On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 98-9-1265-I.
Before Judges Conley, Carchman and Parrillo.
The opinion of the court was delivered by: Conley, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a guilty plea to second-degree vehicular homicide, N.J.S.A. 2C:11-5, two counts of fourth-degree assault by auto, N.J.S.A. 2C:12-1c, and driving while intoxicated, N.J.S.A. 39:4- 50, defendant was sentenced to a presumptive seven-year term on the second-degree conviction, to which the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied. Concurrent eighteen-month terms with nine-month disqualifiers were imposed on the assault by auto convictions. *fn1 A six-month driver's license suspension was imposed on the DWI conviction. The necessary fines and penalties were also imposed, along with restitution to the State and the deceased's family.
On appeal, defendant contends that the trial judge "erred in declining to sentence defendant as a young adult offender under N.J.S.A. 2C:43-5" and erred in "double counting elements of the offense as aggravating factors at sentencing." As to the latter contention, we first note that our conscience is not shocked by the seven-year term, particularly in light of the fact that no more than the presumptive term was imposed and the sentences on the two assaults by auto, involving two other victims, were not imposed as consecutive terms. Moreover, while we agree the trial judge double-counted the death of the victim and defendant's intoxication when he found aggravating factors one and two, see State v. Kromphold, 162 N.J. 345, 350-51 (2000); State v. Pineda, 119 N.J. 621, 627-28 (1990), we are convinced in the exercise of our original jurisdiction, pursuant to R. 2:10-3, that a seven-year presumptive term is appropriate. Even without the two double-counted aggravating factors, the remaining deterrence aggravating factor is, at the least, as weighty, qualitatively, as the mitigating factor. There is, then, equipoise, thus requiring the presumptive seven-year term. *fn2
This, then, leads us to defendant's claim that the sentencing judge erred in not imposing a young adult offender sentence pursuant to the Young Adult Offender Act (YAOA), N.J.S.A. 2C:43-5. We reject this contention, both procedurally and substantively. Procedurally, the record does not reflect any application made by defendant for a young adult offender sentence. Counsel refers to some in-chambers, off-the-record discussions, the substance of which is not found in the record. The most the record reflects is an application by counsel that the judge recommend defendant's term be spent at a "Youthful Facility," which the judge acceded to. The issue raised in point I of defendant's brief, then, was not properly raised below. Indeed, there is no record of any ruling by the judge upon the application of the YAOA.
Substantively, we reject defendant's contention that a sentence under the YAOA can be imposed upon conviction for a crime to which the NERA applies. The rationale is quite simple. The NERA mandates, without exception, a parole disqualifier. N.J.S.A. 2C:43-7.2a.
The YAOA, on the other hand, which provides for indeterminate sentences, *fn3 precludes a parole disqualifier. N.J.S.A. 30:4-5; State v. White, 186 N.J. Super. 15, 18 (Law Div. 1982). Thus, a person convicted of a Graves Act offense which carries a mandatory period of parole ineligibility, N.J.S.A. 2C:43-6c, is not eligible for a YAOA sentence. State v. Des Marets, 92 N.J. 62, 75-76 (1983). So too is the YAOA unavailable to a person convicted of drug offenses which carry a mandatory parole disqualifier pursuant to N.J.S. A. 2C:35-5b(1) and (7). State v. Luna, 278 N.J. Super. 433, 438 (App. Div. 1995).
We see no basis for a different result when a person is convicted of an offense that requires a mandatory NERA disqualifier. We reject defendant's attempt to distinguish Des Marets and Luna based upon some distinction between the "deterrence" objectives of the parole disqualifiers mandated by N.J.S.A. 2C:43-6c and N.J.S.A. 2C:35-5b(1) and (7) as mentioned in Des Marets and Luna, and the "penal" objectives of the NERA as mentioned in State v. Thomas, 166 N.J. 560, 570 (2001). Defendant contends the NERA penal or retributive objective is not irreconcilable with the rehabilitative purpose of a YAOA sentence since youthful offenders sentenced under the YAOA "are, in fact, punished."
But the plain fact is YAOA punishment is indeterminate and primarily governed by a young adult offender's rehabilitative progress. While subject either to a five-year maximum or the maximum of the offense where applicable, the objective of a YAOA sentence is early release upon rehabilitation. It is not punishment in the form of incarceration for a substantial mandatory period of time before parole can be considered. Unlike the YAOA, there is no early release under the NERA. Simply put, the mandatory NERA parole disqualifier is as much inconsistent with a YAOA indeterminate sentence as are the Graves Act and N.J.S.A. 2C:43-5b(1) and (7) mandatory parole disqualifiers.
We acknowledge that, subsequent to Des Marets, the Legislature amended N.J.S.A. 2C:43-5 to specifically exclude from its scope a Graves Act sentence. As amended, N.J.S.A. 2C:43-5 provides:
Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex, in accordance with N.J.S.A. 30:4-146 et seq., in the case of men, and to the Correctional Institution for Women, in accordance with N.J.S.A. 30:4-153 et seq., in the case of women, instead of the sentences otherwise authorized by the code. This section shall not apply to any person less than 26 years of age at the time of sentencing who qualifies for a mandatory minimum term of imprisonment without eligibility for parole, pursuant to subsection c. of N.J.S. 2C:43-6; however, notwithstanding the provisions of subsection c. of N.J.S. 2C:43-6, the mandatory minimum term may be served at the Youth Correctional Institution Complex or the Correctional Institution for Women. Defendant argues that because this amendment excludes only Graves Act offenses and not other offenses which might also carry parole disqualifiers, the clear intent is that the YAOA may apply to those other offenses. There is some support for this. The statement accompanying the amendment, for instance, explains:
The purpose of this bill is to establish that adults under 26 years of age who have been convicted of committing any crime enumerated in N.J.S. 2C:43-6c while in possession of a firearm are subject to the ...