SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office
of the Clerk for the convenience of the reader. It has been neither reviewed nor
approved by the Court and may not summarize all portions of the opinion.
State v. Rashaun Bell (A-75-20) (084657)
Argued January 19, 2022 -- Decided May 16, 2022
FUENTES, P.J.A.D. (temporarily assigned), writing for a unanimous Court.
In this appeal, the Court considers whether N.J.S.A. 2C:11-5.1, which
criminalizes the act of leaving the scene of an accident resulting “in the death of
another person,” can be charged separately for each victim killed in a single
accident. The Court also considers the Appellate Division’s decision to amend sua
sponte the sentence imposed by the trial court, which had approved the plea
agreement negotiated by the parties.
In October 2017, defendant Rashaun Bell struck with his car a bicycle ridden
by fifteen-year-old Elionel Jimenez and sixteen-year-old Alexander Antonio Rosas
Flores. Tragically, both boys were killed. Defendant was charged with two counts
of leaving the scene of an accident in violation of N.J.S.A. 2C:11-5.1, and two
counts of causing the death of Elionel and Alexander while operating a vehicle
without a driver’s license, in violation of N.J.S.A. 2C:40-22(a).
Defendant moved to dismiss the second count of leaving the scene of a fatal
accident under N.J.S.A. 2C:11-5.1, arguing that the act of leaving can be prosecuted
once per accident, regardless of the number of fatalities caused by the accident. The
trial judge denied the motion, finding that the death of each victim constituted an
element of separate offenses and defendant could be charged accordingly.
Defendant thereafter pled guilty to two counts of leaving the scene of a fatal
accident. He expressly reserved the right to appeal the trial court’s interpretation of
N.J.S.A. 2C:11-5.1. In exchange, the State agreed to dismiss the remaining counts
of the indictment and seek a five-year term of imprisonment for each count under
N.J.S.A. 2C:11-5.1, to run consecutively. The trial court accepted the terms of the
plea agreement and sentenced defendant to a cumulative ten-year term of
imprisonment.
The Appellate Division reversed the trial court’s ruling, holding that, “[w]here
a defendant leaves the scene of a single accident that resulted in the death of another
person, the State may not properly charge him or her with multiple counts of this
1
offense based on the number of victims who died in the accident.” The Appellate
Division thereafter: (1) reversed one of defendant’s convictions under N.J.S.A.
2C:11-5.1; (2) vacated the sentence imposed by the trial court related to that
conviction; (3) upheld the remaining conviction of second-degree leaving the scene
of a fatal accident; (4) affirmed the five-year sentence previously imposed by the
trial court on that count; and (5) remanded the case to the trial court “for the limited
purpose of issuing an amended judgment of conviction consistent with this opinion.”
The Court granted the State’s petition for certification. 247 N.J. 399 (2021).
HELD: N.J.S.A. 2C:11-5.1 applies to the act of fleeing from the scene of an
accident. The number of fatalities that may result from the accident is not an
element of the offense and thus only one count of the offense may be charged per
accident, regardless of the number of victims. Although the Appellate Division
correctly reversed the trial court’s judgment with regard to the number of counts that
could be charged, the appellate court should have remanded the case to the trial
court to permit the parties to negotiate a new plea agreement or go to trial rather
than amend the sentence in a manner not contemplated by the plea agreement.
1. Nearly twenty-five years ago, the Legislature adopted N.J.S.A. 2C:11-5.1 to deter
“hit and run” accidents in which one or more people are killed. Up to that point,
leaving the scene of a motor vehicle accident constituted only a violation of the
motor vehicle code under N.J.S.A. 39:4-129. N.J.S.A. 2C:11-5.1 created a third-
degree offense for a driver who knowingly absconded from the scene of an accident
resulting in the death of another person under circumstances that also violated
certain requirements codified in N.J.S.A. 39:4-129. And the Legislature has twice
amended N.J.S.A. 2C:11-5.1 to augment its penal consequences. It is now a second-
degree offense, punishable by a term of imprisonment “which shall be fixed by the
court and shall be between five years and [ten] years.” N.J.S.A. 2C:43-6(a)(2). In
State v. Fisher, the Appellate Division explained the underlying focus in N.J.S.A.
2C:11-5.1 is the driver’s response to the accident, not the number of deaths that
result therefrom. See 395 N.J. Super. 533, 547 (App. Div. 2007). (pp. 14-18)
2. In considering whether a violation of N.J.S.A. 2C:11-5.1 occurs on a per-accident
or a per-victim basis, the Court examines the text of the statute. The offense can be
distilled to four elements: (1) the driver “knows” the driver was “involved in an
accident”; (2) the driver “knowingly” leaves the scene of the accident; (3) the driver
violates the requirements of N.J.S.A. 39:4-129; and (4) the accident “results” in the
death of another person. Nothing in the language of N.J.S.A. 2C:11-5.1 reveals or
suggests the Legislature intended to charge a defendant based on the number of
fatalities that result from the accident. The Court agrees with the Appellate
Division’s analysis in Fisher that the statute’s plain language focuses on the driver’s
response and concludes that N.J.S.A. 2C:11-5.1 applies only to the act of fleeing
2
from the scene of an accident. The number of fatalities that may result from the
accident is not an element of this offense. Most states that have considered similar
statutes have reached the same conclusion. (pp. 19-24)
3. That conclusion, moreover, accords with the public policy underpinning N.J.S.A.
2C:11-5.1 -- to deter drivers from absconding from the scene of an accident that
results in the death of another person. The State retains the authority to prosecute
those drivers who violate the rights of the victims involved in an accident if the
evidence so warrants. The Legislature specifically identified the victim-centric
offenses that shall not merge with a conviction under N.J.S.A. 2C:11-5.1 -- namely,
aggravated manslaughter, reckless vehicular homicide, and strict liability homicide.
Each act of manslaughter and homicide may be prosecuted separately, and a flight
charge may also be imposed, where appropriate, no matter how many counts of per-
victim offenses are charged. But N.J.S.A. 2C:11-5.1 is not itself such a victim-
centric offense. Under the principle of lenity, if the Legislature intended to hold a
defendant responsible based upon the number of victims of the accident, and not for
the singular act of fleeing the scene, then it is incumbent upon the Legislature to
clarify the contours of criminal activity. And because N.J.S.A. 2C:11-5.1 focuses on
the act of leaving the scene of the accident, the Court rejects the argument that
including multiple counts based on a single accident does not violate the doctrine of
multiplicity. (pp. 25-29)
4. Turning the to the amendment of defendant’s sentence, the Court first reviews
State v. Rodriguez, in which the Court merged two of defendant’s convictions and
then remanded for resentencing. 97 N.J. 263, 266, 277 (1984). Plea agreements are
important components of this country’s criminal justice system. Although a trial
court is not bound by the terms of a plea agreement, it is clear from the record the
judge was significantly influenced by the agreed-to terms in this case. The
Rodriguez Court’s conclusion applies with equal force here, and the appellate court
should have remanded the matter to the trial court to allow defendant to either
negotiate a new plea agreement with the State that the sentencing court finds
acceptable or withdraw his plea and stand trial. If the Court were to uphold the
approach adopted here by the Appellate Division, the penal outcome would be
wholly unrelated to the legitimate factors trial courts are required to follow in
dispensing criminal punishment. The exercise of appellate original jurisdiction over
sentencing should not occur regularly; in the face of deficient sentences, a remand to
the trial court for resentencing is strongly to be preferred. This case presents no
compelling grounds for departure from that general principle. (pp. 29-36)
AFFIRMED in part, REVERSED in part.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-75 September Term 2020
084657
State of New Jersey,
Plaintiff-Appellant,
v.
Rashaun Bell, a/k/a
BG Rashaun Rah,
Defendant-Respondent.
On certification to the Superior Court, Appellate
Division.
Argued Decided
January 19, 2022 May 16, 2022
Erin M. Campbell, Assistant Prosecutor, argued the cause
for appellant (Esther Suarez, Hudson County Prosecutor,
attorney; Erin M. Campbell, on the brief).
Susan L. Romeo, Assistant Deputy Public Defender,
argued the cause for respondent (Joseph E. Krakora,
Public Defender, attorney; Susan L. Romeo, on the brief).
Steven A. Yomtov, Deputy Attorney General, argued the
cause for amicus curiae Attorney General of New Jersey
(Andrew J. Bruck, Acting Attorney General, attorney;
Steven A. Yomtov, of counsel and on the brief).
Zachary A. Levy argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
1
(Pashman Stein Walder Hayden, attorneys; Zachary A.
Levy and CJ Griffin, on the brief).
JUDGE FUENTES (temporarily assigned)
delivered the opinion of the Court.
In this case, a car driven by defendant Rashaun Bell crashed into two
teenaged boys riding a bicycle on a roadway in Jersey City. Both boys died as
a result of the accident. Defendant and his three passengers fled the scene.
Defendant was eventually apprehended and indicted on two counts of leaving
the scene of an accident in violation of N.J.S.A. 2C:11-5.1. Defendant moved
to dismiss one of the counts, arguing that, as applied here, N.J.S.A. 2C:11-5.1
violated the rule against multiplicity.
The trial court denied defendant’s motion and concluded N.J.S.A.
2C:11-5.1 holds a driver who knowingly flees the scene of an accident
criminally responsible for each person who dies in the accident. Defendant
thereafter pled guilty, pursuant to an agreement negotiated with the State, to
both counts of the indictment. Consistent with the plea agreement, the trial
court sentenced defendant to two consecutive five-year terms of imprisonment.
In response to defendant’s appeal, the Appellate Division reversed the trial
court’s ruling, dismissed one of the convictions, vacated the five-year term of
2
imprisonment for that conviction, and remanded the matter to the trial court to
amend the judgment of conviction accordingly.
In response to the State’s appeal, we now hold the plain text of N.J.S.A.
2C:11-5.1 reveals the Legislature intended to criminalize the act of leaving the
scene of an accident resulting “in the death of another person,” in violation of
the tenets of order and civility codified under N.J.S.A. 39:4-129, independent
of the number of fatalities. Stated differently, the number of fatalities caused
by the accident is not an element of the second-degree offense codified in
N.J.S.A. 2C:11-5.1.
This outcome is consistent with this Court’s well-settled principle of
statutory construction that looks to a statute’s plain language as the “best
indicator” of legislative intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005).
Beyond that analytical threshold, we construe N.J.S.A. 2C:11-5.1 consistent
with the rule against multiplicity derived from the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution, which prohibits
“multiple punishments for the same offense.” See State v. Widmaier, 157 N.J.
475, 489-90 (1999). Finally, this interpretation of N.J.S.A. 2C:11-5.1 is in
harmony with the doctrine of lenity.
We thus affirm the part of the Appellate Division’s judgment that
construed N.J.S.A. 2C:11-5.1 consistent with this Court’s holding. We
3
reverse, however, the Appellate Division’s judgment to amend sua sponte the
sentence imposed by the trial court in a manner not contemplated by the terms
of the plea agreement negotiated by the parties in good faith and approved by
the trial court under Rule 3:9-2. Under these circumstances, the appellate
court should have remanded the case to the trial court to permit the parties to
negotiate a new plea agreement that the trial court finds acceptable or
otherwise schedule the case for trial. 1 See State v. Jarbath, 114 N.J. 394, 411
(1989).
I.
A.
The salient facts of this case are undisputed. At approximately 2:25 p.m.
on October 18, 2017, twenty-year-old Rashaun Bell was driving a 2010 four-
door Nissan Maxima northbound on the Secaucus off-ramp for Routes 1 and 9
in Jersey City. At the same time, fifteen-year-old Elionel Jimenez and sixteen-
year-old Alexander Antonio Rosas Flores were riding a bicycle down a steep
hill, heading westbound on Leonard Street on a path that intersected with the
1
This aspect of the State’s appeal is moot because Rashaun Bell died in
November 2021. This issue, however, is “of sufficient public importance,
likely to surface again, to warrant our deciding it, even in the absence of an
actual controversy between the litigants.” State v. Kovack, 91 N.J. 476, 486
(1982).
4
road on which defendant was traveling. This mode of bicycling required
Elionel to pedal standing up while Alexander remained seated.
Tragically, defendant’s car crashed into the boys’ bicycle at a
perpendicular angle. The speed limit in the area where the accident occurred is
twenty-five miles per hour. A Jersey City Police Sergeant, who testified
before the grand jury, estimated defendant was traveling approximately double
the speed limit when the car struck the boys’ bicycle.
Elionel was found “face down on the ground with a large laceration to
his head.” He was pronounced dead at the scene at 2:41 p.m. by a physician
from the Jersey City Medical Center. Police officers found Alexander on
Tonnelle Avenue; the force of the impact propelled him over a nine-foot fence
where he landed twenty-seven feet below. Medical staff transported him to the
Jersey City Medical Center, where he succumbed to his injuries the following
day.
A detective from the Homicide Unit of the Hudson County Prosecutor ’s
Office, who responded to the accident scene, testified before the grand jury
that the car was “abandoned” approximately 600 feet from the point of impact.
The four occupants of the vehicle fled the scene on foot. 2 Law enforcement
2
Two women, who were in the back seat of the car at the time of the accident,
returned to the scene after being chased down by witnesses. One of the
5
investigators searched the Nissan Maxima, pursuant to a warrant, and retrieved
a court document addressed to defendant as well as an identification bracelet
with defendant’s name, photograph, and date of birth. The State also
presented a video showing defendant fleeing through a backyard, about two
blocks from the scene. Defendant did not have a driver’s license.
B.
The Assistant Prosecutor instructed the grand jury that, under N.J.S.A.
2C:11-5.1, defendant was “charged with two counts: one count for Elionel
Jimenez and one count for Alexander Antonio Rosas Flores.” Consistent with
those legal instructions, the grand jury returned an indictment charging
defendant with two counts of second-degree leaving the scene of an accident in
violation of N.J.S.A. 2C:11-5.1, and two counts of third-degree causing the
death of Elionel and Alexander while operating a vehicle without a driver’s
license, in violation of N.J.S.A. 2C:40-22(a).
Defendant moved to dismiss the second count of leaving the scene of a
fatal accident under N.J.S.A. 2C:11-5.1. Defense counsel argued the statute
reflects the Legislature’s intent to punish drivers for leaving the scene of a
women, who had been in a dating relationship with defendant, was charged
with third-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(7), after falsely
identifying defendant. The other identified defendant as the driver. The front-
seat passenger was never identified.
6
fatal accident or failing to report they were involved in such an accident,
regardless of the number of fatalities caused by the accident. Relying on
United States v. Kennedy, 682 F.3d 244, 254-55 (3d Cir. 2012), defense
counsel urged the motion judge to dismiss the multiplicitous count because it
would violate the “Double Jeopardy Clause’s protection against cumulative
punishment.”
In opposition, the State focused on the part of N.J.S.A. 2C:11-5.1 that
refers to the driver “knowingly” leaving the scene of the accident “under
circumstances that violate the provisions of [N.J.S.A.] 39:4-129.” The
prosecutor argued the specific reference to the obligations imposed on drivers
under Title 39 indicated the Legislature’s intent to hold a defendant criminally
responsible under N.J.S.A. 2C:11-5.1 for each death caused by the accident.
The trial judge denied defendant’s motion in an oral opinion delivered
from the bench. Because the statute “imposes culpability” when a driver
leaves the scene of an accident that results in the death of “another person,”
the judge inferred the Legislature intended “the death of each victim [to stand]
as a separate and distinct element of two separate offenses that may be charged
separately on the indictment.” Thus, the judge found the death of each victim
constituted an element of separate offenses and defendant could be charged
accordingly. The motion judge also found support for his analysis in the part
7
of N.J.S.A. 2C:11-5.1 that prohibits a conviction of this offense to merge with
other homicide offenses -- i.e., aggravated manslaughter, N.J.S.A. 2C:11-4,
reckless vehicular homicide, N.J.S.A. 2C:11-5, or strict liability vehicular
homicide, N.J.S.A. 2C:11-5.3 -- and expressly requires a court to impose a
sentence for a violation of N.J.S.A. 2C:11-5.1 to run consecutively to multiple
sentences of imprisonment for more than one offense.
Defendant thereafter pled guilty to two counts of second-degree leaving
the scene of a fatal accident, and expressly reserved the right to appeal the trial
court’s interpretation of N.J.S.A. 2C:11-5.1. In exchange, the State agreed to
dismiss the remaining counts of the indictment and seek a five-year term of
imprisonment for each count under N.J.S.A. 2C:11-5.1, to run consecutively.
The trial court accepted the terms of the plea agreement and sentenced
defendant to a cumulative ten-year term of imprisonment.
C.
Defendant appealed, arguing that the trial court erred when it refused to
dismiss one of the counts in the indictment for the single act of leaving the
scene of an accident. Defendant urged the Appellate Division to vacate his
conviction because the multiple charges violated double jeopardy protections
espoused in the rule against multiplicity. The State argued the trial court
correctly concluded N.J.S.A. 2C:11-5.1 requires “the death of a single person
8
needs to be proven to sustain a count. Thus, the death of each victim stands as
a separate and distinct element of two separate offenses that may be charged
separately on the indictment.”
In an unpublished opinion, the Appellate Division reversed the trial
court’s ruling. The Appellate Division held that,
[w]here a defendant leaves the scene of a single
accident that resulted in the death of another person, the
State may not properly charge him or her with multiple
counts of this offense based on the number of victims
who died in the accident. Instead, and as expressly
permitted by N.J.S.A. 2C:11-5.1, the State may address
the harm to victims by charging the defendant, as
appropriate, with aggravated manslaughter under
N.J.S.A. 2C:11-4, reckless vehicular homicide under
N.J.S.A. 2C:11-5, or strict liability vehicular homicide
under N.J.S.A. 2C:11-5.3.
The Appellate Division thereafter: (1) reversed one of defendant’s
convictions under N.J.S.A. 2C:11-5.1; (2) vacated the sentence imposed by the
trial court related to that conviction; (3) upheld the remaining conviction of
second-degree leaving the scene of a fatal accident; (4) affirmed the five-year
sentence previously imposed by the trial court on that count; and (5) remanded
the case to the trial court “for the limited purpose of issuing an amended
judgment of conviction consistent with this opinion.”
The State filed a motion for reconsideration of the part of the Appellate
Division’s opinion that sua sponte resentenced defendant to a five-year term.
9
Relying on State v. Roddy, 210 N.J. Super. 62, 66 (App. Div. 1986) (citing
State v. Rodriguez, 97 N.J. 263, 276 (1984)), the State argued the appellate
court should have remanded the case to the Criminal Part for resentencing. In
response, defendant argued that remanding the case to the trial court for
resentencing would violate double jeopardy as well as his expectation of
finality. State v. Sanders, 107 N.J. 609, 619 (1987). In an order dated June
26, 2020, the Appellate Division denied the State’s motion for reconsideration
without further comment.
This Court granted the State’s petition for certification, 247 N.J. 399
(2021), to decide, as a matter of first impression, whether a vehicle operator
who knowingly (1) is involved in an accident and (2) leaves the scene of that
accident, in violation of N.J.S.A. 39:4-129, can be held criminally responsible
for each fatality caused by the accident under N.J.S.A. 2C:11-5.1. We also
granted leave to appear as amici curiae to the Attorney General and the
Association of Criminal Defense Lawyers of New Jersey (ACDL).
II.
A.
Before this Court, the State contends the Appellate Division erroneously
construed N.J.S.A. 2C:11-5.1 to limit the scope of culpability to the act of
leaving the scene of a fatal accident, regardless of the number of fatalities.
10
The State argues one of the elements of this second-degree offense is “that the
accident resulted in the death of another person” -- “not that it must result in
‘the death of another person or persons’” -- and that each death caused by the
accident may therefore be prosecuted separately in keeping with N.J.S.A.
2C:1-8. The State argues that the increase in penalties over the years for
violating N.J.S.A. 2C:11-5.1 reflects the Legislature’s intent to hold a driver
who knowingly leaves the scene of a fatal accident criminally responsible for
each life lost. Further, the State argues the Appellate Division misapplied the
holding in State v. Hill-White to conclude the rule against multiplicity
prohibits charging defendant under N.J.S.A. 2C:11-5.1 based on the number of
fatalities involved in the accident. 456 N.J. Super. 1, 11 (App. Div. 2018).
Finally, the State argues that the Appellate Division usurped the role of
the trial court and vitiated the terms of the plea agreement by sua sponte
resentencing defendant to a five-year term of imprisonment because the
remand ordered by the Appellate Division merely directed the trial court to
perform the ministerial act of amending the judgment of conviction to conform
with this sentence. The State argues this limited remand “removed any degree
of deference” to the trial court’s authority to reject or accept the plea bargain
and thereafter determine an appropriate sentence. Thus, if this Court were to
affirm the Appellate Division’s interpretation of N.J.S.A. 2C:11-5.1, the State
11
requests that we remand the case to the trial court to permit the parties to
negotiate a new plea agreement or schedule the case for trial.
B.
Defendant urges this Court to follow the Appellate Division’s reasoning
and hold that a violation of N.J.S.A. 2C:11-5.1 “occurs whenever a driver
leaves the site, regardless of whether that person is at fault with respect to the
accident and regardless of the number of victims involved,” a construction
consistent with “‘the overwhelming weight’ of judicial authority from other
states with ‘very similar’ criminal statutes.”
With respect to the Appellate Division’s denial of the State’s motion for
reconsideration of its decision to resentence defendant sua sponte based on its
construction of the statute, defendant argues any other sentence would have
violated his federal and state guarantees against double jeopardy. Defendant
argues the protection against double jeopardy attached after he began serving
the sentence imposed by the trial court. According to defendant, any increase
in the sentence would constitute a violation of his right against double
jeopardy. Defendant also argues the State’s reliance on Rodriguez, 97 N.J. at
273-74, and other similar cases, is misplaced “because they all involve appeals
after the defendant had exercised his right to trial.” According to defendant,
12
adopting the State’s argument would allow the trial court to resentence him in
a manner not contemplated by the terms of the plea agreement.
C.
Amicus curiae the Attorney General’s participation is limited to the
Appellate Division’s construction of N.J.S.A. 2C:11-5.1. The Attorney
General discusses the history that prompted the passage of this legislation at
length and argues that the Appellate Division’s reasoning undermines the
public policy that favors a victim-centric analytical approach.
The Attorney General acknowledges “[t]he majority of states that have
considered this issue have exclusively focused on the singular act of leaving
the scene of an accident, and not the number of victims involved . . . .” The
courts in those states have thus concluded “charging multiple counts of fleeing
the scene of a fatal accident violates the rule against multiplicity under the
Double Jeopardy Clause.” The Attorney General nevertheless argues the
legislatures in those states used the phrase “any person,” while the New Jersey
Legislature used the term “another person.” The Attorney General views this
phrase to mean that a driver owes a duty to each victim who perishes in the
accident and can thus be charged and punished for multiple violations of the
statute. Finally, the Attorney General joins the State’s position and argues the
Appellate Division misapplied the holding in Hill-White.
13
D.
Amicus curiae ACDL urges this Court to affirm the Appellate Division’s
decision reversing one of defendant’s two convictions of N.J.S.A. 2C:11-5.1,
vacating the five-year term of imprisonment imposed by the trial court on the
second conviction, and amending the remaining count to include the two
teenaged boys who died in the accident. The ACDL argues “the Appellate
Division appropriately held that the State violated the rule against multiplicity
by charging defendant twice with violating N.J.S.A. 2C:11-5.1 for leaving the
scene of a single accident, and properly reversed one of those convictions.”
Finally, the ACDL argues that, when the legislative intent cannot be discerned
from the plain language of the statute or other extrinsic factors, the rule of
lenity requires this Court to construe the statute in a manner most favorable to
defendant.
III.
Motor vehicles have been part of our lives and our culture for more than
a century, permanently altering the way societies function, and they continue
to be as ubiquitous as our cellphones. A motor vehicle operator must be
licensed by the New Jersey Motor Vehicle Commission, N.J.S.A. 39:3-10, and
is required to follow the rules of the road codified by the Legislature under
Title 39. This is so because the misuse of the driving privilege -- e.g., a text
14
message that diverts the driver’s eyes or attention for a few critical seconds, an
inexcusable act of self-indulgence with alcohol or other forms of intoxication,
or a deranged belief that the rules of the road are not applicable to the driver --
can have catastrophic consequences, including indiscriminately taking a
human life.3
Nearly twenty-five years ago, the Legislature adopted N.J.S.A. 2C:11-
5.1 to deter drivers from absconding from the scene of a fatal accident in
defiance of the rules of the road codified under N.J.S.A. 39:4-129. The
number of fatalities involved in the accident is not an element of this second -
degree offense. Specifically, the Legislature enacted N.J.S.A. 2C:11-5.1 to
deter “hit and run” accidents in which one or more people are killed. 4
In a press release dated June 4, 1997, Governor Christine Whitman
characterized “hit and run drivers” involved in these types of accidents as
3
The New Jersey State Police compiles data regarding fatal motor vehicle
crashes and reports the statistics yearly. In 2020, the most critical period of
the COVID-19 pandemic, this authoritative report revealed there were “a total
of 55 hit and run fatal crashes involving 96 vehicles. The victims were
comprised of 8 drivers, 3 passengers, 39 pedestrians and 5 pedal cyclists.”
N.J. State Police Fatal Accident Investigation Unit, Fatal Motor Vehicle Crash
Comparative Data Report for the State of New Jersey 1 (2020),
https://www.nj.gov/njsp/information/pdf/fcr/2020_fatal_crash_report.pdf.
4
At the same time, the Legislature also enacted N.J.S.A. 2C:12-1.1 to address
hit and run accidents in which one or more victims were “seriously injured.”
15
“criminals” and declared the legislation was intended to send a clear message:
“if we find and convict you, you’re looking at jail time and a big time fine.”
Up to that point, leaving the scene of a motor vehicle accident
constituted only a violation of the motor vehicle code under N.J.S.A. 39:4-129.
The Legislature enacted N.J.S.A. 2C:11-5.1 in response to two fatal hit and run
accidents involving pedestrians. As described in Governor Whitman’s press
release, one accident took the life of a sixteen-year-old student-athlete in June
1994. The second accident involved a fifty-year-old man who was killed while
standing roadside in December 1996. See Off. of the Governor, Press Release:
Governor Signs Bill to Criminalize Hit-and-Run (June 4, 1997).
The statute created a third-degree offense for a driver who knowingly
absconded from the scene of an accident resulting in the death of another
person under circumstances that also violated certain requirements codified in
N.J.S.A. 39:4-129, including that “[t]he driver of any vehicle, knowingly
involved in an accident resulting in . . . death to any person” remain at the
accident scene. N.J.S.A. 39:4-129(a). The driver must stay at the scene until
the driver has “give[n] his name and address and exhibit[ed] his operator’s
license and registration certificate of his vehicle to . . . any police officer or
witness of the accident, and to the driver or occupants of the vehicle collided
16
with and render[ed] to a person injured in the accident reasonable assistance .”
N.J.S.A. 39:4-129(c).
Ordinarily, violations of the rules of the road codified under Title 39 are
tried in our municipal courts. Thus, the driver of any vehicle who is convicted
of fleeing the scene of a fatal accident under N.J.S.A. 39:4-129(a) “shall be
fined not less than $2,500 nor more than $5,000, or be imprisoned for a period
of 180 days, or both.” As Governor Whitman made clear in 1997, however,
the Legislature adopted N.J.S.A. 2C:11-5.1 to criminalize the act of fleeing
from the scene of an accident that results in the death of a person. Since then,
the Legislature has twice amended N.J.S.A. 2C:11-5.1 to augment its penal
consequences. Effective June 1, 2003, the Legislature rendered inapplicable
the presumption of non-incarceration for third-degree offenses provided in
N.J.S.A. 2C:44-1(e). In 2007, the Legislature made a violation of N.J.S.A.
2C:11-5.1 a second-degree offense. As a second-degree offense, a conviction
under N.J.S.A. 2C:11-5.1 is punishable by a term of imprisonment “which
shall be fixed by the court and shall be between five years and [ten] years .”
N.J.S.A. 2C:43-6(a)(2).5
5
On January 11, 2022, Bill 490 was introduced in the State Senate to
“upgrade the penalties for knowingly leaving the scene of a motor vehicle
accident resulting in the death of another person” to a first-degree offense. See
S. 490 § 1. Identical bills seeking to amend to N.J.S.A. 2C:11-5.1 to a first-
17
Although the precise issue we address here has not been the central
focus of an opinion from this Court, the Appellate Division has discussed the
need to deter drivers from fleeing the scene of an accident in another setting.
In State v. Fisher, the defendant did not stop after hitting and killing a man
along a rural road, allegedly under the mistaken belief he had hit a deer
carcass. 395 N.J. Super. 533, 537 (App. Div. 2007). The defendant argued the
duty, imposed by N.J.S.A. 39:4-129 and embedded in N.J.S.A. 5C:11-5.1, to
remain at the scene or report his involvement in the accident violated his Fifth
Amendment right against self-incrimination. Id. at 539-40. In response, the
State noted “N.J.S.A. 2C:11-5.1 does not compel drivers to disclose anything.
Rather, it argue[d] the Criminal Code encourages the physical act of remaining
at the scene of the accident and the driver is compelled by the statute to report
the accident only after he or she chooses to leave the scene.” Id. at 540
(emphasis added).
In stressing both “[t]he failure to identify oneself and the failure to
report to the police are critical components of the crime defined in N.J.S.A.
2C:11-5.1,” id. at 540, the Appellate Division explained the underlying focus
in N.J.S.A. 2C:11-5.1 is the driver’s response to the accident, not the number
degree offense were introduced without success during the 2018-2019 and
2020-2021 legislative sessions. See S. 4082 §1 (2019); S. 364 § 1 (2020).
18
of deaths that result therefrom, see id. at 547 (“It may be impractical or
counterproductive to require a driver involved in an accident always to remain
at the scene, and our Legislature has determined that if a driver leaves the
scene, he must still disclose his identity.”).
IV.
Against that backdrop, we consider whether a violation of N.J.S.A.
2C:11-5.1 occurs on a per-accident or a per-victim basis.
A.
Statutory interpretation concerns purely legal questions. This Court
reviews legal questions de novo, without giving deference to the
interpretations of the trial court or the Appellate Division. Skuse v. Pfizer,
Inc., 244 N.J. 30, 46 (2020). The first rule of statutory interpretation is to look
to the plain language of the statute and attribute to its words their ordinary
meaning. State v. Sutherland, 231 N.J. 429, 443-44 (2018). “If in ascribing to
those words their ‘ordinary meaning and significance,’ the Legislators’ intent
is self-evident, we need not search further for guidance.” Ibid. (quoting Simon
v. Cronecker, 189 N.J. 304, 332 (2007)).
In this case, our inquiry focuses on the scope of the offense set forth in
N.J.S.A. 2C:11-5.1. As this Court has acknowledged, “since it is the
legislative branch that defines the unit of prosecution or ‘offense’ and ordains
19
its punishment, we must first determine whether the legislature has in fact
undertaken to create separate offenses.” State v. Cole, 120 N.J. 321, 326
(1990) (quoting State v. Davis, 68 N.J. 69, 77-78 (1975)). Guided by those
principles, we begin our task by reviewing the language used by the
Legislature in N.J.S.A. 2C:11-5.1.
The Legislature used the following language to describe the elements of
the offense it created:
A motor vehicle operator who knows he is involved in
an accident and knowingly leaves the scene of that
accident under circumstances that violate the
provisions of [N.J.S.A.] 39:4-129 shall be guilty of a
crime of the second degree if the accident results in the
death of another person.
If the evidence so warrants, nothing in this section shall
be deemed to preclude an indictment and conviction for
aggravated manslaughter under the provisions of
N.J.S.A. 2C:11-4, reckless vehicular homicide under
the provisions of N.J.S.A. 2C:11-5 or strict liability
vehicular homicide under the provisions of [N.J.S.A.
2C:11-5.3].
Notwithstanding the provisions of N.J.S.A. 2C:1-8 or
any other provisions of law, a conviction arising under
this section shall not merge with a conviction for
aggravated manslaughter . . . reckless vehicular
homicide . . . or strict liability vehicular homicide and
a separate sentence shall be imposed upon each such
conviction.
Notwithstanding the provisions of N.J.S.A. 2C:44-5 or
any other provisions of law, when the court imposes
20
multiple sentences of imprisonment for more than one
offense, those sentences shall run consecutively.
For the purposes of this section, neither knowledge of
the death nor knowledge of the violation are elements
of the offense and it shall not be a defense that the
operator of the motor vehicle was unaware of the death
or of the provisions of [N.J.S.A.] 39:4-129.
[N.J.S.A. 2C:11-5.1 (emphases added).]
Ascribing to the words in the highlighted sections of the statute their
ordinary meaning and significance, this offense can be distilled to the
following four elements: (1) the driver “knows” the driver was “involved in
an accident”; (2) the driver “knowingly” leaves the scene of the accident; (3)
the driver violates the requirements of N.J.S.A. 39:4-129; and (4) the accident
“results” in the death of another person. Nothing in the language of N.J.S.A.
2C:11-5.1 reveals or suggests the Legislature intended to charge a defendant
based on the number of fatalities that result from the accident.
We agree with the Appellate Division’s analysis in Fisher that the
statute’s plain language focuses on the driver’s response. We conclude
N.J.S.A. 2C:11-5.1 applies only to the act of fleeing from the scene of an
accident and the number of fatalities that may result from the accident is not an
element of this offense. Our conclusion is in accordance with decisions made
by the majority of the courts that reviewed similar statutes adopted by our
sister states.
21
As the Appellate Division here noted, most appellate courts in our sister
states have found fleeing-the-scene violations to depend on the occurrence of a
fatal accident rather than on the number of fatalities. The most recent
endorsement of this outcome is ably expressed by the Supreme Court of
Pennsylvania in Commonwealth v. Satterfield, 255 A.3d 438 (Pa. 2021). The
Pennsylvania statute identified as “Accidents involving death or personal
injury” provides, in relevant part:
(a) General rule. -- The driver of any vehicle involved
in an accident resulting in injury or death of any person
shall immediately stop the vehicle at the scene of the
accident or as close thereto as possible but shall then
forthwith return to and in every event shall remain at
the scene of the accident until he has fulfilled the
requirements of section 3744 (relating to duty to give
information and render aid).
[75 Pa. Cons. Stat. § 3742.]
The accident in Satterfield occurred on Interstate 83 North. 255 A.3d at
439. A tractor-trailer was traveling at sixty-seven miles per hour when it
crashed into “multiple vehicles stopped at a construction zone.” Ibid. “As a
result of the crash, three people died and many others were injured.” Ibid.
The defendant-driver fled “to the parking lot of a nearby hotel” in an
attempt to conceal himself among “a crowd of people [who] had gathered to
observe the accident scene.” Ibid. When Pennsylvania police officers
22
canvassing the area “spotted him in the crowd,” the defendant again attempted
to flee by running from the officers. Ibid.
The Satterfield defendant “entered an open guilty plea to various
offenses, including three counts of violating Section 3742,” based on each
person who died in the accident. Ibid. (footnote omitted). The court sentenced
the defendant to an aggregate term of imprisonment of twenty-eight and one-
half to sixty-three years. Id. at 440-41. The case was eventually appealed to
the Supreme Court of Pennsylvania and limited to the following legal issue:
Whether the Superior Court erred when it affirmed the
trial court’s imposition of illegal sentences when the
trial court sentenced [Satterfield] to separate,
consecutive sentences on three counts of accidents
involving death or personal injury where the applicable
statute contemplates a single offense for each accident
regardless of the number of persons injured or killed in
such an accident?
[Id. at 442 (alteration in original) (quoting
Commonwealth v. Satterfield, 240 A.3d 615 (Pa.
2020)).]
Against that backdrop, a unanimous Satterfield Court held, based on “the
language selected by the General Assembly when enacting Section 3742, the
unit of prosecution is the act of leaving the scene of an accident without first
rendering aid and providing the information required by Section 3744 .” Id. at
447. The Court found that “[r]equiring every driver to stop and comply with
the duties set forth in Section 3744 supports the” public policy objectives
23
underpinning “the statute: promoting the satisfaction of civil liability and
ensuring that injured persons will be furnished with any necessary assistance.”
Id. at 448.
In reaching that conclusion, the Pennsylvania Supreme Court noted
“[t]he vast majority of our sister states have likewise construed their similarly
worded hit-and-run statutes to provide that leaving the scene of the crime alone
violates the statute and that separate sentences may not be imposed for each
victim in the accident.” Id. at 449 n.19 (citing State v. Powers, 23 P.3d 668,
671 (Ariz. Ct. App. 2001); People v. Newton, 66 Cal. Rptr. 3d 422, 424 (Cal.
Ct. App. 2007); Brown v. State, 793 S.E.2d 573, 579-80 (Ga. Ct. App. 2016);
People v. Sleboda, 519 N.E.2d 512, 522 (Ill. App. Ct. 1988); Commonwealth
v. Henderson, 47 N.E.3d 25, 30 (Mass. App. Ct. 2016); Firestone v. State, P.3d
279, 282 (Nev. 2004); Tooke v. Commonwealth, 627 S.E.2d 533, 536 (Va. Ct.
App. 2006); State v. Ustimenko, 151 P.3d 256, 260 (Wash. Ct. App. 2007);
State v. Stone, 728 S.E.2d 155, 165 (W. Va. 2012)).6
6
Courts in Wisconsin and Texas have reached a different result. In State v.
Pal, 893 N.W.2d 848, 855-56 (Wis. 2017), the Supreme Court of Wisconsin
held a driver who absconds from the scene of a fatal accident can be charged
with multiple counts of violating the statutory obligation to remain on the
scene and provide, inter alia, his or her name, address, and the registration
number of the vehicle. The Wisconsin Court in Pal relied on a principle of
jurisprudence it first articulated in State v. Rabe, 291 N.W.2d 809, 818 (1980):
24
That interpretation, moreover, accords with the public policy
underpinning N.J.S.A. 2C:11-5.1 -- to deter drivers from absconding from the
scene of an accident that results in the death of another person. As previously
discussed, the Legislature found the sanctions available under N.J.S.A. 39:4-
129 were not sufficient to compel compliance with this critical part of the rules
of the road codified in Title 39. It created a third-degree offense to achieve
what Title 39 could not, and has tightened the sanctions since, reflecting the
continuing importance of deterrence. But the increasingly severe penalties for
flight do not change the focus of the offense from the flight itself to the
number of victims left behind.
The State retains the authority to prosecute those drivers who violate the
rights of the victims involved in an accident if the evidence so warrants. The
Legislature specifically identified the victim-centric offenses that shall not
“[W]here the crime is against persons rather than property, there are, as a
general rule, as many offenses as individuals affected.” 893 N.W.2d at 855.
In Spradling v. State, 773 S.W.2d 553, 555 (Tex. Crim. App. 1989), the
Texas Court of Criminal Appeals held a driver can be held criminally
responsible for two or more persons who are killed in an accident based, in
part, on the driver’s failure to “render to any person injured in such accident
reasonable assistance.” Further, the court found “[t]he Double Jeopardy
Clause has no application to a multiple victim offense when, as here, it is the
legislative intent to aid all victims in a hit-and-run offense and, accordingly, to
enforce this intent through the appropriate punishment for each individual not
so aided.” Id. at 557.
25
merge with a conviction under N.J.S.A. 2C:11-5.1 -- namely, aggravated
manslaughter, reckless vehicular homicide, and strict liability homicide. Each
act of manslaughter and homicide may be prosecuted separately, 7 and a flight
charge may also be imposed, where appropriate, no matter how many counts of
per-victim offenses are charged. But N.J.S.A. 2C:11-5.1 is not itself such a
victim-centric offense.
Ascribing the words in N.J.S.A. 2C:11-5.1 their ordinary meaning and
significance, we conclude the Legislature incorporated the obligations imposed
under Title 39 with the criminal sanctions available under Title 2C to deter
motor vehicle operators from knowingly leaving the scene of an accident that
results in the death of another person. The act of leaving the scene of the
accident under these circumstances is the basis of criminal culpability under
the statute, not the number of fatalities.
7
In this case, for example, the grand jury testimony of a Jersey City Police
Officer who estimated defendant’s car was going approximately twice the
posted speed limit at the time his car struck the boys’ bicycle could have
supported charging defendant with two separate counts of second-degree
reckless vehicular homicide, contrary to N.J.S.A. 2C:11-5(a). See State v.
Stanton, 176 N.J. 75, 85 (2003) (holding “excessive speed” may be considered
to determine whether a defendant was driving recklessly at the time of the
incident). We therefore cannot agree with the State’s claim that defendant was
“rewarded by fleeing the scene and impeding any investigation into the
possibility of [charging him with] vehicular homicide.”
26
Any lingering ambiguities or uncertainties about the Legislature’s intent
when adopting N.J.S.A. 2C:11-5.1 are quickly overcome by the doctrine of
lenity. “[W]hen interpreting a criminal statute, ambiguities that cannot be
resolved by either the statute’s text or extrinsic aids must be resolved in favor
of the defendant.” State v. Gelman, 195 N.J. 475, 482 (2008). As Justice
Marshall explained in United States v. Bass:
This principle is founded on two policies that have long
been part of our tradition. First, “a fair warning should
be given to the world in language that the common
world will understand, of what the law intends to do if
a certain line is passed. To make the warning fair, so
far as possible the line should be clear.” Second,
because of the seriousness of criminal penalties, and
because criminal punishment usually represents the
moral condemnation of the community, legislatures and
not courts should define criminal activity.
[404 U.S. 336, 348 (1971) (citation omitted) (quoting
McBoyle v. United States, 283 U.S. 25, 27 (1931)).]
Guided by these fundamental principles, and predicated on the role the
Legislature has in our tripartite system of government, if the Legislature
intended to hold a defendant responsible based upon the number of victims of
the accident, and not for the singular act of fleeing the scene, then it is
incumbent upon the Legislature to clarify “the contours of criminal activity.”
State in Interest of K.O., 217 N.J. 83, 97 (2014).
27
B.
The State and amicus Attorney General argue the Appellate Division
misapplied the doctrine of multiplicity when it concluded defendant cannot be
charged with separate violations under N.J.S.A. 2C:11-5.1 based on the
number of fatalities involved in the accident. We disagree.
The Double Jeopardy Clause of the Fifth Amendment provides that no
person shall “be subject for the same offense to be twice put in jeopardy of life
or limb.” U.S. Const. amend. V. Our State Constitution provides similar
protection against multiple convictions for the same offense: “No person shall,
after acquittal, be tried for the same offense.” N.J. Const. art. I, ¶ 11. This
Court “has consistently interpreted the State Constitution’s double-jeopardy
protection as coextensive with the guarantee of the federal Constitution.”
State v. Miles, 229 N.J. 83, 92 (2017). The Double Jeopardy Clause provides
criminal defendants three fundamental safeguards: “It protects against a
second prosecution for the same offense after acquittal. It protects against a
second prosecution for the same offense after conviction. And it protects
against multiple punishments for the same offense.” State v. Kelly, 201 N.J.
471, 484 (2010) (emphasis added) (quoting United States v. DiFrancesco, 449
U.S. 117, 129 (1980)).
28
The constitutional protection we emphasize applies here because the
offense committed by defendant is the act of knowingly leaving the scene of
the accident without fulfilling the obligations imposed under N.J.S.A. 39:4-
129. As this Court succinctly stated in Davis, “[i]f an accused has committed
only one offense, he cannot be punished as if for two.” 68 N.J. at 77. “While
multiplicity begins as a charging error, it can obviously result in a defendant
being improperly convicted of multiple crimes, when he or she only committed
one crime.” Hill-White, 456 N.J. Super. at 12; see also Kennedy, 682 F.3d at
255 (“A multiplicitous indictment risks subjecting a defendant to multiple
sentences for the same offense, an obvious violation of the Double Jeopardy
Clause’s protection against cumulative punishment.”).
V.
We now turn to the State’s challenge of the Appellate Division’s sua
sponte decision to vacate the sentence imposed by the trial court.
A.
As part of this appeal, the State also reserved the right to challenge the
Appellate Division’s decision to vacate the sentence imposed by the trial court
in accordance with the plea agreement. After appropriately finding that
defendant could be charged with only one count of fleeing the scene of a
deadly accident, the Appellate Division amended the remaining count to
29
include both victims, imposed a five-year term of imprisonment, and remanded
the case to the Criminal Part judge “for the limited purpose of issuing an
amended judgment of conviction consistent with this opinion.”
The State argues the sua sponte approach adopted by the Appellate
Division under these circumstances is not in accordance with the terms of the
plea agreement negotiated by the parties and approved by the trial judge. The
State relies on this Court’s decision in Rodriguez, a case in which the
defendant was convicted of several heinous crimes, including felony murder
and robbery. 97 N.J. at 266.
In Rodriguez, the trial court imposed “separate custodial sentences on
each of these convictions, which aggregated thirty years with fifteen years of
parole ineligibility.” Id. at 265-66. Similar to what occurred here, the trial
court sentenced the Rodriguez defendant for each underlying conviction. On
appeal, this Court merged two of the convictions “and, in effect, . . . remolded
[them] into a single conviction.” Id. at 273. Of particular relevance here, the
Court concluded:
From [the] defendant’s successful appeal on merger
grounds, it follows that [the] defendant would be
entitled to relief in the form of the vacation of one or
both of the separate sentences; further, [the] defendant
would be subject to resentencing on the resultant
merged conviction because the legal basis for his
original sentences will have been removed or altered.
Consequently, the policy against an aggregate
30
punishment without allocation to separate convictions
on individual counts or charges is not truly at issue
here.
Further, we do not perceive any unfairness to [the]
defendant if he were resentenced in this case to a term
not in excess of that originally imposed.
[Ibid. (emphases added).]
Here, defendant argues the State misapplies this Court’s holding in
Rodriguez because the scope of the instant appeal does not include review of
his sentence, and no part of the Appellate Division’s decision considered the
appropriateness of the sentence. He argues there is “no legal basis to permit
the State to initiate a post-plea, post-sentencing, post-appeal, withdrawal from
a plea agreement merely because it miscalculated the potential outcome of a
defendant’s appeal.”
B.
We agree with the State’s position on this issue. Plea agreements “are
important components of this country’s criminal justice system.”
Bordenkircher v. Hayes, 434 U.S. 357, 361 (1978). Plea negotiations
conducted by competent counsel -- which produce an offer and acceptance
supported by consideration in the form of clearly agreed-upon delineations of
the terms of the sentence recommendations the parties will make to the court --
are consistent with “an acceptable, legitimate, and fair administration of
31
criminal justice.” State v. Pennington, 154 N.J. 344, 362 (1998). This well-
established practice “accommodates the interest of society by helping the
criminal justice system keep pace with the ever-burgeoning caseload. It also
benefits defendants by reducing penal exposure.” Ibid. Finally, “[a] sentence
imposed pursuant to a plea agreement is presumed to be reasonable” because it
is predicated on the defendant’s voluntary, knowing waiver of his
constitutional rights. State v. Fuentes, 217 N.J. 57, 70-71 (2014).
A trial judge, however, is not bound by the terms of a plea agreement
negotiated and agreed to by the parties. As this Court noted in State v. Slater,
“Rule 3:9-2 governs the taking of pleas” and recognizes that
[t]he court, in its discretion, may refuse to accept a plea
of guilty and shall not accept such a plea without first
questioning the defendant personally, under oath or by
affirmation, and determining by inquiry of the
defendant and others, in the court’s discretion, that
there is a factual basis for the plea and that the plea is
made voluntarily, not as a result of any threats or of any
promises or inducements not disclosed on the record,
and with an understanding of the nature of the charge
and the consequences of the plea.
[198 N.J. 145, 155 (2009) (emphasis added) (quoting
R. 3:9-2).]
At the plea hearing conducted before the trial judge on August 10, 2018,
the prosecutor placed on the record the relevant terms of the plea agreement
negotiated by the parties:
32
It’s the State’s understanding . . . defendant, Rashaun
Bell, will retract his previously entered plea of not
guilty and enter a plea of guilt[y] to Counts One and
Two, each charging him with second degree leaving the
scene of an accident causing death . . . .
....
In return for his plea of guilt[y] . . . the State will be
asking for five years flat [8] on each count of leaving the
scene of a fatal accident to be served consecutive for a
total of ten flat . . . .
The trial judge addressed defendant directly and confirmed he assented
to the terms of the plea agreement as described by the prosecutor, had
sufficient time to consult with his attorney, and knowingly and voluntarily
agreed to waive his constitutional right to a jury trial. The judge also made
clear he was not bound to accept the plea agreement:
THE COURT: Do you also understand that I’m not
bound by the plea agreement? [I]f [I] see the Pre-
Sentence Report[,] I have the right to reject the plea
agreement, and then you can take back what you said
today. Nothing can be used against [you] and you can
go to trial on the original charges. Do you understand
that?
DEFENDANT: Yes.
8
A “flat term” is a colloquialism used by attorneys to denote the sentence
negotiated in the plea agreement will not include a period of parole
ineligibility.
33
At the sentencing hearing held on October 26, 2018, members of the
victims’ families addressed the court, including Alexander’s mother and
Elionel’s cousin. After considering the arguments of counsel and defendant’s
statement, the judge found aggravating factors three, the risk defendant will
commit another offense; six, the extent of defendant’s prior criminal record
and the seriousness of the offenses defendant has been convicted; and nine, the
need for deterring defendant and others from violating the law. ---
See N.J.S.A.
2C:44-1(a)(3), (6), (9). The judge made the following comments with respect
to the terms of the plea agreement:
This was a plea agreement which called for the
defendant on Count One, knowingly leaving the scene
of a motor vehicle accident, to be sentenced to a term
of five years flat, as well as the same on Count Two.
....
The defense has asked the [c]ourt to consider mitigating
factors . . . in this case and, again, . . . the [c]ourt finds
that [this] is not appropriate under these circumstances.
....
The [c]ourt finds no mitigating factors in any of these
offenses.
Despite not finding any mitigating factors, the judge ultimately adhered
to the terms of the plea agreement and sentenced defendant to two five-year
terms of imprisonment to be served consecutively. Based on this record, it is
34
clear the judge was significantly influenced by the terms of the plea
agreement, which were predicated on a misapplication of N.J.S.A. 2C:11-5.1.
The Rodriguez Court’s conclusion applies with equal force in this case.
On appeal, defendant successfully challenged the substantive basis supporting
two convictions for the same offense. The Appellate Division agreed and
vacated one of the two convictions under N.J.S.A. 2C:11-5.1. Under these
circumstances, the appellate court should have remanded the matter to the trial
court to allow defendant to negotiate a new plea agreement with the State that
the sentencing court finds acceptable. R. 3:9-2. Alternatively, defendant
could have withdrawn his guilty plea and stood for trial.
If we were to uphold the approach adopted here by the Appellate
Division, the penal outcome would be wholly unrelated to the legitimate
factors trial courts are required to follow in dispensing appropriate criminal
punishment. As Justice Handler noted in Rodriguez, “[t]he courts’ sentencing
responsibility under the New Jersey Code of Criminal Justice has been
prescribed with painstaking care by the Legislature and should not be
exercised so as to countenance anomalous results.” 97 N.J. at 276 (citing State
v. Roth, 95 N.J. 334, 358 (1984)). Accordingly, “the exercise of appellate
original jurisdiction over sentencing should not occur regularly or routinely; in
the face of deficient sentences, a remand to the trial court for resentencing is
35
strongly to be preferred.” Jarbath, 114 N.J. at 411. This case presents no
compelling grounds for departure from that general principle.
VI.
To summarize, we affirm the part of the Appellate Division’s decision
that correctly construed N.J.S.A. 2C:11-5.1 to apply only to the act of fleeing
from the scene of a fatal accident. The number of fatalities resulting from the
accident is not an element of this offense.
We reverse, however, the Appellate Division’s decision to vacate one of
defendant’s convictions and sua sponte resentence him to a five-year term of
imprisonment. That approach materially altered the terms of the plea
agreement negotiated by the parties, and accepted by the trial judge, and is
untethered to the sentencing guidelines codified in Title 2C.
The Appellate Division’s judgment is affirmed in part and reversed in
part.
CHIEF JUSTICE RABNER and JUSTICES ALBIN, PATTERSON,
SOLOMON, and PIERRE-LOUIS join in JUDGE FUENTES’s opinion.
36