                                NOT FOR PUBLICATION WITHOUT THE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-4095-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSHUA D. MALMGREN,

     Defendant-Appellant.
________________________

                    Submitted June 17, 2020 – Decided July 21, 2020

                    Before Judges Koblitz and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Cape May County, Indictment No. 12-11-
                    0748.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (David J. Reich, Designated Counsel, on the
                    brief).

                    Jeffrey H. Sutherland, Cape May County Prosecutor,
                    attorney for respondent (Gretchen Anderson Pickering,
                    Senior Assistant Prosecutor, of counsel and on the
                    brief).

PER CURIAM
      Defendant appeals from an April 20, 2018 order based on an oral decision

placed on the record two months earlier finding a sufficient exigency existed to

justify testing defendant's blood without a search warrant after a fatal

automobile accident in which defendant drove into two young girls who were

walking by the side of the road. We affirm substantially for the reasons placed

on the record by the trial court. We also determine defendant's sentence was not

excessive.

      The April 20 order was issued after a plenary hearing necessitated by our

unpublished opinion, State v. Malmgren, No. A-3119-14 (App. Div. Dec. 15,

2016). We stated there:

                    Defendant Joshua D. Malmgren pled guilty to
             two counts of first-degree aggravated manslaughter,
             N.J.S.A. 2C:11-4(a), admitting that he killed two
             teenaged girls when he swerved onto the shoulder of the
             road while driving under the influence of alcohol and
             prescription drugs. He also admitted to using his cell
             phone and being distracted by a large sign by the side
             of the road. At the time, defendant had his broken left
             arm in a cast. The judge sentenced defendant to the
             maximum aggregate sentence permissible under the
             plea agreement: eighteen years with an eighty-five
             percent parole disqualifier subject to the No Early
             Release Act [(NERA)], N.J.S.A. 2C:43-7.2. Prior to
             pleading guilty, defendant moved to suppress the
             results of his blood alcohol test. This issue was
             preserved on appeal pursuant to Rule 3:5-7(d). Because
             the issue was decided prior to our Supreme Court's
             decision in State v. Adkins, 221 N.J. 300 (2015), we

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                                       2
            now remand for further review to determine whether
            sufficient exigency existed to draw defendant's blood
            absent a warrant.

            [Id. at 1-2.]

      The holding in Adkins necessitated a remand, as we explained in our

opinion:

                  After defendant's motion to suppress was heard,
            our Supreme Court decided Adkins, 221 N.J. at 317,
            which applied [t]he United States Supreme Court
            decision in Missouri v. McNeely, [569 U.S. 141]
            (2013), retroactively to all cases in the pipeline. This is
            one such case. McNeely determined that before blood
            can be constitutionally drawn from a suspect in a drunk-
            driving investigation a warrant must be obtained, unless
            an exigency existed under the totality of the
            circumstances. Id. at [164-65].

            [Malmgren, slip op. at 4.]

      Two officers, whom the court found credible, testified at the hearing. The

accident occurred on July 31, 2012 at approximately 9 p.m. and every working

officer from the small police department in Middle Township responded to the

scene. The scene was described as "very chaotic," with the victims lying along

the roadway, substantial debris stretched along the highway, and family

members of the two young victims, who had rushed to the scene. The police

were involved in preserving evidence from the scene, where the road was closed

to traffic for four hours. An officer found defendant by the side of the road and

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                                         3
observed that he smelled of alcohol and had bloodshot eyes. Defendant was

asked to perform sobriety tests, which he failed. The officer was also concerned

about defendant's medical condition as he had a sore right fist.1 The officer

transported defendant to a local hospital, and forty-one minutes after he arrived

at the hospital, a blood draw was conducted at 10:30 p.m. An analysis revealed

that defendant's blood alcohol concentration was .183 percent and he had

ingested prescription drugs for anxiety and pain caused by his previously broken

arm. The officers testified that in their experience it would have taken hours to

obtain a telephonic or written warrant, and by that time the alcohol in defendant's

system would have dissipated. The officer who transported defendant to the

hospital was not trained in administering an Alcotest.

      Defendant raises the following issues on appeal:

            POINT I: THE STATE FAILED TO MEET ITS
            BURDEN OF ESTABLISHING A COMPELLING
            EXIGENCY OR EMERGENCY SUFFICIENT TO
            JUSTIFY    DEPARTURE     FROM     THE
            CONSTITUTIONALLY    MANDATED    RULE
            REQUIRING LAW ENFORCEMENT OFFICERS TO
            OBTAIN A SEARCH WARRANT; THE TRIAL
            COURT'S CONCLUSION TO THE CONTRARY
            WAS ERRONEOUS AND IN VIOLATION OF
            CONSTITUTIONAL REQUIREMENTS.


1
  Defendant had a broken right hand, which he said stemmed from hitting his
car after the accident.
                                                                           A-4095-17T4
                                        4
            POINT II:        MALMGREN'S SENTENCE WAS
            EXCESSIVE.

      We defer to both credibility and factual findings of the trial court unless

they are unsupported by the record. State v. Elders, 197 N.J. 224, 244 (2007).

The trial court found both officers credible and that the large and chaotic

accident scene coupled with concern over defendant's medical situation and the

difficulty in obtaining a warrant expeditiously constituted an emergent situation

allowing a blood draw. See State v Jones, 441 N.J. Super. 317, 321 (App. Div.

2015) (where we approved a blood draw without a warrant after McNeely under

similar circumstances). We agree that the blood draw was permissible under

these circumstances.

      Defendant argues that his sentence was manifestly excessive. He was

sentenced in December 2014, after pleading guilty to two counts of first-degree

aggravated manslaughter, with the understanding that he would be sentenced in

the second-degree range to no more than eighteen years in prison pursuant to

NERA. The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the

risk that he would reoffend because defendant was still using alcohol, and nine,

N.J.S.A. 2C:44-1(a)(9), the need for deterrence, as well as mitigating factors

seven, N.J.S.A. 2C:44-1(b)(7), that he had no prior criminal record, and eleven,



                                                                         A-4095-17T4
                                       5
2C:44-1(b)(11), that his incarceration would entail a hardship to his family due

to defendant's seriously disabled young son.

      Our Supreme Court described our function in reviewing sentences:

                  Appellate       courts     review       sentencing
            determinations in accordance with a deferential
            standard. The reviewing court must not substitute its
            judgment for that of the sentencing court. The appellate
            court must affirm the sentence 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, 70-74 (2014) (citation
            omitted) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

      A sentence imposed pursuant to a plea agreement is presumed to be

reasonable because a defendant voluntarily waived his right to a trial in return

for the reduction or dismissal of certain charges, recommendations as to

sentence and the like. See Roth, 95 N.J. at 365.

      Defendant argues that the court did not weigh the mitigating factors

sufficiently and put too much weight on the aggravating factors. Defendant took

the lives of two young girls and could have received forty years in prison for




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                                       6
two first-degree crimes. While the sentence was undoubtedly severe, especially

for a first offender, it does not shock the judicial conscious.

      Affirmed.




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