On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 10-01-00022.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Lihotz*fn1 and Waugh.
The opinion of the court was delivered by CUFF, P.J.A.D.
Defendant John Lawless, Jr., passed out while driving a motor vehicle, crossed the center line of the road and collided with an oncoming car, killing the driver of the oncoming car and injuring the two passengers in the vehicle. Defendant pled guilty to aggravated manslaughter, N.J.S.A. 2C:11-4a, and driving while intoxicated, N.J.S.A. 39:4-50.
The sentence was left to the discretion of the court. Defendant argues that the thirty-year term of imprisonment subject to the No Early Release Act (NERA)*fn2 eighty-five percent parole ineligibility term is manifestly excessive.
On appeal, defendant raises the following arguments:
I. ALTHOUGH A DEFENDANT'S SENTENCE IS WITHIN THE GUIDELINES RANGE, A COURT MAY STILL FIND A SENTENCE EXCESSIVE.
II. THE COURT ERRED IN CONSIDERING THE INJURIES OF THE ALLEGED VICTIMS OF THE DISMISSED COUNTS OF THE INDICTMENT WHEN IT DETERMINED THAT AGGRAVATING FACTOR TWO APPLIED.
III. THE LOWER COURT IMPERMISSIBLY CONSIDERED DEFENDANT'S PRIOR DRIVING WHILE INTOXICATED CONVICTIONS WHEN FINDING AGGRAVATING FACTOR NUMBER SIX APPLICABLE.
IV. THE LOWER COURT ERRED BY DOUBLE COUNTING THE DEFENDANT'S BLOOD ALCOHOL CONTENT, WHICH WAS USED WITH RESPECT TO THE CHARGE TO WHICH HE PLEADED GUILTY AS WELL AS AN AGGRAVATING FACTOR.
V. THE DEFENDANT'S SENTENCE OF 30 YEARS IN PRISON SUBJECT TO THE NO EARLY RELEASE ACT IS SO CLEARLY ...