STATE OF NEW JERSEY v. RAPHAEL E. GARLAND (19-08-2261, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-3808-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAPHAEL E. GARLAND,
Defendant-Appellant.
_______________________
Argued May 25, 2022 – Decided July 11, 2022
Before Judges Whipple, Geiger and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 19-08-2261.
Cody T. Mason, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Nakea J. Barksdale,
Assistant Deputy Public Defender, of counsel and on
the brief).
Kaili E. Matthews, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Acting
Attorney General, attorney; Kaili E. Matthews, of
counsel and on the brief).
PER CURIAM
Defendant, Raphael E. Garland, appeals his jury trial conviction and
sentence for third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7).
Defendant contends: (1) the trial court erred in refusing to give a jury charge
on simple assault, a lesser-included offense of the second-degree aggravated
assault crime for which he was indicted; (2) the trial court erred by not giving a
jury charge sua sponte concerning the reliability of identification testimony by
the arresting officer; (3) the trial court erred in refusing to provide an adverse
inference jury charge concerning video surveillance footage that defendant
alleges was not provided in discovery; (4) the trial judge's errors cumulatively
deprived defendant of a fair trial; and (5) the trial judge at sentencing
impermissibly double-counted the harm element of the offense. After carefully
reviewing the record in light of the arguments of the parties and the applicable
legal principles, we affirm.
I.
We discern the following facts from the trial record. On April 3, 2019,
Brian Moseti and a couple of his friends were drinking at the Rio Lounge, a
Newark nightclub. While there, a male patron grabbed the buttocks of Moseti's
female friend. Moseti then "approached the guy[] and . . . asked him if he . . .
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wanted to dance with [his friend]." Moseti noted that the man was wearing a
pink hat. The male patron shoved Moseti, causing him to stagger and fall.
Moseti got up and was escorted by security out of the nightclub.
Moseti waited outside the nightclub because his belongings were still
inside. After approximately fifteen to twenty minutes, he re-entered the
nightclub lobby. Newark Police Officer Reynaldo Barte, who was working
security, was also in that area.
While Moseti was waiting in the lobby, the man with the pink hat
approached, accompanied by several other people, and punched him. Moseti
was pulled outside where the group of individuals continuously punched and
kicked him in the face.
Officer Barte witnessed the assault and intervened, threatening to use his
pepper spray. All but one of the individuals who were striking Moseti fled. One
individual, however, continued to attack Moseti, which prompted Barte to
discharge pepper spray against him. That provided an opportunity for Moseti to
break away and run towards the parking lot. Despite being pepper sprayed, the
remaining assailant gave chase. Moseti fell to the ground, at which point the
pursuing assailant resumed his attack. Moseti begged the assailant to stop to no
avail. The assailant relentlessly punched Moseti in the face, which resulted in
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him "bleeding a lot." Moseti was able to turn toward the assailant and grab one
of his dreadlocks. The assailant stopped attacking Moseti as police officers
arrived at the scene.
Officer Barte followed the assailant, defendant, to his car, never losing
sight of him. Barte ordered defendant to exit his vehicle and placed him under
arrest. Barte did not observe any injuries to defendant but did notice blood on
defendant's sneakers and jeans. At the scene, defendant received treatment from
EMTs after complaining about his eyes.
Moseti was taken to the hospital where he was admitted and remained for
four days. Moseti sustained the following injuries: five fractures to his nose, a
broken jaw that was wired shut for six weeks, a laceration to his lip that required
stitches, and Le Fort fracture. 1 Additionally, a tube needed to be inserted in his
nose to allow him to breath because his nose had sustained numerous fractures.
The assault also resulted in broken bones on both sides of his face, which
required doctors to insert screws. His injuries will require lip surgery at some
point in future.
1
We understand a Le Forte fracture to be a type of transverse fracture of the
midface. See Facial Management Handbook, U. of Iowa Health Care,
https://medicine.uiowa.edu/iowaprotocols/facial-fracture-management-
handbook-lefort-fractures (last modified Aug. 27, 2019).
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On August 21, 2019, a grand jury returned an indictment charging
defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).
Judge Mayra V. Tarantino presided over a three-day jury trial in October
and November 2019. On November 7, 2019, the jury acquitted defendant of
second-degree aggravated assault but convicted him of third-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(7).
On March 4, 2020, Judge Tarantino sentenced defendant to five years in
prison, to be served consecutively to the term of imprisonment related to his
parole violation, N.J.S.A. 2C:45-5(c).
This appeal follows. Defendant raises the following issues for our
consideration:
POINT I
THE TRIAL COURT'S FAILURE TO GIVE THE
REQUESTED INSTRUCTION ON SIMPLE
ASSAULT AS A LESSER-INCLUDED OFFENSE OF
AGGRAVATED ASSAULT CONSTITUTED A
VIOLATION OF DEFENDANT'S RIGHT TO DUE
PROCESS AND A FAIR TRIAL.
POINT II
THE TRIAL COURT'S OMISSION OF AN
IDENTIFICATION CHARGE ADDRESSING THE
ARRESTING OFFICER'S IDENTIFICATION OF
DEFENDANT CONSTITUTED PLAIN ERROR AND
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POSSESSED A CLEAR CAPACITY TO BRING
ABOUT AN UNJUST RESULT. (Not Raised Below).
POINT III
THE TRIAL COURT ERRED IN FAILING TO
PROVIDE JURORS WITH AN ADVERSE-
INFERENCE INSTRUCTION AFTER THE STATE
FAILED TO PRESERVE THE SURVEILLANCE
FOOTAGE OUTSIDE OF RIO LOUNGE, THEREBY
ALLOWING CRITICAL [EVIDENCE] TO BE
DESTROYED.
POINT IV
THE CUMULATIVE EFFECT OF THE TRIAL
ERRORS DEPRIVED DEFENDANT OF DUE
PROCESS AND A FAIR TRIAL AND WARRANTS
REVERSAL OF HIS CONVICTIONS. (Not Raised
Below).
POINT V
THE SENTENCING COURT ERRED IN FINDING
AGGRAVATING FACTOR TWO BECAUSE IT
DOUBLE-COUNTED THE HARM INHERENT TO
AGGRAVATED ASSAULT AND IMPROPERLY
REPLACED ITS JUDGMENT FOR THE JURY'S BY
CONSIDERING ACQUITTED CONDUCT.
II.
We first address defendant's contention that the trial court erred in not
providing the jury with the option to convict for the lesser-included offense of
simple assault. During the charge conference conducted pursuant to Rule 1:8-
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7(b), defendant requested the trial court to instruct the jury on the following
lesser-included offenses: (1) third-degree aggravated assault, N.J.S.A. 2C:12-
1(b); (2) disorderly persons simple assault, N.J.S.A. 2C:12-1(a); and (3) petty
disorderly persons mutual fighting, N.J.S.A. 2C:12-1(a). The State consented
to the lesser-included offense of third-degree aggravated assault—the offense
for which defendant was eventually found guilty. Judge Tarantino denied
defendant's request to instruct the jury on simple assault and mutual fighting. 2
Regarding simple assault, the judge determined that the trial evidence—
photographs, medical records, and testimony—did not support that charge given
the severity of the injuries that were inflicted on the victim. The judge noted
that Moseti "testified he had screws on his cheeks. He had a tube in through his
nose that he needed to use to breathe and his jaw was wired shut for six weeks
and he needed to eat through a straw." The judge also recognized that Moseti
testified that he still had issues with his lips. We agree with the trial judge that
given the severity of the injuries and the manner in which they were inflicted,
2
Defendant does not contend on appeal that the trial court erred in refusing to
instruct the jury on the petty disorderly persons offense of mutual combat. See
N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 504 n.2 (App.
Div. 2015) ("[A]n issue that is not briefed is deemed waived upon appeal."
(citing Fantis Foods v. N. River Ins. Co., 332 N.J. Super. 250, 266–67 (App.
Div. 2000))).
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there was no rational basis for a verdict convicting defendant of the lesser
offense of simple assault.
We begin our analysis by acknowledging the governing legal principles.
"It is a bedrock principle of our criminal justice system that '[a]ppropriate and
proper charges to a jury are essential for a fair trial.'" State v. Canfield, 470 N.J.
Super. 234, 269 (App. Div. 2022) (alteration in original) (quoting State v.
Carrero, 229 N.J. 118, 127 (2017)), certif. granted, __ N.J. __ (2022). As such,
"the public interest in a correct verdict requires a trial court to submit to the jury
not only those offenses charged in the indictment, but also uncharged lesser-
included offenses grounded in the evidence." State v. Denofa, 187 N.J. 24, 41
(2006).
Our Supreme Court has recognized that "when a lesser offense is
requested by a defendant, as in this case, 'the trial court is obligated, in view of
defendant's interest, to examine the record thoroughly to determine if . . . [there
is a] rational-basis'" to provide a charge on lesser-included offenses. State v.
Savage, 172 N.J. 374, 397 (2002) (quoting State v. Crisantos, 102 N.J. 265, 278
(1986)). Generally, a "defendant is entitled to a charge on all lesser included
offenses supported by the evidence '[t]o give full force to the reasonable doubt
standard and to preserve defendants' rights to have the jury consider all
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defenses.'" State v. Reddish, 181 N.J. 553, 626 (2004) (alteration in original)
(quoting State v. Short, 131 N.J. 47, 53 (1993)). It also is clearly established,
however, that "trial courts '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.'" Ibid. (quoting N.J.S.A. 2C:1-8(e)).
"In order to justify a lesser included offense instruction, a rational basis
must exist in the evidence for a jury to acquit the defendant of the greater offense
as well as to convict the defendant of the lesser, unindicted offense." Savage,
172 N.J. at 396 (citing State v. Brent, 137 N.J. 107, 113–14 (1994)). When, as
in this case, the defendant has requested the lesser-included charge, "the trial
court must view the evidence in the light most favorable to the defendant."
Carrero, 229 N.J. at 128; Reddish, 181 N.J. at 626; see also Canfield, 470 N.J.
Super. at 272–73. Although our Supreme Court has recognized that the rational-
basis standard is "low" for charging the jury on a lesser-included offense that
has been requested by the defendant, "sheer speculation does not constitute
rational basis." Reddish, 181 N.J. at 626.
The distinction between second-degree aggravated assault, third-degree
aggravated assault, and simple assault focuses on the severity of injury suffered
by the victim. Second-degree aggravated assault requires "serious bodily
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injury," third-degree aggravated assault requires "significant bodily injury," and
simple assault requires "bodily injury."
"Serious bodily injury" is defined as "bodily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or organ."
N.J.S.A. 2C:11-1(b). "Significant bodily injury" is defined as "bodily injury
which creates a temporary loss of the function of any bodily member or organ
or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1(d). Finally,
"[b]odily injury," sometimes referred to as mere bodily injury, is defined as
"physical pain, illness or any impairment of physical condition." N.J.S.A.
2C:11-1(a).
The trial judge reasoned that the extent of Moseti's injuries were
inconsistent with a simple assault verdict. On appeal, defendant does not dispute
the severity of the victim's injuries. Rather, he now argues that a jury might
have found that the injuries amounting to serious and significant bodily harm
were caused by the other assailants and that defendant was responsible only for
causing mere bodily injury. The trial evidence belies that argument, even when
viewed in the light most favorable to defendant. Carrero, 229 N.J. at 128. Even
assuming for the sake of argument that other assailants caused some of Moseti's
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injuries,3 there is no rational basis to believe that defendant was not responsible
for the victim's facial injuries. Defendant was only one who continued his attack
after Barte intervened. The others fled when Barte threatened to deploy pepper
spray. Even after being sprayed, defendant pursued the victim and resumed his
attack, continuing to strike Moseti in the face repeatedly. In these
circumstances, we are satisfied that there was no rational basis upon which the
jury might have convicted defendant of disorderly persons simple assault.
III.
We turn next to defendant's contention, raised for the first time on appeal,
that the trial court erred by failing to instruct the jury on eyewitness
identifications sua sponte. 4 Defendant claims the State's case relied on an
3
In view of the evidence of defendant's relentless attack, which continued after
the other assailants fled, we need not rely on the legal principle that "a person is
legally accountable for the conduct of another when . . . he [or she] is an
accomplice of such other person in the commission of an offense." N.J.S.A.
2C:2-6(b). We note, however, that the principle of accomplice liability provides
an independent basis to reject defendant's contention on appeal that there was a
rational basis for a simple assault jury instruction because the jury might have
found that the other attackers, not defendant, caused the significant/serious
bodily harm the victim sustained.
4
Defendant has submitted a letter pursuant to Rule 2:6-11(d) regarding our
recent decision in State v. Watson, __ N.J. Super. __ (App. Div.
2022). Defendant argues that our observations in Watson relating to the
suggestiveness of in-court identifications are relevant to this matter. We reject
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unreliable identification by Barte. That newly-minted contention is belied by
the record. We conclude that the reliability of Barte's identification of defendant
was not contested at trial, likely because there was no factual basis upon which
to do so.
Proper jury instructions are "crucial to the jury's deliberations on the guilt
of a criminal defendant . . . ." State v. Jordan, 147 N.J. 409, 422 (1997). In its
jury instructions, a "trial court must give 'a comprehensible explanation of the
questions that the jury must determine, including the law of the case applicable
to the facts that the jury may find.'" State v. Baum, 224 N.J. 147, 159 (2016)
(quoting State v. Green, 86 N.J. 281, 287–88 (1981)).
A "missing instruction on identification is reviewed for plain error." State
v. Sanchez-Medina, 231 N.J. 452, 468 (2018). When a defendant "does not
object or otherwise preserve an issue for appeal at the trial court level, we review
the issue for plain error. We must disregard any unchallenged errors or
omissions unless they are 'clearly capable of producing an unjust result.'" State
v. Santamaria, 236 N.J. 390, 404 (2019) (quoting R. 2:10-2). Our Supreme
this argument because defendant has not challenged Barte's in-court
identification on appeal. See Alloway Twp., 438 N.J. Super. at 504 n.2 ("[A]n
issue that is not briefed is deemed waived upon appeal." (citing Fantis Foods,
332 N.J. Super. at 266–67)). In any event, we do not read Watson as requiring
a trial court to provide an in-court identification charge sua sponte.
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Court has made clear that "[p]lain error is a high bar and constitutes 'error not
properly preserved for appeal but of a magnitude dictating appellate
consideration.'" Id. at 404 (quoting State v. Bueso, 225 N.J. 193, 202 (2016)).
"Moreover, that high standard provides a strong incentive for counsel to
interpose a timely objection, enabling the trial court to forestall or correct a
potential error." Bueso, 225 N.J. at 203. In the context of jury instructions, "[i]f
the defendant does not object to the charge at the time it is given, there is a
presumption that the charge was not error and was unlikely to prejudice the
defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v.
Macon, 57 N.J. 325, 333–34 (1971)).
Importantly, "[a] defendant who does not raise an issue before a trial court
bears the burden of establishing that the trial court's actions constituted plain
error." State v. Ross, 229 N.J. 389, 407 (2017) (citing State v. Weston, 222 N.J.
277, 295 (2015)). A defendant must shoulder this burden "because 'to rerun a
trial when the error could easily have been cured on request, would reward the
litigant who suffers an error for tactical advantage either in the trial or on
appeal.'" Ibid. "To determine whether an alleged error rises to the level of plain
error, it must be evaluated in light of the overall strength of the State's case."
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State v. Singh, 245 N.J. 1, 14–15 (2021); accord State v. Walker, 203 N.J. 73,
90 (2010).
Furthermore, the prejudicial effect of an omitted instruction is evaluated
"in light of the totality of the circumstances—including all the instructions to
the jury, [and] the arguments of counsel." State v. Marshall, 123 N.J. 1, 145
(1991) (alteration in original) (quoting Kentucky v. Whorton, 441 U.S. 786, 789
(1979)). "Portions of a charge alleged to be erroneous cannot be dealt with in
isolation but the charge should be examined as a whole to determine its overall
effect." Jordan, 147 N.J. at 422 (quoting State v. Wilbely, 63 N.J. 420, 422
(1973)).
The trial court in this instance was not required to provide the jury with
an identification instruction sua sponte because identification was not at issue. 5
Officer Barte not only witnessed the attack but actively intervened, pepper
spraying the assailant who then pursued and resumed the attack on the victim.
Barte followed defendant to his vehicle and placed defendant under arrest.
Nothing in the record suggests that Barte lost sight of defendant before taking
5
We note that defendant never requested a Wade/Henderson hearing to
challenge Barte's identification of defendant. See United States v. Wade, 388
U.S. 218 (1967); State v. Henderson, 208 N.J. 208 (2011). Nor did defendant
object to Barte's in-court identification.
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him into custody. Furthermore, defendant asked for medical assistance from
responding EMTs, complaining of eye pain. Defendant, it bears emphasis, was
the only assailant who was pepper sprayed.
In these circumstances, there was no need for the judge to instruct the jury
on the risk of eyewitness misidentification. We add that Judge Tarantino gave
appropriate instructions on the reasonable doubt standard of proof, witness
credibility, and prior inconsistent statements. The jury was thus adequately
instructed with regard to Barte's testimony.
IV.
Defendant next argues that the trial court abused its discretion in rejecting
defendant's request for an adverse inference charge regarding what defendant
assumes to be a missing video surveillance recording. We discern the following
pertinent facts from the trial record.
Defendant requested adverse inference jury instructions for missing police
body-worn camera footage and missing surveillance video footage taken from
outside the nightclub. On the morning of the first day of trial, Judge Tarantino
heard oral arguments pertaining to the adverse inference jury instructions. She
determined that she would reserve decision on defendant's requests until after
she had heard testimony from the witnesses.
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At trial, the defense called Newark Police Sergeant Mark Armstead to
testify regarding a recording made by the body-worn camera he was wearing
when he responded to the fight outside the nightclub.
Defense counsel also asked Armstead if he had ever viewed surveillance
video obtained from the nightclub. Armstead testified that he first heard of the
nightclub surveillance recording from Newark Police Detective Joe Dopazo.
Armstead noted that Dopazo mentioned such a video in his Use of Force Report
pertaining to the incident, but that Armstead himself did not view, download, or
otherwise possess first-hand knowledge of any surveillance video recording.
After Sergeant Armstead testified, the trial court determined that an
adverse inference charge as to the body-worn camera footage was appropriate
but denied defendant's request for an adverse inference charge pertaining to the
nightclub surveillance footage. The trial court explained:
The only thing that has changed is it was your belief
that it was . . . Officer Armstead that viewed the
surveillance footage. But we learned now it wasn't
Officer Armstead. It was Detective Dopazo. And
without having . . . Detective Dopazo testify that what
he viewed [and] then later relayed to Officer Armstead
is either the same or different than the surveillance
video that was produced to you, the [c]ourt has nothing
but your argument that it is in fact different.
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Judge Tarantino explained that in discovery the State had produced a
video surveillance recording from Detective Dopazo's file, which had been
obtained from the nightclub. Importantly, Judge Tarantino further explained
that defendant was at liberty to further probe the State's representations
regarding the surveillance recording that had been provided in discovery. The
defense was authorized, for example, to subpoena Detective Dopazo to testify
as to what he viewed in the surveillance video and to confirm whether the video
the prosecutor turned over in discovery was a duplicate of the recording that
Dopazo viewed. Defendant did not pursue that option. Accordingly, the record
before us does not support defendant's claim that the State failed to turn over
discoverable material, which is the foundation for an adverse inference
instruction.
The scope of our review of the trial court's decision not to issue an adverse
inference instruction is limited. We review a denial of a request for an adverse
inference jury charge applying a deferential abuse of discretion standard. See
State v. Dabas, 215 N.J. 114, 140–41 (2013) (finding that the trial court abused
its discretion by not giving an adverse inference charge that defendant
requested).
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As we have noted, the foundation for any such instruction is the failure by
the State to comply with its discovery obligations. "When a party has a lawful
obligation to preserve evidence and fails to do so, a court may charge the jury
on its right to draw an adverse inference against that party." State v. Anthony,
237 N.J. 213, 243–44 (2019) (Albin, J., dissenting). Stated in another way, "[a]n
adverse-inference charge is one permissible remedy for a discovery violation[.]"
Dabas, 215 N.J. at 140.
Rule 3:13-3(f) provides that
[i]f at any time during the course of the proceedings it
is brought to the attention of the court that a party has
failed to comply with this rule or with an order issued
pursuant to this rule, it may order such party to permit
the discovery of materials not previously disclosed,
grant a continuance or delay during trial, or prohibit the
party from introducing in evidence the material not
disclosed, or it may enter such other order as it deems
appropriate.
Considering all relevant circumstances, we conclude the trial court did not
abuse its discretion in concluding that there was no basis for an adverse
inference instruction. Defendant was in fact provided in discovery with
surveillance video from the nightclub, and defendant did not establish that the
police were in possession of additional relevant surveillance video that had not
been turned over.
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We add that even were to assume for the sake of argument that the trial
court abused its discretion in refusing to provide an adverse inference
instruction, any such error was harmless. The harmless error standard "requires
that there be 'some degree of possibility that [the error] led to an unjust result.'"
State v. R.B., 183 N.J. 308, 330 (2005) (alteration in original) (quoting State v.
Bankston, 63 N.J. 263, 273 (1973)). For an error to require reversal, "[t]he
possibility must be real, one sufficient to raise a reasonable doubt as to whether
[it] led the jury to a verdict it otherwise might not have reached." State v. Scott,
229 N.J. 469, 484 (2017) (alterations in original) (quoting R.B., 183 N.J. at 330).
In this instance, we are satisfied that the allegedly missing surveillance
footage would not have made a difference. Defendant argues "the missing
footage may have shown that [defendant] was mistakenly identified as the
assailant. There was no corroborating evidence to support the conclusion that
[defendant] was the person who attacked Moseti, and the lost evidence could
either exculpate [defendant] or rebut Barte's identification of [defendant] as the
perpetrator." However, as we have already noted, identification was not a key
issue at trial. Defendant's argument concerning the potential impact of the
allegedly "missing" video recording falls into the category of mere speculation.
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V.
Defendant next argues that the cumulative effect of the errors during the
trial warrant reversal. We acknowledge that "[w]hen legal errors cumulatively
render a trial unfair, the Constitution requires a new trial." State v. Weaver, 219
N.J. 131, 155 (2014) (citing State v. Orecchio, 16 N.J. 125, 129 (1954)).
Furthermore, "[i]f a defendant alleges multiple trial errors, the theory of
cumulative error will still not apply where no error was prejudicial and the trial
was fair." Ibid. "[D]evised and administered by imperfect humans, no trial can
ever be entirely free of even the smallest defect. Our goal, nonetheless, must
always be fairness. A defendant is entitled to a fair trial but not a perfect one.'"
State v. R.B., 183 N.J. 308, 333–34 (2005) (quoting Lutwak v. United States,
344 U.S. 604, 619 (1953)).
In this instance, we do not believe that any errors occurred at trial,
harmless or otherwise. Accordingly, we reject defendant's cumulative error
contention.
VI.
Finally, we address defendant's argument that the trial court at sentencing
misapplied and improperly weighed the applicable aggravating and mitigating
factors. The gravamen of defendant's sentencing argument is that the judge
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double-counted the harm caused to the victim. We begin by summarizing the
trial court's findings.
Judge Tarantino found the following aggravating factors: aggravating
factor two, N.J.S.A. 2C:44-1(a)(2) ("The gravity and seriousness of harm
inflicted on the victim, including whether or not the defendant knew or
reasonably should have known that the victim of the offense was particularly
vulnerable or incapable of resistance due to advanced age, ill-health, or extreme
youth, or was for any other reason substantially incapable of exercising normal
physical or mental power of resistance"); aggravating factor three, N.J.S.A.
2C:44-1(a)(3) ("The risk that the defendant will commit another offense");
aggravating factor six, N.J.S.A. 2C:44-1(a)(6) ("The extent of the defendant's
prior criminal record and the seriousness of the offenses of which the defendant
has been convicted"); and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9) ("The
need for deterring the defendant and others from violating the law").
Judge Tarantino found only one mitigating factor, factor eleven, N.J.S.A.
2C:44-1(b)(11) ("The imprisonment of the defendant would entail excessive
hardship to the defendant or the defendant's dependent").
As to aggravating factor two, Judge Tarantino provided an extensive
analysis. Preliminarily, she stated,
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Mr. Garland, you repeatedly punched and kicked the
victim in this case as he lay on the sidewalk and when
the victim retreated you pursued him and punched him
twice more. The victim suffered five fractures to his
nose, a grade one Le Fort fracture, a grade two Le Fort
fracture, a 2-centimeter and 3-centimeter laceration to
the upper [lip], [and] an extraction of a supernumerary
tooth. The victim also required surgery to repair the
damage to his face, including the implantation of
screws in both sides of his face. The victim's upper lip
will be permanently disfigured without surgical
intervention.
Judge Tarantino explicitly addressed defendant's argument that factor two
"should not be considered because it would constitute double counting as the
seriousness of the assault was already considered by the jury." The judge cited
case law and recognized that
When a sentencing court considers the harm a
defendant caused to a victim for purpose of—purposes
of determining whether that aggravating factor is
implicated should engage in a pragmatic assessment of
the totality of the harm inflicted by the offender on the
victim to the end that defendants who purposely,
recklessly inflict substantial harm receive more severe
sentences than other defendants.
The [definition] of significant bodily injury in N.J.S.A.
2C:12-1(b)7 clearly contemplates a level of injury
severe enough to trigger aggravating factor two, the
gravity and seriousness of the harm encompassed by
that aggravating factor is a broader and less precise
concept that permits the exercise of sound discretion by
the sentencing court in determining whether the extent
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of the harm to the victim warrants application of the
aggravating factors.
Applying the law to the facts of this case, the trial court determined that
you [defendant] viciously attacked a victim while he
was defenseless on the sidewalk. You then pursued him
when he tried to run and attacked him again. You
caused him numerous injuries, several of which could
have been considered significant bodily injuries in their
own right. In doing so you did far more than the
minimum required to establish the elements of third-
degree aggravated assault. Accordingly, the Court
finds that the gravity and seriousness of the harm
inflicted on the victim at the time of the offense warrant
a finding of aggravating factor two, aggravating factor
is given the utmost weight.
Regarding aggravating factor three, Judge Tarantino determined that
defendant had "a history of criminal activity including two juvenile
adjudications and one prior indictable conviction for which [he] served time in
prison." The judge also noted that defendant was "on parole when [he]
committed the present offense." The judge concluded that "there is a risk
[defendant] will commit another offense and continue [his] pattern of antisocial
behavior."
The trial court found that aggravating factor six also applied based on
defendant's juvenile adjudications and adult first-degree robbery conviction.
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Regarding aggravating factor nine, the trial court found defendant's attack
on Moseti was a result of volitional, deliberate, and non-impulsive behavior.
She added that a prison sentence was needed "to send a clear message to
[defendant] and others that such conduct will be met with severe punishment."
The trial court concluded that
having found aggravating factors two, three and nine
applicable and giving those factors the greatest weight
possible and aggravating six having been given
appropriate weight and finding mitigating factors eight
and nine inapplicable, but finding mitigating factor
eleven applicable and having given it minimal weight
the Court finds that the aggravating factors clearly and
convincingly substantially preponderate over the one
mitigating factor.
The trial court thereupon sentenced defendant to five years in prison.
After applying the Yarbough 6 factors, the judge ordered the prison term to run
consecutive to the term of imprisonment imposed by the Parole Board for
defendant's violation of parole.
Sentencing decisions are reviewed under a highly deferential standard.
See State v. Roth, 95 N.J. 334, 364–65 (1984) (holding that an appellate court
may not overturn a sentence unless "the application of the guidelines to the facts
6
State v. Yarbough, 100 N.J. 627, 633 (1985).
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24
of [the] case makes the sentence clearly unreasonable so as to shock the judicial
conscience"). Our review is therefore limited to considering:
(1) whether guidelines for sentencing established by the
Legislature or by the courts were violated; (2) whether
the aggravating and mitigating factors found by the
sentencing court were based on competent credible
evidence in the record; and (3) whether the sentence
was nevertheless "clearly unreasonable so as to shock
the judicial conscience."
[State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State
v. McGuire, 419 N.J. Super. 88, 158 (App. Div.
2011)).]
"[A]ppellate courts are cautioned not to substitute their judgment for those
of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v.
Lawless, 214 N.J. 594, 606 (2013)). Relatedly, a trial court's exercise of
discretion that is in line with sentencing principles "should be immune from
second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010).
With respect to the consideration of aggravating and mitigating
circumstances, "the [sentencing] court must describe the balancing process
leading to the sentence." State v. Kruse, 105 N.J. 354, 360 (1987) (citations
omitted). "To provide an intelligible record for review, the trial court should
identify the aggravating and mitigating factors, describe the balance of those
factors, and explain how it determined defendant's sentence." Ibid. "Merely
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25
enumerating those factors does not provide any insight into the sentencing
decision, which follows not from a quantitative, but from a qualitative,
analysis." Id. at 363 (citing State v. Morgan, 196 N.J. Super. 1, 5 (App. Div.
1984)).
Importantly for purposes of this appeal, our Supreme Court has instructed
that courts must be careful not to "double count" aggravating circumstances that
have already been accounted for in the gradation of the crime(s) for which a
defendant has been convicted. That problem can arise when the crime includes
a result element established by the degree of harm caused to the victim, such as
homicide and assault. Accordingly, "[e]lements of a crime, including those t hat
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). However,
"subject to the bar on double counting an element of the offense in the analysis,
the harm inflicted on the victim of the offense for which the defendant is
sentenced is relevant to aggravating factor two." Id. at 613.
In State v. Kromphold, the Court further explained,
Those applications of N.J.S.A. 2C:44-1(a)(2) [in listed
cases] suggest that that aggravating factor and the
statutory definition of "serious bodily injury" in
N.J.S.A. 2C:11-1(b) address different concepts. When
a sentencing court considers the harm a defendant
caused to a victim for purposes of determining whether
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26
that aggravating factor is implicated, it should engage
in a pragmatic assessment of the totality of harm
inflicted by the offender on the victim, to the end that
defendants who purposely or recklessly inflict
substantial harm receive more severe sentences than
other defendants. Although the definition of "serious
bodily injury" in N.J.S.A. 2C:11-1(b) clearly
contemplates a level of injury severe enough to trigger
the 1(a)2 aggravating factor, "the gravity and
seriousness of the harm" encompassed by that
aggravating factor is a broader and less precise concept
that permits the exercise of sound discretion by the
sentencing court in determining whether the extent of
the harm to the victim warrants application of that
aggravating factor. We also note that the Legislature
did not attempt to link the harm implicated by that
aggravating factor with the definition of "serious bodily
injury" in N.J.S.A. 2C:11-1(b). See GE Solid State,
Inc. v. Div. of Tax'n, 132 N.J. 298, 308 (1993)
("[W]here the Legislature has carefully employed a
term in one place and excluded it in another, it should
not be implied where excluded.").
[162 N.J. 345, 358 (2000).]
We add that, "[a] sentencing court may consider 'aggravating facts showing that
[a] defendant's behavior extended to the extreme reaches of the prohibited
behavior.'" State v. Fuentes, 217 N.J. 57, 75 (quoting State v. Henry, 418 N.J.
Super. 481, 493 (Law Div. 2010)).
We next apply these foundational principles to defendant's argument that
the trial court impermissibly engaged in double counting when it found that
aggravating factor two applied. The trial court specifically found that defendant
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27
"caused numerous injuries, several of which could have been considered
significant bodily injuries in their own right." The trial court also determined
that the harm defendant inflicted on the victim exceeded the harm minimally
needed to prove the third-degree crime for which he was convicted. See State v.
A.T.C., 454 N.J. Super. 235, 254–55 (App. Div. 2018) ("A court . . . does not
engage in double-counting when it considers facts showing defendant did more
than the minimum the State is required to prove to establish the elements of an
offense."). We conclude that the court's finding was permissible because "[a]
sentencing court may consider 'aggravating facts showing that [a] defendant's
behavior extended to the extreme reaches of the prohibited behavior.'" Fuentes,
217 N.J. at 75 (quoting Henry, 418 N.J. Super. at 493).
Relatedly, we reject defendant's argument that the trial court substituted
its judgment for that of the jury by accounting for what defendant characterizes
as "acquitted conduct." Defendant's reliance on our decision in State v. Tindell,
417 N.J. Super. 530 (App. Div. 2011) is misplaced. In Tindell, we determined
that the defendant's sentence was "improperly influenced by the judge's
perception that the jury rendered an unjust verdict in defendant's favor." Id. at
568. The trial court in that case made repeated comments criticizing the jury's
decision. Id. at 568–70. In the present case, in contrast, Judge Tarantino did
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not in any way criticize the jury's decision to acquit defendant of second-degree
aggravated assault and instead convict him of a lesser-included offense—third-
degree aggravated assault.
Defendant also contends the trial court improperly weighed the
aggravating and mitigating factors. We disagree. As we have explained, Judge
Tarantino conducted a thorough review of the applicable sentencing factors,
considered them qualitatively, and determined that the aggravating factors
"substantially preponderate[d] over the one mitigating factor." There is no
mathematical formula for weighing the aggravating and mitigating factors, see
State v. McFarlane, 224 N.J. 458, 466 (2016) (quoting Case, 220 N.J. at 65), and
as we have noted, trial judges are afforded broad discretion in this qualitative
process. See Bieniek, 200 N.J. at 612.
In sum, the imposition of a five-year term of imprisonment, which is at
the top of the authorized three- to five-year range for a third-degree conviction,
N.J.S.A. 2C:43-6(a)(3), did not constitute an abuse of discretion and by no
means shocks the judicial conscience so as to warrant appellate intervention.
Roth, 95 N.J. at 364–65.
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29
To the extent we have not specifically addressed them, any additional
arguments raised by defendant lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
Affirmed.
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