The court continued:
Despite this additional driving behavior, which jeopardized others on the roadway, the trial judge did not find aggravating factor one, concerned that to do so would be to impermissibly “double count.” We agree that a court may not double count a fact that establishes an element of the offense as a basis to support an aggravating or mitigating factor. But a court may consider related conduct in excess of that required to commit the crime as evidence in the record supporting factor one. The accident here occurred despite another motorist’s best efforts, after a fender bender, to prevent defendant from continuing to drive. She continued driving in a manner that posed a threat to the public at large.
As the Court said in Lawless, when it drafted N.J.S.A.2C:44-1(a), the Legislature chose comprehensive language to define aggravating factor one: “the nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner.” Under this factor, the sentencing court reviews the severity of the defendant’s crime, “the single most important factor in the sentencing process,” assessing the degree to which defendant’s conduct has threatened the safety of its direct victims and the public. “The paramount reason we focus on the severity of the crime is to assure the protection of the public and deterrence of others.” “The higher degree of the crime, the greater the public need for protection and the more need for deterrence.”
Competent, credible evidence supported factor one. Additionally, Seeman was initially severely injured as a result of the collision. A secondary, serious health problem caused by the accident nearly took his life months after, requiring additional hospitalizations and daily help for his routine life activities for weeks after his return home. Accordingly, it would not have been double counting to find factor two as to the vehicular assault. Factor two, also requested by the State, only requires harm greater than that necessary to satisfy the statutory elements of the crime. N.J.S.A. 2C:12-1(c)(1) states that a person “is guilty of assault by auto . . . when the person drives a vehicle . . . recklessly and causes serious bodily injury.” The extent of the harm done to Seeman exceeded that required to satisfy the element of the statute.
The Court’s analysis of aggravating factors one and two seems to make them present in most cases as opposed to cases with especially aggravating circumstances. The use of the term “actor” in the aggravating factors is ironic given the defendant’s well-known role as an actor on Melrose Place.
