On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-12-1607.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2010
Before Judges Payne, Baxter and Koblitz.
While driving with a blood alcohol content (BAC) well above the legal limit, defendant crashed into two young girls walking on the sidewalk, leaving each of them permanently disfigured.
He entered a negotiated plea of guilty to two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1). At the time of original sentencing in 2005, and again at sentencing remand proceedings in 2007 and 2009, the judge sentenced him to consecutive seven-year terms, each subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After careful consideration of defendant's arguments, we reject his claim that the imposition of consecutive NERA terms resulted in an excessive sentence. We affirm.
On May 26, 2003, after consuming alcohol to the point of intoxication, defendant drove to Lakewood to purchase cocaine. While speeding, he drove his vehicle onto the sidewalk, where he crashed into two young girls who were unable to escape defendant's vehicle as it veered toward them. After running over R.H. and M.H., who were cousins, defendant sped off and stopped a half-mile down the road only because one of the vehicle's front tires was shredded. When police arrived moments later, defendant smelled of alcohol and appeared intoxicated. While being placed under arrest, defendant began to struggle, at which point a bag of cocaine fell from his pocket. Two more bags of cocaine were recovered, one in his pocket and another in the car. Defendant's BAC was.178.
R.H. was ten years old at the time. As a result of defendant's conduct, she suffered a pelvic fracture, a right hip dislocation and a fractured right hip socket, for which she underwent numerous surgeries. She now walks with difficulty, is unable to run and is in chronic pain. Her treating physicians report that she will never have a normal leg again.
M.H., who was eleven years old at the time, suffered a "complex comminuted depressed skull fracture." Metal plates were placed in her head to close and stabilize her skull. She also sustained multiple facial fractures. In particular, the facial fractures included her left cheekbone, the bones around her eye socket and a broken nose. M.H. also sustained a severe laceration to her scalp and a fracture to one of the bones of her arm. She experienced numerous serious complications after the initial surgery, including severe malnutrition and peripheral vascular insufficiency, for which she underwent a gastrotomy. The scalp wound did not heal properly and formed an abcess, which required an additional surgery to drain and clean the wound area. As a result of the injuries to M.H.'s face, she has scars running down her face and her eyes are not symmetrical. Feeling she has been "disfigured," and distressed by the continual teasing from her classmates, M.H. dropped out of school.
Prior to the events of May 26, 2003, defendant had been sober for a period of ten years, but in the weeks prior to the day in question, he relapsed to the point where he typically consumed one to two six packs of beer or one-half pint of vodka daily.
As we have noted, defendant entered a negotiated plea of guilty to two counts of second-degree aggravated assault, reserving the right to seek concurrent sentences on the two counts. At the time of sentencing on January 10, 2005, the judge found the existence of two mitigating factors, defendant had no prior convictions and his imprisonment would entail excessive hardship to his wife and children. The judge found three aggravating factors: number two, the gravity and seriousness of the harm inflicted on the victims, N.J.S.A. 2C:44-1(a)(2); number three, the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); and number nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9).
In finding the existence of aggravating factor three, the judge observed that even though defendant had entered and successfully completed a twenty-eight day in-patient alcohol treatment program while on bail, defendant had previously experienced a ten-year period of sobriety, which had ended abruptly in the alcoholism relapse and drug abuse that caused him to injure the victims. The judge concluded that further relapses were possible, thereby creating a risk of future criminal episodes similar to the one for which he was being sentenced.
The judge imposed consecutive sentences for each of the two counts, justifying the consecutive sentences as follows:
[T]he Court has also made a separate, as required, and independent analysis under State v. Yarbough and its progeny. And I am satisfied that consecutive sentences are required.
There are separate victims here. And while this is one circumstance that happened over a matter of split seconds, or very brief period of time, these separate victims will, for the rest of their lives, suffer independently the consequences of the defendant's actions on that date.
And the only proper, in this Court's view, under all of the standards as set forth by our Supreme Court, term of punishment, recognizing that our criminal code requires punishment for illegal acts, that there be separate punishments for each of the separate victims.
Defendant appealed the January 10, 2005 sentence, arguing:
1) the judge impermissibly double counted several aggravating factors, which led the judge to impose the maximum base term permitted by the plea agreement, a seven-year NERA term, rather than a lesser sentence; and 2) consecutive sentences were not justified in light of the fact that the convictions resulted from a single criminal act committed at a single time and place.
Although we found the first of defendant's two arguments unconvincing, we remanded for resentencing because the transcript of the January 18, 2005 sentencing proceeding did not "reflect that the trial court took into consideration the dramatic affect upon defendant of two consecutive sentences with separate [NERA] eighty-five percent periods of parole ineligibility." State v. Wikander, No. A-2866-04 (App. Div. August 2, 2006) (slip op. at ...