Opinion
DOCKET NO. A-5865-12T3
08-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAWORSKI SNEED, a/k/a JAWORSKI SNEET, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Rothstadt, and Currier. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-10-1910. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the briefs). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Jaworski Sneed appeals from a judgment of conviction and sentence entered after a jury found him guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The charges arose from the fatal shooting of a store clerk on Christmas Eve 2010. After the jury returned its verdict, the court sentenced defendant — who was seventeen years old at the time of the crimes — to an aggregate term of life imprisonment.
Following a hearing in the Family Part, the court granted the State's motion to transfer jurisdiction to the Law Division. N.J.S.A. 2A:4A-26, repealed by L. 2015, c. 89, § 6 (effective Mar. 1, 2016).
On appeal, defendant raises the following contentions for our consideration:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF PASSION/PROVOCATION MANSLAUGHTER. (Not Raised Below).
POINT II
THE STATE ENGAGED IN PROSECUTORIAL MISCONDUCT BY REPEATEDLY CURRYING SYMPATHY FOR [THE VICTIM]. (Not Raised Below).
POINT III
THE JURY INSTRUCTIONS PERTAINING TO IDEN[T]IFICATION WERE INCOMPLETE AND INHERENTLY FLAWED. (Not Raised Below).
POINT IV
THE CASE SHOULD BE REMANDED FOR RESENTENCING.
(A) THE MATTER MUST BE REMANDED FOR CLARIFICATION AND CONSIDERATION OF THE PERIOD OF PAROLE INELIGIBILITY THE [TRIAL] COURT INTENDED TO IMPOSE.
(B) THE TERM OF LIFE IMPRISONMENT, IMPOSED AGAINST [DEFENDANT] FOR A CRIME HE ALLEGEDLY COMMITTED AS A JUVENILE, CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT.
We have considered these arguments in light of our review of the record and applicable legal principles. We affirm the conviction, but reverse and remand for resentencing.
We discern the following facts from the trial record. At approximately 9:30 p.m. on December 24, 2010, the victim's daughter, S.L., was inside her first-floor apartment — where she lived with her mother and her stepfather, R.H. — when she "heard some tussling and arguing" outside. After opening her bedroom window, she observed three young men arguing in the street between her apartment and the corner store where her father worked. S.L. saw her father in his work smock approach the men and appear to start speaking with them. She then watched with an unobstructed view of the well-lit street as one of the men punched her father, knocking him to the curb, where he was lying when he was fatally shot in the back by one of the other men. The three men immediately fled the scene.
The victim lived in an apartment on the second floor.
Following the shooting, S.L. ran into the apartment's living room and informed her mother that her father had been shot, then ran outside and told police that she knew who shot her father. She stated that the shooter was the boyfriend of J.Y., her third-floor neighbor and friend, and later identified him at the police station and in court as defendant. According to S.L., she had previously seen defendant on about fifteen separate occasions in recent months, including "around the [apartment] building" and at his family's residence "down the street." She testified that defendant was wearing a black "bubble jacket" over "a white and blue stripe[d] hoodie" when he shot her father, and that she was "one hundred percent" certain defendant was the shooter.
S.L. also identified the man who punched her father as W.T., defendant's uncle, and the third man as J.N., defendant's cousin.
At around the same time that night, R.H. left his apartment and was walking across the street to the corner store when he stopped to talk to a friend and saw a group of men yelling nearby. He recognized one of the men, who twice screamed, "you don't want it," which R.H. thought was "a cry for help" and prompted him to proceed on his way. As he pushed open the door to the store, he noticed a glare "out of the corner of [his] eye," turned, and observed another man — whom he subsequently identified at the police station and at trial as defendant — "pulling a [nickel-plated] gun" from his waistband. R.H. then entered the store, grabbed an item from the third aisle, and placed it on the counter to pay, at which time he "heard [a] gunshot" outside and "s[aw] the fire from the gun" through the window. After exiting the store, he observed that the victim had suffered a gunshot wound and was lying next to the curb surrounded by several individuals tending to him, that the victim's daughter was close by, and that defendant was no longer there.
R.H. recalled that he had seen defendant "[t]wo or three times" before, most recently in the apartment building earlier that day. According to R.H., when he spotted the gun, defendant was "[a]bout three feet" away and was dressed in "a blue and white stripe[d] hood[ie]" under a black jacket. Although in his statement to law enforcement he said that defendant was wearing a mask, R.H. testified that he was able to see defendant's face and that he had no doubt defendant was the gunman.
Another witness, W.P., Jr., was speaking on his cell phone en route to the corner store when he encountered a few men who appeared "upset about something" as they exited the establishment. W.P. testified that he believed the men thought he was "confront[ing] them" and that he told them he was talking to someone on the phone. He recalled that outside the store, one of the men, who had on a "turquoise color[ed] hoodie" and a jacket, began yelling and swinging at him while the other man, who had on a "burgundy" baseball cap, attempted to intercede. At the same time, another man — whom W.P. described as having "long dreadlocks" and wearing a "light colored" hoodie with "some stripes" — approached with a gun in his hand and "chambered [a] round" as he drew near. Although the gunman's dreadlocks "cover[ed] his face" and the hoodie was tied tightly "up to [about] his nose," W.P. "s[aw] his eyes and his nose" and estimated him to be approximately twenty years old. W.P. eventually continued on his way, "heard [a] shot" as he walked into the store, and called 9-1-1 once he was inside.
J.Y. testified that defendant, his father, and others were at her apartment earlier in the evening, and that she "heard [a] gunshot . . . [a]t least 30 minutes" after they left. She also testified that defendant had dreadlocks that night. After she heard the shot, she ran to the apartment's kitchen window and observed the victim "l[ying] in front of the store," then ran to her bedroom window and could hear S.L. twice say, "[J.Y.]'s boyfriend did it."
After considering the evidence, the jury returned its guilty verdict, and the court sentenced defendant. This appeal followed.
Defendant's arguments challenging his conviction are raised for the first time on appeal and are therefore subject to review for plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2. "Under that standard, we disregard any alleged error 'unless it is of such a nature as to have been clearly capable of producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). A conviction will be reversed under this standard only if the error is "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Daniels, 182 N.J. 80, 95 (2004) (alteration in original) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "The mere possibility of an unjust result is not enough." Funderburg, supra, 225 N.J. at 79.
Applying this standard, we turn first to defendant's contention that the trial court erred by not charging the jury with the law on passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), as a lesser-included offense of murder. He argues that the "choppy" footage of the shooting from the surveillance video admitted into evidence could lead "a reasonable jury" to find that the shooter discharged his firearm to defend the other men, "albeit 'imperfectly' — i.e., by using an amount of force disproportionate to the force or threat of force exhibited by" the victim. Defendant asserts that the victim's "sudden interjection into the altercation" could reasonably be perceived as "aggressive or threatening," and that the three men "extend[ing] their arms straight out towards one another" could reasonably be construed as "mutual combat." We find these claims to be without merit.
Defendant did not request the charge at trial, nor did he object to its omission from the court's jury instructions. "The appropriate time to object to a jury charge is 'before the jury retires to consider its verdict.'" Funderburg, supra, 225 N.J. at 79 (quoting R. 1:7-2). "Pursuant to Rule 1:7-2, a defendant is required to challenge instructions at the time of trial or else waives the right to contest the instructions on appeal. 'Where there is a failure to object, it may be presumed that the instructions were adequate.'" State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) (citation omitted) (quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003)), certif. denied, 205 N.J. 81 (2011). However, because "[a]ppropriate and proper charges to a jury are essential for a fair trial," State v. Daniels, 224 N.J. 168, 180 (2016), and "are especially critical . . . in criminal matters, improper instructions on material issues are presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004).
A trial judge "has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Ibid. On the other hand, the judge "has no duty to instruct the jury sua sponte on an included offense charge if the evidence does not clearly indicate or warrant such a charge." State v. Rivera, 205 N.J. 472, 489 (2011) (quoting State v. Thomas, 187 N.J. 119, 132 (2006)). "[A] trial court does 'not . . . have the obligation on its own meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences might rationally sustain a [lesser-included] charge.'" Funderburg, supra, 225 N.J. at 70 (second alteration in original) (quoting State v. Choice, 98 N.J. 295, 299 (1985)).
"[T]he charging of lesser-included offenses[ is] governed by statute. N.J.S.A. 2C:1-8 provides that a trial court 'shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.'" Id. at 81 (quoting N.J.S.A. 2C:1- 8(e)). "Thus, 'to justify a lesser-included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense.'" Ibid. (quoting State v. Savage, 172 N.J. 374, 396 (2002)).
Passion/provocation manslaughter is a lesser-included offense of murder, and "is comprised of four elements: '[1] the provocation must be adequate; [2] the defendant must not have had time to cool off between the provocation and the slaying; [3] the provocation must have actually impassioned the defendant; and [4] the defendant must not have actually cooled off before the slaying.'" Id. at 80 (alterations in original) (quoting State v. Mauricio, 117 N.J. 402, 411 (1980)).
Evidence of passion/provocation manslaughter is measured by a "purely objective" standard. State v. Foglia, 415 N.J. Super. 106, 126 (App. Div.) (quoting Mauricio, supra, 117 N.J. at 412), certif. denied, 205 N.J. 15 (2010). The provocation must be "sufficient[] to 'arouse the passions of an ordinary man beyond the power of his control.'" Funderburg, supra, 225 N.J. at 80 (quoting State v. King, 37 N.J. 285, 301-02 (1962)). Adequate provocation is not established by "words alone" or "a bump and an insult," Mauricio, supra, 117 N.J. at 413-14, or by minor physical force. State v. Oglesby, 122 N.J. 522, 536 (1991) (finding "a single blow by an unarmed woman" was inadequate provocation). Even in instances of "mutual combat," the contest "'must have been waged on equal terms and no unfair advantage taken of the deceased,' unlike a setting in which the defendant uses a deadly weapon against an unarmed victim." State v. Galicia, 210 N.J. 364, 380 (2012) (quoting State v. Crisantos, 102 N.J. 265, 274 (1986)). In deciding whether an instruction on passion/provocation manslaughter is warranted, the judge should view the evidence "in the light most favorable to the defendant," and should withhold the charge only when "no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person." Mauricio, supra, 117 N.J. at 412.
We fail to see any basis in the trial record that would indicate a reasonable person could have been provoked to murder under the circumstances here. The record is devoid of any evidence that the victim employed words or force to provoke defendant, or that a dispute led to the shooting. More significantly, there is no evidence that the victim concealed or wielded a weapon. Consequently, even if the altercation was an instance of mutual combat, defendant alone was armed and took unfair advantage of his victim. Therefore, there was no error in failing to charge the jury on passion/provocation manslaughter.
Imperfect self-defense is not a recognized defense, but is described as "an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable." State v. Bowens, 108 N.J. 622, 628 (1987); see also State v. Bass, 224 N.J. 285, 309 n.6 (2016).
We next address — and reject — defendant's argument that the State engaged in misconduct during its opening and closing statements by repeatedly "appeal[ing] to the jury's sympathies for the victim," referring to him as a peacemaker during Christmas.
In her opening statement, the prosecutor began by stating, "Christmas Eve is a time of love, togetherness and peace. Being a peacemaker is what led to the murder of the victim . . . by this defendant . . . ." She went on to describe the events leading up to the murder, and posited that the victim "tried to help resolve the dispute" and "never knew that he wouldn't make it back to his family and loved ones that evening." After detailing the evidence that the State intended to present to show that defendant was "responsible for this horrible and senseless act," the prosecutor concluded by saying, "I submit to you that if you consider all of the facts and evidence in this case, you will find the defendant . . . guilty of murdering . . . an innocent victim, a peacemaker."
In his summation, another prosecutor described the crime as "an innocent man working on Christmas Eve [being] gunned down in front of his daughter. That is horrific. That is mind boggling." He asserted that the victim was punched while attempting "to break up a fight" on Christmas Eve and "[t]rying to be peace [sic], trying to live to the tenets of the holiday." He went on to suggest that defendant then "took . . . a mind boggling step" that was "hard to grasp" — shooting [the victim] in the back as he "struggl[ed] to get up." The prosecutor proceeded to replay the surveillance video, during which he reiterated that the victim was attempting to break up a fight on Christmas Eve and would never "get home[, a]t least not to his family." In narrating the video, the prosecutor stated that defendant shot the victim and fled the scene with his cohorts, "leav[ing the victim] to die" as he was "[s]truggling" for his "last breaths."
Defendant avers that these remarks improperly "generat[ed] an inexorable focus" on the victim's "purported attempts to serve as a 'peacemaker.'" Such "pervasive prosecutorial misconduct," defendant claims, deprived him of a fair trial and requires reversal. In support of this position, he likens the State's comments to those warranting reversal in State v. W.L., 292 N.J. Super. 100, 110-11 (App. Div. 1996), and State v. Lockett, 249 N.J. Super. 428, 431 (App. Div.), certif. denied, 127 N.J. 553 (1991).
Noting that the video showed the victim "interject[ing] himself into the brawl," defendant asserts that the prosecutor's remarks portraying him as a peacemaker constituted "unreasonable inferences drawn from the evidence adduced at trial."
Prosecutorial misconduct is not grounds for reversal unless it was "clearly and unmistakably improper" and was "so egregious that it deprived the defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Smith, 167 N.J. 158, 181-82 (2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). In determining whether a prosecutor exceeded these bounds, we must "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Because defendant did not object to any of the prosecutors' opening and closing remarks, the remarks generally "will not be deemed prejudicial." Id. at 576. "The failure to make a timely objection not only indicates the defense did not believe the remarks were prejudicial at the time they were made, but also deprives the judge of the opportunity to take the appropriate curative action." State v. Murray, 338 N.J. Super. 80, 87-88 (App. Div.), certif. denied, 169 N.J. 608 (2001).
"Prosecutors 'are afforded considerable leeway in making opening statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009) (quoting State v. Williams, 113 N.J. 393, 447 (1988)). "A prosecutor's opening statement 'should provide an outline or roadmap of the State's case' and 'should be limited to a general recital of what the State expects, in good faith, to prove by competent evidence.'" State v. Land, 4 35 N.J. Super. 249, 269 (App. Div. 2014) (emphasis removed) (quoting State v. Walden, 370 N.J. Super. 549, 558 (App. Div.), certif. denied, 182 N.J. 148 (2004)). While "prosecutors are expected to make vigorous and forceful closing arguments," Morais, supra, 359 N.J. Super. at 130, "they must confine their comments to evidence revealed during the trial and reasonable inferences to be drawn from that evidence." Smith, supra, 167 N.J. at 178.
"[W]here a victim's character has no bearing on the determination of [the] defendant's guilt, a prosecutor 'may not comment on the evidence in a manner that serves only to highlight the victim's virtues in order to inflame the jury.'" State v. Jang, 359 N.J. Super. 85, 97 (App. Div.) (quoting Williams, supra, 113 N.J. at 448-52), certif. denied, 177 N.J. 492 (2003). Indeed, prosecutors are prohibited from making "'inflammatory and highly emotional' appeals which have the capacity to defer the jury from a fair consideration of the evidence of guilt." W.L., supra, 292 N.J. Super. at 111 (quoting State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)).
Here, the complained-of remarks were not "so egregious" as to deprive defendant of a fair trial. See Wakefield, supra, 190 N.J. at 438. The prosecutors' comments cannot be viewed as rising to the level of the seriously prejudicial and inflammatory comments that were the subject of W.L. and Lockett. The prosecutors in this case did not fabricate evidence, or accuse defense counsel of chicanery. To the extent that defendant claims the prosecutor's narration of the video during summation caused an unjust result, defendant's position lacks merit, as the prosecutor's remarks constitute legitimate inferences drawn from the testimony adduced at trial. Furthermore, at the outset of the trial, the judge instructed the jury that comments during opening statements and summations are "not evidence," and, before summations, reiterated that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence." Given the considerable leeway afforded prosecutors in making opening statements and summations, and the judge's repeated instruction to the jury that the attorneys' remarks were not evidence, the unobjected-to comments do not provide grounds for reversal. See Echols, supra, 199 N.J. at 361.
Both W.L. and Lockett involved egregious examples of prosecutorial misconduct. Suffice it to say, the type of cumulative error that occurred in those cases that supported a reversal of those defendants' convictions did not occur here.
We next consider defendant's contention that the trial judge's jury instructions on identification "were incomplete and inherently flawed" and consequently denied him a fair trial.
At trial, the judge provided the standard jury instruction for in-court and out-of-court identifications almost verbatim. See Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2012). In doing so, the judge identified the following factors for the jury to consider when determining whether the identification testimony was sufficiently reliable: (1) the witness's opportunity to view and degree of attention; (2) prior description of the perpetrator; (3) confidence and accuracy; and (4) time elapsed. With respect to the first factor, the judge further instructed the jury concerning the effects that stress, duration, weapon focus, distance, and lighting may have on the reliability of an identification. When reading the standard instruction regarding prior descriptions of the perpetrator, the judge misspoke by using the word "irrelevant" rather than "relevant." He stated:
Facts that may be irrelevant to this factor include the prior description matched the photo or person picked out later, whether the prior description provided details or was just general in nature. And whether the witness's testimony on trial was consistent with, or different from, her prior description of the perpetrator.
[(emphasis added).]
The judge also instructed the jury with respect to the circumstances under which the out-of-court identification was made, and read the standard language regarding showups and instructions given to the witness prior to the out-of-court identification.
Throughout the judge's instruction, he referenced S.L. by name twice. First, where the standard instruction provides for a reference to the State's identification witness, the judge referenced S.L.'s testimony identifying the defendant in court as the person who committed the murder, and her testimony that her prior identification of defendant "was based upon her observations and perceptions that she made of the perpetrator at the time the offense was being committed." Later, when detailing the "confidence and accuracy" factor, the judge inserted S.L.'s name where the model instruction provides for reference to the witness by name.
Defendant asserts that the identification instructions were flawed because the judge referenced only S.L.'s identification despite the State's additional reliance on the identification testimony of R.H., the judge failed to recite the model identification charge regarding disguises in light of R.H.'s testimony that he told police the man he saw with a gun was wearing a mask, and the judge's instruction was inconsistent and confusing.
Generally, "a model identification charge should be given in every case in which identification is a legitimate issue," State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003), which requires instruction "about the various factors that may affect the reliability of an identification[.]" State v. Henderson, 208 N.J. 208, 296 (2011). Whether a defect in those instructions constitutes "plain error depends on the strength and quality of the State's corroborative evidence." State v. Cotto, 182 N.J. 316, 326 (2005). When such evidence is overwhelming, the failure to give an identification instruction does not constitute reversible error. Id. at 327.
Where, as here, the error alleged concerns only a portion of a charge, the challenged portion is not to be "dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Koskovich, 168 N.J. 448, 583 (2001) (quoting Marshall, supra, 123 N.J. at 135). "The standard for assessing the soundness of a jury instruction is 'how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole.'" State v. Kornberger, 419 N.J. Super. 295, 300-01 (App. Div.) (alteration in original) (quoting Savage, supra, 172 N.J. at 387), certif. denied, 208 N.J. 368 (2011).
Mindful of these standards, we find no merit to defendant's arguments. In not referencing R.H. in its identification charge the court did not, as defendant claims, "signal to the jury that R.H.'s testimony need not be strictly scrutinized." The court's instruction, which matched the model instruction almost verbatim, made clear that the jury was to determine the reliability of eyewitness testimony, and detailed the factors affecting reliability to be considered in that determination. Nothing suggested that its instruction applied only to the eyewitness referenced by the court and, in fact, the court mentioned S.L. specifically just twice in the entire instruction. Taking the instruction as a whole, the jury was able to understand that the court's identification instruction applied to each eyewitness's testimony, not only the one mentioned by the court. Moreover, to the extent that the court's failure to reference R.H. may have been an error, this inured to defendant's benefit, as the court did not bring to the jury's attention another witness who positively identified defendant as the gunman.
Defendant's argument concerning the omission of the portion of the model jury instruction regarding disguises as a factor affecting the reliability of an identification is similarly unavailing, and we conclude that any error in the court's instruction was not plain error. While R.H. initially told police that the gunman was wearing a mask, at trial he testified that he was able to see defendant's face and that he did not recall telling the police otherwise. This was a matter of R.H.'s credibility for the jury to resolve. Additionally, R.H.'s identifications of defendant were bolstered by his description — both in court and to police — of what defendant was wearing, which was confirmed by the testimony of two other witnesses. Finally, the court instructed the jury both that a witness's ability to see the perpetrator may affect the reliability of the witness's identification, and that the jurors should consider any other factor they deemed relevant to the reliability determination. That a disguise or mask may affect a witness's ability to make an accurate identification is not so technical or difficult a concept that jurors would not grasp it without specific prompting by the court.
We also disagree with defendant's argument that the court's error in using the word "irrelevant" was "internally inconsistent and manifestly confusing." It is clear from the context of the specific language and the instruction as a whole that the court obviously misspoke but its error did not mislead the jury. Our view is supported by the fact that defendant never brought the error to the court's attention and, in any event, did not result in an injustice to defendant.
Turning to defendant's challenges to his sentence, he argues that the court erred in finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of recidivism), and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence), and that because he was never adjudicated delinquent and "the record is bereft of any substantive discussion" connecting his juvenile history to his future conduct, his "sentence [sh]ould have been substantially reduced."
At his sentencing, defendant contended in mitigation that he was a juvenile at the time of the murder, had never been adjudicated delinquent, and was provoked to shoot the victim. Defendant also argued for mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13) (youthful defendant influenced by mature person), asserting that "he was in the company of other individuals [who] were older."
The record states defendant sought mitigating factor twelve, but counsel's statement — that "the conduct of the defendant was influenced by a person more mature than the defendant" — clarifies that he sought mitigating factor thirteen. --------
After hearing the parties' arguments, the judge explained that the imposition of an appropriate sentence required consideration of "all relevant circumstances and factors," as well as a "qualitative analysis" of applicable aggravating and mitigating factors. He then announced that he found aggravating factors three and nine, and stated:
The present offense represents defendant's first and only indictable conviction. As a juvenile, [defendant] had four petitions filed against him but was never adjudicated a delinquent. The defendant is now 20 years of age. He committed the current offense as a juvenile, at the age of 17, which precipitated his waiver from the Juvenile Court . . . .
As to mitigating factors, the Court finds none. The harshness of the killing and the means by which it was accomplished is the paramount consideration in this case.
The judge then imposed a sentence of life imprisonment, the maximum term allowed by statute, see N.J.S.A. 2C:11-3(b)(1), subject to a period of parole ineligibility of sixty-three and three-quarters years pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Our review of a trial court's sentencing determination is deferential. State v. Fuentes, 217 N.J. 57, 70 (2014). We "must not substitute [our] judgment for that of the sentencing court," ibid., but instead "exercise a vigorous and close review for [a clear] abuse[] of discretion." State v. Lawless, 214 N.J. 594, 606 (2013) (quoting State v. Natale, 184 N.J. 458, 489 (2005)); see also State v. Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial court's sentence unless: "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found . . . were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines . . . makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Fuentes, supra, 217 N.J. at 70 (quoting Roth, supra, 95 N.J. at 364-65).
"Our sentencing statute contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002). "Proper sentencing thus requires an explicit and full statement of aggravating and mitigating factors and how they are weighed and balanced." State v. McFarlane, 224 N.J. 458, 466 (2016) (quoting State v. Randolph, 210 N.J. 330, 348 (2012)); see also R. 3:21-4(g). "Without such a statement, appellate review becomes difficult, if not futile." State v. Kruse, 105 N.J. 354, 360 (1987); see also State v. Case, 220 N.J. 49, 66 (2014). Accordingly, when we review a trial court's determination of aggravating and mitigating factors, we will remand for resentencing if the "court fails to provide a qualitative analysis of the relevant sentencing factors on the record." Fuentes, supra, 217 N.J. at 70 (emphasis added).
We conclude that the trial court's brief and conclusory explanation of the sentence was an inadequate analysis of the sentencing factors that prevents proper appellate review. Not only did the court fail to acknowledge, let alone address, the mitigating factors argued for by defendant, but its finding of aggravating factors three and nine could be explained only by its subsequent recitation of defendant's juvenile record, which consisted of no delinquency adjudications. This is insufficient. See State v. Blackmon, 202 N.J. 283, 297 (2010) ("[M]itigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record."); State v. Thomas, 188 N.J. 137, 153 (2006) (recognizing that a court's findings assessing aggravating factors three and nine "relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history"). Finally, the court's lone statement as to the weight assigned to its considerations and the balancing of the sentencing factors — that its "paramount consideration" was "[t]he harshness of the killing and the means by which it was accomplished" — alludes to aggravating factor one, which the court neither found nor even mentioned. See N.J.S.A. 2C:44-1(a)(1) (considering "[t]he nature and 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").
As the court failed to provide a qualitative analysis of the relevant sentencing factors, we remand for resentencing. We intimate no view as to the appropriate sentence that should be imposed on remand. However, based on defendant's age when he committed his crime, the trial court must insure that his sentence does not amount to a life sentence without parole, even if a period of parole ineligibility is imposed. In determining the appropriate period of parole ineligibility, the court should consider defendant's life expectancy as of the date of his resentencing. See State v. Zuber, 442 N.J. Super. 611, 627-32 (App. Div. 2015), certif. granted, 224 N.J. 245 (2016). In order to avoid constitutional infirmity, the court's goal must be to insure defendant receives "a meaningful and realistic opportunity for release during the life expectancy of a person of defendant's age living in the United States." Id. at 627.
Affirmed in part, reversed in part, and remanded for resentencing. 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