STATEOF NEW JERSEY v. ERICK P. UZCATEGUI
Annotate this CaseNOT 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-4388-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERICK P. UZCATEGUI,
Defendant-Appellant.
Submitted February 6, 2018 – Decided March 13, 2018
Before Judges Carroll, Leone and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
12-12-2451.
Joseph E. Krakora, Public Defender, attorney
for appellant (Amira R. Scurato, Assistant
Deputy Public Defender, and Margaret McLane,
Assistant Deputy Public Defender, of counsel
and on the briefs).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Steven A. Yomtov, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Erick P. Uzcategui appeals his conviction and
eight-year prison sentence for vehicular homicide. Based on our
review of the record in light of the applicable legal principles,
we affirm.
I.
We glean the following facts from the trial record. 1 At
approximately 3:10 a.m. on Thanksgiving Day, November 25, 2010,
defendant was driving northbound on the Garden State Parkway in
Toms River. Defendant's BMW collided with the back of a Jeep
Cherokee driven by Jason Marles, an off-duty Ocean Gate police
officer, who died as a result of his injuries.
Approximately ten to fifteen New Jersey State Police (NJSP)
Troopers responded to the scene, including Trooper Richard Herr.
Fire and emergency medical personnel also responded, as did
numerous police officers from local jurisdictions. The
investigation was led by NJSP Detective Sergeant John Bentivegna.
Upon his arrival at 3:47 a.m., Herr observed defendant's BMW
on the right shoulder of the roadway, with damage to its front end
and driver's side. Herr also observed Marles's Jeep overturned
and engulfed in flames, in the woods to the right side of the
northbound lanes.
1
Facts drawn from pretrial suppression hearings are more fully
set forth under the pertinent issue headings.
2 A-4388-14T3
Fifteen to twenty minutes later, Herr spoke with defendant
and observed his breath smelled of alcohol. Herr asked defendant
to perform two field sobriety tests, both of which he performed
unsatisfactorily. The video of the tests was played for the jury.
Herr placed defendant under arrest, and Trooper Alan Lewis, Jr.
read defendant his Miranda2 rights, advising him he was under
arrest for driving while intoxicated (DWI), and that the person
he hit was a police officer.
Detective Bentivegna instructed Herr to transport defendant
to Community Medical Center in Toms River so defendant's blood
could be drawn. Herr left the accident scene at about 4:34 a.m.,
driving first to the Pleasant Plains Barracks to retrieve a blood
specimen kit, and then to the hospital for the blood draw.
At the hospital, Herr asked for defendant's consent for the
blood to be taken. However, he did not have defendant sign a
consent form. Rather, a blood draw form was signed by Herr and
Janice Weber, the emergency room technician who drew defendant's
blood. Weber recalled that defendant smelled very strongly of
alcohol, and he was laughing and acting in a very strange and
erratic manner.
Weber drew defendant's blood at 5:00 a.m. and provided Herr
2
Miranda v. Arizona,
384 U.S. 436 (1966).
3 A-4388-14T3
with the vials. At 5:33 a.m., Herr transported defendant and the
specimen kit to the Bass River Barracks. He placed defendant in
a holding cell and secured the blood specimen kit in a refrigerated
evidence locker. The blood vials were later taken to a laboratory
in Pennsylvania for testing.
Defendant was questioned by NJSP Detective Colin McNulty and
NJSP Sergeant Matt Razukas between 10:30 a.m. and 12:10 p.m. on
the day of the accident. McNulty read Miranda warnings to
defendant, and defendant signed the Miranda card. Defendant then
gave a recorded statement, which was also played for the jury.
Defendant told the officers the previous night he went out
with friends after work, first to a hotel room party and then to
a bar in Seaside. He admitted consuming four or five drinks over
the course of several hours, and some cocaine around 11:30 p.m.
He stated he had his last drink about one hour before leaving the
bar. He offered to drive his friends home because he did not feel
impaired, and he was "definitely the best one to drive out of the
group."
Defendant claimed he was driving northbound on the Parkway
at about sixty-five or seventy-five miles per hour, in the center
lane, when he was hit by a white vehicle (not the Jeep) from the
right side. His vehicle then moved to the left, hit the median,
spun around, and ended up on the right side of the roadway. He
4 A-4388-14T3
did not recall the Jeep ever being directly in front of him. When
he exited his vehicle he saw the Jeep on fire, in the woods on the
right side of the roadway.
Defendant stated he lost his balance during the field sobriety
tests because he was nervous and shaky from the accident, and he
generally did not have great balance. He denied that his alcohol
ingestion affected his performance on the tests.
Early in the questioning, defendant acknowledged being
informed at the accident scene the other driver had died. At the
end of the questioning, however, he expressed surprise when told
he would be charged with vehicular homicide.
Defendant's blood samples were analyzed at Atlantic
Diagnostic Laboratory in Pennsylvania. Dr. William E. Wingert, a
forensic toxicologist and clinical chemist, certified the results
of the blood testing performed by chemists who reported to him at
the lab. Wingert testified defendant's blood test results showed
a blood alcohol content (BAC) of .155 milligrams per deciliter,
which exceeded the standard for driving under the influence in New
Jersey. Defendant's blood also tested positive for 274 nanograms
per milliliter of benzoylecgonine, a cocaine metabolite.
Robert Pandina, Ph.D., the Director of the Center of Alcohol
Studies at Rutgers University, testified for the State as an expert
in psychopharmacology, developmental neuropsychology, and the
5 A-4388-14T3
effects of drugs and alcohol on human physiology and behavior. He
opined that extrapolating from defendant's .155 BAC test result
at 5:00 a.m., between 3:10 and 3:25 a.m. defendant's BAC would
have been .185, plus or minus .01 percent.
Pandina further opined that this level of impairment would
have affected defendant's judgment, as well as his physical
abilities in a manner consistent with the video of his field
sobriety tests. Pandina conceded, however, that environmental
conditions, or a person's medical conditions, could affect his or
her performance on such tests.
Pandina testified that the amount of cocaine metabolite found
in defendant's blood was consistent with defendant's statement to
the police about his use of cocaine earlier in the evening.
Moreover, he opined that when cocaine and alcohol are taken
together, the effect is "greater than taking either of the two
drugs separately."
Finally, Pandina opined that, given defendant's blood test
results, at the time of the accident defendant "was under the
acute effects of alcohol and . . . his abilities to operate a
motor vehicle, including his perceptual motor abilities, his
cognitive thinking abilities and his affective emotional ability
necessary to operate a motor vehicle safely were clearly and
significantly impaired." It was also "probable to a reasonable
6 A-4388-14T3
degree of scientific certainty" that defendant "was at a minimum
in the post-acute phase of cocaine ingestion and subject to the
crash effects . . . that result from cocaine ingestion."
Razukas, who was a member of the NJSP Fatal Accident
Investigation Unit, testified for the State as an expert in motor
vehicle accident reconstruction. Razukas opined that the cause
of the accident was an offset rear-end crash, in which the front
passenger side of defendant's BMW impacted the driver's side rear
of Marles's Jeep. Thereafter, Marles's Jeep tripped over the
guide rail and overturned onto the right side of the road, while
defendant's BMW rotated counter-clockwise to the left, hit the
concrete barrier in the center of the roadway, and then traveled
to the right shoulder.
Razukas further opined that the crash involved substantial
force, as evidenced by the fact that the Jeep's leaf spring was
embedded in the BMW's front bumper. Also, based on the location
of the leaf spring in defendant's front bumper, Razukas opined
that defendant's vehicle went underneath the back bumper of
Marles's Jeep, with an overlap of sixteen inches.
In his report, Razukas quoted factory specifications
regarding the two vehicles, including tire size, height, and tip-
over stability. However, Razukas did not take actual height
measurements for either vehicle, nor did he measure the actual
7 A-4388-14T3
size of the Jeep's tires, or calculate the Jeep's actual tip-over
stability based upon its actual measurements. Razukas also did
not know whether Marles's vehicle met factory specifications in
terms of tire size or height, or if the Jeep had been "lifted" or
modified in any way. Regardless, in his opinion, the Jeep would
have gone over the guide rail no matter its height.
On July 10, 2014, following a six-day trial, the jury found
defendant guilty of second-degree vehicular homicide,
N.J.S.A.
2C:11-5. On November 12, 2014, defendant was sentenced to an
eight-year prison term, subject to an eighty-five percent period
of parole ineligibility under the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2.3
Defendant appeals, arguing:
POINT I
IN LIGHT OF [STATE v.] ADKINS,
221 N.J. 330
(2015), THE MATTER MUST BE REVERSED AND
REMANDED FOR FURTHER FINDINGS REGARDING THE
FORCIBLE BLOOD DRAW.
POINT II
DUE TO MIRANDA VIOLATIONS, THE MATTER MUST BE
REVERSED AND ALL STATEMENTS BY [] DEFENDANT
SUPPRESSED AS THEY WERE TAKEN IN VIOLATION OF
3
At sentencing, the judge found defendant guilty of DWI,
N.J.S.A.
39:4-50, and reckless driving,
N.J.S.A. 39:4-96, and imposed the
appropriate penalties for those motor vehicle offenses. The judge
also found defendant guilty of following too closely,
N.J.S.A.
39:4-89, and merged that offense with the reckless driving
conviction.
8 A-4388-14T3
DEFENDANT'S RIGHTS. U.S. CONST. AMENDS. V,
VI, XIV; N.J. CONST. (1947) ART. 1, PARS. 1,
9, 10.
POINT III
THE TRIAL JUDGE'S RULING BARRING THE DEFENSE
FROM CROSS-EXAMINING REGARDING THE ILLEGAL
MODIFICATION OF THE JEEP CONSTITUTED A GROSS
AND PATENT ABUSE OF DISCRETION AND VIOLATED
DEFENDANT'S RIGHT TO A FAIR TRIAL. U.S.
CONST. AMENDS. VI, XIV; N.J. CONST. (1947)
ART. I, PARS. 1, 9, 10.
POINT IV
DEFENDANT'S RIGHTS TO CONFRONT WITNESSES, DUE
PROCESS OF LAW AND A FAIR TRIAL WERE VIOLATED
BY THE ADMISSION OF EVIDENCE BY ABSENTEE
WITNESSES IMPLICATING DEFENDANT IN THE CRIME
OF VEHICULAR HOMICIDE. U.S. CONST. AMENDS.
VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1,
9, 10.
POINT V
THE EXPERT'S ULTIMATE-OPINION TESTIMONY
IMPERMISSIBLY INTRUDED INTO THE JURY'S
SINGULAR ROLE AS TRIER OF FACT AND VIOLATED
DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR
TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J.
CONST. (1947) ART. I, PARS. 1, 9, 10.
POINT VI
THE CUMULATIVE EFFECT OF THE TRIAL ERRORS
DEPRIVED DEFENDANT OF A FAIR TRIAL AND
WARRANTS REVERSAL OF HIS CONVICTION. U.S.
CONST. AMENDS. VI, XIV; N.J. CONST. (1947)
ART. I, PARS. 1, 10.
POINT VII
THE TRIAL JUDGE FAILED TO FIND MITIGATING
FACTORS BASED UPON COMPETENT AND CREDIBLE
9 A-4388-14T3
EVIDENCE IN THE RECORD AND IMPOSED AN
EXCESSIVE SENTENCE.
We address each of these arguments in turn.
II.
A.
Defendant moved before trial to suppress evidence of his BAC
derived from the warrantless blood draw. Among other things, he
contended the State failed to prove that sufficient exigent
circumstances existed to allow the blood draw to be conducted
without the prior issuance of a warrant. After an evidentiary
hearing on August 29, 2013, Judge James M. Blaney issued a written
decision on September 4, 2013, denying defendant's motion.
In denying the motion, the judge applied the principles
enunciated by the United States Supreme Court in Schmerber v.
California,
384 U.S. 757 (1966), and in Missouri v. McNeely,
569 U.S. 141 (2013), which had recently been decided on April 17,
2013. In McNeely, the Court made clear that probable cause that
a driver had consumed alcohol and may have been driving while
intoxicated, resulting in natural metabolism of alcohol in the
bloodstream, standing alone, does not constitute a per se exigent
circumstances exception to the warrant requirement; instead, it
is a factor to be considered in a totality of circumstances test.
Id. at 165.
10 A-4388-14T3
On December 20, 2013, in State v. Adkins,
433 N.J. Super. 479
(App. Div. 2013), rev'd,
221 N.J. 300 (2015), we declined to give
retroactive application to McNeely. On May 14, 2014, the New
Jersey Supreme Court granted certification. State v. Adkins,
217 N.J. 588 (2014). On May 4, 2015, the Court held that McNeely must
be followed in New Jersey under the Supremacy Clause of the United
States Constitution, and it should be given pipeline retroactivity
to cases such as this one, where the blood draw was conducted
prior to McNeely and the case is still under direct review.
Adkins,
221 N.J. at 313. The Court also set forth guidelines to
be followed by courts considering suppression motions in these
pipeline cases. Id. at 317.
On appeal, defendant argues that a remand is required for the
trial court to reconsider its findings on exigency in light of the
Supreme Court's decision in Adkins. The State in turn responds
that Judge Blaney already considered the totality of the
circumstances of the blood draw and properly found that exigent
circumstances permitted the warrantless search.
B.
Trooper Herr and Detective Sergeant Bentivegna testified at
the suppression hearing. Herr stated there were three NJSP
vehicles patrolling the southern end of the Parkway at the time
of the accident, with each car containing two Troopers, and each
11 A-4388-14T3
car assigned to a specified patrol area: the northern, central,
and south ends. The Troopers assigned to the northern third of
the patrol area, who normally would have responded to the crash,
did not respond because they were occupied with a motor vehicle
stop and consent search of a vehicle.
Herr arrived at the crash scene at 3:47 a.m., alone, because
his partner was busy processing someone they had arrested earlier
for DWI. When Herr arrived there were multiple police cars already
on the scene, including Tactical Patrol Units from the NJSP, and
units from the Toms River and Ocean Gate Police Departments, as
well as EMS units and various fire companies. Eventually, a
detective from the Ocean County Prosecutor's Office (OCPO) also
arrived. Herr estimated that a total of forty to fifty police and
emergency responders were present.
The NJSP had jurisdiction over the crash, with the Toms River
police assisting by searching for two of the four passengers from
defendant's vehicle who had fled the scene. Detective Bentivegna
arrived at 4:15 a.m. and assumed responsibility for the accident
investigation. He was advised that there was an individual trapped
in the Jeep, believed to be Ocean Gate police officer Jay Marles.
Bentivegna recognized immediately that this was going to be a
vehicular homicide investigation. Therefore, his priority was to
secure blood samples from the driver of the BMW. He requested
12 A-4388-14T3
that three additional detectives be dispatched to assist in the
investigation, from the crime scene investigation unit and the
fatal accident unit. He also contacted the OCPO and the Medical
Examiner's Office.
Defendant, who had been identified as the driver of the BMW,
was handcuffed and in the custody of Trooper Lewis. Herr observed
that defendant smelled strongly of alcohol, and his eyes were
bloodshot and watery. Therefore, Herr decided to administer field
sobriety tests, which, as noted, defendant failed to perform
satisfactorily. Based on his observations and defendant's poor
performance on the field tests, Herr believed defendant was
intoxicated and had driven while under the influence.
At 4:12 a.m., Herr placed defendant under arrest for DWI, and
Trooper Lewis issued defendant Miranda warnings. Consistent with
his trial testimony, Herr recounted that defendant was thereafter
transported to the hospital for the warrantless blood draw, and
then to NJSP barracks where he was questioned and processed.
Bentivegna did not direct any officer to obtain a warrant to
take defendant's blood, notwithstanding that both he and Herr had
cell phones at the scene. Bentivegna explained he did not obtain
a warrant because the priority was to secure the blood as evidence,
and there were many other tasks to accomplish, including processing
the crash scene, collecting physical evidence, and conducting
13 A-4388-14T3
interviews. Bentivegna further stated that obtaining a search
warrant "wasn't even part of the thought process" because county
policy at the time was to obtain blood samples based upon probable
cause and not a warrant.
C.
In his written decision, Judge Blaney discussed the relevant
criteria for establishing exigent circumstances, with particular
reference to Schmerber and McNeely. As we have stated, at the
time of his decision, neither we nor the New Jersey Supreme Court
had yet decided Adkins. The judge then listed the totality of the
factual circumstances that supported his conclusion that
sufficient exigent circumstances existed to justify a warrantless
blood draw:
First, this case involves a fatal accident
involving more than one motor vehicle (clearly
not a routine DWI stop).
Second, the scene of the accident involved a
vehicle leaving the roadway, flipping over and
being on fire.
Third, the accident required emergency
vehicles, including first aid responders,
State Police, fire vehicles and towing
vehicles.
Fourth, the investigators at the scene learned
that two individuals had fled the scene,
further complicating the investigation.
Fifth, the accident occurred in the early
morning hours of Thanksgiving weekend. There
14 A-4388-14T3
were limited State troopers on duty and other
calls were being attended to.
Sixth, there were reports of a weapon on the
scene.
Seventh, there were conflicting stories being
told by the passengers in . . . defendant's
vehicle.
Defendant later moved for postponement of the trial after we
issued our opinion in Adkins,
433 N.J. Super. at 479, and the
Supreme Court granted certification,
217 N.J. at 588. Denying
that motion, Judge Blaney reiterated the circumstances he believed
allowed for a warrantless blood draw from defendant, including the
seriousness of the accident, the time and date of the accident in
the early morning hours on Thanksgiving, and the limited number
of State Troopers on duty. Essentially, the judge was satisfied
that his prior written decision fully complied with McNeely,
regardless of whether it applied retroactively.
Our review of a trial court's decision on a suppression motion
is circumscribed. We must defer to the trial court's factual
findings as long as those findings are supported by sufficient
credible evidence in the record. State v. Elders,
192 N.J. 224,
243 (2007). A reviewing court should especially "give deference
to those findings of the trial judge which are substantially
influenced by his opportunity to hear and see the witnesses and
to have the 'feel' of the case, which a reviewing court cannot
15 A-4388-14T3
enjoy." Id. at 244 (quoting State v. Johnson,
42 N.J. 146, 161
(1964)). Those findings should only be disregarded when they are
clearly mistaken. State v. Hubbard,
222 N.J. 249, 262 (2015)
(citing Johnson,
42 N.J. at 162). "A trial court's findings should
not be disturbed simply because an appellate court 'might have
reached a different conclusion were it the trial tribunal.'" State
v. Handy,
206 N.J. 39, 44-45 (2011) (quoting Johnson,
42 N.J. at
162). However, a reviewing court owes no deference to the trial
court's legal conclusions or interpretation of the legal
consequences flowing from established facts. State v. Watts,
223 N.J. 503, 516 (2015) (citing State v. Vargas,
213 N.J. 301, 327
(2013)).
Applying these principles, it is clear to us that Judge
Blaney's factual findings are more than amply supported by the
record, and we defer to them. Although we owe no deference to the
judge's legal conclusion that the totality of the circumstances
made it impractical for the police to obtain a warrant before
obtaining a blood draw from defendant, we do agree with that
conclusion.
In McNeely, the United States Supreme Court made clear the
rationale it had applied forty-seven years earlier in Schmerber:
Our decision in Schmerber applied this
totality of the circumstances approach. In
that case, the petitioner had suffered
16 A-4388-14T3
injuries in an automobile accident and was
taken to the hospital. While he was there
receiving treatment, a police officer arrested
the petitioner for driving while under the
influence of alcohol and ordered a blood test
over his objection. After explaining that the
warrant requirement applied generally to
searches that intrude into the human body, we
concluded that the warrantless blood test "in
the present case" was nonetheless permissible
because the officer "might reasonably have
believed that he was confronted with an
emergency, in which the delay necessary to
obtain a warrant, under the circumstances,
threatened 'the destruction of evidence.'"
In support of that conclusion, we
observed that evidence could have been lost
because "the percentage of alcohol in the
blood begins to diminish shortly after
drinking stops, as the body functions to
eliminate it from the system." We added that
"[p]articularly in a case such as this, where
time had to be taken to bring the accused to
a hospital and to investigate the scene of the
accident, there was no time to seek out a
magistrate and secure a warrant." "Given
these special facts," we found that it was
appropriate for the police to act without a
warrant.
[McNeely,
569 U.S. at 150-51 (citations
omitted) (alteration in original).]
Notably, the Schmerber Court did not elaborate on the "special
facts" upon which it rested its decision, saying nothing more than
the McNeely Court set forth in the passage quoted above.
In McNeely, the Court discussed why there should be no per
se exception, but instead an analysis of the totality of the
circumstances, and commented: "We do not doubt that some
17 A-4388-14T3
circumstances will make obtaining a warrant impractical such that
the dissipation of alcohol from the bloodstream will support an
exigency justifying a properly conducted warrantless blood test."
Id. at 153. The Court provided an example to illustrate why a per
se exception should not be adopted, even in cases where an accident
causes injury to the suspected drunk driver, namely "a situation
in which the warrant process will not significantly increase the
delay before the blood test is conducted because an officer can
take steps to secure a warrant while the suspect is being
transported to a medical facility by another officer." Ibid.
The Court also acknowledged the significant advances that had
transpired in the decades since Schmerber was decided allowing for
the more expeditious processing of warrant applications through
telephonic or other reliable electronic means. Id. at 154-55.
Along these lines, New Jersey has adopted a Rule authorizing
telephonic warrants upon compliance with a set of specific
procedures. R. 3:5-3(b).
However, the Court further acknowledged that the availability
of a telephonic warrant procedure does not create a panacea
eliminating the need for warrantless searches when time is of the
essence to preserve evidence, in cases like this one:
We by no means claim that
telecommunications innovations have, will, or
should eliminate all delay from the warrant-
18 A-4388-14T3
application process. Warrants inevitably take
some time for police officers or prosecutors
to complete and for magistrate judges to
review. Telephonic and electronic warrants
may still require officers to follow time-
consuming formalities designed to create an
adequate record, such as preparing a duplicate
warrant before calling the magistrate judge.
See Fed. Rule Crim. Proc. 4:1(b)(3). And
improvements in communications technology do
not guarantee that a magistrate judge will be
available when an officer needs a warrant
after making a late-night arrest.
[Id. at 155.]
The Court also noted that although the facts in the McNeely
case might be categorized as a "routine DWI case," even in such a
case that
does not involve "special facts," such as the
need for the police to attend to a car
accident, does not mean a warrant is required.
Other factors present in an ordinary traffic
stop, such as the procedures in place for
obtaining a warrant or the availability of a
magistrate judge, may affect whether the
police can obtain a warrant in an expeditious
way and therefore may establish an exigency
that permits a warrantless search.
[Id. at 164 (citation omitted).]
Thus, McNeely instructs that there is no per se exception,
that additional special facts must be present, and those additional
special facts, combined with the fact of inherent dissipation,
must make it impractical for the police to have time to obtain a
warrant to avoid the destruction or compromise of the evidence
19 A-4388-14T3
sought, namely a blood draw to determine the BAC of a driver as
close in time as possible to the time of operation. These special
facts may include procedures in place for obtaining a warrant,
which we take to mean the time required to comply with those
procedures or, by implication, the absence of such procedures.
As previously noted, in Adkins, the New Jersey Supreme Court
held that pipeline retroactivity must be accorded McNeely for
blood draws that occurred before McNeely was decided in cases that
were still active in the trial court or on direct appeal. Adkins,
221 N.J. at 313. Although New Jersey courts never expressly
announced that Schmerber authorized a per se exception,
significant New Jersey "case law contains language that provides
a basis for such a belief." Adkins,
221 N.J. at 316. The Adkins
Court provided a number of examples. Ibid. Accordingly, the
Court "accept[ed] that our case law played a leading role in
dissuading police from believing that they needed to seek, or
explaining why they did not seek, a warrant before obtaining an
involuntary blood draw from a suspected drunk driver." Id. at
317.
In light of that background, the Court enunciated certain
guidelines to be applied in the totality-of-the-circumstances
analysis in these pipeline cases. Ibid. Among these are that
"the exigency in these circumstances should be assessed in a manner
20 A-4388-14T3
that permits the court to ascribe substantial weight to the
perceived dissipation that an officer reasonably faced." Ibid.
Further, reviewing courts should "focus on the objective exigency
of the circumstances that the officer faced," recognizing that the
"police may have believed that they did not have to evaluate
whether a warrant could be obtained, based on prior guidance from
our Court that did not dwell on such an obligation." Ibid.
Applying the principles enunciated in McNeely and Adkins, we
are firmly convinced that the additional "special facts" in this
case, combined with the inherent fact of natural dissipation of
alcohol in an individual's blood, provided a totality of
circumstances justifying a warrantless search. These "special
facts" are aptly identified in Judge Blaney's written decision,
and include the fatal and fiery nature of the accident on the
Parkway, the serious criminal consequences that could (and did)
result, the flight of two of defendant's passengers, and the
limited personnel available and their delayed arrival because the
accident occurred early on the Thanksgiving holiday.
As expressed in Schmerber, this was a case in which the police
"might reasonably have believed that [they were] confronted with
an emergency, in which the delay necessary to obtain a warrant,
under the circumstances, threatened 'the destruction of
evidence.'" Schmerber,
384 U.S. at 770 (citation omitted). The
21 A-4388-14T3
exigency existing under the totality of circumstances here
rendered impractical the obtaining of a warrant in time to prevent
the dissipation of alcohol from defendant's bloodstream, thus
justifying the warrantless blood draw.
III.
Defendant also filed a pretrial motion to suppress his
statements to police. The court held a hearing on the motion on
October 2, 2013, at which Troopers Lewis, Herr, and McNulty
testified.
Lewis testified he was notified at the accident scene that
the driver of the BMW was in an ambulance. He removed defendant
from the ambulance, handcuffed him, and brought him to Herr.
After defendant's field sobriety tests, Herr re-handcuffed
defendant and placed him under arrest for driving under the
influence. At that point, 4:12 a.m., Lewis read defendant his
Miranda rights, and defendant indicated he understood them.
However, defendant did not sign the Miranda card because he was
handcuffed.
Defendant was not told he would be charged with vehicular
homicide, and no questioning occurred at that time. Lewis signed
the Miranda card and gave it to Herr, who then brought defendant
to the hospital for his blood to be drawn.
At the hospital, at about 5:00 a.m., prior to defendant's
22 A-4388-14T3
blood being drawn, Herr questioned defendant using the Drinking
Driver/Operator Questionnaire, and read him Miranda warnings from
the card Lewis had given him, which defendant then signed. Herr
advised defendant he was being charged with DWI, and did not
mention a charge of vehicular homicide. Defendant appeared to
understand what Herr said, and did not seem confused in any way.
When Herr asked whether defendant had consumed any alcoholic
drinks, defendant responded he drank two to three vodka and
cranberry drinks between 10:30 p.m. and 2:30 a.m.
McNulty testified to the questioning that followed at NJSP
barracks. He stated that at 10:39 a.m., before he interviewed
defendant, he advised defendant of his Miranda rights. Defendant
responded he understood those rights, and signed the Miranda card.
The interview lasted about ninety minutes, ending at 12:10
p.m. During the interview, defendant never asked for food, water,
or a bathroom break. Also, defendant was alert, did not appear
tired, and never indicated he was tired.
Toward the end of defendant's statement, McNulty told him the
OCPO had approved a charge of vehicular homicide, which McNulty
knew was the crime he was investigating. Defendant then questioned
whether he needed a lawyer. Contrary to what McNulty told
defendant, however, defendant was not charged with vehicular
homicide until after his interview was concluded.
23 A-4388-14T3
Judge Blaney denied the motion in a written opinion dated
October 30, 2013, which was subsequently memorialized in a November
20, 2013 order. The judge found defendant's statements were
admissible because defendant made a knowing, intelligent, and
voluntary waiver of his Miranda rights, and his statements were
not coerced. Distinguishing State v. A.G.D.,
178 N.J. 56 (2003),
upon which defendant relied, the judge wrote:
I find in this case that at the time of the
questioning of the defendant by Detective
McNulty there is no proof that a complaint,
an arrest warrant or any authorization for
either had been issued. Therefore, no "veil
of suspicion" was draped on the defendant that
would have heightened his risk of criminal
liability. See, A.G.D. at 68. The
defendant's true status as one being
questioned about his activities prior to the
accident was revealed to him. He had not had
a complaint signed nor warrant issued prior
to his being questioned.
On appeal, defendant argues that the court erred in denying
his motion to suppress his statements to police. He contends the
statements were taken in violation of his state and federal
constitutional rights because: (1) although police read him his
Miranda rights, they never asked whether he agreed to waive his
rights; and (2) all warnings were issued with respect to an arrest
for DWI and not vehicular homicide. Therefore, defendant argues,
the statements must be suppressed, his conviction reversed, and
the matter remanded for a new trial.
24 A-4388-14T3
We review a trial judge's factual findings in support of
granting or denying a motion to suppress to determine whether
"those findings are supported by sufficient credible evidence in
the record." State v. Gamble,
218 N.J. 412, 424 (2014). Where
the judge determines whether a defendant waived his right to remain
silent based solely on a video-recorded statement or documentary
evidence, our Supreme Court recently held that we defer to a trial
court's factual findings. State v. S.S.,
229 N.J. 360, 374 (2017).
Here, the record supports the trial court's conclusion that
defendant's statements to the police were taken in accordance with
his constitutional rights, and his decision to waive his rights
was knowing, intelligent, and voluntary, and not the product of
coercion. After the officers issued the Miranda warnings,
defendant spoke freely with them and answered their questions. He
made no statements indicating an unwillingness to speak with them.
He thereby waived his right against self-incrimination. See State
v. Burno-Taylor,
400 N.J. Super. 581, 590 (App. Div. 2008) ("[T]he
police may continue their questioning so long as the person's
words or conduct could not reasonably be viewed as invoking the
right to remain silent."); see also S.S.,
229 N.J. at 382-84
(stating that interrogating officer must honor any statement
reasonably understood to be an invocation of right to remain
silent).
25 A-4388-14T3
Contrary to defendant's first argument, after issuing the
Miranda warnings, the police were not obligated to inquire whether
defendant chose to waive his rights, nor was defendant required
to utter any specific words in order to choose to waive his rights.
State v. Hartley,
103 N.J. 252, 313 (1986). Rather, "[t]he waiver
need not be express or explicit. The question of waiver is to be
determined on the basis of the particular facts and circumstances
of each case, including the background, experience, and conduct
of the accused." Ibid.
"Any clear manifestation of a desire to waive is sufficient.
The test is the showing of a knowing intent, not the utterance of
a shibboleth. The criterion is not solely the language employed
but a combination of that articulation and the surrounding facts
and circumstances." State v. Kremens,
52 N.J. 303, 311 (1968);
see also State v. Warmbrun,
277 N.J. Super. 51, 62 (App. Div.
1994) ("Miranda does not require a written waiver.").
Turning to defendant's second argument, in A.G.D.,
178 N.J.
at 58, 68, the Court held that a suspect's waiver of his right
against self-incrimination is invalid when the police fail to
inform him that a criminal complaint or arrest warrant has been
filed or issued against him and he otherwise does not know that
fact.
Here, the police advised defendant he was under arrest, and
26 A-4388-14T3
being charged with DWI. When he chose to speak with the police,
defendant was aware he was the target of the police investigation
concerning a fatal accident and facing potential criminal
liability. See State v. Nyhammer,
197 N.J. 383, 407 (2009) ("In
the typical case, explicit knowledge of one's status as a suspect
will not be important for Miranda purposes. However, explicit
knowledge of one's suspect status, in some unusual circumstance,
might be a useful piece of information in exercising a waiver of
rights under our state-law privilege against self-
incrimination.").
The police did not inform defendant he was under arrest for
vehicular homicide because at the time of his interrogations no
such complaint was authorized or issued. Consequently, the rule
set forth in A.G.D. was not violated.
IV.
A.
Defendant retained Mark I. Marpet, Ph.D., a mechanical
engineer, to conduct an analysis of the fatal accident. Marpet
inspected Marles's Jeep and found it had been modified, in that
it was "jacked up significantly" so that the truck body was
"completely above the wheels." He opined this modification
compromised the Jeep's safety and crashworthiness by reducing its
handling and increasing its rollover propensity.
27 A-4388-14T3
Citing N.J.A.C. 13:20-37.5, Marpet noted that "New Jersey
strictly limits raised vehicles for on-road use. The vehicle must
undergo a testing procedure that scrutinizes, among other items[,]
weight transfer with the vehicle tipped to the side." Moreover,
"[i]f a vehicle is raised, then increased crashworthiness becomes
mandatory. This is accomplished through the use of a roll cage
that ties to the frame of the vehicle."
Marpet further opined that lifting the Jeep compromised its
fuel system crashworthiness by exposing the fuel tank, thereby
allowing it to be punctured in the collision, which was "not
particularly severe." Citing N.J.A.C. 13:20-37.2(a)(9), Marpet
noted that fuel tanks that have become exposed as a result of
raising the vehicle must be protected against damage from collision
by some means of encasement. Also according to Marpet, Marles's
Jeep "reportedly" was never inspected for roadworthiness, as
required under New Jersey law.
Marpet ultimately concluded that "[h]ad the Jeep not been
modified, this accident would, in all probability, been nothing
more than a fender-bender." In Marpet's opinion, "[t]he rear-end
impact did not cause Marles'[s] death." Rather, his death "was
caused by the rollover and/or by the fire."
The State made a pretrial motion to preclude defendant from
presenting this expert evidence at trial, which the court granted.
28 A-4388-14T3
Relying on State v. Buckley,
216 N.J. 249 (2013), the court
concluded that the facts and expert testimony regarding
customization of Marles's Jeep were not relevant to the issue of
causation. N.J.R.E. 401. The court stated:
Here, . . . the State must demonstrate
nothing more than that the fatal accident
would have been avoided had the defendant not
driven his vehicle in the reckless manner of
which he is accused. The facts and expert
evidence that . . . the victim's vehicle was
customized and may have exacerbated the
vehicle's chances of rolling over in a
collision are irrelevant.
Therefore, the proffered testimony of the
defendant's expert[] on this issue of the
victim's vehicle's alterations,
customization, vulnerability or
susceptibility of rolling over are irrelevant
to the threshold but for causation . . .
inquiry.
. . . .
Additionally, the jury's determination
of whether a fatal accident was within the
risk of which the defendant was aware does not
implicate the condition of the defendant's
vehicle. The allegations in this case derive
from the description in the defendant's own
expert's report do not break the chain of
causation that began with the defendant's
alleged reckless driving resulting in the
striking of the rear of the victim's vehicle
on the Garden State Parkway.
Therefore, the State's request to bar the
testimony of the defendant's expert Dr. Marpet
concerning the condition of the victim's
vehicle is granted, as well as any testimony
as to whether the victim would have survived
29 A-4388-14T3
the collision of his vehicle had it not been
elevated.
However, over the State's objections, the court permitted the
defense to cross-examine the State's expert, Razukas, regarding
the quality of his investigation, and the validity of his
conclusions, in particular noting Razukas's failure to investigate
the actual height of the Jeep and its actual rollover stability,
and using photographic evidence of Marles's vehicle prior to the
crash.
B.
On appeal, defendant argues that the trial court erred by
granting the State's in limine motion to preclude the defense from
arguing that the Jeep's modified status was a factor in the
fatality, and barring Marpet's expert testimony. He contends the
Jeep's lifted status was relevant to the issue of causation under
N.J.S.A. 2C:2-3(c), specifically, "whether or not the significant
modifications to the Jeep constituted an intervening cause such
that the deadly chain of events which followed the impact were too
remote, accidental or dependent upon another's volitional act to
be able to fairly hold [defendant] criminally liable for the death
of the victim."
Defendant further contends the Jeep was modified in such a
way that it was not roadworthy, in violation of State law. He
30 A-4388-14T3
argues that the Jeep's lifted status, and not simply the impact
with defendant's vehicle, caused the Jeep to rollover and ignite,
thereby causing Marles's death.
Defendant submits that the court's evidentiary error was
particularly damaging because Razukas used incorrect factory
specifications data to reach his conclusions about the accident.
Based on Razukas's testimony, the State was permitted to argue
that the accident was particularly severe because a piece of the
Jeep's leaf spring became embedded in the BMW's bumper. However,
defendant argues, the leaf spring became embedded only because the
Jeep had been modified in such a way that made it unsafe for travel
on the roadway, allowing defendant's vehicle to travel under it.
C.
Our standard of review on evidentiary rulings is abuse of
discretion. We only reverse those that "undermine confidence in
the validity of the conviction or misapply the law." State v.
Weaver,
219 N.J. 131, 149 (2014); State v. J.A.C.,
210 N.J. 281,
295 (2012). Simply stated, we do "not substitute [our] own
judgment for that of the trial court, unless 'the trial court's
ruling is so wide of the mark that a manifest denial of justice
resulted.'" J.A.C.,
210 N.J. at 295 (quoting State v. Brown,
170 N.J. 138, 147 (2001)).
31 A-4388-14T3
"Criminal homicide constitutes reckless vehicular homicide
when it is caused by driving a vehicle or vessel recklessly."
N.J.S.A. 2C:11-5(a).
N.J.S.A. 2C:2-3(c) provides:
When the offense requires that the defendant
recklessly or criminally negligently cause a
particular result[:] [1] the actual result
must be within the risk of which the actor is
aware or, in the case of criminal negligence,
of which he should be aware, or, [2] if not,
the actual result must involve the same kind
of injury or harm as the probable result and
must not be too remote, accidental in its
occurrence, or dependent on another’s
volitional act to have a just bearing on the
actor's liability or on the gravity of his
offense.
Our Supreme Court recently considered this statute in the
context of a vehicular homicide case in Buckley,
216 N.J. at 254-
55, stating:
The statute initially requires the jury to
determine whether there is "but for"
causation.
N.J.S.A. 2C:2-3(a)(1). If that
threshold determination is made, and the
offense requires the mens rea of recklessness,
the causation inquiry is governed by the two-
pronged standard of
N.J.S.A. 2C:2-3(c). Under
the first prong of that test, the statute
predicates a finding of causation upon proof
that "the actual result" was "within the risk
of which the actor is aware."
N.J.S.A. 2C:2-
3(c). Alternatively, causation may be proven
under the second component of the statutory
test: whether "the actual result" involves the
"same kind of injury or harm as the probable
result," and whether it is "too remote,
accidental in its occurrence, or dependent on
another's volitional act to have a just
32 A-4388-14T3
bearing on the actor's liability or on the
gravity of his offense."
In Buckley, the State moved before trial to exclude from
evidence the facts that the accident victim was not wearing a seat
belt, and the utility pole struck by the defendant's vehicle was
positioned in a location that was contrary to Department of
Transportation recommendations. Id. at 255. The defendant
proposed to argue that absent these two facts, the victim would
have survived the accident. Id. at 258.
Addressing the causation issue, the Supreme Court performed
a relevancy analysis, considering the elements of vehicular
homicide, and interpreting the language of
N.J.S.A. 2C:2-3. Id.
at 261-70. Ultimately, the Court held
that fact and expert testimony about the
victim's failure to wear a seat belt is
irrelevant to both "but for" causation under
N.J.S.A. 2C:2-3(a)(1) and the jury's causation
determination under the first prong of
N.J.S.A. 2C:2-3(c)'s statutory test -- whether
defendant was aware that the manner in which
he drove posed a risk of a fatal accident. To
ensure the jury's complete understanding of
the circumstances of the accident, the trial
court may admit evidence that [the victim's]
seat belt was not fastened when he was found
in the vehicle's passenger seat after the
accident. If the trial court admits such
evidence, it must give the jury an appropriate
limiting instruction. We further conclude
that the position of a utility pole, off the
roadway on an asphalt berm, is similarly
irrelevant to the "but for" causation inquiry
under
N.J.S.A. 2C:2-3(a)(1) and to defendant's
33 A-4388-14T3
awareness of the risk of his conduct under the
first prong of
N.J.S.A. 2C:2-3(c).
[Id. at 255.]
In reaching that conclusion, the Court examined the
differences between the culpability assessments under the two
prongs of
N.J.S.A. 2C:2-3(c). Id. at 264-65. It found that in
the context of a vehicular homicide case, under the first prong
of
N.J.S.A. 2C:2-3(c), the State must prove beyond a reasonable
doubt "that the defendant understood that the manner in which he
or she drove created a risk of a traffic fatality[.]" Id. at 264.
By contrast, the second prong of
N.J.S.A. 2C:2-3(c) would
require proof beyond a reasonable doubt "that the actual result –
in this case the victim's death – 'involve[s] the same kind of
injury or harm as the probable result' of the defendant's conduct."
Id. at 264-65 (alteration in original). In other words, an
analysis under the second prong of
N.J.S.A. 2C:2-3(c) requires a
consideration of the fairness of holding a defendant responsible
for the victim's death. See State v. Campfield,
213 N.J. 218, 235
(2013) ("When the result of the defendant's conduct falls outside
of the parameters of the contemplated risk of defendant's conduct
[prong one of subpart (c)], the foreseeability of that result is
evaluated under a standard of fairness.").
In the present case, the proposed testimony was not admissible
34 A-4388-14T3
under the first prong of
N.J.S.A. 2C:2-3(c). Defendant was driving
at . . . hour while highly intoxicated. That was the "but for"
cause of the crash, and plainly created the risk of striking
another vehicle and causing a fatal crash. The evidence was
sufficient for the jury to find the actual result – the death of
another person in an accident – was within the risk of which
defendant was aware, or involved the same kind of injury or harm
as the probable result.
It is true, as defendant points out, that Buckley did not
address prong two of
N.J.S.A. 2C:2-3(c). Nonetheless, the same
result should apply. Here, the alleged modification of the Jeep
occurred prior to the accident. It is not alleged that the
modification caused the accident; rather, it only reduced the
Jeep's crashworthiness. Thus, the modification is not an
intervening cause such as in State v. Jamerson,
153 N.J. 318, 335-
36 (1998) (pushing defendant's argument that the victim caused the
accident by running a stop sign) and State v. Eldridge,
388 N.J.
Super. 485, 491-93 (App. Div. 2006) (noting defendant's argument
that the accident was caused by the passenger/victim pushing her
head to the left). The evidence that Marles was more vulnerable
because he illegally modified the Jeep was as irrelevant as the
evidence in Buckley that the victim was more vulnerable because
he illegally failed to wear a seatbelt. In both cases, the
35 A-4388-14T3
evidence did not address what caused the crash.
Nor do we find it unfair to hold defendant responsible for
Marles's death. Drivers and their passengers who are struck while
riding in smaller, poor-handling, less crashworthy, more
flammable, top-heavy, disabled, or uninspected vehicles, all fall
within the protection of the vehicular homicide law.
Finally, defendant argues the exclusion of Marpet's testimony
was particularly prejudicial because Razukas testified based on
the belief that the Jeep had not been modified, but defendant was
allowed to cross-examine him to expose that assumption. Defendant
also complains that Razukas testified the accident had to involve
substantial force to get the Jeep's leaf spring embedded in the
BMW's bumper, but Razukas testified the nose of the BMW went under
the Jeep just as Marpet believed. Thus, we do not believe
defendant was prejudiced by the exclusion of Marpet's factual
testimony. Moreover, defendant does not argue the trial court
should have revisited the admissibility of Marpet's testimony
after or based on Razukas's testimony. Accordingly, for all these
reasons, the trial court properly granted the State's motion in
limine to exclude Marpet's testimony.
V.
Defendant next argues that the court erred in permitting the
laboratory supervisor, Wingert, to testify to the blood test
36 A-4388-14T3
results, and not compelling testimony from the analysts who
actually performed the tests. This argument warrants little
discussion.
Consistent with both the state and federal constitutions, the
State may present testimony from a qualified expert who supervised
the testing and/or conducted an independent observation and
analysis regarding the test results. State v. Bass,
224 N.J. 285,
291-92, 319-20 (2016); State v. Michaels,
219 N.J. 1, 6, 45-46
(2014); State v. Roach,
219 N.J. 58, 61, 79-80 (2014).
[A] defendant's confrontation rights are not
violated if a forensic report is admitted at
trial and only the supervisor/reviewer
testifies and is available for cross-
examination, when the supervisor is
knowledgeable about the testing process,
reviews scientific testing data produced,
concludes that the data indicates the presence
of drugs, and prepares, certifies, and signs
a report setting forth the results of the
testing.
[Michaels,
219 N.J. at 6.]
Here, the trial court conducted an N.J.R.E. 104 hearing, at
which Wingert testified he did not perform the testing and was not
present while the testing was performed. However, as director of
the laboratory, he supervised the technicians, reviewed the test
results, and certified their accuracy. The trial court's decision
to admit Wingert's testimony thus comported with Michaels and was
not an abuse of discretion.
37 A-4388-14T3
VI.
Defendant argues that the State's expert, Dr. Pandina,
improperly testified to the ultimate issue for the jury to
determine – that defendant's ability to safely operate a motor
vehicle was impaired at the time of the accident. We disagree.
N.J.R.E. 702 provides that "[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or
otherwise." However, "[e]xpert testimony is not necessary to tell
the jury the 'obvious' or to resolve issues that the jury can
figure out on its own." State v. Simms,
224 N.J. 393, 403 (2016)
(citing State v. Nesbitt,
185 N.J. 504, 514 (2006)).
Pursuant to N.J.R.E. 704, "[t]estimony in the form of an
opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier
of fact." However, "[e]xpert testimony that 'embraces an ultimate
issue to be decided by the trier of fact,' N.J.R.E. 704, is not
admissible unless the subject matter is beyond the ken of the
average juror." Simms,
224 N.J. at 403. Also, an expert may not
express an opinion regarding a defendant's guilt or innocence.
State v. Cain,
224 N.J. 410, 426 (2016).
38 A-4388-14T3
Here, the indictment charged defendant with vehicular
homicide,
N.J.S.A. 2C:11-5, by recklessly operating a motor
vehicle while in violation of
N.J.S.A. 39:4-50 (DWI), thereby
causing Marles's death.
N.J.S.A. 39:4-50 in turn makes it unlawful
for a person to "operate[] a motor vehicle while under the
influence of intoxicating liquor, narcotic, hallucinogenic or
habit-producing drug, or operates a motor vehicle with a blood
alcohol concentration of 0.08% or more by weight of alcohol in the
defendant's blood . . . ."
Here, Pandina testified defendant was under the influence and
his ability to operate a vehicle was impaired. Although that was
an issue in the case, it was not the ultimate issue, which was
whether defendant was driving recklessly. Even if it was the
ultimate issue, Pandina's testimony about the effects of alcohol
and cocaine were admissible under N.J.R.E. 702, as relevant to the
issues presented and beyond the ken of the jury. Admissible for
the same reason was Pandina's testimony regarding the calculation
of defendant's BAC at the time of the accident (extrapolated from
the BAC at the time of the blood draw), and the likely effects of
that BAC and prior cocaine ingestion on one's ability to operate
a motor vehicle. Accordingly, Pandina's testimony was properly
admitted.
39 A-4388-14T3
VII.
Defendant also argues that the "cumulative effect" of the
errors at trial "undermined [his] constitutional rights to due
process and a fair trial." However, we are satisfied that none
of the errors alleged by defendant, individually or cumulatively,
warrant the granting of a new trial. State v. T.J.M.,
220 N.J.
220, 238 (2015); State v. Orecchio,
16 N.J. 125, 129 (1954).
VIII.
Finally, defendant argues that his eight-year sentence with
a NERA parole disqualifier is excessive, and that the court erred
in failing to find that certain statutory mitigating factors
applied. We are not persuaded.
Our review of sentencing determinations is limited. State
v. Roth,
95 N.J. 334, 364-65 (1984). We will not ordinarily
disturb a sentence imposed which is not manifestly excessive or
unduly punitive, does not constitute an abuse of discretion, and
does not shock the judicial conscience. State v. O'Donnell,
117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court
"first must identify any relevant aggravating and mitigating
factors set forth in
N.J.S.A. 2C:44-1(a) and (b) that apply to the
case." State v. Case,
220 N.J. 49, 64 (2014). The court must
then "determine which factors are supported by a preponderance of
[the] evidence, balance the relevant factors, and explain how it
40 A-4388-14T3
arrives at the appropriate sentence." O'Donnell,
117 N.J. at 215.
We are "bound to affirm a sentence, even if [we] would have arrived
at a different result, as long as the trial court properly
identifie[d] and balance[d] aggravating and mitigating factors
that [were] supported by competent credible evidence in the
record." Ibid.
Here, at sentencing, the trial court found two aggravating
factors: the risk that defendant would commit another offense,
N.J.S.A. 2C:44-1(a)(3), and the need for deterring defendant and
others from violating the law,
N.J.S.A. 2C:44-1(a)(9). The court
also concluded the aggravating factors far outweighed the non-
existing mitigating factors.
Regarding aggravating factor three, the court noted
defendant's prior convictions for DWI and possession of cocaine.
The court determined defendant "was already cognizant of the
dangers involved in driving while intoxicated, but still drove
after drinking, and, by his own admission in his statement, by
partaking of drugs." Moreover, defendant had not been deterred
from criminal activity. Finally, the court noted that early in
defendant's statement to police he attempted to conceal his use
of drugs and the amount of alcohol he consumed, indicating that
"he did not appreciate the danger his actions posed to others and
. . . the distinct possibility of another offense."
41 A-4388-14T3
Regarding aggravating factor nine, the court stated: "A
message needs to be sent to this defendant, as well as to the
public. That message needs to be clear that when one drives under
the influence of drugs and/or alcohol, the consequences will be a
jail sentence, and that that is almost universally applied,
particularly when there are injuries or a fatality, as in this
case."
Defendant contends the court erred in not finding: (1)
mitigating factor two, that he "did not contemplate that his
conduct would cause or threaten serious harm,"
N.J.S.A. 2C:44-
1(b)(2); (2) mitigating factor five, that "[t]he victim of
defendant's conduct induced or facilitated its commission,"
N.J.S.A. 2C:44-1(b)(5), because Marles's modifications of the Jeep
contributed to his death; (3) mitigating factor seven, "[t]he
defendant has no history of prior delinquency or criminal activity
or has led a law-abiding life for a substantial period of time
before the commission of the present offense,"
N.J.S.A. 2C:44-
1(b)(7), because this was defendant's first indictable offense,
and his prior criminal history occurred many years earlier; and
(4) mitigating factors eight and nine, "defendant's conduct was
the result of circumstances unlikely to recur,"
N.J.S.A. 2C:44-
1(b)(8), and "[t]he character and attitude of the defendant
indicate that he is unlikely to commit another offense," N.J.S.A.
42 A-4388-14T3
2C:44-1(b)(9), because defendant was gainfully employed and
supporting his family, and he was remorseful for his conduct.
Our review of the record convinces us that the trial court
properly considered and rejected all of the mitigating factors
proposed by defendant. With respect to mitigating factor two, the
court found defendant should have realized that by driving under
the influence he was subjecting others on the road to the risk of
serious bodily injury. As to mitigating factor five, the court
noted it did not permit defendant to introduce evidence regarding
the condition of Marles's Jeep, and in the court's opinion Marles
"played no part in being hit in the rear of his vehicle." The
court found mitigating factor seven did not apply because defendant
had a prior conviction. Finally, the court found mitigating
factors eight and nine did not apply because "defendant obviously
did not learn from his prior [DWI] and a prior possession of
cocaine charge."
In sum, the sentence imposed was manifestly appropriate and
by no means shocks our judicial conscience.
Affirmed.
43 A-4388-14T3
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