October 9, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MIGUEL REDWAY, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 TERM NOT TO EXCEED 11 3/4 YEARS[.]
Based on our review of the record and the applicable law, we conclude that defendant's contentions are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We affirm with only the following comments.
At approximately 1:00 a.m. on June 29, 2003, defendant and his girlfriend, Najah Morgan, were traveling southbound on the Garden State Parkway. Defendant was driving. The parties were returning to Long Branch after attending a wedding in northern New Jersey. In the area of milepost 115.7 in Holmdel, defendant's black Lexus struck the rear of a Ford Aerostar van driven by Wayne Peterson, which was traveling in the middle lane of the roadway. After the collision, Peterson's van veered sharply to the right, struck a guardrail on the outside of the roadway, and then veered to the left. Peterson's van then crossed all three lanes of the highway before it came to rest in a grassy area separating the two southbound express lanes from the three local lanes.
While these events were taking place, John Joyce was driving his Ford Explorer southbound in the right-hand express lane when he saw the Peterson van heading across the grassy median in his direction. In an effort to avoid a collision, Joyce applied his brakes and attempted to swerve to his left, but there was a car in the lane next to him, and he was forced to swerve back to the right to avoid it. While attempting to avoid a collision with Peterson's van, Joyce lost control of his vehicle, and according to the State's accident reconstruction expert, Joyce's Explorer then "rolled over, rolled over top of Mr. Peterson's vehicle and both vehicles rolled again to final rest." According to a witness, defendant's vehicle stopped briefly on the left shoulder of the highway at the scene of the accident before continuing on.
Unfortunately, Wayne Peterson suffered severe head injuries and died at the scene. Joyce suffered a deep, six-inch laceration in his arm that required approximately 120 stitches and a torn rotator cuff that required surgery. At defendant's trial, more than two years after the accident, when Joyce was asked if he suffered any lasting injuries, he testified: "I have numbness in one finger, my middle finger."
Approximately fifteen minutes after the accident, Sergeant Calicari of the Shrewsbury Police Department observed a black Lexus that was blocking the right-hand southbound lane on Shrewsbury Avenue. As Sergeant Calicari pulled behind the vehicle, the driver, later identified as defendant, got out of the Lexus and approached the patrol vehicle. Calicari observed that defendant was staggering and mumbling, and there was "a strong odor of alcohol beverage coming from his person." Calicari also observed that the black Lexus had extensive front-end damage, and the car did not appear to be operable. When Calicari asked how the vehicle had been damaged, defendant told him that "a guy cut them off" while his girlfriend was driving on the Parkway, and that no one had been hurt. Calicari testified that defendant appeared extremely "anxious, nervous, disheveled"; his eyes were "extremely bloodshot," and "[h]e slurred his speech as well as mumbled." Defendant admitted he had been drinking at a wedding but said he was not drunk.
Sergeant Calicari then asked defendant to perform several field sobriety tests, including an alphabet test and a backward counting test. When defendant was unable to perform the tests satisfactorily, he was arrested for driving while intoxicated, and he was given his Miranda*fn1 warnings. After being transported to police headquarters, defendant underwent two breathalyzer tests, which produced blood alcohol level readings of .15.
At approximately 2:30 a.m., the Shrewsbury Police were contacted by the State Police regarding the Parkway accident, and defendant was subsequently transported to the Holmdel State Police barracks for questioning. After defendant was again given Miranda warnings, he gave a taped statement in which he acknowledged he was driving when his car collided with another vehicle on the Parkway, but he claimed the other driver had cut him off.
At defendant's trial, the jury heard from Trooper Eric Heitman, who testified for the State as an accident reconstruction expert. Dr. John Brick, a biological psychologist, also testified for the State. According to Dr. Brick, at the time of the accident, defendant's blood alcohol level was between .15 and .17. In Brick's opinion, defendant was intoxicated and impaired at the time of the accident, and his condition was a significant contributing factor to the collision between his vehicle and the vehicle driven by Wayne Peterson. Defendant elected not to testify, but his accident reconstruction expert, Scott Batterman, testified that the "impact speed" of defendant's vehicle was seventy-five miles per hour "plus or minus eight miles per hour" when defendant's vehicle struck the Peterson vehicle. Thus, it would not have been unreasonable for the jury to conclude that defendant was intoxicated, and he was exceeding the speed limit, which was sixty-five miles per hour, at the time of the accident.
At the sentencing hearing which took place on February 17, 2006, Joyce characterized the accident as "a needless, horrible tragedy," and he also stated:
I became so angry and depressed. I could not stop thinking about Mr. Peterson and the terrible loss suffered by his wife, children, family and friends. Mr. Redway, for the past two and a half years you have made my life a nightmare. Every day I'm reminded of what I live with. It's nothing compared to what the Peterson family have experienced. Mr. Redway, I forgive you. I refuse to hold a grudge against you, because that would be unholy on my part. I believe God will deal with your actions in his own way.
I pray someday I will be relieved of this burden of guilt and depression I feel.
I also pray for the Peterson family. They are the most wonderful people I've ever met.
The trial court found no mitigating factors, but it found four aggravating factors: (1) "[t]he gravity and seriousness of harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2); (2) "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1(a)(3); (3) "defendant's prior criminal record and the seriousness of the [current] offenses," N.J.S.A. 2C:44-1(a)(6); and (4) "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1(a)(9). Defendant contends that because he was convicted of both causing Wayne Peterson's death and causing serious bodily injury to John Joyce, the court erred by "double-counting" the harm he inflicted. We do not agree. The "gravity and seriousness of the harm" as a sentencing consideration is a "broader and less precise concept [than the definition of "serious bodily injury" in N.J.S.A. 2C:11-1(b)] that permits the exercise of sound discretion by the sentencing court in determining whether the extent of the harm to the victim warrants application of that aggravating factor." State v. Kromphold, 162 N.J. 345, 358 (2000). In this case, it is clear that the harm to Joyce was not limited to his serious physical injuries, and it was not improper for the court to consider the full extent of the harm resulting from the accident.
Defendant also claims the sentencing court abused its discretion by imposing consecutive sentences. However, "[c]rimes involving multiple deaths or victims who have sustained serious bodily injuries represent especially suitable circumstances for the imposition of consecutive sentences." State v. Carey, 168 N.J. 413, 428 (2001). In addition, our Legislature has determined that consecutive sentences are appropriate for violations of N.J.S.A. 2C:11-5.1 (leaving the scene of a motor vehicle accident resulting in death) (count two), and N.J.S.A. 2C:12-1.1 (leaving the scene of a motor vehicle accident resulting in serious bodily injury) (count five). Thus, the sentencing court did not abuse its discretion by imposing three consecutive sentences.
"An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable." State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996); State v. Flores, 228 N.J. Super. 586, 594 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989). Modification of a sentence is appropriate "when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). This is not such a case, however. In this case, the trial court complied with the sentencing guidelines; the court's findings regarding the existence of aggravating factors, and the lack of mitigating factors, were based on competent and credible evidence in the record; and defendant's overall sentence was consistent with controlling legal principles. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, supra, 95 N.J. at 363-65.