Opinion
DOCKET NO. A-4620-12T3
04-02-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMIL KOLLIE, a/k/a JAMAL KOLLIE, Defendant-Appellant.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the briefs). Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-06-1147. Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the briefs). Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Mr. Ducoat, of counsel and on the brief). PER CURIAM
Defendant Jamil Kollie was convicted of first-degree robbery, N.J.S.A. 2C:15-1, second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a), as a lesser-included offense of carjacking, N.J.S.A. 2C:15-2. Defendant was roughly a month shy of his eighteenth birthday when he committed the offenses. The Family Court waived him up for prosecution as an adult. The trial court sentenced defendant to an aggregate term of fifteen years, with an eighty-five percent period of parole ineligibility, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On this appeal, defendant contends the court erred in denying his motion to suppress the victim's out-of-court identification. He also challenges aspects of the court's instructions to the jury. Additionally, he argues his sentence is manifestly excessive and unduly punitive given his youth. Having considered defendant's arguments in light of the record and applicable principles of law, we affirm.
I.
We begin with the following overview of the facts. In the early evening hours of January 19, 2011, defendant robbed a man named Jones at gunpoint at the corner of Schley Street and Chancellor Avenue in Newark. The robbery, as well as significant events preceding and following it, were captured by video surveillance cameras.
In the minutes preceding the robbery, defendant was milling about inside the convenience store located on the opposite corner. The store's internal surveillance system captured defendant as he faced one of the cameras. The recording was dated January 19, 2011, and was time-stamped at around 6:30 p.m. Defendant was filmed wearing a green hoodie with what appeared to be white bleach stains, underneath a distinctively patterned, black and grey ski jacket. Defendant also wore a skull cap and blue jeans. He could be seen talking on a cellphone, and conversing with other young men who walked about the store.
The owner of the convenience store testified that defendant was a frequent visitor. He usually saw defendant in his store multiple times a day. The convenience store owner identified defendant in court as the same person depicted in his store's video surveillance.
An exterior video camera filmed defendant — identifiable by his jacket and stature, but not his face, cross Chancellor Avenue from the direction of the convenience store. He was captured on video as he waited on the corner. At one point, he walked back to apparently meet someone in the middle of Chancellor Avenue, then returned to the corner where he had been standing. He waited under the sign of a bodega, steps from the Mercedes that Jones had parked several minutes earlier on the left side of Schley Street.
Jones had stopped to shop on Chancellor Avenue, a few stores down from the convenience store. As he returned to leave, heading for the curb and the driver's side door, he walked in the space between the Mercedes and a car parked behind it. Defendant confronted Jones before he reached the sidewalk. Defendant removed a handgun, and demanded money from Jones. Defendant wore a mask that covered his chin, mouth, and the lower part of his nose. The gun was visible at various points in the exterior video surveillance. So was defendant's bleach-stained hoodie and patterned ski jacket. Jones was wearing a checkerboard, lumberjack-style jacket.
Jones attempted to comply with defendant's demands. He fumbled, and dropped a ten dollar bill to the ground. As he bent down to pick it up, defendant pointed the gun at Jones's head. Jones testified that he "tried to talk to him" and asked defendant "[']You okay brother, why are you doing this to me?['] And then [defendant] just said, [']Shut up and give me the money.[']" After Jones was unable to produce more than a modest amount of cash, defendant threatened to shoot Jones in his knees.
The confrontation had lasted about sixty seconds when Jones proposed that defendant allow him to go into the bodega on the nearby corner to get more money from an ATM. Defendant agreed, after taking Jones's car keys. Defendant then followed Jones as far as the corner.
Jones actually had no intention of returning with more money. At one point, he opened the door facing Chancellor Avenue and leaned out, to see if defendant was still there. Another exterior video camera captured the scene. Jones was filmed from the back, in his lumberjack-style jacket, leaning out of the doorway, looking toward the corner and defendant. Defendant was standing on the corner facing Jones and the surveillance camera. Although defendant's face was not discernable in the footage, his patterned ski jacket and hoodie were. Jones testified that defendant's mask was lowered. Defendant again demanded money.
Jones called 911 from the market and remained inside. After a brief wait, defendant fled the scene. He and another man were filmed as they walked toward the Mercedes. Defendant tossed the keys to the other man who drove off with defendant.
Jones gave a statement to police the night of the robbery. The police retrieved the various video surveillance footage. They found a match between the individual depicted in the store video, and a young man who was the subject of a recent police field inquiry. Two days after the robbery, Jones identified defendant from a photo array. Defendant was arrested wearing the same black and grey ski jacket captured on the video.
After a Wade hearing, Judge Michael L. Ravin denied defendant's motion to suppress Jones's out-of-court identification of defendant. The court did so after hearing testimony from Jones; Newark Police detective Emanuel Miranda, who led the robbery investigation; and Essex County Prosecutor's Office lieutenant Jose Ramirez, an otherwise uninvolved officer who administered the photo array.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The principal witnesses at trial were Jones and the convenience store owner, as well as Miranda, Ramirez, and the officer who arrested defendant. The State introduced evidence of Jones's out-of-court identification. Jones also identified defendant in court as the person who robbed him. As noted above, the convenience store owner identified defendant as the regular customer who wore the distinctive ski jacket — the same jacket worn by Jones's assailant, as depicted in the exterior videos near the bodega.
Defendant did not testify and presented no witnesses. The theme of the defense was that Jones's identification was unreliable.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT ERRED BY FAILING TO APPLY THE PROCEDURAL RUBRIC ENUNCIATED IN STATE V. HENDERSON.
POINT II
THE TRIAL COURT ERRED BY FINDING THAT THE OUT-OF-COURT IDENTIFICATION PROCEDURE WAS FAIRLY COMPRISED IN VIOLATION OF U.S. CONST. AMENDS. VI AND XIV AND N.J. CONST. ART. I, ¶¶ 1, 9, AND 10.
POINT III
THE COURT FAILED TO PROVIDE THE ENTIRE INSTRUCTION PERTAINING TO THE IDENTIFICATION PROCEDURES. (Not Raised Below).
POINT IV
THE COURT FAILED TO GIVE THE REQUIRED CHARGE UNDER STATE V. CZACHOR IN RESPONSE TO A JURY QUESTION ABOUT HOW TO PROCEED IN LIGHT OF A FAILURE TO REACH CONSENSUS.
POINT V
MR. KOLLIE'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.
A. Mr. Kollie Should Have Been Exposed To A Sentence From One-Degree Lower Up To, And Including, The Maximum Term Of The Ordinary Term For Which He Was Eligible
To Be Sentenced Based Upon The Uncontested Underdevelopment Of Childrens' Physical, Emotional, And Psychological Status.
B. Research In Developmental Psychology And Neuroscience Documents Juveniles' Greater Immaturity, Vulnerability, And Changeability Justifying An Expanded Sentencing Range.
1. Juveniles are less capable of mature judgment than adults.
2. Juveniles have a greater capacity for change and reform.
C. Mr. Kollie's Sentence Is Otherwise Excessive, Unduly Punitive, and Requires Reduction.
II.
We affirm the denial of defendant's motion to suppress Jones's out-of-court identification.
We first dispatch defendant's argument that the court should have applied the principles set forth in State v. Henderson, 208 N.J. 208 (2011), and not the so-called Manson/Madison test. See State v. Madison, 109 N.J. 223, 232-33 (1988) (adopting the standard for reviewing identification evidence set forth in Manson v. Brathwaite, 432 U.S. 98, 110, 97 S. Ct. 2243, 2251, 53 L. Ed. 2d 140, 151 (1977)). The Henderson Court adopted a "revised framework" for considering pretrial challenges to the admission of identification evidence. Henderson, supra, 208 N.J. at 288-96. The Court expressly stated that its ruling in Henderson would apply only to future cases, except for the defendants in Henderson and the companion case, State v. Chen, 208 N.J. 307 (2011). The new framework would take effect beginning thirty days after the Court approved new model jury charges on eyewitness identification. Henderson, supra, 208 N.J. at 300-02. Those model instructions were adopted in July 2012 and became effective September 4, 2012.
The Court subsequently applied its ruling on the prospective effect of Henderson in State v. Micelli, 215 N.J. 284 (2013). The out-of-court identifications in that case occurred before August 2011. The Court held, "The Madison standard applies . . . because the out-of-court identifications were completed prior to our August 24, 2011 decision in State v. Henderson . . . ." Micelli, supra, 215 N.J. at 287.
The out-of-court identification in this case occurred on January 21, 2011, several months before the Court's August 24, 2011 decisions in Henderson and Chen. The pre-trial hearing was conducted in April and May 2012, before approval of the new model jury charge. In short, there is no merit to defendant's argument that the Henderson framework should apply.
Instead, we analyze the admission of Jones's out-of-court identification pursuant to the Manson/Madison test. In determining the admissibility of identification testimony, "[r]eliability is the linchpin[.]" Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. To determine whether to exclude an identification, a court must "first . . . ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006) (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154), and Madison, supra, 109 N.J. at 233.
As for the first step:
"Impermissive suggestibility is to be determined by the totality of the circumstances of the identification. It is to be stressed that the determination can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist."
[Manson, supra, 109 N.J. at 234 (quoting State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973) (emphasis omitted)).]
In considering the second step, the court must consider whether the procedure created a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232 (internal quotation marks and citation omitted). "If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence." Ibid.
The test requires a court to weigh the suggestive nature of the procedure against the identification's reliability. Id. at 233. In assessing reliability, a court must consider five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness'[s] degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Herrera, supra, 187 N.J. at 507 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
We attach "very considerable weight" to the trial court's findings in a Wade hearing. State v. Adams, 194 N.J. 186, 203 (2008) (internal quotation marks and citation omitted). "That is, the trial court's findings that photographic identification procedures were reliable should not be disturbed if there is sufficient credible evidence in the record to support the findings." Ibid.
Applying these standards, we shall not disturb Judge Ravin's determination that the photo identification was not impermissibly suggestive; and even if it was, the identification was nonetheless reliable.
Defendant argues that the photo array was impermissibly suggestive because defendant alone was depicted wearing a bright red-orange hooded sweatshirt over a white tee-shirt. In the photograph, the hood was down, and lined with a contrasting light tan and white stripe fabric. Consequently, the garment created a wide red ring around defendant's neck, with the tan fabric laying in folds on his shoulders. White pull-strings dropped down across defendant's upper chest. The fillers, by contrast, were dressed in tee-shirts that were bluish-grey, white, or black.
In his statement to Miranda the night of the robbery, Jones described his assailant as wearing a dark hoodie. He said his attacker was very thin and "5'11" if more than that. It was only 6 feet if more than that." Jones told Miranda that his attacker's complexion was like his own, if not a slight shade darker. He had never seen his attacker before that night.
The statement was not introduced into evidence at either the Wade hearing or the trial, and is not in the record before us. However, defense counsel liberally referred to Jones's statement in cross-examination in both proceedings.
Jones stated that he could only see the top of defendant's face during the confrontation by the car, because the mask covered his chin, mouth, and the lower part of his nose. He said, "Back at the car. It appeared that I almost saw his face." However, Jones told Miranda that when defendant peered out of the bodega later, he had dropped his mask. In the Wade hearing, Jones asserted he could clearly see defendant's face.
In his interview with Miranda, Jones professed some uncertainty that he could identify his attacker, stating, "He almost had to have that same thing on because I can't tell other th[a]n that. You know, as bad as I want this clown, I cannot tell other th[a]n that at this point. I really can't, as bad as I want him man." At another point, however, Jones stated that he might be able to identify his assailant, and willingly responded to Miranda's invitation two days later to view some photos.
There was no evidence at the Wade hearing to support a claim that any other aspect of the photo identification process was suggestive — aside from defendant's attire. Although the process was not video- or audio-recorded — because recording rooms and equipment were allegedly unavailable — neither Miranda nor Ramirez said anything to Jones to indicate that a suspect was included among the photos; directing Jones to select defendant's photo; or confirming his selection. The fillers and defendant appeared to be similar in age and physical appearance. They were similar in complexion and facial features, and all had short-cropped hair. The officers testified that their photo system was incapable of selecting fillers dressed in hoodies, and police did not have a photo of defendant dressed in something else.
Jones asserted that he selected defendant's photo, which was third in the individually presented array, because he recalled defendant's eyes. Ramirez testified that Jones paused when he first examined defendant's photo. After viewing all the photos in the array, Jones asked to see defendant's photo again, and then stated he could not forget his eyes, and that defendant was the person who robbed him. He expressed confidence that his identification was accurate.
We agree that displaying defendant in a hoodie was suggestive, given Jones's description of his attacker. Moreover, the bright color may have drawn attention to defendant's photo, which contrasted with the photos of the fillers, who were dressed in white, black, or grey shirts. Defendant's attire is particularly problematic because Jones indicated that his ability to identify his attacker might depend on seeing him in the same clothing he wore during the robbery. A photo array should not be composed in such a way that the suspect's photo stands out among the rest. See Herrera, supra, 187 N.J. at 515-17 (including in an appendix Attorney General's Guidelines for conducting photo lineup); see also Henderson, supra, 208 N.J. at 251-52.
The trial court held that selecting a photo of defendant in a hoodie actually complied with another Attorney General guideline, which directs police to "[s]elect a photo that resembles the suspect's description or appearance at the time of the incident." See Herrera, supra, 187 N.J. at 516 (quoting guideline I(E)(3)). We construe the guideline differently, to pertain to the suspect's physical appearance at the time of the incident (implicating features like facial hair, weight, hair color, complexion), and not clothing which may suggest that a viewer select a person despite differences in physical appearance. At the very least, a defendant's photo should not be the only one in an array depicting a distinctive article of clothing that an offender wore at the time of an incident in question. For example, if a victim stated that his attacker wore a NY Yankees baseball cap, it would be suggestive to display only one photo of a person in such a cap, as it may mislead the viewer into making a positive identification. On the other hand, there would be nothing wrong with displaying six photos in which all subjects were dressed in such a cap.
Nonetheless, given our standard of review, we are not prepared to disturb Judge Ravin's conclusion that that the photo array was not impermissibly suggestive. While defendant wore a hoodie in the photo, the court found it was not reminiscent of defendant's attire the night of the robbery, when, by contrast, Jones said his attacker wore a dark hoodie, which was pulled up over his head. Trial evidence highlighted the color contrast. The color video from the convenience store showed defendant in a forest green hoodie. Outside, under the street lights, it surely appeared dark to Jones — far different from the brightly colored sweatshirt that defendant wore in the photo used in the lineup. The court found that neither the testimony nor exhibits indicated that Jones selected defendant's photo based on his attire. The court found that the selection of defendant's photo was not a purposeful departure of the Attorney General's guidelines. In no other respect did the police suggest to Jones that he select defendant's photo.
The court also found support in our decision in State v. Galiano, 349 N.J. Super. 157 (App. Div. 2002), certif. denied, 178 N.J. 375 (2003), where a defendant argued unsuccessfully that a photo array was impermissibly suggestive because it depicted him in a collared shirt that looked like a hooded sweatshirt, and the victims described their attacker as wearing a hooded sweatshirt. Id. at 162. We are not persuaded that Galiano is helpful here; in Galiano, we were unconvinced the defendant's collared shirt necessarily resembled a sweatshirt hood. Ibid. Also, the court held that "if there was any suggestiveness it was not capable of tainting the witnesses' in-court identifications" because of the reliability of their identifications. Ibid.
The trial court proceeded to the second prong of the Manson/Madison analysis, and concluded that even if the photo array was suggestive, it did not taint Jones's identification. We agree. "[W]eighing the suggestive nature of the procedure against the reliability of the identification," Micelli, supra, 215 N.J. at 291, the reliability predominates after considering the five factors described in Herrera.
According to the testimony at the Wade hearing, Jones had ample "opportunity . . . to view the criminal at the time of the crime," and had an elevated "degree of attention." Id. at 292 (internal quotation marks and citation omitted). The trial evidence only confirmed those factors. Although Jones admitted he was under stress, and fumbled with money, he was face to face with defendant for roughly a minute, as depicted on the video presented at trial. Jones testified that he tried to reason with defendant. The video also reflected that although it was nighttime, the street-lighting was more than adequate. Moreover, once Jones was in the relative safety of the bodega, he peered out and was able to see defendant facing him, with his mask removed. Defendant also expressed unqualified confidence in his selection of defendant from the photo array.
We do not rely on trial evidence of defendant's guilt to corroborate Jones's identification. See Manson, supra, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155 (stating that evidence of defendant's guilt "plays no part in our analysis" of identification's reliability); see also United States v. Emanuele, 51 F.3d 1123, 1128 (3d Cir. 1995) (stating "[i]ndependent evidence of culpability will not cure a tainted identification procedure"). Rather, we rely on trial evidence related directly to the reliability of the identification. See ibid. (stating "only factors relating to the reliability of the identification will be relevant to a due process analysis").
We recognize that these three factors — "opportunity to view the crime, the witness'[s] degree of attention, and the level of certainty" — are subject to challenge as empirically strong indicators of accuracy. See Henderson, supra, 208 N.J. at 286. Consequently, even under a Manson/Madison analysis, it may be appropriate to give them lesser weight than the other two factors. Although the Henderson framework is prospective in effect, we do not believe we are bound to ignore the results of social science research when we apply the pre-Henderson rubric.
Jones's prior description of defendant was accurate. He stated defendant was about 5'11" and very thin. The officer who arrested defendant testified that defendant described himself as 5'10" tall and 150 pounds. Defendant also accurately described defendant as wearing a dark hoodie, which was confirmed by the trial videos. The video evidence at trial indicated more generally that Jones accurately recalled significant details of the crime.
Finally, the time between the crime and the confrontation was relatively brief. The crime occurred in the evening of January 19, 2011. Jones identified defendant sometime on January 21, 2011 — apparently less than forty-eight hours later. See Adams, supra, 194 N.J. at 204-06 (finding that out-of-court identifications were reliable where, among other factors, they were conducted within two days of the incident, which the Court characterized as a "relatively short" time period). In sum, we discern no error in the decision to admit Jones's out-of-court identification.
III.
Defendant challenges two aspects of the court's instructions to the jury — one involving the court's charge regarding identification, and the second involving the court's response to a jury question during deliberations. We are unpersuaded.
As to the first issue, which is presented as plain error, defendant argues the court erred in omitting the following paragraph found in the model jury charge on identification:
You may consider whether the witness was exposed to opinions, descriptions, or identifications given by other witnesses, to photographs or newspaper accounts, or to any other information or influence, that may have affected the independence of his/her identification. Such information can affect the independent nature and reliability of a witness's identification and inflate the witness's confidence in the identification.
[Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" at 9 (eff. 9/4/12).]
This paragraph was not relevant to Jones's out-of-court identification, as there was no evidence that he was exposed to any outside influences before selecting defendant from the photo array. Miranda, Ramirez, and Jones all denied that anything was said to him to influence his identification. Although Jones testified at trial that he ultimately learned that the police had obtained videos, he did not testify that he viewed them before his out-of-court or in-court identifications. A court may tailor a model jury charge to the facts of the case. See State v. Concepcion, 111 N.J. 373, 379 (1988) ("Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case."). We find no error, let alone plain error, in the court's omission, given the dearth of evidence on outside influences.
The State argues that if the omission of the paragraph was error, it was invited error because defendant's proposed charge omitted the paragraph. See State v. A.R., 213 N.J. 542, 561 (2013). The record is simply inadequate to support the contention that defense counsel proposed the omission. During the charge conference, the court asked the assistant prosecutor, "You want to talk about [defense counsel's] proposed identification charge?" The assistant prosecutor stated it was satisfactory to the State. Judge Ravin then stated that a reference to intoxication in defense counsel's proposed charge was inappropriate, defense counsel agreed, and then the judge stated he would read the proposed charge "a little bit closer." After delivering the charge, the judge also acknowledged to counsel at sidebar that he had "excis[ed] or add[ed] things that were not in the original charges," and asked counsel if there were any objections. Although defense counsel may well have omitted the paragraph regarding outside influences in his request to charge, his proposed charge was not marked as an exhibit for identification, and it is at least possible that it was the court that purposely or inadvertently omitted it thereafter.
Turning to the issue of the court's response to a jury question, the jury began deliberations on December 6, 2012, at 1:50 p.m. Less than an hour later, the jury asked to view the video evidence. At 3:16 p.m., the jury asked for a freeze frame of the video where defendant appears to brandish a handgun. At 3:55 p.m., the court received two jury questions regarding the weapons charges, specifically whether the jury needed to be convinced that the item brandished was a genuine firearm. After counsel disagreed over the appropriate response, the court decided to dismiss the jury for the day and respond in the morning.
The next morning, after consulting further with counsel, the court asked the jury to clarify its question. However, at 11:30 a.m., instead of responding further on the weapons issues, the jury posed two new questions: (1) "If we can't agree on one count, how do we proceed?"; and (2) "Is the primary difference between carjacking and theft of moveable goods the use of force? Are there other differences we should consider?"
The State suggested that the court simply advise the jury "that they've only been deliberating a short period of time and they should continue their deliberations." Defense counsel urged the court to deliver a Czachor charge. Judge Ravin explained that he would tell the jury "they haven't been deliberating that long and should continue to deliberate," which he said was especially appropriate in light of the other question, and "giving them an answer to that question may solve that problem."
State v. Czachor, 82 N.J. 392 (1980).
--------
When the jury reconvened, the judge responded to the question regarding lack of agreement of one count as follows: "The way you proceed is to continue to deliberate. You've heard a lot of evidence over a bunch of days, so you should continue to deliberate. That's my answer to that." The court then proceeded to respond to the question regarding carjacking by directing the jury's attention to the written charge. At 12:40 p.m., the jury notified the court that it reached a verdict.
Defendant argues the court erred in failing to deliver the Czachor charge, which states:
The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.
[Id. at 405-06 n.4 (internal quotations marks and citation omitted).]
A trial court has discretion to order a jury to continue deliberating after it has announced a deadlock. Id. at 407. But, the court cannot coerce a jury into reaching a verdict. State v. Figueroa, 190 N.J. 219, 240 n.9 (2007). In this case, the jury was far from announcing a deadlock. Rather, it inquired how to proceed if it were unable to reach a verdict as to one of the several charges. The jury had been deliberating for only part of the previous afternoon, and less than the full morning when it posed the question. The court delivered the substance of the Czachor charge as part of its final instructions to the jury the previous day. Moreover, the jury was obviously continuing to deliberate, based on its question regarding carjacking.
Under these circumstances, we are not persuaded that the court was compelled to deliver the Czachor charge in full, as opposed to directing the jury to continue to deliberate. The court's instruction was not coercive. The jury did not report that it was deadlocked. Its question was posed as a hypothetical. The court reasonably conveyed to the jury that, given the brief time it had been deliberating, it was appropriate for it to continue.
IV.
Finally, we address defendant's challenge to his sentence. Judge Ravin carefully reviewed the aggravating and mitigating factors in determining defendant's sentence. The court expressly addressed and rejected several mitigating factors. We presume the defense suggested these in a sentencing memorandum that is not included in our record. Although not one of the enumerated mitigating factors, Judge Ravin considered defendant's youth to be mitigating, citing Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), for the proposition that juveniles are "constitutionally different from adults" for sentencing purposes. The judge noted that juveniles have diminished culpability and a better chance of reform.
The trial court found aggravating factor three — risk defendant will commit another offense, given his juvenile record, which included an adjudication of delinquency for theft and a probationary sentence just a few months prior to the robbery. N.J.S.A. 2C:44-1(a)(3). The court also found aggravating factor nine, the need to deter. N.J.S.A. 2C:44-1(a)(9). The court imposed a sentence at the middle of the first-degree range because the aggravating factors were in balance with the mitigating factor of defendant's youthfulness. The court did not accept defendant's request that he be sentenced in the second-degree range.
Defendant argues that he should have been considered for a downgraded sentence in the second-degree range, and that his sentence was otherwise excessive or unduly punitive. He cites N.J.S.A. 2C:44-1(f)(2), which allows for downgraded sentences where "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice" warrants it. He argues "the interests of justice require an expanded sentencing range for a juvenile who has been waived from the Family Part to the Criminal Part." In support, he cites psychological and neuroscience research documenting that juvenile offenders are less capable of mature judgment than adults, and therefore less culpable.
Simply put, there is no basis in the Code, or in existing constitutional precedent, to apply a different sentencing scheme to defendant because of his youth, and the fact that he was a juvenile when he committed the crimes for which he was convicted. The Legislature has authorized the prosecution of a juvenile in adult court upon motion of the prosecutor, and approval of the Family Part. N.J.S.A. 2A:4A-26. See also State ex rel. V.A., 212 N.J. 1, 9-12 (2012). The Code treats youthful adult offenders differently, by permitting imposition of indeterminate sentencing for certain crimes, although NERA crimes are among those not included. N.J.S.A. 2C:43-5; see generally. State v. Corriero, 357 N.J. Super. 214, 217 (App. Div. 2003). It is simply not for this court to depart from the Code's provisions on sentencing based on, as defendant suggests, an "interests of justice standard." Nor are we prepared, as an intermediate appellate court, to consider extending the principles of Miller, Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), which recognize inherent differences between juveniles and adults, see Miller, supra, 567 U.S. at ___, 132 S. Ct. at 2464, 183 L. Ed. 2d at 418; Graham, supra, 560 U.S. at 67-69, 130 S. Ct. at 2025-27, 176 L. Ed. 2d at 840-42; Roper, supra, 543 U.S. at 569-70, 125 U.S. at 1195, 161 L. Ed. 2d at 21-22, to require a distinctive sentencing range for waived-up juvenile offenders outside the express terms of the Code.
Applying existing sentencing standards, we are satisfied that Judge Ravin adequately explained how he arrived at the sentence imposed; he identified aggravating and mitigating factors which were supported by competent, credible evidence, and balanced those factors in a qualitative analysis. See State v. Case, 220 N.J. 49, 65 (2014). As the sentence does not "'shock the judicial conscience,'" we must affirm it. See ibid. (quoting State v. Roth, 95 N.J. 334, 365 (1984)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION