State v. Henry

CourtNew Jersey Court of Chancery
Citation418 N.J.Super. 481,14 A.3d 750
PartiesSTATE of New Jersey, Plaintiff,v.John HENRY, Defendant.
Decision Date20 October 2010

418 N.J.Super. 481
14 A.3d 750

STATE of New Jersey, Plaintiff,
v.
John HENRY, Defendant.

Superior Court of New Jersey,Law Division, Mercer County.

Decided Oct. 20, 2010.


[14 A.3d 752]

Mary Sparkman and John M. Jingoli, Jr., Assistant Prosecutors, for plaintiff (Joseph Bocchini, Mercer County Prosecutor, attorney).Robert E. Ramsey, Lawrenceville, for defendant (Donini & Ramsey, attorneys).OSTRER, J.S.C.[418 N.J.Super. 485] Introduction

In this municipal appeal, defendant seeks de novo review of the custodial sentence imposed after he pled guilty to driving under the influence (“DUI”) of intoxicating liquor with a blood alcohol level (“BAC”) of .30. It was defendant's third DUI conviction, but the court treated him as a second-offender under the so-called “step down” provision. N.J.S.A. 39:4–50(a)(3). The municipal court sentenced defendant to sixty days in jail, but suspended thirty days conditioned on his performing thirty days of community service and completing forty-eight hours at the Intoxicated Driver Resource Center (“IDRC”).

Defendant argues that a court may not consider defendant's extremely high BAC as an aggravating factor in sentencing because that would entail impermissibly “double-counting” an element of the offense; and no other aggravating factors justify a custodial term beyond the mandatory minimum two days. This court disagrees on both points. First, although it is well settled that a court may not use the same evidence both for sentencing purposes and to establish an element of the offense, it is likewise well settled that a court may consider it an aggravating factor when a defendant's behavior far exceeds what is necessary to satisfy an element of an offense. Second, the court concludes that other aggravating factors exist. Although the step-down provision shields defendant from the harsh penalties imposed on third-time offenders, the court may nonetheless consider the defendant's two prior convictions as aggravating factors. Defendant's prior criminal record also is an aggravating factor. Nonetheless, in light of [418 N.J.Super. 486] mitigating factors discussed below, the court imposes a sentence of one year probation, subject to conditions including fourteen days in jail and intensive alcohol treatment.

Facts and Procedural History.

Defendant entered an unconditional plea of guilty to driving under the influence. According to the police report, on November 3, 2009, shortly before eight o'clock in the morning, defendant turned left on to Emanuel Street in Hamilton Township without signaling.1 (Defendant was apparently on his way home as he lived on Emanuel Street.) He then pulled onto the

[14 A.3d 753]

wrong side of the street at the corner, and came to a stop with the rear bed of his pickup truck partially extending into Cedar Lane, obstructing traffic. Officers performed a motor vehicle stop. They observed two empty 1.75 liter bottles of vodka in the passenger compartment. Defendant smelled of alcohol. He performed poorly on field sobriety tests and was arrested. Defendant was so intoxicated that he was unable to control basic bodily functions. At headquarters, police administered the Alcotest, which measured a .30 BAC. He was later transported to a hospital because the police were concerned about his health, given his high BAC.

In his allocution before municipal court, defendant explained that he was drinking vodka and cranberry juice at home by himself “all night.” (At a sentencing hearing before this court, the defendant insisted that he did not drink in the vehicle, notwithstanding the presence of the empty vodka containers.) At around 7:30 a.m., he claimed, his mother asked him to get medicine for her at a nearby store. So, he allegedly left home to run that errand. Defendant did not contest the Alcotest's accuracy, and [418 N.J.Super. 487] admitted that he exercised poor judgment “drinking all day into the night and getting into a vehicle for any reason.”

According to the defendant's driver abstract, he was convicted on June 2, 1997, of driving under the influence on February 5, 1997, and again two days later, on February 7, 1997. The February 5, 1997, incident also involved a conviction of consumption while operating a vehicle. N.J.S.A. 39:4–51a. According to the abstract, the defendant also failed to participate, in a timely way, in the mandated counter-measures program.

The municipal court in this case suspended defendant's license for two years, and imposed a sixty-day jail term, thirty days of which was suspended, conditioned on completing forty-eight hours of IDRC and thirty days of community service. The court required an ignition interlock for three years. (Ignition interlock was discretionary before enactment of L.2009, c. 201, § 1, which made it mandatory effective January 14, 2010.) The court also imposed mandatory monetary penalties and surcharges, and the maximum fine of $1000, the range being $500 to $1000. N.J.S.A. 39:4–50(a)(2).

Before hearing this municipal appeal, this court obtained defendant's presentence report (“PSR”) in connection with a conviction for possessing a sawed-off shotgun. Defendant was sentenced on June 20, 2003, to three years' probation. Probation was conditioned upon defendant submitting to a substance abuse evaluation and following its recommendations. Defendant served three days in custody. According to the PSR, defendant agreed with the official version of the offense, which stated that a neighbor was concerned about defendant's well-being and called the police when she saw defendant's vehicle running unoccupied in defendant's driveway. When police entered defendant's home to investigate, they found him intoxicated. They also found the shotgun in the home. Defendant said he was unaware that he had left his truck running.

[418 N.J.Super. 488] In his statements before this court, defendant stated that he was a life-long alcoholic.2 He is sixty-three years old and

[14 A.3d 754]

no longer employed. His health is compromised, and he has recently been treated for circulatory issues. He stated that he lives with his eighty-seven year old mother, who is also in declining health, and suffering from impaired short-term memory and restricted mobility. She has difficulty navigating stairs without assistance, so her bed was moved to the first floor living area of the home. Defendant is principally responsible for assisting his mother.

Discussion.

The sole issue before the court is the custodial aspect of defendant's sentence. The court will first review the factors that it may generally consider in deciding whether to impose a discretionary jail sentence for a motor vehicle violation. The court will then address specifically whether it may consider as an aggravating factor a defendant's extremely high BAC. The court will then apply its conclusions to the facts and impose a custodial sentence, as a condition of probation.

Factors Governing Imposition of Custodial Sentence for DUI.

The drunk driving statute does not prescribe factors that a court must consider in deciding whether to incarcerate a defendant for DUI. This court therefore must decide, as a threshold matter, what factors to apply in determining whether to impose a term of incarceration, and if so, for how long. The court concludes that it should apply, with appropriate tailoring, the aggravating and mitigating factors prescribed by the Criminal Code for sentencing[418 N.J.Super. 489] of offenses and crimes, N.J.S.A. 2C:44–1. Even if the factors are not mandated, they provide appropriate guides for the court's exercise of discretion.

The DUI laws grant significant sentencing discretion to municipal courts and the Law Division on de novo appeals. A court must decide first whether to incarcerate at all in the case of first offenders. See N.J.S.A. 39:4–50(a)(1)(i) and (ii) (allowing for first offender “in the discretion of the court, a term of imprisonment of not more than 30 days”). For second offenders, the court must also make an “in or out” decision as it relates to jail. While the law mandates at least forty-eight consecutive hours of custody for second offenders, those hours may be served in treatment; the court retains discretion to impose a jail term of up to ninety days. N.J.S.A. 39:4–50(a)(2) (stating that second offenders “shall be sentenced to imprisonment for a term of not less than 48 consecutive hours, which shall not be suspended or served on probation, nor more than 90 days”); N.J.S.A. 39:4–50(a)(3) (stating that that imprisonment for first or second offender can be served in an “inpatient rehabilitation program or to an Intoxicated Driver Resource Center or other facility approved by the chief of the Intoxicated Driving Program Unit in the Department of Health and Senior Services”). The law mandates a 180–day sentence for third offenders, but the court retains discretion to allow half of that to be served in inpatient treatment. N.J.S.A. 39:4–50(a)(3).

The Criminal Code requires a sentencing court to consider specified aggravating factors and mitigating factors in imposing sentence for someone “convicted of an offense.” N.J.S.A. 2C:44–1. The court in State v. Walsh, 236 N.J.Super. 151, 156–57, 564 A.2d 901 (Law Div.1989), declined to make an “aggravating-mitigating analysis” in sentencing a defendant for DUI. The court reasoned that a motor vehicle violation

[14 A.3d 755]

does not fall within the Code's definition of an “offense,” which encompasses crimes, disorderly persons offenses, and petty disorderly persons offenses. N.J.S.A. 2C:1–14(k). The court outlined no alternative structure or factors to guide the exercise of its sentencing discretion.

[418 N.J.Super. 490] However, unfettered sentencing discretion violates notions of due process and fairness. “Random and unpredictable sentencing is anathema to notions of due process.” State v. Moran, 202 N.J. 311, 326, 997 A.2d 210 (2010). “We have long recognized that ‘there can be no justice without a predictable degree...

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  • State v. Fair
    • United States
    • New Jersey Superior Court — Appellate Division
    • April 19, 2022
    ... ... at 75 ...          In that ... regard, "[a] sentencing court may consider ... 'aggravating facts showing that [a] defendant's ... behavior extended to the extreme reaches of the prohibited ... behavior.'" Ibid. (quoting State v ... Henry , 418 N.J.Super. 481, 493 (Law Div. 2010)) ... However, to "ensure that facts necessary to establish ... the elements of the defendant's offense are not ... double-counted for purposes of sentencing," the trial ... court's assessment of the nature and circumstances of the ... ...
  • State v. Miller
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    • February 20, 2019
    ...State v. Fuentes, 217 N.J. 57, 75, 85 A.3d 923 (2014) (second alteration in original) (quoting, in turn, State v. Henry, 418 N.J. Super. 481, 493, 14 A.3d 750 (Law Div. 2010) ) ). The State asserts that the Appellate Division's blanket prohibition on trial courts' consideration of aggravati......
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    • August 4, 2021
    ... ... offense." So long as the injuries exceeded those ... required to satisfy the statutory element, this factor is ... available because the conduct "extended to the extreme ... reaches of the prohibited behavior." Ibid ... (quoting State v. Henry, 418 N.J.Super. 481, 493 ... (Law Div. 2010)) ... In this ... case the injuries exceeded those necessary to cause death ... Therefore, it was not error for the court to find aggravating ... factor one ... VI ... Defendant ... ...
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    ... ... "[a] sentencing court may consider 'aggravating ... facts showing that [the] defendant's behavior extended to ... the extreme reaches of the prohibited behavior.'" ... State v. Fuentes , 217 N.J. 57, 75 (2014) (quoting ... State v. Henry , 418 N.J.Super. 481, 493 (Law Div ... 2010)). Specifically, as to aggravating factor two, the judge ... stated: ... I find [a]ggravating [f]actor [two], the seriousness of the ... harm caused to the child. Obviously, there was physical harm ... as presented at the ... ...
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