April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KARL D. WILLIAMS,*FN1 DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-0985.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2009
Before Judges Carchman and R. B. Coleman.
Following a jury trial, defendant Karl D. Williams was convicted of first-degree robbery, N.J.S.A. 2C:15-1. The judge sentenced defendant to a mandatory extended prison term of fifteen years subject to serving 85% of the sentence pursuant to the No Early Release Act. N.J.S.A. 2C:43-7.2. We affirm.
The facts are simply stated. On January 1, 2006, the victim, Octavio Pena, was walking home from a store in Belmar when he was approached by defendant and another individual. Defendant grabbed Pena from the back and said, "Shut up, give me your chain." Pena pushed defendant away and ran home. Defendant chased the victim and at the victim's home, the victim and his friend subdued defendant who was held down until the police arrived. As a result of the robbery, Pena suffered bruises to his neck.
On appeal, defendant raises two points:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT INCORRECTLY INSTRUCTED THE JURY DURING THE GENERAL INSTRUCTIONS. (Not Raised Below)
WILLIAMS' SENTENCE IS MANIFESTLY EXCESSIVE.
In reference to Point I, defendant focuses on the jury charge and specifically identifies that portion of the charge that stated:
Before you retire to deliberate and reach your verdict, it is my obligation to instruct you as to the principles of law applicable in this case. You shall consider my instructions in their entirety and pick out any particular instruction and overemphasize it.
Subsequent to the filing of defendant's brief, on notice to defendant, the State moved before the Law Division to settle the form of record. By order of August 25, 2008, the Law Division granted the application, and on August 29, 2009, the court reporter filed an errata sheet indicating that the transcript was corrected to read: "You shall consider my instructions in their entirety and not pick out any particular instruction and overemphasize it."
Thereafter, defendant moved to strike the errata sheet and remand for a hearing. We denied the motions without prejudice but ordered the court reporter to submit a certification "setting forth the factual basis for the issuance of the 'Errata Sheet.'" We also granted both defendant and the State the opportunity to file any objections.
On February 25, 2009, the reporter filed the certification indicating that she had "inadvertently omitted the word 'not' during [her] editing of the transcript of this trial." In addition she attached "the stenographic folds which contain the omitted word 'not' to verify that it is indeed in my stenographic notes and deleting said word was a clerical error during the editing process." Neither defendant nor the State filed any objections.
We are satisfied that the alleged improper charge was a transcription error and not an error warranting our intervention.
Defendant further argues that the fifteen year sentence was excessive. We disagree.
The trial judge, when sentencing defendant found that there was a likelihood of defendant committing another offense, defendant had an extensive criminal record and there was a need to deter, all relevant and supported aggravating factors. See N.J.S.A. 2C:44-1(a)(3), (6) and (9). Defendant argues that there were mitigating factors, specifically, that he did not threaten serious harm and that he had a history of employment, a GED and had "spent most of his life alone." We conclude that none of these considerations rise to the level of mitigating factors. See N.J.S.A. 2C:44-1(b).
We are satisfied that defendant's sentence was warranted under the circumstances and does not shock the judicial conscience. State v. Pierce, 188 N.J. 155, 166 (2008).