STATE OF NEW JERSEY VS. A.F. (17-02-0117, GLOUCESTER COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2610-17
STATE OF NEW JERSEY,
Plaintiff-Appellant/
Cross-Respondent,
v.
A.F.,
Defendant-Respondent/
Cross-Appellant.
_________________________
Submitted June 24, 2020 – Decided June 17, 2021
Before Judges Accurso and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Gloucester County, Indictment No. 17-02-
0117.
Christine A. Hoffman, Acting Gloucester County
Prosecutor, attorney for appellant/cross-respondent
(Jonathan Grekstas, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondent/cross-appellant (Marcia Blum, Assistant
Deputy Public Defender, of counsel and on the briefs).
The opinion of the court was delivered by
DeALMEIDA, J.A.D.
The State appeals from the non-custodial, probationary sentence imposed
on defendant A.F.1 after she entered a guilty plea to seven offenses arising from
a motor vehicle crash while she was driving drunk. A.F. argues that the State's
appeal is barred by double jeopardy protections and cross-appeals from the June
23, 2017 order of the Law Division denying her motion to dismiss a superseding
indictment or, in the alternative, one count of the superseding indictment . We
affirm both A.F.'s sentence and the June 23, 2017 order.
I.
The facts are not disputed. In July 2015, A.F. was brutally attacked by
her then boyfriend. He kicked and stomped A.F.'s head before abandoning her,
gravely injured, in a convenience store parking lot. A.F. spent seven days in the
intensive care unit at a trauma center. The attack left A.F. with a brain injury,
short-term memory loss, migraine headaches, and post-traumatic stress disorder,
and exacerbated her preexisting depression and alcohol dependency. The man
who attacked A.F. was convicted of first-degree attempted murder.
1
We identify A.F. by her initials because she is a victim of domestic violence.
R. 1:38-3(c)(12).
A-2610-17
2
On October 16, 2015, about three months after the attack, A.F. was
intoxicated and under the influence of prescription medications when she
received a telephone call from a friend who asked for help with an ongoing
domestic violence incident. A.F. conducted an Internet search to determine
whether it was safe to operate a vehicle in her intoxicated condition. She
attempted to "come back down from the buzz" by eating before placing her three
children, ages six, eight, and nine, in her car and driving to meet her friend. The
children were not secured in child safety seats.
A.F. disregarded a stop sign and broadsided a police car. The officer
driving the police car and A.F.'s six-year-old son suffered physical injuries
requiring hospitalization. A.F.'s blood alcohol level at the time of the crash was
0.162 percent, more than double the legal limit to operate a vehicle.
On August 3, 2016, a grand jury indicted A.F., charging her with fourth-
degree assault by auto (the injured officer), N.J.S.A. 2C:12-1(c)(1); third-degree
assault by auto (the injured officer), N.J.S.A. 2C:12-1(c)(2); and three counts of
second-degree endangering the welfare of a child (one count for each child),
N.J.S.A. 2C:24-4(a). The State presented one witness to the grand jury: a police
officer who responded to the crash. He described the crash and its aftermath,
A.F.'s state of intoxication, the blood alcohol test results, and the lack of child
A-2610-17
3
safety seats. In addition, the officer testified that the police officer victim was
"substantially injured" with "a sacral fracture and fractures of both radius bones
. . . ."
The State offered A.F. a plea agreement in which it would recommend six
years of imprisonment. The court thereafter informed A.F. she was on a
mandatory track for drug court and was required to undergo an evaluation for
admission into the program. She neither accepted nor rejected the plea offer, as
admission to drug court would have rendered the plea offer moot.
On August 31, 2016, the court informed A.F. that her evaluation revealed
she was clinically accepted to drug court and, based on her charges and a lack
of objection by the State, she was legally accepted into the program. A.F.
requested additional time to negotiate a plea not involving drug court. The co urt
allowed her to reject admission to drug court without prejudice to reapply if plea
negotiations failed. The parties did not reach a plea agreement.
A.F. thereafter applied for admission to the pretrial intervention (PTI)
program. N.J.S.A. 2C:43-12; R. 3:28-1 to -10. On January 4, 2017, A.F. was
notified her application for PTI was rejected. Defense counsel informed the
State A.F. intended to reapply for admission to drug court.
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On February 15, 2017, the court again determined A.F. was clinically
eligible for drug court. The State, however, objected to her admission to the
program, arguing she was a danger to the community.
On February 22, 2017, a grand jury issued a superseding indictment,
charging A.F. with the five counts in the original indictment along with two new
counts: second-degree aggravated assault (the injured officer), N.J.S.A. 2C:12-
1(b)(1); and second-degree aggravated assault (the injured child), N.J.S.A.
2C:12-1(b)(1). The new charges made A.F. statutorily ineligible for drug court,
N.J.S.A. 2C:35-14(b), and added the potential for a mandatory eighty-five
percent period of parole ineligibility under the No Early Release Act, N.J.S.A.
2C:43-7.2.
At the grand jury hearing leading to the superseding indictment, the State
again presented the testimony of the police officer who responded to the crash.
His testimony was consistent with that which he gave to the first grand jury with
additional testimony that the police officer victim sustained fractures of his
wrists and ankles, 2 and serious bodily injuries from which he had not recovered.
He also testified that A.F.'s child suffered internal injuries requiring
hospitalization, which he characterized as serious. Notably, although the State
2
At sentencing, the officer testified that only one of his ankles was fractured.
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5
had asked to charge A.F. only with endangering the welfare of the child, the
grand jury inquired about and returned the second-degree aggravated assault
charge relating to A.F.'s injured child.
A.F. subsequently moved to dismiss the superseding indictment. She
argued the State violated her federal and State due process rights by obtaining
the superseding indictment out of vindictiveness for her attempt to negotiate a
plea agreement not involving drug court. In the alternative, A.F. sought
dismissal of the two second-degree aggravated assault counts because the State
did not present the grand jury with sufficient evidence to establish those charges.
The trial court issued a written opinion denying A.F.'s motion. Noting
that there is no presumption of vindictiveness when a prosecutor increases
charges against a defendant during pre-trial plea negotiations, the court held
A.F. must affirmatively prove vindictiveness to establish a due process
violation. The court found credible the State's explanation that it sought the
superseding indictment when it learned the police officer's injuries were
permanent and had ended his law enforcement career, and that he strongly
objected to A.F.'s admission to drug court.
With respect to the sufficiency of the evidence, the court held that the
grand jury could reasonably have believed A.F. committed second-degree
A-2610-17
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aggravated assault against both the police officer and child. The court reviewed
the substance of the witness's testimony and concluded that, although not a
medical expert, the witness provided at least some evidence of each of the
elements of the crimes charged, including the serious nature of the victims '
injuries. A June 23, 2017 order memorializes the court's decision.
A.F. thereafter entered a non-negotiated guilty plea to all counts of the
superseding indictment, as well as several motor vehicle offenses. She admitted
her son suffered a bowel or bladder injury in the crash.
The judge who sentenced A.F. had also sentenced her attacker. As
explained in more detail below, the impact of the attempted murder on A.F., and
her successful rehabilitation after the crash, were central factors at sentencing.
The court found two aggravating factors:
(1) Two, N.J.S.A. 2C:44-1(a)(2) ("The gravity and seriousness of harm
inflicted on the victim, including whether or not the defendant knew or
reasonably should have known that the victim of the offense was particularly
vulnerable or incapable of resistance due to . . . extreme youth . . . ."), to which
the court gave slight weight; and
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(2) Nine, N.J.S.A. 2C:44-1(a)(9) ("The need for deterring the defendant
and others from violating the law . . . ."), which the court considered to be "a
major factor" that "applies in every case of this type . . . ."
The court rejected aggravating factor Three, N.J.S.A. 2C:44-1(a)(3) ("The
risk that the defendant will commit another offense . . . ."). The court concluded
that the physical, mental, and therapeutic treatment A.F. had undertaken after
the crash rendered the risk of recidivism "very slim" and "[a]lmost negligible . .
. ." Immediately after the accident, A.F. enrolled in an intensive outpatient
treatment program, which she successfully completed. She has maintained
sobriety, regained custody of her children, volunteers at a domestic violence
victim support organization, and speaks publicly about domestic violence.
The court found nine mitigating factors:
(a) Two, N.J.S.A. 2C:44-1(b)(2) ("The defendant did not contemplate
that [her] conduct would cause or threaten serious harm . . . ."), to which the
court gave slight weight;
(b) Four, N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds
tending to excuse or justify the defendant's conduct, though failing to establish
a defense . . . ."). The court based this factor, to which it gave slight weight, on
A.F. having suffered physical and psychological abuse as a victim of domestic
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violence, culminating in the attempted murder. The court also found that A.F.
"was not recognized as needing services after her last domestic violence assault
and intensive care visit" and "that this systemic failure to provide needed
services subsequent to her attack contributed to her descent into alcoholism and
severe depression[;]"
(c) Six, N.J.S.A. 2C:44-1(b)(6) ("The defendant has compensated or
will compensate the victim of [her] conduct for the damage or injury that he
sustained, or will participate in a program of community service . . . ."). The
court gave this factor moderate to substantial weight;
(d) Seven, N.J.S.A. 2C:44-1(b)(7) ("The defendant has no history of
prior delinquency or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the present offense . . . ."),
to which the court gave substantial weight in light of the absence of any criminal
convictions in A.F.'s record;
(e) Eight, N.J.S.A. 2C:44-1(b)(8) ("The defendant's conduct was the
result of circumstances unlikely to recur . . . ."), to which the court gave
moderate to substantial weight;
A-2610-17
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(f) Nine, N.J.S.A. 2C:44-1(b)(9) ("The character and attitude of the
defendant indicate that [she] is unlikely to commit another offense . . . ."), to
which the court gave substantial weight;
(g) Ten, N.J.S.A. 2C:44-1(b)(10) ("The defendant is particularly likely
to respond affirmatively to probationary treatment . . . ."), to which the court
gave substantial weight. The court found A.F. followed recommendations in
therapy, had not tested positive for drugs or alcohol since the crash, and "has
come to grips with her addiction, has her depression in control and has bee n
active in ongoing community service, counseling and therapy[;]"
(h) Eleven, N.J.S.A. 2C:44-1(b)(11) ("The imprisonment of defendant
would entail excessive hardship to [herself] or [her] dependents . . . ."), to which
the court gave substantial weight. The court found A.F.'s imprisonment would
revictimize her children and reverse the progress she and they had achieved
since her arrest; and
(i) Twelve, N.J.S.A. 2C:44-1(b)(12) ("The willingness of the
defendant to cooperate with law enforcement authorities . . . ."), to which the
court gave substantial weight based on her non-negotiated plea to all charges.
The court was clearly convinced that the mitigating factors substantially
outweighed the aggravating factors and that the interest of justice demanded that
A-2610-17
10
A.F. be sentenced to a term appropriate to crimes one degree lower than that of
which she was convicted. N.J.S.A. 2C:44-1(f)(2). She was, therefore, eligible
for a sentence applicable to third-degree crimes, with a presumption of a
custodial sentence of three to five years.
The court also found that A.F.'s criminal conduct was the result of "a
maelstrom of engulfing" extraordinary and unanticipated circumstances and that
given her "character and condition," "imprisonment would be a serious injustice
which overrides the need to deter such conduct by others." See N.J.S.A. 2C:44-
1(d). As a result of these findings, the court concluded the presumption of
imprisonment for A.F.'s offenses had been overcome. This finding was based,
in part, on the court's finding that A.F. was an "idiosyncratic" defendant for
whom, in light of her recent history as a victim of domestic violence, her friend's
call for help was an "extraordinary circumstance."
For second-degree aggravated assault of the officer, the court sentenced
A.F. to a five-year, non-custodial term of probation, which included a
requirement that she continue with mental health and substance abuse treatment.
The court merged the remaining assault charges relating to the police officer
into the second-degree aggravated assault conviction. For second-degree
endangering the welfare of the injured child, the court sentenced A.F. to a five-
A-2610-17
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year, non-custodial term of probation, to be served consecutive to the other
probationary term. The court merged the remaining counts of endangering the
welfare of a child into the second-degree endangering conviction related to the
injured child. The court merged the second-degree aggravated assault
conviction relating to the child into the second-degree aggravated assault
conviction relating to the officer. 3
N.J.S.A. 2C:44-1(f)(2) provides that
[i]f the court does impose sentence pursuant to this
paragraph, or if the court imposes a noncustodial or
probationary sentence upon conviction for a crime of
the first or second degree, such sentence shall not
become final for [ten] days in order to permit the appeal
of such sentence by the prosecution.
Rule 3:21-4(i) mirrors the statute by providing that "[i]n the event the court
imposes sentence pursuant to N.J.S.A. 2C:44-1(f)(2), such sentence shall not
become final until [ten] days after the date sentence was pronounced."
In an apparent reference to N.J.S.A. 2C:44-1(f)(2) and Rule 3:21-4(i), the
court made the following statement at sentencing: "In accordance with Jarbath,4
3
The court also sentenced A.F. on motor vehicle offenses not before the court.
4
The court appears to be referring to the holding in State v. Jarbath, 114 N.J.
394 (1989), which it referenced earlier in the proceeding. That opinion concerns
N.J.S.A. 2C:44-1(f)(2) but does not address the ten-day appeal period.
A-2610-17
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the State does have [ten] days which I will stay sentence until that is done (sic).
I fully expect that to be done in this case, most likely." The court did not explain
to A.F. the State's right to appeal her sentence during the ten-day statutory stay.
A February 9, 2018 judgment of conviction memorializes A.F.'s sentence.
Despite the stay of sentence, A.F. reported to probation and began serving her
term on the day of sentencing.
On February 14, 2018, the State filed a notice of appeal from the February
9, 2018 judgment of conviction. The notice of appeal does not mention the ten-
day stay of A.F.'s sentence. In fact, in response to the question on the notice of
appeal "[w]as bail granted or the sentence or disposition stayed?," the State
responded "No."
Neither the court, A.F., nor the State took any action to implement Rule
2:9-3(c) after the notice of appeal was filed. That rule provides that
execution of sentence shall be stayed pending appeal by
the State pursuant to N.J.S.A. 2C:44-1[(f)](2). Whether
the sentence is custodial or non-custodial, bail pursuant
to R. 2:9-4 shall be established as appropriate under the
circumstances. A defendant may elect to execute a
sentence stayed by the State's appeal, but such election
shall constitute a waiver of the right to challenge any
sentence on the ground that execution has commenced.
[R. 2:9-3(c).]
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On February 16, 2018, the State filed an amended notice of appeal to
correct the service list.
On February 28, 2018, the trial court sua sponte resentenced A.F. pursuant
to Rule 3:21-10(a) and (c). The court did not change its findings with respect to
aggravating and mitigating factors, its decision to sentence A.F. for crimes one
degree lower than those of which she was convicted, or its conclusion that the
presumption of incarceration had been overcome. The court sentenced A.F. to
concurrent five-year terms of non-custodial probation on both second-degree
aggravated assault convictions and on each of the three second-degree
endangering the welfare of a child convictions. The court then merged the third-
degree and fourth-degree assuault by auto convictions into the second-degree
aggravated assault conviction relating to the police officer victim. In effect, the
court resentenced A.F. to several concurrent five-year, non-custodial terms of
probation instead of the two consecutive terms in the original sentence.
Although the court was aware the State had filed an appeal of A.F.'s
original sentence and acknowledged that A.F. had commenced serving that
sentence, it did not stay A.F.'s new sentence, mention N.J.S.A. 2C:44-1(f)(2),
Rules 3:21-4(i) or 2:9-3(c), or inform A.F. she could elect not to serve her new
sentence. During sentencing, the court stated that A.F. "must continue her
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present counseling until it's been successfully completed and comply with any
follow up and aftercare requirements; continue attendance at N.A. or N.A. or
equivalent organization meetings and report to probation with attendance
records; comply with all [Division of Child Protection & Permanency]
recommendations and[/]or requirements."
On March 2, 2018, the court entered a judgment of conviction
memorializing the resentencing. While the judgment of conviction was signed
and filed on March 2, 2018, its first page is dated February 28, 2018. This
explains conflicting resentencing dates in the parties' subsequent filings.
On March 5, 2018, the State filed an amended notice of appeal. The
amended notice of appeal indicates that the State is appealing from the February
9, 2018 judgment of conviction. Below the instruction to "explain briefly the
reason for amending the notice of appeal," the State responded that "[o]n
February 28, 2018, [the] trial court amended the sentence to the [two] five[-]year
probation terms to run concurrent (sic)." The State filed the March 2, 2018
judgment of conviction along with the amended notice of appeal.
On March 14, 2018, the State filed a second amended notice of appeal
"correcting the defendant['s] name on notice of appeal." The second amended
A-2610-17
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notice of appeal again indicates the State is appealing the Febraury 9, 2018
judgment of conviction, but mentions the February 28, 2018 resentencing.
On April 2, 2018, A.F., with leave of court, filed a notice of cross-appeal
as if within time. The notice of cross-appeal indicates A.F. is cross-appealing
the February 9, 2018 judgment of conviction. The notice also states A.F. was
resentenced on March 2, 2018, as does A.F.'s case information statement.
On April 12, 2018, the State filed a third amended notice of appeal
"[a]mending the sentence date from 2/9/18 to . . . 2/28/18."
On May 11, 2018, A.F. filed an amended notice of cross-appeal "to correct
dates of sentencing and motion" to February 28, 2018.
On May 29, 2018, A.F. filed a second amended notice of cross-appeal "to
correct missing party information." This amended notice of cross-appeal
identifies the resentencing date as February 28, 2018.
The State raises the following arguments.
POINT [I]5
THE COURT ERRED IN FINDING [A.F.] SHOULD
BE SENTENCED TO A TERM FOR A CRIME ONE
DEGREE LOWER AND IN SENTENCING [A.F.] TO
A PROBATIONARY TERM BECAUSE [A.F. PLED]
GUILTY TO CHARGES CARRYING A
PRESUMPTION OF INCARCERATION AND
5
We renumbered the parties' point headings for clarity.
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THERE IS NO SERIOUS INJUSTICE IN
SENTENCING [A.F.] TO A TERM OF
INCARCERATION.
POINT [II]
[A.F.] SHOULD BE SENTENCED TO
CONSECUTIVE TERMS BECAUSE THE FACTS OF
THIS CASE REPRESENT ESPECIALLY SUITABLE
CIRCUMSTANCES FOR THE IMPOSITION OF
CONSECUTIVE SENTENCES.
A.F. raises the following arguments in her cross-appeal:
[POINT I]
THE STATE'S SENTENCING APPEAL IS BARRED
BY DOUBLE JEOPARDY.
A. THE STATE'S APPEAL IS BARRED BY
DOUBLE JEOPARDY BECAUSE THE STATE DID
NOT FILE A TIMELY APPEAL FROM THE
RESENTENCING.
B. THE STATE'S APPEAL IS BARRED BY
DOUBLE JEOPARDY BECAUSE [A.F.] BEGAN
SERVING THE SENTENCE WITHOUT NOTICE OF
HER RIGHT OF ELECTION UNDER R. 2:9-3(c).
C. [A.F.'S] APPEAL OF THE MOTION DENYING
DISMISSAL OF THE SUPERSEDING INDICTMENT
DOES NOT PRECLUDE HER DOUBLE-JEOPARDY
CLAIM.
POINT [II]
THE SUPERSEDING INDICTMENT SHOULD BE
DISMISSED BECAUSE IT WAS A VINDICTIVE
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ACT THAT BLOCKED [A.F.] FROM DRUG COURT
AND SUBJECTED HER TO AN ENHANCED
SENTENCE UNDER THE NO EARLY RELEASE
ACT.
POINT [III]
THE CHARGE OF SECOND-DEGREE ASSAULT
ALLEGED IN COUNT [SEVEN] OF THE
SUPERSEDING INDICTMENT MUST BE
DISMISSED BECAUSE THE STATE FAILED TO
PRESENT SUFFICIENT EVIDENCE TO SUPPORT
IT.
POINT [IV]
THE COURT PROPERLY FOUND, UNDER N.J.S.A.
2C:44-1[(d)] AND 2C:44-1[(f)](2), THAT A
PROBATIONARY TERM WAS WARRANTED.
In response to the cross-appeal, the State raises the following arguments:
POINT I
THE SUPERSEDING INDICTMENT SHOULD NOT
BE DISMISSED BECAUSE THERE WAS NO
PRESUMPTION OF VINDICTIVENESS, THERE
WAS AN EXTENDED PERIOD OF TIME BETWEEN
THE SUPERSEDING INDICTMENT AND TRIAL,
AND [A.F.] WAS NOT BEING PUNISHED FOR
EXERCISING A LEGAL "RIGHT" PROTECTED
UNDER THE CONSTITUTION.
POINT II
THE CHARGE OF AGGRAVATED ASSAULT
ALLEGED IN COUNT SEVEN OF THE
SUPERSEDING INDICTMENT SHOULD NOT BE
A-2610-17
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DISMISSED BECAUSE THE STATE PRESENTED A
PRIMA FACIE CASE TO SUPPORT SUCH A
CHARGE.
II.
We begin with A.F.'s argument that the State failed to perfect its appeal
of the March 2, 2018 judgment of conviction. "The right of the State to appeal
a probationary sentence imposed upon a defendant for a conviction of a first or
second degree crime . . . is purely statutory." State v. Watson, 183 N.J. Super.
481, 483 (App. Div. 1982). "Under the clear and explicit language of [N.J.S.A.
2C:44-1(f)(2)] the State has ten days within which to appeal from the imposition
of certain sentences." Ibid. "[T]he ten-day time requirement is jurisdictional
and must be complied with strictly." Id. at 484. Where a defendant is
resentenced, the ten-day period commences on resentencing. State v. Gould,
352 N.J. Super. 313, 318 (App. Div. 2002).
The court resentenced A.F. on February 28, 2018 and entered the
judgment of conviction reflecting her new sentence on March 2, 2018. A.F.
argues that the State did not file an amended notice of appeal specifying that it
was appealing the resentencing until April 12, 2018, forty-three days after
February 28, 2018 and forty-one days after March 2, 2018. A.F. argues that the
only amended notice of appeal filed by the State within ten days of her
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resentencing was the March 5, 2018 amended notice of appeal, which indicates
that the State was appealing the February 9, 2018 judgment of conviction.
We agree with A.F.'s argument that the February 28, 2018 resentencing
and March 2, 2018 judgment of conviction imposed a new sentence, triggering
a second ten-day period in which the State could file an appeal. We disagree,
however, with her contention that the March 5, 2018 amended notice of appeal
failed to perfect the State's appeal of the new sentence. While the March 5, 2018
amended notice of appeal indicates that the State "appeals to the Appellate
Division from a[n] . . . order entered on 02/09/2018[,]" it also states that the
reason for filing an amended notice of appeal is that the court amended A.F.'s
sentence on February 28, 2018. In addition, along with the amended notice of
appeal, the State filed a copy of the March 2, 2018 judgment of conviction
memorializing A.F.'s new sentence. The March 5, 2018 amended notice of
appeal sufficiently identified the State's intention to appeal A.F.'s new sen tence
as memorialized in the attached March 2, 2018 judgment of conviction. The
State appeal, therefore, was perfected in a timely manner.
III.
We are not persuaded by A.F.'s argument that the State's appeal is barred
by the constitutional protection against double jeopardy. The Fifth Amendment
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to the United States Constitution guarantees that "[n]o person shall be . . . subject
for the same offense to be twice put in jeopardy of life or limb . . . . " A similarly
worded provision in Article I, Paragraph 11 of the New Jersey Constitution
mirrors that protection. "There is no distinction in the protections afforded by
one provision as opposed to the other . . . ." State v. Schubert, 212 N.J. 295,
304 (2012); State v. Roth, 95 N.J. 334, 344 (1984).
The protection "against multiple punishments may be implicated when a
state seeks an increase in a defendant's sentence on appeal." State v. Sanders,
107 N.J. 609, 618 (1987). The analysis of whether double jeopardy protections
have been violated in this context centers on a defendant's expectation of finality
in a sentencing decision and her knowing waiver of her protection against having
a sentence increased. Id. at 619; see also United States v. DiFrancesco, 449 U.S.
117, 136 (1980). Typically, finality interests arise after the "final judgment and
commencement of the sentence." State v. Veney, 327 N.J. Super. 458, 461 (App.
Div. 2000); see State v. Ryan, 86 N.J. 1, 10 (1981) ("[J]eopardy attaches as soon
as execution of the sentence commences."). If jeopardy attaches, it "prohibits
the increase of the term imposed in a discretionary sentence." Veney, 327 N.J.
Super. at 461 (quoting State v. Kirk, 243 N.J. Super. 636, 642 (App. Div. 1990)).
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A.F. argues that her sentence became final when she commenced serving
probation on February 9, 2018 and, because she was not informed by the court
of her right under Rule 2:9-3(c) to choose not to serve her sentence after the
State filed its first notice of appeal, double jeopardy considerations bar
consideration of the State's appeal. A.F.'s argument is meritless.
The Supreme Court has held, with respect to N.J.S.A. 2C:44-1(f)(2), that
[a]s with the statute at issue in DiFranceso, the Code of
Criminal Justice expressly provides for prosecutorial
appeal of a lenient sentence. See N.J.S.A. 2C:44-
1[(f)]2. Defendants are charged with notice of the
terms of this provision. Moreover, the trial court
explicitly advised defendants that their sentence would
be stayed to permit the State to appeal.
[Sanders, 107 N.J. at 620 (citing State v. Williams, 203
N.J. Super. 513 (App. Div. 1985); State v. Giorgianni,
189 N.J. Super. 220, 227 (App. Div. 1983)).]
In State v. Evers, 368 N.J. Super. 159 (App. Div. 2004), we applied the
imputed knowledge standard announced in Sanders to Rule 2:9-3(c). In that
case, the defendant pleaded guilty to a second-degree offense, which the
sentencing court downgraded to the third-degree range for sentencing pursuant
to N.J.S.A. 2C:44-1(f)(2). Id. at 162-63. The court also concluded that the
defendant's imprisonment would constitute a serious injustice under N.J.S.A.
2C:44-1(d) and sentenced him to a probationary term. Id. at 163.
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The State appealed the sentence within ten days pursuant to N.J.S.A.
2C:44-1(f)(2). Ibid. It did not, however, move for a stay pursuant to Rule 2:9-
3(c) for several months, during which the defendant began serving the sentence.
Id. at 169.6 The Supreme Court reversed the defendant's sentence, remanding
the matter for resentencing. Id. at 167. On remand, the court sentenced the
defendant to a custodial term. Ibid.On appeal to this court from the sentence imposed on remand, the
defendant argued that the new sentence was barred by double jeopardy
protections because he served forty-seven days of the original sentence before a
hearing was held under Rule 2:9-3(c). Ibid. We rejected his contentions.
We held that where a trial court imposes on a conviction for a first- or
second-degree crime a sentence appropriate for a crime one degree lower than
the conviction or if it imposes a noncustodial or probationary term, the sentence
does not become final until ten days after the sentencing decision is rendered.
Id. at 168. We explained, that "[n]ot only did the State's appeal preclude the
sentence from becoming final within ten days . . . , but it also effected a
6
In Evers, we refer to Rule 2:9-3(d). An amendment to the rule effective
September 1, 2004, after we issued our decision in Evers, deleted subparagraph
(a) of the rule and redesignated subparagraph (d) as subparagraph (c). All of
our references to Evers, including quotations from the opinion, have been
modified to comport with the Rule's current subparagraph designation.
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23
mandatory stay of the sentence under Rule 2:9-3[(c)]." Ibid. The "initial
sentence was not final during the ten-day period following its imposition,
N.J.S.A. 2C:44-1[(f)](2) [and] it lacked finality after the ten-day period because
of the Rule 2:9-3[(c)] stay. Because a final sentence never became effective,
double jeopardy never attached." Id. at 169.
We rejected the defendant's argument that the State's delay in seeking a
stay and his commencement of sentence demonstrated his belief that the
sentence was final. We held that under the holding in Sanders, the "[d]efendant
was charged with notice of the stay and had no reasonable expectation of
finality" and that "[w]e find additional authority for this determination in the
last sentence of Rule 2:9-3[(c)]," which provides that a defendant who elects to
serve his sentence after the State has filed an appeal waives his double jeopardy
protection. Ibid. We did not conclude that the trial court, or any other party,
was obligated to inform the defendant of the mandatory stay of his sentence.
A.F. commenced her probationary term on the day of her initial
sentencing. At the first sentencing hearing, the court stated, albeit in an
imprecise fashion, that it was staying the sentence for ten days. In addition, A.F.
is charged with knowledge of N.J.S.A. 2C:44-1(f)(2). She elected to report to
probation authorities immediately after sentencing to begin her sentence.
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24
Five days after the initial sentencing, the State filed a notice of appeal
challenging A.F.'s sentence. Under our holding in Evers, A.F. was charged with
knowledge of Rule 2:9-3(c) and its provision alerting her to the waiver of her
double jeopardy protection if she served her sentence during the pendency of
the State's appeal. Neither A.F. nor her counsel applied to the court to stay the
continued service of her sentence.
Two weeks later, the court resentenced defendant. A.F., charged with
knowledge of the statutory stay, continued to serve her sentence, even after the
State filed its March 5, 2018 amended notice of appeal. We are not persuaded
by A.F.'s argument that at the resentencing, the trial court effectively directed
her to continue serving her probationary sentence. The court's reference to A.F.
continuing with therapy and other conditions of probation is merely a reiteration
of the terms of her sentence, not an order denying her right to elect not to serve
her sentence while the of State's appeal is pending under Rule 2:9-3.7
7
A.F.'s reliance on our holding in Williams is misplaced. To the extent that
Williams stands for the proposition that the sentencing court is obligated to
inform a defendant of her right to elect not to serve her sentence during the
pendency of the State's appeal, it has been abrogated by the Supreme Court's
holding in Sanders and our application of that holding in Evers. We do not
consider ourselves bound by the dicta in State v. Thomas, 459 N.J. Super. 426,
434 (App. Div. 2019), suggesting that the State must move for a stay of a
probationary sentence pursuant to Rule 2:9-3(c) in order to seek a harsher
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25
For sake of completeness, we also conclude A.F. did not waive her
expectation in the finality of her sentence by filing a cross-appeal. A defendant
who appeals a conviction cannot claim a "legitimate expectation of finality" in
the sentence she received. State v. Rodriguez, 97 N.J. 263, 271 (1984).
However, it is "[w]hat was sought by the appeal [that] defines what constitutes
a legitimate expectation of finality." State v. Haliski, 140 N.J. 1, 23 (1995).
A.F.'s cross-appeal seeks dismissal of the superseding indictment or, in
the alternative, one of the second-degree aggravated assault counts. If she were
to prevail on her cross-appeal, A.F. could not expect to receive a sentence
different from the five-year, non-custodial probationary term imposed on the
five second-degree counts of the original indictment. With downgraded, non-
custodial, and concurrent sentences on all five of the second-degree counts in
the superseding indictment, A.F. already received every legal benefit she could
expect with respect to the sentencing on those counts. If successful on appeal,
she will be liable for either three or four second-degree counts, rather than five.
Having already received every legal benefit available for sentencing on those
sentence on appeal. See Jamouneau v. Div. of Tax Appeals, 2 N.J. 325, 332
(1949) (holding that dictum is a statement by a court "not necessary to the
decision being made[,]" which is entitled to due consideration but is not binding
precedent).
A-2610-17
26
three or four counts, to which she pled guilty, she could not expect to have her
sentence reduced. Thus, this is not a case where the "defendant had to be aware
that if he succeeded in setting aside his conviction on appeal [he could] again
[be] convicted after a retrial, [and] he could receive a longer sentence upon
resentencing." State v. Baker, 270 N.J. Super. 55, 77 (App. Div. 1994).
IV.
We turn to A.F.'s cross-appeal of the June 23, 2017 order denying her
motion to dismiss the superseding indictment or, alternatively, count seven of
the superseding indictment. It is the grand jury's responsibility to "determine
whether the State has established a prima facie case that a crime has been
committed and that the accused has committed it." State v. Hogan, 144 N.J.
216, 227 (1996). "At the grand jury stage, the State is not required to present
enough evidence to sustain a conviction." State v. Feliciano, 224 N.J. 351, 380
(2016). Our Supreme Court has explained, "[t]he grand jury 'is an accusative
rather than an adjudicative body,' whose task is to 'assess whether there is
adequate basis for bringing a criminal charge.'" State v. Saavedra, 222 N.J. 39,
56 (2015) (quoting Hogan, 144 N.J. at 229-30). "A trial court deciding a motion
to dismiss an indictment determines 'whether, viewing the evidence and the
rational inferences drawn from that evidence in the light most favorable to the
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27
State, a grand jury could reasonably believe that a crime occurred and that the
defendant committed it.'" Id. at 56-57 (quoting State v. Morrison, 188 N.J. 2,
13 (2006)).
An indictment is presumed valid and should be disturbed only on the
"clearest and plainest ground." State v. Perry, 124 N.J. 128, 168 (1992) (quoting
State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18-19 (1984)). An indictment may
be dismissed if it is "manifestly deficient or palpably defective." Hogan, 144
N.J. at 229. We review a trial court's decision on a motion to dismiss an
indictment for abuse of discretion. Saavedra, 222 N.J. at 55. "A trial court's
exercise of discretionary power will not be disturbed on appeal 'unless it has
been clearly abused.'" Id. at 55-56 (quoting State v. Warmbrun, 277 N.J. Super.
51, 60 (App. Div. 1994)). If the trial court's decision is based on a misconception
of the law, however, we owe that decision no deference. State v. Lyons, 417
N.J. Super. 251, 258 (App. Div. 2010).
We agree with the trial court's conclusion that A.F. did not establish that
the State obtained the superseding indictment in retaliation for her attempt to
negotiate a plea agreement outside the strictures of drug court. In the pretrial
setting, a presumption of vindictiveness does not apply. See State v. Long, 119
N.J. 439, 465-67 (1990). Although there is an opportunity for prosecutorial
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28
vindictiveness, it is insufficient to justify a presumption with respect to the
addition or subtraction of charges in the pretrial stage. State v. Gomez, 341 N.J.
Super. 560, 576 (App. Div. 2001). "Trial preparation or continued investigation
may well lead the prosecutor to the reasonable conclusion that additional or
substituted charges are appropriate." Id. at 575.
In addition, the prosecutor may consider the penal implications of the
charging decision when deciding whether to seek additional, more serious
charges in a superseding indictment. Id. at 577. For example, we have found
no vindictiveness where a prosecutor, aware that a defendant was granted post-
conviction relief vacating a prior conviction and, as a result, would no longer
face the presumption of incarceration on pending charges, sought a superseding
indictment with a more serious charge supported by additional evidence. Id. at
577-78.
There is ample support in the record for the trial court's determination that
A.F. failed to establish vindictiveness. After A.F. rejected the State's plea offer,
the State discovered the police officer victim's injuries were more serious than
previously known and had ended his law enforcement career. In addition, the
victim expressed his adamant opposition to A.F.'s admission to drug court.
These are valid reasons for the prosecutor to seek a superseding i ndictment
A-2610-17
29
based on new evidence charging A.F. with a more serious crime. Although the
prosecutor did not seek an additional charge relating to A.F.'s injured child, the
grand jurors raised the question of whether she could be charged with second-
degree aggravated assault for his injuries and approved the charge.
Nor are we persuaded by A.F.'s argument that the grand jury was
presented with insufficient evidence to support the second-degree aggravated
assault charge relating to her child. 8 In order to sustain a charge of second-
degree aggravated assault the State must present to the grand jury evidence, with
the benefit of reasonable inferences derived therefrom, that: (1) defendant
purposely attempted to cause serious bodily injury; or (2) caused serious bodily
injury purposely, or knowingly; or (3) caused serious bodily injury recklessly
under circumstances manifesting an extreme indifference to the value of human
life. N.J.S.A. 2C:12-1(b)(1); State v. McAllister, 221 N.J. Super. 355 (App.
Div. 1986).
Recklessly under circumstances manifesting an extreme indifference to
the value of human life is distinct from mere recklessness. Under the former
there is a probability of injury while under the latter there is a possibility. State
8
Although A.F. challenged both second-degree aggravated assault counts
before the trial court, she appeals only the denial of her motion to dismiss the
charge relating to her child for sufficiency of evidence.
A-2610-17
30
v. Pigueiras, 344 N.J. Super. 297, 316 (App. Div. 2001). Extreme indifference
to human life is conduct that indicates that life does not matter, or that involves
a pronounced, unusual, or violent failure to accord any importance or value to
human life. State v. Farrell, 250 N.J. Super. 386, 390-91 (App. Div. 1991). The
difference in degree of probability is found in the circumstances surrounding the
occurrence, not in the defendant's evaluation of those circumstances. State v.
Curtis, 195 N.J. Super. 354, 364-65 (App. Div. 1984); Pigueiras, 344 N.J. Super.
at 312-13, 316.
Serious bodily injury is one which subjects the victim to a substantial risk
of death, State v. Turner, 246 N.J. Super. 22, 27-8 (App. Div. 1991), or where
such injury causes "serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ." State v. Norman,
405 N.J. Super. 149, 160 (App. Div. 2009).
The grand jury heard testimony that A.F., aware she had been drinking
alcohol and taking prescription medications, put her three children into her car
without child safety seats to rush to the scene of an ongoing domestic violence
incident. The grand jury was presented with evidence that A.F.'s blood alcohol
content was more than twice the legal limit to operate a car and that she
heedlessly ignored a stop sign, crashing into another vehicle. The violent nature
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31
of the crash was readily inferable from the evidence of the injuries suffered by
the two victims and the officer's description of the wrecked state of the vehicles
after the crash. There was sufficient evidence from which the jury could infer
A.F. acted recklessly under circumstances manifesting an extreme indifference
to the value of the life of her children and the motoring public.
In addition, the grand jury heard testimony describing her son's internal
injuries, which required the six-year-old's hospitalization. That evidence
included the testimony of the officer who witnessed the child in the aftermath
of the crash experiencing severe abdominal pain that required emergency
medical attention. The jury could reasonably infer from that evidence that the
child suffered a serious bodily injury because of A.F.'s actions.
V.
Finally, we address the State's appeal of A.F.'s sentence. Our review of a
sentencing decision is limited. State v. Miller, 205 N.J. 109, 127 (2011). "In
general, a trial court should identify the relevant aggravating and mitigating
factors, determine which factors are supported by a preponderance of evidence,
balance the relevant factors, and explain how it arrives at the appropriate
sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). We must affirm a
sentence
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32
unless (1) the sentencing guidelines were violated; (2)
the aggravating and mitigating factors found by the
sentencing court were not based upon competent and
credible evidence in the record; or (3) "the application
of the guidelines to the facts of [the] case makes the
sentence clearly unreasonable so as to shock the
judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting Roth, 95 N.J. at 364-65).]
Our sentencing statutes apply a presumption of imprisonment to persons
convicted of a first- or second-degree crime, N.J.S.A. 2C:44-1(d), and a
presumption of non-imprisonment to a person convicted of a third- or fourth-
degree crime who is a first-time offender, with exceptions not applicable here.
N.J.S.A. 2C:44-1(e). In addition, as explained above,
[i]n cases of convictions for crimes of the first and
second degree where the court is clearly convinced that
the mitigating factors substantially outweigh the
aggravating factors and where the interest of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
that of the crime for which he was convicted.
[N.J.S.A. 2C:44-1(f)(2).]
When a court sentences a defendant to a term appropriate to a crime one
degree lower than that of which she was convicted, the presumption of
incarceration attached to the original degree of the crime applies. State v. Nance
228 N.J. 378, 398-99 n.4 (2017). However, the presumption of imprisonment
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33
for a second-degree crime may be overcome where, "having regard to the
character and condition of the defendant," the court concludes that her
"imprisonment would be a serious injustice which overrides the need to deter
such conduct by others." See N.J.S.A. 2C:44-1(d).
The State challenges both the trial court's decision to sentence A.F. to a
term appropriate for crimes one degree lower than that of which she was
convicted and its conclusion that the presumption of incarceration attached to
her second-degree convictions was overcome.
[I]n sentencing under [N.J.S.A. 2C:44-1(f)(2)], a court
must apply the basic principles that are applicable to all
sentencing decisions under the Code. It is therefore,
paramount that the sentence reflect the Legislature's
intention that the severity of the crime now be the most
single important factor in the sentencing process. The
focus on the offense rather than the offender is
inexorable in formulating a sentence. The paramount
reason we focus on the severity of the crime is to assure
the protection of the public and the deterrence of others.
[State v. Megargel, 143 N.J. 484, 500 (1996).]
"In evaluating the severity of the crime, the trial court must consider the nature
of and the relevant circumstances pertaining to the offense. Every offense arises
in different factual circumstances." Ibid.In addition, "facts personal to the defendant may be considered in the
sentencing process." Id. at 501.
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Courts should consider a defendant's role in the incident
to determine the need to deter him from further crimes
and the corresponding need to protect the public from
him. Was the defendant the mastermind, a loyal
follower, an accomplice whose shared intent is
problematic, or an individual who is mentally incapable
of forming the necessary criminal intent?
[Ibid.]
"Deterrence is the key to the proper understanding of protecting the public."
Ibid. (citing In re C.A.H., 89 N.J. 326, 334 (1982)). "[D]emands for deterrence
are strengthened in direct proportion to the gravity and harmlessness of the
offense and deliberateness of the offender." Ibid. (alteration in original)
(quoting In re C.A.H., 89 N.J. at 337).
"The decision to downgrade a defendant's sentence 'in the interest of
justice' should be limited to those circumstances in which [a] defendant can
provide 'compelling' reasons for the downgrade." Id. at 501-502 (citing State v.
Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)). These reasons must be "in
addition to, and separate from," the mitigating factors that substantially
outweigh the aggravating factors. Id. at 505.
"The standard for overcoming the presumption of imprisonment is distinct
from that for downgrading an offense. Moreover, the reasons offered to dispel
the presumption of imprisonment must be even more compelling than those that
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35
might warrant downgrading an offense." State v. Evers, 175 N.J. 355, 389
(2003) (citing Megargel, 143 N.J. at 498-502). "In permitting consideration of
'the character and condition of the defendant' in determining whether
imprisonment would be a 'serious injustice,' the Code left 'a residuum of power
in the sentencing court not to imprison in those few cases where it would be
entirely inappropriate to do so.'" Id. at 389 (quoting Roth, 95 N.J. at 358(internal quotation marks omitted)).
"[T]his residuum of power may be legitimately exercised in those 'truly
extraordinary and unanticipated' cases where the 'human cost' of punishing a
particular defendant to deter others from committing his offense would be 'too
great.'" Ibid. (quoting State v. Rivera, 124 N.J. 122, 125 (1991) (internal
quotation marks omitted) and Roth, 95 N.J. at 358 (internal quotation marks
omitted)). As the Court explained,
Conceptually, this determination is very close to,
perhaps indistinguishable from, the determination that
"extreme mitigating factors" outweigh any aggravating
factors. However, the standard for invalidating
sentences because of a "serious injustice" is extremely
narrow: it should be applied only under circumstances
that are "truly extraordinary and unanticipated." This
court has rarely found such "extraordinary and
unanticipated" sentences.
[Jarbath, 114 N.J. at 406-07 (citing Roth, 95 N.J. at 355,
358).]
A-2610-17
36
For example, the presumption of incarceration was found to be overcome
where a mentally retarded and psychotic woman whose condition "prevented her
from really understand[ing] at all what she did wrong, or how it happened"
accidentally killed an infant, resulting in a manslaughter conviction. Id. at 405.
In State v. E.R., 273 N.J. Super. 262, 272 (App. Div. 1994), we found that the
presumption of incarceration was overcome "based on the fact that defendant
was suffering from HIV neuropathy, severe anemia, and leukopenia" and had
only six months to live.
Having carefully reviewed the record, we find no basis to reverse the trial
court's determination that A.F.'s crimes fall into the narrow category of offenses
that qualify for a reduction in degree for sentencing purposes and for which the
presumption of incarceration has been overcome. The record establishes that
A.F. suffered profound effects as the result of the near-fatal beating she endured
at the hands of her then boyfriend shortly before the events resulting in her
criminal acts. She was hospitalized for an extended period with a severe head
injury, which left her with lasting symptoms and exacerbated her existing
depression and alcohol addiction. The sentencing judge, who also presided at
the trial of A.F.'s assailant, acknowledged that the impact of the assault on A.F.
went unrecognized prior to the crash. She was provided no services to assist
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37
with the management of the emotional and physical consequences of the assault
and its impact on her existing conditions.
A.F.'s mental state, fragile in the aftermath of the assault, likely was the
cause of her poor judgment on the night that her friend called for help with an
ongoing domestic violence incident. This was an extraordinary circumstance
for A.F. There can be no doubt that A.F. made a series of decisions that created
an intolerable risk of harm to her children and the motoring public, including
the police officer she seriously injured: (1) to personally intervene in a domestic
violence incident instead of calling police to assist her friend; (2) to drive while
intoxicated and under the influence of medication; (3) to put her young children
in the car without safety seats; and (4) to disregard a stop sign. Those decisions,
however, can be traced directly to the untreated consequences of A.F. having
nearly been murdered in a horrific domestic violence assault a few months prior
to the crash.
The record also establishes that immediately after the crash, A.F. enrolled
in treatment for her substance abuse and mental health issues. As of sentencing,
she had maintained sobriety, regained custody of her children, and meaningfully
engaged in community service and public speaking addressing domestic
violence. The record supports the trial court's conclusion that A.F. is highly
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38
unlikely to reoffend and that her crimes were the result of a maelstrom of
extraordinary and unanticipated circumstances.
In reaching this conclusion, we in no way intend to diminish the
significant physical, emotional, and economic injuries A.F. caused the police
officer victim of her crimes. He suffered fractures and other physical injures
that ended his law enforcement career, affected his relationship with his family,
and imposed economic hardship on him and his family. In addition, A.F. caused
her six-year-old child internal injuries that required hospitalization. We are
satisfied, however, that the complex and unique circumstances surrounding
A.F.'s criminal acts warrant the trial court's sentencing decisions.
Finally, we have considered the State's arguments with respect to the
concurrent sentences, and the factual basis for the trial court's findings regarding
aggravating and mitigating factors, and conclude they are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The sentence imposed on A.F. in the March 2, 2018 judgment of
conviction and the June 23, 2017 order of the Law Division are affirmed.
Affirmed.
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39