The opinion
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5135-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONTE S. JONES,
Defendant-Appellant.
________________________________
Submitted September 12, 2018 – Decided September 20, 2018
Before Judges Yannotti and Natali.
On appeal from Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 15-04-1166.
Joseph E. Krakora, Public Defender, attorney for
appellant (Brian P. Keenan, Assistant Deputy Public
Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Jason Magid, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Donte S. Jones was charged with first-degree murder, N.J.S.A.
2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b); first-degree witness tampering, N.J.S.A. 2C:28-5(a); and
second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). He
was tried before a jury and found guilty on the witness-tampering count and not
guilty on the remaining counts. The trial court sentenced defendant to twelve
years of incarceration. Defendant appeals from the judgment of conviction
dated June 15, 2016. We affirm.
I.
We briefly summarize the key facts, which we glean from the trial record.
On May 31, 2012, Kishaun Burks was killed in Camden. Several months later,
defendant was arrested, charged with Burks's murder, and incarcerated in the
Camden County Correctional Facility (CCCF). On July 2, 2014, homicide
detectives from the Camden County Prosecutor's Office (CCPO) learned that
Jordan Walker, who had been incarcerated at the CCCF at the same time as
defendant, wanted to provide a statement regarding Burks's murder. Walker
informed the detective that defendant told him, "yeah, I killed him, but just
A-5135-15T1
2
because I killed somebody doesn't make me a murderer." Defendant also told
Walker he shot and killed Burks over a drug dispute.
On July 23, 2014, defendant called Walker's mother, D.B. 1 She knew that
her son had provided the CCPO detectives with a statement about defendant,
and that after he gave the statement, Walker had been moved to another
correctional facility for his safety. D.B. said defendant had called her four times
before she finally answered the phone. D.B. was frightened and felt she had to
answer defendant’s repeated calls.
On July 24, 2014, D.B. contacted Detective Lance Saunders of the CCPO,
and Saunders interviewed her days later. Saunders obtained a copy of the
CCCF's phone log, which confirmed defendant called D.B. on July 23, 2014. A
recording of the call was played for the jury. During the call, defendant told
D.B. that Walker had provided a statement to the police indicating defendant
confessed to Burks's murder.
D.B. told defendant she had not been able to contact Walker and did not
know where he was. Defendant gave D.B. the names of the detective and
prosecutor in defendant's case so that D.B. could contact them to get information
1
We use initials to identify certain persons involved in this matter to protect
their privacy.
A-5135-15T1
3
about her son. Near the end of the conversation, the following exchange
occurred:
[D.B.]: So you've got to give me some time. I got to
figure this out.
[Defendant]: Yes, ma'am. Thank you.
[D.B.]: Okay?
[Defendant]: Thank you. Thank you. You know what
I'm saying?
[D.B.]: You're welcome, Donte.
[Defendant]: That's why I never came like -- like oh this
and that, or posing threats or anything. Nah, because
this is like -- I think [Walker] is a good person. He will
come to his senses with this. You know? You know
what I'm saying?
[D.B.]: Right.
[Defendant]: And --
[D.B.]: Right.
[Defendant]: -- he has his -- I know -- I understand he
has his own issues, I understand he's not built for this.
You know what I'm saying? He told me like, man, he's
[g]oing to do whatever, he's going to cooperate against
people in his case or whatever and I was like, all right,
you got to do what you've got to do, they told on you,
whatever. You know what I'm saying? And you're
supposed to take the rap, you got to do . . . what you got
to do. But for him to not know what's going on with
my situation and go off for hearsay, like that's really,
A-5135-15T1
4
really not cool. You know what I'm saying? I'm
hoping he can come to his senses or that you talk to him
-- or you talk to him or whatever because it's like --
suppose I was a bad guy or a guy that could reach out -
- my arms could reach out to the streets and they just
give me -- give me all this family's like --
[D.B.]: Right.
[Defendant]: -- addresses and stuff like that. You know
what I'm saying?
[D.B.]: Right.
[Defendant]: They give me all ya'll, information, his
social security, everything. You know what I'm
saying? He don't know that t[h]ough, you know,
because he never been through this, he don't know that.
But this is the type of thing -- that's the type of game
they play, they don't care about you, they don't care
about people's safety or life or situations --
[D.B.]: Okay.
[Defendant]: -- like that.
....
[Defendant]: He's a real good person. That's -- other
people --- he was -- because he's like some other guys,
like hit men and all of these other people that's putting
stuff in his head. You know? He don't know nothing
about this kind of stuff. You know what I'm saying?
[D.B.]: No, he's not about that life.
[Defendant]: He's not.
A-5135-15T1
5
[D.B.]: He's nothing.
[Defendant]: He's not.
[D.B.]: -- he's not. He's just a regular old kid.
[Defendant]: He is. He is. He shouldn't really be in
here. Because of his story he shouldn't be in here. You
know what I'm saying? And I see you guys coming up
to the window and -- like he really shouldn't be in there.
You know what I mean? You can't (inaudible) no cause
for this. You know what I'm saying? And then for them
to use him like that is not right. You know what I'm
saying?
[D.B.]: That's what (inaudible). Now I'm starting to
think that somebody used him. Did somebody. -- You
know what I'm saying?
[Defendant]: Yeah.
[D.B.]: Like this doesn't make any sense. [Walker] is
not -- he's not a snake, he's not a rat, he's never been --
he's never been this type of person. He's never -- you
know, I've been, and his stepdad, we've been amazed at
how he's pulling through in there.
[Defendant]: Yeah.
The conversation concluded with the following exchange:
[D.B.]: I know.
[Defendant]: I know --
[D.B.]: I know.
A-5135-15T1
6
[Defendant]: -- every -- he knows everything about my
family, I know everything about him. You know what
I'm saying?
[D.B.]: Right.
[Defendant]: I know his stepdad is from Philly, or
whatever, and his dad got locked -- he said his dad got
locked up. I know everything about the kid. You know
what I'm saying? We were --
[D.B.]: Yes.
[Defendant]: -- really close.
[D.B.]: Yeah. I don't know. You've got to give me
some time. I --
[Defendant]: Okay. Okay. Okay, Miss [D.]
[D.B.]: All right, honey.
[Defendant]: Thank you.
[D.B.]: You're welcome.
D.B. testified that she felt scared and uneasy during the call. Based upon
her conversation with defendant, D.B. believed she could be located. D.B. said
she received a second call from a person who identified herself as defendant's
mother. D.B. described that call as a mother-to-mother conversation and said it
"wasn't a bad call." D.B. had no further contact with defendant or the person
claiming to be his mother.
A-5135-15T1
7
Walker testified that on October 24, 2014, after he agreed to testify against
defendant, he met defendant when he was in a holding cell at the Camden County
courthouse. Walker said this meeting was a "set up." He stated that he shou ld
not have been in a cell with defendant because an order had been issued
requiring that they be kept separate. He also stated that one of defendant's hands
was not in handcuffs.
Walker testified that when he entered the holding cell, defendant
immediately inquired why he had snitched. According to Walker, defendant
said, "what's up" and he asked him "why did you do it?" Walker responded and
defendant said, "you know, you can always take it back." Defendant informed
Walker of the repercussions of being a snitch. Walker testified that “[defendant]
said, well you know that people like you, you know, when they go down state
they don’t live down state. You know, they’re going to find out you snitched.
And when they find out you snitched you can't live anywhere but PC." 2
Walker added that defendant told him of someone he knew who snitched
like Walker and was also incarcerated. Defendant said that person was not
“living” because he was getting beat up. Walker interpreted this as an attempt
by defendant to scare him from testifying against him at trial. According to
2
"PC" apparently means protective custody.
A-5135-15T1
8
Walker, defendant also said he had his personal information, including his
address. Defendant told Walker to write him a letter if he decided not to testify
and that if he did not receive a letter, he would know he was going to snitch.
On March 4, 2015, Saunders spoke with Walker. Thereafter, Saunders
obtained the surveillance that showed Walker and defendant together in a
holding cell. The video, which did not have a sound recording, was shown to
the jury.
On March 18, 2015, Saunders received a letter that defendant purportedly
wrote to Walker's co-defendant, Zahir Camillo. Saunders interviewed Camillo
and found the letter in Camillo's cell. The letter stated the following:
You probably don’t know me, but I was in the room
with your co[-]defendant, Walk[er]. I copied down
your information to let you know he owns some
bullshit. He really got plans on taking the stand on you
and the other bull. To make matters worse, he jumped
in my case and I got a homicide. I’m facing life. He
was my bunky and smiled in my face then bit me in the
ass. But he shit him out because he made a statement
that’s all lies. I got a baby mom and an eight year old
son and he knew that shit. I need you to help me out,
please. I need some numbers and addresses to see if I
can defuse the situation. Send me that [n* * * ] street
info, please, bro. Send me his girl’s info, or numbers
too. I really need you cuz my life on the line and this
[n* * * ] don’t care about nothing or nobody. He even
told me ya’ll want him to take back his statement, but
he’s not taking shit back and don’t care if you all get
smoked. You and Keys. Write me back and please help
A-5135-15T1
9
me out, bro. It might work in all our favors, trust me.
Ala will deal with him, trust me. People that pull these
types of selfish stunts don’t last long.
As stated previously, defendant was found not guilty of murder and the
weapons charges, but guilty of first-degree witness tampering. At sentencing,
the judge decided that because the verdict sheet did not include an element of
the tampering charge, which elevated that charge to a first-degree offense,
defendant had to be sentenced as a second-degree offender. The judge granted
the State's motion for imposition of an extended term as a persistent offender
pursuant to N.J.S.A. 2C:44-3(a), and imposed a twelve-year term of
incarceration. The judge also imposed appropriate fees and penalties.
Defendant appeals and raises the following arguments:
POINT I
THE TRIAL JUDGE ERRED IN ADMITTING A
HEARSAY LETTER PURPORTEDLY WRITTEN BY
[DEFENDANT] WITHOUT AUTHENTICATION
CONTRARY TO THE RULES OF EVIDENCE.
POINT II
PROSECUTORIAL MISCONDUCT DURING
SUMMATION DEPRIVED DEFENDANT OF HIS
RIGHT TO A FAIR TRIAL RESULTING IN HIS
CONVICTION ON THE TAMPERING CHARGE.
POINT III
THE TRIAL JUDGE ERRED IN FINDING AN
[AGGRAVATING] FACTOR AND IN FAILING TO
FIND MITIGATING FACTORS SUPPORTED BY
A-5135-15T1
10
THE RECORD, RESULTING IN A MANIFESTLY
EXCESSIVE SENTENCE.
II.
Defendant argues that the assistant prosecutor "persuaded" defense
counsel to agree to the admission of the letter that defendant allegedly wrote to
Camillo. Defendant further argues that the trial judge erred by instructing the
jury regarding its role in determining whether he wrote the letter and what effect,
if any, the letter would have on its deliberations.
We note that initially defendant's attorney objected to the admission of the
letter into evidence on the ground that it had not been properly authenticated.
However, defendant's attorney withdrew the objection and told the judge the
letter and the envelope in which it was contained could be admitted because
Saunders had seized this evidence from Camillo's cell. Defendant's attorney
stated, however, that he would object to Saunders identifying the person who
wrote the letter. On appeal, defendant argues that his attorney raised a proper
objection on authentication of the letter, and the judge should have ruled on th e
objection.
Because defense counsel withdrew the initial objection on the basis of a
lack of authentication, we must review the claimed error under the plain error
standard. See R. 2:10-2. Under that standard, an appellate court will not reverse
A-5135-15T1
11
a jury's verdict unless the error was "of such a nature as to have been clearly
capable of producing an unjust result." Ibid. The error must have been
"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. McGuire, 419 N.J. Super.
88, 106-07 (App. Div. 2011) (alteration in original) (quoting State v. Taffaro,
195 N.J. 442, 454 (2008)). Applying that standard, we conclude the judge did
not err by admitting the letter into evidence.
"[A] writing must be properly authenticated before it is admitted into
evidence." State v. Marroccelli, 448 N.J. Super. 349, 364 (App. Div. 2017)
(citing State v. Hannah, 448 N.J. Super. 78, 89 (App. Div. 2016)). "However,
the burden of establishing a prima facie showing of authenticity 'was not
designed to be onerous.'" Ibid. (quoting Hannah, 448 N.J. Super. at 89).
"The requirement of authentication or identification as a condition
precedent to admissibility is satisfied by evidence sufficient to support a finding
that the matter is what its proponent claims." State v. Mays, 321 N.J. Super.
619, 628 (App. Div. 1999) (citing N.J.R.E. 901). The rule "does not require
absolute certainty or conclusive proof. The proponent of the evidence is only
required to make a prima facie showing of authenticity." Ibid. (citing In re Blau,
4 N.J. Super. 343, 351 (App. Div. 1949); McCormick on Evidence § 222 (John
A-5135-15T1
12
William Strong ed., 4th ed. 1992)). Once a prima facie showing has been made,
the court should admit the evidence, and the ultimate question of authenticity is
then decided by the jury. Ibid.
Moreover, it is well-established that a document may be authenticated by
circumstantial evidence. N.J. Div. of Youth & Family Servs. v. J.T., 354 N.J.
Super. 407, 413 (App. Div. 2002) (citing State v. Porambo, 226 N.J. Super. 416,
426-28 (App. Div. 1988); State v. Bassano, 67 N.J. Super. 526, 532-34 (App.
Div. 1961)).
A writing or telephone conversation may be
authenticated indirectly, regardless of its age, on
testimony that one has received a letter signed with a
person's name or has had a telephone conversation with
one identifying himself as a particular person, and that
the writer of the letter or other participant in the
conversation divulged intimate knowledge of
information which one would expect only the person
alleged to have been the writer or participant to have.
[Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 3(b) on N.J.R.E. 901 (2018).]
Therefore, "sufficient circumstantial indicia of reliability" may establish a prima
facie showing of authentication. Mays, 321 N.J. Super. at 629.
Defendant argues that in this case the State failed to make a prima facie
showing of authenticity for admission of the letter into evidence. Defendant
notes that there is no signature on the letter; the person who received the letter
A-5135-15T1
13
did not know defendant; no one testified he saw defendant write the letter; and
the State did not present testimony from an expert witness, or person familiar
with defendant's handwriting, opining that defendant wrote the letter.
We are convinced, however, that the State presented sufficient evidence
to authenticate the letter and envelope. The letter was in an envelope that was
addressed to Camillo and indicated it had been sent by defendant, with a return
address. The envelope also was addressed to the CCCF and stated “in-house
mail,” which indicated that the author and Camillo were both housed in that
facility.
Furthermore, in the letter, the author states that he shared a cell with
Walker, acknowledges that Camillo is Walker's co-defendant, and mentions
details of both defendant's and Camillo's cases. In addition, the author states he
has an eight-year-old son, which was the age of defendant's son at the time. The
author concludes by asking Camillo for personal information about Walker,
including street addresses and phone numbers.
We note that, during a pre-trial proceeding, in arguing that the State lacked
probable cause for the witness-tampering charge, defendant's attorney
acknowledged that defendant wrote the letter. Defendant's attorney stated,
“[m]y client made the mistake of writing the letter himself. He [should not]
A-5135-15T1
14
have done that. He should have come to me and asked me to do the
investigation.”
In addition, as we pointed out previously, at trial, defendant's attorney did
not object to the admission of the letter and envelope into evidence. Indeed, an
objection at trial would have been inconsistent with counsel's assertion during
the pre-trial proceeding that defendant had, in fact, written the letter.
We therefore conclude the judge did not err by admitting the letter and the
envelope into evidence. Furthermore, defendant has not shown that the
admission of this evidence was "clearly capable of producing an unjust result."
R. 2:10-2.
III.
Next, defendant argues the assistant prosecutor made improper comments
during summation. Defendant contends the prosecutor engaged in "egregious
misconduct" that deprived him of his right to a fair trial. We disagree.
Our courts have long recognized that "[p]rosecutors are afforded
considerable leeway in closing arguments as long as their comments are
reasonably related to the scope of the evidence." State v. Cole, 229 N.J. 430,
457 (2017) (alteration in original) (quoting State v. Frost, 158 N.J. 76, 82
(1999)). A prosecutor may comment on the evidence and the reasonable
A-5135-15T1
15
inferences that could be drawn therefrom. Frost, 158 N.J. at 85 (citing State v.
Marks, 201 N.J. Super. 514, 534 (App. Div. 1985)).
Nevertheless, "prosecutors should be mindful of the purpose for which
evidence is admitted when they comment on that evidence in summation." Cole,
229 N.J. at 457. A prosecutor's reference "to matters extraneous to the evidence"
may provide grounds for a finding of prosecutorial misconduct and reversal.
State v. Jackson, 211 N.J. 394, 408 (2012) (citing State v. Rose, 112 N.J. 454,
521 (1988)). However, "'not every deviation from the legal prescriptions
governing prosecutorial conduct' requires reversal" of a conviction. Id. at 408–
09 (quoting State v. Williams, 113 N.J. 393, 452 (1988)).
"A defendant's allegation of prosecutorial misconduct requires the court
to assess whether the defendant was deprived of the right to a fair trial." State
v. Pressley, 232 N.J. 587, 593 (2018) (citing Jackson, 211 N.J. at 407). "To
warrant reversal on appeal, the prosecutor's misconduct must be 'clearly and
unmistakably improper' and 'so egregious' that it deprived defendant of the 'right
to have a jury fairly evaluate the merits of his defense.'" Id. at 593–94 (quoting
State v. Wakefield, 190 N.J. 397, 437-38 (2007)). Reversal is warranted only if
the prosecutor's conduct "substantially prejudiced . . . defendant['s] fundamental
right[s]." State v. Johnson, 31 N.J. 489, 510 (1960).
A-5135-15T1
16
In determining whether a prosecutor's comments were sufficiently
egregious to warrant reversal, the reviewing court must consider "the tenor of
the trial and the responsiveness of counsel and the court to the improprieties
when they occurred." Jackson, 211 N.J. at 409 (quoting State v. Timmendequas,
161 N.J. 515, 575 (1999)). The court must consider: "(1) whether defense
counsel made timely and proper objections to the improper remarks; (2) whether
the remarks were withdrawn promptly; and (3) whether the court ordered the
remarks stricken from the record and instructed the jury to disregard them."
Ibid. (quoting State v. Smith, 167 N.J. 158, 182 (2001)).
Appellate courts, however, are "bound[] by the proofs and objections
critically explored on the record before the trial court by the parties themselves."
State v. Robinson, 200 N.J. 1, 19 (2009). Thus, absent an objection, the
defendant on appeal must establish that the prosecutor's conduct constitutes
plain error. State v. Feal, 194 N.J. 293, 312 (2008). Reversal of a conviction is
warranted only if the error was "clearly capable of producing an unjust result."
R. 2:10-2.
On appeal, defendant argues that the assistant prosecutor improperly
commented that he wrote the letter that Saunders found in Camillo's cell. The
prosecutor stated:
A-5135-15T1
17
[Y]ou also have the letter written to [Walker's] co[-]
defendant, the letter that was written shortly after
[Walker] gives information to police. In the letter the
defendant gives some background information on
himself and then goes on to write, "I need some
numbers and address, the address to see if I can diffuse
these situations. Send me that [n * * *] street info
please, bro. Send me his girl's info or number two
[sic]."
Then he goes on to end the letter with "It might work in
all, all our favor. Trust me. I will deal with him, trust
me. People that pull these type of selfish stunts don't
last long."
. . . .
So there you have it. The defendant actually tells
[Walker] exactly how he intends on having him work
in not only the defendant's favor, but also in [Walker's]
co[-]defendant's favor. He not only wrote it in that
letter, but also tells [Walker] in person. And that being
that this snitch won't last long.
. . . .
So what does the defendant do when he finds out that
[Walker] snitched on him? He calls [Walker's] mom.
He even calls – has his mom call [Walker's] mom. [H]e
writes a letter to Zahir asking for [Walker's] street
information, and threatens [Walker] in that holding
cell.
Although the trial judge prohibited Saunders from testifying that
defendant wrote the letter to Camillo, the judge's ruling did not preclude the
assistant prosecutor from arguing during summation that defendant was the
A-5135-15T1
18
author of the letter. As we have explained, the State did not present any direct
evidence that defendant wrote the letter, but there was sufficient circumstantial
evidence from which the jury could infer that defendant was its author.
Therefore, the assistant prosecutor's comments were fair comment on the
evidence.
Defendant further argues the assistant prosecutor improperly discussed his
encounter with Walker in a holding cell at the courthouse. The prosecutor
stated:
Well, ladies and gentlemen, that takes me to the video
you saw, the video from October 20, [2014] when the
defendant, despite being forbidden, despite him being
forbidden, inexplicably ends up in the same holding cell
as [Walker] for approximately an hour and [forty-five]
minutes.
And when, and when [Walker] initially walks into that
cell he sees that a defendant has one hand loose, which
is odd because both hands should be cuffed. And as
you saw from the video, [Walker] merely begins to
shake his head as he sits down.
Now [at] this point any reasonable person would think
this is a set-up, where this defendant has some sort of
pull or inside connection or a way of getting to him if
he wants to.
Defendant contends the prosecutor had "no basis whatsoever" to imply
that he set up the encounter. Defendant asserts he was under the control of the
A-5135-15T1
19
corrections officers, and he had no choice but to be in that cell. He contends the
corrections officers were responsible for ensuring that he and Walker were not
in the same cell together. He therefore argues that the prosecutor's comments
were "highly inflammatory and implied wrongdoing" on his part.
We conclude, however, that Walker's testimony provided sufficient
evidential support for the prosecutor's statements. Walker testified that he
believed his encounter with defendant was a "set up" because he was not
supposed to be in a cell with defendant. Walker also testified that one of
defendant's hands was not in cuffs, and defendant immediately accused him of
snitching when they met. Thus, the prosecutor's remarks were fair comment on
the evidence. The remarks were not improper, nor were they "clearly capable
of producing an unjust result." R. 2:10-2.
Furthermore, defense counsel did not object to the prosecutor's comments
when they were made. Where, as here, defense counsel makes no objection to a
prosecutor's comments, generally the remarks will not be considered prejudicial.
State v. Echols, 199 N.J. 344, 360 (2009) (citing Timmendequas, 161 N.J. at
576). We therefore reject defendant's contention that the assistant prosecutor's
remarks denied him of his right to a fair trial.
A-5135-15T1
20
IV.
Defendant also argues that his sentence is manifestly excessive. He
contends the trial judge erred in her findings of the aggravating and mitigating
factors.
As we noted previously, the judge sentenced defendant as a second-degree
offender. The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)
(risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6)
(extent of defendant's prior criminal record and the seriousness of the offenses);
and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from
violating the law). The judge found no mitigating factors.
The judge also found that defendant was eligible for an extended term
pursuant to N.J.S.A. 2C:44-3(a). The statute provides that an extended term
may be imposed upon a persistent offender who has been convicted of a crime
of the first, second, or third-degree. Ibid. The statute further provides that
[a] persistent offender is a person who at the time of the
commission of the crime is [twenty-one] years or over,
who has been previously convicted on at least two
separate occasions of two crimes, committed at
different times, when he was at least [eighteen] years of
age, if the latest in time of these crimes or the date of
the defendant's last release from confinement,
whichever is later, is within [ten] years of the date of
the crime for which the defendant is being sentenced.
A-5135-15T1
21
[Ibid.]
On appeal, defendant does not dispute that he qualified for imposition of
a discretionary extended term under N.J.S.A. 2C:44-3(a), and he does not argue
that the judge erred by finding aggravating factors three and nine. Rather,
defendant maintains the judge erred by finding aggravating factor six. He also
argues that the judge erred because she did not find certain mitigating factors.
"An appellate court's review of a sentencing court's imposition of sentence
is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318
(2018). In reviewing a sentence, the court must determine whether: "(1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were . . . 'based upon competent credible evidence in the
record;' [and] (3) 'the application of the guidelines to the facts' of the case
'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)
(third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364–65 (1984)).
"An appellate court is bound to affirm a sentence, even if it would have arrived
at a different result, as long as 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) (citing
State v. Jarbath, 114 N.J. 394, 400-01 (1989); Roth, 95 N.J. at 364-65).
A-5135-15T1
22
As noted, defendant argues that there is insufficient evidence in the record
to support the judge's finding of aggravating factor six. Defendant asserts the
trial judge correctly found he had two prior criminal convictions, which made
him eligible for an extended term, and that those convictions could not be used
as a factual basis for finding aggravating factor six. He argues that the remainder
of his criminal record does not support the finding of this aggravating factor.
We conclude, however, that there is sufficient credible evidence in the
record to support the judge's finding of aggravating factor six. The record shows
that defendant has a lengthy juvenile criminal history. As a juvenile, defendant
was adjudicated delinquent nine times. He received sentences that included
probation, residential programs, and incarceration. The record also shows that
as an adult, defendant has a conviction in addition to the two convictions that
made him eligible for the extended term. The record thus supports the judge's
finding of aggravating factor six.
Defendant also contends the judge erred by failing to find mitigating
factor one. N.J.S.A. 2C:44-1(b)(1) (defendant's conduct did not cause or
threaten serious harm). There is sufficient credible evidence in the record to
support the judge's determination that this mitigating factor did not apply.
Defendant had threatened Walker, who provided a statement to law enforcement
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and was prepared to testify that defendant admitted killing Burks. The record
supports the judge's finding that defendant had threatened to inflict serious harm
upon the witness.
Next, defendant argues that the judge erred by failing to find mitigating
factor two. N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his
conduct would cause or threaten serious harm). As noted, the evidence
established that defendant attempted to influence the outcome of the case by
threatening a witness. The judge properly determined that defendant
contemplated his conduct would threaten serious harm. Thus, this mitigating
factor did not apply.
In addition, defendant contends the judge should have found mitigating
factor eight. N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result of
circumstances unlikely to recur). The judge noted that defendant has an
extensive criminal history, and the evidence presented at trial established he had
engaged in witness tampering. The record thus supports the judge's
determination that defendant's witness tampering was the result of conduct that
was likely to recur.
Defendant further argues that the judge erred by failing to find mitigating
factor eleven. N.J.S.A. 2C:44-1(b)(11) (defendant's incarceration will entail
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excessive hardship to defendant or his dependents). The judge noted that
defendant had not submitted any evidence to show that his incarceration would
entail excessive hardship to himself or a dependent. Thus, the judge correctly
found this mitigating factor did not apply.
In sum, there is sufficient evidence in the record to support the judge's
findings of aggravating factor three, six, and nine, and the judge's determination
that no mitigating factors applied. The twelve-year sentence does not shock the
judicial conscience, and does not represent an abuse of the trial court's
sentencing discretion.
Affirmed.
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