State v. Herrera

• Decision Date: 03 January 2022
• Docket Number: DOCKET NO. A-2021-20
• Citation: 267 A.3d 466,469 N.J.Super. 559
• Parties: STATE of New Jersey, Plaintiff-Appellant/ Cross-Respondent, v. Jesus M. HERRERA, a/k/a Jose Herrera, Defendant-Respondent/ Cross-Appellant.
• Court: New Jersey Superior Court — Appellate Division

469 N.J.Super. 559

267 A.3d 466

STATE of New Jersey, Plaintiff-Appellant/ Cross-Respondent,

v.Jesus M. HERRERA, a/k/a Jose Herrera, Defendant-Respondent/ Cross-Appellant.

DOCKET NO. A-2021-20

Superior Court of New Jersey, Appellate Division.

Submitted October 6, 2021

Decided January 3, 2022

Camelia M. Valdes, Passaic County Prosecutor, attorney for appellant (Mark Niedziela, Assistant Prosecutor, of counsel and on the briefs).

Law Offices of Brian J. Neary, attorneys for respondent (Brian J. Neary, Hackensack, of counsel; Blaine D. Benson, on the briefs).

Before Judges Hoffman, Whipple, and Susswein.

The opinion of the court was delivered by

SUSSWEIN, J.A.D.

The State appeals from the trial court's decision to impose concurrent state prison terms on defendant's jury trial convictions for leaving the scene of a fatal motor vehicle accident, N.J.S.A. 2C:11-5.1, and endangering an injured victim, N.J.S.A. 2C:12-1.2. The State contends the trial judge imposed an illegal sentence because the statutes defining both crimes require that the prison terms be served consecutively.¹ Defendant cross-appeals the sentences that were imposed, arguing that the trial judge should have merged the two convictions.

This case arises from a tragic motor vehicle accident in which defendant's pickup truck struck and killed a pedestrian. Defendant was not charged with vehicular homicide, N.J.S.A. 2C:11-5, nor any other crime relating to the manner in which he operated his vehicle. In other words, defendant was not charged with, much less convicted of, purposely, knowingly, or even recklessly striking the victim with his vehicle. Rather, with respect to both crimes for which defendant was convicted at trial, the culpable act was leaving the scene of the fatal accident without stopping to render aid or call for emergency medical assistance.

We first address the arguments raised in defendant's cross-appeal because the decision whether to impose consecutive or concurrent prison terms necessarily presupposes that a defendant has been convicted of at least two separate crimes. The threshold question on appeal, therefore, is whether defendant's two convictions merge, in which event he will have been convicted of but a single crime for purposes of sentencing.

After carefully reviewing the record in view of the "flexible" multi-faceted test embraced by our Supreme Court on multiple occasions, we conclude that in the circumstances of this case, the convictions for leaving the scene of a fatal motor vehicle accident and endangering an injured victim constitute a single criminal offense and thus should have been merged. That conclusion renders academic the question of whether consecutive sentences should have been imposed. We remand for the trial court to amend the judgment of conviction accordingly.

I.

We begin by summarizing the relevant facts and procedural history. On November 11, 2017, at around 9:00 p.m., defendant struck the victim with his truck, tapped on his brakes, and drove away. The accident was recorded on surveillance cameras, which show defendant traveling between an estimated 39.4 and 55.8 miles-per-hour. The surveillance recordings also show that the victim did not use the crosswalk.

Police and EMS responders found the victim unconscious and unresponsive. Their efforts to administer CPR on the scene and while en route to the hospital were unsuccessful. The victim was pronounced dead at the hospital at approximately 9:42 p.m. The autopsy determined that the cause of death was "blunt impact injuries of torso and extremities" and the manner of death was determined to be "accident[al]."

A private citizen had followed defendant's truck after the collision, told defendant he had struck someone, and brought defendant back to the scene of the accident, whereupon he was arrested. Defendant consented to provide blood samples, which indicated that while he had consumed alcohol, his blood alcohol content was below the legal limit for operating a vehicle. Police brought the defendant to the prosecutor's office, where he admitted that he had collided with the victim. The defendant stated that he was driving home and claimed to be travelling at about twenty-five to thirty-five miles-per-hour. He stated that he did not see the victim because it was dark and because the victim was crossing between two cars. Defendant explained that he did not stop after the accident because he was nervous. He was charged by summons with the non-indictable offense of leaving the scene of a motor vehicle accident resulting in injury or death, N.J.S.A. 39:4-129.

In November 2017, a grand jury returned an indictment charging defendant with two counts: second-degree leaving the scene of a motor vehicle accident under certain circumstances, N.J.S.A. 2C:11-5.1 (leaving-the-scene), and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (endangering). In January 2020, defendant was tried before a jury and was found guilty of both counts.²

The sentencing hearing was convened on March 26, 2021. At the outset of the hearing, the judge determined that the two indictable convictions do not merge. So far as the record before us reflects, defendant never argued that the convictions should be merged; rather, the gravamen of defendant's legal argument at the sentencing hearing was that the sentences should run concurrently. Accordingly, the sentencing judge provided only a limited statement of reasons explaining her decision not to merge the convictions as compared to the more comprehensive statement of reasons the judge provided for her decision to impose concurrent sentences.

The State raises the following contentions for our consideration:

POINT I:

THE SENTENCING JUDGE ABUSED HER DISCRETION BY ERRONEOUSLY SENTENCING DEFENDANT

TO A CONCURRENT TERM OF FOUR YEARS INSTEAD OF A CONSECUTIVE TERM OF FOUR YEARS AND MUST BE REVERSED.

Defendant raises the following contentions for our consideration in his cross-appeal:

POINT I:

THE TRIAL COURT ERRED IN FAILING TO MERGE THE CONVICTION FOR LEAVING THE SCENE OF A FATAL ACCIDENT, N.J.S.A. 2C:11-5.1, WITH THE CONVICTION FOR ENDANGERING AN INJURED VICTIM, N.J.S.A. 2C:12-1.2, FOR PURPOSES OF SENTENCING.

POINT II:

IN THE ALTERNATIVE, THE TRIAL COURT'S DECISION TO SENTENCE [DEFENDANT] TO A CONCURRENT TERM SHOULD BE AFFIRMED.

The State makes the following arguments in response to defendant's cross-appeal:

POINT I

THE TRIAL COURT DID NOT FAIL TO MERGE THE CONVICTION AS N.J.S.A. 2C:11-5.1, LEAVING THE SCENE OF A FATAL ACCIDENT, AND N.J.S.A. 2C:12-1.2, ENDANGERING AN INJURED VICTIM, ARE PROHIBITED FROM BEING MERGED UNDER THE FACTS OF THIS CASE; THE SENTENCING JUDGE ABUSED HER DISCRETION BY ERRONEOUSLY SENTENCING DEFENDANT TO A CONCURRENT TERM OF FOUR YEARS INSTEAD OF A CONSECUTIVE TERM OF FOUR YEARS AND MUST BE REVERSED.

II.

We begin our analysis by acknowledging the foundational legal principles governing this appeal. When the meaning of a statute is not at issue, we review a judge's sentencing decision under an abuse of discretion standard. See State v. Fuentes, 217 N.J. 57, 70, 85 A.3d 923 (2014). This case, however, focuses on an interpretation of the statutes that define the two crimes for which defendant was convicted and the statutory framework for deciding whether those convictions merge. We therefore apply a de novo review to "discern and effectuate the legislative intent underlying the statutory provision[s] at issue." State ex rel. K.O., 217 N.J. 83, 91–92, 85 A.3d 938 (2014) ; see also State v. Vargas, 213 N.J. 301, 327, 63 A.3d 175 (2013) (citing State v. Gandhi, 201 N.J. 161, 176, 989 A.2d 256 (2010) ).

The case law governing the merger of crimes has evolved. At its core, the doctrine of merger is based on the precept that "an accused [who] committed only one offense ... cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77, 342 A.2d 841 (1975). Although our Supreme Court has "not determined whether that prohibition rests on principles of double jeopardy, due process or some other legal tenet," it is beyond dispute that "merger implicates a defendant's substantive constitutional rights." State v. Cole, 120 N.J. 321, 326, 576 A.2d 864 (1990) (first citing Davis, 68 N.J. at 76, 342 A.2d 841 ; and then citing State v. [John] Miller, 108 N.J. 112, 116, 527 A.2d 1362 (1987) ).

N.J.S.A. 2C:1-8(a) provides general guidance on when offenses merge. That statute provides in pertinent part:

a. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.

He may not, however, be convicted of more than one offense if:

(1) One offense is included in the other, as defined in subsection d. of this section;

....

(4) The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

....

d. Conviction of included offense permitted. A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged ....

In State v. Bowens, the Court, relying on N.J.S.A. 2C:1-8, held that merger is not required when each offense "may be established by proof of a different fact which the other does not require." 108 N.J. 622, 639, 532 A.2d 215 (1987). The Bowens test is simple and straightforward. However, that standard "has been characterized as ‘mechanical.’ " State v. Tate, 216 N.J. 300, 307, 79 A.3d 459 (2013) (quoting State v. Hill, 182 N.J. 532, 542, 868 A.2d 290 (2005) ).

In Cole, the Court used a different approach, explaining that

[i]n determining legislative intent, we analyze the statutes to determine whether the Legislature intended to protect different interests, and whether merger makes sense in the context of the Code's overall sentencing scheme.

...