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State v. Young

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 27, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LAWRENCE YOUNG, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey Law Division, Essex County, 03-02-651.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2007

Before Judges Stern, A.A. Rodríguez and C.L. Miniman.

Defendant was convicted of aggravated manslaughter, N.J.S.A. 2C:11-4a(1), as a lesser-included offense to murder, and of unlawful possession of a weapon, N.J.S.A. 2C:39-5d. He was found not guilty of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. The weapons conviction was merged into the homicide, and defendant was sentenced thereon to twenty years in the custody of the Commissioner of Corrections with 85% to be served before parole eligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On this appeal defendant argues:

POINT ONE: DEFENDANT'S MISTRIAL MOTION WAS PROVOKED BY PROSECUTORIAL MISCONDUCT[.] A RETRIAL WAS BARRED BY PRINCIPLES OF DOUBLE JEOPARDY AND FUNDAMENTAL FAIRNESS. U. S. CONST. AMENDS V, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 11.

POINT TWO: THE TRIAL COURT ERRED IN NEGLECTING TO INSTRUCT THE JURY ON IMPERFECT SELF-DEFENSE. (Not Raised Below)

POINT THREE: BECAUSE THE INSTRUCTIONS GIVEN TO THE JURY WERE CONFUSING AND BECAUSE THE CHARGES RELATING TO THE KILLING WERE PRESENTED SEQUENTIALLY ON THE VERDICT SHEET, THE JURORS WERE PERFORCE DIRECTED TO CONSIDER PASSION/PROVOCATION MANSLAUGHTER ONLY IF THEY FOUND THE DEFENDANT NOT GUILTY OF MURDER, IN VIOLATION OF STATE V. COYLE. (Not Raised Below)

POINT FOUR: THE ADMISSION OF A HIGHLY PREJUDICIAL, UNAUTHENTICATED LETTER SUPPOSEDLY WRITTEN BY THE DEFENDANT AFTER THE INCIDENT DEPRIVED DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT FIVE: THE SENTENCE IMPOSED ON THE DEFENDANT WAS EXCESSIVE AND MUST BE REDUCED.

In his pro se supplemental brief, defendant also argues:

POINT I: THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION GUARANTEE A CRIMINAL DEFENDANT THE RIGHT TO A TRIAL BY AN IMPARTIAL JURY. THEREFORE, A DEFENDANT IS ENTITLED TO A JURY THAT WILL DECIDE THE CHARGE ACCORDING TO THE EVIDENCE PRESENTED IN COURT AND A JURY THAT IS FREE OF OUTSIDE INFLUENCES. STATE V. WILLIAMS, 93 N.J. 39, 60, 459 A.2d 641 (1983).

I.

It is undisputed that, on May 23, 2002, defendant stabbed Rajhana Young, his girlfriend,*fn1 to death with an eight-inch butcher knife. Defendant claims that he did so in self-defense. The defendant's first trial ended upon defendant's motion for mistrial. The testimony at the second trial reveals the following:

According to defendant, while he was sleeping, Rajhana woke him up by kicking his feet and telling him to get up. Defendant testified that after he got up and went into the bathroom, Rajhana followed him into the bathroom and "pushed the door" which led to a "shoving match." Then defendant claims Rajhana "got mad, [and] start[ed] hitting [him] on top of [his] head." According to defendant, after he pushed Rajhana away, she went into the kitchen, "grabbed a knife," and "stabbed at him" in the chest. Defendant testified that he then "pushed [Rajhana] to the wall," while she was "[s]till like jabbing at [him] with the knife" and he received a "jab wound to [his] chest." However, defendant admitted on cross-examination that he did not require any stitches for the wounds that he received.

Defendant further testified that in holding Rajhana by the wrist and the neck, he was "[j]ust trying to tell [Rajhana] 'Put the knife down.'" Nevertheless, when the police arrived at the door, Rajhana began to yell "'[h]e's killing me. Help me. He's killing me.'"

According to defendant, while they were "tussling," Rajhana "like jabbed at me," he "push[ed her] away [and] the knife went in." Defendant further testified that the knife "[h]it her somewhere up on the head [and] she fell into [him]."

After Rajhana was stabbed, defendant "panicked" and called his mother. However, the police were at the front door by then, and defendant was unable to open the door immediately on their arrival because he was still struggling "for [his] life" with Rajhana. When he was finally able to respond, he "[o]pened the door, the police rushed in," and threw him down. He immediately told the police that "she stabbed me."

Around midnight the night Rajhana died, Christine Olds, a neighbor of Rajhana's, heard "a bang or something falling against the wall" that she and Rajhana "shared." Olds heard Rajhana say "'I am sorry, are you okay? Are you all right?'" Olds testified that she believed it was Rajhana who pushed defendant against the wall because of the fact that Rajhana was apologizing. However, Olds thereafter heard a "scuffling noise" after which Rajhana said "No." Olds testified that "[i]t was almost like a defensive no and then [she] heard [Rajhana] saying 'Help me.'" Believing that Rajhana was calling out for help, Olds called the police.

Olds further testified that "[t]wo or three" police officers showed up outside Rajhana's apartment and attempted to get into her apartment for "[a]bout twenty minutes" before they were able to enter. He believed defendant eventually let them in. Olds overheard defendant's telephone conversation with his mother where he declared that he "'didn't do anything.'"

Officer Robert Dwight of the Newark Police Department was dispatched to the scene at 12:13 am. When he arrived at the apartment, he "knocked on the door," "identified [himself] as police, and asked to open the door." Dwight testified that he banged on the door calling out "'police'" for about "eight [or] nine minutes." The superintendent was called to the scene, and attempted to help the officers get into the apartment, but he was unable to find the correct key.

While waiting outside the apartment, Officer Dwight heard a female voice saying "'You're killing me' in a real soft voice, real low voice." Thereafter, Dwight started to kick the door open. Dwight kicked the door three times before he "heard a noise, some kind of a click . . . and then [the door] came open on the third kick." Officer Dwight recalled testifying before the grand jury that the bolt of the door was opened.

Upon entering the apartment, Officer Dwight observed defendant "backing up" "at a slow pace." Dwight "pulled him on the ground and [] handcuffed him." Dwight then saw Rajhana lying on the floor with her head and chest area surrounded by blood. He asked defendant what happened, and he responded "'[s]he cut me.'" Dwight acknowledged that defendant had "some small cuts or scratches like on his chest," but he was not bleeding. Officer Dwight accompanied defendant to the hospital, and when he left at 8:00 a.m., defendant remained in the hospital.

Officer Ricardo Castro of the Newark Police Department also arrived on the scene that night. He also waited outside the door as Officers Dwight and Daniels banged on the door and tried to kick it open. Castro also "heard a female voice saying 'He's killing me'" and a male voice saying "'[t]he Police are at the door right now.'" Officer Castro rendered medical assistance to Rajhana after entering the apartment, until the ambulance arrived about ten or fifteen minutes later. Castro testified that "he was told" that defendant had "injuries to his chest," but Castro did not see the injuries.

Detective Michael Demaio of the Newark Police Department investigated the crime scene after Rajhana and defendant had been taken to the hospital. Detective DeMaio observed that the latch to the front door "was broken and split" which led him to conclude that the door was "forced open." Upon entering the apartment, DeMaio observed in the hallway "blood pools and smears on both walls," a pillow on the floor with blood on it, and an eight inch knife on the floor with blood on it. As he proceeded into the living room, he observed some blood smears on one of the couches and a phone which was off the receiver on the floor.

Roxanne Young, Rajhana's mother, testified about a letter she claimed to have received through the mail at her home address from defendant "sometime in August of 2003." Ms. Young testified that she never gave defendant her address, but he had been to her house. She identified her address on the envelope as well as a return address with defendant's name, prison identification number and the address of the New Jersey State Prison. The envelope was postmarked "August 11th, 2003, Trenton, New Jersey." Roxanne admitted that she knew defendant "was in jail [because she] went on the internet and looked." When asked on cross-examination if "his state number and date of birth" was available on the internet, she responded "I guess so.

The letter began by stating "Sister Zakiyyah." Ms. Young testified that "everybody" referred to her as "Zakiyyah," and when defendant was in her presence, others would have likely referred to her as "Zakiyyah." The letter also referred to her as "Mrs. Young," stating "I don't even know how I should address you." The letter continued "I can't even begin to tell you how I feel about what occurred but I pray that one day I be allowed to where I can . . . sit down to explain to you exactly what took place. Sister Zakiyyah, you and I and everyone who know of me and Rajhana's relationship knew what we meant to each other."

The letter continued in an apologetic manner, thanking Ms. Young as well as "Brother Rajhana," her ex-husband. The letter continued "'[w]e were so meant for each other, so much, a lot. We were born with the same last name four years and seven days apart." The letter expressed remorse stating "I never meant for what happened to happen. This was an accident that got out of control." He referred to his "remorse" and that he had Rajhana and her family "in [his] prayers." He also asked for a picture of Rajhana because he "miss[ed] her so much." The letter also stated that "since May 23, 2002, my life has or never will be the same." The letter concluded "Happy Birthday Rajhana." Rajhana was born on August 14, 1973.

With the possible exception of defendant's birthday, Ms. Young did not believe that there was anything said in the letter that would have been known only by defendant. She was not sure whether her address and phone number were listed in the phone book in August of 2003. She also identified a postcard that she received from defendant, and testified that she believed the handwriting was the same. She believed defendant had written the letter.

II.

In his written opinion of May 2, 2004, the trial judge explained that he granted a mistrial during the first trial due to "the cumulative effect of what [had been improperly] placed before [the] jury." The incidents during trial that led to the mistrial were described as follows:

1. Prosecutor mischaracterized during her opening statement that the jury would hear Christine Olds testify that Rajhana was "crying out for help," and asked Olds if she heard the victim "pleading" when there was no basis therefor.

2. The prosecutor stated during her opening argument that defendant was "cuffed and carried" out of the apartment, but was not.

3. The prosecutor asked Officer Dwight if he ever heard defendant "scream for assistance" when there was "no good faith basis to ask that question."

4. The prosecutor asked Officer Castro a leading question on direct embodying a "mischaracterization:" "you testified, Officer, that prior to entering the apartment, you heard her screaming" and heard her "cry for help."

5. The prosecutor elicited testimony from Detective DeMaio that while at the hospital defendant was "uncooperative."

6. Detective DeMaio testified that he obtained defendant's height and weight from defendant's criminal history report, suggesting that he had a record.

The prosecutor had argued against defendant's motion for a mistrial. The prosecutor took the position that no inadmissible evidence was presented to the jury, no "prejudice" resulted to defendant, and that, in any event, the judge's instructions cured any errors. As such, she argued that the "incidental errors" present in the case did not give rise to "cumulative" errors which warranted a "mistrial."

Defendant argues that the "evidence shows that the prosecutor's misconduct and overreaching was intended to goad defendant into moving for a mistrial." Defendant contends that the State stood to benefit from a mistrial because two lay witnesses and a medical examiner were not available to testify for the State at the time of the first trial. According to defendant, the unavailability of these witnesses led the State to request two adjournments, both of which were denied. Defendant also argues that the cumulative errors in addition to the repeated errors made by the prosecutor during the first trial demonstrates that the prosecutor was attempting to "goad the mistrial."

The prosecutor now argues to us that "[t]here was no showing of intentional overreaching or misconduct by the State." According to the State, the reference by Detective DeMaio to defendant's criminal history record came as a surprise to the prosecutor. The State argues further that there was no tactical advantage in attempting to end the trial at the time Detective DeMaio was testifying "because he would have been the last fact witness." Further, the State maintains that "[t]he prosecutor actively and strenuously opposed the mistrial."

The federal and state constitutions protect a defendant from being prosecuted twice for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717; 89 S.Ct. 2072, 2076; 23 L.Ed. 2d 656, 664-65 (1969); N.J. Const. art. I, ¶ 11. New Jersey's constitutional protection is co-extensive with the federal, and generally a defendant's motion for mistrial constitutes a waiver of double jeopardy and permits continuation of the proceedings. State v. Gallegan, 117 N.J. 345, 358 (1998); State v. Torres, 328 N.J. Super. 77, 91 (App. Div. 2000); State v. Cooper, 307 N.J. Super. 196, 201 (App. Div. 1997).

Under the Double Jeopardy clauses, there is a bar to re-prosecution when "an errant prosecutor, sensing that completion of the trial will result in an acquittal, may purposely 'goad the [defendant] into requesting a mistrial.'" Torres, supra, 328 N.J. Super. at 86 (citing United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed. 2d 267, 276 (1976)). Thus the constitution "bars retrials where 'bad-faith conduct by judge or prosecutor,' threatens the '[harassment] of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant." Ibid. (internal citations omitted). However, "only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed. 2d 416, 425 (1982). See also State v. Blanks, 190 N.J. Super. 269, 278 (App. Div. 1983); also State v. Cooper, supra, 307 N.J. Super. at 202 (no bar to retrial after violation of sequestration order); State v. Andrial, 203 N.J. Super. 1, 9 (App. Div. 1985) (citing State v. Johnson, 42 N.J. 146, 162 (1964)). Defendant has not demonstrated a basis for reversal.

During defendant's motion for reconsideration of the holding that double jeopardy did not bar retrial, the trial judge intimated that the prosecutor in some of her statements had been "fast and loose with the facts." However, the trial judge also found that the prosecutor "was actively arguing and defending her position" with regard to the errors she was found to have made. The trial court continued:

I don't like to be critical of attorneys, but I can't help but be critical of the way this case appeared to have been prepared or not prepared. I don't think the witnesses were interviewed to the extent that maybe they should have so that certain things that were blurted out during this trial were prevented from happening or alternatively, that these witnesses had been interviewed in the weeks before the trial, as opposed to maybe the days or during the trial, we would not have had the problems where there seemed to be more miscommunication between the prosecutor.

I suspect, that's all it can be, that some of these witnesses weren't asked certain questions and certain areas weren't explored. So when it came out in the trial . . . it appeared to me that [the prosecutor] was as surprised as anyone else in this courtroom when some of those things came out. And as we do know, one of the witnesses that she prepared before the trial, she learned, for -- for the first time, according to what she told us, that this particular witness had more to testify to, quotes attributable to the defendant, [than] were in the police reports. Well, that's not unusual that there may be more that was said then that's in the police report, unfortunately that's not unusual, but proper preparation should have discovered all of that stuff weeks or months before the trial and it be provided to the defense attorney.

So I'm -- I'm satisfied that this trial resulted in a mistrial, not because of some plan or scheme by the prosecutor to goad the defense or to provoke the defense into making this motion, but as [the current prosecutor] candidly admitted [at argument], it -- seemed to be a lack or preparation.

And I'm satisfied that that really is what occurred here. That's the Court's opinion.

And as such, your motion for reconsideration is denied.

We find no basis for disturbing this conclusion. This is not a case in which the prosecutor was clearly in fear that the State's evidence was not being admitted or that an acquittal would result. In fact, the State had not yet rested, no defense had been presented, and there would have been no basis for the justification of self-defense by the time the mistrial was granted.

III.

Defendant argues that the trial court erred in failing to instruct the jury on "imperfect self-defense." According to defendant, because "the State was alleging a purposeful or knowing killing, it was critical for the jury to know that if the State was right in that regard but the killing was committed in the heat of the moment in an ill-advised, but honest, attempt to defend himself, defendant might well be guilty only of passion/provocation manslaughter."

By contrast, the State argues that "imperfect self defense should never be charged as a defense for murder or its lesser-included offenses." According to the State, where there is "evidence in the record to support an honest but objectively unreasonable belief that deadly force was necessary, then the court must charge the lesser included offenses that do not require acting knowingly . . . or purposely" as well as those that do. The State contends that the trial court did just that in accordance with the mandate of State v. Bowens, 108 N.J. 622 (1987).

Before the jury was charged, both counsel agreed to the trial court's proposed jury charges on murder and the lesser-included offenses of aggravated manslaughter, reckless manslaughter and passion/provocation manslaughter, as well as self-defense. Defendant does not take issue with the trial court's charge to the jury on self-defense. Rather defendant contends that an instruction on imperfect self defense should have been given as well. We find no plain error.

In State v. Bowens, the Supreme Court held that "imperfect self-defense" did not exist as a defense under the Code of Criminal Justice, and the Court was unwilling to "create a new substantive category of culpability absent clear legislative intent to do so." Bowens, supra, 108 N.J. at 627. However, the Court held that evidence that would support a finding of imperfect self-defense "is frequently relevant to the presence or absence of the essential elements of Code offenses." Id. at 626. The Court explained that while imperfect self-defense could not be charged to the jury as an affirmative defense, the jury should be permitted to consider all available verdicts supported by the evidence that defendant lacked the culpability to support a murder conviction, including an honest but unreasonable belief in the need for self-defense. Id. at 640.

The trial court in Bowens reviewed the appeals of two separate defendants who claimed that the jury was improperly charged on self-defense. Id. at 626. One of the defendants, Rivers, who was convicted of aggravated manslaughter, requested a jury charge on imperfect self-defense, but "did receive jury charges on the available verdicts for which there was a reasonable basis in the evidence."*fn2 Ibid. The Court approved the trial court's refusal to charge the jury on imperfect self-defense. Id. at 636. It found that Rivers "was entitled to have the jury consider the evidence of his honest, if not reasonable, belief in the necessity to use force if in fact the evidence bore upon the question whether the State had proven that he acted purposely or knowingly." Ibid. This right was satisfied when the jury was instructed on the alternate verdicts to murder of reckless manslaughter and aggravated manslaughter. Id. at 637.

The other defendant, Bowens, was denied a jury charge on imperfect self-defense as well as aggravated and reckless manslaughter, stemming from a murder indictment. Bowens was then convicted of murder. Id. at 640. The Court again held that the trial court correctly denied the defendant a charge on imperfect self-defense. However, because the Court found that the evidence presented at least a rational basis for concluding that defendant did not have sufficient culpability to have acted purposefully or knowingly, and was therefore guilty of reckless manslaughter or aggravated manslaughter as opposed to murder, it agreed with the Appellate Division that the defendant's murder conviction had to be overturned. Ibid.

In State v. Pridgen, 245 N.J. Super. 239 (App. Div. 1991), we reversed the defendant's conviction for aggravated manslaughter as a lesser-included offense to murder because the trial court failed to charge the jury on passion/provocation manslaughter where there was evidence to support such a charge (which is based on a purposeful reaction to the ongoing circumstances), 245 N.J. Super. at 250. We added that at the retrial, "instructions on imperfect self-defense, to the extent authorized in State v. Bowens, should not be given with respect to the crimes of aggravated manslaughter or reckless manslaughter." Id. at 248. Stated more appropriately, the imperfect self-defense instructions should be given in terms of addressing the required culpability when purposeful or knowing conduct is an element, but not independent of or in addition to the required culpability when reckless conduct is an element.

Here, the trial court properly, and without objection, instructed the jury on murder, reckless manslaughter, aggravated manslaughter, and passion/provocation manslaughter, as well as self-defense as a complete defense. As such, the jury was given the opportunity to consider all available verdicts that could be rationally supported by the evidence, Bowens, supra, 108 N.J. at 641, and the jury could assess defendant's culpability including whether his act was based on honest but unreasonable conduct. As passion/provocation was charged, unlike in Pridgen, and defendant was convicted of an offense involving reckless culpability, we find no basis for reversal. This is particularly true because, given the sequential charge and verdict sheet, the defendant had to have been found not guilty of passion/provocation manslaughter before the jury reached its verdict on aggravated manslaughter.

IV.

In charging the jury on the definition of murder, the trial court first explained that to find defendant guilty of murder, the jury had to find that defendant had purposely or knowingly caused the victim's death or serious bodily injury resulting in death, and it had to determine that defendant "did not act in the heat of passion resulting from a reasonable provocation." The trial court then reiterated that if the jury found that defendant's actions satisfied the first two elements of murder and then determined "that [defendant] did not act in the heat of passion resulting from a reasonable provocation, [then] the defendant would be guilty of murder." The trial court continued

If, however, you find that the defendant purposely or knowingly caused death or serious bodily injury that then resulted in death and that he did act in the heat of passion resulting from a reasonable provocation, then in that event the defendant would be guilty of passion/provocation manslaughter.

In order for you to find the defendant guilty of murder, the State is required to pro[ve] each of the following elements beyond a reasonable doubt: That [defendant] caused Rajhana Young's death or serious bodily injury that then resulted in Rajhana Young's death; Two, that [defendant] did so purposely or knowingly; and Three, that [defendant] did not act in the heat of passion resulting from a reasonable provocation.

Thus, in the trial court's instructions to the jury on murder, it explained to the jury that if it determined that defendant had acted in the heat of passion, it could not find defendant guilty of murder. Then the trial court provided the jury more in-depth instructions on each element of murder. The trial court again instructed the jury that the State "must prove beyond a reasonable doubt to find the defendant guilty of murder [] that the defendant did not act in the heat of passion resulting from a reasonable provocation. Passion/provocation manslaughter is a death caused purposely in the heat of passion resulting from a reasonable provocation." The trial court then went through the four factors constituting passion/provocation manslaughter and explained to the jury that the State need only prove the absence of one of these factors beyond a reasonable doubt, to prove that defendant was guilty of murder.

In explaining to the jury what would be listed on the verdict sheet, the trial court stated that the verdict sheet says that if "you find the defendant guilty of murder move on to count two. If, however, you find the defendant not guilty of murder, consider the following: Passion provocation manslaughter of Rajhana Young, guilty, not guilty." The verdict sheet also reflected this same instruction.

Defendant complains that the last instructions given to the jury regarding the verdict sheet, in combination with the verdict sheet itself, made the "clear indication to the jury [] that they should not deliberate on a charge until and unless they found defendant not guilty of the previous charge." Defendant argues that these errors resulted in "preclud[ing] or inhibit[ing] proper consideration of passion/provocation manslaughter as a lesser-included offense of first-degree murder, in direct violation of . . . State v. Coyle, 119 N.J. 194 (1990) [as well as] defendant's Fourteen[th] Amendment due process and fair trial rights and his corresponding rights under this State's Constitution." He further suggests that the jury was directed by the verdict sheet to consider passion/provocation manslaughter only if the State did not prove him guilty of murder, as opposed to the other way around. Defendant concedes that no objection was made to the trial court's instructions or the verdict sheet, but maintains that these errors amount to plain error warranting reversal under R. 2:10-2.

Defendant relies on Coyle, supra, 119 N.J. 194, as well as State v. Reed, 249 N.J. Super. 41 (App. Div. 1991) for the proposition that in cases where a defendant is accused of murder, "a sequential charge coupled with an instruction that inadequately defines the elements of the greater offense, namely, murder, can mislead the jury," and is inadequate.

Coyle, supra, 119 N.J. at 224. However, given both the instructions and verdict sheet, defendant cannot complain in this case because he was acquitted of murder and passion/provocation manslaughter before the jury reached aggravated manslaughter, a greater offense than passion/provocation manslaughter.

V.

In deciding to admit the letter to Ms. Young, the trial court stated:

Although there is no information in this letter that would be uniquely known by [defendant], given the factual background there is certainly an abundance of information in this letter that reflects upon the relationship that existed between [defendant] and Miss Young. The reference to the birth dates, the reference to the age differences, the references to the . . . incidents, the nature in which this letter itself, the contents of this letter certainly draws an inference that it may have been written by one person who was involved in an incident such as the defendant, it reflects the date of that.

He's seeking an apology among other things from the mother of the dec[e]dent. Although the information is not unique information that would be known by the defendant, I am satisfied that the accumulation of the information, the names, the references, th[e] relationships, dates, knowledge of the incident, certainly leads to [a] reasonable inference that this defendant authored the letter.

I find the letter is admissible. It is authenticated to the satisfaction of this Court through the circumstantial evidence.

Defendant argues that the letter was not properly authenticated and deprived him of his right to a fair trial. According to defendant, because the State did not produce any witness to identify that the handwriting in the letter was that of defendant's and there was insufficient circumstantial evidence to prove that defendant wrote the letter, defendant's conviction must be reversed.

"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." N.J.R.E. 901. In admitting the letter into evidence, the trial court concluded that "[a] writ[]ing may [] be authenticated indirectly on the testimony that one has received a letter signed with a person's name and that the letter has divulged intimate knowledge of information which one would expect only the person who [is] alleged to have been the writer or the participant to have." We agree, and find no abuse of discretion. See State v. Porambo, 226 N.J. Super. 416, 428 (App. Div. 1998).

Defendant testified that he wrote the letter in question. However, we do not rely on his testimony to sustain the prior admission of the letter.

VI.

The State filed a timely motion for an extended term pursuant to N.J.S.A. 2C:44-3. The trial court found that he was eligible for an extended term. However, because defendant's previous crimes were all non-violent, the trial court denied the motion, and imposed a sentence at the midpoint (or former presumptive sentence) of the range for aggravated assault. See N.J.S.A. 2C:11-4c, 2C:44-1f(1)a. Hence, there is no basis for a remand order. State v. Natale, 184 N.J. 458 (2005).

A trial court's sentence should not be overturned absent a "clear abuse of discretion." State v. Roth, 95 N.J. 334, 363 (1984). As long as the fact-finding is "grounded in competent, reasonably credible evidence," and the trial court applies "correct legal principles," a trial court's sentence should not be disturbed, unless the sentence is "clearly unreasonable so as to shock the judicial conscience." Id. at 363-65. An appellate court should not substitute its judgment in deciding what the sentence should be, but rather should only reverse if based on the evidence, "no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). This is not such a case.

VII.

We find no need to discuss the point raised in defendant's pro se supplementary brief. R. 2:11-3(e)(2). The judgment of conviction and sentence are affirmed.


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