noting Rule 1:7-2 provides that the appropriate time to object to a jury charge is "before the jury retires to consider its verdict"
How later courts described this case
- noting Rule 1:7-2 provides that the appropriate time to object to a jury charge is "before the jury retires to consider its verdict"
Written by the judges who cited it.
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NOT FOR PUBLICATION WITHOUT THE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-2599-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ISRAEL HIRALDO, a/k/a
YSAEL HIRALDO,
Defendant-Appellant.
_______________________
Argued October 25, 2023 – Decided November 14, 2023
Before Judges Mayer, Enright and Paganelli.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 19-02-0102.
Kevin S. Finckenauer argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney; Kevin
S. Finckenauer, Assistant Deputy Public Defender, of
counsel and on the briefs).
William P. Cooper-Daub argued the cause for
respondent (Matthew J. Platkin, Attorney General,
attorney; William P. Cooper-Daub, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant appeals from an April 25, 2022 judgment of conviction for
robbery and weapons offenses. He also appeals from the sentence imposed. We
affirm.
We recite the facts from the testimony presented during the three-day jury
trial. On November 27, 2018, defendant and three other men approached an
individual who was walking toward the Elizabeth train station. The victim
noticed the four men and grew suspicious. He slowed his pace to let the group
pass, and "made a mental note of their faces."
Two of the men crossed to the other side of the street while the other two
men remained on the same side of the street as the victim. One of the men on
the same side of the street as the victim turned and chambered a round in a
handgun.
That man, subsequently identified by the victim as defendant, ordered the
victim to turn around and raise his hands. The victim complied. Defendant
pressed the gun into the victim's back while another man took the victim's wallet.
The four men then fled.
A-2599-21
2
The victim immediately called 9-1-1 and gave the operator a description
of the four men. Because the victim placed the 9-1-1 call as he watched the men
flee, the victim provided contemporaneous information as to their location.
Officer Timothy Goldate of the Elizabeth Police Department responded to
the scene. While seated in his patrol car, the officer saw four men not far from
the train station. Two of the men fit the description given by the victim to the
9-1-1 operator.
Because some of the men matched the victim's descriptions, all four men
were detained by the police. The responding officers gathered the four men in
a nearby parking lot and conducted a show-up identification. The officers
presented the four men, one at a time, for the victim to identify. The victim
identified all four men as involved in the robbery and, specifically, identified
defendant as the man holding the gun.1
The police also recovered a .38-caliber handgun near the scene. The gun
contained at least one hollow nose bullet and one regular bullet. At trial, the
State's forensic expert discussed the results of DNA and fingerprint testing on
the recovered handgun. The handgun tested negative for fingerprints. However,
1
At trial, the victim could not make a definitive identification of defendant,
explaining it had "been too long" since the incident.
A-2599-21
3
the State's forensic expert testified the mixture of DNA found on the gun
revealed a statistically probable match for three of the four men, including
defendant.
On February 19, 2019, defendant was charged in Indictment No. 19-02-
0102 with first-degree armed robbery, N.J.S.A. 2C:15-1(a)(2) (Count One),
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (Count
Two), second-degree possession of a weapon for unlawful purposes, N.J.S.A.
2C:39-4(a)(1) (Count Three), fourth-degree possession of hollow nose bullets,
N.J.S.A. 2C:39-3(f)(1) (Count Four), and second-degree conspiracy to commit
robbery, N.J.S.A. 2C:5-2 (Count Five).
Defendant's trial began on February 7, 2022. Defendant elected to testify
at trial. On February 9, 2022, the jury found defendant guilty on all counts.
On April 22, 2022, defendant appeared for sentencing. On Count One,
the judge sentenced defendant to a fifteen-year prison term with an eighty-five
percent period of parole ineligibility, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2.2 On Count Two, the judge sentenced defendant
to a concurrent five-year sentence with a forty-two-month period of parole
ineligibility. Additionally, the judge sentenced defendant to a concurrent
2
The judge merged the convictions on Counts Three and Five into Count One.
A-2599-21
4
eighteen-month sentence on Count Four. The judge entered a judgment of
conviction on April 25, 2022.
On appeal, defendant raises the following arguments:
POINT I
THE LACK OF ANY ON-THE-RECORD
COLLOQUY WITH [DEFENDANT] ABOUT HIS
DECISION TO WAIVE HIS RIGHT TO NOT
TESTIFY FAILED TO ADEQUATELY
SAFEGUARD HIS SIGNIFICANT
CONSTITUTIONAL RIGHT TO REMAIN SILENT.
ADDITIONALLY, THE SURROUNDING
CIRCUMSTANCES INDICATE THAT
[DEFENDANT] DID NOT MAKE THE DECISION
TO WAIVE HIS RIGHT KNOWINGLY AND
INTELLIGENTLY. (Not Raised Below).
POINT II
THE TRIAL COURT REVERSIBLY ERRED BY
IMPROPERLY INSTRUCTING THE JURY ON
JOINT AND CONSTRUCTIVE POSSESSION WHEN
THE STATE'S THEORY OF THE CASE AND ITS
EVIDENCE PRESENTED TO THE JURY
DEMONSTRATED ONLY ACTUAL AND SOLE
POSSESSION. (Not Raised Below).
POINT III
THE TRIAL COURT ERRONEOUSLY
INSTRUCTED THE JURY THAT THE STATE DID
NOT HAVE TO PROVE THAT [DEFENDANT]
KNEW THE HOLLOW NOSED BULLET WAS IN
FACT HOLLOW NOSED IN ORDER TO FIND HIM
A-2599-21
5
GUILTY OF KNOWINGLY POSSESSING A
PROHIBITED WEAPON. (Not Raised Below).
POINT IV
THE HANDGUN PERMIT APPLICATION PROCESS
AT THE TIME OF [DEFENDANT]'S ALLEGED
POSSESSION OF THE HANDGUN CONTAINED A
REQUIREMENT THAT UNCONSTITUTIONALLY
PRECLUDED HIM FROM BEING ELIGIBLE TO
RECEIVE SAID PERMIT. ACCORDINGLY, HIS
CONVICTION FOR FAILING TO COMPLY WITH A
FACIALLY UNCONSTITUTIONAL PERMITTING
PROCESS CANNOT STAND. (Not Raised Below).
POINT V
THE TRIAL COURT EXPLICITLY IMPOSED A
TRIAL PENALTY ON [DEFENDANT] BY SAYING
HE SHOULD RECEIVE A HEAVIER SENTENCE
FOR FAILING TO PLEAD GUILTY AND WASTING
THE COURT'S TIME AND RESOURCES, IN
ADDITION TO MAKING SEVERAL ERRORS IN
ITS ANALYSIS OF THE AGGRAVATING AND
MITIGATING FACTORS. THESE ERRORS
COMPOUNDED TO RESULT IN AN EXCESSIVE
SENTENCE FOR A YOUTHFUL DEFENDANT
WITH NO CRIMINAL HISTORY.
We review the arguments not raised before the trial court for plain error.
R. 2:10-2. We generally "will decline to consider questions or issues not
properly presented to the trial court when an opportunity for such a presentation
is available." State v. Witt, 223 N.J. 409, 419 (2015) (citing State v. Robinson,
200 N.J. 1, 20 (2009) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234
A-2599-21
6
(1973))). Under the plain error standard, reversal is warranted only if an error
was "clearly capable of producing an unjust result." R. 2:10-2.
While not raised to the trial court, defendant contends the judge erred in
failing to conduct an on the record discussion regarding defendant's decision to
testify. We disagree.
A defendant's right to testify on his own behalf "is essential to our state -
based concept of due process of law, which guarantees a 'fair and impartial trial
in which there is a legitimate and decorous recognition of the substantive rights
of the defendant.'" State v. Savage, 120 N.J. 594, 628 (1990) (quoting State v.
Morriggi, 15 N.J. Super. 479, 481 (App. Div. 1951)). However, a defendant's
decision whether to testify is "an important strategic or tactical decision" to be
made between a defendant and defendant's attorney. State v. Bogus, 223 N.J.
Super. 409, 423 (App. Div. 1988). "It is the responsibility of a defenda nt's
counsel, not the trial court, to advise defendant on whether or not to testify and
to explain the tactical advantages and disadvantages of doing so or of not doing
so." Ibid.
Further, a "trial judge should not discuss the issue directly with a
represented defendant, since that 'may inappropriately involve the trial court in
the unique attorney-client relationship . . . .'" State v. Coon, 314 N.J. Super.
A-2599-21
7
426, 435 (App. Div. 1998) (quoting Bogus, 223 N.J. Super. at 423-24). "'[T]he
better practice [is] for a trial court to inquire of counsel whether [counsel] has
advised a defendant . . . of [their] right to testify.'" State v. Ball, 381 N.J. Super.
545, 556 (App. Div. 2005) (alteration in original) (quoting Savage, 120 N.J. at
631). The trial court "need not engage in a voir dire on the record to establish
[a] defendant's waiver." Ibid. As long as a defendant is represented by counsel,
a judge commits no legal error by failing to address defendant's decision to
testify. State v. Cusumano, 369 N.J. Super. 305, 314 (App. Div. 2004).
Because New Jersey case law does not support his argument on this point,
defendant urges this court to adopt the Hawaii Supreme Court's reasoning in
State v. Torres, 439 P.3d 234 (Haw. 2019). In that case, the Hawaiian court held
"trial courts are required to engage in an on-the-record colloquy with a defendant
when the defendant chooses to testify to ensure that a waiver of the right not to
testify is knowing, intelligent, and voluntary." Id. at 246-47.
We decline to follow the Hawaii Supreme Court's decision. As a
preliminary matter, published opinions from other jurisdictions are not binding
on New Jersey courts. Lewis v. Harris, 188 N.J. 415, 436 (2006). Additionally,
Hawaii requires on-the-record colloquies with a defendant waiving the right to
testify, and deems such a right to be of "equal constitutional stature" to the right
A-2599-21
8
to testify. Torres, 439 P.3d at 236-37, 244-46. However, New Jersey courts do
not require on-the-record discussion related to a defendant's decision to testify
when a defendant is represented by counsel. See Bogus, 223 N.J. Super. at 423.
Here, prior to the start of the trial, the judge asked whether defense
counsel informed defendant of the right to testify. Defense counsel responded
defendant was "likely going to testify," and stated, "we've been contemplating
[the decision] for quite some time." The judge further explained on the record
that defendant had the right to decide if he would testify.
On the second day of trial, defense counsel asked the judge for a ten-
minute recess to speak with defendant regarding defendant's decision to testify.
The judge granted a fifteen-minute recess for counsel to confer with defendant.
The judge stated:
THE COURT: You're going to advise me. If
[defendant] wants to testify, he can go immediately;
okay? If he elects not to testify, I will question him on
that to make sure that it is a knowing, voluntary,
intelligent waiver of his rights; okay? Does that sound
fair to you?
[DEFENSE COUNSEL]: That does.
Defense counsel and defendant then took a twenty-three-minute recess.
Upon returning to the courtroom, the judge confirmed with counsel that
A-2599-21
9
defendant had adequate time to discuss his decision to testify. Specifically, the
judge asked:
THE COURT: Have you had enough time to discuss
this matter in private and with an interpreter with
[defendant]?
[DEFENSE COUNSEL]: Yes, Judge, and I confirmed
that [defendant] had enough time with me, as well.
THE COURT: You did?
[DEFENSE COUNSEL]: Yes, in the presence of both
interpreters.
Having reviewed the record, we are satisfied the judge did not need to
engage in any further colloquy regarding defendant's decision to testify. On this
record, it is clear defendant had ample opportunity to discuss his decision with
defense counsel through the use of Spanish interpreters. Any further inquiry by
the judge may have impermissibly impinged on the attorney-client relationship.
Under the given circumstances, the judge's decision not to engage in a colloquy
with a represented defendant about the decision to testify did not constitute
error, let alone plain error.
Despite not raising the issue to the trial judge, defendant next argues the
judge improperly instructed the jury on joint and constructive possession of a
A-2599-21
10
weapon because the State's evidence was limited to actual possession of the gun
during the robbery. We disagree.
Defendant did not object to the charge during the charge conference.
Further, defendant never raised any objection to the jury charge prior to the jury
commencing deliberations. See State v. Funderburg, 225 N.J. 66, 79 (2016)
(noting Rule 1:7-2 provides that the appropriate time to object to a jury charge
is "before the jury retires to consider its verdict"). "If the defendant does not
object to the charge at the time it is given, there is a presumption that the charge
was not error and was unlikely to prejudice the defendant's case." State v.
Singleton, 211 N.J. 157, 182 (2012).
Here, the judge reviewed the proposed jury charges with counsel several
times. Defense counsel told the judge that he reviewed the entire charge with
defendant through a Spanish interpreter, and defendant "indicated he had no
additional questions" regarding the charges. After instructing the jury, the judge
asked defense counsel if there were any objections. Defense counsel responded,
"[n]o objection. No additional requests."
When a jury has been instructed as to multiple theories of possession and
is not asked to return separate verdicts, a defendant's conviction must be
reversed "unless the State presented sufficient evidence to support a guilty
A-2599-21
11
verdict under both theories." State v. Roldan, 314 N.J. Super. 173, 186-87 (App.
Div. 1998). Under the Model Jury Charges, "actual possession" exists when a
person knows what an object is, has knowledge of its character, and knowingly
"has it on his/her person at a given time" or "has direct physical control over a
thing . . . ." Model Jury Charges (Criminal), "Robbery in the First Degree
(N.J.S.A. 2C:15-1)" (rev. Sept. 10, 2012). In contrast, "constructive possession"
exists where a person "does not physically have the property, but though not
physically on one's person, he/she is aware of the presence of the property and
is able to and has the intention to exercise control over it." Ibid. Further, where
"one person alone has actual or constructive possession of a thing, possession is
sole. If two or more persons share actual or constructive possession of a thing,
possession is joint . . . ." Ibid.
Although the State argued defendant actually possessed the gun used to
commit the robbery, the judge's instruction on joint and constructive possession
was amply supported by the evidence. The State's theory of the case did not
foreclose evidence supporting alternate theories for the jury's consideration,
provided the evidence supported such alternate theories.
The evidence elicited by defense counsel could have supported an
alternative theory that defendant was not the actual robber and the victim
A-2599-21
12
confused defendant's identity with one or more of the other men involved in the
robbery. Based on the trial evidence, defense counsel argued the following to
the jury: (i) the victim's descriptions of the robbers' clothes were inconsistent;
(ii) the victim never gave the 9-1-1 operator a description of the gunman's facial
features; (iii) two of the men involved in the robbery, not including defendant,
were seen near where the handgun was recovered; and (iv) Officer Goldate
observed the four men walking together, but did not see them exchange any
objects.
Additionally, defense counsel emphasized the State's DNA expert testified
the mixture of DNA found on the gun produced stronger matches for two of the
men involved in the robbery than defendant's DNA. While defendant
acknowledged handling the gun the night of the robbery, he claimed he never
used the gun in connection with the robbery.
Based on this evidence, the jury could have rationally agreed with the
defense's theory and found defendant guilty of constructive possession as
defined by the judge in his charging instructions, even if defendant was not the
gunman. Having reviewed the record, we are satisfied the judge's decision to
include charges for actual, joint, and constructive possession were supported by
the evidence and did not rise to the level of error, let alone plain error.
A-2599-21
13
We next consider defendant's argument the judge erred in charging the
jury regarding possession of hollow nose bullets because the charge was
misleading and contradicted the language in N.J.S.A. 2C:39-3(f). Defendant
contends the "knowing" requirement under the statute applied to all elements of
a charged offense, meaning the possession of the gun and that the gun was
loaded with hollow nose bullets. Again, we disagree.
The judge, tracking the Model Jury charge, instructed the jury that it may
find defendant knowingly possessed hollow nose bullets without proving that
defendant actually knew the exact nature of bullets in the handgun. The judge
told the jury that "defendant must know or be aware that he possessed the item.
Here the item's alleged to be ammunition. The State is not required to prove
that at the time he knowingly possessed the ammunition, defendant also knew
that it was hollow nose or dum-dum bullets."
Defendant concedes the judge's instruction tracked the Model Jury charge.
"When a jury instruction follows the model jury charge, although not
determinative, 'it is a persuasive argument in favor of the charge as delivered.'"
State v. Whitaker, 402 N.J. Super. 495, 513-14 (App. Div. 2008), aff'd, 200 N.J.
444 (2009) (quoting State v. Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000)).
As our Supreme Court stated, "[i]t is difficult to find that a charge that follows
A-2599-21
14
the Model Charge so closely constitutes plain error." Mogull v. CB Com. Real
Est. Grp., 162 N.J. 449, 466 (2000).
Defendant correctly notes the Model Jury Charge for possession of hollow
nose bullets cites to State v. Smith, 197 N.J. 325, 338 (2009). However,
defendant misapplies the holding in that case. In Smith, our Supreme Court
construed a "knowing" requirement in a similar firearms offense: N.J.S.A.
2C:39-3(d), which creates an offense when a person "knowingly has in his
possession any firearm which has been defaced." Smith, 197 N.J. at 331
(quoting N.J.S.A. 2C:39-3(d)). In that case, the Court noted the "knowing"
requirement in other weapons-possession offenses has been interpreted as
requiring general knowledge of the item possessed, but not knowledge of any
illegal characteristic. Ibid. The Court further explained, "alternative
phraseology [possession of a defaced firearm] would not have compelled a
different conclusion, particularly in light of the similar phrasing of other
subsections of N.J.S.A. 2C:39-3." Id. at 333.
Having reviewed the record, we are satisfied the judge's instruction that
the "knowing" requirement applied only to possession of the handgun and not
to the possession of hollow nose bullets did not constitute error. The judge
A-2599-21
15
instructed the jury using the Model Jury charge without objection from counsel.
The charge as given in this case was not error, much less plain error.
We next consider defendant's argument that the United States Supreme
Court decision in New York State Rifle and Pistol Association v. Bruen, 597
U.S. , 142 S. Ct. 2111 (2022) rendered New Jersey's handgun permit statute
unconstitutional. We reject this argument.
We recently stated Bruen did not render New Jersey's gun permitting
scheme facially invalid. State v. Wade, N.J. Super. (App. Div. 2023)
(slip op. at 27). In Wade, we addressed the same issue raised by defendant in
this appeal, and determined New Jersey's gun permitting scheme was
constitutional and defendant lacked standing to challenge the permit
requirement because he never applied for a permit. Ibid.
The issue in Wade was whether Bruen wholly invalidated New Jersey's
gun permit scheme. Id., (slip op. at 3-4). Because sections of New Jersey's gun
permit statutes, N.J.S.A. 2C:58-3 and -4, were not dependent on a justifiable
need requirement, which was declared unconstitutional in Bruen, we held the
justifiable need requirement was severable and the remaining portions of the
statute were valid. Wade, ____ N.J. Super. ____ (slip op. at 24-26); see also
N.J.S.A. 1:1-10 (noting the constitutionality of New Jersey's permitting scheme
A-2599-21
16
depends on whether the justifiable-need requirement is severable); Inganamort
v. Borough of Fort Lee, 72 N.J. 412, 423 (1997) (providing a statutory provision
may be severed "where the invalid portion is independent and the remaining
portion forms a complete act within itself"). Because Wade concluded the
provisions of N.J.S.A. 2C:58-4, with the exception of requiring a "justifiable
need" to carry a handgun, remained valid, we reach the same result in this
matter.3
Additionally, we are satisfied the facts in this case are distinguishable
from Bruen. Here, defendant admittedly never applied for a handgun permit.
Notwithstanding that he never applied for a gun permit, defendant argues that if
he applied, a permit would have been issued but for the unconstitutional
justifiable need provision.
3
The day after the Bruen decision, New Jersey's Attorney General issued a
directive advising the justifiable need requirement for obtaining a handgun
permit was no longer constitutional. Attorney General Law Enforcement
Directive No. 2022-07, "Directive Clarifying Requirements For Carrying Of
Firearms In Public" (June 24, 2022). However, that same directive made clear
that Bruen did "not eliminate our overall permitting requirements" nor "change
any other aspect of New Jersey's public carry laws." Ibid. New Jersey's
Legislature also passed a law eliminating the "justifiable need" requirement in
revising the gun permitting scheme. L. 2022 c. 131 (Dec. 2022).
A-2599-21
17
This argument was raised and rejected in Wade. In Wade, we stated
"[g]enerally, to establish standing to challenge an allegedly unconstitutional
permit statute, the challenger must have applied for a permit or license under the
statute." Wade, ___ N.J. Super. ___ (slip op. at 19) (citation omitted).
Moreover, defendant's argument ignores that he had not attained the age
of twenty-one years at the time of the robbery. Because he was not twenty-one
years old, defendant could not have obtained a gun permit if he applied,
regardless of the justifiable need provision. N.J.S.A. 2C:58-3(c). Nor did
defendant demonstrate his ability to satisfy the other requirements under
N.J.S.A. 2C:58-4(c) to obtain a gun permit. See Wade, ___ N.J. Super. ___ (slip
op. at 20–21) (noting the defendant did not submit certifications establishing he
would have satisfied other criteria under N.J.S.A. 2C:58-4(b) and -(c) to qualify
for a gun-carry permit).
Nor do we deem defendant's arguments under the First and Second
Amendments persuasive. The cases relied upon by defendant in support of this
argument involved challenges to gun permitting laws deemed unconstitutional
in their entirety. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151
(1969); Staub v. City of Baxley, 355 U.S. 313, 319, 325 (1958); Lovell v. City
of Griffin, 303 U.S. 444, 452–53 (1938).
A-2599-21
18
In Wade, we rejected the same argument resting upon the same cases as
made by defendant here. In that case, we reasoned that other courts had declined
to wholesale incorporate the application of First Amendment law to a Second
Amendment analysis. Wade, ___ N.J. Super. ___ (slip op. at 22-23). As we
explained in Wade, "law-abiding citizens are not free to ignore a statute and
presume that they would have been granted a permit but for one potentially
invalid provision of a permit statute." ___ N.J. Super. ___ (slip op. at 21)
(citation omitted).
For these reasons, we reject defendant's argument that New Jersey's gun
permit scheme was unconstitutional and provided a defense to the State's case
against him.
We next address defendant's claim the judge erred in applying the
aggravating and mitigating factors in imposing the sentence. Specifically,
defendant contends the sentence was excessive because he was "a youthful
defendant with no criminal history." He also argues the judge "essentially
impos[ed] a penalty" because defendant invoked his constitutional right to
proceed to trial. We reject these arguments.
We review a sentence imposed by a trial court for abuse of discretion.
State v. Miller, 237 N.J. 15, 28 (2019). A sentence must be affirmed "unless:
A-2599-21
19
(1) the sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record;' or (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) (alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
A decision not to plead guilty must "not be considered in withholding or
imposing a sentence of imprisonment." N.J.S.A. 2C:44-1(c)(1). The prohibition
of imposing a "trial-penalty" has been recognized by the United States Supreme
Court and New Jersey courts. See Bordenkircher v. Hayes, 434 U.S. 357, 363
(1978); State v. Jimenez, 266 N.J. Super. 560, 570 (App. Div. 1993).
Here, while the judge mentioned co-defendants during the sentencing
hearing, he did not treat defendant differently as a result of defendant exercising
his constitutional right to proceed to trial. In his sentencing decision, the judge
stated:
I'm going to sentence you significantly more severely
than your colleagues. And that's because your conduct
in this case was qualitatively more serious than the
others. And thus, the sentence should be significantly
longer. The other three individuals pled guilty. They
took responsibility. They negotiated a plea agreement
with the State. They saved the State time and resources.
And the uncertainty of a jury trial. They saved the
victim the difficulty of flying out of the country to come
back here. But most important to the [c]ourt, they
A-2599-21
20
accepted responsibility and owned, to some degree, the
horror that they inflicted on this family and on our
community.
You were the princip[al]. You are the individual who
cocked the gun. You loaded the chamber with hollow-
point bullets. With depravity, it was you who turned
and pointed that handgun at a completely innocent
stranger minding his business, just trying to get to work
at an hour when most of the rest of us are happy and
sleeping. You then . . . stuck [the victim] . . . in the
back with that loaded handgun, while another
ransacked him.
At that moment, [defendant], [the victim] did not know
how this terror would end. Would he - which happens
often - tragically end up dead, and for nothing. If you
had panicked, or decided killing the victim would
reduce the likelihood that . . . you might be caught and
identified, you may very well have pulled the trigger in
a moment of haste, or inadvertently. After all, you
cocked that gun to load it seconds before. You loaded
that gun for a reason.
There's no comparison in terms of culpability of you
versus the other three defendants. You were the only
one with a loaded handgun. You were the only one who
pointed that handgun. You were the only one who
placed that handgun in the individual's back. And
you're the only one who made demands verbally of the
[victim]. Without question, as compared to your . . .
co-defendants, you are the most culpable and caused
the most terror. Since none of the others had weapons,
none of the others could have inflicted the threat of
death, as you did. Two of the others were across the
street as lookouts. Certainly, they played an integral
role in this conspiracy, but nothing in terms of the terror
that you inflicted. The other individual was also
A-2599-21
21
integral, but unarmed. And so, as a result, you have
earned, sadly, a much more severe sentence than your
co-defendants.
Having reviewed the sentencing transcript, we are satisfied the judge did
not impose a trial penalty on defendant for invoking his constitutional right to
assert his innocence by proceeding to trial.
Further, we note the judge properly balanced the sentencing requests.
Defendant requested a ten-year sentence, the minimum for a first-degree
conviction. The State recommended an eighteen-year sentence with an eighty-
five percent parole-ineligibility period under NERA. The judge considered
defendant's "lack of criminal history and his youthful status" and sentenced
defendant to fifteen years subject to NERA, merging the conspiracy charge and
possession of a weapon for an unlawful purpose charge into a single count.
Further, the judge sentenced the defendant to forty-two months of parole
ineligibility on the unlawful possession of a handgun charge, exercising his
discretion to have it run concurrently, although he could have ordered the
sentence to run consecutively. Similarly, the judge did not abuse his discretion
in sentencing defendant to eighteen months on the hollow nose bullet charge,
and running the sentence concurrent to the fifteen-year sentence on the first-
degree conviction.
A-2599-21
22
Based on this record, the judge did not violate the sentencing guidelines
when he sentenced defendant differently from his co-defendants. "[A] sentence
of one defendant not otherwise excessive is not erroneous merely because a co -
defendant's sentence is lighter." State v. Roach, 146 N.J. 208, 232 (1996)
(quoting State v. Hicks, 54 N.J. 390, 391 (1969)).
Nor do we agree with defendant's argument that the judge misapplied the
aggravating and mitigating factors in his sentencing decision. Defendant claims
the judge erred in finding aggravating factor nine, N.J.S.A. 2C:44-1(a)(9)
(specific and general deterrence), substantially outweighed the applicable
mitigating factors, factor seven, N.J.S.A. 2C:44-1(b)(7) (no criminal history)
and factor fourteen, N.J.S.A. 2C:44-1(b)(14) (youth). Defendant further
contends the judge erred in assigning "very little weight" to mitigating factor
fourteen, despite defendant having turned eighteen at the time of the offenses.
"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). We "must not substitute [our] judgment for that of the sentencing court."
State v. Fuentes, 217 N.J. 57, 70 (2014) (citing State v. O'Donnell, 117 N.J. 210,
215 (1989)). In reviewing a sentencing decision, we will affirm unless (1) the
sentencing guidelines were violated; (2) the aggravating and mitigating factors
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were not based upon competent and credible evidence in the record; and (3) "the
sentence was nevertheless 'clearly unreasonable so as to shock the judicial
conscience.'" State v. Liepe, 239 N.J. 359, 371 (2019) (quoting State v.
McGuire, 419 N.J. Super. 88, 158 (App. Div. 2011)). The sentencing court must
"state reasons for imposing [the] sentence including . . . the factual basis
supporting a finding of particular aggravating or mitigating factors affecting
[the] sentence." R. 3:21-4(g); State v. Case, 220 N.J. 49, 65 (2014). A
sentencing court must then "balance the relevant factors, and explain how it
arrive[d] at the appropriate sentence." O'Donnell, 117 N.J. at 215.
Here, the judge applied aggravating factor nine for "it's specific
deterrence." Despite the lack of a criminal record, the judge reviewed the nature
of the offenses, including defendant's "calculated indifference to another human
being" by placing a loaded a gun on a stranger's back. Based on the specifics of
the offenses committed by defendant in this case, the judge explained he gave
"extraordinary weight to specific deterrence." As to general deterrence, the
judge explained, "people need to know that there will be an accounting" for gun-
related crimes and the potential for imposing lengthy sentences.
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During the sentencing hearing, the judge reviewed defense counsel's
requested mitigating factors. The judge expressly took "into consideration
[defendant]'s lack of criminal history and his youthful status."
In imposing the sentence, the judge found, "qualitatively . . . aggravating
factor [nine] substantially outweigh[ed] mitigating factors [seven] and
[fourteen]." Despite the "horrific" crime, the judge did not "believe the sentence
at the higher end of the range of [eighteen] years . . . [was] warranted."
However, the judge also stated that the minimum sentence requested by defense
counsel in "a case of this severity" was not appropriate. The judge reviewed the
facts with care and precision, and stressed defendant and his co-defendants
"sought to terrorize, to take what they wanted, no matter the regard, or lack of
regard, for another human being."
After reviewing the judge's sentencing decision, we are satisfied the
sentence imposed was grounded on competent and credible evidence in the
record, the judge properly weighed and applied the aggravating and mitigating
factors, and the sentence does not shock the judicial conscience.
To the extent we have not addressed any of defendant's remaining
arguments, we deem those arguments to lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
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Affirmed.
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