OF COUNSEL. APPELLANT'S ATTORNEY: JOSEPH BEN DIKTS ON BEHALF
OF CHANGE HUANG. RESPONDENT'S ATTORNEY: HULETT ACTING PROSECUTOR.
A. DEPUTY ATTORNEY GENERAL HIGH LEGAL BE LEONARD FOR THE ATTORNEY GENERAL.
CHIEF JUSTICE RABNER: WELCOME COUNSEL MR. BENEDICT GO AHEAD.
APPELLANT'S ATTORNEY: THANK YOU. GJ JUSTICE AND
OTHER MEMBERS OF THE SUPREME COURT. I THANK YOU FOR THIS
OPPORTUNITY. I WANT TO SAY FIRST OF ALL JUDGE US REVIEWING THE COLLOQUY THAT
JUDGE NA OWN HAD WITH MYSELF AND REVIEWINGS WILL COLLOQUY THAT JUDGE BAY OWN HAD
DURING THE MOTION THE COLLOQUY BETWEEN FLY ^ RECEIVER ^ SEVER ^ SEVERE AND THE
PROSECUTOR ATSZ WELL AS REVIEWING HIS DIGS IT APPEARS TO ME AND I WOULD LOEP TO
THIS COURT THAT HE WAS FULLY COULD GO SANT OF WHAT THE FACTS WERE IN THIS CASE
AS WELL AS THE LAW. FOR THE ISSUE BEFORE THIS COURT NOW IS WHORT HE ABUSED HIS
DIFFICULTIES KRIGS WHEN HE APPLIED HIS FINDING MUCH THOSE FABLTHS TO THE LAW
AS HE RECITED IT IN HIS DECISION. AND I SUGGEST TO YOU THAT THE EVIDENCE
THAT HE SAW REALLY SUPPORTS THE CONCLUSION THAT HE REACHED. THE EVIDENCE
WAS A VIDEOTAPE DATA THAT CAME FROM THE VEHICLE DATA RECORDER AND THE TESTIMONY
MUCH DETECTIVE HECK. THE VIDEO THAT I HAVE INCIDENTALLY RUNTS OUT AT A
FASTER SPEED I DON'T KNOW WHETHER THAT HAPPENED TO ANY OF THE MEMBERS OF THE SUPREME
COURT. AND I UNDERSTAND IT HAS TO DO FROM THE PROSECUTOR TELLS ME WHATEVER
PROGRAM YOU HAPPENED TO HAVE ON YOUR COMPUTER. MINE ONLY ALLOWED ME TO SEE THIS
AT A PRETTY FAST ^ PACE ^ PAYS AND YOU CAN TELL RIGHT A WAY WHEN YOU LOOK
AT THE PEDESTRIAN WHO IS IN THE BEGINNING OF THE VIDEO WHO SEEMS TO BE SPEEDS WALKING
DOWN THE STREET. BUT WHAT I DID WAS I PAUSED THE VIDEO LATE INTO THE FIFTH
SIXTH SECOND AND I WANT TO TELL YOU WHAT THAT SHOWS ME. IT SHOWS MR. HUANG'S VEHICLE
HAVING ALREADY CROSSED RARITAN AVENUE AND HE IS IN WHAT WE CALL THE SLOW
LANE OR THE OUTER LANE. FROM THE NORTH THE SOLE CAR COMING FROM THE NORTH HAS
NOT YET REACHED COLUMBIA AVENUE AND IS COMPLETELY ACROSS ALL FOUR LANES OF
TRAFFIC. I LOOKED TO THE SOUTH IN THE VIDEO AND NO CAR YET APPEARS COMING FROM
THE SOUTH. AND YOU LOOK AT THE VIDEO THERE'S GOT TO BE AT LEAST 12 CAR LENGTHS
BEFORE THAT DON'T APPEAR IN THE VIDEO. THE POINT OF THIS IS THAT WHEN HE'S
CROSSING RARITAN AVENUE, HIS CONDUCT HAS NO EFFECT ON CARS GOING RIGHT OR LEFT.
AND I SUGGEST IF YOU CAN STOP THE VIDEO AT THAT POINT AND YOU'LL SEE EXACTLY
WHAT I'M SAYING. LATE IN THE FIFTH SIXTH SECOND BEFORE HE ACTUALLY STRIKES THE
CURB NO VEHICLES' COMING FROM THE SOUTH, CAR FROM THE NORTH NOT EVEN REACHING
THE INTERSECTION. SO WHAT HAPPENS THEN? ACCORDING TO DETECTIVE
HECK, AND THIS IS HIS TESTIMONY RELIED UPON BY JUDGE BAY OWN, HE WASN'T SUCCESSFUL
MAKING THE TURN. AT ANOTHER POINT IN HIS TESTIMONY HE SAID HE FAILED TO
NEGOTIATE A FULL LEFT TURN. SO WHAT WAS THE JUDGE LEFT WITH? HE WAS
LEFT WITH THE OTHER TESTIMONY OF DETECTIVE HECK ABOUT WHAT THE DATA TOLD
HIM. AND THE DATA TOLD HIM THAT IN THE COURSE OF 4.65 SECONDS, MOVING FROM A ROLLING
STOP AT 3 MIEMS AN HOUR TO HITTING THE PLAN INTERPRETER HE ACHIEVED A MAKTS
#34U8 SPEED OF 37 MILES PER HOUR. AND THE JUDGE WANTED TO KNOW WHAT ABOUT THAT
PART SUGGESTS RECKLESSNESS, WHAT ABOUT THAT PART TELLS ME THAT HE WAS AWARE
OF A SUBSTANTIAL AND UNJUSTIFIABLE RISK AND THAT HE CONSCIOUSLY AVOIDED IT. THE
REALITY IS HE DID HIT THE CURB HE LOST CONTROL AND WITH A SEK LATER HITS THIS
PLANTAR AND I WANT TO NOTE YOU KNOW THE APPELLATE DIVISION MAJORITY MADE
A LOT TO DO ABOUT WHAT HAPPENED AFTER HE HITS THE PLANTAR. AND I AM NOT SURE THAT'S
RELEVANT AT ALL BECAUSE WHAT HAPPENS WHEN HE HITS THE MRANLTER IS THE AIR
BAG SPLOEDZ IN HIS FACE AND THEY SAY WELL HE DIDN'T HIT THE BRAKE. FROM THE TIME
THAT HE HITS THE CURB UNTIL THE TIME THAT HE LITS THE MRA THAN TAR IS VIRTUALLY
A SECOND. SO THE JUDGE SAID TO THE PROSECUTOR, YOU ARE TRYING TO TELL ME THAT
THIS SPEED WAS EXCESSIVE, THIS ACCELERATION HOW SHOULD I WHY SHOULD I
CONCLUDE THAT? WHAT CAN YOU TELL ME THAT CONVINCES ME THAT THAT SPEED IN AND OF
ITSELF, HOW FAST HE'S ACCELERATING, AND THE PROSECUTOR REALLY HAD NO ANSWER
FOR IT HE SATDZ WELL YOU CAN INFER RECKLESSNESS. AND ONE OF THE MOST TELLING THINGS
I THINK ABOUT THE COLLOQUY WITH THE PROSECUTOR WAS WHEN THE JUDGE SAYS,
WHY DIDN'T YOUR EXPERT ADDRESS THIS? BECAUSE AS YOU MAY REMEMBER FROM THE GRAND JURY
TRANSCRIPT, THE FIRST THING THE PROSECUTOR DID WAS ESTABLISH THAT DETECTIVE HECK
HAS HAD 700 HOURS OF TRAINING IN ACCIDENT RECONSTRUCTION YET HECK WHO TESTIFIED
FOR THE STATE NEVER SAID ANYTHING ABOUT THAT WAS TOO FAST. SO WE HEAR FROM
THE PROSECUTOR YOOK TERMS LIKE HE'S GUNING IT, HE'S RAPIDLY ACCELERATING. THE
JUDGE SAYS WELL YOU HAVE GOT TO GET OUT INTO A HIGHWAY OR A ROADWAY WHERE THE
SPEED LIMIT IS 45 MILES AN HOUR. WHAT IS IT ABOUT ACHIEVING 37 MILES PER HOUR
IN 4. 65 SECONDS THAT TELLS ME THAT THERE IS A CONSCIOUS DISREGARD OF AN
UNJUSTIFIABLE AND SUBSTANTIAL RISK? CHIEF JUSTICE RABNER: MR. BENEDICT.
RESPONDENT'S ATTORNEY: APPELLANT'S ATTORNEY: YES.
CHIEF JUSTICE RABNER: FLIM IT AROUND FOR US SFLOO SURE.
CHIEF JUSTICE RABNER: ARE YOU ARGUEING THAT ONE CANNOT INFER RECKLESSNESS
FROM WRAPPED ACCELERATION OF THIS SORT? APPELLANT'S ATTORNEY:
I'M SURE THEY COULD IF THERE WERE EVIDENCE THAT THIS WAS RAPID OTHER THAN THE
PROSECUTOR'S ^ CON ^ CONNECTICUT CLUS REREMARKS. I THINK IT JUDGE WAS FULLY WITHIN
HIS RIGHT SAYING WHY DIDN'T YOUR EXPERT TESTIFY TO THAT? HE SAID IF YOUR
EXPERT SAID THAT THAT WAS TOO FAST, THAT HE WAS MOVING TOO QUICKLY MAKING A TURN
AND HE COULD LUGS CONTROL THEN I WOULD HAVE SOMETHING TO RELY UPON BUT FOR THE
PROSECUTOR TO JUST MOUTH THESE WORDS. JUSTICE ALBIN: FORGET
ABOUT THAT. APPELLANT'S ATTORNEY: YES IT AN AMAL YOU INFER
RECKLESS FROM FROM A CAR MROUNTSING AN I SIDEWALK JUDGE US THAT ALONE NOR GET ABOUT
SPEED, A CAR FOR PURPOSES OF THE GRAND JURY, CARS ARE NOT SUPPOSED TO BE
RIDING ON THE SIDEWALKS. APPELLANT'S ATTORNEY: AGREED.
JUSTICE ALBIN: SO THIS ONE IS FOR A SHORT DISTANCE AND WITH FATAL KWENLSS IS
RIDING ON A SIDEWALK. FROM THAT ALONE WOULD A SGRIEFRJTS V GRANLDZ JUROR
BE ABLE TO INFER RECKLESSNESS. APPELLANT'S ATTORNEY: I WOULD CERTAINLY
HOPE NOT. THE WITNESS FOR THE STATE DESCRIBED IT AS BEING UNSUCCESSFUL
IN MAKING THE TURN. YOU KNOW, THE LEGISLATURE HAS DEFINED FOR US WHAT THEY MEAN
BY RECKLESS AND WHAT THEY MEAN BY NEGLIGENCE. THE DIFFERENCE BETWEEN
THE FAILURE TO PERCEIVE AND BEING AWARE, BEING AWARE THAT YOU'RE CREATING AN
UNJUSTIFIABLE RISK, LOSEING CONTROL OF A VEHICLE AND MAKING A LEFT TURN IN THE WORDS
OF DETECTIVE HECK, HE WASN'T SUCCESS FUM IN MAKE THE TURN. I THINK THE STATE
IS TRYING TO GO TOO FAR IN CONVERTING COMMON NEGLIGENCE INTO A CRIMINAL
CONDUCT. AND I DON'T KNOW IF THERE'S ANYTHING MORE I CAN SAY. I THINK I'VE.
CHIEF JUSTICE RABNER: #5DING TO THE MIX THE INFORMATION THAT COMES
FROM KA LET ME IF I AM REMEMBERING THE NAME CORRECTLY.
APPELLANT'S ATTORNEY: WELL, KA LET ME YOU HAVE BOTH STATEMENTS FROM KA LET ME.
IN THE VERY FIRST STATEMENT HE DOES DESCRIBE THAT HUANG DOES LIKE TO FEEL
THE FEEL OF ACCELERATION AND HE'S ASKED YOU KNOW HOW OFTEN DOES THAT HAPPEN HE SAYS
MRAB ONE OUT OF THREE TIMES. AND THEN HE IS SPECIFICALLY ASKED, WAS HE GOING
TOO FAST? DID HE STOMP ON THE I THINK IT QUESTION WAS DID HE STOMP ON THE
GAS PEDAL AND HE SAYS NO. AND THE DETECTIVE SAYS WELL WHY DO YOU SAY THAT? AND
HE SAID BECAUSE IT DIDN'T SEEM LIKE HE WAS GOING THAT FAST. AND THEN THE
DETECTIVE SEEMINGLY STARTS TO ARGUE WITH HIM HEY DIDN'T YOU TELL ME HE LIKES THIS
FEELING YOU KNOW HE HAD TO HAVE GONE FAST IN ORDER TO MAKE THAT TURN AND
LOSE CONTROL? AND THEN HE SUBSEQUENTLY TAKES A STATEMENT FROM -- YES.
JUSTICE FERNANDEZ-VINA: DOES THE RATE OF ACCELERATION PLAY IN PART THIS IN
THIS ANALYSIS NOT THE TERMINABLE SPEED BUT THE RATE AT WHICH THE CAR A RIECHD
ALT THAT SPEED THE FACT THAT THE GAS PED WALL WAS 75 PERCENT DEE PRESZED
THAT IT ARRIVED FROM ZERO TO THAT SPEED IN A SHORT DISTANCE OF TIME DOES THAT DPOE
INTO THE EQUATION? IN OTHER WORDS WHEN A CAR IS AT A TOP YOU CAN GO TO
60 MILES AN HOUR TAKE HALF A MILE YAER MRIEM TO GET THERE OR YOU CAN GET THERE
IN 75 YARDS IF YOU'RE DRAG RAISING DOES THAT DISTANCE WHICH THE CAR ARRIVED
AT THAT SPEED PLAY APART IN THE ANALYSIS? APPELLANT'S ATTORNEY:
I THINK IT COULD HAVE. AND I THINK IF AN EXPERT SAID THAT ACHIEVING -- LET'S
TAKE A LOOK ALT THE DATA. HIGH WENT FROM 3 MILES AN HOUR TO 37 MILES AN HOUR IN
4. 65 LETTERS -- SECONDS. THERE IS NOTHING ABOUT THAT THAT REST NATS THAT
SAYS THAT'S AN UNREASONABLE. JUSTICE FERNANDEZ-VINA: WOULDN'T YOU
NEED AN EXPERT TO MAKE THE ARGUMENT YOU ARE MAKING? DOES THAT GO TO A JURY
FOR I JURY TO DECIDE JUST LIKE AN EXPERT JUST LIKE YOU ARE SAYING THAT DOESN'T
RESONATE AS SPEEDSING WOO E DON'T KNOW THAT BECAUSE WE DON'T HAVE AN EXPERT
TO TALK ABOUT- COMPANY EFFICIENT OF TRACTION, SPEED OF THE ENGINE, RATE OF
ACCELERATION WITH THE GAS THE PART WHERE WE DO HAVE THE AN SUCCESS SELL RACIAL
FRLT GAS FETDAL SHOULDN'T SOMEONE BHUT ALL THAT TOGETHER AND THAT WOULD BE BELT
ER BEFORE A JURY A PETIT JURY. APPELLANT'S ATTORNEY: THAT'S
WHAT THE JUDGE FELD THE EXPERT WAS IN FRONTS OF THE GRAND JURY HE WANTED TO
KNOW WHY WASN'T HE ASKED THAT QUESTION WHY AND I SUPPOSE STOD RELY ON YOU TELLING
ME THAT GOING DPAUS FAUS YOU ARE NAK CAN THE COUNTER ASHTH THAT IT DOESN'T
BE SPEAK OF RAPDZ ACCELERATION BUT WE DON'T KNOW THAT EITHER BECAUSE YOU DON'T
HAVE AN EXPERT THERE YAS NO EXPERT TO SAY THAT EITHER. APPELLANT'S
ATTORNEY: I THINK IT JUDGE A MRIETD COMMON SENSE. I MEAN, 4 AND A HALF OVER 4 AND A
HALF SECONDS TO INCREASE YOUR SPEED BY SOME 30 MILES PER HOUR?
JUSTICE FERNANDEZ-VINA: SOME CARS SOME CARS CAN ACHIEVE THAT SPEED IN 2 SECONDS.
APPELLANT'S ATTORNEY: YEAH. JUSTICE FERNANDEZ-VINA:
SOME CARS TAKE 10, 12 SECONDS TO ACHIEVE THAT SPEED SO WE DON'T KNOW WHAT
THE ACCELERATION CAPABILITY OF THIS CAR WAS, AND SHOULDN'T A JURY DECIDE FUM JURY
DECIDE THAT DURING THE TRIAL RATHER THAN ON AN INDICTMENT?
APPELLANT'S ATTORNEY: I DISAGREE. I THINK THAT JUDGE PAY OWN WAS REQUIRED TO SEE
WHORT SGLIEFRNLTS WHETHER OR NOT THERE WAS SUFFICIENT EVIDENCE IN THIS RECORD TO
SUBSTANTIAL YAT THE CLAIM BY THE STATE THAT THIS WAS RECKLESS CONDUCT.
JUSTICE ALBIN: LENL ASK YOU A QUESTION ABOUT THE STANDARD OF REVIEW.
APPELLANT'S ATTORNEY: SURE. JUSTICE ALBIN: SHOULD THE STANDARDS
OF REVIEWING IN DETERMINEING WLORT KNOWS THERE IS A PRIME NASHG YA VIEW
BEFORE THE GRAND JURY BE DE NOVO AS OPPOSED TO DISCRETION NO DIFFERENT THAN THE
STANLTD AFTER REVIEW WREE WOULD APPLY IN A SUMMARY JUDGMENT MATTER OR WHETHER
OR NOT A JUDGMENT WAS PROPERLY ENTERED BY A COURT. APPELLANT'S
ATTORNEY: NOT A QUESTION I REALLY WAS ANTICIPATING BEING ASKED. I FEEL VERY
COMFORTABLE IN RELYING ON WHAT THE CASE LAW TELLS ME THE STANDARD IS RIGHT NOW WHICH IS
YOU HAVE TO FIND THE JUDGE PAY OWN ABUSED HIS DISCRETION. JUSTICE
ALBIN: IT DOES RESPECT SEEM -- IT MIGHT MAKE SENSE IN CERTAIN INSTANCES LIKE WHETHER
OR NOT THERE IS EXCULPATORY EVIDENCE BUT WHEN THE COLD RECORD KBL REVIEWED
BY THIS COURT JUST AS WELL AS BY THE TRIAL COURT AND WHERE THERE ARE NO FACT FINDINGS
BECAUSE IT WAS SUPPOSED TO BE LOOKING AT THE RECORD, IN THE LIGHT MOST
FAVORABLE TO THE STATE, I DON'T KNOW WHY THIS WOULD NOT BE A DE NOVO STANDARD OF
REVIEW UNDER THIS PRECISE CIRCUMSTANCE. AND CAN YOU RESPOND TO THAT.
APPELLANT'S ATTORNEY: I THINK EVEN WITH A DE NOVO REVIEW THIS EVIDENCE
HAS BEEN LOOKED AT BY FOUR DIFFERENT JUDGES, TWO OF THEM DID NOT FEEL THAT IT
AMOUNTED TO PROBABLE CAUSE. IS THAT THE KIND OF CASE YOU WANT MY CLIENT
TO HAVE TO STAND A JURY TRIAL FOR, WITH THE EMOTION AM WEIGHT THAT'S GEEG TO BE
THROWN AGAINST HIM BY THE STATE? THIS WAS A WHO ARE RISK ACCIDENT. YOU
KNOW THE FIRST TIME THEY WENT TO THE GRAND JURY THEY WERE ABLE TO GET A GRAND JURY
TO VOTE THAT THE CONDUCT WAS KNOWING, THAT THERE WAS STREEM INDIFFERENCE
TO HUMAN LIFE. I DON'T WANT TO TRY THIS CASE IF IT'S NOT NECESSARY. JUDGE PAY
OWN CALLED IT THE RIGHT WAY AND I TRUST THIS COURT WILL SEE IT THAT WAY
AS WELL. CHIEF JUSTICE RABNER: QUESTIONS ANYONE.
APPELLANT'S ATTORNEY: THANK YOU. CHIEF JUSTICE RABNER: THANK YOU.
MISS HULETT. RESPONDENT'S ATTORNEY: MAY IT PLEASE THE
COURT. THE GENERAL PRINCIPLES OF LAW THAT ARE BEFORE THE CASE TODAY IN STATE
VERSUS HUANG ARE VERY WELL ESTABLISHED. A GRAND JURY IS NOT AN A JUD CONTACT TRI
BODY IT IS AN A KUS TRI BODY SO THEREFORE ISSUES OF ADMISSIBILITY OF EVIDENCE
ARE NOT AT PLAY. THE GRAND JURY DECIDES WHETHER THERE IS AN ADEQUATE BASIS TO
BRING FORTH A CRIMINAL CHARGE. CASE LAW CALLS IT A PRIMA FACIE CASE OR
PROBABLE CAUSE BUT IT'S SOME EVIDENCE THAT THE ELEMENTS OF THE FENGS HAVE BEEN
MET. AND ONCE THE GRAND JURY RETURNS AN INDICTMENT, IT'S PRESUMED TO BE
VALID. AND IT'S ONLY TO BE DISMISSED UPON THE CLEAREST AND PLAINEST GROUNDS, MEANING
PALPABLY DEFECTIVE AND ALONG THOSE LINES THE EVIDENCE THAT THE STATE PRESENTED
TO THE GRAND JURY IS REVIEWED IN THE LIGHT MOST FAVORABLE TO THE STATE. WHAT
HAPPENED HERE WAS THE TRIAL COURT FAILED TO REVIEW THE STATE'S EVIDENCE BEFORE
THE GRAND JURY IN ITS PROPER LIGHT. PREJUDGED THE CASE, DETERMINED AT THE OUTSET
THIS WASN'T A CASE FOR RECKLESS ONGS OF A MOTOR VEHICLE AND WAS JUST DETERMINED
TO DISMISS THE INDICTMENT. THE STATE THOUGHT OR HOPED THAT IT WOULD GET RELIEF
FROM THE APPELLATE DIVISION BECAUSE THE STANDARD OF REVIEW FOR THE TRIAL
COURT WAS ABUSE OF DISCRETION. AND THE MAJORITY IN THE APPELLATE DIVISION REVIEWED
THE EVIDENCE PROPERLY IN ACCORDANCE WITH THE LAW AND FOUND THAT THE STATE'S
INDICTMENT WAS SUPPORTED BY A PRIMA FACIE CASE. UNFORTUNATELY THE DISSENTING JUDGE
IN THE APPELLATE DIVISION MADE THE SAME MISS ANALYSIS THAT THE TRIAL COURT
DID, FOUND THAT WE HADN'T PRESENTED ENOUGH EVIDENCE AND THAT WE HADN'T EVEN PRESENTED
EVIDENCE OF A CRIME. AND WENT EVEN FURTHER TO IMPUGN THE MOTIVATION AND
INTEGRITY OF THE STATE IN GOING BACK TO THE SECOND GRAND JURY. WHEN THERE WAS
NO SUPPORT WHAT SOVEREIGN FOR SUCH A CLAIM. WAS NOT A BASIS FOR DISMISSING
THE SECOND INDICTMENT AND IT WAS NEVER AN ARGUMENT PROFFERED BY THE DEFENSE.
THE MAJORITY OPINION CORRECTLY APPLIED THE LAW IN LOOKING AT
THE STATE'S EVIDENCE. AND I WANTED TO POINT OUT A FACT YAL MATTER IN THE COURSE
OF THE DIGS SENTS' OPINION THE DISSENTING JUDGE WRITES THAT THERE WERE NO
MOTOR VEHICLE SUMMONSES ISSUED. NOW, AT THE ORAL ARGUMENT IN JANUARY OF LAST YEAR
THERE WAS A QUESTION ASKED ABOUT WHETHER THERE WERE SPEEDSING TICKET AND THE
TRIAL PROSECUTOR SAID NO BUT THERE WERE TICKETS. THERE WERE FIVE MOTOR VEHICLE
TICKETS ISSUED AGAINST DEFENDANT, RECKLESS DRIVING, CARELESS DRIVING, UNSAFER
OPERATION OF A MOTOR VEHICLE, IMPROPER RIDING ON A COULD I BE, AND UNSAFE LANE
CHANGE. THE UNSAFE LANE CHANGE TICKET WAS BASED ON WHEN THE DEFENDANT TURNED
AND CROSSED THE HIGHWAY HE CROSSED OVER THE DOUBLE YELLOW LINES AS OPPOSED TO GOING
THROUGH THE BREAK IN THE DOUBLE YELLOW LINES WHERE YOU ARE SUPPOSED TO NAK
YOUR TURN. SO THERE WERE SPIEDING TICKETS THAT WERE MENTIONED BRIEFLY IN THE ORAL
ARGUMENT BUT THERE WERE TICKETS. AND SINCE I ALSO WANTED TO
CLOSE REPLY OWNING WITH THE SPEED OF THE VIDEO. WHEN COUNSEL CALLED YESTERDAY
AND SAID YOU'RE DIFSHG PLACE TOO FAST, IF YOU PLAY IT IN WINDOWS MEDIA IT PLACE
TOO FAST. THE WAY THE TRIAL PROSECUTOR PLAYED IT FOR THE GRAND JURY WAS
V. L C MEDIA PLAYER WHICH PLACE IT IN REAL TIME. SO IT DEPENDS ON WHICH PROGRAM
YOU USE TO PLAY IT. SO THAT'S MY OPENING STATEMENT.
CHIEF JUSTICE RABNER: AT THE HEART OF THIS CASE IS WHETHER THERE IS SUFFICIENT
EVIDENCE OF RECKLESSNESS VIEWED IN THE LIGHT YOU'VE DESCRIBED. TEM US WHAT
THE MOST IMPORTANT PIECE OR PIECES OF EVIDENCE IN THAT REGARD ARE.
RESPONDENT'S ATTORNEY: I SAY EVERY SINGLE PIECE THAT WE PRESENTED WAS IMPORTANT.
I'LL START WITH THE SURVEILLANCE VIDEO. NUMBER ONE. NUMBER ROW UNNO, IT
TELLS YOU EXACTLY WHAT HAPPENED, IT SHOWS YOU HOW HE CAME OUT OF THAT STRIP MALL,
CROSSED THE HIGHWAY, AND WENT RIGHT UP ON THE CURB. HE NEVER HAD CONTROL OF THE
CAR. IN 4.65 SECONDS HE EXITED FROM THE STRIP MALL, CROSSED THE HIGHWAY
SHGSZ WENT UP ON THE COULD I BE, WAS SUCCESS SELL RATING NEVER PLACED HIS BRAKE
S. SO THAT'S BASED ON THE VIDEO THAT SHOWS YOU WHAT HAPPENED. TWO, THE
PAGE FROM THE DATA RECORDER INSIDE THE CAR WHICH TELLS YOU WHAT WAS GOING ON INSIDE
THE CAR AT THE TIME THAT THIS HAPPENED. HIS RATE OF ACCELERATION, HE WENT
FROM A LOW NUMBER TO ALMOST FULL THROTTLE 70 PERCENT WITHIN LESS THAN 5 SECONDS. AND
IT'S NOT LIKE HE'S MAKING A HE'S GOING STRAIGHT, HE'S MAKING A TURN. SO
THE VIDEO, THE DATA RECORDER EVIDENCE. ALSO VERY IMPORTANT WERE THE I WITNESSES
WHOSE STATEMENTS WERE SUMMARIZED. 3 I WITNESSES SAW THE DEFENDANT COME OUT
AND SAID THAT HE WAS GOING AT A FAST RALT OF SPEED SGLIEFRJTS RATE OF SPEED. YOU
HAVE THE STATEMENTS OF HIS FIRST FRONT SEAT PASSENGER WHO TOLD POLICE HOW
DEFENDANT LIKED THE FEEL OF ACCELERATING FROM A STOPPED POSITION TO SUDDENLY GOING
FAST AND BEEGS PUSHED BACK IN THE CAR. HE SAID THAT WHEN THEY LEFT THE STRIP MALL
TO CROSS THE HIGHWAY HE DID FEEL THAT SENSATION. DIM TIM ISN'T THAT JUST
PHYSICS. RESPONDENT'S ATTORNEY: YES, YOUR HONOR IT IS COMMON
SENSE CONTINUAL TIM DOESN'T THAT HAPPEN EVERY TIME YOU PUT YOUR FOOT ON THE ACCELERATOR
THAT YOU GET PUSHED BACK ON YOUR CAR. RESPONDENT'S ATTORNEY:
NO IF YOU FUSH IF YOU PUSH TOO FAST NO YOU DON'T. I BASE IT 0 THAN MY OWN
PERSONAL EXPERIENCE WHEN I MAKE A TURN I DON'T GO 37 MILES AN HOUR IN 5 SECONDS I DON'T
TIM TEM THAT DOESN'T ANSWER MY QUESTION DO YOU GET PUSHED BACK WHEN YOU HIT
THE ACCELERATOR? ISN'T THAT JUST NORMAL DRIVING? RESPONDENT'S
ATTORNEY: NO, YOUR HONOR, NO. JUSTICE TIMPONE: OKAY.
RESPONDENT'S ATTORNEY: NO. THIS WAS NOT NORMAL DRIVING. JUSTICE
FERNANDEZ-VINA: I GOOD EAST IN A WOULD ALL DEPENDS ON HOW FAR YOU PUSHLG THE DECK
THE HARTDER YOU DO IT. RESPONDENT'S ATTORNEY: THAT WAS THE
POINT I WAS TRYING TO MAKE IF YOU DON'T PRESENT EAST SO HARDZ ON THE
PEDESTRIANAL YOU ARE NOT GOING TO HAVE THAT PUSH BACK IN THE SEAT IN ORDER TO GET
THAT YOU HAVE TO PUSH VERY HARD. JUSTICE FERNANDEZ-VINA:
HOW IS THE EVIDENCE THAT HE ENJOYED THE FEELING OF SPEED HOW WAS THAT
PRESENTED UNDER WHAT RULE WOULD THAT BE ADMISSIBLE? RESPONDENT'S
ATTORNEY: WELL THE STATE SUBMITS IT WOULD BE ADMISSIBLE AS MAYBE HABIT EVIDENCE,
IF IT CAME TO ADMISSIBILITY ISSUE, IF IT FELL UNDER THE RUB BRICK OF 404
B IT WOULD COME IN ON THE ISSUE OF MENTAL STATE. AND THE REASON WHY IT WAS PROBATIVE
AND IMPORTANT WAS AT THE FIRST ORAL ARGUMENT WHEN THE TRIAL COURT WAS
QUESTIONING THE STATE, HE COULDN'T UNDERSTAND HOW THE STATE'S THEORY OF RECKLESSNESS
COULD BE BASED ON HOW HE CAME OUT OF THE STRIP MALL. IN OTHER WORDS, THE
ARGUMENT WAS WELL HE HAD TO COME OUT OF THERE FAST BECAUSE THE CARS THAT WERE
CONGRESS THIS WAY AND THIS WAY ON ROUTE 27 WERE GOING AT A SPEED LIMIT OF AT LEAST
40 MILES PER HOUR BECAUSE THAT'S THE SPEED LIMIT ON THE HIGHWAY. BUT WHAT
THE STALT WANTED TO SHOW WAS THAT THE REASON WHY HE WENT OUT SO FAST WAS AS WE
SAID IN LAY MAN'S PARLANCE HE WAS GUNING THE CAR AND THAT'S WHY HE WENT
OUT AT THE ACKNOWLEDGE WILL HE DID. HE DIDN'T LEAVE THE PARTING LOT THROUGH THE
BREAK IN THE DOUBLE YELLOW LINE, HE WENT STRAIGHT OUT ACROSS THE YELLOW LINES
BECAUSE HE WAS TRYING TO BEAT TRAFFIC AND HE WAS GOING TOO FAST. HE WANTED TO
BEAT THE CARS. AND WE HAD EVIDENCE FROM MR. VIRGINIA HEY OWE WHO WAS COMING
NORTHBOUND THAT HE HAD TO CHANGE LANES IN ORDER TO AVOID DEFENDANT'S CAR. SO THE
CONSCIOUS DISREGARD HERE WERE OF OTHER CARS, PEOPLE ON THE SIDEWALK, AND THE
ACCIDENT AND DEATH HERE SHOW THAT THERE ARE PEOPLE ON THE SIDEWALK AND HIMSELF AND
HIS PASSENGER. JUSTICE ALBIN: I KNOW THAT MUCH ABOUT CASE LAW
SAYS THE STANDARDS ABUSE OF DISCRETION BUT WHEN THE SOLE TASK OF OUR COURT IS TO
DETERMINE WHETHER OR NOT THERE IS SUFFICIENT EVIDENCE PRESENTED TO THE GRAND
JURY IS OUR REVIEW DE NOVO? RESPONDENT'S ATTORNEY: I WOULD SAY
THAT YOUR REVIEW IS WHETHER THE APPELLATE DIVISION A BUSZED ITS DISCRETION
AND YES IT COULD BE DE NOVO REVIEW BECAUSE IT IS A QUESTION OF LAW. IT'S WHETHER
WE PRESENTED. JUSTICE ALBIN: IT IT SEEMS TO ME IT IS OH E
NO DIFFERENT THAN THE APPROACH WE TAKE IN A SUMMARY JUDGMENT MOTION OR IN
DETERMINEING ON A COLD RECORD WHETHER OR NOT A JURY ROOM OF ACQUITTAL WAS THE NOCHLT
O V WAS ENTERED WE KWO LOOK AT THE EVIDENCE IN THE LIGHT MOST FAVORABLE
TO THE STATE, THERE IS NO FACT FINDING, AND IN THAT REGARD OUR TASK IS NO DIFFERENT
THAN THAT OF THE TRIAL COURT OR THE APPELLATE DIVISION AND NO COURT IS IN
A BETTER POSITION THAN ANY OTHER COURT IN LOOKING AT THE RECORD.
RESPONDENT'S ATTORNEY: I DON'T DISAGREE WITH YOUR HONOR ON THAT NOT AT ALL.
JUSTICE PATTERSON: SO YOU ARE SAYING WE SHOULD NOT CONSIDER THIS WE
SHOULD NOT REVIEW JUDGE PAY OWNS' DECISION UNDER AN ABUSE OF DISCRETION STANDARD?
RESPONDENT'S ATTORNEY: WELL I'M ASKING THE COURT TO REVIEW
THE MAJORITY OF THE APPELLATE DIVISION. JUSTICE PATTERSON: I AM JUDGE
US ASKING I BELIEVE JUSTICE ALBIN IS ASKING WHY THE STANDARD OF REVIEW OF
THE TRIAL COURT'S DECISION REVIEW OF THE EVIDENCE. RESPONDENT'S
ATTORNEY: I AM SORRY I AM SORRY I THOUGHT YOU WERE ASKING ABOUT THE ANGS.
JUSTICE ALBIN: NO NO PATD PAT NO. RESPONDENT'S ATTORNEY: I AM SORRY.
THE JUDGMENT UNDER REVIEW HERE IS THE APPELLATE DIVISION FAT PAT RIGHT BUT
I BELIEVE WHAT YOU MIGHT HAVE JUST ANSWERED AS DE NOVO IS THE QUESTION BEING
ASKED WAS WHAT IS THE STANDARD OF REVIEW THAT THIS COURT SHOULD APPLY IN
REVIEWING THE COURT'S VIEW SGLIEFRJTS REVIEW OF THE EVIDENCE FOR PURPOSES OF DECIDING ON
WHETHER OR NOT THE INDICTMENT SHOULD BE. RESPONDENT'S ATTORNEY:
THE STANDARD OF REVIEW IS WHETHER THE APPELLATE DIVISION ABUSED ITS
DISCRETION IN HOLDING THAT THERE WAS SUFFICIENT EVIDENCE PRESENTED AM.
JUSTICE ALBIN: AL SO WE OKAY SO WE ARE NOT GOING IN CIRCLES, WE START OFF WITH
WHAT WOULD THE APPELLATE THE APPELLATE STANDARD OF REVIEW BE OF THE TRIAL
COURT I'M SUGGESTING THAT THAT WOULD BE DE NOVO. IT WOULD LOOK -- IT WOULDN'T
BE ABUSE OF DISCRETION, IT WOULD BE LOOKING AT THE TRANSCRIPT IN THE LIGHT MOST
FAVORABLE TO THE STATE AND MAKING A DECISION AND THEN HOUR V OUR STANDARDS
WOULD BE THE SAME, JUST THE WAY IT WORKS WITH A SUMMARY JUDGMENT MOTION.
RESPONDENT'S ATTORNEY: YOUR HONOR, THE STANDARD BEFORE THE APPELLATE DIVISION
WHEN IT REVIEWED THE TRIAL COURT WAS WHETHER THE TRIAL COURT A BUSZED YIS
DISCRETION IN DISMISSING THE INDICTMENT AND THERE IS CASE LAW THAT THE STATE CITED
FOR THAT PROPOSITION. JUSTICE ALBIN: SO I KNOW IT SAYS THAT #I78'
TRYING TO UNDERSTAND WHY WHEN WE'RE JUST DETERMINEING THE SUFFICIENCY OF THE EVIDENCE
IN A GRAND JURY TRANSCRIPT, WHY UNDER THAT CIRCUMSTANCE WE WOULD BE UTILIZING
AN ABUSE V DISCRETION STANDARD. WHY THE APPELLATE COURT WOK DOING THAT.
RESPONDENT'S ATTORNEY: WELL, YOUR HONOR, I AM JUST RECITE GOES WHAT THE LAW
PROVIDERS ON HOW YOU REVIEW A DISMISSAL OF AN INDICTMENT ONCE IT'S BEEN DONE.
AND ONCE IT'S BEEN DISMISSED, THE ISSUE IS WHETHER THE TRIAL COURT A BUSZED ITS
DISCRETION. SO LIKEWISE FOR HERE AMAL WHAT DOSZ THAT MEAN? OKAY SO IF YOU
ARE GOING TO USE ABUSE OF DISCRETION, HOW DO I DETERMINE WHETHER OR NOT THE APPELLATE
DIVISION A BUSZED ITS DISCRETION? RESPONDENT'S ATTORNEY: WELL
YOU WOULD LOOK AT ITS DECISION, HOW IT APPLIED THE ESTABLISHED PRECEDENT
THAT I'VE ALREADY OUT LIENDZ, WHETHER IT MADE A CLEAR EXERCISE, A CLEAR MISTAKE.
JUSTICE FERNANDEZ-VINA: WE WOULDN'T LOOK AT THE FACTS AT
ALL, THE FACTS THAT UFSHG PRESENTING WE WONTS LOOK AT THEM AN AT ALL JUDGE US SEE
WHETHER THE APPELLATE DIVISION REVIEWING THAT FACTS ON A TRIAL DAY OF REVIEW
OF THAT WHETHER THEY A BUSZED THEIR DISCRETION COMING TO THEIR FINDING.
RESPONDENT'S ATTORNEY: WEALTH WHEN YOU REVIEW THE APPELLATE DIVISION DECISION
YOU HAVE TO LOOK AT THE EVIDENCE THAT IT REVIEWED THAT WE PRESENTED TO THE
GRAND JURY SO I DON'T UNDERSTAND HOW YOU COULDN'T LOOK AT THE FACTS OR THE EVIDENCE
THAT WAS SUBMITTED. JUSTICE PATTERSON: GO THROUGH THE SAME
PROCESS JUST TO BE CLEAR THE STATE IS NOT AGREEING OR A PROPONENT OF CHANGSING THE
APPELLATE STANDARD FOR A DISMISSAL OF AN INDICTMENT SUCH AS EXISTS HERE FROM
ABUSE OF DISCRETION TODAY KNOW OF AM I RIGHT ABOUT THAT THE STATE IS NOT.
RESPONDENT'S ATTORNEY: NO THE STATE WAS NOT SEEKING THAT. CHIEF
JUSTICE RABNER: AND YOU'RE ARGUEING THAT THERE WAS AN ABUSE V DISCRETION AT TRIAL
COURT LEVEL. RESPONDENT'S ATTORNEY: AS WELL AS WHY E AND
THAT'S WHY WE WERE FORTUNATE TO CONVINCE THE MAJORITY IN THE APPELLATE DIVISION
THAT THERE HAD BEEN. BUT UNFORTUNATELY THE DIFFICULTIES SENTENCING JUDGE
FOLLOWED THE REACTS NALT AND REASONING OF THE TRIAL COURT. AND WHERE THE ABUSE
OF DISCRETION KOIRDZ WAS AS I SAID IN MY OPENING, WAS THE TRIAL COURT JUST DIDN'T
REVIEW THE EVIDENCE IN ITS PROPER LIGHT. THIS IS A GRAND JURY PROCEEDING.
IT'S JUST WHETHER THERE IS SOME EVIDENCE TO SUPPORT THE STATE'S CHARGES. ILTHS'
NOT A TRIAL ON THE MERITS. AND A LOT OF THE ARGUMENTS THAT DEFENDANT MADE
BELOW WERE ARGUMENTS FOR TRIAL. WE JUST HAD TO SHOW SOME EVIDENCE SUPPORT GOES
OUR CHARGE. AND WE CLEARLY DID. AND ALL THE PIECES OF EVIDENCE THAT WE
SUBMITTED, THE VIDEO, THE DATA RECORDER SHEET, THE OUTLINE OF THE WITNESS TESTIMONY,
WERE ALL VERY IMPORTANT TO SHOW THAT THIS WAS A RECKLESS OPERATION OF A
MOTOR VEHICLE. AND WE CLEARLY SET FORTH AND WE PRESENTED A DIFFERENT PRESENTATION
THAN WE DID THE FIRST TIME. JUSTICE ALBIN: SO I AM JUST I AM
JUST TRYING TO NAIL DOWN IN MY MIND THE STANDARD. IF IT'S ABUSE OF
DISCRETION, SHOULD WE BE PAYING DEFERENCE TO THE TRIAL COURT? THE TRIAL COURT'S DECISION? IN THE FIRST INSTANCE. RESPONDENT'S ATTORNEY: NO
BEFORE THE COURT. JUSTICE ALBIN: THE APPELLATE DIVISION HAVE A
DEFERENCE TO THE TRIAL COURTS DECISION? RESPONDENT'S ATTORNEY: NO.
JUSTICE ALBIN: WHY NOT? RESPONDENT'S ATTORNEY:
WELL, THE ISSUE WAS WHETHER OR NOT THE TRIAL COURT PROPERLY REVIEWED THE
EVIDENCE IN DETERMINEING THAT WE HAD NTS ESTABLISHED A PRIMA FACIE CASE.
JUSTICE PATTERSON: WHEN YOU REVIEW UNDER AN ABUSE OF DISCRETION STANDARD
ANY TIME YOU DO THAT YOU ARE AFFORDING SOME DEFERENCE TO THE TRIAL COURT,
CORRECT? RESPONDENT'S ATTORNEY: WELL, I DON'T SEE HOW THERE
WAS ANY DEFERENCE HERE HE REVIEWED THE EVIDENCE AND DIDN'T GIVE IT ITS DUE WEIGHT
AND FOUND THAT THERE WAS NO CRIME. JUSTICE PATTERSON: I AM SORRY.
WHEN THE APPELLATE DIVISION OR ANY APPELLATE COURT VUFRS A TRIAL COURT'S
DETERMINATION UNDER AN ABUSE OF DISCRETION STANDARD, THAT DOES GIVE DEFERENCE IT
DOESN'T MEAN IT DOGS THAN THE GET REVERSED BUT IT DO GIVE SOME DID HE EVER
RENS TO THE TRIAL CORE AS A GENERAL MATTER DOES IT NOT?
RESPONDENT'S ATTORNEY: I'M NOT AWARE OF THAT BEING THE CASE, YOUR HONOR. USUALLY
WE GIVE DEFERENCE TO FACT FINDING OF A FACT FINDER. BUT HERE THE JUDGE
WAS MAKING AS I INDICATED EARLIER HE WAS MAKING A CONCLUSION OF LAW WHETHER OR
NOT THERE WAS A PRIME FAIR AND ACCURATE YA CASE BEFORE THE GRAND JURY. HE
WASN'T MAKING FINDINGS OF FACT HE DIDN'T MAKE THE FIRST TIME AROUND WHEN THE FIRST
DISMISSAL HE DID MAKE A CALL THAT THE INVESTIGATOR HAD MISLED THE GRAND JURY
BUT WITH RESPECT TO THIS INDICTMENT, THERE WAS NO CREDIBILITY CALL THAT WE HAD MISLED
THE GRNL. SO. JUSTICE PATTERSON: YOU ARE VIEWING THAT AS A
LEGAL ISSUE, WHETHER OR NOT THERE WAS SUFFICIENT EVIDENCE LOOKING AT THE IFTS AND
SUPPORTING. RESPONDENT'S ATTORNEY: GENTLEMEN IT IS A MIXED
QUESTION WHETHER THE EVIDENCE THAT WE SUBMITTED SUPPORTED THE STANDARD FOR OBTAINING
AN INDICTMENT. SO IT'S KIND OF MIXED. JUSTICE PATTERSON:
MIXED QUESTION OF LAW IN FACT ISN'T IT. RESPONDENT'S ATTORNEY:
YES. I -- YES. JUSTICE PATTERSON: IT IS NOT AN ISSUE OF LAW
SUCH AS THE INTERPRETATION OF A STATD ULTIMATE OR SOMETHING ELSE.
RESPONDENT'S ATTORNEY: NO IT'S MIXED. IT'S LIKE THE JUDGE VUFRS THE EVIDENCE THAT
WE PRESENTED AND THEN DETERMINES WHETHER OR NOT IT FIT THE STANDARD FOR
OBTAINING AN INDICTMENT. AND WHEN THE TRIAL COURT DISMISSED THE INDICTMENT, FIENTD
ING THAT THE STALT HADN'T MET A PRIMA FACIE CASE, WHEN THE STATE WENT TO THE
APPELLATE DIVISION IT WAS WHETHER THE TRIAL COURT'S DECISION IN THAT REGARD WAS
AN ABUSE OF DISCRETION WHETHER IT WAS CLEARLY MISS DAEN. SGLIEFRJTS TAKEN SO
THE STATE WAS OPERATING FLORIDA THAT IS THE SAME STANDARD BEFORE THIS COURT
WHETHER THE JUDGMENT OF THE APPELLATE DIVISION WHICH WOULD BE THE MAJORITY OPINION, WAS CLEARLY MISTAKEN AN ABUSE OF DISCRETION UNDER THE ESTABLISHED LAW
MAJORITY OPINION IS THE CORRECT OPINION, THE PROPER OPINION AND THE DISSENTING
OPINION IS NOT. CHIEF JUSTICE RABNER: MISS HULETT WE MAY
HAVE SIDE TRACK YOU WITH SOME QUESTIONS YOU POINTED US TO THE VIDEO, THE DATA
RECORDER, THE I WITNESSES AND THE PASSENGERS. IS THERE ANYTHING ELSE?
RESPONDENT'S ATTORNEY: YES. I POINT OUT THE MEDICAL RECORDS. WE SMILTED
ALL THE MEDICAL RECORDS FROM THE DATE OF THE SDENTD AND THE CRASH. WE ALSO
SUBMITTED MEDICAL EVIDENCE THAT THE DEFENSE ATTORNEY SUBMITTED TO US THAT WE SUBMITTED.
AND THE MEDICAL DOCUMENTS FROM JANUARY 16TH, 2016, DON'T SHOW THAT THERE
WAS SOME TYPE OF NEUROLOGICAL ORIFICE LOGICAL EXPLANATION FOR WHY THIS AWFUL
ACCIDENT AND CRASH HAPPENED. BUT WE PRESENTED IT. AND IN THOSE MEDICAL
DOCUMENTS THERE WERE STATEMENTS FROM THE DEFENDANT THAT ARE INCONSISTENT WITH WHAT
HE TOLD OUR INVESTIGATOR THAT WHEN HE CAME OUT TO MAKE THE TURN, HE SOMEHOW
SAW LIGHTS AND GOT DIZZY HE TOLD THE TRIAGE NURSE THAT HE LOST CONTROL OF HIS CAR
AND THAT HE HIT A CHILD AND SOME PEOPLE. THEN THERE IS A MEDICAL REPORT WHERE
HE TELLS A DOCTOR THAT HE LOST CONTROL OF HIS CAR AND HE WAS GOING 37 TO 40 MILES
PER HOUR. SO THOSE ARE CONSISTENT WITH HIM KNOWING EXACTLY WHAT WAS HAPPENING.
AND AS THE INVESTIGATOR TESTIFIED BEFORE THE SECOND GRAND JURY, THE FACT
THAT HE NEVER APPLIED HIS BRAKES IS VERY IMPORTANT THAT'S WHY THE DATA RECORDER
SHEET IS VERY PROBATIVE. BECAUSE IT TELLS YOU WHAT WAS GOING ON INSIDE
THE CAR. SO EVERY SINGLE PIECE OF ECHTS THAT WE SUBMITTED IT WAS IMPORTANT BECAUSE
IT PUT TOGETHER WHY THIS WAS A RECKLESS OPERATION OF THE CAR, WHY WE HAD A
PRIMA FACIE SHOWING THAT THERE WAS A RECKLESS OPERATION OF THE VEHICLE THAT LED
TO A DEATH AND SERIOUS BODILY INJURY. CHIEF JUSTICE RABNER:
QUESTIONS? ANYTHING YOU WOULD LIKE TO ADD. RESPONDENT'S
ATTORNEY: YES, YOUR HONOR. IF THE COURT AFRMS THE MAJORITY RULING,
AS THE STATE OUTLINES IN ITS BRIEF AND IN ITS LETTERS WE ASK THAT THIS COURT
BE REMANDED TO A DIFFERENT JUDGE. CHIEF JUSTICE RABNER: WHY IS THAT?
RESPONDENT'S ATTORNEY: THE STATE FEELS THAT THERE IS AN
APPEARANCE THAT WE WOULD NOT GET A FAIR TRIAL. AND THERE WOULD BE APPEARANCE ISSUES
WITH RULINGS WHERE THIS JUDGE TWICE WAS VERY FIRM IN HOLDING THAT THIS WAS
NOTHING MORE THAN CIVIL NEGLIGENCE. THE STATE'S ENTITLED TO A FAIR TRIAL. AND
THE VICTIMS ARE ENTITLED TO THE APPEARANCE OF IMPARTIALITY FROM THE BENCH.
JUSTICE TIMPONE: ARE YOU SUGGESTING THAT IF IT GOES BA CAN
TO THIS COURT YOU WOULD KNOW THE SGLIEFRMENT IT KWO NOT BE IMPARTIAL.
RESPONDENT'S ATTORNEY: WE THINK THAT YOU KNOW HE WOULD NOT BE IMPARTIAL.
JUSTICE PATTERSON: IS THAT BEYOND THE SCOPE OF THE DIFFICULTIES
SENT? THE APPELLATE DIVISION MAJORITY DID NOT GRANT THAT REMEDY. THE DIFFICULTIES
SENT DIDN'T ADDRESS THAT REMEDY. OBVIOUSLY WE'RE BOUND OUR SCOPE OF
REVIEW IS LIMITED BY THE SCOPE OF THE DIFFICULTIES SENT AND THAT'S PURELY A
QUESTION BACK AND FORTH WITH RESPECT TO THE WAY THE SGLIEFRNLTS WEIGHT OF THE
EVIDENCE. RESPONDENT'S ATTORNEY: WELL, IF THE COURT AFRMS
THE MAJORITY AND OF COURSE WE FEEL THAT IT KBL BEFORE THE COURT BECAUSE WE'RE SIMPLY
ASKING WHAT THIS COURT ORDERS FOR THE REMAND. IF IT GREASE WITH THE
MAJORITY THAT THIS INDICTMENT STANDS AND THERE HAS TO BE A REMAND FOR TRIAL, THE
STATE DOESN'T SEE WHY THE COURT COULDN'T ORDER THAT IT BE BEFORE A DIFFERENT
JUDGE. JUSTICE ALBIN: DID YOU REQUEST THAT RELIEVE BEFORE THE
APPELLATE DIVISION? RESPONDENT'S ATTORNEY: NO.
JUSTICE ALBIN: WHY NOT? WHY ARE YOU REQUESTING THAT RELIEF BEFORE THE SUPREME
COURT WHEN YOU DID NOT MAKE THAT REQUEST WHERE BEFORE THE APPELLATE DIVISION?
RESPONDENT'S ATTORNEY: WELL, AT THE TIME THAT WE ARGDZ IN THE
APPELLATE DIVISION OUR FOCUS WAS JUST ON GETTING THE INDICTMENT REINSTATED AND
PERHAPS IT WAS AN OVER SIETHS ONLY OUR PART THAT WE DIDN'T ASK FOR IT AT
THAT TIME. CHIEF JUSTICE RABNER: WOOEFRNDZ STAN YOUR POSITION.
RESPONDENT'S ATTORNEY: OKAY TUN. CHIEF JUSTICE
RABNER: THANK YOU MISS HULETT MISS LIEN ORDZ RESPONDENT: GOOD AFTERNOON,
YOUR HONORS. AN INDICTMENT BY GRAND JURY JUST THE VERY BEGINNING OF THE LONG CRIMINAL
PROCESS. AND THAT'S WHY THIS COURT HAS RECOGNIZED TIME AND AGAIN THAT IT IS AN
ACCUSATORY BODY, NOT AN JUDICATIVE ONE AND ITS ROLE IS TO INVESTIGATE POTENTIAL DEFENDANTS
AND DECIDE WHETHER A CRIMINAL PROCEEDING SHOULD COMMENCE. BUT ONCE THE GRAND JURY MADE
THAT DECISION HERE AND TWICE IN FACT, THE TRIAL JUDGE WAS DUTY-BOUND TO GIVE EVERY REASONABLE
INFERENCE TO THE STATE AND ONLY DISTURB THE INDICTMENT IF IT WAS MANIFESTLY DEFICIENT
OR PALPABLY DEFECTIVE AND IN MAKING THAT DETERMINATION HE WAS BOUND THE LOOK TO SEE IF
THE STATE PRESENTED SOME EVIDENCE AS TO EACH COUNT AND HERE THE ISSUE IS OF COURSE THE
ELEMENT OF RECKLESSNESS. THE SUM EVIDENCE THAT THE STATE PRESENTED INCLUDED THE VIDEO
-- THE DESCRIPTION OF THE VIDEO BY THE DETECTIVE HERE OF THE DEFENDANT PULLING OUT SO
QUICKLY THAT HE IMMEDIATELY LOST CONTROL OF HIS CAR. HE -- WHILE MAKING A LEFT-HAND TURN,
HE WAS ACCELERATING WITH HIS FOOT THREE-QUARTERS OF THE WAY DOWN TO THE FLOOR, AND, YOU KNOW,
I'D LIKE TO ADDRESS THIS FALLACY THAT JUST BECAUSE HE WAS ENTERING TRAFFIC HE HAD TO DO
SO QUICKLY TO SAFELY ENTER THE ROADWAY. HE WASN'T ENTERING ON AN ENTRANCE RAMP TON A
HIGHWAY ON A STRAIGHT-AWAY CH THIS WAS A LEFT-HAND TURN. HE WAS SITTING IN A PARKING
LOT. HIS OPTION WAS TO WAIT IF IT WASN'T SAFE TO ENTER THE ROADWAY. HE DIDN'T HAVE TO
ENTER WHEN HE DID. AND ENTERING SO QUICKLY SUCH THAT HIS BACK IS THROWN INTO THE SEAT,
IF YOU SLOWLY ACCELERATE, YOUR BACK ISN'T GOING TO BE THROWN INTO YOUR SEAT E AND WHAT
THE DEFENDANT'S FRIEND MENTHSED WHAT YOU THAT HE LIKED THAT SENSATION OF BEING THROWN
BACK INTO HIS SEAT. SO THE VIDEO SHOWING THE CAR ACCELERATING SO QUICKLY,
GET YOU GO UP ONTO THE SIDEWALK, HITTING THE SIGNS, HITTING THE CONCRETE PLANTER AND.65
SECONDS BEFORE HE HIT THE PLANTER, HE STILL HAD HIS FOOT THREE-QUARTERS OF THE WAY DOWN
TO THE FLOOR AND THEN AFTERWARDS HE GOES BACK ACROSS ALL FOUR LANES OF TRAFFIC STILL NEVER
TAPPING THE BRAKES. THAT IS SOME EVIDENCE OF RECKLESSNESS. AND IF THE DEF
ENDANT HAS A MEDICAL ISSUE THAT HE WANTED THE -- YOU KNOW, HE WANTS A GRAND JURY TO CONSIDER,
THAT'S HIS RIGHT AT THE APPROPRIATE TIME BEFORE THE ULTIMATE FACTFINDER. BUT IN THIS
REALM, WE'RE TALKING ABOUT AN UPHOLDING AN INDICTMENT. AND THE GRAND JURY FOUND A PRIMA
FACIE CASE. AND THE RECKLESSNESS IS SELF-EVIDENT BASED ON THE FACT THAT A VIDEO OF HIM
DRIVING DOWN THE SIDEWALK WITHOUT TAPPING HIS BRAKES, WITHOUT MOVING TO CORRECT HIMSELF,
THAT IS SELF-EVIDENT OF RECKLESSNESS. JUSTICE ALBIN: THE STANDARD OF REVIEW?
SHOULD THE ABUSE OF DISCRETION STANDARD BE COVERING A DE NOVO REVIEW? YOU'VE HEARD THE
QUESTION AND THE COLLOQUY. GO AHEAD. APPELLANT2: I HEARD THOSE QUESTIONS
AND FRANKLY BEFORE THEY WERE ASKED JUST NOW, I HADN'T CONSIDERED THAT. I THINK THAT THE
ABUSE OF DISCRETION STANDARD IS WORKABLE. IT ALWAYS HAS WORK. BUT IN ABUSING -- IN
DETERMINING WHETHER THE TRIAL COURT ABUSED HIS DISCRETION, I THINK THE COURT DOES HAVE
TO LOOK AT THE EVIDENCE THAT HAD BEEN PRESENTED TO DETERMINE WHETHER HE ABUSED HIS
DISCRETION, BECAUSE IT'S NOT JUST THE FACT FINDINGS HE MADE. IT'S WHAT ELSE WAS
PRESENTED THAT HE MAY NOT HAVE CONSIDERED. SO I THINK IT'S STILL AN ABUSE OF DISCRETION
STANDARD, BUT THE COURT HAS TO CONSIDER ALL OF THE EVIDENCE THAT WAS PRESENTED TO DETERMINE
WHETHER THE TRIAL JUDGE ABUSED HIS DISCRETION. AND HERE I THINK THAT'S CLEAR BECAUSE
OF THE EVIDENCE THAT WAS PRESENTED AND THE VERY LOW BAR THAT THE STATE HAD AT THE GRAND JURY
STAGE. CHIEF JUSTICE RABNER: THANK YOU. IS THERE ANYTHING ELSE YOU WANTED
TO ADD? APPELLANT2: JUST LASTLY THAT I WOULD AGREE WITH THE STATE THAT
BECAUSE OF THE STATEMENTS THAT THE TRIAL JUDGE HAS MADE ABOUT HIS PERSONAL OPINION ABOUT
THE STATE'S EVIDENCE, I THINK IT WOULD BE RIGHT TO RE-ASSIGN IT TO A DIFFERENT JUDGE.
CHIEF JUSTICE RABNER: THANK YOU. WE'LL TAKE THE MATTER UNDER ADVISEMENT