The appellate panel continued in relevant part: This court has an obligation to look at all of the circumstances surrounding the incident. To the extent to which the victim may or may not have contributed to the accident would require a hearing, the testimony of witnesses, an accident reconstructionist. And at the end of the argument none of that applies here because of the nature of this statute. [(Emphasis added).]
The judge also stated he was “familiar” with the statement the witness gave to Detective Kerecman four days after the incident. The judge made clear that in his judgment, he was legally precluded from considering this evidence in determining whether defendant was entitled to assert mitigating factor five.
Even if the victim ran into the road the statute makes the offense one of a third-degree in contemplation that . . . a defendant cannot argue a contributing act of the victim, because this used to be a second-degree offense where there had to be reckless conduct. This law was enacted, if you will, to say, regardless of a victim’s contributory negligence, that the driver being a link in the chain that causes the death, by simply being in the vehicle and being under the influence is enough for a conviction. In essence, that the act, the death would not have occurred if the defendant did not get in the car while intoxicated.
We conclude the judge’s erroneous construction of N.J.S.A. 2C:11-5.3d deprived defendant of a qualitative assessment of all the relevant mitigating factors. State v. Case (2014). Under these circumstances, our only viable option is to remand the matter to allow the judge to consider the witness’s statement and determine whether the record supports a finding of mitigating factor five. State v. Dalziel (2005). The judge must thereafter reconsider the entire record and state reasons for imposing such sentence including findings pursuant to the criteria for withholding or imposing imprisonment or fines under N.J.S.A. 2C:44-1 to 2C:44-3; the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence; and, if applicable, the reasons for ordering forfeiture of public office, position or employment, pursuant to N.J.S.A. 2C:51-2. [R. 3:21-4(g).]
In light of this determination, we do not reach defendant’s remaining arguments. Reversed and remanded. We do not retain jurisdiction.
It is well-known that judges can consider factors at the sentencing phase that they could not consider during the guilt phase. Mitigating factor four, for example, is that “There were substantial grounds tending to excuse or justify the defendant’s conduct, though failing to establish a defense.” The defense likely argued this factor as it ties in with the circumstances supporting mitigating factor five.
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