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State v. Carey

July 09, 2001


The opinion of the court was delivered by: Coleman, J.

Argued March 13, 2001

On certification to the Superior Court, Appellate Division.

This appeal requires us to revisit the standard for determining the appropriateness of consecutive sentences imposed during a single sentencing proceeding following a conviction on two counts of vehicular homicide that involved multiple victims.

On the night of December 26, 1995, defendant, Joseph Carey, got behind the wheel of his motor vehicle after a long evening of drinking beer. That ill-fated decision to drive while intoxicated resulted in a head-on collision that caused two deaths. Defendant was convicted of, among other things, two counts of vehicular homicide. The trial court sentenced him to consecutive seven-year terms of imprisonment on each count with a three-year parole disqualifier on each count, as mandated by N.J.S.A. 2C:11-5b(1). The Appellate Division vacated those sentences and remanded to the trial court for resentencing to concurrent terms, noting that the only factor militating in favor of consecutive sentences was the presence of multiple victims. We granted certification in this case and in State v. Molina, which we also decide today, to determine whether the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 to 98-4 (Code), and the sentencing guidelines established in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), permit consecutive sentences in cases where, as here, a person under the influence of alcohol causes an accident that results in more than one death. Although we do not adopt a per se rule, we conclude that it was not an abuse of the trial court's discretion to impose consecutive sentences. Accordingly, we reverse the Appellate Division's judgment and reinstate the trial court's sentences.


On December 26, 1995, defendant, who was twenty-two years old at the time, spent the evening playing darts and drinking beer with friends and family at his father's house in Franklin Township, New Jersey. While there, he made the acquaintance of Joyce and Melissa Snook, two sisters who lived in an apartment above defendant's father. Shortly after midnight, Melissa and Joyce accepted defendant's invitation to accompany him back to his house to meet his roommate. The three of them left together in defendant's pick-up truck and headed north on North Church Road.

Joyce Snook testified that defendant drove very fast and she became scared. She asked defendant to slow down, but he did not respond. There was also testimony that defendant nearly struck a volunteer firefighter who was on his way home from a firehouse. Minutes later, while speeding around a bend in the road, defendant's pick-up truck veered into the oncoming lane of traffic and collided head-on with a Ford Mustang. William Ferguson, a twenty-one-year-old passenger in the Mustang, did not survive the impact. Melissa Snook was airlifted from the scene by helicopter, but she died at a hospital later that morning. Michael DiGangi, who had been driving the Mustang, and Joyce Snook both sustained severe injuries, but survived the accident.

The first police officer at the accident scene testified that he smelled alcohol on defendant's breath. Based on a blood sample taken later that morning, the State's expert opined that defendant had a .169 blood alcohol level at the time of the accident. Another expert retained by the State estimated that defendant was traveling between sixty-five and eighty-one miles per hour at the time of impact. A traffic sign warned that the maximum safe speed at the curve in the road was twenty-five miles per hour.

A jury convicted defendant of two counts of vehicular homicide, N.J.S.A. 2C:11-5, and two counts of assault by auto, N.J.S.A. 2C:12-1c. Twelve days before defendant's accident, the Legislature amended the vehicular homicide statute. Among other things, the Legislature elevated the crime from third degree to second degree, punishable by a term of imprisonment of five to ten years. L. 1995, c. 285, § 1. The amendments took effect December 15, 1995, thus applying "to offenses committed on or after the effective date." Id. § 2.

At the sentencing hearing, the trial court found three aggravating factors: the serious nature of the harm inflicted on the victims, the risk that defendant would re-offend, and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1a(2), (3), (9). The court did not find any mitigating factors. After determining that the aggravating factors outweighed any potential mitigating factors, the court sentenced defendant to the presumptive term of seven years imprisonment with a three-year parole disqualifier on each of the two counts of vehicular homicide.

In deciding whether those sentences should run concurrently or consecutively, the trial court posited that the "one factor that has become more prevalent as a consideration in successive sentence and consecutive sentencing rather than concurrent is multiple victims and the nature of the charges." Thus, the trial court determined that defendant's sentences should run consecutively because defendant's crime had resulted in multiple victims. The court also sentenced defendant to a one-year term for each count of fourth-degree assault by auto, to run concurrent with each other and with the vehicular-homicide sentences. Hence, defendant received an aggregate sentence of fourteen years imprisonment with six years of parole ineligibility.

In an unpublished opinion, the Appellate Division affirmed defendant's convictions, but vacated the sentences on the vehicular homicides. The Appellate Division concluded that the trial court abused its discretion in imposing consecutive sentences because, "at least in the context of the death-by-auto crime, the multiple-victim factor . . . has not itself, as the only factor, ordinarily resulted in consecutive sentencing." The panel also determined that the trial court had erred in identifying and weighing the aggravating and mitigating factors. Specifically, the panel found that the trial court had improperly double-counted the two deaths, given that death was an element of each of the vehicular-homicide offenses. The panel also found no support in the record for the trial court's finding that defendant was likely to reoffend or that there was a need for deterrence. Therefore, the panel vacated the consecutive sentences on the vehicular homicide convictions and remanded to the trial court for the purpose of imposing concurrent sentences on all offenses. We granted certification, 165 N.J. 674 (2000), and now reverse.



Prior to the enactment of the Code, the focus of our criminal laws was on rehabilitating and reforming offenders. Yarbough, supra, 100 N.J. at 637. Consistent with that goal, there was a presumption in favor of concurrent sentences in cases involving multiple convictions. Ibid. By contrast, the Code, which is "?based on notions of proportionality and desert,'" focuses on the gravity of the offense. State v. Roth, 95 N.J. 334, 355 (1984) (quoting Andrew von Hirsch, Utilitarian Sentencing Resuscitated: The American Bar Association's Second Report on Criminal Sentencing, 33 Rutgers L. Rev. 772, 773 (1981)). Consequently, under the Code's "just deserts" sentencing model "[c]oncurrent sentences frustrate this objective, and consecutive sentences thus should be the rule." Yarbough, supra, 100 N.J. at 637 (quoting Perlman and Stebbins, "Implementing an Equitable Sentencing System: The Uniform Law Commissioners' Model Sentencing and Corrections Act," 65 Va. L. Rev. 1175, 1220 (1979)).

Generally, the Code does not specify when multiple sentences should run concurrently and when they should run consecutively. The Code simply states that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." N.J.S.A. 2C:44-5a. We recognized early on that investing unbridled discretion in sentencing judges would inevitably lead to a lack of sentencing uniformity, so in Yarbough, supra, 100 N.J. 627, we set forth six guidelines to assist trial courts in deciding whether to impose concurrent or consecutive sentences:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.*fn1 [Id. at 643-44 (footnote omitted).]

Admittedly, the second, fourth, fifth, and sixth guidelines do not assist a sentencing court in making the threshold decision whether to impose concurrent or consecutive sentences; rather, they establish certain procedural requirements. The first guideline——"no free crimes"——tilts in the direction of consecutive sentences because the Code focuses on the crime, not the criminal. Id. at 630. ...

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