STATE OF NEW JERSEY v. WILLIAM T. LIEPE

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4431-14T4

STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
February 2, 2018

v. APPELLATE DIVISION

WILLIAM T. LIEPE,

Defendant-Appellant.
_______________________________________

Submitted October 11, 2017 – Decided February 2, 2018

Before Judges Fisher, Fasciale and Sumners.

On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment
No. 12-12-2766.

Jill R. Cohen, attorney for appellant.

Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (John J. Lafferty,
IV, Assistant Prosecutor, of counsel and on
the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal, we chiefly focus on the sentencing judge's

imposition of consecutive prison terms of twenty, seven, and

five years as a result of defendant's conviction for first-

degree aggravated manslaughter and his two convictions for

second-degree aggravated assault, all arising from a tragic 2011
auto accident in Hamilton Township. We reject defendant's

arguments regarding his convictions, but we remand for

resentencing because the judge appears to have applied a

presumption in favor of consecutive terms in such circumstances,

and because the aggregate thirty-two year sentence, all subject

to an eighty-five percent period of parole ineligibility, shocks

the judicial conscience, particularly when imposed on an

offender who was fifty-eight at the time of the incident and

sixty-two at the time of sentencing.

On an early Sunday afternoon in April 2011, defendant

William T. Liepe was driving southbound on Cologne Avenue in

Hamilton Township. Although intoxicated, defendant was driving

within the fifty mile per hour speed limit and within the proper

lane of travel. Defendant, however, averted his eyes from the

roadway to observe a ballgame on the opposite side of the road.

That inattention caused defendant's vehicle to slam into the

back of a Honda Accord, which had stopped in the same travel

lane to make a left turn. And that collision forced the Honda

into oncoming traffic, causing a collision with a northbound

Cadillac Escalade. A nine-year old passenger in the Honda was

killed, and the driver as well as another Honda passenger

2 A-4431-14T4
sustained serious permanent injuries; occupants of the Escalade

were treated for minor injuries.

Defendant's vehicle struck a tree, and he was taken to a

nearby hospital for treatment. Police secured defendant's

consent to draw blood and determined he had a .192 blood alcohol

content (BAC) at that time.

Defendant was indicted and charged with: first-degree

aggravated manslaughter, N.J.S.A. 2C:11-4(a); second-degree

vehicular homicide,
N.J.S.A. 2C:11-5; two counts of second-

degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); two counts of

third-degree assault by auto,
N.J.S.A. 2C:12-1(c)(2); and one

count of fourth-degree assault by auto,
N.J.S.A. 2C:12-1(c)(2).

Defendant moved to dismiss for various reasons; the judge

dismissed only the aggravated manslaughter charge. We denied but

the Supreme Court granted the State's motion for leave to appeal

and remanded to us to review the interlocutory order. By way of

an unpublished opinion, we reversed and ordered reinstatement of

the aggravated manslaughter count. State v. Liepe, No. A-5363-12

(App. Div. Apr. 10, 2014).

Defendant moved to suppress BAC evidence, arguing the State

required but lacked a search warrant for drawing defendant's

blood at the hospital. At the conclusion of an evidentiary

3 A-4431-14T4
hearing, the judge denied the motion for reasons contained in a

written decision.

Trial commenced in September 2014 but defendant failed to

appear for the second day of jury selection; it was learned he

attempted suicide.1 A six-day jury trial occurred in March 2015,

at the conclusion of which defendant was convicted on all

counts. He was sentenced to a twenty-year prison term on the

aggravated manslaughter conviction, consecutive five-year and

seven-year prison terms on the aggravated assault convictions,

and a concurrent one-year term on the assault-by-auto conviction

– an aggregate prison sentence of thirty-two years. And the

terms imposed on the manslaughter and aggravated assault

convictions were subject to an eighty-five percent period of

parole ineligibility,
N.J.S.A. 2C:43-7.2. An amended judgment of

conviction directed that the periods of mandatory parole

supervision for the three consecutive terms should also run

consecutively, for an aggregate period of mandatory parole

supervision of eleven years.

1
Little information about this incident is contained in the
record on appeal. The presentence report observed that in
September 2014 defendant was hospitalized for a week as a result
of a "self-inflicted gunshot." The judge also referred to this
circumstance at the time of sentencing.

4 A-4431-14T4
III

Defendant appeals, arguing:

I. IN LIGHT OF THE FACTS OF THE CASE AND THE
UNBLEMISHED RECORD OF DEFENDANT, THE COURT'S
SENTENCE WAS CLEARLY ERRONEOUS AND "SHOCKS
THE CONSCIENCE OF THE COURT."

II. THE LOWER COURT ERRED IN DENYING DEFEN-
DANT'S MOTION FOR JUDGMENT NOTWITHSTANDING
THE VERDICT AND MOTION FOR A NEW TRIAL.

III. THE EXTRACTION OF [DEFENDANT'S] BLOOD
FOR THE PURPOSES OF DETERMINING HIS [BAC]
VIOLATED ESTABLISHED CONSTITUTIONAL
PRINCIPLES AND SHOULD HAVE BEEN SUPPRESSED.

IV. THE COURT ERRED IN ALLOWING THE STATE'S
EXPERT TO TESTIFY WITHOUT SCIENCE AND OPINE
THAT [DEFENDANT] WAS SIXTY TIMES MORE LIKELY
TO BE INVOLVED IN A FATAL ACCIDENT (NOT
RAISED BELOW).

V. THE COURT IMPROPERLY ALLOWED BIAS AND
EMOTION INTO THE TRIAL AND ALLOWED THE STATE
TO INTRODUCE HIGHLY PREJUDICIAL PHOTOGRAPHS
ALL WHICH DEPRIVED [DEFENDANT] OF HIS
CONSTITUTIONAL RIGHTS (PARTIALLY RAISED
BELOW).

VI. THE COURT ERRED IN FAILING TO DISMISS A
JUROR FOR CAUSE WHEN SHE RECOGNIZED HER BEST
FRIEND TREATED ONE OF THE VICTIMS (NOT
RAISED BELOW).

VII. PLAIN ERROR AND CUMULATIVE ERROR
REQUIRE REVERSAL.

With the exception of Point I, we find insufficient merit in

defendant's arguments to warrant further discussion except for

the following brief comments. R. 2:11-3(e)(2).

5 A-4431-14T4
Our rejection of defendant's Point II – in which he argues

the evidence could not support a conviction of first-degree

aggravated manslaughter – is based on our earlier interlocutory

decision in reversing the pretrial dismissal of that count. See

Lombardi v. Masso,
207 N.J. 517, 538 (2011). Our rejection of

defendant's Point III is based on the fact the judge found, at

the conclusion of an evidentiary hearing, that defendant

knowingly and voluntarily consented to the drawing of blood;

those findings are deserving of our deference. See State v.

Reece,
222 N.J. 154, 166 (2015). As for Point IV – in which

defendant argues prejudice from a prosecution expert's testimony

about the effect of alcohol on an individual's behavior – we

note that defendant did not object at trial, and we are not

persuaded that any error, if any occurred, was capable of

producing an unjust result. R. 2:10-2. In Point V, defendant

argues the judge allowed emotion to seep into the trial through

admission of what defendant refers to as "highly prejudicial

photographs" and through testimony that elicited information

about the victims' injuries. Defendant, however, has not

provided us with the photographs he believes were prejudicial.

And we do not view the few examples offered by defendant about

information concerning his victims' injuries to support his

argument that the prosecutor's summation exceeded the bounds of

6 A-4431-14T4
proper advocacy or had the effect of unnecessarily evoking the

jury's emotions. In his Point VI, defendant contends the judge

erred by failing to dismiss a juror who, upon admission of

photographs of one of the victims engaged in physical therapy,

realized the victim's therapist was a friend. The juror brought

this to the judge's attention, and the judge questioned the

juror and cautioned her not to discuss the case with the

therapist. During the brief but thorough proceeding about the

juror, defense counsel said he "didn't have a problem with it"

and that the situation "seem[ed] minor" to him. These

circumstances did not warrant the juror's removal. Defendant

lastly argues in his Point VII that cumulative error requires

reversal; our rejection of that argument warrants no further

discussion.

As for defendant's arguments in Point I, we agree the

sentence imposed is shocking to the judicial conscience and was

based on the judge's misunderstanding of applicable legal

principles about when consecutive terms are warranted.

Consequently, we remand for resentencing.

7 A-4431-14T4
A

To summarize his sentencing findings, which were thoroughly

set forth not only in open court at the time of sentencing but

also in the judgment of conviction, the judge applied

aggravating factors three and nine – the risk defendant would

reoffend,
N.J.S.A. 2C:44-1(a)(3), and the need to deter

defendant and others,
N.J.S.A. 2C:44-1(a)(9) – to the aggravated

manslaughter conviction. He correctly recognized aggravating

factor two – the seriousness of the harm caused,
N.J.S.A. 2C:44-

1(a)(2) – was subsumed in the manslaughter conviction itself and

its application would therefore constitute "double counting."

The judge gave aggravating factor three "slight weight." While

defendant had no prior criminal convictions, the judge

considered defendant's driving record2 and alcoholism, citing, in

the latter regard, State v. Casele,
198 N.J. Super. 462, 473-74

2
The judge recognized that defendant had a number of past motor
vehicle violations, including "stop sign violations, speeding,
unsafe operation, obstructing the passage of another vehicle and
a previous driving while intoxicated in 1977" and that defendant
was "involved in [five] reported accidents including leaving the
scene of one." Defendant's driver's license was suspended on two
prior occasions. Notwithstanding, the judge applied mitigating
factor seven – defendant lacked a history of criminal activity
or led a law-abiding life for a substantial period of time,

N.J.S.A. 2C:44-1(b)(7) – because when sentenced, defendant was
sixty-two years old and had not previously committed a criminal
conviction; the judge gave this mitigating factor "moderate
weight."

8 A-4431-14T4
(App. Div. 1985), as grounds for concern that defendant could

reoffend.

In applying aggravating factor nine – the need to deter –

the judge noted that the "horrific consequences" of defendants'

conduct "garnered county wide notoriety about this case and,

therefore, the sentence imposed will receive substantial

attention by the populace." The judge rejected mitigating factor

two – applicable when a defendant did not contemplate his

conduct would "cause or threaten serious harm,"
N.J.S.A. 2C:44-

1(b)(2) – because "given this day and age and the public

dialogue concerning the ills of drinking and driving that the

defendant could consume the amount of alcohol he did and not

understand that he could inflict serious harm on others" was not

to be taken seriously. The judge also rejected mitigating

factor ten – when a defendant would be "particularly likely to

respond affirmatively to probationary treatment,"
N.J.S.A.

2C:44-1(b)(10) – because probationary supervision "cannot be

reasonably undertaken, given the sentences that must be imposed"

and because, "with alcoholism as the underlying pathology for

the defendant[']s conduct, it would be difficult to say that he

is particularly likely to respond to probationary supervision."

From these findings and observations, the judge concluded

the aggravating factors outweighed the mitigating factors. In

9 A-4431-14T4
responding to defendant's argument that, in light of his age, he

should not impose a sentence "which would amount to one of death

while in prison," the judge acknowledged his obligation to

consider the "real-time" effect of NERA and the overall sentence

in light of this particular defendant, but he concluded his

"goal [was] to impose the appropriate sentence for the crimes

committed and not one designed to assure [defendant's] release

prior to the end of his life."

The judge recognized that the vehicular homicide conviction

merged with the aggravated manslaughter conviction, and that two

of the assault-by-auto convictions merged into the aggravated

assault convictions. Consequently, defendant received prison

terms for: the aggravated manslaughter conviction arising from

the death of the nine-year old Honda passenger; the aggravated

assault conviction regarding the Honda driver, whose injuries

were permanent and quite serious; the aggravated assault

conviction regarding the Escalade passenger, who also sustained

permanent and serious injuries; and an assault-by-auto

conviction regarding the less-seriously-injured Escalade

passenger. In considering the aggravating and mitigating factors

outlined earlier – and also in applying aggravating factor two –

"the gravity and seriousness of the harm inflicted,"
N.J.S.A.

2C:44-1(a)(2) – to the aggravated assault convictions, the judge

10 A-4431-14T4
imposed, respectively, terms of twenty years (for aggravated

manslaughter), seven and five years (for the aggravated assault

convictions), and one year (for the assault-by-auto conviction).

The three lengthier terms were subjected to eighty-five percent

periods of parole ineligibility and were also ordered to run

consecutively; the fourth one-year term was ordered to run

concurrently.

As a result of the imposition of consecutive terms,

defendant received an aggregate prison term of thirty-two years.

With the impact of NERA, this sentence would prelude defendant's

eligibility for parole until he was eighty-nine years old.

The consecutive terms imposed were the product of the trial

judge's determination that State v. Carey,
168 N.J. 413 (2001)

compelled at least two consecutive terms. Carey, according to

the trial judge, held that when an offender's use of a motor

vehicle produces multiple victims a sentencing court should

"ordinarily . . . impos[e] . . . at least two consecutive

terms." Id. at 429. But Carey, in our view, did not obligate the

imposition of consecutive terms here, let alone three

consecutive terms and particularly when one of those terms was a

sentence imposed for a first-degree offense.

11 A-4431-14T4
To be sure, the Carey majority observed that "in vehicular

homicide cases, the multiple-victims factor is entitled to great

weight and should ordinarily result in the imposition of at

least two consecutive terms when multiple deaths or serious

bodily injuries have been inflicted upon multiple victims by the

defendant." Id. at 429-30 (emphasis added). Sentencing courts,

however, should not assume from this statement that there exists

a presumption in favor of consecutive terms. Indeed, the Carey

majority emphasized – apparently in response to concerns

expressed by two dissenting justices – that it had not

established a presumption or a per se rule and that the

imposition of consecutive terms always lies in the sentencing

judge's discretion. Id. at 419 (holding that, "[a]lthough we do

not adopt a per se rule, we conclude that it was not an abuse of

the trial court's discretion to impose consecutive sentences").

Because we discern from the judge's decision to impose

consecutive terms that he believed Carey required consecutive

terms – a conclusion the Court expressly rejected, ibid. – we

remand for resentencing and for the judge's exercise of his

discretion, without an assumption of a per se obligation to

impose consecutive terms.

To further explain, we note, as the Carey majority

recognized, that the Criminal Code provides little guidance

12 A-4431-14T4
about when a judge may impose consecutive terms. Id. at 422. The

Code declares only that "multiple sentences shall run

concurrently or consecutively as the court determines at the

time of sentence."
N.J.S.A. 2C:44-5(a). To fill the void created

by the Code's silence, the Supreme Court directed sentencing

courts to consider the following six factors:

(1) there can be no free crimes in a system
for which the punishment shall fit the
crime;

(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing
decision;

(3) some reasons to be considered by the
sentencing court should include facts
relating to the crimes, including whether or
not:

(a) the crimes and their
objectives were predominantly
independent of each other;

(b) the crimes involved separate
acts of violence or threats of
violence;

(c) the crimes were committed at
different times or separate
places, rather than being
committed so closely in time and
place as to indicate a single
period of aberrant behavior;

(d) any of the crimes involved
multiple victims;

13 A-4431-14T4
(e) the convictions for which the
sentences are to be imposed are
numerous;

(4) there should be no double counting of
aggravating factors;

(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense; and

(6) there should be an overall limit on the
cumulation of consecutive sentences for
multiple offenses not to exceed the sum of
the longest terms (including an extended
term, if eligible) that could be imposed for
the two most serious offenses.

[State v. Yarbough,
100 N.J. 627, 643-44
(1985).]

Yarbough's sixth factor was abrogated in 1993 when the

Legislature amended
N.J.S.A. 2C:44-5(a) and removed Yarbough's

the "outer limit" on the cumulation of consecutive sentences.

In Carey, the Supreme Court expressed its view as to how

these factors should be employed in vehicular homicide cases.

There, the sentencing judge imposed consecutive seven-year

prison terms for two vehicular homicide convictions; we

reversed, viewing the imposition of consecutive terms to be an

abuse of discretion. The Carey majority, in reversing our

judgment, started by emphasizing "the Yarbough guidelines are

just that – guidelines."
168 N.J. at 427. They are, according to

the Court, "intended to promote uniformity . . . while retaining

a fair degree of discretion in the sentencing courts." Ibid.

14 A-4431-14T4
Consequently, the Court held that the five "facts relating to

the crimes" within Yarbough's third guideline "should be applied

qualitatively, not quantitatively," ibid., and determined that

consecutive terms may be imposed even when most of the

guidelines favor concurrent terms, id. at 427-28. In this

context, the Court held that "ordinarily" consecutive terms

should be imposed and found the imposition of consecutive terms

in light of the circumstances of the case before it to be

permissible. Id. at 429. Rather than viewing the Court's

expression of what should "ordinarily" be imposed as always

applying in multiple-victim vehicular homicide cases, a

sentencing judge should view each case in light of its specifics

and in comparison with the specifics of Carey.

True, like Carey, defendant was driving while intoxicated.

But there are significant differences. Carey caused two deaths

and serious injuries to two others, id. at 419-20; defendant

caused one death and serious injuries to two others as well as

less serious injuries to another. Carey was driving at an

excessive speed, between sixty-five and eighty-one miles per

hour in a twenty-five miles per hour zone, id. at 420. Defendant

was not speeding; instead, the accident was caused by

defendant's failure to make proper observations. Stopping there,

one would likely conclude that Carey earned greater prison time

15 A-4431-14T4
than defendant. The damage caused by Carey was greater, and his

excessive speeding for an extended period of time,3 revealed a

conscious disregard for societal norms and an enhancement of the

danger generated by his intoxication. Defendant here was not

speeding and his vehicle remained within the proper lane of

travel; other than driving while intoxicated, like Carey,

defendant's only apparent departure from the rules of the road

was the averting of his eyes from the roadway for a long enough

period of time to be unaware the Honda had stopped in his path

to make a turn.

In reversing our determination that the sentencing judge

abused his discretion in imposing consecutive terms, the Carey

majority left in place two seven-year consecutive terms – a

fourteen-year aggregate term. Id. at 422. Here, the State urges

our affirmance of three consecutive terms – consisting of

twenty, seven, and five year terms – an aggregate thirty-two

year prison term. How can it be said – if, as the Carey majority

held, the Yarbough factors were intended to promote uniformity

in sentencing, id. at 422 – that uniformity in sentencing has

3
The Court's Carey decision does not reveal the length of time
the defendant was speeding, but certainly long enough to cause a
passenger – one of his injured victims – to unsuccessfully urge
him to "slow down." Id. at 419. The Court also observed that,
during this course of events, Carey "nearly struck a volunteer
firefighter who was on his way home from a firehouse." Id. at
420.

16 A-4431-14T4
been achieved here? Both Carey and defendant victimized four

individuals, but Carey received only two consecutive terms, and

defendant received three. And defendant received an aggregate

term more than twice as long as Carey's and significantly more

than most, in fact nearly all, the sentences imposed in similar

or far more tragic circumstances than here, as revealed in our

reported and unreported4 appellate decisions since Carey.5

Indeed, although defendant's conviction of first-degree

aggravated manslaughter was cause for a lengthier prison term on

the most serious offense than received by Carey – whose most

serious offenses were the two counts of second-degree vehicular

homicide for which he was convicted – we do not view that as a

persuasive basis for imposing three consecutive terms, when

4
We cite unreported decisions in the appendix not for their
precedential value – they have no such value, R. 1:36-3 – but as
a source of information regarding sentencing in similar matters
as evidence of how defendant's aggregate sentence – because of
the imposition of consecutive terms – is out of alignment with
nearly all other similar cases. Only State v. Baum,
224 N.J. 147
(2016) provides evidence of a greater aggregate term, and there
the defendant – with a BAC nearly four times the legal limit –
was convicted of two counts of first-degree aggravated
manslaughter, for which he received two consecutive twenty-year
prison terms, for striking and killing two pedestrians, both
teenaged girls.
5
See the attached appendix, where we have synopsized all
available post-Carey decisions – some reported, most unreported
– identifying sentences imposed in multiple-victim vehicular
homicide cases. They are ordered from lengthiest to shortest
aggregate sentence.

17 A-4431-14T4
Carey only received two, despite the fact that both caused death

or injuries to a total of four innocent victims.

Carey did not fix how Yarbough must apply in all vehicular

homicide cases. Every case requires its own Yarbough analysis.

Here, there is no question but that three of the five of

Yarbough's facts-relating-to-the-crime third factor favor the

imposition of concurrent terms: the crimes were not

predominantly independent of each other; the crimes involved a

single act; and the crimes involved a single act of aberrant

behavior. Carey,
168 N.J. at 424. There can be no dispute that

at least one factor – multiple victims – favored consecutive

terms. The fifth – the convictions for which the sentences are

to be imposed are numerous – was found in similar circumstances

by the Carey majority to also favor consecutive terms, id. at

423, even though it may fairly be argued that the multiple

convictions arise from the fact that there were multiple

victims; in many instances – and this is one – this fifth factor

is simply another way of recognizing there were multiple

victims. In short, those two factors are often double-counted,

as they were here.

We also observe that this case differs from Carey in

another significant way. Here, the State pursued and was able to

convince a jury to convict defendant of first-degree aggravated

18 A-4431-14T4
manslaughter in causing the death of the nine-year-old Honda

passenger. Consequently, in imposing sentence, the term imposed

for that conviction was necessarily significantly higher than

what Carey faced when he was sentenced on two second-degree

vehicular homicide convictions. The Carey Court recognized that

the Yarbough determination, and the Court's direction that

"ordinarily" consecutive terms should be imposed when there are

multiple victims, may be impacted by such a circumstance,

emphasizing in the same context of its "ordinarily" imposed

language that, "in multiple-victim cases," nothing "prevent[s]

the sentencing court from setting the base term of each sentence

below the maximum provided by the Code," which was "precisely

what occurred" in the trial court there. Id. at 430. Clearly,

the Court intended that sentencing judges would take fully into

consideration the real-time consequences of an accumulation of

consecutive terms. See State v. Abdullah,
184 N.J. 497, 515

(2005) ("remind[ing]" trial courts that "when imposing either

consecutive or concurrent sentences, '[t]he focus should be on

the fairness of the overall sentence," quoting State v. Miller,

108 N.J. 112, 122 (1987)). Considering that defendant was an

otherwise law-abiding citizen, and fifty-eight years old at the

time of the offenses (sixty-two at the time of sentencing), the

judge's imposition of three consecutive terms, one of which was

19 A-4431-14T4
a twenty-year term – and all subject to NERA – demonstrates the

real-time consequence of the aggregate sentence was not given

fair consideration.

And there is yet another reason for the judge to have

avoided an unexplored, lock-step adoption of Carey. Carey caused

two deaths and it was in that context that the Court gave

expression to what it believed should ordinarily be imposed.

Indeed, we view that particular fact – not present here, since

defendant caused a single death – as the predominant ground upon

which consecutive terms were justified by the Supreme Court in

Carey. See also Molina,
168 N.J. 436, 441 (2001).6 If, as is now

argued, a consecutive term should be imposed for each victim of

an accident caused by an intoxicated defendant, including those

sustaining nonfatal injuries, then the argument that a

consecutive term should be imposed for each victim would have

led to Carey receiving four consecutive terms, instead of two.

But if, as it seems to us, the Court intended that the

6
The Court decided Carey and Molina on the same day. Molina
further suggests that the Court's holding that consecutive terms
should "ordinarily" be imposed in multiple-victim, vehicular
homicide cases was intended for cases in which there were
multiple fatalities. Like Carey, Molina's operation of a vehicle
resulted in two deaths, for which he received consecutive five-
year prison terms subject to two-and-one-half-year parole
ineligibility periods. Id. at 441 (Molina's actions took place
prior to the Legislature amending
N.J.S.A. 2C:11-5 so as to
render vehicular homicide a second-degree instead of a third-
degree offense).

20 A-4431-14T4
convictions on the offenses related to the deaths caused are to

"ordinarily" result in consecutive terms, then, in this case,

Carey's holding about consecutive terms did not require

consecutive terms because defendant's actions caused one death,

not two. In short, a reasonable reading of Carey's "ordinarily-

imposed" language might very well have been intended as ensuring

that the defendant not get a free "vehicular homicide" without

militating or even suggesting that "ordinarily" consecutive

terms should be imposed for each victim, regardless of whether

each victim was killed.

For these reasons, we remand for resentencing and for the

judge's reconsideration of the imposition of consecutive terms

without an assumption that Carey requires at least two

consecutive terms, as the judge previously presupposed. We also

remand for resentencing because, in this context, the judge

appears not to have fairly considered the real-time consequences

of the aggregate term imposed, nor did he appear to consider the

fact that the sentence imposed here far exceeded what was

imposed in Carey and has not been shown to be in accord with any

other sentence imposed in similar circumstances, thus impairing

the overarching Yarbough goal that there be uniformity in

sentencing.

21 A-4431-14T4
The judgment of convictions are affirmed but, for the

reasons expressed, we remand for resentencing and do not retain

jurisdiction.

22 A-4431-14T4
APPENDIX

– 29 years: State v. Vargas, No. A-3414-13 (App. Div. June

27, 2016) (the intoxicated defendant lost control of his

vehicle, side-swiped a truck, struck a fire hydrant and

telephone pole and finally crashed into a tavern, killing the

passenger of his car and injuring three tavern patrons; the

aggregate term consisted of eighteen years for first-degree

aggravated manslaughter, eight years for second-degree

aggravated assault, and eighteen-month terms on each of two

assault by auto convictions, all ordered to run consecutively).

– 25 and 1/2 years: State v. Villanueva, No. A-3460-10

(App. Div. Nov. 5, 2012) (defendant engaged in unlawful drag

racing that left three dead and one with serious injuries; the

aggregate term consisted of three second-degree vehicular

homicide convictions (eight years each) as well as a fourth-

degree assault-by-auto conviction (eighteen months), which

concerned the one individual who was injured).

– 25 years: State v. Atwater,
400 N.J. Super. 319 (App.

Div. 2008) (the intoxicated defendant was driving at an

excessive speed when he struck and killed two pedestrians, after

which he left the scene of the accident; the aggregate term

consisted of consecutive twelve-, ten-, and three-year prison

23 A-4431-14T4
terms for the two counts of first-degree vehicular homicide and

a count for leaving the scene of an accident).

– 18 years: State v. Bieniek,
200 N.J. 601 (2010)

(defendant pleaded guilty as a result of an alcohol-related

accident; the defendant was driving 100 mph when his vehicle

struck another vehicle, killing its driver and injuring a

passenger in defendant's vehicle; pursuant to the plea

agreement, the judge imposed an eighteen-year term on the first-

degree aggravated manslaughter conviction and a concurrent term

on the second-degree aggravated assault conviction).

– 18 years: State v. Brooks, No. A-6158-08 (App. Div. Oct.

27, 2010) (the intoxicated defendant lost control of his vehicle

and crashed head-on into a taxi, killing the taxi driver,

seriously injuring two of the taxi's passengers, and seriously

injuring defendant's passenger; the aggregate term consisted of

a ten-year term for vehicular homicide, and three eight-year

terms on the three aggravated assault convictions that were

ordered to run concurrently to each other but consecutively to

the ten-year term).

– 17 years: State v. Michaels, No. A-5190-10 (App. Div.

Oct. 15, 2012) (while under the influence of Xanax, the

defendant drove on the wrong side of a highway, resulting in the

death of another vehicle's passenger as well as injuries to the

24 A-4431-14T4
other driver; the aggregate sentence consisted of a twelve-year

term for second-degree vehicular homicide and a consecutive

five-year term for assault by auto).

– 15 years: State v. Evans, No. A-5479-09 (App. Div. Aug.

1, 2011) (the intoxicated defendant ran a red light in a school

zone and crashed into a patrol car, killing one police officer

and injuring another; the sentence consisted of a fifteen-year

prison term for first-degree vehicular homicide and a concurrent

seven-year term for second-degree aggravated assault).

– 12 years: State v. Green, No. A-1882-10 (App. Div. 2013)

(defendant was speeding while intoxicated, eventually running a

red light and causing an accident that killed one and injured

two others; the sentence consisted of an eight-year term for

vehicular homicide and two four-year terms on the assault

convictions that were ordered to run concurrently to each other

but consecutive to the eight-year term).

– 12 years: State v. Campanella, No. A-4606-11 (App. Div.

July 3, 2013) (defendant caused two separate accidents while

speeding and under the influence of alcohol, barbiturates and

other intoxicants, killing one and seriously injuring another;

he received a twelve-year term for first-degree aggravated

manslaughter with all other terms ordered to run concurrently).

25 A-4431-14T4
– 10 years: State v. Molina,
168 N.J. 436 (2001) (Carey's

companion case; defendant was convicted on two vehicular

homicide counts (when that was a third-degree offense) and

received consecutive five-year prison terms).

– 10 years: State v. Perez, No. A-4339-07 (App. Div. May

14, 2009) (while intoxicated, the defendant drove at an

excessive rate of speed, hitting a road barrier and then

crashing into parked cars; the impacts killed one passenger and

seriously injured another; the sentence imposed, pursuant to a

plea agreement, consisted of a ten-year prison term for

aggravated manslaughter and a concurrent five-year term for

aggravated assault).

– 10 years: State v. Johns, No. A-3133-12 (App. Div. June

15, 2015) (while under the influence of alcohol, defendant

caused a head-on collision that killed one and seriously injured

two others; a ten-year term was imposed for second-degree

vehicular homicide with all other terms ordered to run

concurrently).

– 9 years: State v. Williams, No. A-1610-14 (App. Div. Mar.

10, 2017) (the intoxicated defendant caused an accident that

victimized four; the defendant's passenger was seriously

injured; the driver and one passenger of the other vehicle were

moderately injured; and another passenger in the other vehicle

26 A-4431-14T4
was killed; the sentence consisted of a six-year term for

second-degree vehicular homicide and a consecutive three-year

term on a third-degree assault-by-auto conviction, together with

other lesser concurrent terms).

– 7 years: State v. Gentilello, No. A-0419-10 (App. Div.

Mar. 19, 2013) (an alcohol-related accident caused by the

defendant left one man dead, and his wife and two children

seriously injured; a seven-year term was imposed on the second-

degree vehicular homicide conviction and concurrent terms on

three fourth-degree assault-by-auto convictions).

– 7 years: State v. Nasta, No. A-3951-14 (App. Div. Feb.

23, 2017) (while under the influence of heroin, the defendant

crashed the family vehicle into a light pole, resulting in her

husband's death and serious injuries to her five-year-old and

two-month-old daughters; she received a seven-year term for

vehicular homicide and concurrent terms on the other

convictions).

– 7 years: State v. Riddick, No. A-2742-11 (App. Div. Nov.

6, 2014) (the defendant's operation of his vehicle caused one

death and serious injuries to three others; a seven-year term

for vehicular homicide was imposed with the terms on all other

convictions ordered to run concurrently).

27 A-4431-14T4

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