Consecutive Sentences That Shock The Judicial Conscience (Part 6)

by | Apr 17, 2018 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Fred-Sisto-Attorney-Criminal-DefenseAnd there is yet another reason for the judge to have avoided an unexplored, lock-step adoption of Carey. Carey caused two deaths and it was in that context that the Court gave expression to what it believed should ordinarily be imposed. Indeed, we view that particular fact – not present here, since defendant caused a single death – as the predominant ground upon which consecutive terms were justified by the Supreme Court in Carey. If, as is now argued, a consecutive term should be imposed for each victim of an accident caused by an intoxicated defendant, including those sustaining nonfatal injuries, then the argument that a consecutive term should be imposed for each victim would have led to Carey receiving four consecutive terms, instead of two. But if, as it seems to us, the Court intended that the convictions on the offenses related to the deaths caused are to “ordinarily” result in consecutive terms, then, in this case, Carey‘s holding about consecutive terms did not require consecutive terms because defendant’s actions caused one death, not two. In short, a reasonable reading of Carey‘s “ordinarily-imposed” language might very well have been intended as ensuring that the defendant not get a free “vehicular homicide” without militating or even suggesting that “ordinarily” consecutive terms should be imposed for each victim, regardless of whether each victim was killed.

For these reasons, we remand for resentencing and for the judge’s reconsideration of the imposition of consecutive terms without an assumption that Carey requires at least two consecutive terms, as the judge previously presupposed. We also remand for resentencing because, in this context, the judge appears not to have fairly considered the real-time consequences of the aggregate term imposed, nor did he appear to consider the fact that the sentence imposed here far exceeded what was imposed in Carey and has not been shown to be in accord with any other sentence imposed in similar circumstances, thus impairing the overarching Yarbough goal that there be uniformity in sentencing. The judgments of conviction are affirmed but, for the reasons expressed, we remand for resentencing and do not retain jurisdiction.


Judge Fisher artfully suggests a way to synthesize the need for sentencing parity with the Yarbrough factors and the inherent difficulties in achieving parity when the punishment for the underlying offenses consistently becomes more severe. His analysis muddies the waters regarding the consecutive or concurrent decision. Appellate strategy by the State will likely determine if the New Jersey Supreme Court addresses Judge Fisher’s analysis via an immediate appeal or an appeal after the trial court issues a decision on remand.