NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 29, 2013
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-08-02024.
Jacobs & Barbone, P.A., attorneys for appellant (Louis M. Barbone and YooNieh Ahn, on the brief).
James P. McClain, Acting Atlantic County Prosecutor, attorney for respondent (John Santoliquido, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief.
Before Judges Fisher and Koblitz.
Defendant appeals the severity of his sentence. Although indicted for second-degree vehicular homicide, N.J.S.A. 2C:11-5, and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2, he was convicted at trial only of second-degree leaving the scene of a fatal motor vehicle accident, N.J.S.A. 2C:11-5.1. He was sentenced to seven and one-half years with no period of parole ineligibility. As the imposition of this sentence was within the discretion of the trial court, we affirm.
In the early morning hours of September 6, 2010, after drinking and smoking marijuana, the sixteen-year-old victim and two other boys rode their bicycles by defendant's home. The boys kicked defendant's parked car's side-view mirror. Defendant jumped into his car and sped after the three boys. He struck and killed the victim, who defendant maintained caused the accident by turning his bicycle into defendant's car. Defendant left the scene, but approximately three hours later turned himself in to the local police station, admitting he was the driver.
Defendant was thirty-three years old at the time he was sentenced on December 4, 2012. His prior record consisted of two juvenile adjudications in 1992, a prior adult conviction for possession of a BB gun in 2001, and disorderly persons convictions for simple assault in 2005 and hindering apprehension in 2007 and again in 2008. He also had numerous motor vehicle infractions on his driving record. On the positive side, he was an involved father-figure for his five nieces and nephews and his girlfriend's four adopted children.
Defendant raises the following points on appeal:
POINT I: STANDARD FOR REVIEW
POINT II: THE TRIAL COURT ERRED IN REJECTING THE FACTS AND CIRCUMSTANCES COMPELLING SENTENCE IN THE THIRD DEGREE PURSUANT TO N.J.S.A. 2C:44-1(f)(2).
POINT III: THE TRIAL COURT ERRED IN REJECTING APPLICABLE MITIGATING FACTORS 5, 7, 10 AND 12 AT THE TIME OF SENTENCING, ...