On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-578.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Baxter.
This is an appeal by the State*fn1 from a sentence imposed on June 13, 2008 in which the judge, over the State's objection, sentenced defendant to a term of imprisonment on count one that was appropriate to a crime one degree lower than the crime to which he pled guilty. See N.J.S.A. 2C:44-1(f)(2).*fn2 Over the State's objection, the judge also amended the conviction from first-degree robbery, which was the crime to which defendant had pled guilty, to second-degree robbery. We reverse.
During the plea colloquy on January 28, 2008, defendant entered a plea of guilty to first-degree robbery in which the State agreed to recommend at the time of sentencing a ten-year term of imprisonment subject to a No Early Release Act (NERA) eighty-five percent parole ineligibility term. See N.J.S.A. 2C:43-7.2. During his factual statement, defendant acknowledged that on January 15, 2007, "while in the process of stealing [the victim's] pocketbook, [he] cut her with [a] knife."
At the time of sentencing, the judge, sua sponte, rendered an oral opinion in which he downgraded the charge to second-degree robbery and reduced the sentence to the lower end of the second-degree range, specifically six years imprisonment, subject to NERA. In his oral opinion, the judge relied on police reports supplied by defendant, and described the knife in question as a "three-inch blade pocket knife." Despite defendant's guilty plea to first-degree robbery, the judge found the knife was not a "deadly weapon" sufficient to elevate second-degree robbery to a first-degree crime.
Robbery is a second-degree crime, unless, in relevant part, the actor "is armed with, or uses or threatens the immediate use of a deadly weapon," in which case robbery is a crime of the first-degree. N.J.S.A. 2C:15-1(b). A "deadly weapon" is defined as "any... weapon,... which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury." N.J.S.A. 2C:11-1(c). Alternatively, "if the manner in which [the weapon] is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury," it is also deemed a "deadly weapon." Ibid.
The judge explained his reason for "downgrad[ing]" the crime to second-degree robbery as follows:
[I]t's clear that... the knife was there to cut the [pocketbook] straps.... [T]he court does not find that the victim could reasonably believe that this knife was capable of adducing [sic] death or serious bodily injury.... So this court finds... this case does not constitute a first-degree robbery. It's a second-degree robbery.
In reaching that conclusion, the judge also found that the mitigating factors "substantially outweigh the aggravating factors." He found the existence of three aggravating factors: the risk defendant will commit another crime, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record and the seriousness of the crimes of which he was convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, N.J.S.A. 2C:44-1(a)(9).
As to mitigating factors, the judge found number nine, N.J.S.A. 2C:44-1(b)(9), defendant was unlikely to commit another crime. However, the judge made this finding despite having already reached the diametrically opposite conclusion with aggravating factor three: the risk defendant would commit another crime. Moreover, despite defendant's use of a knife to cut the purse off the victim's shoulder, during which he slashed her fingers, the judge found that defendant's conduct "neither caused or threatened serious harm" (mitigating factor one), N.J.S.A. 2C:44-1(b)(1), and "defendant did not contemplate that his conduct would cause or threaten serious harm" (mitigating factor two), N.J.S.A. 2C:44-1(b)(2). Equally troubling was the judge's finding that defendant is "particularly likely to respond affirmatively to probationary treatment" (mitigating factor ten), N.J.S.A. 2C:44-1(b)(10). The judge made this finding despite defendant's extensive and serious juvenile record, which consisted of a robbery in 2005, two separate instances of unlawful possession of a weapon, an aggravated assault and three separate violations of probation. Next, although the judge did not articulate or identify the "circumstances" in question, he nonetheless found that "defendant's conduct was the result of circumstances unlikely to recur" (mitigating factor eight), N.J.S.A. 2C:44-1(b)(8). The judge also found mitigating factor six (restitution), N.J.S.A. 2C:44-1(b)(b).
For first and second degree offenses, a judge may sentence a defendant to a term appropriate to a crime one degree lower only if the judge is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." N.J.S.A. 2C:44-1(f)(2). The Court observed in State v. Dalziel, 182 N.J. 494, 504-05 (2005), that a judge must adopt all mitigating factors that are supported by the record. It stands to reason, however, and the Court has held, that a judge is not authorized to find mitigating, or aggravating, factors unless such factors are supported by "competent, reasonably credible evidence" in the record. State v. Roth, 95 N.J. 334, 363 (1984).
Even the most indulgent view of the record before us cannot support the judge's finding of mitigating factors one, two, eight, nine and ten. In particular, as to mitigating factor nine, defendant's extensive juvenile record and his commission of the two instant offenses, all by the age of nineteen, demonstrate, contrary to the judge's findings, a likelihood that defendant is likely to commit other offenses. As to mitigating factors one and two, in light of defendant's use of a knife to slash the purse straps of the victim, during which he sliced two of her fingers with that knife, the record does not support the judge's conclusions that defendant's conduct did not cause serious harm and defendant did not contemplate the risk of causing such serious harm. As to mitigating factor ten, the likelihood that defendant would succeed on probation, we conclude that such factor is inapplicable where, as here, the presumption of imprisonment remains. Despite numerous ...