May 4, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT SANBORN, A/K/A VINCENT G. SANBORN IV, VINCENT G. SANBORN, VINCENT GUY SANBORN IV, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-11-2796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2012
Before Judges Cuff and Waugh.
Defendant Vincent Sanborn appeals his conviction for second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(2) (count two); two counts of fourth-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(d) (counts three and four); two counts of third-degree possession of a weapon for unlawful purpose, contrary to N.J.S.A. 2C:39-4(d) (counts five and six); and the disorderly persons offense for resisting arrest, contrary to N.J.S.A. 2C:29-2(a). Sanborn also challenges his aggregate sentence of eight years with an eighty-five-percent period of parole ineligibility. We affirm.
We discern the following facts and procedural history from the record on appeal, including the trial transcript.
On the night of August 15, 2009, Sanborn slept at the apartment of his wife, to whom we refer by the pseudonym Susan. Sanborn and Susan were separated, but considering a reconciliation. Sanborn was still asleep on a chair in the living room on the afternoon of August 16, when Susan was about to leave for work. Because she did not want Sanborn in her apartment when she was not there, Susan woke him up and asked him to leave. She had difficulty waking him.
When Sanborn resisted her attempts to get him to leave, Susan held a cellphone in her hand and told Sanborn she would call his mother if he did not leave. Sanborn grabbed the cellphone from Susan and threw it against the wall, breaking it. Susan then used her cordless telephone to call 9-1-1. Sanborn ripped the cordless telephone's receiver off the wall and threw it against the wall, causing the receiver to break and rendering it inoperable.
After breaking both telephones, Sanborn held Susan's head with one hand and punched her four times in the face and head, including her eye, with the other. Susan "heard things crack and pop and . . . felt excruciating pain" when Sanborn hit her in the eye. Susan also stated that she lost vision during the attack.
Despite Susan's requests that he stop, Sanborn subsequently hit Susan multiple times in her head and face with a stainless steel toaster oven, a stainless steel coffee maker and carafe, and a microwave oven. When Susan attempted to block them from hitting her, she suffered lacerations to her hands and arms. Susan testified that while Sanborn was attacking her, he said she was not "going to call [his] mom . . . and ruin his life," that "[she] was [fuckin'] dead," and that "[h]e was going to make [her] head explode like [a fuckin'] grape."
Susan escaped the apartment and was assisted by her neighbors, who kept Sanborn away from her. The Atlantic City police were dispatched to Susan's apartment complex. Upon arriving, they found Sanborn in the building's parking garage. Sanborn "speedily" walked away when police arrived. He initially ignored their requests for him to stop. When the officers questioned Sanborn, he provided them with a false name. He subsequently resisted the officers' attempts to arrest him. Sanborn did not subside until one officer threatened to release his K-9 partner.
Sanborn was indicted on November 23, 2009. He waived his right to a jury trial. A bench trial on all charges was held on June 2, 7, and 16, 2010. Susan testified to the facts outlined above. There was also medical and lay witness testimony about the nature and extent of her injuries.
Sanborn elected to testify on his own behalf. He admitted that he and Susan argued, but disputed her overall account of the incident. Although he admitted that he threw her cellphone during his direct examination, he denied having done so during cross-examination. Sanborn testified that he did not strike Susan with his hand or with any appliance. Instead, he asserted that he struck the coffee maker during the argument, causing it to hit Susan in the eye and the toaster to fall to the ground.
He also asserted that he struck the top of the microwave oven in a downward motion, which caused it to fall to the ground. He claimed Susan tripped over the fallen microwave as she ran out of the apartment.
Sanborn suggested that Susan provoked this burst of anger because he was in the intensive supervision program (ISP), that she actually threatened to call the police, and being reported to the police was an ISP violation that would cause him to go back to jail. Consequently, he "panic[ked]" after Susan called the police and "lost it" when, in an attempt to leave the apartment, he could not locate his ISP journal.
Sanborn admitted to his interaction with police, explaining that he acted that way in order to avoid going back to jail for an ISP violation.
The judge found Sanborn guilty of all charges. Sentencing was held on July 16. The judge denied the State's motion for imposition of an extended term sentence. Following mergers, the judge sentenced Sanborn to eight years with an eighty-five-percent period of parole ineligibility on count one, a concurrent fourteen-month sentence on count three, and a concurrent 180-day sentence on the disorderly persons offense. He also imposed required fines and penalties. This appeal followed.
Sanborn raises the following issues on appeal through assigned counsel:
POINT I: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF OTHER BAD ACTS OF MR. SANBORN AND IN DOING SO WITHOUT SUBJECTING THE EVIDENCE TO THE COFIELD TEST (NOT RAISED BELOW)
POINT II: THE TRIAL COURT ERRED BY FAILING TO CONDUCT A SANDS HEARING CONCERNING THE ADMISS[I]BILITY OF MR. SANBORN'S PRIOR CONVICTIONS AND FAILED TO ADVISE MR. SANBORN THAT SHOULD HE TESTIFY HIS PRIOR CONVICTIONS WOULD BE ADMISS[I]BLE AGAINST HIM (NOT RAISED BELOW)
POINT III: THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY THAT HE AND HIS K-9 PARTNER WERE DISPATCHED . . . BECAUSE THE POLICE HAD INFORMATION FROM A NON-TESTIFYING WITNESS THAT MR. SANBORN WAS INTOXICATED AND HAD A HISTORY OF DOMESTIC VIOLENCE (NOT RAISED BELOW)
POINT IV: THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE FINDING OF THE TRIAL COURT THAT MR. SANBORN ACTED WITH PURPOSE TO CAUSE SERIOUS BODILY INJURY (NOT RAISED BELOW) POINT V: CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT VI: THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. SANBORN (NOT RAISED BELOW)
POINT VII: MR. SANBORN'S SENTENCE MUST BE MODIFIED TO AWARD HIM THE GAP TIME CREDIT TO WHICH HE IS ENTITLED
He raises the following additional issues in a supplemental pro se brief:
Point 1 - There wasn't sufficient credible evidence on the record to support the courts findings Point 2 - The court failed to use the eviden[t]iary standard of beyond a reasonable doubt Point 3 - The court erred by allowing the trial of a subs[e]quent disorderly persons violation during the primary assault case Point 4 - The court ignored reasonable, supporting evidence that would negate a purposeful mental state Point 5 - The court had erroneously and mistakenly derived conclusions that went heavily in the State's favor Point 6 - While rendering verdict the court failed to make clear and specific findings
Some of the points raised on appeal were not raised before the trial judge. 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) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Sanborn argues that the judge should not have permitted Susan to testify about his subsequent effort to persuade her to lie about the events of August 16, contending that it was inadmissible under N.J.R.E. 404(b) as evidence of other crimes or wrongs. Although there was no objection to the testimony at trial, Sanborn also argues that the judge erred by failing to engage in the analysis for admission of such evidence required by State v. Cofield, 127 N.J. 328 (1992).
Susan testified during her redirect that Sanborn telephoned her from jail on the day after the incident. The following exchange then took place:
Q. Did he say anything to you at that time?
A. He ask[ed] me to lie and tell the police that I had fallen down a flight of steps. He told me that he was facing big jail time and that his life would be over because of this. He told me that it came down to [him] or [me] and it was not going to be him and he told me I made him do this to [me] by threatening him.
Because requesting a witness to give false testimony is a violation of N.J.S.A. 2C:28-5, we agree that N.J.R.E. 404(b) and the Cofield analysis are implicated.
Sanborn's alleged assertion that Susan "made [him] do this" could be interpreted as an admission of guilt by Sanborn, inasmuch as it is a justification rather than a denial of his conduct. The Supreme Court has recognized that "[p]ost-crime consciousness of guilt evidence can illuminate a defendant's state of mind." See State v. Williams, 190 N.J. 114, 128-29 (2007). Here, purpose to cause serious personal injury was an element of aggravated assault. Sanborn sought to portray the injuries caused during the argument, including those caused by the appliances, as accidental rather than the direct result of his actions. In addition, evidence that Sanborn attempted to cover up the attack was also relevant to motive, which in this case was alleged to be Sanborn's desire to avoid going back to jail for an ISP violation. Purpose, absence of accident, and motive are specifically listed in N.J.R.E. 404(b) as bases for the admission of other wrongs evidence.
The Cofield standard requires a careful analysis of four factors:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice. [Cofield, supra, 127 N.J. at 338 (citation omitted).]
There can be no doubt that the first Cofield factor was satisfied because the evidence at issue was relevant to purpose, absence of accident, and motive, which satisfies the first Cofield factor.
The events that gave rise to Sanborn's arrest took place a day before the alleged request that Susan change her story, which satisfied the timeliness aspect of the second Cofield factor. The other aspect of the second prong, similarity between the other crime and the one being tried, need not be met with respect to evidence relevant to issues such as purpose, absence of accident, and motive. See Williams, supra, 190 N.J. at 131. The third Cofield factor, which requires proof by clear and convincing evidence, was also satisfied. The judge credited Susan's testimony rather than Sanborn's to the extent that he found Sanborn guilty of the conduct at issue beyond a reasonable doubt.
The final Cofield factor requires a weighing of the probative value against the prejudice of the evidence. In State v. Covell, 157 N.J. 554, 570 (1999), the Supreme Court reiterated the reduced importance of prejudice in the balancing analysis when motive is at issue in the weighing process:
Some types of evidence require a very strong showing of prejudice to justify exclusion. One example is evidence of motive or intent. The Court in State v. Carter, 91 N.J. 86, 106 (1982) (quoting 1 Wharton, Criminal Evidence, 170 at 316 (13th ed. 1972)), stated that "evidence as to motive of a criminal defendant is admissible even though it may be prejudicial in the sense that it will arouse or inflame the jury against the defendant." See also [State v.] Rogers,  19 N.J. [218,] 228 [(1955)] ("[W]henever the motive or intent of the accused is important and material, a somewhat wider range of evidence is permitted in showing such motive or intent than is allowed in the support of other issues."). For example, evidence of a defendant's former membership in the Black Panther Party and the defendant's express hatred of police was held to be admissible on the issue of motive at his trial on a charge of shooting an officer. State v. Cherry, 289 N.J. Super. 503, 527-28 (App. Div. 1995).
See also State v. Wakefield, 190 N.J. 397, 434-35 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). In this case, there was a bench trial, so there was no need to be concerned that a jury would consider the evidence for improper purposes.
Our review of the record in light of the applicable law convinces us that Susan's testimony was admissible. Even if it was not, it was not capable of producing an unjust result and was harmless.
Sanborn next argues that the judge should have barred testimony about his prior convictions. He also contends that he was prejudiced because the judge did not advise him in advance that those convictions could be used to undermine his credibility, depriving him of a full opportunity to make an informal decision about testifying.
N.J.R.E. 609 provides that, "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." As Sanborn acknowledges, the rule is one of inclusion. See State v. Hamilton, 193 N.J. 255, 257 (2008); State v. Sands, 76 N.J. 127, 144 (1978). The decision to admit such evidence is within the trial court's discretion, and will only be reversed if the trial court abuses its discretion. Sands, supra, 76 N.J. at 144.
The party opposing the introduction of a witness' prior conviction has the burden of proving it should be excluded. Ibid. "The key to exclusion is remoteness." Ibid. To determine whether a conviction is remote, and therefore unduly prejudicial, the trial court must consider the age of the prior conviction, the nature of the offense, and "intervening convictions between the past conviction and the crime for which the defendant is being tried." Id. at 144-45. The nature of the earlier offense is also a "significant factor." Id. at 144. "Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect" than other types of crimes. Ibid.
Although Sanborn did not seek to bar introduction of his previous convictions,*fn1 he now claims that his 2004 convictions for attempted theft by deception and resisting arrest, as well as his 2007 convictions for possession of a controlled dangerous substance, theft, burglary, and fraudulent use of a credit card should not have been introduced at trial. Those crimes are serious, and most of them involve "lack of veracity, dishonesty [and] fraud." Ibid. They were also relatively recent. We see no error in their admission at trial
Sanborn also argues that he was prejudiced by the judge's failure to advise him that those convictions could be used to impeach his testimony. The Supreme Court has held "that when a defendant is represented by counsel, the trial court is not required to inform defendant of his right to testify or explain the consequences of that choice." State v. Savage, 120 N.J. 594, 630 (1990). The Court relied, in part, on our opinion in State v. Bogus, 223 N.J. Super. 409 (App. Div.), certif. denied, 111 N.J. 567 (1988), observing that the Appellate Division held that when a defendant is represented by counsel, the trial court does not have a duty to advise defendant of his or her right not to testify or to explain the consequences that the testimony may produce. Citing authority from other jurisdictions, the [Appellate Division] reasoned that the decision to testify is a strategical choice, and it is therefore the duty of counsel, not the trial court, to advise a defendant on whether to testify. [Savage, supra, 120 N.J. at 629 (internal citations omitted).]
Nevertheless, the trial judge informed Sanborn of his right to remain silent and advised him that, by testifying, he would be subject to cross-examination and would "put [his] credibility in issue." It would have been better practice for the trial judge, having raised the issue, to have included the specific information about impeachment through prior convictions.
However, we reject Sanborn's assertion that the trial judge "effectively prevented [him] from making an 'informed decision' about his Fifth Amendment right to remain silent or testify on his own behalf." We find no error on the part of the trial judge.
Sanborn argues that "the trial court erred by permitting a police witness to testify that he and his K-9 partner were dispatched . . . because the police had information from a non-testifying witness that [Sanborn] was intoxicated and had a history of domestic violence." He did not object to this testimony at trial, so we apply the plain error rule.
When Officer Frank Timek was asked during direct examination why he and his K-9 partner were dispatched to Susan's address, he replied: "I believe it was a wanted male in reference to a domestic, and the male was intoxicated and had a tendency for violence." He also stated, "I don't recall [whether dispatch provided that information]. I just remember that is what I was told." The State correctly concedes the testimony was inadmissible, but argues it was harmless error.
In the context of a criminal case, the type of hearsay at issue here also raises an issue under the Confrontation Clause of the Sixth Amendment. State v. Branch, 182 N.J. 338, 353-54 (2005); State v. Bankston, 63 N.J. 263, 272-73 (1973). In determining whether such testimony was harmless, in the context of a case in which there had been an objection, the Supreme Court held that
[t]he test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. State v. Macon, 57 N.J. 325, 335-336 (1971). Or, as stated in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S. Ct. 229, 230, 11 L. Ed. 2d 171, 173 (1963), "The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction." [Bankston, supra, 63 N.J. at 273.]
There is no "mathematically precise formula for deciding whether a trial error creates a reasonable doubt that would not otherwise have existed concerning defendant's guilt." Branch, supra, 182 N.J. at 353. If an appellate court's review of the record suggests that it was a close case, reversal is appropriate if the evidence at issue "may have tipped the scales" in favor of a conviction. See id. at 353-54.
The trial judge made no reference to Timek's testimony about "a tendency for violence" in his decision. Instead, the judge made his determination based on Susan's account of the altercation, pictures of her apartment afterwards, pictures of her injuries, and his determination that Sanborn was not credible because he provided inconsistent testimony, gave the police a false name, and attempted to avoid arrest.
For these reasons, we hold that, although the portion of Timek's testimony at issue was inadmissible, the error was harmless.
Sanborn argues that there was insufficient evidence to support a finding of guilt on the charge of second-degree aggravated assault for attempting to cause serious bodily injury. N.J.S.A. 2C:12-1(b)(1). Specifically, he argues that there was not sufficient credible evidence to establish the requisite state of mind.
On this appeal, we are reviewing a guilty verdict following a bench trial. The Supreme Court has held that "[a]ppellate courts should defer to trial courts' credibility findings that are often influenced by matters such as observations of the character and demeanor of witnesses and common human experience that are not transmitted by the record." State v. Locurto, 157 N.J. 463, 474 (1999) (citations omitted). "Deference to a trial court's fact-findings is especially appropriate when the evidence is largely testimonial and involves questions of credibility. Thus, an appellate court should not disturb a trial court's fact-findings unless those findings would work an injustice." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (internal citation omitted); see also Lautek Corp. v. Image Bus. Sys. Corp., 276 N.J. Super. 531, 541 (App. Div. 1994) ("[I]n our review of the results of a bench trial the factual findings of the trial judge, his assessments of credibility, and the discretionary decisions he may have made are entitled to great deference." (citing Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 484 (1974))). However, "[w]hether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.) (citations omitted), certif. denied, 182 N.J. 148 (2004).
In order to find a defendant guilty of attempt under N.J.S.A. 2C:12-1(b)(1), the defendant must have "[p]urposely engage[d] in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be." N.J.S.A. 2C:5-1(a)(1). "Purposely" is defined as a defendant's "conscious object to engage in conduct of that nature or to cause such a result." N.J.S.A. 2C:2-2. In other words, the State was obligated to prove that Sanborn acted with the purpose to cause serious bodily injury, even if he did not succeed in doing so.
In finding Sanborn guilty of this offense, the trial judge explained his findings with respect to the issue of purposeful conduct as follows:
I find, first of all, that he did not act negligently, nor do I find that he acted recklessly. I find that he acted purposely. It was his purpose to hurt her and to hurt her badly. So much so that I find it's been proven beyond a reasonable doubt that it was his purpose and he attempted to cause serious bodily injury to [Susan]. I find him guilty of the second-degree . . . crime.
I do that fully recognizing that serious bodily injury is a high standard to meet, a very high standard to meet. But the legislature had included in that statute the option of finding that it was either caused or attempted to be caused. And I find clearly if somebody . . . slugs a five-foot-two-inch, 135-pound woman in the eye and side of the head and back of the head several times, and then attempts to smash down a microwave on her head, and then hits her with a toaster oven in the head, that is clearly, clearly beyond a reasonable doubt an attempt, a purposeful attempt with substantial steps taken, to cause serious bodily injury. Because you are assaulting the most vulnerable area. Nobody even mentioned the proximity of the temple and that area to where most of these injuries occur[red].
I think we all know and recognize that the vulnerability of the temple area . . . the side of the head, the side of the face is extremely vulnerable.
And not only that, but I think it also could be argued here that she had protracted loss or function of that right eye. But, again, protracted is too dangerous for me to deal with because it's never really been defined in any of our cases that I've seen. . . . And I'm not willing to base my decision on that. But I am more than willing to base my decision on an attempt to cause serious bodily injury, which clearly was done here.
You can't tell me that you hit somebody that many times in the most vulnerable areas of their body and are not trying to cause serious bodily injury. Even significant bodily injury: "bodily injury, which creates a temporary loss of function of any bodily member or organ or temporary loss of any one of the five senses." . . . You're trying to do more than that when you hit somebody that many times on the side of the head and the forehead.
And absolutely I don't buy this version of the . . . coffee carafe going into the air and projectiling and accidentally causing all these injuries that I see here and leaving the rest of the kitchen intact, particularly the cart.
Although Sanborn contends that he was groggy and had been using drugs, the judge found that Sanborn's mental state was not affected by being suddenly woken up by Susan or from any alleged drug use. The judge explained:
[W]ell, if someone is that foggy and groggy, how does one recall in vivid detail everything one does immediately after being awakened from that stupor or torpor. And I do question that somewhat . . . 'cause you can't have it both ways. If you're that fogged out, grogged out, medicated out, stuped out, how do you then, after going back for a nap, remember vividly what argument ensued, what was said by each party and what began the argument?
Sanborn also argues that the extent of Susan's injuries were not consistent with her account of being punched multiple times in the face, and hit multiple times in the face and head with metal objects. The trial judge found otherwise, based on his view of Susan's credibility and his review of the photographic evidence and medical testimony, including evidence of injuries resulting from Susan's efforts at self-defense.
The trial judge also noted that Susan's testimony about Sanborn's statements during the attack, to the effect that he would "make [her] head explode like [a fuckin'] grape," were consistent with a purpose to cause serious injury. Although Sanborn denied making those statements, the judge found Susan to be the credible witness rather than Sanborn.
We also reject Sanborn's assertion that the judge should have found that Susan provoked the attack. There was no persuasive evidence in the record of such provocation, nor is that a defense to aggravated assault. There is no support in the record for self-defense, which requires that "the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person." N.J.S.A. 2C:3-4(a). State v. Erazo, 126 N.J. 112 (1991), upon which Sanborn relies, concerns passion/provocation manslaughter as a lesser-included offense of murder. In such a murder case, provocation warrants consideration by the jury of the lesser offense. Because that principle is not present in this case, Erazo is inapposite.
Our review of the record convinces us that the judge's findings of fact were fully supported by the record and his credibility findings. His application of those facts to the applicable law warrants an affirmance of the conviction on count one.
Sanborn challenges the sentence, arguing that it was excessive and that the judge did not appropriately apply the mitigating and aggravating factors.
"[Our] review of sentencing decisions is relatively narrow and is generally governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).
The trial court judge found aggravating factors three, six, and nine, and mitigating factor eleven. N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) (defendant's "prior criminal record" and "seriousness of the offenses of which he has been convicted"); N.J.S.A. 2C:44-1(a)(9) ("need for deterring the defendant and others"); N.J.S.A. 2C:44-1(b)(11) ("imprisonment of the defendant would entail excessive hardship to himself or his dependents"). Sanborn argues that the judge should also have found mitigating factors six and eight. N.J.S.A. 2C:44-1(b)(6) ("The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained . . . ."); N.J.S.A. 2C:44-1(b)(8) ("The defendant's conduct was the result of circumstances unlikely to recur."). Our review of the record convinces us that the judge carefully considered the various sentencing options. He denied the State's motion for an extended term. He also found one mitigating, factor but afforded it little weight. Although some restitution over time to cover medical bills was ordered as part of the sentence, we do not find error in the judge's failure to find it as an applicable mitigating factor. In any event, its inclusion would not have resulted in a different sentence. We are satisfied that mitigating factor eight was not applicable. Although the precise facts of this case may be unlikely to recur in the future, these offenses, in light of Sanborn's prior record, cannot be said to have been a one-time aberration brought about by highly unusual circumstances.
Consequently, we find no basis to interfere with the trial judge's exercise of his sentencing discretion.
Sanborn argues that he is entitled to eighteen days of gap time credit between his June 28, 2010*fn2 "sentence" for violating ISP and his July 16 sentence for the current offenses. We disagree.
The statute at issue provides, in relevant part,
When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:
Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served. When a new sentence is imposed on a prisoner who is on parole, the balance of the parole term on the former sentence shall not be deemed to run during the period of the new imprisonment unless the court determines otherwise at the time of sentencing. [N.J.S.A. 2C:44-5(b)(2), (3).]
We hold the original date of Sanborn's early sentence, December 2007, is the applicable sentencing date, not the date his ISP was terminated. The termination of ISP was merely a reinstatement of Sanborn's December 2007 sentence. For that reason the gap-time statute is inapplicable.
We also note that, in another context, the Legislature has determined that ISP is equivalent to parole. In State v. Clay, 230 N.J. Super. 509, 522-24 (1989), aff'd o.b., 118 N.J. 251 (1990), we held that an individual subject to ISP could not be convicted of escape, N.J.S.A. 2C:29-5, for leaving New Jersey without permission in violation of the terms of ISP. In response to Clay, the Legislature amended N.J.S.A. 2C:29-5 to make the act of "absconding from parole" a third-degree crime. State v. Kyc, 261 N.J. Super. 104, 108-09 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993); L. 1991, c. 34, § 1; N.J.S.A. 2C:29-5(b). The amendment also declared that "'parole' includes participation in ISP." Kyc, supra, 261 N.J. Super. at 108; L. 1991, c. 34, § 1; N.J.S.A. 2C:29-5(b).
Because ISP is analogous to parole, gap-time credit is not available to a defendant in Sanborn's position who has violated ISP. See State v. Hunt, 272 N.J. Super. 182, 185 (App. Div.), certif. denied, 137 N.J. 307 (1994); see also State v. Franklin, 175 N.J. 456, 471 (2003) (defendant "was not entitled to . . . any gap-time for" the offense that led to revocation of parole). In Hunt, supra, 272 N.J. Super. at 185, we stated:
We find nothing in N.J.S.A. 2C:44-5b which would lend support to a legislative intent to grant gap-time credit to a defendant, who, while on parole, commits a violation which results in his incarceration prior to his sentencing for the new offense.
The usual prosecutional decision making process is not involved in parole violation matters, and revocation of parole does not involve a new sentencing. The revocation of defendant's earlier parole status does not constitute a new sentencing event within the contemplation of N.J.S.A. 2C:44-5b(2).
Consequently, we hold that Sanborn is not entitled to gap-time credit.
Having reviewed the remaining issues raised on appeal in light of the applicable law and the record before us, we find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Although reversal may be warranted when a defendant is denied a fair trial due to the cumulative effect of errors that by themselves are harmless, State v. Orecchio, 16 N.J. 125 (1954), the case before us does not warrant such a reversal. Sanborn was not denied a fair trial.
The trial of the indictment and the disorderly persons offense at the same time was not error. The determination of whether charges should be tried separately hinges on whether, if separate trials are held, the evidence at issue would be admissible in one or both trials under N.J.R.E. 404(b). State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (citations omitted). The evidence that Sanborn gave a false name and attempted to avoid arrest was relevant to the issue of motive in connection with the offenses charged in the indictment, in that it supports the argument that Sanborn was attempting to avoid arrest and reincarceration for violating ISP.
Finally, we are satisfied that the trial judge's oral decision complied with his obligation to make findings of fact and conclusion of law. R. 1:7-4(a). It is clear from his opinion that he applied the appropriate standard of proof in a criminal case, that is, proof beyond a reasonable doubt. We are further satisfied, as we have explained at length with respect to count one, that the convictions at issue were supported by facts found in the record applying the requisite standard of proof.