Opinion
DOCKET NO. A-5282-13T2
05-19-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT H. HANKINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; John C. Tassini, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John, Guadagno, and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 12-05-1117. Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; John C. Tassini, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Robert H. Hankins appeals his conviction and sentence after a jury trial of attempted murder and weapons offenses. We affirm defendant's conviction and remand for resentencing.
I.
We summarize the salient facts and procedural history from the record. Defendant was indicted by an Ocean County Grand Jury for first-degree attempted murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-1(a) (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts three and four).
Count four was dismissed prior to defendant's trial.
The evidence at trial established that D.S. worked part-time as a bartender at an American Legion Post (post) for approximately seven months prior to December 31, 2011, and during that time had become acquainted with defendant, who often came to the post to drink and socialize. Defendant frequently complimented D.S. on her appearance and often told her she looked like his ex-wife. D.S. was not interested in a romantic relationship with defendant, and generally responded to his comments by thanking him and otherwise being nice to him.
We utilize initials to protect the victim's privacy.
In late 2011, D.S. began dating Ralph Chesney, who was also a member of the post. Defendant then began to occasionally threaten D.S., saying he would get her fired, but would later apologize and compliment her.
On December 1, 2011, defendant appeared at D.S.'s other place of employment and delivered flowers and a note to her. On December 2, 2011, while D.S. was working at the post, defendant told her that he was going to go home and "load up [his] shotgun." He then pointed his finger toward her and said "pow, pow, pow."
On December 5, 2011, D.S. gave a letter to the post's manager regarding the December 2, 2011 incident and other incidents involving defendant, including his threats to have her fired. The letter stated that defendant brought flowers to D.S.'s other workplace on December 1, 2011, and told her he "would love to have a girlfriend like [her]."
Defendant told Dawn Burger, another bartender at the post and a friend of defendant's, that he had romantic feelings for D.S. On December 26, 2011, defendant told Burger that he was upset D.S. had begun a relationship with Chesney, D.S. "led him on," and he had his knives sharpened and "was going to cut [D.S.] from ear to ear and then cut himself." Burger told D.S. about defendant's statements on December 28, 2011.
On December 31, 2011, a New Year's Eve party was held at the post with approximately 120 people in attendance. The party was held in a room which included a dance floor, bar, tables, and chairs.
Burger was the bartender during the party. Defendant attended and was observed by various witnesses sitting at a table most of the evening, but one witness, James Regan, observed defendant on multiple occasions "get up and wander back and forth across the one end of the hall as though he was looking for somebody" before returning to his table.
D.S. attended the party with Chesney. She also observed defendant sitting at a table with a group of people. Although she was concerned about his prior conduct toward her, she felt safe because she was surrounded by friends.
During the two weeks prior to New Year's Eve, defendant had repeatedly asked D.S. and Chesney if he could have a dance with D.S. on New Year's Eve. At approximately 11:53 p.m., D.S. was on the dance floor dancing with two other women, and defendant approached her. Recalling his requests for a dance on New Year's Eve, D.S. thought that she could have a fast dance with him and "get [it] over with."
Defendant stared at D.S. without moving, and she asked him, "Are you going to move your feet and dance?" Defendant replied, "I don't dance fast," and D.S. told him to "just try it." Defendant then moved around D.S., placed his arm around her neck, and put her in a choke hold. D.S. said, "Oh my god, Bob, why are you squeezing my neck so hard, you're choking me."
A witness who was nearby saw defendant "stick something into [D.S.'s] neck." Another witness saw defendant's hand "go across [D.S.'s] throat." Defendant released D.S. from his hold and walked away, at which point D.S. felt a "tug" from her neck where he had touched her.
D.S. raised her head and blood spurted from her neck. Another witness heard D.S. say, "What did you do to me?" D.S.'s friends held her neck, helped D.S. walk into a hallway, and told others to call for an ambulance.
Burger heard a commotion on the dance floor and saw D.S. holding her bloody neck. Burger saw defendant walking with a shiny blade cupped in his hand and making a cutting motion against his neck before he sat down at the table where he had been earlier. Defendant was bleeding from his neck. He subsequently left the table, walked outside of the post, and sat on a bench.
Regan saw defendant walk out of the post, decided to "keep an eye on him," and followed defendant outside. Regan attempted to assist defendant by applying pressure to the wound on defendant's neck, but defendant told Regan to leave him alone, saying, "I've done some things and I've got to go." Defendant then took a switchblade knife from his pocket, slashed his own throat, and dropped the knife. Regan picked up the knife and put it in a small plastic bag he found on the ground.
Eric Miick of the Lakewood Police Department was the first officer to respond to the post. Miick observed defendant sitting on a bench bleeding heavily from his neck, with Regan standing next to him attempting to apply pressure to defendant's neck.
Regan gave Miick the plastic bag containing the knife, and said "here is the weapon that was used" and "there's the alleged perpetrator on the bench." Miick heard defendant say, "I did it, yeah, I did it."
Emergency medical responders arrived and Miick accompanied defendant in an ambulance to the hospital. A pat-down search of defendant revealed a small folding knife in his front left pocket and a homemade sheath or knife holder inside of his vest.
D.S. was transported to the hospital, where she was treated as a trauma alert patient, representing the highest level of medical emergency. She suffered from a slash wound to the right side of her neck up to her ear, which was consistent with an injury inflicted by a sharp instrument. The wound was deep; both her skin and internal muscle layer had been cut, and she was bleeding from a torn anterior jugular artery.
D.S.'s injuries were closed by stitching each layer of tissue separately, and her skin was closed with surgical staples. Her treating physician testified that absent the emergency medical care she received, she could have bled to death or died of multiple system organ failure as a result of lowered blood pressure and a lack of proper blood flow to her internal organs. D.S. has a substantial permanent scar on her neck.
Tanvi Kothari, a forensic scientist in the serology unit of the New Jersey State Police Office of Forensic Sciences, examined the knife Regan recovered and performed various procedures to lift blood from it. Kimberly Michalik, a scientist in the DNA laboratory at the Office of Forensic Sciences, determined that defendant's blood was on the knife. D.S.'s DNA was not found in any sample taken from the knife, but Michalik testified that it was possible D.S.'s DNA could have been covered over or lost if defendant used the same knife to cut both her neck and later his own.
The jury found defendant guilty of first-degree attempted murder, third-degree possession of a weapon for an unlawful purpose, and fourth-degree unlawful possession of a weapon. The court sentenced defendant to a twenty-year custodial term for the attempted murder under count one, with the requirement that he serve eighty-five percent of the term without eligibility for parole, and a five-year period of parole supervision after his release from incarceration, under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court merged defendant's conviction for unlawful possession of a weapon under count three into his conviction for possession of a weapon for an unlawful purpose under count two, and sentenced defendant under count two to a concurrent five-year custodial term. The court also imposed fines and penalties. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I:
THE COURT ERRED IN FAILING TO PROVIDE THE JURY WITH A LIMITING INSTRUCTION CONTRASTING THE PERMITTED AND PROHIBITED PURPOSES FOR WHICH THE JURY MIGHT USE THE EVIDENCE OF THE DEFENDANT'S STATEMENTS AND ACTIONS. (Not Raised Below.)
POINT II:
THE TRIAL JUDGE ERRED IN ALLOWING THE CHARGE WHICH STATES ATTEMPTED SUICIDE CAN BE CONSIDERED PROOF OF CONSCIOUSNESS OF GUILT.
POINT III:
THE ADMISSION OF IMPROPER EVIDENCE, INDIVIDUALLY AND CUMULATIVELY, DENIED DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below.)
POINT IV:
THE DFENDANT'S MAXIMUM SENTENCE OF TWENTY YEARS WAS MANIFESTLY EXCESSIVE AND UNDULY
PUNITIVE, AND THE RESULT OF DOUBLE-COUNTING ELEMENTS OF THE CRIME, AND MUST THEREFORE BE REDUCED.
II.
We first turn our attention to defendant's argument that the court's jury instruction on the use of N.J.R.E. 404(b) evidence was inadequate. More particularly, defendant argues the court's instruction did not make "absolutely clear" to the jury the permissible and impermissible uses of the testimony regarding defendant's statement that he was going home to load his shotgun, his pointing of his finger at D.S. and saying "pow, pow, pow," his statements that he had his knives sharpened and intended to cut D.S. from "ear to ear," his statement to Regan that he had done things and it was "time to go," and his statement "yeah I did it." We disagree.
After the conclusion of Burger's testimony and during the court's final charge to the jury, the court provided detailed instructions regarding the use of the N.J.R.E. 404(b) evidence. There was no objection to the charges given and therefore we consider defendant's challenge under the plain error standard. R. 2:10-2.
In the context of a jury charge, plain error is a "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)). We consider the jury instructions "as a whole" to determine if an error constitutes plain error. State v. Brown, 190 N.J. 144, 160 (2007) (quoting State v. Torres, 183 N.J. 554, 564 (2005)).
With the admission of N.J.R.E. 404(b) evidence, the court is required to provide the jury with a carefully formulated instruction on the prohibited and permitted purposes for which the evidence may be considered. State v. Marrero, 148 N.J. 469, 495 (1997) (citing State v. Cofield, 127 N.J. 328, 340-41 (1992)). "[T]he essential point to be made in [a] limiting instruction" on the use of other crimes evidence, is that it cannot be considered "to prove defendant's disposition to commit the offenses with which he was charged." State v. Stevens, 115 N.J. 289, 309 (1989); see also State v. Reddish, 181 N.J. 553, 611 (2004) ("An explicit instruction that the jury should not make any inferences about defendant's propensity to commit crimes is 'an essential point to be made in the limiting instruction.'" (quoting Marrero, supra, 148 N.J. at 496)).
Defendant's argument that the court's instructions did not sufficiently describe the permissible and prohibited uses of the N.J.R.E. 404(b) evidence is contradicted by the record. We discern no substantive error in the court's instructions and note the court tracked verbatim the portion of the model jury charge on the permissible and prohibited uses of the N.J.R.E. 404(b) evidence. Model Jury Charge (Criminal), "PROOF OF OTHER CRIMES, WRONGS, OR ACTS (N.J.R.E. 404(b))" (2007). Indeed, defendant acknowledges in his brief that the court gave the "standard charge" and "instructed the jury that it could not consider the [testimony] as evidence of defendant's propensity to be violent" and that the evidence "was only to be used for factors that are allowed," such as motive, plan, intent, purpose, and absence of mistake. The court's use of the model jury charge "is not determinative, but it is a persuasive argument in favor of the charge as delivered." State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000).
Although the "better practice is to give limiting instructions" at the time evidence is introduced and "in the final jury charge," State v. Blakney, 189 N.J. 88, 93 (2006), "[n]either the Rules of Evidence nor case law in this State dictates that a limiting instruction respecting N.J.R.E. 404(b) must be delivered at the time the evidence is received rather than as part of the court's final charge to the jury." Angoy, supra, 329 N.J. Super. at 89. Here, the court gave the limiting instruction immediately following the most damaging of the N.J.R.E. 404(b) evidence, Burger's testimony about defendant's threat to cut D.S. from "ear to ear," and again in the final instruction, where the court directed that the limiting instruction applied to the testimony of D.S., Burger, and Miick concerning defendant's statements.
There was no error in the court's failure to explain that the limiting instruction applied to Regan's testimony regarding defendant's statement that he had done things wrong and "had to go" because defendant's statement related to defendant's crimes against D.S., and not other bad acts. There was no objection to the introduction of the evidence on N.J.R.E. 404(b) grounds and we are not convinced the testimony constituted N.J.R.E. 404(b) evidence.
As noted, the instructions explained the permitted and prohibited uses of the evidence under N.J.R.E. 404(b), and we are satisfied that, given the substantial other evidence supporting defendant's guilt, he did not suffer any prejudice by the court's failure to give the instruction immediately following the testimony of D.S. and Miick.
"[T]here is a presumption that [a] charge was not [in] error and was unlikely to prejudice the defendant's case" where, as here, there was no objection to the charge. State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 333-34 (1971)). Moreover, the other evidence against defendant was substantial, and any potential prejudice from any purported deficiency in the court's instruction was diminished by the arguments of counsel. State v. Docaj, 407 N.J. Super. 352, 366 (App. Div.), certif. denied, 200 N.J. 370 (2009).
The assistant prosecutor did not suggest or argue to the jury that the N.J.R.E. 404(b) evidence should be considered to demonstrate that defendant had a tendency to commit the crimes for which he was charged or that he was a bad person. Instead, the assistant prosecutor properly relied upon the evidence only to support the argument that defendant planned the commission of the crimes, intended to commit the crimes, had a motive to commit them, and acted purposely and not by mistake or accident in their commission. Each of the State's arguments was consistent with the proper use of N.J.R.E. 404(b) evidence and the court's instructions, and the jury did not ask any questions suggesting any issues related to the use of the evidence. Ibid.
We are therefore convinced that the court's instructions on the use of the N.J.R.E. 404(b) evidence were not in error and, even if they were, they were not capable of producing an unjust result.
III.
We also reject defendant's challenge to the court's instruction on the evidence related to defendant's attempted suicide. Defendant argues that the instruction was improper because its impact was to permit a finding of consciousness of guilt without having the jurors consider other reasons for defendant having cut his own throat. Defendant did not object to the charge at trial, and we consider his claim under the plain error standard. R. 2:10-2.
Evidence related to a defendant's attempt to commit suicide is admissible if it is probative of a consciousness of guilt. State v. Mann, 132 N.J. 410, 422 (1993). In Mann, the Supreme Court noted that "evidence of a defendant's suicide attempt that follows the alleged commission of an offense generally is admitted." Id. at 421. The admission of the evidence is based upon the premise that "a defendant may attempt suicide because of an inability to endure the prospect of prosecution and punishment. Alternatively, attempted suicide has been regarded as evidence of a consciousness of guilt." Ibid.
Where evidence of a defendant's attempted suicide is admitted at trial, the court must instruct the jury that "it first must find that an actual suicide attempt had occurred" and "then consider whether that attempt was made to avoid the burdens of prosecution and punishment." Id. at 424. The jury should be further instructed that it must "determine whether defendant's attempted suicide demonstrated consciousness of guilt" and that if the jury "credits any alternative explanation offered by the defendant, it may not infer consciousness of guilt from the evidence of a suicide attempt." Ibid.
The court's instruction on defendant's suicide attempt was in accord with the requirements set forth by the Court in Mann. In addition, the court gave the model jury instruction on a defendant's suicide attempt. See Angoy, supra, 329 N.J. Super. at 84 (use of model jury instruction "is a persuasive argument in favor of the charge as delivered"); State v. R.B., 183 N.J. 308, 325 (2005) (instructing trial courts to utilize the model jury charges and read them "in their entirety to the jury").
Model Jury Charge (Criminal), "ATTEMPTED SUICIDE-1 [TO AVOID PROSECUTION AS CONSCIOUSNESS OF GUILT]" (2012).
Defendant has failed to establish that any part of the charge was given in error or that any purported error, to which there was no objection at trial, constituted plain error under Rule 2:10-2. Defendant's argument that the court's instruction on attempted suicide was in error is wholly devoid of merit.
IV.
Defendant also argues that his sentence should be reversed because it is manifestly excessive, the court incorrectly found aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (9) based upon defendant's lack of remorse, and the court engaged in improper double counting.
We review a "trial court's 'sentencing determination under a deferential [abuse of discretion] standard of review.'" State v. Grate, 220 N.J. 317, 337 (2014) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)); see also State v. Pierce, 188 N.J. 155, 169-70 (2006) ("On appellate review, the court will apply an abuse of discretion standard to the sentencing court's explanation for its sentencing decision within the entire range."). We affirm a sentence if: (1) the trial court followed the sentencing guidelines; (2) its findings of fact and application of aggravating and mitigating factors were based on competent, credible evidence in the record; and (3) the application of the law to the facts does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When reviewing a trial court's sentencing decision, we will not "substitute [our] judgment for that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014).
At sentencing, the court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the offense"); two, N.J.S.A. 2C:44-1(a)(2) ("gravity and seriousness of the harm inflicted on the victim"); three, N.J.S.A. 2C:44-1(a)(3) (risk of committing another offense); and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The court found mitigating factors six, N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the victim), based upon the court's order that defendant make restitution to the Victims of Crime Compensation Office, and seven, N.J.S.A. 2C:44-1(b)(7) (defendant "led a law-abiding life for a substantial period of time" prior to the commission of the offense).
The court placed "heavy" weight on aggravating factors one two, and nine, "moderate" weight on aggravating factor three, but did not quantify the weight placed on mitigating factors six and seven. The court found it was clearly convinced that the aggravating factors substantially outweighed the mitigating factors, rejected defendant's request that the court impose a sentence in the range one degree lower than the first-degree range for attempted murder under N.J.S.A. 2C:44-1(f)(2), and imposed an aggregate sentence of twenty years with the requirement that defendant serve eighty-five percent of the term without eligibility for parole and a five-year period of parole supervision after his release pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
We first address defendant's argument that the court impermissibly double-counted when it found aggravating factors one and two. A court engages in impermissible double counting when "elements of a crime for which a defendant is being sentenced" are "considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000) (citing State v. Yarbough, 100 N.J. 627, 633 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986)). "[A] sentencing court must scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." Fuentes, supra, 217 N.J. at 74-75 (citing Yarbough, supra, 100 N.J. at 645). A court, however, does not engage in double-counting when it considers facts showing defendant did more than the minimum the State is required to prove to establish the elements of an offense. Id. at 75; see State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) ("The extent of the injuries, which exceed the statutory minimum for the offense, may be considered as aggravating.").
Although "sentencing courts frequently apply both aggravating factors one and two, each requires a distinct analysis of the offense for which the court sentences the defendant." Lawless, supra, 214 N.J. at 600. A finding of aggravating factor one requires the court to consider "[t]he nature of the circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). In order to find that an offense was committed in a "cruel" manner under the statute, there must be evidence defendant inflicted pain or suffering gratuitously and beyond that which was required to establish the elements of the crime charged. State v. O'Donnell, 117 N.J. 210, 217-18 (1989).
Aggravating factor two "focuses on the setting of the offense itself with particular attention to any factors that rendered the victim vulnerable or incapable of resistance at the time of the crime." Lawless, supra, 214 N.J. at 611. A court may not base its finding of aggravating factor two solely upon the fact that the harm contemplated by the statute proscribing the criminal conduct occurred. Kromphold, supra, 162 N.J. at 356-58. Rather, the sentencing court must
engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants.
[Id. at 358.]
In its imposition of sentence, the court must "state . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence." R. 3:21-4(g); see also N.J.S.A. 2C:43-2(e); State v. Kruse, 105 N.J. 354, 359-60 (1987). The record here reflects that the court did not adequately state the factual basis for its findings of aggravating factors one and two. The court's finding of aggravating factor one was limited to conclusory assertions that defendant's conduct was "heinous," "cruel," "depraved," and "vicious," coupled with a single reference to the "depth of the knife striking [the victim's] throat." Similarly, the court's finding of aggravating factor two was limited to a reference to testimony that the victim's "life was in jeopardy between three and four ways" and that "she could have lost her life."
The court's statement of the factual basis for its findings is necessary and "important for meaningful appellate review of any criminal sentence," because we are "expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting Roth, supra, 95 N.J. at 364-65). Where, as here, the court did not fully explain the factual basis for its findings of aggravating factors one and two, we are without the record required to review the findings and the "heavy" weight assigned to each factor. We are also unable to determine if the court engaged in impermissible double-double counting of the factors.
We have considered and reject defendant's contention that the court erred in finding aggravating factor three. We are satisfied that the court's finding of aggravating factor three is supported by the record. Contrary to defendant's contention, his lack of remorse and denial of responsibility was properly considered by the court as support for its conclusion that defendant is likely to commit another offense. State v. Carey, 168 N.J. 413, 427 (2001); O'Donnell, supra, 117 N.J. at 216.
We also reject defendant's contention that the court erred in finding aggravating factor nine. Deterrence "has been repeatedly identified in all facets of the criminal justice system as one of the most important factors in sentencing," State v. Megargel, 143 N.J. 484, 501 (1996), and "demands for deterrence are strengthened in direct proportion to the gravity and harmfulness of the offense." State in the Interest of C.A.H. & B.A.R., 89 N.J. 326, 337 (1982). Aggravating factor nine incorporates both a sentence's "general deterrent effect on the public [and] its personal deterrent effect on the defendant." Fuentes, supra, 217 N.J. at 79 (alteration in original) (quoting State v. Jarbath, 114 N.J. 394, 405 (1989)). Of the two concepts, specific deterrence is considered the more important. Ibid. A lack of remorse may be cited by a court to justify imposition of factor nine because such an attitude "indicate[s] that a prison sentence is necessary to deter [a] defendant from similar conduct in the future." State v. Rivers, 252 N.J. Super. 142, 154 (App. Div. 1991).
Here, the court's finding of aggravating factor nine was sufficiently explained and was supported by the record. The evidence showing that defendant's attempt to murder D.S. was carefully planned and premeditated and defendant's refusal to accept responsibility or express any remorse for his actions provides ample support for the court's finding that there was a specific need to deter defendant from committing crimes, such as attempted murder, in the future.
Based upon the court's failure to provide the factual basis for its findings of aggravating factors one and two, we are constrained to vacate defendant's sentence and remand for resentencing. On remand, the court shall fully detail the factual basis for each of its findings of the aggravating and mitigating factors, shall consider whether those findings will result in any impermissible double-counting, and shall perform the required qualitative weighing and balancing of the factors to impose the appropriate sentence in accordance with the sentencing guidelines. In imposing sentence, the court did not make a determination as to the weight it assigned to the mitigating factors, but must do so at resentencing. Because we are remanding for resentencing, it is unnecessary to address defendant's contention that the sentence imposed was excessive and we express no opinion regarding it.
Although not raised on appeal, we note that the court did not consider whether defendant's conviction for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), under count two should merge with his conviction for attempted murder, N.J.S.A. 2C:11-3(a)(1) and (2) and N.J.S.A. 2C:5-1(a), under count one. On resentencing, the court shall consider the issue of merger, make appropriate findings, and decide whether merger is required. N.J.S.A. 2C:1-8; State v. Tate, 216 N.J. 300, 306-13 (2013); State v. Diaz, 144 N.J. 628, 636-37 (1996). --------
Defendant's remaining argument, that the purported cumulative errors of the court require a reversal of his conviction, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's conviction is affirmed. We vacate his sentence and remand for resentencing in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION