The opinion of the court was delivered by: Stein, J.
Argued September 28, 1999
On certification to the Superior Court, Appellate Division.
The primary issue in this appeal is whether the court that sentenced defendant Thomas Kromphold impermissibly considered elements of the offense of aggravated assault as aggravating factors for sentencing purposes. In an unpublished opinion, the Appellate Division reduced defendant's aggregate sentence, holding that the trial court "double-counted" evidence of the extent of defendant's intoxication by considering that evidence as an aggravating factor for sentencing after having authorized the jury to consider the same evidence in determining whether the State had proved recklessness, an element of the charged offense of second-degree aggravated assault. We affirm in part, reverse in part, and remand the matter to t he Law Division for further proceedings in conformance with this opinion.
On the evening of March 1, 1996, Shin Ru Shih and Piin-Chau Suen, wife and husband, and their friends, Taonan Tsai and Jenfei Shih, also wife and husband, were traveling northbound on DeMott Lane in Franklin Township. Suen, the driver of the car, observed vehicle headlights heading directly for their car. That vehicle, operated by defendant Thomas Kromphold, was traveling southbound in the northbound lane. Suen was unable to avoid the other vehicle, and the cars collided head-on.
Franklin Township police officers responded to the scene and arrested defendant after he admitted he was intoxicated and after he failed roadside tests administered by the officers. A blood sample taken shortly after defendant's arrest revealed that defendant's blood alcohol level was .382 percent, more than triple the legal limit.
All of the occupants of the Suen vehicle were transported to the hospital after receiving treatment at the scene. Tsai fractured his left thumb, requiring surgery and causing him to miss one month of work. Suen suffered whiplash. The two women in the car suffered severe, permanent injuries.
Shin Ru Shih suffered a broken collarbone and fractured ribs. She also had to have her spleen removed, markedly increasing her vulnerability to infections. Consequently, she experienced seven infections in less than one year. One of those infections occurred during pregnancy and produced such a high fever that Shin Ru Shih again was hospitalized. Prior to the accident Shin Ru Shih worked as a biochemist in a laboratory. Since the accident, she has had to change professions because of the increased risk of infection attributable to her splenectomy.
Jenfei Shih, who was seated behind the driver, sustained the most severe injuries. She lost all vision in her left eye, and sustained severe eyelid damage and permanent facial scarring. Jenfei Shih's skull and left elbow were fractured. Following the accident, Jenfei Shih, who was twenty-six weeks pregnant at the time of the accident, began to have uterine contractions and cervical dilation. She gave birth prematurely in the thirty-second week of her pregnancy. Testimony from her doctor indicated that the premature birth probably resulted from the trauma caused by the collision. Jenfei Shih's child was born functionally underdeveloped and was undergoing therapy at the time of defendant's sentencing.
Defendant was charged with three counts of second-degree aggravated assault based on the separate injuries sustained by Shin Ru Shih, Jenfei Shih, and Tsai. The aggravated assault statute, N.J.S.A. 2C:12-1b(1), provides that a person is guilty of second-degree aggravated assault if he or she "[a]ttempts to cause serious bodily injury to another, or . . . under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury."
At trial, the victims and Franklin Township police officers testified for the State. The State also produced a forensic scientist who testified concerning defendant's blood alcohol level and the effect it had on his ability to drive.
Defendant, who was thirty-three years old at the time of trial, testified on his own behalf. He stated that he began drinking at age ten and that he "was drinking every day" prior to the accident. Defendant testified that he was an alcoholic and that he regularly drove under the influence of alcohol.
As part of the jury charge, the court explained the elements of aggravated assault. Concerning the element of recklessness, the court instructed the jury that defendant's level of intoxication at the time of the accident could be considered:
Now, as you know, evidence has been introduced of defendant's intoxication at the time of the alleged offence. The level of intoxication has the tendency to prove the existence of any recklessness. Specifically, if you should find a .10 percent or higher level of blood alcohol, you may consider this as a factor in determining whether the defendant was reckless at the time of the alleged crime. In determining the element of recklessness, you are permitted to draw an inference that an individual who drives while intoxicated is consciously disregarding the risk of accident. You may consider the degree of intoxication in determining whether circumstances manifesting extreme indifference to the value of human life existed. In determining whether the defendant acted recklessly under circumstances manifesting extreme indifference to the value of human life, you may consider the nature of the acts themselves and the severity of the resulting injuries.
Following the trial, the jury found defendant guilty of the two counts of second-degree aggravated assault involving injuries to Shin Ru Shih and Jenfei Shih. The jury acquitted defendant of the aggravated assault of Tsai, but found defendant guilty of the lesser-included offense of assault by auto, contrary to N.J.S.A. 2C:12-1c. Following his ...