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State of New Jersey v. Nelson D. Villanueva


November 5, 2012


On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-10-2372.

Per curiam.


Argued October 17, 2012

Before Judges Axelrad, Sapp-Peterson and Haas.

Tried before a jury on a multi-count indictment, defendant was convicted of three counts of second-degree vehicular homicide of three victims, N.J.S.A. 2C:11-5a (counts four, five and six); fourth-degree assault by auto, causing serious bodily injury to a fourth victim, N.J.S.A. 2C:12-1c(1) (count eight); three counts of third-degree causing death while driving with a suspended or revoked license, N.J.S.A. 2C:40-22a (counts nine, ten and eleven), and fourth-degree causing serious bodily injury while driving with a suspended or revoked license. N.J.S.A. 2C:40-22b (count twelve). Defendant was found not guilty of three counts of first-degree manslaughter, N.J.S.A. 2C:11-4 (counts one, two and three), and aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1b(1) (count seven).

The judge sentenced defendant to eight years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on counts four, five and six. These convictions were to run consecutive to each other. The judge also sentenced defendant to a consecutive eighteen-month prison term on count eight, and to concurrent five-year prison terms on counts nine, ten, eleven and twelve. At sentencing, the judge found defendant guilty of the motor vehicle offenses of driving while suspended, being an unlicensed driver, speeding, and reckless driving. Those convictions were merged with the indictable offenses for purposes of sentencing. In addition to other mandatory fines and penalties, the judge suspended defendant's driver's license for one year, consecutive to his State prison sentences.

On appeal, defendant has raised the following contentions:



A. The Trial Court Inadequately Instructed The Jury On The Issue Of Legal Causation.

B. The Court's Charge To The Jury Mischaracterized The Defense Villanueva Presented At Trial.






A. The New Jersey Supreme Court's Decisions in Carey and Molina Are Meant To Apply To Drunk-Driving Cases.

B. The Lower Court Improperly Imposed

Consecutive Sentences.

In a supplemental brief filed by defendant on his own behalf, he has raised the following contentions:









After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence.


The State developed the following proofs at trial. On March 14, 2007, defendant called his friend, co-defendant Carlos Ortiz,*fn1 to see if he wanted to buy a car engine. The two men agreed to meet at their friend Miguel Marrero's house in Neptune and then drive together to inspect the engine. They also invited five other friends, Valentin Otero, Jesse Ortero, John Richardson, Robert Rodriguez, and Moses Pacheco, to accompany them.

Around 8:00 p.m., the eight men left Marrero's house in three cars. Defendant was driving one vehicle, with Valentin and Jesse Ortero, Richardson, and Rodriguez as passengers. Ortiz drove a second vehicle, with Pacheco as his passenger. Marrero drove by himself.

The three cars drove westbound on Route 33. At a red light, defendant began revving his engine to invite Ortiz to "battle" or "race" with him. As soon as the light turned green, defendant sped off aggressively, with Ortiz in hot pursuit. The two vehicles began zigzagging through traffic as they attempted to pass each other. The posted speed limit was 45 miles per hour. However, defendant and Ortiz reached speeds of up to 90 miles per hour. Marrero did not attempt to keep up with the two men.

Defendant and Ortiz eventually approached an intersection, where Route 33 met West Bangs Avenue. At that point, Ortiz was ahead of defendant's vehicle. At the intersection, Lazarus Roseboro was driving his car eastbound on Route 33. He had a green left-turn arrow and he began to turn left at the intersection onto West Bangs Avenue. Roseboro saw Ortiz's headlights approaching the intersection at a high rate of speed. Because he had a green left-turn arrow, however, Roseboro thought the other vehicle would slow down and stop. Roseboro did not see defendant's vehicle.

Ortiz and Pacheco saw Roseboro turning and Ortiz swerved around Roseboro's car into the oncoming eastbound lane of traffic. Ortiz avoided colliding with Roseboro or any other vehicle.

However, defendant was unable to avoid Roseboro's car. At that point, he was directly behind Ortiz's vehicle and could not brake in time. Defendant crashed his car into Roseboro's vehicle and the resulting collision catapulted both cars about seventy-five yards away from each other.

Three of the passengers in defendant's car, Valentin and Jesse Ortero and Richardson were pronounced dead at the scene. Roseboro sustained serious injuries to his shoulder, scapula, spinal cord, legs, back, head and eye. Defendant was transported to a trauma center and survived the crash. Rodriquez suffered only bruises and some superficial scratches. Ortiz and Pacheco were unhurt.

Neither defendant nor Ortiz testified at trial.


Defendant first argues the trial judge did not properly charge the jury on the issue of causation. Specifically, defendant contends that his defense focused on the issue of proximate cause, alleging that Roseboro's left turn into the intersection was reckless and broke the chain of causation between defendant's actions and the victims' deaths. Defendant argues the judge failed to adequately explain the issue of proximate cause and the factual basis supporting his contention. He also asserts the judge did not properly respond to a subsequent question raised by the jury that requested a further explanation of proximate cause.

It is undisputed that "[a]ppropriate and proper jury charges are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Ibid. The charge must be read as a whole to determine whether there was any error. State

v. Adams, 194 N.J. 186, 207 (2008). Having applied these standards to the judge's charge in this case, we perceive no error warranting a reversal.

An essential element of the offense of vehicular homicide is "causation." The State must prove the defendant caused the victim's death by driving the vehicle recklessly. N.J.S.A. 2C:11-5a. The "causation" element of vehicular homicide has two components. The first is a threshold "'but-for' test under which the defendant's conduct is 'deemed a cause of the event if the event would not have occurred without that conduct.'" State v. Pelham, 176 N.J. 448, 460, cert. denied, 540 U.S. 909, 124 S. Ct. 284, 157 L. Ed. 2d 198 (2003) (quoting State v. Martin, 119 N.J. 2, 11-13 (1990)). The "but-for" test of causation is defined in N.J.S.A. 2C:2-3 as:

a. Conduct is the cause of a result when: (1) It is an antecedent but for which the result in question would not have occurred; and

(2) The relationship between the conduct and result satisfied any additional causal requirements imposed by the code or by the law defining the offense.

However, in certain cases, where an intervening cause may have affected a defendant's liability for his actions, a "culpability assessment" must also be made. Pelham, supra, 176 N.J. at 460. This part of the definition of "causation" is set forth in N.J.S.A. 2C:2-3(c), which provides:

When the offense requires that the defendant recklessly or criminally negligently cause a particular result, the actual result must be within the risk of which the actor is aware or, in the case of criminal negligence, of which he should be aware, or, if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

Under the culpability assessment,

[w]hen the actual result is of the same character, but occurred in a different manner from that designed or contemplated, it is for the jury to determine whether intervening causes or unforeseen conditions lead to the conclusion that it is unjust to find that the defendant's conduct is the cause of the actual result. Although the jury may find that the defendant's conduct was a 'but-for' cause of the victim's death . . . it may nevertheless conclude . . . that the death differed in kind from that designed or contemplated or that the death was too remote, accidental in its occurrence, or dependent on another's volitional act to justify a . . . conviction. [State v. Martin, supra, 119 N.J. at 13.]

The "intervening cause" based on "another's volitional act" is conduct that occurs after the defendant's initial conduct and before the end result, which alters "'the natural course of events that might have connected a wrongful act to an injury.'" Pelham, supra, 176 N.J. at 461 (citation omitted). The intervening cause thereby becomes the proximate cause of the victim's injury, as the causal connection between the defendant's act and the victim's injury has been destroyed. Id. at 462.

The Model Jury Charge for "Vehicular Homicide: (Death by Auto or Vessel Without Drunk Driving or Refusal)" (2004) requires, in appropriate cases, that both the "but-for" test of causation and the concept of proximate cause be charged to the jury. The Model Charge states, "[i]n order to find that the defendant caused (victim's) death, you must find that (victim) would not have died but for defendant's conduct." A footnote to this portion of the charge, which is based upon N.J.S.A. 2C:2-3a(1), states that "[i]f proximate cause is an issue, N.J.S.A. 2C:2-3c should be charged."

In this case, Judge Jamie S. Perri correctly found the jury needed to consider both of these principles. First, the jury had to determine whether defendant's conduct was a "but-for" cause of the victims' deaths, meaning the deaths would not have occurred without it. Based upon defendant's position on the evidence,*fn2 however, the court properly found the jury also needed to be charged on the concept of proximate cause. The judge based her decision upon defendant's contention that he was not criminally responsible for the deaths of the victims due to Roseboro's "volitional act" of making a left-hand turn into the intersection which, in defendant's view, broke the chain of causation as it applied to his actions that night.

Contrary to defendant's contention on appeal, the trial judge clearly, fully, and accurately instructed the jury on these concepts and on the parties' respective positions concerning them. The judge began the charge on vehicular homicide by specifically explaining the statutory definition of "causation":

In order for you to find defendant guilty of this crime[,] the State must prove the following elements beyond a reasonable doubt. 1, that the defendant was driving a vehicle. 2, that the defendant caused the death of Valentin Otero, Jesse Otero and John Richardson. And, [3] that the defendant cause such death by driving his vehicle recklessly.

In order for you to find the defendant caused the deaths of Valentin Otero, Jesse Otero and John Richardson, you must find that they would not have died but for the defendant's conduct. The relevant statute regarding this charge provides that, "The actual result must be within the risk of which the actor is aware, or the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent upon another's volitional act to have a just bearing on the [actor's] liability or on the gravity of his offense."

Judge Perri then immediately repeated the explanation of both the "but-for" test of causation, and how that could be affected by the "volitional act" of another in terms of proximate cause:

As I previously explained*fn3 causation has a special meaning under the law. To establish causation the State must prove two elements, each beyond a reasonable doubt. First, that but for the defendant's conduct, Valentin Otero, Jesse Otero, and John Richardson would not have died. Second, the State must prove beyond a reasonable doubt that the deaths of Valentin Otero, Jesse Otero, and John Richardson must have been within the risk of which . . . the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result of the defendant's conduct and must also not be too remote, too accidental in its occurrence or too dependent on another's volitional act to have a just bearing on defendant's liability or on the gravity of his offense. In other words[,] the State must prove beyond a reasonable doubt that the deaths of Valentin Otero, Jesse Otero and John Richardson were not so unexpected or unusual that it would be unjust to find the defendant guilty of [vehicular homicide].

The judge then explained the State's factual contentions:

[I]n this case, the State claims that [defendant] and Carlos Ortiz were involved in a street race and as part of this race were jockeying for position and changing lanes as they sped up Route 33 in excess of the posted speed limit. The State further claims that the defendants were involved in this activity when they approached the intersection of Route 33 and West Bangs Avenue where it was Lazarus Roseboro had a green left turn arrow and was properly making a left-hand turn. The State claims that [Ortiz] swerved to avoid Roseboro but that [defendant] who was close behind Ortiz continued into the intersection without [braking] and struck Roseboro resulting in a collision that claimed the lives of Valentin Ortero, Jesse Ortero and John Richardson.

Finally, Judge Perri summarized the positions of defendant and Ortiz concerning their proximate cause argument:

[Defendant and Ortiz] argue that evidence has been presented which shows that they were proceeding westbound on Route 33 and had a green light when Lazarus Roseboro suddenly made a left turn into their lanes of travel. The defendants point to Roseboro's own testimony that he saw headlights approaching and smiled to himself as he made his turn because he believed oncoming traffic had a red light and would have to stop for him.

[Defendant] argues that but for Roseboro's action of making a left-hand turn in front of him under these circumstances, the collision would not have occurred.

[Ortiz] also argues that but for Roseboro's actions the collision would not have occurred but also points out that despite Roseboro's actions[,] he was able to successfully avoid contact with Roseboro's vehicle and thus it was [defendant's] actions alone that caused the collision with the injuries sustained by the occupants of the vehicle.

Defendant contends that, by using the "but for" language in the description of his position on the facts presented in the case, the judge failed to adequately apprise the jury of his proximate cause argument. He asserts the judge should have specifically stated that his position was that Roseboro's left-hand turn into the intersection was an intervening cause which was a volitional act that relieved him of criminal responsibility. Read in the context of the entire charge, however, the judge's instruction did just that.

After thoroughly explaining the concept of proximate cause, Judge Perri told the jury that defendant's position was "that[,] but for Roseboro's action of making a left turn in front of him under these circumstances, the collision would not have occurred." This language fully encompassed and explained defendant's argument, that Roseboro's "volitional act" of making a left-hand turn into the intersection was an intervening cause of the crash.

During the charge conference, defendant's counsel stated that "Roseboro breached a standard of duty in the civil law by doing what we consider, what we thought that the proofs indicated by making a left turn when he should not have made a left turn." Counsel therefore raised the need to charge the jury on Roseboro's "duty . . . to observe before he makes his left-hand turn." However, counsel did not ask that any particular language be used by the judge to present either defendant's position on the facts or on the applicable law of causation. Counsel did not submit a proposed jury charge and, instead, advised the judge he "just wanted to review what [Y]our Honor was going to submit."

It is well established that a party is not entitled to have the jury charged in his or her own words. State v. Thompson, 59 N.J. 396, 411 (1971). "If the subject matter is adequately covered in the text and purport of the whole charge, no prejudicial error comes into existence." Ibid. Contrary to defendant's contention, the jury was thoroughly instructed in accordance with the Model Jury Charge for vehicular homicide on causation and proximate cause. It was fully apprised of defendant's argument that Roseboro's volitional act of turning into the intersection was an intervening cause of the crash which relieved him of criminal responsibility for what happened. Defendant's argument therefore lacks merit.

Defendant also argues that the judge did not adequately respond to the jury's subsequent question on causation. We disagree.

The jury had been given a written copy of the jury charge. Referring to the causation section of the charge, the jury asked for an additional instruction, "in layman's terms," on the meaning of the phrases "but for" and "another's volitional act" as used in the charge. Outside the presence of the jury, defendant's counsel argued that Roseboro was the only person who could have committed a "volitional act" which broke the chain of causation with regard to his liability. However, Ortiz's attorney argued that defendant's volitional conduct must also be considered. Judge Perri ruled as follows:

I think to properly respond to the jury, it should be explained to them, again, they are required to consider each defendant individually or independently. So, when you talk about another's volitional act, it is someone other than the defendant that you are considering at that point in time. I think that's the only proper way to explain it to them because, certainly, Mr. Konzelmann [defendant's counsel], your argument makes sense as to your client. But we also have Mr. Ortiz who might be considered a volitional act as to your client. Mr. Roseboro may be another.

When the jury returned, the judge responded to its question as follows:

With regard to your request that you be provided an explanation in layman's terms of the statute, that's very difficult. The statute is written in a specific way to convey a certain idea, and without running the risk of doing violence to the statute or suggesting to you some interpretation, I believe that if the jury reads the entire paragraph in its context, you'll be able to understand it. I really can't give you any more clarification than the [L]egislature gave you in explaining the factors that you need to take into consideration in analyzing the "but for" requirement.

With regard to the second question about another's volitional act, the phrase "another's volitional act" means the voluntary action of anyone other than the defendant whose actions you are considering.

If you are considering [Ortiz,] it would be the actions of anyone other than [Ortiz].

If you are considering [defendant,] it would be the actions of anyone other than [defendant.]

Thus, the judge again confirmed to the jury that "another's volitional act" could include the act of anyone other than the defendant the jury was considering at that time. The jury was instructed that, in defendant's case, it could consider the acts of Roseboro, Ortiz, or any other individual as breaking the causal link between his actions and the victims' deaths. Contrary to defendant's contention, the judge's response to the jury's question was accurate as to the law and the facts developed at trial. State v. Green, supra, 86 N.J. at 287. There is, therefore, no reason to disturb the jury's verdict on the basis of the judge's charge to the jury.


Defendant next argues the trial judge erred in permitting the State to play Robert Rodriguez's videotaped statement to the jury. We disagree.

Rodriguez was the only passenger who survived the crash. At the scene, he told police defendant was "driving crazy," "flying," and speeding at ninety miles per hour. A few hours later, Rodriguez went to the police station with his mother and gave a sworn statement that was recorded on videotape. He again stated defendant had been "flip-flopping" between lanes and was driving up to ninety miles per hour before the crash occurred. He remarked that he had even been joking with the other passengers about how fast defendant was driving and stated to his fellow passengers, "we're going fast enough that he could kill us."

At trial, however, Rodriguez claimed he did not remember what he had told the police. He said he disagreed with most of what he said on the videotape; he was "overwhelmed" at the time of his statement; and he exaggerated what happened because he was angry that three of his friends had died. Because Rodriguez's trial testimony conflicted with his sworn statement on the videotape, the trial judge conducted a Rule 104 hearing as required by State v. Gross, 121 N.J. 1 (1990). After the hearing, the judge held that the statement was admissible under N.J.R.E. 803(a)(1).

Our review of evidentiary rulings is limited. "Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied, sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We perceive no abuse of discretion in the judge's decision, following a Gross hearing, to admit Rodriguez's prior statement.

N.J.R.E. 803 provides in part:

The following statements are not excluded by the hearsay rule:

(a) PRIOR STATEMENTS OF WITNESSES. A statement previously made by a person who is a witness at trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:

(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability.

Thus, the prior inconsistent statement of a prosecution witness may be introduced against a defendant as substantive proof of guilt if the statement was made under certain circumstances which are indicative of the statement's reliability. Gross, supra, 121 N.J. at 9.

A witness's claim of a failed memory may be considered an inconsistent statement. Because "the unwilling witness [often takes] refuge in forgetfulness," a lack of recollection is considered an "inconsistency" sufficient to admit the witness's previous statement. State v. Brown, 138 N.J. 481, 542 (1994). When a prior statement is allowed into evidence, the jury will hear both the statement at trial, and the prior statement, and is then free to believe whichever version of events it finds to be credible. Id. at 542-44.

Courts hold a Gross hearing when a witness recants his or her statement in front of the jury; specifically, when the in-court testimony differs from the out-of-court prior statement and the witness repudiates the prior statement once confronted with it. During this hearing, the court, outside the presence of the jury, determines if the circumstances surrounding the witness making his prior statement establish its reliability, which must be proven by the State by a preponderance of the evidence. Gross, supra, 121 N.J. at 15. The court looks to fifteen factors:

(1) the declarant's connection to and interest in the matter reported in the out of court statement; (2) the person or persons to whom the statement was given; (3) the place and occasion for giving the statement; (4) whether the declarant was then in custody or otherwise the target of investigation; (5) the physical and mental condition of the declarant at the time; (6) the presence or absence of other persons;

(7) whether the declarant incriminated himself or sought to exculpate himself by his statement; (8) the extent to which the writing is in the declarant's hand; (9) the presence or absence, and the nature of, any interrogation; (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication; (11) the presence or absence of any motive to fabricate; (12) the presence or absence of any implicit pressures, inducement or coercion for making the statement; (13) whether the anticipated use of the statement was apparent or made known to the declarant; (14) the inherent believability or lack of believability of the statement; and (15) the presence or absence of corroborating evidence. [Id. at 10.]

The judge considered all of these factors, applied them to the testimony presented at the Gross hearing and found that Rodriguez's statement "contain[ed] sufficient indicia of reliability to permit its submission to the jury." With regard to factors one through four, Rodriguez was a material witness to the crash; he gave his statements directly to the police, both at the scene and later at the station; and he was neither in custody nor the "target of investigation."

While Rodriguez claimed at trial that he was "overwhelmed," this was not corroborated by the videotape, which indicates he was responsive to the officer's questions. According to the judge, the interview was a "discussion," not an "interrogation," and, although Rodriguez was "upset about the loss of his friends, his testimony did not in any way suggest he was being unduly led" by the police. Rodriguez arrived at the station with his mother and he left with her as soon as the interview was completed. He did not incriminate or exculpate himself. The entire interview was videotaped and Rodriguez was sworn before being questioned. Thus, factors five through twelve also supported the admission of the statement.

Finally, Rodriguez knew he was speaking to police, who were investigating the crash. His statement was corroborated by testimony of other witnesses at trial, who confirmed the manner in which defendant had been driving as he and Ortiz approached the intersection. Thus, factors thirteen, fourteen and fifteen of the Gross test also support the judge's determination to admit the statement.

We are satisfied the judge's fact findings are supported by sufficient credible evidence in the record. Rodriguez's prior inconsistent statement was properly admitted under N.J.R.E. 803(a)(1).


Defendant argues the trial judge erred by precluding his counsel from fully exploring Lazarus Roseboro's credibility. At trial, defense counsel questioned Roseboro about his driving experience. Roseboro testified he learned to drive when he was fifteen and had been driving for twenty-four years. At sidebar, counsel asked to be permitted to bring up that Roseboro only had a New Jersey learner's permit, and not a driver's license, at the time of the crash. The judge immediately convened a Rule 104 hearing. At the hearing, Roseboro testified he had driven without a license in a number of different states over the years, owned a car at one time, had only been pulled over by police once, and had obtained a New Jersey license after the collision.

At the conclusion of the hearing, the judge ruled the defense could examine Roseboro as to his driving experience, but not as to the status of his driver's license. This ruling was consistent with the judge's earlier decision to bar the State from discussing defendant's licensure status. Instead, she determined that the relevant consideration was how Roseboro and defendant were driving on the night of the crash. Their licensure status, the judge ruled, was not relevant to that critical issue.

A judge "is accorded broad discretion in determining whether or not to admit evidence alleged to be relevant and has, as well, broad discretion in determining that even relevant evidence should be excluded if its probative value is outweighed by undue prejudice." State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002). Consequently, the judge's ruling is entitled to deference, unless it is "a clear error of judgment or so wide of the mark that a manifest denial of justice results." Ibid. We find no abuse of discretion here.

Defense counsel was permitted to question Roseboro in detail concerning the key issue in this area - - whether Roseboro was driving improperly on the night of the crash. Roseboro was thoroughly interrogated about his driving experience and his claim that he had a green turn signal arrow at the intersection. Moreover, Roseboro volunteered on cross-examination that, for twenty-four years, "I been driving enough, enough where -- I didn't have my license, and so I was driving when I could drive or when I had to drive, and never been speeding, never been in no car accident, very cautious, not wanting to get pulled over." Thus, despite the judge's ruling, the jury was aware of Roseboro's licensure status.

In view of our limited standard of review, we cannot find that the trial judge abused her discretion in this discretionary, evidentiary ruling.


With regard to his sentence, defendant argues the trial judge erred by imposing three consecutive eight-year sentences for his vehicular homicide convictions, together with a consecutive eighteen-month term for his conviction of assault by auto causing serious bodily injury. We disagree.

Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, an appellate court should only overturn the sentence when it is clearly unreasonable so as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obligated to affirm. State v. Cassady, 198 N.J. 165, 180 (2009).

In setting forth her reasons for imposing consecutive sentences, Judge Perri first determined whether any aggravating or mitigating factors applied. The judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6) and (9). With regard to factor three, the judge noted defendant's ten juvenile arrests and his poor driving record. Indeed, prior to this case, defendant had been cited five times for driving without a license or driving while suspended. Just one month before the crash, defendant was stopped on the Garden State Parkway and charged with multiple motor vehicle violations, including speeding, driving too close, and driving while his license was suspended or revoked.

In finding aggravating factor six, the judge noted defendant's 2005 conviction for burglary, for which he received a probationary sentence, and his 2006 convictions for possession of a weapon for an unlawful purpose and theft by unlawful taking. He received a four-year prison sentence for these offenses. In 2007, he was sentenced to eighteen months in prison on a receiving stolen property charge. In analyzing this record, the judge stated, "[a]lthough defendant is only 23 years of age, his record shows an escalation of violence, antisocial behavior and disregard for the impact his actions have on others."

The judge also found aggravating factor nine, because "[i]t is clear that prior efforts at non-custodial intervention and even state prison sentences have had little effect in deterring this defendant from engaging in criminal behavior and otherwise violating the law." The judge considered all of the statutory mitigating factors, but was unable to find any that applied.

Turning to the issue of whether the sentences should be consecutive or concurrent to each other, the judge correctly noted there is no presumption in favor of concurrent sentences, and the sentencing range is the maximum sentence for each offense added to every other offense. State v. Abdullah, 184 N.J. 497, 512-13 (2005). Five factors that may be considered when imposing consecutive sentences are:

(a) the crimes and their objectives were predominantly independent of each other; (b) the crimes involved separate acts of violence; (c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior; (d) multiple victims were involved; or (e) the convictions for which the sentences are imposed are numerous. [State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).]

In determining to impose consecutive sentences here, the judge was also appropriately guided by the Supreme Court's decisions in State v. Carey, 168 N.J. 413, 428-29 (2001) and State v. Molina, 168 N.J. 436, 442 (2001). In those cases, which involved vehicular homicides caused by drunk driving, the Court ruled that a crime involving death or serious injury to multiple victims represents "especially suitable" circumstances for imposing consecutive sentences because the "total impact" to the victims exceeds that of a single individual. Molina, supra, 168 N.J. at 442; see also Carey, supra, 168 N.J. at 428-29. The Court also held that, "in order to facilitate sentencing under Yarbough in vehicular homicide cases, the multiple-victims factor is entitled to great weight and should ordinarily result in the imposition of at least two consecutive terms when multiple deaths or serious bodily injuries have been inflicted upon multiple victims by the defendant." Carey, supra, 168 N.J. at 429-30.

Defendant attempts to distinguish Carey and Molina by arguing these two cases involved drunk drivers, not drivers who recklessly caused deaths by driving. But, this is a distinction without a difference. The point of the Court's holdings was that consecutive sentences could be imposed when a single act by a defendant resulted in multiple victims. It was not limited only to vehicular homicides involving drunk driving. Carey, supra, 168 N.J. at 429-30.

In properly applying Carey and Molina in this case, Judge Perri found:

In considering the Yarbough factors, this Court finds, as did the court in Carey, that great weight should be given to the multiple victims factor. The emotional devastation of the Ortero family in losing two sons on the same day and under such violent, senseless circumstances is both immeasurable and unimaginable.

James Richardson's family similarly has sustained a loss that can never be filled. None of these families will see their sons. brothers, cousins, nephews or uncles . . . go on to marry and have children of their own or enjoy their company and support as they grow older.

To permit these three sentences to run concurrent to each other would demean the value of the lives of the victims, and would violate the first ten[et] of Yarbough which is that there should be no free crimes. It would also diminish the responsibility owed by the defendant who, while having the lives and well[-]being of four other individuals in his hands as the driver of the vehicle, nonetheless chose to drive recklessly for his personal satisfaction and amusement.

Similarly, although the injuries and losses sustained by defendant's fourth victim, Lazarus Roseboro, were relatively minor when compared to those suffered by the decedents and their families, these injuries nonetheless have had an impact on his life. He continues to suffer their effects.

Therefore, the judge ruled the sentences for vehicular homicide and assault by auto should run consecutively to each other.

Under the circumstances of this case, this is simply not a sentence that "shocks the judicial conscience." Roth, supra, 95 N.J. at 364. There is, therefore, no reason to disturb the sentence imposed by the judge.


The arguments raised in defendant's supplemental brief are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2). They largely parrot the points raised by defendant's appellate counsel. We add only the following brief comments concerning defendant's speedy trial claim. In his supplemental brief, defendant argues that thirty-nine months passed between his arrest on March 14, 2007 and the start of his trial on June 15, 2010 and, because of this, his Sixth Amendment right to a speedy trial was violated. We disagree.

Defendant raised this claim in a motion that was considered by the trial judge on January 29, 2010. In denying the motion, the judge considered and balanced the "length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972).

The judge found that defense counsel for both defendants had filed a number of pre-trial motions, including a motion to dismiss the indictment and a severance motion. Ortiz changed counsel during this time. The matter was also transferred between three different judges. Defendant was already incarcerated on separate charges and was earning gap time credits. The trial began within six months of the judge's decision denying the motion. Under these circumstances, we cannot find that the judge's determination was "clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).


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