November 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EMENDO HILL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Payne and Koblitz.
A jury found defendant guilty of armed robbery, N.J.S.A. 2C:15-1, a crime of the first degree; unlawful possession of a handgun, N.J.S.A. 2C:39-5b, a crime of the third degree; and possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, a crime of the second degree. The sentencing judge merged the two weapons convictions into the armed robbery conviction and sentenced defendant to twelve years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After reviewing the record in light of the contentions advanced on appeal, we affirm the conviction and reverse and remand for a new sentencing hearing.
Defendant was seventeen years old on September 18, 2005, when he and his uncle, co-defendant Laquan Hill, accosted two Hispanic men, brandishing a gun and demanding money. Laquan, one year younger than defendant, had the gun. He pulled the trigger, but apparently the gun was not loaded, as it did not discharge a bullet. When the victims realized the gun was unloaded, they began to resist. The defendants ran, with the victims in pursuit. Ultimately the victims lost track of Laquan, cornered defendant and began hitting him. Onlookers called the police. When the police arrived, the victims related what had happened, while defendant claimed he was jumped by these Hispanic men, and that the attack was completely unprovoked.
One of the victims identified co-defendant from a photographic array, and he was subsequently arrested. Defendant attempted to pass a note to his co-defendant at the Middlesex County Juvenile Detention Center. As read at the sentencing hearing, the note stated in pertinent part,
I know you [sic] going to court tomorrow. So just tell them exactly what happened. Only lie I told them was that the B.B. gun was mine and that I told you what to do. I told you to put the gun to the dude's head and everything. I tried my hardest to take all the weight because I had to put your name in it... I felt that, but I didn't want the cops to have both of us.
Defendant did not testify or present any other witness on his behalf at trial. On appeal, defendant, through counsel, raises the following arguments:
THE COURT ERRED WHEN IT FAILED TO CHARGE THE JURY, PURSUANT TO STATE V. HARMON, THAT IF DEFENDANT'S ALLEGED ACCOMPLICE ARMED HIMSELF AS A PRECAUTION AGAINST AN ATTACK BY ANOTHER, THIS CONSTITUTED A DEFENSE TO THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE. (Not Raised Below)
THE SENTENCE IS MANIFESTLY EXCESSIVE.
A REMAND IS NECESSARY FOR REASSESSMENT OF DEFENDANT'S JAIL CREDITS.
Defendant maintains that the trial judge committed plain error in not charging the jury, pursuant to State v. Harmon, 104 N.J. 189 (1986), that possession of a weapon for a precautionary, self-protective purpose is not possession for an unlawful purpose. Defendant did not request this charge at trial, nor object to its absence. However, "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge has an "independent duty... to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). See also State v. Fair, 45 N.J. 77, 93 (1965) (finding that "in the factual context of th[e] case that the trial judge's failure to charge the jury on [a specific] issue sua sponte was nothing less than plain error requiring reversal").
Accordingly, although the plain error standard of Rule 2:10-2 applies to our review of the charge, we must assure that a defect in the charge was not consequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take," the conviction is to be reversed. Jackmon, supra, 305 N.J. Super. at 290. Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.), certif. denied, 156 N.J. 387 (1998) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)).
Here, the only evidence supporting the Harmon charge was defendant's statement to the police upon arrest that he was attacked for no reason by two strangers. The armed co-defendant was gone by time the victims caught up with defendant. Defendant's on-the-scene statement to the police does not lend credence to an argument that his co-defendant was armed for self-protection from these two individuals. "Only in those rare and momentary circumstances where an individual arms himself spontaneously to meet an immediate danger should the justification [be] afforded." Harmon, supra, 104 N.J. at 208-09.
Defendant maintains that a twelve-year sentence in prison is manifestly excessive. In determining the appropriate sentence to be imposed on a convicted individual, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 378 (1987). If a sentencing judge properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]
Here, the twelve-year sentence imposed for a first-degree crime does not shock the judicial conscience. However, defendant raises legitimate concerns with regard to three of the aggravating factors found by the sentencing judge. The sentencing judge found five aggravating factors: three, the risk that the defendant will commit another offense, N.J.S.A. 2C:44-1a(3); five, that there is a substantial likelihood that defendant is involved in organized criminal activity, N.J.S.A. 2C:44-1a(5); six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1a(6); nine, the need to deter, N.J.S.A. 2C:44-1a(9); and eleven, that imposition of a non-custodial sentence would be perceived merely as part of the cost of doing business, N.J.S.A. 2C:44-1a(11). In mitigation the judge gave "some weight" to mitigating factor seven, N.J.S.A. 2C:44-1b(7), that defendant has no history of prior delinquency or criminal activity, although he did have one prior juvenile adjudication for joyriding. N.J.S.A. 2C:20-10.
Defendant contests aggravating factor five, denying his involvement in organized criminal activity. To be used as an aggravating factor in sentencing, involvement in organized crime need not be related to the crime for which defendant is tried. See State v. Merlino, 208 N.J. Super. 247, 257 (Law Div. 1984) aff'd in part, vacated in part, 208 N.J. Super. 147, 505 (App. Div. 1985), certif. denied, 103 N.J. 460 (1986) (holding that the aggravating circumstance applies to the offender and not the offense). Where defendant's conviction is unrelated to alleged organized criminal activity, the State may request an opportunity to "introduce testimony to establish that there is a substantial likelihood that defendant is involved in [such] activity." Ibid. Organized criminal activity may be used as an aggravating factor without demonstrating that defendant's criminal behavior was related to his participation or membership in an organized crime group, such as a gang. Rather, the nature of the offense itself may warrant a finding of organized criminal activity, for instance, when sentencing a defendant convicted of narcotics distribution. See State v. Varona, 242 N.J. Super. 474, 491-92 (App. Div.), certif. denied, 122 N.J. 386 (1990) (finding evidence on the record supported applying aggravating factor five where defendant was convicted of conspiracy to distribute cocaine); see also State v. Velez, 229 N.J. Super. 305, 316 (App. Div. 1988), aff'd as modified, 119 N.J. 185 (1990) (determining that a fact-finding hearing was unnecessary after a drug distribution conviction because defendant was not manufacturing the drugs, and thus he had to be obtaining them from other sources).
Although armed robbery does not require organized criminal activity, the prosecutor did not seek a hearing here, but pointed to defendant's behavior while incarcerated as proof of participation in organized criminal behavior. Defendant sent a letter seeking the phone and house number of a State's witness. At sentencing, the State urged the judge to consider the entire contents of this letter, which included some indicia of gang membership that had been redacted prior to reading the letter to the jury.*fn1 A few days after sending the letter, defendant assaulted the witness, who was also incarcerated in the detention center.*fn2 Without considering the redacted portions of the letter, the judge found that "this arguably could be some form of organized criminal activity. To a degree I can consider it. I don't give it substantial weight." Without consideration of the redacted portions of the letter, the judge was presented with insufficient proof to find there was a substantial likelihood that defendant was engaged in organized criminal activity. N.J.S.A. 2C:44-1a(5).
Defendant also correctly disputes the sentencing judge's consideration of aggravating factor six, the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted. The judge found mitigating factor seven, a lack of prior criminal record. She found, however, that aggravating factor six applied because of his prior record and because, "clearly... this is a serious offense [of] which he has been convicted. It's a first degree crime." Aggravating factor six does not relate to the seriousness of the current offense. Aggravating factor one, 2C:44-1a(1), relates to the seriousness of the current offense, and the degree of the crime can not be double-counted to enhance the sentence. See State v. Pillot, 115 N.J. 558, 564, 577 (1989) (finding it improper to apply aggravating factor one, based on a defendant's use of a weapon, when sentencing a defendant convicted of armed robbery in the first degree). The sentencing judge properly did not find this armed robbery to be particularly heinous and thus correctly did not find factor one applicable. Although a judge may consider a defendant's juvenile record during sentencing, State v. Marzolf, 79 N.J. 167, 177-78 (1979), the judge here found defendant's lack of a prior record in mitigation, and thus aggravating factor six should not have been found.
Further, defendant correctly asserts that the sentencing judge improperly applied factor eleven, "the cost of doing business," as an aggravating factor because she was not deciding between a custodial and non-custodial sentence. N.J.S.A. 2C:44-1a(11) provides that this aggravating circumstance applies when the imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as a part of the cost of doing business, or as an acceptable contingent business or operating expense associated with the initial decision to resort to unlawful practices.
"By its very terms, that provision is inapplicable as an aggravating factor unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). Here, the sentencing judge was concerned with the length of a custodial sentence and thus use of aggravating factor eleven was improper. Given our finding that the sentencing judge misapplied three aggravating factors, a remand for a new sentencing hearing is appropriate.
Although not raised on appeal, we also note that the judge's merger of defendant's conviction for unlawful possession of a weapon, N.J.S.A. 2C:39-5b, into his conviction for armed robbery was improper. State v. Deluca, 325 N.J. Super. 376, 392 (App. Div. 1999), aff'd on other grounds, 168 N.J. 626 (2001).
The state agrees that a remand is necessary to determine the proper jail credits to be awarded. Defendant was incarcerated on these charges in 2005, yet was only awarded credit for time in custody in 2007.
We have reviewed the remainder of defendant's contentions on appeal and are satisfied that they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3e(2).
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion.