Opinion
DOCKET NO. A-2959-11T3
04-28-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMES P. KUCINSKI, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fisher, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-07-1188. Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
This matter returns after remand for consideration of the remaining two arguments raised by defendant on appeal that we did not reach in our decision. State v. Kucinski, 227 N.J. 603 (2017). The operative facts leading to defendant's conviction are set forth in the Court's opinion and we need not repeat them here. Id. at 607-08.
Defendant was indicted for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), for the bludgeoning death of his brother. After a jury trial, defendant was found guilty of the lesser-included offense of passion/provocation manslaughter, N.J.S.A. 2C:11-4(b)(2), as well as third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). The court merged the convictions and imposed a nine-year term of imprisonment 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, as well as appropriate fines and fees.
On appeal, defendant raised the following arguments:
POINT II
THE COURT ERRED IN ADMITTING EVIDENCE THAT DEFENDANT WAS AN ALCOHOLIC FOR THE PURPOSES OF LEGITIMATING THE DECEDENT'S ANIMOSITY TOWARD DEFENDANT AND EXPLAINING WHY THE
DECEDENT ASSAULTED DEFENDANT ONE MONTH BEFORE THE INCIDENT.
POINT III
A NINE-YEAR SENTENCE FOR A FIFTY-THREE YEAR OLD DEFENDANT WITH NO PRIOR INDICTABLE CONVICTIONS, AND WHO WAS FOUND TO HAVE ACTED UNDER PROVOCATION, IS MANIFESTLY EXCESSIVE.
The argument raised in Point I of defendant's brief was the subject of the holding by the Court.
We first address defendant's argument, raised initially on appeal, that testimonial references to his "drinking" and prior instances of his intoxication were erroneously admitted.
Notably, the issue of defendant's "drinking" history was made prominent by the defense. The jury heard about defendant's pattern of alcohol use from defense witnesses (his daughter and a friend) and from his counsel's cross-examination of State witnesses. There was also testimony from a nurse, without objection, who observed defendant's level of intoxication during his encounter with his brother in his mother's hospital room. Given the record before us, we conclude defendant's argument on this score is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant provided a pre-trial notice that he might avail himself of the defense of intoxication. --------
We next address defendant's claim of error regarding his sentence. We begin by noting that sentencing determinations are deferentially reviewed. State v. Lawless, 214 N.J. 594, 606 (2013). We affirm a sentence where "the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent[,] credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citations omitted). We are expected to "exercise a vigorous and close review for abuses of discretion by the trial courts." State v. Jarbath, 114 N.J. 394, 401 (1989) (citing State v. Roth, 95 N.J. 334, 364 (1984)). Absent some abuse of discretion, even if we would have reached a different result, we will affirm.
In imposing sentence, the court cited aggravating factors one, three, and nine, N.J.S.A. 2C:44-1(a)(1), (3) and (9), and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). With regard to aggravating factor one, the judge found that the crime was committed in an especially heinous, cruel, or depraved manner. The judge pointed to defendant's conduct in brutally beating his brother to death by crushing his skull with a brick. With regard to aggravating factor three, the judge found that due to defendant's history of alcohol abuse, his prior simple assault conviction, and the circumstances of this offense, there was a risk that defendant would reoffend. With regard to aggravating factor nine, the judge found there was a need for deterrence. With regard to mitigating factor seven, the judge found that for a substantial period of time, defendant had lived a law-abiding life. After balancing the factors, the judge decided the aggravating outweighed the mitigating warranting the sentence.
In sum, the judge sentenced within the appropriate range, relied upon ample competent, credible evidence in reaching his findings, and the sentence does not shock our 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