Opinion
DOCKET NO. A-2288-10T2
08-02-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NASIR SALAAM, a/k/a NASIR JAMEEL SALAAM, Defendant-Appellant.
John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief). Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Glyn, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Koblitz and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-02-0310.
John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Patricia Nichols, Assistant Deputy Public Defender, of counsel and on the brief).
Joseph A. Glyn, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Glyn, of counsel and on the brief). PER CURIAM
Defendant Nasir Salaam appeals after a jury convicted him of armed robbery and other related charges and he later pled guilty to felony murder, all in connection with the armed robbery of a gas station. He appeals, arguing that his statement to the police should have been suppressed, the jury charge was improper and confusing, and his sentence was not sufficiently explained. We reject these arguments and affirm.
Atlantic County Indictment No. 08-02-0310 charged defendant with first-degree felony murder of Makhan Singh, N.J.S.A. 2C:11-3(a)(3) (count one); three counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (count two as to Singh, count three as to Sonam Tsering, and count four as to Tanzi Zepa); second-degree conspiracy to commit armed robbery of employees of the AAR Gas Station, N.J.S.A. 2C:15-1 and 2C:5-2 (count five); second-degree aggravated assault of Zepa, N.J.S.A. 2C:12-1(b)(1) (count six); second-degree possession of two .22 caliber revolvers for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); third-degree unlawful possession of the two revolvers, N.J.S.A. 2C:58-4 and 2C:39-5(b) (count eight); third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(1) (count nine); and third-degree conspiracy to distribute heroin, N.J.S.A. 2C:35-5(a)(1) and (b)(3), and 2C:5-2 (count twelve). Co-defendants Basir Biggins, Darrick Hudson, Tyler Hart and Gina McCrosson were also charged in various counts of the fifteen-count indictment.
A jury found defendant guilty of the armed robberies of Tsering and Zepa (counts three and four), a lesser-included assault of Zepa (count six amended), the two weapons offenses (counts seven and eight), hindering prosecution (count nine) and conspiracy to distribute heroin (count twelve). The jury was unable to reach a unanimous verdict on the three other counts in the indictment charging defendant, which related to the robbery and felony murder of Singh (counts one and two) and conspiracy to commit armed robbery (count five). The judge declared a mistrial on these counts.
Before a second trial could commence, defendant moved pro se to suppress his April 20, 2007 statement to police. After conducting a testimonial hearing, the judge denied the motion. Defendant then pled guilty to felony murder (count one). The plea was conditional, permitting appeal of the denial of the motion for a new trial and to suppress the statement. R. 3:9-3(f). The plea agreement encompassed a maximum sentence for the plea and the convictions after trial. Defendant was sentenced to the maximum term permitted by the plea agreement, an aggregate term of forty years with a thirty-year period of parole ineligibility.
The evidence adduced at trial revealed the following facts. On March 9, 2007, defendant, who was seventeen years old at the time, was at Hudson's sister's house. Defendant, Hudson, and Biggins were smoking marijuana. They contacted McCrosson and Hart to pick them up. McCrosson drove her father's black Audi to the house.
When McCrosson and Hart arrived, defendant, Hudson, and Biggins all sat in the back seat of the Audi. Hart offered to sell defendant his .22 caliber revolver, which defendant inspected and agreed to purchase with drugs. Biggins informed the others that he was also carrying a .22 caliber handgun. Defendant and his accomplices decided to rob a gas station to obtain money for drugs. McCrosson parked the car near the AAR Gas Station.
When approaching the gas station, Hudson and Biggins both donned scarfs over their faces, and defendant wore a ski mask. Station attendants Tsering and Zepa were sitting outside. Defendant pointed his gun at them demanding that they "give it up." Meanwhile, Biggins and Hudson ran inside the mini-mart to rob the proprietor, Singh, at gun point. Biggins and Singh began "scuffling" and Biggins pistol-whipped Singh. Five shots were fired from inside the mini-mart. Hearing the gunshots, the attendants ran away.
Defendant fired one shot at the fleeing attendants, striking Zepa in the left lower flank, below his rib cage. Defendant then turned and fired two shots into the gas station. Singh was shot a total of six times and died at the scene.
An eye-witness followed the defendants running from the scene and obtained a license plate number for the black Audi. Police then proceeded to the home of McCrosson's father. Upon arrival, the police stopped McCrosson and Hart after they left the residence.
Police later arrested defendant, a juvenile, at Hudson's house. Defendant spoke to the police twice. On March 10 defendant's mother invoked defendant's right to counsel, terminating the questioning before defendant could incriminate himself.
After defendant retained counsel, his lawyer spoke to a co-defendant's attorney who suggested that the prosecutor would not offer a plea agreement to any defendant who had not given a statement. McCrosson, Hart, Biggins, and Hudson had already given statements. Before defendant was waived to adult court, defense counsel brought him to the Prosecutor's Office to waive his Miranda rights and give an incriminating statement to investigators from that office. Defendant claimed in this statement that Biggins murdered Singh. After giving his statement, the Attorney General's Office assumed responsibility for the prosecution.
See N.J.S.A. 2A:4A-26 (juvenile waiver statute).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At trial, the State introduced defendant's videotaped statement.
Defendant raises the following issues on appeal:
POINT I: THE DEFENDANT'S STATEMENT SHOULD HAVE BEEN EXCLUDED.
POINT II: INADEQUATE JURY INSTRUCTIONS, RIDDLED WITH ERRORS, INCLUDING MODIFICATIONS OF THE MODEL CHARGES AND FAILURE TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below.)
A. BECAUSE THE COURT'S CHARGE ON COUNT TWELVE IMPERMISSIBLY AMENDED THE INDICTMENT BY EXPANDING THE SCOPE OF THE CONSPIRACY FROM ONE CODEFENDANT TO FOUR CODEFENDANTS, THE CONVICTION ON THAT COUNT MUST BE VACATED.
B. BECAUSE THE COURT'S MODIFICATIONS TO THE MODEL CRIMINAL JURY CHARGE OF "INSTRUCTIONS AFTER JURY IS SWORN" OMITTED CRITICAL PORTIONS NECESSARY FOR BOTH EVALUATION OF THE STATE'S CASE AS IT WAS PRESENTED AND LATER FOR DELIBERATIONS, THE CONVICTIONS MUST BE VACATED.
C. BECAUSE THE COURT'S MODIFICATIONS TO THE MODEL CRIMINAL JURY CHARGE ON N.J.R.E. 404(B) EVIDENCE FAILED TO PROPERLY LIMIT THE JURY'S CONSIDERATION OF GINA MCCROSSON'S TESTIMONY, THE CONVICTIONS MUST BE VACATED.
D. THE ROBBERY CONVICTIONS MUST BE VACATED BECAUSE THE COURT'S CONSOLIDATED CHARGE ON THE THREE ROBBERY OFFENSES CONFUSED WHICH SEGMENTS OF THE MODEL CHARGE APPLIED TO WHICH ROBBERY AND WAS COMPOUNDED BY RELIANCE ON THE VERDICT SHEET OVER THE INDICTMENT.
E. BECAUSE THE INADEQUATE JURY INSTRUCTIONS FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE, THE CONVICTIONS MUST BE VACATED.
POINT III: THE MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING JUDGE FAILED TO PERFORM THE APPROPRIATE ANALYSIS OF AGGRAVATING AND MITIGATING FACTORS AND DID NOT GIVE THE REQUIRED STATEMENT OF REASONS FOR THE CONSECUTIVE SENTENCES - WHICH WERE NOT OTHERWISE SUPPORTED BY THE RECORD.
I
In Point I of his brief, defendant argues that the statement he gave to the police on advice of counsel should have been suppressed. We must
consider the factual findings of the trial court, premised upon detailed testimony elicited in a lengthy suppression hearing, in accordance with a deferential standard of review. "'[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Robinson, 200 N.J. 1, 15 (2009) (alteration in original) . . . . Those findings warrant particular deference when they are "'substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a
reviewing court cannot enjoy.'" Ibid. . . . To the extent that the trial court's determination rests upon a legal conclusion, we conduct a de novo, plenary review.
[State v. Rockford, 213 N.J. 424, 440 (2013).]
When a reviewing court is satisfied that the findings of the trial court could reasonably have been reached on the record, "its task is complete and it should not disturb the result, even though it has the feeling it might have reached a different conclusion were it the trial tribunal." State v. Johnson, 42 N.J. 146, 162 (1964). "[A] reviewing court owes no deference to the trial court in deciding matters of law. When a question of law is at stake, the appellate court must apply the law as it understands it." State v. Mann, 203 N.J. 328, 337 (2010) (internal citation omitted).
In determining whether to admit evidence, the trial court is afforded "[c]onsiderable latitude[,]" and its determination "will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998), cert. denied sub nom. Kenney v. New Jersey, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
Defendant argues that admission of the April 20, 2007 incriminating statement in the State's case violated his rights. The interview was conducted upon the advice of defense counsel and with counsel present. Although it was conducted at the Atlantic County Prosecutor's Office, no attorney from that office was present. Defendant did not file a motion to suppress prior to trial. It was not until seven months after the jury's verdict that defendant filed a pro se motion to suppress the statement. Defendant argues that any statement that was made was the result of plea negotiations and should thus be excluded under N.J.R.E. 410, and State v. Brabham, 413 N.J. Super. 196 (App. Div.), certif. denied, 203 N.J. 440 (2010).
Although defendant criticizes his counsel's decision to recommend that he speak to the State, and although the judge held an evidentiary hearing concerning this statement, defendant does not raise ineffective assistance of counsel on direct appeal. See State v. Allah, 170 N.J. 269, 285 (2002) (allowing it to be raised on direct appeal in certain circumstances). Therefore, we do not address the issue. Should defendant raise the issue seeking post-conviction relief, we anticipate another hearing will be necessary to fully explore the issues surrounding defense counsel's decision to have his client give an incriminating statement outside of the protection of plea negotiations and counsel's failure to move to suppress that statement prior to trial.
N.J.R.E. 410, "Inadmissibility of Pleas, Plea Discussions and Related Statements[,]" reads in pertinent part as follows:
evidence . . . of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any . . . criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations.
Based on testimony by the assistant prosecutor, the judge found that, as a matter of policy, the Atlantic County Prosecutor's Office "never negotiated a plea before someone gives a statement." The judge, however, concluded that there was no "give and take" between the State and defendant resembling negotiations. The judge found that the statement was both volunteered and voluntary.
In Brabham, where the defendant waived his right to counsel and gave statements without counsel present, we concluded:
The judge's factual findings compel us to conclude that N.J.R.E. 410 required exclusion of everything defendant said at the May 8 meeting. Accepting the State's proofs, he found: the presence of law enforcement officers at a meeting with defendant did not just happen but occurred because the meeting was orchestrated by defendant; defendant wanted to "run the show" and was "basically orchestrating what [was] going to happen"; he said "what he want[ed] to say"; and "[h]e wanted to orchestrate a deal . . . where everything was combined." Those findings, which are well-supported by the officer's testimony, including the State's explanation for the presence of the assistant prosecutor, do not permit any conclusion other than that defendant believed he was attending the meeting he wanted to have - a meeting to negotiate a global plea agreement resolving multiple burglaries committed in various counties.We excluded the statements under N.J.R.E. 410. Ibid. We also clarified that holding, stating
[Brabham, supra, 413 N.J. Super. at 208 (alterations in original).]
we stress that we have not found a violation of N.J.R.E. 410 because the suspect hoped that cooperation would bring favorable treatment. This decision is based on factual findings of the trial judge that compel the conclusion that defendant thought he was volunteering his statements during a meeting he requested to negotiate a plea bargain.
[Id. at 209 (emphasis added).]
Here, defendant was represented by his attorney when he gave his statement, which he hoped would ultimately lead to a plea agreement. No assistant prosecutor was present and defense counsel had conferred only with one of the co-defendant's attorneys, not the State.
Defendant argues that the Atlantic County Prosecutor's policy of withholding any possibility of plea negotiations unless a statement is given violates the prohibition against self-incrimination articulated in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The State, however, has sole discretion in determining whether to offer a plea agreement. State v. Gruber, 362 N.J. Super. 519, 537 (App. Div.), certif. denied, 178 N.J. 251 (2003).
Defendant's statement was not given as part of a plea negotiation with the State. Defense counsel did not ensure that N.J.R.E. 410 would prevent its use by the State in its case in chief by beginning negotiations with the assistant prosecutor prior to defendant giving a statement. Thus, without considering the issue of ineffective assistance of counsel, which has not been raised at this time by defendant, the judge's decision not to suppress defendant's incriminating statement was not an abuse of discretion.
The judge suggested that the issue was prematurely raised because defendant had not yet been sentenced on the convictions resulting from the jury's verdict nor tried on the remaining felony murder charge.
II
In Point II of his brief, defendant raises purported defects in the jury instructions. Defense counsel did not object to any part of the charge and therefore we review it under the plain error standard. R. 2:10-2. Thus, "we may reverse on the basis of unchallenged error if we find error that was 'clearly capable of producing an unjust result.'" State v. Torres, 183 N.J. 554, 564 (2005) (quoting Rule 2:10-2).
Proper jury instructions are essential to a fair trial. State v. Afanador, 151 N.J. 41, 54 (1997). The court must give the jury "a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." State v. Green, 86 N.J. 281, 287-88 (1981). The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. Hipplewith, 33 N.J. 300, 317 (1960). A defendant is not entitled to have a jury charge in his or her own words. State v. Jordan, 14 7 N.J. 4 09, 422 (1997).
Defendant contends that five defects in the jury instructions necessitate a new trial.
A.
Defendant argues that the judge's charge on conspiracy to distribute heroin impermissibly expanded the scope of the conspiracy from one co-defendant to four co-defendants.
The trial judge instructed on conspiracy to distribute heroin in two parts of the jury instruction. The judge first defined what a conspiracy was in the context of the conspiracy to commit robbery charges. The trial judge later charged the jury regarding the conspiracy to distribute heroin, saying:
Finally, we have come to number [twelve], conspiring to commit the crime of distribution of a controlled dangerous substance. Let me indicate to you that I've already defined conspiracy to you and will not insult you by defining that again. I
went into some length of defining conspiracy. This conspiracy [as] alleged is a conspiracy between or among Basir Bigg[i]ns, [Tyler] Hart, [Darrick] Hudson and/or Gina McCrosson or any combination of them to . . . commit the crime of distributing heroin.
Count twelve of the indictment charged defendant with conspiracy with Biggins only. The following day, at the request of the jury, the judge clarified that the conspiracy "was going from Biggins to Hart, but that [defendant] was part of that alleged conspiracy." In his statement to the police, defendant acknowledged that he allowed Biggins to sell heroin to Hart when defendant did not have heroin to sell. Thus, the reference to Hart in the charge was not "clearly capable of producing an unjust result" and does not require a new trial.
B.
Defendant next argues that the judge's failure to give the full model jury instructions immediately after the jury was sworn rendered the jury unprepared to hear the evidence in the case.
The instructions given by the trial judge at the commencement of the trial included an overview of the trial process. The trial judge also informed the jury what was meant when a lawyer objected, and that the jury was to follow his instructions as to the applicable law. Although the jury was not provided the full model jury charge at the start of the case, the missing instructions were provided at the conclusion of the case. The trial judge made clear that the jury was ultimately responsible for deciding issues of fact. Therefore, the jury was informed of its role and the applicable legal standards that should govern its decision-making.
The judge charged the jury at the end of the trial that the State must prove its case beyond a reasonable doubt and defendant is presumed innocent and bears no burden of proof. Additionally, the judge explained the weight to be given expert testimony and the difference between direct and circumstantial evidence.
C.
Defendant argues that the judge gave an improper instruction limiting the use of prior bad acts evidence. Both when the evidence was admitted and at the end of trial, the judge cautioned the jury regarding McCrosson's statements about defendant's past drug dealing.
The judge instructed the jury at the end of the case:
Now you'll remember during the trial, and I believe it was when Gina McCrosson testified, I gave you what is known as a "limiting instruction" under our evidence Rule 404(b). The State therein introduced evidence that . . . the defendant was allegedly a supplier of drugs to Gina McCrosson. Normally such evidence is not permitted under our Rules of Evidence. Our rules specifically exclude evidence that a defendant may have committed other wrongs or wrongful acts when it is offered only to
show that he has a disposition or tendency to do wrong and therefore must be guilty of the charged offenses. Before you can give any weight to this evidence you must be satisfied that the defendant committed the other wrongful . . . acts. If you are not so satisfied, you may not consider it for any purpose. However, our rules do permit evidence of other crimes, wrongs or acts when the evidence is used for certain specific narrow purposes. And in this case the State raised this issue to motive, . . . as well as intent and plan. Whether this evidence does in fact demonstrate motive, intent or plan as well as identity and relationship of the various individuals is for you to decide. You may decide that this evidence does not demonstrate any of those stated purposes and is not helpful to you at all. In that case, you should disregard the evidence. On the other hand, you may decide that the evidence does demonstrate the stated purposes, and use it for that specific purpose or purposes. However, you may not use this evidence to decide that this defendant Mr. Salaam has a tendency to commit wrongful acts or that he is a bad person; that is, you may not decide that just because he is alleged to have committed other wrongful acts, particularly involving Gina McCrosson, that he must be guilty of the present crimes of March 9th of 2007. I have admitted the evidence only to help you decide the specific question or issues of motive, intent and plan or design. You may not consider it for any other purpose and may not find the defendant guilty now simply because the State has offered evidence that he is said to have committed other wrongful acts in the past.
Defendant argues that the list of other possible uses of the prior bad acts evidence were not sufficiently limited by the judge's instructions. We disagree. The judge clearly communicated to the jury that the evidence of defendant's prior drug dealing "is not admissible to prove the disposition of [defendant] in order to show that [he] acted in conformity therewith." N.J.R.E. 404(b).
D.
Defendant argues that the judge should have provided separate instructions for each of the three robbery counts rather than providing a single charge for the three offenses. Defendant also argues that the language used by the judge improperly decided the issue of attempted robbery, taking the issue away from the jury.
The trial judge provided the following robbery instruction:
And you'll note the first question that you are asked to determine is whether the defendant, in the course of committing a theft did knowingly threaten immediate bodily injury to Mahkan Singh and/or did purposely put Mahkan Singh in fear of immediate bodily injury, robbery, how do you find the defendant?The judge then instructed the jury on the elements of robbery. He next explained that the State is required to prove that defendant was "in the course of committing a theft":
And then if, and only if, you have found the defendant guilty of question one would you answer 1a, and that is, [w]hether the defendant, Nasir Salaam, on or about the 9th day of March 2007, in the course of committing a theft did knowingly threaten immediate bodily injury to Mahkan Singh and/or did purposely put Mahkan Singh in fear of immediate bodily injury while armed with and/or threatening the immediate use of a deadly weapon; that makes the one degree higher, one degree more serious, if you
will, and that's what is known as robbery while armed, how do you find the defendant?
Similarly, you are asked in question number two, about robbery of Sonam Tsering, and you are asked in question 2a, [i]f you find the defendant guilty of that robbery, whether it was a robbery while armed with or threatening the immediate use of a deadly weapon. And then three, is the robbery of Tanzi Zepa, the allegation of that followed by 3a robbery while armed.
[T]he allegations here alleged that the theft was never completed but rather attempted. It was not completed because things went wrong, that is what the State alleges. The defense counters that by its arguments with regard to the actions of Basir Biggins being things totally not in contemplation of this defendant. The theft does not therefore have to be completed, and no money or property need be taken so long as an attempt to commit a theft is said to have occurred.
It is clear from the instruction that the trial judge gave the jury an abbreviated version of the competing accounts proffered by the State and defendant.
Specifically, the trial judge explained
that a person is guilty of attempt if acting purposefully he does anything that under the circumstances as a reasonable person would believe them to be was an act constituting a substantial step in a course of conduct planned to culminate in the commission ofThis language clearly defines a criminal attempt.
the crime. The step taken must be one that is strongly corroborative of the defendant's criminal purpose. The accused must be shown to have had a firmness of criminal purpose in light of the step or steps he had already taken. These preparatory steps must be substantial and not just very remote preparatory acts.
We find nothing improper as to these charges in the context of the facts. It was not necessary for the judge to repeat the definition of robbery three times, once for each victim.
E.
Defendant argues that the instructions failed to explain the law with reference to the facts of the case. He also argues that the jury instructions were favorable to the State, and lacked defense-favorable nuances depriving him of his due process rights and a fair trial. We find no support for this argument. The jury was unable to reach a verdict on the most serious charge of felony murder, indicating that it understood the nature of the defense.
We must "evaluate defendant's claim in light of the totality of the entire charge, not in isolation." State v. Miller, 205 N.J. 109, 127 (2011) (citations and internal quotation marks omitted). Taken as a whole, the jury charge was not misleading, and was not so defective that it "raise[d] a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (alteration in original) (citations and internal quotation marks omitted).
III
In Point III of his brief, defendant argues that the sentence imposed is excessive and not sufficiently supported by the record. We disagree.
The sentence was within the boundaries of the plea agreement and therefore should be presumed reasonable. State v. Pillot, 115 N.J. 558, 566 (1989).
The judge found that aggravating factors three, six, and nine applied to defendant. N.J.S.A. 2C:44-1(a)(3), (6) & (9). The judge found the absence of any mitigating factors. Defendant has eleven juvenile arrests and many adjudications of delinquency. See State v. Pindale, 249 N.J. Super. 266, 288-89 (App. Div. 1991) (holding it was appropriate to consider defendant's prior juvenile record in determining whether his prior criminal history could be considered an aggravating factor). He was also charged with incitement to riot in the jail, N.J.S.A. 2C:33-1(a), while incarcerated on these charges. See State v. Jones, 179 N.J. 377, 407 (2004) (finding that judges may consider arrests in sentencing); see also State v. Green, 62 N.J. 547, 571 (1973). He had pled guilty to felony murder, an extremely serious offense.
These factors include: "[t]he risk that the defendant will commit another offense[,]" "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[,]" and "[t]he need for deterring the defendant and others from violating the law[.]" N.J.S.A. 2C:44-1(a)(3), (6) & (9).
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Defendant was sentenced to thirty years on the felony murder charge with a thirty-year period of parole ineligibility. Defendant also received a consecutive sentence of five years for the unlawful possession of two revolvers and a separate consecutive sentence of five years for the conspiracy to distribute heroin.
Defendant argues that the sentencing court should have found mitigating factors two, four and twelve, which state that defendant "did not contemplate that his conduct would cause or threaten serious harm[,]" N.J.S.A. 2C:44-1(b)(2), "[t]here were substantial grounds tending to excuse or justify . . . defendant's conduct, though failing to establish a defense[,]" N.J.S.A. 2C:44-1(b)(4), and "[t]he willingness of the defendant to cooperate with law enforcement authorities[,]" N.J.S.A. 2C:44-1(b)(12). None of those mitigating factors are supported by the record. See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008) (discussing whether a confession that does not assist law enforcement with solving other crimes or identifying other perpetrators constitutes cooperation).
Defendant also argues that under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 80 L. Ed. 2d 308 (1986), the crimes that took place were all part of one "single event" and were "not crimes with independent objectives." As our Supreme Court stated in Yarbough, "there can be no free crimes in a system for which the punishment shall fit the crime[.]" Id. at 643. The sentencing judge explained:
[C]onsecutive sentencing is appropriate for counts 8 and 12. In a system of justice where there shall be no free crimes and the punishment shall fit the crimes, consecutive sentences are warranted. These are separate offenses dealing with separate criminal wrongdoing: the unlawful possession of a handgun, a crime against good order and safety deserving of a distinct punishment. A CDS offense while occurring on the same date is separate by some time from the felony murder and the robberies. This, too, is a separate wrong deserving of separate punishment.The consecutive sentences were in conformity with the plea agreement and entirely appropriate.
The State concedes that defendant was not awarded 1,314 days of jail credit.
Affirmed. Remanded only for the correction of the judgment of conviction to reflect the time served prior to sentencing.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION