IN THE MATTER OF JOSEPH LANG(NEW JERSEY CIVIL SERVICE COMMISSION)

NOT FOR PUBLICATION WITHOUT THE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-2826-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SAINT H. MERILAN a/k/a,
SAINT HILAIRE MERILAN,
SAINT H. MERIALN, SAINT
MERILAN, JASON WILLIAMS,
Defendant-Appellant.
_______________________________
Submitted February 9, 2017 - Decided April 24, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 12-
12-0913.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel S. Rockoff, Assistant
Deputy Public Defender, of counsel and on the
brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo,
Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
PER CURIAM
Tried by a jury, defendant Saint H. Merilan was convicted of
second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a
lesser included offense to the charged offense of aggravated
manslaughter (count one); third-degree possession of a knife for
an unlawful purpose (count two), N.J.S.A. 2C:39-4D; and fourth-
degree unlawful possession of a knife (count three), N.J.S.A.
2C:39-5D. Defendant was acquitted of aggravated assault (count
four). Following merger, the trial judge imposed a nine-year
sentence, subject to the eighty-five percent parole ineligibility
period imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2,
and three years of parole supervision upon release.
Defendant appeals from the October 30, 2014 judgment of
conviction and imposed sentence. Following review of the arguments
in light of the record and applicable law, we affirm.
I.
The State presented the following evidence at trial.
Defendant, having spent the day with his daughter, waited for
Janet,1 the child's mother, to return home from work. As the child
and defendant sat in his car, Janet, her infant son, her partner,
and his sister pulled up and parked facing defendant's car, parked
in front of her apartment. The partner approached defendant's car
1 We have used pseudonyms for the witnesses to protect their
privacy.
2 A-2826-14T4
and made a comment to defendant that angered him; defendant exited
his vehicle. Janet did not see how the fight started, but observed
the two men fighting, with her partner "towering" over defendant.
Janet related her unsuccessful attempts to separate the men, by
swinging a black "stick-shaped" object she grabbed from a nearby
trashcan. During these attempts, she struck both defendant and
her partner.
While Janet continued efforts to separate the men, she
realized she was stabbed. She then saw her partner collapse and
observed defendant holding a knife, which he dropped. Janet
realized her partner had been repeatedly stabbed and grabbed the
knife. She ran clutching the knife and defendant chased her.
Defendant trapped Janet against another parked vehicle, yelling,
"let go of the knife." Defendant tried to wrench the knife from
Janet's hand. In the process, Janet's finger was cut, but she
would not release the knife.
Janet's partner's sister, who remained in Janet's car also
testified. She maintained defendant was the aggressor, she saw a
knife in defendant's hand, saw blood on her brother's shirt and
ran from the scene in fear. She also identified the object in
Janet's hand as "a little piece of wood."
Defendant's daughter testified. She recalled the events
occurring two years earlier, when she was seven. She explained
3 A-2826-14T4
Janet's partner slowly approached defendant's car holding a "black
stick" and banged on her father's car window. She replied "no"
when asked if Janet's partner punched her father in the face and
said she did not remember telling police Janet's partner punched
her father. On cross-examination, the child reviewed her
statement, given to police on the day of the altercation. The
statement recorded: "when my mom got home her boyfriend got out
of the car with a stick and then he hit my dad." When asked
whether the child told this to the detective conducting the
interview after the fight, the child said, "well, I don't remember.
That's why I said I didn't see it." After additional questions
regarding the statement, the child testified: "that's what it
said on the paper, but . . . I didn't remember that - - that I
said that."
Cross-examination continued and the child was asked whether
Janet's partner "was the first person who threw the punch at your
father," to which the child replied "I don't remember having told
you that." The child agreed, however, when Janet's partner threw
his first punch, defendant was seated in his car and then exited.
Redirect elicited this testimony:
[WITNESS]: I remember that [Janet's partner]
got out of the car, he went to my dad's car
and he banged on the window. And then he --
when -- my dad put the window down he asked
him a question.
4 A-2826-14T4
[PROSECUTOR]: Okay. And did he hit your
dad? Did you see your dad hit him or him hit
your dad while your dad was still in the car?
Do you remember any of that?
. . . .
A: No.
Q: And what do you remember seeing
after you saw [Janet's partner] banged on your
dad's window?
A: He – my dad put down the window, he asked
him – a que –
Q: Okay don't say what they said.
A: He asked him a question. And then – and
then my dad got mad, so he got out of the car
and then that's when they started fighting.
After Janet's partner lay on the ground, the child approached
her parents. Defendant instructed her to get in his car and he
drove to the Elizabeth police station, where he was questioned and
detained.
Janet cradled her partner's head, attempted to stop the
bleeding, and called 9-1-1. Police responded to the apartment,
where they found Janet and her unresponsive partner.
Detectives collected the knife, blood stained clothing and a
black metal rod. At the station, police photographed defendant's
body and observed cuts on his arms and hands, which did not appear
serious.
5 A-2826-14T4
The county medical examiner reported Janet's partner had five
stab wounds: two on the left side of his chest, one to the back
of his head, one on the left side of his back, and one to the
chest that pierced his heart. She described the length and size
of each wound, noting the last was the only fatal wound.
Defendant took the stand in his defense. He testified he was
in his car waiting for Janet when a man approached the vehicle and
punched him in the face, through the open window. Defendant was
in shock and grabbed his pocketknife, intending to scare the man.
When he exited his car, he was assaulted by Janet, who struck him
in the back of the head "with a tire iron," as well as her partner,
who repeatedly punched him. Janet and her partner cornered
defendant against his car: one in front of him and one behind; two
other men flanked also him on each side. Defendant explained he
needed to defend himself. While he was being struck by members
of the group, he opened his knife and just started swinging, making
a stabbing motion. The fight suddenly stopped, as Janet's partner
fell to the ground, and the two unidentified men "ran off."
Defendant dropped the knife, which Janet picked up and began
swinging toward him. He grabbed his daughter and drove directly
to the police station, where he gave a statement.
The jury did not find defendant guilty of first-degree
aggravated manslaughter or aggravated assault. Rather, it
6 A-2826-14T4
convicted defendant of the lesser-included offense of second-
degree reckless manslaughter and the weapons charges.
II.
On appeal defendant argues:
POINT I.
[DEFENDANT]'S SELF-DEFENSE CLAIM WAS UNFAIRLY
CIRCUMSCRIBED AT TRIAL. (Partially Raised
Below).
(A) THE COURT TOLD THE JURY THAT THE
SOLE EYEWITNESS STATEMENT CONFIRMING
[DEFENDANT]'S ACCOUNT OF BEING ATTACKED WAS
NOT CREDIBLE.
(B) THE PROSECUTOR ELICITED
INADMISSIBLE N.J.R.E. 404(B) HEARSAY
SUGGESTING DEFENDANT HAD A HISTORY OF STARTING
FIGHTS.
(C) THE JURY CHARGE ON RECKLESS
MANSLAUGHTER CONTRADICTED THE REQUIREMENT
THAT THE STATE DISPROVE SELF-DEFENSE BEYOND A
REASONABLE DOUBT.
(D) CONCLUSION: BECAUSE THESE THREE
ERRORS INDIVIDUALLY AND CUMULATIVELY
PREJUDICED MERILAN'S SELF-DEFENSE CLAIM, A NEW
TRIAL IS REQUIRED.
POINT II.
BECAUSE THE COURT IMPOSED A SENTENCE AT THE
HIGH END OF THE SECOND-DEGREE RANGE ONLY AFTER
(A) FINDING IMPROPER AGGRAVATING ACTORS, AND
(B) FAILING TO FIND CRITICAL MITIGATING
FACTORS, A REMAND FOR RESENTENCING IS
REQUIRED.
(A) THE COURT INAPPROPRIATELY RELIED ON
AGGRAVATING FACTORS (1), (2), (3), AND (9) TO
JUSTIFY IMPOSITION OF A NERA SENTENCE AT THE
HIGH END OF THE SECOND-DEGREE RANGE.
7 A-2826-14T4
(i) The Court Erred by
Finding Aggravating Factor (1).
(ii) The Court Erred by
Finding Aggravating Factor (2).
(iii) The Court Erred by
Finding Aggravating Factor (3).
(iv) Aggravating Factor (9)
Warranted Minimal Weight Only.
(B) THE COURT IMPOSED A NERA SENTENCE AT
THE HIGH END OF THE SECOND-DEGREE RANGE ONLY
AFTER FAILING TO FIND MITIGATING FACTORS (2),
(3), (4), (8), (9), AND (12).
(i) Because [Defendant] was a
First-Time Offender Responding to
an Unprovoked Attack, the Court
Erred by not Finding Mitigating
Factors (2), (3), and (4).
(ii) Because [Defendant] was a
First-Time Offender who Expressed
Remorse After Responding to an
Unprovoked Attack, the Court Erred
by not Finding Mitigating Factors
(8) and (9).
(iii) Because [Defendant]
Distinguished Himself from other
Defendants by Immediately Driving
to the Police Station, Turning
Himself in, and giving a Statement
to the Police, the Court Erred by
Failing to Find Mitigating Factor
(12).
(C) CONCLUSION: BECAUSE THE SENTENCING
COURT ERRED IN ASSESSING BOTH AGGRAVATING AND
MITIGATING FACTORS, THIS COURT MUST REMAND FOR
RESENTENCING.
8 A-2826-14T4
We consider these arguments.
A.
First, defendant identifies three errors, which he maintains
"unfairly circumscribed" his assertion of self-defense and
deprived him of a fair trial. Arguing Janet's partner initiated
an unprovoked assault and Janet joined in the attack, he contends
he was justified in defending himself with a pocketknife.
Defendant believes evidence showing he was protecting himself
against an unprovoked attack "was thus the lynchpin of his
defense," requiring acquittal.
Defendant argues the first error was the judge's comment
during jury instruction regarding the child's statement to police.
Defendant states the judge's comment erroneously "cast doubt on
the sole eyewitness statement confirming [defendant]'s testimony"
he was the victim of an unprovoked attack.
Discussing the witness's testimony, the judge remarked:
In regard to the testimony of [defendant's
child], on cross-examination inconsistencies
were shown between prior statements and those
given on the stand. The witness gave reasons
therefore, saying that such prior statements
or omissions were inaccurate. Among the
reasons given that I recall was poor
recollection at the time.
The extent to which such inconsistencies
or omissions reflect the truth is for you to
determine. Consider their materiality and
relationship to her entire testimony and all
9 A-2826-14T4
the evidence in the case, when, where, and the
circumstances under which they were said or
omitted and whether the reasons she gave you
therefore appear to be to you believable and
logical.
Other instructions explained the jury may consider the earlier
statements "as proof of the fact," to which the statement applied.
"Clear and correct jury charges are essential for a fair
trial." State v. Cook, 300 N.J. Super. 476, 488 (App. Div. 1996)
(citation omitted). "[T]he failure of a trial court to properly
charge a jury is grounds for reversal, even though defense counsel
failed to object at the appropriate time." State v. Harrington,
310 N.J. Super. 272, 277 (App. Div. 1998). "So critical is the
need for accuracy that erroneous instructions on material points
are presumed to be reversible error." Ibid. (quoting State v.
Martin, 119 N.J. 2, 15 (1990)).
Defendant did not raise an objection to the jury instructions
at trial. Therefore, we consider whether the judge's comment rose
to plain error. R. 2:10-2. More specifically, whether the
challenged instruction is "of such a nature as to have been clearly
capable of producing an unjust result." State v. Garrison, __
N.J. __ (2017) (slip op. at 6) (quoting R. 2:10-2). "For an error
to require reversal, there must be 'some degree of possibility
that [the error] led to an unjust result. The possibility must
be real, one sufficient to raise a reasonable doubt as to whether
10 A-2826-14T4
[it] led the jury to a verdict that it otherwise might not have
reached.'" State v. Galicia, 210 N.J. 364, 388 (2012) (quoting
State v. Lazo, 209 N.J. 9, 26 (2012)).
Importantly, in our review, we must consider the jury charge
as a whole, and examine it in its entirety. State v. Delibero,
149 N.J. 90, 106-07 (1997). Further, the charge provisions,
including the alleged error, should be assessed "in the context
of the evidence." State v. Robinson, 165 N.J. 32, 47 (2000).
The judge's comment suggesting the reason for the
inconsistent statements by defendant's child resulted from "poor
recollection," was accurate, as the defendant's child stated at
trial she could not remember if she told police Janet's partner
threw the first punch or who started the fight. She also
acknowledged her prior statement to police relating these events.
For purposes of our opinion, we will assume the judge's
statement is ambiguous because it might suggest the judge recalled
the child believed her police statement was the result of "poor
recollection at the time." Following our review of the arguments
in light of the record, we conclude the comment did not deprive
defendant of a fair trial, when considered in the context of the
total instruction given to the jury.
11 A-2826-14T4
Importantly, the judge repeatedly informed the jury its
recollection of the evidence controlled and it was the sole
factfinder, stating:
You and you alone are the sole and
exclusive judges of the evidence, of the
credibility of the various witnesses, and the
weight to be attached to the testimony of each
witness.
Regardless of what counsel said or I may
have said recalling the evidence in this case,
it is your recollection of the evidence that
should guide you as judges of the facts.
Arguments, statements, remarks, openings, and
summations of counsel are not evidence and
must not be treated as evidence.
Although the attorneys may point out what
they think important in this case, you must
rely solely upon your understanding and
recollection of the evidence that was admitted
during the trial.
Moreover, the now challenged comment did not misconstrue a
legal instruction; rather, it was designed to provide an
illustration of inconsistencies between two witness statements.
In the same charge on the same subject, the judge also included a
much clearer example and told the jurors to consider all evidence
and discern whether the prior statement was correct or whether the
different trial statement was correct.
Finally, the child's testimony was read back to the jury at
its request, making her statements fresh in each juror's mind when
12 A-2826-14T4
deliberations resumed. In this light, we reject defendant's
argument of plain error warranting reversal.
Defendant also contends the judge erred in denying a mistrial
after the child responded to a question by noting Janet's partner
asked defendant why he had punched him. We reject this argument
as lacking merit. R. 2:11-3(e)(2).
Upon defendant's objection, the judge struck the statement
and issued a swift, clear, strong instruction for the jury, see
State v. Vallejo, 198 N.J. 122, 134-35 (2009), ordering jurors to
disregard the witness's inadvertent response to the prosecutor's
inartful question and firmly told the jury not consider it in
deliberations, "in any manner, size, shape, or form during the
course of this trial." We find no abuse of discretion in denying
the resultant motion for mistrial. "[W]e trust juries to follow
instructions." State v. Short, 131 N.J. 47, 65 (1993); see also
State v. Winter, 96 N.J. 640, 649 (1984) (holding that jury is
capable of following a curative instruction to ignore prejudicial
matter). We have no reason to conclude the jury did not do so in
this case.
Finally, defendant argues the self-defense instructions
misleadingly suggested that the State did not
need to disprove self-defense beyond a
reasonable doubt in order for the jury to
convict [defendant] . . . . These
instructions were misleading because they
13 A-2826-14T4
suggested the State only had to prove
[defendant] violated the elements found in the
specific criminal statutes . . . . But the
State also had to prove beyond a reasonable
doubt the absence of the justification defense
. . . .
The judge tailored his charge, guided by the Model Jury
Charges on reckless manslaughter and self-defense. Defendant
agreed the charge was appropriate and raised no objection at trial.
We disagree with the suggestion that the charge as issued was
erroneous or confusing, and reject defendant's claim of plain
error. We also reject as lacking merit defendant's claim of
cumulative error. R. 2-11:3(e)(2).
B.
Defendant raises several arguments challenging the imposed
sentence of nine years. We review sentencing decisions for an
abuse of discretion. State v. Blackmon, 202 N.J. 283, 297 (2010).
Appellate courts review sentencing
determinations in accordance with a
deferential standard. The reviewing court
must not substitute its judgment for that of
the sentencing court. State v. O'Donnell, 117
N.J. 210, 215 (1989). The appellate court
must affirm the sentence unless (1) the
sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by
the sentencing court were not based upon
competent and credible evidence in the record;
or (3) "the application of the guidelines to
the facts of [the] case makes the sentence
clearly unreasonable so as to shock the
judicial conscience." State v. Roth, 95 N.J.
334, 364-65 (1984).
14 A-2826-14T4
[State v. Fuentes, 217 N.J. 57, 70 (2014).]
When the trial judge properly identifies and balances the
aggravating and mitigating factors, which are supported by
sufficient credible evidence in the record, we will affirm the
sentence. State v. Cassady, 198 N.J. 165, 180-81 (2009).
Here, the judge found aggravating factors one (the act was
committed in a heinous, cruel, or depraved manner), two (the
gravity and seriousness of harm inflicted on the victim, including
whether defendant knew or reasonably should have known the victim
was particularly vulnerable or incapable of resistance), three
(risk defendant will re-offend), and nine (need for deterrence).
N.J.S.A. 2C:44-1(a)(1), (2), (3), (9). The judge also applied
mitigating factors five (the victim induced or facilitated
defendant's conduct) and seven (defendant has no history of prior
delinquency or criminal activity). N.J.S.A. 2C:44-1(b)(5), (7).
Defendant argues the imposed sentence was excessive because
the trial judge: (a) improperly applied aggravating factors one,
two, and three; (b) failed to apply applicable mitigating factors
two (defendant did not contemplate his conduct would cause serious
harm), nine (defendant's character and attitude show it is unlikely
he will commit another offense), and twelve (defendant cooperated
with law enforcement), see N.J.S.A. 2C:44-1(b)(2), (9), (12),
15 A-2826-14T4
although requested by defendant; and (c) did not consider
application of mitigating factors three (defendant acted under
strong provocation), four (substantial grounds tending to excuse
or justify defendant's conduct, though failing to establish a
defense) and eight (defendant's conduct was the result of
circumstances unlikely to recur). See N.J.S.A. 2C:44-1(b)(3),
(4), (8). We consider each of these arguments.
1.
Defendant argues aggravating factor one was not applicable.
The judge applied the factor because defendant chose to engage
Janet's partner, instead of driving away. Defendant asserts this
conduct goes to recklessness; therefore, the judge's finding
double counted an element of the offense. We disagree.
In Fuentes, the Supreme Court recently discussed this exact
issue, stating:
When applying this factor, "the sentencing
court reviews the severity of the defendant's
crime, 'the single most important factor in
the sentencing process,' assessing the degree
to which defendant's conduct has threatened
the safety of its direct victims and the
public." State v. Lawless, 214 N.J. 594, 609
(2013) (quoting [State v. ]Hodge, 95 N.J.
[369,] 379 [(1984)]). As the Court has held,
"[t]he paramount reason we focus on the
severity of the crime is to assure the
protection of the public and the deterrence
of others. The higher the degree of the crime,
the greater the public need for protection and
16 A-2826-14T4
the more need for deterrence." State v.
Megargel, 143 N.J. 484, 500 (1996).
When it assesses whether a defendant's
conduct was especially "heinous, cruel, or
depraved," a sentencing court must
scrupulously avoid "double-counting" facts
that establish the elements of the relevant
offense. See State v. Yarbough, 100 N.J. 627,
645 (1985); [State v. ]Kromphold, 162 N.J.
[345,] 352 [(2000)]. As this Court observed:
[In Yarbough], we recognized that
facts that established elements of
a crime for which a defendant is
being sentenced should not be
considered as aggravating
circumstances in determining that
sentence. We reasoned that the
Legislature had already considered
the elements of an offense in the
gradation of a crime. If we held
otherwise, every offense arguably
would implicate aggravating factors
merely by its commission, thereby
eroding the basis for the gradation
of offenses and the distinction
between elements and aggravating
circumstances. In the same manner,
double-counting of elements of the
offenses as aggravating factors
would be likely to interfere with
the Code's dedication to uniformity
in sentencing.
[Kromphold, supra, 162 N.J. at 353
(internal citation omitted).]
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. See [State v.]
O'Donnell, 117 N.J. [210,] 217 [(1989)]. In
O'Donnell, supra, the Court held that "cruel"
17 A-2826-14T4
conduct may give rise to an aggravating factor
in a manslaughter sentencing when the
defendant intended "'to inflict pain, harm and
suffering — in addition to intending death.'"
Id. at 217-18 (quoting State v. Ramseur, 106
N.J. 123, 208 (1987)); see also State v. Soto,
340 N.J. Super. 47, 54-55, 71-72 (App. Div.),
certif. denied, 170 N.J. 209 (2001) (affirming
application of aggravating factor one when
trial court noted protracted suffering
inflicted and brutal killing of victim); State
v. Mara, 253 N.J. Super. 204, 214 (App. Div.
1992) (affirming sentencing court's finding
that aggravating factor one applied when, in
aggravated assault case, "the serious injuries
were far in excess of that required to
satisfy" statutory elements). A sentencing
court may consider "aggravating facts showing
that [a] defendant's behavior extended to the
extreme reaches of the prohibited behavior."
State v. Henry, 418 N.J. Super. 481, 493 (Law
Div. 2010) (citing State v. Taylor, 226 N.J.
Super. 441, 453 (App. Div. 1988)).
[Fuentes, supra, 217 N.J. at 74-75.]
Here, the judge's comment, suggesting defendant could have
driven away but instead exited his vehicle secreting a knife,
reflects the manner in which defendant acted and the cruel nature
of the killing. We do not agree the trial judge abused his
discretion in applying this factor. See State v. Bowens, 108 N.J.
622, 639 (1987) (focusing on the "brutal, senseless nature of [a]
stabbing"). We also note the judge lessened the weight of this
factor, finding it was "offset" by mitigating factor five, noting
the victim initiated the altercation.
18 A-2826-14T4
In applying aggravating factor two, the judge recognized the
seriousness of the harm that resulted from defendant's actions.
He found defendant escalated a fistfight by employing a knife.
Thus, the victim was vulnerable because he "was in no [way]
prepared to stave off a knife fight, so obviously when a knife is
brought to a dispute there is some vulnerability for the victim."
Defendant's claim of double-counting characterizing this finding
as representing the "use of deadly force" is rejected.
"[Aggravating factor two] compels 'a pragmatic assessment of
the totality of harm inflicted by the offender on the victim.'"
State v. Anthony, 443 N.J. Super. 553, 575-76 (App. Div. 2016)
(quoting Lawless, supra, 214 N.J. at 610.) "It focuses on the
setting of the offense itself with particular attention to any
factors that rendered the victim vulnerable or incapable of
resistance at the time of the crime." Ibid. (quoting Lawless,
supra, 214 N.J. at 611). In State v. Faucette, 439 N.J. Super.
241 (App. Div. 2015), we affirmed the application of aggravating
factor two when the defendant was aware his co-defendant was armed
with a gun as he went to rob an unsuspecting gas station attendant,
reciting the trial judge's stated findings: "The victim was just
plain vulnerable and had no chance whatsoever. . . ." Id. at 272.
In our view, the judge's findings reflect those facts
identified in Faucette. As the trial judge stated, defendant used
19 A-2826-14T4
a knife in a fistfight, making the unsuspecting victim vulnerable.
Additionally, the judge did not accord heavy weight to this
finding.
Next, applying aggravating factor three, the judge cited
defendant's prior alcohol use, lack of stable employment, and
conduct, including commission of domestic violence and a municipal
court offense, represented a deviation from the standards of
society, from which he concluded defendant was likely to engage
in future criminal conduct. However, defendant argues this was
his first criminal offense and the evidence cited was insufficient
to support the finding he will reoffend.
Defendant's contention that aggravating factor three cannot
coexist with mitigating factor seven, is not correct. See State
v. Case, 220 N.J. 49, 67 (2014) ([W]e do not presume that
aggravating factor three cannot coexist with mitigating factor
seven . . . ."); State v. Varona, 242 N.J. Super. 474, 491 (App.
Div.), certif. denied, 122 N.J. 386 (1990) (finding aggravating
factor three despite lack of prior record). The issue is whether
the cited factual findings are grounded in competent, credible
evidence in the record. See Roth, supra, 95 N.J. at 363.
We reject the generalities of social alcohol use, cited by
the judge, as support for the likelihood of re-offense. Also, the
pre-sentence report identifies defendant was employed at the time
20 A-2826-14T4
this offense occurred and the judge did not explain why he found
defendant's employment was unstable.
That said, the judge did mention three other facts bearing
on application of aggravating factor three. First, he noted
defendant had been involved in domestic violence matters.
Documents show final restraining orders were granted against
defendant for assault in January 2007 and again in March 2007.
Further, matters tried in municipal court included charges for
disturbing the peace and shoplifting in 2006 and downgraded charges
of resisting arrest to improper behavior in 2009, both of which
resulted in suspended jail sentences. The judge stated defendant
was not deterred by these interactions with the justice system and
diversionary programs. He also found defendant's conduct,
although not criminal, showed a "deviation or . . . violation of
the standard mores of society" tending to suggest he will reoffend.
Finally, when discussing deterrence, the judge mentioned
defendant's lack of appreciation for the gravity of his conduct
and his insistence the killing was justified. This finding also
bears on likelihood of re-offense. In sum, adequate evidence
supporting application of aggravating factor three was presented.
Defendant's suggestion the judge erred because application
of aggravating factor nine (deterrence) deserved little weight is
rejected. See R. 2:11-3(e)(2). The findings regarding specific
21 A-2826-14T4
and general deterrence were adequately stated and will not be
disturbed.
We turn to the trial judge's rejection of requested
application of mitigating factors. Defendant correctly asserts
mitigating factors that are called to the court's attention should
not be ignored, Blackmon, supra, 202 N.J. at 297, "and when 'amply
based in the record . . . they must be found.'" Case, supra, 220
N.J. 49, 64 (quoting State v. Dalziel, 182 N.J. 494, 504 (2005)).
During the deliberative process, a judge, must state the basis for
rejecting a claimed mitigating factor. Ibid.
The judge fully rejected application of mitigating factor
two, noting defendant could not arm himself with a deadly weapon
and believe serious harm would not result. We conclude defendant's
arguments to the contrary are specious.
We also conclude the judge's reliance on defendant's past
conduct, including domestic violence, shoplifting, and a
downgraded resisting arrest offense, was insufficient to deter him
from engaging in future criminal conduct. These facts reflect
supporting the rejection of mitigating factor nine.
Defendant also argues the judge erroneously denied
application of mitigating factor twelve. Defendant urges he
cooperated with police by driving to the stationhouse immediately
after the stabbing and voluntarily gave a statement. In rejecting
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application of this factor, the judge found defendant's motives
were not to cooperate, but to give his version of the incident,
asserting he was a victim of an unprovoked attack, before police
spoke to Janet, who he knew had called 9-1-1. The judge also
noted defendant falsely told police there were two other men
involved with the assault, in an attempt to justify his fear for
his life. In this light, we do not agree the judge abused his
discretion in denying application of factor twelve.
For the first time on appeal, defendant asserts the judge
should have applied mitigating factor three, defendant acted under
strong provocation. We disagree. The facts show defendant was
confronted by Janet's partner, who along with Janet, struck him
in the course of the altercation. Defendant's testimony asserting
his life was threatened requiring he act in self-defense was
rejected by the jury and belied by the evidence, including the
testimony of the arresting officer along with photographic
evidence showing defendant suffered mere minor injuries. Further,
no support existed for defendant's claim two additional attackers
were involved, but fled.
We reject as unfounded defendant's claim to apply mitigating
factor four, suggesting substantial grounds existed tending to
excuse or justify defendant's conduct, though failing to establish
a defense. The State appropriately refuted this request stating,
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"a strike to the face does not justify a stab to the heart."
Moreover, the claim of self-defense was rejected by the jury, such
that the killing was not found justified. See State v. Kelly, 97
N.J. 178, 204 n.12 (1984) ("[S]elf-defense based on a reasonable
belief in the need for deadly force would constitute justification
— a complete defense — to the charge of reckless manslaughter.");
State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997) ("Self-
defense is a complete defense not only to murder but also to
manslaughter . . . .").
Defendant further maintains for the first time, his conduct
was the result of circumstances unlikely to recur, warranting
application of mitigating factor eight. He argues the facts
surrounding the assault, including attacks by Janet and her
partner, were unusual, and therefore, unlikely to reoccur. We are
unpersuaded. The trial judge noted defendant's prior domestic
violence and municipal court charges involved altercations, which
we note are reflective of an inability to walk away from such
physical encounters, when challenged.
The judge properly applied and balanced applicable
aggravating and mitigating factors. The term imposed fell within
the range applicable to defendant's conviction. Consequently, we
determine there is no basis to interfere with this sentence.
Affirmed.
24 A-2826-14T4