STATE OF NEW JERSEY v. SILVER IQUCHUKWU (18-04-0282, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1050-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SILVER IQUCHUKWU,
Defendant-Appellant.
_______________________
Argued January 24, 2022 – Decided February 14, 2022
Before Judges Sabatino and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 18-04-0282.
Rachel A. Neckes, Legal Fellow, argued the cause for
appellant (Joseph E. Krakora, Public Defender,
attorney; Nakea J. Barksdale, Assistant Deputy Public
Defender, of counsel and on the brief).
Lauren Bonfiglio, Deputy Attorney General, argued the
cause for respondent (Andrew J. Bruck, Acting
Attorney General, attorney; Lauren Bonfiglio, of
counsel and on the brief).
PER CURIAM
After a jury found defendant Silver Iquchukwu guilty of first-degree
aggravated sexual assault on a helpless or incapacitated victim, N.J.S.A. 2C:14-
2(a)(7), Judge Mitzy Galis-Menendez sentenced him to a fifteen-year custodial
term, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The
judge also imposed applicable fines and penalties as well as Megan's Law
registration requirements, N.J.S.A. 2C:7-2, parole supervision for life, N.J.S.A.
2C:43-6.4, and a Nicole's Law sexual offender restraining order, N.J.S.A.
2C:44-8.
Defendant challenges his conviction and sentence arguing:
POINT I
THE COURT ERRED IN FINDING THE
DEFENDANT'S STATEMENTS TO THE HUDSON
COUNTY PROSECUTOR'S OFFICE WERE
ADMISSIBLE BECAUSE DEFENDANT DID NOT
UNDERSTAND ENGLISH VERY WELL AND,
THUS, DID NOT KNOWINGLY, VOLUNTARILY,
AND INTELLIGENTLY WAIVE HIS MIRANDA
RIGHTS. U.S. CONST. AMENDS. V and XIV.
POINT II
A 15-YEAR NERA SENTENCE FOR A FIRST-TIME
OFFENDER IS EXCES[S]IVE AND MUST BE
REDUCED BECAUSE THE TRIAL JUDGE ERRED
IN ITS FINDING AND WEIGHING OF
AGGRAVATING AND MITIGATING FACTORS.
U.S. CONST. AMENDS. VI AND XIV; N.J. CONST.
ART. I, PARS. 9 AND 10.
A-1050-19
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Further, at oral argument, defendant's appellate counsel contended that
defendant could not have knowingly waived his Miranda1 rights because of his
limited intellectual capabilities as revealed during a pre-sentence evaluation
referenced by defendant's trial counsel at sentencing. We reject defendant's
arguments and affirm his conviction and sentence, but remand for the limited
purpose of amending the Judgment of Conviction (JOC) to clarify that defendant
is subject to the provisions of Nicole's Law including the imposition of an
applicable restraining order.
I.
On October 28, 2017, eighteen-year-old F.S. (Fiona) 2 met with two friends
around 7:00 p.m. and headed to a Halloween party. On the way, they stopped
at a liquor store and purchased a bottle of wine. During their hour-and-a-half
commute, Fiona drank a cup of wine and smoked marijuana. Once they arrived
at the party, Fiona had approximately two mixed drinks. She and her friends
stayed at the party for about two hours before heading home by train. She had
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
We use initials and a pseudonym to protect the privacy and preserve the
confidentiality of the victim. R. 1:38-3(c)(9).
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3
a final cup of wine as she proceeded to the train. She only remembered part of
her travels after the party.
The next thing Fiona remembered was waking up on a couch in an
unfamiliar tattoo parlor without her shoes or belongings. When she awoke , she
observed two men who she did not know, a "middle aged Hispanic" man, and
defendant, who was asleep. Fiona asked the Hispanic man what happened, to
which he shook his head and said, "you got fucked." Fiona was speechless, "felt
really weird," and suspected something was not right because her jumpsuit and
undergarments were both on backwards.
Defendant then awoke, gave Fiona her missing belongings, and asked her
if she wanted coffee or something to eat. Because she wanted to know more
about what happened, Fiona agreed and went to Dunkin Donuts with defendant.
Defendant told Fiona he found her late at night and brought her to his home.
He then walked Fiona to the end of her block and stored his name and number
into her phone.
After returning home, Fiona went to Jersey City Medical Center to be
examined because she believed she had been sexually assaulted. At the hospital,
an emergency department nurse performed a forensic medical examination.
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Samples from that exam were analyzed by an expert in biological strain analysis
who ruled out the presence of semen.
Detective Michael Doherty of the Hudson County Prosecutor's Office
Special Victim's Unit responded to Jersey City Medical Center and spoke with
Fiona. Detective Doherty began an investigation which led him to Nu Flavor
Kutz, a barbershop in Jersey City. There, he requested, and was granted access
to, the shop's surveillance videos from October 28 and 29, 2017. Upon viewing
the footage, Detective Doherty observed a woman fitting Fiona's description
with two men. He spoke to the shop's owner, Salvatore Perez, who identified
the men as his brother and defendant, who was present at the shop. Detective
Doherty notified defendant that they were investigating an assault and defendant
agreed to speak with him.
Detective Doherty transported defendant to the Hudson County
Prosecutor's Office Special Victim's Unit. Before interviewing defendant,
Detective Doherty informed defendant of his Miranda rights orally and in
writing, and defendant signed a form stating that he understood and waived those
rights.
Defendant then gave a video-recorded statement. He described that he
worked at Nu Flavor Kutz as a cashier and lived in the basement, which formerly
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operated as a tattoo parlor. He also stated that Perez's brother, Brian, lived in
an upstairs apartment in the same building.
Regarding the night in question, defendant described that he and Brian
encountered Fiona outside Brian's apartment. He stated she was "fucked up"
and had urinated on herself, and that he thought she was a "crackhead." He
claimed that at Brian's insistence, he carried Fiona to the basement to let her
sleep on a sofa. Defendant stated that Fiona was unable to respond coherently
when he spoke to her and urinated on herself again. Although defendant initially
denied touching any of Fiona's intimate parts, having sex with her, or penetrating
her with his penis or fingers, he later admitted to putting his finger inside her
vagina.
At the conclusion of the interview, defendant was placed under arrest. He
was indicted and charged with one count of first-degree aggravated sexual
assault on a helpless or incapacitated victim. Before proceeding to trial, the
State moved under N.J.R.E. 104(c) and N.J.R.E. 803(b) to admit the video-
recorded statement defendant made to Detective Doherty. Judge Galis-
Menendez heard the motion over two days and granted the State's application
on November 7, 2018.
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In support of its motion, the State introduced as evidence defendant 's
signed Miranda waiver form, the entirety of the approximately three-hour video-
recorded statement, and the 147-page transcript of the questioning and
interrogation conducted by Detective Doherty. In relevant portions, and early
in the interview, defendant stated he was born in Nigeria and Detective Doherty
noted that he spoke with a "thick accent." Detective Doherty then instructed
defendant on his Miranda rights. As noted, he first read defendant his rights
orally and defendant responded to each identified right by indicating he
understood each one. Detective Doherty inquired if defendant was able to "read
and write the English language," and he confirmed that he could.
Detective Doherty then provided a written Miranda form to defendant. He
first asked defendant to read the first right on the form out loud and initial it to
confirm he understood it. Defendant complied without any apparent difficulty.
Detective Doherty then asked defendant to read the remaining rights to himself
and initial alongside each one to confirm his understanding, which he did.
Detective Doherty then asked, "Having these rights in mind, do you wish
to answer my questions?" and defendant responded "Yeah." Detective Doherty
then read defendant a "waiver of rights" and asked if defendant understood that
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waiver. Defendant again responded that he did. At Detective Doherty's
instruction, defendant then read the waiver and signed it.
Before placing him under oath, Detective Doherty asked defendant "do
you know what an oath is?" Defendant confirmed his understanding, stating that
an oath is "what you pledge . . . like a commitment."
Thereafter, Detective Doherty asked a series of preliminary questions.
Defendant first stated he was not a United States citizen. When asked again
whether he could "read and write the English language" defendant stated "Yeah,
but not very well." Defendant stated he had been in the United States for
approximately three years and had studied business administration at a college
in Ohio before dropping out. Detective Doherty then asked if defendant could
"understand what . . . [they were] talking about," and he responded that he could.
Detective Doherty instructed defendant that if he did not understand something
that he could ask to have the question repeated. Defendant also voluntarily
consented to providing a buccal swab to determine if his DNA was present on,
or within, the victim.
Defense counsel cross-examined Detective Doherty at the admissibility
hearing regarding his interview of defendant. Detective Doherty conceded he
never inquired whether "English was [defendant's] native language," whether
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"English is . . . a common language in Nigeria," or whether defendant "might
feel more comfortable speaking in whatever his native language was." Detective
Doherty also said he never asked where defendant learned or how long he
studied English, and "[did not] try to find [an] interpreter for him."
Defense counsel also elicited testimony that "throughout the course of the
interview . . . there was some trouble with phrasing." Specifically, defendant
seemingly did not understand Detective Doherty's instruction to "initial" the
Miranda form and had to ask for clarification. Further, defendant repeatedly
said he was "a little bit sober" when he meant "a little bit drunk," requiring
clarification from Detective Doherty.
Finally, defense counsel inquired about Detective Doherty's
administration of defendant's Miranda rights. Detective Doherty stated he
"didn't explain [the Miranda rights] in detail beyond what was on the form" and
"didn't ask [defendant] to explain [the] rights back to [him] . . . in his own
words." He also stated that he "didn't ask [defendant] if he had ever heard [the
Miranda rights] before," and did not inquire whether defendant had "watched
any TV shows like Law & Order that might have given him some understanding
of" his Miranda rights or "studied anything about the U.S. legal system in his
college."
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As noted, at the conclusion of the two-day hearing, Judge Galis-Menendez
granted the State's application. She concluded that "the statements provided [by
defendant] were voluntary and they [would] not be suppressed for purposes of
trial." She explained that Detective Doherty read defendant his Miranda rights
and "had defendant read the rights himself." She found that defendant
"specifically asked [Detective Doherty] questions and it was a colloquy back
and forth." The judge explained that "the fact that defendant comes from another
country and didn't hear [Miranda rights] over and over again [is not] a negative
thing," explaining that "hear[ing] it all the time" "on TV" and "in school" can
"desensitize[]" people to the point where "we don't appreciate the significance
and the profoundness of those words."
Judge Galis-Menendez also explained that although "defendant is from
Nigeria . . . he's been in this country for three years" and found that the
"interrogation was very conversational," and defendant was "well[-]spoken and
articulate." She stated that when defendant did not understand something he
asked "appropriate questions," and determined "[t]here [was] nothing in the
interview to suggest that he didn't understand," Detective Doherty's questions or
instructions. Finally, the judge found that although "the interview was three
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hours in duration . . . nothing [about it] was intimidating" and "there was no
indication of any coercion of any kind."
Judge Galis-Menendez also presided over defendant's three-day jury trial
in July 2019. At trial, the State's evidence included testimony from Fiona and
Detective Doherty, the video-recording and transcript of defendant's statements
to Detective Doherty, and surveillance video obtained from Nu Flavor Kutz and
the former tattoo parlor.
The surveillance video showed defendant carrying Fiona to the basement
of the barbershop on his back and placing her on a couch, where she appeared
to be unconscious. Although the video from the tattoo parlor was dark and
partially obstructed, it clearly showed defendant removing Fiona's clothes,
touching her vagina and buttocks, using a cellphone flashlight to get a better
view of her, getting on top of Fiona with his pants partially down, and thrusting
his hips towards her repeatedly.
The jury convicted defendant and at sentencing the State requested Judge
Galis-Menendez impose a twenty-year sentence subject to the No Early Release
Act, along with Megan's Law registration, parole supervision for life and
Nicole's Law restraining order. The State also requested the court apply
aggravating factor one, N.J.S.A. 2C:44-1(a)(1), that the crime was committed
A-1050-19
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"in an especially heinous, cruel or depraved manner," and factor nine, N.J.S.A.
2C:44-1(a)(9), the need to deter defendant and others from committing similar
types of offenses. The State stressed that defendant's actions should be treated
as a first-degree crime because the victim was "clearly unconscious", and
defendant repeatedly assaulted her.
Defendant's counsel requested a sentence in the second-degree range. In
support, he referenced defendant's low intellectual testing scores as reflected in
a post-trial report prepared by the Adult Diagnostic and Treatment Center in
Avenel. He explained that defendant scored in the ".01 percentile" on
vocabulary, which "put him in the low mentally deficient range of intellectual
ability." While acknowledging that the score could have been affected by
English being defendant's second language, defense counsel explained that
defendant also scored in the fifth percentile of a "nonverbal intelligence" test,
which represented "the poor borderline range of intellectual functioning."
As noted, Judge Galis-Menendez sentenced defendant to a fifteen-year
term of imprisonment subject to NERA and parole supervision for life, imposed
Megan's Law registration requirements, and entered a Nicole's Law sexual
offender restraining order. In reaching her decision, Judge Galis-Menendez
found applicable aggravating factor nine and mitigating factor seven, N.J.S.A.
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2C:44-1(b)(7), "[t]he 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."
In support of aggravating factor nine, the judge stated that defendant "had
the opportunity to be a hero" and "could have saved somebody who needed help
and instead what transpired was the most intolerable breakdown in humanity ,"
and "[gave] great weight to aggravating factor number [nine]." As to mitigating
factor seven, Judge Galis-Menendez explained that defendant "ha[d] no prior
history of delinquency," and afforded the factor "average weight given the fact
that [defendant] [was] only in this country for three years." The court also
concluded that aggravating factor nine outweighed mitigating factor seven.
This appeal followed.
II.
In his first point, defendant contends that Judge Galis-Menendez
improperly admitted his statement to Detective Doherty. Specifically, he claims
"his lack of fluency in English and his inexperience with the American criminal
justice system," "rendered him unable to knowingly, intelligently, and
voluntarily waive his Miranda rights."
A-1050-19
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He further asserts Detective Doherty never inquired into defendant's
"literacy or educational background" or "familiarity with the criminal justice
system" and never "made any effort to find an interpreter for [defendant] nor did
he inquire whether [defendant] would feel more comfortable with the aid of an
interpreter." He also claims his language barrier was "evident" because
Detective Doherty "had trouble understanding [defendant] and had to ask him
to either repeat or clarify his responses a couple of times" and defendant "was
unable to accurately explain his level of intoxication" and "accurately describe
relative directions, such as 'up' and 'down.'" He also argues "the mere fact that
a person can read Miranda warnings aloud and/or speak some of the English
language should not lead to the conclusion that a suspect's English-language
skills are sufficient for him to understand and waive his constitutional rights. "
Finally, defendant asserts that the recorded statement was "critical to the State's
case" and, as such both suppression of his statement and reversal of his
conviction are warranted. We have reviewed the entire record thoroughly,
including the video and transcript of defendant's statements made to Detective
Doherty, and find defendant's arguments without merit.
"We review the trial court's factual findings as to defendant's Miranda
waiver in accordance with a deferential standard." State v. Tillery, 238 N.J. 293,
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314 (2019). In conducting that review, we "defer to the factual findings of the
trial court so long as those findings are supported by sufficient evidence in the
record." State v. Hubbard, 222 N.J. 249, 262 (2015). "[A] trial court's findings
should be disturbed only if they are so clearly mistaken 'that the interests of
justice demand intervention and correction.'" State v. A.M., 237 N.J. 384, 395
(2019) (quoting State v. Elders, 192 N.J. 224, 244 (2007)). We "defer to the
trial court's factual findings because the trial court has the 'opportunity to hear
and see the witnesses and to have the "feel" of the case, which a reviewing court
cannot enjoy.'" State v. S.S., 229 N.J. 360, 374 (2017) (quoting Elders, 192 N.J.
at 244). "That standard governs appellate review even when the trial court's
findings are premised on a recording or documentary evidence that the appellate
court may also review." Tillery, 238 N.J. at 314.
It is well-settled that "[c]onfessions obtained by the police during a
custodial interrogation are barred from evidence unless the defendant has been
advised of his or her constitutional rights." State v. Knight, 183 N.J. 449, 461
(2005). A waiver of the constitutional right against self-incrimination must be
voluntary, knowing, and intelligent. Ibid. (citing Miranda, 384 U.S. at 444). In
New Jersey, the burden is upon the State to prove the validity of a Miranda
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waiver beyond a reasonable doubt. State v. O'Neill, 193 N.J. 148, 168 n. 12
(2007).
"A waiver may be 'established even absent formal or express statements.'"
A.M., 237 N.J. at 397 (quoting Berghuis v. Thompkins, 560 U.S. 370, 383
(2010)). "Indeed, '[a]ny clear manifestation of a desire to waive is sufficient.'"
Tillery, 238 N.J. at 316 (alteration in original) (quoting State v. Hartley, 103
N.J. 252, 313 (1986)).
To determine the adequacy of waiver, "the trial court reviews 'the totality
of the circumstances surrounding the custodial interrogation.'" Tillery, 238 N.J.
at 316 (quoting A.M., 237 N.J. at 398). "The criterion is not solely the language
employed but a combination of that articulation and the surrounding facts and
circumstances." State v. Kremens, 52 N.J. 303, 311 (1968). Factors include
personal characteristics such as the defendant's age, education, and intelligence,
as well as indicators of the nature of the interrogation, such as the length in
detention and whether physical or mental exhaustion were involved in obtaining
the confession. See State v. Galloway, 133 N.J. 631, 654 (1993). Courts may
also consider a defendant's previous interactions with law enforcement. Knight,
183 N.J. at 463.
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In soliciting a waiver, the interrogating officer must conduct an adequate
inquiry. See Tillery, 238 N.J. at 318. To that end, the interrogating officer
should "ask whether the suspect understands his or her rights, and whether,
understanding those rights, he or she is willing to answer questions." Ibid.
"Where the prosecution shows that a Miranda warning was given and that it was
understood by the accused, an accused's uncoerced statement establishes an
implied waiver of the right to remain silent." Berghuis, 560 U.S. at 384.
Here, the totality of the circumstances fully supports Judge Galis-
Menendez's finding that defendant's Miranda waiver was voluntary, knowing,
and intelligent. Tillery, 238 N.J. at 316; Knight, 183 N.J. at 461. As noted,
Detective Doherty ensured defendant understood his Miranda rights by: 1)
orally reading defendant his Miranda rights and confirming he understood each
one; 2) confirming defendant could sufficiently "read and write the English
language"; 3) providing defendant with a written Miranda form; 4) ensuring
defendant could read the form by having him read the first right aloud; 5) having
defendant read the remaining rights and initial each confirming his
understanding; and 6) asking defendant if he still wanted to answer questions
after hearing his rights.
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The detective then took similar precautions in obtaining from defendant a
written waiver by orally reading it to defendant, confirming he understood the
waiver, and providing the waiver to defendant in writing for him to sign.
Detective Doherty's thorough inquiry was more than adequate in ensuring that
defendant understood his rights and, in light of those rights, was willing to give
a statement. See Tillery, 238 N.J. at 318. In sum, we are satisfied that the record
provides no basis to challenge Judge Galis-Menendez's conclusion that
defendant's waiver was knowing, voluntary, and intelligent, and his inculpatory
statements therefore, admissible. Knight, 183 N.J. at 461.
We find defendant's arguments to the contrary unsupported by the record.
While it is true that a language barrier hypothetically could render a Miranda
waiver ineffective in some circumstances, no such obstacle appeared here. As
Judge Galis-Menendez found, the interrogation was "very conversational," and
defendant was "well[-]spoken and articulate." The recording of the
interrogation fully supports these factual findings and judge's resulting legal
conclusions. That defendant occasionally misused a word or phrase, and
indicated that he was not able to read English very well, does not, in our view,
provide support to challenge the judge's findings. Indeed, when his interactions
with Detective Doherty are viewed in their entirety and in proper context, and
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not improperly truncated, we are satisfied that the State has established beyond
a reasonable doubt, that defendant was able to understand his Miranda rights
and effectuated a voluntary waiver. Similarly, we agree with Judge Galis-
Menendez that defendant's apparent inexperience with the criminal justice
system does not undermine that express waiver.
Further, we solicited supplemental briefing to clarify whether the
Attorney General had promulgated a policy requiring that interpreters be utilized
in all instances where English is not an accused's primarily language. The Office
of the Attorney General has advised that no such policy exists. In any event, we
find beyond peradventure that defendant was sufficiently conversant in English
such that an interpreter was not required under the circumstances presented. By
way of example only, during his three-hour conversation with Detective Doherty
conducted entirely in English, defendant, as noted, consented to waive his
Miranda rights orally and in writing, agreed to a buccal swab, demonstrated an
understanding of the meaning of an "oath," described the sexual assault, and
detailed his post-assault conversation with the victim. We also find significant
that defendant did not request an interpreter at trial or sentencing.
At oral argument, defendant's counsel raised for the first time an argument
that his intelligence testing scores from his Avenel report demonstrate that he
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lacked the cogitative capacity to understand, and therefore, properly waive his
Miranda rights. We find this argument without merit as well.
First, we would be remiss if we did not note that defendant failed to raise
this specific argument before Judge Galis-Menendez, or in his initial brief before
us. Indeed, before the judge and in his merits brief, defendant raised the post-
trial report solely as it related to defendant's sentence, not as further support that
his waiver was not knowing and voluntary. As such, we could have declined to
address it. See State v. Robinson, 200 N.J. 1, 18-19 (2009) ("The jurisdiction
of appellate courts rightly is bounded by the proofs and objections critically
explored on the record before the trial court by the parties themselves.") ; N.J.
Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div.
2015) ("An issue that is not briefed is deemed waived upon appeal.").
In light of the fact that we solicited additional briefing on this issue
primarily to permit the State an opportunity to respond to defendant's newly
minted argument, we consider defendant's contention on the merits and fin d no
reason to vacate defendant's conviction and remand for further proceedings. As
noted, the adequacy of a Miranda waiver is based on "the totality of the
circumstances surrounding the custodial interrogation," Tillery, 238 N.J. at 316
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(quoting A.M., 237 N.J. at 398), which takes into consideration defendant's
intelligence, Galloway, 133 N.J. 631, 654.
A defendant's limited intellectual functioning, while clearly relevant, is
not dispositive in determining whether Miranda rights were understood. See
State v. Carpenter, 268 N.J. Super. 378, 385 (App. Div. 1993). For example, in
Carpenter, an illiterate defendant with an I.Q. of 71 and "the mental
comprehension of a ten-year old child" provided statements to a detective after
being advised of his Miranda rights. Id. at 380, 384-85. We affirmed the trial
court's finding that defendant adequately understood and waived his rights,
concluding that "defendant comprehended the rational, logical concepts which
comprise the Miranda warnings." Id. at 386; see also State v. Cabrera, 387 N.J.
Super. 81, 87, 102 (App. Div. 2006) (holding the confession of a defendant with
a middle-school education obtained in Mexico and low I.Q. was made
voluntarily and was admissible).
Here, the totality of the circumstances supports Judge Galis-Menendez's
finding that the State established defendant's waiver beyond a reasonable doubt.
We find nothing in the record to indicate that defendant's level of intelligence
rendered him unable to understand and properly waive his Miranda rights.
Detective Doherty meticulously advised defendant of his rights and ensured he
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understood them before engaging him in an approximately three-hour interview
to which he was an active and responsive participant. Not to belabor the point,
and by way of example only, in that interview, defendant revealed that he was
employed and attended college before dropping out and he provided a coherent
and detailed account to Detective Doherty regarding how he met Fiona before
repeatedly assaulting her and explained how he later engaged in discussions with
her involving the ills of drinking.
The Avenel report relied upon by defendant provides no basis to depart
from Judge Galis-Menendez's finding that defendant's waiver was knowing,
voluntary, and intelligent. Although defendant's intellectual testing scores were
admittedly low, the report explains that the results may have been affected by
defendant "being raised in Nigeria and learning English as a second language."
The report also found "no indication of . . . neurological impairment" and stated
that defendant completed "a number of [written] self-report questionaries" as
well as a verbal interview, in which defendant's "[t]hought processes, as
measured by speech, were adequately organized." Finally, the report included
that defendant "graduated from high school in Nigeria, and entered the Un ited
States on a student visa." As such, we have no reason to conclude that defendant
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was unable to "comprehended the rational, logical concepts which comprise the
Miranda warnings." Carpenter, 268 N.J. Super. at 386.
III.
In defendant's second point, he argues his sentence was excessive.
Specifically, he contends that Judge Galis-Menendez "failed to articulate why
[she] placed particular emphasis on aggravating factor nine" and relies on State
v. Case, 220 N.J. 49 (2014) for the proposition that the judge "misuse[d]
aggravating factor nine . . . to express [her] repugnance against a defendant or
the type of offense he . . . committed," resulting in "a form of double counting"
and lack of uniformity in sentencing. He further claims Judge Galis-Menendez
failed to explain the need to deter defendant specifically and because Judge
Galis-Menendez applied improper weight to aggravating factor nine, her
sentencing "calculus" was materially altered, warranting a resentencing. We are
unpersuaded by any of these arguments.
"Appellate review of sentencing is deferential, and appellate courts are
cautioned not to substitute their judgment for those of our sentencing courts. "
Case, 220 N.J. at 65. We must affirm a sentence unless: 1) the trial court failed
to follow the sentencing guidelines; 2) the court's findings of aggravating and
mitigating factors were not based on competent and credible evidence in the
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record; or 3) "the [court's] application of the guidelines to the facts of [the] case
makes the sentence clearly unreasonable so as to shock the judicial conscience."
State v. Fuentes, 217 N.J. 57, 70 (2014) (second alteration in original) (quoting
State v. Roth, 95 N.J. 334, 364-65 (1984)).
Further, we are "bound to affirm a sentence, even if [we] would have
arrived at a different result, as long as the trial court properly identifies and
balances aggravating and mitigating factors that are supported by competent
credible evidence in the record." State v. Grate, 220 N.J. 317, 337 (2015)
(alteration in original) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)). To
be accorded such deference, the sentencing court is required to "identify the
relevant aggravating and mitigating factors, determine which factors are
supported by a preponderance of evidence, balance the relevant factors, and
explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J.
210, 215 (1989); see also N.J.S.A. 2C:43-2(e). "If the court determines when it
[sentences] defendant that aggravating factor nine applies, it should address both
general and specific deterrence . . . ." Fuentes, 217 N.J. at 81.
Judge Galis-Menendez appropriately applied and weighed the aggravating
and mitigating factors and provided an adequate explanation for her decision.
In applying and affording "great weight" to aggravating factor nine, Judge Galis-
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Menendez explained that defendant "had the opportunity to be a hero" and
"save[] somebody who needed help" and instead engaged in "the most
intolerable breakdown in humanity." This explanation expressly addressed the
need to deter defendant from his incredibly poor decision-making, which
resulted in his commission of a crime involving the victimization of a helpless
individual. The judge's comment also addressed the need for general deterrence,
and she did not engage in improper double counting.
Finally, we find defendant's reliance on State v. Case, 220 N.J. at 66-70,
unpersuasive. In that case, the Supreme Court vacated defendant's sentence and
remanded for a new hearing as the sentencing proceeding was "flawed for
multiple reasons," including the sentencing court's failure to explain its "reason
for placing 'particular emphasis on aggravating factor nine'—the need for both
specific and general deterrence," and to qualitatively weigh the aggravating and
mitigating factors in a case involving a discretionary parole disqualifier. Id. at
54, 66-70.
The infirmities at issue in the Case sentencing simply do not exist here as
the court adequately explained the bases for relying on aggravating factor nine.
As noted, Judge Galis-Menendez determined based on the evidence in the
record, which included defendant's sexual assault of an incapacitated victim,
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that defendant engaged in the type of conduct that supported the need for both
general and specific deterrence.
Finally, defendant's sentence for this heinous crime does not "shock [our]
judicial conscience." Indeed, despite finding that "the aggravating factor . . .
outweigh[s] the [sole] mitigating factor," Judge Galis-Menendez imposed a
sentence in the middle of the first-degree range. Fuentes, 217 N.J. at 70 (quoting
Roth, 95 N.J. at 365); see N.J.S.A. 2C:43-6(a)(1). Judge Galis-Menendez's
findings are fully supported by the record, consistent with the Code of Criminal
Justice, and worthy of our deference. Fuentes, 217 N.J. at 70.
IV.
Finally, the State asserts a limited remand is necessary to correct a clerical
error on defendant's October 11, 2019 JOC. We agree.
Judge Galis-Menendez properly imposed a Nicole's Law sexual offender
restraining order, and the JOC contains a note that "Nicole's Law applies."
However, on the second page of the JOC, the court left unchecked a box
indicating the imposition of a Nicole's Law sexual offender restraining order.
Rule 1:13-1 provides "Clerical mistakes in judgments, orders or other
parts of the record and errors therein arising from oversight and omission may
at any time be corrected by the court on its own initiative or on the motion of
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any party, and on such notice and terms as the court directs . . . ." See also State
v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016) ("In the event of a
discrepancy between the court's oral pronouncement of sentence and the
sentence described in the judgment of conviction, the sentencing transcript
controls, and a corrective judgment is to be entered."). As such, we remand for
the sole purpose of correcting the JOC to clearly indicate the applicability of
Nicole's Law and the imposition of the necessary restraining order, consistent
with Judge Galis-Menendez's oral decision at sentencing.
To the extent not addressed, we determine the balance of defendant's
arguments to be without sufficient merit to warrant further discussion. R. 2:11-
3(e)(2).
Affirmed in part and remanded in part. We do not retain jurisdiction.
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