On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 97-6-323-I.
Before Judges Pressler, Ciancia and Alley.
The opinion of the court was delivered by: Pressler, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The issue before us is whether the imposition of a mandatory minimum sentence on a conviction of the second-degree crime of vehicular homicide, N.J.S.A. 2C:11-5, is governed by the Supreme Court's ruling in State v. Johnson, ___ N.J. ___ (2001) (decided February 28, 2001). That is to say, N.J.S.A. 2C:11-5b(1) requires the imposition of a parole ineligibility term of no less than three years if the defendant was driving under the influence of alcohol or drugs at the time of the offense. The question is whether the fact of intoxication must be found by a jury beyond a reasonable doubt as Johnson requires with respect to the predicate fact mandating sentencing under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, or whether the fact of intoxication may be found by the court under a preponderance standard as provided by N.J.S.A. 2C:11-5b(2). Because we are unable to distinguish conceptually between the parole ineligibility term imposed by NERA and that required by the vehicular homicide statute, we hold that the fact mandating parole ineligibility on a conviction of vehicular homicide must be found by the jury beyond a reasonable doubt in accordance with State v. Johnson, supra, ___ N.J. ___. Accordingly, we vacate the parole ineligibility term here imposed.
Following a trial by jury, defendant Traci E. Stanton was convicted of second-degree vehicular homicide. The offense is defined as a death by auto or vessel caused by reckless driving. N.J.S.A. 2C:11-5a.
There is no doubt that the evidence before the jury was adequate to prove each element of the charge beyond a reasonable doubt. Defendant was the driver, and her passenger was killed in this one-car accident, described by the trial judge as follows:
... the motor vehicle was traveling in excess of posted limits [approaching a curve], ... the motor vehicle left the roadway, proceeded some 14 feet into a tree, struck the tree, flipped over onto the roof, and then traveled for many yards along the roadway.
As to recklessness, the evidence before the jury permitted it to find that element of the offense by reason of the speed with which defendant was driving or her intoxication or a combination of both. Its guilty verdict, which did not specify the basis of its recklessness finding, was therefore inconclusive as to defendant's intoxication.
Immediately following the return of the verdict, the judge addressed the related motor vehicle violations with which defendant had been charged. See State v. DeLuca, 108 N.J. 98, 111, cert. denied, 484 U.S. 944, 108 S. Ct. 331, 98 L. Ed. 2d 358 (1987). Summonses had been issued charging her with driving while intoxicated, N.J.S.A. 39:4-50; reckless driving, N.J.S.A. 39:4-96; consumption of alcohol while driving, N.J.S.A. 39:4-51a; and failure to wear a seat belt, N.J.S.A. 39:3-76.2j. Because of the evident interplay between the charge of driving while intoxicated and the mandatory minimum term required by N.J.S.A. 2C:11-5b(1), the judge decided to reserve trial on the drunk-driving charge until sentencing on the vehicular homicide charge. She then proceeded to find defendant guilty of the remaining motor vehicle charges.
On the day fixed for sentencing, the court first addressed the motor vehicle offense of driving under the influence. Relying on the evidence adduced at trial, the judge found beyond a reasonable doubt that defendant was guilty of that offense. The judge then considered and denied defendant's motion for a new trial. At that point, the prosecutor addressed the court with respect to its obligation under N.J.S.A. 2C:11-5b(2). As we have noted, N.J.S.A. 2C:11-5b(1) requires the imposition of a minimum parole ineligibility period of three years if a defendant convicted of vehicular homicide was driving under the influence of alcohol as defined by N.J.S.A. 39:4-50. N.J.S.A. 2C:11-5b(2) provides in relevant part as follows:
The court shall not impose a mandatory sentence pursuant to paragraph (1) of this subsection unless the grounds therefor have been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the defendant was operating the auto or vessel while under the influence of any intoxicating liquor...."
The prosecutor thus took the position that the court had no discretion to withhold imposition of the minimum mandatory sentence. The prosecutor also argued that the circumstances did not warrant a downgrading for sentencing purposes of the second- degree crime pursuant to N.J.S.A. 2C:44-1f(2). The court then concluded that based on its finding that defendant was guilty of the motor vehicle offense of driving while intoxicated, it was obliged to impose the three-year parole ineligibility term mandated by statute.
The court elected, however, to sentence defendant as for a third-degree crime, imposing a three-year minimum base term subject to three years of parole ineligibility, together with required fines and penalties on the vehicular homicide conviction as well as the minimum fines and penalties required on the motor vehicle convictions. The State has not cross-appealed from the N.J.S.A. 2C:44-1f(2) ...