(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued May 1, 2001 -- Decided August 9, 2001
PER CURIAM.
On August 2, 1998, Barry Wade was involved in a fatal automobile accident on State Highway 47 in Dennis
Township (Cape May County). The accident occurred when Wade swerved his automobile into oncoming
northbound traffic, allegedly to avoid hitting an animal who ran across the road. Wade's car hit the vehicle of Joel
Wyatt head-on. Mr. Wyatt died of the injuries he sustained.
Wade had a blood alcohol concentration level of 0.131%.
In addition to being the subject of a municipal court complaint for driving while under the influence of
alcohol and causing a fatality, Wade was indicted on January 26, 1999, for second-degree vehicular homicide. On
July 8, 1999, Wade pled guilty to the charges against him. The Prosecutor sought application of the No Early
Release Act (NERA), but the trial court held that the Act did not apply. Wade received a five-year prison term with
a three-year parole ineligibility provision. Restitution for the victim's medical expenses, penalties, and fines were
also imposed as a part of the DWI conviction. The trial court also refused to merge the DWI conviction into the
vehicular homicide conviction.
The State appealed Wade's sentence to the Appellate Division. Wade cross-appealed. On June 14, 2000,
the Appellate Division summarily affirmed the trial court on the State's appeal and dismissed Wade's cross-appeal.
Both sides successfully petitioned the Supreme Court for certification.
HELD: NERA applies to second-degree vehicular homicide. Although the DWI charge merges into the vehicular
homicide conviction, the statutory penalties for drunk driving remain applicable.
1. The Court holds, substantially for the reasons expressed by the Appellate Division in State v. Ferencsik,
326 N.J.Super. 228 (1999), that NERA applies to second-degree vehicular homicide. (A copy of Ferencsik is attached to
the hard copies of this opinion.) (p. 2)
2. The DWI penalties survive the merger of that offense into the conviction for vehicular homicide. In so holding,
the Court relies on rationale expressed by the Appellate Division in State v. Baumann, ___ N.J.Super. ___ (decided
April 12, 2001). (A copy of Baumann is attached to the hard copies of this opinion.)(p. 2)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED to the trial court for resentencing and the entry of an amended judgment of
conviction.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA, and
ZAZZALI join in the Court's opinion. JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-47/
48 September Term 2000
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
BARRY D. WADE,
Defendant-Respondent
and Cross-Appellant.
Argued May 1, 2001 -- Decided August 9, 2001
On certification to the Superior Court,
Appellate Division.
Robert W. Johnson, Acting Assistant
Prosecutor, argued the cause for appellant
and cross-respondent (David E. Blaker,
Acting Cape May County Prosecutor,
attorney).
Daniel V. Gautieri, Assistant Deputy Public
Defender, argued the cause for respondent
and cross-appellant (Peter A. Garcia, Acting
Public Defender, attorney).
Analisa Sama Holmes, Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (John J.
Farmer, Jr., Attorney General, attorney).
PER CURIAM
Defendant pled guilty to second-degree vehicular homicide,
N.J.S.A. 2C:11-5, and to operating a vehicle while under the
influence of alcohol (DWI), N.J.S.A. 39:4-50(a). The sentencing
court held that the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2, did not apply to vehicular homicide. The court also
declined to merge the vehicular homicide conviction with the DWI
conviction, concluding that defendant's reckless conduct in
causing the death of the victim was conduct separate and
independent from the DWI offense. In an unreported order, the
Appellate Division affirmed the judgment of conviction.
We hold that vehicular homicide is subject to NERA,
substantially for the reasons expressed by the Appellate Division
in State v. Ferenscik,
326 N.J. Super. 228 (App. Div. 1999). We
further hold that under the facts of this case, the sentencing
court should have merged defendant's DWI conviction with his
vehicular homicide conviction. The merger, however, carries with
it the statutory penalties for drunk driving. We adopt that
position substantially for the reasons expressed by the Appellate
Division in State v. Baumann, __ N.J. Super. __, __ (decided
April 12, 2001)(slip op. at 4). The judgment of the Appellate
Division therefore is affirmed in part and reversed in part, and
we remand the matter to the trial court for re-sentencing and
amendment of the judgment of conviction.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, LONG, LaVECCHIA, and ZAZZALI join in the Court's opinion. JUSTICE VERNIERO did not participate.
NO. A-47/48 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant
and Cross-Respondent,
v.
BARRY D. WADE,
Defendant-Respondent
and Cross-Appellant.
DECIDED August 9, 2001
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY