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declining to address ineffective assistance of counsel claim that relied on allegations and evidence outside the trial record
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DOCKET NO. A-5782-11T3
01-28-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ASMAR BEASE a/k/a AZMAR BEASE, ASMAIR ZA, AZ ASMAIR, ZAHBIT AZ, and ASMAR ZABIT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz, Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 09-01-0006. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Tried before a jury on six counts of a seven-count indictment, defendant Asmar Bease was convicted of first-degree attempted murder, N.J.S.A. 2C:5-1, and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); and second-degree possession of a weapon without a carry permit, N.J.S.A. 2C:39-5b (count five).
Defendant was jointly tried with co-defendant Corey Cauthen.
Count six, charging defendant with second-degree possession of a handgun as a convicted felon, N.J.S.A. 2C:39-7b, was dismissed on the State's motion at the conclusion of the trial. A similar charge set forth in count seven against Cauthen was also dismissed. The jury also convicted Cauthen on counts one through five. We subsequently affirmed Cauthen's conviction and fifty-year aggregate sentence in an unpublished opinion. State v. Cauthen, No. A-0591-12 (App. Div. June 9, 2014), certif. denied, ___ N.J. ___ (2014).
At sentencing, the trial judge granted the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3a. The judge merged the convictions for counts two, three, and four into count one and sentenced defendant to sixty years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge sentenced defendant to a five-year concurrent term on count five, with a three-year period of parole ineligibility. Thus, defendant's aggregate sentence was sixty years. The judge required defendant to serve a five-year term of parole supervision following his release from prison and imposed appropriate fines and penalties.
On appeal, defendant has raised the following contentions:
POINT I
THE OUT OF COURT SHOW-UP IDENTIFICATION PROCEDURE EMPLOYED BY THE POLICE WAS VIOLATIVE OF THE ATTORNEY GENERAL GUIDELINES, WAS IMPERMISSIBLY SUGGESTIVE AND SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE.
POINT II
THE ADMISSION OF MR. GEE'S RESPONSE TO THE QUESTION POSED BY POLICE IN THE AMBULANCE ON THE WAY TO THE HOSPITAL AS A DYING DECLARATION WAS ERRONEOUS.
POINT III
THE DENIAL OF THE DEFENSE MOTION FOR MISTRIAL BASED UPON THE JUROR INCIDENT DURING DELIBERATIONS WAS ERROR.
POINT IV
THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF SIXTY (60) YEARS WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED.
Defendant filed a supplemental brief on his own behalf and has raised the following contentions:
POINT [V]
DEFENDANT'[S] SIXTH AMENDMENT RIGHT TO A FAIR TRIAL AND EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED DUE TO A CONFLICT OF INTEREST U.S. CONST. VI AMEND; N.J. CONST. ART. I PAR. 10.
POINT [VI]
THE TRIAL COURT ERRED IN FAILING TO CONDUCT A SUFFICIENT INQUIRY AS TO WHETHER THE JUROR READ [A] PREJUDICIAL NEWSPAPER ARTICLE WHICH DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL U.S. CONST. AMEND VI, XIV; N.J. CONST. 1947 ART. I, PAR 1, 10.
POINT [VII]
THE FAILURE OF THE TRIAL COURT TO CHARGE ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER AS A LESSER[-]INCLUDED OFFENSE OF THE ATTEMPTED MURDER OF ALPHONSO GEE DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW U.S. CONST. VI AMEND; N.J. CONST. ART. 1 PAR 10.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
I.
We derive the following facts from the record. On August 1, 2008, the victim, Alphonso Gee, and his wife, were at home. Gee's wife asked him if she could go out with a female friend for a couple of hours. Gee reminded his wife the couple had plans the following day and she said she would be home by 2:00 a.m. Around 2:30 a.m., Gee realized his wife was still not home and called her on the telephone. She said she was on her way home from New York and would be there in ten or fifteen minutes. When his wife failed to appear, Gee got in his car and went out looking for her between 3:30 and 4:00 a.m.
Gee found the vehicle his wife was driving that night parked at an intersection. He opened the rear driver's side door and saw his wife and defendant Asmar Bease in the backseat. Gee testified that "Asmar had his pants down to his ankles" and his wife was "naked from the waist down." Gee "snatched" his wife out of the vehicle and started to hit her. He then called her mother and brother "just to show them how she was." Gee drove his wife "a block or two away," dropped her off with her brother, who was waiting there, and went to find defendant.
Gee testified he knew defendant from fundraisers Gee held for a youth football team he coached. Gee frequently saw and occasionally spoke to defendant at a specific location when he picked up and dropped off children from his football team there. Because Gee knew where defendant usually could be found, he went to that location to look for him after leaving his wife with her brother.
When Gee arrived at the location, he saw defendant, stopped his vehicle, and got out to approach him. Co-defendant Cauthen then "came out of nowhere[.]" Gee recognized Cauthen as someone who hung out with defendant "basically every[]day." Although Gee had spoken to Cauthen at least once in the past, he did not know his name. He described Cauthen as a "tall dark skinned male with dreadlocks."
As Gee approached the men, he saw them reach in their pockets and pull out guns. Because he was unarmed, Gee got back into his vehicle and tried to "get out of there." Gee saw both men with guns pointed at the left side of his face. When he tried to start his vehicle, the men shot at him, and Gee "slumped over" after being shot several times in the collar bone and neck.
Officer Fajardo was the first police officer to arrive at the scene. He found Gee inside his vehicle, leaning over toward the console and unresponsive. Officer Fajardo was unable to find a pulse and told the next officer to arrive that he thought Gee was dead. Gee then started grunting. The officers called for an ambulance and applied first aid until it arrived.
Officer English rode in the ambulance with Gee and was instructed by a police sergeant to "try and speak with the victim, find out any information related to the case." Officer English advised Gee "that his injuries were life threatening, that what he tells me could be his dying declaration . . . . I asked him if he knew who shot him. [Gee] stated it was Asmar Bease and a tall dark skinned male with dreadlocks." The officer repeated the question and Gee provided the same answer, and added, "'It was because I caught him having sex with my wife.'"
Lt. Reyes arrived at the scene of the shooting at around 6:00 a.m. on August 2, 2008. After reviewing the scene, Lt. Reyes went to the hospital to interview Gee. Upon arriving at the hospital, Lt. Reyes spoke to Gee in the trauma room at the hospital. Gee was paralyzed from the neck down, but was still able to speak. Gee told Lt. Reyes that he caught his wife having sex with Bease, approached Bease to fight him, and Bease, who he knew by name, and a "thin tall black male with long dreads" shot him. Lt. Reyes relayed this information to the other detectives and, because they were familiar with Cauthen from a previous investigation, they knew that Gee was referring to Cauthen as the "thin tall black male with long dreads."
The detectives went back to the scene of the shooting to look for evidence, and then to police headquarters to gather photos of both defendant and Cauthen to show Gee. The detectives returned to the emergency room later that morning and conducted a second interview of Gee. Lt. Reyes showed Gee the photograph of defendant, and Gee confirmed that the photograph was of defendant, that defendant was one of the individuals involved in the shooting, and that he had known him for a while.
Gee stated that he also knew the other individual involved in the shooting because "he always hangs out with [defendant] . . . in that location . . . on one of the porches." Lt. Reyes then showed Gee the photograph of Cauthen, and Gee positively identified him as the second individual involved in the shooting. During his testimony, Gee identified both defendant and Cauthen as the men who shot him.
At trial, defendant called a paramedic who was in the ambulance with Gee the morning of August 2, 2008. The paramedic did not recall hearing any conversation between Officer English and Gee. Defendant and Cauthen did not testify and they did not call any other witnesses.
II.
In Point I, defendant contends the judge erred in denying his motion to suppress Gee's out-of-court identification of him. He argues that the single-photograph identification procedure used by Lt. Reyes was impermissibly suggestive and tainted the identification Gee made. We disagree.
A pretrial identification is admissible at trial unless the identification procedure was impermissibly suggestive, and the objectionable procedure created a "'very substantial likelihood of irreparable misidentification.'" State v. Madison, 109 N.J. 223, 232 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). As the Court noted, "'[r]eliability is the linchpin in determining the admissibility of identification testimony[.]'" Ibid. (quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)).
In State v. Henderson, 208 N.J. 208 (2011), the Court revised the guidelines for evaluating out-of-court identification procedures; however, those guidelines applied only prospectively. Id. at 300-02 ("today's ruling will take effect thirty days from the date this Court approves new model jury charges on eyewitness identification"). The new model jury charge was revised, effective September 9, 2012, after defendant was tried in this matter. Therefore, the Henderson decision does not apply.
If the court determines that the identification procedure was "impermissibly suggestive," then the question is "'whether the impermissibly suggestive procedure was nevertheless reliable' by considering the 'totality of the circumstances' and 'weighing the suggestive nature of the identification against the reliability of the identification.'" State v. Romero, 191 N.J. 59, 76 (2007) (quoting State v. Herrera, 187 N.J. 493, 503-04 (2006)). The circumstances to be considered in this analysis include: (1) the "opportunity of the witness to view the criminal at the time of the crime[;]" (2) "the witness's degree of attention[;]" (3) "the accuracy of his prior description of the criminal[;]" (4) "the level of certainty demonstrated at the time of the confrontation[;]" and (5) "the time between the crime and the confrontation." Madison, supra, 109 N.J. at 239-40. These factors are to be weighed against "the corrupting effect of the suggestive identification itself." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.
Here, the trial judge conducted a pre-trial Wade hearing at which Lt. Reyes testified as to Gee's positive identification of defendant in the trauma room of the hospital. Lt. Reyes testified that he showed Gee a single photo of defendant and Cauthen because "Gee informed me that he knew both of the individuals."
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
In denying defendant's motion to exclude testimony of the identification, the judge noted that neither defendant nor Cauthen were "stranger[s]" to Gee. He made the identification within a "fairly short [period of] time" after he was shot. The judge stated:
The fact that there wasn't greater exploration by the police, certainly not as far as the Court knows at this juncture, certainly strikes the Court as sloppy on the part of the police. It would have been fairly simple it seems to have asked more questions with regard to length of knowledge, time frames and the like, frequency of observation.
But there -- there's enough there to -- to lead to that as being an adequate . . . identification that is not something that would appear to suggest that there's a great likelihood of some irreparable misidentification considering the totality of the circumstances.
. . . .
I find that the State certainly produced enough evidence for the issue of identification to go to the jury. I don't find that the defense has persuaded the Court, or even come close, that there is a very substantial likelihood of irreparable misidentification despite the fact that there was, again, by being a one photo lineup or show-up there is inherent suggestiveness.
We discern no basis for disturbing the judge's reasoned determination. Assuming that the procedure of showing Gee only a single photo of defendant was suggestive, Gee's identification of him was inherently reliable because (1) Gee and defendant were not strangers and Gee knew defendant from frequently seeing him at a specific location; (2) the identification procedure occurred no more than "four or five hours" after the shooting; (3) Gee was paying attention to both defendant and Cauthen as he met them on the street and he had ample opportunity to observe defendant because he was shot at point blank range; (4) Gee consistently identified defendant by name before being shown the photograph; (5) Gee's positive identification was immediate and certain; and (6) Lt. Reyes did not prompt Gee in any way during the procedure. The judge properly and thoroughly charged the jury on the issue of identification, there was no objection to the charge, and the jury was free to reject the procedure as unreliable after it weighed the pros and cons of the methodology employed by Lt. Reyes.
III.
Defendant next argues, in Point II, that the judge erred in permitting Officer English to testify about the "dying declaration" Gee made to him in the ambulance, that he was shot by defendant "and a tall dark skinned male with dreadlocks." We perceive no error.
We review a trial court's evidentiary determinations under an abuse of discretion standard. State v. Buda, 195 N.J. 278, 294 (2008) (citing Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)). An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj, supra, 194 N.J. at 20 (citation omitted). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (citation and internal quotation marks omitted).
"In a criminal proceeding, a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death." N.J.R.E. 804(b)(2). See also State v. Graham, 59 N.J. 366, 370 (1971). As a threshold matter, the court must first determine that the declarant is unavailable as a witness. N.J.R.E. 804(a)(3) provides that unavailability may arise from "a lack of memory of the subject matter of the statement[.]"
Here, Officer English testified he told Gee that "his injuries were life threatening, [and] that what he tells me could be his dying declaration[.]" Gee testified he could not remember speaking to the officer on the way to the hospital. Under these circumstances, the judge found that Gee, who had been shot in the neck, made his statement with the belief that his death was imminent and was "unavailable" to testify concerning this statement because he did not remember making it. Based upon N.J.R.E. 804(b)(2), we perceive no abuse of discretion in this ruling.
Moreover, Gee's statement to Officer English was also admissible under N.J.R.E. 803(a)(3), which provides that "a prior identification of a person made after perceiving that person" is admissible "if made in circumstances precluding unfairness or unreliability." That is clearly the case here. Gee identified defendant as one of the shooters as he was being driven to the hospital with life-threatening injuries. Certainly, the statement was "made in circumstances precluding unfairness or unreliability." Ibid. Therefore, the judge did not err in permitting Officer English to testify about the statement.
IV.
In Points III and VI, defendant contends the trial court erred by denying his motion for a mistrial based upon a "juror incident during deliberations." We disagree.
During the jury's deliberations, Juror 3 was sitting on a bench outside the courtroom. A man identified as a Drug Court participant walked up to Juror 3, sat down, and began reading a newspaper. Juror 3 stated she did not look at the newspaper and tried to "just ignore [the man] completely."
The man then asked her, "'Are you a juror?'" Juror 3 "nodded yes," and the man stated, "'Okay.' He goes, 'Not guilty.'" Juror 3 stated she "just laughed it off as if it was a joke" and "just ignored" the man. He then said, "'You have to let our people go.'" Juror 3 did not reply to him. An officer then opened the door for the jurors to enter the courtroom and Juror 3 went inside. As she did, the man said, "'No, seriously, not guilty.'" The man was smiling "the entire time[.]" Juror 3 stated she did not "feel threatened" at any time.
An officer briefly detained the man after learning he had spoken to one of the jurors. The newspaper the man was carrying was "rolled up at the time" and he was carrying it in his hand. The officer stated the newspaper contained a story about the trial in the "Our Town section[.]"
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When Juror 3 went into the jury room, she told the other jurors what had happened, and they encouraged her to "say something" to the court about it. She then alerted an officer, who brought the matter to the attention of the judge. After discussing the matter with counsel, the judge interviewed Juror 3 in camera. The attorneys also had the opportunity to question her. Juror 3 stated that the incident would not "affect her ability to continue to deliberate in the matter in a fair and impartial manner."
The judge then interviewed each of the other jurors one-by-one. Again, the attorneys had the opportunity to ask questions. None of the jurors felt threatened by what occurred. Each juror stated the incident would not affect their ability to continue to deliberate in a fair and impartial manner.
After the interviews were completed, both defense attorneys moved for a mistrial. The judge denied the motions, finding that the jurors properly "follow[ed] the proper protocol" by reporting the incident, and that "[a]ll of them indicated that they feel that they can continue to deliberate fairly and impartially[.]" The judge also found "[t]here was nothing which remotely indicated" that Juror 3, or any of the other jurors, had seen the newspaper article about the trial.
A defendant is entitled to a jury free from outside influence that will deliberate based only on the evidence presented in court. State v. Williams, 93 N.J. 39, 60 (1983); State v. Loftin, 191 N.J. 172, 187 (2007). When faced with possible juror misconduct, the court must first determine whether the problem has the capacity to prejudice the defendant. State v. Scherzer, 301 N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466 (1997) (citing State v. Bev, 112 N.J. 45, 84-86 (1988)). If so, the court must conduct a voir dire, preferably individually and in camera, to determine whether the misconduct may affect the deliberation process. Ibid.
If the court finds there is a possibility of prejudice, "the inquiry must expand to determine whether any other jurors have been tainted thereby." State v. R.D., 169 N.J. 551, 558 (2001). It should then question each juror to determine the nature of the misconduct and whether the juror is capable of deciding the case impartially based solely on the evidence presented at trial. State v. Scherzer, supra, 301 N.J. Super. at 487. "The trial judge must take a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality." Id. at 487-88.
The decision whether to grant a mistrial is "peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Hogan, 297 N.J. Super. 7, 15 (App. Div.) (quoting State v. Winter, 96 N.J. 640, 647 (1984)), certif. denied, 149 N.J. 142 (1997). Therefore, we will not disturb a trial court's ruling unless there is an abuse of discretion. State v. Harvey, 151 N.J. 116, 205 (1997).
Applying these principles, we conclude that the judge properly addressed the issue. The judge interviewed all of the jurors, who stated the incident would not affect their ability to deliberate in a fair and impartial manner. The judge had the opportunity to observe all of the jurors, and was thus in the best position to determine their credibility. There was also no evidence that any juror saw the newspaper the man carried that day, or the article about the trial. Under these circumstances, we discern no abuse of discretion in the denial of a mistrial based upon the man's comments to Juror 3.
V.
In Point V, defendant argues for the first time on appeal that his Sixth Amendment right to the effective assistance of counsel was violated because his attorney previously represented an individual who was his co-defendant in a completely unrelated criminal matter. We decline to address defendant's contention on this point because it involves "allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Such "[c]ontentions of ineffective assistance of counsel are more effectively addressed through petitions for post-conviction relief, at which point an appropriate record may be developed." State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.) (citing Preciose, supra, 129 N.J. at 460), certif. denied, 197 N.J. 258 (2008).
VI.
In Point VII, defendant contends the judge erred by failing to sua sponte charge the jury on the lesser-included offense of attempted passion provocation manslaughter. Generally, a trial court "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." N.J.S.A. 2C:1-8e. Here, defense counsel did not request a charge of attempted passion provocation manslaughter. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). A trial court should consider the evidence in the light most favorable to the defendant when making this determination. State v. Mauricio, 117 N.J. 402, 412 (1990). Applying this standard, we see no error.
For attempted passion provocation manslaughter to be charged, there must be (1) reasonable and adequate provocation; (2) a lack of time for the defendant to cool off between the provocation and the act; (3) actual provocation of the defendant; and (4) the defendant must not have cooled off before committing the act. State v. Galicia, 210 N.J. 364, 379-380 (2012). A trial court is required to instruct a jury on passion provocation if the evidence supports the first two elements, which are objective. Id. at 380. The jury then decides the last two, subjective, elements. Ibid.
Defendant argues that he was provoked because Gee said he would return to "take care" of defendant, and punched him as he took his wife out of the vehicle. We disagree.
There are insufficient facts in the record to show defendant was reasonably or adequately provoked. An "adequate provocation" is one in which the "'loss of self-control is a reasonable reaction' to the provocation." State v. Docaj, 407 N.J. Super. 352, 366 (App. Div.), certif. denied, 200 N.J. 370 (2009). Generally, "words alone" will not satisfy the adequate provocation requirement. State v. Crisantos, 102 N.J. 265, 273-74 (1986) (holding that an instruction of passion provocation manslaughter was not warranted where the victim used racial slurs and profanity). Thus, Gee's expression of anger toward defendant was insufficient to warrant a passion provocation instruction.
Mutual combat may constitute adequate provocation when (1) the "contest [is] waged on equal terms and no unfair advantage is taken of the [victim];" (2) a defendant formed the intent to cause serious harm "in the heat of the encounter;" and (3) if the fight reaches a level of "actual physical contact" or serious threat "sufficient to arouse the passions" of a reasonable person. Id. at 274-75, 275 n.8. Here, the possibility of mutual combat was not an adequate provocation because defendant was the only one that was armed. Moreover, defendant enlisted Cauthen to assist him in ambushing Gee. Thus the fight was not on equal terms.
Even if there was adequate provocation, which there was not, defendant had ample opportunity to "cool off" between the time Gee found him with his wife, and the time of the ambush. Moreover, Gee was retreating when defendant and Cauthen shot him. Thus, we conclude the facts do not "clearly indicate" the charge of passion provocation manslaughter and therefore, even if such a charge had been requested, there was no rational basis to charge it.
VII.
Finally, in Point IV, defendant argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, ___ N.J. ___, ___ (2014) (slip op. at 19-20) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 20; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
The abuse of discretion standard applies to a judge's decision to impose an extended term. State v. Pierce, 188 N.J. 155, 166 (2006). A judge has discretion to impose an extended term when a defendant meets certain age and criminal history-criteria to be considered a persistent offender. N.J.S.A. 2C:44-3a. Once a judge finds that the persistent offender statute applies, the judge must consider aggravating and mitigating factors, including the need to protect the public, to determine the term of imprisonment. Pierce, supra, 188 N.J. at 169.
Applying Pierce, supra, the judge considered defendant's entire criminal history. As defendant concedes, his criminal record "qualified him for an extended term sentence" with a range of twenty years to life. N.J.S.A. 2C:43-7a(2).
Defendant was thirty-one years old at the time of sentencing. Defendant had fourteen convictions as an adult, including six indictable convictions and eight municipal court convictions. The judge also noted that defendant had a "juvenile record, which was replete with violations of probation."
The judge found aggravating factor two, N.J.S.A. 2C:44-1a(2), because Gee was "particularly vulnerable" since he was unarmed and, as a result of the shooting, "was rendered a paraplegic." The judge next found aggravating factor three, N.J.S.A. 2C:44-1a(3), noting that defendant's only "income came from the sale of narcotics" and, therefore, "[i]t would appear almost inevitable that he would commit another offense . . . upon release."
The judge considered defendant's prior criminal record under N.J.S.A. 2C:44-1a(6), and determined that aggravating factor six applied. Finally, the judge found aggravating nine, N.J.S.A. 2C:44-1a(9), because there was "a public need" to deter "defendant and to discourage others from criminality[.]" After due consideration, the judge found that no mitigating factors applied. Thus, the judge concluded that the aggravating factors "vastly outweigh[ed]" the non-existent mitigating factors.
After a thorough consideration of all the relevant factors, the judge imposed a sixty-year term on the attempted murder charge, and a concurrent five-year term on the gun possession charge. While the judge noted that this sentence was above the mid-range sentence of fifty years, which is what Cauthen received, the judge explained that a lengthier sentence was necessary based on a consideration of all the aggravating factors.
We are satisfied the judge did not abuse his discretion in imposing an extended term; made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record; and applied the correct sentencing guidelines enunciated in the Code. The sentence does not shock our judicial conscience and we perceive no basis for disturbing it. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION