Defendant pled guilty to an accusation charging him with the third degree offense of strict liability vehicular homicide pursuant to N.J.S.A. 2C:11-5.3a.The State agreed to recommend probation conditioned on defendant serving 364 days in the county jail. Mitigating factor five, N.J.S.A. 2C:44-1b(5), allows a judge to consider whether the victim's conduct induced or facilitated the commission of the crime. The trial judge held mitigating factor five was inapplicable in this case as a matter of law because N.J.S.A. 2C:11-5.3d provides: "It shall not be a defense to a prosecution under this section that the decedent contributed to his [or her] own death by reckless or negligent conduct." This court reverses and holds N.J.S.A. 2C:11-5.3d does not preclude a judge from finding and applying mitigating factor five. This court remands the matter for resentencing because the record shows a basis to find mitigating factor five.
