In Vehicular Homicide Case, Decedent’s Conduct, Which Cannot be Raised as a Defense, Must be Considered as a Mitigating Factor in Sentencing

State v. Pascucci, 463 N.J. Super. 203 (App. Div. 2020). The strict liability vehicular homicide statute, N.J.S.A. 2C:11-5.3d, provides that “[i]t shall not be a defense to a prosecution under this section that the decedent contributed to his own death by reckless or negligent conduct or operation or a motor vehicle or vessel.” Today’s case, however, involved the sentencing context, after defendant pled guilty to strict liability vehicular homicide.

An eyewitness had said that the decedent “casually took a few steps … and [then] started sprinting” across a busy road when she “didn’t have the right of way.” Defendant contended that the decedent’s conduct should factor into sentencing, since mitigating factor five, N.J.S.A. 2C;44-1b(5), allows consideration of whether the victim’s conduct induced or facilitated the crime. The Law Division declined to consider mitigating factor five, based on N.J.S.A. 2C:11-5.3d.

Defendant appealed. In an opinion today by Judge Fuentes, the Appellate Division reversed. The panel held that “[a] plain reading of N.J.S.A. 2C:11-5.3d shows the Legislature intended to preclude a defendant from presenting evidence of the victim’s conduct as an affirmative defense in the prosecution of this offense.” But the Law Division mistakenly viewed that provision as barring consideration of mitigating factor five, which arises at sentencing, not in the “prosecution” of the case.

That legal error “deprived defendant of a qualitative assessment of all the relevant mitigating factors.” Thus, Judge Fuentes held, “the only viable option” was to remand the case for resentencing. He directed that the Law Division consider the eyewitness statement, “thereafter reconsider the entire record,” and state reasons for the sentence imposed, including the factual basis for finding any aggravating or mitigating factors.