State of New Jersey v. R.A.M.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1444-23

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

September 29, 2025

Plaintiff-Respondent, APPELLATE DIVISION

v.

R.A.M.,1

Defendant-Appellant.

_______________________

Argued September 9, 2025 – Decided September 29, 2025

Before Judges Gilson, Perez Friscia, and Vinci.

On appeal from the Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No. 22-

06-0989.

Colin Sheehan, Assistant Deputy Public Defender,

argued the cause for appellant (Jennifer N. Sellitti,

Public Defender, attorney; Colin Sheehan, of counsel

and on the brief).

Monica do Outeiro, Assistant Prosecutor, argued the

cause for respondent (Raymond S. Santiago,

Monmouth County Prosecutor, attorney; Monica de

Outeiro, of counsel and on the brief).

1

We use initials and pseudonyms to protect the privacy of the victim. See R.

1:38-3(c)(12).

The opinion of the court was delivered by

PEREZ FRISCIA, J.A.D.

After a jury trial, defendant R.A.M. appeals from his second-degree

aggravated assault conviction under N.J.S.A. 2C:12-1(b)(13) and resulting six-

year prison sentence. Defendant contends reversal of his conviction is

warranted because the prosecutor committed misconduct during summation.

He also challenges the trial court's imposed sentence, arguing the court:

erroneously applied aggravating factor fifteen, N.J.S.A. 2C:44-1(a)(15);

impermissibly considered dismissed charges in applying aggravating factors;

and failed to explain the weight assigned to each aggravating factor.

Defendant's aggravating factor fifteen argument raises a question of first

impression. We are asked to consider whether the court engaged in

impermissible double counting in finding factor fifteen applied.

For the reasons that follow, we affirm defendant's conviction because the

prosecutor's summation did not amount to plain error depriving defendant of a

fair trial. We hold that the court's application of aggravating factor fifteen did

not constitute impermissible double counting because, although defendant's

underlying offense also required a finding that he acted against a domestic

violence victim, the court separately determined, pursuant to N.J.S.A. 2C:44 -

1(a)(15), that the State established defendant had committed a prior act of

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domestic violence. Further, we conclude the court did not improperly consider

defendant's dismissed charges and sufficiently provided its reasons for the

sentencing factors.

I.

We derive the following facts from the evidence presented at the four-

day jury trial resulting in defendant's aggravated assault conviction for

strangulation of a victim of domestic violence. D.P., defendant's former

girlfriend, testified that she dated defendant between October 2020 and August

2021. In 2021, defendant was fifty-nine years old, and D.P. was sixty-five

years old.

On the morning of August 15, while defendant was at D.P.'s Asbury

Park residence, he was acting "very jealous." He suspected D.P. was cheating

on him and demanded to know her whereabouts the day prior. D.P. denied

being unfaithful and explained she went to lunch with her sons. Defendant

accused D.P. of lying. After D.P. provided the lunch receipts defendant

requested, he "calmed down." Later the same morning, they traveled to an

urgent care facility near defendant's Wall Township residence and registered

for COVID-19 appointments. Thereafter, they purchased breakfast and drove

to defendant's home.

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After arriving at defendant's home at around 9:00 a.m., defendant

confronted D.P., stating, "[Y]ou think you[ are] in control, you[ a]re not in

control," and "I[ a]m going to show you what control is." She watched

defendant throw a metal bar on the floor, "parallel to where the [front] door

would open." As D.P. attempted to move the bar to leave, defendant pushed

her onto a loveseat, "put his palm over [her] nose[,] and clasped [her] chin

shut" with his index finger and thumb, preventing her from breathing. D.P.

began screaming once defendant removed his hand. Defendant again then

pushed her back onto the loveseat, smothered her, and stopped her from

breathing. He yelled "at [her] to stop screaming." D.P. remembered that once

he stopped, she again attempted to leave and heard defendant's footsteps

behind her as she reached the door.

She recalled regaining consciousness while lying on the floor and going

to sit down. Defendant then threatened D.P., took her phone, and threw her

purse against the wall. Because they received a call to return for the test

appointments, defendant returned her phone, and they went to the urgent care

facility. D.P. informed defendant she was leaving the urgent care facility and

used her phone to order a "priority" car. After arriving home, she and her son

went to the hardware store for new house locks. She later took photographs of

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her injuries, including her "fat lip" and a "tooth mark" indent in her mouth.

Defendant called D.P. multiple times.

The next day, D.P. reported the incident to the Asbury Park Police

Department and met with Officer Andrew Slinger. Slinger testified that D.P.

provided photographs, receipts, text messages, defendant's phone call history,

and a formal written statement. Later the same day, defendant was criminally

charged and arrested. On June 21, 2022, a Monmouth County grand jury

indicted defendant for: second-degree aggravated assault (smothering),

N.J.S.A. 2C:12-1(b)(13); and third-degree terroristic threats, N.J.S.A. 2C:12-

3(b).

At trial, the State, in addition to calling D.P., also presented the

testimony from Slinger, and Antoinette Geran, a forensic nurse examiner.

Defendant's witnesses included Dr. Anoop Kotwal, an emergency room

physician, and Dr. Edward Gosselin, an emergency medicine and asphyxiation

expert.

Geran testified to receiving specialized strangulation and smothering

training. She had completed "five or six" similar forensic examinations before

examining D.P. and had completed a total of fourteen examinations before the

trial. During D.P.'s physical examination at Jersey Shore University Medical

Center (medical center), Geran noted D.P. exhibited symptoms of: a headache,

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"ringing" ears, dizziness, confusion, sleeplessness, and loss of appetite. Geran

photographed D.P. and observed she had a "laceration on the right lower lip

inferior to the cut on the outside and small abrasions to the bottom inner lip

fold," as well as "a cut to the left side of her nose, a pinpoint cut on her left

cheek[,] and an abrasion with swelling to the right lower lip." In "around half"

of Geran's previously completed forensic examinations, she had found "visible

injury." She testified that "usually if there [wa]s a report of smothering, there

could be injuries to the mouth." Geran also found "vascular congestion to both

of [D.P.'s] eyes" and a "purple bruise" on D.P.'s right forearm. Geran noted

D.P. was taking anti-depressant and blood-thinner medications at the time of

her examination.

Dr. Gosselin testified that he practiced emergency medicine for almost

thirty-four years, was trained to handle "ligature . . . issues," "airway

obstruction, [and] airway asphyxiation," ran an expert consulting business for

seven years, and examined "several" victims of smothering throughout his

career. Dr. Gosselin disagreed with Geran's opinion regarding D.P.'s injuries

and believed Geran's photographs showed no "evidence of attempted

asphyxiation," abrasions, or scratches on D.P. Within "a reasonable degree of

medical certainty," he opined D.P.'s allegations were not "consistent with the

evidence presented." Dr. Gosselin concluded D.P.'s injuries were a possible

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side effect of her anti-depressant and blood-thinner medications. During

defense counsel's direct examination, Dr. Gosselin acknowledged defendant

was paying him $495 per hour for his work on this matter.

Dr. Kotwal testified that he examined D.P. at the medical center

immediately prior to Geran. D.P. had gone to the medical center for an

evaluation based on a referral from the Monmouth County Prosecutor's Office.

Dr. Kotwal reported D.P. had no injury complaints, and the examination

showed nothing "unusual" or "worrisome." He explained that he would

ordinarily defer to Geran's examination findings regarding "minor injuries,

scrapes, bruises, bumps, [and] lumps."

During summation, the prosecutor addressed Dr. Gosselin's testimony

and commented that:

[Dr. Gosselin] disregarded or disagreed with the

forensic nurse's evaluation . . . .

. . . Why would [Dr. Gosselin] disagree with

that? Because he[ is] paid to, right? He[ is] here for a

reason. He was hired to author a report for the benefit

of . . . defendant. When we[ a]re talking about

credibility and bias, it[ is] a pretty strong one.

[(emphasis added).]

Defendant did not object to the statement.

On October 13, the jury found defendant guilty of second-degree

aggravated assault for smothering D.P., a victim of domestic violence, but

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acquitted him of terroristic threats. On December 22, the court sentenced

defendant. The State requested the court sentence defendant to an eight-year

prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

The State argued the court should find aggravating factors: three, N.J.S.A.

2C:44-1(a)(3) (risk of reoffending); six, N.J.S.A. 2C:44-1(a)(6) (defendant's

prior criminal record and the seriousness of the offense); nine, N.J.S.A. 2C:44 -

1(a)(9) (need to deter); twelve, N.J.S.A. 2C:44-1(a)(12) (defendant knew or

should have known that a victim was sixty years or older); and fifteen,

N.J.S.A. 2C:44-1(a)(15) (the offense involved an act of domestic violence and

defendant committed at least one act of domestic violence on more than one

occasion).

Defendant had a history of engaging in domestic violence. Prior to

defendant's August 2021 assault, he had committed separate acts of domestic

violence against multiple prior romantic partners, and they had active final

restraining orders (FRO) against him.

Defendant asked the court to find mitigating factors: six, N.J.S.A.

2C:44-1(b)(6) (defendant will compensate the victim or will participate in a

program of community service); seven, N.J.S.A. 2C:44-1(b)(7) (defendant's

lack of criminal history); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's conduct

was the result of circumstances unlikely to recur); nine, N.J.S.A. 2C:44-1(b)(9)

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(defendant's character and attitude indicate he is unlikely to commit another

offense); ten, N.J.S.A. 2C:44-1(b)(10) (defendant is particularly likely to

respond affirmatively to probationary treatment); and eleven, N.J.S.A. 2C:44 -

1(b)(11) (defendant's imprisonment would entail excessive hardship to himself

or his dependent).

The court imposed a six-year prison term, subject to an eighty-five

percent period of parole ineligibility under NERA. After the court recounted

defendant's "substantial criminal history" and "history of domestic violence,"

including a number of charges that had been dismissed, it addressed the

applicable aggravating and mitigating factors pursuant to N.J.S.A. 2C:43 -2(e).

The court found aggravating factors three, six, nine, twelve, and fifteen.

Regarding aggravating factor three, the court noted defendant's "alarming"

criminal history, including four "disturbing[]" FROs and "two violations of

those [FROs]." It determined defendant's history showed his "propensity to

disregard societal laws and commit acts of violence." The court also found

aggravating factors: six because defendant had an extensive criminal record;

nine because "there[ wa]s a very great need to deter . . . defendant as well as

the general population from engaging in this type of behavior"; twelve because

it was "unequivocal" defendant knew D.P. "was in her [sixties]"; and fifteen

because "the case involved an act of domestic violence," and "defendant

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committed at least one act of domestic violence on more than one occasion," as

evidenced by his four "FROs with two violations." The court found no

mitigating factors and in balancing the factors, determined the aggravating

factors "substantially outweigh[ed] the non-existent mitigating factors."

On appeal, defendant argues the following points:

POINT I

THE PROSECUTOR COMMITTED REVERSIBLE

MISCONDUCT IN SUMMATION BY

DENIGRATING THE CREDIBILITY OF THE

DEFENSE'S KEY EXPERT WITNESS IN THE

EYES OF THE JURY WITHOUT ANY SUPPORT IN

THE RECORD.

POINT II

R.[A.]M. IS ENTITLED TO RESENTENCING

BECAUSE THE TRIAL COURT ERRONEOUSLY

DOUBLE-COUNTED AN ELEMENT OF THE

OFFENSE AND CONSIDERED DISMISSED

CHARGES IN FINDING AND WEIGHING

AGGRAVATING FACTORS.

II.

A. Prosecutor's Summation

Defendant contends reversal is warranted because the prosecutor

improperly commented on Dr. Gosselin's credibility during summation.

Defendant specifically argues the prosecutor's statements regarding Dr.

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Gosselin's compensation constituted "prosecutorial misconduct" and amounted

to "plain error." After reviewing the record, we disagree.

Generally, a party's "failure to 'object or otherwise preserve an issue for

appeal at the trial court level' limits appellate review to a plain error inquiry."

State v. G.E.P., 243 N.J. 362, 389 (2020) (quoting State v. Santamaria, 236

N.J. 390, 404 (2019)). Plain errors are those "clearly capable of producing an

unjust result." R. 2:10-2. Demonstrating plain error "is a 'high bar,' . . .

requiring reversal only where the possibility of an injustice is 'real' and

'sufficient to raise a reasonable doubt as to whether the error led the jury to a

result it otherwise might not have reached.'" State v. Alessi, 240 N.J. 501, 527

(2020) (first quoting Santamaria, 236 N.J. at 404; and then quoting State v.

Macon, 57 N.J. 325, 336 (1971)). "To determine whether an alleged error rises

to the level of plain error, it 'must be evaluated "in light of the overall strength

of the State's case."'" State v. Clark, 251 N.J. 266, 287 (2022) (quoting State

v. Sanchez-Medina, 231 N.J. 452, 468 (2018)). "The 'high standard' used in

plain error analysis 'provides a strong incentive for counsel to interpose a

timely objection, enabling the trial court to forestall or correct a potential

error.'" State v. Burnham, 474 N.J. Super. 226, 230 (App. Div. 2022) (quoting

Santamaria, 236 N.J. at 404).

We first review the prosecutor's comments in the context of the entire

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summation for plain error because defense counsel did not object to the

prosecutor's summation remarks. See State v. Atwater, 400 N.J. Super. 319,

335 (App. Div. 2008) (stating that a reviewing court must evaluate a

prosecutor's challenged remarks in the context of the entire summation).

Before the prosecutor's summation, defense counsel attempted to discredit

Geran's opinion, stating that Geran: "had only conducted four or five forensic

exam[ination]s involving smothering" similar to D.P.'s allegations; admitted

"that there was no way of knowing for certain the causation of the physical

observations of" D.P.; and "did not witness any kind of assault on" D.P.

Thereafter, the prosecutor cast doubt on Dr. Gosselin's credibility during

summation, asking, "Why would he disagree with [Geran's findings]? Because

he[ wa]s paid to, right?" The prosecutor also raised whether Dr. Gosselin was

biased because "[h]e was hired to author a report for the benefit of . . .

defendant."

It is well-recognized that "[p]rosecutors may not make inaccurate factual

or legal assertions during summation, and they must confine their remarks to

evidence revealed during trial, and reasonable inferences to be drawn from the

evidence." State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003).

"Prosecutors are afforded considerable leeway in closing arguments as long as

their comments are reasonably related to the scope of the evidence presented."

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Clark, 251 N.J. at 289-90 (quoting State v. Frost, 158 N.J. 76, 82 (1999)). To

determine whether a prosecutor's improper comments in summation warrant

reversal, we assess whether the impropriety was "so egregious that it deprived

the defendant of a fair trial." State v. Williams, 471 N.J. Super. 34, 45 (App.

Div. 2022) (quoting State v. Smith, 167 N.J. 158, 181 (2001)).

"In deciding whether prosecutorial conduct deprived a defendant of a

fair trial, 'an appellate court must take into account the tenor of the trial and

the degree of responsiveness of both counsel and the court to improprieties

when they occurred.'" State v. Supreme Life, 473 N.J. Super. 165, 172 (App.

Div. 2022) (quoting State v. Williams, 244 N.J. 592, 608 (2021)). "Thus, '[t]o

justify reversal, the prosecutor's conduct must have been "clearly and

unmistakably improper," and must have substantially prejudiced defendant's

fundamental right to have a jury fairly evaluate the merits of his defense.'"

State v. Wakefield, 190 N.J. 397, 438 (2007) (alteration in original) (quoting

State v. Papasavvas, 163 N.J. 565, 625 (2000)). "Every prosecutorial misstep

[in summation] will not warrant a new trial." State v. Garcia, 245 N.J. 412,

436 (2021).

We recognize that in certain circumstances, defense counsel are

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permitted to address an expert's compensation for their work. 2 In the present

case, it is undisputed that only defense counsel elicited the limited evidence

regarding Dr. Gosselin's compensation. Relevantly, there was no testimony or

evidence in the record demonstrating that Dr. Gosselin's fees were

unreasonable or extraordinary. We also note that the State correctly

acknowledges that the prosecutor's comments regarding Dr. Gosselin's

compensation "were not necessarily proper."

Because the prosecutor's remarks challenging Dr. Gosselin's credibility

and asserting bias were unfair statements based on the evidence, the comments

were improper. That determination, however, does not end our inquiry, as we

must discern whether the "prosecutor's comments had the capacity to deprive

defendant of a fair trial." State v. McNeil-Thomas, 238 N.J. 256, 276 (2019).

2

We note the court is permitted to charge the jury regarding the consideration

of an expert's compensation when appropriate. The charge was not requested

or provided in this case. The applicable Model Jury Charge states in pertinent

part that a juror "may consider the compensation received by the expert

witness[] as bearing on (his/her/their) credibility. You should understand,

however, that there is nothing improper in any expert receiving reasonable

compensation for (his/her) work or for (his/her) appearing in court," and "[i]f

you find from the evidence that the amount of compensation received is

unreasonable, or if you find from the evidence that the expert was paid simply

to reach a particular result, you may consider whether that affects the

credibility, interest[,] or bias of the witness." Model Jury Charges (Criminal),

"Optional Charge Concerning Compensation of Experts" (approved Oct. 1,

2001).

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We observe that at the outset of the trial, the court instructed the jury to

determine the facts "based solely upon the evidence submitted during the

course of the trial" and that the "evidence" consisted of "the testimony of

witnesses who would testify and any exhibits which may be marked into

evidence." The court further explained that counsel would make opening

statements and "in summation," present "their final arguments based upon their

respective recollections of the evidence." It clarified that summations were

"not evidence." It reinstructed the jury immediately after summations that the

"statements, remarks, openings[,] and summations of counsel are not evidence

and must not be treated as evidence." The court also stated, "Any comments

by counsel are not control[ling]" and that the jury was "to arrive at a just

conclusion after considering all the evidence."

We next briefly examine the relevant testimony and evidence introduced

at trial because the prosecutor's challenged remarks are to be viewed "within

the context of the trial as a whole." McNeil-Thomas, 238 N.J. at 276 (quoting

State v. Feaster, 156 N.J. 1, 64 (1998)). D.P. testified that defendant attempted

to smother her two or three times, and she tried to escape. In support of her

testimony, D.P. provided receipts for her "priority" car ride home from the

urgent care facility and locks purchased at the hardware store. D.P. explained

that defendant's assaults left her with cuts and bruises. Geran corroborated

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D.P.'s injuries through her forensic examination findings. Geran's photographs

of D.P. memorialized the observed injuries, which the State published to the

jury.3 Further, Dr. Gosselin conceded that "a hand over the mouth for a matter

of seconds"—consistent with D.P.'s testimony of what occurred on August 15,

2021—could "cause bleeding, bruising, and swelling to the alleged victim."

A review of the complete trial record, including the summation

arguments, demonstrates the comments did not "substantially prejudice . . .

defendant's fundamental right to have a jury fairly evaluate the merits of his

defense." Williams, 244 N.J. at 608-09 (quoting State v. Roach, 146 N.J. 208,

219 (1996)). The prosecutor's remarks regarding Dr. Gosselin's compensation

were not a dominant focus of the summation. The record establishes that the

prosecutor's inappropriate statements were limited and did not rise to the level

of plain error.

We recognize that our Supreme Court in Smith reversed the defendant's

conviction because it was prosecutorial misconduct to state during summation

that the defense experts: received "hefty fees"; potentially "shade[d] their

testimony"; and "hope[d] to get hired . . . in the future." 167 N.J. at 184 -85.

In concluding the prosecutor's remarks warranted a new trial, the Court

evaluated the evidence and determined that "because [the] defendant's guilt

3

We note the pictures were not included in the record on appeal.

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depended entirely on which experts the jury believed, . . . the inappropriate

comments made by the prosecutor could have improperly swayed the jury and

denied defendant a fair trial." Id. at 187. In the present case, defendant's

reliance on Smith is misplaced because the jury's decision on his guilt was not

based "entirely" on which expert the jury believed. Here, although the

prosecutor's limited statements were inappropriate, they were not similarly

egregious, and ample other evidence supported the jury's conviction of

defendant.

For these reasons, we conclude the prosecutor's statements were not

"clearly capable of producing an unjust result," and defendant was not

deprived of a fair trial or a jury fairly evaluating the merits of his defense. R.

2:10-2.

B. Sentencing

We next address defendant's contentions that the court committed

sentencing errors. Defendant specifically argues the court double-counted an

element of his domestic violence related second-degree aggravated assault

conviction, because in applying aggravating factor fifteen, N.J.S.A. 2C:44 -

1(a)(15), it relied on his present conviction for assaulting a victim of domestic

violence and found he previously "committed at least one act of domestic

violence on more than one occasion." He also asserts that the court improperly

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considered "dismissed charges that did not result in convictions" and failed to

"assign . . . weight to any of the aggravating factors." A review of the plain

language of the aggravated assault and aggravating factor fifteen statutes, as

well as the court's sentencing findings, demonstrates these contentions lack

merit.

We use a limited scope of review when considering a court's sentencing

determinations on appeal and apply an abuse of discretion standard. See State

v. Torres, 246 N.J. 246, 272 (2021). We do "not second-guess the sentencing

court" and defer to its factual findings. State v. Case, 220 N.J. 49, 65 (2014).

The Supreme Court has elucidated that:

The appellate court must affirm the sentence unless

(1) the sentencing guidelines were violated; (2) the

aggravating and mitigating factors found by the

sentencing court were not based upon competent and

credible evidence in the record; or (3) "the application

of the guidelines to the facts of [the] case makes the

sentence clearly unreasonable so as to shock the

judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in

original) (quoting State v. Roth, 95 N.J. 334, 364-65

(1984)).]

Further, sentencing appeals requiring statutory construction, such as the

interpretation of the aggravating and mitigating factor statutes, involve "a

question of law." See State v. Jones, 481 N.J. Super. 271, 280 (App. Div.

2025). "Statutory interpretations are . . . reviewed by an appellate court 'de

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novo, "unconstrained by deference to the decisions of the trial court."'" State

v. Martinez-Mejia, 477 N.J. Super. 325, 334 (App Div. 2023) (quoting State v.

Fuqua, 234 N.J. 583, 591 (2018)).

In addressing defendant's argument that the court wrongly found

aggravating factor fifteen because it double-counted an element of the

aggravated assault conviction under N.J.S.A. 2C:12-1(b)(13), namely, that the

assault was against "a victim of domestic violence," we undertake a statutory

analysis of both statutes. "In interpreting a statute, we 'give words "their

ordinary meaning and significance,"' acknowledging that the 'statutory

language is "the best indicator of [the Legislature's] intent."'" Fuqua, 234 N.J.

at 591 (alteration in original) (quoting Tumpson v. Farina, 218 N.J. 450, 467

(2014)). "When construing the words of a statute, '[w]e are encouraged . . . to

"read and examine the text of the act and draw inferences concerning the

meaning from its composition and structure."'" State v. Gandhi, 201 N.J. 161,

179 (2010) (quoting State v. Smith, 197 N.J. 325, 333 (2009)). "Our de novo

review requires that we 'give effect to the Legislature's intent as evidenced by

the "language of [the] statute, the policy behind it, concepts of reasonableness

and legislative history."'" State v. Rodriguez, 238 N.J. 105, 113 (2019)

(alteration in original) (quoting State v. Carrigan, 428 N.J. Super. 609, 618

(App. Div. 2012)). "If a plain-language reading of the statute 'leads to a clear

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and unambiguous result, then our interpretive process is over.'" State v.

Italiano, 480 N.J. Super. 1, 9 (App. Div. 2024) (quoting State v. Hupka, 203

N.J. 222, 232 (2010)).

To convict defendant of aggravated assault under N.J.S.A. 2C:12-

1(b)(13), the jury was required to find: defendant obstructed D.P.'s "breathing

or blood circulation" by "applying pressure on . . . [D.P.'s] throat or neck or

blocking . . . [D.P.'s] nose or mouth"; he acted knowingly or recklessly; D.P.

met the definition of a "victim of domestic violence under N.J.S.A. 2C:25 -

19(d)"; and defendant "caused, or attempted to cause, bodily injury" to D.P. 4

It was undisputed at trial that D.P. had a dating relationship with

defendant. Therefore, D.P. qualified as a victim of domestic violence under

N.J.S.A. 2C:12-1(b)(13). See N.J.S.A. 2C:25-19(d) (stating the definition of a

"'[v]ictim of domestic violence' . . . includes any person who has been

subjected to domestic violence by a person with whom the victim has had a

dating relationship").

4

We note that at the time of the trial, no model jury charge for N.J.S.A.

2C:12-1(b)(13) was approved. A model jury charge was published in

November 2023. Model Jury Charges (Criminal), "Aggravated Assault –

Strangulation of a Victim of Domestic Violence (N.J.S.A. 2C:12-1(b)(13))"

(approved Nov. 13, 2023). We observe the court's jury instructions

appropriately mirrors the later approved charge.

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Pursuant to aggravating factor fifteen's plain language, its application

requires a court to find defendant's present conviction "involved an act of

domestic violence," and "defendant committed at least one act of domestic

violence on more than one occasion." N.J.S.A. 2C:44-1(a)(15). Stated another

way, for a court to find aggravating factor fifteen, it must determine defendant

committed an offense involving domestic violence and had previously

committed a separate act of domestic violence. Therefore, aggravating factor

fifteen only applies if the court finds based on sufficient credible evidence that

a defendant had previously committed an act of domestic violence.

While we determine aggravating factor fifteen's plain language is clear, a

review of the legislative history further evinces the Legislature's intent for

courts to apply aggravating factor fifteen to defendants that have committed

prior acts of domestic violence. We note that when the Senate Judiciary

Committee considered proposed Criminal Code amendments related to "crimes

associated with domestic violence," including amendments to N.J.S.A. 2C:44-

1, it explicitly stated that sentencing courts shall consider "other crimes or

offenses committed against victim of domestic violences." S. Judiciary

Comm. Statement to S. 2559, at 2 (June 11, 2015). Specifically, regarding the

enactment of aggravating factor fifteen, the Senate Judiciary Committee

elucidated that when a defendant has committed "any act of domestic

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violence," and "the abuser committed at least one act of domestic violence on

more than one occasion," the aggravating factor is "established . . . for the

court to consider when determining the possible length of the prison sentence

imposed." Ibid. The Legislature clearly intended for courts to apply

aggravating factor fifteen to defendants that have an established history of

committing domestic violence and are convicted of committing a new offense

against a victim of domestic violence.

Thus, in finding that factor fifteen applied, the court did not double-

count the element that D.P. was a victim of domestic violence because it

separately found defendant had committed prior acts of domestic violence,

which were wholly unrelated to defendant's conviction. The court

permissively considered, and found highly relevant, the multiple "active

[FROs] . . . against [defendant] by former dating partners" and defendant's

"two prior convictions for violations of the domestic violence restraining

orders" for "simple assault and harassment" against two former dating

partners. We note our Supreme Court has held that "[i]njuries to victims of

other crimes of which defendant was convicted, . . . may be used as

aggravating factors for sentencing of the defendant's particular offense." State

v. Lawless, 214 N.J. 594, 608 (2013). Moreover, courts do "not engage in

double-counting when [they] consider[] facts showing defendant did more than

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the minimum the State is required to prove to establish the elements of an

offense." State v. A.T.C., 454 N.J. Super. 235, 254-55 (App. Div. 2018). In

considering aggravating factor fifteen's applicability, the court made the

threshold finding that defendant's present conviction involved an act

committed against a victim of domestic violence and then appropriately

considered and determined defendant had committed prior acts of domestic

violence. For these reasons, we discern no error in the court's application of

aggravating factor fifteen.

We turn to address defendant's assertions that the court improperly

considered his dismissed offenses in finding aggravating factor three and failed

to sufficiently explain the assigned weight to the aggravating factors found.

Regarding aggravating factor three, defendant conflates the court's recitation

of his criminal history with reliance on the dismissed offenses. The court

noted defendant had a "substantial criminal history," and the "presentence

investigation report" revealed defendant had "been arrested . . . on at least 27

occasions[,] including [for] the present offense." The court, in discussing

defendant's history, differentiated between his dismissed offenses, borough

ordinance violations, municipal court convictions, family court restraining

orders, family court FRO contempt convictions, and indictable convictions.

The court reasoned that: there was a risk of defendant reoffending; and

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defendant had a substantial criminal history, emphasizing "the context" of the

four FROs lodged against defendant and his "two [separate FRO] violations."

Defendant's argument that the court relied on dismissed offenses is without

merit, as the record demonstrates the court properly distinguished defendant's

prior criminal record in its sentencing findings.

We are also unpersuaded by defendant's contention that a resentencing is

warranted because the court failed to articulate the weight assigned to each

aggravating factor. Relevantly, the court made detailed findings for each

aggravating factor found but determined no mitigating factors applied.

At sentencing, the "court should identify the relevant aggravating and

mitigating factors, determine which factors are supported by a preponderance

of evidence, balance the relevant factors, and explain how it arrives at the

appropriate sentence." State v. M.A., 402 N.J. Super. 353, 370 (App. Div.

2008) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). The court must

"state reasons for imposing such sentence including . . . the factual basis

supporting a finding of particular aggravating or mitigating factors affecting

[the] sentence." R. 3:21-4(h); see also N.J.S.A. 2C:43-2(e). It is well-

established that "[s]entences can . . . 'be upheld where the sentencing transcript

makes it possible to "readily deduce" the judge's reasoning.'" State v.

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Vanderee, 476 N.J. Super. 214, 239 (App. Div. 2023) (quoting State v. Miller,

205 N.J. 109, 129 (2011)).

The court sufficiently provided its reasons for finding each of the five

aggravating factors and no mitigating factors. The court had no mitigating

factors to balance and weigh against the aggravating factors found. In

imposing defendant's sentence, the court stated that it was "clearly convinced

that the aggravating factors outweigh[ed] the mitigating factors." Therefore,

there is no reason to disturb defendant's sentence.

To the extent not addressed, defendant's remaining contentions lack

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

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