                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2750-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

KIMBERLY GREEN,

     Defendant-Appellant.
________________________________

                    Submitted September 12, 2018 – Decided September 28, 2018

                    Before Judges Sabatino and Sumners.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. 08-04-0537.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Carolyn V. Bostic, Designated Counsel, on
                    the brief).

                    Andrew C. Carey, Middlesex County Prosecutor,
                    attorney for respondent (Nancy A. Hulett, Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      Defendant Kimberly Green was convicted by a jury of second-degree

vehicular homicide, N.J.S.A. 2C:11-5, two counts of third-degree assault by

auto, N.J.S.A. 2C:12-1(c), and driving while intoxicated, N.J.S.A. 39:4-50. She

was found not guilty of first-degree aggravated manslaughter, N.J.S.A. 2C:11-

4(a). She was sentenced to an aggregate prison term of twelve years subject to

the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.            We upheld the

convictions on direct appeal. State v. Green, No. A-1882-10 (App. Div. Nov.

12, 2013).

      She thereafter filed a petition for post-conviction relief (PCR) alleging

ineffective assistance of trial counsel for failing to timely notify the State of

defendant's intent to present an accident reconstruction expert at trial .

Following an evidentiary hearing, Judge Michael A. Toto, who also presided

over the trial, entered an order denying PCR on the basis that counsel's lack of

timely notification, which resulted in the ruling to bar the expert's testimony,

did not constitute ineffective assistance because defendant did not show she was

actually prejudiced by the lack of expert testimony.

      On appeal, defendant argues in a single point:

             THE PCR COURT'S FACTUAL FINDINGS DO NOT
             SUPPORT    ITS   DETERMINATION     THAT
             DEFENDANT FAILED TO ESTABLISH THAT SHE
             WAS PREJUDICED BY HER TRIAL ATTORNEY'S

                                                                           A-2750-16T1
                                       2
             FAILURE TO OBTAIN AND IDENTIFY AN
             ACCIDENT RECONSTRUCTION EXPERT AT
             LEAST THIRTY DAYS BEFORE TRIAL, AS
             REQUIRED BY THEN [RULE] 3:13-3(d)(5), WHICH
             RESULED IN THE EXCLSION OF THE
             DEFENDANT'S   EXPERT'S     REPORT      AND
             TESTIMONY AT TRIAL

We affirm.

      We need not detail the procedural history and trial evidence as they are

fully addressed in our opinion affirming defendant's conviction on direct appeal,

Green, A-1882-10, and in Judge Toto's written opinion of December 12, 2016,

which accompanied his order of the same date denying defendant PCR. A brief

summary will suffice here.

      On December 27, 2007, defendant drove a friend to a restaurant for a late

meal. Arriving there at 10:20 p.m., they found the restaurant's kitchen was

closed, but they remained there to have some alcoholic beverages. At about 1:30

a.m., defendant drove her friend home, where she stayed for about an hour and

had something to eat. After shortly leaving around 2:30 a.m., defendant nearly

caused an accident when she drove through a red light, without slowing down

by applying her car's brakes, to enter onto Route One. She was then seen driving

between sixty and eighty miles per hour recklessly down the highway, almost

hitting another car, causing sparks from her car scrapping against the road's


                                                                           A-2750-16T1
                                       3
concrete median, and driving on the shoulder of the road. At the highway's

intersection with Black Horse Lane, defendant drove through another red light,

colliding broadside into another car that had the green light. Tragically, one of

the occupants of the car died shortly thereafter, and the two other occupants

were seriously injured.     Defendant was taken to the hospital, where she

consented to having her blood drawn at 4:50 a.m., which revealed a blood

alcohol concentration of .159 percent.

      Three weeks before defendant's trial, the State notified her counsel that it

planned to proffer the investigating police officer as an accident reconstruction

expert. A week after the State rested, counsel produced a defense expert report

and sought to have the expert testify regarding the speed of defendant's vehic le

when the accident occurred. Judge Toto granted the State's motion to bar the

report and the expert's testimony because counsel had not designated an expert

at least thirty days prior to trial as required by Rule 3:13-3(d)(5). For the same

reason, the judge rejected counsel's subsequent request to call the expert to the

witness stand to rebut the officer's testimony that it was not possible to assess

the speed of defendant's vehicle. He further added that defendant suffered no

prejudice from not having her expert testify because the expert's speed estimates

did not differ greatly from the testimony of the State's witnesses concerning the


                                                                            A-2750-16T1
                                         4
speed of defendant's car. In deciding defendant's appeal, we concluded the judge

did not abuse his discretion in barring defendant's expert testimony.

      After the jury rendered its verdict, the judge found defendant guilty of

motor vehicle offenses: driving while intoxicated, running a red light, reckless

driving, obstructing a roadway, and failure to maintain her car in a lane. He,

however, found defendant not guilty of speeding.

      At the PCR evidentiary hearing, counsel gave detailed testimony

regarding her trial strategies and the investigation she conducted after defendant

retained her sometime in 2009, following two other attorneys who had

represented defendant. Having learned between three to four months prior to

trial that defendant's automobile insurance carrier had retained an accident

reconstruction expert for the related civil case, counsel had obtained the carrier's

consent to use him in the criminal trial to testify regarding the speed of

defendant's car at time of the collision. However, close to the trial – she did not

recall when – the carrier withdrew its offer.1 Because of defendant's limited

financial resources, she did not secure another expert until the trial was under

way when the Public Defender's Office agreed to retain one. Among counsel's



1
  Counsel believed that she first saw the carrier's expert's report sometime in August
2009.
                                                                               A-2750-16T1
                                          5
various trial strategies was her desire to have the expert testify to place

reasonable doubt in the juror's minds that defendant was guilty of aggravated

manslaughter by establishing that she was driving about sixty-five to seventy-

five miles per hour, and not over eighty miles per hour as suggested by State

witnesses, and that the State's expert was wrong in claiming there could be no

calculation of the speed of defendant's car. Judge Toto denied defendant's PCR.

      To establish a prima facie claim of ineffective assistance of counsel, the

defendant must show that: (1) counsel's performance was deficient; and (2) the

deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687

(1984); State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must establish the right

to relief by a preponderance of the evidence. State v. Preciose, 129 N.J. 451,

459 (1992). Where, as here, the judge conducts an evidentiary hearing, we must

uphold the judge's factual findings, "'so long as those findings are supported by

sufficient credible evidence in the record.'" State v. Rockford, 213 N.J. 424,

440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). Additionally, we

defer to a trial judge's findings that are "'substantially influenced by [the trial

judge's] opportunity to hear and see the witnesses and to have the "feel" of the

case, which a reviewing court cannot enjoy.'"       Ibid. (alteration in original)

(quoting State v. Elders, 192 N.J. 224, 244 (2007)).


                                                                             A-2750-16T1
                                        6
      Applying the Strickland test, Judge Toto found that although counsel's

performance was deficient in not retaining an expert to satisfy the thirty-day

notification requirements of Rule 3:13-3(d) (5), which resulted in the order

barring his testimony, defendant "did not suffer prejudice by failure to present

expert testimony because [the expert's] estimated speed did not differ

substantially from the State's lay witness[es'] testimony." Because the expert's

proffered testimony and the witnesses' actual testimony were similar, the judge

reasoned, "the issue of speed would have been less than significant in the jury's

deliberation of recklessness." Significantly, the judge added, "the issue of speed

was but one of several driving infractions that the jury considered, including

[d]efendant driving while legally intoxicated, failure to stop at a red light, and

failure to maintain the vehicle in her own lane while driving on the highway."

      In essentially reiterating the arguments she made before Judge Toto,

defendant argues that the judge's "factual findings do not support [his]

determination that [she] failed to establish prejudice under the second prong of

Strickland." We are unpersuaded. Considering Judge Toto had a front row seat

as the trial judge and the applicable legal standards, we conclude that his

findings are based upon credible evidence in the record and he correctly rejected




                                                                            A-2750-16T1
                                        7
defendant's PCR arguments for the reasons substantially set forth in his well-

reasoned written decision.

      Affirmed.




                                                                        A-2750-16T1
                                      8
