                                NOT FOR PUBLICATION WITHOUT THE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-4310-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSEPH A. FERRETTI,

     Defendant-Appellant.
_____________________________

                    Argued December 16, 2019 – Decided April 30, 2020

                    Before Judges Rothstadt, Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Bergen County, Indictment No. 16-05-0577.

                    Brian J. Neary argued the cause for appellant (Law
                    Offices of Brian J. Neary, attorneys; Brian J. Neary, of
                    counsel; Jane M. Personette, on the brief).

                    Ian C. Kennedy, Assistant Prosecutor, argued the cause
                    for respondent (Mark Musella, Prosecutor, attorney;
                    Ian C. Kennedy, of counsel and on the brief; John J.
                    Scaliti, Legal Assistant, on the brief).

PER CURIAM
      Defendant Joseph Ferretti appeals from his conviction by jury for second-

degree vehicular homicide, N.J.S.A. 2C:11-5 (count one), 1 and his five-year

prison sentence, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. Defendant and codefendant Joseph Meyer were driving two Ferraris to a

function at the Meadowlands Sports Complex when defendant's red Ferrari

crossed the double-yellow line on Berrys Creek Road and collided with a

motorcycle, causing the motorcyclist massive injuries that resulted in his death.

The State contended both defendants were traveling at a high rate of speed

before the collision with the motorcycle.

      Meyer accepted the State's offer to plead guilty to second-degree vehicular

homicide,2 N.J.S.A. 2C:11-5, and provide truthful testimony if called as a

witness in defendant's trial, in exchange for the State's recommendation that he

be sentenced in the third-degree to a five-year probationary sentence

conditioned on 364 days in the county jail. Defendant opted to go to trial. The




1
  The trial court granted defendant's motion for judgment of acquittal at the
conclusion of the State's case and dismissed the other indicted charge, first -
degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count two). R. 3:18-1.
2
  The other indicted charge, first-degree aggravated manslaughter, N.J.S.A.
2C:11-4(a) (count two), was dismissed pursuant to Meyer's plea agreement.
                                                                         A-4310-17T1
                                       2
defense theory, as set forth in his merits brief, was that neither defendant nor

Meyer was racing or

            driving at "race speed." Rather, immediately preceding
            the collision which occurred within a couple hundred
            yards of his destination [at which the Ferraris were to
            be delivered, defendant] was safely driving on a
            relatively deserted, four-lane road, which had been
            recently paved and for which no speed limit was posted.
            . . . Meyer's loss of control of his own vehicle caused
            him to enter [defendant's] lane of travel, thereby forcing
            [defendant] to cross the double-yellow lines and enter
            the lane of oncoming traffic, where he collided with
            [the motorcyclist], whose recent use of marijuana had
            the clear capacity to impact his ability to safely operate
            his own vehicle.

Defendant averred the motorcyclist had smoked marijuana the prior evening and

still had two metabolites of marijuana in his system at the time of the accident,

evidenced by toxicology screens of blood and urine samples drawn at the

motorcyclist's autopsy. Defendant proffered Dr. Robert Pandina as an expert in

the field of psychopharmacology and toxicology, who opined the motorcyclist

was under the influence of marijuana at the time of the accident. The trial court

granted the State's motion to bar Dr. Pandina's testimony. On appeal, defendant

argues:

            POINT I

            THE TRIAL COURT ERRED IN PRECLUDING
            DEFENDANT'S EXPERT FROM TESTIFYING

                                                                         A-4310-17T1
                                        3
            REGARDING     THE      [MOTORCYCLIST'S]
            INTOXICATION AND ITS RELEVANCE TO
            CAUSATION AS WELL AS RECKLESSNESS.

                  A.    STANDARD OF REVIEW.

                  B.    THE MARKEDLY DEFICIENT AND
                        UTTERLY PREJUDICIAL NATURE OF
                        THE STATE'S APPLICATION ALONE
                        WARRANTED IT[]S DENIAL.

                  C.    THE LEGAL INVALIDITY OF THE
                        APPLICATION, MOREOVER,
                        DEMANDED IT BE REJECTED.

            POINT II

            THE TRIAL COURT FAILED TO PROPERLY
            INSTRUCT THE JURY ON CAUSATION,
            DEPRIVING DEFENDANT OF HIS RIGHTS TO AN
            IMPARTIAL ADJUDICATION, DUE PROCESS,
            AND A FAIR TRIAL.

            POINT III

            THE CUMULATIVE ERRORS COMM[I]TTED IN
            THIS CASE WARRANT A REVERSAL OF
            DEFENDANT'S CONVICTION [AND] A NEW
            TRIAL.

            POINT IV

            DEFENDANT'S SENTENCE MUST BE REDUCED.


Having reviewed the record, and in light of the applicable law, we affirm.



                                                                        A-4310-17T1
                                       4
      Defendant argues the trial court erred in granting the State's motion, filed

during the trial, to bar Dr. Pandina's testimony because it was relevant to the

issues of causation and recklessness. Thus the linchpin to this argument, as well

as defendant's contention that the judge failed to properly instruct the jury on

causation, is the relevancy of the evidence to the State's contention that

defendant's guilt was based on one theory of causation: the actual result of

defendant's recklessness was within the risk of which he was aware.

      Relevant evidence has "a tendency in reason to prove or disprove any fact

of consequence to the determination of the action." N.J.R.E. 401; see also State

v. Coruzzi, 189 N.J. Super. 273, 302 (App. Div. 1983). It "need only have some

tendency to prove a material fact." Coruzzi, 189 N.J. Super. at 302. The inquiry

is "whether the thing sought to be established is more logical with the evidenc e

than without it." Ibid.

      In a second-degree vehicular homicide prosecution, the State must prove

beyond a reasonable doubt that (1) "defendant was driving a vehicle"; (2)

"defendant caused the death"; and (3) the death was caused by driving a vehicle

recklessly. State v. Eldridge, 388 N.J. Super. 485, 494 (App. Div. 2006). As to

the third element:

            A person acts recklessly with respect to a material
            element of an offense when he consciously disregards

                                                                          A-4310-17T1
                                        5
            a substantial and unjustifiable risk that the material
            element exists or will result from his conduct. The risk
            must be of such a nature and degree that, considering
            the nature and purpose of the actor's conduct and the
            circumstances known to him, its disregard involves a
            gross deviation from the standard of conduct that a
            reasonable person would observe in the actor's
            situation.

            [N.J.S.A. 2C:2-2(b)(3).]

      Examination of the causation element involves a multi-step process

described by our Supreme Court in State v. Buckley, 216 N.J. 249 (2013). See

N.J.S.A. 2C:2-3(a). First, a jury must determine if a defendant's conduct was

"an antecedent but for which the result in question would not have occurred ,"

characterized by the Court as the "but for" test under N.J.S.A. 2C:2-3(a)(1).

Buckley, 216 N.J. at 263. Next, inasmuch as vehicular homicide requires the

State to prove recklessness, the jury must "conduct[] a 'culpability assessment'

under N.J.S.A. 2C:2-3(c)," id. at 263-64 (quoting State v. Pelham, 176 N.J. 448,

460 (2003)), which provides in part:

            When the offense requires that the defendant recklessly
            . . . cause a particular result, the actual result must be
            within the risk of which the actor is aware or, . . . if
            not, the actual result must involve the same kind of
            injury or harm as the probable result and must not be
            too remote, accidental in its occurrence, or dependent
            on another's volitional act to have a just bearing on the
            actor's liability or on the gravity of his offense.


                                                                         A-4310-17T1
                                        6
              [Id. at 263 (alterations in original) (emphasis added)
              (quoting N.J.S.A. 2C:2-3(c)).]

The "actual result" in a vehicular homicide case is the accident victim's death.

Id. at 264.

      The Buckley Court recognized bifurcated prongs of N.J.S.A. 2C:2-3(c)—

separated by the words, "if not"—in vehicular homicide cases. The first prong,

focusing on the first part of the subsection,

              predicates a finding of causation upon proof that "the
              actual result" was "within the risk of which the actor is
              aware." N.J.S.A. 2C:2-3(c). Alternatively, causation
              may be proven under the second component of the
              statutory test: whether "the actual result" involves the
              "same kind of injury or harm as the probable result,"
              and whether it is "too remote, accidental in its
              occurrence, or dependent on another's volitional act to
              have a just bearing on the actor's liability or on the
              gravity of his offense." Ibid.

              [Id. at 254-55 (emphasis added).]

      The Court, recognizing "the first prong of N.J.S.A. 2C:2-3(c) requires the

jury to assess whether the defendant was aware that his allegedly reckless

driving gave rise to a risk of a fatal motor vehicle accident," held: "If the jury

determines that the State has proven beyond a reasonable doubt that the

defendant understood that the manner in which he or she drove created a risk of




                                                                          A-4310-17T1
                                         7
a traffic fatality, the element of causation is established under the first prong of

N.J.S.A. 2C:2-3(c)." Id. at 264.

      Defendant contends that the jury should have been allowed to consider

evidence related to the second prong and "determine whether intervening causes

or unforeseen conditions lead to the conclusion that it is unjust to find that the

defendant's conduct is the cause of the actual result." Pelham, 176 N.J. at 461

(quoting State v. Martin, 119 N.J. 2, 13 (1990)). "'Intervening cause' is defined

as '[a]n event that comes between the initial event in a sequence and the end

result, thereby altering the natural course of events that might have connected a

wrongful act to an injury.'" Ibid. (alteration in original) (quoting Black's Law

Dictionary 212 (7th ed. 1999)); see also Buckley, 216 N.J. at 265 ("[A]n

'intervening cause' denotes an event or condition which renders a result 'too

remote, accidental in its occurrence, or dependent on another's volitional act' to

fairly affect criminal liability or the gravity of the offense." (quoting N.J.S.A.

2C:2-3(c); Pelham, 176 N.J. at 461-62)). Defendant urges Dr. Pandina's opinion

that the motorcyclist was under the influence of marijuana and impaired when

he was operating the vehicle at the time of the accident was relevant to the

elements of recklessness and causation.




                                                                            A-4310-17T1
                                         8
      Dr. Pandina explained his view at a N.J.R.E. 104 hearing. Relying on

Buckley, the trial court barred the doctor's testimony, finding it irrelevant to the

"but for" test and the first prong of the culpability assessment. We review that

ruling for an abuse of discretion and will "not 'substitute [our] own judgment for

that of the trial court' unless there was a 'clear error in judgment' —a ruling 'so

wide of the mark that a manifest denial of justice resulted.'" State v. Scott, 229

N.J. 469, 479 (2017) (quoting State v. Perry, 225 N.J. 222, 233 (2016)).

      The Buckley Court recognized a clear demarcation in prosecutions

involving only the first prong of the culpability assessment from those under the

second prong. 216 N.J. at 266. Perpending the Legislature's inclusion of "if

not" between the two culpability assessments in N.J.S.A. 2C:2-3(c), the Court

determined they were alternate theories, and if the State proved that a "defendant

understood that the manner in which he or she drove created a risk of a traffic

fatality," causation was established under the first prong. Id. at 264.

      The Court's ruling recognized each prong "as a basis to convict [a]

defendant." Id. at 266. Thus, if the State chooses to narrow its prosecution to

the first prong, as it did in Buckley and this case, a reviewing court need "not

consider the potential import of [a] defendant's arguments with regard to the

statute's second prong." Ibid. The Court was cognizant of earlier decisions it


                                                                            A-4310-17T1
                                         9
described as focusing on the second prong, including our 2006 holding in

Eldridge, 388 N.J. Super. at 499-500, that "keeping with the teaching of Martin,

whenever causation is in dispute and whenever the State and defendant offer

contrasting theories of causation, the court's charge to the jury must explain the

legal consequences of accepting not only the State's theory, but also the

defendant's theory of causation," Buckley, 216 N.J. at 265-66.         The Court

distinguished those and other cases3 it said focused on the second prong, and

endorsed the State's prosecution under the first prong of N.J.S.A. 2C:2-3(c)

without entailing the second prong. Ibid.

      The State's choice to restrict its prosecution to the first prong limited the

admissible evidence to that relevant to the narrower issue of causation. See id.

at 267 ("As we noted in Pelham, 'the jury may consider only that which the law

permits it to consider.'" (quoting Pelham, 176 N.J. at 466)). The Court observed:

"To be admissible on the issue of causation, the evidence at issue must be

relevant to the jury's inquiry under the first prong of N.J.S.A. 2C:2-3(c)." Ibid.




3
  The cases cited by the Court were: Pelham, 176 N.J. at 450-52; State v.
Jamerson, 153 N.J. 318, 335-36 (1998); Martin, 119 N.J. at 9-10; Eldridge, 388
N.J. Super. at 487-88; and State v. Radziwil, 235 N.J. Super. 557, 570 (App.
Div. 1989), aff'd o.b., 121 N.J. 527, 528 (1990). Buckley, 216 N.J. at 265-66.
                                                                           A-4310-17T1
                                       10
        The Buckley Court focused on the determinations the jury would have to

make in deciding the causation issue: first, the "but for" test; then, under the

first prong, "whether 'the actual result' was 'within the risk of which the actor is

aware.'" Ibid. (quoting N.J.S.A. 2C:2-3(c)). That analysis is apropos to this

case.

        Defendant's contention, advanced by Dr. Pandina, that the motorcyclist

was under the influence at the time of the accident, was irrelevant to the jury's

inquiry if the manner in which he drove his vehicle was the antecedent cause of

the accident that resulted in the motorcyclist's death. "The 'but for' test of

N.J.S.A. 2C:2-3(a) focuses the jury entirely upon the role of the defendant's

conduct—the manner in which he drove before and during the collision." Ibid.

As in Buckley, the State was required to "demonstrate nothing more than that

the fatal accident would have been avoided had defendant not driven [the red

Ferrari] in the manner in which he did." See ibid. Dr. Pandina's opinion about

the effect of the metabolites in the motorcyclist's blood and urine bear no

relevance to that issue.

        So too, his opinion was irrelevant to the jury's first-prong analysis of

whether defendant was aware that the manner in which he operated the Ferrari

created a risk of the fatal collision. See id. at 267-68. "If the jury determines


                                                                            A-4310-17T1
                                        11
that defendant was aware that his conduct gave rise to such a risk, it need not

assess the exact degree of that risk, or the variables that could affect its

magnitude." Id. at 268.

      We agree with the trial court's conclusion that there was no nexus between

Dr. Pandina's expert testimony and either the "but for" test or the first statutory

prong. In fact, neither the motorcyclist's alleged impairment from marijuana

ingestion the night before the accident nor his failure to come to a complete stop

at the stop sign before he turned and travelled three-hundred feet—without any

further evidence of improper operation—before defendant's vehicle crossed into

his lane and hit him head-on, was relevant to the jury's determination if the State

met its burden with regard to those issues. We, therefore, discern no abuse of

discretion in the judge's decision to preclude the evidence proffered by Dr.

Pandina. Scott, 229 N.J. at 479.

      We determine defendant's argument that the timing of the State's motion

to preclude Dr. Pandina's testimony was improper and "expose[d] its inherent

lack of validity," is without sufficient merit to warrant discussion in this opinion.

R. 2:11-3(e)(2). The ongoing trial provided better context for the trial court's

consideration of the proffered testimony's relevance. See State v. Cary, 49 N.J.

343, 352 (1967) (cautioning a trial court "generally should not rule on t he


                                                                             A-4310-17T1
                                        12
admissibility of particular evidence until a party offers it at trial"); see also State

v. Cordero, 438 N.J. Super. 472, 484 (App. Div. 2014). Defendant does not

allege or show any prejudice from the timing of the motion. His counsel met

and ably argued against the State's motion.

      Consistent with the trial court's adherence to the holding in Buckley, it

instructed the jury on the first prong of N.J.S.A. 2C:2-3(c) and, over defendant's

objection, omitted the instruction regarding the second prong.4 See Buckley,

216 N.J. at 266.

      The trial court instructed the jury:

                   Causation has a special meaning under the law.
             To establish causation the State must prove two
             elements, each beyond a reasonable doubt. First, that
             but for the defendant's conduct the result in question
             would not have happened. In other words, without the
             defendant's actions the result would not have occurred.
             Second, for reckless conduct that the actual result must


4
  The omitted portion of the model jury charge on second-prong
causation provides:

             [I]t must involve the same kind of injury or harm as the
             probable result and must also not be too remote, too
             accidental in its occurrence or too dependent on
             another’s volitional act to have a just bearing on the
             defendant's liability or on the gravity of his/her offense.

             [Model Jury Charges (Criminal), "Causation (N.J.S.A.
             2C:2-3)" (approved June 10, 2013).]
                                                                               A-4310-17T1
                                         13
            have been within the risk of which the defendant was
            aware.

                  In this case you've heard evidence that [the
            motorcyclist] failed to completely stop at a stop sign,
            had THC/[m]arijuana in his blood at the time of the
            incident. And that . . . defendant's and . . . Meyer's
            Ferraris may or may not have made contact at some
            point before the incident. I instruct that those items are
            not relevant to the issue of causation.

                  The issue of causation remains one that has to be
            decided by you as instructed earlier in my charge.
            However, the status of these items is not to be part of
            your consideration on the issue [of] causation.

      Defendant argues the omission deprived him of "his rights to an impartial

adjudication, due process, and a fair trial." "[A]ppropriate and proper charges

are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016)

(quoting State v. Reddish, 181 N.J. 553, 613 (2004)). "The trial court must give

'a comprehensible explanation of the questions that the jury must determine ,

including the law of the case applicable to the facts that the jury may fi nd.'" Id.

at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "Thus, the court

has an 'independent duty . . . to ensure that the jurors receive accurate

instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party.'"           Ibid.

(alteration in original) (quoting Reddish, 181 N.J. at 613). "Because proper jury


                                                                            A-4310-17T1
                                        14
instructions are essential to a fair trial, 'erroneous instructions on material points

are presumed to' possess the capacity to unfairly prejudice the defendant." Ibid.

(quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

      "While '[c]ausation is a factual determination for the jury to consider . . .

the jury may consider only that which the law permits it to consider.'" Buckley

216 N.J. at 263 (alterations in original) (quoting Pelham, 176 N.J. at 466). Here,

the trial court properly excluded the second-prong jury instruction.

      Defendant maintains that the second-prong instruction was required

because it was possible the jury could have found that evidence of one or more

of another's volitional act—the motorcyclist's marijuana impairment; the

motorcyclist's failure to come to a complete stop at the stop sign; Meyer's

operation of the silver Ferrari that caused defendant to travel into the oncoming

lane—were intervening causes that broke the chain of causation. As we have

already explained, that evidence is irrelevant and was properly excluded from

the jury's consideration which focused on the first prong, the State's only theory

of culpability.

      Even if we set aside the Buckley Court's recognition of discrete theories

of liability under N.J.S.A. 2C:2-3(c), and its approval of the State's prosecution

solely under the first prong, the motorcyclist's alleged transgressions are not


                                                                              A-4310-17T1
                                         15
intervening causes. Under the statutory second prong, "it is for the jury to

determine whether intervening causes or unforeseen conditions lead to the

conclusion that it is unjust to find that the defendant's conduct is the cause of

the actual result." Martin, 119 N.J. at 13.

            An "'intervening cause'" occurs when an event "'comes
            between the initial event in a sequence and the end
            result, thereby altering the natural course of events that
            might have connected a wrongful act to an injury.'"
            Pelham, 176 N.J. at 461. "Generally, to avoid breaking
            the chain of causation for criminal liability, a variation
            between the result intended or risked and the actual
            result of [the] defendant's conduct must not be so out of
            the ordinary that it is unfair to hold [the] defendant
            responsible for that result." Id. at 461-62. Thus, an
            "intervening cause" denotes an event or condition
            which renders a result "too remote, accidental in its
            occurrence, or dependent on another's volitional act" to
            fairly affect criminal liability or the gravity of the
            offense. See N.J.S.A. 2C:2-3(c); Pelham, 176 N.J. at
            461-62.

            [Buckley, 216 N.J. at 265 (alterations in original)
            (citations omitted).]


      Neither the motorcyclist's stop-sign violation nor his marijuana use—both

of which occurred well prior to the collision—was "an independent intervening

cause capable of breaking the chain of causation triggered by defendant's

wrongful actions," Pelham, 176 N.J. at 468, where the motorcyclist was hit head-



                                                                         A-4310-17T1
                                       16
on in his own lane of travel some three-hundred feet after he turned left after

passing the stop sign.

      Evidence that Meyer lost control of the silver Ferrari causing defendant to

travel into the motorcyclist's lane, likewise, does not "lead to the conclusion that

it is unjust to find that the defendant's conduct is the cause of the actual result."

Buckley, 216 N.J. at 265 (quoting Pelham, 176 N.J. at 461). The source of that

evidence was two witnesses present at the scene.

      Michael Demkowicz said he saw both Ferraris line up side-by-side and

come to a complete stop. He heard motors revving, describing the sound as

similar to what would be heard at a racetrack. He then saw the vehicles travel

at a high rate of speed—which he estimated was over eighty miles an hour—

down Berrys Creek Road, lose control and "bump each other." Another witness

present at the scene, Forest Harrell, heard engines revving—a noise familiar to

him from his experience working at NASCAR events—then saw two cars line

up very close to one another and travel down Berrys Creek Road at a high rate

of speed, which he estimated was over one hundred miles per hour. Within

"milliseconds," he saw "the silver and red car" spin out, heard a large bang and

saw smoke and debris flying. From where he was standing, there appeared to

be a collision between the silver and red cars.


                                                                             A-4310-17T1
                                        17
      Under the circumstances described by the witnesses, the loss of control

cannot be viewed as "an event or condition which renders a result 'too remote,

accidental in its occurrence, or dependent on another's volitional act' to fairly

affect criminal liability or the gravity of the offense." Ibid. (quoting N.J.S.A.

2C:2-3(c)).   The record amply demonstrates that the Ferraris were high-

performance motor vehicles capable of quick acceleration and high speeds. The

risk of bumping and losing control during the operation of those vehicles as

described by Demkowicz and Harrell is not "so out of the ordinary that it is

unfair to hold defendant responsible for that result." Pelham, 176 N.J. at 461-

62.

      Under the first prong of N.J.S.A. 2C:2-3(c), the jury determines whether

a fatal accident was within the risk of which defendant was aware. Buckley,

216 N.J. at 267-68. The jury, therefore, was properly instructed to consider that

risk in light of defendant's operation of the red Ferrari, part of which involved

defendant's awareness of the risk created by his operation next to the silver

Ferrari. Thus, Meyer's operation of the silver Ferrari is not an intervening cause

that necessitated the judge to instruct the jury on the second-prong theory of

causation.




                                                                          A-4310-17T1
                                       18
      The trial court's charge, consistent with the holding in Buckley, correctly

instructed the jury on only the first prong, providing "a road map to guide the

jury" so that it did not "take a wrong turn in its deliberations." State v. Galicia,

210 N.J. 364, 386 (2012) (quoting Martin, 119 N.J. at 15). The trial court did

not err by omitting the second-prong instruction.

      Finally, we address defendant's challenge to his sentence. Defendant

argues the five-year prison sentence imposed by the trial court "was manifestly

excessive and a clear abuse of discretion." He contends the sentence was grossly

disproportionate to that imposed upon Meyer. He also avers the trial court

should have found mitigating factors eight, nine and ten, N.J.S.A. 2C:44-1(b)(8),

(9) and (10); because he offers no explanation in his merits brief why those

factors should have been found, we deem that argument abandoned. See N.J.

Dep't of Envtl. Prot. v. Alloway Township, 438 N.J. Super. 501, 505-06 n.2

(App. Div. 2015) (holding that an issue raised "[i]n a single sentence in its brief"

is deemed waived).

      We review sentencing determinations with a deferential standard, see

State v. O'Donnell, 117 N.J. 210, 215 (1989), and will disturb a trial court's

sentence only in instances where the sentencing guidelines were not followed,

the aggravating and mitigating factors found by the trial judge were unsupported


                                                                            A-4310-17T1
                                        19
by the evidence, or the judge's application of the sentencing guidelines rendered

the sentence clearly unreasonable, State v. Roth, 95 N.J. 334, 364-65 (1984).

Under that deferential standard, only when the facts and law show "such a clear

error of judgment that it shocks the judicial conscience" will we modify a

sentence on appeal. Id. at 364.

      Our analysis of a sentence is heightened, however, when a defendant

claims sentencing disparity. Our Supreme Court observed in State v. Roach that

"uniformity [is] one of the major sentencing goals . . . [as] '[t]here can be no

justice without a predictable degree of uniformity in sentencing.'" 146 N.J. 208,

231 (1996) (quoting State v. Hodge, 95 N.J. 369, 379 (1984)). "'The central

theme' of our sentencing jurisprudence is the exercise by courts of 'a structured

discretion designed to foster less arbitrary and more equal sentences.'" Id. at

232 (quoting Roth, 95 N.J. at 345).

      The Court recognized the legislative basis for that structure:

            To minimize disparity, a sentencing court exercises its
            discretion in the structured setting prescribed by the
            [Criminal] Code. Our statutes provide a "'general
            framework to guide judicial discretion in imposing
            sentences' to ensure that similarly situated defendants
            [do] not receive dissimilar sentences." [State v. Natale,
            184 N.J. 458, 485 (2005)]. When an ordinary term of
            incarceration is warranted, N.J.S.A. 2C:43-6(a)
            prescribes statutory ranges for that term based upon the
            degree of the offense: ten to twenty years for a first-

                                                                         A-4310-17T1
                                      20
             degree crime, five to ten years for a second-degree
             crime, three to five years for a third-degree crime, and
             up to eighteen months for a fourth-degree crime.

             [State v. Fuentes, 217 N.J. 57, 72 (2014) (second
             alteration in original).]

The purpose of the statutory guidelines "is to promote fairness and public

confidence in the 'even handed justice of our system.'" Roach, 146 N.J at 232-

33 (quoting State v. Hicks, 54 N.J. 390, 391 (1969)). The ultimate determination

"is whether the disparity is justifiable or unjustifiable." Id. at 233.

      "[A] sentence of one defendant not otherwise excessive is not erroneous

merely because a co[]defendant's sentence is lighter." Hicks, 54 N.J. at 391; see

also Roach, 146 N.J. at 232. "The trial court must determine whether the

co[]defendant is identical or substantially similar to the defendant regarding all

relevant sentencing criteria." Roach, 146 N.J. at 233.

      The trial court comprehensively explained the difference between the

sentences:

             [D]efendant and [Meyer] are neither identically nor
             substantially similarly situated for the following
             reasons:

                   1) At Meyer's sentencing [that sentencing judge]
             found that Meyer was remorseful, and even relied upon
             his remorse to find mitigating factors [eight, nine and
             ten] additionally. Meyer took responsibility for his
             actions and admitted fault, when he pleaded guilty.

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Defendant has not taken any responsibility for his
actions, and does not appear, other than this brief
statement to the [c]ourt today, to be . . . remorseful.

       2) At the time of the accident Meyer was
[nineteen] years of age, and defendant was [twenty-
eight] years of age. Meyer was ten years younger than
. . . defendant, and was following . . . defendant, his
employer, to a job site the morning of the accident.

       In fact, counsel for the State has pointed this out
to the [c]ourt in [Meyer's] sentencing transcript [of]
February 24th, 2017, and I'll quote it again. The [j]udge
[said], "Lastly, the conduct of a youthful defendant was
substantially influenced by another person more mature
than the defendant, and I'm relying on this. Although,
your co[]defendant is only [ten] years older than you, I
think it's a significant [ten] years. I think he prevailed
upon you, goaded you into this, in [a] way, and I'm
relying on that." She also specifically mentioned,
"Again you are to cooperate fully in this ongoing
companion case. If you fail to show up here, or once
fail to cooperate in any way, I invite the Prosecutor's
Office to come back to court for a violation of
[p]robation, and you will be in Bergen County [j]ail."

       Which brings me to the next distinguishing
factor. Meyer pleaded guilty two years ago and agreed
to cooperate with the State as to the involvement of . . .
defendant in exchange for a reduction in his sentence to
the third-degree range.

      And four, defendant's vehicle was the vehicle that
struck and killed [the motorcyclist].

       And finally, defendant was offered a plea deal,
under which the State agreed to recommend a sentence
in the third-degree range, but that offer was rejected by

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                           22
            defendant. And therefore, defendant is not now entitled
            to seek the benefit by the plea bargain.

                  We went through a full trial. The jury came back,
            convicted defendant of [v]ehicular [h]omicide, second-
            degree.

                   Defendant, for all of the foregoing reasons is not
            entitled to a downward departure, and will sentence in
            the second-degree range[.]

      Although uniformity in sentencing is a major objective of the criminal

justice system, not all divergent sentences are unfair or unjust. Id. at 231-32.

Here, the trial court's reasoning fully justified the disparate sentence. Meyer

was not similarly situated to defendant, and thus, the court did not abuse its

discretion in sentencing defendant to a five-year term of imprisonment, the

lowest ordinary-term sentence for a second-degree conviction.

      We determine the balance of defendant's arguments, including that

reversal is required because of cumulative errors and that the trial court erred by

declining to sentence him in the third-degree range pursuant to N.J.S.A. 2C:44-

1(f)(2), are without sufficient merit to warrant any discussion. R. 2:11-3(e)(2).

We perceive no violation of the sentencing guidelines; the aggravating and

mitigating factors found by the judge were based upon credible evidence in the

record; and the sentence imposed for these multiple crimes is not "clearly

unreasonable so as to shock the judicial conscience." Fuentes, 217 N.J. at 70

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(quoting Roth, 95 N.J. at 365). Finally, there were no compelling reasons for a

downgraded sentence. State v. Megargel, 143 N.J. 484, 505 (1996).

      Affirmed.




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