On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Before Judges Stern, Keefe and Humphreys. Keefe, J.A.D., Dissenting.
The opinion of the court was delivered by HUMPHREYS, J.S.C. (temporarily assigned).
Daniel Harris was walking to his girlfriend's house in Camden around 1:00 a.m. on February 25, 1991. He was suddenly attacked and then abducted by four men. Harris was forcibly taken by car some distance to a vacant lot. He was beaten, terrorized, shot at and robbed. Eventually, he feigned unconsciousness and the criminals left.
Lamont Lee and Michael P. Megargel were arrested and indicted for: first degree kidnapping, N.J.S.A. 2C:13-1b(1); first degree robbery, N.J.S.A. 2C:15-1; possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; unlawful possession of a handgun, N.J.S.A. 2C:39-5b; possession of hollow nose bullets, N.J.S.A. 2C:39-3f; second degree aggravated assault, N.J.S.A. 2C:12-1b(1); unlawful possession of a shotgun, N.J.S.A. 2C:39-5c(1); and conspiracy to commit first degree robbery, N.J.S.A. 2C:5-2 and 2C:15-1.
A jury convicted Lee of all charges (except that Lee was convicted of third degree aggravated assault rather than second degree aggravated assault).
The jury acquitted Megargel of all charges except first degree kidnapping.
The trial Judge conducted a Graves Act hearing, N.J.S.A. 2C:43-6d, and found that the Act applied to both defendants. The Judge sentenced Lee to a prison term of twenty-seven years, nine years without parole eligibility, for first degree kidnapping, and a consecutive five year prison term for unlawful possession of a handgun. Lee was sentenced on the armed robbery conviction to an eighteen year prison term, with a six year parole disqualifier, to run concurrent with the other sentences imposed. All other convictions were merged into his conviction for first degree robbery. Lee will probably be paroled shortly after serving his nine year parole disqualifier term on the kidnapping conviction.
As to Megargel, the Judge stated that he was "clearly convinced" that the mitigating factors "substantially" outweighed the aggravating factors and that the "interest of Justice" required that Megargel be sentenced as if he were convicted of second degree kidnapping. See N.J.S.A. 2C:44-1f(2); N.J.S.A. 2C:13-1c. The Judge sentenced Megargel to a seven year prison term with a three year parole disqualifier. Megargel will be eligible for parole upon service of his three year parole disqualifier term.
Lee appealed his conviction and sentence. We affirmed in a separate opinion.
The State appeals Megargel's sentence contending that the trial Judge abused his discretion in sentencing Megargel as a second degree offender. We affirm this sentence for the reasons stated in Sections I, II and III of this opinion.
Megargel cross-appeals contending that the Judge erred in finding that the Graves Act applied to him. We affirm that finding in Section IV of this opinion.
The Judge's sentence of Megargel as a second degree offender was authorized by the following section of the Code of Criminal Justice.
Criteria for Withholding or Imposing Sentence of Imprisonment.
f. Presumptive Sentences.
(2) In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of Justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted. If the court does impose sentence pursuant to this paragraph, or if the court imposes a non-custodial or probationary sentence upon conviction for a crime of the first or second degree, such sentence shall not become final for 10 days in order to permit the appeal of such sentence by the prosecution. [N.J.S.A. 2C:44-1(f)(2)].
The State contends that the sentencing Judge should not have sentenced Megargel under this section since: (1) the Judge's findings as to the aggravating and mitigating factors were not supported by the evidence; (2) the Judge improperly weighed the aggravating and mitigating factors; and (3) the interest of Justice does not demand that the defendant be sentenced as if convicted of a second degree crime.
The Judge found that only one aggravating factor was applicable to Megargel, i.e., the need to deter him and others from violating the law. N.J.S.A. 2C:44-1a(9). The Judge found six mitigating factors: (1) the defendant's lack of a prior conviction; (2) the defendant's conduct was a result of circumstances unlikely to recur; (3) the character and attitude of the defendant indicate he is unlikely to commit another offense; (4) the defendant is likely to respond affirmatively to probationary treatment; (5) the willingness of the defendant to cooperate with law enforcement authorities; and (6) the defendant's conduct was substantially influenced by another person more mature than the defendant. See N.J.S.A. 2C:44-1b.
The State contends that the Judge erred in failing to find two additional aggravating factors, namely, the nature and circumstances of the offense and the defendant's role therein, including whether or not it was committed in an especially heinous, cruel or depraved manner; and the gravity and seriousness of the harm inflicted on the victim. N.J.S.A. 2C:44-1a(1)(2).
The State also contends that the Judge erred in finding the above mitigating factors, although the State concedes that there is some evidence supporting the Judge's Conclusion that the eighteen year old Megargel ...