NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1672-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAHIL KULGOD,
Defendant-Appellant.
Submitted March 17, 2021 – Decided September 10, 2021
Before Judges Alvarez, Geiger, and Mitterhoff (Judge Geiger concurring).
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 15-04- 0231.
Amira R. Scurato, attorney for appellant.
Michael R. Robertson, Somerset County Prosecutor, attorney for respondent (Paul H. Heinzel, Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM A jury convicted defendant Sahil Kulgod of second-degree vehicular
homicide, N.J.S.A. 2C:11-5. On November 8, 2019, the trial judge sentenced
him to a five-year prison term subject to the No Early Release Act's eighty-five-
percent parole ineligibility. See N.J.S.A. 2C:43-7.2. We affirm the conviction,
but remand for the court to sentence defendant anew.
At approximately 10:00 a.m. on January 4, 2015, defendant, a college
student home on his winter break, went for a drive in his black 2012 Ford Focus.
He traveled southbound on a roadway in Hillsborough Township. The posted
speed limit was 45 miles per hour, and as he approached a curve, a warning sign
recommended a speed of 35 miles per hour. The road surface was wet from an
earlier rainfall.
Beginning 1023 feet from the area of impact, a series of nine chevrons
indicate the curve travels first from the left to the right, then from the right to
the left. The configuration of the curve limits the sight line, as does some
vegetative growth before the second half of the curve. Homes and driveways
line the approach on the right side of the southbound lane, a sign announces
"School Bus Stop Ahead" after the first chevron, another reads "Hidden
Driveway"; and between the chevrons in the first curve and the second, a very
large yellow arrow is posted. A yellow diamond-shape sign placed beyond that
A-1672-19 2 indicates a T-intersection after the curve. Also along that second curve is a sign
depicting a man on horseback.
The State's accident reconstruction and Event Data Recorder (EDR)
expert, Richard R. Ruth, testified regarding his examination of the EDR
removed from defendant's car after the accident. He opined that five seconds
before impact, defendant's vehicle was traveling at a speed of 86.5 miles per
hour, plus or minus 4% (between 83 miles per hour and 90 miles per hour). In
the next half-second, the Focus slowed slightly to 86.1 miles per hour, and the
acceleration pedal position was at zero, meaning the driver's foot was off the
pedal but the brake had not yet been activated. At four seconds before impact,
the speed was reduced to 85 miles per hour, plus or minus 4%, and the brakes
were touched lightly, although not slowing the vehicle down "very much." From
three-and-a-half to two-and-a-half seconds before the crash, the driver depressed
the brake pedal enough to reduce the speed to 74 miles per hour at three seconds.
Given the road surface and physical forces involved, even extreme braking at
that point could only result in a speed reduction of 12 to 3 miles per hour per
second.
From two-and-a-half to one-and-a-half seconds, the speed dropped 5 miles
per hour in one half-second and 4 miles per hour in the next half-second, so
A-1672-19 3 braking was occurring, but not at maximum. At two seconds before the impact,
the anti-lock braking system was activated, but the car's speed was still 62.2
miles per hour. From two seconds to one-and-a-half seconds, the car slowed
only another 4 miles per hour.
Somerset County Prosecutor's Office Lieutenant William Pauli also
testified as an expert in accident reconstruction. After examining the road
surface shortly after the accident, he concluded that as the victim's vehicle was
traveling north in the northbound lane, defendant's Ford crossed the double
yellow line, encroaching into the northbound lane of the second curve. The left
front of the Ford struck the right front of the victim's tan 1991 BMW with such
force that the BMW was pushed off the road. The right rear of the vehicle struck
a tree after the car rotated 270 degrees.
Pauli opined the maximum speed a car traveling southbound could reach
when entering the second curve to the left, without leaving its lane, was 49.26
miles per hour. Defendant was traveling at 86.5 miles per hour, plus or minus
4%, at five seconds out. At two seconds from impact, defendant's car was
traveling at 62.2 miles per hour, at one-and-a-half seconds 58.6 miles per hour,
and at one second 58.6 miles per hour. At half-a-second, the speed of travel was
52.4 miles per hour—all exceeding speeds at which the car could maintain the
A-1672-19 4 roadway. Although the maximum speeds were not calculated for a Ford Focus
specifically, they were calculated for "[a] vehicle that's in normal turning
condition."
On cross-examination, Pauli agreed that although a car following closely
on defendant's bumper could have "[p]ossibly" affected defendant's ability to
slow down preceding the accident, he did not factor a second vehicle into his
analysis. On redirect, he explained that "[h]ad there in fact been a second car
trailing as closely behind, and at a similar or [the] same speed, [he] would
strongly feel that that third car would also have been involved in this crash."
Pauli noted that defendant did not mention a second vehicle when interviewed
at the scene. He added that because of defendant's speed of travel, calculated
by another State expert, defendant would not have had adequate time to react
given he would not have been able to see the approaching vehicle. Within that
two-second window, "the defendant's vehicle had already lost lateral control and
was coming over regardless of whether there was a vehicle there or not."
Other witnesses also testified at trial. A driver who proceeded through
the S-curve travelling northbound immediately before the accident saw a
metallic colored BMW driving southbound closely behind a black car. She had
to pull over onto the shoulder to avoid the BMW, which appeared to be
A-1672-19 5 attempting to pass. The BMW returned to its proper lane before the two cars
moved on. She was so shaken by the incident that she pulled over again, after
leaving the S-curve, to call her husband.
A second passerby saw the aftermath of the collision, while entering the
S-curve in the southbound direction, and stopped to render assistance. He
noticed a blue BMW parked between him and the collision site. Presumably
that vehicle was the one the other driver identified as metallic.
From his kitchen window, John Van Cleef, who lived on the roadway, saw
a black car "flying by" approximately twenty feet away, immediately before the
accident. He estimated the speed of the car at over 100 miles per hour. He
explained the basis for this calculation—he could hear and see the vehicle,
knows the speed limit on that stretch of roadway, and knows how fast cars
usually travel. He did not see a second vehicle.
Satin Van Cleef heard a sound like "a rocket." When she looked out the
window, the car was already out of sight. She estimated the car 's speed to be at
least 120 miles an hour, and anticipated it would not successfully negotiate the
bend. On cross-examination, she agreed her husband had told her the car was
traveling at least 120 miles per hour.
A-1672-19 6 Defendant, while maneuvering into the second portion of the S-curve,
struck and killed Nancy Louie, who was driving her college-age daughter
Melissa Louie's 1 1991 BMW. The two were traveling to New York City to spend
the day with family. Melissa, seated in the passenger's seat, was only slightly
injured. As she left the vehicle, she immediately realized that her mother had
died. The medical examiner testified that Nancy's lethal injuries centered on the
left side of the head, the chest, and the pelvis, including skull fractures.
The model jury charge for vehicular homicide, reproduced later in this
opinion, incorporates references to any motor vehicle offenses with which a
defendant is charged. In this case, they were reckless driving, N.J.S.A. 39:4-96,
and failure to keep right, N.J.S.A. 39:4-82. At the close of the testimony,
defendant requested an instruction differentiating between recklessness as
defined in the vehicular homicide statute and recklessness as defined in the
Motor Vehicle Code. The court, accordingly, gave an instruction on the
difference. When asked at the end of the jury charge if he had any objection to
the instructions, defense counsel indicated he did not.
1 We refer to the Louies by their first name to avoid confusion. A-1672-19 7 After the jury found defendant guilty of vehicular homicide, the judge
found defendant guilty of the reckless motor vehicle offense because of his
speed. As to the failure to keep right, the judge said:
On that charge, I believe that that charge is subsumed in the reckless driving charge of [N.J.S.A. 39:]4-96 . . . . In fact, that driving of the center line was part of, not all, but part of the reckless driving behavior. So I am going to find that that -- I'm going to find him not guilty on that as merged into the [N.J.S.A. 39:]4-96 which is the more serious charge.
All right. Those will --- the sentencing on those will be addressed at the sentencing in this matter.
At sentencing, the judge imposed fines and penalties on both summonses.
When counsel reminded him about merger, the judge stated that he had already
made his determination and that the time to have raised it would have been
earlier, when he convicted defendant of the offenses. The judge agreed that he
previously said no penalties would be imposed, and he therefore "waived" them
but said that "[t]he convictions stand." We discuss this issue and the judge's
findings of aggravating and mitigating factors in the relevant section of this
opinion.
On appeal, defendant raises the following four points:
A-1672-19 8 POINT I
CHARGING THE JURY WITH THE ELEMENTS OF "RECKLESS DRIVING" IN A VEHICULAR HOMICIDE CASE DEPENDENT ON THE DISTINCTION BETWEEN "RECKLESS" AND "NEGLIGENT" CONDUCT, PARTICULARLY WHERE THERE WAS NO TRIAL TESTIMONY REGARDING THE ISSUANCE OF THAT PARTICULAR TICKET, WAS UNDULY PREJUDICIAL AND NECESSITATES REVERSAL.
POINT II
THE ADMISSION OF THE SPEED ESTIMATE OF TWO DIFFERENT WITNESSES WAS IMPROPER AND HIGHLY PREJUDICIAL REQUIRING REVERSAL.
POINT III
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY FAILING TO TAILOR THE FACTS IN THE CAUSATION CHARGE.
POINT IV
MR. KULGOD SHOULD BE RESENTENCED AS A RESULT OF THE JUDGE'S INSUFFICIENT SUPPORT FOR THE AGGRAVATING FACTOR AND THE JUDGE'S FAILURE TO FIND MITIGATING FACTORS AMPLY BASED IN THE RECORD.
A-1672-19 9 I.
Defendant contends the judge erred in his discussion of the elements of
reckless driving, confusing the jury as to the difference between recklessness as
found in the vehicular homicide statute and recklessness in the Motor Vehicle
Code. The claim lacks merit.
The model jury charge for vehicular homicide provides that criminal
homicide constitutes vehicular homicide when caused by the reckless driving of
a motor vehicle. Model Jury Charges (Criminal), "Vehicular Homicide (Death
by Auto or Vessel Without Drunk Driving or Refusal) (N.J.S.A. 2C:11-5)" (rev.
June 14, 2004). It states:
A person acts recklessly when (he/she) consciously disregards a substantial and unjustifiable risk that death will result from (his/her) conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the defendant's conduct and the circumstances known to (him/her), disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant's situation.
In other words, in order for you to find that the defendant drove a vehicle [or vessel] recklessly, the State must prove beyond a reasonable doubt that the defendant was aware that (he/she) was operating a vehicle [or vessel] in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death to another. The State must also prove beyond a reasonable doubt that the defendant
A-1672-19 10 consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted (himself/herself) in the situation.
Recklessness is a condition of the mind that cannot be seen and that can often be determined only from inferences from conduct, words, or acts. It is not necessary for the State to produce a witness to testify that the defendant stated that (he/she) acted with a particular state of mind. It is within your power to find that proof of recklessness has been furnished beyond a reasonable doubt by inferences that may arise from the nature of the acts and circumstances surrounding the conduct in question.
The model vehicular homicide jury charge was given by the judge in his opening
instructions.
In his closing charge, the judge added language regarding causation. At
the request of defense counsel, the judge modified the instruction to explain the
difference between "recklessness" in the vehicular manslaughter statute and that
in the motor vehicle offense:
The defendant, Sahil Kulgod, is charged in [c]ount one with the crime of vehicular homicide. The statute on which this charge is based provides criminal homicide constitutes vehicular homicide when it is caused by driving a vehicle recklessly. In order for you to find the defendant guilty of this crime, the State must prove the following elements beyond a reasonable doubt: Number (1) that the defendant was driving a vehicle. Number (2) that the defendant caused the
A-1672-19 11 death of Nancy Louie and number (3) that the defendant caused such death by driving the vehicle recklessly.
Now, causation has a special meaning under the law. To establish causation, the State must prove two elements each beyond a reasonable doubt. First, but for the defendant's conduct, the result in question would not have happened. In other words, without defendant's actions, the result would not have occurred. And second, the State must prove the actual result, meaning the death of Nancy Louie must have been within the risk of which the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result and must also not be too remote, too accidental in its occurrences or too depend[e]nt on another's volition or act to have a just bearing on the defendant's liability or on the gravity of his offense.
Going to instruct you as to recklessness. The law on recklessness: A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that death will result from his conduct. The risk must be of such a nature and degree that considering the nature and purpose of the defendant's conduct and the circumstances known to him, disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the defendant's situation.
In other words, in order for you to find that the defendant drove a vehicle recklessly, the State must prove beyond a reasonable doubt that the defendant was aware that he was operating a vehicle in such a manner or under such circumstances. Let me say that again -- he was operating a vehicle in such a manner or under such circumstances as to create a substantial and unjustifiable risk of death to another. The State must also prove beyond a reasonable doubt that the defendant
A-1672-19 12 consciously disregarded this risk and that the disregard of the risk was a gross deviation from the way a reasonable person would have conducted him or herself in that situation.
I want to instruct you, as well, [on] the law [for] negligence. In this case, the defense argues that Sahil Kulgod acted negligently rather than recklessly on January 4th of 2015. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the defendant's failure to perceive it, considering the nature of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the defendant's situation. It's the state of mind -- recklessness and negligence are conditions of the mind which cannot be seen -- can only be determined by inferences from conduct, words or acts.
The state of mind is rarely susceptible of direct proof, but must ordinarily be inferred from the facts. Therefore, it is not necessary, members of the [j]ury, that the State produce witnesses to testify that Mr. Kulgod said he had a certain state of mind when he engaged in a particular act. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his acts and his conduct and from all he said and did at the particular time and place and from all the surrounding circumstances.
The State alleges that the defendant's conduct involved a violation of the motor vehicle laws of the state. Specifically, it is alleged that the defendant engaged in reckless driving in violation of N.J.S.A.
A-1672-19 13 39:4-96 and failing to keep right in violation of N.J.S.A. 39:4-82. The reckless driving statute, a motor vehicle statute, provides a person who drives a vehicle heedlessly in willful or wanton disregard of the rights of safety of another in a manner so as to endanger or be likely to endanger a person or property shall be guilty of reckless driving.
I'm telling you that that's what the motor vehicle statute is, but I want to advise you that the motor vehicle offense for reckless driving is separate and distinct from the recklessness element of the criminal charge that you must decide. That motor vehicle offense will be decided not by you but by another [c]ourt. So I'm only advising you as to what the reckless driving statute is, but that is not the standard that you're to apply [in] this criminal case, okay?
The statute requiring motorists to keep right provides, upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive it on the right half of the roadway. He shall drive a vehicle as closely as possible to the right hand edge or curve of a roadway unless it is impracticable to travel on that side of the roadway.
Whether the defendant is guilty or not of those offenses will be determined by [the] appropriate [c]ourt, not by you. In other words, it's not your job to decide whether defendant is guilty or not guilty of any motor vehicle offenses. However, you may consider the evidence that he committed motor vehicle offenses in deciding whether he was reckless. That's the reason I give you that information.
"When a party does not object to a jury instruction, this [c]ourt reviews
the instruction for plain error." State v. Montalvo, 229 N.J. 300, 320 (2017).
A-1672-19 14 "In the context of jury instructions, plain error is '[l]egal impropriety in the
charge prejudicially affecting the substantial rights of the defendant and
sufficiently grievous to justify notice by the reviewing court and to convince the
court that of itself the error possessed a clear capacity to bring about an unjust
result.'" State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original)
(quoting State v. Adams, 194 N.J. 186, 207 (2008)).
The judge's closing charge was not plain error—to the contrary, it
effectively addressed defendant's point that the definition of recklessness may
confuse the jury. As called for by the model jury charge, the judge specified
that the jury could consider evidence as to whether defendant committed the
motor vehicle offenses in assessing whether he was reckless. However, the
judge never strayed from the definition of recklessness within the vehicular
homicide statute. He told the jury that to decide whether defendant was guilty
of the crime, they had to apply the recklessness standard found in the vehicular
homicide statute, and he defined the standard. He later correctly defined the
recklessness necessary for the motor vehicle offenses and told the jury they were
not responsible to decide those charges.
One calls for the "conscious[] disregard[] [of] a substantial and
unjustifiable risk that death will result from [the actor's] conduct." Model Jury
A-1672-19 15 Charges (Criminal), "Vehicular Homicide (Death by Auto or Vessel Without
Drunk Driving or Refusal)" (rev. June 14, 2004). The other requires only that
the actor drive "heedlessly in willful or wanton disregard of the rights or safety
of another in a manner so as to endanger or be likely to endanger a person or
property." N.J.S.A. 39:4-96.
Anything is possible—but it is not plausible that the jury might have
confused the two definitions of recklessness. Each was embedded within the
explanation of the relevant offense. The distinctions were clearly drawn, and
drawn at the request of defense counsel—who did not object to the charge. State
v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) (explaining where "there is
a failure to object, it may be presumed that the instructions were adequate ."
(quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003))).
The instructions, accurate as to the law, could not have misled the jury.
See State v. Baum, 224 N.J. 147, 167 (2016). That it asked for the definition of
vehicular homicide recklessness to be repeated did not indicate confusion, so
much as care. The panel was given two different meanings for the word, within
two contexts.
The instructions tracked the model jury charge and are therefore presumed
to be correct. State v. R.B., 183 N.J. 308, 325 (2005). Finally, juries are
A-1672-19 16 presumed to follow instructions. State v. Vega-Lavvegui, 246 N.J. 94, 126
(2021). Thus, defendant's contention lacks merit.
Defendant also contends on appeal that the instruction regarding causation
should have been more inclusive—that the judge should have explained that the
jury could take into account the presence of a second vehicle, presumably
tailgating defendant and causing him to be unable to slow down as he entered
the curve, as well as obstructions in the roadway. The judge did give an explicit
instruction regarding causation, which tracked the model jury charge. Model
Jury Charges (Criminal), "Causation (N.J.S.A. 2C:2-3)" (approved June 10,
2013). He said:
Now, causation has a special meaning under the law. To establish causation, the State must prove two elements each beyond a reasonable doubt. First, but for the defendant’s conduct, the result in question would not have happened. In other words, without defendant’s actions, the result would not have occurred. And second, the State must prove the actual result, meaning the death of Nancy Louie[,] must have been within the risk of which the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result and must also not be too remote, too accidental in its occurrences or too [dependent] on another’s volition or act to have a just bearing on the defendant’s liability or on the gravity of his offense.
"[T]he 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" requires
A-1672-19 17 plain error review. State v. Alexander, 233 N.J. 132, 141-42 (2018). Thus the
error must "prejudicially affect[] the substantial rights of the defendant
sufficiently grievous[ly] to justify notice by the reviewing court . . . that of itself
the error possessed a clear capacity to bring about an unjust result." State v.
Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422
(1997)). "The alleged error is viewed in the totality of the entire charge, not in
isolation." State v. Chapland, 187 N.J. 275, 289 (2006). "[T]he effect of any
error must be considered 'in light of the overall strength of the State's case[]'
. . . ." State v. Gonzalez, 444 N.J. Super. 62, 71 (App. Div. 2016) (quoting State
v. Walker, 203 N.J. 73, 90, (2010)).
In support of the argument, defendant relies on the holding in State v.
Parkhill, 461 N.J. Super. 494 (App. Div. 2019). Parkhill held it was error to
omit a causation instruction where causation was directly at issue —but the court
there omitted any instruction on causation. 461 N.J. Super. at 499-500.
In this case, the judge instructed the jury on causation, tracking the model
charge, although he omitted the specifics which counsel elicited during the
testimony, and which both the prosecutor and defense counsel discussed in
summation. That omission—mention of the tailgating BMW and potentially
obscuring vegetation—did not create error in light of the language in the charge
A-1672-19 18 stating causation must not be "too dependent on another's [] act to have a just
bearing on the defendant's liability or the gravity of [his] offense," or "too
accidental in its occurrences." Model Jury Charges (Criminal), "Causation
(N.J.S.A. 2C:2-3)" (approved June 10, 2013). See State v. Reddish, 181 N.J.
553, 612 (2004) (explaining "[t]he need to comment on the evidence arises only
when an instruction modeled solely on the language of an applicable statute or
rule of law will not adequately guide the jury's deliberations").
Furthermore, the State's experts agreed that if a vehicle had been tailgating
defendant too closely, that car would also have been involved in the crash.
Overall, the judge properly defined causation, leaving the jury with the
necessary tools to accept or reject defendant's theory of the case.
II.
Defendant also contends that admitting the Van Cleefs' testimony was
error, lacking any foundation, while highly prejudicial. We do not agree.
Lay witnesses may only give opinion testimony if it "is rationally based
on the witness' perception" and "will assist in understanding th e witness'
testimony or determining a fact in issue." State v. Singh, 245 N.J. 1, 4 (2021)
(quoting N.J.R.E. 701). "[L]ay opinion testimony is limited to what was directly
perceived by the witness and may not rest on otherwise inadmissible hearsay."
A-1672-19 19 Id. at 25 (quoting State v. McLean, 205 N.J. 438, 460 (2011)). "Traditional
examples of permissible lay opinions include the speed at which a vehicle was
traveling . . . ." McLean, 205 N.J. at 457. Lay witnesses may estimate "a
vehicle's speed, based on seeing or hearing it go by." State v. Hyman, 451 N.J.
Super. 429, 442 (App. Div. 2017).
The Van Cleefs' specific speed estimates were permissible in this case
because they provided additional information to the jury that general phrases
such as "fast" or "very fast" or "slow" do not. See Pierson v. Frederickson, 102
N.J. Super. 156, 163 (App. Div. 1968). Defendant attempts to distinguish
Frederickson, arguing that the estimated speed in that case was 30 miles per
hour, theoretically easier for a lay person to estimate, than the speed here, where
the estimates ranged from 100 to 120 miles per hour. Frederickson, however,
did not limit the speed about which a lay witness can testify.
In any event, the expert testimony was overwhelming. It established from
defendant's EDR that he was traveling 86 miles per hour at the time of the
collision going through an S-curve posted for 45 miles per hour, and having a
posted recommended speed of 35 miles per hour. The road surface was wet from
an earlier rain. The Van Cleefs' estimates alone did not have the capacity to
A-1672-19 20 change the outcome. That testimony was not so prejudicial as to constitute plain
error which warrants reversal in this case. See R. 2:10-2.
III.
It is black-letter law that trial judges have broad discretion over sentencing
so long as they adhere to the statutory framework of N.J.S.A. 2C:44 -1. State v.
Dalziel, 182 N.J. 494, 500 (2005). "When aggravating and mitigating factors
are identified, supported by competent, credible evidence in the record, and
properly balanced," we affirm. State v. Case, 220 N.J. 49, 65 (2014). While a
sentencing judge may make inconsistent findings on the aggravating and
mitigating factors, he or she must support those findings with a "reasoned
explanation" that is "grounded in competent, credible evidence in the record."
Id. at 67.
In sentencing defendant, the court found only one aggravating factor—
nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others. The judge
concluded defendant needed to be deterred, but undermined that finding by
rejecting aggravating factor three, "[t]he risk that the defendant will commit
another offense," N.J.S.A. 2C:44-1(a)(3), and his finding of mitigating factor
nine, "[t]he character and attitude of the defendant indicate that he is unlikely to
commit another offense," N.J.S.A. 2C:44-1(b)(9). The judge explained
A-1672-19 21 defendant did not pose a risk of reoffending "based upon the facts" and "really
his history of not having any other offenses." The judge did not elaborate on
what the other "facts" were, however. He nonetheless concluded that there was
a need for specific deterrence because there was "no guarantee" that defendant
would not reoffend. Later, the judge also said that he was "troubled by
defendant's . . . trying to deflect his responsibility onto some other driver." T he
judge appropriately found factor nine necessary to deter others from, as he put
it, "using the roadways as their own road course."
The judge's sentencing analysis omitted mention of defendant's personal
situation, other than his lack of a prior criminal or driving history. He did not
touch upon defendant's engineering degree, employment, and the mental health
issues for which he was in treatment with a psychologist. Thos e mental health
issues followed the incident and included panic attacks and anxiety.
The judge found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7),
defendant's lack of criminal history, and factor nine, N.J.S.A. 2C:44-1(b)(9),
that defendant was unlikely to commit another offense. He rejected mitigating
factors two, four, and eight. N.J.S.A. 2C:44-1(b)(2), (4), (8).
The judge reasoned mitigating factor two was inapplicable because
defendant could have readily contemplated that his conduct would cause or
A-1672-19 22 threaten serious harm, and the jury's verdict necessitated a finding of
recklessness. The court rejected mitigating factor four—that substantial
grounds existed tending to excuse or justify the conduct—because there simply
was not enough evidence to establish, to his satisfaction or the jury's, that
defendant's speed was necessary to avoid being tailgated by the metallic or blue
BMW.
The judge's outright rejection of mitigating factor eight, that the "conduct
was the result of circumstances unlikely to recur," is inconsistent with his
findings regarding mitigating factor nine. Furthermore, the judge improperly
added an element to that statutory mitigating factor, the necessity that he have
"certainty that this type of driving behavior is [not] going to or is unlikely to
recur." Nothing in the statute requires "certainty."
Mitigating factor eight requires a judge to decide only whether it is likely
that a defendant will "act similarly" if in the future he finds himself "in a
situation like the one underlying the present case." State v. Jabbour, 118 N.J. 1,
9 (1990). The judge not only wrote in the need for certainty to mitigating factor
eight, he also failed to explain how his rejection of this factor was not
inconsistent with his finding of mitigating factor nine, itself inconsistent with
the judge's discussion of aggravating factor nine.
A-1672-19 23 Inconsistent findings can be supported by a reasoned explanation
grounded in competent credible evidence in the record. See Case, 220 N.J. at
67. But the record lacks any explanation for the simultaneous conclusions that
defendant was not at risk to reoffend but needed to be deterred, and the rejection
of the argument that the circumstances—criminally tragic lack of judgment in
the face of an unusual highway hazard—were unlikely to recur, while finding
defendant to be a person whose character and attitudes made it unlikely that he
would reoffend.
Defendant's allocution during the sentence hearing included statements of
seemingly profound remorse and regret for having caused a death, while
reiterating the defense theory that the accident was caused by someone who was
tailgating him. After listening, the judge expressed disappointment at what he
construed to be defendant's lack of remorse. Perhaps that observation explains
the judge's rejection of mitigating factor eight—but if so, it is not clear from the
record.
Well-established precedent mandates that a defendant be sentenced in
light of his post-offense conduct. See State v. Jaffe, 220 N.J. Super. 114, 124
(2014). By omitting any discussion of defendant's individual circumstances, the
judge overlooked this principle. Additionally, the judge is now obligated to take
A-1672-19 24 into account defendant's life and circumstances post-sentence as well. Ibid. As
the Supreme Court said in Jaffe, ". . . the trial court should view a defendant as
he or she stands before the court on the day of sentencing. This means evidence
of post-offense conduct, rehabilitative or otherwise, must be considered in
assessing the applicability of, and weight to be given to, aggravating and
mitigating factors." Ibid.
There can be no doubt that sentencing is offense oriented. State v.
Kiriakakis, 235 N.J. 420, 437 (2019). However, included in the calculus must
be at least some consideration of defendant's unique characteristics. Ibid.
("[T]he Code [has a] scheme of sentencing based on the distinct nature of the
offense and the unique characteristics of the offender . . . ."). Thus, we vacate
the sentence and remand for the judge to resentence defendant. See Bellamy,
___ N.J. Super. ___, ___ (App. Div. 2021) (slip op. at 12).
The judge made inconsistent findings on the sentencing factors without
providing a reasoned explanation for doing so, wrote the requirement of
"certainty" into mitigating factor eight, and omitted any mention of defendant's
individual circumstances. He should reconsider the statutory aggravating and
mitigating factors anew. See Bellamy, ___ N.J. Super. ___, ___ (App. Div.
2021) (slip op. at 12). A new sentencing hearing is necessary.
A-1672-19 25 Defendant also contends the trial judge's decision regarding the motor
vehicle offenses was error. The judge mistakenly initially found defendant not
guilty because of merger at the end of the trial. At sentencing, however, he
merged the convictions into the vehicular homicide, stating defendant was
guilty. No penalties should have been assessed at all on the merged offenses,
nor could they have been "waived." Upon resentencing, the court should clarify
whether he intended to convict but did not because he mistakenly believed
merger required acquittal, or if he intended to acquit. If he intended to convict,
the offenses merge into the vehicular homicide and do not carry a separate
penalty.
IV.
Subsequent to the original briefing, defense counsel submitted a
supplemental letter brief contending that defendant was entitled to a reman d for
resentencing so that the court could take into account the new mitigating factor,
N.J.S.A. 2C:44-1(b)(14), the age of the defendant if under twenty-six years at
the time of the commission of the offense. The Prosecutor's Office responded
that the new mitigating should only have prospective application, which is the
current state of the law. See Bellamy, ___ N.J. Super. ___ (slip op. at 17). Since
the matter is remanded for resentence, however, defendant gains the benefit of
A-1672-19 26 the judge's assessment of the weight to be accorded mitigating factor fourteen ,
if any. See id. at 14-15.
Affirmed, except that the sentence is vacated and the matter remanded for
a new sentence hearing.
A-1672-19 27 _____________________________
GEIGER, J.A.D., concurring.
The jury found defendant guilty of second-degree vehicular homicide,
N.J.S.A. 2C:11-5, by driving his vehicle recklessly. "A person acts recklessly
with respect to a material element of an offense when he consciously disregards
a substantial and unjustifiable risk that the material element exists or will result
from his conduct." N.J.S.A. 2C:2-2(b)(3). The risk "involves a gross deviation
from the standard of conduct that a reasonable person would observe in the
actor's situation." Ibid.
The jury evidence adduced at trial proved beyond a reasonable doubt that
defendant consciously disregarded a substantial and unjustifiable risk by driving
his car on a wet road at a dangerously high speed in excess of eighty -five
m.p.h.—almost double the posted speed limit—and entered an S-curve without
significant braking, causing him to lose control of the vehicle. Defendant's
vehicle careened into oncoming traffic and struck a car, killing the car's driver.
Yet defendant continued to deflect blame during his allocution by claiming his
excessive speed was to distance himself from a tailgating car, thereby painting
himself as the victim of an unfortunate situation.
The majority finds that the trial judge's decision to reject mitigating factor
eight ("defendant's conduct was the result of circumstances unlikely to recur"), N.J.S.A. 2C:44-1(b)(8), lacks support in the record "other than defendant's
statements at sentencing." I respectfully disagree.
As recognized by the majority, "trial judges are given wide discret ion so
long as the sentence imposed is within the statutory framework." State v.
Dalziel, 182 N.J. 494, 500 (2005). "When the aggravating and mitigating factors
are identified, supported by competent, credible evidence in the record, and
properly balanced, we must affirm the sentence and not second-guess the
sentencing court, provided the sentence does not 'shock the judicial
conscience.'" State v. Case, 220 N.J. 49, 65 (2014) (citations omitted).
The trial judge found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9),
"[t]he need for deterring the defendant and others from violating the law . . . ."
While the judge correctly noted that defendant had no prior criminal or juvenile
history, and was not likely to commit another crime, the majority concluded that
the judge appropriately found the need to deter others from violating the law by
driving recklessly. I agree.
"The need for public safety and deterrence increase proportionally with
the degree of the offense." State v. Carey, 168 N.J. 413, 426 (2001) (citing State
v. Megargel, 143 N.J. 484, 500 (1996)). As recognized in Carey, "the
Legislature increased vehicular homicide from a third-degree offense to a
A-1672-19 2 second-degree offense. It follows that the need for deterrence increased as part
of the legislative plan . . . ." Ibid.
In addition, aggravating factor nine may be applied to deter the defendant
even if the defendant has no prior criminal convictions. State v. Fuentes, 217
N.J. 57, 80 (2014). "Neither the statutory language nor the case law s uggest that
a sentencing court can find a need for deterrence under N.J.S.A. 2C:44 -1(a)(9)
only when the defendant has a prior criminal record." Ibid.
In many instances, general deterrence "has relatively little weight in the
sentencing balance." State v. Locane, 454 N.J. Super. 98, 126 (App. Div. 2018).
(citing Fuentes, 217 N.J. at 79). But vehicular homicide "is an offense which
by its very nature makes general deterrence absolutely meaningful." Ibid.
While defendant was not driving drunk, by driving at such an excessive speed
under the attendant circumstances, he surely was "a menace to [himself] and to
all others" on Millstone River Road that day. State v. Tischio, 107 N.J. 504,
519 (1987).
Because defendant had no criminal history, the judge found mitigating
factors seven "defendant has no history of prior delinquency or criminal
activity," N.J.S.A. 2C:44-1(b)(7), and nine, "[t]he character and attitude of the
A-1672-19 3 defendant indicate that he is unlikely to commit another offense," N.J.S.A.
2C:44-1(b)(9), giving both factors "heavy weight."
The judge rejected mitigating factors two, four, and eight. N.J.S.A.
2C:44-1(b)(2), (4), (8). The judge rejected factor two, finding defendant's
contention that he "did not contemplate his conduct would cause or threaten
serious harm" was "belied by the jury verdict." As to fac tor four, the existence
of "substantial grounds tending to excuse or justify the defendant's conduct
though failing to establish a defense," relating to the phantom tailgating BMW,
the judge again noted the jury rejected this argument. As to factor eight, the
judge found he could not "state with certainty that this type of driving behavior
is going to or is unlikely to recur." Although the judge employed the wrong
standard by requiring "certainty," the majority criticizes this uncertainty given
defendant's clean motor vehicle record, lack or prior criminal convictions, and
college student status. 1 The majority found "[n]othing in the record supports
that defendant would again be involved in any criminality of any sort, whether
vehicular or otherwise."
1 College student status is not relevant in determining whether to apply mitigating factor eight. A-1672-19 4 "[W]hen construing a statute, courts must avoid absurd results . . . and
read it in a common sense manner that advances the legislative purposes."
Builders League of S. Jersey, Inc. v. Burlington Cnty. Plan. Bd., 353 N.J. Super.
4, 21 (App. Div. 2002) (citations omitted). "In order to construe the meaning of
the Legislature's selected words, we can also draw inferences based on the
statute's overall structure and composition." State v. S.B., 230 N.J. 62, 68 (2017)
(citing State v. Hupka, 203 N.J. 222, 231-32 (2010)). Courts "must presume
that every word in a statute has meaning and is not mere surplusage." Cast Art
Indus., LLC v. KPMG LLP, 209 N.J. 208, 222 (2012) (citation omitted). The
court "should try to give effect to every word of the statute[] a nd should not
assume that the Legislature used meaningless language." Med. Soc. of N.J v.
N.J. Dep't of L. & Pub. Safety, Div. of Consumer Affs., 120 N.J. 18, 26-27
(1990) (citing Gabin v. Skyline Cabana Club, 54 N.J. 550, 555 (1969)). To the
extent possible, legislative language should not "be found to be inoperative,
superfluous or meaningless." Franklin Tower One, L.L.C. v. N.M., 157 N.J.
602, 613 (1999) (quoting In re Sussex Cnty. Mun. Utils. Auth., 198 N.J. Super.
214, 217 (App. Div. 1985)). In addition, "the Legislature is presumed to be
aware of judicial construction of its enactments." N.J. Democratic Party, Inc. v.
A-1672-19 5 Samson, 175 N.J. 178, 195 n.6 (2002) (citing Brewer v. Porch, 53 N.J. 167, 174
(1969)).
On remand, the judge must reconsider whether mitigating factor eight
applies but for reasons different than those expressed by the trial judge. See
State v. Heisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (stating an appellate
court is "free to affirm the trial court's decision on grounds different from those
relied upon by the trial court"). The judge should be mindful that standing alone,
defendant's lack of a criminal record does not support application of mitigating
factor eight.
Generally, mitigating factor eight applies in rare situations where the
circumstances that led to the defendant's conduct were unique and thus unlikely
to repeat themselves. For example, in State v. L.V., 410 N.J. Super. 90, 111
(App. Div. 2009), the sentencing judge found mitigating factor eight where a
mentally and severely intellectually challenged defendant had been the victim
of repeated sexual abuse by her father, who forced her to toss her newborn baby
out of a window. Id. at 96-97, 112-13. He was the father of the baby and had
been her abuser for many years. Id. at 94-96. We found the trial court
appropriately applied factor eight because the father's abuse and directive were
the cause of the defendant's crimes. Id. at 112. His criminal conduct had been
A-1672-19 6 brought to light, and it was unlikely that the defendant would find herself in that
situation again. Id. at 111. She was clearly a coerced and unwilling participant
and victim of her father's crimes.
Another example is where a police officer was convicted of official
misconduct and forfeited his job, precluding the defendant from serving as a law
enforcement officer in the future. State v. Rice, 425 N.J. Super. 375, 383 (App.
Div. 2012). In that situation, the defendant's conduct resulted from
circumstances unlikely to recur because his conviction effectively precludes the
defendant from committing similar official misconduct in the future. Ibid.
Here, the judge must determine whether there were unusual circumstances
that make it unlikely that defendant's conduct will reoccur. In doing so, the
judge may consider that the jury rejected defendant's contention that his reckless
driving was attributable to a BMW that was allegedly tailgating him. Moreover,
there is no evidence that defendant is mentally or intellectually challenged, the
victim of abuse, addicted to alcohol or controlled dangerous substances, or the
victim of a difficult childhood. Cf. L.V., 410 N.J. Super. at 112-13. Instead,
the verdict is premised on a finding that defendant's reckless driving was the
cause of the accident that resulted in the victim's death and that the accident
resulted from circumstances within defendant's direct control.
A-1672-19 7 Interpreting mitigating factor eight to allow its application based primarily
on the defendant's lack of prior delinquency or criminal activity would render it
duplicative of mitigating factor seven and thereby superfluous, a result this court
should avoid. See Franklin Tower One, 157 N.J. at 613. Moreover, limiting the
application of mitigating factor eight to precipitating circumstances that were
actually unique and thus unlikely to repeat themselves aligns it more closely
with "the statute's overall structure and composition." S.B., 230 N.J. at 68.
Nevertheless, I agree that a remand for resentencing is required because
the judge used an incorrect standard when considering whether to apply
mitigating factor eight.
The judge found that aggravating factor nine was slightly outweighed by
mitigating factors seven and nine. The record supports that finding. See State
v. Scher, 278 N.J. Super. 249, 273 (App. Div. 1994) (finding "no basis to disturb
the quantum of the sentence imposed" despite the trial judge's improper
application of aggravating factors one, N.J.S.A. 2C:44 -1(a)(1), and two,
N.J.S.A. 2C:44-1(a)(2), because "the risk that [the] defendant will commit
another offense, N.J.S.A. 2C:44-1(a)(3), and the need for specific and general
deterrence, N.J.S.A. 2C:44-1(a)(9), demand paramountcy over all other
considerations" where the defendant was convicted of reckless manslaughter,
A-1672-19 8 N.J.S.A. 2C:11-4(b)(1), vehicular homicide, and related offenses). When trial
judges "exercise discretion in accordance with the principles set forth in the
Code and defined by [the Supreme Court], they need fear no second-guessing."
State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114
N.J. 383, 384 (1989)). The sole exception is where the sentence is so manifestly
excessive that it "shocks the judicial conscience." State v. O'Donnell, 117 N.J.
210, 215-16 (1989) (citing State v. Roth, 95 N.J. 334, 365 (1984)).
The judge imposed the minimum five-year NERA term for the second-
degree vehicular homicide. See N.J.S.A. 2C:43-6(a)(2) (the ordinary term for a
second-degree crime is between five and ten years). Therefore, the only
mechanism to impose a shorter term of imprisonment would be to downgrade
the offense one degree lower for sentencing purposes pursuant to N.J.S.A.
2C:44-1(f)(2).
A sentencing downgrade under N.J.S.A. 2C:44-1(f)(2) is appropriate only
if "the court is clearly convinced that the mitigating factors substantially
outweigh the aggravating factors and where the interest of justice demands" the
downgrade. See also Megargel, 143 N.J. at 496; State v. L.V., 410 N.J. Super.
90, 112-13 (App. Div. 2009). "[T]he court must find that there are 'compelling'
reasons 'in addition to, and separate from,' the mitigating factors, which require
A-1672-19 9 the downgrade in the interest of justice." Locane, 454 N.J. Super. at 121
(quoting State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)). See also
Megargel, 143 N.J. at 505; L.V., 410 N.J. Super. at 112-13. "The interest of
justice analysis does not include consideration of defendant's overall character
or contributions to the community." Locane, 454 N.J. Super. at 122 (citing State
v. Lake, 408 N.J. Super. 313, 328-29 (App. Div. 2009)).
"The focus remains on the crime, as the downgrade statute 'is an offense -
oriented provision.'" Id. at 121 (quoting Lake, 408 N.J. Super. at 328). "The
paramount reason we focus on the severity of the crime is to assure the
protection of the public and the deterrence of others. The higher the degree of
the crime, the greater the public need for protection and the more need for
deterrence." Id. at 122 (quoting Megargel, 143 N.J. at 500). In deciding whether
to downgrade an offense, the court should consider the degree of the crime,
whether the surrounding circumstances make the offense similar to one of a
lesser degree, and the defendant's characteristics as they relate to the offense.
Megargel, 143 N.J. at 500-01; Rice, 425 N.J. Super. at 384. The severity of the
crime is the most important factor. Megargel, 143 N.J. at 500. "Where the crime
includes an enhanced penalty, . . . 'trial courts must exercise extreme caution[]'
before ordering a downgrade." Locane, 454 N.J. Super. at 122 (second alteration
A-1672-19 10 in original) (quoting Megargel, 143 N.J. at 502). See also Cannel, N.J. Criminal
Code Annotated, cmt. 10 on N.J.S.A. 2C:44-1 (2021) ("A court should sentence
to one degree lower only where the 'interest of justice' so requires, and it should
be reluctant for crimes so serious that they carry sentences higher than those
normal for the degree of crime." (citing State v. Mirakaj, 268 N.J. Super. 48
(App. Div. 1993))). Those factors all militated strongly against downgrading
the second-degree vehicular homicide. The "interests of justice" did not require
sentencing defendant one degree lower.
Moreover, where the Legislature has provided an enhanced penalty for an
offense, "the downgrade of that offense requires more compelling reasons than
the downgrade of an offense for which the Legislature has not attached an
enhanced penalty." Rice, 425 N.J. Super. at 385 (quoting Megargel, 143 N.J. at
502). A sentencing court should not use its discretion to circumvent the
legislative design. State v. Lopez, 395 N.J. Super. 98, 108-09 (App. Div. 2007).
The Legislature subjected second-degree vehicular homicide to the parole
ineligibility and mandatory parole supervision under NERA.
Here, the judge rejected the defendant's contention that the mitigating
factors substantially outweighed the aggravating factors. On remand, the judge
A-1672-19 11 must reconsider mitigating factor eight, determine whether it applies, and assign
appropriate weight if it does.
In addition, the vehicular homicide was committed on January 4, 2015,
when defendant was twenty-one years old. The Legislature subsequently
enacted N.J.S.A. 2C:44-1(b)(14)—a new mitigating factor which applies when
a defendant is less than twenty-six years old at the time of the crime. See L.
2020, c. 110 (eff. Oct. 19, 2020). The new mitigating factor is effective October
19, 2020, ibid., and is to be applied prospectively. State v. Bellamy, ___ N.J.
Super. ___, ___ (App. Div. 2021) (slip. op. at 20). Since the case is being
remanded for resentencing, the judge must view defendant "as he stands before
the court that day." State v. Randolph, 210 N.J. 330 (2012). Accordingly,
mitigating factor fourteen is applicable and must be given appropriate weight.
See id. at 14-15.
The judge must then reassess whether the mitigating factors substantially
outweigh the aggravating factors, and if they do, apply the second prong of the
test for determining whether a sentencing downgrade is appropriate.
Finally, I agree with the majority that a remand is also needed for the
judge to clarify whether he intended to convict or acquit defendant of the related
motor vehicle offenses or to merge those offenses.
A-1672-19 12