On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-03-0323.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges R. B. Coleman and Lihotz.
Defendant Luis Hernandez appeals from the sentences imposed following our remand for re-sentencing. Again, we are constrained to reverse after concluding the sentences imposed, although within the statutory maximum, were not adequately supported N.J.S.A. 2C:44-7, and the trial court's exercise of discretion is "clearly mistaken." State v. Kromphold, 162 N.J. 345, 355 (2000). See also State v. Roth, 95 N.J. 334, 364 (1984) (holding appellate courts may disturb a sentence found to be "a clear error of judgment").
The charges arose after a routine traffic stop at approximately 10:00 a.m. Although defendant initially obeyed the police officer's signal to pull over, he then sped away stating he panicked because his driving privileges were suspended. The motorcycle traffic officer gave chase. He did not follow defendant but took an alternate route to cut him off. While speeding through residential streets, defendant stated he was looking over his shoulder to see if the officer was behind him when he ran a stop sign and "T-boned" the officer's motorcycle, which had entered the intersection on the cross street. Defendant agreed to provide samples of blood and urine after being advised he had the right to refuse. The police officer was thrown from his bike, crashed into the windshield and hood of a parked van, and landed in a nearby garden. The officer died from "[m]ultiple blunt traumatic injuries" sustained in the accident.
Following the collision, defendant attempted to flee on foot, but was captured by members of the public. Upon arrest, defendant was taken to the hospital for treatment. He consented to submit blood and urine samples, admitting he had snorted "three dime bags" of heroin at 1:00 a.m. and that his driver's license was suspended.
Defendant was convicted by a jury of first-degree death by auto within 1000 feet of a school, N.J.S.A. 2C:11-5(b)(3) (count one); third-degree leaving the scene of a motor vehicle accident resulting in death while his driver's license was suspended, N.J.S.A. 2C:11-5.1 (count two); third-degree operating a motor vehicle involved in a motor vehicle accident resulting in death while his driver's license was suspended, N.J.S.A. 2C:40-22(a) (count three); first-degree aggravated manslaughter, causing death during an eluding, N.J.S.A. 2C:11-4(a)(2) (count four); second-degree eluding, N.J.S.A. 2C:29-2(b) (count five); and third-degree endangering an injured victim by leaving the scene of an accident, N.J.S.A. 2C:12-1.2(a) (count six).
During sentencing, the trial judge determined defendant was eligible for a discretionary extended-term sentence as a persistent offender under N.J.S.A. 2C:44-3(a) on count one. The court merged count five into count four and sentenced defendant to a term of life in prison,*fn1 with the mandatory period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; five years imprisonment on count two, the term to run consecutively to the sentence imposed on counts one and four; five years on count three, the term to run concurrently to the sentence imposed on counts one and four; twenty years, subject to NERA's eighty-five percent parole ineligibility period on count four, the sentence to run concurrently to that imposed on count one; five years on count six, to run consecutively to counts one and four but concurrent to count two. The court permanently revoked defendant's driving privileges and imposed applicable fines and penalties.
Defendant appealed from his conviction and sentence. In our unreported opinion, we affirmed defendant's conviction but remanded for re-sentencing, stating "the sentences imposed for counts two, three and six exceed the previous presumptive terms for third[-]degree convictions and the court's reasons for imposing maximum terms are not clear." State v. Hernandez, No. A-1280-05 (App. Div. August 6, 2007) (slip op. at 17). On remand, the trial judge imposed the same sentence. Defendant again appealed from the determination.
Our role in reviewing a trial judge's sentence is a limited one. We do not "substitute [our] judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the court has "adhered to the sentencing principles set forth in the Code and defined in our case law," and its findings of aggravating and mitigating factors are supported by the record, "its discretion should be immune from second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010). We will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364-65.
On appeal, defendant argues that "the sentence imposed is manifestly excessive and merger should have been ordered." Specifically, defendant urges merger of the three homicide offenses and also identifies errors in the court's factfinding, which he suggests require reversal. Defendant suggests the trial judge:
(1) accorded far too much weight to defendant's prior record; (2) failed to distinguish between prior convictions [that] triggered the extended-term sentence and those  used to set the length of that term, thereby engaging in double-counting; (3) failed to properly take into account that defendant's death-by-auto conviction had already been enhanced by statutory aggravation and then further by the imposition of an extended term before being elevated all the way to the maximum term of life . . . ; (4) failed to adequately credit defendant, in a qualitative sense, for his cooperation with the State; (5) failed to explain adequately how defendant warrants a sentence that is, ordinarily, the maximum for purposeful and knowing murder, when it is clear from these facts, and the lack of indictment for a more serious homicide offense, that not even the State believed this to have been more than a reckless offense; [and] (6) failed to explain how maximum terms were suitable for some offenses when only a midpoint sentence was given for aggravated manslaughter.
We first examine whether the offenses should have been merged. Defendant contends the three homicide offenses in counts one, three and four arise from the same facts yet "only one act of homicide occurred here," not three, and therefore merger applies.
In addressing questions of merger, we have recognized that merger is rooted in the established principle that an accused who has committed only one offense cannot be punished as if for two. State v. Dillihay, 127 N.J. 42, 48 (1992) (internal quotation marks and citations omitted).
We follow a flexible approach in merger issues that requires us to focus on the elements of the crimes and the Legislature's intent in creating them, and on the specific facts of each case. The overall principle guiding merger analysis is that a defendant who has committed one offense cannot be punished as if for two. Convictions for lesser-included offenses, offenses that are a necessary component of the commission of another offense, or offenses that merely offer an alternative basis for punishing the same criminal conduct will merge. [State v. Brown, 138 N.J. 481, 561 (1994) (internal quotation marks and citations omitted), overruled on other grounds, State v. Cooper, 151 N.J. 326 (1997).]
Nevertheless, "a single criminal episode can be dissected into chronologically discrete offenses," requiring our analysis to focus on the elements of each crime. State v. Fraction, 206 N.J. Super. 532, 537 (App. Div. 1985), certif. denied, 104 N.J. 434 (1986). See State v. Smith, 197 N.J. 325, 332 (2009) ("Because the wording used by the Legislature provides the most direct path toward understanding legislative intent, we examine the plain language of the statute and ascribe to the words their ordinary meaning."). See also N.J.S.A. 2C:1-14(h) (defining elements of offenses).
Criminal homicide is defined in N.J.S.A. 2C:11-2(a) and specifically includes death by auto, N.J.S.A. 2C:11-2(b). Death by auto occurs when an actor drives a vehicle recklessly. N.J.S.A. 2C:11-5(a). Vehicular homicide was upgraded to a second-degree offense by L. 1995, c. 285, and upon conviction, the statute mandates a minimum term of imprisonment if the actor was operating the vehicle while under the influence of any intoxicating liquor or narcotic or while his or her driving privileges were suspended. N.J.S.A. 2C:11-5(b)(1). Moreover, the second-degree offense turns into a first-degree offense when the operator was driving while intoxicated, as prohibited by N.J.S.A. 39:4-50, within 1000 feet of school property. N.J.S.A. 2C:11-5(b)(3)(a).
Pursuant to N.J.S.A. 2C:11-4(a), criminal homicide constitutes aggravated manslaughter when "(1) [t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life; or (2) [t]he actor causes the death of another person while fleeing or attempting to elude a law enforcement officer in violation of . . . N.J.S.[A.] 2C:29-2[b]." In State v. Curtis, 195 N.J. Super. 354, 364 (App. Div.), certif. denied, 99 N.J. 212 (1984), we identified what distinguishes aggravated manslaughter from manslaughter, noting the variance is the degree of risk. Aggravated manslaughter includes the additional element that death be caused "under circumstances manifesting extreme indifference to ...