Id. at 508–10. The trial court denied

the defendant's motion to suppress the statement. Id. at 512.

We first noted and reviewed the Court's decision in Sims, as well as

prior precedent. Id. at 512–18. We observed, "As Sims makes clear, . . .

although [the] defendant indisputably was a suspect in the arson investigation,

because charges had not been filed concerning that crime, the detectives were

not required pursuant to a bright-line rule to alert defendant as to his suspect

status during the initial Miranda waiver colloquy." Id. at 520 (citing Sims, 250

N.J. at 209).

We rejected the defendant's claim that detectives "strategically chose to

. . . arrest [the defendant] for the outstanding traffic warrants, without

mentioning the arson investigation, to obtain [his] Miranda waiver." Ibid.

(first alteration in original). We noted assuming arguendo police had probable

cause to arrest the defendant for the arson before the interrogation, there was

no "evidence of bad-faith interrogation tactics that violated [the] defendant's

constitutional rights." Ibid.

We distinguished Diaz, "where police interrogators deliberately withheld

information that a person had died from a drug overdose until after the

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defendant had admitted to police that he distributed a controlled dangerous

substance (CDS) to the victim's roommate on the day of the overdose death."

Id. at 521 (citing Diaz, 470 N.J. Super. at 520). "In stark contrast to the

situation in Diaz, here . . . [the] defendant was told before he answered any

substantive questions that the subject matter of the interrogation would not

focus on the traffic warrants for which he was arrested." Id. at 522. We held,

"accounting for all relevant circumstances militating for and against

suppression, we are satisfied that the manner in which this custodial

interrogation was conducted was lawful and does not offend contemporary

notions of justice and fair play." Id. at 523.

D.

Applying these principles to the facts of this case, we conclude the NJSP

detectives did not engage, as did the investigators did in Diaz, in a "'carefully

orchestrated' custodial interrogation . . . designed to affirmatively mislead . . .

defendant." Id. at 521 (citing Sims, 250 N.J. at 222). They truthfully told

defendant they were investigating the motor vehicle crash from the day before.

They accurately told defendant there was "no final result" from that

investigation. They did not misrepresent, as did the detectives in Diaz, that

they were there to investigate something else.

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 Defendant seemingly recognizes these factual differences because he

argues while the NJSP detectives did not affirmatively misrepresent facts, they

omitted facts known to them before the interrogation began. What facts were

omitted? Defendant contends it was that two people died in the crash.6

However, in Diaz, police had sufficient probable cause to arrest the

defendant for drug-induced homicide before interrogating him. When the

defendant asked police "'what [this] was about,'" police told him they were

conducting a narcotics investigation and asked if he "'had anything on his

person.'" 470 N.J. Super. at 506 (alteration in original). Their strategic

decision to withhold from the defendant any mention of a drug overdose was

intended to "create[] or reinforce[]a false impression" of the consequences

defendant actually faced. 470 N.J. Super. at 519.

Unlike Diaz, where police omitted information despite having sufficient

probable cause to arrest the defendant for the drug-induced death before the

interrogation even began, here, when they spoke with defendant, the NJSP

detectives had not yet recovered the GHB and GBL bottles from defendant's

car, had not conducted a forensic investigation of the car for possible

mechanical problems, and did not know the results of defendant's blood draw.

6
We also recognize that Detective Brozek never advised defendant that he
(Brozek) was assigned to the NJSP Homicide Unit.

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25
They were investigating a fatal accident, to be sure, and the troopers most

likely knew defendant faced some criminal charges. 7 But, they did not

misrepresent the circumstances defendant faced in response to his direct

inquiry.

We also hesitate to extend Diaz's holding beyond its facts in light of the

Court's subsequent decision in Sims. In Sims, the Court held that in the

absence of the issuance of a formal complaint-warrant, police were under no

obligation to tell the defendant why he was arrested, even though he

specifically asked, and police already knew he would be charged with

attempted murder. See Sims, 250 N.J. at 199 (noting the "defendant asked,

'what was going on and why he was being placed under arrest,' and that [the

interrogating detective] told [the]defendant that the officers 'would get into the

details' when they reached the prosecutor's office"). Despite the interrogating

detectives' intentional omission of the reasons for the defendant's arrest, the

7
In denying the motion to suppress defendant's blood drawn pursuant to a
warrant, the judge noted observations made by police at the scene of
defendant's slurred speech, glassy and bloodshot eyes, and inability to recall
what happened as support for the warrant's application. In addition,
observations of the vehicles at the scene circumstantially supported a
conclusion that defendant was travelling at excessive speed. See State v.
Parkhill, 461 N.J. Super. 494, 501 (App. Div. 2019) (holding "[e]xcessive
speed may satisfy the recklessness element" of vehicular homicide (citing State
v. Buckley, 216 N.J. 249, 262 (2013))).

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26
Court nevertheless concluded under the totality of the circumstances, the

defendant's motion to suppress was properly denied. Id. at 217–18. The

omission of information known to the NJSP detectives in this case does not

approach the significant omissions and vague answers supplied by the police in

Sims.

In this case, the hearing judge considered other factors usually employed

to determine whether "[i]n the totality-of-the-circumstances analysis,"

defendant's waiver "was the product of free will or police coercion."

Nyhammer, 197 N.J. at 402. We find no reason to disturb the judge's factual

findings in this regard or the legal conclusions she reached. We therefore

affirm the decision to admit defendant's statement to NJSP detectives on the

day after the accident.

III.

There is no transcript of the charge conference alluded to at other points

in the record. In any event, the trial judge confirmed with defense counsel and

the prosecutor that the proposed written charge she circulated was acceptable.

The judge charged the jury on aggravated manslaughter and vehicular

homicide, but she was not asked to and did not charge the jury on the lesser -

included offense of aggravated manslaughter, i.e., second-degree reckless

manslaughter. Nor did the judge ever explain that vehicular homicide is a

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27
lesser-included offense of aggravated manslaughter when the death is caused

by driving an automobile. See, e.g., State v. Locane, 454 N.J. Super. 98, 108,

112 (App. Div. 2018).

In Point II, defendant contends it was plain error for the judge not to

provide instructions on reckless manslaughter as a lesser-included charge of

aggravated manslaughter. The State responds the evidence clearly supported

the jury's verdict on aggravated manslaughter, and the judge was under no

obligation to sua sponte charge reckless manslaughter. At oral argument

before us, the State also asserted that any error was harmless, because the jury

found defendant guilty of both aggravated manslaughter and the lesser-

included offense of vehicular homicide.

"We review for plain error the trial court's obligation to sua sponte

deliver a jury instruction when a defendant does not request it and fails to

object at trial to its omission." State v. Alexander, 233 N.J. 132, 141–142

(2018) (citing State v. Cole, 229 N.J. 430, 455 (2017); State v. Funderburg,

225 N.J. 66, 79 (2016)). "To warrant reversal, the unchallenged error must

have been 'clearly capable of producing an unjust result.'" Id. at 142 (quoting

R. 2:10-2). We conclude it was plain error for the judge not to provide

instructions on the lesser-included offense of reckless manslaughter. The

failure to do so "raise[s] a reasonable doubt as to whether the error led the jury

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to a result it otherwise might not have reached." Ibid. (quoting State v. Macon,

57 N.J. 325, 336 (1971)).

"[A]n offense is considered a lesser-included offense 'where the proof

required to establish a greater offense is also sufficient to establish every

element of a lesser offense' and 'where two offenses are the same but a lesser

degree of culpability is required to establish the lesser offense.'" State v. Bell,

241 N.J. 552, 561 (2020) (quoting State v. Thomas, 187 N.J. 119, 129–30

(2006)); see also N.J.S.A. 2C:1-8(d) (defining an "included offense").

Pursuant to N.J.S.A. 2C:1-8(e), "[t]he court shall not charge the jury with

respect to an included offense unless there is a rational basis for a verdict

convicting the defendant of the included offense."

"Determining 'whether an included offense charge is appropriate requires

(1) that the requested charge satisfy the definition of an included offense set

forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the

evidence to support a charge on that included offense.'" Bell, 241 N.J. at 562

(quoting State v. Cassady, 198 N.J. 165, 178 (2009)). "[A] trial court has an

independent obligation to instruct on lesser-included charges . . . ."

Funderburg, 225 N.J. at 76 (alteration in original) (emphasis added).

Second-degree reckless manslaughter is a lesser-included offense of

aggravated manslaughter.

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 Generally, reckless manslaughter is a lesser-
included offense of aggravated manslaughter. A
second-degree crime, reckless manslaughter is
distinguishable from aggravated manslaughter "in the
degree of the risk that death will result; from
defendant's conduct." For reckless manslaughter, the
degree of risk is the "mere possibility" of death. To
distinguish between aggravated manslaughter and
reckless manslaughter, "[t]he ultimate question for the
factfinder is whether the homicide was committed
under circumstances involving a mere possibility of
death[,] or did the circumstances involve a probability
of death. If the former, the verdict must be reckless
manslaughter, but if the latter the verdict must be
aggravated manslaughter."

[State v. Ruiz, 399 N.J. Super. 86, 97–98 (App. Div.
2008) (alterations in original) (first citing State v.
Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994);
and then quoting State v. Curtis, 195 N.J. Super 354,
364–65 (1984)).] [8]

8
All the elements of aggravated manslaughter and reckless manslaughter may
be proven without proof of a necessary element of vehicular homicide, i.e.,
that a vehicle caused the death. See N.J.S.A. 2C:11-5(a) ("Criminal homicide
constitutes reckless vehicular homicide when it is caused by driving a vehicle
. . . recklessly."). Nonetheless, our courts have accepted that vehicular
homicide is a lesser-included offense of aggravated manslaughter if the death
was caused by an automobile. See State v. Bakka, 176 N.J. 533, 549 (2003);
Locane, 454 N.J. at 108, 112; State v. Jiminez, 257 N.J. Super. 567, 583 (App.
Div. 1992) ("[A] defendant may be charged with either aggravated manslaughter
and/or reckless manslaughter and, in either event, death by auto shall be an
included offense."); but see N.J.S.A. 2C:11-5(d) (noting a conviction for
vehicular homicide does not preclude a conviction for aggravated
manslaughter "if the evidence so warrants"); and State v. Jamerson, 153 N.J.
318, 334 (1998) (noting an earlier amendment to N.J.S.A. 2C:11-5(d) at that
time permitted "a conviction for both offenses," manslaughter and death by
auto, even though the latter was a lesser-included offense). In any event, both

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 A defendant's right to have the jury consider a lesser-included offense is

axiomatic, because our Court has long held, "No defendant should be

convicted of a greater crime or acquitted merely because the jury was

precluded from considering a lesser offense that is clearly indicated in th e

record." State v. Garron, 177 N.J. 147, 180 (2003). By providing instructions

on a lesser-included offense, courts avoid the possibility that a jury "reluctant

to acquit [a] defendant might compromise on a verdict of guilt on the greater

offense." State v. Sloane, 111 N.J. 293, 299 (1988).

Here, it is undisputed the judge failed to instruct the jury on the lesser -

included offense of reckless manslaughter. The evidence could clearly support

a jury's finding that defendant acted recklessly, but only with the possibility, as

opposed to the probability, of causing another's death. Instead, by only

receiving instructions on aggravated manslaughter, the jury faced the all -or-

nothing decision whether to acquit or convict defendant of the only charge

presented for their consideration in counts one and two, i.e., aggravated

manslaughter.

However, this appeal presents an unusual circumstance because of the

State's charging decision to indict defendant for both aggravated manslaughter
________________________
parties agree vehicular homicide is a lesser-included offense of aggravated
manslaughter caused by a vehicle.

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and the lesser-included charge of vehicular homicide. The jury convicted him

of both. Defendant implied during oral argument this was a deliberate

stratagem to avoid lesser-included jury instructions in the context of the charge

on aggravated manslaughter. We express no opinion on that assertion.

However, we disagree with the State's contention that any error in failing

to charge the jury with reckless manslaughter was harmless. First, while it is

undisputed the judge accurately defined the elements of both aggravated

manslaughter and vehicular homicide, she did so separately, without mention

of any relationship between the two offenses. The verdict sheet directed the

jury to return separate verdicts on each crime as to each victim. A properly

instructed jury would have understood that it did not face an all-or-nothing

decision on the aggravated manslaughter counts of the indictment, but rather it

could acquit defendant of those charges and still find him guilty of causing the

victims' deaths by returning guilty verdicts, as already noted, as to the lesser-

included reckless manslaughter, or on the two counts of vehicular homicide as

lesser-included offenses.

Secondly, prior to adoption of 1995 amendments to N.J.S.A. 2C:11-5

that elevated vehicular homicide from a third-degree crime to a second-degree

crime, -
see
- -L.
- 1995, c. 285, our courts uniformly held there was a difference

between the recklessness required for conviction of vehicular homicide, and

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32
the enhanced recklessness required to support a conviction for the then more

serious offense of reckless manslaughter. In Jamerson, which involved a pre-

amendment crime, 153 N.J. at 325, the Court explained:

The recklessness required for manslaughter is not the
same as that required for death by auto. For reckless
manslaughter, the State must prove beyond a
reasonable doubt causative acts of recklessness that
are different in kind from the acts involved in reckless
driving that support a conviction for death by auto.
Those additional acts of recklessness must also
contribute to causing the death of a victim.

[Id. at 334–35 (citing Jiminez, 257 N.J. Super. at
584).]

"[A] defendant's predriving conduct, such as drinking, and conduct associated

with the driving must be so extraordinary and extreme as to satisfy the reckless

manslaughter standard." Id. at 335 (citing State v. Scher, 278 N.J. Super. 249,

269 (App. Div. 1994)). "That standard is 'quantitatively greater than the

recklessness contemplated in a death-by-auto charge and qualitatively less than

the recklessness required to support an aggravated manslaughter case.'"

(quoting State v. Milligan, 104 N.J. 67, 73 (1986) (Clifford, J., dissenting)).

See also Jiminez, 257 N.J. Super. at 583 (noting trial judges were

"require[d] . . . to craft a charge . . . explaining the subtle and sophisticated

distinctions between the concept of recklessness envisioned by the Legislature

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33
in death by auto as distinguished from the recklessness envisioned in the

manslaughter statute").

The model charge for reckless manslaughter continues to recognize this

distinction in the level of recklessness required for conviction under N.J.S .A.

2C:11-4(b), and that required for conviction of vehicular homicide under

N.J.S.A. 2C:11-5. The charge instructs judges that when "it is alleged that the

defendant caused the death of another by operating a motor vehicle," they

should "include the following language distinguishing the two offenses."

Model Jury Charges (Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-

4(b)(1))" at 1 n.2 (rev. Mar. 22, 2004).

It is important that you understand the difference
between reckless manslaughter and the lesser-included
offense of death by auto . . . for which I will soon be
providing you with additional instructions. Reckless
manslaughter requires proof beyond a reasonable
doubt that the defendant drove his/her vehicle . . .
recklessly, and also that he/she engaged in additional
acts of recklessness, independent of his/her operation
of the vehicle . . . that contributed to the victim's
death. Death by auto . . . on the other hand, only
requires proof beyond a reasonable doubt that the
defendant recklessly drove his/her vehicle . . . causing
the death of another, and it requires no additional acts
of recklessness. Here, the State alleges the following
additional acts of recklessness:

(INSERT APPROPRIATE LANGUAGE, AND,
WHERE APPROPRIATE ON THE FACTS,
SUMMARIZE DEFENDANT’S FACTUAL
CONTENTIONS AS WELL)

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 Whether the defendant was reckless in his/her
operation of the motor vehicle . . . and/or whether the
defendant was additionally reckless as alleged by the
State is for you the jury to decide based on the
evidence in the case. It is only where you are
convinced beyond a reasonable doubt that the
defendant was in fact reckless both in the operation of
the motor vehicle . . . and in the additional manner as
alleged by the State that you may convict the
defendant of the charge of reckless manslaughter.

[Ibid. (emphasis added) (citation omitted).]

These instructions, however, are not included in the model charge on

aggravated manslaughter, nor does that charge provide any guidance for trial

judges regarding appropriate instructions when the State has charged a

defendant with both aggravated manslaughter and vehicular homicide. See

Model Jury Charges (Criminal), "Aggravated Manslaughter (N.J.S.A. 2C:11-

4(a))" (rev. Mar. 22, 2004).

One noted commentator, however, has concluded the 1995 amendments

to N.J.S.A. 2C:11-5, elevating vehicular homicide to a second-degree offense

and permitting separate convictions only for aggravated, not reckless,

manslaughter and vehicular homicide, demonstrates the Legislature's intent

that vehicular homicide, "rather than reckless manslaughter is the appropriate

section to charge." Cannel, New Jersey Criminal Code Annotated, cmt. 3 on

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N.J.S.A. 2C:11-5 (2022).9 Even if that is so, when the State charges a

defendant with aggravated manslaughter by vehicle, as well as vehicular

homicide, a court must provide instructions on reckless manslaughter as a

lesser-included offense of aggravated manslaughter. Moreover, since the 1995

amendments, we have "continued to recognize the need to differentiate the

degree of recklessness required for reckless manslaughter," and, therefore also

aggravated manslaughter, "and death by auto as expressed by State v.

Jiminez." State v. Pigueiras, 344 N.J. Super. 297, 308 (App. Div. 2001) (citing

State v. Lane, 288 N.J. Super. 1, 9, 11 (App. Div. 1995); Scher, 278 N.J.

Super. at 268–69).

The failure to give the jury instructions on reckless manslaughter was

not harmless error for two reasons. The failure to explain the relationship

between aggravated manslaughter caused by a vehicle and the offense of

vehicular homicide left the jury with the false belief that the two charges were

unrelated. The jury was not told that an available option was to acquit

defendant of the greater charge and convict him of the lesser charge. The

9
Prior to the 1995 amendment, N.J.S.A. 2C:11-5(d) provided that "[n]othing
herein shall be deemed to preclude . . . an indictment and conviction for
manslaughter . . . ." In addition to elevating vehicular homicide to a second -
degree offense, the Legislature amended subsection (d), which now provides,
"[n]othing herein shall be deemed to preclude . . . and indictment and
conviction for aggravated manslaughter . . . ."

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instructions also deprived the jury of an opportunity to understand distinctions

in the level of recklessness required to convict defendant of either

manslaughter charge versus recklessness that is an element of vehicular

homicide. We therefore reverse defendant's convictions for counts one and

two and vacate the sentences imposed. 10

The State has not urged us to mold the jury's verdict and affirm

defendant's convictions on count three and four for vehicular homicide if we

reversed defendant's convictions for aggravated manslaughter. See State v.

R.P., 223 N.J. 521, 525–26 (2015) ("[T]he authority to mold a verdict rests

upon a trial court's 'power to enter a judgment of conviction for a lesser

included offense where the jury verdict necessarily constitutes a finding that

all the elements of the lesser included offense have been established and where

no prejudice to the defendant results.'" (quoting State v. Farrad, 164 N.J. 247,

266 (2000))). We do not foreclose the State from moving before the trial

judge to dismiss counts one and two and enter an amended judgment of

conviction on two counts of vehicular homicide rather than proceed to a new

trial. The evidence clearly supported the jury's verdict of guilty on counts

three and four.

10
We are forwarding a copy of our opinion to the Supreme Court's Committee
on Model Criminal Jury Charges for its consideration of the issues we raise.

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 IV.

We decline the chance to consider the argument raised in Point III —

whether the State's experts, by expressing their opinions "within a reasonable

degree of scientific certainty," violated defendant's due process rights and

denied him a fair trial. The issue was never raised before the trial judge. See

State v. Witt, 223 N.J. 409, 419 (2015) (noting appellate courts will decline to

consider issues not properly presented to the trial court when opportunity for

such presentation is available).

Nor, considering our disposition, do we address defendant's sentencing

arguments, with one exception. Whether defendant is again convicted after a

new trial, or the trial court grants an application by the State to dismiss coun ts

one and two and enter judgments of conviction on counts three and four, if the

judge again decides to impose consecutive sentences, she must comply with

the Court's decision in State v. Torres, and provide "[a]n explicit statement,

explaining the overall fairness of a sentence imposed on a defendant for

multiple offenses." 246 N.J. 246, 268 (2021) (citing State v. Miller, 108 N.J.

112, 122 (1987)).

We reverse the judgments of conviction on counts one and two and

vacate the sentences imposed on those counts. We affirm defendant's

convictions on counts three through six and leave to the court's discretion

A-4755-18
38
whether the sentences imposed on those counts should be modified as part of

any new overall sentencing calculus that may result following further

proceedings. See, e.g., State v. Young, 379 N.J. Super. 498, 508 (App. Div.

2005) ("[W]hen the conviction on one or more counts is vacated on appeal, the

sentencing court should be able to review what remains of its original sentence

plan and to reconstruct the sentence to ensure that the punishment fits both the

crime and the criminal." (citing State v. Espino, 264 N.J. Super. 62, 70–71

(App. Div. 1993), remanded in part on other grounds, 188 N.J. 349 (2006))).

Affirmed in part; reversed in part. Remanded. We do not retain

jurisdiction.

I hereby certify that the foregoing
is a true copy of the original on
file inmy office. ~t~

CLERK OF THE A P ~T E DIVISION

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