June 10, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ALMON TAYLOR, JR., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-06-1505-B.
Melissa Rosenblum-Pisetzner argued the cause for appellant (Law Offices of Joseph A. Levin, L.L.C., attorneys; Ms. Rosenblum-Pisetzner, on the brief).
Deborah A. Hay argued the cause for respondent (James P. McClain, Acting Atlantic County Prosecutor, attorney; Ms. Hay, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Haas.
Defendant Almon Taylor, Jr. was charged by an Atlantic County Grand Jury in a one-count indictment, No. 10-06-1505-B, with second-degree vehicular homicide, N.J.S.A. 2C:11-5. He also received motor vehicle citations for driving while intoxicated (DWI), N.J.S.A. 39:4-50, and reckless driving, N.J.S.A. 39:4-96.
After a jury trial, defendant was found not guilty of vehicular homicide. As required by State v. DeLuca, 108 N.J. 98, 111 (1987),  Judge Kyran Connor dismissed the jury and then considered the two motor vehicle offenses. The judge found defendant guilty of both DWI and reckless driving.
On the DWI charge, the judge sentenced defendant to ninety days in jail, a two-year driver's license suspension, thirty days of community service and three years of using an interlock device. The judge sentenced defendant to sixty days in jail, and a ten-year license suspension on the reckless driving charge. Both sentences were to run consecutively to each other. The judge also assessed appropriate fines, penalties, and surcharges.
Defendant's appeal is limited to the sentence he received and he raises the following contentions:
AS A MATTER OF LAW, THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES ON THE DWI AND RECKLESS DRIVING.
THE TRIAL COURT'S IMPOSITION OF A TEN[-]YEAR LOSS OF LICENSE PURSUANT TO [N.J.S.A.] 39:5-31 ON THE RECKLESS DRIVING WAS IMPROPER AND ERRONEOUS.
THE FACTUAL BASIS FOR BOTH THE DWI AND RECKLESS DRIVING OFFENSE WAS THE SAME -[DEFENDANT'S] BAC OF .16 – AND THEREFORE SHOULD MERGE AT SENTENCING.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
On July 28, 2009, defendant was driving a car which struck and killed a thirteen-year boy, Cody Sanchez. Cody was emerging onto the road from a dirt path at the time he was struck. A passenger in defendant's car testified three other boys emerged from the same path onto the road immediately prior to defendant striking Cody. However, defendant told the police he did not see any of the boys. Defendant was familiar with the area of the accident and knew that "kids often rode bikes there."
Defendant's blood alcohol content (BAC) at the time of the accident was .16, twice the legal limit. He had previously been convicted of DWI in 1995 and 1997. Defendant had six other motor vehicle offenses, including speeding, going the wrong way on a one-way street, and careless driving. Four months before the trial in this case, defendant was charged with driving while suspended.
Judge Connor explained the reasons for the sentence he imposed on the record on August 24, 2012 and, on October 18, 2012, he filed a written amplification of his findings of fact and conclusions of law pursuant to Rule 2:5-1(b). Because defendant's 1997 DWI conviction occurred more than ten years before his 2009 offense, the judge treated defendant's current DWI conviction as a second offense for purposes of sentencing. See N.J.S.A. 39:4-50(a)(3) (providing that "if a third offense occurs more than 10 years after the second offense, the court shall treat the third conviction as a second offense for sentencing purposes"). Thus, a two-year license suspension was mandated under N.J.S.A. 39:4-50(a)(2).
In determining to sentence defendant to the maximum penalty of ninety-days in jail, the judge looked to the aggravating and mitigating sentencing factors set forth N.J.S.A. 2C:44-1 for guidance. He weighed aggravating factor three, the risk defendant would commit another offense, "very, very strongly against" defendant. N.J.S.A. 2C:44-1(a)(3). Because defendant had picked up three DWIs over the course of fourteen years and was addicted to alcohol, the judge found that his risk of re-offending was "off the charts." Due to his extremely poor driving record, the judge also applied aggravating factor six, the extent and seriousness of the prior offenses. N.J.S.A. 2C:44-1(a)(6). Finally, the judge found a strong need to deter defendant. N.J.S.A. 2C:44-1(a)(9). Because prior license suspensions had not worked, the judge determined that a jail sentence was warranted.
The judge found mitigating factor four, substantial grounds to excuse defendant's conduct, due to his alcohol addiction, and mitigating factor six, because defendant was required to participate in community service as a condition of his sentence. N.J.S.A. 2C:44-1b(4) and (6). Finding that the aggravating factors substantially outweighed the mitigating factors, the judge imposed a ninety-day prison sentence.
Turning to the reckless driving conviction, Judge Connor considered the factors set forth in State v. Moran, 202 N.J. 311, 328-29 (2010). The judge found defendant's "conduct posed a high risk of danger to the public[;]" he had an extremely poor driving record; and there was a substantial risk he would commit another violation. The judge further found defendant had been infraction free for six years prior to the present case. The judge considered defendant's character and attitude and found that, while defendant expressed regret over his actions, his addiction made it likely he would re-offend. For that same reason, the judge found the circumstances that led to defendant's conviction were likely to recur and there was a strong need to deter him from doing so. Finally, the judge found that a license suspension would not impose an undue hardship because defendant's license had already been suspended and he was no longer working.
Based on these findings, the judge determined that a sixty-day jail sentence and a ten-year license suspension were warranted. He also ordered that this sentence run consecutive to the sentence he had imposed on the DWI conviction. In his amplification letter, the judge explained the two offenses were different and there was a strong need to deter defendant from committing another offense of this nature.
Our scope of review is limited. We are limited to determining whether the trial judge's findings "could reasonably have been reached on sufficient credible evidence present in the record." State v. Johnson, 42 N.J. 146, 162 (1964).
On appeal, defendant first argues that the judge erred by imposing consecutive sentences for his DWI and reckless driving convictions. He asserts the judge failed to consider the factors set forth in 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 that consecutive, rather than concurrent sentences were warranted. We disagree.
"[M]otor vehicle violations are not offenses under the Code of Criminal Justice, and hence the Code's provisions . . . do not apply to . . . a violation of the Motor Vehicle Act." State v. Hammond, 118 N.J. 306, 307 (1990). Therefore, Yarbough, where the Supreme Court established the factors a court must consider in determining whether the sentences for indictable offenses under the Code should be consecutive or concurrent, does not apply here.
Judge Connor fully explained why he imposed consecutive sentences under the circumstances of this case. First, he found the two statutes under which defendant was convicted "were enacted to address separate social harms." He explained that the DWI statute, N.J.S.A. 39:4-50, "reflects a policy judgment by the [L]egislature that driving while intoxicated, in and of itself, is worthy of punishment." On the other hand, he observed that the reckless driving statute, N.J.S.A. 39:4-96, "explicitly addresses the manner in which a motor vehicle is operated." Thus, two separate offenses had been committed.
Judge Connor next found that the proofs necessary to establish each offense were not identical. Defendant committed the offense of DWI once he got behind the wheel in an intoxicated state. While his .16 BAC surely contributed to his reckless driving, the judge found that, independent of defendant's intoxication, he still drove recklessly. Defendant was familiar with the area and knew that children rode their bicycles from a pathway onto the road. The passenger in his car saw three boys cross the street before defendant struck the victim. Had defendant paid attention, Cody Sanchez would not have been killed.
Finally, the judge found that there was a strong need to deter defendant from committing another offense like this in the future. Prior and shorter license suspensions had not worked. Defendant continued to be addicted to alcohol and needed "to stay off the road" for an extended period. Under the circumstances of this case, we perceive no basis to second guess Judge Connor's decision to impose consecutive sentences.
Defendant next argues the judge erred in imposing a ten-year license suspension for the reckless driving conviction. This argument lacks merit. A driver's license suspension is not an automatic sanction for reckless driving. However, N.J.S.A. 39:5-31 authorizes the sentencing judge to impose a suspension if the judge determines there are aggravating circumstances, that is, the driver "willfully violat[ed] the reckless-driving statute [by engaging] in conduct that is highly 'likely to endanger a person or property.'" Moran, supra, 202 N.J. at 323-24 (quoting N.J.S.A. 39:4-96). In determining whether to impose a suspension for such conduct and the length of the suspension, the Supreme Court has required that the judge consider:
the nature and circumstances of the defendant's conduct, including whether the conduct posed a high risk of danger to the public or caused physical harm or property damage; the defendant's driving record, including the defendant's age and length of time as a licensed driver, and the number, seriousness, and frequency of prior infractions; whether the defendant was infraction-free for a substantial period before the most recent violation or whether the nature and extent of the defendant's driving record indicates that there is a substantial risk that he or she will commit another violation; whether the character and attitude of the defendant indicate that he or she is likely or unlikely to commit another violation; whether the defendant's conduct was the result of circumstances unlikely to recur; whether a license suspension would cause excessive hardship to the defendant and/or dependants; and the need for personal deterrence. . . . Any other relevant factor clearly identified by the court may be considered as well. It is not necessarily the number of factors that apply but the weight to be attributed to a factor or factors.
[Id. at 328-29.]
As already stated, Judge Connor considered each of these factors and, after carefully weighing and balancing them, determined that a ten-year license suspension was fully warranted. Because of defendant's actions, a thirteen-year-old boy was killed. Defendant's level of intoxication was twice the legal limit. He ignored both his own personal knowledge that children came onto the road from the dirt path at that location and the fact that three other children could plainly be seen coming from the path onto the street before defendant struck the victim. Defendant has two prior DWIs and his driving record is deplorable. He is addicted to alcohol and has done nothing concrete to address that addiction. Thus, there is ample evidence in the record to support the judge's decision to suspend defendant's license for a lengthy period for reckless driving and, as discussed above, to make that sentence consecutive to that imposed on his DWI conviction.
Finally, defendant argues that the conviction for reckless driving should have been merged into his conviction for DWI. We disagree.
"Two offenses will not merge when each offense requires the proof of an additional fact not required by the other." State v. Eckert, 410 N.J.Super. 389, 400 (App. Div. 2009). Under N.J.S.A. 39:4-50, DWI
requires proof that an individual was operating a motor vehicle, whether or not on a highway, while his ability to do so was deleteriously affected by alcohol. The essence of the offense is the impaired condition of [the] defendant's physical coordination or mental faculties rather than the manner in which he is driving. Indeed the vehicle need not actually be moving for one to be convicted.
[State v. Roenicke, 174 N.J.Super. 513, 517 Law Div. 1980.]
On the other hand, reckless driving under N.J.S.A. 39:4-96
necessitates the driving of a vehicle on a highway 'heedlessly, in willful or wanton disregard of the rights and safety of others, in a manner so as to endanger, or to be likely to endanger a person or property . . . .' The essence of [reckless driving] is grossly improper operation of a vehicle which threatens others.
[Id. at 517-18.]
Therefore, reckless driving is not a lesser-included offense of DWI. Both offenses have different elements and purposes. Here, defendant drove while intoxicated. However, he also wantonly disregarded the safety of the children who used that portion of the road, especially after he saw three boys come onto the road ahead of the victim. Thus, the judge did not err in denying defendant's request to merge the reckless driving offense into defendant's DWI conviction.