motion to vacate the defendant’s DWI conviction. On
retrial, the jury acquitted the defendant of aggravated
manslaughter but convicted him of death by auto. Based
on the proofs presented at trial, the court again convicted
the defendant of DWI. The defendant argued on appeal
that his conviction for DWI in the first trial barred his
subsequent prosecution for aggravated manslaughter and
death by auto. Because the retrial was a continuation of
the first trial, which was incomplete because the jury was
unable to reach a verdict on those two charges, jeopardy
never terminated in the first trial. Therefore, the DWI
conviction in the first trial could not prevent the State
from retrying the defendant on all of the charges against
him. Moreover, the offenses of DWI and death by auto
differ under the statutory elements analysis and, because
defendant’s intoxication was only one element of the
evidence the State used to establish his recklessness on the
charge of death by auto, under the “same evidence” test.
Thus, there could be no double jeopardy bar to
defendant’s retrial on the charge of death by auto. State
v. Devlin, 234 N.J. Super. 545 (App. Div.), certif. denied,
117 N.J. 653 (1989).
When defendant’s trial on his indictment for death
by auto and on motor vehicle violations was pending, his
guilty plea to the motor vehicle violations in municipal
court did not bar his subsequent prosecution for death by
auto on grounds of double jeopardy, where it was clear
that by pleading guilty to the motor vehicle violations,
the defendant offered to resolve only some of the charges
against him. State v. Loyle, 208 N.J. Super. 334 (App.
Div. 1986).
V. SENTENCES
A. Murder (N.J.S.A. 2C:11-3b)
Upon conviction for murder, if a defendant is not
sentenced to death, he shall be sentenced to between 30
years and life imprisonment, of which 30 years shall be
without eligibility for parole. N.J.S.A. 2C:11-3b(1).
If the victim was a law enforcement officer and was
murdered while performing his official duties or because
of his status as a law enforcement officer, and the
defendant is not sentenced to death, he shall be sentenced
to life imprisonment without parole. N.J.S.A. 2C:11-
3b(2).
If the victim was less than 14 years old and was
murdered in the course of the commission, whether the
defendant was alone or with others, of aggravated sexual
assault, sexual assault, aggravated criminal sexual contact,
or criminal sexual contact, and the defendant is not
sentenced to death, he shall be sentenced to life
imprisonment without parole. N.J.S.A. 2C:11-3b(3).Where a defendant is convicted of purposeful or
knowing murder, a felony conviction does not merge
with the murder conviction. State v. Arriagas, 198 N.J.
Super. 575, 581 (App. Div. 1985), aff’d, State v. Crisantos
(Arriagas), 102 N.J. 265 (1986). Where a defendant is
convicted of both purposeful or knowing murder and
felony murder, the felony murder conviction merges with
the conviction for knowing or purposeful murder and the
conviction for the underlying felony survives for purposes
of sentencing. State v. Brown, 138 N.J. 481, 560-61
(1994). When a jury convicts a defendant of felony
murder, but not purposeful or knowing murder, the
conviction for the underlying felony merges with the
felony murder conviction. State v. Rodriguez, 97 N.J. 263
(1984). Where, however, a defendant is convicted of
more than one felony in addition to felony murder, the
felony conviction which is the basis for the felony murder
merges with the felony murder conviction and the other
felony convictions survive for purposes of sentencing.
State v. Manning, 234 N.J. Super. 147, 164 (App. Div.),
certif. denied, 117 N.J. 657 (1989).B. Manslaughter (N.J.S.A. 2C:11-4c)Aggravated manslaughter is a first degree crime, but
upon conviction a defendant shall be sentenced to a term
of imprisonment between 10 and 30 years.Manslaughter, including passion/provocation man-
slaughter, is a second degree crime and upon conviction
a defendant shall be sentence to a term of imprisonment
between 5 and 10 years, unless the conviction is for
manslaughter while eluding, N.J.S.A. 2C:11-4b(3), in
which case the defendant shall be sentenced to a term of
imprisonment between 5 and 15 years.C. Vehicular Homicide (N.J.S.A. 2C:11-5)Vehicular homicide is a first degree crime if the
defendant was driving while intoxicated or refused a
breathalyzer test and the offense was committed within
1,000 feet of school property or driving through a school
crossing. N.J.S.A. 2C:11-5b(1). Otherwise, it is a
second degree crime.When vehicular homicide is a second degree crime, if
the defendant was driving while intoxicated, or while his
license was suspended or revoked for DWI or for refusing
a breathalyzer test or for reckless driving, the court must