March 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE ALVARENGA, DEFENDANT-APPELLANT, AND MELVIN ROLANDO-PADILLA, DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Middlesex County, Ind. No. 05-09-01280.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 15, 2008
Before Judges Fuentes and Chambers.
After a jury trial, defendant was found guilty of conspiracy in the second degree in violation of N.J.S.A. 2C:5-2 (count one); armed robbery in the first degree in violation of N.J.S.A. 2C:15-1 (count two); criminal restraint in the third degree in violation of N.J.S.A. 2C:13-2 (count three); possession of a weapon for an unlawful purpose in the second degree in violation of 2C:39-4(a) (count eight); unlawful possession of a weapon in the third degree, in violation of N.J.S.A. 2C:39-5(b) and 2C:58-4 (count nine); and aggravated assault in the third degree, in violation of N.J.S.A. 2C:12-1(b) (count eleven). The trial court merged count eleven into count two, and provided that sentences on all counts would run concurrently. On count two, the most serious count, defendant was sentenced to fifteen years in prison with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count one, defendant was sentenced to seven years, subject to NERA, plus five years parole supervision at the end of that sentence. On count three, defendant was sentenced to four years. Defendant was sentenced to seven years on count eight and four years on count eleven. Restitution of $405 was ordered to the victim and the requisite fees and monetary penalties were imposed.
The charges arose from events that took place on July 8, 2005, when the victim entered a house of prostitution in New Brunswick, where he was accosted by defendant and two others. A co-defendant pointed a gun at the victim while defendant pushed the victim to the floor. Defendant tied the victim up and took the sum of $550 from his pockets. The victim was then left in a room where two others were also tied up. The victim remained confined for about two hours until he was able to free himself.
On appeal, defendant raises the following arguments:
THE PROSECUTOR'S SUMMATION, DURING WHICH HE:
(1) REQUESTED THE JUROR'S [sic] TO VICARIOUSLY PLACE THEMSELVES IN THE ROLE OF THE VICTIM AND EXPERIENCE THE CRIME; (2) IMPROPERLY BOLSTERED THE CREDIBILITY OF THE STATE'S WITNESSES; AND (3) EXALTED HIS ROLE AS PROSECUTOR AND DISPARAGED DEFENSE COUNSEL, DEPRIVED THE DEFENDANT OF A FAIR TRIAL UNDER THE GUARANTEES OF THE STATE AND FEDERAL CONSTITUTIONS.
A. THE PROSECUTOR COMMITTED REVERSIBLE ERROR WHEN HE REQUESTED THE JURORS TO VICARIOUSLY PLACE THEMSELVES IN THE ROLE OF THE VICTIM AND EXPERIENCE THE CRIME.
B. THE PROSECUTOR'S SUMMATION, DURING WHICH HE IMPROPERLY BOLSTERED THE CREDIBILITY OF THE STATE'S WITNESSES, DEPRIVED THE DEFENDANT OF A FAIR TRIAL UNDER THE GUARANTEES OF THE STATE AND FEDERAL CONSTITUTIONS.
C. THE PROSECUTOR'S SUMMATION, DURING WHICH HE EXALTED HIS ROLE AS PROSECUTOR AND DISPARAGED DEFENSE COUNSEL, DEPRIVED THE DEFENDANT A FAIR TRIAL UNDER THE GUARANTEES OF THE STATE AND FEDERAL CONSTITUTIONS.
THE DEFENDANT WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, SINCE COUNSEL FAILED TO MAKE A MOTION FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE AND DEFENDANT'S CASE. (Plain error-Not Raised Below)
THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN APPLYING AND BALANCING THE AGGRAVATING AND MITIGATING FACTORS IN HIS SENTENCE TO DEFENDANT.
We have carefully reviewed the record and, with the exception of the sentencing issue, are satisfied that the balance of the defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
At the time of sentencing, the trial court weighed the aggravating and mitigating factors under N.J.S.A. 2C:44-1. The trial court found aggravating factor two, N.J.S.A. 2C:44-1(a)(2), namely, that the victim was particularly vulnerable; aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant would commit another offense; and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterrence. The trial court found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), defendant's lack of a prior record.
In weighing these factors, the trial court found that the aggravating factors substantially outweighed the mitigating factors. However, the trial judge still gave substantial weight to the mitigating factor. When he sentenced defendant on count two for first degree robbery, the most serious count, the trial judge stated that it would not be fair to go above the midrange in sentencing because defendant was a first-time offender. He sentenced defendant to fifteen years on that count.
We are required to undertake a "careful and vigorous review" of the sentence imposed by the trial court. State v. Kirk, 145 N.J. 159, 175 (1996). In our review, we must determine whether the sentence is supported by "competent evidence in the record, and whether the sentence is so unreasonable that it shocks the judicial conscience." State v. Paduani, 307 N.J. Super. 134, 148 (App. Div.), certif. denied, 153 N.J. 216 (1998). However, we may not substitute our judgment for that of the trial court. State v. Johnson, 118 N.J. 10, 15 (1990).
Within these limitations, an appellate court can "(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience." [State v. Evers, 175 N.J. 355, 387 (2003) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Our only concern with this sentence is the finding of aggravating factor two. The court found aggravating factor two, stating that the victim was particularly vulnerable because he did not speak English and was visiting a house of prostitution, so he would be unlikely to report the crime. These facts do not meet the statutory standard for this aggravating factor, which applies where "the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance." N.J.S.A. 2C:44-1(a)(2). The victim's inability to speak English or his presence in a house of prostitution does not make him vulnerable under this statutory definition.
The improper consideration of an aggravating factor is grounds for vacating a sentence. State v. Kromphold, 162 N.J. 345, 355 (2000). As the Supreme Court has explained:
It is clear that an error in the sentencing court's determination concerning the existence of any aggravating factors nullifies the weight accorded to such factors and materially alters the calculus in the ensuing balancing of aggravating and mitigating factors. Here, because the sentence of the trial court was based on a determination of the existence of particular aggravating factors for which evidence was lacking, the sentencing formula for weighing the aggravating and mitigating factors was derivatively impugned. [State v. Jarbath, 114 N.J. 394, 406 (1989).]
In light of this law, we are compelled to remand for resentencing. This remand does not necessarily require that the sentence be changed, but rather that the analysis be redone. The trial court should take a fresh look at the aggravating and mitigating factors and impose an appropriate sentence.
Conviction affirmed; remanded for resentencing.
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