NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-04-0943.
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for appellant (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Michael D'Alessio, Jr., attorney for respondent.
Before Judges Harris and Guadagno.
In this appeal —— following a summary remand by the New Jersey Supreme Court —— the State challenges the Law Division's statement of reasons for the imposition of a custodial term of four years for second-degree vehicular homicide, N.J.S.A. 2C:11-5. Because we conclude that the stated rationale does not comport with N.J.S.A. 2C:44-1(f)(2), we reverse and remand for re-sentencing.
We gather the following from the indictment, plea hearing, and adult presentence investigation report related to this case.
On January 27, 2009, after a day of consuming between six and eight beers, then-seventeen-year-old defendant Richard M. Chesler got into his car, drove at almost twice the lawful speed limit, failed to stop at a stop sign on Parsonage Hill Road in Millburn, and struck another motor vehicle, resulting in its driver's death that same day. Chesler was charged with engaging in conduct which, if committed by an adult, would have constituted first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a).
On December 23, 2009, the Family Part referred Chesler's case to the Law Division pursuant to N.J.S.A. 2A:4A-26. Chesler was eighteen years old at the time of referral. On April 9, 2010, Chesler was indicted for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one); second-degree vehicular manslaughter, N.J.S.A. 2C:11-5 (count two); and first-degree vehicular homicide committed within 1, 000 feet of a school, N.J.S.A. 2C:11-5(b)(3)(a)(b)(c) (count three).
On June 29, 2010, Chesler pleaded guilty to the second-degree vehicular manslaughter charge (count two), along with the associated traffic offenses of driving while intoxicated in a school zone and speeding. In exchange for entering into this arrangement, the State agreed to dismiss all of the remaining charges. The State indicated that it would recommend a term of imprisonment of no greater than seven years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
At the plea hearing, defense counsel indicated the following:
[T]he defense intends to present letter memoranda to Your Honor concerning possible downgrade from second degree to third degree to be sentenced as a third. That's up to the court obviously, not the Prosecutor, and Your Honor has conditionally made an indication, but that depends on ...