August 09, 2001
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT
BARRY D. WADE, DEFENDANT-RESPONDENT AND CROSS-APPELLANT
The opinion of the court was delivered by: Per Curiam
Argued May 1, 2001
On certification to the Superior Court, Appellate Division.
Defendant pled guilty to second-degree vehicular homicide, N.J.S.A. 2C:11-5, and to operating a vehicle while under the influence of alcohol (DWI), N.J.S.A. 39:4-50(a). The sentencing court held that the No Early Release Act (NERA), N.J.S.A. 2C:43- 7.2, did not apply to vehicular homicide. The court also declined to merge the vehicular homicide conviction with the DWI conviction, concluding that defendant's reckless conduct in causing the death of the victim was conduct separate and independent from the DWI offense. In an unreported order, the Appellate Division affirmed the judgment of conviction.
We hold that vehicular homicide is subject to NERA, substantially for the reasons expressed by the Appellate Division in State v. Ferenscik, 326 N.J. Super. 228 (App. Div. 1999). We further hold that under the facts of this case, the sentencing court should have merged defendant's DWI conviction with his vehicular homicide conviction. The merger, however, carries with it the statutory penalties for drunk driving. We adopt that position substantially for the reasons expressed by the Appellate Division in State v. Baumann, __ N.J. Super. __, __ (decided April 12, 2001)(slip op. at 4). The judgment of the Appellate Division therefore is affirmed in part and reversed in part, and we remand the matter to the trial court for re-sentencing and amendment of the judgment of conviction.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA, and ZAZZALI join in the Court's opinion. JUSTICE VERNIERO did not participate.
Chief Justice Poritz PRESIDING
CHECKLIST AFFIRM IN PART, REVERSE IN PART, AND REMAND
CHIEF JUSTICE PORITZ X.
JUSTICE STEIN X.
JUSTICE COLEMAN X.
JUSTICE LONG X.
JUSTICE VERNIERO ---------------------
JUSTICE LaVECCHIA X.
JUSTICE ZAZZALI X.
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