STATE OF NEW JERSEY VS. DANIEL J. LAWRENCE (15-02-0103, WARREN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4348-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DANIEL J. LAWRENCE,
Defendant-Appellant.
____________________________
Argued April 30, 2019 – Decided October 9, 2019
Before Judges Yannotti, Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 15-02-0103.
Michael Timothy Denny, Assistant Deputy Public
Defender, argued the cause for appellant (Joseph E.
Krakora, Public Defender, attorney; Michael Timothy
Denny, of counsel and on the brief).
Kelly A. Shelton, Assistant Prosecutor, argued the
cause for respondent (Richard T. Burke, Warren
County Prosecutor, attorney; Kelly A. Shelton, of
counsel and on the brief).
The opinion of the court was delivered by
ROTHSTADT, J.A.D.
Defendant Daniel Lawrence appeals from the Law Division's May 23,
2017 Judgment of Conviction (JOC) entered after a jury found him guilty of
murder and weapons charges. He also challenges the trial judge's imposing of
an aggregate sentence of forty years subject to a period of parole ineligibility
under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's
conviction was based upon his repeated fatal stabbing of his ex-girlfriend's
former boyfriend. At trial, defendant argued he acted in self-defense. The trial
judge instructed the jury on that defense and defendant never raised any
objection to that charge or to any other charge. Defendant did not ask for any
charge in addition to what was proposed by the trial judge.
On appeal, defendant contends for the first time that the trial judge erred
(1) by not instructing the jury on passion-provocation manslaughter (PPM); (2)
by not properly instructing the jury on self-defense and how it applied to each
of the crimes charged; and (3) that resentencing is required because the judge
"double-counted" and found aggravating factors without reason. For the reasons
that follow, we affirm.
A-4348-16T2
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I.
The facts as developed at trial are summarized as follows. Prior to the
fatal stabbing, on September 1, 2014, the victim W.M. (William) 1 contacted his
ex-girlfriend M.W. (Mary) to arrange his stopping by Mary's apartment the next
day to retrieve his belongings that he had left at Mary's home. The next day,
prior to William's arrival, defendant went to Mary's home at approximately 9:00
a.m. in an attempt to restore his relationship with her. Upon defendant's arrival,
the two drank alcohol and then fell asleep.
Later that same day, William arrived and asked for his belongings. After
answering the door with defendant, Mary went back upstairs, looked throughout
her apartment, eventually located William's bag, and gave it to him. After
inspecting the bag, William discovered it had been sitting on Mary's porch for
over a year and had become infested with roaches. William became upset and
told Mary that he would not have treated her belongings that way. According
to Mary, it was at that point William and defendant began making "slick
comments" toward one another.
1
We refer to individuals by their initials and use pseudonyms to protect their
privacy.
A-4348-16T2
3
According to defendant, William, who was much larger than defendant,
quickly approached Mary. Defendant jumped in front of Mary, and William
attacked defendant by "grabb[ing] . . . punching and choking . . . [him]." Mary
described the altercation as "tussling." Defendant then "got a hold of [his] little
pocket knife and used it to fend . . . [William] off." Defendant, in fear for his
life, brandished his knife and cut William's arm after both his fists and
attempting to speak to William had no effect. At that point, the two stopped
fighting.
According to Mary, instead of leaving, William decided to wait outside
her home until he could get a cab back to the train station. While he waited
outside, defendant and Mary's other family members were on the porch together.
According to Mary, defendant and William were "not okay with each other" and
were again "tussling." Mary told them to calm down and they complied.
After Mary's family members left—leaving only her, defendant, and
William—defendant and William began "making comments" about their
relationships with Mary. Mary then went upstairs, heard "arguing" and more
"tussling," went back downstairs, saw the two "getting into it" both physically
and verbally, and threatened to call the police.
A-4348-16T2
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Shortly thereafter, Mary's dog got out of the house and Mary ran after him.
She then returned to her home with her dog and heard William and defendant
being "very, very loud" while she was inside putting on the dog's collar. She
walked outside and saw William sitting in a chair, defendant repeatedly striking
him while William attempted to protect himself. Seeing blood on defendant and,
after defendant did not respond to her verbal request to stop, Mary pulled him
off William.
Mary thought defendant was bleeding and went upstairs to get medical
supplies. She looked out her bedroom window and noticed William lying on the
grass, defendant standing over him. While William was on the ground,
defendant said "I guess that hurt" and was "being mean." Mary then called the
police. As it turned out, defendant had stabbed William eight times before Mary
pulled him off William.
Local police officers and detectives responded to the scene. An
ambulance also arrived and although William was still alive when EMTs placed
him into the ambulance, by the time they arrived at the hospital William had
died. The Medical Examiner later established the cause of death was "[m]ultiple
sharp force injuries" and a toxicology report indicated the presence of
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5
phencyclidine (PCP) and methamphetamine in William's blood, as well as a
blood alcohol content in excess of .12.
On February 25, 2015, a Warren County Grand Jury issued an indictment
charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count
one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d)
(count two); and third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count three). Defendant was tried over six days in 2017.
At the conclusion of the trial, before instructing the jury, the trial judge
conducted a charge conference during which he reviewed his proposed jury
charges with counsel. Defense counsel indicated he had reviewed the most
recent version of the charges, and when asked if he had any "[q]uestions,
comments, additions, deletions, [or] changes," he said he did not. After the
judge instructed the jury with his proposed charges and the jury deliberated, the
jury found defendant guilty of each offense charged in the indictment. The
following month, the trial judge sentenced defendant. This appeal followed.
On appeal, defendant makes the following arguments:
POINT I
IT WAS PLAIN ERROR TO NOT GIVE AN
INSTRUCTION ON PASSION-PROVOCATION
WHEN THE DEFENSE WAS SELF-DEFENSE.
(NOT RAISED BELOW).
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POINT II
THE JURY INSTRUCTIONS ON SELF-DEFENSE
MISINFORMED THE JURY ON THE CORRECT
BURDEN OF PROOF AND WERE NOT
INCORPORATED INTO THE INDIVIDUAL
COUNTS, ALLOWING THE JURY TO CONVICT
THE DEFENDANT UPON THE SIMPLE ELEMENTS
OF THE CRIMES CHARGED WITHOUT EVER
CONSI[]DERING THE APPLICABILITY OF SELF-
DEFENSE. (NOT RAISED BELOW).
A. THE INSTRUCTIONS ON SELF-
DEFENSE WERE INCONSISTENT.
B. THE INSTRUCTIONS FAILED TO
CONVEY HOW SELF-DEFENSE RELATES TO
EACH OF THE SUBSTANTIVE CRIMES.
POINT III
RESENTENCING IS REQUIRED BECAUSE THE
TRIAL COURT IMPERMISSIBLY DOUBLE-
COUNTED, FOUND AGGRAVATING FACTOR
ONE ABSENT ANY EVIDENCE OF PARTICULAR
HEINOUSNESS OR CRUELTY, AND FOUND
FACTORS THREE AND NINE WITHOUT ANY
REASON WHATSOEVER.
We are not persuaded by defendant's contentions.
II.
We first address defendant's argument that the trial judge committed plain
error by failing to charge PPM as a lesser-included offense of murder.
Defendant contends the trial judge had a duty to instruct the jury on any lesser-
A-4348-16T2
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included offenses for which there is a rational basis in the record , even though
he did not request the charge. He argues that the evidence established the first
two elements of PPM, including defendant's allegation that William was the first
aggressor, that defendant reasonably believed his life was in danger, and that the
proof of mutual battery was sufficiently provocative to warrant the instruction.
Further, defendant contends that because the judge also charged aggravated and
reckless manslaughter as lesser-included offenses, his failure to charge PPM was
especially erroneous. We disagree.
A.
At the outset, as defendant recognizes, "[w]hen a defendant fails to object
to an error or omission [about a jury charge] at trial, we review for plain error.
Under that standard, we disregard any alleged error 'unless it is of such a nature
as to have been clearly capable of producing an unjust result.'" State v.
Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Reversal is warranted
only where an error raises "a reasonable doubt . . . as to whether the error led
the jury to a result it otherwise might not have reached." Ibid. (alteration in
original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). "The mere
possibility of an unjust result is not enough." Ibid.
A-4348-16T2
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In its jury charges, a "trial court must give 'a comprehensible explanation
of the questions that the jury must determine, including the law of the case
applicable to the facts that the jury may find.'" State v. Baum, 224 N.J. 147, 159
(2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). Accordingly, "the
court has an 'independent duty . . . to ensure that the jurors receive accurate
instructions on the law as it pertains to the facts and issues of each case,
irrespective of the particular language suggested by either party.'" Ibid.
(alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)).
"[I]f the parties do not request a lesser-included-offense charge, reviewing
courts 'apply a higher standard, requiring the unrequested charge to be "clearly
indicated" from the record.'" State v. Fowler, __N.J__, __, (2019) (slip op. at
22) (quoting State v. Alexander, 233 N.J. 132, 143 (2018)). See also State v.
Denofa, 187 N.J. 24, 42 (2006); N.J.S.A. 2C:1-8(e). As such,
[t]he "clearly indicated" standard does not require trial
courts either to "scour the statutes to determine if there
are some uncharged offenses of which the defendant
may be guilty," or "'to meticulously sift through the
entire record . . . to see if some combination of facts
and inferences might rationally sustain' a lesser
charge." Instead, the evidence supporting a lesser-
included charge must "jump[ ] off the page" to trigger
a trial court's duty to sua sponte instruct a jury on that
charge.
A-4348-16T2
9
[Alexander, 233 N.J. at 143 (second and third
alterations in original) (citations omitted).]
B.
PPM is a "well-established lesser-included offense of murder." State v.
Carrero, 229 N.J. 118, 129 (2017). Under N.J.S.A. 2C:11-4(b)(2), a criminal
homicide may be considered manslaughter when "[a] homicide which would
otherwise be murder . . . is committed in the heat of passion resulting from a
reasonable provocation." "Passion/provocation manslaughter is an intentional
homicide committed under extenuating circumstances that mitigate the murder."
State v. Robinson, 136 N.J. 476, 481 (1994). It "contains all the elements of
murder except that the presence of reasonable provocation, coupled with
defendant's impassioned actions, establish a lesser culpability." Id. at 482; see
N.J.S.A. 2C:1-8(d)(3).
Four elements must be met for PPM: (1) there must be adequate
provocation; (2) "the defendant must not have had time to cool off between the
provocation and the slaying"; (3) the defendant must have been actually
impassioned by the provocation; and (4) "the defendant must not have actually
cooled off before the slaying." Funderburg, 225 N.J. at 80 (quoting State v.
Mauricio, 117 N.J. 402, 411 (1990)).
A-4348-16T2
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The first two elements are objective while the latter two are subjective.
Carrero, 229 N.J. at 129. Accordingly, a court should decide whether there is
sufficient evidence of the first two elements. Ibid. "To warrant the
passion/provocation jury charge, the evidence must rationally support only the
first two elements; the subjective elements 'should usually be left to the jury to
determine.'" Ibid. (quoting Mauricio, 117 N.J. at 413).
The element of adequate provocation is measured by whether "loss of self-
control is a reasonable reaction." State v. Foglia, 415 N.J. Super. 106, 126 (App.
Div. 2010) (quoting Mauricio, 117 N.J. at 412). With regard to the first element,
"the provocation must be 'sufficient to arouse the passions of an ordinary
[person] beyond the power of his [or her] control.'" Carrero, 229 N.J. at 129
(alterations in original) (quoting Mauricio, 117 N.J. at 412). "The generally
accepted rule is that words alone, no matter how offensive or insulting, do not
constitute adequate provocation to reduce murder to manslaughter."
Funderburg, 225 N.J. at 80 (quoting State v. Crisantos, 102 N.J. 265, 274
(1986)). "Battery is . . . considered adequate provocation 'almost as a matter of
law'" and the element may also be satisfied by "the presence of a gun or knife."
Carrero, 229 N.J. at 129 (quoting Mauricio, 117 N.J. at 414). Also, for a PPM
charge to be warranted based on mutual combat, that combat "'must have been
A-4348-16T2
11
waged on equal terms [with] no unfair advantage taken of the deceased,' unlike
a setting in which the defendant uses a deadly weapon against an unarmed
victim." State v. Galicia, 210 N.J. 364, 380 (2012) (quoting Crisantos, 102 N.J.
at 274).
Regarding the cool-off period, "it is well-nigh impossible to set specific
guidelines in temporal terms." Carrero, 229 N.J. at 129 (quoting Mauricio, 117
N.J. at 413). Therefore, "[t]rial courts are . . . remitted to the sense of the
situation as disclosed by the facts." Mauricio, 117 N.J. at 413.
C.
Applying these guiding principles, we conclude that the PPM charge was
unwarranted—there were no facts that clearly indicated it was applicable. There
was no evidence suggesting at the time defendant repeatedly stabbed William,
he had provoked defendant by anything more than "mere words" as he sat in a
chair waiting for a taxi. Moreover, there was no proof that William used any
type of weapon to threaten or harm either Mary or defendant at that time. To
the extent defendant relies upon his earlier fight with William in Mary's
apartment, it was apparent that a sufficient amount of time elapsed to permit
defendant to cool down had he been adequately provoked during the initial
encounter. Under these circumstances, in the absence of any request for the
A-4348-16T2
12
charge, there was no reason to instruct the jury with a PPM without there being
any supporting evidence in the record that clearly indicated it was warranted.
III.
A.
Defendant also argues for the first time on appeal that the trial judge's
instruction on self-defense was inconsistent and improper because it "distort[ed]
and minimiz[ed] the State's burden of proof" and "fail[ed] to incorporate the
absence of self-defense into each of the substantive counts as effectively an
element that the State must disprove before a conviction can be returned." He
contends the jury should have been instructed that it was the State's burden to
prove defendant's belief was unreasonable, or that the elements of self -defense
did not exist, rather than instructing them it was defendant's burden to prove that
his belief was reasonable and that the elements of the defense did in fact exist.
Defendant also argues that the instructions "only briefly stated" the State bore
the burden of disproving self-defense and immediately contradicted that
statement by referencing the jury's duty to determine if the elements of the
defense existed. Together, the instructions "diluted the State's burden of
disproving self-defense" and "d[id] not clearly and consistently inform the jury
A-4348-16T2
13
that they must acquit [defendant] unless the State disproves self-defense beyond
a reasonable doubt," constituting reversible error.
Defendant also contends that the instructions did not convey how self-
defense relates to each of the crimes charged. More specifically, the jury was
not instructed on "the absence of self-defense" as "an element of those counts
that the State would have to prove before a conviction could be obtained." He
argues that in addition to charging the jury with the ordinary elements of each
of the charged crimes, if self-defense is raised, the court must include "an
additional element for the State to prove: the absence of self-defense" for each
charged crime. Also, according to defendant, juries should be instructed that
the absence of PPM is an element of murder that the State must disprove.
Similarly, they should be instructed that the absence of self-defense is an
element of murder. We find no merit to these contentions.
The judge's charge on murder, and the lesser-included offenses of
aggravated manslaughter and reckless manslaughter, were followed by
instructions on self-defense that mirrored the applicable Model Jury Charge.
See Model Jury Charges (Criminal), "Justification-Self Defense in Self
Protection (N.J.S.A. 2C:3-4)" (rev. Jun. 13, 2011). The charge given by the
judge stated the following:
A-4348-16T2
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The indictment charges that the defendant has
committed the crime of murder. The defendant
contends that if the State proves he used or threatened
to use force upon the other person, that such force was
justifiably used for his self-protection. The statute
reads, "[t]he use of force upon or toward another person
is justifiable when the actor reasonably believes that
such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by
such other person or on the present occasion."
In other words, self-defense is the right of a person to
defend against any unlawful force. Self-defense is also
the right of a person to defend against seriously
threatened unlawful force that is actually pending or
reasonably anticipated. When a person is in imminent
danger of bodily harm, the person has the right to use
force or even deadly force when that force is necessary
to prevent the use against him of unlawful force. The
force used by the defendant must not be significantly
greater than, and must be proportionate to, the unlawful
force threatened or used against the defendant.
Unlawful force is defined as force used against a person
without the person's consent in such a way that the
action would be a civil wrong or criminal offense. If
the force used by the defendant was not immediately
necessary for the defendant's protection, or if the force
used by the defendant was disproportionate in its
intensity, then the use of such force by the defendant
was not justified and the self-defense claim fails. There
are different levels of force that a person may use in his
own defense to prevent unlawful harm.
The defendant can only use that amount or degree of
force that he reasonably believes is necessary to protect
himself against harm. If the defendant is attempting to
protect himself against exposure to death or the
A-4348-16T2
15
substantial danger of serious bodily injury, he may
resort to the use of deadly force. Otherwise, he may
only resort to non-deadly force.
The use of deadly force may be justified only to defend
against force or the threat of force of nearly equal
severity and is not justifiable unless the defendant
reasonably believes that such force is necessary to
protect himself against death or serious bodily injury.
Deadly force is defined as force that the defendant uses
with the purpose of causing or which he knows to create
a substantial risk of causing death or serious bodily
injury. By serious bodily harm, we mean an injury that
creates a risk of death or which causes serious
permanent disfigurement or which causes a protracted
loss or impairment of the function of any bodily
member or organ. For example, if one were to
purposely fire a firearm in the direction of another
person, that would be an example of deadly force. A
mere threat with a firearm, however, intended only to
make the victim of the threat believe the defendant will
use the firearm if necessary is not an example of deadly
force.
One cannot respond with deadly force to a threat or
even an actual minor attack. For example, a slap or an
imminent threat of being pushed in a crowd would not
ordinarily justify the use of deadly force to defend
against such unlawful conduct. Therefore, you must
first determine whether the defendant used deadly
force. If you find that the defendant did so, then you
must determine if the defendant reasonably believes he
had to use deadly force to defend against the unlawful
conduct of another.
A reasonable belief is one which would be held by a
person of ordinary prudence and intelligence, situated
as this defendant was. Self-defense exonerates a person
A-4348-16T2
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who uses force in the reasonable belief that such action
was necessary to prevent his or her death or serious
injury, even though his belief was later proven
mistaken. Accordingly, the law requires only a
reasonable, not necessarily a correct, judgment.
Even if you find the use of deadly force was reasonable,
there are limitations on the use of deadly force. If you
find that the defendant, with the purpose of causing
death or serious bodily harm to another person,
provoked or incited the use of force against himself in
the same encounter, then that defense is not available
to him.
If you find that the defendant knew that he could have
avoided the necessity of using deadly force by
retreating, provided that the defendant knew he could
do so with complete safety, then the defense is not
available to him.
In your inquiry as to whether a defendant who resorted
to deadly force knew that an opportunity to retreat with
complete safety was available, the total circumstances,
including the attendant excitement accompanying the
situation, must be considered.
The State has the burden to prove to you beyond a
reasonable doubt that the defense of self-defense is
untrue. This defense only applies if all conditions or
elements previously described exist. The defense must
be rejected if the State disproves any of the conditions
beyond a reasonable doubt.
The same theory applies to the issue of retreat.
Remember that the obligation of the defendant to
retreat only arises if you find that the defendant resorts
to the use of deadly force. If the defendant does not
resort to the use of deadly force, one who is unlawfully
A-4348-16T2
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attacked may hold his position and not retreat whether
the attack upon him is by deadly force or some lesser
force.
The burden of proof is upon the State to prove beyond
a reasonable doubt the defendant knew he could have
retreated with complete safety. If the State carries its
burden, then you must disallow the defense. If the State
does not satisfy this burden and you do have a
reasonable doubt, then it must be resolved in favor of
the defendant and you must allow the claim of self-
defense and acquit the defendant.
Similarly, the judge instructed the jury as to the two other offenses in
accordance with the Model Jury Charges. As to count three, the judge included
a charge on protective purpose that applies when a defendant argues his
possession of the weapon was part of his self-defense. The judge also explained
how that charge differed from self-defense as it applied to murder in that it did
not require defendant have a reasonable belief that he needed the weapon to
defend himself. See Model Jury Charges (Criminal), "Unlawful Possession of
a Weapon (N.J.S.A. 2C:39-5(d))" (rev. Apr. 18, 2005); Model Jury Charges
(Criminal), "Possession of a Weapon with a Purpose to Use it Unlawfully
Against the Person or Property of Another (N.J.S.A. 2C:39-4(d))" (rev. Jun. 16,
2003).
During their deliberations, the jury sent a question to the judge asking
"once the defendant claims self-defense, is the burden of proof shifted to the
A-4348-16T2
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defendant?" The judge responded by stating the "simple straightforward answer
to that is no. The burden of proof never shifts to the defendant."
B.
We begin our review of the challenged charge by observing that here too,
defendant did not interpose an objection to any of the trial judge's charges,
requiring us to again review only for "plain error." We will reverse only for
plain error, or error that is "clearly capable of producing an unjust result."
Funderburg, 225 N.J. at 79 (quoting R. 2:10-2). The error must have "led the
jury to a result it otherwise might not have reached." State v. Castagna, 376 N.J.
Super. 323, 355-56 (App. Div. 2005) (quoting State v. Macon, 57 N.J. 325, 336
(1971)). "[P]lain error requires demonstration of 'legal impropriety in the charge
prejudicially affecting the substantial rights of the defendant and sufficiently
grievous to justify notice by the reviewing court . . . .'" State v. Nero, 195 N.J.
397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
In our review, if a defendant does not object to an instruction at trial, we
presume that the instructions were adequate. State v. Belliard, 415 N.J. Super.
51, 66 (App. Div. 2010). Moreover, there is a "presumption of propriety that
attaches to a trial court's reliance on the Model Jury Charge" when it is used for
A-4348-16T2
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the specific purpose for which it was adopted. Estate of Kotsovska v. Liebman,
221 N.J. 568, 596 (2015).
We conclude there was no error, let alone "plain error" in the trial judge's
reliance upon the Model Jury Charges. Here, the jury instructions for the three
crimes charged mirrored the Model Jury Charge for each offense. For
defendant's claim of self-defense, with regard to counts one and three, the judge
included instructions as to how self-defense applied to the offenses and how it
differed in the context of each crime. Correctly, the judge did not discuss self-
defense in the context of count two, because it "does not excuse possession of a
weapon in violation of section 5d except in 'those rare and momentary
circumstances where an individual arms himself spontaneously to meet an
immediate danger.'" State v. Kelly, 118 N.J. 370, 372 (1990) (quoting State v.
Harmon, 104 N.J. 189, 208-09 (1986)). That was not the situation here.
We find the judge's charges adequately conveyed that the State bore the
burden of proof, the relationship of self-defense to the substantive charges, and
properly instructed the jury to apply self-defense if it found it appropriate.
Considering the charge as a whole, the jury did not consider defendant's guilt
without also considering the applicability of self-defense, as demonstrated by
the jury's request for clarification. The charges followed a logical sequence, and
A-4348-16T2
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the judge advised the jury that it could not convict defendant unless the State
disproved self-defense beyond a reasonable doubt. Finally, the judge informed
the jury multiple times that even after defendant claims self-defense, the burden
of proof never shifts to the defendant.
IV.
Last, we address defendant's challenge to his sentence. The trial judge
sentenced defendant to a term of forty years subject to NERA for count one,
merged count three into count one, and imposed a concurrent eighteen months
for count two. In support of the sentence, the judge found aggravating factors
one, N.J.S.A. 2C:44-1(a)(1), the nature and circumstances of the offense and the
role of the actor therein, including whether it was committed in an especially
heinous, cruel, or depraved manner; three, N.J.S.A. 2C:44-1(a)(3), the risk that
defendant will commit another offense; 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
noted that aggravating factor one was appropriate given the brutality of the
murder, the fact that defendant stabbed William nine times, and showed
indifference to the fact that he had taken a life.
The judge rejected defendant's request for application of mitigating
factors three, N.J.S.A. 2C:44-1(b)(3), that defendant acted under a strong
A-4348-16T2
21
provocation, and seven, N.J.S.A. 2C:44-1(b)(7), that defendant had no history
of prior criminal activity or has led a law-abiding life. The judge declined to
find either, stating that there was a considerable amount of verbal altercation
prior to the stabbing, which is not strong provocation, and that although
defendant did not have prior felony convictions, he had municipal convictions.
We "review sentences deferentially, ordinarily affirming even where we
would have arrived at a different result." State v. Locane, 454 N.J. Super. 98,
120 (App. Div. 2018) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We
"ask only if legislative guidelines have been followed, if competent credible
evidence supports each finding of fact upon which the judge based the sentence,
and . . . decide whether application of the facts to the law is such a clear error
of judgment that it shocks the judicial conscience." Ibid. (citing State v. Roth,
95 N.J. 334, 364-65 (1984)). "The assessment of statutory aggravating and
mitigating sentencing factors must be fully supported by the evidence. '[T]here
is more discretion involved in identifying mitigating factors than in addressing
aggravating factors.'" Ibid. (alteration in original) (quoting State v. Blackmon,
202 N.J. 283, 297 (2010)).
On appeal, defendant contends that resentencing is necessary due to
improper application and weighing of aggravating factors. He argues that the
A-4348-16T2
22
trial judge did not provide an appropriate basis for finding aggravating factor
one or state why the crime was especially heinous or cruel as compared to other
murders. Rather, the judge stated only that defendant stabbed William nine
times and that defendant must have known that would result in death. Moreover,
defendant argues that because the trial judge found this factor based on an aspect
of the offense that the Legislature took into account for sentencing purposes—
defendant's mental state—it constituted "improper double-counting" of the
elements of the crime. Regarding factors three and nine, defendant contends
that the judge failed to engage in any analysis and they are unsupported by the
record.
It is well-settled that a judge "shall state reasons for imposing [a] sentence
including . . . the factual basis supporting a finding of particular aggravating or
mitigating factors affecting sentence." State v. Natale, 184 N.J. 458, 488 (2005)
(quoting R. 3:21-4(g)) (alterations in original). Defendant's arguments
regarding aggravating factor one being unsupported as double-counting are
unpersuasive. Defendant is correct that "a court may not double count a fac t
that establishes an element of the offense as a basis to support an aggravating or
mitigating factor." Locane, 454 N.J. Super. at 123. However, the trial judge
acknowledged this limitation and stated that although he could not use William's
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death as an aggravating factor without double-counting, he could properly
consider the nature of the death and brutality of the crime as aggravating factors.
See State v. Soto, 340 N.J. Super. 47, 71 (App. Div. 2001) (citations omitted)
("[W]here the Legislature has already taken certain aspects of the nature and
circumstances of the offense into account in grading, the judge may not consider
those same aspects again as aggravating factors. Nevertheless, the cruel manner
of an attack can be considered an aggravating factor."). The trial judge
thoroughly explained the facts on the record that led him to find aggravating
factor one and did not abuse his discretion in doing so.
With regard to aggravating factors three and nine, we conclude they were
supported by defendant's municipal court convictions and the nature of his
behavior, before and after, repeatedly and fatally stabbing William. We have
no reason to disturb defendant's sentence as the judge's decision was supported
by the evidence and it does not "shock the judicial conscience." See State v.
Fuentes, 217 N.J. 57, 80-81 (2014) (quoting Roth, 95 N.J. at 365).
Affirmed.
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