Opinion
DOCKET NO. A-2068-11T4
03-18-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. SKYLER GAINES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the briefs). Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Fasciale and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 10-01-0077.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the briefs).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Paula Jordao, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief). PER CURIAM
Tried before a jury on a twelve-count Morris County Indictment, defendant Skyler Gaines was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count two); fourth-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(3) (count four); third-degree hindering one's own apprehension or prosecution, N.J.S.A. 2C:29-3b(1) (count five); fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count eight); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count eleven). The jury found defendant not guilty of two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (counts seven and nine); and could not agree upon a verdict on the remaining counts.
Defendant was seventeen years old at the time of the offenses charged in the Indictment. Following a hearing, however, the matter was waived to adult court. N.J.S.A. 2A:4A-26.
These counts were: first-degree attempted murder, N.J.S.A. 2C:5-1a(1) and N.J.S.A. 2C:11-3a(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count three); and two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, (counts ten and twelve). The trial judge declared a mistrial concerning these counts and they were later dismissed at the time of sentencing.
The trial judge merged counts four and eight into count two and sentenced defendant to nine years in prison, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, with a three-year period of parole supervision upon release. The judge also sentenced defendant to a consecutive four-year term on count five; a concurrent 365-day term on count six; and a concurrent three-year term on count eleven. Thus, defendant's aggregate sentence was thirteen years. Appropriate fines and penalties were also assessed.
On appeal, defendant has raised the following contentions:
POINT IAfter reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions, together with the sentences imposed on counts two, five, and six. We remand for resentencing on count eleven.
THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANT FAILED TO MAKE A PRIMA FACIE DEMONSTRATION THAT THE PROSECUTOR INTENDED TO EXERCISE A PEREMPTORY CHALLENGE AGAINST THE ONLY EMPANEL[L]ED AFRICAN-AMERICAN JUROR ON THE CONSTITUTIONALLY-IMPERMISSIBLE GROUND OF RACE BECAUSE DEFENDANT COULD NOT ESTABLISH A PATTERN OF RACE-BASED CHALLENGES.
POINT II
THE TRIAL COURT OMITTED A CRUCIAL PORTION OF THE MODEL JURY CHARGE ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WHICH DISTINGUISHED PROTECTIVE PURPOSE FROM SELF-DEFENSE. (Not Raised Below).
POINT III
THE TRIAL COURT IMPROPERLY ALLOWED THE JURY TO PLAY THE VIDEO RECORDING OF DEFENDANT'S INTERROGATION DURING DELIBERATIONS, OFF-THE-RECORD, AND OUTSIDE THE PRESENCE OF THE COURT, COUNSEL, AND DEFENDANT. (Not Raised Below).
POINT IV
THE SENTENCE IMPOSED WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
I.
The State developed the following proofs at trial. On May 2, 2009, Jason Nesta was at a barbeque in Roxbury Township, celebrating the return of his friend, Daniel Candido, from "boot camp." There were between twelve and twenty family members and friends at the gathering, which was held in Nesta's older brother's backyard. The party was not open to the public. Nesta testified that defendant came into the yard and began asking guests for a cigarette. After speaking to defendant, who he did not know, Nesta stated that he "forcibly" escorted defendant out of the yard by "shoving on the small of his back" as he walked him out.
About ten minutes later, defendant returned to the yard "with a knife in his hand waving it in the air and shouting." Nesta testified that "[t]here were at least three other individuals with [defendant], but they did not enter [the] yard." Nesta tried to push defendant out of the yard and instructed another guest to call the police. Nesta then saw two people fighting in the street and "began to walk towards them in an effort to break up the fight." Someone other than defendant punched Nesta twice in the face. Nesta's face was cut and he went inside the house.
Candido saw Nesta escorting defendant out of the yard and he followed him "because [he] was worried about all the people at the barbeque." Candido saw Nesta being hit, but before he could help him, he was "grappled up with" defendant and put him in a headlock. Candido punched defendant in the head "four or five times" while defendant was "[s]winging his left hand to [Candido's] side." Candido stated, "I thought he was just swinging at me and I looked down and I saw a knife and I saw my intestines coming out of my shirt and that's when I realized [defendant] was stabbing me." Candido managed to push defendant off of him and went into the house.
Officer John Sylvester of the Roxbury Township Police Department arrived at the scene. He found Candido lying on a couch inside the home. He stated that Candido had suffered at least three stab wounds and that his "internal organs were eviscerated and hanging out at that point." The officer called for an ambulance and Candido was later transported by a medevac helicopter to the hospital.
Officer Thomas Gaboda also responded to the scene. On the way, he was "flagged down by two males," who told him that the suspects had fled into an apartment building. The officer called for back-up and several other officers set up a perimeter around the building. While two officers began to conduct a door-to-door search, Officer Devin Kellar watched the rear of the building. Officer Kellar observed several items being thrown out of an open window. He retrieved "a stainless blade kitchen knife with dried blood on the blade and [a] brown and tan satchel" containing "clothing and a second kitchen knife." Officer Kellar then saw defendant stick his head out of the window and look around.
The officers determined that the suspects were inside a first-floor apartment. Two females eventually opened the door and the officers saw defendant "running from the back bedroom area pulling off a black t-shirt and [throwing] it on the floor." The officers ordered defendant to get on the ground, but he refused to comply. They then grabbed defendant, forced him to the ground, and handcuffed him. The officers found two other male suspects in the building.
The police took defendant to headquarters, where a butter knife was found in his front pants pocket. After the police gave him Miranda warnings, defendant agreed to be interviewed and his videotaped statement was later played to the jury. Defendant stated that he was drinking alcohol all day in the apartment with five other people. He then walked to the barbeque to try to get a cigarette. After being told to leave, defendant went back to the apartment and told the others to go to the party to "see what's up" and "convince them to give [defendant] a "cigarette[.]" After a few minutes, defendant went to the barbeque with a butcher knife. Defendant told the police that a fight broke out. When defendant asked Candido what was going on, he stated that Candido gave him a "bullshit answer" so he stabbed Candido and then ran back to the apartment. He washed the knife and his hands in the kitchen sink and changed his shirt "in case the cops were to come."
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
A DNA expert testified that there was blood on the blade and handle of the kitchen knife. The blood on the blade matched Candido's DNA, while the blood on the handle matched defendant.
Defense counsel consented to playing defendant's video-recorded interview to the jury and to admit the DVD recording into evidence. Defense counsel referred to the recording in his summation and did not object when the jury thereafter asked to have unfettered access to the DVD during its deliberations.
The jury room did not have the equipment needed to play the DVD. Thus, when the jury asked to view the videotape during its deliberations, the judge cleared the court room and permitted the jury to access and operate the DVD machine in the court room to view the recording outside the presence of the attorneys, the judge, court staff, and the public.
Defendant did not testify at trial. He called one of the guests at the barbeque, Louis Rodriguez, as a witness. Rodriguez stated that defendant came into the yard and was escorted out after he was asked to leave. About fifteen minutes later, defendant kicked open the gate to the yard, waved a knife in the air, and said, "What's good? I'm back mother fuckers." Rodriguez testified that Nesta pushed defendant out of the yard and "five to six" people from the barbeque ran out after them. Rodriguez observed people fighting and saw defendant swinging at Candido with the knife in his hand. Rodriguez stated that he helped pull Candido away from defendant and then helped him walk to the house.
II.
We begin by addressing the jury selection issue. There were three African-Americans in the jury pool. The judge excused two of the jurors for cause. On the third day of jury selection, the remaining African-American juror was seated in the jury box. When the judge questioned her at side-bar, the juror revealed that her mother had been convicted of an unspecified drug offense in Morris County "many years ago" and served a prison sentence. She stated that she was "[n]ot really" close to her mother and that her mother's prosecution would not "affect [her] ability in this case to be fair." The judge later asked the juror if she "believe[d] the criminal justice system is fair and effective[.]" The juror replied that she believed "it's flawed" because she had "heard some cases where people have been actually innocent" but were found guilty.
Defendant is African-American.
Following the completion of the questioning, the State indicated that it would use a peremptory challenge to excuse the remaining African-American juror. Defense counsel raised an objection pursuant to State v. Gilmore, 103 N.J. 508, 522 (1986). The judge entertained the objection, noting that the juror was the only remaining African-American in the panel and that this was the first peremptory challenge made by the State. One of the two prosecutors assigned to the case explained that the State intended to exercise the challenge because the juror's "mother was incarcerated. She had served a [S]tate prison sentence although she said she was not close to her mother, she does indicate that she does talk to her mother." The second prosecutor stated that the juror's "mom wasn't just convicted of an offense, she was convicted of an offense in Morris County . . . which is significant to the State." The prosecutor also noted that when the juror was asked
whether the criminal justice system is fair and effective, she hesitated and when [the judge] asked her to name the flaw she said that there [are] flaws. To name the flaws she paused and said, "I cannot think of any."
You know you hear of cases where innocent people are convicted. So there were additional factors.
The judge rejected the defense objection, finding that the State had established a legitimate, non-discriminatory reason for excusing the juror. The judge stated:
There have been no challenges here for any African-Americans and frankly except for the two mentioned there hasn't been any opportunity. It's difficult for the Court on the record to make a finding that any challenge of this [juror] would be solely based upon any of her responses. Assuming for the sake of this discussion you find that a prima facie showing has been made because as the Court noted in Osorio ], that burden is slight.
The next step is that the party to exercise the [peremptory] challenge must prove that its race[-] or ethnicity[-] neutral basis barring the [peremptory] challenge. The basis provided by the State is that she -- her mother was convicted of a
crime many years ago. She has limited contact with her mother. She says she was raised by her grandmother. It's also argued that when asked whether she felt that the criminal justice system is fair that her response raised a reaction at least in the State's mind when she said that innocent people have been convicted. And that's what she considered to be a flaw in the system.
I'm not saying that thereafter she couldn't be neutral or that she couldn't be fair and impartial. She said she could. I don't think if given the reasons annunciated by the State that would support the type of challenge based upon race alone that both Gilmore and [Osorio] refer to.
I believe that it is a neutral basis for the challenge given her answers and her explanations. It is difficult indeed when making this decision because . . . there are no African-Americans[;] that in and of itself is not a basis for a finding in this case under [Osorio] and Gilmore that the State is exercising its [peremptory] challenge in order to preclude certain races, in this case, African-Americans.
In most cases involving [Osorio] and Gilmore there have been a pattern of challenges which could lead one to believe that there is the intent to exclude a certain race [and] this record doesn't have that because there have not been any other challenges.
For those reasons, I find that following the three-step process, the Court finds by a preponderance of the evidence, it has not been proven that the contested [peremptory] challenges exercised are unconstitutionally impermiss[ible].
State v. Osorio, 199 N.J. 486 (2009).
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On appeal, defendant argues that the judge erred in permitting the State to exercise a peremptory challenge against this juror. We disagree. We owe "substantial deference" to the trial judge's decision on this issue. State v. Clark, 324 N.J. Super. 558, 568-69 (App. Div. 1999), certif. denied, 163 N.J. 10 (2000). Based on our review of the record, we discern no abuse of the judge's discretion in denying the defense application.
It is well established that a prosecutor may not deprive a defendant of the right to trial by an impartial jury by excluding jurors based on race. State v. Andrews, 216 N.J. 271, 279-80 (2013). As the Court held in Osorio, a claim of bias in jury selection is evaluated using a three-step process:
Step one requires that, as a threshold matter, the party contesting the exercise of a peremptory challenge must make a prima facie showing that the peremptory challenge was exercised on the basis of race or ethnicity. That burden is slight, as the challenger need only tender sufficient proofs to raise an inference of discrimination. If that burden is met, step two is triggered, and the burden then shifts to the party exercising the peremptory challenge to prove a race- or ethnicity-neutral basis supporting the peremptory challenge. In gauging whether the party exercising the peremptory challenge has acted constitutionally, the trial court must ascertain whether that party has presented a reasoned, neutral basis for the challenge or if the explanations tendered are pretext. Once that analysis is completed, the third step is triggered, requiring that the trial court weigh the proofs adduced in step oneWe recently held that, where that has been no opportunity to establish a discriminatory pattern of peremptory challenges due to there being a very limited number of jurors of a particular race or ethnicity in the jury pool, an inference of discrimination may nevertheless still arise under the first prong of the Osorio test if the challenged juror is the same race as the defendant. State v. Pruitt, 430 N.J. Super. 261, 272 (App. Div. 2013).
against those presented in step two and determine whether, by a preponderance of the evidence, the party contesting the exercise of a peremptory challenge has proven that the contested peremptory challenge was exercised on unconstitutionally impermissible grounds of presumed group bias.
[Osorio, supra, 199 N.J. at 492-93.]
Assuming for the sake of argument that the defense satisfied the first prong based on the challenged juror's race and her assertion that she could be impartial, the State clearly satisfied the second prong of the Osorio test. The juror's mother had been convicted of a criminal offense in Morris County, the site of the present trial. In addition, the juror told the court that she believed that the criminal justice system was "flawed" and that sometimes innocent individuals are convicted. These were solid, race-neutral and non-pretextual reasons for the State's exercise of a peremptory challenge for the juror. Under these circumstances, we defer to the judge's conclusion that the State's action was not motivated by racial bias.
Turning to Point II, defendant argues for the first time on appeal that the trial judge "failed to properly differentiate protective purpose from the self-defense justification in its charge for possession of a weapon for an unlawful purpose." This argument lacks merit.
A defendant has the obligation "to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35. When a defendant fails to object to the judge's instruction, we review the claimed error under the plain error standard. R. 2:10-2.
It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Ibid. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008).
However, an error in the charge that is clearly harmless and could not have affected the jury's deliberations will not warrant reversal. State v. Docaj, 407 N.J. Super. 352, 369-70 (App. Div.), certif. denied, 200 N.J. 370 (2009). Even a charge that is not perfectly clear may be deemed adequate if it "had no capacity to lead the jurors astray." State v. Miller, 205 N.J. 109, 127 (2011); see also State v. Josephs, 174 N.J. 44, 100 (2002) (omission of specific language about defendant's knowledge did not render instructions insufficient because the "court's instructions, considered as a whole, achieved the same result"); State v. Belliard, 415 N.J. Super. 51, 74 (App. Div. 2010) (charge as a whole deemed adequate despite court's failure to define attempt), certif. denied, 2 05 N.J. 81 (2011).
Here, defense counsel argued that defendant did not possess the knives for an unlawful purpose. He also raised a self-defense claim regarding the attempted murder and aggravated assault charges. Reading from the model jury charge, the judge instructed the jury as follows regarding the counts of the Indictment charging him with third-degree possession of a weapon for an unlawful purpose:
It is the defendant's contention, of course, that he did not have an unlawful purpose any time that it is found that he did possess any of these weapons.
Now, I've already told you that the State must prove beyond a reasonable doubt that the defendant had an unlawful purpose at the time in question. If you find that the defendant had a lawful purpose to use [the knives] to protect himself or another against the use of unlawful force or to protect his property or if you have a reasonable doubt as to the defendant's purpose, then the State has failed to carry its burden of proof of this element beyond a reasonable doubt.
I instruct you that for purpose of this offense if defendant honestly believed that he needed to use [any of the knives] to protect himself, the law does not require that this belief be reasonable.
In other words, if the defendant had an honest though unreasonable belief that he needed to use the weapon to protect himself, this negates the purposeful mental state required for this offense.
[(Emphasis added).]
In a case where, as here, the defendant also raises a self-defense claim concerning other charges, the model charge provides that the jury should next be told:
Later on in the charge, I will instruct you on the concept of self-defense/defense of another as it applies to the offense(s) of _. The concept of self-defense/defense of another as it applies to those offenses is different than that of protective purpose that applies to this count of the indictment. When applied to that/those offense(s), self-defense requires defendant to have both an honest AND a reasonable belief in the need to use force.The trial judge did not read this portion of the instruction to the jury. Defendant argues that the omission of this charge constitutes plain error. We disagree.
Although the judge did not advise the jury at the time he instructed them on the weapons offenses that "protective purpose" and "self-defense" were distinct concepts, the instructions, taken as a whole, achieved that result. As set forth above, the judge told the jury that, for it to find that defendant had a protective purpose to possess the knives, it did not have to find that defendant's belief "that he needed to use the weapon to protect himself" was reasonable. When the judge later instructed the jury on the concept of self-defense, he advised them as follows:
By law, dealing with self protection reads, "The use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion."
In other words, self defense is the right of a person to defend against any unlawful force. Self defense is also the right of a person to defend against seriously threatened unlawful force that is actually pending or reasonably anticipated. When a person is in [imminent] danger of bodily harm, a person has the right to use force or even deadly force when that force is necessary to prevent the use against him [of unlawful] force.
. . . .
Self defense exonerates a person who uses force in the reasonable belief that such action was necessary . . . even though his belief was proven mistaken. Accordingly, the law requires only a reasonable, not necessarily a correct judgment.
[(Emphasis added).]
Thus, the judge made clear that self-defense was a separate concept from protective purpose and that the jury, in order to find that self-defense applied, had to find that defendant had a "reasonable belief" that it was necessary for him to use force. Because the charge, taken as a whole, adequately distinguished the elements of each of defendant's claims, the error in omitting a small portion of the model charge for possession of a weapon for an unlawful purpose did not constitute plain error. Any error was also harmless because defendant's conviction for possession of a weapon for an unlawful purpose under count eight was merged with his conviction for aggravated assault under count two.
Defendant contends for the first time in Point III that permitting the jury to have unfettered access to his video-recorded interview during deliberations was plain error warranting reversal. We disagree. As was the case with the argument raised by defendant in Point II, we review his contention about the video-recorded interview under the plain error standard of review. R. 2:10-2.
Our Supreme Court recently revisited the issue of whether a jury may have unfettered access to audio- or video-recorded statements that were played at trial and admitted into evidence. See State v. A.R., 213 N.J. 542, 549 (2013). In A.R., the defendant was charged with aggravated sexual assault of his nine-year-old great-niece. Id. at 546. The victim and defendant gave video-recorded statements. Id. at 548-49. In his statement, defendant admitted that during a "moment of weakness," he placed his mouth on the victim's vagina, grabbed "her booty," and asked for forgiveness. Id. at 549. With defense counsel's consent, the jury was permitted unfettered access to defendant's and the victim's video-recorded statements during deliberations. Id. at 550.
The Court expressly disapproved of the unfettered access to audio- or video-recorded statements admitted in evidence in the jury room during deliberations. Id. at 558. Nevertheless, the Court found no structural error in permitting such access because "[t]he process, although flawed, simply did not implicate either defendant's right to confront evidence or witnesses against him or to assure a fair trial process." Id. at 558-59. The Court concluded that
although we do not approve of the unfettered access to the video-recorded statements of the victim and defendant in the jury room during deliberations, we conclude that the procedure utilized cannot be said to undermine the trial process. The process, although flawed, simply did not implicate either defendant's right to confront evidence or witnesses against him or to assure a fair trial process.
. . . .
Stated differently, [defendant's] presence did not have a reasonably substantial relation to his opportunity to defend the charges against him. When the case reached the stage that the jury commenced its deliberations, defendant's ability to influence the course of events was complete and his fate was in the hands of the jury and in its assessment of the quality of the evidence submitted in support of and in defense of the charged offenses.
[Id. at 558-59.]
Addressing procedural error, the Court reiterated the trial court's need to follow the procedures espoused in State v. Burr, 195 N.J. 119 (2008), and State v. Michaels, 264 N.J. Super. 579 (App. Div. 1993), aff'd on other grounds, 136 N.J. 299 (1994) when confronted with a jury's request to replay during deliberations an audio- or video-recording received in evidence at trial. Id. at 560. The Court warned that if the trial court determines a replay is proper, "under no circumstances shall the jury have unfettered access to audio- or video-recorded statements in the jury room during deliberations. Replay in open court permits the required record of the replay to be made." Id. at 560-61 (citing State v. Wilson, 165 N.J. 657, 662 (2000)).
Although the Court determined the procedures the trial judge utilized did not comport with Burr and Michaels, it nevertheless determined that "[t]he trial error was plainly invited and [did] not warrant reversal of defendant's conviction." Id. at 561. The Court found that defense counsel: considered defendant's video-recorded statement as an element of her defense strategy; actively encouraged the jury in summation to thoroughly review the statement during deliberations; urged the trial judge to submit the video recordings to the jury; and consented to the jury's unfettered access to the recordings in the jury room and found a rationale to support such access. Id. at 561-63.
In applying the invited-error doctrine, the Court acknowledged the strength of the State's evidence in support of defendant's conviction and the nature of the error. Id. at 563. The Court concluded that the evidence of defendant's guilt and the nature of the error invited by defendant required reinstatement of his conviction. Id. at 563-64.
We find there was no structural error here. The video-recorded statement was admitted in evidence without objection and initially viewed by the jury in the presence of defendant. Thus, the jury's subsequent access to it did not implicate either defendant's right to confront evidence or witnesses against him or to assure a fair trial process.
The procedures utilized in this case did not comport with Burr and Michaels. Nevertheless, we determine that the trial error was plainly invited and does not warrant reversal of defendant's convictions. Defense counsel considered defendant's video-recorded statement as a crucial element of the defense strategy that defendant was intoxicated at the time of the interview and gave a number of inconsistent statements, such that the jury should not give his statement any weight in its deliberations. Defense counsel referred to defendant's video-recorded statement in summation, emphasizing defendant's inconsistent statements, defendant's claim that he was intoxicated, and defendant's assertion that he was provoked by Candido. Defense counsel also consented to the jury's unfettered access to the video recording in the court room during its deliberations. We therefore conclude that defendant invited the error, and the overwhelming evidence of his guilt, as well as the nature of the invited error, require us to affirm his convictions.
Finally, defendant argues in Point IV that his sentence was excessive. We disagree with regard to the sentences imposed on counts two, five, and six. 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, 500-01 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
We are satisfied the judge 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. We are also satisfied that the judge performed the appropriate analysis under State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Because there is neither clear error on the judge's part in his adherence to the sentencing guidelines, nor a sentence imposed which, under the circumstances, shocks the conscience, there is no reason for appellate intervention concerning the sentences imposed on counts two, five, and six. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989).
However, we are constrained to remand for resentencing on count eleven, fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. The trial judge imposed a three-year term for this count. However, N.J.S.A. 2C:43-6a(4) provides that the maximum term for a fourth-degree offense is eighteen months. Therefore, this count must be remanded for resentencing.
The convictions for all of the counts and the sentences imposed on counts two, five, and six are affirmed. We remand for resentencing on count eleven. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION