March 26, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VERNON SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 05-12-2554-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Winkelstein and Gilroy.
In December 2005, a Monmouth County grand jury indicted defendant on ten counts. The first five counts pertain to a June 9, 2005 robbery of Gerald Brown, Jr. The charges were: count one, first-degree armed robbery; count two, third-degree aggravated assault with a deadly weapon, a firearm; count three, third-degree aggravated assault; count four, second-degree possession of a weapon, a firearm, for an unlawful purpose; and count five, third-degree unlawful possession of a weapon.
The trial judge severed counts six through ten, which were related to a June 10, 2005 robbery of Xiao Chen. Those counts were tried separately, and are the subject of a separate appeal, State v. Smith, No. A-0352-07 (App. Div. March 26, 2009).
Counts one through five were tried in November 2006. A jury convicted defendant of all charges. The court merged counts two, three and four into count one, the first-degree robbery conviction, and imposed a sixteen-year prison term with an eighty-five percent period of parole ineligibility pursuant to NERA.*fn1 On count five, unlawful possession of a weapon, the court imposed a concurrent five-year prison term.
On appeal, defendant raises three points:
POINT I: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE INSOMUCH AS THERE WAS INSUFFICIENT EVIDENCE TO ALLOW A JURY TO CONCLUDE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF CRIMES CHARGED.
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
POINT III: DEFENDANT'S SENTENCE WAS UNDULY MANIFESTLY EXCESSIVE.
Defendant's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Consequently, we affirm his conviction and sentence. We add only the following brief comments.
On June 9, 2005, defendant, Brown, and a group of other men were hanging out in a cemetery. There was testimony that Brown and his friends were members of the Bloods, while defendant and his friends were members of the Crips. An argument ensued, and during the argument, Brown was shot twice in the leg. While hospitalized, Brown refused to make a statement to the police. He also misled the police as to where the crime took place, and he told the officer that he was unable to identify the person who shot him.
Several days later, Brown told Detective Brian Fromhold where the shooting occurred. At trial, Brown testified that someone asked for a cigarette, and then put a gun in his face and asked for money. He smacked the gun away, and was then shot in the leg. He admitted at trial that he lied to the police when they questioned him at the hospital.
On June 25, 2005, when the police were interviewing defendant on an unrelated matter in the Neptune Police Department, he confessed that he shot Brown as part of a robbery. He also gave a written statement. He said he had a.32 revolver, fully loaded, that he used to shoot the victim. Defendant told the police that after Brown smacked the gun away, he shot him because he was not scared enough.
At trial, defendant stated that he thought Brown was reaching for something, so he took his gun out and shot him. As to his prior confession, defendant stated that he just told the police the first thing that "popped" into his head.
This record was sufficient to allow the jury to conclude that defendant was guilty of the crimes charged. The State presented evidence of defendant's confessions. The evidence was sufficient to allow a jury to reasonably conclude that defendant possessed a handgun for the unlawful purpose of robbing Brown, and that defendant shot Brown in the course of the robbery. The trial came down to a question of credibility, and the jury was entitled to believe the officer's testimony as well as defendant's confessions.
We also reject defendant's arguments that his sentence was excessive. The court sentenced defendant to sixteen years, within the mid-range of the ten to twenty-year guideline. The court found two aggravating factors, three and nine. Defendant, who was nineteen years old, had a conditional discharge for marijuana possession, two delinquency adjudications, and he had been incarcerated for another weapons offense. His record supported the aggravating factors.
Defendant claims a number of mitigating factors. He asserts that he did not contemplate that his conduct would cause or threaten serious harm, that he acted under a strong provocation, and that there were substantial grounds to excuse or justify his conduct. The court rejected all mitigating factors, finding that defendant constituted "a menace." These findings were supported by the record.
In sum, the trial court properly exercised its discretion. The court's findings were grounded in competent, credible evidence; the court applied correct legal principles in exercising its discretion, properly weighed the aggravating and mitigating factors based on the evidence, and the sentence was not "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984).