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State v. Vargas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 19, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANGEL L. VARGAS, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 07-03-0179.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 22, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Defendant Angel Vargas appeals from his conviction and sentence after trial by jury on charges of armed robbery, conspiracy, and aggravated assault. We affirm.

On September 10, 2006, at about 1:00 a.m., Ana Rodriguez, Martin Cortez, and Hugo Narvaez were outside the Chestnut Square Apartments in Vineland. Rodriguez had just returned from a party and was intoxicated. She heard a man say in Spanish to Cortez: "Give me the money." She then heard Cortez say he had only fifteen dollars. Rodriguez heard shouting and Cortez asking for help. She believed she saw two men confront Cortez but could not identify them or tell who injured Cortez. She did not see a stabbing but saw that Cortez was bleeding. Someone called for an ambulance.

When emergency medical technician (EMT) Dan Opperman arrived, he saw two injured men and called for a second ambulance. Near the doorway of an apartment, Opperman observed one man, later identified as Narvaez, who "looked like he was in pain, and he was bleeding from his abdomen and his chest." The second man, Cortez, was lying on a bed inside the apartment, and he was also "bleeding from his chest and abdomen." Opperman treated Cortez, and his partner treated Narvaez until the second ambulance arrived. Cortez had stable vital signs, but Opperman assessed his condition as life threatening because of stab wounds to his chest and the possibility of injury to his lungs. Opperman called for Cortez to be air-lifted to a hospital because of the severity of his injuries.

Another EMT, Richard Jacobsen, arrived in a second ambulance and took over treatment of Narvaez. Jacobsen noticed that Narvaez had three bleeding stab wounds to his chest. Narvaez's vital signs were stable, but he had elevated blood pressure. He was also transported by helicopter to a trauma center because of his injuries.

Dr. Larsola Sjoholm, a surgeon specializing in trauma and critical care, testified that he treated Cortez at Cooper University Hospital for stab wounds to his left flank. Cortez was conscious and had good blood pressure. A CAT scan was performed, after which Dr. Sjoholm decided that Cortez needed surgery because of a possible perforated bowel, an injury that could be life-threatening. During surgery, Dr. Sjoholm observed that Cortez's large and small bowels had several puncture wounds, which the doctor treated. Eventually, Cortez recovered from surgery without incident.

Another trauma surgeon, Dr. Alexander Axelrad, treated Narvaez at Cooper University Hospital. When Narvaez first arrived, Dr. Axelrad observed multiple stab wounds to his chest and upper abdomen. After assessing the patient, Dr. Axelrad decided to take Narvaez to the operating room because of the location of the stab wounds and the possibility that Narvaez had internal injuries. During surgery, Dr. Axelrad found extensive injuries to the spleen, liver, and mesentery, a vessel that supplies blood to the intestines.

Dr. Axelrad and his assisting surgeons removed Narvaez's spleen, repaired his liver, and controlled the bleeding in his abdominal cavity. Narveaz underwent another surgery the following day, during which the doctors stabilized him and eventually closed his abdomen. The doctors also removed one-third of Narvaez's pancreas. After the second surgery, Narvaez remained in the intensive care unit for several weeks because of complications; he was on a ventilator and in a medically-induced coma for a period of time. The doctor explained that Narvaez's injuries were life-threatening.

Edwin Ramos, a Vineland Police detective, investigated the stabbings at the Chestnut Square Apartments. Ramos interviewed several witnesses and took their statements. One of the witnesses later examined a photographic lineup and identified defendant Vargas as the person he had seen sitting on the steps that night when he dropped off Ana Rodriguez from a party.

Nine days after the incident, on September 19, 2006, defendant and Josue Olivo were arrested for the crimes. Detective Ramos advised defendant of his Miranda rights,*fn1 which defendant eventually waived. In statements to the police, defendant first denied that he was at the scene of the crimes. He later admitted he was at the scene, but he said that Olivo was the person who stabbed the victims and not him. Defendant said he acted as the lookout while Olivo "went around and stab[bed] the Mexican, one Mexican right next to each other and another one right next to the van" with a big kitchen knife. Defendant said he told Olivo to stop stabbing the men and to leave. He and Olivo then walked back to defendant's house. According to defendant, Olivo got thirteen dollars from the victims and used it to buy crack cocaine. Defendant said he did not receive any money taken from the robbery.

A grand jury returned an indictment charging defendant and Olivo in eleven counts: two counts of first-degree attempted murder, N.J.S.A. 2C:5-1a(3) and N.J.S.A. 2C:11-3a(1); two counts of first-degree armed robbery, N.J.S.A. 2C:15-1a and N.J.S.A. 2C:15-1b; third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d; second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1a(1) and N.J.S.A. 2C:5-2; fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d; two counts of second-degree aggravated assault in causing serious bodily injury, N.J.S.A. 2C:12-1b(1); and two counts of third-degree aggravated assault in causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(2). Olivo entered into a plea agreement with the State and pleaded guilty to a second-degree charge of aggravated assault.

At defendant's trial, the State did not call either Cortez or Narvaez as witnesses, reporting to the trial judge that they were believed to be illegal immigrants and could not be found at the time of trial. Other witnesses were called and testified as summarized here. At the conclusion of the State's case-in-chief, the court dismissed the two counts of attempted murder and the two weapons counts.

Defendant elected to testify and was the only witness for the defense. He said that on the night of the incident, at the Chestnut Square Apartments, Olivo asked defendant if he had any money. Defendant said he did not. Defendant believed Olivo was high on crack cocaine. Two Mexican men were in the area, one by the steps of the apartment building and another in a van. Defendant testified that:

[Olivo] said he -- he watching the Mexicans, that [Olivo] asked me if I can be the lookout, and I think about it, and I see the knife on his pocket, and he has -- if I would have told him not to do it, he probably would have stabbed me, like he did the other victims. So, I choose -- I say, "I be the lookout, but I don't do nothing." That's when I said that, and I sit on the steps.

Defendant testified that Olivo approached the man on the steps and said "Give me your money." The man said he did not have any money. Olivo then "start[ed] stabbing him." Defendant claimed he attempted to stop Olivo, but Olivo went to the van, pulled out the second man, and started stabbing him also. The second man exclaimed: "I ain't got no money, and I got kids. Please don't kill me." After the stabbings, Olivo and defendant walked to defendant's house. According to defendant, he did not receive anything from Olivo after the stabbings. On cross-examination, defendant testified that he had no choice but to participate as a lookout because he feared for his life, having seen that Olivo had a knife.

At the end of both sides' presentation of evidence, defendant moved for a directed verdict, which the trial judge denied. The jury found defendant guilty of two counts of first-degree armed robbery, second-degree conspiracy to commit robbery, second-degree aggravated assault by causing serious bodily injury to Narvaez, a lesser-included offense of third-degree aggravated assault by causing significant bodily injury to Cortez, and two counts of third-degree aggravated assault with a deadly weapon. Defendant moved for a new trial under Rule 3:20-1. The trial court denied the motion.

At defendant's sentencing, the court merged the conspiracy and aggravated assault convictions with the two counts of first-degree robbery. The court sentenced defendant to concurrent terms of fifteen years on each of the robbery counts, eighty-five percent of the sentence to be served before eligibility for parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was also sentenced to five years of parole supervision upon release from prison and statutory penalties and fees.

On appeal, defendant raises the following arguments*fn2

POINT I

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO LOWER COURT'S FAILURE TO PRECLUDE EXPERT TESTIMONY CONCERNING MEDICAL TREATMENT OF THE VICTIM.

POINT II

THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT HAD TO PREPARE A SUMMARY OF PROPOSED TESTIMONY OF A DEFENSE WITNESS, CO-DEFENDANT JOSUE OLIVO, DENYING THE DEFENDANT THE RIGHT TO A TRIAL.

POINT III

THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY ON THE DEFENSE OF DURESS. POINT IV THE COURT IMPROPERLY DESIGNATED A JUROR TO BE AN ALTERNATE, IN CONTRAVENTION OF NEW JERSEY STATUTE AND COURT RULE REQUIRING THAT ALTERNATE JURORS BE RANDOMLY SELECTED IN THE PRESENCE OF THE JURY.

POINT V

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI

THE SENTENCE OF FIFTEEN YEARS WAS EXCESSIVE IN LIGHT OF DEFENDANT'S MINOR PARTICIPATION IN THE OFFENSE.

We find no merit in any of these arguments.

I.

Defendant asserts that the court erroneously permitted Dr. Axelrad to give opinion testimony without having been presented or qualified as an expert witness. The prosecution had not identified Dr. Axelrad or anyone else as a proposed expert before trial, as Rule 3:13-3(c) required that it do before presenting expert testimony. Defendant objects specifically to Dr. Axelrad's testimony that: Narvaez's injuries were stab wounds; the wounds were potentially lethal injuries; and without immediate medical attention, Narvaez would have died.

Our standard of review of this issue is whether there was plain error in admission of the challenged testimony of Dr. Axelrad. Because defendant raised no objection at trial to any part of Dr. Axelrad's testimony, any error will be disregarded unless it was "clearly capable of producing an unjust result."

R. 2:10-2.

In his opening statement, defense counsel pursued a defense based on defendant's version of what had occurred and his limited involvement. Counsel told the jury: "there's no real dispute but for the fact that [these two gentlemen] were injured. We're going to hear from... doctors that treated these two gentlemen, and they're going to tell us... what injuries they had, and what they did to treat them." Later in his opening statement, counsel described the medical testimony as "extras" that were "going to fill a lot of time, but it really doesn't add anything to the case."

During the trial, defense counsel did not cross-examine the State's medical witnesses. In his closing argument, defense counsel again stated that the testimony of the doctors and EMTs was not in issue. He said: "You heard the doctors testify that these were serious injuries, that they were life-threatening injuries. Those are things that really from the beginning of this case were not an issue. The issue has always been... what Mr. Vargas did."

Defense counsel made an objection during the testimony of EMT Opperman that the prosecutor's questions were beginning to delve into areas of expert opinion. He stated that the prosecution had not provided notice of intent to call experts or produced expert reports under the discovery rules. After a sidebar, the court overruled the objection, stating that it agreed with defense counsel that the witness "may not give any expert testimony" but that the prosecutor had only elicited information from the witness about his training. The court apparently accepted the prosecutor's argument that a limited amount of such testimony was relevant and admissible as background to explain Opperman's actions and decisions as an EMT treating the injured victims at the scene.

The court stated further that its ruling was without prejudice, so that if defense counsel believed that subsequent questioning was going beyond admissible fact testimony, he could object again. Defense counsel raised one further objection during Opperman's testimony, which was overruled. He raised no objections during Dr. Axelrad's testimony, and had no questions for the doctor when given the opportunity to cross-examine him.

The role of a treating physician as a witness is different from that of a medical expert engaged for purposes of litigation. Stigliano v. Connaught Lab., Inc., 140 N.J. 305, 313-14 (1995). A treating physician may provide testimony about his diagnosis and treatment based on his personal observations of the patient without being engaged or qualified as an expert witness for either party. Id. at 314. Although the doctor's expertise is noted, assessing the testimony as fact or opinion creates "an artificial distinction." Ibid.

Here, the three statements of Dr. Axelrad to which defendant now objects fall within the scope of the doctor's observations, diagnosis, and treatment of Narvaez. The testimony was based upon the doctor's perceptions of the victim. Dr. Axelrad observed Narvaez's injuries first-hand when he treated him at the hospital. His testimony that the victim's injuries were "potentially lethal" and that they were "stab wounds" was based upon his direct observations of the injuries and the need to determine appropriate treatment. Dr. Axelrad did not make those observations or reach those conclusions for purposes of litigation.

As defense counsel recognized, there was no issue in this case about the fact that Narvaez had been stabbed several times with a knife and that the stabbing was part of a robbery committed by Olivo. Defendant's own post-arrest statement and testimony confirmed those facts. Nor was there any dispute about the length and nature of Narvaez's treatment at Cooper University Hospital, including two surgeries and a lengthy period of recovery in the intensive care unit. Those were all factual matters that did not require the testimony of an expert witness. Dr. Axelrad's references to life-threatening injuries and stab wounds had no potential to prejudice defendant even if that testimony could be viewed as expert opinion testimony.

There was no plain error in the challenged testimony of Dr. Axelrad.

II.

Next, defendant contends that the trial court interfered with his ability to present a defense through testimony by his co-defendant Olivo.

About three months before defendant's trial date, Olivo wrote to the court stating in essence that defendant was not involved in the assaults and robberies and that Olivo had previously lied to the police in inculpating defendant. At a pretrial status conference, defense counsel disclosed that he intended to call Olivo to testify in the defense case and provided to the prosecution a copy of Olivo's letter. After the State rested at trial, defense counsel repeated that he had just spoken to Olivo for the first time in a holding cell and that he intended to call him as a defense witness to testify consistently with defendant's version of the incident and as disclosed in Olivo's earlier letter. Defense counsel informed the court and the prosecutor that Olivo's attorney had not permitted him to speak to Olivo until after Olivo had entered a plea of guilty and been sentenced.

The prosecutor objected to Olivo testifying without the defense providing a written memorandum or summary of his oral statements to defense counsel or his investigator in accordance with Rule 3:13-3(d)(3). In a lengthy discussion on the record, counsel and the court debated defense discovery obligations under that rule. Several times, the judge expressed his concern that defense counsel might have created a conflict by interviewing Olivo without an investigator present. To avoid that possibility, the judge ruled that defense counsel must obtain the assistance of an investigator from the Public Defender's Office to interview Olivo and provide a written summary of his statements. Defense counsel agreed to do so. Later that same day, however, defense counsel reported to the court that he had decided not to call Olivo to testify.

On appeal, defendant argues that the judge's discovery ruling was in error and violated his right to due process and a fair trial by preventing him from offering the exculpatory testimony of Olivo at trial.

Under Rule 3:13-3(d)(3), a defendant must disclose before trial: "the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements." We need not decide in this case whether defense counsel routinely has an obligation under that rule to create a written memorandum or summary of a witness's oral statements where none exists.

Olivo's statements to defense counsel were subject to discovery, see State v. Montague, 55 N.J. 387, 400-01 (1970), and defense counsel did not dispute that he could be ordered to make a proffer of Olivo's anticipated testimony. He voluntarily made such an oral proffer. The trial judge ruled that the participation of an investigator was necessary in the discovery process to avoid a potential conflict of interest in the event that defense counsel himself were to be called as a witness to impeach Olivo's trial testimony.

After his arrest, Olivo had given several statements to the police. Although those statements have not been provided to us in the appellate record, the colloquy of counsel and the court indicates that the statements included incriminating information against defendant. But in his pretrial letter and in his oral statements to defense counsel, Olivo had attempted to exculpate defendant. Because of the inconsistencies in Olivo's statements, there was a substantial risk that Olivo's trial testimony would be subject to impeachment with prior inconsistent statements under N.J.R.E. 607, or that such prior statements would be offered for the truth of their content under N.J.R.E. 803(a)(1). If Olivo denied at trial a prior statement made orally to defense counsel, the prosecutor could seek to present the testimony of defense counsel to impeach the denial under N.J.R.E. 613(b). Or, defense counsel might seek to rehabilitate Olivo's testimony with prior consistent statements pursuant to N.J.R.E. 803(a)(2).

To avoid prejudice to defendant if his own attorney were compelled to impeach or rehabilitate the testimony of a defense witness, the judge required that a defense investigator be engaged to shield defense counsel from that potential conflict. The trial court did not abuse its discretion in making that discovery ruling. See State v. Stevens, 222 N.J. Super. 602, 620 (App. Div. 1988) (abuse of discretion standard applicable to judge's discovery ruling), aff'd, 115 N.J. 289 (1989).

Furthermore, defense counsel never claimed that the discovery ruling interfered with his ability to call Olivo to testify and did not request any relief from the judge's ruling. The record does not support defendant's claim, for the first time on appeal, that he was prevented from utilizing exculpatory testimony.

The trial judge specifically stated that he was not ruling that Olivo could not testify. See State v. Dimitrov, 325 N.J. Super. 506 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000) (barring defense witness because of discovery violation that could have been remedied otherwise was a violation of defendant's due process rights). With the prospect of Olivo's impeachment by means of his prior statements to the police and his admitted participation in a violent crime, defense counsel could understandably have decided that his testimony would not help defendant at trial.

Defendant's right to a fair trial was not violated by the court's discovery ruling regarding the proffered testimony of co-defendant Olivo.

III.

Defendant contends that the jury should have received instruction on the affirmative defense of duress.

The defense had not given pretrial notice of its intent to present a duress defense, as required by Rule 3:12-1, and did not initially request a jury instruction on duress. The trial judge first raised the issue by asking counsel at the conclusion of defendant's testimony whether a duress charge was needed. Although the record is unclear, we will assume that defense counsel generally requested that the charge be given.

After discussion of the issue with counsel on the record, the trial judge rejected a duress charge, explaining:

If you look at that charge it had to be a threat or -- or coercion on the part of --if it says its an affirmative defense that an actor engaged in the conduct charged to constitute an offense because he was coerced to do so. I heard no such testimony. By the use of -- or threat to use unlawful force against his person, or the person of another, which a person of reasonable firmness in his situation would have been able to resist. There was no testimony that there was a threat to use any force, nor was there any force undertaken by Mr. Olivo against the defendant.

[T]here was testimony that this defendant did it because there was a knife, that he had a knife, and he didn't want --didn't want the same thing to happen to him, but he didn't indicate that that had been any threat or force, or threat of force, just that that was his perception that maybe he should do it. I don't think that that rises to the defense of duress.

The Code of Criminal Justice defines duress as: an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. [N.J.S.A. 2C:2-9a.]

The defense of duress requires that unlawful force be threatened or used against the defendant. State v. Morris, 242 N.J. Super. 532, 542 (App. Div.), certif. denied, 127 N.J. 321 (1990). The defendant has the burden of coming forward with some evidence establishing the defense, which has both subjective and objective components. State v. B.H., 183 N.J. 171, 192-93 (2005). The subjective component requires that "the defendant actually must have been influenced by" the coercive conduct.

Id. at 192. The objective component requires that "defendant's level of resistance to the particular threat... meet community standards of reasonableness" as evaluated by the standard of the "person of reasonable firmness." Id. at 193. In evaluating the objective criteria, the jury may consider such factors as "the gravity of the threat, the proximity of the impending harm being threatened, opportunities for escape, likely execution of the threat, and the seriousness of the crime defendant committed." Ibid.

Here, defendant did not allege that Olivo had threatened or used any force against him. Rather, defendant decided to act as Olivo's lookout only because he saw a knife in Olivo's pocket. Without more evidence, a person of reasonable firmness would not have viewed the mere presence of the knife as a threat forcing him to participate in the armed robbery of two victims. Under the objective criteria of the affirmative defense, defendant was under no direct threat by Olivo to act as he did. In addition, defendant's conduct after the robberies and assaults in remaining with Olivo contradicted his claim that he was coerced to participate in the crimes.

We agree with the trial judge that the evidence at trial did not establish a sufficient basis to instruct the jury on the affirmative defense of duress.

IV.

Defendant argues that the trial judge erred in designating a juror as an alternate without complying with the procedure for selecting alternate jurors required by N.J.S.A. 2B:23-3 and Rule 1:8-2.

After closing arguments, defense counsel moved to have juror number thirteen excused because he appeared to be asleep during the summations. The prosecutor agreed that the juror's eyes were closed and he appeared inattentive. The court suggested that the juror could be designated as an alternate and not be permitted to deliberate on the verdict. Both attorneys agreed to that remedy, defense counsel specifically stating that he preferred that the court not embarrass the juror by questioning him about the allegations that he was sleeping. Defendant now argues disingenuously that the court erred by not randomly selecting alternates as required by the statute and the court rule.

Had the court removed the juror for cause, that ruling would not have been an abuse of discretion. See State v. Reevey, 159 N.J. Super. 130, 133 (App. Div.), certif. denied, 79 N.J. 471 (1978). The juror's removal from the pool of jurors eligible to deliberate clearly would not have provided a ground for appeal since defendant had requested that remedy. Defendant will not be heard on appeal to argue that he was deprived of a fair trial because juror thirteen was not permitted to deliberate on the verdict.

Nor did the juror remaining as an alternate who was never called upon to deliberate cause any prejudice to defendant. The court's departing from the random selection procedure for alternate jurors had no capacity to bring about an unjust result in the circumstances of this case. R. 2:10-2.

V.

Next, defendant contends that the jury verdict was against the weight of the evidence, entitling him to a new trial.

A trial judge may grant a defendant's motion for a new trial "if required in the interest of justice." R. 3:20-1. However, a judge cannot set aside a jury verdict and grant a defendant a new trial "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." R. 3:20-1; State v. Gaikwad, 349 N.J. Super. 62, 82 (App. Div. 2002). On review, the trial court's decision should not be reversed unless it clearly appears that there was a miscarriage of justice. Ibid.; R. 2:10-1.

Defendant was convicted as a co-conspirator and an accomplice to Olivo's commission of the robberies and aggravated assaults. An accomplice is one who, with the purpose of promoting or facilitating a crime, aids or agrees to aid another in the commission of a crime. N.J.S.A. 2C:2-6c(1)(b). To be guilty of a crime as an accomplice, the defendant must "share[ ] in the intent which is the crime's basic element, and at least indirectly participate[ ] in the commission of the criminal act." State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). A defendant's liability for the crime is dependent upon his own state of mind and not that of any of the other participants. State v. Harrington, 310 N.J. Super. 272, 278 (App. Div.), certif. denied, 156 N.J. 387 (1998).

Here, the jury's verdict was not a miscarriage of justice because there was sufficient evidence to establish defendant's guilt beyond a reasonable doubt as an accomplice to the crimes.

Defendant contends the prosecution failed to prove beyond a reasonable doubt that he acted with the purpose to aid, promote, or facilitate the robberies or assaults. He argues inaccurately that the only evidence linking him to the crimes was his own testimony, which was exculpatory. Ana Rodriguez testified that she believed two men participated in the robberies and stabbings. The man who had dropped her off several minutes earlier identified defendant as the person sitting on the steps at the apartment building. After his arrest, defendant made a statement to the police admitting he learned that Olivo planned to rob the men, saw Olivo's knife, agreed to act as Olivo's lookout, and accompanied Olivo from the scene after the stabbings. While defendant may not have wanted to rob or harm the victims, he agreed to aid Olivo in doing so. By serving as Olivo's lookout, defendant became an accomplice to his criminal acts and thus subject to liability for those crimes. The jury could reasonably infer from the evidence that defendant intended to further the criminal acts.

The trial court did not err in denying defendant's motions for a directed verdict and for a new trial.

VI.

Finally, defendant contends that his sentence is excessive because he only acted as a lookout and did not otherwise participate in the actual robberies or assaults. He argues that the trial judge erroneously found aggravating factor two, N.J.S.A. 2C:44-1a(2), seriousness of the harm inflicted and the vulnerability of the victims.

Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. Roth, supra, 95 N.J. at 365. The test to be applied is "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).

Defendant was sentenced to fifteen years on each count of armed robbery, to run concurrently. That sentence is in the middle of the statutory range for the first-degree convictions. The judge noted that the victims were not present for the trial, apparently because they were illegal immigrants. He found that defendant and Olivo had preyed upon vulnerable victims who may have been reluctant to become involved with the police or the criminal justice system. In addition, the judge found that the victims were vulnerable because they were drunk at the time of the offense and incapable of resisting the assaults. The judge also noted the severity of the injuries sustained by the victims.

In addition to aggravating factor two, the judge found aggravating factor three, N.J.S.A. 2C:44-1a(3), that defendant was a high risk of re-offending because of his history of arrests and his unemployment, and aggravating factor nine, N.J.S.A. 2C:44-1a(9), the need to deter defendant and others from committing similar offenses. The judge found no factors in mitigation of sentence.

The judge did not abuse his sentencing discretion in his findings and balancing of aggravating and mitigating factors, and the term imposed was within the judge's sentencing discretion. See State v. Bieniek, 200 N.J. 601, 608-09 (2010). We reject defendant's argument that his sentence was excessive or otherwise unlawful.

Affirmed.


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