Opinion
DOCKET NO. A-4278-13T1
04-14-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KHALIF PADEN, a/k/a PADEN RAFEI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-02-0279. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on brief). PER CURIAM
Defendant Khalif Paden was tried before a jury and found guilty of seven of nine charges in an indictment, including first-degree carjacking and second-degree robbery. Defendant appeals from a judgment of conviction entered by the Law Division on September 10, 2012. For the following reasons, we affirm defendant's convictions and remand for entry of an amended judgment of conviction.
I.
Defendant was charged in Essex County Indictment No. 11-02-0279 with second-degree conspiracy to commit carjacking and robbery, N.J.S.A. 2C:5-2, 2C:15-2, 2C:15-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a handgun with the purpose to use it unlawfully against another, N.J.S.A. 2C:39-4(a) (count six); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count seven); fourth-degree credit card theft, N.J.S.A. 2C:21-6(c)(1) (count eight); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(4) (count nine).
Co-defendants Karoy Anthony and Quincy Hill were also charged in counts one through six of the indictment.
We discern the following facts from the evidence presented during defendant's trial. At 11:00 p.m. on October 17, 2010, Sawadogo Boukary drove a motor vehicle to a location in East Orange for the purpose of making a delivery of food. He parked the vehicle, turned off the engine, took the car keys, retrieved the food from the back seat, and walked toward the sidewalk. Three people approached Boukary from behind and told him not to move. Another individual approached Boukary from the front, pointed a pistol at him, and told Boukary to give him what he had. Boukary said he did not have anything, but the men behind him put their hands in his pockets and took three dollars, the car keys, and his wallet, which contained his license, bank card, and twelve dollars.
The man with the pistol hit Boukary in the face with the gun's handle. The men behind Boukary also hit him, and when he fell to the ground all of the men continued to hit him. The men left the scene in Boukary's vehicle. He only saw the face of the man who held the pistol. Boukary was treated at the hospital for various injuries, including a broken left eye socket.
On October 18, 2010, Roukiatou Ba worked as a cashier inside of a gas station in Newark. She was familiar with Boukary and was aware he had been the victim of a robbery the previous evening. Shortly before 10:00 a.m., a group of men approached the window of the station where Ba was working and attempted to purchase cigarettes from her. One of the individuals gave Ba a bank card which she noticed had Boukary's name and picture on it. She refused to accept the card and returned the card to the man who had given it to her, and the men walked away from the station.
Ba left the station and ran towards Newark Police Officer Jose A. Dannoys, Jr., who was parked in a marked patrol vehicle across the street. Ba told Dannoys that a man attempted to use a bank card that did not belong to him. Dannoys observed four males walking away from the station towards East Orange.
Dannoys called for back-up, advised the dispatcher of possible robbery suspects, and followed the four males in his patrol car. He observed defendant toss something from his right hand as he passed a local firehouse. When back-up officers arrived, Dannoys detained the four individuals, who identified themselves as Diego C. Hill, Raffei Paden, Vitimus Ellison, and K. Anthony. It was later determined that defendant provided the false name of Raffei Paden to Dannoys and the individual who identified himself as Diego Hill was actually Quincy Hill.
Dannoys walked around the area where he had observed defendant toss something to the ground. A firefighter sitting in front of the firehouse picked up a bank card and gave it to Dannoys, who determined it was Boukary's.
Defendant was arrested. The officers took the four men to the gas station. Defendant was in a patrol car, and the other men were in a second patrol car. Ba looked through the window of the gas station at the individuals seated in the patrol cars and identified defendant as the person who had attempted to use Boukary's card.
Ellison and Anthony were released at the gas station. Hill was arrested for providing a false name, and when he was searched Boukary's driver's license was found in his shoe.
On October 19, 2010, Boukary went to the police station with his cousin, Ouedroago Issa. Issa spoke French and Boukary needed Issa to translate English to French for him. Boukary and Issa met with East Orange Detective Tyrone Crawley for the purpose of reviewing a photo array. Crawley did not have any prior involvement in the investigation and did not know anything about the October 17, 2010 incident, the investigation of it, or the identity of any of the suspects.
With the assistance of Issa as an interpreter, Crawley read Boukary detailed instructions from a form regarding the manner in which the photo array would be conducted. After Crawley read the instructions, he and Boukary signed the form.
Crawley then separately showed Boukary six photographs beginning with photograph numbered one. Upon seeing photograph number four, Boukary said "that's it, that's it." Crawley continued separately showing Boukary the remaining photographs numbered five and six.
Upon completion of his review of the photographs, Boukary stated that photograph number four was "the person" whose face he had seen during the incident. Defendant was the person depicted in the photograph Boukary selected. Boukary signed and dated photograph number four and initialed and dated each of the remaining photographs. Boukary, with the assistance of Issa, then completed an East Orange Police Department Photographic Identification Form describing defendant's role in the robbery and carjacking.
The jury found defendant guilty of counts one, two, four, seven, eight, and nine. Defendant was convicted of the lesser included offense of second-degree robbery under count three because the jury found that he was not armed with, and did not use or threaten the immediate use of, a deadly weapon during the commission of the robbery. The jury found defendant not guilty of counts five and six.
At sentencing, the court merged count one with the first-degree carjacking charge on count two and sentenced defendant to a twenty-three year custodial term, with the requirement that he serve eighty-five percent of the sentence without eligibility for parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), and a five-year period of parole supervision upon defendant's release from incarceration. The court merged counts four, seven, and eight into the robbery charge on count three and imposed a nine-year custodial term, subject to defendant serving eighty-five percent of the sentence without eligibility for parole pursuant to NERA, and a three-year period of parole supervision after his release from incarceration. The court imposed a four-year custodial term on count nine.
The court ordered the sentences on counts three and nine to be served concurrently with the sentence imposed under count two, and the sentence on count two to be served consecutive to the sentences defendant was serving on unrelated charges under Essex County Indictment Nos. 10-06-0588 and 11-01-0179. A judgment of conviction was entered on September 10, 2012. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I:
WHERE IDENTIFICATION WAS THE SOLE ISSUE AT TRIAL, DEFENSE COUNSEL'S INEXPLICABLE FAILURE TO REQUEST A WADE HEARING CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL AND REQUIRES REVERSAL.
A. The Show-Up.
B. The Photo Array.
POINT II:
THE ROBBERY AND CARJACKING CONVICTIONS ARE PART OF THE SAME OFFENSE AND MUST MERGE.
POINT III:
DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO ADEQUATELY CONSIDER MITIGATING FACTORS AND DID NOT ADDRESS DISPARITY IN SENTENCES BETWEEN DEFENDANT AND HIS CO-DEFENDANTS. (Partially Raised Below).
A. The Court Failed To Consider Mitigating Factor 11.
B. The Court Did Not Address The Disparity Between Defendant['s] and Co-Defendants' Sentences.
POINT IV:
THE JUDGMENT OF CONVICTION INCORRECTLY INCLUDES A CONVICTION FOR FIRST DEGREE ROBBERY WHEN DEFENDANT WAS ACTUALLY CONVICTED OF SECOND DEGREE ROBBERY.
II.
On appeal, defendant does not challenge his convictions based upon any alleged insufficiency of evidence or errors made by the trial judge. Defendant argues instead that a reversal is required because his trial counsel was ineffective by failing to request a Wade hearing regarding the out-of-court identifications of defendant made by Boukary and Ba.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
To establish ineffective assistance of counsel, defendant must satisfy the two-part test established by Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must first show that his counsel's performance was deficient, i.e., that counsel's handling of the matter "fell below an objective standard of reasonableness," and that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the sixth amendment." Strickland, supra, 466 U.S. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that counsel's deficient performance "prejudiced the defense" and there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687, 694, 104 S. Ct. at 2064, 2068, 80 L. Ed. 2d at 693, 698. Both prongs must be established in order to obtain a reversal of the challenged conviction. Id. at 697, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699; State v. Nash, 212 N.J. 518, 542 (2013); Fritz, supra, 105 N.J. at 52. "The test is not whether defense counsel could have done better, but whether he [or she] met the constitutional threshold for effectiveness." Nash, supra, 212 N.J. at 543.
"Ineffective-assistance-of-counsel-claims are particularly suited for post-conviction review." State v. Preciose, 129 N.J. 451, 460 (1992). "Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." Ibid.; State v. Allah, 170 N.J. 269, 285 (2002).
Ordinarily, a "defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991); see also State v. McDonald, 211 N.J. 4, 30 (2012) (finding that a post-conviction relief "proceeding would be the appropriate forum to evaluate the strategy of defendant's trial counsel . . . and other issues requiring information that is not in the record before the Court"). However, where "the trial record discloses the facts essential" to an ineffective assistance of counsel claim, a "defendant should not be required to wait until post-conviction relief to raise the issue." Allah, supra, 170 N.J. at 285 (reviewing an ineffective assistance of counsel claim on direct appeal where trial counsel did not make a request for a dismissal on double jeopardy grounds based upon his misunderstanding of the law).
The admissibility of Boukary's and Ba's out-of-court identifications of defendant are governed by the standards established by the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), as adopted by our Supreme Court in State v. Madison, 109 N.J. 223 (1988). The Manson/Madison standard required a two step analysis:
The out-of-court identifications at issue here occurred prior to our Supreme Court's decision in State v. Henderson, 208 N.J. 208 (2011), which established a new framework for determining the admissibility of such identifications. The Court held that its decision applied prospectively. Id. at 302. --------
[A] court must first decide whether the procedure in question was in fact impermissibly suggestive. If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." In carrying out the second part of the analysis, the court will focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence.
[Madison, supra, 109 N.J. at 232 (quoting United States v. Simmons, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).]
In order to have obtained a hearing on the admissibility of the identifications, defendant was required to show "some evidence of impermissible suggestiveness." Henderson, supra, 208 N.J. at 238 (quoting State v. Rodriguez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994)). If the court determines at the hearing that the identification procedure "was in fact impermissibly suggestive," it must then consider the reliability factors. Ibid. (quoting Madison, supra, 109 N.J. at 232).
The reliability of an identification is based upon a consideration of five factors: (1) "the opportunity of the witness to view the criminal at the time of the crime"; (2) "the witness's degree of attention"; (3) "the accuracy of his [or her] prior description of the criminal"; (4) "the level of certainty demonstrated at the time of the confrontation"; and (5) "the time between the crime and the confrontation." Madison, supra, 109 N.J. at 239-40 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154). "Those factors are to be weighed against 'the corrupting effect of the suggestive identification itself.'" Henderson, supra, 208 N.J. at 238 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
"The State then 'has the burden of proving by clear and convincing evidence that the identification[] . . . had a source independent of the police-conducted identification procedures.'" Ibid. (alterations in original) (quoting Madison, supra, 109 N.J. at 245). "The totality of the circumstances must be considered in weighing the suggestive nature of the identification against the reliability of the identification." State v. Herrera, 187 N.J. 493, 503-04 (2006). The court must decide "whether there was sufficient reliability in the identification[] to overcome the suggestive nature and establish that there was not a substantial likelihood of irreparable misidentification." State v. Adams, 194 N.J. 186, 204 (2008).
Measured against the standards for determining the admissibility of Boukary's and Ba's out-of-court identifications of defendant, we are not convinced that the trial record permits a dispositive resolution of defendant's ineffective assistance of counsel claim. Although there was trial testimony regarding the circumstances under which the separate identifications of defendant were made, the record does not reveal the totality of the circumstances required to determine whether the identifications would have been admissible under the Manson/Madison standard if trial counsel had requested a Wade hearing. We are also without any information regarding the basis for trial counsel's decision not to request a hearing.
We therefore conclude that defendant's ineffective assistance of counsel claim is best left for a post-conviction relief petition. Our decision is without prejudice to defendant's right to bring a post-conviction relief petition and does not constitute an opinion on the merits of defendant's ineffective assistance of counsel claim.
III.
We next address defendant's claim that the court erred by failing to merge his conviction for second-degree robbery under count three into his conviction for first-degree carjacking under count two. "[M]erger implicates a defendant's substantive constitutional rights." State v. Cole, 120 N.J. 321, 326 (1990). It seeks to avoid multiple punishment for the same offense. State v. Miller, 108 N.J. 112, 116 (1987).
"If an accused has committed only one offense, he cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). "Not only does merger have sentencing ramifications, it also has a measurable impact on the criminal stigma that attaches to a convicted defendant." State v. Tate, 216 N.J. 300, 302-03 (2013) (quoting State v. Rodriguez, 97 N.J. 263, 271 (1984)). N.J.S.A. 2C:1-8(a) sets forth the "legislative parameters for merger of offenses," State v. Hill, 182 N.J. 532, 542 (2005) (quoting State v. Diaz, 144 N.J. 628, 637-38 (1996)), and provides, in relevant part:
a. Prosecution for multiple offenses; limitation on convictions. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection d. of this section;
. . . .
d. Conviction of included offense permitted. A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged . . . .
[N.J.S.A. 2C:1-8; Tate, supra, 216 N.J. at 307.]
The State argues the court correctly declined to merge defendant's robbery and carjacking convictions because robbery is not a lesser included offense of carjacking under N.J.S.A. 2C:1-8(a)(1) and (d)(1). The State relies upon State v. Drury, 190 N.J. 197, 208 (2007), where the Supreme Court considered whether the defendant's conviction for carjacking permitted the elevation of his second-degree sexual assault conviction to a first-degree aggravated sexual assault conviction under N.J.S.A. 2C:14-2(a)(3). N.J.S.A. 2C:14-2(a)(3) "elevates a second-degree sexual assault to a crime of the first degree if the perpetrator commits the assault during the commission or attempted commission" of certain enumerated offenses, including robbery. Id. at 210. The Court was therefore required to determine if the term "robbery" included the commission of a carjacking under N.J.S.A. 2C:15-2. Ibid.
The Court rejected the State's argument that "carjacking is simply a form of robbery" and concluded that "[a]lthough the first three subsections of [the robbery and carjacking] statutes are nearly identical, there are several important distinctions between the two statutes." Id. at 211. The Court noted that carjacking is always a first-degree offense and robbery is not; that the carjacking statue includes a subsection, N.J.S.A. 2C:15-2(a)(4), which "defines the offense in a manner different from robbery"; and that the language of the statutes and the pertinent legislative history reflected an intention to make carjacking a crime separate and distinct from robbery under N.J.S.A. 2C:14-2(a)(3). Id. at 211-16.
The Court in Drury limited its analysis to whether the Legislature's use of the term "robbery" in N.J.S.A. 2C:14- 2(a)(3) was intended to include carjacking. The Court did not consider whether a robbery conviction could be merged with carjacking under N.J.S.A. 2C:1-8(a)(1) and (d)(1), and its conclusion does not preclude merger in this case. See, e.g., State v. Robinson, 439 N.J. Super. 196, 200 (App. Div. 2014) (merging second-degree possession of a weapon for an unlawful purpose with second-degree burglary because the "defendant's sole unlawful purpose in possessing the weapon was to use it in the burglary"), certif. denied, 221 N.J. 492 (2015).
The State's reliance upon our decision in State v. Garretson, 313 N.J. Super. 348 (App. Div.), certif. denied, 156 N.J. 428 (1998), is also misplaced. In Garretson, our
analysis of the carjacking statute indicate[d] that it essentially covers offenses which could be categorized as robbery and theft from the person, albeit where a motor vehicle is involved. A comparison of those statutes evinces a statutory parallel in their language. The carjacking statute creates a new kind of robbery that is punishable more severely than robbery under N.J.S.A. 2C:15-1, with the specified added element in the carjacking statute of the taking of a motor vehicle under the circumstances specified in the statute.We concluded that "it is clear that [the carjacking statute,] N.J.S.A. 2C:15-2a(1) mirrors [the robbery statute,] N.J.S.A. 2C:15-1a(1) . . . envinc[ing] a clear legislative intent to elevate a second-degree robbery into a first-degree offense and provid[ing] enhanced punishment if the object of the robbery was to unlawfully take a motor vehicle." Id. at 356.
[Id. at 355.]
We also distinguished between offenses committed under N.J.S.A. 2C:15-2(a)(1) and those "under the conditions in either subsection (a)2 or a(4)" which require the "wrongful taking of the victim's automobile directly from the occupant," and concluded that robbery and theft are not lesser included offenses of carjacking "when the theft underlying the robbery was the undisputed wrongful taking of the victim's automobile directly from its occupant." Id. at 357-59. In Garretson, we found the court was not required to charge the lesser included offenses of robbery and theft "[b]ecause it was undisputed that a motor vehicle with an occupant was involved," there was no evidence supporting a conclusion to the contrary, and that therefore a "rational jury could not acquit [the] defendant of carjacking and convict of robbery or theft." Id. at 359.
There is no evidence upon which a rational factfinder could conclude that Boukary was the occupant of his vehicle at the time of the robbery and carjacking. As a result, our holding in Garretson is not directly applicable here. We are, however, convinced that our rationale in Garretson requires the conclusion that because the elements of N.J.S.A. 2C:15-1(a)(1) and N.J.S.A. 2C:15-2(a)(1) "mirror" each other, id. at 356, defendant's carjacking conviction was based upon the same evidence supporting his conviction for robbery.
Here, defendant was charged with carjacking under subsection (a)(1) of N.J.S.A. 2:15-2. The evidence showed that defendant committed the theft of a motor vehicle by using force and inflicting bodily injury upon Boukary, and therefore the same evidence established the commission of the robbery under N.J.S.A. 2C:15-1(a)(1) and carjacking under N.J.S.A. 2C:15-2(a)(1). Under those circumstances, the court erred by failing to merge defendant's robbery conviction into his conviction for carjacking. N.J.S.A. 2C:1-8(a)(1) and (d)(1).
The State argues merger is inappropriate because defendant's commission of the robbery was not limited to the theft of Boukary's motor vehicle but instead also included the theft of Boukary's wallet, license, bank card, and cash. The standard for merger of offenses set forth in N.J.S.A. 2C:1-8, which "provid[es] that offenses are different when each requires proof of facts not required to establish the other," has been deemed "mechanical," and therefore the more flexible standard established in Davis, supra, 68 N.J. at 77, is the governing standard. Tate, supra, 216 N.J. at 307 (quoting Hill, supra, 182 N.J. at 542).
Under the flexible approach established in Davis, the court must consider
the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.The flexible approach requires the court "to focus on the 'elements of the crimes and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" Id. at 306 (quoting Hill, supra, 182 N.J. at 542).
[Ibid. (quoting Davis, supra, 68 N.J. at 81).]
We are satisfied that application of the flexible approach here requires merger of defendant's robbery and carjacking convictions. Defendant's theft by force of the automobile and other property, and infliction of bodily injury to Boukary took place during a single criminal episode at the same place and time. Defendant's robbery of Boukary's wallet and cash was the product of the same criminal intent and the same use of force and infliction of bodily injury as that which resulted in the robbery of the motor vehicle and carjacking. Based upon the trial evidence, we do not discern any "clear statutory differences illustrating legislative intent to fractionalize [defendant's] course of conduct," Tate, supra, 216 N.J. at 312 (citing Miller, supra, 108 N.J. at 120-21), and conclude the court erred by failing to merge defendant's robbery and carjacking convictions.
IV.
Defendant also argues that his sentence is excessive because the court did not consider mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), and because of the disparity in his sentence and the sentences of his co-defendants. We disagree.
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 (2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)), and may "not substitute [our] judgment for the judgment of the sentencing court." Lawless, supra, 214 N.J. at 606. We must affirm a sentence
unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
We discern no abuse of discretion in the trial court's imposition of defendant's sentence. The court followed the statutory guidelines and its findings of aggravating and mitigating factors under N.J.S.A. 2C:44-1 are supported by credible evidence in the record. Moreover, the sentence imposed does not shock our judicial conscience.
We reject defendant's contention that the court erred in failing to find mitigating factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11). The pre-sentence investigation report reflected that defendant had two young children, but there was no evidence that defendant's incarceration would result in any hardship to his dependents beyond the hardship commonly associated with the incarceration of a defendant. See State v. Dalziel, 182 N.J. 494, 505 (2005) (rejecting the application of mitigating factor eleven because the defendant "offered no evidence to show that the length of his sentence would be an 'excessive hardship' on him" or his family).
We also reject defendant's assertion that his sentence is excessive because of the disparity between his sentence and the sentences of his co-defendants. "[U]niformity [is] one of the major sentencing goals in the administration of criminal justice." State v. Roach, 146 N.J. 208, 231, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). Although "equally culpable perpetrators" should not receive disparate sentences, "[a] sentence of one defendant not otherwise excessive is not erroneous merely because a co-defendant's sentence is lighter." Id. at 232-33 (alteration in original) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)).
Defendant compares his sentence to his co-defendants, Hill and Anthony. Hill pled guilty to third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h), and was sentenced to a two-year probationary term. Anthony pled guilty to a disorderly person's offense, and was sentenced to time served. Because Hill and Anthony were convicted of different and substantially less serious offenses than defendant, they were not "equally culpable perpetrators" and there was no impermissible disparity in the sentences imposed. Id. at 232.
We agree with defendant's contention that the judgment of conviction inaccurately reflects that he was convicted of first-degree robbery under count three. The jury found that defendant was not armed with, and did not use or threaten to use, a deadly weapon during the commission of the robbery. As a result, defendant was found guilty of second-degree robbery under count three, N.J.S.A. 2C:15-1(b), but the judgment of conviction incorrectly indicates a first-degree conviction.
Defendant's conviction and sentence are affirmed. We remand to the trial court for entry of an amended judgment of conviction merging count three into count two, and identifying defendant's conviction for robbery on count three as a second-degree offense. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION