Factor was appropriately considered where defendant
beat victim “nearly senseless and broke one of his teeth.”
State v. McBride, 211 N.J. Super. 699, 704 (App. Div.
1986).
In State v. Taylor, 226 N.J. Super. 441 (App. Div.
1988), the Appellate Division found that in certain
circumstances the age of the victim and the seriousness of
the harm may be considered as aggravating factors, despite
the fact that the victim’s age is an element of the offense.
Trial court erred in finding age of victim was
aggravating factor since it was an element of the offense.
Nevertheless, sentence could be sustained because court
did not impose sentence greater than presumptive. State v.
C.H., 264 N.J. Super. 112, 140 (App. Div.), certif. denied
134 N.J. 479 (1993).
Aggravating factor N.J.S.A. 2C:44-1a(2) which refers
to the vulnerability of the victim is not limited to the
intrinsic condition of the victim, i.e., age or physical
disability, but includes any other reason that renders the
victim substantially incapable of exercising normal
physical or mental power of resistance. State v. O’Donnell,
117 N.J. 210, 218-19 (1989).
When a victim is so restrained as to make physical
resistance virtually impossible, he or she has been rendered
vulnerable with the meaning of N.J.S.A. 2C:44-1a(2).
O’Donnell, 117 N.J. at 218-219.
In State v. Mara, 253 N.J. Super. 204 (App. Div.
1992), the court found that it was not double counting to
consider the injuries inflicted as aggravating factor in
aggravated assault/death by auto prosecution, notwith-
standing that the victim’s injury was element of offense,
because there were several life threatening injuries.
The recklessness of defendant’s actions and the
victim’s death, could not be considered as aggravating
factors because they were elements of the offense of reckless
manslaughter. State v. Reed, 211 N.J. Super. at 188. See,
e.g., State v, Link, 197 N.J. Super. at 620; State v. Bogus, 223
N.J. Super. 409, 433-434 (App. Div. 1988), certif. denied
111 N.J. 567 (1988).
Emotional trauma to the victim’s family caused by his
death is not an aggravating factor. Wording of the statute
indicates that Legislature intended this aggravating factor
to relate to harm to the victim of the offense, not to the
victim’s relatives. State v. Radziwil, 235 N.J. Super. 557,
575 (App. Div. 1989), aff’d o.b. 121 N.J. 527 (1990).
In death by auto case, trial court properly considered
the number of deaths that had occurred as an aggravating
factor. State v. Travers, 229 N.J. Super. 144, 154 (App. Div.
1988)- Risk of Another Offense - N.J.S.A. 2C:44-1a(3)
Finding of trial court that there was a risk of another
offense was justified because alcohol was the cause of the
death by auto/aggravated assault offenses and defendant
did not acknowledge that he had an alcohol problem. State
v. Mara, 253 N.J. Super. 204 (App. Div. 1992); State v.
Travers, 229 N.J. Super. at 154.Finding of trial court that defendant, a former police
officer, was likely to commit another offense was supported
by evidence that defendant lacked remorse and also took
pride in the beating and verbal abuse he inflicted on
arrestee. State v. O’Donnell, 117 N.J. at 216. The fact that
defendant was no longer on the police force, did not
preclude the trial court from finding that he might commit
another assault. Id. at 216-17.A substantial risk of future recidivism is evidenced by
defendant’s lengthy history of criminal activity. State v.
Gallagher, 286 N.J.Super. 1, 21 (App. Div. 1995).While defendant’s six prior DWI convictions do not
constitute prior offenses, they can be considered in
determining whether there is a risk that defendant will
commit another offense. State v. Radziwil, 235 N.J. Super.
at 575,n.3.While defendant had no prior adult convictions, his
arrest for another crime while on bail, plus juvenile
adjudications, supported finding that there was risk of
another offense. State v. McBride, 211 N.J. Super. at 704-
705.- Involvement in Organized Criminal Activity -
N.J.S.A. 2C:44-1a(5)
In State v. Merlino, 208 N.J. Super. 247 (Law Div.
1984), the State was permitted to introduce evidence at
sentencing that there was a substantial likelihood that
defendant was involved in organized criminal activity,
notwithstanding that the offenses for which he was
convicted were not related to such activity. State’s
presentation not restricted by rules of evidence. See State v.
Rosenberger, 207 N.J. Super. 350 (Law Div. 1985)
(discussion of sentencing factors with respect to white
collar crime).