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State v. Campon

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 28, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOSEPH M. CAMPON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-03-0212.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 6, 2008

Before Judges Cuff, Lisa and Lihotz.

Defendant, Joseph M. Campon, was seventeen years old on the date of the incident underlying the charges in this case. A juvenile complaint was first issued, after which defendant was waived to adult court and indicted for (1) first-degree murder, N.J.S.A. 2C:11-3a(1) or (2); (2) third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4d; (3) fourth-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5d; and (4) third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3b(1). The case was tried to a jury, but a mistrial was declared after the jury was deadlocked and unable to reach a verdict. Defendant then moved for judgment of acquittal on count one. Judge Batten granted the motion and amended count one to charge first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a(1). We denied the State's motion for leave to appeal from the order acquitting defendant of murder.

Defendant was tried on the amended indictment. On count one, the jury acquitted defendant of aggravated manslaughter, but found him guilty of the lesser-included offense of second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1). The jury acquitted defendant of count two, and convicted him of counts three and four. After denying defendant's motion for a judgment notwithstanding the verdict or for a new trial, the judge sentenced defendant on count one to a term appropriate to a crime one degree lower than that for which defendant was convicted, see N.J.S.A. 2C:44-1f(2), of four years imprisonment, subject to an 85% parole disqualifier and three years parole supervision upon release, pursuant to the No Early Release Act. See N.J.S.A. 2C:43-7.2. The judge imposed concurrent terms of nine months on count three and three years on count four.

On appeal, defendant argues:

POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO ELICIT RELEVANT TESTIMONY INVOLVING THE VICTIM PURSUANT TO N.J.R.E. 404(b).

POINT II THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT PREJUDICIAL AND INADMISSIBLE TESTIMONY PURSUANT TO N.J.R.E. 803(c)(1).

POINT III THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNT I CHARGING AGGRAVATED MANSLAUGHTER.

POINT IV THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF RECKLESS MANSLAUGHTER WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE.

POINT V THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR SUCH LAWFUL USES AS IT MIGHT HAVE INTO COUNT I INVOLVING RECKLESS MANSLAUGHTER.

POINT VI THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We reject these arguments and affirm.

I.

This case stems from the death of nineteen-year-old Christopher Loftus on July 2, 2001 in Cape May. Defendant admitted stabbing Loftus, resulting in his death, but he maintained that he acted in self-defense.

About thirty to forty members of defendant's extended family were spending a one-week vacation in Cape May. Some friends of family members were also included. The group rented a home on Stockton Avenue. Adam Kessler, a seventeen-year-old friend of defendant, was part of the group. During the day of July 2, 2001, the group conducted a scavenger hunt, and as part of the activity, defendant and Kessler wore play wigs.

That evening, at about 10:30 to 11:00 p.m., defendant, Kessler, defendant's sister, Serena Campon, his cousin, Carly Campon, and their friend Ashley Pitts (all aged sixteen), went to an arcade on the promenade. Defendant and Kessler, still wearing their wigs, played video games, while the girls stood nearby. Two boys approached the girls. The boys were intoxicated. They attempted to pick up the girls, suggesting they would take them to a party. The girls declined and were uncomfortable in the situation. One of the boys put his hand on Serena's shoulder. The boys were Loftus and his eighteen-year-old friend, Matthew Small, both Cape May residents.

In an aggressive voice, Loftus shouted to defendant and Kessler, "Where are you fucking faggots from?" Continuing in a belligerent and threatening tone, Loftus said, "Yeah that's what I said, and if you have a problem with it, we can take this outside." Loftus and Small left the arcade, crossed the promenade, and jumped over a railing to the sidewalk along Beach Avenue, several feet below the level of the promenade. As they were leaving, one of the two said words to the effect that they would go where there were no cops around. Defendant and Kessler followed, also jumping over the rail to the sidewalk. The girls remained behind for a time, after which they walked along the promenade to a ramp and then followed in the same direction at a significant distance behind the group of boys.

According to defendant, who testified at trial, his initial reason for following after Loftus and Small was that he expected an explanation for their unprovoked comments and behavior toward him and Kessler. He acknowledged, however, that he realized a fight was a possibility. Loftus and Small were bigger than defendant and Kessler.

Loftus crossed Beach Avenue, followed by defendant, then Small and Kessler. According to defendant and Kessler, when Loftus reached the other side of Beach Avenue, at the corner of Howard Street, Loftus removed a wine bottle from a recycling can. At that time, defendant was in the middle of Beach Avenue, and he now knew it was "fairly certain" that a fight was in the offing. Nevertheless, he continued across the remainder of Beach Avenue and followed Loftus up Howard Street. The two sets of boys continued to exchange hostile comments as they walked. Loftus was calling defendant a "shoobie," meaning an out-oftowner. Defendant acknowledged that there were many people in the arcade and in other business establishments on the promenade that were open. Nevertheless, he did not go back "because the arcade didn't seem to [him] at that point a very safe haven." He contended that was in the general direction of the house his family was renting.

Small and Kessler continued to follow behind defendant. When Kessler passed the recycling can, he removed a wine bottle and carried it with him. A car containing two young men, Michael Copson and George Durante, friends of Loftus and Small, pulled up. Small made a gesture by punching his fist into the palm of his other hand, which was interpreted as a sign that there was going to be a fight, and he may have also said to the boys in the car that there was going to be a fight on the street. Copson and Durante drove a short distance and parked the car, after which they returned to the location of the other four boys.

Two separate physical altercations then took place, one between defendant and Loftus, and the other, across the street, between Small and Kessler. By this time, the three girls were about one-half block away, and they all acknowledged that although they saw a commotion, they could not see what transpired between defendant and Loftus. At some point, they saw Loftus fall to the ground and saw defendant run away. Varying descriptions of the fight between defendant and Loftus were given by defendant, the three boys at the scene and three vacationers who happened to be in the vicinity.

Kessler explained that he was preoccupied with Small, with whom he was paired off. He said Small kept taunting him to hit him with the bottle and backing him up. Kessler continued backing up, crossing the street diagonally, and his field of vision was focused only on Small. Therefore, he did not see what was going on between defendant and Loftus. Kessler finally swung the bottle at Small, missing him, losing his balance and falling to the ground. He lost hold of the bottle and could not say whether it broke when it hit the ground. Kessler said the other two boys, Copson and Durante, then began charging at him. He quickly stood up, grabbing what he believed to be a different bottle from the ground and began waving it to fend off Small. At that point, an individual later identified as Anthony Brown, who testified at trial, came up to Kessler and Small urging them to end their confrontation and telling them that someone was down across the street. That someone was Loftus, who defendant had stabbed. Throughout the entire episode, Kessler did not see what happened between defendant and Loftus.

According to Small, as the four boys crossed the street leaving the promenade, antagonistic and derogatory comments were being exchanged among them, and he believed there was going to be a mutual fight. Small saw Kessler remove a wine bottle from the recycling container as they walked. He acknowledged telling Copson and Durante "that we were going down there to fight." He said the two pairs then squared off with each other. He acknowledged taunting Kessler, challenging him to hit him with the wine bottle. Small testified that, as the two pairs were squared off:

I looked over and I saw that the one that Chris was squared up with pulled out a knife and had it pointed towards Chris. And I kind of shrugged it off and didn't think anything of it and maybe said, like, oh, he's not going to do anything with that or something. And then I turned to the kid that I was fighting and started pushing him and, like, basically telling him to fight me.

I was advancing and he was, like, backing up.

Small said that after he turned away from defendant and started fighting with Kessler, he "didn't see anything else that was going on behind [him]." He then said that either Copson or Durante called out from behind him that Loftus had been stabbed. He turned around and saw Loftus on the ground. Defendant ran away.

Small denied that Loftus had a bottle in his hand before beginning the physical fight with defendant. Although he saw Kessler remove a wine bottle from the recycling can, he did not see Loftus remove one when Loftus walked by that can. When pressed on whether he specifically did not see Loftus holding a wine bottle or whether he only did not remember seeing him with a bottle, this colloquy ensued:

Q: Chris crosses the street. These two kids are following behind. And you're there in the mix, too.

A: Yes.

Q: Chris grabs a bottle.

A: I don't remember seeing Chris grab a bottle.

Q: So you don't know how a broken wine bottle got his blood on it, then, do you?

A: His blood was everywhere that night.

Q: Oh, I see. Where he wasn't laying, you don't know how his blood got on the wine bottle, do you?

A: The wine -- what? The wine bottle that the kid I was fighting?

Q: Maybe the wine bottle he was holding.

A: I don't remember seeing Chris with a wine bottle in his hands.

Q: You just don't remember.

A: The last time I saw Chris, when he was still on the curb, I didn't see anything in his hands.

Q: Well, let's not talk about when he was on the curb, then, but let's talk about from the time he passed the recyclable can. You don't recall whether he had a wine bottle. Isn't that true?

A: I didn't see it. No.

Q: You know he didn't or you didn't see it.

A: I didn't see -- like I don't recall, from walking past the recyclable bin, but when I last saw Chris, when he was squared up, I didn't see any bottle in his hands.

Q: How far were you from him?

A: When I last saw him?

Q: When you last saw him.

A: Maybe two feet.

Q: And were you in the street, both of you, crossing over to these kids?

A: No. He was --

Q: Still on the curb.

A: I'm pretty sure he was still on the curb and --

Q: Okay. So the last time you see him, he's on the curb or the sidewalk; you're crossing the street to get your kid.

A: Yes.

Q: And you just don't remember if he had a wine bottle that he picked up then or had one all along, right?

A: I'm pretty sure I would've noticed if he had it all along.

Q: Well, if you were looking and you were concerned, maybe, but he could've had one and you just didn't know it, right?

A: Yes.

Q: You're not saying that you are so lucid and sure that you know he didn't have one, right?

A: Yes.

Therefore, the import of Small's eyewitness testimony was that he did not see the physical altercation between defendant and Loftus, that when defendant and Loftus squared off, he saw a knife in defendant's hand and saw nothing in Loftus' hands, and that he did not see the physical fight between them.

Copson said that as he and Durante were walking up the street from where they parked the car, about one-half block away, he saw Small on one side of the street paired up with Kessler, who had a wine bottle in his hand. He did not see any weapons in anyone else's hands, and he and Durante made their way over toward Small and Kessler. As they were doing so, he saw Loftus stumbling by, holding his stomach, and falling to the ground. Defendant was running down the street away from the scene. Thus, Copson also did not see the actual fight between defendant and Loftus.

Durante said that after they parked the car he and Copson began walking toward where Small said the fight would take place. From a distance of about one-half block, he first saw the two pairs of combatants and they were already fighting. He heard Small say, "There's a knife." He saw Loftus fall to the ground and defendant run away from the scene.

Defendant acknowledged having a folding knife with a four inch blade in his pocket. He used the knife in his work in New York, and brought it with him on the vacation. He contended that the tip of the blade was slightly bent because he used it earlier that day to repair a chain on a bicycle.

Defendant said that at some point as he was following Loftus up the side street, he realized the situation was getting serious, a fight was likely, and Loftus was holding a wine bottle. He stopped and decided not to proceed any farther and began to cross the road toward Stockton Avenue. He specifically was cognizant at that point that he had the knife in his pocket. He then heard footsteps coming from behind him, turned and saw Loftus charging toward him from Howard Street, with the wine bottle in his hand. When Loftus got close, he swung the wine bottle toward defendant's head, but did not hit him.

Defendant reached into his pants pocket and removed the knife with his right hand, shielding Loftus, who continued to swing the bottle but without making any contact with defendant, with his left hand. Defendant believed "it was too late to turn my back and run, because he was so close that if I turned my back, I could have been struck from behind, and who knows?" Defendant opened the knife and as Loftus came toward him he stabbed him in the area of his hip. It was later learned that he inflicted a puncture wound which ended at Loftus' pelvic bone, and which had the capacity of bending the tip of the knife. Loftus continued coming toward defendant, swinging the bottle with one hand and swinging his other hand in a closed fist. Defendant believed he was punched in the head at least one time, but there was no contact with the bottle. As this was happening, defendant inflicted several more stab wounds, including three to the torso, one of which penetrated the heart, causing Loftus's death.

Defendant denied that Loftus ever grabbed hold of him or tackled or knocked him to the ground during the altercation. As Loftus fell to the ground, defendant got away from him and ran away. As he ran back toward the rental house, he folded the blade of the knife and threw it in a recycling container, where it was later recovered by the police. When he got back to the house, he washed the blood from his person and removed his blood-stained clothing.

The three stab wounds to the torso each penetrated two to three inches. One penetrated the space between the first and second ribs on the left side, cutting through the muscle and connective tissue, penetrating the lining membrane of the chest cavity and entering into the chest cavity. Another penetrated the costal cartilages connecting the sternum to the ribs, went through the sixth and seventh ribs into the pericardium (the sac around the heart) and continued into the right ventricle. Another penetrated the eighth costal cartilage, went through the diaphragm and into the liver. The initial stab wound penetrated only one to two inches before being stopped by the pelvic bone.

In addition to these penetrating stab wounds, defendant also inflicted some incised wounds, in which the edge of the knife's blade was drawn across the surface of the skin. The post-mortem examination of Loftus revealed a .26% blood alcohol content.

Defendant contended that he conducted himself as he did toward Loftus because he was "just basically [trying to] keep him from, you know, smashing my head in with the bottle." As part of defendant's self-defense evidence, he presented an expert who testified that the stab wounds were made at a defensive angle, and were not made with as great a force as they could have been, as evidenced by the lack of bruising at the surface had the knife been pushed in the full length of the blade. Defendant also presented a forensic psychiatrist who testified that defendant, who had never been in a fight before, was "scared out of his mind." Notably, although Loftus was bigger than defendant, defendant played some high school sports and suffered no injuries in this fight. The defense also presented a toxicologist, who opined that Loftus was highly intoxicated based upon his blood alcohol content, which would tend to result in diminished restraint and judgment and slower response time.

The three vacationers who were independent eyewitnesses to the fight gave varying accounts of what they saw. In each case, their observations were incomplete with respect to what transpired between defendant and Loftus, and their vantage points were not the best.

Frank Licata and his family were vacationing in Cape May. Licata, his wife and children were in the arcade and saw the four boys and the three girls. He saw the boys jump over the rail, leave the promenade, and cross the street. A short while later, as Licata and his family were walking back to their motel, from a distance of about twenty-five to thirty yards, he saw defendant and Loftus fighting. As he described it, Loftus had defendant in a headlock, and defendant was "trying to throw swings back at [him] . . . as if to punch his way out of it." Loftus then slowly fell to the ground. This version, of course, conflicts with that given by defendant.

Anthony Brown, another vacationer, had returned with his wife after dinner to the inn at which they were staying. They parked the car in an off-street lot at the inn, and remained in the car talking. Brown was in the driver's seat. He heard the sound of teenagers and saw four young men on the side of the street and two on the sidewalk. He then saw one person (presumably Loftus) run across the street and tackle another (presumably defendant) from "the side" and "somewhat behind," knocking him to the ground. He witnessed no interaction between the two individuals before that exchange. The person who was tackled quickly got up and ran away. He made these observations through his rear view mirror, and the two boys left his line of sight when they went down. Brown then saw another altercation, which presumably involved Small and Kessler (and to whatever extent they participated, Copson and Durante). Brown said the person being attacked (presumably Kessler) was holding a bottle in his hand. He also heard one of the others telling that person to go ahead and hit him with the bottle. He did not see anyone else with a bottle in their hand. He got out of his car and approached them, telling them to stop and that another boy was down from the previous contact he had witnessed.

Brown's version is also at odds with that rendered by defendant, who denied being tackled or thrown to the ground at any time during the altercation.

A third vacationer, Stephen Bauer, was sitting in the vacation home he then owned, with the window open, when he heard screaming, yelling and cursing. The sounds were coming from the beach down Howard Street toward his property. He went outside and heard multiple profanities being shouted, along with the term "shoobie," and he heard glass break. The sounds were coming from the vicinity of the corner of Howard and Stockton. His view was obstructed by a tree. He went back inside and called the police. He then went back outside, and described what he saw between Loftus and defendant as follows: "I observed one tall boy, tall kid trying to beat the piss out of this young kid, and he was whaling. He was kind of hitting like a girl, you know, this way, not, not straight out, but like this. So he wasn't really hurting the kid that much." He saw defendant get away. He turned and saw the other fight going on between Kessler and Small. The police arrived. Bauer then walked closer and saw Loftus laying by the curb. He could see that he had been stabbed.

II.

We first address defendant's argument that the judge erred in barring testimony regarding a prior incident of aggression by Loftus against "shoobies." Defendant proffered the testimony pursuant to N.J.R.E. 404(b). Although at trial defendant sought to introduce evidence regarding several incidents in which Loftus demonstrated hostility and aggression toward shoobies, his argument on appeal is limited to one such event, which occurred on June 19, 2001, two weeks before this incident. Judge Batten concluded that the proffered evidence was not relevant and prevented defendant from presenting it.

David Kissling, twenty-three years old, lived in a house with his family on Stockton Place in Cape May. On June 19, 2001, he noticed four people looking into the windows of his mother's car, which was parked on the street. Kissling went outside and told them to leave the car alone. Loftus was one of the individuals. Loftus said he was a local and knew many people in town. He began shouting obscenities at Kissling, calling him a shoobie, saying he did not belong there, and that shoobies just come to take advantage of Cape May.*fn1 Kissling's father heard the shouting and came over. He asked the boys to leave but they refused. He went into the house to call the police. Loftus turned on David, hitting him in the face and breaking his nose. The others also began beating on David.

Under N.J.R.E. 404(b), evidence of other crimes or wrongs may not be admitted to prove that a person acted in conformity with his or her disposition, but may be admitted for other purposes when such matters are relevant to a material issue in dispute. Defendant sought to admit evidence of this incident to show Loftus's motive or intent to harm out-of-towners.

The familiar four-prong test for admissibility requires that the other conduct must be (1) relevant to a material issue that is genuinely disputed, (2) similar in kind and reasonably close in time to the events at issue, (3) clearly and convincingly established, and (4) such that its probative value is not outweighed by its prejudice. State v. Cofield, 127 N.J. 328, 338 (1992). Evidence submitted defensively under this rule is subjected as well to N.J.R.E. 403, which states that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." State v. Cook, 179 N.J. 533, 566 (2004). A lower standard of admissibility applies when other crimes evidence is presented defensively. Ibid. The test is one of simple relevance to guilt or innocence. State v. Dreher, 302 N.J. Super. 408, 457 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed. 2d 723 (1998).

The State resisted this evidence based on the first prong of the Cofield test. The State argued, and Judge Batten agreed, that there was no dispute that Loftus was the aggressor in this incident. The judge therefore concluded that the evidence would not add anything to what the jury already knew, namely that Loftus had "ill will toward out-of-towners" as well established through the testimony of other witnesses. The State conceded that Loftus's motive and intent was to confront "shoobies."

A trial court's decision to exclude evidence of other crimes is highly discretionary and deserves substantial deference on appeal. Cook, supra, 179 N.J. at 568. We find no mistaken exercise of discretion here.

We are unpersuaded by defendant's argument that it was not merely the general hostility and aggressiveness demonstrated by Loftus toward defendant that was at issue, but the extent and degree of Loftus's specific hostility toward shoobies, as well as his intent upon attacking a shoobie at whatever cost. According to defendant, evidence of the Kissling incident would have been relevant to and bolstered his self-defense contention by demonstrating that defendant could not have safely retreated or avoided the altercation with Loftus. In our view, the purported distinction is more illusory than real in light of the totality of the factual circumstances. By defendant's own version of the facts, he had opportunities throughout this incident to avoid a physical altercation, but did not attempt to turn and leave until the incident reached an advanced stage and physical contact was imminent. Whether he was, in Loftus's eyes, a shoobie, and whether Loftus had a particular dislike for shoobies, was no longer relevant to the reasonableness of defendant's belief that he needed to use deadly force to protect himself.

In a similar context, our Supreme Court has addressed the issue in State v. Jenewicz, 193 N.J. 440 (2008), decided while this case was pending on appeal. The Court there held that "[o]nly when the defendant has actual knowledge of the specific acts to which a witness testifies is specific-acts testimony probative of the defendant's reasonable belief [that deadly force was necessary]." Id. at 463 (citing State v. Gartland, 149 N.J. 456, 473 (1997) ("Our courts have always admitted evidence of a victim's violent character as relevant to a claim of self-defense so long as the defendant had knowledge of the dangerous and violent character of the victim." (citing State v. Carter, 278 N.J. Super. 629, 632 (Law Div. 1994)))). There is no suggestion that defendant had knowledge of any prior incident in which Loftus demonstrated dislike, hostility or aggressiveness toward any other out-of-towner, including Kissling. We are satisfied that the evidence was properly excluded.

III:

Defendant contends the judge erred in admitting, under the present sense impression exception to the hearsay rule, Durante's testimony that, at the time of the fight, he heard Small say that defendant "has a knife." Over defendant's objection, the prosecutor elicited testimony from Durante that as he approached the fight scene he heard Small say "There's a knife." Small had previously testified that when Loftus and defendant squared off he saw defendant pull out a knife and point it toward Loftus.

Because Durante's testimony was offered for the truth of what Small said, the testimony was hearsay and could not be admitted unless falling within an exception to the hearsay rule. N.J.R.E. 802. "A statement of observation, description or explanation of an event or condition made while or immediately after the declarant was perceiving the event or condition and without opportunity to deliberate or fabricate" is a recognized exception. N.J.R.E. 803(c)(1). The rule allows for admission of a present sense impression "[w]hether or not the declarant is available as a witness." N.J.R.E. 803(c).

The evidence admitted here falls squarely within the requirements of N.J.R.E. 803(c)(1). Small was the declarant, and he allegedly made the statement as he perceived the presence of the knife. The fact that Durante did not report the statement to the police until later that evening has no bearing on the reliability or admissibility of the present sense impression he reported.

We find no mistaken exercise of discretion in admitting this evidence.

IV.

Defendant argues that the judge erred in denying his motion for judgment of acquittal on count one charging aggravated manslaughter. More particularly, defendant argues that "overcharging" him with aggravated manslaughter might have led the jury to a compromise verdict that it otherwise might not have reached. We reject these arguments.

A defendant is entitled to a judgment of acquittal under Rule 3:18-1 "if the evidence is insufficient to warrant a conviction." The standard, at trial and on appeal, for determining the sufficiency of the evidence to sustain a conviction is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967).]

Defendant moved for a judgment of acquittal on the aggravated manslaughter charge at the close of the State's case. Aggravated manslaughter occurs when "[t]he actor recklessly causes death under circumstances manifesting extreme indifference to human life." N.J.S.A. 2C:11-4a(1). "Recklessly" is defined in N.J.S.A. 2C:2-2b(3):

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

Second-degree manslaughter shares the element of acting recklessly. N.J.S.A. 2C:11-4b(1). The difference is that aggravated manslaughter requires an elevated standard of reckless conduct, specifically, that defendant's actions manifested extreme indifference to human life. State v. Bakka, 176 N.J. 533, 549 (2003). A defendant commits aggravated manslaughter if he consciously disregards the probability (not the possibility) that death would result, and death occurs. Id. at 549-50; see State v. Jenkins, 178 N.J. 347, 362-63 (2004).

We agree with Judge Batten's conclusion that, applying the Reyes standard, there was sufficient evidence from which the jury could find defendant guilty beyond a reasonable doubt of aggravated manslaughter. Defendant stabbed Loftus five times. Three were penetrating wounds to the torso, entering vital organs, including the heart. The infliction of these multiple stab wounds, causing Loftus's immediate death, could well support that defendant acted with extreme indifference to human life. Stated differently, the evidence could support a finding that defendant consciously disregarded the probability (not only the possibility) that his conduct would cause death.

Defendant's overcharging argument is based upon the rule laid down in State v. Christener, 71 N.J. 55 (1976). We reject defendant's argument here for two reasons. First, the Christener rule was abrogated by our Supreme Court's recent decision, issued while this case was pending on appeal, in State v. Wilder, 193 N.J. 398, 418 (2008). Second, because we have concluded that there was sufficient evidence to support the aggravated manslaughter charge, submission of that charge to the jury was not error. And, it follows that if there was sufficient evidence to support aggravated manslaughter, there was clearly sufficient evidence to support reckless manslaughter.

V.

We next consider defendant's argument that the jury's guilty verdict on reckless manslaughter was against the weight of the credible evidence, and the judge consequently erred in denying his motion for a new trial on that basis. After the jury's verdict, defendant moved for a judgment of acquittal under Rule 3:18-2, or, in the alternative, a new trial under Rule 3:20-1. On appeal, he limits his argument to the denial of the Rule 3:20-1 motion.

Under Rule 3:20-1, the trial judge may grant a new trial "if required in the interest of justice." "The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. The court should not grant a new trial merely because it might have reached a different result. State v. Muhammad, 182 N.J. 551, 578 (2005).

A trial court's decision to deny a motion for a new trial will not be reversed unless "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. However, the standard of appellate review is not limited to a determination of whether the trial court committed an abuse of discretion, but rather, the appellate court must make its own determination as to whether there was a miscarriage of justice, deferring to the trial judge only with respect to intangible aspects of the case not transmitted by the written record, such as witness credibility and the "feel of the case." Pressler, Current N.J. Court Rules, comment 4 on R. 2:10-1 (2008).

Defendant was convicted of reckless manslaughter, which under N.J.S.A. 2C:11-4b is proved when a criminal homicide "is committed recklessly." A defendant commits reckless manslaughter if he consciously disregards the possibility of death, and death occurs. Jenkins, supra, 178 N.J. at 363.

Judge Batten believed the jury reached a "sophisticated verdict." He conceded there were "aspects of the record which were not necessarily consistent" but found it was the province of the jury "to sort through all of that." We agree.

Of his own volition, defendant chose to leave the safety of the arcade and promenade and follow Loftus and Small away from the area filled with other people to a side street, under circumstances which the evidence strongly suggests was for the purpose of engaging in a physical altercation. Defendant indeed acknowledged that when he was only halfway across Beach Avenue, he knew that it was pretty certain that a fight was going to happen if he continued following. Yet he chose to do so. He knew he had a deadly weapon in his possession, and when the physical altercation was about to erupt, he removed it from his pocket, opened the blade, and repeatedly thrust it into Loftus's body. The evidence was in conflict as to whether or not Loftus was wielding a bottle. The jury could well have believed that defendant did not have a reasonable belief that his use of deadly force, by inflicting multiple stab wounds to the torso, was necessary under all of the circumstances for his self-protection.

We give due deference to Judge Batten's feel of the case, and, based upon our careful review of the trial record, we perceive no miscarriage of justice under the law in the guilty verdict for reckless manslaughter.

VI.

We dispose of defendant's remaining two arguments quite summarily.

Defendant argues that the judge erred in failing to merge his conviction on count three (possession of a weapon under circumstances not manifestly appropriate for such lawful use as it might have) with his conviction on count one (reckless manslaughter). To be convicted of the weapons offense, the State must prove circumstances that show a threat of harm to either persons or property. State in re G.C., 179 N.J. 475, 480-81 (2004). Knives are not inherently unlawful and can have legitimate uses. State v. Lee, 96 N.J. 156, 162 (1984). However, the unlawful possession statute addresses the problem of possession of various weapons in circumstances where they pose a likely threat of harm. Ibid.

Here, defendant possessed a folding knife that he used for his job, which he admittedly was away from, but testified that he had used the knife earlier in the day to fix a broken bicycle chain. Simply possessing the knife while he went about his business could not have formed the basis for defendant's conviction. The conviction was of necessity based upon defendant's possession of the knife during the fight, where it posed a likely threat of harm to others.

While it is true that defendant could not have accomplished the reckless manslaughter without the knife, the two crimes do not share common elements. Defendant could have displayed the knife, never touched the victim with it, and still have been convicted of N.J.S.A. 2C:39-5d, without being convicted of reckless manslaughter. Therefore, defendant was not impermissibly convicted twice or sentenced twice for the same crime. Indeed, there usually is no merger of a conviction of N.J.S.A. 2C:39-5d with a conviction for a substantive offense. Cannel, New Jersey Criminal Code Annotated, comment 5 on N.J.S.A. 2C:1-8 (2008).

With respect to his sentence, defendant urges that he should have received a three-year term for manslaughter, rather than four years. Following the requirements of N.J.S.A. 2C:44-1f(2) and State v. Megargel, 143 N.J. 484 (1996), Judge Batten sentenced defendant for the second-degree crime of reckless manslaughter in the third-degree range. He found that the mitigating factors clearly and convincingly preponderated over aggravating factors, thus satisfying the first required prong, and then found that the interest of justice demanded sentencing one degree lower. He imposed sentence at the mid-range for a third-degree offense.

Defendant's argument on appeal is based upon his contention that the judge erred in finding the applicability of aggravating factors (1) and (2). See N.J.S.A. 2C:44-1a(1) and (2). We agree that those factors should not apply. However, we find the error harmless because whether or not those aggravating factors were found, we believe the result would be the same. In addition to a substantial preponderance of mitigating over aggravating factors (although by a greater degree), the second prong (interest of justice) of the "downgrade" sentencing provision played a significant role in determining defendant's ultimate sentence. That prong requires a basis independent of mitigating factors. Megargel, supra, 143 N.J. at 503. The judge's findings on the second prong were well supported and well articulated and were necessary to lower defendant into the third-degree sentencing range. Those findings, combined with the substantial preponderance of mitigating factors, render a four-year, rather than three-year, sentence fair, reasonable and just. Trial judges are afforded substantial discretion in their sentencing decisions, and we will not interfere unless the sentence imposed "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984). Our judicial conscience is not shocked by the four-year sentence, which we do not find to be manifestly excessive, unduly punitive, or a mistaken exercise of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); Roth, supra, 95 N.J. at 363-65.

Affirmed.


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