STATE OF NEW JERSEY VS. JARED RAZZANO (18-08-0530, SOMERSET COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5621-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JARED RAZZANO,
Defendant-Appellant.
_______________________
Submitted February 22, 2021 – Decided April 26, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 18-08-
0530.
Joseph E. Krakora, Public Defender, attorney for
appellant (David A. Snyder, Designated Counsel, of
counsel and on the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Amanda Frankel, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant appeals from his jury trial convictions for aggravated assault
and unlawful possession of a weapon. The charges arise from a violent
altercation that occurred on defendant's driveway. Defendant contends the trial
judge improperly instructed the jury on the law of self-defense, the jury rendered
inconsistent verdicts, the guilty verdicts were against the weight of the evidence,
and the seven-year prison sentence he received was excessive. After carefully
reviewing the record in light of the applicable legal principles, we reject
defendant's contentions and affirm the convictions and sentence.
I.
In August 2018, a grand jury returned an indictment charging defendant
with first-degree attempted murder, N.J.S.A. 2C:5-1(a)(2) and (3) and N.J.S.A.
2C:11-3(a)(1); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d);
and fourth-degree unlawful possession of a weapon under circumstances not
manifestly appropriate for such lawful uses as it may have, N.J.S.A. 2C:39-5(d).
In February 2019, Judge Anthony F. Picheca, Jr. presided over a jury trial
over the course of seven non-consecutive days. The jury acquitted defendant of
attempted murder and possession of a weapon for an unlawful purpose but found
him guilty of aggravated assault and unlawful possession of a weapon. Judge
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Picheca sentenced defendant on the second-degree aggravated assault
conviction to a seven-year prison term subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, and to an eighteen-month prison term on the
fourth-degree unlawful possession of a weapon conviction. The judge ordered
the prison sentences to run concurrently.
Because defendant contends the guilty verdicts were against the weight of
the evidence, we recount the proofs elicited at trial in considerable detail. The
violent confrontation occurred on June 13, 2018. The victim, P.M.,1 came to
visit a friend who lived close by defendant's house. P.M. parked his car in a
manner that blocked defendant's driveway. P.M. complied with defendant's
demand to move the vehicle. P.M. testified that after he moved his vehicle to
the other side of the road, he was carrying a carpenter's level that he intended to
return to his friend. Defendant called him over and attacked him with an object
P.M. described as "an iron stick," then later with "something else that looked
like a sword." At the time of the altercation, defendant weighed approximately
230 pounds, while P.M. weighed around 145 pounds. P.M. was beaten to the
ground and rendered unconscious. He testified that he neither initiated contact
with defendant nor attacked defendant's car as defendant claims.
1
We use initials to protect the victim's privacy.
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3
Defendant gave multiple inconsistent versions of the incident to police
which evolved each time the police expressed their disbelief. Immediately after
the altercation, defendant called 9-1-1 and told the operator "a male came into
his house and attacked him." An electronic recording of that 9-1-1 call reveals
that defendant told the 9-1-1 operator the male intruder hit him on the head with
"something" and kicked his car.
When police arrived, defendant told them P.M. was the aggressor and had
used the carpenter's level to strike defendant's car windshield and hood while
defendant was inside the vehicle. Defendant told police P.M. then used the
carpenter's level to strike him once he exited the vehicle. Defendant claimed he
"wrestled the carpenter's level away from [P.M.] and used that to defend
himself." Defendant gave consent for police to search his property for the
weapon.2 By this point, he claimed that he had used a metal tent pole to defend
himself. When the officers told defendant "that he was lying about that tent pole
being used," defendant then admitted he used a weapon that he first described
as a "piece of wood . . . similar to a police nightstick, a billy club." The officers
again indicated their incredulity that such a weapon could cause the sort of
2
Defendant does not contest the lawfulness of the consent search. Nor does he
challenge the admissibility of the statements he made to the police.
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injuries inflicted upon P.M. Defendant apologized and told the officers he was
going to "tell . . . the truth," explaining that he wielded "a sharper piece of
metal," a "little collapsible shovel" that he used to dig worms. At that point, the
officers read defendant his Miranda3 rights. Defendant then signed a standard
Miranda warning waiver form and again gave consent for police to search his
property.
Defendant then led police to the actual weapon: a three-foot-long "black
curved sword" that appeared to be covered with wet blood. When an officer
remarked "this isn't a shovel," defendant replied, "I know. I thought I'd get in
trouble if it was a weapon." Defendant claimed that he did not know how the
sword's sheath came off the blade.
The severity of the injuries sustained by defendant and P.M. was markedly
dissimilar. Defendant suffered scrapes and bruises, a nasal contusion, 4 and
facial lacerations. In contrast, P.M. suffered three ten-centimeter
(approximately four-inch) scalp wounds, severe damage to his hands, severe
lacerations to his forehead, an open elbow wound that exposed a fractured bone,
3
Miranda v. Arizona, 384 U.S. 436 (1966).
4
Defendant claims his nose was broken in the melee. However, he never
presented any evidence to support that assertion.
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two rib fractures, and a skull fracture extending into his sinuses. The elbow
wound required multiple surgeries and caused impaired motor function and loss
of feeling in his left hand. His injuries also required the partial amputation of
fingers on his right hand.
Defendant raises the following arguments for our consideration:
POINT I
THE TRIAL COURT COMMITTED ERROR WHEN
IT DENIED DEFENDANT'S REQUEST FOR A JURY
CHARGE ON "USE OF FORCE UPON AN
INTRUDER."
POINT II
THE JURY'S VERDICT OF GUILTY TO SECOND
DEGREE AGGRAVATED ASSAULT AND
UNLAWFUL POSSESSION OF A WEAPON WAS
AGAINST THE WEIGHT OF THE EVIDENCE.
POINT III
THE DEFENDANT'S SENTENCE WAS EXCESSIVE.
II.
We first address defendant's contention the trial judge erred in instructing
the jury on the pertinent principles of self-defense. Defendant requested that the
jury be instructed on the "use of force upon an intruder" pursuant to N.J.S.A.
2C:3-4(c), rather than the general use of force instruction pursuant to N.J.S.A.
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2C:3-4(a) and (b). N.J.S.A. 2C:3-4(c) was added to the penal code in 1987. P.L.
1987, c. 120. It provides in relevant part:
. . . the use of force or deadly force upon or toward an
intruder who is unlawfully in a dwelling is justifiable
when the actor reasonable believes that the force is
immediately necessary for the purpose of protecting
himself or other persons in the dwelling against the use
of unlawful force by the intruder on the present
occasion.
[(emphasis added).]
Judge Picheca rejected defendant's request-to-charge, ruling that N.J.S.A.
2C:3-4(c) applies only to dwellings and that term does not include the driveway
on which this incident occurred. Judge Picheca made specific factual findings
in support of his ruling. He found that defendant's driveway did not lead directly
to the front entrance of the house but rather ran parallel to it. He also found that
the driveway did not extend to the base of the front stairway or porch.
We are required to accept the facts found by the trial judge so long as they
"are supported by sufficient credible evidence in the record." State v. Evans,
235 N.J. 125, 133 (2018) (quoting State v. Elders, 192 N.J. 224, 243 (2007)).
Accordingly, "[a] trial court's findings should be disturbed only if they are so
clearly mistaken 'that the interests of justice demand intervention and
correction.'" Elders, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 162
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(1964)). Based on these particular circumstances, we agree with Judge Picheca's
thoughtful analysis and conclude the driveway was not part of defendant's
"dwelling" within the meaning of N.J.S.A. 2C:3-4(c).
The standard of review for jury charges is well-established. "It is
axiomatic that clear and correct jury charges are essential to a fair trial . . . . "
Das v. Thani, 171 N.J. 518, 527 (2002). Courts should explain the controlling
law in clear and understandable language. Carmona v. Resorts Int'l Hotel, Inc.,
189 N.J. 354, 374 (2007); Velazquez ex rel. Velazquez v. Portadin, 163 N.J.
677, 688 (2000).
The term "dwelling" is not defined in N.J.S.A. 2C:3-4(c).5 The plain
language of the phrase "in a dwelling"6 nonetheless suggests this statutory
provision applies only to events occurring inside a structure or at least
appurtenant to a structure, not outdoors far removed from a structure. In State
5
The Model Criminal Jury Charge defendant requested explains that a
"dwelling" is "any building or structure though movable or temporary, or a
portion thereof, which is used as a person's home or place of lodging." Model
Jury Charges (Criminal), "Justification – Use of Force Upon an Intruder
(N.J.S.A. 2C:3-4(c))" (rev. Sept. 21, 2016). The model charge further explains
that "dwelling includes the entranceway of a building or structure" and also
"includes a 'porch or similar appurtenance.'" Ibid.6
The statute also uses the phrase "in the dwelling." N.J.S.A. 2C:3-4(c)
(emphasis added). We discern no significance to the use of different articles,
and we focus our attention instead on the word "in."
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v. Martinez, for example, we held that for purposes of N.J.S.A. 2C:3-4(c), the
term "dwelling" includes the threshold of the house, such as the porch or front
door. 229 N.J. Super. 593, 604 (App. Div. 1989). In State v. Bilek, we held
that "dwelling" includes the doorway or entranceway of an apartment. 308 N.J.
Super. 1, 12 (App. Div. 1998). So far as we are aware, no judicial decision has
interpreted N.J.S.A. 2C:3-4(c) to apply to an altercation that occurs entirely
outdoors at a location that is not on or at the entranceway to a structure.
Defendant urges us to interpret the word dwelling expansively to
encompass any part of the so-called "curtilage" of a house, citing case law that
holds that Fourth Amendment privacy protections may in certain circumstances
be afforded to driveways. See State v. Domicz, 188 N.J. 285, 302 (2006)
("Curtilage is land adjacent to a home and may include walkways, driveways,
and porches.") (emphasis added) (citing State v. Johnson, 171 N.J. 192, 208–09
(2002)). Defendant argues that because the United States and New Jersey
constitutions afford constitutional protection against unreasonable searches and
seizures to areas with the curtilage of a home, a homeowner "should not be
required to retreat from his driveway appurtenant to his home before resorting
to self-defense."
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We decline defendant's invitation to import Fourth Amendment principles
to define the geographic scope of use-of-force justification defense established
in N.J.S.A. 2C:3-4(c). The Fourth Amendment and its state constitutional
counterpart, Article I, paragraph 7 of the New Jersey Constitution, serve a
different purpose than the statutory framework that explains when a person is
justified in using force, including deadly force, in self-protection or the
protection of others. The Fourth Amendment establishes a right of privacy in
private premises and protects against intrusions by the government in the form
of arrests, searches, and seizures. It does not protect against the assaultive
conduct of private actors. See State v. Navarro, 310 N.J. Super. 104 (App. Div.
1998) (holding that the Fourth Amendment applies only to government actions
and not to unreasonable searches conducted by a landlady). Ultimately, the
scope of the self-defense-against-an-intruder doctrine is defined by statute, not
by Fourth Amendment principles.
We find support for our conclusion that N.J.S.A. 2C:3-4(c) does not
extend to driveways in a case defendant relies heavily upon. Defendant
selectively quotes from State v. Bonano, 59 N.J. 515 (1971), for the proposition
that New Jersey's self-defense jurisprudence allows persons to stand their
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ground while within the curtilage of their home. In reality, the Court's reasoning
in Bonano suggests the opposite conclusion.
In Bonano, our Supreme Court addressed the scope of the so-called "castle
doctrine," which is the common law exception to the general rule that a person
must retreat when it is reasonably safe to do so before using deadly force for
self-protection or the protection of others.7 Bonano was decided long before
N.J.S.A. 2C:3-4(c) was enacted, 8 focusing on our State's predecessor general
self-defense statute, N.J.S.A. 2A:113-6—which was silent on the question of
home intruders—and on common law principles exempting the general duty to
retreat when using protective force in one's own home. The Court quoted our
then-recent observation in State v. Provoid, 110 N.J. Super. 547, 554 (App. Div.
1970) ("the majority of jurisdictions in this country have concluded the privilege
of self-defense without retreat extends to anywhere within the 'curtilage' of a
7
We note that N.J.S.A. 2C:3-4(c) differs from the general rule of self-defense
set forth in N.J.S.A. 2C:3-4(a) and (b) in several respects and not just as to the
duty to retreat. These substantive differences are explained in our decision in
Bilek, 308 N.J. Super. at 11–12 and need not be recounted in this opinion.
8
As we have noted, N.J.S.A. 2C:3-4(c) was enacted in 1987. L. 1987, c. 120,
§1. Bonano also was decided before the current general self-defense statutory
provisions codified in N.J.S.A. 2C:3-4(a) and (b) were enacted as part of the
New Jersey Code of Criminal Justice (Penal Code), N.J.S.A. 2C:1-1 to 104-9
(L. 1978, c. 95).
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man's [or woman's] home."), remarking, "[t]his is, indeed, the majority view,
and yet one may question its soundness." 59 N.J. at 520. The Bonano Court
noted that "'[c]urtilage' is not a term that can in all cases be precisely defined,"
then posed the rhetorical question, "[m]ight not the better rule be that a duty to
retreat should exist except as to the dwelling house itself, defined, as stated
above, to include a porch or other similar appurtenance?" Ibid. The Court
concluded, "[t]his case does not raise the issue and we leave its resolution to
another day." Ibid. The Court nonetheless made clear, "[a]t this time, however,
we limit our acceptance of this [castle] rule to those cases where the defendant
is actually in his dwelling house. A porch or other similar physical appurtenance
is deemed to come within this concept." Ibid. (emphasis added).
Defendant in his appellate brief does not cite to or acknowledge these
critical portions of Bonano, which contradict the central tenet of his argument.
We share the Bonano Court's concern that the term "curtilage" is not well-
defined. Grafting the curtilage concept into the definition of a dwelling for
purposes of N.J.S.A. 2C:3-4(c), therefore, might introduce uncertainty and
ambiguity to the Penal Code.9 For example, if we accepted defendant's broad
9
In Domicz, our Supreme Court noted:
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interpretation, would the self-defense-against-intruders statute apply to the
entire length of a driveway, extending to the apron that abuts a public sidewalk
or street? Or is there an invisible line on a driveway—fixed somewhere between
the point closest to the house and the outer boundaries of the property line—
where the circumstances in which deadly force is authorized abruptly changes?
We leave that type of delineation to the Legislature and decline to interpret this
use-of-force provision in a way that might render it impermissibly vague.
Importantly, although the Legislature presumably was aware of the relevant
precedents when it enacted N.J.S.A. 2C:3-4(c) in 1987, it did not employ the
Whether the Fourth Amendment safeguards an area of
curtilage depends on a consideration of various factors,
including "'whether the area is included within an
enclosure surrounding the home, the nature of the uses
to which the area is put, and the steps taken by the
resident to protect the area from observation by people
passing by.'" Johnson, 171 N.J. at 208–09 (quoting
United States v. Dunn, 480 U.S. 294, 301 (1987)). An
area within the curtilage to which the public is
welcome, such as a walkway leading to an entrance to
a home, is not afforded Fourth Amendment protection
because the resident has given implicit consent to
visitors to approach the home that way. See id. at 209.
[188 N.J. at 302.]
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term curtilage and instead chose a formulation closely aligned with the more
narrowly-crafted holding in Bonano.
If the Legislature intended to extend the intruder self-defense provision to
driveways, it would have done so without expressly limiting the geographic
scope of this justification defense to incidents occurring "in a dwelling."
Accordingly, we conclude N.J.S.A. 2C:3-4(c) is inapplicable to the particular
facts presented in this case and the jury was properly instructed on the governing
law of self-defense.
III.
We turn next to defendant's contention the jury rendered inconsistent
verdicts by convicting him of aggravated assault while acquitting him of
possession of a weapon for an unlawful purpose. 10 We start our analysis by
noting that defendant relies inappropriately on State v. Peterson, 181 N. J. Super
261, 266 (App. Div. 1981), to support his argument that the acquittal on the
count charging possession of a weapon for an unlawful purpose precludes his
conviction for aggravated assault. Defendant's argument, aside from being
10
We note that defendant under a single point heading contends the jury
rendered inconsistent verdicts and verdicts that were against the weight of the
evidence. Although these contentions are related, we choose to address them in
separate sections of this opinion.
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factually inapposite in this case,11 is haunted by the ghosts of long-abandoned
legal precedent. In State v. Grey, our Supreme Court recognized that Peterson
had been overruled by a subsequent Appellate Division panel in 1990. 147 N.J.
4, 11 (1996) (citing State v. Burnette, 245 N.J. Super. 99, 112 (App. Div. 1990)).
The Supreme Court confirmed that Peterson's reasoning was faulty insofar as it
was based upon a Third Circuit case the United States Supreme Court overruled
in United States v. Powell, 469 U.S. 57 (1984). 147 N.J. at 11. The Court in
Grey thus unequivocally rejected the reasoning expressed in Peterson and
instead embraced the Powell rule, which accepts the validity of inconsistent jury
verdicts, "understanding that jury verdicts may result from lenity, compromise,
or even mistake." State v. Goodwin, 224 N.J. 102, 116 (2016) (quoting State v.
Banko, 182 N.J. 44, 53 (2004)); Grey, 147 N.J. at 11.
Aside from relying on overturned precedent, defendant's argument asks us
to ignore our Supreme Court's admonition that reviewing courts must "resist the
11
A conviction for second-degree aggravated assault under N.J.S.A. 2C:12-
1(b)(1) by causing serious bodily injury does not require proof defendant used
a weapon. Nor does N.J.S.A. 2C:12-2(b)(1) require proof that defendant acted
purposely; a reckless culpable mental state suffices to prove the aggravated
assault. Accordingly, the jury's guilty and not-guilty verdicts are not necessarily
mutually inconsistent. However, as we further explain infra, we are in any event
precluded by binding precedent from speculating on how exactly the jury
reached its guilty and not-guilty verdicts.
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temptation to speculate on how the jury arrived at the verdict." Goodwin, 224
N.J. at 116 (quoting Banko, 182 N.J. at 53). The only inquiry we may pursue is
"whether the evidence in the record was sufficient to support a conviction on
any count on which the jury found the defendant guilty." Ibid. (quoting State v.
Muhammad, 182 N.J. 551, 578 (2005)). As we discuss in the next section of
this opinion, there was more than sufficient evidence introduced at trial to
support defendant's convictions for aggravated assault by causing serious bodily
injury and for unlawful possession of the sword under circumstances not
manifestly appropriate for such lawful uses as it may have.
IV.
Defendant contends the jury rendered its guilty verdicts against the weight
of the evidence. Defendant failed to move for a new trial under Rule 2:10-1.12
As a general matter, "[w]e do not consider a weight-of-the-evidence argument
on appeal unless the appellant moved in the trial court for a new trial on that
ground." State v. Fierro, 438 N.J. Super. 517, 530 (App. Div. 2015) (citing State
12
We note counsel did argue at sentencing that the verdicts were against the
weight of the evidence in support of his contention that a sentencing downgrade
was warranted based on mitigating factor four, N.J.S.A. 2C:44-1(b)(4) ("There
were substantial grounds tending to excuse or justify the defendant's conduct,
though failing to establish a defense."). We do not view counsel's sentencing
argument as a substitute for a motion for a new trial as required by R. 2:10-1.
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v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973)). We nonetheless choose
to address defendant's argument on the merits, applying the plain error standard
of review. See State v. Weston, 222 N.J. 277, 294 (2015). Under this standard,
a reviewing court will not reverse absent a clear showing of a miscarriage of
justice under the law. State v. Holder, 137 N.J. Super. 300, 305 (App. Div.
1975).
We add that the long-established substantive test for resolving challenges
to the sufficiency of the evidence supporting a conviction, as explained in State
v. Reyes, is
whether, viewing the State's evidence in its entirety, be
that evidence direct or circumstantial, and giving the
State the benefit of all its favorable testimony as well
as all of the favorable inferences which reasonably
could be drawn therefrom, a reasonable jury could find
guilt of the charge beyond a reasonable doubt.
[50 N.J. 454, 458–59 (1967); see also State v. Brown,
80 N.J. 587, 591 (1979).]
Applying those legal principles to the record before us, we do not hesitate
to conclude the State presented ample and compelling evidence that defendant
brutally attacked the victim with a sword and inflicted multiple grievous wounds
far surpassing those necessary to constitute serious bodily injury as defined in
N.J.S.A. 2C:11-1(b). We likewise conclude the State provided ample evidence
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that defendant possessed the bloodied sword under circumstances not manifestly
appropriate for whatever lawful uses it may have had. The jury acted well within
its province in assessing the credibility of the witnesses and ultimately rejecting
defendant's claim of self-defense.
V.
Finally, we address defendant's contentions regarding the sentence. He
argues the sentencing judge erred in finding and weighing aggravating and
mitigating factors and erred in denying his motion to be sentenced pursuant to
N.J.S.A. 2C:44-1(f)(2) to a term appropriate to a crime of one degree lower than
that of the crime for which he was convicted.
We emphasize "[o]ur role in reviewing a sentence imposed by a trial judge
is limited." State v. L.V., 410 N.J. Super. 90, 107 (App. Div. 2009). We review
only
(1) whether the exercise of discretion by the sentencing
court was based upon findings of fact grounded in
competent, reasonably credible evidence; (2) whether
the sentencing court applied the correct legal principles
in exercising its discretion; and (3) whether the
application of the facts to the law was such a clear error
of judgment that it shocks the conscience.
[State v. Megargel, 143 N.J. at 493 (citing State v. Roth,
95 N.J. 334, 363–65 (1984)).]
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Judge Picheca, who was intimately familiar with the circumstances of the
violent encounter having presided over the trial, found aggravating factors one,
N.J.S.A. 2C:44-1(a)(1) ("The nature and circumstances of the offense . . .
including whether or not it was committed in an especially heinous, cruel, or
depraved manner"); two, N.J.S.A. 2C:44-1(a)(2) ("The gravity and seriousness
of the harm inflicted on the victim"); and nine, N.J.S.A. 2C:44-1(a)(9) ("The
need for deterring the defendant and others from violating the law"). The judge
found mitigating factors four, N.J.S.A. 2C:44-1(b)(4) ("There were substantial
grounds tending to excuse or justify the defendant's conduct, though failing to
establish a defense"), and seven, N.J.S.A. 2C:44-1(b)(7) ("The defendant has no
history of prior delinquency or criminal activity or has led a law-abiding life for
a substantial period of time before the commission of the present offense") .
Judge Picheca found the aggravating factors qualitatively outweighed the
mitigating factors and sentenced defendant on the aggravated assault conviction
to seven years in prison subject to NERA. We note that sentence falls roughly
at the midpoint of the five-to-ten-year second-degree range. See N.J.S.A.
2C:43-6(a)(2). The judge imposed a concurrent eighteen-month sentence on the
weapons conviction.
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Defendant contends Judge Picheca failed to adequately explain the basis
for finding aggravating factor one, and essentially double-counted aggravating
factors related to the harm element of the aggravated assault offense. We
disagree. The record makes clear the judge thoroughly explained the basis for
his finding that the offense was committed in a heinous, cruel, or depraved
manner, as shown not just by the fact the harm inflicted on the victim far exceeds
that necessary to establish serious bodily injury, see N.J.S.A. 2C:11-1(b), but
also by the multiple blade wounds to the head, and multiple defense wounds to
the victim's hands, reflecting an unrelenting barrage of strikes.
We likewise reject defendant's argument the sentencing judge abused his
discretion by declining defendant's application to invoke the sentencing
downgrade statute, N.J.S.A. 2C:44-1(f)(2). That provision reads in pertinent
part:
In cases of convictions for crimes of the first or second
degree where the court is clearly convinced that the
mitigating factors substantially outweigh the
aggravating factors and where the interest of justice
demands, the court may sentence the defendant to a
term appropriate to a crime of one degree lower than
that of the crime for which he was convicted.
As the Supreme Court made clear in Megargel, a defendant bears the
burden to demonstrate "a compelling reason to downgrade defendant's sentence
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under N.J.S.A. 2C:44-1(f)(2)." 143 N.J. at 501–02. This "compelling reason"
standard entails a two-pronged analysis. First, as a threshold matter, the
sentencing court must be "clearly convinced" that the mitigating factors
substantially outweigh the aggravating factors. Id. at 505. Second, the
defendant must present "compelling reasons" why the interest of justice would
demand a downgraded sentence. "These reasons must be in addition to[] and
separate from" the court's conclusion under the first prong of the two-part test.
Id. at 502.
Here, Judge Picheca did not find the mitigating factors substantially
outweigh the aggravating factors. To the contrary, he found that the aggravating
factors outweigh the mitigating factors. That alone precludes a sentencing
downgrade. Ibid. We add that defendant also has failed to establish compelling
reasons to impose a prison sentence in the third-degree range; he is in no way
either "an exceptional defendant '[n]or one caught up in a maelstrom of
"engulfing circumstances."'" Id. at 504; Roth, 95 N.J. at 368. In sum, the seven-
year prison sentence was appropriate and in no way shocks the judicial
conscience. See Roth, 95 N.J. at 363–65.
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To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(2).
Affirmed.
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