STATE OF NEW JERSEY VS. VINCENT LAINGÂ (11-01-0018, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0289-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VINCENT LAING,
Defendant-Appellant.
__________________________________________
Submitted December 20, 2016 – Decided May 17, 2017
Before Judges Espinosa, Guadagno and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
11-01-0018.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant was convicted of second-degree vehicular homicide,
N.J.S.A. 2C:11-5(a) and N.J.S.A. 2C:11-5(b)(1), and third-degree
possession of a controlled dangerous substance (alprazolam),
N.J.S.A. 2C:35-10(a)(1). He appeals from his convictions and
sentence, presenting the following arguments for our
consideration:
POINT I
THE POLICE VIOLATED THE DEFENDANT'S
RIGHT AGAINST UNLAWFUL SEARCH AND
SEIZURE BY TAKING A BLOOD SAMPLE
WITHOUT A WARRANT OR CONSENT. U.S.
CONST., AMENDS. IV, XIV; N.J. CONST.
(1947), ART. 1, PAR. 7.
POINT II
THE STATE COMMITTED SUBSTANTIAL AND
PREJUDICIAL MISCONDUCT,
NECESSITATING REVERSAL. U.S.
CONST., AMEND. XIV; N.J. CONST.,
ART. 1, PARS. 9, 10 (PARTIALLY
RAISED BELOW).
A. STATE'S OPENING
B. STATE'S SUMMATION
C. QUESTIONING OF DETECTIVE
KERECMAN
POINT III
THE TRIAL COURT ABUSED ITS
DISCRETION IN DENYING DEFENDANT'S
MOTION TO ADMIT THE DRIVING RECORD
OF THE TAXI DRIVER INVOLVED IN THE
INCIDENT.
2 A-0289-14T2
POINT IV
THE TRIAL COURT IMPOSED AN EXCESSIVE
SENTENCE, NECESSITATING REDUCTION.
In a supplemental pro se brief, defendant presents the
following arguments:
POINT I
DEFENDANT'S CONSTITUTIONAL RIGHTS
TO DUE PROCESS AND TO A FAIR TRIAL
WERE VIOLATED BY THE TRIAL COURT'S
DENIAL OF HIS MOTION FOR JUDGMENT OF
ACQUITTAL AT THE END OF THE STATE'S
CASE AND FOR A NEW TRIAL BECAUSE THE
VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE.
POINT II
THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN ITS FAILURE TO
GIVE THE JURY A BALANCED RENDITION
OF THE FACTS. (NOT RAISED BELOW).
POINT III
THE TRIAL COURT COMMITTED PLAIN
ERROR IN ITS CHARGE TO THE JURY ON
THE CRITICAL ISSUE OF CAUSATION BY
FAILING TO DISCUSS THE EVIDENCE AND
LAW IN THE CONTEXT OF THE MATERIAL
FACTS INVOLVED IN THE CASE, DENYING
THE DEFENDANT'S FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO A FAIR
TRIAL. (NOT RAISED BELOW).
POINT IV
THE CUMULATIVE WEIGHT OF THE ERRORS
DEPRIVED DEFENDANT OF A FAIR TRIAL.
3 A-0289-14T2
After reviewing these arguments in light of the record and
applicable legal principles, we conclude that none have any merit.
We further conclude that the arguments raised by defendant in his
pro se supplemental brief lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
I.
Defendant's convictions follow a fatal motor vehicle accident
in Neptune at approximately 5:30 p.m. on June 24, 2009. According
to witness accounts, the Honda Accord driven by defendant was
traveling eastbound on Route 33 when it crossed over to the
westbound lanes at a high rate of speed, causing a mini-van cab
to turn into the eastbound lanes to avoid a collision. The Accord
drove, nearly head-on, into a Ford Focus driven by an eighty-two-
year-old woman, who was pronounced dead at the scene, having
suffered a fractured neck that dislocated her spine as well as
multiple fractures and lacerations. The impact of the collision
caused both cars to "fly up in the air" six to seven feet off the
ground. Defendant took no action to avert the accident or slow
down.
Accident reconstruction experts testified that defendant was
driving at approximately sixty-three to sixty-four miles per hour
and that he was in the victim's lane of travel "for a good amount
of time" prior to the collision. However, because the roadway
4 A-0289-14T2
crested and curved prior to the scene of the accident, the victim
would have had only seconds to react to defendant's car coming
toward her. The experts opined she applied her brakes and turned
her vehicle slightly but that defendant took "no avoidant action"
before the collision.
A passing motorist who happened to be an EMT stopped to
provide assistance. She found defendant to be "lethargic," with
blood on his face, "underneath the dashboard" of his vehicle. She
spoke to defendant, stabilized his head and, when first responders
arrived approximately five minutes later, she turned his care over
to them.
The first responders to the accident included the fire
department, first aid, the Monmouth Ocean Hospital Service
Corporation, the New Jersey State Police, Neptune Township Police,
the Monmouth County Prosecutor's Office, the Serious Collision
Analysis Response Team (SCART), the Department of Transportation
and the Office of Emergency Medicine. The Fatal Motor Vehicle
Accident Unit (Fatal Accident Unit) of the prosecutor's office was
contacted at 6:10 p.m. Efforts to extricate the victim from her
vehicle were abandoned when she was pronounced dead at 6:30 p.m.
The on-scene investigation by SCART continued for at least two
hours more as SCART made assessments, photographed and diagrammed
5 A-0289-14T2
the roadway. Detective Eric Kerecman, a Fatal Accident Unit
officer, remained on the scene until 9:30 p.m.
Defendant was treated at the scene by first aid members and
paramedics, who provided him with intravenous fluids but no
medications. He was transported to Jersey Shore University Medical
Center.
The continuing investigation at the accident scene revealed
no skid marks or deformity in the roadway or any road construction
in the area. A search for items in defendant's car that might
have contributed to the accident, such as food, drink or a
cellphone, was fruitless. A subsequent test of the two vehicles
showed they were in good mechanical working order prior to the
accident.
Upon defendant's arrival at the hospital, a trauma unit nurse
found him to be "[a]wake, alert, oriented times three," and
"complaining of hip pain," which proved to be a dislocated hip.1
Defendant was given medication, including five milligrams of
morphine, two milligrams of Versed and one hundred milligrams of
Diprivan.
1
Defendant testified that he also had a broken left forearm, a
fractured pelvis and a broken "ball and socket joint, the bone
that holds your leg to your hip." Defendant remained hospitalized
until July 3, 2009.
6 A-0289-14T2
At approximately 7:20 p.m., a trauma technician drew samples
of defendant's blood at the request of Brian Foy, a Neptune
Township police officer.2 Foy testified he read a consent form for
the blood sample to defendant as required by the department's
procedure, despite the fact that defendant was either unconscious
or sedated at the time. Although defendant did not technically
refuse his request for a blood sample, Foy completed the consent
form as a refusal because he had not obtained defendant's consent.
An analysis of this blood sample revealed the presence of
twenty nanograms per milliliter of alprazolam (Xanax), thirty-
seven nanograms per milliliter of oxycodone,3 and 8.6 nanograms
per milliliter of morphine. A forensic psychopharmacologist
provided expert testimony, stating the concentration of these
drugs in defendant's blood would have negatively affected his
ability to perform "psychomotor and behavioral tasks," such as
driving.
After confirming with defendant's nurse that he was able to
speak to them, Sergeant Michael Zarro of the Neptune Township
2
A blood sample had been drawn and tested earlier for medical
purposes. No toxicological or alcohol content testing was done
of this sample.
3
Defendant was not given oxycodone at the hospital until 11:00
p.m.
7 A-0289-14T2
Police Department provided defendant with Miranda4 warnings and
obtained his consent to be questioned. Defendant stated he drove
from his home5 and was traveling eastbound on Route 33 when he
approached an intersection west of where the accident occurred.
Defendant told Zarro he did not remember anything from that point
on until he received medical care. Defendant also stated he had
taken thirty milligrams of oxycodone at 5:00 a.m. that day and one
milligram of Xanax at 11:00 p.m. the prior evening. Defendant's
testimony at trial was consistent with this statement.
II.
Defendant first argues his right to be free of unreasonable
searches and seizures, U.S. Const. amends. IV, XIV; N.J. Const.
art. 1, ¶ 7, was violated when the officer secured a blood sample
from him without a warrant or his consent. We disagree.
The scope of appellate review of a motion judge's findings
in a suppression hearing is limited. State v. Robinson, 200 N.J.
1, 15 (2009). An appellate court "must uphold the factual findings
underlying the trial court's decision so long as those findings
are supported by sufficient credible evidence in the record."
4
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).
5
Defendant's mother testified she was familiar with defendant's
symptoms when he was impaired by oxycodone and that he did not
show such signs when he left the house that day.
8 A-0289-14T2
State v. Elders, 192 N.J. 224, 243 (2007) (citation and internal
quotation marks omitted). "A trial court's findings should be
disturbed only if they are so clearly mistaken 'that the interests
of justice demand intervention and correction.'" Id. at 244
(quoting State v. Johnson, 42 N.J. 146, 162 (1964)).
In State v. Adkins, 221 N.J. 300, 311-12, 317 (2015), the
Supreme Court reviewed the application of Missouri v. McNeely, 569
U.S. ____, 133 S. Ct. 1552, 185 L. Ed. 2d 696 (2013),6 holding
that a totality of the circumstances test applies to warrantless
blood draws from drivers suspected of being under the influence.
The McNeely Court clarified that the dissipation of alcohol in the
blood did not establish a per se exigency that permitted blood to
be drawn from drunk driving suspects without a warrant. 569 U.S.
at ___, 133 S. Ct. at 1568, 185 L. Ed. 2d at 715. In State v.
Jones, 437 N.J. Super. 68, 80 (App. Div. 2014), aff'd on remand,
441 N.J. Super. 317 (App. Div. 2015), we reviewed the "special
facts" described in McNeely that would justify a warrantless blood
draw and noted the "salient points" in the analysis as follows:
[T]he dissipation of blood alcohol continues
to be an "essential" factor in analyzing the
totality of the circumstances; that time spent
investigating an accident and transporting an
injured suspect to the hospital causes delay;
6
Although this trial was completed before McNeely was decided,
its ruling is given retroactive effect. Adkins, supra, 221 N.J.
at 313.
9 A-0289-14T2
that obtaining a warrant will result in
further delay; and that such additional delay
will "threaten" the destruction of evidence.
The Supreme Court did not require the State
to show that the "further delay" would
substantially impair the probative value of a
blood sample drawn after a warrant was
obtained or that it was impossible to obtain
a warrant before the evidence was dissipated.
In short, the Court did not require proof that
evidence would be destroyed; it was sufficient
to show that delays "threatened" its
destruction.
[Id. at 79.]
Applying the totality of circumstances test in this case,
there were sufficient facts to support the taking of a warrantless
blood sample: a fatal accident that drew a massive response from
first responders, injuries to defendant that required
hospitalization, and a police investigation that lasted
approximately four hours. In their totality, the circumstances
presented an exigency that excused the officers from securing a
warrant because the attendant delay could have threatened the
destruction of the evidence of drugs in defendant's blood. There
is no reason to disturb the trial judge's decision to deny
defendant's suppression motion.
III.
Defendant argues that prosecutorial misconduct, in the form
of comments made by the prosecutor in opening and closing
10 A-0289-14T2
statements and in the questioning of a witness, deprived him of a
fair trial. We disagree.
In our review of the prosecutor's comments, the factors to
be considered include: "whether 'timely and proper objections'
were raised; whether the offending remarks 'were withdrawn
promptly'; . . . whether the trial court struck the remarks and
provided appropriate instructions to the jury . . . [and] whether
the offending remarks were prompted by comments in the summation
of defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012)
(citations omitted), cert. denied, ___ U.S. ___, 133 S. Ct. 1504,
185 L. Ed. 2d 558 (2013).
Generally, if no objection was made to the
improper remarks, the remarks will not be
deemed prejudicial. Failure to make a timely
objection indicates that defense counsel did
not believe the remarks were prejudicial at
the time they were made. Failure to object
also deprives the court of the opportunity to
take curative action.
[State v. Timmendequas, 161 N.J. 515, 576
(1999) (citations omitted), cert. denied, 534
U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89
(2001).]
A.
Defendant cites the following excerpt from the prosecutor's
opening statement:
[T]he cab driver, made an immediate left-hand
turn to avoid Mr. Laing but [the victim] was
not so lucky. He bore down on her
relentlessly, without any attempt to stop,
11 A-0289-14T2
without any attempt to get out of the way, and
with an incredibly unimaginable horrifying
collision of metal on metal he stopped the
world and [the victim] was gone. She died
instantaneously.
There was no objection to these comments at trial. Defendant
now contends this comment improperly appealed to the jury's passion
rather than presented an argument that focused on the facts to be
proved. Certainly, the prosecutor used colorful language to
introduce the jury to the facts that would be proven. But, this
excerpt did not stray from the facts as they would be presented
through the testimony of multiple witnesses who observed the
collision or its aftermath. We discern no plain error. R. 2:10-
2.
B.
In summation, the prosecutor referred to the defendant more
than once as a "three-time convicted felon." Defendant argues
these references constituted an impermissible personal attack. We
disagree.
Defense counsel objected to the first of these references,
interrupting the prosecutor mid-sentence. The judge overruled the
objection.7 The prosecutor's subsequent references to defendant
as a three-time felon were part of her attack on his credibility,
7
Because the sidebar conference was not recorded, we do not know
what arguments were made.
12 A-0289-14T2
most particularly his contention that he received the Xanax he
took from a doctor as loose pills in an unlabeled bottle without
a prescription. We note the second time she made this reference,
there was no objection and the prosecutor accompanied the reference
with a reminder to the jury that the judge had instructed them on
the proper use of defendant's prior convictions. Defendant does
not contend the trial judge failed to provide such appropriate
instructions, albeit not during the summation.
Defendant concedes that the references to defendant's record
were made to attack his credibility, a permitted use. Nonetheless,
defendant argues that because the prosecutor did not phrase her
reference in such a way as to convey that this was "its only
permissible use – it reinforced the implication of [the] argument,
that the defendant's guilt or innocence should be evaluated by the
jury in light of his record." We are not persuaded by this
argument.
Defendant also argues the prosecutor improperly denigrated
the defense. In summation, defense counsel argued defendant did
not consciously disregard the risk of driving after taking
medication because his experience in driving after taking the drug
was that he was not impaired. She also argued he did not cause
the collision; that the accident was caused because the cab swerved
into defendant's lane. This argument relied upon one description
13 A-0289-14T2
by a passenger witness, stating the driver had swerved.
Defendant's testimony did not provide support for this defense
theory. In fact, when asked on direct examination if he recalled
a van or cab driving in front of him, cutting him off before the
accident, defendant testified, "No, I don’t."
After reviewing evidence that supported the State's case, the
prosecutor drew an objection after stating, "Now, if in fact, it
was the fault of the cab driver, why would [the passenger witness]
come in here and vouch for him? For the defense version to work,
there would have to be a conspiracy of epic proportions between
all of the State's witnesses." Because the recording of the
sidebar conference that followed was inaudible, we do not know the
arguments made before the trial judge overruled the objection.
Defense counsel objected on similar grounds a second time
when the prosecutor stated, "So let's take a look at some of the
detours that we had in terms of the evidence in this case." This
time, the trial judge sustained the objection and promptly gave
the jury a curative instruction, emphasizing the State's burden
to prove guilt beyond a reasonable doubt, and directing the jury
to "ignore any reference to any questions asked as detours."
Contrary to defendant's argument, the challenged comments did
not suggest the defense was contrived, see, e.g., State v. Setzer,
268 N.J. Super. 553, 565-66 (App. Div. 1993), certif. denied, 135
14 A-0289-14T2
N.J. 468 (1994). Rather, the argument countered the defense
summation by exploring the improbability that the State's evidence
was contrived.
Prosecutors "are expected to make vigorous and forceful
closing arguments to juries," State v. Frost, 158 N.J. 76, 82
(1999), and "are afforded considerable leeway in that endeavor."
State v. Jenewicz, 193 N.J. 440, 471 (2008) (quoting State v.
Nelson, 173 N.J. 417, 460 (2002)). The prosecutor's comments here
did not exceed permissible bounds.
C.
Defendant also argues the prosecutor committed misconduct in
her direct examination of Detective Kerecman, the Fatal Accident
Unit investigator, contending that the questions were designed to
elicit expert opinion from a lay witness.
Detective Kerecman testified that his duties as a member of
the Fatal Accident Unit were to respond to serious injury and
fatal accident collision scenes and aid in the investigations. He
received specialized training that included courses in crash
investigation and vehicle dynamics at Northwestern University and
an accident reconstruction course presented by the Institute of
Police Technology and Management. As of the time of the accident
in this case, Detective Kerecman had participated in the
investigation of eighty-five to one hundred serious and fatal
15 A-0289-14T2
crashes. He was not offered as an expert in accident
reconstruction, however.
During the course of his testimony, defense counsel made
repeated objections that were sustained by the judge, who expressly
limited Detective Kerecman's testimony to what he observed,
excluding opinion testimony. Nonetheless, defendant contends the
posing of questions that tested the limits of lay opinion
testimony, as to which objections were sustained, constituted
misconduct that warrants reversal. This argument lacks any merit.
IV.
It is not disputed that the cab driver crossed lanes from the
westbound to the eastbound lanes of Route 33. One of his
passengers testified the cab driver did so after she warned that
defendant's vehicle was coming at them and was going to hit the
cab. The passengers also testified that, following the accident,
it was agreed the cab driver would drive them to their destination
because one of them had a curfew, and then return to the accident
scene to provide a statement to the police officers and the contact
information for the passengers. The driver did so.
16 A-0289-14T2
Defendant contends his defense was that the collision was
caused when he attempted to avoid the cab.8 He sought to introduce
a certified abstract of the driving record of the cab driver, who
died prior to the trial. According to defendant, the abstract
showed that over the course of his driving career, the cab driver
had accumulated fifty-six points but that, at the time of the
accident, he had no points.
In furtherance of his theory that the cab driver was at fault,
defendant contends the abstract supports an inference that the cab
driver's departure from the accident scene reflected a
consciousness of guilt and a desire to avoid possible consequences
to his driver's license status as a result of the accident. He
argues the trial judge abused his discretion in denying his motion.
This argument lacks merit.
We accord a trial judge's evidentiary ruling "substantial
deference," State v. Morton, 155 N.J. 383, 455 (1998), cert.
denied, 532 U.S. 941, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001),
and will reverse only when the trial judge's ruling was "so wide
of the mark that a manifest denial of justice resulted." State v.
Carter, 91 N.J. 86, 106 (1982).
8
As we have noted, defendant did not testify that the accident
was caused by his attempt to avoid the cab. He had no memory of
the accident and, specifically, did not recall a van or cab cutting
him off before the accident.
17 A-0289-14T2
Citing State v. Weaver, 219 N.J. 131, 150 (2014), defendant
argues a defendant's request to admit evidence of prior bad acts
by third parties is viewed with greater liberality than a similar
motion filed by the State and that the abstract here met the
standard of relevance to warrant its admission. We disagree.
A defendant generally may introduce "similar other—crimes
evidence defensively if in reason it tends, alone or with other
evidence, to negate his guilt." Id. at 150 (quoting State v.
Garfole, 76 N.J. 445, 453 (1978)). Although the standard to be
applied to the admissibility of the proffered evidence is "simple
relevance to guilt or innocence," ibid. (quoting Garfole, supra,
76 N.J. at 452-53),
trial courts must still determine that the
probative value of the evidence is not
substantially outweighed by any of the Rule
403 factors, which are "undue prejudice,
confusion of issues, or misleading the jury,"
and "undue delay, waste of time, or needless
presentation of cumulative evidence." This
determination is highly discretionary.
[Id. at 151 (citations omitted).]
The trial judge here acknowledged the correct standard for
determining whether defendant's request should be granted. He
carefully reviewed the logical steps in defendant's argument,
agreeing there was evidence to support an inference that the cab
driver's departure evinced a consciousness of guilt for causing
18 A-0289-14T2
the accident. The judge observed, however, that defendant sought
to admit the abstract to support the argument that the cab driver
"was motivated to leave the scene . . . because he feared getting
another motor vehicle ticket or violation in addition to those he
had received in the past." The judge rejected this argument as
"based upon speculation and conjecture," noting there was no
evidence to support it. He noted further there was no evidence
that the cab driver "would have suffered any enhanced penalty, a
loss of license, a period of imprisonment, or anything else because
of his prior record of motor vehicle violations." Although the
judge found the proffered evidence was not "in any way probative
of defendant's guilt or innocence," he stated further that any
probative value was "substantially outweighed by the evidence's
prejudicial effect," i.e., that the driving abstract "would create
a substantial danger of confusing the issues or of misleading the
jury."
Even when other-crimes evidence is relevant, the trial judge
may still exclude the evidence where its probative value is minimal
or outweighed by the Rule 403 factors. See Weaver, supra, 219
N.J. at 150-51; State v. Cook, 179 N.J. 533, 568-69 (2004). In
his thoughtful analysis of the evidentiary issue, the trial judge
properly applied the correct legal standard and concluded: the
proffered evidence lacked any probative value and had a substantial
19 A-0289-14T2
likelihood to confuse the jury. These findings were supported by
the record. We discern no abuse of discretion.
V.
The State filed a motion that sought the imposition of a
discretionary extended term pursuant to N.J.S.A. 2C:44-3(a) and
N.J.S.A. 2C:43-7(a). Defense counsel did not dispute that
defendant met the statutory criteria for a discretionary extended
term but urged the court to either refrain from imposing an
extended term or impose the extended term on the controlled
dangerous substance (CDS) charge. After reviewing the standards
applicable to the imposition of an extended term and defendant's
record of convictions, the trial judge concluded that defendant
qualified as a persistent offender for sentencing to a
discretionary extended term.
The trial judge rejected the State's request to find
aggravating factors one, two and twelve, N.J.S.A. 2C:44-
1(a)(1),(2) and (12), found aggravating factors three, six and
nine, N.J.S.A. 2C:44-1(a)(3), (6) and (9), and no mitigating
factors. The judge made additional findings to support his
conclusion that it was appropriate to consider the full sentence
range available under N.J.S.A. 2C:44-3(a) and N.J.S.A. 2C:43-7(a),
i.e., five to twenty years. The judge further noted he was mindful
that any sentence on the vehicular homicide charge was subject to
20 A-0289-14T2
the eighty-five percent parole ineligibility period of the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a three-year
period of parole supervision. Although the judge found a mid-
range sentence within the extended range appropriate, he elected
to impose a moderately lower sentence because the underlying
criminal conduct was not intentional. On the vehicular homicide
charge, the sentence imposed was: eleven years, subject to NERA;
a three-year period of parole supervision; a ten-year suspension
of driving privileges to commence upon his release and appropriate
fines and penalties. On the CDS charge, the sentence imposed was:
a concurrent term of five years, a two-year suspension of driving
privileges and appropriate fines and penalties.9
On appeal, defendant argues the trial judge erred in imposing
an aggregate extended term sentence of eleven years subject to
NERA. He does not dispute that the trial judge followed
appropriate procedures in sentencing him but contends "the court's
findings, while meticulous, were so wide of the mark as to
constitute an abuse of discretion." We disagree.
We apply a deferential standard to our review of sentencing
determinations. State v. O'Donnell, 117 N.J. 210, 215 (1989).
The appellate court must affirm the sentence
unless (1) the sentencing guidelines were
9
Defendant was also sentenced on multiple motor vehicle charges
related to the fatal accident that are not challenged on appeal.
21 A-0289-14T2
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 State v.
Roth, 95 N.J. 334, 364-65 (1984)).]
None of these reasons apply here. The sentencing
determination will remain undisturbed.
Affirmed.
22 A-0289-14T2