July 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KENNETH W. VERPENT, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-09-1757.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2012 --
Before Judges Fuentes, Graves and Koblitz.
Defendant Kenneth W. Verpent appeals from his December 7, 2010 judgment of conviction. After losing a motion to suppress the laboratory analysis of his urine sample, defendant was convicted by a jury of third-degree assault by auto in Bergen County Indictment No. 09-09-1757. N.J.S.A. 2C:12-1(c)(2). Defendant was also found guilty in a subsequent non-jury trial, pursuant to Rule 3:15-3(a), of (1) the disorderly persons offense of being under the influence of a controlled dangerous substance without a medical purpose, N.J.S.A. 2C:35-10(b); (2) reckless driving, N.J.S.A. 39:4-96; and (3) driving while intoxicated, N.J.S.A. 39:4-50. After merging the disorderly persons and reckless driving offenses into the assault by auto charge, Judge Jerejian sentenced defendant on his convictions of assault by auto and driving while intoxicated to an aggregate term of five years in prison and ordered him to pay the required fees and penalties. After reviewing the record in light of the contentions advanced on appeal, we affirm, remanding only to correct the judgment of conviction to more accurately reflect the record.
The State presented the following evidence at trial. At about 10:15 a.m., on December 3, 2008, Sabrina Patrick was traveling in her Honda Accord from Little Falls, New Jersey, to New York City. It was a clear, sunny day, and the road surface was dry. She was stopped at the main toll plaza for the George Washington Bridge when she heard a "very loud crash," after which she "was looking at the ceiling of [her] vehicle" because the driver's seat in her car had been broken by the impact and she had been flung backwards.
Defendant, who was operating a flatbed tow truck, failed to stop and, according to an eyewitness, "slammed into the back of the Honda, and a second later that Honda hit the back of a truck in front of it." Her treating physician testified at trial that, as a result of the collision, Patrick had an "L3 burst fracture" of a vertebra, which required "spinal fusion" surgery and the insertion of metal rods into her body to provide needed support.
An accident reconstruction expert testified that the left front side of defendant's truck struck the right rear side of Patrick's car at a minimum speed in the range of twenty-seven to thirty-three miles per hour. The expert attributed the accident to defendant's "delayed perception response;" that is, defendant failed to apply the truck's brakes until it was too late to avoid colliding with Patrick's car.
Around 11:00 a.m., after Patrick had been removed from her car by "the jaws of life," Port Authority Police Officers Steven Truglio and Brian Faustina spoke with defendant concerning the collision. Truglio testified that defendant, who was seated in the driver's seat of his truck, stated that he had not been injured in the accident.
Defendant provided his driver's license, registration, and proof of insurance in a slow manner. His eyes were bloodshot and watery and his pupils were "constricted."
Truglio asked defendant to exit the truck and walk to its front. Truglio observed that defendant was slow-moving, lethargic, as well as "slightly unsteady" and "a little wobbly on his feet." Defendant's demeanor was very polite and calm, though his physical appearance was a "mess."
Truglio asked defendant "how he caused the crash," to which defendant replied that "he just didn't see the car in front stopped, and he had nodded off at the wheel."
Truglio then had defendant perform two field sobriety tests. Defendant failed the "finger to nose" test, but passed the "one-legged stand" test. At that point, Truglio and Faustina took defendant to the police station so that a breathalyzer test could be administered in order to "rule out alcohol."
At 12:44 p.m., defendant was tested and did not have any alcohol in his system. Truglio then decided to have defendant evaluated by a police drug recognition expert (DRE).*fn1
DRE Brian McKeever of the Hillsdale Police Department arrived at the police station at around 1:30 p.m. According to McKeever, Truglio asked that a DRE evaluation be performed because the level of impairment that defendant exhibited was inconsistent with the negative breathalyzer test results.
McKeever testified that defendant stated that he had slept well and taken no prescribed medications. McKeever took defendant's temperature, pulse, and blood pressure, all of which registered on the lower side of the normal range, and he noted that defendant's pupils were constricted, his forearms had puncture marks, and his overall muscle tone was "very flaccid." McKeever then conducted four field sobriety tests, some of which defendant failed.
McKeever testified to his conclusion "from the totality of the exam, taking into account the vital signs, his divided attention, the psychophysical tests, the pupils in the dark room, that . . . [defendant] was unable to operate a motor vehicle safely, that he was impaired, and he was under the influence of a narcotic analgesic."*fn2
Following the DRE testing, McKeever asked Truglio to request blood and urine samples from defendant. Defendant refused to provide a blood sample, but voluntarily provided a urine sample.
Defendant's urine specimen tested positive for cocaine and marijuana metabolites. The State presented testimony from H. Chip Walls, who was qualified as an expert in forensic toxicology and the effects of alcohol and drugs on humans. Walls concluded that, when defendant's truck struck Patrick's car, defendant was suffering the "downside" of his prior ingestion of cocaine; he was "crashing" after the initial stimulating effects of his cocaine use had passed.*fn3
According to Walls, during such a downside crash from cocaine ingestion, a person becomes very quiet and sleepy, with a lowered heart rate and blood pressure. The person's pupils become constricted and his or her muscles become limp and flaccid. The person becomes mentally dull, slow, and inattentive, and is "not paying attention to all the details" of situations occurring around him, and reaction time is diminished.
Walls pointed to an overlap of symptoms to explain the conflict between his opinion that defendant was crashing from cocaine at the time of the collision and McKeever's opinion that defendant was under the influence of a narcotic analgesic at that time.
Defendant testified on his own behalf at trial indicating that he was momentarily distracted. He denied being under the influence of any substance on the day of the accident. He denied ever ingesting cocaine or heroin, and he stated that he had last used marijuana about a week before the accident. In regard to the laboratory report, his only explanation for the presence of cocaine and marijuana metabolites in his urine was that it was not his urine that was tested.
According to defendant, he was "willing to give blood" while at the police station, and he denied that Truglio or McKeever asked him to explain how the accident occurred. He also denied telling Truglio that he had "nodded off" while at the wheel of the truck.
On appeal defendant raises the following issues:
POINT ONE: THE TRIAL COURT WRONGFULLY DENIED DEFENDANT'S MOTION TO SUPPRESS THE LABORATORY ANALYSIS OF HIS URINE SAMPLE. POINT TWO: OFFICER MCKEEVER IMPROPERLY BOLSTERED THE CREDIBILITY OF EXPERT WITNESS
H. CHIP WALLS, AND PRESENTED TESTIMONY BEYOND THE SCOPE OF HIS QUALIFICATIONS.
POINT THREE: THE EXPERT OPINION OF H. CHIP WALLS ON THE ULTIMATE FACTUAL ISSUE USURPED THE ROLE OF THE JURY.
POINT FOUR: OFFICER TRUGLIO'S ASSESSMENT OF DEFENDANT'S STATE OF MIND CONSTITUTED AN IMPROPER LAY OPINION.
POINT FIVE: THE CONVICTION FOR DRIVING UNDER THE INFLUENCE SHOULD HAVE MERGED INTO THE ASSAULT BY AUTO CHARGE.
POINT SIX: DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
In Point I of his brief, defendant argues that the trial judge erred in denying his motion to suppress the laboratory analysis of his urine sample, asserting that "no exigent circumstances existed justifying the warrantless seizure of the urine sample." When reviewing a trial court's decision on a motion to suppress, we do "not weigh the evidence anew, but determine whether sufficient credible evidence in the record supports the trial court's decision." State v. Heisler, 422 N.J. Super. 399, 412 (App. Div. 2011).
In his decision denying the motion, Judge Jerejian reviewed and considered the testimony of the police officers concerning defendant's failure to pass certain sobriety field tests, his slow and lethargic body movements, his low blood pressure and body temperature, his watery and bloodshot eyes, his constricted pupils, and the puncture marks on his forearms. The judge also considered the negative breathalyzer test results, which indicated that defendant's demeanor and poor sobriety test results were not the product of alcohol in his system.
Based on that evidence, Judge Jerejian determined that Truglio and McKeever had sufficient reason to believe that defendant was under the influence of a controlled dangerous substance (CDS). He determined that those proofs established probable cause to arrest, as well as exigent circumstances that justified the warrantless taking of a urine sample from defendant.
Defendant asserts only that there were no exigent circumstances that justified the warrantless seizure of the urine sample. In doing so, he argues that the police were not concerned that the evidence of drug ingestion would soon dissipate from defendant's system. At the time the officers took a urine sample from defendant, however, they did not know which CDS he had ingested or when he had done so. As it turned out, defendant did not have heroin metabolites in his urine, either because he did not ingest heroin or because he had ingested it too recently for it to appear in his urine. Based on his incomplete information at the time of the test, McKeever reasonably believed that defendant was under the influence of heroin, evidence of which might dissipate before a warrant could be obtained.
In State v. Malik, 221 N.J. Super. 114, 118-19 (App. Div. 1987), we determined that "there existed sufficient exigent circumstances warranting the police demand for a urine specimen." In Malik, supra, the defendant was a passenger in a car stopped by the police. Id. at 117. After observing that the defendant had slurred speech and a belligerent attitude, and had possible drugs and drug paraphernalia in her pocketbook, the police arrested her and later required her to give a urine sample. Ibid.
Finding that exigent circumstances justified the police request, we stated:
[W]e are fully convinced that the arresting officer "might reasonably have believed he was confronted with an emergency, in which the delay necessary to obtain a warrant, threatened 'the destruction of evidence.'" In our view, it was reasonable for the police officer to assume that the presence of drugs in urine gradually diminishes with the passage of time. The evidence is thus evanescent and may disappear unless prompt investigative action is taken. Given these facts, we conclude that the attempt to secure evidence of controlled dangerous substances was entirely reasonable and an appropriate consequence of the circumstances surrounding defendant's arrest. [Id. at 119 (internal quotation marks, citations, and footnote omitted).]
The "evanescent" nature of drugs and their metabolites in a person's urine provides the exigency necessary to support the warrantless seizure of that person's urine by police. According to Malik, supra, "a person arrested by the police with probable cause to believe that she has recently ingested a controlled dangerous substance has no federal constitutional right to prevent being required to give a urine sample." Id. at 122.
A warrantless, involuntary seizure of bodily fluid, such as urine, "is justified when there is probable cause to arrest, probable cause to believe that evidence of a crime will be revealed by the search, articulable and demonstrable exigent circumstances to justify not seeking a warrant, and the specimen is taken in a medically reasonable manner." Jiosi v. Twp. of Nutley, 332 N.J. Super. 169, 179 (App. Div. 2000).
The State presented evidence showing that, on the day of the collision: (1) there was probable cause to arrest defendant, (2) exigent circumstances existed because of the evanescent nature of the drugs or metabolites that might have been in defendant's urine, and (3) the urine was collected in a medically reasonable manner. The judge accepted the State's evidence as credible in deciding the suppression motion.
Judge Jerejian's decision was supported by sufficient credible evidence in the record. Heisler, supra, 422 N.J. Super. at 412.
Moreover, the urine test was incident to a valid arrest. Defendant does not argue that police lacked probable cause to effect an arrest. In Malik, supra, we opined that the seizure of urine from the defendant was "reasonably incidental to a valid arrest." 221 N.J. Super. at 120; see Jiosi, supra, 332 N.J. Super. at 182 (discussing the "'incident to arrest' justification in Malik"). Malik thus supports the taking of a urine sample from defendant both based on exigent circumstances and incident to a lawful arrest.
In Point II of his brief, defendant argues that McKeever offered testimony beyond his expertise and that his testimony improperly bolstered the expert testimony of Walls. The determination of an expert's competency to testify on a subject rests in the sound discretion of the trial court. Carey v. Lovett, 132 N.J. 44, 64 (1993). "Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion." Ibid. (citing Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 411 (1960)).
At trial, the State presented expert testimony from Walls, who relied on the State Police laboratory report in testifying that defendant was impaired by the downside crash effects of cocaine ingestion on the day of the collision, and who explained the discrepancy between his conclusion and that of McKeever by the similarity of the medical symptoms of a cocaine crash and the ingestion of a narcotic analgesic.
McKeever testified prior to Walls, and the State indirectly broached the topic of the discrepancy between McKeever's and Walls's opinions on McKeever's direct examination, asking him whether he had considered the "downside of cocaine" as a possible cause of defendant's impairment on the day of the collision. Over defendant's objection, McKeever explained that his training did not include discussion of that phenomenon.
McKeever cited to DRE training he received in 2005 as the basis for his opinion that defendant was under the influence of a narcotic analgesic. On the day of the collision, McKeever had no knowledge of the medical effects of a downside cocaine crash. Even after McKeever later learned of those effects, he adhered to his opinion that defendant had ingested a narcotic analgesic, reasoning that the narcotic analgesic had not metabolized and, as a result, did not appear in his urine by the time the sample was taken.
On cross-examination, McKeever testified that, in his opinion, defendant was not under the influence of cocaine or marijuana on the day of the collision. He stated that, although he had not received any subsequent DRE training after 2005, he had independently studied and learned about the effects of a cocaine crash in February 2010, after receiving the laboratory report that revealed only the presence of cocaine and marijuana in defendant's urine. Thus, McKeever affirmed that his knowledge about the effects of a cocaine crash did not come from a seminar or course of study, but from his "own research" on the topic. On redirect examination, McKeever restated his opinion that defendant was not "crashing on cocaine" on the day of the collision.
Defendant asserts that the trial court erred in allowing McKeever to offer the testimony described above because it was beyond the scope of his expertise, based as it was on his "independent research from undisclosed sources."
In State v. Torres, 183 N.J. 554, 576 (2005), the Court cited N.J.R.E. 703 in stating that "[a]lthough the out-of-court statements upon which expert witnesses rely may be characterized as hearsay, our rules of evidence permit an expert to rely on hearsay if that hearsay is of the type 'reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'"
McKeever explained that when he initially formed his opinion that defendant was under the influence of a narcotic analgesic, he did so without knowledge of or reference to the effects of a cocaine crash. He also explained that his after-acquired knowledge about those effects did not alter his opinion. Thus, McKeever informed the jurors that he was unswayed by the research he conducted concerning cocaine crashing. McKeever's independent research was therefore not central to his opinion that defendant was under the influence of a narcotic analgesic.
In line with the Torres Court's rationale, during his testimony, McKeever referred to the tests and studies only to apprise the jury of the basis for his opinion that defendant must have ingested the narcotic analgesic so shortly before the collision that it had not metabolized and would not appear in defendant's urine by the time the sample was taken. Ibid. Because Torres provides for reliance on such hearsay by experts, the trial court did not clearly abuse its discretion by allowing McKeever to so testify. Carey, supra, 132 N.J. at 64.
Defendant's remaining contention is that McKeever's testimony improperly bolstered the expert testimony of Walls.
One witness at trial is not permitted to give testimony supporting the credibility of another witness. State v. Clausell, 121 N.J. 298, 337-38 (1990). McKeever's testimony conflicted with that of Walls and thus did not bolster Walls' credibility. The two experts gave very different opinions as to the identity of the CDS that impaired defendant.
In Point III of his brief, defendant argues that "Walls' expert opinion constituted reversible error because it both usurped the province of the jury and improperly bolstered the credibility of Officers Truglio and McKeever."
On direct examination, Walls was asked to opine on whether defendant "was operating a motor vehicle [while he was] impaired." Walls answered that, based on his review of the investigation and reports by Truglio and McKeever, as well as the laboratory report showing defendant's ingestion of cocaine, the "overall picture" indicated that defendant was in the downside crash phase of cocaine ingestion at the time of the collision.
"Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.J.R.E. 704. In that vein, in State v. Odom, 116 N.J. 65, 79 (1989), the Court "conclude[d] that as long as the expert does not express his opinion of defendant's guilt but simply characterizes defendant's conduct based on the facts in evidence in light of his specialized knowledge, the opinion is not objectionable even though it embraces ultimate issues that the jury must decide."
In the present case, Walls did not express his opinion about defendant's guilt of third-degree assault by auto. Instead, he considered the evidence adduced at trial by the State and gave his opinion, based on his specialized knowledge, that defendant was impaired by cocaine while operating a motor vehicle. This is precisely the type of expert opinion on the ultimate factual issue contemplated by N.J.R.E. 704 and Odom.
Walls recognized that Truglio and McKeever had formed opinions concerning defendant's impairment, but he did not adopt those opinions. Instead, Walls relied on the sobriety tests and other observations made by the police officers on the day of the collision as a basis for forming his own opinion.
Walls did not have the opportunity to observe defendant on the day of the accident. Thus, Walls's opinion was necessarily dependent upon the tests conducted and observations made by Truglio and McKeever. However, the record does not suggest that Walls improperly adopted their conclusions. Nor does the record suggest that Walls's testimony improperly bolstered the credibility of Truglio and McKeever. Clausell, supra, 121 N.J. at 337-38.
In Point IV of his brief, defendant argues that Truglio's assessment of defendant's state of mind should have been excluded because it was an improper and unduly prejudicial lay opinion.
Under N.J.R.E. 403(a), "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice." "N.J.R.E. 403 specifically allows a judge, in his or her discretion, to exclude otherwise admissible evidence under specified circumstances. These decisions are reviewed under the abuse of discretion standard." Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Asked by the prosecutor to describe defendant's "actions as he produced his credentials," Truglio responded that "[h]is actions were very slow, very lethargic, didn't really seem to care about the motor vehicle crash that took place --." Defense counsel interrupted and objected that Truglio was "reading the mind" of defendant, while the prosecutor countered that Truglio was only describing defendant's demeanor. The judge then asked Truglio to explain what he meant, whereupon Truglio continued his testimony, stating that "[d]ue to the fact that his actions were lethargic and slow, if I could give an example, the other gentleman driving the tractor trailer [in front of Patrick's Honda] was extremely nervous and concerned about the victim and the vehicle that was involved in the crash."
The judge overruled defendant's objection, and Truglio continued his testimony, stating that "[w]hereas the defendant just didn't really seem concerned . . . in regards to the observation [sic] that took place."
The judge again overruled the defense objection, stating that Truglio was "describing his demeanor at the scene, so I'll allow it."
On direct examination, Truglio testified that, when he asked defendant to exit the truck and walk to its front, defendant's "demeanor was very polite, very calm, again, very slow moving, a little unsteady on his feet when he did exit the vehicle." Truglio testified that, when the two men were in front of the truck, he observed "[j]ust slow actions [by defendant], again, very polite and calm, and [he] just had no concern for what was going on."
On cross-examination, defense counsel brought out that Truglio did not address defendant's lack of concern in his official report, or in his prior testimony at the suppression hearing, or before the grand jury.
The judge allowed Truglio's disputed testimony because Truglio was describing defendant's demeanor at the scene of the collision. A person's "demeanor" reflects his or her "[o]utward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions." Black's Law Dictionary 442 (7th ed. 1999).
When describing defendant's demeanor, Truglio offered lay opinion testimony based on his perceptions of defendant. Lay testimony, including testimony involving "a defendant's demeanor and physical appearance," is permissible in combination with expert proofs to show that a person was driving while impaired by a controlled dangerous substance. State v. Bealor, 187 N.J. 574, 588 (2006) (emphasis added). Judge Jerejian did not abuse his discretion when he refused to exclude Truglio's disputed testimony.
Nor did he abuse his discretion by not excluding the disputed testimony as unduly prejudicial, pursuant to N.J.R.E. 403(a). Evidence concerning defendant's demeanor shortly after the collision was material and relevant to showing his impairment and his inability to operate a vehicle safely.
In Point V of his brief, defendant argues that the trial court erred when it refused to merge his conviction for driving while intoxicated into his conviction for assault by auto.
Assault by auto where injury results because of a person's reckless operation of a vehicle is a fourth-degree crime, N.J.S.A. 2C:12-1(c)(1). It is elevated to a third-degree crime, however, if injury results because of a person's reckless operation of a vehicle while intoxicated. N.J.S.A. 2C:12-1(c)(2). The jury found defendant guilty of causing "serious bodily injury to Sabrina Patrick while driving the vehicle recklessly." The jury also found defendant guilty of causing "serious bodily injury to Sabrina Patrick while he drove under the influence of a narcotic, hallucinogenic, or habit-producing drug." Subsequently, Judge Jerejian, sitting as a municipal court judge, found defendant guilty of driving while intoxicated.
At sentencing, defendant argued that his driving while intoxicated conviction should merge into his assault by auto conviction. The State countered that merger was not required because there was additional evidence of recklessness aside from the intoxication.
Judge Jerejian refused to merge the convictions, reasoning that the jury, in finding defendant guilty pursuant to the first verdict-sheet question, had found that defendant drove the truck recklessly, independent of any finding that he had driven it while intoxicated. The judge reasoned further that:
I think from the evidence that was cited on the record by the prosecutor as to what transpired leading up to the bridge, the tire marks, the speed, the accident reconstruction expert, it was clear that the vehicle [defendant's truck] was moving in a fashion that was reckless, speeding [and] otherwise. The defendant himself testified that he looked away, and when he looked up the car was right on him. And I think in this instance the DWI, even if it did merge the penalties would remain, but I find that it does not merge.
We agree. Where a person is convicted of both charges, the driving while intoxicated conviction will merge into the assault by auto conviction unless additional evidence exists, other than the intoxication, to "independently demonstrate recklessness." State v. Baumann, 340 N.J. Super. 553, 556 (App. Div. 2001). That is, "merger is not required when there is mixed evidence of recklessness such as excessive speed and intoxication." State v. Stanton, 176 N.J. 75, 87, cert. denied, 540 U.S. 903, 124 S. Ct. 259, 157 L. Ed. 2d 187 (2003). Where the "details of the accident" demonstrate that the person's recklessness was only "a function and manifestation of intoxication," merger is required; if the details demonstrate an alternate and independent basis for finding recklessness, merger is not required. Baumann, supra, 340 N.J. Super. at 556.
As the judge determined, mixed evidence demonstrating defendant's recklessness precluded merger. Defendant drove into the back of Patrick's stationary car at a speed of at least twenty-seven miles per hour while making no attempt to slow down until just before impact. That speed was plainly excessive under the circumstances. The evidence also showed that defendant admitted that he was not looking at the road ahead as he sped into the back of Patrick's vehicle while approaching the toll booth. Thus, evidence independent of the proofs of being under the influence of CDS showed that defendant acted recklessly in causing the accident. Merger was therefore not appropriate.
At Point VI of his brief, defendant asserts that he received an excessive sentence, contending that the judge erred both in applying an aggravating factor against him and in concluding that he had not sufficiently expressed remorse.
Where the sentencing court has followed the sentencing guidelines and has made factual findings concerning the aggravating and mitigating factors that are grounded in competent credible evidence in the record, we will not modify the sentence unless the application of the guidelines to the facts of the case make the sentence so clearly unreasonable "as to shock the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 363-64 (1984)).
At the sentencing hearing, Judge Jerejian found four aggravating factors: (1) the gravity and seriousness of harm inflicted on the victim, N.J.S.A. 2C:44-1(a)(2); (2) the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); (3) the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and (4) the need to deter defendant from violating the law, N.J.S.A. 2C:44-1(a)(9). The one mitigating factor he found, to which he gave "slight weight," was that imprisonment of defendant would entail excessive hardship to his dependents, N.J.S.A. 2C:44-1(b)(11).
The judge determined that the four aggravating factors clearly and convincingly outweighed the lone mitigating factor and imposed a maximum five-year term of imprisonment on defendant for his conviction of third-degree assault by auto.
Serious bodily injury is an element of the crime of assault by auto. N.J.S.A. 2C:12-1(c)(2). "Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b). Defendant does not dispute that Patrick suffered serious bodily injury. She had a fractured vertebra, which required spinal fusion to repair and resulted in chronic pain and a permanent loss of some of her spine function.
Defendant contends that by applying the aggravating factor involving the "gravity and seriousness of the harm inflicted on the victim," N.J.S.A. 2C:44-1(a)(2), the judge improperly "double-counted" a sentencing factor because the gravity and seriousness of the harm inflicted on Patrick as a result of the collision comprises part of the "serious bodily injury" element of the assault by auto offense.
At the sentencing hearing, Judge Jerejian rejected this argument, stating that:
I would agree ordinarily it would be a double counting since the element of the offense was serious bodily injury. . . .
The harm and the injuries inflicted on this victim far exceed what would be required for serious bodily injury. I guess the only silver lining for her is that she could still walk, although with great difficulty and pain.
The "statutory definition of 'serious bodily injury' and the aggravating factor focusing on the 'seriousness of harm inflicted on the victim' address different concepts." State v. Carey, 168 N.J. 413, 425-26 (2001). Discussing this difference in State v. Kromphold, 162 N.J. 345, 358 (2000), the Court stated that the "aggravating factor is a broader and less precise concept 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."
Patrick testified at trial that, because of the collision, she endures chronic pain and is unable to sit upright for more than a few hours. Because she has to lay down at unexpected times during the day to relieve the pain in her back, she was unable to continue her employment as an office worker and had to drop out of the college she was attending. She stated that, because of her injuries, her family relationships were negatively impacted and she was compelled to relocate to a warmer climate. The sentencing judge did not abuse his discretion in finding the aggravating factor of serious harm to the victim under these circumstances.
Defendant's remaining contention is that the judge erred at sentencing when he considered that defendant had not sufficiently expressed remorse. After reviewing the presentence report, Judge Jerejian directed the following remarks to defendant:
I think you have a complete lack of remorse.
You got up on the stand and said you weren't even under the influence of cocaine, even though there was a toxicology report, and have completely denied any responsibility or shown any remorse [about] your conduct. So I think there is a strong risk that you'll commit another offense. You need to be deterred.
In State v. O'Donnell, 117 N.J. 210, 216 (1989), the Court affirmed the trial court's finding of the aggravating factor that the defendant was likely to commit another offense, N.J.S.A. 2C:44-1(a)(3), stating that "[f]rom the evidence adduced before it, the trial court found that defendant was 'almost boastful of what had happened to him,' suggesting not only defendant's lack of remorse, but also some pride in the beating he had inflicted on [the victim]." Plainly, the O'Donnell Court saw no problem with citing a defendant's lack of remorse in a sentencing decision where that lack of remorse is logically connected to the likelihood that the defendant will commit another offense.
Also, in State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991), we affirmed the trial court's sentencing decision, stating that "[d]efendant's consistent denial of involvement and his lack of remorse indicate that a prison sentence is necessary to deter defendant from similar conduct in the future, and therefore, the trial court properly found aggravating factor N.J.S.A. 2C:44-1(a)(9)." The judge similarly related the need to deter defendant to his lack of remorse. Defendant's sentence is neither an abuse of discretion nor is it excessive under these circumstances.
As the judgment of conviction incorrectly reports that the judge found no mitigating factors, we remand for that clerical correction.*fn4
Affirmed and remanded to correct the judgment of conviction.