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State of New Jersey v. Anthony J. Pasqualini

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 28, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY J. PASQUALINI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-12-02010.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 20, 2010

Before Judges Cuff, Sapp-Peterson and Fasciale.

Defendant, Anthony J. Pasqualini, appeals from an April 20, 2009 judgment of conviction of third-degree theft of movable property, N.J.S.A. 2C:20-3 (Count One); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Two). At sentencing, the judge merged Count One, theft of movable property, into Count Two, receiving stolen property, and sentenced defendant to five years in prison with two and one half years of parole ineligibility.*fn1 The judge imposed restitution in the amount of $18,430 and imposed the appropriate fines and penalties. Under the circumstances of this case, defendant cannot be convicted as the thief and the receiver of stolen goods. We, therefore, vacate the receiving stolen property conviction, but affirm in all other respects.

GWS Contractors (GWS) employed defendant to drive a truck and perform general labor in its business of removing oil tanks and spills on residential properties. GWS used steel beams, varying anywhere between twelve and fifty feet in length, to support the foundation of a house when it removed contaminated soil. The steel beams weighed several thousand pounds and could only be moved using excavation equipment. GWS maintained an inventory of twenty-five steel beams and stacked them behind a dumpster on its property.

On March 5, 2008, a former employee notified Brian Taylor, a GWS foreman, that the steel beam inventory looked low. Taylor inspected the inventory and noticed that some of the beams were missing. Taylor notified Eric Davis, a co-owner of GWS, and Davis verified that twelve steel beams between twelve and fifty-feet in length were missing. Davis estimated the fair market value of the missing beams to be $18,275.

Davis' wife, the other GWS co-owner, contacted Paul Gulgun*fn2 and inquired if he had any information about the missing steel beams. Gulgun lived next to the GWS property. Gulgun reported that a few days before March 5 he heard loud banging in the rear storage area and noticed a GWS truck; however, Gulgun did not see anyone.

Taylor called defendant and accused him of stealing the beams. At first, defendant denied any wrongdoing, but when Taylor stated that Gulgun saw him loading the beams, defendant asked if he could call Taylor later. Defendant called Taylor five minutes later and - after Taylor repeated to defendant that Gulgun had seen him - defendant admitted he had stolen the steel beams. Defendant refused to tell Taylor on the phone where he would find the missing material. Defendant requested Taylor meet him at a Home Depot parking lot to discuss where he took the beams. Taylor called the police before he left to meet defendant.

Defendant met Taylor, told him that he took the steel beams to Blewett Scrap Metal (Blewett), and apologized. Taylor told defendant to return the GWS truck he had been driving that night. Before they left the Home Depot lot, Taylor stated, "I'm sorry it had to turn out this way." Defendant responded, "not half as sorry as I am." They both drove separately back to the GWS site. On the way back to the GWS site, defendant called Taylor and they talked on their cell phones. Defendant stated he stole the steel beams because "you know, times are hard . . . you know how it is." Taylor terminated defendant that night. The next day defendant emailed Davis' wife and said that he "REGRETT[ED] what ha[s] been done." He also stated that "[p]lease I BEG again not to pursue any charges legally."

Taylor paid Blewett $560 and retrieved four of the stolen steel beams. The other beams were no longer at Blewett. Taylor identified the four beams immediately because they had the initials "GWS" welded on them or had GWS special paint markings.

Defendant did not testify at trial, instead relying on his statement to detective James Ryan that was introduced into evidence. Defendant maintained that Davis authorized him to move the steel beams and clean up the yard on his own time. During the statement to Detective Ryan, defendant indicated that he could produce "mitigating factors" and that there were other people who could verify his account. Detective Ryan waited three weeks, called defendant, asked him "where are we," and defendant remained silent.

On appeal, defendant raises the following points:

POINT I

THE DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY THE STATE'S EVIDENCE AND ARGUMENT THAT THE DEFENDANT WAS MOTIVATED TO COMMIT THE THEFT BECAUSE HE WAS DESTITUTE (Not Raised Below)

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S USE OF CHARACTER ASSASSINATION TO PROVE HIS CASE (Not Raised Below)

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF OTHER-CRIME EVIDENCE WITHOUT A PROPER LIMITING INSTRUCTION (Partially Raised Below)

POINT IV

THE INSTRUCTION ON THE LAW OF THEFT AND RECEIVING STOLEN PROPERTY CREATED A FIREWALL, COMPELLING JURORS TO CONVICT THE DEFENDANT ONCE THEY FOUND THAT THE STATE PROVED THE ELEMENTS OF THE OFFENSE, RATHER THAN INFORMING JURORS THAT IF THE STATE PROVED THOSE ELEMENTS THEY SHOULD THEN CONSIDER CLAIM OF RIGHT DEFENSE (Not Raised Below)

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CONFESSIONS (Not Raised Below)

POINT VI

THE TRIAL COURT ERRED BY ADMITTING HEARSAY EVIDENCE (Partially Raised Below)

POINT VII

THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS (Partially Raised Below)

POINT IX

THE SENTENCE IS EXCESSIVE

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE

I

We begin by addressing defendant's argument that the State improperly charged him with receiving stolen property. Under the facts of this case, we are satisfied that it was proper to charge defendant with both offenses.

The investigation revealed that defendant admitted taking the steel beams, although with the explanation that he believed that he had a right to do so. There was, however, no direct evidence, such as an eyewitness, who identified defendant as the person who actually removed the steel beams from the GWS property. There was direct evidence that four steel beams, welded with GWS distinctive markings, were found at Blewett's and delivered to Blewett by defendant. Consequently, in the absence of direct evidence that defendant took the steel beams, it was reasonable for the State to charge defendant with both theft, by unlawful taking, and receiving stolen property.

Having been properly charged with receiving stolen property the State was entitled to seek introduction of defendant's prior convictions for receiving stolen property as part of its proof that defendant knowingly possessed stolen property. N.J.S.A. 2C: 20-7(b)(1), provides in pertinent part that "[t]he requisite knowledge or belief [that property is stolen] is presumed in the case of a person who: (1) [i]s found in possession or control of two or more items of property stolen on two or more separate occasions[.]" The trial court, after conducting the requisite N.J.R.E. 104 hearing pre-trial, determined that the evidence was admissible. Prior to the jury receiving testimony on this issue, the court instructed the jury as follows:

You're going to hear testimony from two police officers, that the defendant was found in possession of . . . two or more items of stolen property, on two or more separate occasions.

. . . [Y]ou have a right, if you choose, to infer that the defendant had knowledge, or a reason to believe, the item that he was in possession of, if you find him guilty of those charges, that he knew was stolen. You can take the information that you're about to be given, if you choose to, you can make inferences from it.

In addition, we have a rule that permits, under circumstances, evidence of other wrongdoings to come in. Never[] may those facts . . . be used to infer that somebody committed some other offense; but rather . . . you can use that information . [to show] motive, opportunity, intent, preparation, plan, knowledge, absence of mistake, or accident.

At the conclusion of the two officers' testimony, the judge again instructed:

[I]t is very, very important that you use the testimony, and the evidence[] only for legitimate purposes. One of the things the State charges[] is that [defendant] is guilty of . . . receiving stolen property.

And, in order for the State to prove the defendant guilty of receiving, there are various things that they have to prove. The third element[] that the State has to prove, beyond a reasonable doubt, is that the defendant, either knew that the property was stolen, or believed that it had probably been stolen at the time he received the property, or when it was brought in the State.

Now, I instruct you that you may - You do not have to[,] . . . infer that the defendant had this requisite knowledge or belief, if you find that the defendant was in possession or control or two or more items of property, stolen on two or more separate occasions.

If you draw an inference, ladies and gentlemen, you should weigh it in connection with all the other evidence in the case, keeping in mind that the burden of proof is upon the State to prove all the elements of the crime, beyond a reasonable doubt. We are concerned . . . that you cannot infer that because there are prior events or bad acts, that this gentleman did commit this event.

You can't make that leap of faith

[t]hat he is a bad person in some way. That is not an appropriate use of the evidence.

In fact, I told you, proof of other wrong doings is not admissible to show that someone has a disposition to do something bad. You can't do it that way. You have to look at the evidence in the case. You can use the permissible inference[] if you choose. Now, there was testimony about some of the . . . facts that surrounded some of the incidents[, a]nd I told you[] that such evidence cannot be admitted to show that this is a bad person.

In the final charge, the judge instructed the jury and stated that "you have the right to, if you choose to infer, that the defendant had the requisite knowledge. If you find that . . . defendant was found in possession or control of two or more items of stolen property, on two or more separate occasions." Defendant, for first time on appeal, claims that the trial court's instruction on past criminal conduct improperly permitted broad and prejudicial use of other-crime evidence. Since defendant failed to object to the contested jury instruction, we review defendant's argument under the "plain error" standard of review. State v. Torres, 183 N.J. 554, 564 (2005).

"Plain error in the context of a jury charge is '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). In determining whether there was any error, the charge must be read as a whole. Ibid. (citing Jordan, supra, 147 N.J. at 422).

It is well settled that "[a]ppropriate and proper [jury] charges are essential" in a criminal case to assure a fair trial. State v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J. 281, 287 (1981). When a defendant identifies an error in the charge, we must evaluate the charge in its entirety. State v. Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). Although a flawed [jury] charge is a poor candidate for rehabilitation or the application of the harmless error rule, State v. Simon, 79 N.J. 191, 206 (1979), a defendant must still demonstrate that the error affected the outcome of the jury's deliberations. State v. Jordan, 147 N.J. 409, 422 (1997).

Here, the trial judge admitted evidence of prior convictions pursuant to the statutory inference and N.J.R.E. 404(b). Therefore, the court's instruction on the statutory inference included 404(b)cautions. The admission of defendant's prior convictions for receiving stolen property was not subject to a 404(b) analysis. The admissibility of this evidence was subject to the express language contained in the receiving stolen property statute. N.J.S.A. 2C:20-7(b). As such, it was not necessary for the court to charge the jury based upon the admission of the prior convictions under 404(b). However, the additional 404(b) instruction did not have the capacity to cause an unjust result. If the jury considered defendant's prior possession of two or more items of stolen property on more than two separate occasions as evidence that defendant knew the steel beams were stolen, it was statutorily permitted to do so. On the other hand, if the jury considered his prior wrongs under 404(b) as evidence that defendant knew the steel beams were stolen but not, as the trial court instructed, as evidence that defendant acted in conformity with his prior wrongs, its consideration of the prior wrongs for on the question of his knowledge was not impermissible. Thus, we conclude the court properly instructed the jury on the permissive inference it was allowed to draw under N.J.S.A. 2C:20-7(b) and the additional 404(b) instruction did not have the capacity to cause an unjust result.

In short, we are satisfied that defendant was properly charged with both theft by unlawful taking and receiving stolen property and that the court did not commit plain error in its instruction to the jury related to consideration of defendant's prior theft-related offenses. We nonetheless vacate defendant's conviction for receiving stolen property. As we observed in State v. Cole, 204 N.J. Super. 618, 630 (App. Div. 1985), "[a]lthough there is some authority that [a] thief cannot be convicted of receiving stolen property . . . this simply means that defendant cannot be convicted as both the thief and receiver, but can be charged with both and convicted of either."

II

Defendant argues that the State violated his due process rights by contending that defendant committed the theft because he was destitute. We disagree that the assistant prosecutor argued to the jury that defendant stole the steel beams because he needed money.

While generally evidence of impecuniosity of a defendant should not be introduced into evidence and should not be commented upon, State v. Mathis, 47 N.J. 455, 471-72 (1966), the assistant prosecutor's comments during his opening statement and summation were not improper. The assistant prosecutor merely commented on the explanation defendant gave for his own behavior, especially because defendant's explanation contradicted his claim-of-right defense.

After he stole the steel beams, defendant explained his behavior to Taylor and Davis' wife. The day after defendant told Taylor that "times were hard," defendant sent an email to Davis' wife that stated, in part:

I'm sure I'm the last person you would expect an email from.

I must say, everyone at GWS has been great. You, yourself, have been so understanding and compassionate, when [the personal injury accident] happened in October. I really felt that I found a home in the GWS family. With the accident, I fell behind in life (emphasis added).

As I sit here writing to you, regretting my actions . . . .

. . . I do REGRET what has been done.

I BEG for your forgiveness and let me make it right by repaying any and all expenses that you have endured because of this . . . . I am shamefully walking away with my head down. Please I BEG of you not to pursue any charges legally.

I really wanted to come and apologize in person, face to face, I shamefully cannot bring myself to do it . . . .

Defense counsel did not object to the assistant prosecutor's reference to defendant's own explanation for committing the theft. Pursuant to Rule 2:10-2:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

"Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)). Defendant's failure to object to the assistant prosecutor's comments indicates that he did not, in the context of the proofs, deem them prejudicial or improper. State v. Thornton, 38 N.J. 380, 399 (1962), cert. denied. 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963); State v. Plowden, 126 N.J. Super. 228, 232 (App. Div.), certif. denied. 64 N.J. 504 (1974). In fact, in his summation to the jury, defense counsel quoted the same language from defendant's email to Davis' wife. We hold that the assistant prosecutor's comments did not constitute error, let alone plain error. R. 2:10-2.

III

Defendant argues that the State violated his due process rights when the assistant prosecutor referred to him as a common thief. Defendant contends that the assistant prosecutor attacked his character wrongly. We analyze defendant's argument under the plain error standard because no objection was made.

R. 2:10-2.

In his opening statement, the assistant prosecutor stated:

[F]or nearly thirty years, the owners of GWS Contractors lived the American dream. The owners of GWS contractors had the privilege of owning and operating a family business. However, that American dream was disturbed by . . . a common thief. In this particular case, I will show that defendant applies for a job at GWS Contractors[, t]hat he was hired at GWS Contractors[, t]hat he was trusted by GWS Contractors[, t]hat he was rewarded by GWS Contractors[, a]nd he returned the favor by stealing from them. In his summation, the assistant prosecutor stated:

[T]he owners of GWS Contractors have the privilege . . . of owning and operating a family-run business[, a]nd that American dream was disturbed and disrupted by [defendant], by being a common thief. The evidence in the case has shown that GWS contractors hired the defendant[, and t]hat GWS Contractors rewarded the defendant. GWS Contractors was loyal to the defendant. GWS Contractors trusted the defendant[, a]nd, in return, defendant stole from GWS Contractors.

Improper comments by a prosecutor require reversal when the prosecutor's misconduct is "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Nevertheless, a prosecutor is not precluded from making "a vigorous and forceful presentation of the State's case[.]" State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958). We conclude that the statements by the assistant prosecutor did not disparage defendant, and the reference to defendant as a common thief by stealing the steel beams was not clearly capable of producing an unjust result or so egregious that it deprived defendant of a fair trial. Frost, supra, 158 N.J. at 83.

IV

Next, we turn to defendant's argument that the judge erred because he did not read the claim-of-right-charge to the jury immediately after he concluded charging the jury on the elements of theft and receiving stolen property. We must apply the plain error standard of review, Rule 2:10-2, because the defense did not object.

A claim-of-right is an affirmative defense to theft. N.J.S.A. 2C:20-2c(2) provides that:

It is an affirmative defense to prosecution for theft that the actor:

(2) Acted under an honest claim of right to the property or service involved or that he had a right to acquire or dispose of it as he did.

The burden of proof is on the State to prove beyond a reasonable doubt that defendant did not honestly believe that he had a right to the property or was authorized to "acquire or dispose of it as he did[.]" See State v. Galiyano, 178 N.J. Super. 393, 397 (App. Div.) (N.J.S.A. 2C:1-13b(1) "makes it clear that the State must disprove an affirmative defense"), certif. denied, 87 N.J. 424 (1981).

Prior to the lunch break, the judge charged the jury on the elements of theft and receiving stolen property. He explained that if the jury found beyond a reasonable doubt all of the elements on either theft charge, they must find defendant guilty. The judge released the jury for lunch and told counsel that he intended to continue by charging the jury on the permissible inferences, N.J.S.A. 2C:20-7b(1), and claim-of-right. After lunch, the judge did just that; he devoted three paragraphs in the charge to the permissible inferences and then charged the jury on defendant's claim-of-right. Defendant contends that this sequence prevented the jury from considering his claim-of-right defense. Defendant argues that the jury would never reach his claim-of-right defense if they found him guilty on the theft offenses. We disagree.

After the judge charged the jury on claim-of-right, he stated:

[I]f the State has proven all of the elements of the offenses[] that are charged, that is, beyond a reasonable doubt, and it has also been proven, beyond a reasonable doubt, that defendant did not honestly believe that he had the right to the property . . . then you must find the defendant guilty of the offense you are considering.

On the other hand, if the State has failed to prove, beyond a reasonable doubt, one or more of the elements of the offense, or if the State has failed to prove, beyond a reasonable doubt, that defendant did not have an honest belief, that he had a right to the property or was authorized to receive it, take it, acquire it, or dispose of it, then you must give him the benefit of the doubt, and find the verdict of not guilty.

Looking at the jury charge as a whole, Vasquez, supra, 374 N.J. Super. at 263, we see no error in the charge given by the judge. As phrased the judge did not erect a firewall. The judge expressly informed the jury that it should consider defendant's claim-of-right defense as it considered all other elements of each offense.

V

Defendant next argues, again for the first time on appeal, that the jury instructions on defendant's oral statements fell short of the requirements of State v. Hampton, 61 N.J. 250 (1972) and State v. Kociolek, 23 N.J. 400 (1957). There was no error here "clearly capable of producing an unjust result." R. 2:10-2.

The judge told the jury that they were "the sole and exclusive judges of the facts, the credibility of the witnesses, and that weight to be attached. . . ." Additionally, the judge repeatedly charged the jurors on how to assess the witnesses' credibility, including their demeanor, their possible bias or interest in the case's outcome, and whether other evidence corroborated or contradicted their testimony.

These instructions sufficed under the circumstances. Defendant never disputed the credibility of the statements he made to Taylor, Davis' wife, or Detective Ryan. In fact, in his opening and closing to the jury, defense counsel referred to defendant's statements. This was, therefore, neither the usual case of "miscommunication" or dispute about the words defendant said, nor a lapse in memory about what he said, which triggers the need for the cautionary language of Hampton*fn3 and Kociolek*fn4 . Accordingly, we find no error in the instructions actually given.

VI

For the first time on appeal, defendant argues that the testimony of Officer Joseph Deprossimo concerning his visit to the GWS site introduced inadmissible hearsay contrary to Bankston*fn5 . Defendant also contends that Taylor introduced hearsay evidence. We find no merit in either argument.

In State v. Bankston, 63 N.J. 263, 268 (1973) the Supreme Court acknowledged that "the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so 'upon information received.'" (citation omitted). The relevance of such testimony is to explain the officer's conduct. Ibid. The testimony becomes inadmissible if the officer repeats what some other person told him concerning a crime by the accused. Ibid.

The Bankston rule is rooted in the principle that "the admission of such testimony violates the accused's Sixth Amendment right to be confronted by witnesses against him." Id. at 269; State v. Branch, 182 N.J. 338, 348-50 (2005). "[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant." Branch, supra, 182 N.J. at 351.

Officer Deprossimo was dispatched to GWS because of a report of theft. After he spoke to Davis and Taylor, Officer Deprossimo listed defendant as a suspect. Officer Deprossimo did not imply that he had superior knowledge that incriminated defendant, and did not repeat what Davis and Taylor told him. Furthermore, Davis and Taylor both testified and were cross-examined. Officer Deprossimo also received information regarding Gulgun, but did not remember talking to him. Gulgun, too, was cross-examined by defense counsel. We see no error here, let alone plain error, with Officer Deprossimo's testimony.

Taylor testified that a former GWS employee told him that the steel beam inventory looked low. The defense attorney objected on hearsay grounds. The judge overruled the objection and gave a limited instruction to the jury and stated that "[t]he information provided is not provided[] . . . to prove it is true . . . it is only introduced so, you understand the context of the information, that led [Taylor] to do whatever it is he is going to testify he did." Moreover, defense counsel did not object to Taylor's testimony that Gulgun told him what he heard and saw. On cross-examination, Taylor and Gulgun admitted that Gulgun did not see defendant loading a GWS truck with steel beams. Thus, Taylor did not introduce hearsay evidence.

VII

Defendant argues that his sentence of five years in prison with two years of parole ineligibility is excessive. The scope of our review of a sentence is limited. State v. Evers, 175 N.J. 355, 386 (2003). Appellate review is not an opportunity for this court to substitute our judgment for that of the trial judge and to impose our view of the appropriate sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010); Evers, supra, 175 N.J. at 386. Rather, we review a sentence within a set of guidelines established by the Supreme Court in State v. Roth, 95 N.J. 334, 364-66 (1984). Within these guidelines, we can:

(a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience. [Id. at 364-65.]

In sentencing a defendant, a trial court must identify the relevant aggravating factors of N.J.S.A. 2C:44-1(a) and the relevant mitigating factors of N.J.S.A. 2C:44-1(b), "determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989).

The judge denied the State's motion to sentence defendant to an extended term as a persistent offender even though defense counsel admitted that defendant was eligible pursuant to N.J.S.A. 2C:44-3a. The judge found aggravating factors (1),(3),(4),(6),(9) and (11) under N.J.S.A. 2C:44-1a. We find that the judge erred by finding aggravating factors (1), (4) and (11); however, the sentence is not "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), and does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Defendant's remaining arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed as modified.


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