Opinion
DOCKET NO. A-4971-13T4
03-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DUSTIN A. WILBORN, a/k/a SOLOMON COOK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-03-0949. Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Dustin Wilborn appeals from a final judgment of conviction entered March 11, 2014. Having considered defendant's contentions in light of the record and applicable law, we affirm the conviction, but remand the matter for re-sentencing.
On March 21, 2013, a Camden County Grand Jury charged defendant and co-defendant Solomon Wilborn (Solomon) with: first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five); and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(a)(1) (count six).
On October 29, 2013, defendant's jury trial commenced. The jury returned its verdict on November 13, 2013. Defendant was found: not guilty of first-degree robbery (count one), but guilty of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1(a)(1); not guilty of third-degree aggravated assault with a deadly weapon (count two), but guilty of the lesser-included offense of fourth-degree reckless aggravated assault, N.J.S.A. 2C:12-1(b)(3); guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count three); and guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 (count six). Defendant was found not guilty of counts four and five.
Defendant and Solomon were tried together on counts one through six of the indictment.
On February 14, 2014, the judge denied defendant's motion for a judgment notwithstanding the verdict and/or a new trial. See R. 3:18-2; R. 3:20-1. A sentencing hearing was held on March 7, 2014. The judge imposed an eight-year sentence with an eighty-five percent parole ineligibility on count one, a concurrent one-year term on count two, and a consecutive four-year term on count three; count six was merged with count one. Defendant was also ordered to pay all applicable penalties and fees, and provide a DNA sample. Defendant filed a notice of appeal on or about June 19, 2014, and a motion to file the notice of appeal as within time, which was granted on July 3, 2014.
We derive the following from the testimonial record. On October 5, 2011, at approximately 11:30 p.m., Kierre Duhart was riding his bicycle on Chews Landing Road with headphones on. Duhart heard a voice while riding, which prompted him to turn and "look[] back[.]" As he turned, he was knocked from his bicycle by someone who came from his left side and punched him with a fist. Duhart was then pulled into a nearby alley by a second individual, and a third individual joined the first two. While in the alley, the three assailants, who were unknown to Duhart, repeatedly struck him about his head, face, and stomach. Duhart was also hit in the back of the head with a silver "cowboy gun" during the assault, which lasted about "five or ten minutes[.]"
Following the assault, the three individuals took Duhart's iPod, headphones, hat, shoes, a "baby [diaper] bag" that contained candy, and two five-dollar bills. Duhart was then directed by his assailants to crawl to his bicycle, which was still in the middle of the street. The three assailants fled on foot. As Duhart crawled, he saw the police approaching in a car and rose from the ground and informed Lindenwold Police Officer Efrain Rivera that he had been "robbed" and "jumped[.]"
Duhart directed Rivera to a nearby vehicle and said, "there's the vehicle, . . . there they are[.]" Rivera noted that Duhart was "very excited[,]" and had a swollen lip with "blood coming from his mouth." Rivera approached the vehicle, a black Honda Civic, and observed an individual later determined to be Solomon crouching down on the passenger side facing away from Rivera. Solomon fled into a wooded area, and Rivera pursued in his police car. After losing sight of Solomon, Rivera radioed central communication to set up a perimeter and returned to the area of the incident to tend to Duhart.
Upon his return, Rivera noticed a silver gun on the ground approximately two to three feet from the rear of Honda Civic, near the area where Solomon was crouched. Rivera then observed an individual, later identified as defendant, in the backseat of the vehicle. When Duhart realized that someone was in the vehicle, he ran over, opened the passenger rear door, and attempted to physically engage defendant. Rivera intervened and engaged in a "struggle" with Duhart.
At some point during the struggle, defendant exited the vehicle and fled on foot. Defendant was subsequently apprehended by another police officer who responded to the scene. Upon his arrest, defendant was searched and found to be in possession of a cellular phone, a lighter, and two five-dollar bills. Duhart's sneakers and diaper bag were recovered from the backseat of the vehicle.
Lieutenant Michael Cavallaro also responded to the scene and assisted in setting up the perimeter to locate the other suspects. Cavallaro was patrolling Chews Landing Road when he was informed by a citizen that "there was a black male with a white T-shirt who was walking away from the area that they thought for some reason . . . may have had some involvement in the crime." As he continued patrolling, Cavallaro noticed a male walking away from him who matched the description provided by the citizen. Cavallaro ordered the individual, later identified as Solomon, to stop walking and come to his police car. Solomon complied and was placed under arrest. Cavallaro observed that defendant was "sweating profusely" and "shaking a lot[.]"
The third suspect, R.T., a juvenile, was located by police in the backyard of a nearby residence. The police recovered the keys to the Honda Civic (owned by R.T.'s girlfriend) near the area where R.T. was found.
Pursuant to a plea agreement, R.T. pled guilty to what would be conspiracy to commit a robbery if committed by an adult. R.T. testified on behalf of the State at trial. He testified that he and the co-defendants were driving around Lindenwold to find a victim they could rob for gas money; and when they came upon Duhart, all three men began to punch him, dragged him off his bike, and kicked him. R.T. also testified that he took Duhart's "baby bag[,]" while defendant took Duhart's money and Solomon took his sneakers. R.T. further testified that Solomon was in possession of a silver revolver and used the revolver during the assault on Duhart. R.T. testified that when the incident ended all three assailants dispersed after Duhart noticed a police officer and signaled for the officer's attention.
The State presented expert testimony from New Jersey State Police forensic scientists Alison Lane and Carl Morales regarding DNA evidence (specifically blood) recovered on the co-defendants' pants as well as the diaper bag, and that the evidence matched the DNA profile of Duhart. In addition, the State presented the testimony of Randolph Toth, an expert in ballistics and firearm identification, and Eric Crain, an expert in the field of fingerprint processing. Toth testified that the firearm recovered near the vehicle was operable, while Crain testified as to why it was not unusual that no identifiable fingerprints were found on the firearm.
Defendant raises the following points on appeal:
POINT I
THE JURY INSTRUCTION ON ACCOMPLICE LIABILITY WAS ERRONEOUS BY INSTRUCTING THE JURORS THAT TO CONVICT [DEFENDANT] AS AN ACCOMPLICE TO RECKLESS AGGRAVATED ASSAULT, THEY WOULD HAVE TO FIND "DUSTIN WILBORN'S PURPOSE WAS TO PROMOTE OR FACILITATE THE COMMISSION OF" RECKLESS AGGRAVATED ASSAULT - A LEGAL IMPOSSIBILITY AND A DIRECT VIOLATION OF STATE V. BRIDGES AND STATE V. DARBY [3] (NOT RAISED BELOW).
POINT II
ELICITING MISLEADING TESTIMONY REGARDING THE STATISTICAL SIGNIFICANCE OF THE DNA RECOVERED FROM [DEFENDANT'S] PANTS WAS PROSECUTORIAL MISCONDUCT THAT DENIED [DEFENDANT] HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL (NOT RAISED BELOW).
POINT III
ANY SURVIVING AGGRAVATED ASSAULT CONVICTIONS SHOULD BE MERGED INTO THE ROBBERY [COUNT].
POINT IV
[DEFENDANT'S] SENTENCE IS EXCESSIVE, UNDULY PUNITIVE, AND MUST BE REDUCED.
State v. Bridges, 254 N.J. Super. 541 (App. Div. 1992), aff'd in part, rev'd in part on other grounds, 133 N.J. 447 (1993). --------
I.
Defendant argues that the judge's jury charge as to accomplice liability was erroneous. Defendant contends the judge erred as to the requisite elements of accomplice liability for the lesser-included offense of reckless aggravated assault, and that his right to due process and a fair trial under the Fourteenth Amendment was violated. We disagree.
In pertinent part, the judge instructed the jurors:
Liability for another's conduct. The State alleges that each defendant is legally responsible for the criminal conduct of the other defendant in violation of a law which reads in pertinent part as follows[:]
["A] person is guilty of an offense if it is committed by his own conduct or the conduct of another person for which he is legally accountable or both.
A person is legally accountable for the conduct of another person when he is an
accomplice of such other person in the commission of an offense. A person is an accomplice of another person in the commission of an offense if, with a purpose of promoting or facilitating the commission of the offense, he solicits such other person to commit it and/or aids or agrees or attempts to aid such other person in planning or committing it. This provision of the law means that not only is the person who actually permits the criminal act responsible for it, but one who is legally accountable as an accomplice is also responsible.
Now, this responsibility as an accomplice may be equal and the same as he who actually committed the crime or crimes or there may be responsibility in a different degree, depending on the circumstances as you find them to be. . . .
In this case[,] the State alleges that each defendant is equally guilty of the crimes committed by the other defendant because he acted as his accomplice with the purpose that the specific crimes charged be committed. In order to find the defendant guilty of the specific crime or crimes charged, the State must prove beyond a reasonable doubt each of the following elements.
. . . .
With respect to Dustin Wilborn; that Dustin Wilborn committed the crimes of armed robbery, aggravated assault, bodily injury with a deadly weapon, aggravated assault, attempt to cause significant bodily injury, unlawful possession of a handgun, possession of a handgun for an unlawful purpose and conspiracy to commit armed robbery; that Dustin Wilborn solicited [Solomon] to commit them and/or did aid or agree to — or attempt to aid him in planning or committing them;
that Dustin Wilborn's purpose was to promote or facilitate the commission of the offenses, that . . . Dustin Wilborn possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act.
. . . .
If you find that the defendant Dustin Wilborn with a purpose of promoting or facilitating the commission of the offenses solicited [Solomon] to commit them and/or aided and/or agreed or attempted to aid him in planning or committing them, then you should consider him as if he committed the crimes himself. As more than one offense is charged, accomplice status should be considered separately as to each charge.
. . . .
In order to convict a defendant as an accomplice to the specific crime charged[,] you must find that the defendant had the purpose to participate in that particular crime. He must act with the purpose of promoting or facilitating the commission of the substantive crimes with which he is charged.
. . . .
Now, as I have previously indicated, you will initially consider whether a defendant should be found not guilty of acting as an accomplice with full and equal responsibility for the specific crimes charged. If you find the defendant guilty of the specific charges[,] then you need not consider any lesser charges . . . .
If, however, you find the defendant not guilty of acting as an accomplice on the specific crimes charged, then you should consider whether the defendant did act as an
accomplice[,] but with the purpose of promoting or facilitating the commission of some lesser offenses than the actual crimes charged in the indictment.
Our law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his own state of mind and not anyone else's.
Guided by these legal principles[,] and if you have found the defendant not guilty of the specific crimes charged, you should then consider whether the defendant is guilty or not guilty as an accomplice on the lesser charges of second-degree robbery, theft from the person, aggravated assault, recklessly causing bodily injury with a deadly weapon, fourth[-]degree, simple assault, negligently causing bodily injury with a deadly weapon, simple assault, bodily injury.
. . . .
In considering whether the defendant is guilty or not guilty as an accomplice on this lesser charge, remember each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his own state of mind and no one else's. . . .
That defendant Dustin Wilborn committed the crimes of second-degree robbery, theft from the person, aggravated assault[,] recklessly causing bodily injury with a deadly weapon, fourth[-]degree; simple assault[,] negligently causing bodily injury with a deadly weapon; simple assault, bodily injury. As alleged . . . as a lesser
included offense that this defendant solicited [Solomon] to commit the lesser included offense and/or did aid or agree or attempt to aid him in planning to commit the lesser included offense; that this defendant's purpose was to promote or facilitate the commission of the lesser included offense; that this defendant possessed the criminal state of mind that is required for the commission of the lesser included offense.
When the State proceeds under a theory of accomplice liability, the "court is obligated to provide the jury with accurate and understandable jury instructions regarding accomplice liability even without a request by defense counsel." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993). In such a case, a "jury must be instructed that defendant 'shared in the intent which is the crime's basic element, and at least indirectly participated in the commission of the criminal act.'" State v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998) (quoting Bielkiewicz, supra, 267 N.J. Super. at 528), aff'd, 162 N.J. 580 (2000); see also State v. Whitaker, 200 N.J. 444, 458 (2009) ("An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal.")
"[J]ury instructions on accomplice liability must include an instruction that a defendant can be found guilty as an accomplice of a lesser[-]included offense even though the principal is found guilty of the more serious offense." State v. Norman, 151 N.J. 5, 37 (1997). Thus, "when an alleged accomplice is charged with a different degree offense than the principal[,] or lesser[-]included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" Bielkiewicz, supra, 267 N.J. Super. at 528 (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).
In Bridges, supra, this court discussed the concept of vicarious liability for crimes with a culpability requirement of recklessness.
What then of vicarious liability for a crime whose culpability requirement is not knowing or purposeful action but rather reckless action? If vicarious liability requires the purpose that the crime be committed, but if the crime does not have a purposeful element, can there be vicarious liability at all? The apparent conundrum is how one can intend a reckless act. We are, however, satisfied that that conundrum is semantical rather than substantive.
. . . .
. . . . [I]mposition of vicarious liability for a crime whose culpability requirement is recklessness requires an initial focus on the actor's conduct rather than on the crime itself. As a first condition, the accomplice . . . must have intended that the actor's conduct take place, i.e., that the accomplice . . . had the purpose of
promoting or facilitating the commission of that conduct by the actor and took some step or steps, as stipulated . . . in order actually to promote or facilitate that conduct. . . .
If the actor is liable for a "reckless" crime, vicarious liability for that crime or a lesser-included "reckless" crime may attach to an accomplice . . . who purposely promoted or facilitated the actor's conduct; who was aware when he did so, considering the circumstances then known to him, that the criminal result was a substantial and [un]justifiable risk of that conduct; and who nevertheless promoted that conduct in conscious disregard of that risk. . . . Vicarious liability for a "reckless" crime may also, however, attach when the actor commits an "intent" crime and the accomplice . . . did not intend that that crime be committed but nevertheless intended that the actor take a specific action or actions which resulted in the crime. If criminal liability for the criminal result of that conduct can be predicated on a reckless state of mind, an accomplice . . . can be vicariously liable for that "reckless" crime under the same principles which apply where the actor's culpability is also based on recklessness. This is so even if the actor himself is guilty of an "intent" crime. The point . . . is that each participant in a common plan may participate therein with a different state of mind. The liability of each participant for any ensuing crime is dependent on his own state of mind, not on anyone else's.
[254 N.J. Super. at 563-66 (internal citations omitted) (footnotes omitted); see also Bielkiewicz, supra, 267 N.J. Super. at 528-30.]
Where, as here, a defendant fails to object to the charge at the time it was given, there is a presumption that the failure to object reflected the defendant's assessment that the charge was not erroneous and was unlikely to prejudice his case. State v. Macon, 57 N.J. 325, 333-34 (1971). Accordingly, in the absence of a contemporaneous objection, any claim of error concerning a jury charge is reviewed under the plain error standard and will be disregarded "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.
We find defendant's arguments concerning the judge's accomplice liability charge are more "semantical rather than substantive." Bridges, supra, 254 N.J. Super. at 564; see also Bielkiewicz, supra, 267 N.J. Super. at 528-30. The judge initially emphasized in the charge that the jury should consider each defendants' guilt with "full and equal responsibility for the specific crimes charged." The judge then stated,
If, however, you find the defendant not guilty of acting as an accomplice on the specific crimes charged, then you should consider whether the defendant did act as an accomplice but with the purpose of promoting or facilitating the commission of some lesser offenses than the actual crimes charged in the indictment.
In accordance with our discussion in Bridges, the judge further stated:
[o]ur law recognizes that two or more persons may participate in the commission of an offense but each may participate therein with a different state of mind. The liability or responsibility of each participant for any ensuing offense is dependent on his own state of mind and not anyone else's.The judge reiterated that "each person who participates in the commission of an offense may do so with a different state of mind and the liability or responsibility of each person is dependent on his own state of mind and no one else's."
We are satisfied that the charge was not in error. The judge instructed the jury that each defendant's liability depended on his state of mind, and that a defendant could be found guilty as an accomplice of a lesser-included offense. In doing so, the judge provided the jury with "accurate and understandable jury instructions regarding accomplice liability[.]" Bielkiewicz, supra, 267 N.J. Super. at 527.
II.
Defendant argues the prosecutor elicited "misleading" testimony from the State's DNA expert, Carl Morales, at trial. Morales testified that the DNA profile of the blood sample taken from defendant's pants matched that of Duhart. Morales further noted that "the DNA profile obtained from . . . [Duhart] occurs in approximately [1-in-175,000] African[-]Americans." Defendant contends the random-match figure provided by Morales was misleading, as Morales should have informed the jury that the [1-in-175,000] figure was "actually a median statistic subject to a standard deviation of a factor of ten."
We note that defendant's counsel did not object during trial to Morales's statistical testimony concerning the blood sample. The "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999). Further, the failure to object "also deprives the court of the opportunity to take curative action." Ibid. Nevertheless, "[e]ven if defense counsel fails to object, '[a] prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved.'" Ibid. (quoting State v. Long, 119 N.J. 439, 483 (1990) (citations omitted)). Generally, however, where defense counsel has not objected, we will not reverse unless plain error is shown. R. 2:10-2.
Given our review of the record and in application of our standard of review, we find defendant's argument concerning Morales's statistical testimony wholly without merit. As such, the argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
III.
Defendant also argues that his "third-degree purposeful aggravated assault conviction and his fourth-degree aggravated assault conviction should have been merged into his robbery conviction." Defendant contends the assault against Duhart was part and parcel of the robbery. As such, the judge's failure to merge counts two and three into count one resulted in defendant being punished three times for one continuing offense.
At sentencing, the judge held:
The lesser-included aggravated assault, bodily injury with a deadly weapon, fourth [-]degree, will be served concurrent to Count [one], as the aggravated assault was part of a single attack.
Count [three], aggravated assault, third[-]degree, will be served consecutive to the lesser-included robbery, second [-]degree, as the aggravated assault on the victim was separate from the robbery itself. [State v. Crouch, 225 N.J. Super. 100, 109 (App. Div. 1988); State v. Carlos, 187 N.J. Super. 406 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).]
We review a judge's sentencing determination under a deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "At its core, merger's substantial purpose 'is to avoid double punishment for a single wrongdoing.'" State v. Romero, 191 N.J. 59, 80 (2007) (quoting State v. Diaz, 144 N.J. 628, 637 (1996)). Additionally, N.J.S.A. 2C:1-8 sets forth
a series of factors that help a court determine whether to bar multiple convictions for conduct that constitutes more than one offense. In particular, N.J.S.A. 2C:1-8(d) calls for merger when one offense is established by proof of the same or less than all of the facts required to establish the commission of another offense charged[.]
[State v. Mirault, 92 N.J. 492, 502 n. 10 (1983).]
In our fact-sensitive inquiry, we must determine whether the two offenses are the same and therefore merge, or whether "each [offense] requires proof of an additional fact[,] which the other does not[,]" making merger inapplicable. State v. Dillihay, 127 N.J. 42, 48 (1992) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306, 309 (1932)).
Count one of the indictment alleged defendant, "[I]n the course of committing a theft upon [Duhart] did inflict bodily injury or use force upon [Duhart] and/or did threaten [Duhart] with or purposefully put [him] in fear of immediate bodily injury and in the course of committing the theft was armed with, used, or threatened the immediate use of a deadly weapon[.]"
Under the criminal code:
A person is guilty of robbery if, in the course of committing a theft, he [or she]:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him [or her] in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
[N. J.S.A. 2C:15-1(a).]
Robbery is
a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon.
[N. J.S.A. 2C:15-1(b).]
Count two of the indictment alleged defendant "did attempt to cause and/or did purposely or knowingly cause bodily injury to [Duhart] with a deadly weapon, to wit; a handgun[.]" A person is guilty of aggravated assault if he "[r]ecklessly causes bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-1(b)(3).
Count three of the indictment alleged defendant "did attempt to cause significant bodily injury to [Duhart] or caused significant bodily injury to [Duhart] purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life[,] recklessly caused such significant bodily injury." A person is guilty of aggravated assault if he "[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life[,] recklessly causes such significant bodily injury[.]" N.J.S.A. 2C:12-1(b)(7).
Where "precisely the same physical acts are used to make out the robbery and the assault, they have been found to merge." Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:1-8(a)(1) (2015-16); see also Mirault, supra, 92 N.J. at 503-504; State v. Pyron, 202 N.J. Super. 502, 503 (App. Div. 1985). However, where the conduct constituting an assault is factually separable from the force used to raise theft to robbery, the assault conviction does not merge with the robbery conviction. Carlos, supra, 187 N.J. Super. at 418. "Failing to merge convictions that should have been merged makes the sentence imposed illegal, and illegal sentences may be corrected at any time." Cannel, supra, comment 10 on N.J.S.A. 2C:1-8 (citing Romero, supra, 191 N.J. at 80).
As an initial matter, we agree with defendant's argument that count two should have been merged with count one at sentencing. At sentencing, the judge indicated that the fourth-degree reckless aggravated assault was part of the "single attack" that constituted the robbery. Accordingly, the reckless aggravated assault (count two) was the same physical act which raised the theft to a robbery (count one). Even though the judge imposed a concurrent one-year sentence on count two, the failure to merge the convictions requires that defendant be resentenced on these counts.
By contrast, we conclude that there was no error in failing to merge count three with count one. The judge cited to Carlos and Crouch in support of her finding that count one and count three were separate offenses. In Carlos, supra, the defendant robbed a gas station owner and pump attendant at gun point. 187 N.J. Super. at 410. The defendant fired shots at both victims in an effort to force them to comply with his demands, striking one in the thigh. Ibid. After trial, the defendant's convictions included multiple counts of armed robbery and both aggravated assault and attempted aggravated assault, N.J.S.A. 2C:12-1(b)(1). Ibid. We concluded merger did not apply, stating:
Defendant further contends that the aggravated assault upon [the first victim] and [the second victim] should be merged with the robbery offenses against them. We find this contention unpersuasive. The first degree robbery of [the first victim] under count [one] was based on committing a theft from him while armed with or threatening him with a deadly weapon. The aggravated assault on [the first victim]
under count [five] was based on defendant shooting [the first victim] in the right thigh. The first-degree robbery of [the second victim] under count [two] was based on a theft from him by defendant while armed with or threatening him with a deadly weapon. The attempted aggravated assault on [the second victim] was based on defendant firing a shot at him which went wide of its mark. The elements of each offense are different. Thus, no merger is warranted.
[Id. at 418 (citations omitted).]
See also Crouch, supra, 225 N.J. Super. at 102-03 (concluding merger of armed robbery and aggravated assault was inapplicable where the facts supported that the defendant intended to cause serious bodily harm after he grabbed the victim from behind by her neck, pressed a sharp object against her side, choked her, stole her purse, then threw her to the ground, causing a fractured clavicle); cf. State v. Battle, 209 N.J. Super. 255, 259 (App. Div.) (merging the defendant's convictions for second-degree robbery and aggravated assault in a sidewalk purse snatching where the victim was thrown to the ground because there were no facts adduced that could support a finding the defendant was guilty of an attempt to cause his victim serious bodily harm), certif. denied, 105 N.J. 560 (1986).
In analyzing the sequence of events, defendant's conduct constituted two separate offenses, and his convictions would not merge as a matter of law. The robbery was based on defendant's forceful theft, while the aggravated assault conviction was based on defendant (along with his co-defendants) repeatedly striking Duhart. We conclude, therefore, there was no error by the judge in not merging count three with count one.
IV.
Defendant argues that the twelve-year aggregate sentence imposed by the judge was excessive. We disagree.
Defendant was sentenced to an eight-year term of imprisonment with an eighty-five percent parole ineligibility pursuant to NERA on count one, a concurrent one-year term on count two, and a consecutive four-year term on count three. As previously noted, we review a judge's sentencing determination under a deferential standard. Fuentes, supra, 217 N.J. at 70. As directed by the Court, we must affirm the 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.
[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
When a sentence is challenged on appeal as excessive, a reviewing court must first determine whether the correct sentencing guidelines have been followed. Roth, supra, 95 N.J. at 365. The fundamental sentencing guideline of the Code of Criminal Justice is that the punishment fit the crime, not the criminal. State v. Hodge, 95 N.J. 369, 376 (1984). The "inexorable focus" upon the offense is required when formulating a sentence. Roth, supra, 95 N.J. at 367.
A reviewing court must then determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of those guidelines. Id. at 365-66. Finally, it must determine whether, in applying those guidelines to the relevant facts, the judge clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.
When a trial court follows the sentencing guidelines, a reviewing court should not second-guess the sentencing court's decision. State v. Jabbour, 118 N.J. 1, 5 (1990). Indeed, an appellate court "does not sit to substitute its judgment for that of the trial court." Id. at 6 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). So long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent, credible evidence in the record, the reviewing court must affirm the defendant's sentence. Ibid.; O'Donnell, supra, 117 N.J. at 215. In other words, unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm.
N.J.S.A. 2C:44-1 provides in pertinent part,
a. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court shall consider the following aggravating circumstances:
(1) The 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;
(2) The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance;
(3) The risk that the defendant will commit another offense;
. . . .
(6) The extent of the defendant's prior criminal record and the
seriousness of the offenses of which he has been convicted;
. . . .
(9) The need for deterring the defendant and others from violating the law[.]
b. In determining the appropriate sentence to be imposed on a person who has been convicted of an offense, the court may properly consider the following mitigating circumstances[.]
The judge began the sentencing analysis by weighing the aggravating and mitigating factors. The judge found that factors one and two should not be applied to defendant's sentence, despite the State's request. However, the judge held that factor three was applicable for sentencing. The judge noted that she would give this factor "some weight" at sentencing, due to defendant's "numerous [m]unicipal [c]ourt convictions and [his] one [s]uperior [c]ourt conviction for conspiracy to commit theft in 2009[,]" and his "significant juvenile history commencing when he was approximately [sixteen] years old[.]"
The judge also found aggravating factor six was applicable. The judge reasoned that she would consider defendant's prior convictions and his "criminal history commencing when the defendant was a juvenile." After considering defendant's convictions, the judge found they did not "rise to the level" of the current charges on appeal; therefore, the factor was to be given "some weight" at the time of sentencing.
The judge also found aggravating factor nine applied. After citing to the assault on Duhart by defendant, Solomon, and R.T., the judge concluded there was a "strong and serious need for deterring this defendant and others from the type of victimization and brutality that occurred in this case." The judge found defendant's actions "reflect a callous disregard for the rules of a civilized society, and senseless violence must be deterred." The judge noted that this factor was to be weighed "extremely heavily[.]"
The judge also analyzed each of the mitigating factors enumerated in N.J.S.A. 2C:44-1(b), and determined that no mitigating factor was applicable. The judge then concluded that since the "aggravating factors clearly, convincingly, and substantially outweigh[ed] the mitigating factors[,]" a period of parole ineligibility would be imposed.
The judge provided a thorough analysis for the sentence imposed. The judge's consideration of defendant's criminal history when determining that aggravating factors three, six, and nine applied was proper. Further, the judge's consideration of the violent nature of the assault on Duhart was also proper. In addition, defendant's eight-year sentence for the robbery conviction falls within the range for second-degree offenses, and the four-year sentence imposed for aggravated assault is the midpoint of the range for third-degree offenses. N.J.S.A. 2C:43-6(a)(2), (3). Moreover, the one-year sentence for aggravated assault, which we note should have been merged with the robbery conviction, was less than the eighteen-month maximum term for fourth-degree offenses. N.J.S.A. 2C:43-6(a)(4).
Affirmed and remanded for resentence. 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