September 5, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHARLES H. RASHID, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-01-0036.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 2, 2008
Before Judges Payne, Sapp-Peterson and Messano.
Defendant Charles Rashid appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); two counts of third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) and (b)(4); and fourth-degree tampering with physical evidence, N.J.S.A. 2C:28-6(1).
The crimes for which defendant was convicted arose out of the slaying of his wife, Orquidea Tejada-Rashid.*fn1 The evidence presented to the jury revealed that the couple married in 1999, and one child, a son, was born of the union. From its inception, the marriage was beset with arguments. By 2001, the tensions between the couple had intensified. However, there was no evidence presented of any ongoing physical violence between the couple. According to defendant, on the day of the murder, October 27, 2001, he had been tiling the kitchen of their home located in Piscataway. He and Orquidea began to argue, although Orquidea did most of the talking. She was angry, threatened to harm their son if defendant left her, and at one point during the argument, pushed him when he attempted to leave. The argument continued and he eventually killed her as a result of hitting her and/or throwing a hammer at her. Later that day he disposed of her body, placing it in a dumpster located in the Bronx. He had transported the body to the Bronx in Orquidea's Toyota. He then returned to Piscataway.
The next morning, Sunday, defendant went to the Piscataway Police Department to report that his wife was missing. While there, police received a telephone call from the Bronx Homicide Squad stating that they had discovered a body after receiving a 9-1-1 call from an employee checking on his employer's dumpsters just after 7:10 a.m. that morning. The police believed the victim was Orquidea based upon a high school ring the victim was wearing on which her name was inscribed.
When the Bronx police learned that at the same time they were on the phone with Piscataway police, Orquidea's husband was at the station reporting her missing, they decided to travel to Piscataway to speak to him. Detective Raymond Byrne (Byrne), along with Detective Michael Donnelly (Donnelly) and two other detectives, arrived at the Piscataway Police Station around 2:00 p.m. When they arrived, they noticed a maroon Mazda Tribute that had license plate numbers that matched the ones their investigation revealed belonged to defendant. Donnelly noticed what appeared to be dry blood smeared on the rear driver's side car door. Donnelly next called Byrne's attention to a pair of blue, plastic gloves on the front floor of the vehicle.
Once inside the police headquarters, Byrne reviewed the missing persons report. He informed defendant that Orquidea's Toyota Camry had been found in the Bronx and that a person matching Orquidea's description had also been found in the Bronx. He asked defendant a few questions about Orquidea's disappearance and thought defendant appeared to be "very helpful."
After consulting with his supervisor about the next step to take, Byrne asked defendant whether he was willing to come to the Bronx and defendant agreed. Byrne also asked defendant to ride to New York in his car while another detective drove defendant's car to New York. Defendant agreed to this arrangement. During the drive to New York, defendant provided some general information about himself and also revealed that he had Orquidea's cellular phone and Social Security card with him. He also told the detectives that his sister lived in the Bronx.
Defendant and the detectives arrived at the 4-0 Police Precinct (Precinct), located in the Mott Haven/Port Morris Section of the Bronx, around 5:00 p.m. Detective John Greaney, who drove defendant's car to New York, told Byrne that he noticed what appeared to be blood on the steering wheel and gearshift of defendant's Tribute. Defendant was escorted to an interview room containing a table, some chairs, filing cabinets and a T.V., where he remained while the officers conferred. Defendant was not handcuffed but there were about four to five officers in the same room and they all watched a game together.
Byrne initiated the questioning related to Orquidea's disappearance, and after he had asked a couple of questions about Orquidea's movements on the last day defendant saw her, defendant's demeanor changed. Byrne reported the change in demeanor to his supervisor and expressed his intention to go back to the interview room to just "hit him with it." He returned to the room with Detective Greaney, who had been present when the questioning initially commenced. Detective Greaney administered Miranda*fn2 warnings to defendant and the questioning resumed. Byrne left the interview once again but when he returned a short time later he told defendant, "hey, Charles, hey, your wife's dead." At that point, "[defendant] went back in his chair and he said[,] what? And I said . . . your wife's dead. . . . [Y]ou know she's dead. And I leaned over the table and pointed to him. I said because you fuckin[g] killed her."
Byrne then described defendant's reaction to the accusation:
He went back into his chair. He started, beads of sweat formed on his head. He started sweating profusely and he indicated that he wanted to vomit. He started dry-heaving, and I took the wastepaper basket and held it under him. He said I know. I said you know she is dead. And at that point he said, when he gained his composure after a minute or two he just said, he looked at me and he actually seemed relieved. He let out a big sigh and he said I knew you guys would get me.
At that point, defendant explained to the detectives that he had been tiling the couple's kitchen the previous day when he and Orquidea got into some kind of argument. Defendant told him that Orquidea kept nagging him so he threw a hammer that was in his hand at her. He agreed to provide a written statement, which he drafted himself.
Later that evening after defendant finished writing the statement, he voluntarily provided a videotaped statement as well. Also that evening, while still at the Precinct, defendant signed consent forms authorizing searches of his home and his Mazda Tribute. The crime scene unit took samples from the Mazda Tribute, specifically from the steering wheel, gearshift, and rear door. Based upon information police received from defendant, they also recovered the murder weapon defendant had discarded at his place of employment and a board to which nails were attached from a garbage can in Newark. The search of the marital residence revealed visible blood spatters in the "kitchen and hall area[,]" some of which were on the ceiling in the "beginning of the hallway closer to the kitchen than the back door" and on the ceiling "between the bath and the bedroom[.]"
Forensic analysis revealed the presence of blood on one of the nails in the board recovered from the garbage can, on the steering wheel and gearshift of defendant's vehicle, and in the swabs taken from the ceiling. The blood samples matched Orquidea's DNA profile. An autopsy performed by Dr. Zoya Shmuter (Shmuter) disclosed that Orquidea had a "black left eye, which means that it was bleeding of the soft tissue. And she had five lacerations of the face and head and she had multiple abrasions on both sides of her face." Shmuter testified that based on the progress of rigor mortis and lividity, Orquidea's time of death was probably around noon the day before her body was found. She also testified that Orquidea's injuries were consistent with injuries caused by a blunt instrument.
At the close of trial, the court charged the jury and, of significance to this appeal, instructed the jury on the elements of murder, including that the State was required to prove, beyond a reasonable doubt, that defendant did not act in the heat of passion resulting from a reasonable provocation. The instruction did not include a statement from the court that if the jury found that Orquidea's treatment towards defendant constituted a course of ill treatment that could induce a homicidal reaction in a person of ordinary firmness and that the treatment was such that it could lead an accused to reasonably believe that such conduct would continue, the jury could find provocation.
The jury convicted defendant of all charges. He received an aggregate sentence of sixty-nine years imprisonment, with an eighty-five percent mandatory minimum period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal defendant raises the following points for our consideration:
THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURORS THAT A CONTINUING COURSE OF ILL TREATMENT COULD PROVIDE THE BASIS FOR A VERDICT OF PASSION/PROVOCATION MANSLAUGHTER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
THE JUDGE'S INCONSISTENT AND CONFUSING INSTRUCTIONS IMPROPERLY PREVENTED THE JURORS FROM CONSIDERING PASSION/PROVOCATION MANSLAUGHTER UNLESS THEY HAD FIRST ACQUITTED DEFENDANT OF MURDER, IN VIOLATION OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
THE SIXTY-FIVE[-]YEAR SENTENCE FOR MURDER WAS MANIFESTLY EXCESSIVE.
In his pro se supplemental brief, defendant raises the following additional points.
FAILURE TO WARN DEFENDANT OF HIS RIGHTS AND TOTALITY OF CIRCUMSTANCES RENDER CONFESSION INVOLUNTARY AND INADMISSIBLE UNDER FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION AND SIXTH AMENDMENT RIGHT TO COUNSEL.
THE COURT COMMITTED REVERSIBLE ERROR ADMITTING DEFENDANT'S CONFESSION INTO EVIDENCE AND THE DETECTIVES WHO INTERROGATED DEFENDANT DID NOT SCRUPULOUSLY HONOR DEFENDANT'S RIGHT TO REMAIN SILENT.
THE TRIAL COURT'S ADMISSION OF AUTOPSY PHOTOGRAPHS CONSTITUTED ABUSE OF DISCRETION[.] THE PHOTOGRAPH DID NOT HAVE PROBATIVE VALUE AND WAS UNDULY INFLAMMATORY.
CONFESSION SHOULD HAVE BEEN SUPPRESSED BECAUSE THE STATEMENTS IT CONTAINED WERE NOT VOLUNTARY AND WERE OBTAINED ONLY AFTER DEFENDANT'S WILL [WAS] OVERBORNE AND THAT ITS USE VIOLATED DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE FEDERAL CONSTITUTION.
We have considered these contentions in light of the record and applicable legal standards. We affirm the conviction but vacate the sentence imposed as the court improperly considered, as an aggravating factor, N.J.S.A. 2C:44-1(a)(4) ("A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust, . . . or the defendant took advantage of a position of trust or confidence to commit the offense").
We begin our review by noting that no objections to the jury charge were raised before the trial court, and the defense did not request a continuing course of ill treatment instruction as a basis for passion/provocation manslaughter. Therefore, we review the alleged errors under the plain error standard, namely, whether the court's instructions were "clearly capable of producing an unjust result[.]" R. 2:10-2; see also R. 1:7-2.
The court instructed the jury on murder as follows:
So, there are six counts in the indictment and [defendant] is entitled to have his guilt or innocence separately considered on each count charged against him by that evidence relevant and material to that particular charge based on the law as I express it.
Now, as to the charge of murder you are going to be asked to consider several alternative verdicts. I will tell you what they are now and define them in a few moments.
The first alternative is passion/provocation manslaughter. The second alternative is aggravated manslaughter. The third alternative is reckless manslaughter, and I will describe for you the element of each in just a moment. Please do not speculate as to why you're being asked to consider these alternatives. It's my responsibility as the judge of the law to make certain that what you have before you to consider are those crimes which may apply to the facts of this case as a matter of law, so please don't speculate as to the reason or reasons that I'm asking you to consider these other crimes. . . .
The first charge is reflected in the indictment and that is murder. I am going to read the language of the indictment to you. Quote, the Grand Jurors of the State of New Jersey, for the County of Middlesex, upon their oaths, present, that Charles Rashid, on [or] about the 27th day of October, 2001, in the Township of Piscataway, County of Middlesex, did purposely or knowingly cause the death of [the victim] or did purposely or knowingly inflict serious bodily injury upon [the victim] resulting in her death, contrary to law, end quote.
So, a person is guilty of murder if he first caused the victim's death or serious bodily injury that resulted in her death. Second, did so purposely or knowingly. Third, did not act in the heat of passion resulting from a reasonable provocation.
Now, let's talk about each one of those things. If [defendant] purposely or knowingly caused [the victim's] death beyond a reasonable doubt or if he purposely or knowingly caused serious bodily injury that resulted in death and he did not act in the heat of passion resulting from a reasonable provocation, he is guilty of murder. If, however, he purposely or knowingly caused death or serious bodily injury resulting in death and he did act in the heat of passion resulting from a reasonable provocation, he is guilty of passion/provocation manslaughter.
The court next directed the jury's attention to the elements of murder the State was required to prove as to defendant:
For [defendant] to be guilty of murder the State must prove each of the following elements beyond a reasonable doubt: First, that he caused [the victim's] death or serious bodily injury that resulted in her death. Second, that he did so purposely or knowingly. Third, that he did not act in the heat of passion resulting from a reasonable provocation.
Thereafter, the court focused upon the specific factors of passion/provocation manslaughter that the State had to disprove beyond a reasonable doubt in order to prevail on the murder charge:
The third element that the State must prove beyond a reasonable doubt to prove [defendant] guilty of murder is that he did not act in the heat of passion resulting from a reasonable provocation. This is called passion/provocation manslaughter. Passion/provocation manslaughter occurs when a death is caused purposely or knowingly committed in the heat of passion resulting from that reasonable provocation.
Passion/provocation manslaughter has four factors which distinguish it from murder and you should consider each of these factors.
For you to find the defendant guilty of murder the State need only prove that any one of these is absent beyond a reasonable doubt. Here are the four factors; first, that there was adequate provocation. Second, that the provocation actually impassioned [defendant]. Third, that he did not have a reasonable time to cool off between the provocation and the act which caused the death. Fourth, that he did not actually cool off before committing the act which caused the death.
In the appellate brief submitted on his behalf, the defense concedes that "the judge's [initial] instructions [correctly] informed the jurors that the State had the burden to disprove passion/provocation manslaughter before defendant could be found guilty of murder." Defendant contends that the reversible error occurred when the court gave further instructions as it reviewed the verdict sheet with the jury:
Now with respect to the first charge which in the indictment is murder, first you should consider whether or not the State has proved beyond a reasonable doubt that [defendant] is guilty of murder. If you find him guilty of murder, you should not consider passion/provocation. You should not consider aggravated. You should not consider reckless. However, if you find him not guilty of murder for the reasons that I articulated according to the law, you may wish to consider passion/provocation manslaughter. If you find him guilty of passion/provocation manslaughter, you will not have to consider aggravated or reckless manslaughter. That doesn't mean that you should do it just because you want to avoid work. That means that [defendant] can only be found guilty of one of the first charges that are here. So the way that the verdict sheet works is on the charge of murder our verdict is number one, not guilty of murder and passion/provocation manslaughter.
Number two, guilty of passion/provocation manslaughter. Number three, guilty of murder. That is the first group under A. the first box. Then you proceed only if you find [defendant] not guilty of murder and passion/provocation manslaughter. The next box refers to aggravated manslaughter, not guilty; aggravated manslaughter, guilty.
Only if you find him not guilty of aggravated manslaughter do you go to reckless manslaughter. And whatever your verdict as to those, the charge of murder and the three alternative charges in part, then you go to B. C. D. E. and F.
Defendant urges that this instruction provided the jury with an impermissible sequential instruction that left the jury concluding that they could only consider passion/provocation manslaughter if they first rejected murder. Citing the Court's decisions in State v. Erazo, 126 N.J. 112 (1991), and State v. Coyle, 119 N.J. 194, (1990), defendant contends that a murder conviction reached under such a sequential instruction does not reflect a jury's fair consideration of the alternative lesser verdict of passion/provocation manslaughter.
"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Concepcion, 111 N.J. 373, 379 (1988). As such, improper jury instructions are almost invariably considered unduly prejudicial and "poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987). Nonetheless, jury instructions cannot be viewed in a vacuum but rather must be considered in the context of the entire jury instruction before a reviewing court can determine whether the error in the instruction was legal impropriety that prejudicially affected "the substantial rights of the defendant and [was] sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed. 2d 797 (1970)) (internal quotation mark omitted).
In our view, when the instruction on murder is considered in its entirety, along with the language of the actual verdict sheet, we are satisfied the improper sequential portion of the jury instruction that the court charged as it reviewed the jury verdict sheet, did not produce an unjust result. The court's initial instruction on the State's burden to disprove passion/provocation was accurate and the three additional references to the State's burden of proof in order for defendant to be found guilty of murder made it clear that the jury was required to consider whether the State had disproved passion/provocation. Additionally, the fact that the jury sent a note requesting the court to define what constitutes provocation and also asked in the note whether verbal threats were sufficient, is evidence that the jury considered passion/provocation before reaching its ultimate verdict of guilty on the murder charge. Unlike the instructions to jurors in Erazo, supra, and Coyle, supra, where the jury was not told that disproving passion/provocation was an element of the State's burden of proof on the murder charge, here, on four separate occasions, the judge instructed the jury that disproving passion/provocation is an element of the offense of murder the State was required to prove beyond a reasonable doubt.
Defendant's claim that he was entitled to a jury instruction that a continuing course of ill treatment could provide the basis for a verdict of passion/provocation manslaughter is not supported by the record. He urges that the essence of his defense was that at the time he killed Orquidea, his mental state was impaired by the argument that took place immediately before the killing, as well as the cumulative impact of the conflicts in the couple's marriage. He contends that appropriate instructions on the issue of provocation could have resulted in a verdict of passion/provocation manslaughter rather than the murder conviction. We disagree.
"[A] course of ill treatment which can induce a homicidal response in a person of ordinary firmness and which the accused reasonably believes is likely to continue" to a degree sufficient to justify a passion/provocation verdict requires more than the verbal threats that pervaded defendant's marriage to Orquidea. State v. Bonano, 59 N.J. 515, 524 (1971) (holding that while verbal threats alone cannot constitute adequate provocation, a verbal threat coupled with the drawing of a weapon could constitute adequate provocation for a conviction of passion/provocation manslaughter as opposed to murder); State v. King, 37 N.J. 285, 299 (1962) ("insulting and contemptuous behavior alone, unaccompanied by a physical contact" is not sufficient ground to reduce a killing from murder to manslaughter).
By his own testimony at trial, other than the time when he grabbed Orquidea's wrist during an argument earlier in the month before her death, there had been no physical altercations between defendant and his wife. Even his claim that Orquidea threatened to harm their son if he left her was insufficient to warrant the continuing course of conduct instruction he sought. Defendant testified that he did not believe then that Orquidea intended to carry out her threat, she was unarmed, and his son was upstairs watching an Elmo video. He admitted that it was the words that made him angrier and angrier. Such words do not rise to the level of abuse required before a trial judge must give a course of ill treatment jury instruction. Coyle, supra, 119 N.J. at 227.
In Points I, II, and IV of his supplemental letter brief, defendant contends that his Miranda rights were not scrupulously honored by police, beginning with the conduct of Piscataway police who would not permit him to leave the station after reporting his wife missing and who also did not alert him to the fact that the Bronx police were en route to Piscataway. Defendant contends the misconduct of the police continued when he was not told that he had the right to decline being transported to New York in the police vehicle, and once at the Bronx Precinct, he was subjected to hours of questioning, without the benefit of any Miranda warnings, that left him exhausted to the point that he finally succumbed to the strain of the questioning and gave an affirmative nod of the head to the accusation that he had killed his wife.
The trial court conducted a Miranda hearing and, at its conclusion, found that defendant's testimony was not credible, that he left the Piscataway Police Station voluntarily, and that although he was escorted to his car by an officer, "that, in and of itself, [did] not suggest that he was in custody." The judge also concluded that nothing that he saw or heard during the hearing persuaded him that the Bronx police acted inappropriately, in any way, in investigating this murder, or in obtaining either the written or oral statement, from [defendant]. [Defendant] was given his Miranda rights before he made any statement, which was incriminating, and before there was any, let's say, harshness or deceptive attitude used by any of the police officers.
The judge's factual findings on the admissibility of defendant's statements were reasonably reached on sufficient credible evidence in the record. See State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Locurto, 157 N.J. 463, 474 (1999). The judge's credibility findings were based, in part, on defendant's demeanor as a witness and are entitled to our deference. See Locurto, supra, 157 N.J. at 474-75. Moreover, at trial the court appropriately instructed the jury to consider defendant's purported oral statements pursuant to State v. Kociolek, namely, to "receive, weigh and consider such evidence with caution." 23 N.J. 400, 421-22 (1957) (quotation marks omitted). Further, consistent with State v. Hampton, 61 N.J. 250 (1972), the court also appropriately instructed the jury that it should determine whether the statements were in fact made and, if made, whether all or any part of the statements were true, and to disregard any purported statement which it found to be untrue in determining defendant's guilt.
Defendant complains in Point III of his supplemental brief that the admission of the six autopsy photographs was irrelevant and highly prejudicial. We disagree.
The admission of photographs are "mainly, if not entirely, within the discretion of the trial judge whose decision will not be overturned save for marked abuse." State v. Bucanis, 26 N.J. 45, 52, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958). A court may admit a photograph "despite its inflammatory nature if it is probative of some material fact." Id. at 51-52.
Defendant testified that he could not recall how many times he struck Orquidea with the hammer. In the video statement he gave to the police, defendant stated ". . . I just, I just snapped. I picked the hammer up and threw it at her, and she fell and hit her head on the crate[.] . . . I guess the rest is how it ended." The State was required to prove that defendant intended to bring about Orquidea's death. The photographs were not only probative of how many times defendant may have struck her but also the severity and intensity of the attack. See State v. Glover, 230 N.J. Super. 333, 343 (App. Div. 1988) (finding no abuse of the trial court's discretion in admitting photographs of the decedent "so that [the jury] could be graphically aware of the lethal nature of the weapon which defendant used at close range."). Further, even assuming the probative value of the photographs did not outweigh the prejudice to defendant by their introduction, given defendant's confession, it is "unlikely that the jury would have reached a different verdict but for the admission of the [photographs]." State v. Vasquez, 265 N.J. Super. 528, 557, certif. denied, 143 N.J. 480 (1993). Therefore, any error in admitting the photographs was harmless. State v. Rose, 112 N.J. 454, 536 (1988) (erroneous admissions of photographs and physical evidence was not clearly capable of producing an unjust result under the plain error standard of Rule 2:10-2, particularly in view of the overwhelming evidence of the defendant's guilt).
Finally, defendant contends that the sixty-five-year sentence for the murder conviction imposed by the court was manifestly excessive. He contends that his offense did not involve a breach of the public trust or a position of trust or confidence and therefore the court should not have considered a breach of public trust as an aggravating factor during sentencing. He also argues that since he had no prior criminal record, the court should not have considered a risk of defendant's commission of another offense as an aggravating factor. He also asserts that the court should have considered the fact that the killing took place as a result of strong provocation as a mitigating factor. He contends that his sentence of sixty-five years was not much lower than the maximum of seventy-five years. He therefore argues that his sentence should be reduced or, alternatively, the matter should be remanded for re-sentencing.
With the exception of the court's determination that defendant breached a position of trust, we reject all of the remaining arguments related to his sentence, as they are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(2). We add the following comments.
The court found that defendant took advantage of the position of trust that he had with Orquidea and Carlos by murdering her following a verbal difference of opinion. N.J.S.A. 2C:44-1(a)(4) (aggravating factor four). Aggravating factor four is an appropriate sentencing consideration in situations where a defendant has violated the public trust or breached a position of trust generally reposed in a person by the public during which the person uses such position to facilitate the commission of a crime. State v. Hess, 198 N.J. Super. 322, 329 (App. Div. 1984) (court may consider the need for protection of the public in sentencing a defendant teacher/camp director accused of sexually assaulting an eleven year-old boy in camp); State v. Martin, 235 N.J. Super. 47 (App. Div.) (violation of public trust is an aggravating factor where a detention officer engaged in sexual relations with a minor at the children's shelter where he had supervisory duties over minors), certif. denied, 117 N.J. 669 (1989); State v. Rosenberger, 207 N.J. Super. 350 (Law Div. 1985) (the defendant, a white collar employee for AT&T, took advantage of a position of trust or confidence when he pilfered two checks totaling $375,000 payable to AT&T). The circumstances warranting factor four were not present in this case.
Because the trial court improperly considered aggravating factor four, defendant's sixty-five-year custodial sentence should be vacated and the matter remanded to the trial court for re-sentencing based upon the factors previously relied upon by the court but without consideration of aggravating factor four.
Affirmed as to conviction. The sentence is vacated and the matter remanded to the trial court for re-sentencing consistent with this opinion. We do not retain jurisdiction.