We also observe that this case differs from Carey in another significant way. Here, the State pursued and was able to convince a jury to convict defendant of first-degree aggravated manslaughter in causing the death of the nine-year-old Honda passenger. Consequently, in imposing sentence, the term imposed for that conviction was necessarily significantly higher than what Carey faced when he was sentenced on two second-degree vehicular homicide convictions. The Carey Court recognized that the Yarbough determination, and the Court’s direction that “ordinarily” consecutive terms should be imposed when there are multiple victims, may be impacted by such a circumstance, emphasizing in the same context of its “ordinarily” imposed language that, “in multiple-victim cases,” nothing “prevents the sentencing court from setting the base term of each sentence below the maximum provided by the Code,” which was “precisely what occurred” in the trial court there. Clearly, the Court intended that sentencing judges would take fully into consideration the real-time consequences of an accumulation of consecutive terms. Considering that defendant was an otherwise law-abiding citizen, and fifty-eight years old at the time of the offenses (sixty-two at the time of sentencing), the judge’s imposition of three consecutive terms, one of which was a twenty-year term – and all subject to NERA – demonstrates the real-time consequence of the aggregate sentence was not given fair consideration.
It would be interesting to see if the prosecution appeals this decision to the New Jersey Supreme Court. A contentious part of the Court’s analysis is that the consecutive or concurrent decision should be informed by the fact that the Legislature is routinely making the penalties for criminal offenses stiffer. This is particularly true in the realm of vehicular homicides. They used to be fourth degree offenses for which defendants were sentenced to probation in light of the unintentional nature of the harm. The penalties were upgraded several times to the point where they are now classified as No Early Release Act offenses like murder, carjacking, and sexual assaults. The State could argue that the Legislature expresses the will of the people and its decisions to harshly punished should not be undermined by the imposition of concurrent sentences.