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State v. Ferencsik

October 28, 1999

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
V.
STEPHEN FERENCSIK, DEFENDANT-APPELLANT.



Before Judges D'Annunzio, Newman and Fall.

The opinion of the court was delivered by: D'annunzio, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 28, 1999

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.

The issue is whether the "No Early Release Act," N.J.S.A. 2C:43-7.2 (Act), which requires service of 85% of a sentence for a "violent crime" before an inmate is eligible for parole, applies to vehicular homicide, N.J.S.A. 2C:11-5. We hold that it does.

Defendant waived indictment, and was charged in Middlesex County Accusation No. 246-10-97 with vehicular homicide for causing "the death of Amanda Bolitho by driving a vehicle recklessly," in violation of N.J.S.A. 2C:11-5a. Defendant pled guilty to the accusation and to operating a vehicle while under the influence of alcohol. N.J.S.A. 39:4-50(a). Defendant conceded that he was intoxicated and was operating his vehicle recklessly when he struck and killed Amanda. He also conceded that his blood alcohol content, established by a blood test, was 0.293.

Vehicular homicide is a second-degree offense. The court sentenced defendant to ten years in prison and determined that the Act applied. Therefore, defendant must serve eight years and six months before he is eligible for parole.

Defendant appealed from his sentence. The appeal was scheduled for oral argument on our excessive sentence calendar. At oral argument, defense counsel and the court discussed the Act's applicability to vehicular homicide. Thereafter, we entered an order postponing the appeal "until a later date for Disposition after full briefing on a regular calendar." In his appellate brief, defendant contends that the Act does not apply to vehicular homicide because recklessness is the culpability element of vehicular homicide and the definition of a violent crime in the Act must be limited to crimes involving knowing or purposeful conduct. We disagree.

N.J.S.A. 2C:43-7.2 a and d provide:

a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section.

d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S.A. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.

In Essex Crane Rental Corp. v. Director, Div. of Civil Rights, 294 N.J. Super. 101 (App. Div. 1996), we discussed principles of statutory construction:

In construing a statute we must effectuate the Legislature's intent. Monmouth County v. Wissell, 68 N.J. 35, 43-44, 342 A.2d 199 (1975). Sources of legislative intent are the language of a statute, the policy behind a statute, concepts of reasonableness, and legislative history. Coletti v. Union Co. Bd. of Chosen Freeholders, 217 N.J. Super. 31, 35, 524 A.2d 1270 (App. Div. 1987); Shapiro v. Essex County Bd. of Chosen Freeholders, 177 N.J. Super. 87, 92 424 A.2d 1203 (Law Div. 1980), aff'd, 183 N.J. Super. 24, 443 A.2d 219 (App. Div. 1982), aff'd, 91 N.J. 430, 453 A.2d 158 (1982).

"[W]e must first look at the evident wording of the statute to ascertain its plain meaning and intent." Renz v. Penn Central Corp., 87 N.J. 437, 440, 435 A.2d 540 (1981). Our duty is to apply the legislative intent as expressed in the statute's language, and we are not to presume that the Legislature intended something other than what it expressed by its plain language. In re Jamesburg High Sch. Closing, 83 N.J. 540, 548, 416 A.2d 896 ...


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