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State v. Kirk

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 4, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTON T. KIRK, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-12-1841.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 28, 2009

Before Judges Lyons and J. N. Harris.

Defendant Anton T. Kirk appeals from his conviction of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); first- degree use of a juvenile to commit a criminal offense, N.J.S.A. 2C:24-9; and second-degree conspiracy, N.J.S.A. 2C:5-2.

The following factual and procedural history is relevant to our consideration of the issues raised on appeal. On Sunday, Mother's Day, May 14, 2006, Jeffrey Cesario and Joseph Elsabee were traveling northbound aboard a New Jersey Transit train from Trenton. Two males, defendant and J.R., boarded the train at the Hamilton station and sat several rows in front of Cesario and Elsabee. Defendant was eighteen-years old and J.R. was sixteen-years old at this time.

Both defendant and J.R. began conversing on their cell phones and became increasingly "loud[] and rambunctious," to the point that they were bothering most of the people aboard the train. After approximately ten or fifteen minutes of this conduct, Cesario approached defendant and J.R. about "keep[ing] it down." Elsabee recalled that Cesario turned to defendant and J.R. and said something like, "hey, can you turn that down, you are pissing people off. Can you turn that shit down? That is pissing people off." According to Elsabee, defendant and J.R. responding by telling Cesario to "'F' off," calling him "the 'N' word," and "continu[ing] to do what they were doing" by speaking louder and increasing the volume on their cell phones.

When the train arrived at the New Brunswick station, at approximately noon, Cesario exited the train. Elsabee remained on board the train because his destination was Metuchen.

Cesario noticed that defendant and J.R. exited the train after him, so he tried to distance himself from them, by stopping and pretending to tie his shoes, to allow the pair to pass. Defendant and J.R. passed Cesario without incident and exited the train station. Cesario observed the pair walk away down the street. Eli Saade, a cab driver, was sitting in his car near the train station, when he observed defendant and J.R. run past his car and discard their bags in a garbage can and some bushes.

Thereafter, Cesario entered a store to buy flowers for his mother. While the clerk, Lauren Berberian, wrapped Cesario's bouquet, Cesario turned around because he thought he heard a noise behind him. Defendant then punched Cesario "square in the jaw," and immediately thereafter Cesario was punched in the jaw by J.R. Cesario testified that he was punched again by defendant and, that in all, he was punched about five times until he fell to the ground. Berberian testified that Cesario was punched more than twice in the face. Cesario was left dazed but not unconscious from the blows. Defendant stated that he struck Cesario only once, on the right side of his face, and that J.R. struck Cesario once, on the left side of his face.

Once Cesario fell to the ground, defendant and J.R. fled. Saade observed defendant and J.R. returning to retrieve their bags. Using the camera on his cell phone, Saade photographed defendant and J.R.

After the attack, Cesario was left bleeding. Emergency medical technicians and police arrived on the scene. Saade showed the photographs of defendant and J.R. to the police, and later, he sent the photographs to the police station. While Cesario was being transported by ambulance to Robert Wood Johnson Hospital, a police officer showed Cesario the photographs of defendant and J.R. from Saade's cell phone. After being examined at the hospital, Cesario learned his jaw was broken and surgery was necessary.

Dr. Michael Stern, who testified as an expert in maxillofacial surgery and facial trauma, treated Cesario at the hospital and determined that Cesario had multiple fractures in his jawbone and that pieces of the jawbone were separated. Additionally, the doctor noticed a segment of bone was floating in Cesario's jaw and several of Cesario's bottom teeth were loose.

Dr. Stern operated on Cesario in an attempt to reattach his jaw and reconstruct his jawbone. Cesario said that his jaw was wired shut for approximately two months after surgery and that he spit up blood for about a week or two afterwards. Cesario said the pain was "horrible."

Dr. Stern determined that Cesario's jaw could not be fully restored and placed back in its socket. This was because a muscle was no longer attached to the jawbone. Dr. Stern pointed out that, now, Cesario's jaw cannot properly open and that Cesario's jaw will permanently deviate to one side. Dr. Stern also noted that Cesario's teeth were permanently deformed and his jaw was permanently disfigured.

Dr. Stern opined that Cesario was probably hit multiple times in order to suffer such a serious fracture. He said that the injury was caused by blows exerted with "a great deal of force." Dr. Stern said the type of injury sustained by Cesario was commonly caused by gunshot wounds, high speed vehicular accidents, or assaults with an instrument.

Dr. Rick Wright, an expert in orthodontics, testified that as a result of the incident, Cesario now has a moderate open bite, a moderate overjet, some maxillary crowding, a crossbite, and an uncentered midline.

Dr. Douglas Ely, an expert in dentistry, opined that Cesario's ability to eat could be limited by the injury.

On May 24, 2006, Saade's photographs of defendant and J.R. were published in several local newspapers. James Rau, the clinical director of Bonnie Brae residential home for juveniles, saw the photographs and recognized defendant and J.R. because they were residents of Bonnie Brae. Rau notified the police, and defendant and J.R. were subsequently arrested.

Upon arriving at the New Brunswick Police Department, defendant waived his Miranda*fn1 rights and provided a statement; both the waiver and statement were recorded on tape. In his statement, defendant said Cesario asked him and J.R. to quiet down while aboard train. He then stated:

So we got off the train and first [Cesario] was walking in front of us. So I guess he might have felt threatened. So... he let us go in front of him and... I, I [was] like you was talking mess on the train let[']s get in it now[,]... he was like whatever, whatever....

[S]o he went to the left. I went to the right and I put my bag down and uh I told my boy I was about to hit him. He said okay. So I walked over there. He saw me coming.... I hit him.

Defendant said that he took his shirt off, after he left the flower shop while he walked down the street. He also stated that he saw the police arrive at the scene.

In Indictment No. 06-12-184, defendant was charged with second-degree aggravated assault (count one), first-degree use of a juvenile to commit a criminal offense (count two), and second-degree conspiracy (count three). J.R. was also charged with the crimes stated in counts one and three. The State successfully moved to transfer J.R.'s matter to the Law Division to try J.R. as an adult. Thereafter, J.R. entered into a plea agreement and pled guilty to count one. Defendant was tried by a jury.

In the State's opening statement, it declared, "[J.R.] also gave a statement. You will be hearing that." However, J.R. never testified nor was his statement read into evidence.

At the conclusion of the State's case, defendant moved for a judgment of acquittal. Defendant particularly sought dismissal of count two because "the juvenile in this matter was actually tried in adult court, and he was convicted in adult court. So, the State has not considered him to be a juvenile, and he was not treated as a juvenile in the case, after trying to convict [defendant] for the use of a juvenile." The trial court denied the motion. The Court determined that sufficient testimony supported the offenses charged.

At trial, defendant claimed that he did not intend to hurt Cesario when he punched him and that he never told J.R. to help him or hit Cesario.

Also, on direct examination, defense counsel asked defendant to "characterize [Lauren Berberian's] testimony, in terms of where the incident took place." Defendant responded, "[f]irst, she stated that, Jeff Cesario was pushed. Jeff was never pushed. She stated that we pushed Jeff. We did not push Jeff. In my statement and [J.R.'s], in the discovery, it has nothing, it has no evidence about that, about Jeff Cesario being pushed."

During the State's cross-examination of defendant, the following exchange took place:

Q: You also stated a minute ago, that you read all the discovery; correct?

A: Yes, sir.

Q: You said [J.R.'s] statement doesn't match what happened here; correct?

A: No.

Q: It doesn't? Does his statement match?

A: It should.

Q: Does it match what Lauren Berberian was saying?

A: No.

Q: First, I'm going to show you three documents. I'm going to show you your statement to the police that day. Okay. I will show you [J.R.'s] statement. And I'll show you [J.R.'s] statement from the previous hearing. I need you to refresh your recollection on [J.R.'s] statements; okay?

The State's line of questioning then turned towards whether defendant made a plan with [J.R.] to hit Cesario:

Q: The plan was for [J.R.] to hit him first and you second?

A: There was no plan.....

Q: You don't remember making a plan with [J.R.], where he was supposed to hit him first, and you second?

A: No.

Q: Let me refresh your recollection. Page 22, the second paragraph. I want you read through that.

A: I asked him.

Q: Don't read it out loud.

A: Not out loud.

Q: Just to refresh your recollection

THE COURT: Not out loud..... [Defense Counsel]: I object for the record. He's asking him to read the transcript of another prior proceeding, which doesn't involve him.

[The State]: I'm just asking him if it refreshes his recollection.

THE COURT: [H]e can really use any item to see if it refreshes his recollection. If it does, that's fine. If it doesn't, that's fine.

Q: You don't remember making that plan with [J.R.]?

A: No, I do not.

The State's cross-examination of defendant also contained the following exchange:

Q: Let's talk about the shirt for a minute.

A: The shirt?

Q: The shirt that you took off. You were running around the streets of New Brunswick, in the middle of May, with your shirt off; correct?

A: No.

Q: No?

A: My shirt was off, when I came back to get my bag. I was not running around with my shirt off.....

Q: Page seven of your statement.....

Q: A fourth of the way down, you say, "I took my shirt off, so I can get like to change my shirt"?

A: Yeah. Yes. I wasn't running around with my shirt off.....

Q: So you took your shirt off, So, you can get to change your shirt, just in case?

A: Yes.

Q: Page nine, "I took my shirt off, when I was walking down the street. I was going to put my shirt on in the van. I kept walking until they picked us up"? So, you had your shirt off the whole time?

A: No. I was going back down the street, and I took my shirt off.....

Q: You were, in fact, going to go and hide? You jumped over the fence to go and hide? You had your shirt off?

A: When I got back, I put my shirt on.

Q: You had your shirt off the whole time?

A: When I got my bag, I had put my shirt on. I hid it behind the fence.....

Q: So, so you put a new shirt on?

A: Yes.

Q: Three times I asked you that. You changed your shirt. You put on another shirt, didn't you?

A: Yes.

Q: Because yours had the blood of Jeff Cesario all over it? That's why you got rid of the evidence, didn't you?

A: Yes.

Q: When you ran, you had an opportunity to call the police, right, but instead you hid; right?

A: Yes.

Q: You had an opportunity to go down, and tell the police what you did; but you hid?

A: (No verbal response)

Q: You even say that in your statement? You saw police cars but instead of going to the police cars, you hid? You hid behind a fence; correct?

A: Yes

Q: You changed your shirt; correct?

A: Yes.

In its jury charge, the trial court gave the following instruction:

If you find that the defendant, fearing that an accusation or arrest would be made against him, on the charge involved in the indictment, took refuge in flight, for the purpose of evading accusation or arrest on that charge, then you may consider such flight, in connection with all the other evidence in the case, as an indication, or proof of a consciousness of guilt.

Flight may only be considered as evidence of consciousness of guilt, if you should determine that the defendant's purpose in leaving was to evade accusation or arrest, for the offense charged in the Indictment.

If, after consideration of all of the evidence, you find that the defendant, fearing that an accusation or arrest would be made against him, on a charge involved in the Indictment, took refuge in flight, for the purpose of evading accusation or arrest, then you may consider such flight in connection with all the other evidence in the case, as an indication, or proof of a consciousness of guilt. It is for you, as judges of the facts, to decide whether or not evidence of flight shows a consciousness of guilt, and the weight to be given such evidence, in light of all of the other evidence in the case.

During its deliberations, the jury asked the trial court if it could review [J.R.'s] statement. The trial court told the jury that the statement was not in evidence and, therefore, the jury could not review it. The jury eventually returned a verdict of guilty on all three counts.

Afterwards, defendant moved for a new trial and bail pending appeal. Defense counsel argued, among other things, that the State's references to J.R.'s statements amounted to "prosecutorial misconduct" and prejudiced defendant's right to a fair trial. The court denied both motions. The trial court said that anything could be used to refresh a witness's recollection and that it did not find an unjust result occurred. In its decision regarding defendant's motion for a new trial, the trial court determined that, "[t]he quantity and quality of evidence presented to the jury was more than adequate to determine that Mr. Cesario suffered serious bodily injury." The trial court found that the cumulative testimony of the four doctors demonstrated that the jury could have found Cesario suffered serious bodily injury. Moreover, the trial court determined that "[t]hrough evidence demonstrating the defendant's persistence in targeting the jaw and face area[,] the jury had enough information to conclude that [defendant] was attempting to cause serious bodily injury." The trial court further noted that evidence was presented that J.R. was less than eighteen-years old and therefore he qualified as a juvenile for the purposes of count two. The trial court also inferred that defendant and J.R. acted in concert, between the way they acted on the train, struck Cesario, laughed, and fled. Lastly, regarding count three, the trial court found that similar evidence would be sufficient to warrant a conviction for conspiracy as well.

Defendant's presentence investigation report stated that the victim submitted receipts in the amount of $1,949.31 that he had paid out-of-pocket for medical expenses and prescriptions as a result of defendant's offenses. Additionally, the report stated that the Violent Crimes Compensation Board had paid $8,177.58 for the victim's medical bills.

The sentencing court found the following aggravating factors applied to defendant: the nature and circumstances of the offense, N.J.S.A. 2C:44-1(a)(1); the gravity and seriousness of the harm inflicted by defendant, N.J.S.A. 2C:44-1(a)(2); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need for deterrence, N.J.S.A. 2C:4-1(a)(9). No mitigating factors were found. Explaining its findings, the sentencing court explained:

I do agree that the Court can consider [the nature and circumstances of the offense] and [do] not see it as double-counting in any way because here I think some of the considerations need to be looked at. They are that this crime did occur in broad daylight. They are that this occurred when the victim was very vulnerable. When he basically turned his back and was attempting to purchase flowers at a flower shop[,] the two individuals came up from around him, behind him, and he was in a very vulnerable position. Finally I find that this was an extremely senseless and cruel act over some words that were exchanged on a train.

The victim's injuries also must be considered..., and I do not believe this is double-counting as well. Clearly the victim sustained certain injuries that were testified to by the doctors. The injuries sustained were multiple fractures to the lower jaw, displacement of several lower teeth, lacerations to the oral tissues and damage to the sensory nerve. He underwent surgery and his jaw was wired shut for several weeks. There has clearly been disfigurement of his jaw and it will be permanent as noted by the experts. Again, this injury, albeit by itself, arguably is a serious bodily injury as defined under our statute, but it continues to be injury not just to the jaw as it occurred but he continues to feel a great deal of pain as noted when he does normal everyday activities. I think the seriousness and the amount of injuries received from the punch or punches from [defendant] really can be considered. I don't give it as much weight as number one and the other aggravating, but I think the Court can consider the seriousness of harm upon this victim and not just that physical but also an emotional [harm], that he is not the same person, his face does not appear to be the same as he testified.

The sentencing court also noted that defendant had twenty-three prior juvenile complaints for offenses such as assault, burglary, and theft. The sentencing court observed that defendant had previously violated probation several times. The sentencing court also reviewed evaluations of defendant, which indicated that he had problems with impulse control and anger since he was twelve-years old. The trial court noted that "[r]ecords show that the defendant developed behavior of assaulting people when he did not get his way." Based on defendant's juvenile record and his evaluations, the trial court explained there was a strong need to deter defendant and others from violating the law.

On count one, defendant was sentenced to nine-years imprisonment subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. A fifteen-year term of imprisonment, to run concurrently with the sentence for count one, was imposed on defendant for count two. Count three was merged with count two. In addition to the applicable statutory fines, the sentencing court ordered defendant to pay $1,949.31 in restitution to the victim and $8,177.58 to the Violent Crimes Compensation Board (VCCB).

In his brief, defendant raises the following issues on appeal:

POINT I

THE PROSECUTOR VIOLATED THE DEFENDANT'S SIXTH AMENDMENT RIGHT TO CONFRONTATION AND FIFTH AMENDMENT RIGHT TO SILENCE, AND UNDERMINED THE DEFENDANT'S PRESUMPTION OF INNOCENCE, DURING HIS CROSS-EXAMINATION OF THE DEFENDANT (Raised in part below and not raised in part below).

(A) The prosecutor improperly injected co-defendant [J.R.'s] statement into the trial during his cross-examination of the defendant (raised in part below).

(B) Questioning the defendant about his failure to go to the police constituted plain error (not raised below).

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS COUNT TWO BECAUSE THE STATE WAS EQUITABLY ESTOPPED FROM NAMING [J.R.] AS THE "JUVENILE" WHO THE DEFENDANT USED TO COMMIT A CRIME.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNTS ONE AND TWO AND THE DEFENDANT'S POST-VERDICT MOTION FOR A NEW TRIAL.

(A) The defendant's motion for a judgment of acquittal at the end of the state's case on counts one and two should have been granted because the state only produced speculative evidence of guilt.

(B) The trial court abused its discretion in denying the defendant's motion for a new trial because the jury verdicts on counts one and two were against the weight of the evidence, and because the jury verdict on count two resulted in a manifest denial of justice under the law.

POINT IV

THE AGGREGATE 15 YEAR BASE CUSTODIAL SENTENCE, 9 YEARS OF WHICH WERE SUBJECT TO THE NERA PERIOD OF PAROLE INELIGIBILITY, WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S SENTENCING DISCRETION.

(A) The trial court abused its discretion in imposing base custodial sentences that exceeded the statutorily authorized minimum terms.

(B) The order of restitution in the amount of $10,126.89 was improper because the trial court failed to conduct a hearing to determine the defendant's ability to pay.

First, we turn to defendant's claim that the State's references to co-defendant J.R.'s statements violated defendant's Sixth Amendment right.

The Sixth Amendment confers upon an accused a right to confront opposing witnesses. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968), the Court held that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extra-judicial statements in determining [defendant's] guilt, admission of [a co-defendant's] confession in [a] joint trial violated [defendant's] right of cross-examination" as secured by the Sixth Amendment. Id. at 126, 88 S.Ct. at 1622, 20 L.Ed. 2d at 479.

New Jersey Rule of Evidence 612 permits a party to use a writing to refresh a witness's memory. The writing is not substantive evidence. Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 612 (2009). "The admissible evidence is the recollection of the witness, and not the extrinsic paper." State v. Carter, 91 N.J. 86, 123 (1982). After it is established that a witness's memory is impaired, the witness may review any document to refresh his or her memory. State v. Williams, 226 N.J. Super. 94, 103 (1988). "If looking at the document refreshes the witness's recollection, he or she may then testify as to that refreshed recollection." Ibid.

If the threshold requirement of impaired memory is not met, an appellate court reviews the use of a document to refresh a witness's recollection for plain error. Id. at 104.

"[T]he 'opening the door doctrine'... authorizes admitting evidence which otherwise would have been... inadmissible in order to respond to (1) admissible evidence that generates an issue, or (2) inadmissible evidence admitted by the court over objection." State v. Rucki, 367 N.J. Super. 200, 207 (App. Div. 2004) (quoting State v. James, 144 N.J. 538, 554 (1996)) (internal quotation marks omitted). The doctrine of curative admissibility permits a party to introduce otherwise inadmissible evidence to rebut or explain inadmissible evidence previously introduced by the opposing party. State v. James, 144 N.J. 538, 555 (1996). The doctrine of curative admissibility applies only when inadmissible evidence has been allowed, that evidence was prejudicial, and the proffered testimony would counter that prejudice. Ibid.

On direct examination, defendant, of his own accord, referred to J.R.'s statement and suggested that it differed from the testimony of Berberian. Defendant's reference to evidence that the State could not otherwise introduce was prejudicial to the State's case. Only after defendant referred to J.R.'s statement did the State seek to refresh defendant's memory regarding J.R.'s statement in an attempt to impeach defendant on his apparent mischaracterization of J.R.'s statement. Notably, the content of J.R.'s statement was not read nor disclosed to the jury. Moreover, after defendant stated that he did not remember making a plan with J.R., the State did not mention J.R.'s statement again. We also note that the trial court specifically instructed the jury that it could not consider J.R.'s statement.

Because defendant opened the door and because of the doctrine of curative admissibility, the trial court did not err in permitting the limited references to J.R.'s statement. Additionally, while it was not properly established that defendant's memory was impaired, we find that the State's flawed attempt at refreshing defendant's recollection and its references to J.R.'s statement were not clearly capable of producing an unjust result. See R. 2:10-2. Hence, defendant's claim is without merit.

Defendant argues that the State's cross-examination of defendant regarding his failure to go to the police constituted plain error. To meet the plain error standard, an error must "have been clearly capable of producing an unjust result." R. 2:10-2.

The Fifth Amendment provides, "[n]o person shall be... compelled in any criminal case to be a witness against himself...." To protect this right, the United States Supreme Court has held that a prosecution may not use an individual's statements from a custodial interrogation unless the person has been administered and waived his or her Miranda rights. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706.

Our State Constitution does not contain a provision similar to the Fifth Amendment, however "our privilege against self-incrimination... is deeply rooted in this State's common law and codified in both statute and an evidence rule." State v. Brown, 190 N.J. 144, 153 (2007) (quoting State v. Muhammad, 182 N.J. 551, 567 (2005)) (internal quotation marks omitted).

In Muhammad, our Court held that a defendant's "silence while in custody, under interrogation, or 'at or near' the time of his arrest cannot be used against him in a criminal trial." Muhammad, supra, 182 N.J. at 558. The Court explained that "[b]arring the use of silence 'at or near' the time of arrest avoids the often murky inquiry into pinpointing the precise moment a suspect is placed in custody or under arrest," which is when a defendant's Fifth Amendment and Miranda rights are implicated. Id. at 569.

However, this case turns on defendant's pre-arrest conduct. The U.S. Supreme Court has permitted the admission of a defendant's pre-arrest silence. Jenkins v. Anderson, 447 U.S. 231, 235-38, 100 S.Ct. 2124, 2127-29, L.Ed. 2d 86, 92-95 (1980). In that case, defendant testified that he killed the victim in an act of self-defense. Id. at 232, 100 S.Ct. at 2126, 65 L.Ed. 2d at 90. On cross-examination, the prosecutor attempted to impeach the defendant by asking defendant why he did not speak up immediately that he acted in self-defense. Id. at 235, 100 S.Ct. at 2127, 65 L.Ed. 2d at 92. The Court held that the Fifth Amendment is not violated by the use of pre-arrest silence to impeach a criminal defendant's credibility.

Id. at 238, 100 S.Ct. at 2129, 65 L.Ed. 2d at 94-95.

In State v. Brown, 118 N.J. 595 (1990), our Supreme Court recognized that "a defendant has no right not to speak prior to arrest" and "no duty to speak prior to arrest." Id. at 613 (emphasis in original). The Court held that "pre-arrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved." Id. at 613. The Court further explained that to determine the admissibility of a defendant's silence, "the probative worth of pre-arrest silence as bearing on credibility must be assessed in light of all the surrounding circumstances." Ibid. It further stated:

[i]f it can be inferred by the fact-finder that a reasonable person situated as the defendant, prior to arrest, would naturally have come forward and mentioned his or her involvement in the criminal episode, particularly when this is assessed against the defendant's apparent exculpatory testimony, then the failure to have done so has sufficient probative worth bearing on defendant's credibility for purposes of impeachment. [Id. at 613-14.]

The Court concluded, that after being subjected to such analysis, pre-arrest silence is admissible if "it generates an inference of consciousness of guilt that bears on the credibility of the defendant when measured against the defendant's exculpatory testimony." Id. at 615. The Court restated these principles in State v. Brown, 190 N.J. 144 (2007), and broadened their scope to include pre-arrest conduct. Id. at 158-59.

We recognize that "certain conduct of a defendant subsequent to the commission of a crime may indicate his consciousness of guilt." State v. Phillips, 166 N.J. Super. 153, 159 (1979), certif. denied, 85 N.J. 93 (1980). Certain conduct, such as unexplained flight, may be probative as to the ultimate question of guilt. Id. at 159-60.

In this case, the State's line of questioning on cross-examination of defendant focused on his flight from the flower shop. The cross-examination then transitioned from defendant's flight and removal of his shirt, to his observations of the police and his failure to say anything to them at that time. Guided by the Court's analysis in Brown, supra, 118 N.J. at 613-14, we doubt that a reasonable person, situated in defendant's position, would have naturally come forward and admitted his involvement in the attack. Defendant never claimed self-defense; rather, he asserted that he did not have the requisite mental state required for second-degree aggravated assault. We question whether a reasonable person would have approached the police with such an explanation shortly after hitting Cesario. Hence, we find that the State improperly questioned defendant about his failure to come forward to the police in an effort to show defendant's consciousness of guilt.

However, considering the strong evidence supporting defendant's guilt and the context of the questions regarding his pre-arrest conduct, we find that the admission of defendant's pre-arrest conduct was not "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, we are satisfied beyond a reasonable doubt that the error did not contribute to the outcome and, therefore, there was no plain error. See State v. Macon, 57 N.J. 325, 335 (1971).

We next consider defendant's claim that because the State waived J.R., who was a juvenile, into the Law Division to be tried as an adult, the State was therefore equitably estopped from naming J.R. as the juvenile used by defendant to commit a criminal offense in count two.

At the outset, we recognize that a juvenile may be judicially waived to adult court, at the judge's discretion, if the State shows that the juvenile is not amenable to treatment and poses a threat to the community. State in the Interest of A.L., 271 N.J. Super. 192, 199 (App. Div. 1994); see N.J.S.A. 2A:4A-26. Our waiver statute, N.J.S.A. 2A:4A-26, provides, in pertinent part:

a. On motion of the prosecutor, the court shall, without the consent of the juvenile, waive jurisdiction over a case and refer that case from the Superior Court, Chancery Division, Family Part to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing that:

(1) The juvenile was 14 years of age or older at the time of the charged delinquent act; and

(2) There is probable cause to believe that the juvenile committed a delinquent act or acts which if committed by an adult would constitute (a) Criminal homicide other than death by auto, strict liability for drug induced deaths, pursuant to N.J.S.[A.] 2C:35-9, robbery which would constitute a crime of the first degree, carjacking, kidnapping, aggravated sexual assault, sexual assault, aggravated assault which would constitute a crime of the second degree........

(g) An attempt or conspiracy to commit any of the acts enumerated in paragraph (a), (d) or (e) of this subsection....

e. If the juvenile can show that the probability of his rehabilitation by the use of the procedures, services and facilities available to the court prior to the juvenile reaching the age of 19 substantially outweighs the reasons for waiver, waiver shall not be granted.

N.J.S.A. 2C:24-9, criminalizes the "use of a juvenile in any offense" with limited exceptions. The statute applies to "any person who is at least 18 years of age who knowingly uses, solicits, directs, hires, employs or conspires with a person who is in fact 17 years of age or younger to commit a criminal offense...." Id.

Defendant's argument that the State was equitably estopped from utilizing J.R. as the juvenile in the offense because it initially waived J.R. into the Law Division as an adult is without merit. These are separate statutes that serve separate purposes. As noted above, the waiver statute permits a family court to waive its jurisdiction if the juvenile is not amenable to rehabilitation by utilizing that court's resources, whereas the criminal offense criminalizes an adult's use of a juvenile to commit a criminal offense. Each statute addresses a different concern. The first is aimed at holding a juvenile, who commits certain offenses and is not amenable to rehabilitation, as an adult for purposes of enforcing the criminal law. The second is pointed at prosecuting adults who use juveniles in criminal activities. Aside from their use of the word juvenile, these two statutes are unrelated. Therefore, the State was not equitably estopped from naming J.R. as the juvenile in the offense.

Defendant also contends that the trial court erred in denying its motions for judgment of acquittal and for a new trial on counts one and two.

Under Rule 3:18-1, a court shall enter an order for a judgment of acquittal only "if the evidence is insufficient to warrant a conviction." In assessing the sufficiency of the evidence, we apply the same standard of review as the trial court, that is: whether viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

In making this assessment, "the court 'is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Accordingly, if "such evidence would enable a reasonable jury to find the accused is guilty beyond a reasonable doubt of the crime or crimes charged," we must affirm. State v. Perez, 177 N.J. 540, 549 (2003).

Rule 3:20-1 provides, in pertinent part:

[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice.... The trial judge shall not, however, set aside the verdict of the jury against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

"[A] motion for a new trial is addressed to the sound discretion of the trial judge, and the exercise of that discretion will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000).

Sufficient evidence warranted a conviction for all counts, and a new trial was not in the interest of justice. The elements of aggravated assault are (1) "the defendant[] caused serious bodily injury to another"; and (2) "the defendant[] acted purposely or knowingly or acted recklessly under circumstances manifesting extreme indifference to the value of human life." Model Jury Charge (Criminal), Aggravated Assault -Serious Bodily Injury (2005); see N.J.S.A. 2C:12-1(b)(1). "Serious bodily injury means 'bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.'" N.J.S.A. 2C:11-1(b). "A person acts purposely with respect to the result of his conduct if it is his conscious object to cause such a result." Model Jury Charge (Criminal), Aggravated Assault - Serious Bodily Injury (2005); see N.J.S.A. 2C:2-2(b)(1). "A person acts knowingly with respect to the result of his conduct if he "is aware that it is practically certain that his... conduct will cause such a result." Model Jury Charge (Criminal), Aggravated Assault - Serious Bodily Injury (2005); see N.J.S.A. 2C:2-2b(2).

Sufficient evidence warranted defendant's convictions. The testimony of the doctors evinced that Cesario suffered serious bodily injury. Proof of defendant's mental state was supported by the testimony of defendant, Berberian, Cesario, and Dr.

Stern. Defendant admitted he intentionally struck Cesario's face. Berberian observed Cesario was hit by defendant and J.R. at least twice. Cesario said he was struck by defendant at least twice. Dr. Stern opined that Cesario was punched several times and with "a great deal of force" comparing defendant's injuries to those suffered from gunshot wounds, high-speed vehicular accidents, or assaults with an instrument. Thus, the State presented sufficient evidence to warrant a conviction for second-degree aggravated assault.

An individual is guilty of using a juvenile to commit a criminal offense when, one who is at least 18 years of age "knowingly uses, solicits, directs, hires, employs or conspires with a person who is in fact 17 years of age or younger to commit a criminal offense." N.J.S.A. 2C:24-9. Under N.J.S.A. 2C:5-2(a), a conspiracy is defined as when, an individual, with the purpose of promoting or facilitating [a crime's] commission, agrees with [another] person... that they or one... of them will engage in conduct which constitutes [a] crime or an attempt or solicitation to commit such crime; or [a]grees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

According to defendant's statement, he told J.R. that he was going to hit Cesario, and J.R. said, "okay." The State also demonstrated that defendant and J.R. discarded their bags, each struck Cesario, and then ran away together from the store. This evidence supports a finding of a conspiracy. Furthermore, defendant was eighteen-years old and J.R. was sixteen-years old, thereby supporting a conviction of defendant for first-degree use of a juvenile to commit a criminal offense.

Lastly, we review defendant's claims that the sentencing court imposed an excessive sentence and improperly imposed restitution upon him without holding a hearing.

A sentence should be affirmed unless an appellate court determines that legislative policies were violated, the aggravating or mitigating factors were not supported by credible evidence, or the sentence, in accordance with the sentencing guidelines, is "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). We recognize that we "may not substitute [our] judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009).

"[F]acts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000). This is because our Legislature has already considered the offense's elements in the gradation of the crime. Ibid.

Aggravating factor number one focuses on "[t]he nature and the circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1).

The sentencing court's reasons for finding this aggravating factor applicable were that Cesario was assaulted in retaliation for telling defendant and J.R. to quiet down on the train, and that defendant ambushed and repeatedly punched an unsuspecting Cesario in the flower shop. Sufficient credible facts supported these reasons, and they did not entail the aforementioned elements of aggravated assault, but rather, they were related to the nature and circumstances of the offense and defendant's cruel and unwarranted response to Cesario's statements that were made on the train. See State v. Soto, 340 N.J. Super. 47, 71-72 (App. Div.), certif. denied, 170 N.J. 209 (2001). In finding aggravating factor one applicable, the sentencing court did not double-count.

Aggravating factor number two is the "gravity and seriousness of harm inflicted on the victim." N.J.S.A. 2C:44-1(a)(2). The Court has held:

[w]hen a sentencing court considers the harm a defendant caused to a victim for purposes of determining whether that aggravating factor is implicated, it should engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants. Although the definition of 'serious bodily injury' in N.J.S.A. 2C:11-1(b) clearly contemplates a level of injury severe enough to trigger the 1(a)2 aggravating factor, 'the gravity and seriousness of the harm' encompassed by that aggravating factor is a broader and less precise concept that permits the exercise of sound discretion by the sentencing court in determining whether the extent of the harm to the victim warrants application of that aggravating factor. [Kromphold, supra, 162 N.J. at 358 (emphasis added).]

The Court also noted that our Legislature did not link the harm contemplated in the aggravating factor with the definition of "serious bodily injury" in N.J.S.A. 2C:11-1(b). Ibid.; see GE Solid State, Inc. v. Div. of Taxation, 132 N.J. 298, 308 (1993) ("[W]here the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded.").

Here, credible evidence supports the sentencing court's finding of aggravating factor two. Moreover, the sentencing court did not impermissibly double-count, but rather it, appropriately found aggravating factor number two applicable by looking beyond the serious bodily injury the victim sustained and by considering the emotional harm and pain suffered by the victim.

Aggravating factor number nine focuses on "[t]he need for deterring the defendant and others from violating the law."

N.J.S.A. 44:-1(a)(9).

Defendant was the subject of twenty-three juvenile complaints and four probation violations. Defendant's evaluations demonstrate he tended to engage in disruptive or assaultive behavior. In addition, the evaluations indicate that defendant repeatedly engaged in violent behavior and that he violated probation. Hence, sufficient evidence supported the sentencing court's finding of aggravating factor number nine, the need for deterring defendant and others from repeatedly engaging in assaultive behavior. See State v. Gallagher, 286 N.J. Super. 1, 21 (1995), certif. denied, 146 N.J. 569 (1996).

To be sure, defendant's sentence was within the sound discretion of the sentencing court. The sentence imposed by the sentencing court does not shock the judicial conscience, and we, therefore, affirm defendant's sentence.

We recognize that N.J.S.A. 2C:44-2 permits the sentencing court to require a defendant to pay a fine or restitution. "Due process is satisfied by affording the defendant a hearing on the amount of restitution, as prescribed in State in the Interest of D.G.W., 70 N.J. 488 (1976), and where there is a factual basis in the record to support the court's determination of the amount of restitution." State v. Harris, 70 N.J. 586, 599 (1976).

In this case, neither a hearing was held nor did the sentencing court state its reasons for imposing the restitution. Thus, we remand this matter solely to require the sentencing court to hold a summary hearing and to make the appropriate findings under N.J.S.A. 2C:44-2(b) and (c).

Affirmed in part, remanded in part.


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