NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4095-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSHUA D. MALMGREN,
Defendant-Appellant.
________________________
Submitted June 17, 2020 – Decided July 21, 2020
Before Judges Koblitz and Gilson.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Indictment No. 12-11-
0748.
Joseph E. Krakora, Public Defender, attorney for
appellant (David J. Reich, Designated Counsel, on the
brief).
Jeffrey H. Sutherland, Cape May County Prosecutor,
attorney for respondent (Gretchen Anderson Pickering,
Senior Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant appeals from an April 20, 2018 order based on an oral decision
placed on the record two months earlier finding a sufficient exigency existed to
justify testing defendant's blood without a search warrant after a fatal
automobile accident in which defendant drove into two young girls who were
walking by the side of the road. We affirm substantially for the reasons placed
on the record by the trial court. We also determine defendant's sentence was not
excessive.
The April 20 order was issued after a plenary hearing necessitated by our
unpublished opinion, State v. Malmgren, No. A-3119-14 (App. Div. Dec. 15,
2016). We stated there:
Defendant Joshua D. Malmgren pled guilty to
two counts of first-degree aggravated manslaughter,
N.J.S.A. 2C:11-4(a), admitting that he killed two
teenaged girls when he swerved onto the shoulder of the
road while driving under the influence of alcohol and
prescription drugs. He also admitted to using his cell
phone and being distracted by a large sign by the side
of the road. At the time, defendant had his broken left
arm in a cast. The judge sentenced defendant to the
maximum aggregate sentence permissible under the
plea agreement: eighteen years with an eighty-five
percent parole disqualifier subject to the No Early
Release Act [(NERA)], N.J.S.A. 2C:43-7.2. Prior to
pleading guilty, defendant moved to suppress the
results of his blood alcohol test. This issue was
preserved on appeal pursuant to Rule 3:5-7(d). Because
the issue was decided prior to our Supreme Court's
decision in State v. Adkins, 221 N.J. 300 (2015), we
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now remand for further review to determine whether
sufficient exigency existed to draw defendant's blood
absent a warrant.
[Id. at 1-2.]
The holding in Adkins necessitated a remand, as we explained in our
opinion:
After defendant's motion to suppress was heard,
our Supreme Court decided Adkins, 221 N.J. at 317,
which applied [t]he United States Supreme Court
decision in Missouri v. McNeely, [569 U.S. 141]
(2013), retroactively to all cases in the pipeline. This is
one such case. McNeely determined that before blood
can be constitutionally drawn from a suspect in a drunk-
driving investigation a warrant must be obtained, unless
an exigency existed under the totality of the
circumstances. Id. at [164-65].
[Malmgren, slip op. at 4.]
Two officers, whom the court found credible, testified at the hearing. The
accident occurred on July 31, 2012 at approximately 9 p.m. and every working
officer from the small police department in Middle Township responded to the
scene. The scene was described as "very chaotic," with the victims lying along
the roadway, substantial debris stretched along the highway, and family
members of the two young victims, who had rushed to the scene. The police
were involved in preserving evidence from the scene, where the road was closed
to traffic for four hours. An officer found defendant by the side of the road and
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3
observed that he smelled of alcohol and had bloodshot eyes. Defendant was
asked to perform sobriety tests, which he failed. The officer was also concerned
about defendant's medical condition as he had a sore right fist.1 The officer
transported defendant to a local hospital, and forty-one minutes after he arrived
at the hospital, a blood draw was conducted at 10:30 p.m. An analysis revealed
that defendant's blood alcohol concentration was .183 percent and he had
ingested prescription drugs for anxiety and pain caused by his previously broken
arm. The officers testified that in their experience it would have taken hours to
obtain a telephonic or written warrant, and by that time the alcohol in defendant's
system would have dissipated. The officer who transported defendant to the
hospital was not trained in administering an Alcotest.
Defendant raises the following issues on appeal:
POINT I: THE STATE FAILED TO MEET ITS
BURDEN OF ESTABLISHING A COMPELLING
EXIGENCY OR EMERGENCY SUFFICIENT TO
JUSTIFY DEPARTURE FROM THE
CONSTITUTIONALLY MANDATED RULE
REQUIRING LAW ENFORCEMENT OFFICERS TO
OBTAIN A SEARCH WARRANT; THE TRIAL
COURT'S CONCLUSION TO THE CONTRARY
WAS ERRONEOUS AND IN VIOLATION OF
CONSTITUTIONAL REQUIREMENTS.
1
Defendant had a broken right hand, which he said stemmed from hitting his
car after the accident.
A-4095-17T4
4
POINT II: MALMGREN'S SENTENCE WAS
EXCESSIVE.
We defer to both credibility and factual findings of the trial court unless
they are unsupported by the record. State v. Elders, 197 N.J. 224, 244 (2007).
The trial court found both officers credible and that the large and chaotic
accident scene coupled with concern over defendant's medical situation and the
difficulty in obtaining a warrant expeditiously constituted an emergent situation
allowing a blood draw. See State v Jones, 441 N.J. Super. 317, 321 (App. Div.
2015) (where we approved a blood draw without a warrant after McNeely under
similar circumstances). We agree that the blood draw was permissible under
these circumstances.
Defendant argues that his sentence was manifestly excessive. He was
sentenced in December 2014, after pleading guilty to two counts of first-degree
aggravated manslaughter, with the understanding that he would be sentenced in
the second-degree range to no more than eighteen years in prison pursuant to
NERA. The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), the
risk that he would reoffend because defendant was still using alcohol, and nine,
N.J.S.A. 2C:44-1(a)(9), the need for deterrence, as well as mitigating factors
seven, N.J.S.A. 2C:44-1(b)(7), that he had no prior criminal record, and eleven,
A-4095-17T4
5
2C:44-1(b)(11), that his incarceration would entail a hardship to his family due
to defendant's seriously disabled young son.
Our Supreme Court described our function in reviewing sentences:
Appellate courts review sentencing
determinations in accordance with a deferential
standard. The reviewing court must not substitute its
judgment for that of the sentencing court. The appellate
court must affirm the sentence unless (1) the sentencing
guidelines were violated; (2) the aggravating and
mitigating factors found by the sentencing court were
not based upon competent and credible evidence in the
record; or (3) "the application of the guidelines to the
facts of [the] case makes the sentence clearly
unreasonable so as to shock the judicial conscience."
[State v Fuentes 217 N.J. 57, 70-74 (2014) (citation
omitted) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
A sentence imposed pursuant to a plea agreement is presumed to be
reasonable because a defendant voluntarily waived his right to a trial in return
for the reduction or dismissal of certain charges, recommendations as to
sentence and the like. See Roth, 95 N.J. at 365.
Defendant argues that the court did not weigh the mitigating factors
sufficiently and put too much weight on the aggravating factors. Defendant took
the lives of two young girls and could have received forty years in prison for
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two first-degree crimes. While the sentence was undoubtedly severe, especially
for a first offender, it does not shock the judicial conscious.
Affirmed.
A-4095-17T4
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STATE OF NEW JERSEY VS. JOSHUA D. MALMGREN (12-11-0748, CAPE MAY COUNTY AND STATEWIDE)
Combined Opinion