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State of New Jersey v. Seth Gordon Cooper

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 22, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SETH GORDON COOPER, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 07-11-0768.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 23, 2012 -

Before Judges Ashrafi and Fasciale.

At the age of eighteen, defendant Seth Cooper killed another young man by bringing a gun to a planned fistfight and then firing it. At his trial, the jury found him not guilty of homicide and aggravated assault charges, apparently accepting his defense that he fired the fatal shot in self-defense. He now appeals from his conviction by the same jury on weapons and other related charges. He also challenges as excessive his aggregate sentence of fourteen years imprisonment with five-anda-half years of parole ineligibility. We affirm defendant's conviction and sentence, except that we remand for correction of a relatively minor aspect of the sentence.

I.

A.

In July 2006, defendant Cooper and his girlfriend broke up, and she began dating Ernest Dominguez. According to defendant, he still saw his ex-girlfriend regularly. As a result, defendant and Dominguez grew increasingly hostile to each other. On December 10, 2006, the two agreed to meet in a cemetery in Middle Township for a one-on-one fistfight. That evening, however, each brought confederates and a weapon to the fight.

Dominguez arrived with two friends, John Cavicchio and Charles Griggs. He also put a large knife in his back pocket and gave Griggs a tire iron in case they "got jumped." Defendant went to the fight with his older brother, Riley Cooper, and a friend, Raymond Fryar. The previous week, defendant had purchased a .32 caliber revolver, which he had placed under the seat in the car he drove to the cemetery. Defendant and his confederates arrived first, and he put the loaded gun in his waistband as he got out of the car to wait for Dominguez.

When the others arrived, defendant and Dominguez confronted each other, exchanging insults and threats. Dominguez took the knife from his pocket and threatened to cut or stab defendant. In response, defendant pulled the revolver from his waistband, and he fired one or two shots. The evidence was in dispute as to whether the gun was pointed upwards to fire a "warning shot" or toward Dominguez. After defendant fired the gun, Dominguez and his friends ran toward their vehicle.

Defendant chased Dominguez with the revolver in hand, yelling insults. Griggs and Cavicchio reached their vehicle and began to drive it toward Dominguez and defendant. According to testimony at trial, which was corroborated by police investigation after the incident, the vehicle came "racing" down the road and veered onto the shoulder toward defendant. Defendant fired his gun at the vehicle, and it came to a stop nearby. The driver, Cavicchio, was shot in the right side of his head.

Defendant ran back to his car. He told Fryar: "they tried to run me over, so I shot at the car." Defendant and his confederates fled the scene. A short time later, Riley Cooper hid the revolver in the woods at defendant's request. That night defendant and Fryar stayed in a motel room in Atlantic City, and the next day, they took a train to Philadelphia. The following day, they learned that Cavicchio had died, and defendant fled to South Carolina.

Three days after the shooting, police found a .32 caliber revolver hidden in the woods, and they later matched the revolver to the bullet removed from Cavicchio's head. The police tracked defendant to South Carolina and arrested him there less than two weeks after the shooting.

B.

In November 2007, a Cape May County grand jury returned a nine-count indictment against defendant and three of the other men involved in the incident. Defendant was charged in five of the counts: (count one) murder, first-degree, N.J.S.A. 2C:11-3a(1), -3a(2); (count two) attempted murder, first-degree, N.J.S.A. 2C:5-1, 11-3a; (count three) possession of a .32 caliber revolver with a purpose to use it unlawfully against the person of another, second-degree, N.J.S.A. 2C:39-4a; (count four) unlawful possession of the .32 caliber revolver without a permit, third-degree, N.J.S.A. 2C:39-5b; and (count seven) hindering prosecution by concealing and tampering with evidence, third-degree, N.J.S.A. 2C:29-3b(1).

Defendant's trial before a jury lasted eleven days. The jury acquitted defendant of the murder and attempted murder charges in counts one and two. It also acquitted him of lesser-included offenses of aggravated manslaughter, passion-provocation manslaughter, and aggravated assault under counts one and two. The jury could not reach a verdict on a lesser-included offense of reckless manslaughter, N.J.S.A. 2C:11-4b, under count one. The jury found defendant guilty of the lesser-included disorderly persons offense of simple assault under count two, N.J.S.A. 2C:12-1a(3), apparently for threatening the others with the gun. It also found him guilty of the second-and third-degree weapons charges of counts three and four of the indictment and the third-degree hindering charge of count seven. After the trial, the State voluntary dismissed without prejudice the lesser-included offense of reckless manslaughter.

The trial court held a sentencing hearing on August 4, 2009. Placing detailed reasons on the record, the judge sentenced defendant as follows: seven years in prison on count three, the second-degree charge of possession of the revolver for an unlawful purpose, with three-and-a-half years of that sentence to be served before eligibility for parole; a consecutive term of four years in prison on count four for third-degree unlawful possession of the handgun without a permit, with two years of parole ineligibility on that count; a consecutive three-year term of imprisonment on count seven for third-degree hindering prosecution; and a concurrent term of ninety days incarceration on the lesser-included disorderly persons charge of simple assault under count two. Defendant's aggregate term of imprisonment was fourteen years, with five-and-a-half years before eligibility for parole.

On appeal, defendant raises the following arguments:

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (PARTIALLY RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL FOLLOWING TESTIMONY GRATUITOUSLY VOLUNTEERED BY A CRUCIAL STATE'S WITNESS ATTRIBUTING PRIOR ASSAULTIVE CONDUCT TO THE DEFENDANT DESPITE THE TRIAL COURT'S EXPRESS ADMONITION TO HIM PRIOR THERETO NOT TO TESTIFY TO SUCH INFORMATION.

POINT III

THE TRIAL COURT ERRED BY FAILING TO MERGE THE DISORDERLY PERSONS OFFENSE OF SIMPLE ASSAULT ARISING OUT OF COUNT II INTO COUNT III CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.

POINT IV

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

A. THE TRIAL COURT ERRED IN ITS ASSESSMENT OF THE RELEVANT AGGRAVATING AND MITIGATING FACTORS.

B. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING THE MAXIMUM POSSIBLE PAROLE DISQUALIFIERS IN CONJUNCTION WITH THE BASE TERMS IMPOSED ON COUNTS III AND V.

In a pro se supplemental brief, defendant raises the following additional argument:

THE TRIAL COURT ERRED WHILE RESPONDING TO MULTIPLE JURY NOTES REQUESTING CLARIFICATION ON SELF-DEFENSE.

We reject defendant's arguments with respect to trial errors and the jury's guilty verdicts. The State concedes Point III of defendant's arguments, that the simple assault charge should have merged for purposes of sentencing with the charge for possession of the gun for an unlawful purpose. Except as to correction of that aspect of defendant's sentence, we also reject defendant's arguments that his sentence was excessive.

II.

We will address defendant's several arguments according to the chronology of events in the trial court.

A.

Defendant contends the trial court erred in denying his motion for a mistrial after prosecution witness Dominguez disregarded the court's ruling and instruction and referred to alleged violence by defendant against the ex-girlfriend.

At a pretrial hearing, the trial court had ruled under N.J.R.E. 404(b) that the State was prohibited from eliciting testimony from Dominguez or other witnesses that defendant had physically abused the ex-girlfriend. Immediately before Dominguez testified before the jury, the prosecutor reminded the judge of that ruling and stated that he had instructed Dominguez not to testify about physical abuse of the girlfriend. The prosecutor requested that the court also instruct Dominguez about the limitation of his testimony on that subject to avoid a potentially prejudicial answer in his testimony.

Outside the presence of the jury, the court spoke to Dominguez on the record and told him the court had ordered "that the prosecutor specifically not question you about any occasions of which you have a belief or an opinion that the defendant was abusive or physically violent or mistreated" the girlfriend. Dominguez said he understood.

During his direct testimony before the jury, however, Dominguez failed to follow the court's and the prosecutor's instructions. After the prosecutor asked about Dominguez's activities on the afternoon of the shooting, the questioning turned to the telephone calls during which the fistfight was arranged. Dominguez testified as follows:

Q. The first phone contact you had with Mr. Cooper that day, was that a call that you made to him or that he made to you?

A. It's one that I made.

Q. And that was while you were at the parking lot of the North Wildwood Wawa?

A. Yes.

Q. What was your purpose in calling Seth at that time?

A. Because I wanted to ask him why he hit my girlfriend, when I was going out with her.

Defense counsel immediately requested a sidebar. The court excused the jury for the day and then heard argument by the attorneys as to the course it should follow in addressing the inadmissible testimony. Defense counsel accused Dominguez of intentionally injecting domestic violence into his testimony and requested an opportunity overnight to decide whether defendant would move for a mistrial.

The next morning, defense counsel moved for a mistrial, arguing that the prior witness, Roxanne LaPlant, had also made a passing reference to a restraining order, thus prejudicing defendant's right to a fair trial. After discussion of the court's options and the contents of a potential curative instruction, the court denied defendant's motion for a mistrial and, instead, instructed the jury as follows:

Yesterday, there was testimony by Roxanne LaPlant and there was brief, by my recollection, unexplained reference by Ms. LaPlant to a restraining order. I direct, first, that you disregard that reference by Ms. LaPlant to a restraining order. Second, I indicate to you that up to this point there is nothing in this record that supports the finding, that claim of a restraining order, nor will there be. So, any reference by Ms. LaPlant to any order at all is to be disregarded by you as irrelevant to this matter.

Second, Mr. Dominguez testified yesterday and will be recalled to the stand by the State. You may or may not recall Mr. Dominguez's last answer to the Prosecutor's last question yesterday, before we recessed for the day. But that answer relates to the perception of Dominguez about prior conduct by the Defendant toward [the girlfriend].

First, you are to disregard that comment.

There is nothing in this record, nor will there be, that supports any such finding or claim by Mr. Dominguez. Second, any opinion by Dominguez, or anyone else, regarding prior conduct that he or she might attribute to the Defendant at any point in time other than which is recited in the indictment is irrelevant and is to be disregarded entirely by you, the jury. And there will be no evidence in this case about any such attributed prior conduct.

On appeal, defendant argues that the court's curative instruction was insufficient to erase the prejudice to defendant when the jury heard Dominguez testify that defendant had "hit" the girlfriend, especially because the prior witness had referred to a restraining order.

"'[N]ot every admission of inadmissible . . . evidence can be considered to be reversible error.'" State v. Winter, 96 N.J. 640, 646 (1984) (quoting Bruton v. United States, 391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476, 484 (1968)). When inadmissible testimony is given, the trial court is in the best position to assess whether a curative instruction will remove any prejudice or whether a mistrial is necessary. State v. Loftin, 146 N.J. 295, 365-66 (1996). We will not interfere with the trial court's decision to give a curative instruction instead of granting a mistrial unless the error "is of a nature as to have been clearly capable of producing an unjust result." Winter, supra, 96 N.J. at 648. We will defer to "the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Id. at 647.

Here, the curative instruction was thorough, clear, and prompt. See State v. Papasavvas, 163 N.J. 565, 614 (effectiveness of immediate curative instruction), corrected by 164 N.J. 553 (2000). "We must assume that the jury faithfully followed [the] instruction." State v. Mays, 321 N.J. Super. 619, 633 (App. Div.) (citing State v. Burris, 145 N.J. 509, 531 (1996)), certif. denied, 162 N.J. 132 (1999). As the State notes, defendant was acquitted of the most serious charges, suggesting that the jury accepted his claims of self-defense despite the improper reference to his alleged violence against the girlfriend.

Moreover, with the focus of the defense at trial on the homicide charges, there was little in dispute concerning the evidence that supported the jury's guilty verdicts on the firearms and hindering charges. Defendant did not dispute that the gun was his, that he did not have a permit to carry the gun, that he armed himself with the gun before the fight, that he fired shots at the cemetery, or that he asked his brother to hide the gun after the incident. Dominguez's violation of the court's evidentiary ruling could not have prejudiced defendant on the charges proven by those admitted facts.

Because Dominguez's single inadmissible answer was not "clearly capable of producing an unjust result," Winter, supra, 96 N.J. at 648, as to the verdicts of guilty returned by the jury, its injection into the trial was harmless error.

B.

Defendant contends he was denied a fair trial because of improper summation arguments by the prosecutor.

"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), and "are afforded considerable leeway in making . . . summations," State v. DiFrisco, 137 N.J. 434, 474 (1994). At the same time, "[a] prosecutor's remarks and actions must at all times be consistent with his or her duty to ensure that justice is achieved." State v. Williams, 113 N.J. 393, 447-48 (1988). "The prosecutor is granted wide latitude to make 'fair comment' on the evidence so long as he or she stays within legitimate inferences that can be deduced from the evidence." State v. McGuire, 419 N.J. Super. 88, 142 (App. Div.) (citing State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593 (1969)), certif. denied, 208 N.J. 335 (2011). "Prosecutorial misconduct is not ground for reversal of a criminal conviction unless the conduct was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987).

In reviewing a prosecutor's allegedly prejudicial remarks, we must consider whether defense counsel made a timely objection. State v. Smith, 167 N.J. 158, 181-82 (2001). If not, the prosecutor's statements usually will not be deemed prejudicial. Ramseur, supra, 106 N.J. at 323. In the absence of a contemporaneous objection, defendant must demonstrate "'a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached.'" State v. Feal, 194 N.J. 293, 312 (2008) (quoting State v. Daniels, 182 N.J. 80, 102 (2004)). Defendant alleges improper comment in four specific areas of the prosecutor's summation. At the trial, defense counsel only raised an objection with respect to one of the four.

Early in his closing argument, the prosecutor discussed the weapons charges and remarked: "We, as a society, have determined you can't go running around with firearms to protect yourself. The chaos that that engenders and the death and destruction it visits upon those involved and the others around them is something we sadly witness every evening when we turn on the news." Defense counsel objected, but the court overruled the objection, stating that the remarks were within the proper bounds of closing argument. The prosecutor then added: "Sadly, we see the consequences of people with guns in their possession determining that they're going to rule the roost in the way they deem appropriate out on the streets and handle the problems on their own."

Although these remarks entered into subjects beyond guilt or innocence in this case, and they had the potential to turn the jury's attention away from the evidence to the dangers of gun violence generally, the argument was not "so egregious that it deprived defendant of a fair trial." Ramseur, supra, 106 N.J. at 322. As previously stated, the evidence against defendant on the weapons charges was not seriously disputed. No witness or other evidence refuted defendant's possession of the .32 caliber revolver and his use of it at the fight in the cemetery. The defense focused on justification for defendant's shooting at the vehicle that was "racing" toward him and the resultant death of its driver, Cavicchio. Under these circumstances, the prosecutor's remarks about society's need for criminal laws prohibiting unlawful possession of firearms did not have the capacity to prejudice defendant with respect to the counts of conviction.

Because defense counsel at trial did not raise contemporaneous objections to other parts of the prosecutor's summation, the plain error standard of review applies to defendant's additional contentions. R. 2:10-2; Papasavvas, supra, 163 N.J. at 626. Defendant argues that some of the prosecutor's comments went beyond the evidence admitted at trial, were designed to appeal to the jury's emotions, and revealed the prosecutor's personal belief as to the credibility of a witness. We have reviewed the record and find insufficient merit in these arguments to warrant full discussion in a written opinion. R. 2:11-3(e)(2).

We comment only that trial counsel are permitted to argue to the jury that a witness is credible or not credible based on the evidence presented. The prosecutor in this case did not indicate his personal opinion of the credibility of Charles Griggs as a defense witness but argued to the jury that he had not called him in the State's case because Griggs had admitted a number of lies and been convicted of making false statements to the police. See State v. Abdullah, 372 N.J. Super. 252, 268 (App. Div. 2004) (distinguishing between improper comment by prosecutor on personal opinion of credibility or guilt of defendant from proper comment on credibility of a witness, especially in case of conflicting testimony), rev'd in part on other grounds, 184 N.J. 497 (2005). This argument was not significantly different from defense counsel's arguments in summation concerning the lack of credibility of some witnesses called by the prosecution.

In sum, we reject defendant's arguments that prosecutorial misconduct in closing argument prejudiced the jury and entitles him to a new trial.

C.

In his pro se supplemental brief, defendant argues the trial court provided inadequate and prejudicial responses to the jury's questions during deliberations requesting re-instruction on self-defense. Defendant argues that the court should have also re-instructed the jury on self-protection as a defense to the charge of possession of the gun for an unlawful purpose. The State's brief on appeal does not address this argument.

Defendant relies on State v. Williams, 168 N.J. 323 (2001), to argue that the sentencing judge was obligated to ensure the jury clearly understood the difference between self-defense and self-protection and the burdens of proof associated with those defenses. In Williams, an off-duty police officer was convicted of aggravated assault and possession of a weapon for an unlawful purpose after he fired his gun at an oncoming vehicle. Id. at 329, 332. At trial, the defendant alleged he was protecting his wife, and he raised the affirmative justification of self-defense, N.J.S.A. 2C:3-4. He also raised a defense of "protective purposes" to negate the intent element of the possession charge. Williams, supra, 168 N.J. at 332, 335.

When charging the jury, the trial court provided the standard self-defense instruction, which repeatedly emphasized the requirement that the defendant establish a "reasonable belief" that he had to shoot the weapon in defense of his wife. Id. at 337. The trial court also gave a protective purpose instruction, but it did not state expressly that "an honest but unreasonable belief" that defendant was acting in self-defense may be sufficient to negate the "unlawful purpose" element of the possessory offense. Id. at 336-38. The Supreme Court reversed defendant's conviction on the charge of possession of the weapon for an unlawful purpose. Id. at 339. The Court held it was plain error for the trial court not to distinguish clearly between the requirements of self-defense as a statutory affirmative defense and a defense of protective purpose as negating the intent element of the charge of possession of a weapon for an unlawful purpose. Id. at 338.

Here, defendant concedes that the court's original instructions on self-defense and protective purpose correctly distinguished between the two defenses. With respect to count three, the trial court instructed the jury:

If you find that the Defendant had a lawful purpose, for example, to use the firearm to protect himself or another against the use of unlawful force, or if you have a reasonable doubt as to the Defendant's purpose, then the State has failed to carry its burden of proof on this element beyond a reasonable doubt. I instruct you that for purposes of this offense, if the Defendant honestly believed that he needed to use a firearm to protect himself, the law does not require that this belief be reasonable. In other words, if the Defendant had an honest, though unreasonable, belief that he needed to use the weapon to protect himself, this negates the purposeful mental state required for this offense.

Earlier in the charge I instructed you on the concept of self-defense as it applies to the charged offenses of murder and attempted murder. The concept of self-defense as it applies to those offenses is different than that of protective purpose that applies to this count of the indictment. When applied to those offenses, self-defense requires a Defendant to have an honest and a reasonable belief in the need to use force.

These instructions conform to the holding of Williams.

On the first day of deliberations, the jury requested a written copy of the court's instructions on self-defense. Without objection by counsel, the court re-read its charge on self-defense as applicable to counts one and two.*fn1 Two more times during deliberations, the jury asked specifically to re-hear the instruction on self-defense. The jury never requested to hear instructions on protective purpose or as to the weapons charges, and defense counsel never requested that the instruction quoted above be included in the court's re-reading of the self-defense charge. We conclude there was no plain error in the trial court's answering the jury's specific request as posed for re-instruction on self-defense without also including a re-reading of the charge it had given earlier as to protective purpose for possession of the firearm.

D.

Defendant contends his sentence is excessive because: (i) the sentencing judge erred in his assessment of aggravating and mitigating factors; (ii) the judge abused his discretion in imposing the maximum parole ineligibility terms; (iii) he abused his discretion in imposing consecutive sentences; and (iv) the charge of simple assault should have merged with count three, which charged possession of a firearm for an unlawful purpose.

"[T]rial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). Our review of a sentencing decision can involve three types of issues: (1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-66 (1984); accord State v. Carey, 168 N.J. 413, 430 (2001); State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). We do not substitute our judgment regarding an appropriate sentence for that of the trial court. State v. Natale, 184 N.J. 458, 488-89 (2005); Roth, supra, 95 N.J. at 365.

i.

On the second-degree charge of possession of a firearm for an unlawful purpose, the court found applicable aggravating factor one, the commission of the crime "in an especially heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1a(1); two, the "gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance," N.J.S.A. 2C:44-1a(2); three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); and nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). The court found that the last three of these aggravating factors, but not the first two, also applied to the other charges presented for sentencing.

Defendant challenges the court's application of aggravating factors one and two to the sentence on count three, arguing that those factors did not apply to his mere possession of the weapon for an unlawful purpose. The sentencing court explained its finding of those aggravating factors in the circumstances of this case. It stated that the crime was committed and complete as soon as defendant pulled from his waistband the loaded .32 caliber revolver and threatened Dominguez. His firing of a "warning shot" and his chasing of Dominguez and his friends as they fled was added cruelty and heinous conduct and also enhanced the gravity of the harm inflicted upon the fleeing victim, who was vulnerable because he was not armed with a gun. See State v. Kelly, 266 N.J. Super. 392, 394-95 (App. Div. 1993) (gratuitous terrorizing of victims of a home invasion robbery by shattering a door with a baseball bat). The continuation of the offense was the basis for the court's finding of aggravating factors one and two. The court's explanation of the evidence upon which it relied was sufficient to demonstrate that its findings were "'based upon competent credible evidence in the record.'" Dalziel, supra, 182 N.J. at 501 (quoting Roth, supra, 95 N.J. at 364); see State v. Bieniek, 200 N.J. 601, 608 (2010).

As to the other aggravating factors, the court reviewed defendant's presentence investigation report and stated that, although at the age of eighteen defendant did not have adult criminal convictions, he had accumulated thirteen charges as a juvenile, beginning at the age of eight, and six of those had resulted in adjudications of delinquency. The charges included drug and weapons offenses, assault, and theft. There can be no doubt that defendant was at risk of committing future criminal offenses and that deterrence was an important factor in imposing sentence.*fn2

The sentencing court also found two mitigating factors applicable to defendant's sentence on count three, although not on the other counts of conviction. The court found mitigating factor three, "[t]he defendant acted under a strong provocation," N.J.S.A. 2C:44-1b(3), and mitigating factor five, "[t]he victim of the defendant's conduct induced or facilitated its commission," N.J.S.A. 2C:44-1b(5). The court considered and expressly declined to find numerous other mitigating factors urged by defense counsel.

In accordance with Rule 2:11-3(e)(2), we find insufficient merit to warrant discussion in a written opinion of defendant's argument on appeal that the court erred in failing also to find mitigating factors eight, "[t]he defendant's conduct was the result of circumstances unlikely to recur," N.J.S.A. 2C:44-1b(8); and nine, "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense," N.J.S.A. 2C:44-1b(9).

Furthermore, while we acknowledge that a sentencing court can take into account a defendant's youth, State v. Pindale, 249 N.J. Super. 266, 288 (App. Div. 1991); State v. Tanksley, 245 N.J. Super. 390, 396-97 (App. Div. 1991), there is no merit in defendant's argument that the court erred in failing to find his age to be a mitigating factor, see Bieniek, supra, 200 N.J. at 610 n.1. The simple response to defendant's arguments as to these several mitigating factors is that he had lived most of his youthful life engaging in conduct that would have constituted crimes if committed by an adult.

ii.

Defendant contends the sentencing court abused its discretion when it imposed the maximum permitted terms of parole ineligibility for his convictions on counts three and four, the two weapons charges.

N.J.S.A. 2C:43-6b authorizes a sentencing judge to set a term of parole ineligibility when it "is clearly convinced that the aggravating factors substantially outweigh the mitigating factors . . . ." The parole term cannot exceed one-half the period of incarceration. Ibid. In exercising this discretionary authority, the Supreme Court has instructed sentencing judges to: balance[] the same aggravating and mitigating factors used to determine the appropriate sentence. The standard for balancing the factors, however, is different. In determining the appropriate sentence, the court must decide whether there is a preponderance of aggravating or mitigating factors. When determining parole ineligibility, by contrast, the court must be clearly convinced that the aggravating factors substantially outweigh the mitigating factors. . . .

. . . . [Further], the court shall state on the record the reasons for imposing the sentence, including consideration of the defendant's eligibility for release under the law governing parole and the factual basis supporting its findings of particular aggravating or mitigating factors affecting [the] sentence. In addition, the court must describe the balancing process leading to the sentence.

[State v. Kruse, 105 N.J. 354, 359-60 (1987) (quotation marks and citations omitted).]

Here, the sentencing court adhered to these substantive and procedural requirements in imposing terms of parole ineligibility. In addition to stating its reasons for finding aggravating factors and declining to find mitigating factors, the court assigned "substantial weight" to the aggravating factors it found and "only slight weight" to the two mitigating factors it found as to count three. The court was "clearly convinced that the aggravating factors substantially outweigh the mitigating factors." We find no abuse of discretion in the court's imposition of parole ineligibility terms of half of each sentence on counts three and four.

iii.

Next, defendant contends the court abused its discretion in imposing consecutive sentences.

A sentencing judge is authorized by statute to impose multiple sentences concurrently or consecutively. N.J.S.A. 2C:44-5a. To ensure uniformity in sentencing, the Supreme Court in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), established guidelines for determining when consecutive sentencing should be imposed.*fn3 The Legislature abrogated the sixth guideline, N.J.S.A. 2C:44-5a, and the Court subsequently refined the others, Carey, supra, 168 N.J. at 423. The third guideline requires a qualitative analysis of the facts surrounding the crimes, "concentrat[ing] on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Baylass, 114 N.J. 169, 180 (1989).

Here, the sentencing court justified its imposition of consecutive sentences. With respect to count three, the court stated that defendant had the opportunity to retreat safely before the shooting of Cavicchio but he continued committing the crime of possession of the gun for an unlawful purpose even after Dominguez ran away from him. With respect to count four, the crime of possessing the gun without a permit began and was complete days before the offense charged in count three. With respect to count seven, the concealing of the gun to hinder apprehension and prosecution was "a wholly separate offense" which occurred independently of the other offenses.

While a close question because of the related nature of the three offenses, the sentencing court explained its application of the Yarbough guidelines to the circumstances presented. We defer to its first-hand knowledge of defendant and its familiarity with the case. We find no abuse of discretion in imposition of the consecutive sentences.

iv.

Finally, the State concedes that defendant's conviction for simple assault in wielding the gun should have merged for purposes of sentencing with the conviction for possession of the gun for an unlawful purpose. We remand to the trial court to amend the judgment of conviction indicating merger of those two charges and omitting the concurrent sentence of ninety days incarceration and the money penalties imposed on the charge of simple assault.

III.

Defendant's conviction is affirmed. Remanded for correction of the sentence and issuance of an amended judgment of conviction.


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