On certification to the Superior Court, Appellate Division, whose opinion is reported at 227 N.J. Super. 245 (1988).
For affirmance in part, for reversal in part and for remandment -- Chief Justice Wilentz and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
[119 NJ Page 622] Pursuant to a plea agreement, defendant, Edwin Antonio Pineda, pled guilty to death by auto, a third-degree crime. N.J.S.A. 2C:11-5b. The Law Division sentenced him to four years' imprisonment, with a 270-day parole disqualifier. On
defendant's appeal, the Appellate Division ruled that the sentence violated the legislative guidelines and remanded the matter for resentencing. 227 N.J. Super. 245, 546 A.2d 578 (1988). We affirm in part, reverse in part, and remand the matter to the Law Division.
In the early morning hours of January 19, 1986, defendant, an unlicensed driver, was involved in a car accident that caused the death of his passenger, George Santos. Defendant told police that before the accident he had been drinking with friends at various bars. The group then went to a private home, where they continued to drink. During the course of the evening, defendant consumed at least a quart of malt liquor and a pint of Southern Comfort.
Sometime after midnight, defendant realized that he had left his house keys in a friend's car and went with Santos to retrieve them. Accepting a dare from Santos, defendant took the car. The accident occurred when the car, while traveling at a high speed, struck a parked car.
After entering defendant's guilty plea, the trial court concluded that defendant had been under the influence of alcohol at the time of the accident and, therefore, was subject to the mandatory penalties of N.J.S.A. 2C:11-5b.
Because defendant had previously been convicted of disorderly-persons offenses, he was not entitled to the presumption against imprisonment applicable to first offenders. N.J.S.A. 2C:44-1e. Thus, the court did not apply a presumption either for or against imprisonment. State v. Powell, 218 N.J. Super. 444, 450-51, 528 A.2d 39 (App.Div.1987).
The trial court found as aggravating factors (1) the gravity and seriousness of harm inflicted on the victim, N.J.S.A. 2C:44-1a(2); (2) a lesser sentence would depreciate the seriousness of the offense, N.J.S.A. 2C:44-1a(4); and (3) the need for deterrence, N.J.S.A. 2C:44-1a(9). As mitigating factors, the court
found that (1) defendant had no criminal record, N.J.S.A. 2C:44-1b(7); (2) he was unlikely to commit another offense, N.J.S.A. 2C:44-1b(9); (3) he was particularly likely to respond positively to probationary treatment, N.J.S.A. 2C:44-1b(10); and (4) he had cooperated with law-enforcement authorities, N.J.S.A. 2C:44-1b(12). Concluding that the mitigating factors did not outweigh the aggravating factors and that a term of imprisonment was appropriate, the trial court imposed the four-year presumptive term applicable to third-degree offenses. N.J.S.A. 2C:44-1f(1)(d). The court also imposed a parole disqualifier of 270 days, as required by the death-by-auto statute, and a $500 Violent Crimes Compensation penalty.
The Appellate Division vacated defendant's sentence because the trial court had erred by considering as an aggravating factor the death of the victim, an element of the offense charged. 227 N.J. Super. at 248, 546 A.2d 578. The court then established guidelines for sentencing under the death-by-auto statute to address a perceived disparity in the minimum sentences mandated ...