Submitted October 11, 2017
appeal from Superior Court of New Jersey, Law Division,
Atlantic County, Indictment No. 12-12-2766.
R. Cohen, attorney for appellant.
G. Tyner, Atlantic County Prosecutor, attorney for respondent
(John J. Lafferty, IV, Assistant Prosecutor, of counsel and
on the brief).
Judges Fisher, Fasciale and Sumners.
appeal, we chiefly focus on the sentencing judge's
imposition of consecutive prison terms of twenty, seven, and
five years as a result of defendant's conviction for
first-degree aggravated manslaughter and his two convictions
for second-degree aggravated assault, all arising from a
tragic 2011 auto accident in Hamilton Township. We reject
defendant's arguments regarding his convictions, but we
remand for resentencing because the judge appears to have
applied a presumption in favor of consecutive terms in such
circumstances, and because the aggregate thirty-two year
sentence, all subject to an eighty-five percent period of
parole ineligibility, shocks the judicial conscience,
particularly when imposed on an offender who was fifty-eight
at the time of the incident and sixty-two at the time of
early Sunday afternoon in April 2 011, defendant William T.
Liepe was driving southbound on Cologne Avenue in Hamilton
Township. Although intoxicated, defendant was driving within
the fifty mile per hour speed limit and within the proper
lane of travel. Defendant, however, averted his eyes from the
roadway to observe a ballgame on the opposite side of the
road. That inattention caused defendant's vehicle to slam
into the back of a Honda Accord, which had stopped in the
same travel lane to make a left turn. And that collision
forced the Honda into oncoming traffic, causing a collision
with a northbound Cadillac Escalade. A nine-year old
passenger in the Honda was killed, and the driver as well as
another Honda passenger sustained serious permanent injuries;
occupants of the Escalade were treated for minor injuries.
vehicle struck a tree, and he was taken to a nearby hospital
for treatment. Police secured defendant's consent to draw
blood and determined he had a .192 blood alcohol content
(BAC) at that time.
was indicted and charged with: first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a); second-degree vehicular
homicide, N.J.S.A. 2C:11-5; two counts of second-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of
third-degree assault by auto, N.J.S.A. 2C:12-1(c)(2); and one
count of fourth-degree assault by auto, N.J.S.A.
2C:12-1(c)(2). Defendant moved to dismiss for various
reasons; the judge dismissed only the aggravated manslaughter
charge. We denied but the Supreme Court granted the
State's motion for leave to appeal and remanded to us to
review the interlocutory order. By way of an unpublished
opinion, we reversed and ordered reinstatement of the
aggravated manslaughter count. State v. Liepe, No.
A-5363-12 (App. Div. Apr. 10, 2014).
moved to suppress BAC evidence, arguing the State required
but lacked a search warrant for drawing defendant's blood
at the hospital. At the conclusion of an evidentiary hearing,
the judge denied the motion for reasons contained in a
commenced in September 2014 but defendant failed to appear
for the second day of jury selection; it was learned he
attempted suicide. A six-day jury trial occurred in March
2015, at the conclusion of which defendant was convicted on
all counts. He was sentenced to a twenty-year prison term on
the aggravated manslaughter conviction, consecutive five-year
and seven-year prison terms on the aggravated assault
convictions, and a concurrent one-year term on the
assault-by-auto conviction - an aggregate prison sentence of
thirty-two years. And the terms imposed on the manslaughter
and aggravated assault convictions were subject to an
eighty-five percent period of parole ineligibility, N.J.S.A.
2C:43-7.2. An amended judgment of conviction directed that
the periods of mandatory parole supervision for the three
consecutive terms should also run consecutively, for an
aggregate period of mandatory parole supervision of eleven
I. IN LIGHT OF THE FACTS OF THE CASE AND THE UNBLEMISHED
RECORD OF DEFENDANT, THE COURT'S SENTENCE WAS CLEARLY
ERRONEOUS AND "SHOCKS THE CONSCIENCE OF THE COURT."
II. THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION
FOR JUDGMENT NOTWITHSTANDING THE VERDICT AND MOTION FOR A NEW
III. THE EXTRACTION OF [DEFENDANT'S] BLOOD FOR THE
PURPOSES OF DETERMINING HIS [BAC] VIOLATED ESTABLISHED
CONSTITUTIONAL PRINCIPLES AND SHOULD HAVE BEEN SUPPRESSED.
IV. THE COURT ERRED IN ALLOWING THE STATE'S EXPERT TO
TESTIFY WITHOUT SCIENCE AND OPINE THAT [DEFENDANT] WAS SIXTY
TIMES MORE LIKELY TO BE INVOLVED IN A FATAL ACCIDENT (NOT
V. THE COURT IMPROPERLY ALLOWED BIAS AND EMOTION INTO THE
TRIAL AND ALLOWED THE STATE TO INTRODUCE HIGHLY PREJUDICIAL
PHOTOGRAPHS ALL WHICH DEPRIVED [DEFENDANT] OF HIS
CONSTITUTIONAL RIGHTS (PARTIALLY RAISED BELOW).
VI. THE COURT ERRED IN FAILING TO DISMISS A JUROR FOR CAUSE
WHEN SHE RECOGNIZED HER BEST FRIEND TREATED ONE OF THE
VICTIMS (NOT RAISED BELOW).
VII. PLAIN ERROR AND CUMULATIVE ERROR REQUIRE REVERSAL.
the exception of Point I, we find insufficient merit in
defendant's arguments to warrant further discussion
except for the following brief comments. R. 2:11-3
(e) (2) .
rejection of defendant's Point II - in which he argues
the evidence could not support a conviction of first-degree
aggravated manslaughter - is based on our earlier
interlocutory decision in reversing the pretrial dismissal of
that count. See Lombardi v. Masso, 207 N.J. 517, 538
(2011). Our rejection of defendant's Point III is based
on the fact the judge found, at the conclusion of an
evidentiary hearing, that defendant knowingly and voluntarily
consented to the drawing of blood; those findings are
deserving of our deference. See State v. Reece, 222
N.J. 154, 166 (2015). As for Point IV - in which defendant
argues prejudice from a prosecution expert's testimony
about the effect of alcohol on an individual's behavior -
we note that defendant did not object at trial, and we are
not persuaded that any error, if any occurred, was capable of
producing an unjust result. R. 2:10-2. In Point V,
defendant argues the judge allowed emotion to seep into the
trial through admission of what defendant refers to as
"highly prejudicial photographs" and through
testimony that elicited information about the victims'
injuries. Defendant, however, has not provided us with the
photographs he believes were prejudicial. And we do not view
the few examples offered by defendant about information
concerning his victims' injuries to support his argument
that the prosecutor's summation exceeded the bounds of
proper advocacy or had the effect of unnecessarily evoking
the jury's emotions. In his Point VI, defendant contends
the judge erred by failing to dismiss a juror who, upon
admission of photographs of one of the victims engaged in
physical therapy, realized the victim's therapist was a
friend. The juror brought this to the judge's attention,
and the judge questioned the ...