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State of New Jersey v. Mark Aquilina

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 31, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MARK AQUILINA, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1857.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2010

Before Judges Carchman, Graves and Waugh.

In October 2005, a Bergen County grand jury charged defendant Mark Aquilina, his mother, Debra Aquilina, and James Gerritsen with the murder of Ralph Ludwig, Jr., N.J.S.A. 2C:11-3 (count one); first-degree conspiracy to murder Ludwig, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (counts two, three, and four); third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) (count five); third-degree possession of a controlled dangerous substance (heroin), N.J.S.A. 2C:35-10(a)(1) (count six); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count seven). Defendant was tried separately, and counts three and four of the indictment, which charged Debra Aquilina*fn1 and Gerritsen with conspiring with defendant to murder Ludwig, were not submitted to the jury. On September 26, 2007, the jury found defendant guilty on the five remaining counts.

At sentencing on November 16, 2007, the trial judge noted that defendant "was an active participant in the murder of his stepfather" and that the murder was committed in a "cold and calculated fashion":

I find that Mr. Aquilina awaited a signal from one or both of his co-defendants before then providing the hot loaded syringe to Mr. Ludwig. He then watched his stepfather as he clenched up and began to die. Neither he nor the others sought aid for the victim, but rather they proceeded to take money from his pockets to buy more drugs and continue to party.

The court merged the convictions for conspiracy to commit murder and murder and sentenced defendant to a forty-year prison term with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Concurrent four-year terms were imposed on counts five and six for the possession of cocaine and heroin convictions, and defendant was sentenced to a consecutive four-year term for the hindering apprehension conviction. All sentences were consecutive to the sentence defendant was then serving for an unrelated offense.

On appeal, defendant presents the following arguments:

POINT I

THE COURT ERRED IN ADMITTING THE DEFENDANT'S CUSTODIAL STATEMENTS BECAUSE THE MIRANDA WARNINGS WERE NOT VOLUNTARILY AND INTELLIGENTLY WAIVED SINCE THE DEFENDANT WAS NOT CLEARLY TOLD HE COULD TERMINATE THE INTERROGATION AND RETURN TO THE COUNTY JAIL.

POINT II

THE ACCOMPLICE-LIABILITY CHARGE WAS FATALLY DEFECTIVE BECAUSE IT ELIMINATED CRUCIAL WORDING THAT EXPLAINED HOW THE ACCOMPLICE THEORY APPLIED TO THE LESSER-INCLUDED OFFENSES. (Not Raised Below)

POINT III

IT WAS IMPROPER TO GIVE THE JURY EXTRA SETS OF THE WRITTEN INSTRUCTIONS BECAUSE THE CASE INVOLVED COMPLEX LEGAL CONCEPTS THAT REQUIRED PLAIN LANGUAGE EXPLANATIONS. (Not Raised Below)

POINT IV

BECAUSE THE STATE FAILED TO PRODUCE INDEPENDENT CORROBORATION OF THE DEFENDANT'S CONFESSION, THE COURT, SUA SPONTE, SHOULD HAVE DISMISSED ALL THE CHARGES AT THE END OF THE STATE'S CASE; ALTERNATIVELY, THE JURY SHOULD HAVE BEEN GIVEN A CORROBORATION CHARGE. (Not Raised Below)

A. THE COURT SHOULD HAVE ENTERED JUDGMENT OF ACQUITTAL AS TO THE CHARGES BECAUSE THE DEFENDANT'S CONFESSION LACKED CORROBORATION.

B. IN THE ALTERNATIVE, THE COURT SHOULD HAVE INSTRUCTED THE JURY ON THE NEED FOR CORROBORATION OF THE DEFENDANT'S CONFESSION.

POINT V

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE TERM OF 40 YEARS WITH A 85% PAROLE BAR UNDER NERA, AND A FOUR YEAR CONSECUTIVE SENTENCE FOR HINDERING. THE SENTENCE MUST BE VACATED.

A. THE COUNTS CHARGING POSSESSION OF COCAINE AND HEROIN MUST BE MERGED FOR THE PURPOSES OF SENTENCING.

B. THE QUANTUM OF SENTENCE IS EXCESSIVE.

For the reasons that follow, we affirm defendant's convictions but remand for the entry of a corrected judgment of conviction that will merge counts five and six.

At approximately 5:53 a.m. on February 15, 2003, Officer John Demko of the Garfield Police Department was dispatched to the victim's residence on Palisade Avenue based on a report that an individual was not breathing. As Demko arrived on the scene, he saw defendant standing outside the residence. Defendant directed Demko to the second floor of the house where he spoke with Debra and Gerritsen. Debra told Demko that Ludwig, her husband, had fallen asleep in their bedroom and was no longer breathing. Demko entered the bedroom and observed Ludwig "laying on his back next to a bed." According to Demko, there were signs of rigor mortis and he believed that Ludwig may have been "deceased for some time."

Detective Michael Latona arrived at approximately 6:30 a.m., and Debra told him that Ludwig "had overdosed and there was contraband, as well as paraphernalia, in the bedroom in his dresser." Debra showed him the dresser, and Latona recovered "empty bags of a yellowish-brown substance" that he believed to be heroin from the top of the dresser and "additional paraphernalia" including "syringes," "plastic tubes," and "a tourniquet" in a dresser drawer. However, nothing of "evidentiary value" was found near Ludwig's body.

Latona then interviewed Debra. She told him that she had said good night to Ludwig when she went to bed, and she woke up at 4:30 a.m. to go to a CVS Pharmacy in Fair Lawn. When she returned home, she found that Ludwig was not breathing and she immediately called 9-1-1. According to Latona, Debra "believed it was a drug overdose" because he "was using. There was less money in his paycheck every week and his temper seemed to be getting more agitated." In addition, Gerritsen confirmed that Debra woke him up at approximately 5:30 a.m. and told him that Ludwig was not breathing. Gerritsen also said that he was a friend of both Debra and Ludwig and that he "had been staying there for about a month."

Dr. Sunandan Singh, M.D., performed an autopsy on February 16, 2003. Singh could not locate any injection marks in Ludwig's arms because they were "heavily tattooed in multi colors." Singh initially stated the cause of death was "[p]ending toxicology." However, after he received the toxicology report dated April 10, 2003, he amended his report to indicate that Ludwig had died from a "cocaine and morphine overdose, manner accident." Based on Singh's findings, the police concluded that Ludwig's death was an accidental drug overdose and the investigation "was closed."

Subsequent to Ludwig's death, defendant was sentenced to a six-year prison term for armed robbery of a taxi driver. In May 2004, while he was housed at the Bergen County Jail, defendant played cards with Frank Baez (Baez) and two other inmates.

According to Baez's trial testimony, during one of the card games, defendant spoke about how he had committed "the perfect murder:"

[PROSECUTOR]: What were those details that he shared with you during the card game?

[BAEZ]: He mentioned that his mother and himself planned on killing this guy because he had a house, he had a little bit of money. . . .

. . . Mr. Aquilina was saying [that] when [Ludwig] got high, he couldn't load the syringe . . . . [so] Mr. Aquilina . . . being more experience[d,] would set the syringe for him . . . .

. . . Normally, Mr. Aquilina said [his] stepfather would take two bags -- two bags of heroin, and that was -- you know, that's all he can handle, I guess . . . [Mr. Aquilina] and his mother had it worked out to put four bags and kill him. . . .

. . . [H]e told me [his] mother nod[ded] . . . like gave [him] the signal . . . [and defendant] put four bags instead of two bags in his normal, you know, shot . . . .

. . . He says, "You should have seen it, [Ludwig's] eyes just like rolled back, [he] grabbed his chest, he froze and he looked right at us, and he just fell head first right on the bed with his knees on the floor almost like he was praying . . . ."

[PROSECUTOR]: Now, who did he describe as the person who actually injected the syringe into Mr. [Ludwig's] arm . . . ?

[BAEZ]: He handed it to [Ludwig] and [he], I guess thinking it was only two bags not knowing that he was being set up[,] injected himself Baez testified he wrote a letter to Assistant Bergen County Prosecutor Martin Delaney, who had handled his case, stating that he had information "on a murderer who got away with it."

Delaney reviewed the letter with Detective Gil Breit, and both men proceeded to interview Baez at the Bergen County Jail on May 19, 2004. According to Breit, the Garfield Police Department's records were consistent with the information Baez provided. Baez gave a sworn stenographic statement on February 17, 2005.*fn2

On March 4, 2005, Breit and Detective Mark Bendul transported defendant from the Bergen County Jail to the Bergen County Prosecutor's Office to conduct an interview. Defendant waived his Miranda*fn3 rights and proceeded to answer the detectives' questions. Specifically, Breit testified that when defendant was asked what happened to his stepfather, he responded:

[H]e, his mother and his stepfather were up partying all night and that at one point [Mr. Aquilina] went to bed . . . . He woke up at about five o'clock in the morning and went into the master bedroom to wake up his stepfather in order for him to go to work, and he found his stepfather stiff as a board in the master bedroom.

He yelled for his mom. Words to the effect of, "Mom, [Ludwig] is dead." He said that his mother was sleeping in the bed in the master bedroom alongside [Ludwig]. She woke up and they notified the police.

Breit recognized "[g]laring inconsistencies" in defendant's story based upon the information that Debra had given to Detective Latona. Breit testified that after he confronted defendant with the information provided by his mother and Baez, defendant changed his story:

[BREIT]: At approximately noon, Mr. Aquilina said to me that his initial version that he explained to Detective Bendul and me was not the truth and that, in fact, the account that he had told . . . during the card game was truthful.

[PROSECUTOR]: What did he say to you now as to what the account was as to what happened on Valentine's night of 2003?

[BREIT]: He said on that night his . . . stepfather . . . went out to purchase drugs in Paterson and while he was out, his . . . mother, himself, and [Gerritsen,] . . who [defendant] explained was his mother's former boyfriend . . . came up with a plan to induce a lethal drug overdose on Mr. [Ludwig] in order to get him out of the picture, to take care of [Ludwig].

[PROSECUTOR]: What were the specifics of that plan to hot load a syringe and get rid of his stepfather?

[BREIT]: Mr. Aquilina explained to us that the plan as his mother told him was to put four bags of heroin into the syringe at a point in time . . . at night during the party.

[PROSECUTOR]: And what about any other details in terms of that plan being carried out?

[BREIT]: Yes, that she would give him a signal and tell him when she wanted him to bring the hot-loaded syringe or present the hot-loaded syringe to Mr. [Ludwig].

[PROSECUTOR]: What else did the defendant say with respect to a meeting that took place later in the night while they were continuing to party?

[BREIT]: He explained that at one point when Mr. [Ludwig] was in the master bedroom, there was another little gathering in the kitchen between his mother and Mr. Aquilina and Mr. Gerritsen . . . . And at that time his mother told him to use four bags of heroin. And Mr. Aquilina in the course of the interview told us that he knew that four bags of heroin would be more than enough to kill him.

[PROSECUTOR]: What did he say as to what he did instead of filling the needle with four bags of heroin?

[BREIT]: He said later on when he prepared the hot-loaded syringe he used three-and-a-half bags of heroin knowing that three and a half would be more than enough to kill his stepfather and he kept half a bag back.

[PROSECUTOR]: What did he say with respect to his actions shortly after midnight on February 14th of 2003 into the morning of February 15th?

[BREIT]: He said that his mother gave him a signal, a nod and he brought the hot-loaded syringe into the master bedroom where he, his mother, and Mr. [Ludwig] were partying and he presented the hot-loaded syringe to Mr. [Ludwig]. He said he witnessed Mr. [Ludwig] inject the syringe. . . . And he described . . . the effects of a lethal drug overdose on his stepfather.

Defendant then gave a twenty-seven page stenographic statement and his acknowledgement of the statement, was videotaped. Breit read the entire statement to the jury, and the videotape was played in court.

Although defendant testified at his Miranda hearing, he did not testify at trial. In her opening and closing statements, defense counsel acknowledged that Ludwig died from "an overdose of drugs," but she told the jury that defendant "had nothing to do with [it]" and his statements to Baez were nothing more than "jailhouse talk" to avoid being "hurt or abused." In addition, defense counsel claimed that defendant tried to tell the police "that it was an accidental death," but when he realized that the police were "going to accept what Baez told them" and that "he was never getting out of there," he told "them what they wanted to hear."

In his first point, defendant argues that he did not voluntarily and intelligently waive his Miranda rights prior to confessing because he was never told that "he could terminate the interrogation and request to be returned to jail."*fn4

We do not agree.

At the Miranda hearing, Breit testified that he advised defendant of his rights by reading from a Miranda Rights Form, which contained the following five questions:

1. You have the right to remain silent and to refuse to answer any questions. Do you understand that?

2. Anything you say can and will be used against you in a court of law. Do you understand that?

3. You have the right to talk to an attorney at any time and have him present with you while you are being questioned. Do you understand that?

4. If you cannot afford to hire an attorney, one will be appointed to represent you before any questioning, if you wish one. Do you understand that?

5. You may stop answering questions or request an attorney at any time. Do you understand that?

Breit testified at the Miranda hearing that defendant was cooperative, alert, communicative, and willing to discuss the drug-related death of his stepfather. Breit further testified that defendant verbally, and in writing, acknowledged that he understood his Miranda rights and elected to waive them:

[PROSECUTOR]: . . . [D]id you go through each one of those rights separately?

[BREIT]: Yes.

[PROSECUTOR]: After you read each right to Mr. Aquilina, what did he do?

[BREIT]: I asked him if he understood each right and he gave me his verbal response.

[PROSECUTOR]: And what was the verbal response to each of those five rights that you advised Mr. Aquilina?

[BREIT]: He answered yes, understanding each right.

[PROSECUTOR]: Now, detective, at the bottom of that form there is . . . a waiver portion?

[BREIT]: Yes.

[PROSECUTOR]: How did you go about advising Mr. Aquilina of that waiver?

[BREIT]: After reading the five individual constitutional rights and having his answer to each, I read the waiver portion to him aloud.

[PROSECUTOR]: Did he respond to that?

[BREIT]: Yes, he did.

[PROSECUTOR]: What did he say in response to that?

[BREIT]: He said he understood the waiver portion and he was willing to answer questions.

[PROSECUTOR]: Now, after you advised him of all those rights, verbally, and Mr. Aquilina responded verbally, did you do anything else with respect to confirming that in writing?

[BREIT]: Yes. I handed him the form at that time and asked him to read the form to himself. I asked him to enter his yes answer on the appropriate line after each of the five rights that I read to him and to place his initials after each, each yes response. Then to print his name in the waiver portion and sign in the lower right hand portion of the form, which he did.

[PROSECUTOR]: Does his printed initials appear on each one of those five rights?

[BREIT]: Yes, it does.

[PROSECUTOR]: And you were a witness and present to Mr. Aquilina writing the word yes and his initials after each one of those?

[BREIT]: Yes, I was.

[PROSECUTOR]: And did you also witnesses him signing that form?

[BREIT]: Yes, I did.

Defendant testified at the Miranda hearing that he "felt intimidated" and that his confession was not true: "I felt intimidated. I felt they were going to hurt me so I told them a false statement to what they wanted to hear and here I am today." Defendant also stated that he had been on medication that made him feel "[s]edated" when he was questioned.

In an oral decision on September 21, 2006, the court found that defendant was not a credible witness, and it denied his motion to suppress. The court's findings included the following:

I further find that Mr. Aquilina . . . [knew] what his rights were. I don't believe . . . that he thought he was being physically threatened or going to be physically thrashed or threatened . . . . There's no proof of that in this case. There's nothing at all in defendant's testimony that would indicate that. And his explanation to me that he gave the statement just to let it get done and over with is . . . unbelievable . . . .

There's nothing about the medications that he was allegedly taking . . . that would show me or demonstrate to me that he may have been under the influence of some prescription medications that would have interfered with his ability to go through this statement freely and voluntarily.

. . . Everything about this case indicates that this defendant freely, voluntarily, and intelligently waived his rights under Miranda . . . .

We have determined from our review of the record that the court's findings and credibility assessments are amply supported by sufficient credible evidence. The court properly concluded that defendant's custodial statements were admissible because the State proved beyond a reasonable doubt that defendant made a voluntary, knowing, and intelligent waiver of his Miranda rights. See State v. Elders, 192 N.J. 224, 243 (2007) ("[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.") (internal quotation marks omitted).

In his second point, defendant argues that the accomplice- liability charge was defective because the jury was only instructed on how accomplice liability applied to first-degree murder and not the lesser-included offenses of aggravated manslaughter, reckless manslaughter, or drug-induced death.

According to defendant, "the charge was fatally deficient and a new trial is mandated." We disagree.

Defendant's argument must be evaluated under the plain error standard because counsel did not object to the trial court's instructions. R. 1:7-2; R. 2:10-2. With regard to a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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."

State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). The charge to the jury must "be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). "The absence of an objection suggests that trial counsel perceived no error or prejudice." State v. Green, 318 N.J. Super. 361, 373 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000).

When "lesser included offenses are submitted to the jury, the court has an obligation to 'carefully impart[] to the jury the distinctions between the specific intent required for the grades of the offense.'" State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (alteration in original) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)). The Court has adopted Bielkiewicz's analysis and reaffirmed that "a principal and an accomplice, although perhaps liable for the same guilty act, may have acted with different or lesser mental states, thus giving rise to different levels of criminal liability." State v. Ingram, 196 N.J. 23, 41 (2008).

In this case, the evidence of defendant's guilt was overwhelming, and we are satisfied that the trial court did not commit plain error. See State v. Cotto, 182 N.J. 316, 327 (2005) (noting that the "strength and quality" of the State's evidence "precludes a finding of plain error"). The jury twice concluded beyond a reasonable doubt that defendant had the requisite intent to murder Ludwig and to conspire to murder him with his mother and her boyfriend--a verdict entirely consistent with defendant's admissions to Baez and subsequent written confession. Moreover, based on defendant's theory of the case, there was no logical basis for the jury to convict him of any lesser-included offense. Consequently, the court's failure to instruct the jury on accomplice liability when it charged the lesser-included offenses did not contribute to an unjust result.

See State v. Rue, 296 N.J. Super. 108, 116 (App. Div. 1996) (noting that once the jury "rejected defendant's claim of non-complicity, [it] could not have concluded that defendant had the mental state for a lesser crime"), certif. denied, 148 N.J. 463 (1997).

In point three, defendant argues that it was improper for the trial court to provide the jury with written copies of the jury instructions. Pursuant to Rule 1:8-8(a), "[t]he court, in its discretion, may submit a copy of all or part of its instructions to the jury for its consideration in the jury room." See also State v. O'Brien, 200 N.J. 520, 540 (2009) ("To ensure that verdicts are the result of each juror's equal understanding of the facts and the law as it applies to those facts, judges are granted leave to consider whether or not issuing written instructions would be helpful or harmful in a particular case."). In the present matter, the trial judge noted that he did not expect the jurors "to memorize everything," and he provided them with written copies of the instructions to refresh their recollection. We find no abuse of discretion or reversible error.

In his fourth point, defendant argues that the trial court should have entered a sua sponte judgment of acquittal because his confession lacked sufficient corroboration, or, in the alternative, that the trial court erred by failing to instruct the jury on corroboration. We find no merit in these arguments. As the Supreme Court has explained:

Our corroboration standard requires that the trial court determine whether there is any legal evidence, apart from the confession of facts and circumstances, from which the jury might draw an inference that the confession is trustworthy. The corroboration requirement has both legal and factual components. As a matter of law, the trial court initially must determine whether the State has presented independent corroborative evidence of the trustworthiness of the confession. If the State presents some corroboration, the confession is submitted to the fact finder to resolve arguments and speculation about its weight and sufficiency.

[State v. Cook, 179 N.J. 533, 564-65 (2004) (citations and internal quotation marks omitted).]

"The reason for the rule requiring evidence independent of the confession and corroborating it is to avoid the danger of convicting a defendant solely out of his own mouth of a crime that never occurred or a crime committed by someone else."

State v. Johnson, 31 N.J. 489, 502-03 (1960).

Here, the trial court denied defendant's motion for a judgment of acquittal because it found that the State satisfied its burden. We agree with that determination. The State's proofs showed that defendant, his mother, and Gerritsen were all present at the scene when the police responded to Debra's call, and defendant directed Officer Demko to the second floor of the residence where Ludwig's lifeless body was found; Detective Latona recovered drug paraphernalia from Ludwig's dresser; and the State's expert witnesses ultimately concluded that Ludwig died from an overdose of heroin and cocaine. In addition, defendant's statements to Baez and other prison inmates were consistent with his formal detailed confession. Accordingly, the State's corroborative proofs were sufficient to present a jury question as to the trustworthiness of defendant's confessions, and the court did not err in denying defendant's motion for a judgment of acquittal on the murder and conspiracy to commit murder counts.

Defendant also argues that his convictions must be reversed because "the jury was never charged with respect to the need for corroboration of the confession." The Court has noted, however, that "the failure of the trial court to instruct the jury on corroboration does not rise to plain error where other aspects of the charge addressed the jury's responsibility to assess credibility, and '[t]he entire thrust of the defense' was that the statements at issue were untrue." State v. Reddish, 181 N.J. 553, 621 (2004) (alteration in original) (quoting State v. Roach, 146 N.J. 208, 229, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)).

In this case, as in Reddish, "the trial court properly informed the jury of its duty to assess credibility, in general, as well as the credibility of defendant's statements." Id. at 622. Furthermore, defendant's theory of the case was that his confessions were untrue. Under these circumstances, the absence of a specific corroboration charge, which was not requested by defendant, does not rise to the level of plain error. Ibid.

In his final point, defendant argues that his forty-year sentence with an eighty-five percent parole disqualifier is manifestly excessive. "Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). A reviewing court must determine whether the findings of fact regarding aggravating and mitigating factors were based on "competent, reasonably credible evidence," whether the lower court applied "correct legal principles in exercising its discretion," and whether the application of the facts to the law constituted "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). We do not second-guess the trial judge's findings if they are supported by substantial evidence in the record. State v. Cassady, 198 N.J. 165, 180-81 (2009).

At sentencing, the court found aggravating factors three, four, six, and nine, no mitigating factors, and that the aggravating factors outweighed the mitigating factors. See N.J.S.A. 2C:44-1. The court reasoned as follows:

In terms of aggravating factors, under the statute I find number three, the risk that the defendant will commit another offense. I base that finding[] on several factors, the first of which is the presentence report . . . which indicates that Mr. Aquilina has a significant substance abuse history including heroin, marijuana and cocaine use on a daily basis including the date of this offense. . . . Unless the proper steps are taken in the future to refrain from those substances, I do find that the there would be an increased risk that he will re-offend. . . .

More importantly, I based my finding on the extent of Mr. Aquilina's prior record. I note that his juvenile record consists of about a half dozen offenses as well as a violation of juvenile probation. Also his adult arrest record consists of four other arrests as well as a domestic violence and a temporary restraining order.

I also find aggravating factor number four, that Mr. Aquilina took advantage of a position of trust or confidence to commit the offense. I do note that Mr. Aquilina . . . was the stepson of Mr. Ludwig. That he took advantage of that relationship when he handed him that hot loaded syringe that he knew Mr. Ludwig was going to inject himself with thereby resulting in his eventual demise.

I also find aggravating factor number six, the extent of Mr. Aquilina's prior record . . . does include one Superior Court conviction for robbery and unlawful use of a weapon. He's presently serving a state sentence on those charges at this time. Also a second Superior Court conviction under a separate indictment for possession of cocaine.

Finally, I find aggravating factor number nine, the need to deter Mr. Aquilina and others from engaging in this type of conduct.

In terms of mitigating factors, I have considered all the mitigating factors urged by the defense. However, I do not find any of them to apply in this case.

We find no merit in defendant's argument that his sentence was excessive. The trial court correctly applied the sentencing guidelines, and its findings regarding the presence of aggravating factors and the absence of mitigating factors is supported by competent evidence in the record. Additionally, we are satisfied that defendant's sentence is not manifestly excessive or unduly punitive, and it certainly does not "shock the judicial conscience." Roth, supra, 95 N.J. at 365.

Defendant further argues, and the State concedes, that his convictions under count five, possession of cocaine, and count six, possession of heroin, should have merged for sentencing purposes. We agree. See State v. Strecko, 244 N.J. Super. 463, 465 (App. Div. 1990) (stating that "[s]imultaneous possession of two drugs . . . merge[s] when neither offense involves an intent to distribute").

In view of the foregoing, we remand for the entry of an amended judgment of conviction merging counts five and six. In all other respects, the judgment is affirmed.


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