Volunteers needed for Metuchen Public Defender- Internship credits available
The Public Defenders provide Indigent individuals charged with criminal or serious motor vehicle charges with free or limited cost legal defense. The Public Defender of Metuchen invites persons interested in helping others or getting experience in law/ criminal justice to apply to serve as volunteer interns. Volunteer Law Clerk interns will attend Wednesday evening and occasional Friday morning court sessions.
VOLUNTEER LEGAL INTERNS NEEDED
PUBLIC DEFENDER OF METUCHEN
Court times: WEDNESDAY 1pm PM [approx]- 8:30 PM, every other Friday 9-12, plus hearing preparation work.
Volunteer Internship Description:
-Interview Clients facing charges in Municipal Court including Drug Possession, Drunk Driving, Assault, Driving While Suspended and other criminal and traffic offenses
-Make demands for Discovery on Prosecutor and review police reports
-Attend hearings and learn from experienced trial attorneys
-Prepare Motions to Suppress Evidence and Motions to Compel Discovery
-Conduct appropriate Legal research
-Acquire skills in Criminal Law and Procedure by active participation
-Participate in Public Relations activities and help organize seminars
- Update Lists of Prosecutors, Judges and Attorneys for publication of
NJ Municipal Court Law Review
- Revise criminal and traffic law Articles and submit to Law Journals and criminal law websites.
- Learn how to add criminal statutes and criminal articles to legal blogs and websites.
Volunteer to help indigent people charged with criminal and motor vehicle offenses of magnitude. In additional to time in court, you will be given research assignments. You can work more hours if you want. Help people less fortunate than you who are down on their luck.
Program lasts 12 weeks. Minimum time commitment September- May is 10 hours per week.
For Summer- College graduates and Law students only. Minimum Volunteer time commitment in summer- 18 hours per week. Send cover letter and resume. After sending resume, call to schedule interview
732-572-0500.
We sponsor a state wide website www.njlaws.com with information on criminal, litigation, personal injury, and probate matters. It is helpful if applicants have some familiarity with HTML programming, web page design and maintenance and Internet technology. If you can update a website, please indicate so in the first paragraph of your cover letter. This office is committed to excellence and service to clients and the community. Applicants must have attention to detail. We attempt to give assignments which will be meaningful and memorable but, nevertheless, expect that interns will pitch in on whatever needs to be done.
Interested students must mail or fax a cover letter indicating the internship they are applying for and resume. If no personal cover letter by student, the resume will not be considered.
Details on internships at http://www.njlaws.com/intern.htm
Mail or fax cover letter and resume to
Kenneth Vercammen, Esq.
Public Defender for the Borough of Metuchen
c/o 2053 Woodbridge Ave., Edison, NJ 08817
Fax 732-572-0030
Sunday, January 31, 2010
Saturday, January 30, 2010
STATE V. RAHEEM VENABLE STATE V. MALIK SIMMONS A-5237-06T4/A-5527-06T4
STATE V. RAHEEM VENABLE
STATE V. MALIK SIMMONS
A-5237-06T4/A-5527-06T4 (consolidated) 01-29-10
Defendants are not entitled to a reversal of their
convictions based on the trial court's announcement that members
of the victim's and defendants' families would not be allowed in
the courtroom during jury selection in light of the fact that
defendants did not object to such exclusion of family members
and the absence of any indication that family members were in
the courthouse and desired to attend jury selection.
STATE V. MALIK SIMMONS
A-5237-06T4/A-5527-06T4 (consolidated) 01-29-10
Defendants are not entitled to a reversal of their
convictions based on the trial court's announcement that members
of the victim's and defendants' families would not be allowed in
the courtroom during jury selection in light of the fact that
defendants did not object to such exclusion of family members
and the absence of any indication that family members were in
the courthouse and desired to attend jury selection.
STATE OF NEW JERSEY VS. DAVID RIVERA a/k/a DAVID J. RIVERA A-1724-08T4
STATE OF NEW JERSEY VS. DAVID RIVERA a/k/a
DAVID J. RIVERA
A-1724-08T4
01-28-10
Reviewing defendant's challenge to the admission of
Alcotest results relied upon to support a per se violation of
N.J.S.A. 39:4-50, we rejected a suggested methodology requiring
the State to truncate the intermediate calculations of the
relative and absolute upper tolerance limits when discerning
whether the Alcotest readings obtained were valid. We concluded
the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied,
__ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) expressed no
preference for truncating the various interim calculations on
Worksheet A, which would have the resultant effect of lowering
the range of tolerance below that approved by the Court with the
concomitant result of falsely increasing the number of invalid
Alcotest results, precluding juviolations of N.J.S.A. 39:4-50.
DAVID J. RIVERA
A-1724-08T4
01-28-10
Reviewing defendant's challenge to the admission of
Alcotest results relied upon to support a per se violation of
N.J.S.A. 39:4-50, we rejected a suggested methodology requiring
the State to truncate the intermediate calculations of the
relative and absolute upper tolerance limits when discerning
whether the Alcotest readings obtained were valid. We concluded
the Supreme Court in State v. Chun, 194 N.J. 54, cert. denied,
__ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008) expressed no
preference for truncating the various interim calculations on
Worksheet A, which would have the resultant effect of lowering
the range of tolerance below that approved by the Court with the
concomitant result of falsely increasing the number of invalid
Alcotest results, precluding juviolations of N.J.S.A. 39:4-50.
STATE OF NEW JERSEY V. SCOTT S. KUENY A-2812-07T4
STATE OF NEW JERSEY V. SCOTT S. KUENY
A-2812-07T4
01-26-10
The trial judge did not abuse his discretion in denying a
mistrial after defendant suffered a medical incident at the end
of the court day and he returned the next day. The judge gave
an adequate instruction at the beginning of the following day
which suggested that defendant did suffer some "illness" and was
"treated," as opposed to "faking" an event for sympathy.
Defendant police officer's conviction for misconduct in
office was reversed because his use of someone else's bank card
left in an ATM machine and taking cash from her account was not
sufficiently related to his office to constitute official
misconduct by the officer while on vacation and out of his
jurisdiction.
A-2812-07T4
01-26-10
The trial judge did not abuse his discretion in denying a
mistrial after defendant suffered a medical incident at the end
of the court day and he returned the next day. The judge gave
an adequate instruction at the beginning of the following day
which suggested that defendant did suffer some "illness" and was
"treated," as opposed to "faking" an event for sympathy.
Defendant police officer's conviction for misconduct in
office was reversed because his use of someone else's bank card
left in an ATM machine and taking cash from her account was not
sufficiently related to his office to constitute official
misconduct by the officer while on vacation and out of his
jurisdiction.
STATE OF NEW JERSEY V. MARK HICKS A-4338-07T4
STATE OF NEW JERSEY V. MARK HICKS
A-4338-07T4 01-22-10
We are compelled to remand for a new PCR hearing because
assigned counsel's perfunctory performance failed to meet the
standards articulated by the Supreme Court in State v. Webster,
187 N.J. 254 (2006) and Rule 3:22-6(d).
A-4338-07T4 01-22-10
We are compelled to remand for a new PCR hearing because
assigned counsel's perfunctory performance failed to meet the
standards articulated by the Supreme Court in State v. Webster,
187 N.J. 254 (2006) and Rule 3:22-6(d).
STATE v. JOSEPH ALLEN LEE A-4977-07T4
STATE v. JOSEPH ALLEN LEE
A-4977-07T4 01-19-10
Attempted murder is not embodied in N.J.S.A. 2C:25-19a and
therefore is not subject to the Domestic Violence Surcharge
under N.J.S.A. 2C:25-29.4.
A-4977-07T4 01-19-10
Attempted murder is not embodied in N.J.S.A. 2C:25-19a and
therefore is not subject to the Domestic Violence Surcharge
under N.J.S.A. 2C:25-29.4.
State v. Terence McCabe (A-88-08)
State v. Terence McCabe (A-88-08) 1-25-10
Part-time municipal court judges must recuse
themselves whenever the judge and a lawyer for a party
are adversaries in some other open, unresolved matter.
Part-time municipal court judges must recuse
themselves whenever the judge and a lawyer for a party
are adversaries in some other open, unresolved matter.
State v. Cory Bieniek (A-99-08)
State v. Cory Bieniek (A-99-08) 1-21-10
The sentence imposed on defendant Cory Bieniek by the
trial court is valid and must be affirmed.
State of New Jersey v. Cory Bieniek (A-99-08)
Argued November 9, 2009 -- Decided January 21, 2010
PER CURIAM
On December 29, 2006, twenty-one-year-old Samar Seliem was killed when she backed her car out of her
driveway and was struck by a vehicle driven by nineteen-year-old defendant Corey Bieniek. At the time of the
collision, defendant was driving over one hundred miles per hour on a street with a posted speed limit of twenty-five
miles per hour. In addition to killing Seliem in the crash, defendant’s passenger suffered multiple leg fractures that
required surgery. Prior to the collision, defendant had consumed alcoholic beverages and smoked marijuana. His
blood alcohol level one hour after the crash was .17 percent, well in excess of the legal limit.
Defendant was indicted for first-degree manslaughter (count one), first-degree vehicular manslaughter on
or near school property (count two), second-degree aggravated assault (count three), and second-degree assault by
an automobile on or near school property (count four). On August 6, 2007, defendant pled guilty to counts one and
three, as well as to a summons charging him with driving while intoxicated. In exchange for the guilty pleas, the
State dismissed counts two and four and agreed to recommend an eighteen-year sentence in state prison for count
one, subject to the No Early Release Act (NERA). The State also agreed to recommend that the sentences on counts
one and three run concurrently.
At the sentencing hearing on November 27, 2008, the court considered a letter written by defendant, a
psychiatric and addiction evaluation of defendant, and letters from the victim’s relatives and friends. The court also
heard from defendant’s father, grandmother, and aunt. Defendant’s father and aunt both indicated that defendant
grew up in an alcoholic household and witnessed his father’s fight against alcohol and drug addiction. This
testimony corroborated the report by Hugo Franco, M.D., who identified defendant as an alcoholic and a drug addict
with addictions likely attributable to familial predisposition. In addition, defendant expressed remorse for causing
the victim’s death and pledged to be a better person.
The court also considered a sentencing memorandum submitted prior to the hearing by defendant’s
attorney. The memorandum set forth four mitigating factors: defendant did not contemplate that his conduct would
cause or threaten serious harm (factor 2); defendant suffers from severe alcoholism, which fails to establish a
defense, but tends to excuse his conduct (factor 4); defendant has no significant criminal history (factor 7); and
defendant’s character and attitude indicate that he is unlikely to commit another offense (factor 9). Defendant’s
counsel also argued for an additional mitigating factor, number thirteen, that defendant qualified as a “youthful
offender [who] was substantially influenced by another person more mature than the defendant.” In support of this
argument, counsel pointed to defendant’s upbringing and the influence of his alcoholic father. Defense counsel also
urged the court to assign additional weight to the mitigating factors, taking into account the NERA impact on the
amount of time defendant actually would spend in custody and, further, to consider that an eighteen-year sentence
would be disproportionate compared to other similarly situated defendants.
The sentencing judge, in explaining his decision, first found the presence of aggravating factors (3) the risk
that defendant will commit another offense, (6) defendant’s prior criminal record and seriousness of the offenses,
and (9) the need for deterrence. Specifically, the court pointed to defendant’s juvenile record and uncontrolled
substance abuse problem. As to mitigating factors, the court only alluded to mitigating factor ten, that defendant
would likely respond to probationary treatment. The court sentenced defendant to an eighteen-year term -- the
sentence recommended by the State pursuant to the plea agreement -- and a subsequent five-year period of parole
supervision on count one, with a concurrent five-year term and subsequent three-year period of parole supervision
on count three, both subject to an eighty-five percent parole disqualifier. The court dismissed counts two and four.
2
On appeal, defendant challenged his sentence as excessive. The Appellate Division heard oral argument on
May 29, 2008, and a two-judge part of the Appellate Division issued a next-day order, remanding the case to the
sentencing court to reconsider defendant’s sentence and, specifically, to allow defense counsel to argue for a
reduced sentence. The State petitioned the Supreme Court for certification and, on October 20, 2008, the Court
granted that petition and remanded the matter to the Appellate Division for a Statement of Reasons to provide a
more full explanation for the remand order.
Responding by letter, the remanding panel explained that the trial court had failed to clarify why the five
mitigating factors argued by defense counsel were inapplicable, held little weight, or were unworthy of express
mention. The panel also commented on the trial court’s finding of factor eleven, which was not presented by
defense counsel and was inapplicable to a first-degree offense. The panel also added that it could not be certain
whether the sentence was based on the plea agreement or the sentencing court’s own discretion. The panel believed
a remand was necessary to permit the trial court to flesh out a comprehensive record detailing its consideration of
the stated mitigating factors and to ensure the trial court recognized the controlling nature of its discretion.
The Supreme Court granted the State’s petition for certification from the Appellate Division’s Statement of
Reasons.
HELD: The sentence imposed on defendant Cory Bieniek by the trial court is valid and must be affirmed.
1. The goal of improved consistency of sentencing is promoted in New Jersey’s Code of Criminal Justice (Code),
which provides the courts with a system for “structured discretion” in sentencing. When trial judges exercise their
discretion in accordance with principles set forth in the Code and as defined by the Court, they need not fear second-
guessing. Under the Code, a sentencing court must first determine whether aggravating and mitigating factors
apply. After balancing those factors, the trial court may impose a term within the permissible range for the offense.
The court, pursuant to court rule, must explain the reasons behind its findings. Such an explanation is important for
meaningful appellate review of any excessiveness challenge to a sentence. (Pp. 7-8)
2. When an appellate court determines that the trial court has found aggravating and mitigating factors unsupported
by the record, the appellate court can intervene and remand for resentencing. Although not required by case law,
judges are encouraged to address each factor raised, even if only briefly to ensure consideration of every factor and
to demonstrate to defendants and the public that all arguments have been evaluated fairly. (Pp. 8-9)
3. The court’s explanation at sentencing, read in its entirety, clearly indicates that the court considered the
arguments in favor of the mitigating factors urged by the defense and rejected the applicability of those factors as
well as defendant’s disproportionality argument. (Pp. 9-12)
4. There is no basis for questioning the trial court’s understanding of its authority in this case. The judge
unequivocally expressed his recognition that although defendant entered into a negotiated plea agreement, the court,
and the court alone, had the exclusive authority to accept or reject the plea agreement. Under the circumstances
presented, the sentence imposed was clearly one the court chose to impose. The court adhered to the outlined
sentencing principles in the Code and case law and, therefore, is entitled to deference. (Pp. 12-13)
Judgment of the Appellate Division is REVERSED and the sentence imposed by the trial court is
REINSTATED.
JUSTICE LONG, DISSENTING, in which JUSTICES ALBIN and WALLACE join, is of the view
that certification in this case was improvidently granted.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, RIVERA-SOTO, AND HOENS join in
this PER CURIAM opinion. JUSTICE LONG filed a separate, dissenting opinion in which JUSTICES
ALBIN and WALLACE join.
SUPREME COURT OF NEW JERSEY
A-99 September Term 2008
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORY J. BIENIEK,
Defendant-Respondent.
Argued November 9, 2009 – Decided January 21, 2010
On certification to the Superior Court,
Appellate Division.
Simon Louis Rosenbach, Assistant Prosecutor,
argued the cause for appellant (Bruce J.
Kaplan, Middlesex County Prosecutor,
attorney).
Joseph J. Benedict argued the cause for
respondent (Benedict and Altman, attorneys;
Mr. Benedict and Philip Nettl, on the
brief).
PER CURIAM
This appeal arose from a tragedy that took place on
December 29, 2006. That day, twenty-one-year-old Samar Seliem
was killed when she backed her car out of her driveway on
Marlboro Road in Old Bridge and was struck by a vehicle driven
by nineteen-year-old defendant Corey Bieniek. As a result of
the collision, defendant faced criminal charges to which he
ultimately pled guilty. This appeal from defendant’s conviction
2
concerns only his sentence. In reviewing defendant’s
sentencing, resort must be had to traditional principles of
appellate review of a criminal sentence. Application of those
tenets requires that the trial court’s sentence be sustained.
I.
When his vehicle struck Seliem’s, defendant was driving
over one hundred miles per hour on a street with a speed limit
of twenty-five miles per hour. In addition to killing Seliem,
the collision caused defendant’s passenger, Kristine Makowa, to
suffer multiple leg fractures requiring surgery. Prior to the
collision, defendant had consumed alcoholic beverages and smoked
marijuana. His blood alcohol level one hour after the crash was
.17 percent, well in excess of the legal limit of .08 percent.
Defendant was indicted for first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a) (count one); first-degree
vehicular manslaughter on or near school property, N.J.S.A.
2C:11-5(a) and (b)(3) (count two); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count three); and second-degree
assault by automobile on or near school property, N.J.S.A.
2C:12-1(c)(1) and (3) (count four). On August 6, 2007, before
the Honorable James F. Mulvihill, J.S.C., defendant pled guilty
to count one, first-degree aggravated manslaughter; to count
three, second-degree aggravated assault; and also to a summons
charging him with driving while intoxicated, N.J.S.A. 39:4-50.
3
In exchange for defendant’s guilty pleas, the State dismissed
counts two and four and agreed to recommend an eighteen-year
sentence in state prison for count one, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed
to recommend that the sentence for count three run concurrently
with the sentence for count one.
At the sentencing hearing on November 27, 2008, the court
considered a letter written by defendant, a psychiatric and
addiction evaluation of defendant, and letters from the victim’s
relatives and friends. The court also heard from defendant’s
father, grandmother, and aunt. Defendant’s father and aunt both
indicated that defendant grew up in an alcoholic household, and
witnessed his father’s fight against alcohol and drug addiction.
The testimony corroborated the report by Hugo Franco, M.D., who
identified defendant as an alcoholic and a drug addict with
addictions likely attributable to familial predisposition. In
his allocution, defendant expressed remorse for causing the
victim’s death and pledged to become a better person.
The court also considered a sentencing memorandum submitted
prior to the hearing by defendant’s counsel. The memorandum set
forth four mitigating circumstances:
(2) [Defendant] did not contemplate that his
conduct would cause or threaten serious
harm;
4
(4) [Defendant] suffers from severe
alcoholism, which fails to establish a
defense, but tends to excuse his conduct;
(7) [Defendant] has no significant criminal
history; and
(9) [Defendant’s] character and attitude
indicate that he is unlikely to commit
another offense.
[See N.J.S.A. 2C:44-1(b)(2), (4), (7), (9).]
In addition, at the hearing, defendant’s counsel argued for an
additional mitigating factor, number thirteen, that defendant
qualified as a “youthful offender [who] was substantially
influenced by another person more mature than the defendant.”
In support of this argument, counsel pointed to defendant’s
upbringing and the influence of his alcoholic father.
Defendant’s counsel also urged the court to assign additional
weight to the mitigating factors, taking into account the NERA
impact on the amount of time defendant actually would spend in
custody, and, further, to consider that an eighteen-year
sentence would be disproportionate compared to other similarly
situated defendants.
In explaining his sentencing decision, Judge Mulvihill
first found the presence of aggravating factors (3) the risk
that defendant will commit another offense, (6) defendant’s
prior criminal record and seriousness of the offenses, and (9)
the need for deterrence. See N.J.S.A. 2C:44-1(a)(3), (6), (9).
Specifically, the court pointed to defendant’s juvenile record
5
and uncontrolled substance abuse problem. As for mitigating
factors, the court explicitly alluded only to one mitigating
factor, number ten, that defendant would likely respond to
probationary treatment. See N.J.S.A. 2C:44-1(b)(10). The court
sentenced defendant to an eighteen-year term -- the sentence
recommended by the State pursuant to the plea agreement -- and
subsequent five-year period of parole supervision on count one,
with a concurrent five-year term and subsequent three-year
period of parole supervision on count three, both subject to an
eighty-five percent parole disqualifier. The court dismissed
counts two and four.
On appeal, defendant challenged his sentence as excessive.
The Appellate Division heard oral argument on May 29, 2008,
during which defendant’s counsel argued that Judge Mulvihill
failed to consider, explicitly, mitigating circumstances that
were argued and that should have militated in favor of a
reduction in defendant’s sentence. A two-judge part of the
Appellate Division entered a next-day order, remanding the case
to the court below to reconsider defendant’s sentence and,
specifically, to allow defense counsel to argue for a reduced
sentence. The State petitioned this Court for certification
and, on October 20, 2008, we granted that petition and remanded
the matter to the Appellate Division for a statement of reasons
6
to provide a more full explanation for the remand order. State
v. Bieniek, 196 N.J. 589 (2008).
Responding by letter, the remanding panel explained that
the trial court had failed to clarify why the five mitigating
factors elucidated by defense counsel were inapplicable, held
little weight, or were unworthy of express mention. The panel
also commented on the trial court’s finding of factor eleven,
which was not presented by defense counsel and, as explained in
the statement of reasons, was inapplicable to a first-degree
offense. Noting that the discretion of the trial court controls
in sentencing and not the plea agreement, the panel added that
it could not be certain whether the sentence was based on the
plea agreement or was the sentencing court’s own determination.
See State v. Briggs, 349 N.J. Super. 496, 501-02 (App. Div.
2002) (explaining that trial court is not bound to plea bargain
when imposing sentence). The panel expressed concern, based on
its review of the sentencing transcript, that the sentence was
imposed based on the plea agreement. As a result, the panel’s
letter concluded that a remand was necessary to permit the trial
court to flesh out a comprehensive record detailing its
consideration of the stated mitigating factors, to ensure that
the trial court, in fact, recognized the controlling nature of
its discretion. We thereafter granted the State’s petition for
7
certification from the Appellate Division’s Statement of
Reasons. State v. Bieniek, 199 N.J. 517 (2009).
II.
Improved consistency in sentencing was a “paramount” goal
of New Jersey’s Code of Criminal Justice (Code). State v.
Kromphold, 162 N.J. 345, 352 (2000) (citation omitted). The
Code was designed to promote that goal by providing courts with
a system for “structured discretion” in sentencing. State v.
Roth, 95 N.J. 334, 345 (1984). And, we have “assured our trial
judges that when they ‘exercise discretion in accordance with
the principles set forth in the Code and defined by us . . . ,
they need fear no second-guessing.’” State v. Ghertler, 114
N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365).
Under the Code, a sentencing court first must determine,
pursuant to N.J.S.A. 2C:44-1(a) and (b), whether aggravating and
mitigating factors apply. After balancing the factors, the
trial court may impose a term within the permissible range for
the offense. See N.J.S.A. 2C:44-1(f); State v. Natale, 184 N.J.
458, 487-88 (2005) (eliminating use of presumptive terms by
sentencing courts when weighing aggravating and mitigating
factors and imposing sentence). The Court Rules require that
the sentencing court explain the reasoning behind its findings.
R. 3:21-4(g).
8
That explanation is important for meaningful appellate
review of any criminal sentence challenged for excessiveness.
The reviewing court is expected to assess the aggravating and
mitigating factors to determine whether they “were based upon
competent credible evidence in the record.” Roth, supra, 95
N.J. at 364-65. An appellate court is not to substitute its
assessment of aggravating and mitigating factors for that of the
trial court. State v. O’Donnell, 117 N.J. 210, 215 (1989).
However, when an appellate court determines that the trial court
has found aggravating and mitigating factors unsupported by the
record, the appellate court can intervene and disturb such a
sentence with a remand for resentencing. State v. Carey, 168
N.J. 413, 430 (2001) (citing Roth, supra, 95 N.J. at 365-66);
see also Roth, supra, 95 N.J. at 364-65 (condoning remand or
outright reversal when trial court’s sentence “shocks the
judicial conscience”). We also have held that a remand may be
required when a reviewing court determines that a sentencing
court failed to find mitigating factors that clearly were
supported by the record. State v. Dalziel, 182 N.J. 494, 505
(2005) (concluding that aggravating and mitigating factors
supported by record “must be a part of the deliberative
process”). Our decisions do not require, however, that the
trial court explicitly reject each and every mitigating factor
argued by a defendant. See State v. Pillot, 115 N.J. 558, 565-
9
66 (1989) (determining that although trial judge’s statement of
reasons for imposing sentence could have been clearer, it was
“possible in the context of this record to extrapolate without
great difficulty the court’s reasoning”). It is sufficient that
the trial court provides reasons for imposing its sentence that
reveal the court’s consideration of all applicable mitigating
factors in reaching its sentencing decision. See ibid.
Although our case law does not require that trial courts
explicitly reject every mitigating factor argued to the court,
we encourage judges to address each factor raised, even if only
briefly. That practice not only ensures consideration of every
factor but also demonstrates to defendants and the public that
all arguments have been evaluated fairly. A plain statement of
the trial court’s reasoning also assists reviewing courts in the
performance of their duties.
III.
In this appeal we can readily deduce from the sentencing
transcript that Judge Mulvihill was mindful of and did consider
the mitigating factors urged for defendant. From that record,
we discern the following as his reasons for not finding the
mitigating factors presented by defendant’s counsel. First, in
respect of counsel’s argument concerning mitigating factor
number two, that defendant “did not contemplate that his conduct
would cause or threaten serious harm,” N.J.S.A. 2C:44-1(b)(2),
10
we note that Judge Mulvihill discussed how “society has been
trying to send a message to all people that if you drink and/or
you use drugs you don’t drive a motor vehicle.” That message,
which, as Judge Mulvihill observed, defendant just “did not
get,” broadcasts that the harm posed by mixing driving with
drinking or taking drugs is intolerable. Yet, defendant risked
the intolerable by imbibing alcohol to excess, and drugs, and
then operating a motor vehicle. The import of Judge Mulvihill’s
comment is that defendant’s failure to “get” the message would
not inure to his benefit in the form of a finding of mitigating
factor two. Second, in response to the related argument that
defendant’s “severe hereditary alcoholism” somehow mitigated his
conduct under factor number four, N.J.S.A. 2C:44-1(b)(4), Judge
Mulvihill noted that many people have genetic predispositions
to substance abuse and, further, that defendant could have taken
actions to help alleviate or terminate his dependency problem.
We find no fault in the court’s disinclination to find that
mitigating factor.
Turning to counsel’s third argument that defendant had no
significant criminal history and that he should be eligible for
mitigating factor number seven, N.J.S.A. 2C:44-1(b)(7), Judge
Mulvihill rebuffed the assertion that defendant lacked
connection to the justice system. The court recognized that
defendant had a juvenile record going back to when he was
11
sixteen years old, noting that such involvement provided
defendant with ample opportunity to obtain help for his problems
before this most recent incident. Defense counsel also argued
that defendant’s character and attitude supported a finding
under mitigating factor number nine that he would be “unlikely
to commit another offense,” N.J.S.A. 2C:44-1(b)(9). The court
made a contrary determination, however, when it specifically
found that defendant was likely to commit another offense under
aggravating factor three, N.J.S.A. 2C:44-1(a)(3). The court’s
sentencing statement noted that people with substance abuse
problems struggle with such problems for a long time. Moreover,
and although defendant demonstrated an understanding that he
must pay for his actions, the court expressed its hope that
defendant would learn by the time he was released from prison
that he should not drive a motor vehicle while under the
influence of drugs or alcohol.1
1
Counsel’s additional arguments concerning defendant’s age and
the impact of the eighty-five percent period of parole
ineligibility on the time defendant would spend in custody are
not statutory mitigating factors and thus did not need to be
addressed by Judge Mulvihill in sentencing. Counsel’s other
argument for application of mitigating factor number thirteen --
that defendant’s conduct was influenced by a person more mature
than defendant, N.J.S.A. 2C:44-1(b)(13) -- was simply
inapplicable based on a facial reading of the statute. There
was no evidence that defendant’s father directly contributed to
defendant’s intoxicated state. See, e.g., State v. Torres, 313
N.J. Super. 129, 162-63 (App. Div.), certif. denied, 156 N.J.
425 (1998) (finding that trial judge appropriately omitted
mitigating factor thirteen because even though defendant was
12
Finally, and in response to counsel’s argument that
defendant’s sentence was disproportionate to sentences received
by similar offenders, Judge Mulvihill specifically addressed the
increasingly “stringent” sentences being imposed for motor
vehicle cases resulting in serious bodily injury and death. He
further perceived a correlation between those more stringent
sentences and the reduction in the number of injuries and deaths
resulting from motor vehicle accidents over the years.
In sum, the court’s explanation at sentencing, read in its
totality, clearly indicates that the court considered the
arguments in favor of mitigating factors urged by defendant and
rejected the applicability of those factors as well as
defendant’s disproportionality argument. In closing, we add
only the following. In respect of the issue raised by the panel
about whether the court recognized that it need not accept the
sentence in the negotiated plea agreement, we find that there
was no basis whatsoever for questioning the trial court’s
understanding of its authority. Judge Mulvihill unequivocally
expressed his recognition that although defendant entered into a
negotiated plea agreement, the court, and the court alone, had
only sixteen his actions were not childish in nature); State v.
Megargel, 278 N.J. Super. 557, 563-65 (App. Div. 1995), rev’d on
other grounds, 143 N.J. 484 (1996) (giving weight to mitigating
factor thirteen because mature and authoritative figure also
participated in crime, thereby influencing youthful defendant).
13
the exclusive authority to accept or reject the plea agreement.2
In the circumstances presented, the sentence imposed was clearly
the sentence that the court chose to impose. Because the
sentencing court adhered to the sentencing principles set forth
in the Code and defined in our case law, its discretion should
be immune from second-guessing. We grant to it the deference to
which it is entitled under our traditional principles of
appellate review of a criminal sentence. Accordingly, we hold
that the sentence imposed by the trial court is valid and must
be affirmed.
IV.
We reverse the judgment of the Appellate Division and
reinstate the sentence imposed by the trial court.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, RIVERA-SOTO,
and HOENS join in this opinion. JUSTICE LONG filed a separate,
dissenting opinion in which JUSTICES ALBIN and WALLACE join.
2
Before imposing defendant’s sentence, Judge Mulvihill stated:
It’s a negotiated plea agreement which the
Court can accept. I know the prosecutor is
expecting to get what the agreement calls
for. I know that [defense counsel] is
expecting that I will be more lenient and I
have the job to make the final decision
which is not an easy job.
SUPREME COURT OF NEW JERSEY
A-99 September Term 2008
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORY J. BIENIEK,
Defendant-Respondent.
JUSTICE LONG, dissenting.
The issue in this case is not whether the trial judge
imposed a sentence in accordance with the Code of Criminal
Justice but whether the Appellate Division erred in requesting
the judge to explain more fully the reasons for his sentence.
In an entirely unremarkable exercise of its reviewing function,
the Appellate Division remanded this case to the trial judge to
assure that the lengthy NERA sentence imposed on this nineteen-
year-old defendant was based on consideration of all relevant
matters. It did so because it was unsure, from the record,
whether that was the case:
We are also aware, as any reviewing court
must be, that even the most experienced
judge may, on occasion, not compile the
fullest record.
Our obligation on sentencing appeals is
to ensure that every defendant is sentenced
within the parameters of the criminal code
and receives the full consideration to which
2
he is entitled, no matter how horrendous the
offense may be. Were we to disregard that
obligation we would indeed have abdicated
our appellate responsibility . . . .
In ruling, the panel did not suggest, even obliquely, that the
sentence was improper. Rather, in an abundance of caution, it
asked the judge to abide by his obligations under Rule 3:21-4(g)
and state, more precisely, the reasons for the sentence.
That is exactly the way the case should have been decided.
Where there is doubt regarding how the trial judge ruled on
issues raised, it is not for the reviewing court to agree or
disagree with the sentence or to intuit from silence or
ambiguous ruminations the judge’s thoughts. Rather, it is for
the judge to state clearly the reasons why he acted as he did.
Because the Appellate Division’s disposition of this case
was legally unexceptionable, we should not have granted
certification. Indeed, none of the standards for certification
set forth in Rule 2:12-4 was satisfied here. The case is not of
general importance; there is no unsettled legal question
presented; there is no similar case pending in this Court; there
is no conflict among appellate panels; the case does not call
for our supervision; there are no “interests of justice”
elements lurking in the margins of the remand order; and the
case does not present “special” reasons warranting our review.
3
Accordingly, I would rule that certification was improvidently
granted.
JUSTICES ALBIN and WALLACE join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-99 SEPTEMBER TERM 2008
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORY J. BIENIEK,
Defendant-Respondent.
DECIDED January 21, 2010
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Long
CHECKLIST REVERSE AND
REINSTATE AFFIRM
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 4 3
The sentence imposed on defendant Cory Bieniek by the
trial court is valid and must be affirmed.
State of New Jersey v. Cory Bieniek (A-99-08)
Argued November 9, 2009 -- Decided January 21, 2010
PER CURIAM
On December 29, 2006, twenty-one-year-old Samar Seliem was killed when she backed her car out of her
driveway and was struck by a vehicle driven by nineteen-year-old defendant Corey Bieniek. At the time of the
collision, defendant was driving over one hundred miles per hour on a street with a posted speed limit of twenty-five
miles per hour. In addition to killing Seliem in the crash, defendant’s passenger suffered multiple leg fractures that
required surgery. Prior to the collision, defendant had consumed alcoholic beverages and smoked marijuana. His
blood alcohol level one hour after the crash was .17 percent, well in excess of the legal limit.
Defendant was indicted for first-degree manslaughter (count one), first-degree vehicular manslaughter on
or near school property (count two), second-degree aggravated assault (count three), and second-degree assault by
an automobile on or near school property (count four). On August 6, 2007, defendant pled guilty to counts one and
three, as well as to a summons charging him with driving while intoxicated. In exchange for the guilty pleas, the
State dismissed counts two and four and agreed to recommend an eighteen-year sentence in state prison for count
one, subject to the No Early Release Act (NERA). The State also agreed to recommend that the sentences on counts
one and three run concurrently.
At the sentencing hearing on November 27, 2008, the court considered a letter written by defendant, a
psychiatric and addiction evaluation of defendant, and letters from the victim’s relatives and friends. The court also
heard from defendant’s father, grandmother, and aunt. Defendant’s father and aunt both indicated that defendant
grew up in an alcoholic household and witnessed his father’s fight against alcohol and drug addiction. This
testimony corroborated the report by Hugo Franco, M.D., who identified defendant as an alcoholic and a drug addict
with addictions likely attributable to familial predisposition. In addition, defendant expressed remorse for causing
the victim’s death and pledged to be a better person.
The court also considered a sentencing memorandum submitted prior to the hearing by defendant’s
attorney. The memorandum set forth four mitigating factors: defendant did not contemplate that his conduct would
cause or threaten serious harm (factor 2); defendant suffers from severe alcoholism, which fails to establish a
defense, but tends to excuse his conduct (factor 4); defendant has no significant criminal history (factor 7); and
defendant’s character and attitude indicate that he is unlikely to commit another offense (factor 9). Defendant’s
counsel also argued for an additional mitigating factor, number thirteen, that defendant qualified as a “youthful
offender [who] was substantially influenced by another person more mature than the defendant.” In support of this
argument, counsel pointed to defendant’s upbringing and the influence of his alcoholic father. Defense counsel also
urged the court to assign additional weight to the mitigating factors, taking into account the NERA impact on the
amount of time defendant actually would spend in custody and, further, to consider that an eighteen-year sentence
would be disproportionate compared to other similarly situated defendants.
The sentencing judge, in explaining his decision, first found the presence of aggravating factors (3) the risk
that defendant will commit another offense, (6) defendant’s prior criminal record and seriousness of the offenses,
and (9) the need for deterrence. Specifically, the court pointed to defendant’s juvenile record and uncontrolled
substance abuse problem. As to mitigating factors, the court only alluded to mitigating factor ten, that defendant
would likely respond to probationary treatment. The court sentenced defendant to an eighteen-year term -- the
sentence recommended by the State pursuant to the plea agreement -- and a subsequent five-year period of parole
supervision on count one, with a concurrent five-year term and subsequent three-year period of parole supervision
on count three, both subject to an eighty-five percent parole disqualifier. The court dismissed counts two and four.
2
On appeal, defendant challenged his sentence as excessive. The Appellate Division heard oral argument on
May 29, 2008, and a two-judge part of the Appellate Division issued a next-day order, remanding the case to the
sentencing court to reconsider defendant’s sentence and, specifically, to allow defense counsel to argue for a
reduced sentence. The State petitioned the Supreme Court for certification and, on October 20, 2008, the Court
granted that petition and remanded the matter to the Appellate Division for a Statement of Reasons to provide a
more full explanation for the remand order.
Responding by letter, the remanding panel explained that the trial court had failed to clarify why the five
mitigating factors argued by defense counsel were inapplicable, held little weight, or were unworthy of express
mention. The panel also commented on the trial court’s finding of factor eleven, which was not presented by
defense counsel and was inapplicable to a first-degree offense. The panel also added that it could not be certain
whether the sentence was based on the plea agreement or the sentencing court’s own discretion. The panel believed
a remand was necessary to permit the trial court to flesh out a comprehensive record detailing its consideration of
the stated mitigating factors and to ensure the trial court recognized the controlling nature of its discretion.
The Supreme Court granted the State’s petition for certification from the Appellate Division’s Statement of
Reasons.
HELD: The sentence imposed on defendant Cory Bieniek by the trial court is valid and must be affirmed.
1. The goal of improved consistency of sentencing is promoted in New Jersey’s Code of Criminal Justice (Code),
which provides the courts with a system for “structured discretion” in sentencing. When trial judges exercise their
discretion in accordance with principles set forth in the Code and as defined by the Court, they need not fear second-
guessing. Under the Code, a sentencing court must first determine whether aggravating and mitigating factors
apply. After balancing those factors, the trial court may impose a term within the permissible range for the offense.
The court, pursuant to court rule, must explain the reasons behind its findings. Such an explanation is important for
meaningful appellate review of any excessiveness challenge to a sentence. (Pp. 7-8)
2. When an appellate court determines that the trial court has found aggravating and mitigating factors unsupported
by the record, the appellate court can intervene and remand for resentencing. Although not required by case law,
judges are encouraged to address each factor raised, even if only briefly to ensure consideration of every factor and
to demonstrate to defendants and the public that all arguments have been evaluated fairly. (Pp. 8-9)
3. The court’s explanation at sentencing, read in its entirety, clearly indicates that the court considered the
arguments in favor of the mitigating factors urged by the defense and rejected the applicability of those factors as
well as defendant’s disproportionality argument. (Pp. 9-12)
4. There is no basis for questioning the trial court’s understanding of its authority in this case. The judge
unequivocally expressed his recognition that although defendant entered into a negotiated plea agreement, the court,
and the court alone, had the exclusive authority to accept or reject the plea agreement. Under the circumstances
presented, the sentence imposed was clearly one the court chose to impose. The court adhered to the outlined
sentencing principles in the Code and case law and, therefore, is entitled to deference. (Pp. 12-13)
Judgment of the Appellate Division is REVERSED and the sentence imposed by the trial court is
REINSTATED.
JUSTICE LONG, DISSENTING, in which JUSTICES ALBIN and WALLACE join, is of the view
that certification in this case was improvidently granted.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, RIVERA-SOTO, AND HOENS join in
this PER CURIAM opinion. JUSTICE LONG filed a separate, dissenting opinion in which JUSTICES
ALBIN and WALLACE join.
SUPREME COURT OF NEW JERSEY
A-99 September Term 2008
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORY J. BIENIEK,
Defendant-Respondent.
Argued November 9, 2009 – Decided January 21, 2010
On certification to the Superior Court,
Appellate Division.
Simon Louis Rosenbach, Assistant Prosecutor,
argued the cause for appellant (Bruce J.
Kaplan, Middlesex County Prosecutor,
attorney).
Joseph J. Benedict argued the cause for
respondent (Benedict and Altman, attorneys;
Mr. Benedict and Philip Nettl, on the
brief).
PER CURIAM
This appeal arose from a tragedy that took place on
December 29, 2006. That day, twenty-one-year-old Samar Seliem
was killed when she backed her car out of her driveway on
Marlboro Road in Old Bridge and was struck by a vehicle driven
by nineteen-year-old defendant Corey Bieniek. As a result of
the collision, defendant faced criminal charges to which he
ultimately pled guilty. This appeal from defendant’s conviction
2
concerns only his sentence. In reviewing defendant’s
sentencing, resort must be had to traditional principles of
appellate review of a criminal sentence. Application of those
tenets requires that the trial court’s sentence be sustained.
I.
When his vehicle struck Seliem’s, defendant was driving
over one hundred miles per hour on a street with a speed limit
of twenty-five miles per hour. In addition to killing Seliem,
the collision caused defendant’s passenger, Kristine Makowa, to
suffer multiple leg fractures requiring surgery. Prior to the
collision, defendant had consumed alcoholic beverages and smoked
marijuana. His blood alcohol level one hour after the crash was
.17 percent, well in excess of the legal limit of .08 percent.
Defendant was indicted for first-degree aggravated
manslaughter, N.J.S.A. 2C:11-4(a) (count one); first-degree
vehicular manslaughter on or near school property, N.J.S.A.
2C:11-5(a) and (b)(3) (count two); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count three); and second-degree
assault by automobile on or near school property, N.J.S.A.
2C:12-1(c)(1) and (3) (count four). On August 6, 2007, before
the Honorable James F. Mulvihill, J.S.C., defendant pled guilty
to count one, first-degree aggravated manslaughter; to count
three, second-degree aggravated assault; and also to a summons
charging him with driving while intoxicated, N.J.S.A. 39:4-50.
3
In exchange for defendant’s guilty pleas, the State dismissed
counts two and four and agreed to recommend an eighteen-year
sentence in state prison for count one, subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. The State also agreed
to recommend that the sentence for count three run concurrently
with the sentence for count one.
At the sentencing hearing on November 27, 2008, the court
considered a letter written by defendant, a psychiatric and
addiction evaluation of defendant, and letters from the victim’s
relatives and friends. The court also heard from defendant’s
father, grandmother, and aunt. Defendant’s father and aunt both
indicated that defendant grew up in an alcoholic household, and
witnessed his father’s fight against alcohol and drug addiction.
The testimony corroborated the report by Hugo Franco, M.D., who
identified defendant as an alcoholic and a drug addict with
addictions likely attributable to familial predisposition. In
his allocution, defendant expressed remorse for causing the
victim’s death and pledged to become a better person.
The court also considered a sentencing memorandum submitted
prior to the hearing by defendant’s counsel. The memorandum set
forth four mitigating circumstances:
(2) [Defendant] did not contemplate that his
conduct would cause or threaten serious
harm;
4
(4) [Defendant] suffers from severe
alcoholism, which fails to establish a
defense, but tends to excuse his conduct;
(7) [Defendant] has no significant criminal
history; and
(9) [Defendant’s] character and attitude
indicate that he is unlikely to commit
another offense.
[See N.J.S.A. 2C:44-1(b)(2), (4), (7), (9).]
In addition, at the hearing, defendant’s counsel argued for an
additional mitigating factor, number thirteen, that defendant
qualified as a “youthful offender [who] was substantially
influenced by another person more mature than the defendant.”
In support of this argument, counsel pointed to defendant’s
upbringing and the influence of his alcoholic father.
Defendant’s counsel also urged the court to assign additional
weight to the mitigating factors, taking into account the NERA
impact on the amount of time defendant actually would spend in
custody, and, further, to consider that an eighteen-year
sentence would be disproportionate compared to other similarly
situated defendants.
In explaining his sentencing decision, Judge Mulvihill
first found the presence of aggravating factors (3) the risk
that defendant will commit another offense, (6) defendant’s
prior criminal record and seriousness of the offenses, and (9)
the need for deterrence. See N.J.S.A. 2C:44-1(a)(3), (6), (9).
Specifically, the court pointed to defendant’s juvenile record
5
and uncontrolled substance abuse problem. As for mitigating
factors, the court explicitly alluded only to one mitigating
factor, number ten, that defendant would likely respond to
probationary treatment. See N.J.S.A. 2C:44-1(b)(10). The court
sentenced defendant to an eighteen-year term -- the sentence
recommended by the State pursuant to the plea agreement -- and
subsequent five-year period of parole supervision on count one,
with a concurrent five-year term and subsequent three-year
period of parole supervision on count three, both subject to an
eighty-five percent parole disqualifier. The court dismissed
counts two and four.
On appeal, defendant challenged his sentence as excessive.
The Appellate Division heard oral argument on May 29, 2008,
during which defendant’s counsel argued that Judge Mulvihill
failed to consider, explicitly, mitigating circumstances that
were argued and that should have militated in favor of a
reduction in defendant’s sentence. A two-judge part of the
Appellate Division entered a next-day order, remanding the case
to the court below to reconsider defendant’s sentence and,
specifically, to allow defense counsel to argue for a reduced
sentence. The State petitioned this Court for certification
and, on October 20, 2008, we granted that petition and remanded
the matter to the Appellate Division for a statement of reasons
6
to provide a more full explanation for the remand order. State
v. Bieniek, 196 N.J. 589 (2008).
Responding by letter, the remanding panel explained that
the trial court had failed to clarify why the five mitigating
factors elucidated by defense counsel were inapplicable, held
little weight, or were unworthy of express mention. The panel
also commented on the trial court’s finding of factor eleven,
which was not presented by defense counsel and, as explained in
the statement of reasons, was inapplicable to a first-degree
offense. Noting that the discretion of the trial court controls
in sentencing and not the plea agreement, the panel added that
it could not be certain whether the sentence was based on the
plea agreement or was the sentencing court’s own determination.
See State v. Briggs, 349 N.J. Super. 496, 501-02 (App. Div.
2002) (explaining that trial court is not bound to plea bargain
when imposing sentence). The panel expressed concern, based on
its review of the sentencing transcript, that the sentence was
imposed based on the plea agreement. As a result, the panel’s
letter concluded that a remand was necessary to permit the trial
court to flesh out a comprehensive record detailing its
consideration of the stated mitigating factors, to ensure that
the trial court, in fact, recognized the controlling nature of
its discretion. We thereafter granted the State’s petition for
7
certification from the Appellate Division’s Statement of
Reasons. State v. Bieniek, 199 N.J. 517 (2009).
II.
Improved consistency in sentencing was a “paramount” goal
of New Jersey’s Code of Criminal Justice (Code). State v.
Kromphold, 162 N.J. 345, 352 (2000) (citation omitted). The
Code was designed to promote that goal by providing courts with
a system for “structured discretion” in sentencing. State v.
Roth, 95 N.J. 334, 345 (1984). And, we have “assured our trial
judges that when they ‘exercise discretion in accordance with
the principles set forth in the Code and defined by us . . . ,
they need fear no second-guessing.’” State v. Ghertler, 114
N.J. 383, 384 (1989) (quoting Roth, supra, 95 N.J. at 365).
Under the Code, a sentencing court first must determine,
pursuant to N.J.S.A. 2C:44-1(a) and (b), whether aggravating and
mitigating factors apply. After balancing the factors, the
trial court may impose a term within the permissible range for
the offense. See N.J.S.A. 2C:44-1(f); State v. Natale, 184 N.J.
458, 487-88 (2005) (eliminating use of presumptive terms by
sentencing courts when weighing aggravating and mitigating
factors and imposing sentence). The Court Rules require that
the sentencing court explain the reasoning behind its findings.
R. 3:21-4(g).
8
That explanation is important for meaningful appellate
review of any criminal sentence challenged for excessiveness.
The reviewing court is expected to assess the aggravating and
mitigating factors to determine whether they “were based upon
competent credible evidence in the record.” Roth, supra, 95
N.J. at 364-65. An appellate court is not to substitute its
assessment of aggravating and mitigating factors for that of the
trial court. State v. O’Donnell, 117 N.J. 210, 215 (1989).
However, when an appellate court determines that the trial court
has found aggravating and mitigating factors unsupported by the
record, the appellate court can intervene and disturb such a
sentence with a remand for resentencing. State v. Carey, 168
N.J. 413, 430 (2001) (citing Roth, supra, 95 N.J. at 365-66);
see also Roth, supra, 95 N.J. at 364-65 (condoning remand or
outright reversal when trial court’s sentence “shocks the
judicial conscience”). We also have held that a remand may be
required when a reviewing court determines that a sentencing
court failed to find mitigating factors that clearly were
supported by the record. State v. Dalziel, 182 N.J. 494, 505
(2005) (concluding that aggravating and mitigating factors
supported by record “must be a part of the deliberative
process”). Our decisions do not require, however, that the
trial court explicitly reject each and every mitigating factor
argued by a defendant. See State v. Pillot, 115 N.J. 558, 565-
9
66 (1989) (determining that although trial judge’s statement of
reasons for imposing sentence could have been clearer, it was
“possible in the context of this record to extrapolate without
great difficulty the court’s reasoning”). It is sufficient that
the trial court provides reasons for imposing its sentence that
reveal the court’s consideration of all applicable mitigating
factors in reaching its sentencing decision. See ibid.
Although our case law does not require that trial courts
explicitly reject every mitigating factor argued to the court,
we encourage judges to address each factor raised, even if only
briefly. That practice not only ensures consideration of every
factor but also demonstrates to defendants and the public that
all arguments have been evaluated fairly. A plain statement of
the trial court’s reasoning also assists reviewing courts in the
performance of their duties.
III.
In this appeal we can readily deduce from the sentencing
transcript that Judge Mulvihill was mindful of and did consider
the mitigating factors urged for defendant. From that record,
we discern the following as his reasons for not finding the
mitigating factors presented by defendant’s counsel. First, in
respect of counsel’s argument concerning mitigating factor
number two, that defendant “did not contemplate that his conduct
would cause or threaten serious harm,” N.J.S.A. 2C:44-1(b)(2),
10
we note that Judge Mulvihill discussed how “society has been
trying to send a message to all people that if you drink and/or
you use drugs you don’t drive a motor vehicle.” That message,
which, as Judge Mulvihill observed, defendant just “did not
get,” broadcasts that the harm posed by mixing driving with
drinking or taking drugs is intolerable. Yet, defendant risked
the intolerable by imbibing alcohol to excess, and drugs, and
then operating a motor vehicle. The import of Judge Mulvihill’s
comment is that defendant’s failure to “get” the message would
not inure to his benefit in the form of a finding of mitigating
factor two. Second, in response to the related argument that
defendant’s “severe hereditary alcoholism” somehow mitigated his
conduct under factor number four, N.J.S.A. 2C:44-1(b)(4), Judge
Mulvihill noted that many people have genetic predispositions
to substance abuse and, further, that defendant could have taken
actions to help alleviate or terminate his dependency problem.
We find no fault in the court’s disinclination to find that
mitigating factor.
Turning to counsel’s third argument that defendant had no
significant criminal history and that he should be eligible for
mitigating factor number seven, N.J.S.A. 2C:44-1(b)(7), Judge
Mulvihill rebuffed the assertion that defendant lacked
connection to the justice system. The court recognized that
defendant had a juvenile record going back to when he was
11
sixteen years old, noting that such involvement provided
defendant with ample opportunity to obtain help for his problems
before this most recent incident. Defense counsel also argued
that defendant’s character and attitude supported a finding
under mitigating factor number nine that he would be “unlikely
to commit another offense,” N.J.S.A. 2C:44-1(b)(9). The court
made a contrary determination, however, when it specifically
found that defendant was likely to commit another offense under
aggravating factor three, N.J.S.A. 2C:44-1(a)(3). The court’s
sentencing statement noted that people with substance abuse
problems struggle with such problems for a long time. Moreover,
and although defendant demonstrated an understanding that he
must pay for his actions, the court expressed its hope that
defendant would learn by the time he was released from prison
that he should not drive a motor vehicle while under the
influence of drugs or alcohol.1
1
Counsel’s additional arguments concerning defendant’s age and
the impact of the eighty-five percent period of parole
ineligibility on the time defendant would spend in custody are
not statutory mitigating factors and thus did not need to be
addressed by Judge Mulvihill in sentencing. Counsel’s other
argument for application of mitigating factor number thirteen --
that defendant’s conduct was influenced by a person more mature
than defendant, N.J.S.A. 2C:44-1(b)(13) -- was simply
inapplicable based on a facial reading of the statute. There
was no evidence that defendant’s father directly contributed to
defendant’s intoxicated state. See, e.g., State v. Torres, 313
N.J. Super. 129, 162-63 (App. Div.), certif. denied, 156 N.J.
425 (1998) (finding that trial judge appropriately omitted
mitigating factor thirteen because even though defendant was
12
Finally, and in response to counsel’s argument that
defendant’s sentence was disproportionate to sentences received
by similar offenders, Judge Mulvihill specifically addressed the
increasingly “stringent” sentences being imposed for motor
vehicle cases resulting in serious bodily injury and death. He
further perceived a correlation between those more stringent
sentences and the reduction in the number of injuries and deaths
resulting from motor vehicle accidents over the years.
In sum, the court’s explanation at sentencing, read in its
totality, clearly indicates that the court considered the
arguments in favor of mitigating factors urged by defendant and
rejected the applicability of those factors as well as
defendant’s disproportionality argument. In closing, we add
only the following. In respect of the issue raised by the panel
about whether the court recognized that it need not accept the
sentence in the negotiated plea agreement, we find that there
was no basis whatsoever for questioning the trial court’s
understanding of its authority. Judge Mulvihill unequivocally
expressed his recognition that although defendant entered into a
negotiated plea agreement, the court, and the court alone, had
only sixteen his actions were not childish in nature); State v.
Megargel, 278 N.J. Super. 557, 563-65 (App. Div. 1995), rev’d on
other grounds, 143 N.J. 484 (1996) (giving weight to mitigating
factor thirteen because mature and authoritative figure also
participated in crime, thereby influencing youthful defendant).
13
the exclusive authority to accept or reject the plea agreement.2
In the circumstances presented, the sentence imposed was clearly
the sentence that the court chose to impose. Because the
sentencing court adhered to the sentencing principles set forth
in the Code and defined in our case law, its discretion should
be immune from second-guessing. We grant to it the deference to
which it is entitled under our traditional principles of
appellate review of a criminal sentence. Accordingly, we hold
that the sentence imposed by the trial court is valid and must
be affirmed.
IV.
We reverse the judgment of the Appellate Division and
reinstate the sentence imposed by the trial court.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, RIVERA-SOTO,
and HOENS join in this opinion. JUSTICE LONG filed a separate,
dissenting opinion in which JUSTICES ALBIN and WALLACE join.
2
Before imposing defendant’s sentence, Judge Mulvihill stated:
It’s a negotiated plea agreement which the
Court can accept. I know the prosecutor is
expecting to get what the agreement calls
for. I know that [defense counsel] is
expecting that I will be more lenient and I
have the job to make the final decision
which is not an easy job.
SUPREME COURT OF NEW JERSEY
A-99 September Term 2008
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORY J. BIENIEK,
Defendant-Respondent.
JUSTICE LONG, dissenting.
The issue in this case is not whether the trial judge
imposed a sentence in accordance with the Code of Criminal
Justice but whether the Appellate Division erred in requesting
the judge to explain more fully the reasons for his sentence.
In an entirely unremarkable exercise of its reviewing function,
the Appellate Division remanded this case to the trial judge to
assure that the lengthy NERA sentence imposed on this nineteen-
year-old defendant was based on consideration of all relevant
matters. It did so because it was unsure, from the record,
whether that was the case:
We are also aware, as any reviewing court
must be, that even the most experienced
judge may, on occasion, not compile the
fullest record.
Our obligation on sentencing appeals is
to ensure that every defendant is sentenced
within the parameters of the criminal code
and receives the full consideration to which
2
he is entitled, no matter how horrendous the
offense may be. Were we to disregard that
obligation we would indeed have abdicated
our appellate responsibility . . . .
In ruling, the panel did not suggest, even obliquely, that the
sentence was improper. Rather, in an abundance of caution, it
asked the judge to abide by his obligations under Rule 3:21-4(g)
and state, more precisely, the reasons for the sentence.
That is exactly the way the case should have been decided.
Where there is doubt regarding how the trial judge ruled on
issues raised, it is not for the reviewing court to agree or
disagree with the sentence or to intuit from silence or
ambiguous ruminations the judge’s thoughts. Rather, it is for
the judge to state clearly the reasons why he acted as he did.
Because the Appellate Division’s disposition of this case
was legally unexceptionable, we should not have granted
certification. Indeed, none of the standards for certification
set forth in Rule 2:12-4 was satisfied here. The case is not of
general importance; there is no unsettled legal question
presented; there is no similar case pending in this Court; there
is no conflict among appellate panels; the case does not call
for our supervision; there are no “interests of justice”
elements lurking in the margins of the remand order; and the
case does not present “special” reasons warranting our review.
3
Accordingly, I would rule that certification was improvidently
granted.
JUSTICES ALBIN and WALLACE join in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-99 SEPTEMBER TERM 2008
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
CORY J. BIENIEK,
Defendant-Respondent.
DECIDED January 21, 2010
Chief Justice Rabner PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Long
CHECKLIST REVERSE AND
REINSTATE AFFIRM
CHIEF JUSTICE
RABNER X
JUSTICE LONG X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE WALLACE X
JUSTICE RIVERA-SOTO X
JUSTICE HOENS X
TOTALS 4 3
Sunday, January 10, 2010
New trial ordered where Judge conducted questioning of defense expert State v. O’Brien __ NJ __ (A-89-08)
New trial ordered where Judge conducted questioning of defense expert
State v. O’Brien __ NJ __ (A-89-08) 12-29-09
Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness, revealed that disbelief to the jury, and supported a witness adverse to him. Because that conduct was clearly capable of producing an unjust result, a new trial is in order.
State v. O’Brien __ NJ __ (A-89-08) 12-29-09
Defendant was entitled to face a single adversary, the State. He should not have had to bear the consequences of a judge who appeared to disbelieve him and his expert witness, revealed that disbelief to the jury, and supported a witness adverse to him. Because that conduct was clearly capable of producing an unjust result, a new trial is in order.
STATE v. CIANCAGLINI A-2785-08T4
STATE v. CIANCAGLINI
A-2785-08T4 01-07-10
In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, we disagree with the holding of
State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993), and hold
that the prior refusal conviction does count toward making this
a third offense. Our holding is consistent with a line of cases
both before and after DiSomma concluding that a prior DWI
conviction counts toward enhancement of the sentence imposed for
a refusal conviction. See, e.g., State v. Tekel, 281 N.J.
Super. 502 (App. Div. 1995).
We also hold that double jeopardy does not bar reinstatement
of the sentence originally imposed in the municipal
court for a third DWI offense, which was reduced in the Law
Division to a sentence for a first DWI offense.
A-2785-08T4 01-07-10
In this appeal from a DWI conviction, after prior separate DWI and refusal convictions, we disagree with the holding of
State v. DiSomma, 262 N.J. Super. 375 (App. Div. 1993), and hold
that the prior refusal conviction does count toward making this
a third offense. Our holding is consistent with a line of cases
both before and after DiSomma concluding that a prior DWI
conviction counts toward enhancement of the sentence imposed for
a refusal conviction. See, e.g., State v. Tekel, 281 N.J.
Super. 502 (App. Div. 1995).
We also hold that double jeopardy does not bar reinstatement
of the sentence originally imposed in the municipal
court for a third DWI offense, which was reduced in the Law
Division to a sentence for a first DWI offense.
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