Opinion
DOCKET NO. A-3829-10T2
06-27-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDARIEL MELENDEZ, a/k/a RIDDICK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Lihotz and Maven.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-11-00966.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
Defendant Edariel Melendez appeals from a judgment of conviction, following a second jury trial for two gang-related murders, as well as for related offenses, and the sentences imposed as result of those convictions. Defendant's chief complaints on appeal challenge the trial court's evidentiary rulings in two areas, and the imposition of a ninety-eight-year custodial sentence, which defendant characterizes as excessive. Defendant filed a pro se supplemental brief in which he raises as reversible error the trial court's failure to provide proper limiting instructions related to his gang membership and the admission, for the jury's consideration, of photographs depicting tattoos on defendant, which reflect defendant's gang affiliation. We reject the arguments advanced, and affirm.
Defendant's first trial ended in a mistrial because of juror misconduct. The second trial commenced shortly thereafter. According to the evidence presented during that trial, defendant is a member of the Crips gang. On the evening of November 11, 2007, in Elizabeth, another Crip, an individual known by the name of "Twin," was gunned down. Two days later, the first victims in the underlying matter, two thirteen-year-old boys, were struck by bullets, not aimed at them, as they headed home on their bicycles. One youth, E.H., was fatally injured, while the other youth, who was shot three times in the arm, calf, and thigh, survived. A third youth was uninjured. Two days after this shooting, a second shooting occurred. The victim, C.P., responded to his doorbell at 5:30 a.m. When he opened the door, he was fatally wounded. At the time, it was believed the shots were intended for an individual known as "Ka-Ka," the son of the tenant who leased the second-floor apartment from C.P.
Law enforcement authorities launched an investigation during which a witness identified defendant as the black male seen running to the passenger side of an idling green Mercedes shortly after the first shooting. Other witnesses reported to police that approximately one month later, at a Christmas Eve party, they saw defendant attempting to clean a weapon with ammonia. They asked defendant about it and he told them the gun had been used to kill the first victim, but that the shooting was a mistake; the shooter mistook the victim as the person who fatally wounded the Crips member the previous month.
Further investigation revealed that the vehicle purportedly involved was a Chrysler, which had a body similar to a Mercedes. That vehicle was seen within days of the shootings and was being operated by Foster with defendant as an occupant.
On February 6, 2008, in an unrelated matter, an Elizabeth homeowner, while evicting his tenant, K.G., discovered a box containing guns in K.G.'s apartment. The landlord contacted police, who determined, following an examination by a firearms expert, one of the guns was linked to the fatal shootings of E.H. and C.P. Police interviewed K.G., who stated he purchased the guns the previous month from a tall black male with dreadlocks, whom he did not know, but whom he recognized from the neighborhood. Police presented K.G. with a photo array from which he selected B.L.'s photograph as the person from whom he had purchased the guns. Police arrested defendant, B.L., and M.F., identified, during the investigation, as the driver of the vehicle from which defendant was seen alighting two days following the last shooting.
The grand jury returned a thirty-five-count indictment against defendant, B.L., and M.F. The indictment charged defendant with two counts of conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1(b)(1), (2), and (4), and N.J.S.A. 2C:5-2 (counts one and twenty); two counts of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (counts two and twenty-one); three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts three, six, and twenty-two); three counts of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (counts four, seven, and twenty-three); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts five, eight, and twenty-four); two counts of second-degree possession of a weapon (firearm) for unlawful purpose, N.J.S.A. 2C:39-4(a) (counts nine and twenty-five); three counts of third- degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5(b) (counts ten, twenty-six, and thirty-three); third-degree hindering apprehension, N.J.S.A. 2C:29-3(a)(3) (count thirty-four); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count thirty-five). B.L. was charged in counts eleven through nineteen, twenty-seven through thirty-two, and thirty-seven through thirty-nine. M.F. was charged in counts forty and forty-one. Each defendant was tried separately.
While awaiting trial, B.L. wrote letters to two individuals, E.S. and J.G., asking each to give the letters to K.G. The letters instructed K.G. to recant his statement about the gun transaction. In addition, the letter to J.G. asked him to convince other witnesses to recant statements they had given to police. These letters were admitted into evidence over defendant's objection. The court also admitted, over defendant's objection, evidence of his gang affiliation and photos of tattoo marks on his body, depicting his gang affiliation.
The jury convicted defendant of all counts. At sentencing, the court imposed two consecutive forty-year terms of imprisonment with an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by five years of parole supervision, for his first- degree murder convictions. Defendant also received two consecutive seven-year sentences on his second-degree aggravated assault convictions, concurrent with the four-year sentences he received on his weapons convictions. In addition, the court imposed a four-year consecutive sentence for the hindering conviction. Defendant's aggregate period of parole ineligibility was 79.9 years. The present appeal followed.
On appeal, defendant raises the following points:
POINT I
THE TRIAL JUDGE ERRED IN ADMITTING EVIDENCE OF DEFENDANT'S ALLEGED GANG MEMBERSHIP AS SUCH EVIDENCE WAS IRRELEVANT AND UNDULY PREJUDICIAL[.] U.S. CONST. AMENDS. VI, XIV; N.J. CONST[.] ART. I, [¶] 10.
POINT II
THE TRIAL JUDGE ERRED IN ADMITTING INTO EVIDENCE LETTERS WRITTEN BY THE CO-DEFENDANT. THE ADMISSION OF THESE LETTERS [WAS] HEARSAY AND [THEY] WERE ADMITTED IN VIOLATION OF N.J.R.E. 803[(B)(5)]. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, [¶] 10.
POINT III
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In his pro se supplemental brief, defendant raises the following additional points:
POINT I
THE COURT'S FAILURE TO PROVIDE A PROPER LIMITTED [SIC] INSTRUCTION TO THE JURY
CONCERNING THE EVIDENCE OF GANG MEMBERSHIP DENIED THE DEFENDANT A FAIR TRIAL UNDER BOTH THE U.S. CONST. AMENDMENTS VI & XIV; AND N.J. CONST. ART. I, [¶] 10 (NOT RAISED BELOW).
POINT II
THE COURT ERRED IN ALLOWING PICTURES OF THE DEFENDANT'S TATTOOS INTO EVIDENCE AND DEPRIVED THE DEFENDANT A FAIR TRIAL UNDER BOTH THE U.S. CONST. AMENDMENTS VI & XIV; AND N.J. CONST. ART. I, [¶] 10 (RAISED BELOW).
I.
Defendant contends the trial court erred in admitting evidence of his gang membership as well as photographs depicting tattoos on his body which displayed gang affiliation. He contends the court's admission of this evidence violated his right to a fair trial as guaranteed by the New Jersey and United States Constitutions.
The admission or exclusion of evidence at trial is committed to the sound discretion of the trial judge. State v. Torres, 183 N.J. 554, 567 (2005). Therefore, in our review of a trial judge's evidentiary rulings, we accord great deference to those rulings, which will be set aside on appeal only upon a showing that the judge has "palpably abused" his discretion. State v. Carter, 91 N.J. 86, 106 (1982). Stated differently, a trial judge's evidentiary determinations will only be disturbed on appeal where there has been a "clear error of judgment." State v. Marrero, 148 N.J. 469, 483 (1997).
Admitting evidence of defendant's gang membership is guided by N.J.R.E. 404(b), addressing "[o]ther crimes, wrongs, or acts." Admission of such evidence is not permitted to prove that a defendant had a particular disposition and that a defendant acted in conformance with that disposition. Rather, such evidence is admissible for some other purpose, for example, as proof of motive. Ibid.; see also United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465, 467, 83 L. Ed. 2d 450, 455 (1984 ) (holding that a defendant may not be convicted "merely for belonging to an organization that advocates illegal activity"). Moreover, evidence of a defendant's gang membership "carries [with it] a strong taint of criminality." State v. Goodman, 415 N.J. Super. 210, 227 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). Consequently, prior to its admission, the trial judge must apply the four-part test articulated in State v. Cofield, 127 N.J. 328 (1992). As applied here, the Cofield test requires that evidence of a defendant's gang membership be: (1) relevant to a material issue; (2) similar in kind and reasonably close in time to the offense charged; (3) clear and convincing; and (4) its probative value must not be outweighed by the apparent prejudice to a defendant in admitting such evidence. Id. at 338.
The State's theory of the case was that the crimes were committed in retaliation for the killing of another Crips member. This theory was based upon testimony presented at trial from a number of witnesses. S.F. and B.G. testified that at a Christmas Eve party the month following the shootings, defendant told them that E.H.'s shooting had been a mistake, as the person who shot him mistakenly believed he was shooting at "Ka-Ka," Twin's rumored killer. Defendant also told them he fired the shot which fatally wounded C.P. He explained to the two women that "it was all [a] gang-related attempt to shoot Ka-Ka." S.L., Ka-Ka's mother and C.P.'s second-floor tenant, testified that on the morning of the shooting, Ka-Ka was at home, asleep in his bedroom.
The trial judge, Joseph P. Perfilio, prior to admitting this evidence, engaged in a Cofield analysis and concluded the evidence of defendant's gang membership was relevant and its admission outweighed any prejudice to defendant resulting from its admission. We agree.
Evidence is deemed relevant if it tends "to prove or disprove a fact of consequence to the determination of the action." N.J.R.E. 401. In relevance determinations, the analysis focuses on the "logical connection between the proffered evidence and a fact in issue." Furst v. Moomjy, Inc., 182 N.J. 1, 15 (2004). Here, there was a logical connection between defendant's gang membership, the earlier killing of a fellow gang member and the subsequent shootings of E.H. and C.P. Defendant's statements at the Christmas Eve party that the shootings were gang-related was consistent with the evidence presented that E.H. was mistaken for a member of the rival gang because the shirt he was wearing at the time he was fatally wounded was red, and that Ka-Ka was a member of the rival Bloods gang, whose members were believed to have been responsible for Twin's death. Further, these statements were made close in time to the shootings. Finally, the evidence of defendant's gang affiliation and the linkage between that affiliation and the victims' deaths was strong, supporting Judge Perfilio's ultimate conclusion that its probative value was outweighed by any prejudice to defendant by its admission.
Repeated steps were taken to assure the proper use of this evidence. Further, prior to being empaneled, Judge Perfilio alerted prospective jurors that evidence of defendant's and other witnesses' gang membership would be presented during trial. He explained, in detail, the limited purpose for which this evidence would be considered. The judge also questioned each juror as to whether hearing such evidence would affect their ability to be fair and impartial:
[Y]ou may hear testimony that the defendant or other witnesses and persons mentioned in the course of the trial were members of various street gangs, namely the Bloods and the Crips. Membership in a street gang is not in itself illegal. Will the fact that such street gangs may be involved in this case impair your ability to be fair and impartial to the defendant or the Prosecution in this case?
Prior to concluding the jury voir dire, Judge Perfilio remarked:
[T]here is a very limited purpose for me allowing [] the Prosecution to put in issues about membership in a street gang, and the limited purpose relates to motive and nothing else. And then it would be up to the jury to decide, number one, whether the person or persons were involved in a street gang and then, number two, whether they - the State has proved motive and nothing else.
In other words, you couldn't use evidence of being in a street gang in any other way. In other words, you couldn't use it to either assume that somebody had a predisposition to commit a crime because they were in a street gang. It's limited, and the only reason I'm allowing it is it's limited to that purpose. The State wants to use that to prove motive. So with that being said, do you believe you would be unable to be fair and impartial with that limitation involved?
Two jurors were excused after they indicated they could not be fair and impartial under the circumstances. Defense counsel used a peremptory challenge to remove another juror who "had some questions about street gangs," but ultimately indicated he could remain fair and impartial. The judge then re-instructed the jury that evidence of street gang membership could only be used for the narrow purpose of proving motive.
During the final jury charge, the court reiterated its instruction regarding the limited purpose for which the jury could consider evidence of defendant's gang membership:
Now in the beginning of this case in the voir dire of the jury I went over gang membership and how that was to be used. The State has introduced evidence that the defendant was a member of a street gang[,] the Crips[,] and at the time of the charges alleged against him in the indictment.
[Normally,] such evidence is not permitted under our rules of evidence. Our rules specifically exclude evidence that a defendant was a member of any group or organization when it is offered only to show that he has a disposition or a tendency to do wrong and therefore must be guilty of the charges.
Before you can give any weight to this evidence, you must be satisfied that the defendant belonged to the street gang[,] the Crips. If you are not so satisfied, you may not consider it for any purpose.
However, our rules do permit evidence of gang or group membership or organization membership when the evidence is used for certain specific, narrow purposes. In this case[,] the State has presented evidence of the gang membership, defendant's gang membership to prove the defendant's motive
for the commission of the crimes alleged in the indictment.
Specifically[,] the State alleges that the crimes alleged in the indictment were committed in retaliation for the murder of a member of the defendant's gang, the Crips, by a rival gang, the Bloods, the intended targets of the crimes.
Whether this evidence does in fact demonstrate the defendant's motive for the commission of the crimes in the indictment is for you to decide. You may decide that the evidence does not demonstrate defendant's motive and is not helpful - helpful to you at all. In that case you must disregard the evidence.
On the other hand, you may decide that the evidence does demonstrate defendant's motive and use it for that specific purpose alone.
As is evident from the record, the trial court held the appropriate N.J.R.E. 104 hearing, after which he engaged in a careful analysis of the Cofield factors before reaching the decision to permit the gang-affiliation testimony, albeit to a limited extent. It is also clear the shootings that resulted in the two homicides in this case were not independent of or unrelated to gang activity in which defendant was fully involved. In fact, according to what defendant told the two women at the Christmas Eve party, S.F. and B.G., E.H. was shot, not because he was mistaken for Ka-Ka in particular, but because he was wearing a red shirt and thought to be a Blood.
We reject defendant's contention that the court's final instructions to the jury were incomplete because Judge Perfilio failed to reiterate, verbatim, his earlier instruction to jurors that the jury could not consider the evidence "to either assume that somebody had a predisposition to commit a crime because they were in a street gang." The purpose for which this evidence could not be considered was reiterated to the jury, albeit not in the exact phraseology, which defendant urges should have been used. The court's final instruction to the jury clearly conveyed to the jury that evidence of defendant's gang affiliation could not be considered "only to show that he has a disposition or a tendency to do wrong and therefore must be guilty of the charges." In short, the gang-affiliation testimony was directly probative of defendant's motive. As such, Judge Perfilio did not abuse his discretion in admitting this evidence.
Defendant also submits the trial court erred in allowing the State to introduce pictures of his gang-related tattoos. He argues the pictures were irrelevant, as they did not "prove or disprove any fact of consequence to the determination of the action." He further urges the tattoos were cumulative and prejudicial, given that defendant admitted to the investigating detectives he was a Crip and the State called many witnesses during the trial who testified to his affiliation with the Crips. Defendant claims the trial court's rationale for admitting the pictures of the tattoos highlights the prejudicial nature of the evidence. In permitting the pictures to be shown to the jury, the trial court reasoned that pursuant to N.J.R.E. 501(3), tattoos and other body markings are not considered testimonial. He further commented:
It also indicates in my view, at least, a person who gets tattoos on their body of these, you know, these indications of Crip membership shows how much or how intensely he is a Crip, I think.Defendant contends the judge's reasoning implied that the tattoos reflected the depth of defendant's allegiance to the gang, which in turn suggested he would be willing to commit murder for the gang.
. . . .
I just don't see it as unduly prejudicial. I think he's admitting he's a Crip, according to the testimony of the other officers. So I think for the purposes of this hearing that that is relevant and . . . not unduly prejudicial.
The objectionable pictures depicted one tattoo on defendant's back, which read "Hoodsta," and another on his arm stated "Riddicc," which was a name used by defendant. The State presented expert testimony related to gang practices and gang terminology. The expert explained that it was a common practice among Crips members to replace the letters "CK" with "CC" when writing a word or a name, because "CK stands for "Crip Killer."
We agree, as the trial court reasoned, the evidence of defendant's tattoos was probative of the depth of defendant's affiliation with the Crips gang, which corroborated other evidence of defendant's gang affiliation presented by the witnesses who testified. Although defendant claims evidence of his gang membership was not in dispute, he did not stipulate this fact before the jury. The State bore the burden of proof in establishing defendant's culpability for the crimes charged. The tattoos could be viewed as direct evidence of defendant's gang affiliation. Therefore, the evidence was not cumulative nor unduly prejudicial.
Finally, defendant contends that by permitting the introduction of the tattoo photographs, the court facilitated the following remarks from the prosecutor:
[T]here's photographs of his tattoos, and I mean, a lot of people have tattoos, but a tattoo is a commitment, even in this day and age. A tattoo says something.
If you're going to put hood stuff, you're going to put I'm a Crip on your shoulder, it's a commitment. If you're going to spell your name with two Cs on the end instead of as a Crip Killer with CK, it says something. It's a commitment. It says something about you.
Since defense counsel did not object to this statement, we review the claimed prosecutorial misconduct under the plain error standard, namely, whether the statement had the "clear capacity to bring about an unjust result and which substantially prejudiced . . . defendant's fundamental right to have the jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 576-76 (1999); see also R. 2:10-2.
Prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries. State v. Harris, 141 N.J. 525, 559 (1995). We afford prosecutors considerable leeway in closing arguments so long as their comments are reasonably related to the scope of the evidence presented. Ibid. Nevertheless, the primary duty of a prosecutor is not to obtain convictions but to see that justice is done. State v. Ramseur, 106 N.J. 123, 320 (1987). "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." State v. Farrell, 61 N.J. 99, 105 (1972) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)).
The prosecutor's remark, "it says something about you" may imply that defendant's commitment to the Crips gang, as evidenced by the tattoos, meant he was capable of murder. The jury, however, was repeatedly charged that membership in a street gang was "not in itself illegal." Nor was the statement repeated throughout the prosecutor's summation. Consequently, when measured under the plain error standard, the comment was not so egregious as to have denied defendant a fair trial. State v. DiFrisco, 137 N.J. 434, 476 (1994).
II.
Defendant argues the trial court erred in admitting into evidence letters written by co-defendant B.L. instructing potential witnesses to recant their statements to the police, because the letters constitute inadmissible hearsay. Specifically, defendant urges both letters were composed and sent by B.L. and nothing in the letters suggests defendant participated in writing them or adopted their contents. In response, the State contends the letters were properly admitted as evidence of the furtherance of the conspiracy in that co-conspirator B.L. was attempting to influence witness testimony.
N.J.R.E. 803(b)(5) permits an exception to the hearsay rule when "a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." Such statement is admissible against any other member of the conspiracy. State v. Phelps, 96 N.J. 500, 508 (1984). The rationale for the co-conspirator exception is the belief that "[p]articipation in a conspiracy confers upon co-conspirators the authority to act in one another's behalf to achieve the goals of the unlawful scheme." State v. Harris, 298 N.J. Super. 478 (App. Div.), certif. denied, 151 N.J. 74 (1997).
Although statements made after the conspiratorial objective is complete are generally not admissible under the co-conspirator exception, a conspiracy may continue beyond the commission of the objective if "[s]tatements about past events are considered to be in furtherance of a conspiracy 'where the statements serve some current purpose, such as to promote cohesiveness, provide reassurance to a co-conspirator, or prompt one not a member of the conspiracy to respond in a way that furthers the goal of the conspiracy.'" State v. Soto, 340 N.J. Super. 47, 63 (App. Div.), certif. denied, 170 N.J. 209 (2001) (quoting State v. Taccetta, 301 N.J. Super. 227, 253 (App. Div.), certif. denied, 152 N.J. 187 (1997)). To introduce a statement under the co-conspirator exception to the hearsay rule, the State must meet the following conditions:
(1) the statement must have been made in furtherance of the conspiracy;
(2) the statement must have been made during the course of the conspiracy; and
(3) there must be evidence independent of the hearsay, of the existence of the
conspiracy and defendant's relationship to it.
[State v. Savage, 172 N.J. 374, 402 (2002) (citing Phelps, supra, 96 N.J. at 509-10.]
The State bears the burden of proving by a "fair preponderance of the evidence" that these prerequisites to admissibility have been met. Phelps, supra, 96 N.J. at 517. In admitting the letters over defendant's objection, the trial court, relying upon Savage, supra, 172 N.J. at 374, State v. Cherry, 289 N.J. Super. 503 (App. Div. 1995), and State v. Taccetta, supra, 301 N.J. Super. at 227, stated:
So with regard to this case and - - the question is what is the underlying independent evidence that would support proof of the conspiracy exclusive of these letters, of the letters being offered? First of all, I will state that the most recent letter by [B.L.] to his girlfriend where he says, "I just talked to Riddicc. He said all of the girls is taking back their statements so that is good feel me. Got a good chance of coming home with that." That is evidence of the conspiracy.
Additionally, the testimony that has so far been produced indicates that two people were involved in each of the shootings, two men, that the testimony was that the defendant and [B.L.] used the alleged getaway car where there was testimony by a number of young women at the party, statement that the defendant came to the party with a gun to clean it and hide it because it has a body on it. Used [sic] by the defendant continually at the party of the term "we" as to what happened . . . at each of the shootings. And then the
coconspirator [B.L.] coming to the party to retrieve the gun that the defendant. . . according to the testimony, brought to the party to hide and to clean. Each of these items, especially all of them put together, is independent proof of a conspiracy between [B.L.] and [defendant].
The conspiracy with regard to the statements in this case was furthered in the first letter where [B.L.] is telling KeKe [K.G.] he has to change his statement about who he bought the gun from. That is a statement of a coconspirator with regard to the weapon that was used in the shooting.
The second letter, the first paragraph talks about "Me and Riddicc should be good with people taking back their statements. We need KeKe to do the same." I'm satisfied that is admissible for - - as part of the statement of the coconspirator.
Defendant argues the State failed to provide evidence that defendant and B.L. were in a continuing conspiracy after their arrest such as being in close physical proximity within the jail or having other kinds of access to each other. Defendant also argues that B.L. was acting entirely on his own to protect himself, and the fact that defendant would have benefited from the success of B.L.'s scheme did not implicate him in a conspiracy. However, by trying to convince potential witnesses to lie on the stand, Lee's statements did "serve some current purpose" to "prompt one not a member of the conspiracy to respond in a way that furthers the goal of the conspiracy." Soto, supra, 340 N.J. Super. at 63. Notably, at trial, K.G. denied he purchased the guns from B.L. and stated he could not remember who sold the guns to him. He also denied selecting B.L.'s photograph from the photo array. This evidence not only benefited B.L., but also benefited defendant, who witnesses testified was observed cleaning a gun, which defendant told the witnesses had been used in the shooting of E.H. the previous month. In short, the requirements for admission of the letters, set forth in Savage, supra, 172 N.J. at 395, were met and the court did not abuse its discretion in admitting the letters for the jury's consideration.
III.
Defendant argues that the aggregate ninety-eight-year custodial sentence with a 79.9-year period of parole ineligibility is excessive. We disagree.
"In sentencing, trial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). Where the court engages in the appropriate balancing of aggravating and mitigating factors before imposing sentence and the court's findings relative to those factors are supported by credible evidence in the record, the sentence imposed will be upheld unless it is so clearly unreasonable as "to shock the judicial conscience." Id. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Furthermore, in crafting an appropriate sentence, the focus must remain on the offense, not the offender. Roth, supra, 95 N.J. at 367. "[T]he sentence imposed must reflect the Legislature's intention to focus on the degree of the crime itself as opposed to other factors personal to the defendant." State v. Hodge, 95 N.J. 369, 377 (1984).
In determining the appropriate sentence, the court must decide whether there is a preponderance of aggravating or mitigating factors. State v. Abdullah, 184 N.J. 497, 506-07 (2005). When determining parole ineligibility, by contrast, the court must be "clearly convinced that the aggravating factors substantially outweigh the mitigating factors." Id. at 511. The different standard reflects the fact that "[p]eriods of parole ineligibility are the exception and not the rule. They are not to be treated as routine or commonplace." State v. Martelli, 201 N.J. Super. 378, 382 (App. Div. 1985); see also State v. Yarbough, 195 N.J. Super. 135, 142-43 n.3 (App. Div. 1984) ("Since the judge did not make any findings in support of those terms, we may infer that he regarded that parole ineligibility terms can be attached to presumptive terms as a matter of course. Such a view is clearly erroneous."), modified on other grounds and remanded, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
"[W]here mitigating factors are amply based in the record before the sentencing judge, they must be found. . . . [T]hey may be accorded such weight as the judge determines is appropriate." Dalziel, supra, 182 N.J. at 504-05; Roth, supra, 95 N.J. at 365. A sentence should not "be based upon a quantitative analysis" of the factors because they "are not interchangeable on a one-to-one basis." Roth, supra, 95 N.J. Super. at 368. "The proper weight to be given to each is a function of its gravity in relation to the severity of the offense." Ibid.
Upon review, "[t]he test is not whether . . . [this] court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Roach, 146 N.J. 208, 236, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (citations and internal quotation marks omitted).
Here, Judge Perfilio found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), stating "there is a risk of [reoffending] because . . . defendant had one prior indictable[], two prior juvenile offenses, . . . there is . . . a criminal record and . . . there's . . . a need to deter this type of behavior from defendant and from everybody else in like position." He found no mitigating factors. After weighing the aggravating and mitigating factors, the judge concluded the aggravating factors "clearly, convincingly, and substantially" outweighed the nonexistent mitigating factors.
Defendant argues that his criminal record as an adult is negligible. However, according to his pre-sentence report, defendant's prior conviction/adjudications include drug and weapons offenses. Also, at the time of sentencing, defendant was awaiting sentencing on two other drug convictions. Furthermore, defendant violated his probation both as an adult and a juvenile, suggesting the likelihood of reoffending. Defendant further argues his sentence is widely disparate from that of his co-defendant B.L., especially given that he was only the accomplice, not the actual shooter.
To avoid excessive disparity in sentencing multiple defendants, "[t]he trial court must determine whether a co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria." State v. Roach, 167 N.J. 565, 569 (2001). Those are not the circumstances here as between defendant and B.L. primarily because B.L.'s twenty-three-year aggregate sentence resulted from a negotiated plea agreement. The agreement spared the State the expense of a trial and the victims and their families the ordeal of yet another trial.
Defendant additionally argues that the imposition of six consecutive sentences is excessive and does not meet the guidelines set forth in Yarbough, supra, 100 N.J. at 627. Factors to be considered by the trial court in determining whether to sentence a defendant to consecutive or concurrent sentences include whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
[Id. at 644]
The trial court concluded consecutive terms were appropriate because defendant was not allowed "free crimes" where there were "two different people who were murdered and [on] different days" as well as two other people, Q.A. and I.D., who were also injured. The court also found "the crimes involved separate acts of violence. They were committed at different times, in different places, rather than being committed so closely in time to be a single act and crimes that involve multiple victims." Defendant argues that "all of the actions of [sic] which [he] was convicted arose from the same incident, namely the killing of his friend."
The trial judge was not obligated to consider the purported sole motive for the crime in determining the appropriate sentence, rather he was charged with focusing upon the number of times crimes were committed and when. State v. Carey, 168 N.J. 413, 422-23 (2001). Considered under this standard, the sentence imposed does not shock the judicial conscience.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION