(NOTE: The status of this decision is Published.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
DOCKET NO. A-4905-17T2
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, April 6, 2020
v. APPELLATE DIVISION
Submitted September 18, 2019 – Decided April 6, 2020
Before Judges Fuentes, Haas and Mayer.
On appeal from the Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.18-
Benedict and Altman, attorneys for appellant (Steven
D. Altman and Philip Nettl, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent (Lauren Bonfiglio, Deputy Attorney
General, of counsel and on the brief).
The opinion of the court was delivered by
Defendant Jake Pascucci pleaded guilty pursuant to a negotiated plea
agreement with the State to an accusation charging him with third degree strict
liability vehicular homicide. N.J.S.A. 2C:11-5.3a. Consistent with the terms of
the plea agreement, the Criminal Part judge sentenced defendant to a five -year
term of probation, conditioned on defendant serving 364 days in the county jail
pursuant to N.J.S.A. 2C:45-1(e). Mitigating factor five, N.J.S.A. 2C:44-1b(5),
allows the judge to consider whether the victim's conduct induced or facilitated
the commission of the crime. The sentencing judge concluded that mitigating
factor five is inapplicable to this case as a matter of law because N.J.S.A.
2C:11-5.3d provides: "It shall not be a defense to a prosecution under this
section that the decedent contributed to his [or her] own death by reckless or
negligent conduct or operation of a motor vehicle or vessel."
In this appeal, defendant argues the sentencing judge misconstrued the
scope of N.J.S.A. 2C:11-5.3d when he held he was per se precluded from
considering the applicability of mitigating factor five. Defendant claims the
judge's erroneous refusal to consider evidence in the record that supports a
finding of mitigating factor five requires that we remand this matter for
resentencing. The State concedes "the judge mistakenly believed that the
language of the statute precluded him from finding mitigating factor five[.]"
The State nevertheless argues that the judge "properly declined to apply that
We disagree with the State's position and remand this matter for
resentencing. It is our duty as an appellate court to determine: (1) whether the
judge followed the correct sentencing guidelines, (2) whether there is
substantial evidence in the record to support the judge's findings of fact, and
(3) whether the judge clearly erred when he reached a conclusion that was not
reasonably based upon a weighing all of the relevant factors. State v. Roth, 95 N.J. 334, 365-66 (1984). Guided by these fundamental principles, we are
satisfied this sentence cannot stand because the judge did not conduct a
qualitative analysis of all of the relevant sentencing factors on the record.
State v. Fuentes, 217 N.J. 57, 70 (2014).
A plain reading of the text in N.J.S.A. 2C:11-5.3d shows the Legislature
intended to prohibit a defendant from presenting evidence of the victim's
conduct as an affirmative defense in the prosecution of this offense. The
sentencing judge clearly erred when he refused to consider whether the record
supported finding mitigating factor five.
We gather the following facts from the record developed before the trial
At approximately 8:15 p.m. on September 22, 2017, defendant Jake
Pascucci, an off-duty City of Long Branch Police Officer, was driving a Jeep
Grand Cherokee on Ocean Boulevard when he struck and killed a pedestrian at
the intersection of Ocean Boulevard and South Broadway. The victim was a
sixty-six-year-old woman. The detectives who responded to the scene
detected an odor of alcoholic beverage emanating from defendant's breath and
his person and noticed his speech and movements were slow and lethargic.
Defendant invoked his right to consult with an attorney and declined to
provide a statement to the detectives.
The emergency medical staff who responded to the accident transported
defendant to the Monmouth Medical Center. Defendant consented to provide a
sample of his blood for toxicological testing. The analysis revealed his blood
alcohol content (BAC) was above the presumptive level of intoxication under
1 On February 22, 2018, detectives from the Middlesex
County Prosecutor's Office charged defendant with third degree strict liability
vehicular homicide, N.J.S.A. 2C:11-5.3a, and driving a vehicle while
intoxicated (DWI), N.J.S.A. 39:4-50(a).
Detectives from the Monmouth County Prosecutor's Office initially
investigated this case. Due to the conflict of interest presented by defendant's
status as a law enforcement officer with the Long Branch Police Department,
on September 27, 2017, the Attorney General transferred the investigation to
the Middlesex County Prosecutor's Office. On November 9, 2017, defendant,
joined by the State, moved to change venue of the case to Middlesex County.
On December 22, 2017, the Monmouth County Assignment Judge transferred
venue to Middlesex County.
On April 3, 2018, defendant entered into a negotiated agreement with the
State through which he waived his right to have this case presented to a grand
jury and pleaded guilty to an accusation that charged him with third degree
strict liability vehicular homicide and DWI. Defense counsel addressed
defendant directly at the plea hearing to confirm he understood the terms of the
DEFENSE COUNSEL: And the plea agreement that
was reached with the State is the State at sentencing is
going to stand before the Judge and ask the Judge to
place you on probation and as a condition of probation
that you be sentenced to serve 364 days in the
Middlesex County Adult Correction Center. Do you
DEFENDANT: Yes I do.
DEFENSE COUNSEL: That’s what the State is going
to ask for and I, on your behalf, can ask the Judge to
put you on straight probation with no jail at all.
DEFENSE COUNSEL: And you understand it’s
going to be completely within the discretion of the
Judge what’s going to happen in terms of that County
jail sentence. Do you understand that?
DEFENDANT: Yes, I do.
DEFENSE COUNSEL: And you also understand that
you’re going to forfeit your law enforcement
DEFENDANT: Yes, I do.
As part of his plea allocution, defendant stipulated that at the time he struck
and killed sixty-six-year-old K.B.,2 he was "under the influence with a blood
alcohol reading of .08 or in excess," which made him legally intoxicated under
The court held the sentencing hearing on June 28, 2018. The prosecutor
and defense counsel submitted legal memoranda in support of their respective
positions. The judge also considered the information contained in the
presentence investigation report 3 as well as the sentencing recommendations
made therein. Four individuals spoke on defendant's behalf: a Lieutenant in
the Long Branch Police Department; a man who described himself as one of
defendant's "best friends"; defendant's maternal uncle, who identified himself
as a former police officer; and defendant's mother. Eight members of the
victim's family and close friends addressed the judge. They included the
victim's husband, her daughter, two of her siblings, her brother-in-law, the
reverend of her church, and two of her close friends.
Defense counsel argued the record did not support finding any
aggravating factors under N.J.S.A. 2C:44-1a. Although specific deterrence is
We refer to the victim by her initials out of respect to the members of her
family. See N.J.S.A. 52:4B-36 A. 3 See N.J.S.A. 2C:44-6; R. 3:21-2.
axiomatic in a case of vehicular homicide caused by an intoxicated driver,
defense counsel argued aggravating factor nine, N.J.S.A. 2C:44-1a(9), was not
applicable here because defendant had lived an exemplary life. With respect to
the concept of general deterrence, defense counsel argued the Legislature
incorporated general deterrence of drunk driving as an element of this strict
liability crime. Thus, finding aggravating factor nine in this case would
constitute double counting.
Conversely, defense counsel argued the record supported mitigating
factor N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct
would cause or threaten serious harm), N.J.S.A. 2C:44-1b(4) (there were
substantial grounds tending to excuse or justify defendant’s conduct, though
failing to establish a defense), N.J.S.A. 2C:44-1b(5) (the victim of defendant’s
conduct induced or facilitated its commission), N.J.S.A. 2C:44-1b(7)
(defendant does not have a history of prior delinquency or criminal activity
and led a law-abiding life before the commission of this offense), N.J.S.A.
2C:44-1b(8) (defendant’s conduct was the result of circumstances unlikely to
recur), N.J.S.A. 2C:44-1b(9) (defendant's character and attitude indicate that
he is unlikely to commit another offense), and N.J.S.A. 2C:44-1b(10)
(defendant is particularly likely to respond affirmatively to probationary
treatment). In this light, defense counsel asked the court to impose a
probationary sentence without requiring defendant to serve a custodial term of
imprisonment as a condition of his probation, as authorized under N.J.S.A.
The State urged the court to reject defendant’s request to find mitigating
factors N.J.S.A. 2C:44-1b(2) and (4) because the evidence did not provide any
justification or explanation for his decision to drive while intoxicated. The
prosecutor emphasized that the area where this occurred "was an open
intersection" and K.B. was "visibly crossing an open intersection" when
defendant drove his car into her. The prosecutor argued mitigating factor
N.J.S.A. 2C:44-1b(5) was not applicable because the record did not show the
victim induced defendant to drive while intoxicated or otherwise facilitated her
own death. The prosecutor also argued the record of this case clearly
supported finding aggravating factor N.J.S.A. 2C:44-1a(9). K.B.'s tragic death
indisputably demonstrated the need to strongly deter defendant and others like
him from driving while intoxicated.
The judge found aggravating factor N.J.S.A. 2C:44-1a(9), and mitigating
factors N.J.S.A. 2C:44-1b(7), (8), (9), and (10), and sentenced defendant to a
five-year term of probation, conditioned on serving 364 days in the Middlesex
County Adult Corrections Center and completing an alcohol dependence
evaluation. If recommended by his probation officer, defendant was required
to enroll in an out-patient or in-patient program for drug education, therapy,
and rehabilitation and complete all prescribed follow-up programs, until
medically discharged. As a further condition of his probation, the court
ordered defendant "to find a new job within 30 days of release from the
Middlesex County Adult Correction Center." The trial court stayed the
execution of the sentence pending the outcome of this appeal.
The only issues defendant raises on appeal concern the sentence imposed
by the trial court:
I. DEFENDANT'S SENTENCE WAS EXCESSIVE,
BECAUSE THE SENTENCING COURT
UNNCESSARILY CONSTRAINED ITSELF FROM
FINDING ALL MITIGATING FACTORS, AND DID
NOT EXPLAIN THE JUSTIFICATION FOR
A. The sentencing court unreasonably
"precluded" itself from considering
applicable mitigating factors.
1. The victim's role in the offense.
2. Defendant's extrapolated BAC.
B. The sentencing court's finding of
Aggravating Factor 9 was not supported
by the record.
C. The trial court did not give a statement
of reasons for imposing a custodial
condition of probation.
We agree the judge erred as a matter of law when he refused to find
mitigating factor five. We are thus compelled to remand this matter for
N.J.S.A. 2C:11-5.3a became effective on July 21, 2017, sixty-three days
before the incident that took K.B.'s life on September 22, 2017. The Model
Jury Charge the Supreme Court approved for this offense provides:
In order for you to find the defendant guilty of this
crime, the State must prove each of the following
elements beyond a reasonable doubt:
1. That the defendant was driving a vehicle;
2. That the defendant caused the death of . . . the
3. That the defendant caused such death by driving a
vehicle while intoxicated in violation of N.J.S.A.
[Model Jury Charges (Criminal), "Strict Liability
Vehicular Homicide Driving While Intoxicated
(N.J.S.A. 2C:11-5.3a)" (approved July 21, 2017).]
N.J.S.A. 2C:11-5.3d provides: "It shall not be a defense to a prosecution under
this section that the decedent contributed to his own death by reckless or
negligent conduct or operation of a motor vehicle or vessel." (Emphasis
The Supreme Court recently reaffirmed the guiding principles judges
must follow when confronted with a question of statutory construction:
Our objective in interpreting any statute is to give
effect to the Legislature's intent. Frugis v. Bracigliano,
177 N.J. 250, 280 (2003). When the clear language of
the statute expresses the Legislature's intent, our
analysis need go no further. Shelton v.
Restaurant.com, Inc., 214 N.J. 419, 429 (2013). When
a plain reading of the statute allows for more than one
plausible interpretation or leads to an absurd result or
a result at odds with the overall statutory scheme, we
may turn to extrinsic evidence. DiProspero v. Penn,
183 N.J. 477, 492-93 (2005).
[McClain v. Bd. of Review, Dept. of Labor, 237 N.J.
445, 456 (2019).]
A plain reading of the text in N.J.S.A. 2C:11-5.3d shows the Legislature
intended to preclude a defendant from presenting evidence of the victim's
conduct as an affirmative defense in the prosecution of this offense. The judge
erroneously construed the language in N.J.S.A. 2C:11-5.3d to preclude him
from considering whether the victim's conduct induced or facilitated her own
death, as provided in mitigating factor N.J.S.A. 2C:44-1b(5).
Here, the appellate record contains an independent eyewitness account
of the incident. This person gave a formal statement to Detective Eric
Kerecman on September 26, 2017. The witness was stopped at a traffic light
located on Broadway waiting to turn right onto Ocean Avenue. The statement
the witness gave to Detective Kerecman provides the following account of how
the incident occurred:
There was somebody in front of me who wasn’t
turning that's why I was stationary. At that point I
saw across the street there was a woman wearing [an]
oversized white t-shirt, it looked like she was in
pajamas. She was crossing the street on the North
bound side and didn’t have the right of way. She
walked through the grassy median and casually took a
few steps off into the South bound lanes and started
sprinting. The car came full speed and never saw her,
from what I could tell, and hit her head on. She flew
over the entire intersection and landed about
approximately ten feet in the south bound lane on the
road but against the medians curb.
The judge made the following comments with respect to the applicability
of mitigating factor five:
Defendant argues that [the victim] may have . . . some
responsibility for being in the roadway that night, at
night, perhaps not in the crosswalk, and subjecting
herself to oncoming traffic.
The State, on the other hand, argues that [the victim]
did not force . . . defendant to consume any alcohol.
This court has an obligation to look at all of the
circumstances surrounding the incident. To the extent
to which the victim may or may not have contributed
to the accident would require a hearing, the testimony
of witnesses, an accident reconstructionist. And at the
end of the argument none of that applies here because
of the nature of this statute.
The judge also stated he was "familiar" with the statement the witness
gave to Detective Kerecman four days after the incident. The judge made
clear that in his judgment, he was legally precluded from considering this
evidence in determining whether defendant was entitled to assert mitigating
Even if the victim ran into the road the statute makes
the offense one of a third-degree in contemplation that
. . . a defendant cannot argue a contributing act of the
victim, because this used to be a second-degree
offense where there had to be reckless conduct.
This law was enacted, if you will, to say, regardless of
a victim’s contributory negligence, that the driver
being a link in the chain that causes the death, by
simply being in the vehicle and being under the
influence is enough for a conviction.
In essence, that the act, the death would not have
occurred if the defendant did not get in the car while
We conclude the judge's erroneous construction of N.J.S.A. 2C:11-5.3d
deprived defendant of a qualitative assessment of all the relevant mitigating
factors. State v. Case, 220 N.J. 49, 64 (2014). Under these circumstances, our
only viable option is to remand the matter to allow the judge to consider the
witness's statement and determine whether the record supports a finding of
mitigating factor five. State v. Dalziel, 182 N.J. 494, 505 (2005). The judge
must thereafter reconsider the entire record and
state reasons for imposing such sentence including
findings pursuant to the criteria for withholding or
imposing imprisonment or fines under N.J.S.A. 2C:44-
1 to 2C:44-3; the factual basis supporting a finding of
particular aggravating or mitigating factors affecting
sentence; and, if applicable, the reasons for ordering
forfeiture of public office, position or employment,
pursuant to N.J.S.A. 2C:51-2.
In light of this determination, we do not reach defendant's remaining
Reversed and remanded. We do not retain jurisdiction.