Opinion
DOCKET NO. A-4184-11T2
07-30-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSHUA D. GRAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sapp-Peterson, Lihotz and Hoffman. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-04-0679. Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Joshua D. Gray appeals from his March 2, 2012 conviction by a jury for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) and the sentence imposed by the court. On appeal, defendant presents these issues for our review:
POINT I
DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT ENGAGED IN A "PROHIBITED PRACTICE" THAT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS TO A FAIR TRIAL AND TO AN UNBIASED JURY (NOT RAISED BELOW).
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHT TO COMPULSORY PROCESS IN PRECLUDING THE DEFENDANT FROM CALLING A WITNESS TO TESTIFY THAT HE HAD AN ALTERCATION WITH J.D.R. BECAUSE THE TESTIMONY WAS RELEVANT TO ESTABLISHING A REASONABLE DOUBT AS TO GUILT, AND BECAUSE THE TESTIMONY WAS ADMISSIBLE AS DEFENSIVE OTHER BAD ACTS EVIDENCE UNDER N.J.R.E. 404(B).
POINT III
THE DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S JURY CHARGE WAS INADEQUATE (NOT RAISED BELOW).
(A)
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE DEFENSE OF MISTAKE OF FACT PURSUANT TO N.J.S.A. 2C:2-4 (NOT RAISED BELOW).
(B)
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE MENTAL STATE OF "NEGLIGENTLY" PURSUANT TO N.J.S.A. 2C:2-2(B)(4) (NOT RAISED BELOW).
(C)
THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO INSTRUCT THE JURY SUA SPONTE ON "CAUSATION" PURSUANT TO N.J.S.A. 2C:2-3 (NOT RAISED BELOW).
POINT IV
THE ABSENCE FROM THE TRIAL COURT'S CHARGE OF ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).
POINT V
THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY ARGUMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW).
POINT VI
THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW).
POINT VII
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION TO BE SENTENCED TO A DOWNGRADED TERM FOR A CRIME OF THE THIRD DEGREE.
Following our consideration of the arguments presented, in light of the record and applicable law, we affirm.
I.
On September 11, 2010, defendant, his friends, Kevin Schaefer, Ryan Leonard, William Brooks, and other acquaintances, went to the Headliner Nightclub (Headliner) in Neptune to celebrate the birthday of Brooks' girlfriend, Alicia DeSantis. The club closed at 2 a.m., and thereafter, defendant's friends congregated by the club's front entrance, smoking cigarettes.
J.D.R. and his friends Ivair de la Cunha and Andre DeSilva were also at the Headliner that evening and gathered in front of the club as it closed. J.D.R. was very drunk and stumbling. He bumped into defendant's group of friends, and a verbal altercation erupted between Schaefer and J.D.R. and DeSilva.
The indictment identified the victim using initials. We continue that practice.
Headliner security guard Christopher Dayke testified the group was separated and he directed J.D.R. and his friends to leave the area. While Dayke stated he watched them drive off, Cunha and DeSilva testified they did not leave.
Defendant was not present during the verbal altercation; he joined his friends after "[t]hings basically had cooled down" and "the argument [had] stopped." Defendant walked toward J.D.R. and his friends, as they walked from the club to their car. Schaefer and Brooks watched defendant approach J.D.R. and stand "chest to chest" with him. J.D.R. was "really short" and "skinny," weighing approximately 130 pounds; he was much smaller than defendant.
Defendant pushed J.D.R. twice, once from behind and once in the chest. The second push caused J.D.R. to fall to the pavement and "slam his head on the ground." DeSilva went to his friend's aid and noted he was unconscious with blood seeping from his ear. Dayke called 9-1-1. J.D.R. was transported to Jersey Shore University Medical Center.
As a result of the altercation, J.D.R. suffered a severe, life threatening head injury, which resulted in permanent problems. His injuries included a skull fracture, cerebral contusions, a lower spine fracture or broken back and he was in a coma for several days. J.D.R. underwent four surgeries, including a ventriculostomy and then a craniotomy, which removed a portion of his skull, to ease the swelling of the brain, after which he wore a helmet for six months to protect his healing skull and brain. Ultimately, J.D.R. had skull reconstructive surgery.
Following the altercation, defendant ran to his Dodge Charger and drove away. Meanwhile, Schaefer and Leonard went to a friend's house. Approximately an hour after leaving the Headliner, defendant called Leonard, and asked, "what are we going to do about it?" Leonard understood this comment to suggest defendant acted in self-defense. However, Leonard had not witnessed the incident and testified he told defendant "I can't really help you. I don't know, I don't know, I wasn't there to see it."
Defendant asked to speak to Schaefer, and told him "people were claiming that you [Schaefer] did it. . . . We had to come up with a story." Schaefer testified defendant "stated to me that if anything were to happen that he would step up and take the blame for what he did."
The Neptune Township Police Department commenced an investigation. Detective Jeremiah Clarke attempted to interview DeSilva and Cunha, however, they spoke little English as Portuguese was their native language. Detective Clarke rescheduled the interviews with DeSilva and Cunha for October 1, 2010, when a Portuguese-speaking officer would be present.
On October 1, 2010, Tom Sueta, one of the Headliner's owners, provided Detective Clarke with the club's security surveillance tape recorded from the evening of the incident. However, the surveillance tape did not capture the incident.
DeSilva and Cunha were interviewed separately at the Long Branch Police Department. Detective Clarke showed each witness the surveillance video and still photographs taken from the video footage of defendant, Schaefer and J.D.R. Detective Clarke asked DeSilva and Cunha if either could identify the person in the photograph. When questioning each witness, Detective Verdadeiro acted as a translator. Detective Clarke asked the questions in English, Detective Verdadeiro translated the questions to Portuguese, DeSilva responded in Portuguese and Detective Verdadeiro translated the responses to English. A Long Branch Police Department secretary, who was present, recorded the information and typed the witnesses' statements. Both DeSilva and Cunha chose defendant's photograph as the man who pushed J.D.R., and Schaefer's photograph as someone who was present during the attack. Sueta later identified defendant, Brooks and Schaefer, who were regulars at the Headliner.
Defendant was charged with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). His motion to exclude the out-of-court identifications was denied.
During trial, the State called several witnesses including Schaefer, Leonard, Brooks, Cunha, DeSilva, Dayke and J.D.R. Schaefer, Cunha and Brooks identified defendant as the man who pushed J.D.R. DeSilva could not identify defendant, stating J.D.R.'s assailant had long hair, and at trial defendant had short hair.
The jury convicted defendant. The trial judge sentenced defendant to a five-year term of imprisonment, subject to the 85% period of parole ineligibility, required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with a three-year period of parole supervision upon release. Applicable fines and penalties were also imposed. This appeal ensued.
II.
A.
Defendant argues the trial judge erred in failing to ensure the courtroom's audio system functioned properly. Because the recording glitches were known, counsel, who were present at each sidebar conference, recreated the discussion prior to closing arguments. However, following the summations, five instances of malfunction are noted when a sidebar conference was not fully recorded, including what defendant characterizes as "an ex parte unrecorded sidebar conference" with the jury foreperson, who advised some jurors were struggling with some difficult terminology. Defendant argues the recording malfunction constitutes a prohibited practice and violated his right to a fair trial. We reject this contention as unfounded.
"Ex parte communications between a trial judge and a jury are improper and must be avoided." State v. Morgan, 217 N.J. 1, 11 (2013). "There is no place for them in the trial process. The court rules make clear that '[a]ll trials . . . shall be conducted in open court unless otherwise provided by rule or statute.'" Ibid. (alteration in original) (quoting R. 1:2-1). Further, an ex parte communication will be presumed to be prejudicial and constitute reversal when the record fails to disclose the nature of the communication and whether it was prejudicial. Ibid. (citing Guzzi v. Jersey Cent. Power & Light Co., 36 N.J. Super. 255, 264 (App. Div.), certif. denied, 19 N.J. 339 (1955) ).
However, counsel participated in all sidebar conferences, including the one conducted with the jury foreperson. Therefore, none were ex parte.
We also note a review of the record clearly discloses what occurred during the gaps. This colloquy followed the sidebar with the foreperson:
THE COURT: Okay, . . . you have one question, and then I'd ask you to define that, but you gave me the second one, you gave me a different question. So you still have a question. And you don't know how to articulate it on paper.
JUROR: Right, I mean, I think it's easier to discuss it or to put this in layman's terms.
THE COURT: The problem is, we don't want to really interfere with the integrity of the process. We don't want anybody to interpret that I am engaging in the deliberative process with you. And that's the problem with having discussions like that. That's why really we're really required to have you write down the question and answer it.
Defendant raised no challenge before, during, or after this sidebar conference. Consequently, our review of defendant's contentions of error is governed by the plain error standard, which provides "we will not reverse unless the error was 'clearly capable of producing an unjust result.'" State v. O'Carroll, 385 N.J. Super. 211, 224 (App. Div.) (quoting R. 2:10-2), certif. denied, 188 N.J. 489 (2006); State v. Jenkins, 178 N.J. 347, 361 (2004). Not any possibility of an unjust result is sufficient. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
We reject the notion that the recording malfunctions alone result in reversible error. See State v. Paduani, 307 N.J. Super. 134, 142 (App. Div. 1998) ("[O]ur Supreme Court concluded in State v. Perry, 124 N.J. 128 (1991), that a 'gap' in a trial record neither automatically results in a defective trial record nor automatically prejudices a defendant's chance for appellate review."). Defendant identifies nothing that occurred during sidebar, or the record gaps which impacted jury deliberations or their result. He offers no facts stating how he believes his rights were prejudiced. Moreover, a review of the entire record reflects the nature of the juror's inquiry, as well as the manner the judge handled, both of which were appropriate.
Following our review, we conclude the equipment failure did not interfere with the fairness of defendant's trial. "[A] defendant is entitled to a fair trial not a perfect one, for there are no perfect trials." Brown v. United States, 411 U.S. 223, 231-32, 93 S. Ct. 1565, 1570, 36 L. Ed. 2d 208, 215 (1973) (citation and internal quotation marks omitted).
B.
Defendant next argues he was prejudiced because the judge precluded his presentation of evidence that "J.D.R. was not the innocent[,] incapacitated drunk who was the victim of a criminal assault . . . by defendant." The argument is directed to the trial judge's exclusion of a previously undisclosed defense witness, presented on the fourth day of trial, and who sat in the courtroom the day before. The defense asserted the witness would relate his altercation with J.D.R.'s inside the Headliner on the night of the incident. Defendant proffered the evidence sought to show J.D.R., exhibited "aggressive and confrontational conduct" and was "at a level of intoxication where he was belligerent[,]" before his altercation with defendant.
The State's brief identifies the witness as "Mr. Skinner." The record contains no additional identifying information.
--------
The judge denied the request, determining the evidence was not relevant and that J.D.R. argued with someone does not show his blood alcohol level caused him to be belligerent. Also, the State's case did not argue J.D.R. was not that drunk and was not belligerent, so the defense's claim the evidence was necessary to rebut the State's proofs was also rejected. Finally, the judge found the "extremely late" presentation unfairly prejudiced the State, which would need time to investigate and possibly call its own witnesses. And, the witness sat in the courtroom for the entire day listening to the bulk of the State's case.
On appeal, defendant maintains the denial of this and the evidence reflects a misapplication of discretion entitling him to a new trial. We are not persuaded.
A defendant's evidential use of another's bad acts is permitted when it tends to "negate his guilt of the crime charged. . . ." State v. Williams, 214 N.J. Super. 12, 20 (App. Div. 1986) (citations omitted). See also State v. Jenewicz, 193 N.J. 440, 457 (2008) (stating a defendant may adduce "evidence of the victim's violent character" to demonstrate "the victim's propensity for violence which tends to support an inference that the victim was the initial aggressor"). The evidence must be relevant, N.J.R.E. 401, and probative, that is, it tends to prove a fact in issue. N.J.R.E. 403.
A trial court's analysis of relevance requires examining "'the logical connection between the proffered evidence and a fact in issue.'" State v. Williams, 190 N.J. 114, 123 (2007) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (internal quotation marks omitted)). The trial court exercises discretion in determining "[t]he necessity for, or propriety of, the admission of expert testimony, and the competence of such testimony[.]" State v. Zola, 112 N.J. 384, 414 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Further, in our review of a trial court's evidential rulings, we are "limited to examining the decision for abuse of discretion[.]" State v. Gore, 205 N.J. 363, 382-83 (2011) (citation and internal quotation marks omitted). We reverse only when it can be shown there has been a "clear error in judgment" or a ruling "so wide of the mark that a manifest denial of justice resulted." State v. Feaster, 156 N.J. 1, 82 (1998) (citations and internal quotations omitted).
In this matter, the judge correctly determined that the witnesses' testimonies may show defendant was drunk, but ample evidence of that fact had been admitted by the State. It was undisputed J.D.R. was "very drunk" and that he fell into defendant's friends.
Defendant further proffered the testimony proved the level of J.D.R.'s intoxication caused belligerence and established reasonable doubt as it implied he was the aggressor. The judge properly rejected this suggestion. Contrary to defendant's contention, even if J.D.R. had an exchange with another club patron it would not tend to prove he was a belligerent aggressive drunk.
Nor is the evidence admissible to support defendant's claim of self-defense. This results because he had no prior knowledge J.D.R. was belligerent or aggressive, which was necessary to support his use of force. Jenewicz, supra, 193 N.J. 462-63. See also State v. Gartland, 149 N.J. 456, 473 (1997) ("Our courts have always admitted evidence of a victim's violent character as relevant to a claim of self-defense so long as the defendant had knowledge of the dangerous and violent character of the victim.").
C.
Defendant challenges the sufficiency of the jury charge. Specifically, he attacks the state of mind element of the offense, arguing the judge, sua sponte, should have charged (1) mistake of fact, N.J.S.A. 2C:2-4; (2) negligent state of mind, N.J.S.A. 2C:2-2(B)(4); and (3) causation N.J.S.A. 2C:2-3. We find these claims lack sufficient merit to warrant and extended discussion in our opinion. R. 2:11-3(e)(2).
"[A] trial court's duty to charge the jury on its own motion is one that is not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." State v. Rivera, 205 N.J. 472, 489 (2011) (footnote omitted) (citing State v. Choice, 98 N.J. 295, 299 (1985)). Here, there is no evidence of a "subjective misperception" of the facts. Defendant, who did not witness the verbal altercation between J.D.R. and Schaefer, had no basis to believe he or his friends were at risk of harm at the hands of J.D.R., who was walking away. Further, there was no evidence supporting a claim that the second push, which permanently harmed defendant, was justified or negligent. Absent a rational factual basis clearly indicating the basis of the charge, a judge has no obligation to issue charges unrequested by a defendant. Cf. State v. Jenkins, 178 N.J. 327, 361 (2004) (holding a trial judge "has an independent obligation" to instruct the jury on lesser-included offenses when the evidence "clearly indicate[s] that a jury could convict on the lesser while acquitting on the greater offense") (citation omitted)).
D.
Defendant next urges us to find that the trial court committed plain error by failing to give a Kociolek charge. State v. Kociolek, 23 N.J. 400 (1957). The Kociolek charge pertains to the reliability of an inculpatory statement made by a defendant to any witness. Id. at 421-23. As explained in Kociolek, the jury should be instructed to "'receive, weigh and consider such evidence with caution,' in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Id. at 421. According to defendant, the failure to give the charge was plain error because the jury had inadequate guidance on how to assess defendant's alleged statements to his friends about their unified story of what happened at the Headliner, his statements made to J.D.R. that night as repeated by Dayke, and his remark to DeSilva after DeSilva stated he was calling the police.
We are not persuaded by defendant's argument. Although the Court has directed the Kociolek charge to be given whether or not specifically requested, it has determined the failure to give such charge is not reversible per se. State v. Jordan, 147 N.J. 409, 428 (1997). We have held that "[w]here such a charge has not been given, its absence must be viewed within the factual context of the case and the charge as a whole to determine whether its omission was capable of producing an unjust result." State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. l997) (citing Kociolek, supra, 147 N.J. at 428), certif. denied, 153 N.J. 215 (1998). Here, the statements were heard directly by the witnesses who testified and who were subject to cross-examination. No evidence challenged the reliability of the statements. Further, other evidence supporting the State's case was undisputed. Finally, we conclude the judge's general credibility instruction included in the charge sufficiently explained the jury's obligation to assess the credibility of each witness' testimony when considering whether the State proved defendant's guilt beyond a reasonable doubt.
E.
Defendant maintains the State's closing was unfairly prejudicial. Defendant identifies portions of the summation that he suggests unfairly characterized his trial strategy and another portion that amounted to a call to arms such that the jury had a societal duty to convict. Accordingly, he contends his conviction must be reversed. We disagree.
It is well settled that "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999) (citations omitted). See also Jenewicz, supra, 193 N.J. at 471. Although prosecutors are "expected to make vigorous and forceful closing arguments to juries," ibid., they may not "make inaccurate legal or factual assertions during a trial." Id. at 85. Summations should be a review of and an argument on the evidence free from "improper expressions of personal or official opinion as to the guilt of the defendant[.]" State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied sub nom. Thornton v. New Jersey, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963). If a prosecutor oversteps the bounds of propriety, it may constitute grounds for reversal, but only if the prosecutor's comments were so egregious that they deprived defendant of a fair trial. State v. Wakefield, 190 N.J. 397, 437-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
Our review assesses alleged prosecutorial misconduct, such as improper remarks in summation, requiring us to determine whether the conduct "was so egregious that it deprives the defendant of a fair trial." Frost, supra, 185 N.J. at 83. When considering whether a prosecutor's misconduct was sufficiently egregious, we "'must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" Ibid. (citing State v. Marshall, 123 N.J. 1, 153 (1991)). We consider factors such as whether: (1) defense counsel made a timely objection, (2) the remark was withdrawn promptly, (3) the trial judge ordered the remarks stricken, and (4) the judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987).
Generally, if counsel does not object to the perceived improper remarks, the remarks will not be deemed prejudicial, since the failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. Frost, supra, 158 N.J. at 83. Failing to object also "deprives the court of an opportunity to take curative action." Id. at 84.
Defendant cites the comments made by the prosecutor when arguing the jury should not consider Dayke's assertions he escorted J.D.R. and his friends to their car and watched them because he wanted to avoid other problems. He noted Dayke was a "loyal long-time Headliner employee protecting his bosses of 15 years." The prosecutor juxtaposed these inconsistencies with the other evidence, suggesting they resulted from a desire to avoid civil liability and mentioned the club likely had a large insurance policy.
The second comment recited defendant's conduct toward J.D.R., noting he did not need to get involved but chose to interject himself after the argument was over. Followed by the comment defendant "can't now be allowed to escape responsibility for his choices and his actions by deflecting it somewhere else like [J.D.R.]. . . . You have the unique opportunity . . . through your verdict to force upon . . . defendant a responsibility that he doesn't want."
Viewed in context and noting defendant failed to object, we cannot conclude the remarks were so prejudicial as to warrant reversal. Ramseur, supra, 106 N.J. at 322-23. Stating Dayke's assertion was contrary to several other State witnesses and likely motivated by avoiding civil liability after J.D.R. testified he had filed a suit, was a reasonable inference. The comment regarding enforcing defendant's responsibility was a fair response to defense counsel's impassioned summation minimizing defendant's conduct and abrogating his responsibility. Accordingly, we reject the assertion of prosecutorial misconduct.
F.
Based on our rejection of the individual claims of error urged by defendant, we also reject his assertion of cumulative error. Defendant's trial was a fair one. We discern no error warranting reversal.
G.
Defendant's final argument attacks the sentence imposed. Defendant argues he should be sentenced in the third-degree range. The judge rejected this request, finding no applicable mitigating factors to offset applicable aggravating factors six, N.J.S.A. 2C:44-1(a)(6) (defendant's prior criminal record, which contained juvenile adjudications) and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter others from similar conduct). In refusing to apply mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (no prior history of prior criminal activity), eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of circumstances unlikely to recur, because of defendant's actions after the incident), and nine, N.J.S.A. 2C:44-1(b)(9) (the character and attitude of the defendants indicate that his is unlikely to commit another offense), the trial judge carefully considered defendant's request and articulated her basis for rejection, including defendant's juvenile record, his adult arrest and offense history (which did included only nonindictable offenses) and his post-altercation conduct.
In applying the aggravating factors, the judge noted defendant's prior record and the seriousness of the offenses for which he had been adjudicated or convicted. She declined the State's request to apply aggravating factor three, noting the length of time that passed when defendant was free of criminal conduct. Finally as to deterrence, the judge highlighted "[n]ot only that, [defendant] left the scene. He spoke to the other parties and tried to come up with some type of story that they were going [to] tell the police so that he would not be apprehended."
Although our review of a sentence must be "careful and vigorous," we may not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether this court would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989) (citation omitted). A trial judge is given "wide discretion" to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). We must make sure that the sentencing guidelines set forth in the statute have been met, that the aggravating and mitigating factors found below are based upon "'competent credible evidence in the record,'" and that the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" Id. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
Our Supreme Court has recently fortified the authority of sentencing judges, State v. Bieniek, 200 N.J. 601, 608-09 (2010), and has reminded this court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence.
[Id. at 612.]
Following our review, we discern neither a misapplication of sentencing principles nor an inappropriate exercise of discretion. The sentencing court explicated the reasons for rejecting the request for a downgraded sentence, the factual basis for applying aggravating factors and rejecting claimed mitigating factors and imposing the term of incarceration. We are not free to lightly disregard these findings supporting the trial judge's conclusions. The sentence is neither unduly harsh nor unreasonable in light of the circumstances of the crimes for which defendant was convicted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION