                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-4905-17T2

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
      Plaintiff-Respondent,                       April 6, 2020

v.                                          APPELLATE DIVISION


JAKE PASCUCCI,

     Defendant-Appellant.
________________________

            Submitted September 18, 2019 – Decided April 6, 2020

            Before Judges Fuentes, Haas and Mayer.

            On appeal from the Superior Court of New Jersey,
            Law Division, Middlesex County, Indictment No.18-
            04-0261.

            Benedict and Altman, attorneys for appellant (Steven
            D. Altman and Philip Nettl, on the briefs).

            Gurbir S. Grewal, Attorney General, attorney for
            respondent (Lauren Bonfiglio, Deputy Attorney
            General, of counsel and on the brief).

      The opinion of the court was delivered by

FUENTES, P.J.A.D.

      Defendant Jake Pascucci pleaded guilty pursuant to a negotiated plea

agreement with the State to an accusation charging him with third degree strict
liability vehicular homicide. N.J.S.A. 2C:11-5.3a. Consistent with the terms of

the plea agreement, the Criminal Part judge sentenced defendant to a five -year

term of probation, conditioned on defendant serving 364 days in the county jail

pursuant to N.J.S.A. 2C:45-1(e). Mitigating factor five, N.J.S.A. 2C:44-1b(5),

allows the judge to consider whether the victim's conduct induced or facilitated

the commission of the crime. The sentencing judge concluded that mitigating

factor five is inapplicable to this case as a matter of law because N.J.S.A.

2C:11-5.3d provides: "It shall not be a defense to a prosecution under this

section that the decedent contributed to his [or her] own death by reckless or

negligent conduct or operation of a motor vehicle or vessel."

      In this appeal, defendant argues the sentencing judge misconstrued the

scope of N.J.S.A. 2C:11-5.3d when he held he was per se precluded from

considering the applicability of mitigating factor five. Defendant claims the

judge's erroneous refusal to consider evidence in the record that supports a

finding of mitigating factor five requires that we remand this matter for

resentencing.    The State concedes "the judge mistakenly believed that the

language of the statute precluded him from finding mitigating factor five[.]"

The State nevertheless argues that the judge "properly declined to apply that

mitigating factor."




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         We disagree with the State's position and remand this matter for

resentencing. It is our duty as an appellate court to determine: (1) whether the

judge followed the correct sentencing guidelines, (2) whether there is

substantial evidence in the record to support the judge's findings of fact, and

(3) whether the judge clearly erred when he reached a conclusion that was not

reasonably based upon a weighing all of the relevant factors. State v. Roth, 95

N.J. 334, 365-66 (1984).       Guided by these fundamental principles, we are

satisfied this sentence cannot stand because the judge did not conduct a

qualitative analysis of all of the relevant sentencing factors on the record.

State v. Fuentes, 217 N.J. 57, 70 (2014).

         A plain reading of the text in N.J.S.A. 2C:11-5.3d shows the Legislature

intended to prohibit a defendant from presenting evidence of the victim's

conduct as an affirmative defense in the prosecution of this offense.         The

sentencing judge clearly erred when he refused to consider whether the record

supported finding mitigating factor five.

         We gather the following facts from the record developed before the trial

court.

                                         I

         At approximately 8:15 p.m. on September 22, 2017, defendant Jake

Pascucci, an off-duty City of Long Branch Police Officer, was driving a Jeep



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Grand Cherokee on Ocean Boulevard when he struck and killed a pedestrian at

the intersection of Ocean Boulevard and South Broadway. The victim was a

sixty-six-year-old woman.       The detectives who responded to the scene

detected an odor of alcoholic beverage emanating from defendant's breath and

his person and noticed his speech and movements were slow and lethargic.

Defendant invoked his right to consult with an attorney and declined to

provide a statement to the detectives.

      The emergency medical staff who responded to the accident transported

defendant to the Monmouth Medical Center. Defendant consented to provide a

sample of his blood for toxicological testing. The analysis revealed his blood

alcohol content (BAC) was above the presumptive level of intoxication under

N.J.S.A. 39:4-50(a).1 On February 22, 2018, detectives from the Middlesex

County Prosecutor's Office charged defendant with third degree strict liability

vehicular homicide, N.J.S.A. 2C:11-5.3a, and driving a vehicle while

intoxicated (DWI), N.J.S.A. 39:4-50(a).


1
   Detectives from the Monmouth County Prosecutor's Office initially
investigated this case. Due to the conflict of interest presented by defendant's
status as a law enforcement officer with the Long Branch Police Department,
on September 27, 2017, the Attorney General transferred the investigation to
the Middlesex County Prosecutor's Office. On November 9, 2017, defendant,
joined by the State, moved to change venue of the case to Middlesex County.
On December 22, 2017, the Monmouth County Assignment Judge transferred
venue to Middlesex County.


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      On April 3, 2018, defendant entered into a negotiated agreement with the

State through which he waived his right to have this case presented to a grand

jury and pleaded guilty to an accusation that charged him with third degree

strict liability vehicular homicide and DWI.       Defense counsel addressed

defendant directly at the plea hearing to confirm he understood the terms of the

plea agreement:

            DEFENSE COUNSEL: And the plea agreement that
            was reached with the State is the State at sentencing is
            going to stand before the Judge and ask the Judge to
            place you on probation and as a condition of probation
            that you be sentenced to serve 364 days in the
            Middlesex County Adult Correction Center. Do you
            understand that?

            DEFENDANT: Yes I do.

            DEFENSE COUNSEL: That’s what the State is going
            to ask for and I, on your behalf, can ask the Judge to
            put you on straight probation with no jail at all.

            DEFENDANT: Yes.

            DEFENSE COUNSEL: And you understand it’s
            going to be completely within the discretion of the
            Judge what’s going to happen in terms of that County
            jail sentence. Do you understand that?

            DEFENDANT: Yes, I do.

            DEFENSE COUNSEL: And you also understand that
            you’re going to forfeit your law enforcement
            employment. Correct?

            DEFENDANT: Yes, I do.

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As part of his plea allocution, defendant stipulated that at the time he struck

and killed sixty-six-year-old K.B.,2 he was "under the influence with a blood

alcohol reading of .08 or in excess," which made him legally intoxicated under

N.J.S.A. 39:4-50(a).

       The court held the sentencing hearing on June 28, 2018. The prosecutor

and defense counsel submitted legal memoranda in support of their respective

positions.    The judge also considered the information contained in the

presentence investigation report 3 as well as the sentencing recommendations

made therein. Four individuals spoke on defendant's behalf: a Lieutenant in

the Long Branch Police Department; a man who described himself as one of

defendant's "best friends"; defendant's maternal uncle, who identified himself

as a former police officer; and defendant's mother. Eight members of the

victim's family and close friends addressed the judge.     They included the

victim's husband, her daughter, two of her siblings, her brother-in-law, the

reverend of her church, and two of her close friends.

       Defense counsel argued the record did not support finding any

aggravating factors under N.J.S.A. 2C:44-1a. Although specific deterrence is

2
  We refer to the victim by her initials out of respect to the members of her
family. See N.J.S.A. 52:4B-36a.
3
    See N.J.S.A. 2C:44-6; R. 3:21-2.


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axiomatic in a case of vehicular homicide caused by an intoxicated driver,

defense counsel argued aggravating factor nine, N.J.S.A. 2C:44-1a(9), was not

applicable here because defendant had lived an exemplary life. With respect to

the concept of general deterrence, defense counsel argued the Legislature

incorporated general deterrence of drunk driving as an element of this strict

liability crime.   Thus, finding aggravating factor nine in this case would

constitute double counting.

      Conversely, defense counsel argued the record supported mitigating

factor N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct

would cause or threaten serious harm), N.J.S.A. 2C:44-1b(4) (there were

substantial grounds tending to excuse or justify defendant’s conduct, though

failing to establish a defense), N.J.S.A. 2C:44-1b(5) (the victim of defendant’s

conduct induced or facilitated its commission), N.J.S.A. 2C:44-1b(7)

(defendant does not have a history of prior delinquency or criminal activity

and led a law-abiding life before the commission of this offense), N.J.S.A.

2C:44-1b(8) (defendant’s conduct was the result of circumstances unlikely to

recur), N.J.S.A. 2C:44-1b(9) (defendant's character and attitude indicate that

he is unlikely to commit another offense), and N.J.S.A. 2C:44-1b(10)

(defendant is particularly likely to respond affirmatively to probationary

treatment).   In this light, defense counsel asked the court to impose a



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probationary sentence without requiring defendant to serve a custodial term of

imprisonment as a condition of his probation, as authorized under N.J.S.A.

2C:45-1(e).

      The State urged the court to reject defendant’s request to find mitigating

factors N.J.S.A. 2C:44-1b(2) and (4) because the evidence did not provide any

justification or explanation for his decision to drive while intoxicated. The

prosecutor emphasized that the area where this occurred "was an open

intersection" and K.B. was "visibly crossing an open intersection" when

defendant drove his car into her.     The prosecutor argued mitigating factor

N.J.S.A. 2C:44-1b(5) was not applicable because the record did not show the

victim induced defendant to drive while intoxicated or otherwise facilitated her

own death.    The prosecutor also argued the record of this case clearly

supported finding aggravating factor N.J.S.A. 2C:44-1a(9). K.B.'s tragic death

indisputably demonstrated the need to strongly deter defendant and others like

him from driving while intoxicated.

      The judge found aggravating factor N.J.S.A. 2C:44-1a(9), and mitigating

factors N.J.S.A. 2C:44-1b(7), (8), (9), and (10), and sentenced defendant to a

five-year term of probation, conditioned on serving 364 days in the Middlesex

County Adult Corrections Center and completing an alcohol dependence

evaluation. If recommended by his probation officer, defendant was required



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to enroll in an out-patient or in-patient program for drug education, therapy,

and rehabilitation and complete all prescribed follow-up programs, until

medically discharged.       As a further condition of his probation, the court

ordered defendant "to find a new job within 30 days of release from the

Middlesex County Adult Correction Center."            The trial court stayed the

execution of the sentence pending the outcome of this appeal.

                                         II

      The only issues defendant raises on appeal concern the sentence imposed

by the trial court:

             POINT ONE

             I. DEFENDANT'S SENTENCE WAS EXCESSIVE,
             BECAUSE     THE    SENTENCING    COURT
             UNNCESSARILY CONSTRAINED ITSELF FROM
             FINDING ALL MITIGATING FACTORS, AND DID
             NOT EXPLAIN THE JUSTIFICATION FOR
             INCARCERATION.

                      A. The sentencing court unreasonably
                      "precluded" itself from considering
                      applicable mitigating factors.

                           1. The victim's role in the offense.

                           2. Defendant's extrapolated BAC.

                      B. The sentencing court's finding of
                      Aggravating Factor 9 was not supported
                      by the record.




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                   C. The trial court did not give a statement
                   of reasons for imposing a custodial
                   condition of probation.

      We agree the judge erred as a matter of law when he refused to find

mitigating factor five.   We are thus compelled to remand this matter for

resentencing.

      N.J.S.A. 2C:11-5.3a became effective on July 21, 2017, sixty-three days

before the incident that took K.B.'s life on September 22, 2017. The Model

Jury Charge the Supreme Court approved for this offense provides:

            In order for you to find the defendant guilty of this
            crime, the State must prove each of the following
            elements beyond a reasonable doubt:

            1. That the defendant was driving a vehicle;

            2. That the defendant caused the death of . . . the
            victim[]; and

            3. That the defendant caused such death by driving a
            vehicle while intoxicated in violation of N.J.S.A.
            39:4-50.

            [Model Jury Charges (Criminal), "Strict Liability
            Vehicular Homicide Driving While Intoxicated
            (N.J.S.A. 2C:11-5.3a)" (approved July 21, 2017).]

N.J.S.A. 2C:11-5.3d provides: "It shall not be a defense to a prosecution under

this section that the decedent contributed to his own death by reckless or

negligent conduct or operation of a motor vehicle or vessel."       (Emphasis

added).

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      The Supreme Court recently reaffirmed the guiding principles judges

must follow when confronted with a question of statutory construction:

            Our objective in interpreting any statute is to give
            effect to the Legislature's intent. Frugis v. Bracigliano,
            177 N.J. 250, 280 (2003). When the clear language of
            the statute expresses the Legislature's intent, our
            analysis need go no further. Shelton v.
            Restaurant.com, Inc., 214 N.J. 419, 429 (2013). When
            a plain reading of the statute allows for more than one
            plausible interpretation or leads to an absurd result or
            a result at odds with the overall statutory scheme, we
            may turn to extrinsic evidence. DiProspero v. Penn,
            183 N.J. 477, 492-93 (2005).

            [McClain v. Bd. of Review, Dept. of Labor, 237 N.J.
            445, 456 (2019).]

      A plain reading of the text in N.J.S.A. 2C:11-5.3d shows the Legislature

intended to preclude a defendant from presenting evidence of the victim's

conduct as an affirmative defense in the prosecution of this offense. The judge

erroneously construed the language in N.J.S.A. 2C:11-5.3d to preclude him

from considering whether the victim's conduct induced or facilitated her own

death, as provided in mitigating factor N.J.S.A. 2C:44-1b(5).

      Here, the appellate record contains an independent eyewitness account

of the incident.   This person gave a formal statement to Detective Eric

Kerecman on September 26, 2017. The witness was stopped at a traffic light

located on Broadway waiting to turn right onto Ocean Avenue. The statement




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the witness gave to Detective Kerecman provides the following account of how

the incident occurred:

            There was somebody in front of me who wasn’t
            turning that's why I was stationary. At that point I
            saw across the street there was a woman wearing [an]
            oversized white t-shirt, it looked like she was in
            pajamas. She was crossing the street on the North
            bound side and didn’t have the right of way. She
            walked through the grassy median and casually took a
            few steps off into the South bound lanes and started
            sprinting. The car came full speed and never saw her,
            from what I could tell, and hit her head on. She flew
            over the entire intersection and landed about
            approximately ten feet in the south bound lane on the
            road but against the medians curb.

            [(Emphasis added).]

      The judge made the following comments with respect to the applicability

of mitigating factor five:

            Defendant argues that [the victim] may have . . . some
            responsibility for being in the roadway that night, at
            night, perhaps not in the crosswalk, and subjecting
            herself to oncoming traffic.

            The State, on the other hand, argues that [the victim]
            did not force . . . defendant to consume any alcohol.

            This court has an obligation to look at all of the
            circumstances surrounding the incident. To the extent
            to which the victim may or may not have contributed
            to the accident would require a hearing, the testimony
            of witnesses, an accident reconstructionist. And at the
            end of the argument none of that applies here because
            of the nature of this statute.



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                                      12
               [(Emphasis added).]

      The judge also stated he was "familiar" with the statement the witness

gave to Detective Kerecman four days after the incident. The judge made

clear that in his judgment, he was legally precluded from considering this

evidence in determining whether defendant was entitled to assert mitigating

factor five.

               Even if the victim ran into the road the statute makes
               the offense one of a third-degree in contemplation that
               . . . a defendant cannot argue a contributing act of the
               victim, because this used to be a second-degree
               offense where there had to be reckless conduct.

               This law was enacted, if you will, to say, regardless of
               a victim’s contributory negligence, that the driver
               being a link in the chain that causes the death, by
               simply being in the vehicle and being under the
               influence is enough for a conviction.

               In essence, that the act, the death would not have
               occurred if the defendant did not get in the car while
               intoxicated.

      We conclude the judge's erroneous construction of N.J.S.A. 2C:11-5.3d

deprived defendant of a qualitative assessment of all the relevant mitigating

factors. State v. Case, 220 N.J. 49, 64 (2014). Under these circumstances, our

only viable option is to remand the matter to allow the judge to consider the

witness's statement and determine whether the record supports a finding of




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mitigating factor five. State v. Dalziel, 182 N.J. 494, 505 (2005). The judge

must thereafter reconsider the entire record and

             state reasons for imposing such sentence including
             findings pursuant to the criteria for withholding or
             imposing imprisonment or fines under N.J.S.A. 2C:44-
             1 to 2C:44-3; the factual basis supporting a finding of
             particular aggravating or mitigating factors affecting
             sentence; and, if applicable, the reasons for ordering
             forfeiture of public office, position or employment,
             pursuant to N.J.S.A. 2C:51-2.

             [R. 3:21-4(g).]

      In light of this determination, we do not reach defendant's remaining

arguments.

      Reversed and remanded. We do not retain jurisdiction.




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