STATE OF NEW JERSEY v. JOHN C. EMILI
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-5195-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN C. EMILI,
Defendant-Appellant.
___________________________
Argued January 17, 2018 – Decided March 8, 2018
Before Judges Hoffman, Gilson, and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Indictment No.
14-03-0379.
Alan L. Zegas argued the cause for appellant
(Law Offices of Alan L. Zegas, attorneys; Alan
L. Zegas and Judson L. Hand, on the brief).
Elizabeth R. Rebein, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Dennis Calo, Acting
Bergen County Prosecutor, attorney; Elizabeth
R. Rebein, of counsel and on the brief).
PER CURIAM
On a Sunday morning in July 2012, defendant John C. Emili was
driving to church with his girlfriend and another passenger. He
cut off another vehicle and, thereafter, the two drivers began
speeding down the parkway cutting in and out of lanes and in front
of each other's vehicles. Defendant lost control of his vehicle,
which hit a guardrail and repeatedly rolled over. The passenger
was ejected and died as a result of her injuries.
A jury convicted defendant of second-degree vehicular
homicide,
N.J.S.A. 2C:11-5, and he was sentenced to six and one-
half years in prison, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. Defendant appeals, seeking an acquittal or,
alternatively, a reversal and remand. We affirm.
I.
On the morning of July 1, 2012, defendant was driving a gray
Honda Pilot sports utility vehicle (SUV or Honda) with two
passengers, his girlfriend and A.B.1 Defendant had picked up A.B.
and was giving her a ride to a church where defendant's father was
the pastor.
As defendant pulled onto the Garden State Parkway, his SUV
cut off a black Chevy Trailblazer driven by Thomas J. Vanderweit.
Three witnesses, who also were traveling on the Garden State
Parkway, testified that they saw the Honda and Trailblazer speeding
along the parkway, repeatedly cutting back and forth between lanes
1
We use initials for the victim to protect her privacy interests.
R. 1:38-3(c).
2 A-5195-15T1
to get in front of one another. Eventually, the Trailblazer
suddenly slowed and began to exit the parkway. Defendant, driving
just behind the Trailblazer, lost control of his vehicle.
Defendant's Honda hit a guardrail, bounced across the lane, and
repeatedly rolled over. As the Honda was flipping over, A.B., who
had been sitting in the back seat of defendant's SUV, was ejected.
The parties stipulated that A.B. died as a direct result of the
injuries she suffered after being ejected from defendant's
vehicle.
Shortly after the crash, multiple police and emergency
personnel responded to the scene. Detective Mark Smith of the New
Jersey State Police was the first State Police officer to arrive
at the scene. After trying to "contain" the scene of the accident,
Smith began to investigate the accident. Accordingly, Smith spoke
separately with Vanderweit and defendant. Smith's conversations
with both Vanderweit and defendant were recorded by a mobile audio
and video recorder in Smith's police car.
Smith testified that when he spoke with Vanderweit and
defendant on the roadside, he did not believe that he was at the
scene of a crime. Smith then explained that when he spoke to
defendant, defendant was not under arrest, appeared to be calm,
did not indicate that he did not want to speak to Smith, and did
not request to leave.
3 A-5195-15T1
Defendant told Smith that he was the driver of one of the
vehicles involved in the crash. Defendant then explained that he
had picked up A.B. to go to church, that he was running late, and
that he was speeding and lost control of his vehicle. When Smith
asked defendant how fast he was going, defendant responded, "100
[miles per hour] maybe."
Another State Police officer, Trooper Russell Peterson,
responded to the scene. Peterson separately spoke with defendant
on the shoulder of the road. At a pretrial evidentiary hearing,
Peterson testified that when he spoke with defendant, defendant
was not under arrest, Peterson did not intend to arrest defendant,
and Peterson did not have reason to believe that defendant had
committed a crime. Peterson asked defendant what had happened.
Defendant responded that he was speeding and as he was trying to
exit the parkway, the vehicle in front of him applied its brakes,
he then lost control of his vehicle, and his vehicle hit the
guardrail, traveled back across the lane, and overturned.
Defendant and Vanderweit were then taken to a State Police
barracks, where they were interviewed separately. Ultimately, a
grand jury indicted defendant and Vanderweit for vehicular
manslaughter.
Defendant and Vanderweit moved to suppress the statements
they had given at the roadside and at the State Police barracks.
4 A-5195-15T1
The trial court conducted two evidentiary hearings, and heard
testimony from Trooper Peterson, Detective Smith, and Detective
Christopher Kelly of the Bergen County Prosecutor's Office. 2 The
court denied the motion to suppress the roadside statements, but
granted the motion to suppress the statements given at the State
Police barracks, because defendant and Vanderweit were not given
their Miranda3 warnings before their formal interviews.
In written opinions, the motion judge found both Trooper
Peterson and Detective Smith to be credible. The judge then found
that when Peterson and Smith spoke with defendant at the roadside,
defendant was not in custody and not subject to a custodial
interrogation. The judge based that finding on the facts that
defendant was not under arrest, was not in handcuffs, was detained
for less than an hour, and was not subject to coercive questioning.
Instead, the judge found that both Peterson and Smith were trying
to find out what had caused the accident, and defendant was
questioned at the roadside, which was a public area. The judge
also reasoned that although defendant was not free to leave because
the police were investigating a fatal automobile accident,
2
Defendant and Vanderweit initially moved to suppress the
statements they had given at the police barracks. Thereafter,
they filed a second motion to suppress the statements they gave
at the roadside.
3
Miranda v. Arizona,
384 U.S. 436 (1966).
5 A-5195-15T1
defendant never asked to leave and was calm and cooperative when
questioned at the roadside.
Defendant and Vanderweit were tried separately. At
defendant's trial, the State presented expert testimony from
Detective Sergeant Derek DiStaso, a certified accident
reconstructionist for the State Police. DiStaso was called to the
scene of the crash and reconstructed the events by considering a
variety of information, including his observations at the scene,
tire marks left at the scene, a speed analysis, and statements
made by defendant and Vanderweit. DiStaso opined that the crash
occurred when Vanderweit applied his brakes, defendant swerved his
vehicle to avoid Vanderweit's vehicle, defendant's vehicle then
"serpentin[ed]" on the roadway, began to spin, struck a guardrail,
spun back onto the roadway, struck Vanderweit's vehicle, and
repeatedly rolled over. DiStaso went on to opine that A.B. was
ejected from defendant's vehicle when the Honda spun off the
guardrail.
At the close of evidence, the trial court conducted a charge
conference. The court thereafter charged the jury and gave them
a written copy of the instructions. With regard to the substantive
charge of vehicular homicide, the trial court instructed the jury
using the model jury charges. In that regard, the court explained,
in relevant part:
6 A-5195-15T1
[I]n order for you to determine the
defendant guilty of this crime, the State must
prove the following three elements beyond a
reasonable doubt:
1. That the defendant was driving
a vehicle;
2. That the defendant caused the
death of [A.B.]; and,
3. That the defendant caused such
death by driving the vehicle
recklessly.
So in order to find the defendant caused
[A.B.'s] death, you must find that [A.B.]
would not have died but for defendant's
conduct.
. . . .
Causation has a special meaning in the
law. To establish causation, the State must
prove two elements, each beyond a reasonable
doubt:
First, but for the defendant's conduct,
the result in question would not have
happened. In other words, without defendant's
actions the result would not have occurred.
Second, for reckless conduct that the
actual result must have been within the risk
of which the defendant was aware. If not, it
must involve the same kind of injury or harm
as the probable result and must also not be
too remote, too accidental in its occurrence
or too dependent on another's volitional act
to have a just bearing on the defendant's
liability or on the gravity of his offense.
Now in this case you may have heard
evidence of the police questioning John Emili
about whether or not [A.B.] was wearing a
7 A-5195-15T1
seatbelt. I instruct you that whether or not
[A.B.] was wearing a seatbelt is not relevant
to the causation issue.
The issue of causation remains one that
must be resolved by you, as instructed by the
[c]ourt just earlier in my charge. However,
the status of the seatbelt is not to be part
of your consideration.
After being so instructed, the jury found defendant guilty
of second-degree vehicular homicide,
N.J.S.A. 2C:11-5.
II.
On this appeal, defendant makes seven arguments.
POINT ONE – The Trial Court Erred By Denying
The Defendants' Motion To Suppress Allegedly
Inculpatory Statements Made By The Defendants
To State Police Officers At The Roadside
Shortly After The Crash
POINT TWO – The Trial Court Erred By Refusing
To Charge The Jury On "But For" Causation, A
Required Element Of Proof For Conviction On
Vehicular Homicide Grounds And Instead Relied
Upon A Confusing Stipulation Whose Scope Could
Not Be Deciphered
POINT THREE – The Trial Court, Prosecutor And
Expert Witness Erred By Repeatedly Telling The
Jury That Mr. Emili Was Traveling 100 mph,
When In Fact Each Of The Witness' Notes
Indicated The Speed Was More Like 60-80. This
100 mph Theme Was Recited Repeatedly During
The Trial Even Though There Was More Than A
Reasonable Doubt Whether It Was Accurate
POINT FOUR – The Trial Court Erred In Not
Granting Mr. Emili's Request To Be Permitted
To Introduce Evidence Concerning the
Circumstances Surrounding The Cause Of Death
Of [A.B.] Whose Seatbelt Was Not Fastened
8 A-5195-15T1
POINT FIVE – The Trial Court Erred By
Permitting The State To Distribute Brochures
That Had The Effect, Whether Subconsciously
Or Not, Of Causing The Jury To Hear A Statement
By Mr. Vanderweit That He And Mr. Emili Were
Traveling About 100 mph On The Garden State
Parkway
POINT SIX – The Trial Court Violated Mr.
Emili's State And Federal Constitutional
Rights In Its Sentencing Of Mr. Emili, Its
Misunderstanding Of Its Authority And Its
Erroneous Consideration And Weighing Of The
Mitigating And Aggravating Factors Relative To
The Imposition Of Sentence.
POINT SEVEN – Even If Each Of The Above
Arguments Were Individually Insufficient To
Result In A Reversal And/Or Remanding Of The
Ruling Below, The Cumulative Effect Of These
Four Rulings So Tainted The Result That This
Court Should Dismiss The Indictment On This
Additional Ground
We are not persuaded by any of these arguments and we
therefore affirm defendant's conviction and sentence. Points two
and four are related. Accordingly, we will address defendant's
arguments in six subsections.
1. Defendant's Roadside Statements
The Fifth Amendment of the United States Constitution
guarantees all persons the privilege against self-incrimination.
U.S. Const. amend. V. This privilege applies to the states through
the Fourteenth Amendment. U.S. Const. amend. XIV; Griffin v.
California,
380 U.S. 609, 615 (1965). Moreover, in New Jersey,
9 A-5195-15T1
there is a common law privilege against self-incrimination, which
has been codified in our statutes and rules of evidence.
N.J.S.A.
2A:84A-19; N.J.R.E. 503; State v. Reed,
133 N.J. 237, 250 (1993).
Accordingly, it has long been established that when a person is
taken into custody or otherwise deprived of his or her freedom,
that person is entitled to certain warnings before he or she can
be questioned. Miranda,
384 U.S. 436.
The Miranda requirement is triggered by a "'custodial
interrogation,' which is 'questioning initiated by law enforcement
officers after a person has been taken into custody or otherwise
deprived of . . . freedom of action in a significant way.'" State
v. Smith,
374 N.J. Super. 425, 430 (App. Div. 2005) (quoting
Miranda,
384 U.S. at 444). "[C]ustody exists if the action of the
interrogating officers and the surrounding circumstances, fairly
construed, would reasonably lead a detainee to believe he [or she]
could not leave freely." State v. Coburn,
221 N.J. Super. 586,
596 (App. Div. 1987) (citing State v. Godfrey,
131 N.J. Super.
168, 176 n.1 (App. Div. 1974)). Under this objective test, courts
consider the time, location, and duration of the detention, the
nature of the questioning, and the conduct of the officers in
evaluating the degree of restraint. E.g., Smith,
374 N.J. Super.
at 431; State v. Pierson,
223 N.J. Super. 62, 67 (App. Div. 1988).
10 A-5195-15T1
"Miranda is not implicated when the detention and questioning
is part of an investigatory procedure rather than a custodial
interrogation." Pierson,
223 N.J. Super. at 66. An investigatory
procedure includes brief detention and questioning during a
traffic stop or a field investigation. See Berkemer v. McCarty,
468 U.S. 420, 437-38 (1984) (holding that a traffic stop is
"presumptively temporary and brief" and "public, at least to some
degree" and, thus, does not automatically trigger the Miranda
requirement); Terry v. Ohio,
392 U.S. 1 (1968) (holding that
officers may briefly detain a person to investigate circumstances
that provoke reasonable suspicion). While a person in either
context is detained, Miranda warnings are only required if, under
the totality of the circumstances, the detention becomes "the
functional equivalent of an arrest." Smith,
374 N.J. Super. at
431 (quoting Berkemer,
468 U.S. at 442); see also State v. Nemesh,
228 N.J. Super. 597, 606-07 (App. Div. 1988) (holding that under
Berkemer, "[i]t is obvious that an inquiry by an officer upon his
[or her] arrival at the scene of an accident as to who was operating
the involved vehicles is not custodial interrogation."). Thus,
in the context of a field investigation or traffic stop, "[t]he
question is whether a reasonable person, considering the objective
circumstances, would understand the situation as a de facto arrest
11 A-5195-15T1
or would recognize that after brief questioning he or she would
be free to leave." Smith,
374 N.J. Super. at 432.
When reviewing a motion to suppress statements, we generally
defer to the factual findings of the trial court if they are
supported by credible evidence in the record. See State v.
Hathaway,
222 N.J. 453, 467 (2015) (citing State v. Elders,
192 N.J. 224, 244 (2007)). Moreover, deference to a trial court's
factual findings is appropriate because the trial court has the
"opportunity to hear and see the witnesses and to have the 'feel'
of the case, which a reviewing court cannot enjoy[.]" State v.
S.S.,
229 N.J. 360, 374 (2017) (quoting Elders,
192 N.J. at 244).
We review de novo the trial court's legal conclusions that flow
from established facts. State v. Hamlett,
449 N.J. Super. 159,
169 (App. Div. 2017).
Based on the testimony and evidence presented at the pretrial
evidentiary hearings, the motion judge found that the roadside
questioning of defendant was not custodial in nature and, thus,
Miranda warnings were not required. That finding was premised on
additional findings of fact, which included that defendant was not
under arrest, was not placed in handcuffs, and was not subject to
coercive questioning. Instead, defendant simply was asked to
explain what happened.
12 A-5195-15T1
The motion judge also recognized that defendant was not free
to leave the scene because the police were investigating a motor
vehicle accident. The judge found, however, that under the
totality of the circumstances, defendant's detention did not
become the functional equivalent of an arrest. All of the motion
judge's factual findings are supported by credible evidence.
Moreover, the judge's application of those facts to the law was
correct. Accordingly, we find no error in the decision to deny
the motion to suppress defendant's roadside statements. Moreover,
the statements used at trial were properly admitted.
2. The Jury Instructions on Causation
Causation is one of three elements that the State must prove
beyond a reasonable doubt for the jury to find a defendant guilty
of second-degree vehicular homicide.
N.J.S.A. 2C:11-5; State v.
Buckley,
216 N.J. 249, 262 (2013). "Causation is a factual
determination for the jury to consider, but the jury may consider
only that which the law permits it to consider." State v. Pelham,
176 N.J. 448, 466 (2003).
To find causation, the jury must engage in a multi-step
analysis. Buckley,
216 N.J. at 263; see
N.J.S.A. 2C:2-3.
Initially, the jury must determine whether the State has
established "but for" causation, by demonstrating that the event
would not have occurred absent the defendant's conduct. N.J.S.A.
13 A-5195-15T1
2C:2-3(a); Buckley,
216 N.J. at 263. Next, because the State also
has to prove the mens rea of recklessness to establish vehicular
homicide, the jury must conduct a "culpability assessment."
N.J.S.A. 2C:2-3(c); Buckley,
216 N.J. at 263.
To find culpability in a vehicular homicide case, the jury
must determine that "the actual result [either (1) was] within the
risk of which the actor [was] aware or, . . . [(2)] involved the
same kind of injury or harm as the probable result . . . ."
N.J.S.A. 2C:2-3(c). Thus,
the first prong of
N.J.S.A. 2C:2-3(c) requires
the jury to assess whether defendant was aware
that his allegedly reckless driving gave rise
to a risk of a fatal motor vehicle accident.
. . . The second prong of
N.J.S.A. 2C:2-3(c)
. . . requires proof that the actual result
-- in this case the victim's death --
"involves the same kind of injury or harm as
the probable result" of the defendant's
conduct.
[Buckley,
216 N.J. at 264-65 (quoting Pelham,
176 N.J. at 461).]
"If the jury determines that the State has proven beyond a
reasonable doubt that the defendant understood that the manner in
which he or she drove created a risk of a traffic fatality, the
element of causation is established under the first prong of
N.J.S.A. 2C:2-3(c)." Ibid. (citing State v. Martin,
119 N.J. 2,
12 (1990)).
14 A-5195-15T1
The second prong requires "the jury to determine whether
intervening causes or unforeseen conditions lead to the conclusion
that it is unjust to find that the defendant's conduct is the
cause of the actual result." Pelham,
176 N.J. at 461 (quoting
Martin,
119 N.J. at 13). "'Intervening cause' is defined as '[a]n
event that comes between the initial event in a sequence and the
end result, thereby altering the natural course of events that
might have connected a wrongful act to an injury.'" Ibid. (quoting
Black's Law Dictionary (7th ed. 1999)); see also Buckley,
216 N.J.
at 265 ("[An] 'intervening cause' denotes an event or condition
which renders a result 'too remote, accidental in its occurrence,
or dependent on another's volitional act' to fairly affect criminal
liability or the gravity of the offense.").
In Buckley, our Supreme Court held that evidence that the
deceased victim was not wearing a seat belt at the time of the
motor vehicle accident "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." Buckley,
216 N.J. at 255.
Additionally, this court has held that "[even] [i]f the careless
driving of another or the victim's failure to wear a seat belt
also were contributing causes of the accident and resulting
15 A-5195-15T1
fatality, this would not absolve defendant of responsibility."
State v. Radziwil,
235 N.J. Super. 557, 570 (App. Div. 1989),
(citing
N.J.S.A. 2C:2-3(c)), aff’d o.b.,
121 N.J. 527 (1990).
In Pelham, the Court held that the victim's removal from life
support, five months after a motor vehicle accident, was not "an
independent intervening cause capable of breaking the chain of
causation triggered by defendant's wrongful actions." Pelham,
176 N.J. at 468. Accordingly, the Court held that the jury could not
consider a victim's removal from life support to negate a
defendant's criminal liability. Id. at 467.
Here, defendant raises two arguments regarding causation.
First, he contends that the trial court effectively negated the
jury instruction on "but for" causation, by instructing the jury
on a factual stipulation in which the parties agreed that A.B.
died as a direct result of being ejected from defendant's vehicle.
Second, defendant argues that the trial court erred in denying his
request to admit evidence that A.B. was not wearing a seat belt.
Both these arguments lack merit and we reject them.
Initially, we note that defendant did not object to the
causation charge given at trial. Therefore, we review the charge
for plain error. R. 2:10-2. Regarding the exclusion of the seat
belt evidence, we afford deference to the trial court's evidentiary
16 A-5195-15T1
rulings and, thus, review for an abuse of discretion. State v.
Scharf,
225 N.J. 547, 572 (2016).
In this case, the trial court followed the model jury charges
for vehicular homicide. Indeed, those charges track the law as
set forth in Buckley. Consequently, the jury was told that they
had to determine causation by first determining that defendant's
conduct caused A.B.'s death, and second that if the jury determined
that defendant had acted recklessly, A.B.'s death must have been
within the risk of which defendant was aware. Those instructions
were accurate and were in accordance with the law.
Consequentially, we find no error with the jury instructions on
causation.
Given the facts of this case, the trial court also did not
err in precluding evidence that A.B. was not wearing a seat belt.
Whether A.B. was wearing a seat belt was not relevant to "but for"
causation or the jury's culpability determination under the first
prong of
N.J.S.A. 2C:2-3(c). Buckley,
216 N.J. at 254. Moreover,
because A.B. failed to secure her seat belt before defendant's
reckless driving, that failure could not constitute an intervening
cause under prong two of
N.J.S.A. 2C:2-3(c). See Pelham,
176 N.J.
at 461. In other words, A.B.'s failure to wear a seat belt did
not come between defendant's reckless driving and A.B.'s death.
17 A-5195-15T1
The trial court here also instructed the jury that "whether
or not [A.B.] was wearing a seat belt is not relevant to the
causation issue." That instruction was correct. In Buckley, the
Court explained that if evidence of the victim not wearing a seat
belt is admissible for another relevant purpose, the jury must be
instructed on what the seat belt evidence is not relevant to prove.
Buckley,
216 N.J. at 255.
3. Testimony and References to Defendant Driving at 100
Miles Per Hour
Next, defendant argues that the trial court, the prosecutor,
and the State's expert witness erred by repeatedly telling the
jury that defendant had been driving at 100 miles per hour just
before the collision. The testimony and references to the speed
at which defendant was traveling were based on a statement
defendant gave to Detective Smith when he was questioned at the
roadside of the accident. In that regard, Smith testified as to
those statements during defendant's trial. Accordingly,
defendant's argument concerning the references to the speed at
which he was traveling is dependent on his argument that those
statements should have been suppressed. As we have already held
that the statements were admissible, this argument also fails.
18 A-5195-15T1
4. The State's Use of a Transcript of the Audio Recording
of the Statement Defendant Made at the Roadside
As previously noted, when Detective Smith questioned
defendant at the roadside their conversation was recorded by a
mobile recording device. Portions of the recording were inaudible
because of the traffic and background noise on the roadside of the
Garden State Parkway.
The court conducted a Rule 104 hearing in accordance with
State v. Driver,
38 N.J. 255 (1962). N.J.R.E. 104. At that
hearing, Detective Smith testified that he performed a pre-
operational check of the audio and video equipment used to record
defendant's roadside statement to ensure that they were
functioning properly. He also testified that he reviewed the
transcript of the audio recording prepared by the Prosecutor's
Office and confirmed that it was consistent with the audio
recording and his recollection of his conversation with defendant.
The trial court found Smith's testimony to be credible. The trial
court also found that the audio recording was sufficiently reliable
to be played for the jury. To assist the jury, the court also
allowed the State to provide the jury with a transcript of the
recording for reference, although the transcript itself was not
admitted into evidence.
19 A-5195-15T1
Defendant contends that the trial court erred in allowing the
State to use the transcript of defendant's roadside statements
made to Smith. We disagree.
A trial court's ruling on the admissibility of evidence is
"subject to limited appellate scrutiny." State v. Buda,
195 N.J.
278, 294 (2008). We accord considerable deference to a trial
court's findings based on the testimony of witnesses. State v.
Elders,
192 N.J. 224, 244 (2007).
The standards for admissibility of an audio recording are set
forth in State v. Driver,
38 N.J. at 287. An audio recording is
admissible in a criminal trial if the speakers are identified and
(1) the device was capable of taking the
conversation or statement, (2) its operator
was competent, (3) the recording is authentic
and correct, (4) no changes, additions or
deletions have been made, and (5) in instances
of alleged confessions, that the statements
were elicited voluntarily and without any
inducement.
[Ibid.]
A trial judge should listen to the recording outside of the
presence of the jury and decide if it is "sufficiently audible,
intelligible, not obviously fragmented, and . . . whether it
contains any improper and prejudicial matter which ought to be
deleted." Id. at 288.
20 A-5195-15T1
Here, the trial court conducted a proper Driver hearing, made
the appropriate determinations, and found that the recording
itself was admissible. The court also allowed the State to use a
transcript of the recording to assist the jury. In that regard,
the trial court instructed the jury that they were to base their
factual findings on the actual audio recording, which was admitted
into evidence. Specifically, the trial court instructed the jury
that if they determined there was a difference between the
transcript and the audio recording, they were to rely on the
recording because the transcript was not in evidence and was merely
"a guide." We discern no error or abuse of discretion in the
court's decision to allow the use of the transcript.
5. The Sentence
Our review of sentencing decisions is "narrow and is governed
by an abuse of discretion standard." State v. Blackmon,
202 N.J.
283, 297 (2010). We will affirm a sentence unless:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or
(3) "the application of the guidelines to the
facts of [the] case make the sentence clearly
unreasonable so as to shock the judicial
conscience."
21 A-5195-15T1
[State v. Fuentes,
217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth,
95 N.J. 334, 364-65 (1984)).]
Whether a sentence violates sentencing guidelines is a question
of law that we review de novo. State v. Robinson,
217 N.J. 594,
604 (2014).
Defendant was convicted of second-degree vehicular homicide.
He was sentenced to six and one-half years in prison, subject to
NERA. In imposing that sentence, the sentencing judge provided a
detailed analysis and made specific findings concerning the
aggravating and mitigating factors. In that regard, the court
found aggravating factors three (the risk of re-offense), nine
(the need to deter), and twelve (victim over sixty years old).
N.J.S.A. 2C:44-1(a)(3), (9), (12). The court then found mitigating
factors three (strong provocation), six (restitution), seven (no
prior criminal record), eight (circumstances unlikely to reoccur),
nine (good character), and ten (will respond well to probation).
N.J.S.A. 2C:44-1(b)(3), (6) to (10). All of those factors were
supported by evidence in the record with one exception. The
exception is mitigating factor ten, which did not apply because
defendant was being sentenced to incarceration. See State v.
Sene,
443 N.J. Super. 134, 144-45 (App. Div. 2015) (holding that
mitigating factor ten is not applicable where defendant did not
receive a probationary sentence).
22 A-5195-15T1
The sentencing judge then found that the aggravating factors
and mitigating factors were in equipoise. He went on to explain
that if he had to "tip the scales" he might find that the mitigating
factors "slightly outweigh[ed]" the aggravating factors. The
judge also stated, however, that he did not find that the
mitigating factors substantially outweighed the aggravating
factors. Accordingly, the judge imposed a sentence in the low
range for a second-degree crime.
N.J.S.A. 2C:43-6(a)(2) (setting
forth the range for a second-degree crime of between five and ten
years of incarceration).
Defendant contends that the sentencing judge erred by not
imposing a sentence in the third-degree range. The record does
not support such an argument. To sentence a criminal defendant
in a lower range, the court must find that the mitigating factors
substantially outweigh the aggravating factors and that there are
unique circumstances warranting a departure from the sentencing
guidelines. See Sene,
443 N.J. Super. at 145 (quoting
N.J.S.A.
2C:44-1(f)(2)). Here, we find no abuse of discretion and no error
in the application of the sentencing guidelines.
6. Whether There Were Cumulative Errors Warranting Reversal
Finally, defendant argues that if each of his arguments are
insufficient to warrant a reversal, cumulatively, the errors
should support a reversal. Here, however, we have found that
23 A-5195-15T1
there were no errors and, thus, there was no cumulative effect
justifying a reversal of the jury verdict. Instead, although the
record reflects that this was a tragic situation, defendant
received a fair trial and the jury's verdict is supported by the
evidence.
Affirmed.
24 A-5195-15T1
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