March 12, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
BRUCE B. REYES, A/K/A BRUCE BLANCO REYES, BRUCE P. BLANCO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-07-0691-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 18, 2009
Before Judges Cuff and C.L. Miniman.
Defendant Bruce B. Reyes appeals from a judgment convicting him of third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b, and violation of probation on which a sen- tence of four years imprisonment was imposed on July 17, 2007. Defendant also appeals from a judgment entered the same day convicting him of second-degree robbery, contrary to N.J.S.A. 2C:15-1; fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a; and fourth-degree obstructing the administration of law, contrary to N.J.S.A. 2C:29-1, on which an aggregate term of ten years imprisonment was imposed. The sentences were to be served consecutively. We now affirm his various convictions and the aggregate ten-year sentence, but remand for clarification or reconsideration of the four-year sentence.
On March 27, 2006, Patrolman Franklin Idrovo of the Elizabeth Police Department was assigned to a plain-clothes unit working the late-night shift in an unmarked vehicle with his partner, Patrolman Raul DeLaPrida, also in plain clothes. At about 11:50 p.m., they were on High Street when, from ten to fifteen feet away, they observed several young men engaging in what they initially thought was horseplay. One of the men, Devonne Figueroa, was holding another man, Jose Luis Sotelo, in a "full Nelson," with Sotelo's arms above his head and Figueroa's hands locked behind Sotelo's neck. When the officers observed defendant punch Sotelo in the neck and then reach into his pocket and take his wallet, they knew they were observing a robbery in progress.
Idrovo stopped his vehicle just beyond the men while defendant was looking through Sotelo's wallet. The two officers got out of their vehicle. As they walked to the sidewalk, they observed another group of three men a few feet away from the first group. One of those men, Carlos M. Nunez, was lying in a fetal position and was being punched, kicked, or both, while the other two men had their hands in Nunez's pockets. The police officers said, "Police. Stop. You are under arrest." The four perpetrators took off running south on High Street.
Idrovo went after defendant, never losing sight of him. Idrovo shouted to defendant, "Stop. Police. Stop running. You are under arrest." Idrovo chased defendant down High Street to Second Avenue, then to South Seventh Street, where he grabbed defendant as he tried to climb over a fence. Idrovo handcuffed defendant and they returned to the scene of the robbery. During this foot chase, Idrovo saw defendant throw away Sotelo's wallet on the corner of High Street and Second Avenue. Idrovo later directed DeLaPrida to recover the wallet.
While Idrovo chased defendant, DeLaPrida chased and immediately apprehended Figueroa, handcuffed him, and placed him in the officers' vehicle, which DeLaPrida locked, and then gave chase to the other perpetrators. He followed co-defendant Emerson Colorado, one of the two perpetrators who had been assaulting Nunez. Colorado turned into an alleyway between 24 and 26 High Street, jumped several fences, the tried to hide under a tarpaulin covering construction equipment in a construction yard. Additional officers arrived to assist DeLaPrida, and Colorado was dragged out from underneath the tarpaulin and placed under arrest. A search incident to arrest disclosed two $20 bills in his front pocket, the exact sum stolen from Nunez. The fourth perpetrator was never apprehended. DeLaPrida testified, without objection, that he knew defendant and Colorado "from the neighborhood."
At the time of trial, Sotelo was not able to identify either of his assailants. He testified that he and his friend were walking home from a tavern when the perpetrators came up behind them and asked for a light. Sotelo did not turn around, but kept walking and was grabbed from behind by one man while a second man wearing a green jacket stepped in front of him, punched him in the neck, and took his wallet and cell phone from his pants pockets. His wallet contained four credit cards, some money, and his identification. Sotelo could only remember three men involved in the assaults and robberies of him and Nunez, but he acknowledged that he did not "notice very well because the other two guys were on me and moving me around." The men all ran, but one was arrested right away. The other two were not brought back to the scene. Nunez did not testify.
On August 17, 2006, defendant pled guilty to Indictment Number 06-08-1184 charging that on July 1, 2006, he had stolen $250 from Alejandro Vasquez, a third-degree crime, contrary to N.J.S.A. 2C:20-3. At the same time, he also pled guilty to Indictment Number 06-08-1185 charging him with third-degree unlawful possession of a handgun on June 6, 2006. These were his first indictable convictions. He was sentenced on those charges on September 22, 2006, and placed on probation for two years concurrently for both crimes, being sentenced to time served. The judge found aggravating factors three*fn1 and nine*fn2 and no mitigating factors.*fn3
On October 10, 2006, Figueroa pled guilty to second-degree robbery subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and fourth-degree resisting arrest. He testified he was with defendant and Colorado on March 27, 2006, when they saw two slightly intoxicated men, whom they all decided to rob. Figueroa held one of the men and Colorado held the other one while defendant ran through their pockets and took their money by force. Figueroa did not testify at the trial of defendant and Colorado.
Defendant and Colorado were tried from February 27 through March 1, 2007. Defendant was tried in absentia, although he was represented by counsel. The jury found defendant guilty on all counts.
Defendant appeared for sentencing on July 13, 2007. At that time, there were charges of violating his two terms of probation by not reporting, not complying with conditions of probation, and not making payment.*fn4 The judge found defendant guilty of violating these terms of probation. He next considered the robbery conviction. Defendant's counsel requested that the sentences for the probation violations and the robbery run concurrently because, "given the NERA consequences, [defendant's] going to be serving a highly substantial portion of [the robbery] sentence."
The judge considered defendant's prior history, including thirteen juvenile arrests, several adjudications, three adult felony convictions in California, and two adult indictable convictions in New Jersey. The judge found aggravating factors three, six,*fn5 and nine were applicable; no mitigating factors were present; and an obvious need to protect the public existed. The judge then discharged defendant from probation on the July 1, 2006, theft charge and sentenced him to four years flat on the June 6, 2006, weapons offense. For the March 27, 2006, robbery conviction, the judge sentenced defendant to ten years in prison subject to the NERA eighty-five percent parole disqualifier with three years of mandatory parole. The judge made the robbery sentence consecutive to the sentence for the probation violation, "a separate and distinct crime committed on a separate and distinct date." Thus, defendant was given an aggregate sentence of fourteen years in prison. This appeal followed.
Defendant presents the following issues for our consideration:
POINT I - THE TRIAL COURT COMMITTED PLAIN ERROR BY GIVING THE JURY A FLIGHT CHARGE WHEN THE DEFENDANT WAS TRIED IN ABSENTIA AND IDENTIFICATION OF THE DEFENDANT WAS A CENTRAL ISSUE AT TRIAL. (NOT RAISED BELOW) POINT II - TESTIMONY THAT DETECTIVE DeLaPRIDA KNEW THE DEFENDANTS "FROM THE NEIGHBORHOOD" SUBSTANTIALLY PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BECAUSE IT CLEARLY SUGGESTED THAT DEFENDANT HAD A PRIOR CRIMINAL RECORD. (NOT RAISED BELOW)
POINT III - THE PROSECUTOR'S COMMENTS IN SUMMATION DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW) POINT IV - THE SENTENCE TO AN AGGREGATE FOURTEEN (14) YEAR TERM OF IMPRISONMENT WITH ONE-HUNDRED AND TWO (102) MONTHS OF PAROLE INELIGIBLITY IS MANIFESTLY EXCESSIVE AND IS AN ABUSE OF THE COURT'S DISCRETION.
A. The Trial Court's Findings With Regard To The Aggravating And Mitigating Factors Present Cannot Be Supported.
B. The Imposition Of A Consecutive Four Year Term Of Imprisonment On A Violation Of Probation Is Manifestly Excessive And Is An Abuse Of The Court's Discretion.
When we review issues that were not raised before the trial judge, we review those issues under the plain-error standard.
R. 2:10-2. Thus, we will not reverse unless the error is "clearly capable of producing an unjust result." Ibid. More specifically, the "possibility [of injustice] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We now turn to those first three issues.
First, defendant argues that the judge erred in giving his charge to the jury. The judge charged the jury in pertinent part as follows:
Mr. Blanco Reyes. Now, Mr. BlancoReyes obviously chose not to be present. He has a right to either participate or not participate and he chose not to be here.
You may not consider that against him in any way in arriving upon your verdict. We had a right to go forward without him being here, but he had a right to refuse not to participate as he elected to do so.
The judge also instructed the jury on the issue of mere presence at the scene:
Now, we heard testimony in this case from which you may infer that both defendants fled from the scene after the alleged commission of the crime of robbery. Now, the defendants do not deny leaving the scene. Indeed, there's evidence before you that they were at the scene. Whether or not they were at the scene as participants in the crime is an issue before you. Mere presence at or near the scene does not make a person a participant of that crime, nor does the failure of a spectator to intervene make him a participant in the crime. It is, however, a circumstance to be considered along with all evidence in determining whether that person was present as an accomplice or present at all at the time of the crime.
Next, the judge charged the jury regarding flight:
Now, on the issue of flight, the question of whether or not a particular person fled after the commission of a crime is a question of fact that you must determine yourselves. Mere departure from a place where a crime has been committed does not constitute flight. If you find that the individual defendant, and there are two here and you must consider them separately, each one of them, fearing an accusation or arrest would be made against him on a charge involving the Indictment, that is the allegation of robbery, took refuge in flight for purposes of evading accusation or arrest on that robbery charge, then you must consider such flight in connection with all the other evidence in the case as an indication or proof of consciousness of guilt by that individual person.
Flight may only be considered as consciousness of guilt if you determine that the defendant's purpose in leaving was to evade arrest or accusation on the charge of robbery.
If, after consideration of all the evidence before you, you find that a particular defendant fearing an arrest or accusation would be made against him on the charge of robbery in the Indictment, that he individually took refuge in flight for the purpose of evading that arrest or accusation on the robbery, then you may consider such flight in connection with all other evidence in the case as an indication or proof of consciousness of guilt. It is your determination to determine whether or not the evidence applied shows a consciousness of guilt and also what weight you think that evidence should be given to all the facts before you in this case.
The judge further clarified the elements of each of the offenses faced by defendant and Colorado, including the charge of fourth-degree resisting arrest. The judge explained the statute to the jury, stating that a "person is guilty if by flight he purposely prevents or attempts to prevent the law enforcement officer from effectuating an arrest." The judge also listed the four elements of resisting arrest by flight:
One, that [Officers Idrovo, DeLaPrida, Paul Pereira, and Marcella Arriola] or any of those people are, indeed law enforcement officers.
Two, that any of those four people were seeking to effectuate an arrest.
Three, that the defendant knew or had reason to know that any of those people were law enforcement officers seeking to effectuate an arrest.
Four, that the defendant purposely prevented or attempted to prevent any of those four people from effectuating a lawful arrest.
The judge then explained each element in more detail. In clarifying the last element, the judge noted that a defendant can resist arrest by flight "[b]y running away." Finally, the judge defined "flight" as "[l]eaving the scene of the event with knowledge that, A, the person that is seeking you is an officer and you have been advised he is an officer and/or she is an officer and you are seeking to leave to avoid arrest," with the event involved being "an allegation of robbery."
Defendant contends that the judge's "multiple flight instructions carried the . . . potential for prejudice because:
(1) the defendant was absent from trial; (2) the primary issue at trial was that of identification; and (3) the flight charge given to the jury implied that the judge thought the defendant was the perpetrator of the crime." As a result, he urges that his convictions should be reversed. The State contends that defendant's conviction should be affirmed because the judge: (1) "never implicitly or explicitly suggested that he believed defendant was guilty"; (2) "properly instructed the jury as to the change of flight"; (3) "instructed [the jury] not to use defendant's absence from trial against him in arriving at their verdict"; (4) "properly instructed [the jury] as to the issue of identification".
We review a jury charge "as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). No party is entitled to have the jury charged in his or her own words. State v. Thompson, 59 N.J. 396, 411 (1971); State v. Hooks, 350 N.J. Super. 59, 60 (App. Div. 2002). Rather, all that is required is that the charge as a whole be accurate. Thompson, supra, 59 N.J. at 411. "'Appropriate and proper charges to a jury are essential to a fair trial.'" State v. Burgess, 154 N.J. 181, 185 (1998) (quoting State v. Green, 86 N.J. 281, 287 (1981)).
Defendant relies on State v. Horne, 376 N.J. Super. 201 (App. Div.), certif. denied, 185 N.J. 264 (2005), for the proposition that the flight charge below prejudiced him. However, in Horne, there was no allegation that the defendant fled from the crime scene; rather, the issue on appeal hinged on whether the defendant's decision not to attend trial could fit the traditional definition of "flight." Id. at 210-11. The judge explicitly instructed the jury that it could find that the defendant's absence from trial demonstrated flight for the purpose of evading conviction, and therefore the jury could infer the defendant's consciousness of guilt. Id. at 209-10. In reversing, we held that "[f]ailure to appear at trial does not constitute flight as that term was intended to infer consciousness of guilt." Id. at 212-13. Here, there was a failure to appear at trial and resisting arrest by flight, making a flight charge mandatory.
Defendant also relies upon State v. McNeil, 303 N.J. Super. 266, 269 (App. Div. 1997), a case in which we "conclude[d] that the trial judge's refusal to give the requested jury instruction regarding the victim's identification testimony, when combined with an inapplicable flight charge and other errors in the jury instructions," produced an unjust result. The victim was robbed of her purse inside her apartment building. Id. at 270. The crime and a description of the perpetrator were quickly reported to the police. Ibid. Officers, who were down the street at the time, found the defendant walking on the street; he matched the description given by the victim. Ibid. He was placed in the patrol car and returned to the victim's building, where she identified him in the back of the patrol car. Id. at 271. She identified him again at trial. Ibid.
In addition to an erroneously omitted identification charge, id. at 275, the judge charged the jury that "[t]here has been some testimony in this case from which you may infer that the Defendant fled shortly after the alleged commission of the crime," ibid. We found "[t]hat instruction could only have suggested to the jury that the judge believed defendant to be the perpetrator." Ibid. We also found the judge's credibility charge, which permitted the jury to consider a witness's "reluctance or willingness to testify," had the potential to neutralize the charge on the defendant's right not to testify. Id. at 276.
Defendant acknowledges that the judge here did not explicitly state that the jury could infer consciousness of guilt from defendant's absence at trial. In fact, defendant merely states the trial court made "several unnecessary and confusing flight charges" to prejudice defendant "beyond permissible levels." A review of the record, however, demonstrates that defendant's assertions lack merit.
The judge specifically indicated that defendant "has a right to either participate or not participate and he chose not to be here" and that the jury "may not consider that against him in any way in arriving upon [its] verdict." Later, the judge instructed the jury on mere presence at the scene: "Whether or not [defendant was] at the scene as [a] participant in the crime is an issue before you." Thus, in considering the jury charge "as a whole," Wilbely, supra, 63 N.J. at 422, the instructions regarding defendant's absence from trial and his mere presence at the scene did not cause him any prejudice.
Following these instructions, the trial court then charged the jury on the issue of flight, which it was required to do in light of the charge of resisting arrest by flight.*fn6 At no time during these instructions did the judge explicitly or implicitly imply that defendant's absence from trial had any bearing on whether he fled after Idrovo said he was under arrest. The judge presented two separate and distinct issues that did not confuse the jury nor prejudice defendant. We find no error, much less plain error, in the charge.
Second, defendant contends that the judge committed plain error by failing to sua sponte strike DeLaPrida's statement that he knew defendant "from the neighborhood" because it "clearly suggested that [defendant] had had prior criminal contact with the police." Defendant argues "that a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." State v. Branch, 182 N.J. 338, 354 (2005) (reversing defendant's conviction because "[i]n light of the total record, the detective's damaging hearsay testimony that defendant was a suspect in the eyes of the police 'based on information received' may have tipped the scales" to constitute plain error).
The State contends that DeLaPrida's testimony did not prejudice defendant because he did not imply he knew defendant from prior "run-ins with the law . . . , prior arrests or any form of suspicious criminal activity." Further, the State proffers that the "jury could easily conclude that the officer simply saw defendant on prior occasions while he drove around, patrolling the neighborhood."
We have previously found that similar police testimony was not unduly prejudicial. See, e.g., State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.) (finding an officer's testimony that he was familiar with the defendant did not "prejudice the defendant by implying that he had committed previous criminal acts or was otherwise disposed toward criminal behavior"), certif. denied, 108 N.J. 677 (1987); State v. Love, 245 N.J. Super. 195, 197-98 (App. Div.) (finding a police investigator's statement that "'I believe there was prior contact I had with [the defendant]. I don't recall the entire incident but . . . I had interviewed him during a homicide investigation'" to be harmless), certif. denied, 126 N.J. 321 (1991). We similarly find DeLaPrida's brief comment here harmless.
Third, defendant argues that he was deprived of a fair trial by the prosecutor's allegedly improper remarks during summation. The prosecutor told the jury:
Because the State's case is based on evidence and evidence, as you will hear from the Judge, is facts, facts that can be proven.
You saw those facts, I submit to you, right here from the witness stand. You saw it because all the State can present to you is evidence, all we can present to you is fact because fact is hard and true. And stories when they are good are creative and stories, if some of you have kids you probably know, when they need to be can be convenient. But facts and evidence, they don't change.
The attorneys for defendant and Colorado did not object to the prosecutor's statement.
Additionally, the prosecutor later stated, again without objection:
What did we hear from the officers? The officers who happened to be in the area, who happened to be dressed in plain clothes and in an unmarked vehicle, what did we hear from them? We heard they were driving up High Street short [sic] before midnight and they saw a group of individuals. You heard them say it appeared as though the individuals were tussling around with each other. Either Officer DeLaPrida or Officer Idrovo had said there were a bunch of guys fooling around. Suddenly he saw one in a half Nelson, then he saw a wallet get removed.
These officers I submit to you, who are more highly trained in this area than the common person, now realize, hey, okay, this is not horseplay, this is a robbery. So what did you hear these officers say? These officers who are trained to observe, what did they say? They said Mr. [Sotelo] was in a full Nelson. And one individual was holding him. (Emphasis added.)
From there, the prosecutor continued to recount various elements of the officers' testimony. The prosecutor also proffered, without objection:
Lot's of times you'll hear people telling stories and saying, whoa, where is a cop when you need them? I got a parking ticket. Where is the cop when you need him?
Why isn't he doing something else? Well, here, ladies and gentlemen, you have cops on the street making an observation and effecting arrests from robberies. That's what the cops were doing that day.
Finally, the prosecutor discussed the jury's duty to make credibility findings and presented the following remarks, all without objection:
And you do . . .[,] I submit[,] probably subconsciously on an everyday-basis, you think about, the credibility of people that you speak to. You might not even realize you are doing it, but you talk to a co-worker, or a friend, or your kids and they tell you a story, they tell you something that happens, you are making judgments about what you are hearing. You are thinking to yourself is what I'm hearing reasonable or is it fantastical? Is what I'm hearing motivated by some reason or is it just a retelling of some events? Is what I'm hearing supported by anything else I ever heard or is it a story totally from left field? Those credibility tools are tools you have back there as well.
Defendant contends these remarks "interfered with the jury's right to make a credibility determination [of the two officers], and denigrated the defense to the extent that the defendant did not receive a fair trial." He contends the judge plainly erred in not sua sponte striking the prosecutor's remarks. By contrast, the State argues that in addition to defendant not objecting to the remarks at trial, the comments did not stray from the permissible bounds of a prosecutor's summation. In any event, it urges any improper comments were not so egregious as to warrant reversal.
Ordinarily, we determine whether the conduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). We consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 322-23 (1987). Where defense counsel does not object to a prosecutor's comment and seek a disapproving instruction, we may "infer from the failure to object below that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333; see also Ramseur, supra, 106 N.J. at 323 (holding that usually, if no objection is made during summation, the remarks will not be considered prejudicial); State v. Wilson, 57 N.J. 39, 51 (1970) ("a failure to object . . . indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial").
However, in particularly troubling circumstances, the prosecutor's comments may rise to the level of plain error, regardless of whether the defense objects. See, e.g., State v. Goode, 278 N.J. Super. 85, 89-92 (App. Div. 1994) (where, among other things, the prosecutor improperly and persistently reiterated a theme "that the jurors, through their participation in this matter, could alleviate in some manner the narcotics problem threatening our society"); State v. Sherman, 230 N.J. Super. 10, 19 (App. Div. 1988) (noting that the prosecutor's improper remarks during summation "converted the proceedings from a trial of issues by which a fact-finder may weigh evidence fairly into a vehicle for exacting personal revenge upon defense counsel").
Prosecutors are afforded wide latitude in presenting their summations. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). Yet, "while a prosecutor must advocate a position vigorously, there are boundaries to such conduct." State v. Hawk, 327 N.J. Super. 276, 281 (App. Div. 2000) (citation omitted). Thus, prosecutors must ensure their comments "are reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). We also consider the defense counsel's remarks and determine whether such remarks prompted the prosecutor to respond and "right the scale." State v. Engel, 249 N.J. Super. 336, 379 (App. Div.) (quoting U.S. v. Young, 470 U.S. 1, 13, 105 S.Ct. 1038, 1045, 84 L.Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J. 393 (1991).
We do not find that the judge plainly erred in failing to sua sponte strike any of the above-quoted comments by the prosecutor. The failure to object here is of great import. State v. Thornton, 38 N.J. 380, 399 (1962). We comment only on the remarks about the police officers' training. Generally, remarks made in response to the defense counsel will be found harmless, but we "must assess statements concerning the credibility of police officers very carefully." Hawk, supra, 327 N.J. Super. at 284-85 (citation omitted). This is so because "[p]olice occupy a position of authority in our communities . . . and thus ordinary citizens are more likely to believe them than [the criminal defendant]." Id. at 285. Consequently, comments by a prosecutor regarding a police officer's credibility "are wholly inappropriate." Frost, supra, 158 N.J. at 85-86 (providing various examples of improper remarks about police officers).
Defendant criticizes the prosecutor's statements about the testifying officers being "more highly trained in this area than the common person" and being "trained to observe." Although these remarks are similar to the prosecutor's remarks in Hawk, supra, 327 N.J. Super. at 282 (implying a not guilty verdict would mean the law enforcement officials "didn't do their job"), they were made in response to the defense summation. Defense counsel questioned the credibility of DeLaPrida by suggesting he "may have fudged it a little bit" or he "could have been lying about anything if he is willing to make something sound more professional or more articulate than it actually was." We are not persuaded that the prosecutor's comments "were made to improperly bolster the credibility of the two police officers" and find them harmless given the atmosphere of this trial. Thornton, supra, 38 N.J. at 399. Defendant was not denied a fair trial, Frost, supra, 158 N.J. at 83, and we affirm his convictions.
Defendant's final argument on appeal is that the judge failed to explain how he applied the aggravating and mitigating factors to the sentence for defendant's violation of probation as opposed to his sentence for the March 27, 2006, crimes. In addition, defendant also alleges that the four-year consecutive term for defendant's violation of probation is manifestly excessive.
We review the trial judge's sentencing decisions for an abuse of discretion. State v. Pierce, 188 N.J. 155, 169-70 (2006). The trial judge must state the reasons for the sentence imposed, R. 3:21-4(g), State v. Thomas, 195 N.J. 431, 436 (2008), and the reasons must be in the judgment, R. 3:21-5. If a judge fails to provide an explanation for the sentence, we are deprived of the ability to determine whether the judge considered sound or improper reasons and will remand the case for reconsideration of sentence. Ibid.; State v. Martelli, 201 N.J. Super. 378, 385 (App. Div. 1985).
In particular, the judge "must identify the aggravating and mitigating factors and balance them to arrive at a fair sentence." State v. Natale, 184 N.J. 458, 488 (2005). Even if we would have come to a different conclusion, we are obligated to affirm the sentence as long as the judge properly identifies and balances the factors "'that are supported by competent credible evidence in the record.'" Id. at 489 (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Additionally, for sentencing following violations of probation, the judge "should consider and balance only those aggravating and mitigating factors that existed at the time of the initial sentencing, except as the mitigating factors only may have been modified by the violation of probation." State v. Vasquez, 129 N.J. 189, 206 (1992). Finally, we will reverse a sentence only where it is "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).
Here, the judge found aggravating factors three, six, and nine and may have applied those factors to the sentence imposed for the violation of probation and the sentence imposed for the March 27, 2006, crimes. At the very least, as defendant contends, "it is unclear from the record whether the court considered the same aggravating factors in sentencing the defendant following the violation of probation as it did for sentencing the defendant for [the other] conviction[s]." The judge also did not specify in the judgments of conviction which aggravating factors applied to each judgment, which would have clarified the record. Of course, if the judge applied aggravating factor six to the sentence for the violation of probation, that would contravene Vasquez, supra, 129 N.J. at 206, and require a remand for reconsideration of sentence because aggravating factor six was not found at the time the original sentence of probation was imposed. Accordingly, we remand either for reconsideration of the sentence or for clarification of the record and correction of the judgment of conviction.
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that defendant's remaining sentencing arguments "are without sufficient merit to warrant discussion in a written opinion."
R. 2:11-3(e)(2). We affirm substantially for the reasons expressed by the trial judge in sentencing on July 13, 2007. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. State v. Locurto, 157 N.J. 463, 471 (1999).
Affirmed in part and reversed and remanded in part.