February 27, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HECTOR ROYAL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 03-10-1134.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 28, 2009
Before Judges Rodríguez and Waugh.
Defendant Hector Royal appeals from his conviction on a six-count indictment stemming from a January 18, 2002, armed robbery, as well as the resulting aggregate sentence of thirty years incarceration, which was subject to an eight-five percent parole ineligibility period. We affirm.
We discern the following facts from the record. On Friday, January 18, 2002, Royal, David McKnight, Cornelius "Bunny" McKnight, and Omar Jones met in Orange. They drove in David's car to Linden. When they arrived in Linden, Bunny, Royal, and Jones got out of David's car, but David remained in the car. The three men walked through a fence to the back of the Maxim Quality Foods' warehouse and put on masks and gloves.
At approximately 2 a.m., Diego Perdomo exited the warehouse to turn off the motor for one of the warehouse's freezers. Jones and the others observed Perdomo come out of the warehouse. Perdomo testified that three masked individuals approached him. The three men were carrying "revolvers" and "pistols." Perdomo could see the men's necks and believed that all three individuals were African American. According to Perdomo, the three men threw him to the ground and put duct tape around his wrists and over his mouth. They placed a ski mask over his head and, placing the barrel of a gun against his head, threatened to kill him if he yelled or said anything.
Jones, who pled guilty and testified for the State at Royal's trial, maintained that he was not present when contact was first made with Perdomo. He stated that he, Royal, and Bunny split up after they saw Perdomo exit the warehouse and that when he next came in contact with them, someone had already duct-tapped Perdomo's wrists and mouth.
According to Perdomo, the three men questioned him about how many individuals were inside the warehouse and whether the doors were locked. He responded that he did not speak English. Jones, Royal, and Bunny forced Perdomo to knock on the door of the warehouse to gain entry to the building.
Jones stated that initially he stayed outside the warehouse while Royal and Bunny went in with Perdomo. Perdomo said that once inside, he was taken to a freezer along with other employees. Some of the employees were told to strip to their underwear before being held inside a large freezer. Jones testified that after being outside for three to five minutes, either Royal or Bunny let him into the warehouse. Jones stood guard over the employees in the freezer.
Calvin Lassiter worked in poultry refrigeration at the warehouse. He left the poultry room to go out into the main warehouse to retrieve some wooden pallets. Lassiter was backing up a forklift when he "felt a sharp object go into [his] back." Lassiter could not tell the person's race, but said he was at least six feet tall. The masked man again pushed a sharp object into Lassiter's back and told him to get off the forklift. The masked individual asked Lassiter how many other people were working in the warehouse; he replied eight to ten. Lassiter was taken to the freezer being guarded by Jones.
Tony Clark worked as a data entry clerk at Maxim. She worked in an office closed off from the main warehouse. She testified that drivers who were out late would deposit the cash they collected in a safe in her office. She had arrived at work between midnight and one a.m. on January 18, 2002. After her arrival, two masked men entered the office. Clark was certain that one man was carrying two weapons, but she did not see whether the second man was armed. She observed that one man "was a light skinned, almost black or Spanish guy, [with] braids."
Jim Costanza, who did not testify at trial, was in the office with Clark.*fn1 They both got down when ordered to do so by the masked men. The men broke down the door to a locked office and removed a safe from underneath the desk. Costanza and Clark were then moved by the masked men to the freezer guarded by Jones. There were already other Maxim employees in the freezer when Clark and Costanza arrived. She testified that these employees were in their underwear.
Robert McCarthy, the night supervisor at Maxim, arrived at work around 2 a.m. Approximately five to ten minutes later he entered the warehouse. McCarthy observed several of the employees laying face down on the floor of the warehouse and a man holding a gun standing over them. McCarthy considered running, but instead laid down next to the other employees. Eventually the men were moved to the freezer. The gunman took McCarthy's money and cell phone and "told [him] to strip." McCarthy observed that the gunman had dark skin and was shorter than his six feet two inches.
Devon Hardy had been working with Lassiter and Raymond Davis in the chicken room. After Lassiter and Davis left the chicken room to retrieve more pallets, Hardy saw a masked man, about thirty feet away, pointing a gun at him. As the man started to approach, Hardy put his head down and looked at the ground holding his hands out. Hardy noticed that the masked man was "light skinned," but not "Caucasian." The gunman patted Hardy down and took approximately $55.00 from him. The man asked Hardy: "Where is everybody else at?" Hardy responded that he did not know and that he was not sure if anyone else was coming in that night. Hardy was taken to the freezer where he saw McCarthy, Clark, Lassiter, and Davis. Hardy testified that there was a second armed individual guarding the freezer door.
Approximately five minutes after Hardy's arrival at the freezer, one of the gunman returned and ordered Costanza and Hardy to pick up a large safe and load it onto a dolly. Hardy and Costanza were unsuccessful in their first attempt to get the safe on the dolly. The gunman became agitated with the men and said: "If you drop the safe again I'm going to shoot you." Jones testified that Royal and Bunny ordered two employees to push two safes on a dolly towards a back door. Hardy testified that the back door of the warehouse was open and that a car had been backed up to the door.
At some point, Clark initiated a conversation with Jones who she testified was holding what appeared to be a "sawed off shotgun." Clark informed Jones that she was cold and he told her to stand by him close to the door where it was not as cold. Eventually, the employees were moved to a second freezer that was warmer. Hardy testified that he saw the employees being moved between freezers while he and Costanza were loading the safe onto the dolly. Hardy was sent to the second freezer after he had lifted the safe onto the dolly, however Costanza remained out in the warehouse with the gunmen.
Robert Williams was a supervisor at Maxim. On January 18, 2002, he arrived at work around 3 a.m. Williams entered the warehouse through the front office. He became suspicious when he saw the cash registers in the office open and none of the nighttime employees present. Williams looked through a small window into the warehouse and did not see any employees. He returned to his car, drove across the street, and called 9-1-1.
Jones was instructed by either Royal or Bunny to help get the two safes outside.*fn2 Jones put down the weapon he was holding and helped transport the safes. David had returned with his car and they were trying to carry the safes out of the building and into his car. The safes were too heavy to lift so Jones and David pushed the dolly out the back door towards David's car.
Jones and David were able to get one safe into the trunk of the car. As they were loading the second safe into the backseat of the car, the police arrived. Linden Police Officers Scott Salerno and Joseph Birch approached the back of the warehouse and observed two men loading a safe into the back seat of a Mazda. Salerno and Birch drew their weapons and told the individuals to stop what they were doing; David complied and Jones fled on foot. Jones ran across the parking lot, jumped over a fence, and ran into the woods. Linden Police Officer Don Geisheimer pursued Jones on foot and apprehended him shortly thereafter.
After apprehending Jones, Geisheimer returned to the warehouse and found two guns in the front office; one was a Ruger semi-automatic handgun and the other was a Tec-9 type weapon.
Detective Robert Osada arrived at Maxim at approximately 5 a.m. He found a camouflage duffle bag near the rear of the building. Inside the duffle bag was a stun gun, duct tap, a bandana, and $102. A Smith and Wesson .32 caliber handgun with two rounds was also found inside the duffle bag.
A Mazda 626, with Florida registration was impounded at the scene of the robbery. Osada found fifteen areas on the Mazda from which fingerprints could be lifted. He sent the fingerprints to the New Jersey State Police for possible suspect identification. Only finger prints belonging to Bunny were identified.
Jones did not initially cooperate with the police. He provided the police with a statement on January 18, 2002, but testified at trial that he provided false information in his first statement. He was shown a photo array by Detective Andrew Spano on January 19, 2002. Jones selected Royal's picture from the photo array and wrote on the back: "I'm 90 percent sure that this is the guy that road with [Bunny] and I to Linden." He then signed and dated the back of the photo.
Royal was arrested pursuant to a warrant on February 1, 2002. Royal was transported to the Linden Police Station where he was questioned by Spano. Spano advised Royal of his Miranda*fn3
rights, which Royal waived on a written form. Spano told Royal that he believed he was involved in the robbery of Maxim foods; Royal responded with "prove it." Royal was shown a photograph of Jones. Royal said that he had never seen Jones before. Spano told Royal that the police had prints and Royal responded, "you ain't got my prints." Spano told Royal the prints were not from the building but were from a vehicle and Royal's "demeanor changed" from aggressive to passive. Royal then asked Spano, "you mean the Mazda?" Spano testified that he had not told Royal what type of car the prints had been removed from. Royal told Spano that he could not remember where he was the night of January 17 into the morning of January 18, 2002.
During trial, Jones testified for the State. The prosecution raised the issue of his plea agreement. Jones testified that he had been facing charges of robbery, burglary, weapons possession, and resisting arrest, and that he pled guilty to the charges of robbery and resisting arrest by flight. The plea agreement called for Jones to be sentenced to twelve years with eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, conditioned on Jones providing truthful testimony against his co-defendants. Jones understood that he would be sentenced last, but, in fact, he was sentenced first, on May 6, 2005, to a ten-year imprisonment term with eighty-five percent parole ineligibility pursuant to NERA. When asked why he was testifying, Jones responded: "Number one, it was a condition of my plea."
On May 31, 2005, Royal was convicted of three counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one, two, and three); second-degree burglary, N.J.S.A. 2C:18-1 (count five); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six); and second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven).*fn4
On September 29, 2005, defense counsel requested an adjournment of Royal's sentencing because an issue had arisen regarding the impartiality of a juror. The State consented to the adjournment.
On September 13, 2005, Royal's mother, Marlene Velazquez-Royal, submitted a letter to the court stating that she had worked with a woman on the jury, Juror No. 6, at Muhlenberg Hospital in Plainfield. She stated that she and the woman did not get along. Royal's cousin, Alflesia Williams, also submitted a letter stating that Marlene had introduced her to the juror at Walmart and that the juror had asked about Royal.
On October 14, 2005, Royal moved for a new trial on the grounds of "juror misconduct and/or newly discovered evidence," relying on the failure of the juror to disclose that she knew Royal and his mother.
The trial judge met with Juror No. 6 on November 14, 2005. Although he apparently questioned the juror under oath, there was no record of the interview, at least none was supplied to us, and counsel were not present.
Royal was sentenced on November 18, 2005. Prior to sentencing, the trial judge denied the motion for a new trial. The trial judge also denied the State's request for an extended term. He merged counts five and six into count one. Royal was sentenced to a seventeen-year term of imprisonment with eighty-five percent NERA parole ineligibility for count one; a consecutive thirteen-year term of imprisonment subject to NERA for count two; a concurrent twelve-year term of imprisonment subject to NERA for count three; and a concurrent four-year term for count four. This appeal followed.
Royal raises the following issues on appeal:
THE TRIAL COURT ERRED BY FAILING TO APPROPRIATELY INSTRUCT THE JURY REGARDING THE LIMITED ADMISSIBILITY OF CO-DEFENDANT OMAR JONES'S GUILTY PLEA. (NOT RAISED BELOW).
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM CO-DEFENDANT JONES'S IMPLYING THAT ONE OR MORE CO-DEFENDANTS HAD PLED GUILTY OR HAD BEEN FOUND GUILTY AS WELL. (NOT RAISED BELOW).
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ON THE BASIS OF POTENTIAL JUROR MISCONDUCT WITHOUT CONDUCTING A HEARING PURSUANT TO RULE 1:16-1 WITH THE JUROR IN QUESTION WITH COUNSEL BEING PRESENT, RATHER THAN CONDUCTING AN EX PARTE HEARING WITH THE JUROR.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Because Points I and II were not raised by defense counsel at trial, they are evaluated on appeal under the plain error standard. See R. 1:7-2 and R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Royal argues that the trial court's failure to provide an instruction to the jury limiting the admissibility of Jones's guilty plea to the issue of Jones's credibility warrants the reversal of his conviction. Royal cites State v. Stefanelli, 78 N.J. 418, 435 (1979), for the proposition that without a limiting instruction as to the permissible use of Jones's guilty plea, "the potential for misuse is manifest." Royal also cites several other cases for the proposition that a proper jury charge is essential to a fair trial. See e.g., State v. P.H., 178 N.J. 378, 400 (2004); State v. Marshall, 173 N.J. 343, 359 (2002); State v. Savage, 172 N.J. 374, 387 (2002); State v. Martin, 119 N.J. 2, 15 (1990).
In P.H., supra, the Court recognized that "[e]rroneous instructions concerning 'matters or issues material to the jury's deliberations' are presumed to be reversible error in criminal prosecutions." 178 N.J. at 400 (citation omitted). Unlike P.H. and other cases citied by Royal, the question here is whether the failure to give a jury charge not requested by the defendant warrants reversal, not whether the giving of an erroneous charge warrants reversal.
The State correctly notes that while a limiting instruction might have been appropriate in this case, it was not requested by defense counsel. See N.J.R.E. 105; State v. Nelson, 318 N.J. Super. 242, 254 (App. Div.), certif. denied, 158 N.J. 687 (1999). The State also argues that, because the jury charge must be viewed as a whole and under the "harmless error" standard, the lack of a limiting instruction was not an "error possessing a clear capacity to bring about an unjust result." State v. Timmendequas, 161 N.J. 515, 576 (1999).
The Supreme Court has recently revisited the applicability of the "plain error" standard and the failure to request a limiting instructions concerning a co-defendant's guilty plea. In State v. Adams, 194 N.J. 186, 208-09 (2008), the Court stated:
Although a co-defendant's guilty plea may be considered for credibility purposes, it may not be used as substantive evidence of the defendant's guilt. State v. Stefanelli, 78 N.J. 418, 430-33 (1979). We recognize that there may be a myriad of "other undisclosed or collateral factors" that contribute to a co-defendant entering a guilty plea. Id. at 433 (citation omitted). More importantly, a defendant is entitled "to have his guilt or innocence determined by the evidence presented against him, not by what has happened with regard to a criminal prosecution against someone else." Id. at 430-31 (citation omitted). In sum, the trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt.
In the present case, the trial court should have instructed the jury to carefully scrutinize [the] co-defendant['s] testimony, and not to consider his guilty plea as substantive evidence of defendants' guilt but only in assessing [the co-defendant's] credibility. Defendants, however, neither requested those instructions nor did they object to the instructions that were given. The question then is whether in the context of the trial, the error was clearly capable of bringing about an unjust result.
We find no plain error in the court's failure to give a cautionary instruction on the allowable uses of [the co-defendant's] guilty plea and his testimony. See Stefanelli, supra, 78 N.J. at 436. At trial, defense counsel thoroughly cross-examined [the co-defendant] to challenge his credibility and [the co-defendant's] lack of credibility was a major theme in closing arguments for the defense, which asserted that [the co-defendant] was a liar. The detailed testimony of [the co-defendant] independently established his guilt of the crime and, therefore, his guilty plea added little weight to that testimony. Further, the trial court gave the standard charge on credibility. Under those circumstances, we are satisfied that "the error did not have the clear capacity to produce an unjust result and that it had a minimal effect on the outcome of trial." Id. at 437.
As in Adams, Royal's defense counsel did not request a limiting instruction nor did counsel object on those grounds to the charge given.*fn5
Additionally, defense counsel thoroughly cross-examined Jones and attacked his credibility. Defense counsel even questioned Jones about his plea agreement and his sentence. During his summation, Royal's counsel again focused on Jones's credibility, laying out possible motives for Jones to fabricate the story, including his plea agreement, and pointing to discrepancies between Jones's testimony and the other witnesses.
During the jury charge, the trial judge provided the jury with an extensive charge concerning the credibility of all the witnesses presented at trial. He also gave the following charge concerning the testimony of Jones:
The law requires that the testimony of such a witness be given careful scrutiny in weighing his testimony. Therefore, you may consider whether he has a special interest in the outcome of the trial, and whether his testimony was influenced by the hope or the expectation of any favorable -- any favorable treatment or reward or by any feelings of revenge or reprisal.
If you believe this witness to be credible and worthy of belief you have a right to convict the defendant on his testimony alone, of course, provided, of course, that upon a consideration of the whole case, you are satisfied beyond a reasonable doubt of the defendant's guilt.*fn6
Finally, Jones's testimony, like that of the co-defendant in Adams, established his own guilt of the crime and "therefore, his guilty plea added little weight to that testimony." Under the standard articulated in Adams, we hold that the fact that the trial judge did not give a limiting instruction sua sponte is not error and that, in any event, the absence of the charge did not have the clear capacity to produce an unjust result and, therefore, is not grounds for reversal of the conviction.
Royal also contends that the following exchange between the prosecutor and Jones improperly suggested that there had been other pleas or convictions of co-defendants:
Q: At that time, in December 2003, when you pled guilty, what was your understanding as to when you would be sentenced?
A: I would be sentenced, I think, after everything was taken care of, after - -
Q: What do you mean after everything was taken care of? After what, sir?
A: I think after I was supposed to be sentenced last, I think.
Q: In fact sir, you were not sentenced last?
A: No, I was sentenced first, from what I understand.
Q: I'm sorry. Can't hear you.
A: I was sentenced first.
Q: When were you sentenced, sir?
A: May 6th of this year.
Royal again contends that, without a limiting instruction, the jury could have inferred his guilt because Jones's testimony implied that, in addition to Jones, one or more co-defendants had already been found guilty or admitted their guilt.
We see no merit in Royal's argument. The State had an interest in demonstrating that Jones had already been sentenced, which would have been a factor in judging his credibility. Jones never stated or suggested that others had actually been tried or pled guilty. Finally, the quoted exchange does not raise Bankston*fn7 hearsay concerns, because Jones never stated or suggested that any other co-defendant had implicated Royal in the charged crimes.
The brief discussion of the timing of Jones's guilty plea as "first" rather than "last" is not grounds for reversal of Royal's conviction.
Royal next argues that the trial judge erred in denying his motion for a new trial because of the possibility of juror taint. Juror No. 6 stated during voir dire that she did not know defendant or his counsel. She stated that she worked at Muhlenberg Hospital and lived in Plainfield. During jury selection and throughout the trial, neither Royal nor his mother, Marlene Velazquez-Royal, notified the trial court that Juror No. 6 had worked with defendant's mother. Royal's mother was present for jury selection and most of the trial. Royal did not disclose that Juror No. 6 knew his mother, or allege that she may have known him, until after the conviction.
After the matter had been brought to his attention, the trial judge held an ex parte interview with the juror to discuss any potential misconduct. At sentencing, the trial judge denied Royal's motion for a new trial, saying:
[Juror No. 6] was a juror at the trial. She's a cook at Muhlenberg Hospital and she knew Marlene Velazquez, who was a person who apparently worked also in the kitchen. She said she had no problems with Ms. Velazquez, had no complaints filed against herself nor had she filed against Ms. Velazquez. And she only knew Ms. Velazquez as Velazquez. Ms. Velazquez is the mother of Hector Royal. And [her] last name apparently is also Royal. However, she went by Velazquez and [she] never knew that her last name was Royal. Further, she had a discussion with Velazquez concerning her family, but Ms. Velazquez mentioned she only had a daughter.
She had no conversations with anyone during the trial. That would include Ms. Velazquez, Ms. Velazquez's relatives, nor any other person concerning Hector Royal or the trial. After trial she had no conversations with anyone at any aspect of the trial.
[Juror No. 6] acknowledges seeing Ms. Velazquez in the courtroom I think while she was deliberating, but had no idea she was related to the defendant. And she did this all under oath. So there appears to be not even knowledge of a connection let alone any impropriety. So the Court is satisfied with that.
Royal argues that the trial judge erred by holding the Rule 1:16-1 hearing without counsel present.*fn8 Citing Panko v. Flintkote Co., 7 N.J. 55, 61 (1951), he contends that, even if there was not actually prejudicial conduct on the part of the juror, the mere capacity for such prejudice is sufficient to warrant reversal. Although we agree that it would have been preferable for the trial judge to have interviewed the juror on the record and in presence of counsel, we see no basis for reversal because of Royal's delay in raising the issue in the first place.
In State v. Bianco, 391 N.J. Super. 509, 519 (App. Div. 2007), we "conclude[d] that defendant's knowing failure to speak prior to the jury's verdict constitutes a waiver of his right to later complain of [the juror's] continued participation in the case." "'Any other rule would allow defendants to sandbag the court by remaining silent and gambling on a favorable verdict, knowing that if the verdict went against them, they could always obtain a new trial by later raising the issue of juror misconduct.'" Ibid. (quoting United States v. Costa, 890 F.2d 480, 482 (1st Cir. 1989)).
The fact that Juror No. 6 knew Royal's mother and possibly Royal himself was not information that was discovered only after the verdict. Velazquez-Royal was present during her son's trial and recognized Juror No. 6 as a former colleague, but neither she nor Royal raised the issue until the verdict was returned. At sentencing, Royal asserted that the juror "really knows me," that he had met her, and that his mother reminded him of who she was during the trial. On the facts in this record, we find Royal made a strategic decision and his "knowing failure to speak prior to the jury's verdict constitutes a waiver of his right to later complain of [the juror's] continued participation in the case." See ibid.
In addition, the trial judge determined that there was, in fact, no taint. We will not overturn the discretionary decision of a trial court unless a clear abuse of discretion is shown. State v. Levitt, 36 N.J. 266, 272 (1961) ("Motions for a new trial are addressed to the sound discretion of the court; and the exercise of the discretion will not be interfered with on appeal unless a clear abuse of it is shown." (internal quotation marks and citation omitted)). "Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review." State v. Scherzer, 301 N.J. Super. 363, 488 (App. Div.), certif. denied, 151 N.J. 466 (1997). That procedure was not, apparently, followed here. Nevertheless, the trial judge was satisfied, following his interview of Juror No. 6, that any relationship she had with Royal's mother did not affect her ability to serve as an impartial juror at the trial.
Although a record should have been made of the Juror No. 6 interview, we are satisfied that, given Royal's waiver, the trial judge's findings of fact at sentencing were sufficient for us to satisfy ourselves that there was no error warranting reversal.
Finally, Royal argues that his overall sentence was excessive. Our review of a sentence is limited. We "will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Dalziel, 182 N.J. 494, 501 (2005) (citation omitted). "Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." State v. Natale, 184 N.J. 458, 488 (2005).
Royal received two consecutive sentences that totaled thirty years in the aggregate; (1) a seventeen-year custodial term with an eighty-five percent parole disqualify pursuant to NERA, N.J.S.A. 2C:43-7.2, for count one; and (2) a consecutive thirteen-year custodial term subject to NERA, for count two. The remaining counts were either merged or the sentences were shorter and concurrent.
The State sought an extended term. The trial judge denied its application, stating "the court is not going to impose an extended term in this matter, because the court feels satisfied that pursuant to State v. Yarborough*fn9 that there is sufficient time that will be assessed to this defendant."
N.J.S.A. 2C:43-6(a)(1) establishes the sentencing range for convictions of first-degree crimes between ten and twenty years. In assessing aggravating and mitigating factors, N.J.S.A. 2C:44-1, the trial judge stated:
The Court notes the three prior criminal records that this defendant has. And I incorporate that into our remarks.
The Court finds that the manner of placing the guns at these victims, having them strip and forcing them to be in a cold freezer, and these are not just men, these are men and women together are put in this condition in this freezer, is cruel and it is depraved. And the Court finds that factor number one applies.
The risk the defendant will commit another offense is clear. He has  three prior convictions. Number six, the extent of his prior criminal record and the seriousness of the offenses for which he has been convicted is a significant factor. And there is a need to deter this defendant and others from violating the law, factor number nine.
So factors number one, three, six and nine are applied. There are no mitigating factors in this matter.
Royal argues that the trial court erred in finding aggravating factors one and six, but concedes the applicability of aggravating factors three and nine. Royal also argues that the trial court should have found mitigating factor eleven, pointing to the fact that he has two minor children who live with their mother.*fn10 See N.J.S.A. 2C:44-1(b)(11) ("The imprisonment of the defendant would entail excessive hardship to himself or his dependents.").
Royal argues that the trial court misapplied aggravating factor one because "there was nothing especially significant about the present case to distinguish it from the overwhelming majority of other first degree robberies." Royal suggests that the trial court "double counted" the use of a weapon in finding that the crime was committed in a "heinous, cruel, or depraved manner." See State v. Pillot, 115 N.J. 558, 564 (1989) (using a weapon can not be an aggravating factor if the use of the weapon "has been factored into the offense with which defendant is charged").
While the trial judge did mention "the manner of placing the guns at these victims," (emphasis added), in finding aggravating factor one, he also found that forcing some of the victims to strip to their underwear and holding them in a freezer escalated the crime from the average first-degree robbery to one that was particularly heinous or cruel.
Royal also takes issue with the trial court's finding of aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted." N.J.S.A. 2C:44-1(a)(6). Royal had six prior contacts with the criminal justice system, three involved disorderly persons offenses and three were indictable offenses. Consequently, the trial judge's finding of aggravating factor six was fully supported by the record.
Finally, Royal argues that the trial judge erred in not finding mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11), applicable. However, because defense counsel had not requested that the court consider mitigating factor eleven and did not support it factually at sentencing, we find no error.
Royal also attacks the consecutive sentences. In State v. Yarborough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), the Supreme Court outlined the criteria to be considered in deciding whether to impose a consecutive as opposed to concurrent sentence:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
A sentencing court must also be careful not to "double count" factors when imposing a sentence; i.e. factors that were used as aggravating factors to sentence a defendant to a maximum term for each offense cannot be used to justify the imposition of consecutive as opposed to concurrent terms. State v. Miller, 108 N.J. 112, 122 (1987). "Where the offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively, especially where the second offense did not pose an additional risk to the victim." Ibid.
The trial judge specifically discussed Yarborough in explaining his reasons for imposing a consecutive sentence.
When the court looks to the matter of State v. Yarborough, [supra,] 100 N.J. at 627, the court notes that . . . our Supreme Court says there shall be no free crimes in a system for -- in which punishment shall fit the crime.
And the court is to consider these factors.
Number one, the crimes and their objectives were predominately independent.
The crimes in the parking lot although connected to the crimes inside were independent of one another. The crimes involved separate acts of violence and threats of violence. All these victims, all eleven of these victims suffered separate acts of violence and threats of violence through this hellish experience. Although six or eight of the victims are put in one count, I believe the first count, Mr.
McCarthy is put in count two, and Mr. Devon I think is put in count three, Devon Hardy or something like that. The crimes were committed at different times in separate places. They were close but they were, the parking lot one was separate and distinct from inside the store. And most importantly, the crimes involved multiple victims. And the convictions are numerous in this case.
The trial judge more than adequately explained his reasons on the record for imposing consecutive sentences for counts one and two. Our review of the sentencing judge's decision is limited to determining whether it presents such a "clear error of judgment that it shocks the judicial conscience." Dalziel, supra, 182 N.J. at 501. In a case involving multiple victims such as this one, two consecutive sentences, both below the maximum range for the offense, does not shock the judicial conscience.
For all of the reasons set forth above, we affirm both Royal's conviction and the sentence imposed.