STATE OF NEW JERSEY VS. TIMOTHY T. KNIGHT (15-11-2737, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-5797-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TIMOTHY T. KNIGHT, a/k/a
JOHN REED,
Defendant-Appellant.
Submitted February 25, 2020 – Decided April 7, 2020
Before Judges Fisher and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 15-11-2737.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. LaSota, Assistant Deputy Public
Defender, of counsel and on the brief).
Damon G. Tyner, Atlantic County Prosecutor, attorney
for respondent (John Joseph Santoliquido, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
At eight o'clock in the morning of a mid-July day in 2015, local police
were called to an alleyway in Atlantic City where they found Justin Turay's
lifeless body, riddled with more than twenty stab wounds to his chest and
abdomen. Turay's body was lying beneath an open second-story window of a
rooming house. One of the residents told police she saw bloodstains on a
second-floor door. Police knocked on the door. Defendant answered wearing
boxer shorts and no shirt. The odor of bleach permeated the room. Trembling,
defendant volunteered, "I didn't do anything, I didn't do it." Defendant had
several minor cuts on his fingers; he was not bleeding. Police arrested defendant
without incident. Two knives were recovered from defendant's bed.
The sole issue in the case was defendant's mental state at the time of the
homicide. Defendant did not dispute he killed Turay, his sometimes roommate.
In overlapping arguments, defendant contended he stabbed Turay in self-
defense; acted under a reasonable provocation; and suffered from a mental
disease or defect resulting from bipolar mood disorder and polysubstance abuse.
The State countered defendant's actions and words supported a purposeful or
knowing murder conviction.
The State's case was bolstered by the testimony of multiple responding
law enforcement officers, and the rooming house resident who told police about
the blood on defendant's door. The State also called two medical experts: an
2
orthopedic surgeon, who opined the lacerations on defendant's fingers were not
consistent with defensive wounds; and the medical examiner, who concluded
the cause of death was stab wounds to the chest and abdomen.
Defendant testified on his own behalf. He said Turay had accused him of
stealing a pair of sneakers; the men engaged in a physical altercation; Turay
pulled a knife; defendant wrested the weapon from Turay and "poked" him with
it until he stopped fighting defendant. Defendant then hurled Turay's body
through the window and cleaned the room to avoid police detection.
Defendant also presented the testimony of two lay witnesses, including
Taiwan Taylor, who said Turay had stabbed him four months before the present
matter (Taylor incident); and an expert witness, Charles Martinson, M.D., a
forensic psychiatrist. Dr. Martinson opined defendant "was suffering from
diminished capacity at the time of the[] events and his conduct did not meet the
specific intent needed to establish a murder conviction."
Following a bifurcated trial, a jury convicted defendant of second-degree
passion/provocation manslaughter and third-degree possession of a knife for an
unlawful purpose; the judge thereafter convicted defendant of fourth-degree
certain persons not to have weapons. After denying defendant's motion for a
new trial, ordering the appropriate merger, and granting the State's motion for a
discretionary extended term, N.J.S.A. 2C:43-7, the judge sentenced defendant
3
to an aggregate nineteen-year prison term, with an eighty-five percent period of
parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT DEPRIVED DEFENDANT OF
HIS RIGHTS TO PRESENT A DEFENSE, TO DUE
PROCESS, AND TO A FAIR TRIAL BY
IMPROPERLY PRECLUDING DEFENSE COUNSEL
FROM INTRODUCING EVIDENCE THAT THE
VICTIM HAD PREVIOUSLY BEEN THE
AGGRESSOR TOWARDS ANOTHER IN THAT
PERSON'S OWN APARTMENT.
POINT II
THE PROSECUTOR ENGAGED IN MISCONDUCT
REQUIRING REVERSAL OF DEFENDANT'S
CONVICTIONS WHEN, DURING CROSS-
EXAMINATION OF THE DEFENSE EXPERT AND
IN SUMMATION, HE COMMENTED ON THE
EXPERT HAVING BEEN COMPENSATED BY THE
DEFENSE.
POINT III
THE TRIAL COURT ERRED IN LIMITING THE
JURY'S CONSIDERATION OF DEFENDANT'S
DIMINISHED CAPACITY DEFENSE TO MURDER
AND POSSESSION OF A WEAPON FOR AN
UNLAWFUL PURPOSE WHEN THE DEFENSE
ALSO APPLIED TO THE LESSER-INCLUDED
OFFENSE OF PASSION/PROVOCATION
MANSLAUGHTER.
(Not Raised Below)
4
POINT IV
DEFENDANT'S SENTENCE IS MANIFESTLY
EXCESSIVE AND MUST BE REDUCED.
We reject these arguments and affirm.
I.
In his first point, defendant contends the trial judge impeded the
presentation of his self-defense claim by denying his application to present
evidence of one of two incidents in which Turay had been the aggressor. Prior
to trial, defendant filed a motion in limine, pursuant to N.J.R.E. 404(b), to admit
evidence of the Turay incident and another incident involving Diesuseul
Marcelin (Marcelin incident). Defendant testified at the N.J.R.E. 104 hearing.
His testimony was limited to the Taylor incident, stating he found out Turay
stabbed Taylor while the ambulance was still on the scene. Defendant's
evidence of the Marcelin incident was limited to hearsay statements contained
in a police report. Defense counsel candidly conceded defendant was not aware
of the Marcelin incident when he stabbed Turay.
Following the hearing, the trial judge issued a well-reasoned written
decision, granting defendant's motion to admit evidence of the Taylor incident,
and denying the motion as it pertained to the Marcelin incident. The judge was
persuaded that, unlike the Taylor incident, defendant was unaware of the
5
Marcelin incident when defendant killed Turay. Accordingly, the Marcelin
incident had no bearing upon "[d]efendant's state of mind for self-defense."
Defendant maintains the trial judge improperly denied his motion to admit
evidence of the Marcelin incident under Rule 404(b). For the first time on
appeal, he also contends the evidence was admissible under subsection (a) of
that Rule. We have considered defendant's arguments in light of the record and
applicable legal principles, and conclude they are without sufficient merit to
warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the
following brief comments.
We affirm the judge's decision to preclude evidence of the Marcelin
incident under Rule 404(b) for the reasons cogently expressed by the trial judge.
We simply note "[o]ur courts have always admitted evidence of a victim's
violent character as relevant to a claim of self-defense so long as the defendant
had knowledge of the dangerous and violent character of the victim." State v.
Gartland, 149 N.J. 456, 473 (1997) (emphasis added). Defendant was unaware
of the Marcelin incident when he claimed self-defense in the present matter and,
as such, the judge properly excluded evidence that Turay stabbed Marcelin.
6
We briefly address defendant's assertion that the Marcelin incident was
admissible under Rule 404(a)(2),1 noting we review defendant's newly-minted
contention for plain error. R. 2:10-2. We have long recognized
"Rule 404(a)(2) provides one of the few instances in which character evidence
is admissible to allow the jury to infer that a person acted on a specific occasion
in conformity with his character." State v. Aguiar, 322 N.J. Super. 175, 182
(App. Div. 1999). But, Rule 405 limits evidence of specific instances of conduct
to prove a character trait where the trait is "an essential element of [the] charge,
claim, or defense." And, as our Supreme Court has recognized "a victim's
violent character is not an essential element of self-defense," thus making
specific instances of bad conduct inadmissible to prove the character trait. State
v. Jenewicz, 193 N.J. 440, 463 (2008).
Moreover, unlike the Taylor incident, defendant's purported evidence of
the Marcelin incident was limited to hearsay statements contained in a police
report, "alleg[ing] an 'unwanted male' was at [Marcelin's] apartment"; Turay
1
Rule 404(a)(2) states, in relevant part:
Evidence of a person's character or character trait . . .
is not admissible for the purpose of proving that the
person acted in conformity therewith on a particular
occasion except: . . . Evidence of a pertinent trait of
character of the victim of the crime offered by an
accused . . . .
7
"alleged[ly] was the 'unwanted male'"; and he was "acting in a threatening
manner and accusing Marcelin of stealing his money." We therefore find no
error, let alone plain error, in the trial court's order, denying hearsay evidence
of the Marcelin incident at trial.
II.
Defendant next argues the prosecutor repeatedly engaged in misconduct
during cross-examination of Dr. Martinson and in summation by improperly
suggesting the expert's testimony was not credible and his opinion was "shaded"
"because he had been hired and paid by the defense." We disagree.
Defendant first objects to the following line of inquiry:
PROSECUTOR: And you have been or will be paid for
your work in this case, is that correct?
DR. MARTINSON: That's correct.
PROSECUTOR: That's paid on behalf of the defense,
correct?
DR. MARTINSON: Yes.
PROSECUTOR: And you had mentioned that there
was [sic] some communications between yourself and
[the] defense attorney regarding the lack of requisite
state of mind defense, right?
DR. MARTINSON: Correct.
PROSECUTOR: So you knew that before you
evaluated the defendant, right?
8
DR. MARTINSON: Yes.
PROSECUTOR: So . . . you evaluated some of the case
materials that you spoke about, interviewed the
defendant and wrote those two reports, right?
DR. MARTINSON: Correct.
PROSECUTOR: You were aware if the report was not
helpful to the defense that you would probably not be
asked to testify, correct?
DR. MARTINSON: My experience has been that my
opinion is accepted whether it's favorable or not. That's
been my experience with the prosecutor's office. I
haven't [had] as broad an experience with defense
counsel.
Later in the examination, when Dr. Martinson acknowledged he had not
been "hired to treat . . . defendant for his mental illness," the trial judge overruled
counsel's ensuing objection that the prosecutor improperly emphasized the
expert had been paid for his testimony. Notably, the prosecutor did not ask Dr.
Martinson any questions concerning the amount of his fee.
At the conclusion of defendant's case, the judge held a charge conference.
Relevant here, the judge indicated he would issue the standard expert jury
charge. See Model Jury Charges (Criminal), "Expert Testimony" (rev. Nov. 10,
2003). Neither defendant nor the State objected nor requested the optional
expert charge, or a modification of that charge. See Model Jury Charges
(Criminal), "Optional Charge Concerning Compensation of Experts" (approved
9
Oct. 2001) (permitting the jury to "consider the compensation received by the
expert witness(es) as bearing on (his/her/their) credibility").
During his summation, the prosecutor discussed the trial evidence in
detail, including Dr. Martinson's testimony. The prosecutor commented that the
expert was "hired for his expertise in th[e] field of forensic psychiatry"; knew
"from the start" what "his role was"; and needed "to get to the conclusion that
the defense was looking for . . . ." At the conclusion of the prosecutor's closing
argument, defense counsel objected generally to those comments.
Noting that he had intended to give the jurors the optional charge
regarding compensation of experts, the trial judge instead suggested he "could
instruct [the jury] that the fact that experts are paid for their time and their efforts
is something that the jury should not consider." Defense counsel agreed with
that option. Accordingly, the judge gave the following curative instruction
immediately before he issued the full jury charge:
[T]here were statements made about an expert being
hired. I'm going to give you an instruction in just a few
moments about how to treat expert testimony, but I
instruct you now that expert witnesses who testify, of
course, are paid for their work. Experts are paid for
their special knowledge, experience, skill, and training.
I instruct you however, that the fact that an expert may
have been compensated for their opinions is not
relevant to your consideration of their opinion [sic].
You should rather be guided by my instructions about
expert testimony in deciding how or whether you will
consider, reject or accept any opinion of any expert.
10
[(Emphasis added).]
Defendant now argues the prosecutor's questions and comments violated
our Supreme Court's warnings in State v. Smith, 167 N.J. 158 (2001).
Defendant's reliance on Smith is misplaced.
In Smith, the Court addressed the prosecutor's continual references in his
summation to the fees that the defense's expert witnesses charged. Id. at 174-
76. There, the prosecutor told the jury it need not accept the defense experts'
testimony "just because somebody with a degree or with whatever qualifications
says that that's the way it is." Id. at 174. The prosecutor also suggested experts
can tailor their testimony to satisfy the litigation needs of their clients in order
to assure future retainers. Ibid. Defense counsel immediately objected to the
prosecutor's argument and a curative instruction was issued by the trial judge.
Ibid. But, immediately thereafter the prosecutor again told the jury it could
consider whether the defense expert "shaded his testimony." Id. at 174-75.
In its final charge to the jury, the judge in Smith instructed it was not
improper for an expert to be paid a reasonable fee. Id. at 175-76. Nonetheless,
the Court held the prosecutor's remarks were improper. Id. at 188. The Court
found that the judge's several curative instructions were not enough to remedy
the prosecutor's misconduct, particularly given his remark immediately
following the first curative instruction. Ibid.
11
Those circumstances do not exist in this case. Dr. Martinson's payment
was not a dominant theme of the prosecutor's cross-examination or his
summation. The prosecutor neither stated nor implied that Dr. Martinson was
paid "hefty fees" that would color his testimony on behalf of defendant or in an
effort to be retained in future cases. Cf. id. at 174. Further, Dr. Martinson
rejected the prosecutor's implication that the expert would slant his testimony to
assist the defense.
Moreover, any alleged errors were corrected by the judge's curative
instruction, which was issued immediately after the prosecutor's summation.
State v. McKinney, 223 N.J. 475, 497 (2015) ("A trial judge is permitted and
encouraged to correct errors that occur during trial," and "[a] curative jury
instruction is one method to remedy trial error."). Indeed, the judge's instruction
went beyond the model charge – and the judge's charge in Smith – advising the
jury the expert's fee was irrelevant in its consideration of his opinion. "We must
assume the jury followed the court's instruction." State v. Little, 296 N.J. Super.
573, 580 (App. Div. 1997). We therefore conclude the prosecutor's questions
and comments did not deprive defendant of his right to have the jury fairly
evaluate the evidence and his defense. State v. Nelson, 173 N.J. 417, 460
(2002).
12
III.
In his third point, which was not raised below, defendant contends his
passion/provocation manslaughter conviction must be reversed because the trial
judge improperly instructed the jury that defendant's diminished capacity
defense did not apply to that charge. We disagree.
During the charge conference, both parties agreed with the trial judge's
proposal to instruct the jury that defendant's diminished capacity defense applied
to any charge with "a mens rea, purposeful or knowing, so it would apply to the
two counts of the indictment to be considered by the jury." The judge clarified
that the defense would apply to "murder and unlawful possession, 2 it would not
apply to agg[ravated] man[slaugher] or reck[less] man[slaughter]." When the
judge asked whether "[b]oth sides agree[d] with that analysis[,]" the prosecutor
responded in the affirmative; defense counsel did not respond verbally; and the
judge turned to the next jury charge issue.
The judge's charging decision was consistent with Dr. Martinson's opinion
that defendant's conduct at the time of the incident was not "knowing and
purposeful by reason of his mental illness and by reason of th[e] mixed
depressive manic state that he was operating under." The judge conformed the
2
We assume the judge was referring to possession of a weapon for an unlawful
purpose, which was the only weapons offense charged in the indictment that was
submitted to the jury.
13
standard charge pertaining to defendant's diminished capacity defense
accordingly. See Model Jury Charges (Criminal), "Evidence of Mental Disease
or Defect (N.J.S.A. 2C:4-2)" (rev. June 5, 2006).
Pertinent to this appeal, the judge instructed the jury: "There is an issue
which pertains to the following offenses: murder and possession of a weapon
for an unlawful purpose. This issue does not pertain to passion
provocation/manslaughter, aggravated manslaughter or reckless manslaughter."
(Emphasis added). Consistent with the model jury charge, the judge informed
the jury that it must consider defendant's mental state "in determining whether
or not the State has proven beyond a reasonable doubt that [defendant] acted
with the requisite state of mind forming any element of the offenses charged in
the indictment, namely, murder and possession of a weapon for an unlawful
purpose."
At trial, defendant neither objected to that charge – nor any of the
substantive charges – read to the jury. On appeal, defendant does not challenge
the mental disease or defect instruction, its application to the murder and
possession of a weapon for an unlawful purpose charges, or its inapplicability
to the aggravated manslaughter and reckless manslaughter charges. Instead,
defendant claims the judge erred because passion/provocation manslaughter,
14
like murder and possession of a weapon for an unlawful purpose, requires
purposeful or knowing conduct.
Because defendant did not raise his objection to the jury instruction before
the trial judge, we again view this contention through the prism of the plain error
standard. R. 2:10-2. Under that standard, "[a]ny 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 also R. 1:7-5; State
v. Morais, 359 N.J. Super. 123, 134 (App. Div. 2003) (A "[d]efendant is required
to challenge instructions at the time of trial.").
Our jurisprudence has long recognized accurate and understandable jury
instructions in criminal cases are essential to a defendant's right to a fair trial.
State v. Concepcion, 111 N.J. 373, 379 (1988). Without such instructions to
guide the jury, "a jury can take a wrong turn in its deliberations." Nelson, 173
N.J. at 446. "So critical is the need for accuracy that erroneous instructions on
a material point are presumed to be reversible error." State v. Martin, 119 N.J.
2, 15 (1990).
As a corollary to those principles, "clear verdict sheet directions" are also
important. Nelson, 173 N.J. at 449. A jury's "efforts to answer questions that
they may have about verbal instructions almost certainly [will] involve an
examination of the verdict sheet directions." Ibid. "If verbal instructions are
15
unclear, or if jurors do not fully comprehend verbal instructions, the typewritten
verdict sheet is likely the primary road map they will use to direct their
deliberative path." Ibid.
"Passion/provocation manslaughter 3 is an intentional homicide committed
under extenuating circumstances that mitigate the murder." State v. Robinson,
136 N.J. 476, 481 (1994). According to the Criminal Code, passion/provocation
manslaughter is "[a] homicide which would otherwise be murder . . . [but] is
committed in the heat of passion resulting from a reasonable provocation."
N.J.S.A. 2C:11-4(b)(2). "Thus, passion/provocation manslaughter is considered
a lesser-included offense of murder: the offense contains all the elements of
murder except that the presence of reasonable provocation, coupled with
defendant's impassioned actions, establish a lesser culpability." Robinson, 136
N.J. at 482; see also N.J.S.A. 2C:1-8(d)(3).
"Passion/provocation manslaughter exists to mitigate the penalties
associated with the offense of murder when an actor intentionally kills another
but does not possess the quality of culpability necessary for a murder
conviction." Robinson, 136 N.J. at 488. The diminished capacity defense goes
3
"Passion/provocation manslaughter has four elements: (1) reasonable and
adequate provocation; (2) no cooling-off time in the period between the
provocation and the slaying; (3) a defendant who actually was impassioned by
the provocation; and (4) a defendant who did not cool off before the slaying."
State v. Mauricio, 117 N.J. 402, 411 (1990).
16
further; it "is a 'failure of proof' defense: evidence of defendant's mental illness
or defect serves to negate the mens rea element of the crime." State v. Reyes,
140 N.J. 344, 354 (1995).
Not surprisingly, defendant has not cited any authority or articulated how
the application of his diminished capacity defense to the passion/provocation
manslaughter charge would have provided a rational basis for the jury to either
acquit him of that offense or provide a basis for a lesser-included offense that
was not provided to the jury. An analysis of the verdict sheet provided to the
jury thus guides our review.
At the outset, we note the verdict sheet closely followed the model verdict
sheet included at the end of the model charge, which the trial judge conformed
in accordance with the evidence adduced at trial. See Model Jury Charges
(Criminal), "Murder, Passion/Provocation and Aggravated/Reckless
Manslaughter (N.J.S.A. 2C:11-3a(1) and (2); 2C:11-4a, b(1) and b(2))" (rev.
June 8, 2015). Defendant did not object to the verdict sheet. 4
4
At the conclusion of the full charge, defense counsel asked the judge why self -
defense was not included on the verdict sheet. The judge explained it was not
his usual practice to "ask a separate question about it. It's a suggestion that the
[jurors] find if it applies. If their answer is not guilty, that's it." Defendant
posed no further objection to the verdict sheet or the self-defense instruction,
which followed the model jury charge. See Model Jury Charges (Criminal),
"Justification - Self Defense in Self Protection (N.J.S.A. 2C:3-4)" (rev. June 13,
2011). Nor does defendant challenge the self-defense instruction on appeal.
17
Under the murder count, the first question on the verdict sheet asked the
jury whether it found defendant: (a) "Not Guilty of Murder"; (b) "Guilty of
Passion/Provocation Manslaughter"; (c) "Guilty of Murder." The verdict sheet
then instructed the jury to proceed to the second question if they found defendant
not guilty of murder. The second and third questions then asked whether
defendant was not guilty or guilty of aggravated manslaughter and reckless
manslaughter, respectively. 5
Importantly, the jury instructions and the verdict sheet properly guided
the jury to consider defendant's passion/provocation defense in connection with
the murder charge. Cf. State v. Galicia, 210 N.J. 364, 369 (2012) (observing
that despite the trial court's accurate instructions, "the verdict sheet improperly
directed the jury not to consider the issue of passion/provocation unless it had
already reached a guilty verdict on the murder charge."). Moreover, the judge
informed the jury, in pertinent part:
If . . . the State has failed to prove beyond a reasonable
doubt that . . . defendant purposely or knowingly caused
death or serious bodily injury resulting in death, you
must find . . . defendant not guilty of murder and
passion provocation/manslaughter and go on to
consider whether . . . defendant should be convicted of
the crimes of aggravated or reckless manslaughter.
5
Under the possession of a weapon for an unlawful purpose count, the verdict
sheet asked whether defendant was not guilty or guilty. As expected, the verdict
sheet did not contain a lesser-included alternative for a passion/provocation
offense under that count. Defendant does not appeal that count.
18
The jury therefore was fully informed it had the option of finding
defendant not guilty of murder if he lacked the capacity to act knowingly and
purposely. In that event, the jury was properly directed to bypass
passion/provocation manslaughter and instead go on to consider the lesser-
included offenses of aggravated6 or reckless manslaughter. By finding
defendant guilty of passion provocation murder, the jury determined he lacked
"the quality of culpability necessary for a murder conviction," Robinson, 136
N.J. at 488, but rejected his diminished capacity defense. Notably, the jury also
found defendant guilty of possession of a weapon for an unlawful purpose,
similarly rejecting the defense as it applied to that charge. We therefore find no
error, let alone plain error, in the judge's instruction as given.
IV.
Lastly, we address defendant's excessive sentencing argument. Citing our
decision in State v. Tindell, 417 N.J. Super. 530, 570-72 (App. Div. 2011),
defendant primarily argues the judge improperly "injected his own personal
opinions about the case" and disregarded the jury's verdict by sentencing
defendant to the "near maximum extended-term sentence." Defendant does not,
6
Because aggravated manslaughter is a first-degree crime, N.J.S.A 2C:11-4 (a)
and (c), had the jury returned a guilty verdict on that lesser-included offense,
defendant's sentencing exposure would have been greater than that imposed on
his passion/provocation manslaughter conviction.
19
however, challenge imposition of the extended term. Nor does he argue the
judge failed to follow the sentencing guidelines or that his findings of the
aggravating factors were not supported by evidence in the record. Guided by
our highly deferential standard of review, State v. Fuentes, 217 N.J. 57, 70
(2014), we are unpersuaded by defendant's contentions.
Once a defendant meets the statutory criteria to qualify as a persistent
offender under N.J.S.A. 2C:44-3, "the range of sentences, available for
imposition, starts at the minimum of the ordinary-term range and ends at the
maximum of the extended-term range." State v. Tillery, 238 N.J. 293, 324
(2019). Because passion/provocation manslaughter is a second-degree crime,
the ordinary range of five to ten years, see N.J.S.A. 2C:43-6(a)(2), was extended
here to five to twenty years, see N.J.S.A. 2C:43-7(a)(3); see also Tillery, 238
N.J. at 324. After the sentencing court has balanced the aggravating and
mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b), it "may impose a term
within the permissible range for the offense." State v. Bieniek, 200 N.J. 601,
608 (2010).
The trial judge found – and ascribed great weight to – aggravating factors
three, the risk that defendant will commit another offense; six, the extent and
seriousness of defendant's prior record; and nine, the need to deter defendant
and others from violating the law, N.J.S.A. 2C:44-1(a)(3), (6), (9); but declined
20
to find aggravating factor one, the homicide involved particular depravity and
cruelty, N.J.S.A. 2C:44-1(a)(1). The judge also found – but afforded slight
weight to – mitigating factors three, defendant acted under a strong provocation;
four, substantial grounds tended to excuse or justify defendant's conduct; and
five, the victim's conduct facilitated or induced the commission of the offense.
N.J.S.A. 2C:44-1(b)(3), (4) and (5).
Defendant takes issue with the judge's comments, citing the first portion
of his reasons for affording slight weight to the mitigating factors:
While the jury may have been persuaded that the
defendant's conduct amounted to passion/provocation
manslaughter, the provocation objectively viewed was
trivial. Even accepting the defendant's version of
events, an argument over shared living arrangements,
stolen sneakers, or an unwelcome and unsavory
houseguest, is not sufficient justification to mitigate the
defendant's use of extreme and bloody violence in
claiming a man's life.
But, defendant fails to note the continuation of the judge's rationale:
Similarly, the defendant's assertions of self-defense
ring hollow in the total circumstances. The defendant
clearly resorted to the use of a weapon in close quarters,
and then sought to cover up his wrongdoing by
disposing of the body and cleaning the crime scene.
These actions greatly diminish the weight of these three
suggested mitigating factors.
The judge also cited the "overwhelming" trial evidence, including
defendant's disposal of Turay's body by "throwing it out of the second-story
21
window," and defendant's extensive prior record. That record consisted of forty
arrests in three states, including seven indictable convictions and eight
disorderly persons offenses in New Jersey; violations of probation; and an
indictment for a weapons offense charge while defendant was in jail awaiting
trial for the present offense. Indeed, prior to sentencing, defendant pled guilty
to unlawful possession of a "shiv" made from "a four-inch sharpened piece of
metal wire" on the day of sentencing.
We reject therefore any comparison between defendant's sentencing
proceeding and the proceeding conducted in Tindell. In that case, the judge
imposed five consecutive maximum sentences, including maximum periods of
parole ineligibility. 417 N.J. Super. at 570. We cited extensively to the judge's
inappropriate comments at sentencing, id. at 568-70, and concluded his
"personal views as to the propriety of the jury's verdict irreparably tainted the
sentence he imposed on defendant." Id. at 572.
By contrast, our review of the transcript here convinces us defendant's
sentence was not the result of similar judicial irritation or obvious abuse of
discretion. The trial judge sentenced defendant to a nineteen-year term of
imprisonment, with an eighty-five percent period of parole ineligibility pursuant
to NERA, and a concurrent prison term of eighteen months on the certain
persons not to have weapons conviction. The judge carefully considered the
22
defendant's record and the trial evidence, and his comments were not out of
bounds.
We conclude the trial judge properly identified and weighed the
applicable aggravating and mitigating factors and sentenced defendant within
the permissible range for an extended-term second-degree offender. Bieniek,
200 N.J. at 608. We perceive no abuse of discretion in the sentence imposed,
which does not shock our judicial conscience. State v. Bolvito, 217 N.J. 221,
228 (2014).
Affirmed.
23