On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Ind. No. 04-03-0678.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Graves and Alvarez.
In a seven-count indictment, defendant Miguel Redway was charged with second-degree vehicular homicide in connection with the death of Wayne Peterson, N.J.S.A. 2C:11-5 (count one); third-degree leaving the scene of an accident resulting in death, N.J.S.A. 2C:11-5.1 (count two); third-degree causing death while driving with a suspended driver's license, N.J.S.A. 2C:40-22 (count three); second-degree aggravated assault by causing serious bodily injury to John Joyce, N.J.S.A. 2C:12-1(b)(1) (count four); fourth-degree leaving the scene of an accident resulting in serious bodily injury, N.J.S.A. 2C:12-1.1 (count five); fourth-degree causing serious bodily injury while driving with a suspended driver's license, N.J.S.A. 2C:40-22 (count six); and third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2) (count seven). By consent of the parties, counts three and six were severed prior to trial.
On November 14, 2005, the jury acquitted defendant of vehicular homicide but convicted him of the lesser included offense of third-degree assault by auto. Defendant was also convicted on all of the other counts of the indictment that were tried. On the same day the jury rendered its verdict, defendant entered guilty pleas to counts three and six. Pursuant to a negotiated plea, the State agreed to recommend that the sentences imposed on counts three and six would run concurrently with each other and concurrently with the sentences imposed as a result of the jury's verdict.
After the court denied defendant's motion for a new trial as to count four, and after appropriate mergers, defendant was sentenced as follows: (1) on count four (second-degree aggravated assault causing serious bodily injury to John Joyce), defendant received a seven-year state prison term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; (2) on count five (leaving the scene of a motor vehicle accident resulting in serious bodily injury), defendant was sentenced to an eighteen-month prison term to run consecutively to count four; and (3) on count two (leaving the scene of a motor vehicle accident resulting in death), defendant was sentenced to a five-year prison term to run consecutively to both counts four and five. Concurrent sentences were imposed on the remaining counts. Thus, defendant received an aggregate sentence of thirteen and one-half years, with seven years of that term subject to NERA. Appropriate penalties and assessments were also imposed by the court.
On appeal, defendant presents the following arguments:
BECAUSE THE STATE FAILED TO PROVE THE CHARGE OF SECOND-DEGREE AGGRAVATED ASSAULT, A JUDGMENT OF ACQUITTAL MUST BE ENTERED AS TO THAT COUNT[.]
THE COURT ERRED IN FAILING TO MERGE THE DWI CONVICTION INTO THE ASSAULT CONVICTION. (Not Raised Below.)
THE AGGREGATE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. IT MUST BE VACATED, AND THE MATTER REMANDED FOR RESENTENCING TO A ...