STATE OF NEW JERSEY VS. TARI D. TURPIN(14-05-0885, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1745-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TARI D. TURPIN, a/k/a TARID TURPIN,
TARI TURRIN and TARI DEMOND TURPIN,
Defendant-Respondent.
______________________________
Submitted May 9, 2017 – Decided June 8, 2017
Before Judges Reisner and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 14-05-0885.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Yvette Kyles, Assistant
Deputy Public Defender, of counsel and on the
brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Kerry J. Salkin,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Tari D. Turpin appeals from his conviction for two
counts of second-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(1), and other associated offenses.1 He also appeals from the
aggregate term of thirty years subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, consisting of an extended term of
twenty years for the first assault conviction, with a consecutive
ten-year term for the second assault conviction. The remaining
sentences were concurrent.
On this appeal, defendant raises the following points of
argument:
POINT I
THE JURY CHARGE ON SECOND-DEGREE
AGGRAVATED ASSAULT DEPRIVED TURPIN OF DUE
PROCESS AND HIS RIGHT TO PRESENT A
DEFENSE BY ALLOWING THE JURY TO CONVICT
ON A THEORY OF RECKLESS CONDUCT THAT WAS
NOT SET FORTH IN THE INDICTMENT.
POINT II
THE STATE FAILED TO PROVE THAT TURPIN
SHOT [A.M.] PURPOSELY OR KNOWINGLY.
THEREFORE, TURPIN'S MOTION FOR A JUDGMENT
OF ACQUITTAL OF COUNT II SHOULD HAVE BEEN
GRANTED.
1
In addition to aggravated assault, defendant was convicted of
possessing a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a);
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); threatening
violence, N.J.S.A. 2C:12-3(a); possessing dum-dum bullets,
N.J.S.A. 2C:39-3(f); and creating a risk of injury, N.J.S.A. 2C:17-
2(c).
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POINT III
IN IMPOSING AN EXTENDED TERM ON COUNT I,
THE COURT FAILED TO PROPERLY ANALYZE
TURPIN'S RECORD AND TO MAKE APPROPRIATE
FINDINGS. IN IMPOSING THE TERMS ON
COUNTS I AND II, THE COURT FAILED TO
CONSIDER TWO MITIGATING FACTORS THAT WERE
CALLED TO THE COURT'S ATTENTION AND AMPLY
BASED IN THE RECORD. BECAUSE OF THESE
ERRORS, A REMAND IS REQUIRED.
A. The extended term was not justified
on the record.
B. Family hardship and provocation
should have been considered in
mitigation of the sentence imposed.
After reviewing the record in light of the applicable legal
standards, we find no merit in any of those arguments. We affirm
the conviction and the sentence.
The pertinent trial evidence can be summarized briefly as
follows. At about 4:30 a.m., while riding the PATH train from New
York to Jersey City, defendant and his female companion got into
an argument with another passenger, D.D.2 During the argument,
defendant pulled out a gun, and then returned it to his pocket.
He then began to pull the gun back out of his pocket, and D.D.'s
friend, A.M, intervened. According to A.M., he put his left hand
over the pocket containing the gun, and put his right hand on
2
We use initials to identify the victims, to protect their
privacy.
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defendant's wrist in an effort to keep him from pulling out the
gun. Defendant fired the gun, shooting off three fingers of A.M.'s
left hand but also wounding himself in the leg. By this time the
train had reached Jersey City, and defendant exited the train,
still holding the gun. He paused, turned, and fired two shots at
D.D., hitting her once in the leg and shattering her ankle.
Defendant fled through the PATH station, discarding the gun
on a ledge, where it was later recovered by the police. Shortly
after the incident, the police apprehended defendant a few blocks
from the PATH station. The shooting set off a panic inside the
PATH station and resulted in a shutdown of PATH train service.
Virtually the entire incident, including defendant committing
the shootings and discarding the gun, was captured by the PATH
system's security video cameras. The videos were played for the
jury. The State also presented testimony from the individual from
whom defendant obtained the gun, a Glock 9 model loaded with hollow
point bullets.
On this appeal, defendant argues that, in charging the jury
as to the aggravated assault charges, the trial court should not
have instructed the jury that they could consider whether
defendant's conduct was reckless. He contends that because the
indictment only stated that defendant committed the assaults
"purposely" or "knowingly," but did not include "recklessly," the
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inclusion of reckless conduct in the jury charge and the verdict
sheet was an unfair surprise.
We agree with the trial judge that the indictment put
defendant on notice that he was charged with an offense, N.J.S.A.
2C:12-1(b)(1), that could be proven by demonstrating that he
committed the assault purposely, knowingly, or recklessly. In
that regard, we find persuasive the reasoning of Judge Stern's
opinion in State v. Murphy, 185 N.J. Super. 72, 76 (Law Div. 1982)
("[P]leading the most serious culpability state suffices for
lesser kinds of culpability . . . irrespective of whether the
lesser culpability is the basis for distinguishing between kinds
of crime, one crime and a lesser included offense or alternative
elements with respect to the same degree.")
We also note that any claim of unfair surprise is belied by
the evidence in this case. Defendant has not so much as suggested
how he would have mounted a different defense, depending on whether
the judge was going to charge the jury with recklessness in
addition to knowing or purposeful conduct.
Next, defendant contends that he was entitled to a judgment
of acquittal as to the charge of aggravated assault on A.M. After
reviewing the evidence in light of the standard set forth in State
v. Reyes, 50 N.J. 454, 458-59 (1967), we cannot agree. Both
defendant and A.M. were shot during the struggle - defendant in
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the leg and A.M. in the hand. A jury could have found that
defendant purposely or knowingly pulled the trigger intending to
shoot A.M. in the hand. They also could have found that defendant
caused A.M.'s injury recklessly "under circumstances manifesting
extreme indifference to the value of human life." N.J.S.A. 2C:12-
1(b)(1).
Finally, we address defendant's challenge to the sentence.
The trial court sentenced defendant to a discretionary extended
term of twenty years for shooting D.D., and added a consecutive
ordinary term of ten years for shooting A.M. We find no basis to
disturb the extended term sentence for shooting D.D., which the
judge appropriately explained, or the imposition of a consecutive
term for shooting A.M. See State v. Case, 220 N.J. 49, 64 (2014);
State v. Pierce, 188 N.J. 155, 168-69 (2006); State v. Yarbough,
100 N.J. 627, 643-44 (1985), certif. denied, 475 U.S. 1014, 106
S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We agree with the judge's
determination that no mitigating factors applied here.
Defendant's sentencing arguments are without sufficient merit to
warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
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