STATE OF NEW JERSEY VS. PAUL A. CARTER (17-05-0203, SALEM 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NOT FOR PUBLICATION WITHOUT THE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-0896-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
PAUL A. CARTER,
a/k/a PAUL ANTHONY
CARTER, PAUL A. CARIER,
PDOT,
Defendant-Appellant.
___________________________
Submitted April 14, 2021 – Decided July 15, 2021
Before Judges Fuentes, Whipple and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Salem County, Indictment No. 17-05-0203.
Joseph E. Krakora, Public Defender, attorney for
appellant (Ruth E. Hunter, Designated Counsel, on the
brief).
John T. Lenahan, Salem County Prosecutor, attorney
for respondent (David M. Galemba, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Tried to a jury, defendant Paul A. Carter was convicted of murder,
aggravated assault, tampering with evidence, resisting arrest, drug, and weapons
offenses for the execution-style shooting death of Anthony Johnson on a Salem
City street in November 2016. During the seven-day trial, the State presented
the testimony of fourteen witnesses and introduced in evidence more than one
hundred exhibits. But the case turned on the multiple video and audio
recordings: the murder was depicted on home surveillance video; defendant's
spontaneous admissions were captured on the police car's mobile video recorder
(MVR). And two local officers on routine patrol saw a muzzle flash, heard the
shots, chased defendant, and arrested him immediately after they saw him toss
the murder weapon into a pile of leaves. Defendant was sentenced to an
aggregate prison term of sixty-five years with a parole disqualifier of fifty-two
and one-half years.
Defendant now appeals, arguing:
POINT I
THE EVIDENCE CLEARLY INDICATED THAT
THE TRIAL COURT SHOULD HAVE CHARGED
AGGRAVATED AND RECKLESS
MANSLAUGHTER AS LESSER-INCLUDED
OFFENSES. SEE STATE V. JENKINS, 178 N.J. 3472 A-0896-19
(2004); U.S. Const. Amend. XIV; N.J. Const. Art. I., ¶
1, 10.
(Not raised below)
POINT II
THE STATE'S REPEATED PLAYBACK DURING
SUMMATION OF THE HARMFUL VIDEO
RECORDINGS, WHICH UNDULY EMPHASIZED
THE STATE'S CASE, AND THE COURT'S FAILURE
TO PROVIDE A CAUTIONARY INSTRUCTION,
WAS PLAIN ERROR.
(Not raised below)
POINT III
THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY THAT DEFENDANT'S "MERE
PRESENCE" NEAR WHERE THE GUN WAS
DISCOVERED WAS NOT IN ITSELF, WITHOUT
MORE, PROOF BEYOND A REASONABLE DOUBT
THAT DEFENDANT WAS GUILTY, DEPRIVED
DEFENDANT OF A FAIR TRIAL. U.S. Const.
Amend. XIV; N.J. Const. Art. I., ¶ 1, 10.
[(Partially raised below)]
POINT IV
THE COURT COMMITTED REVERSIBLE ERROR
IN FAILING TO DISMISS TAMPERING WITH
EVIDENCE BECAUSE THIS CRIME IS NOT
COMMITTED BY SIMPLY DISCARDING A
WEAPON UPON APPROACH OF A POLICE
OFFICER.
([Partially] raised below)
3 A-0896-19
POINT V
REGARDING THE DEFENDANT'S SENTENCE,
THE COURT ABUSED ITS DISCRETION AND
DOUBLE[-]COUNTED EVIDENCE IN FINDING
AGGRAVATING FACTOR ONE. ALSO, THE
COURT . . . SHOULD HAVE MERGED COUNT SIX
WITH COUNT FOUR AND HELD A HEARING AS
TO DEFENDANT'S ABILITY TO PAY.
[(Partially raised below)]
We reject these contentions and affirm.
I.
On appeal, defendant first argues the trial court erred by failing sua sponte
to instruct the jury on aggravated and reckless manslaughter as lesser-included
offenses of murder as charged in the indictment, N.J.S.A. 2C:11-3(a)(1). We
disagree.
An offense is a lesser-included offense when:
(1) It is established by proof of the same or less than
all the facts required to establish the commission of the
offense charged; or
(2) It consists of an attempt or conspiracy to commit
the offense charged or to commit an offense otherwise
included therein; or
(3) It differs from the offense charged only in the
respect that a less serious injury or risk of injury to the
same person, property or public interest or a lesser kind
of culpability suffices to establish its commission.
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[N.J.S.A. 2C:1-8(d).]
A trial court "shall not charge the jury with respect to an included offense
unless there is a rational basis for a verdict convicting the defendant of the
included offense." N.J.S.A. 2C:1-8(e). For that reason, when a defendant
requests a charge on a lesser-included offense, the trial court must apply a two-
pronged test to determine if the charge is appropriate. As to the first prong the
court must determine whether the requested charge satisfies the statutory
definition of an included offense and, if so, there must "be a rational basis in the
evidence to support a charge on that included offense." State v. Cassady, 198
N.J. 165, 178 (2009) (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The
second prong is satisfied "when the facts adduced at trial clearly indicate that a
jury could convict on the lesser while acquitting on the greater offense." State
v. Jenkins, 178 N.J. 347, 361 (2004).
The applicable standard is different where, as here, a charge has not been
requested. Because of constitutional concerns, a court is limited in its ability
sua sponte to instruct a jury that it could convict a defendant of uncharged lesser
offenses. See Thomas, 187 N.J. 132-34. "An unrequested charge on a lesser
included offense must be given only where the facts in evidence 'clearly indicate'
the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002)
5 A-0896-19
(quoting State v. Choice, 98 N.J. 295, 298 (1985)). "[T]he need for the charge
must 'jump off' the proverbial page." State v. R.T., 205 N.J. 493, 510 (2011)
(internal quotation marks omitted). As such, a "trial court does not 'have the
obligation on its own [to] meticulously . . . sift through the entire record' to find
appropriate charges." Choice, 98 N.J. at 299; see also Savage, 172 N.J. at 397.
Aggravated and reckless manslaughter are lesser-included offenses of
murder. Jenkins, 178 N.J. 361. The lesser-included offense analysis in the
present case therefore involves the respective elements of murder and
manslaughter. "Murder requires proof that [a] defendant caused death
purposely, i.e., with the intent to cause or conscious object of causing death, or
knowingly, i.e., with an awareness that death is practically certain to result."
State v. Gaines, 377 N.J. Super. 612, 621 (App. Div. 2005) (citing State v. Cruz,
163 N.J. 403, 417 (2000)).
By contrast, "[a] lower degree of culpability is required to prove
aggravated manslaughter, for which the prosecution must show that the
defendant was aware of and consciously disregarded a substantial risk of death,
i.e., a probability that death would result, and that the defendant manifested
extreme indifference to human life." Cruz, 163 N.J. at 417 (citing N.J.S.A.
2C:11-4(a)). "The elements of aggravated and reckless manslaughter are
6 A-0896-19
identical except for the difference in the degree of risk of death." State v.
Sanchez, 224 N.J. Super. 231, 240 (App. Div. 1988). "The degree of risk in
reckless manslaughter is a mere possibility of death." Ibid.In the present matter, the facts did not clearly indicate the jury could have
convicted defendant of aggravated or reckless manslaughter while acquitting
him of murder. As evidenced by home video surveillance footage, around 10:00
p.m. on November 19, 2016, defendant approached Johnson on a public street
in Salem City and fired a shot at close range from a six-shot defaced revolver,
causing Johnson to fall to the ground. Defendant then stood over Johnson, firing
the five remaining shots. No one else – except the officers who saw a muzzle
flash and heard the gunshots – was in the vicinity.
According to the autopsy report, one bullet grazed Johnson's skull, two
entered his left upper chest, and the remaining bullets entered his extremities.
The State's ballistic expert confirmed all six bullets were fired from the revolver
that defendant tossed as he ran from the police. Within two minutes of the
shooting, officers recovered the revolver and arrested defendant. Following a
search incident to defendant's arrest, police seized four cartridges from
defendant's pocket that matched the ammunition fired from the revolver.
7 A-0896-19
To support his belated argument, defendant summarily references: the
trial testimony of two law enforcement officers, who described the crime scene
as a "high crime area" and an "open air drug market"; the officers'
acknowledgment that police did not investigate the owner of a car parked on the
corner when the shooting occurred; the absence of an eye-witness; Johnson's
post-mortem toxicology results, indicating he tested positive for several
narcotics; and the seizure of "five baggies containing suspected marijuana" from
Johnson's person. Defendant's undeveloped contentions undercut his argument.
Indeed, there is no evidence in the record that, for example, Johnson was
the aggressor or otherwise threatened defendant, warranting the lower-
culpability manslaughter charges. See Cruz, 163 N.J. at 419. Instead, the trial
evidence clearly demonstrated that defendant shot Johnson six times, with three
shots aimed at his head and chest, thereby evidencing defendant's purposeful or
knowing intent to kill. See State v. Simon, 161 N.J. 416, 450 (1999) (stating
"common sense informs us that when someone shoots at another person in the
upper body region . . . the shooter's purpose is either to cause serious bodily
injury that results in death or to actually cause death, especially where no other
plausible explanation is given").
8 A-0896-19
Moreover, en route to the police station, defendant spontaneously uttered:
"It's over for me now, man. . . . I'm a dead man. They gonna bury me, man.
They're really gonna bury me now. Damn, man. They got the gun and
everything. Like, ain't nothing I can do about it. I'm just done."
Notwithstanding these admissions, the defense strategy focused on questioning
the State's proof. As one notable example, defense counsel acknowledged
defendant possessed six bags of marijuana when he was arrested, rhetorically
stating during summation:
So, you have marijuana on you, you hear gunshots, you
see sirens, hear sirens, see lights, is it so weird that he
ran? And where could he run from? Did he come from
this street? Did he come from Allen Street? Did he
come from Kravin [sic]? Did he come from this way
into that area? We don't know.
However, defendant did not contend he lacked the requisite intent to
satisfy the culpability element of murder as charged. Nor was any evidence
adduced at trial to counter defendant's admissions or the State's video evidence
depicting him unloading a six-shot revolver into Johnson's defenseless body
under circumstances that would somehow suggest his actions were reckless.
See, e.g., State v. Ramsey, 415 N.J. Super. 257, 271 (App. Div. 2010) (finding
no error where the trial judge did not instruct the jury on lesser-included
manslaughter charges because "it cannot reasonably be said that shooting a
9 A-0896-19
victim in the abdomen upon discharge of a firearm four times, in close range
(within five to ten feet of the defendant), involved mere reckless conduct or a
conscious disregard of a substantial risk of death").
Under the facts and circumstances presented here, we discern no error, let
alone plain error, in the court's omission of the uncharged lesser offenses. See
R. 2:10-2.
II.
We turn next to defendant's contentions that he was unduly prejudiced by
the prosecutor's lengthy playback of "almost all the video recordings from the
night of the offense," and the court's failure sua sponte to issue a
cotemporaneous limiting instruction. Because defendant did not object to the
playback and did not request a cautionary instruction, we review his newly-
minted challenges through the prism of the plain error standard. R. 2:10-2.
Initially, defendant's reliance on our decision in State v. Muhammad, 359
N.J. Super. 361 (App. Div. 2003), is misplaced. In Muhammed, the court
permitted the prosecutor to replay "portions of the trial testimony of five State
witnesses" over the defendant's objection. Id. at 372. There, "[t]he trial was
conducted in a courtroom equipped with videotape as the means of officially
recording the proceedings." Ibid.
10 A-0896-19
On appeal, the defendant renewed his objection and claimed, for the first
time, that the court should have conducted a hearing under N.J.R.E. 104(a) and
issued a limiting instruction. Ibid. We held the trial court did not err in
permitting the prosecutor to replay the recorded testimony. Id. at 373. Although
we further concluded a trial court "should give a cautionary instruction,
preferably at the time the video is played during summation and again in the
final charge," we found no plain error. Id. at 382-83. Unlike the present case,
however, this court in Muhammed did not consider the playback of
contemporaneous video recordings of the crime scene, which were
unaccompanied by audio, or the defendant's recorded admissions.
More recently, in State v. Miller, 205 N.J. 109, 122-24 (2011), the Court
provided guidance to trial judges in dealing with video playback requests, again
in the context of a jury's request for testimony recorded during the trial. Among
other things, "at the time the testimony is repeated, judges should instruct jurors
to consider all of the evidence presented and not give undue weight to the
testimony played back." Id. at 123.
In the present matter, unlike Muhammed and Miller, the video playback
did not involve a witness's recorded trial testimony. Instead, the recordings here
actually documented the crime in progress. Other than defendant's admissions
11 A-0896-19
captured on the patrol car's MVR, the video recordings did not contain any
statements or sounds.
Moreover, defendant not only failed to object to the prosecutor's replay of
the videos during summation, but defense counsel affirmatively consented to the
placement of the monitor near the jury box because he intended to "us[e] it as
well" in his closing argument. Indeed, defense counsel replayed portions of the
MVR that depicted the "muzzle flash" to cast doubt on the officers' credibility.
Further, defendant's contentions that the MVR recording, alone, spanned
forty-five minutes is inaccurate. The prosecutor played short portions of several
videos, stopping at times to add commentary, totaling about forty-five minutes
in duration. Notably, defendant does not challenge the prosecutor's commentary
on the replayed video segments.
Instead, defendant alleges in passing that the prosecutor "denigrate[d] the
defense" by instructing the jury not to believe his attorney's closing statement
that the police "tackled" defendant when the video demonstrated otherwise.
Defendant's belated contentions lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2). We simply note the prosecutor's comment
followed defense counsel's skillful attempt to dispel the State's argument that
12 A-0896-19
defendant resisted arrest and the comment was based on the trial record. See
State v. Blakney, 189 N.J. 88, 96 (2006).
In sum, we find no basis on this record to conclude that the video replays
had the clear capacity to cause the jury to convict defendant when they otherwise
would have acquitted him. See R. 2:10-2.
Nor are we persuaded that the court failed sua sponte to issue a limiting
instruction when the non-testimonial videos were replayed by the prosecutor.
During the final charge, the jury was properly instructed that it should consider
all "relevant and material" evidence and that ascribe the appropriate weight to
it. Although a limiting instruction would have been appropriate had it been
requested when the prosecutor – and defense – replayed the videos during
summation, in these circumstances, the failure to provide the jury additional
instruction as to how to consider the surveillance video was not capable of
producing an unjust result. R. 2:10-2; see also State v. Wakefield, 190 N.J. 397,
473 (2007) (holding that under Rules 1:7-2 and 2:10-2, "the failure to object to
a jury instruction requires review under the plain error standard").
III.
Defendant next contends the trial court failed to issue a mere presence
instruction regarding the unlawful possession of a weapon charge. Citing our
13 A-0896-19
Supreme Court's decision in State v. Randolph, 228 N.J. 566, 592 (2012),
defendant argues his "'mere presence' near the gun was insufficient to find
beyond a doubt that defendant was guilty." Because defendant actually – and
not constructively – possessed the revolver, his reliance on Randolph is
misplaced.
During the charge conference concerning the unlawful possession of a
weapon count, the parties agreed that the court would charge actual possession
but not constructive possession. Defense counsel initially sought a hybrid
charge, i.e., "mere presence without constructive possession." Citing Randolph,
defense counsel ultimately acknowledged the mere presence instruction applied
only when constructive possession was charged.
In Randolph, our Supreme Court held the trial judge erred in a drug
possession prosecution by failing to issue a mere presence instruction. 228 N.J.
at 590-93. Unlike the present matter, the State's theory was that the defendant
constructively possessed narcotics in an apartment from which he had fled. Id.
at 591. The defendant in that case was charged with drug possession and
distribution offenses. Id. at 573.
Conversely here, the revolver was recovered by police after they observed
defendant discard an object while running from the murder scene. The revolver
14 A-0896-19
was recovered a few feet from the location where the police arrested defendant.
Moreover, defendant's admissions, including that police "got the gun and
everything" implicitly acknowledged he "knowingly ha[d] [the revolver] on his
person at a given time," i.e., during and after the shooting. Because defendant's
possession of the revolver was "actual" and not "constructive," the mere
presence portion of the unlawful possession of a weapon jury charge was
inapplicable to the facts adduced at trial.
IV.
In point IV, defendant argues the trial court erred by denying his motion
for acquittal on the tampering with evidence charge. Before the trial court –
without citation to case law – defense counsel contended even assuming "[his]
client threw something . . . under the statute that [does not] constitute[]
tampering with evidence." On appeal, defendant reprises his argument, now
arguing his conviction for tampering with evidence is inconsistent with our
decisions in State v. Sharpless, 314 N.J. Super. 440 (App. Div. 1998), and State
v. Fuqua, 303 N.J. Super. 40 (App. Div. 1997). We are unpersuaded.
We review de novo "the sufficiency of the evidence on an acquittal
motion." State v. Williams, 218 N.J. 576, 593-94 (2014); see also Pressler &
Verniero, Current N.J. Court Rules, cmt. 1 on R. 3:18-1 (2021). "We must
15 A-0896-19
determine whether, based on the entirety of the evidence and after giving the
State the benefit of all its favorable testimony and all the favorable inferences
drawn from that testimony, a reasonable jury could find guilt beyond a
reasonable doubt." Williams, 218 N.J. at 594. We also review the trial court's
legal conclusions de novo. State v. Handy, 206 N.J. 39, 45 (2011). Statutory
interpretation presents an issue of law to which we owe the trial court no
deference. State v. Gandhi, 201 N.J. 161, 176 (2010).
N.J.S.A. 2C:28-6(1) defines the crime for which defendant was charged
and convicted. In pertinent part, the statute provides:
A person commits a crime of the fourth degree if,
believing that an official proceeding or investigation is
pending or about to be instituted, he:
(1) Alters, destroys, conceals or removes any
article, object, record, document or other thing of
physical substance with purpose to impair its verity or
availability in such proceeding or investigation . . . .
In Sharpless, we reversed the defendant's conviction for tampering with
evidence in violation of N.J.S.A. 2C:28-6(1). 314 N.J. Super. at 457-59. The
evidence supporting the conviction demonstrated the defendant discarded
twenty-three decks of heroin as he was approached by the police prior to his
arrest for possessory drug offenses. Id. at 446-47.
16 A-0896-19
We construed the application of N.J.S.A. 2C:28-6 with the same rationale
underlying our decision in Fuqua, where we considered a constitutional
challenge to the application of N.J.S.A. 2C:29-3(b)(1) (hindering one's own
apprehension). Id. at 459. We recognized it was common for individuals
possessing criminal contraband to attempt to hide it from law enforcement and
discard it upon the approach of law enforcement. Ibid. We reasoned that
N.J.S.A. 2C:28-6 did not constitute a sufficiently clear statement of legislative
intent to permit convictions for a possessory offense and tampering with
evidence each time a defendant took an action to hide or discard evidence of the
possessory offense. Ibid. We held:
[C]onsistent with the court's interpretation of N.J.S.A.
2C:29-3(b)(1) in Fuqua, we construe the phrase
"conceal[ment]" of "any article . . . with the purpose to
impair its availability in [an investigation]" in N.J.S.A.
2C:28-6 to refer only to "evidence of a completed
criminal act, not a current possessory crime." Under
this analysis, defendant's abandonment of his drug
supply occurred during the course of his ongoing
possession of heroin with the intent to distribute and
consequently did not constitute tampering with
evidence.
[Ibid. (citation omitted) (emphasis added).]
In the present case, defendant was indicted for murder and aggravated
assault with a deadly weapon. To prove these offenses beyond a reasonable
17 A-0896-19
doubt in this case, the State was required to demonstrate defendant caused
Johnson's death or serious bodily injury resulting in death. Because these
offenses required the unlawful use of a weapon, they are clearly distinguishable
from unlawful possession of a weapon. Although the indictment charged
defendant with unlawful possession of the revolver, unlike the defendant in
Sharpless, defendant's act of discarding the gun in this case was intended to
hinder the non-possessory prosecutions for murder and aggravated assault. We
therefore find no merit in defendant's contentions that "the underlying homicide
. . . " was not "completed" when he discarded the revolver.
V.
Lastly, we consider defendant's challenges to his sentence. Defendant was
convicted of ten offenses 1 charged in a Salem County indictment: first-degree
murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count one); second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault
with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count three); second-degree
unlawful possession of a weapon N.J.S.A. 2C:39-5(b)(1) (count four); second-
1
Count eleven, charging defendant with second-degree certain persons not to
have weapons, N.J.S.A. 2C:39-7(b), was bifurcated from the other counts for
trial. Following defendant's convictions, the trial court granted the State's
motion to dismiss count eleven.
18 A-0896-19
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1)
(count five); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d)
(count six); second-degree possession of a weapon while committing a
controlled dangerous substance (CDS) offense, N.J.S.A. 2C:39-4.1(a) (count
seven); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count eight);
fourth-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-
5(b)(12) (count nine); and fourth-degree tampering with evidence, N.J.S.A.
2C:28-6(1) (count ten).
Prior to imposing sentence, the court considered the memoranda filed by
the parties, oral argument, the in-court statement of Johnson's mother, and
correspondence from Johnson's girlfriend, with whom the decedent co-parented
five children. The court granted the State's unopposed motions: (1) for merger
of counts two, three, and five with count one; and (2) mandatory extended terms
on counts one, four, six, and seven under the Graves Act, N.J.S.A. 2C:43-6(c)
(requiring an extended term where a defendant was previously convicted of
unlawful possession of a weapon), and N.J.S.A. 2C:43-6(f) (requiring an
extended term where a defendant was previously convicted of a CDS
manufacturing or distribution offense).
19 A-0896-19
Finding aggravating factors one, N.J.S.A. 2C:44-1(a)(1) (the nature and
circumstances of the offense); three, N.J.S.A. 2C:44-1(a)(3) (the risk of
committing another offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of
defendant's prior criminal record and the severity of those offenses); and nine,
N.J.S.A. 2C:44-1(a)(9) (specific and general deterrence), outweighed mitigating
factor six, N.J.S.A. 2C:44-1(b)(6) (the defendant has or will pay restitution), the
court sentenced defendant to a sixty-year term of imprisonment, subject to the
No Early Release Act, N.J.S.A. 2C:43-7.2, and the Graves Act, N.J.S.A. 2C:43-
6(c) on count one. Pertinent to this appeal, the court sentenced defendant to a
concurrent fifteen-year prison term, with a parole ineligibility term of seven and
one-half years, subject to the Graves Act on count four, and a concurrent five-
year prison term with a five-year term of parole ineligibility under the Graves
Act on count six. The sentences on all remaining counts were ordered to run
concurrently with one another, except for count nine, which was imposed
consecutively to count seven.
Further, the court determined the amount of restitution sought was "not
exorbitant," and granted the State's request for $7759, which included funds
disbursed by the Victims of Crime Compensation Board, and Johnson's mother
for funeral expenses. Notably, in seeking mitigating factor six, defense counsel
20 A-0896-19
represented that he spoke with defendant and "there's been no objection to
restitution as requested by the State."
On appeal, defendant claims his sentence is excessive and the court made
three errors by: (1) improperly double-counting the elements of murder by
finding aggravating factor one; (2) failing to merge counts four (unlawful
possession of a firearm) and six (unlawful possession of a defaced firearm); and
(3) ordering restitution without first determining defendant's ability to pay.
"Appellate review of the length of a sentence is limited." Miller, 205 N.J.
at 127. Ordinarily, we defer to the sentencing court's determination, State v.
Fuentes, 217 N.J. 57, 70 (2014), and do not substitute our assessment of the
aggravating and mitigating factors for that of the trial judge, Miller, 205 N.J. at
127. We must affirm the sentence, unless: "the aggravating and mitigating
factors found by the sentencing court were not based upon competent and
credible evidence in the record." Fuentes, 217 N.J. at 70. "Elements of a crime,
including those that establish its grade, may not be used as aggravating factors
for sentencing of that particular crime," State v. Lawless, 214 N.J. 594, 608
(2013), which "would result in impermissible double-counting." State v.
A.T.C., 454 N.J. Super. 235, 254 (App. Div. 2018); see also State v. Yarbough,
100 N.J. 627, 640-41 (1985). We will remand for resentencing if the sentencing
21 A-0896-19
court considers an inappropriate aggravating factor. Fuentes, 217 N.J. at 70.
A.
On appeal, defendant contends the trial court inappropriately found
aggravating factor one because "there was little if any evidence that the offense
was more serious than other murders or was committed in 'an especially heinous,
cruel, or depraved manner.'" We disagree.
Aggravating factor one "must be premised upon factors independent of
the elements of the crime and firmly grounded in the record." Fuentes, 217 N.J.
at 63. Aggravating factor one not only requires consideration of "[t]he nature
and circumstances of the offense," but also "the role of the actor therein,
including whether or not it was committed in an especially heinous, cruel, or
depraved manner . . . ." N.J.S.A. 2C:44-1(a)(1). "In appropriate cases, a
sentencing court may justify the application of aggravating factor one, without
double-counting, by reference to the extraordinary brutality involved in an
offense." Fuentes, 217 N.J. at 75; see also State v. Soto, 340 N.J. Super. 47, 71-
72 (App. Div. 2001) (applying factor one in an aggravated manslaughter and
felony murder case where the defendant brutally and viciously attacked the
victim).
22 A-0896-19
The trial court acknowledged it "debate[d] this factor at some length" but
was persuaded by the State's argument "that because the first shot that was fired
caused Mr. Johnson to fall to the ground and, in theory, should have been
sufficient for the shooter's purposes, instead [defendant] stood over the body and
fired five more shots." Accordingly, the court reasoned "those five extra shots
were sufficient" to support aggravating factor one. Implicit in the court's
decision is the brutality of the execution-style shooting, which exceeded the
elements of the murder charge. Fuentes, 217 N.J. at 75. We therefore conclude
the judge's finding of this aggravating factor was "based upon competent and
credible evidence in the record," id. at 70, and did not constitute "impermissible
double-counting," A.T.C., 454 N.J. Super. at 254.
B.
We next consider defendant's newly-raised contention that the court failed
to merge the weapons convictions at sentencing. "At its core, merger's
substantial purpose 'is to avoid double punishment for a single wrongdoing.'"
State v. Romero, 191 N.J. 59, 80 (2007) (quoting State v. Diaz, 144 N.J. 628,
637 (1996)); see also State v. Miller, 108 N.J. 112, 116 (1987) (merger stems
from the well-established principle that an accused who has committed only one
23 A-0896-19
offense "cannot be punished as if for two"). "[M]erger implicates a defendant's
substantive constitutional rights." State v. Cole, 120 N.J. 321, 326 (1990).
In deciding whether to merge convictions, the court must first ascertain
"whether the legislature has in fact undertaken to create separate offenses; and,
if so, it must then be determined whether those separate offenses have been
established under the proofs." State v. Valentine, 69 N.J. 205, 209 (1976); see
also State v. Allison, 208 N.J. Super. 9, 22-23 (App. Div. 1985). We must "focus
on the elements of the crime, the Legislature's intent in enacting the statutes, and
the specific facts of each case." State v. Dillihay, 127 N.J. 42, 47 (1992); see
also State v. Bull, 268 N.J. Super. 504, 513 (App. Div. 1993). We also consider
"the time and place of each purported violation." State v. Davis, 68 N.J. 69, 81
(1975). Where the offenses are in fact indistinguishable, the resulting
convictions must be merged. State v. Best, 70 N.J. 56, 61 (1976).
Further, N.J.S.A. 2C:1-8 provides for merger of offenses to avoid
impermissible multiple convictions for the same conduct and sets forth a series
of factors to guide a court in determining whether to bar multiple convictions
for conduct that constitutes more than one offense. In particular, N.J.S.A. 2C:1-
8(a)(1) provides that a defendant may not be convicted of multiple offenses if
"[o]ne offense is included in the other." An offense is included in the other when
24 A-0896-19
"[i]t is established by proof of the same or less than all the facts required to
establish the commission of the [other] offense . . . ." N.J.S.A. 2C:1-8(d)(1);
see also State v. Mirault, 92 N.J. 492, 502-03 (1983).
Applying these principles to the facts of this particular case, we are
unpersuaded by defendant's argument that because the "same handgun was
defaced" the court should have merged the weapons offenses. Although both
weapons offenses require knowing possession, the offenses have distinct
elements. Unlawful possession of a weapon requires the State to prove the
defendant did not have a permit to possess the weapon, N.J.S.A. 2C:39-5(b),
whereas possession of a defaced weapon requires the State to prove that the
firearm was defaced, N.J.S.A. 2C:39-3(d). Stated another way, an individual
who obtains a permit to carry a handgun and later alters the serial numbers of
that gun, would violate N.J.S.A. 2C:39-3(d), but not N.J.S.A. 2C:39-5(b).
C.
It is well established that before ordering restitution pursuant to N.J.S.A.
2C:44-2(b)(2), the sentencing court must first determine that the defendant has
a present or future ability to pay. See State v. Newman, 132 N.J. 159, 169
(1993). If "there is a good faith dispute over the amount of loss or the
defendant's ability to pay," the court is required to conduct a restitution hearing
25 A-0896-19
to resolve those issues. State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App.
Div. 1994); see also N.J.S.A. 2C:44-2(c). Conversely, where there is no
controversy as to the amount and ability to pay, a hearing is not required. See
State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994) (holding a restitution
hearing was unnecessary where the defendant neither objected to his attorney's
representation that he was able to pay the amount imposed nor disputed his
ability to pay).
On appeal, defendant briefly contends the court failed to conduct an
ability-to-pay hearing here, where "the record showed defendant does not have
the ability to pay with no assets and little employment history." Because
defendant agreed to pay restitution and thus convinced the court to find
mitigating factor six, we need not entertain his belated claims on appeal that the
trial court should have granted a hearing he never requested. We nonetheless
note defendant's failure to dispute the amount sought and his ability to pay did
not require a hearing. Id. at 589-90.
To the extent not specifically addressed, defendant's remaining
contentions lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e) (2).
26 A-0896-19
Affirmed.
27 A-0896-19