STATE OF NEW JERSEY VS. ABHINABA BARTHAKUR(14-12-0797, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-0566-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ABHINABA BARTHAKUR,
Defendant-Appellant.
_______________________________
Submitted October 12, 2017 – Decided October 23, 2017
Before Judges Haas and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment No.
14-12-0797.
Hegge & Confusione, LLC, attorneys for
appellant (Michael Confusione, of counsel and
on the brief).
Michael H. Robertson, Somerset County
Prosecutor, attorney for respondent (Perry
Farhat, Assistant Prosecutor, on the brief).
PER CURIAM
Following a bench trial, defendant was convicted of third-
degree terroristic threats, N.J.S.A. 2C:12-3(a). The judge
sentenced defendant to twenty-four months of probation conditioned
on defendant serving 180 days in the county jail.
On appeal, defendant raises the following contentions:
Point [I]
The trial court erred in denying defendant's
motion for acquittal and, then, in finding
defendant guilty of third-degree terroristic
threats.
Point [II]
Defendant's sentence is improper and
excessive.
We affirm.
Turning to Point I, defendant argues that the trial judge
incorrectly denied his motion for a judgment of acquittal at the
end of the State's case-in-chief, and that the judge's verdict at
the conclusion of the trial was against the weight of the evidence.
We disagree.
A motion for acquittal must be granted "if the evidence is
insufficient to warrant a conviction." R. 3:18-1.
On a motion for judgment of acquittal, the
governing test is: whether the evidence
viewed in its entirety, and giving the State
the benefit of all of its favorable testimony
and all of the favorable inferences which can
reasonably be drawn therefrom, is such that a
jury could properly find beyond a reasonable
doubt that the defendant was guilty of the
crime charged.
[State v. D.A., 191 N.J. 158, 163 (2007)
(citing State v. Reyes, 50 N.J. 454, 458-59
(1967)).]
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We have stated that "the trial judge is not concerned with
the worth, nature[,] or extent (beyond a scintilla) of the
evidence, but only with its existence, viewed most favorably to
the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App.
Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 341
(App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review
of a trial court's denial of a motion for acquittal is "limited
and deferential[,]" and is governed by the same standard as the
trial court. State v. Reddish, 181 N.J. 553, 620 (2004).
In considering whether a guilty verdict was against the weight
of the evidence produced at trial, "our task is to decide whether
'it clearly appears that there was a miscarriage of justice under
the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.)
(quoting R. 2:10-1), certif. denied, 134 N.J. 476 (1993). "We
must sift through the evidence 'to determine whether any trier of
fact could rationally have found beyond a reasonable doubt that
the essential elements of the crime were present.'" Ibid. (quoting
State v. Carter, 91 N.J. 86, 96 (1982)).
Applying these standards, we conclude that the State
presented sufficient proofs both in its case-in-chief and in the
full trial to establish beyond a reasonable doubt that defendant
made terroristic threats.
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A person who "threatens to commit any crime of violence with
the purpose to terrorize another" is guilty of third-degree
terroristic threats. N.J.S.A. 2C:12-3(a). On the day of the
incident, one of defendant's neighbors called the police to report
that defendant was shooting off a gun on his property. Two police
officers went to defendant's home to investigate. Upon their
arrival, defendant approached the officers aggressively and began
screaming at them to get off his property. The officers saw that
defendant had a large dog barking and roaming the perimeter of the
house.
Despite the officers' efforts to calm defendant, he
threatened to let his dog loose to attack them. Defendant then
stated he was going to get his gun, and started running toward his
house. At that point, the officers grabbed defendant and arrested
him. At the police station, defendant stated he would shoot the
officers and anyone else who came on his property. Defendant also
threatened to cut off the feet of one of the officers. The trial
judge found that the officers' testimony was credible.
Under these circumstances, we discern no basis for disturbing
defendant's conviction. The State's proofs regarding the serious
threats defendant made were overwhelming. Thus, we reject
defendant's contention on this point.
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In Point II, defendant argues that his sentence was excessive.
We disagree.
Trial judges have broad sentencing discretion as long as the
sentence is based on competent credible evidence and fits within
the statutory framework. State v. Dalziel, 182 N.J. 494, 500
(2005). Judges must identify and consider "any relevant
aggravating and mitigating factors" that "are called to the court's
attention[,]" and "explain how they arrived at a particular
sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting
State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review
of sentencing is deferential," and we therefore avoid substituting
our judgment for the judgment of the trial court. Id. at 65;
State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95
N.J. 334, 365 (1984).
We are satisfied the judge made findings of fact concerning
aggravating and mitigating factors that were based on competent
and reasonably credible evidence in the record, and applied the
correct sentencing guidelines enunciated in the Code, including
the imposition of a custodial term for this third-degree offense.
Accordingly, we discern no basis to second-guess the sentence.
Affirmed.
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