STATE OF NEW JERSEY VS. QUAMEIR T. WATERSÂ (13-07-0595, CUMBERLAND COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5382-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUAMEIR T. WATERS, a/k/a
COO COO, QUAMEIER WATERS,
Defendant-Appellant.
Submitted September 12, 2017 - Decided September 21, 2017
Before Judges Carroll and Mawla.
On appeal from the Superior Court of New
Jersey, Law Division, Cumberland County,
Indictment No. 13-07-0595.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marcia Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Kim L.
Barfield, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
On November 13, 2012, defendant Quameir Waters, Octavis
Spence, and others attended a gathering hosted by Anthony and
Thomas Nieves at the Nieves's apartment in Fairton. The following
morning, defendant and Spence were involved in a heated argument,
during which Spence locked defendant outside the apartment, but
eventually let him back in. Defendant then fired two shots at
Spence, hitting him once in the back and leaving him paralyzed
from the waist down. Defendant left the scene, and the gun was
never recovered.
Spence knew defendant for "[a] couple months" before the
shooting and referred to him by his street name, "Cuckoo." Spence
identified defendant as his assailant and described the gun
defendant used as a dark semiautomatic handgun. At the scene,
police found one bullet lodged in a wall and two empty shell
casings, which they concluded were fired from a semiautomatic
weapon.
That evening, defendant was arrested at his Bridgeton home
by the Fugitive Unit of the New Jersey State Police (NJSP).
Defendant gave a statement in which he initially denied being at
the Fairton apartment on the morning of the shooting, insisting
he had gone fishing. He later admitted he was present; that he
and Spence had argued violently over a girl; and that he wanted
to fight Spence. However, defendant continued to deny shooting
Spence, and claimed "[s]ome other guy" came into the home and shot
2 A-5382-14T1
Spence during the argument, but he could not provide police with
a name or description of the shooter.
The police searched defendant incident to his arrest and
recovered one Metro PCS Kyocera cell phone and a blue AT&T cell
phone. After obtaining a Communications Data Search Warrant, the
police downloaded the contents of the phones onto a flash drive.
From the AT&T cell phone, they recovered a text message sent to a
contact named "Marianna" at 1:01 p.m. on November 14, 2012,
stating: "I got into some deep shit, bae. I need to know if you're
going to be here for me or not. This shit crazy. Write down this
address; 54 West Broad Street, Bridgeton, New Jersey 08302." The
address referred to in the text message is that of the Cumberland
County Jail.
Police also recovered approximately 2000 photographs from the
cell phones, 200 of which had been deleted. Several deleted photos
were admitted in evidence at trial, including a picture of a black,
semiautomatic handgun with a magazine lying next to it, and a
picture of defendant holding what appeared to be a black handgun
and pointing it at the camera. The police could not determine the
caliber of the gun displayed in the photographs or the location
where the photos were taken.
On July 17, 2013, defendant was charged in Cumberland County
Indictment No. 13-07-0595 with first-degree attempted murder,
3 A-5382-14T1
N.J.S.A. 2C:11-3a(1) (count one); second-degree aggravated
assault, N.J.S.A. 2C:12-1b(1) (count two); fourth-degree
aggravated assault, N.J.S.A. 2C:12-1b(4) (count three); third-
degree aggravated assault, N.J.S.A. 2C:12-1b(4) (count four);
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b
(count five); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4a (count six); and second-degree
possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b
(count seven). Following a January 2015 jury trial, defendant was
convicted on all seven counts.
On April 22, 2015, the trial court denied defendant's motion
for a new trial, and granted the State's motion for a discretionary
extended term sentence. On count one, the court imposed a fifty-
year prison term with an eighty-five percent parole ineligibility
period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2(a). The court merged counts two through six into count one.
On count seven, the court imposed an eight-year prison term with
five years of parole ineligibility, consecutive to the sentence
imposed on count one. The court also assessed the appropriate
fines and penalties, and awarded defendant 890 days of jail credit
for time already served.
In this appeal, defendant challenges his convictions and
sentence. He presents the following arguments for our
4 A-5382-14T1
consideration:
POINT I
THE PROSECUTOR COMMITTED REVERSIBLE
MISCONDUCT WHEN HE MADE TWO ARGUMENTS IN
SUMMATION THAT HAD NO BASIS IN FACT. (PARTLY
RAISED BELOW).
POINT II
BECAUSE THERE WAS NO BASIS FOR ANY INSTRUCTION
ON CONSCIOUSNESS OF GUILT, IT WAS PREJUDICIAL
ERROR FOR THE COURT TO CHARGE THE JURY THAT
THERE WERE TWO REASONS IT COULD DRAW THE
INFERENCE: 1) FROM CELL PHONE PHOTOGRAPHS THAT
WERE DELETED BEFORE THE SPONTANEOUS OFFENSE
AND 2) FROM [DEFENDANT]'S "FLIGHT," WHICH
CONSISTED OF HIS GOING HOME.
POINT III
THE PROSECUTOR'S REPEATED USE OF DEFENDANT'S
PEJORATIVE STREET NAME WAS HIGHLY PREJUDICIAL
AND VIOLATED HIS CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND TO A FAIR TRIAL. (NOT RAISED
BELOW).
POINT IV
THE SENTENCE OF [FIFTY-EIGHT] YEARS, [FORTY-
SEVEN AND ONE-HALF] YEARS WITHOUT PAROLE[,]
IS BASED ON AN IMPROPER AGGRAVATING FACTOR,
OVERLOOKS A RELEVANT MITIGATING FACTOR, AND
IS EXCESSIVE.
We address each of these arguments in turn.
I.
Defendant contends the prosecutor committed reversible
misconduct when he made two arguments in summation that had no
basis in fact. First, defendant asserts the prosecutor misstated
5 A-5382-14T1
facts in his summation when he argued that it was unknown whether
defendant deleted the photos from his cell phone before or after
the shooting. The prosecutor stated, in pertinent part:
We have photographs on his phone.
And I know it was probably kind of boring,
hearing Detective Cavagnaro talk about the
process and procedure [of recovering the
photos] and going through the dates and times.
And, yeah, there's a question; did he erase
the pictures before or after he committed the
crime?
Well, the answer to -- whatever that answer
is, it's not good for [defendant] because if
he did it after the crime, he's trying to cover
it up. If he did it before [the crime], it
kind of says he knew it was coming.
At trial, Cumberland County Prosecutor's Office Detective
Raymond Cavagnaro testified that the photos of the gun found on
defendant's phone had been deleted at 12:00 a.m. on November 14,
2012, "plus or minus five hours." The testimony of Spence and
NJSP Detective Arthur Barilotti was that the shooting occurred
sometime between 7:30 a.m. and 8:30 a.m. on November 14, 2012.
Thus, according to the State's evidence, the photos were erased
before the shooting.
Defense counsel timely objected to the prosecutor's comment
on this evidence, arguing that the photos were "off [defendant's]
phone" by the time of the shooting, and accordingly, they "didn't
have anything to do with this shooting." Defense counsel argued
6 A-5382-14T1
that this misstatement of fact was improper and constituted grounds
for a mistrial. The court disagreed, ruling that the prosecutor's
remark was a fair comment on the consciousness of defendant's
guilt. On appeal, defendant renews his argument that the
prosecutor's remarks cannot "be considered fair comment on the
evidence." He contends the State's evidence indicated that the
pictures were deleted before the shooting, and because the argument
between Spence and defendant was "wholly spontaneous," the
shooting could not have been planned.
Second, defendant contends that the prosecutor committed
reversible misconduct when he remarked that it took "courage" for
Spence to testify at trial. During summation, the prosecutor
commented:
[Defendant] tried to kill him and ended
up paralyzing him, putting him in a wheelchair
for the rest of his life. So not only has he
got that wheelchair and everything that’s
associated with it but he gets four years in
prison.[1]
What courage did it take to come in here?
He could have been like Anthony Nieves. Taken
the stand, looked over at [defendant], gotten
a little shaky.
Mr. Spence got up here and I ask you,
when you evaluate his credibility, look at the
[1]
At the time of trial, Spence was serving a four-year state
prison sentence for a violation of probation and a controlled
dangerous substances conviction.
7 A-5382-14T1
courage and ask yourself what courage that
takes. And while you're at it, ask a very
basic, fundamental question.
Why in the world would Mr. Spence, who
is in a wheelchair for the rest of his life,
paralyzed from the waist down, get on this
stand and [willfully] misidentify the person
who put him in that wheelchair? That, ladies
and gentlemen, makes zero sense, no sense.
You want to look at credibility? You
want to evaluate credibility? Look at the
motives of the person taking the stand and ask
yourselves, does this make sense?
Although defendant did not object at trial, he now argues
that the prosecutor "implied damaging facts" by stating that Spence
had "courage" for testifying in court. He contends the jurors
"may well have understood that the prosecutor was insinuating that
it took courage for Spence to testify because he had reason to
fear . . . [defendant] would retaliate[.]" Defendant asserts that
the prosecutor's statement improperly communicated to the jury
that if Spence was willing to offer testimony under such
circumstances, then it must be true, and thereby "violated the
longstanding rule" that the prosecutor should not vouch for the
credibility of the victim.
When "a claim [is made] of prosecutorial misconduct with
respect to remarks in summation, the issue presented is one of
law" and, thus, reviewed de novo. State v. Smith, 212 N.J. 365,
387 (2012), cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 Lans. Ch.
8 A-5382-14T1
Ed. 2d 558 (2013). The issue raised in claims of prosecutorial
misconduct "is two-fold: whether the prosecutor committed
misconduct, and, if so, 'whether the prosecutor's conduct
constitutes grounds for a new trial.'" State v. Wakefield, 190
N.J. 397, 446 (2007) (quoting State v. Smith, 167 N.J. 158, 181
(2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed.
2d 817 (2008).
"[P]rosecutors are afforded considerable leeway" when they
address the jury, provided "their comments are reasonably related
to the scope of the evidence." State v. Cole, ___ N.J. ___, ____
(2017) (slip op. at 32) (quoting State v. Frost, 158 N.J. 76, 82
(1999)). "Prosecutors should not make inaccurate legal or factual
assertions during a trial. They are duty-bound to confine their
comments to facts revealed during the trial and reasonable
inferences to be drawn from that evidence." Frost, supra, 158
N.J. at 85 (citation omitted). In addition, a prosecutor may not
express a personal belief or opinion as to the truthfulness of a
witness's testimony. State v. Marshall, 123 N.J. 1, 156 (1991),
cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694
(1993); State v. Staples, 263 N.J. Super. 602, 605 (App. Div.
1993).
A prosecutor is, however, "entitled to argue the merits of
the State's case 'graphically and forcefully,' and is not required
9 A-5382-14T1
to present those arguments as if he were addressing a lecture
hall[.]" Smith, supra, 212 N.J. at 403 (quoting State v. Feaster,
156 N.J. 1, 58 (1998), cert. denied, 532 U.S. 932, 121 S. Ct.
1380, 149 L. Ed. 2d 306 (2001)). They "may strike hard blows
[but] not . . . foul ones[.]" Feaster, supra, 156 N.J. at 59
(quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629,
633, 79 L. Ed. 2d 1314, 1321 (1935)).
"Notwithstanding the high standard to which a prosecutor is
held as he or she gives an opening statement or summation, 'not
every deviation from the legal prescriptions governing
prosecutorial conduct' requires reversal." State v. Jackson, 211
N.J. 394, 408-09 (2012) (quoting State v. Williams, 113 N.J. 393,
452 (1988)). A prosecutor's improper "comments are deemed to have
violated the defendant's right to a fair trial when they 'so
infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.'" Id. at 409 (alteration in
original) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988),
cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803
(1989)).
In our review of the prosecutor's comments, the factors to
be considered include: "whether 'timely and proper objections'
were raised; whether the offending remarks 'were withdrawn
promptly'; . . . whether the trial court struck the remarks and
10 A-5382-14T1
provided appropriate instructions to the jury [; and] . . . whether
the offending remarks were prompted by comments in the summation
of defense counsel." Smith, supra, 212 N.J. at 403-04 (citations
omitted). Where there is no objection to the prosecutor's
statements at trial, defendant cannot prevail without showing
plain error — error clearly capable of prejudicing defendant's
right to a fair trial. State v. Timmendequas, 161 N.J. 515, 576-
77 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.
2d 89 (2001). A failure to object is relevant to the fair trial
standard in two ways. It "indicates that defense counsel did not
believe the remarks were prejudicial at the time[,]" and it
"deprives the court of the opportunity" to address and cure the
error injected by the prosecutor's deviation from his or her duty
"'to ensure that justice is achieved,'" which exists whether or
not defense counsel objects. Id. at 576 (quoting State v. Long,
119 N.J. 439, 483 (1990)).
Here, the fact the prosecutor's summation misstated the
photographs may have been erased after the shooting is not a
sufficient basis to reverse defendant's convictions. First, as a
curative measure, the court reminded the jury that "[a]rguments,
statements, remarks, openings and summations of counsel are not
evidence and must not be treated as evidence." Second, defendant's
contention that the altercation that ultimately resulted in
11 A-5382-14T1
Spence's shooting was purely "spontaneous" rather than "planned"
was clearly an issue for the jury to decide. Importantly, Spence
testified that the argument persisted for twenty to thirty minutes.
After the argument, Spence locked the door, but eventually let
defendant back in the apartment, at which time the shooting
occurred. Moreover, a plethora of additional evidence, including
the identification of defendant by Spence, who knew him well;
defendant's incriminating text message to Marianna after the
shooting indicating he "got into some deep shit" and providing her
with the address for the county jail; and his inconsistent
statements to police following his arrest, amply supported
defendant's conviction and rendered admission of the challenged
remark harmless.
With respect to the prosecutor's comments regarding Spence's
"courage" in testifying, we begin by noting that defense counsel
did not object at trial, and hence our analysis of these comments
is governed by the plain error standard. R. 2:10-2. We conclude
these comments did not rise to the level of vouching, nor did the
State's comments mislead the jury or improperly bolster Spence's
testimony. As the State correctly submits, courage and honesty
are not synonymous.
We distinguish the present case from State v. Walden, 370
N.J. Super. 549 (App. Div.), certif. denied, 182 N.J. 148 (2004),
12 A-5382-14T1
where we determined that the prosecutor's summation impermissibly
commented on the credibility of a witness, Temil Green, so as to
mandate a reversal. In Walden, the prosecutor stated:
If a reasonable person were going to go to a
store and buy a witness, I would suggest to
you that reasonable person would buy Temil
Green. That he was just a good, solid, decent,
courageous, I suggest to you, honest kid. He
is the type of kid that we hope our sons will
grow up to be. Not having everything handed
to him on a silver platter or on a silver
spoon but when it comes down to your gut to
do the right thing, to be honest, to be
truthful, to not cave into the pressures, to
not succumb to any of the fears, that's
courage, ladies and gentlemen.
That is a lot more courage than many of us
will ever know and I suggest to you that when
you determine the credibility of Temil Green,
[] I'm going to suggest to you that Temil Green
was as honest as could be when he gave that
statement and was as courageous as could be
and I will grant you he was uncomfortable and
nervous there and I will talk about -- suggest
to you why that’s so."
[Id. at 560 (emphasis added).]
In Walden, the prosecutor directly stated to the jury his
personal opinion that the witness was honest, contending that
Temil Green was "as honest as he could be" and that he "gave you
honest testimony." Ibid. Importantly, in analyzing this
statement, we took issue with the prosecutor's suggestion that
Green was honest and to be believed, and not with his suggestion
that Green was courageous. Id. at 560-62. In contrast, in the
13 A-5382-14T1
present case, the prosecutor merely stated that Spence was
courageous for testifying, given the debilitating injuries he
suffered in the shooting. When viewed in context, we find no
plain error in these challenged remarks.
II.
Defendant next contends there was no basis for the trial
court to instruct the jury on consciousness of guilt, either as
to the deleted photographs or defendant's alleged flight from the
shooting scene. Defendant's arguments on this point are
unpersuasive.
At the charge conference, defense counsel objected to the
flight charge, arguing there was no factual basis in the record
to support it, and citing the prejudicial effect of such charge.
In rejecting defendant's argument, the trial judge reasoned:
[T]here's certainly an inference that can
be drawn by the jury that [defendant] fled
shortly after the alleged commission of the
crime. So if [defendant] did it, [he is] the
one that left. There's certainly evidence
before the jury of that . . . but the charge
also is very specific.
It says that mere departure from a place
where a crime has been committed does not
constitute flight. The charge goes on to say
that if you find that the [d]efendant, fearing
that an accusation or arrest would be made
against him on the charge involved in the
Indictment [] [t]ook refuge in flight for the
purpose of evading the accusation or arrest
on that charge, then you may consider such
14 A-5382-14T1
flight, in connection with all the other
evidence in the case, as an indication of
proof of consciousness of guilt.
Flight may be considered as evidence of
consciousness of guilt if you should determine
that the [d]efendant's purpose in leaving was
to evade accusation or arrest to the offense
charged in the Indictment.
So . . . there's an adequate basis in the
record for the jury to consider that. It's
not a separate crime. It's just whether or
not there's consciousness of guilt.
[Defendant] didn't stick around. [He]
wasn't found at the scene. I think that it's
an inference that can be drawn. I'm satisfied
that there's [a] sufficient amount of evidence
before the jury to give that charge.
The judge subsequently instructed the jury consistent with Model
Jury Charge (Criminal), "Flight" (May 10, 2010).
Pertinent to the deleted photographs, the judge instructed
the jury as follows:
[I]n this case, the evidence that has
been offered to attempt to convince you that,
in fact, the photos were deleted near the time
of the events alleged, is evidence of a
consciousness of guilt on the [d]efendant's
part, regarding the Attempted Murder and/or
Aggravated Assault, as alleged.
You may not draw this inference, unless
you conclude that the acts alleged were an
attempt by the [d]efendant to cover up the
crimes being alleged. Whether this evidence
does, in fact, demonstrate consciousness of
guilt is for you to decide.
15 A-5382-14T1
You may decide that the evidence does not
demonstrate consciousness of guilt and it is
not helpful to you at all. In that case, you
must disregard the evidence.
On the other hand, you may decide that
the evidence does not demonstrate
consciousness of guilt and use it for that
specific purpose. However, you may not use
this evidence to decide that the [d]efendant
has a tendency to commit crimes or that he's
a bad person.
That is, you may not decide that just
because photographs were found on the
[d]efendant's phone, he must be guilty of the
present crimes. I've admitted the evidence
only to help you decide whether such evidence
is evidence of consciousness of guilt.
You may not consider it for any other
purpose and may not find the [d]efendant
guilty now, simply because the State has
offered this specific evidence.
"An essential ingredient of a fair trial is that a jury
receive adequate and understandable instructions. Correct jury
instructions are at the heart of the proper execution of the jury
function in a criminal trial." State v. Afanador, 151 N.J. 41,
54 (1997) (citations omitted). It is essential to the right to a
fair trial that jury charges be accurate and appropriate,
particularly in criminal cases. State v. Green, 86 N.J. 281, 289
(1981). Our courts "have always placed an extraordinarily high
value on the importance of appropriate and proper jury charges to
the right to trial by jury. Erroneous instructions on matters or
16 A-5382-14T1
issues material to the jurors' deliberations are presumed to be
reversible error." State v. Grunow, 102 N.J. 133, 148 (1986)
(citing State v. Collier, 90 N.J. 117, 122-23 (1982)). That is,
erroneous instructions are viewed as "'poor candidates for
rehabilitation under the harmless error philosophy.'" State v.
Belliard, 415 N.J. Super. 51, 70 (App. Div. 2010) (quoting Feaster,
supra, 156 N.J. at 45), certif. denied, 205 N.J. 81 (2011).
Our Supreme Court has recently noted that "[o]ur
jurisprudence regarding consciousness-of-guilt evidence derives
from the principle that certain conduct may be 'intrinsically
indicative of a consciousness of guilt,' and may therefore be
admitted as substantive proof of the defendant's guilt." Cole,
supra, ___ N.J. at ___ (slip op. at 34) (quoting State v. Phillips,
166 N.J. Super. 153, 160 (App. Div. 1979), certif. denied, 85 N.J.
93 (1980)). "Evidence of flight . . . by an accused generally is
admissible as demonstrating consciousness of guilt, and is
therefore regarded as probative of guilt." State v. Mann, 132
N.J. 410, 418 (1993); see also Cole, supra, ___ N.J. at ___ (slip
op. at 34). "The most common example of conduct that can give
rise to an inference of consciousness of guilt is flight." State
v. Randolph, 441 N.J. Super. 533, 562 (App. Div. 2015), aff'd in
part and rev'd in part on other grounds, 228 N.J. 566 (2017).
Evidence of flight need not be unequivocal, but it "must be
17 A-5382-14T1
'intrinsically indicative of a consciousness of guilt.'"
Randolph, supra, 228 N.J. at 595 (quoting Randolph, supra, 441
N.J. Super. at 562).
In the present case, we are satisfied that the trial judge
properly exercised his authority in administering the flight
charge. Defendant's reason for promptly leaving the shooting
scene was unexplained. It was not until later that evening that
he was located and apprehended by the fugitive squad. In the
interim, he texted a friend, indicating he was in "deep shit," and
provided her with the address for the county jail. The jury was
entitled to evaluate that evidence and determine defendant's
actual motivation for fleeing. The judge did not abuse his
discretion in providing the flight charge.
We reach the same conclusion with respect to the deleted
photographs. As noted, the State's evidence indicated that the
photos in question were deleted before the shooting occurred.
Nonetheless, defendant's deletion of the photos arguably evidenced
consciousness of guilt, since a jury could rationally infer
defendant knew he illegally possessed a firearm that he intended
to use against another. Accordingly, the judge did not abuse his
discretion in issuing a consciousness-of-guilt instruction.
18 A-5382-14T1
III.
Defendant next argues that the prosecutor's repeated
reference to his street name, Cuckoo, was highly prejudicial and
violated his constitutional rights to due process and a fair trial.
Since defendant did not object to these references at trial, our
review is governed by the plain error standard. R. 2:10-2. "Any
error or omission shall be disregarded by the appellate court
unless it is of such a nature as to have been clearly capable of
producing an unjust result. . . ." Ibid.; see State v. Galicia,
210 N.J. 364, 386 (2012).
In support of his argument, defendant cites our decisions in
State v. Salaam, 225 N.J. Super. 66 (App. Div.), certif. denied,
111 N.J. 609 (1988), and State v. Paduani, 307 N.J. Super. 134
(App. Div.), certif. denied, 153 N.J. 216 (1998). However, in
Salaam, we recognized that "the majority of decisions involving
this issue hold that the admission of irrelevant aliases into
evidence will not afford a basis for reversal unless some tangible
form of prejudice is demonstrated, i.e., where such names have
been intentionally offered as indicia of guilt." Salaam, supra,
225 N.J. Super. at 73. We declined to reverse defendant's
conviction, noting that the references to defendant's alias
"neither compromised defendant's right to have the jury evaluate
the merits of his defense nor prejudiced his right to a fair
19 A-5382-14T1
trial." Id. at 76. Similarly, in Paduani, we stated "[t]he use
of defendant's street nickname during trial cannot serve as a per
se predicate for reversal." Paduani, supra, 307 N.J. Super. at
146. We found the reference to defendant's nickname was
clearly relevant because each defendant was
identified to the police by use of a nickname.
In fact, defense counsel during trial
referenced defendant by use of his nickname.
Moreover, defendant has pointed to no tangible
form of prejudice attributable to the use of
his nickname during trial and our independent
review of the record reveals none.
[Id. at 147.]
In the present case, the admission of defendant's street name
was proper because it was relevant to the State's case. As in
Paduani, defendant was known to Spence by his street name, Cuckoo,
and he identified to police by this name. Similar to Paduani,
defense counsel on several occasions also referred to other persons
present at the Nieves's apartment by their nicknames when
questioning witnesses and during summation. Accordingly, we
discern no plain error in the prosecutor's references to
defendant's street name.
IV.
Finally, defendant argues that his aggregate fifty-eight year
sentence with a NERA parole disqualifier is excessive. He further
contends the trial court improperly applied aggravating factor
20 A-5382-14T1
two, N.J.S.A. 2C:44-1(a)(2), the gravity and seriousness of harm
inflicted upon the victim, while failing to apply mitigating factor
four, N.J.S.A. 2C:44-1(b)(4), that there were grounds tending to
excuse or justify defendant's conduct. We disagree.
Sentencing determinations are reviewed on appeal with a
highly deferential standard. State v. Fuentes, 217 N.J. 57, 70
(2014). "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.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)). Once the trial court has balanced the aggravating and
mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it
"may impose a term within the permissible range for the offense."
State v. Bieniek, 200 N.J. 601, 608 (2010); see also State v.
Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts
may not substitute their judgment for that of the sentencing court,
provided that the "aggravating and mitigating factors are
identified [and] supported by competent, credible evidence in the
record").
21 A-5382-14T1
In sentencing defendant, in addition to aggravating factor
two, the court found significant the following aggravating
factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-
1(a)(3); (2) the extent of defendant's prior criminal record and
the severity of those offenses (factor six), N.J.S.A. 2C:44-
1(a)(6); and (3) the need for deterrence (factor nine), N.J.S.A.
2C:44-1(a)(9). The court found no mitigating factors.
The court appropriately pointed out several important
considerations bearing on its sentencing analysis. First, the
court noted that defendant had both a lengthy juvenile and adult
criminal history. The court further noted that defendant "has
been offered diversionary opportunities, probation, and state-
level incarceration. Nothing has deterred him from his life of
crime. He is a persistent and violent offender with weapons
offenses and the only way that this [c]ourt can protect society
from him is to impose an extended term."
Contrary to defendant's argument, "a conviction for attempted
murder does not require as one of its elements that any injury be
inflicted." State v. Noble, 398 N.J. Super. 574, 599 (App. Div.),
certif. denied, 195 N.J. 522 (2008). Here, the trial judge
"note[d] that the victim has sustained a gunshot wound. The bullet
is still lodged in his body. He is paralyzed essentially from his
mid-section down[.]" Accordingly, the extent of the injury
22 A-5382-14T1
defendant inflicted on Spence is a substantial aggravating factor,
as the judge properly found. Ibid.
The judge found no mitigating factors applied, and we find
no basis in the record to disturb that reasoned conclusion. As
the court applied correct legal principles, and the sentence,
while undoubtedly severe, is amply supported by the record and
does not shock our judicial conscience, we decline to disturb it.
Roth, supra, 95 N.J. at 363-64.
Affirmed.
23 A-5382-14T1