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State of New Jersey v. Vernon K. Johnson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 18, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
VERNON K. JOHNSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-01-0136.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 25, 2012

Before Judges Sapp-Peterson and Ostrer.

Defendant Vernon Johnson was convicted of third-degree shoplifting, N.J.S.A. 2C:20-11b(1) (Count One); first-degree robbery, N.J.S.A. 2C:15-1 (Count Two); and third-degree attempted shoplifting, N.J.S.A. 2C:20-11b(1) and N.J.S.A. 2C:5-1 (Count Three). He was sentenced to an aggregate term of nineteen years imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 43-7.2. On appeal, defendant challenges various aspects of his trial, asserting unduly suggestive in-court identification and prosecutorial misconduct during summation. Defendant also contests the propriety of his third-degree shoplifting conviction and challenges his sentence for first-degree robbery as excessive. We affirm the robbery and attempted shoplifting convictions, but reverse the third-degree shoplifting conviction, and remand for entry of judgment of fourth-degree shoplifting and resentencing on all counts.

The evidence presented at trial disclosed that on September 15, 2007, defendant approached the customer service desk at National Wholesale Liquidators (Liquidators) in Lodi with a flat screen television and attempted to return it without a receipt. The assistant manager, Diljit Kaur, who was working that morning, informed defendant the store would not issue a refund without a receipt. Defendant claimed to have left the receipt in his car and promised to return with it. Defendant then left the store with the television and did not return. The television was priced at $499 "plus tax." Defendant testified he had purchased the television with cash the previous day, but had lost the receipt sometime after exiting the store. However, upon discovering the television was missing a feature important to him, he sought to return it.

The following day, at approximately 9:00 a.m., defendant robbed a gas station attendant, Job Mose, at a BP gas station in Lodi. Defendant drove into the gas station in a silver Saturn and pulled up to the pump. Mose requested that defendant open the gas cap. Defendant instead exited the car and demanded money from Mose. Mose repeated his request and defendant returned to his car and retrieved what appeared to be a gun, wrapped in a white plastic bag. Defendant reached into Mose's left pocket and removed a wad of cash, after which he sped away. Mose immediately called the police and reported the incident. He described the perpetrator as a light-skinned black man of approximately 160 pounds driving a silver Saturn with a partial plate number of WL13L.

On September 17, at approximately 12:15 p.m., defendant returned to Liquidators and approached the customer service desk with a larger television priced at $699. When defendant attempted to return the television without a receipt Kaur recognized defendant and summoned the manager and security. An argument ensued and defendant ran from the store without the television. Store employees observed defendant drive off in a silver Saturn, with license plate number WBL13S, and relayed this information to the police.

The police determined that the silver Saturn was owned by Enterprise Rent-a-Car and had been rented to Hackensack resident Lisa Smith on September 12. The Saturn was found parked near Smith's apartment on September 18. The day before the police located the vehicle, Smith had reported to police that the Saturn had been stolen by defendant, her boyfriend, who had disappeared with the vehicle "going into [September] 12th[,] into the 13th[,]" and had not been seen since.

The police knocked on Smith's apartment door and defendant answered. The police informed defendant they were investigating shoplifting incidents at Liquidators. Defendant replied that "he thought [they] were [there] investigating an incident that took place at the BP gas station [in] which he . . . slapped a man because he took his money." Police took defendant into custody. Police searched the trunk of the Saturn, finding a multi-colored toy cap gun next to a plastic bag.

At trial, Smith testified defendant took the car "going into [September] 12th[,] into the 13th[,]" and did not return until the morning of September 18. Defendant offered an alibi witness, Karl Hall, who testified defendant spent the entire day with him in New York on September 16, the day of the robbery. Defendant denied using the Saturn on September 16, and testified that when he returned home from spending the day with Hall, he found the interior of the car to be in disarray, leading him to believe the car had been loaned to Smith's nephew while defendant was away. Defendant also denied telling the police he thought they were at his apartment to investigate a confrontation he had with a man at a BP gas station.

During his direct examination, the prosecutor asked the gas station attendant, Mose, if the robber was present in the courtroom. After being permitted to walk around the courtroom, Mose said he could not identify the robber. The following exchange transpired:

Q I'm going to ask you to look around the crook [sic], look everywhere. Do you see the person who was involved in this incident with you?

A You want me to walk around?

Q No. You can look around.

THE COURT: See if you see the person. You can stand up if you wish.

[ASSISTANT PROSECUTOR]: If you need to get down[,] it's okay. You can look anywhere you want.

THE WITNESS: Can I go back there? THE COURT: Yes, you may.

[ASSISTANT PROSECUTOR]: Look all the way around. Anywhere you want. If you can't do it[,] that's okay too. If you don't see the person[,] you have to tell us that too.

THE COURT: Be careful coming back up on the witness steps. The question is, Mr. Mose, do you see the person who was in your station that day?

THE WITNESS: No.

Q Is it that you're sure he's not here or that it's been too long?

A You know[,] it's three years down the line and this is something that happened [in] like five minutes.

After defense counsel cross-examined Mose, he was excused from the stand. Shortly thereafter, the State sought to recall Mose, asserting:

[Mose is] from another culture [and] didn't really understand certain things.

As he was walking out the courtroom[,] he made a comment that he thought he . . . saw the defendant, he saw the person who did this but he thought it was the attorney because he was, in effect, sitting at the [counsel's] table[.]

Defense counsel objected, arguing Mose was unable to identify defendant from a photo array at or about the time of the crime, and three years later "the identification certainly would be questionable[.]" Counsel also argued the witness was already afforded the opportunity to walk around the courtroom in an effort to identify defendant and walked right by him, and "[t]o give [the witness] a second bite at the apple based on all that's gone on . . . would be extremely prejudicial and inappropriate." Following an N.J.R.E. 104 hearing, in which both sides questioned Mose as to his reason for not identifying defendant earlier, the court permitted the State to recall Mose, stating, "I'm satisfied[.] [W]e're going to bring the jury back and we're going to open the direct . . . . I'm going to permit this witness to continue to testify." On recall, Mose testified he was "[one] hundred percent" sure he recognized defendant as the perpetrator, but mistakenly believed the counsel table was reserved for government officials who could not be implicated in crimes.

After the close of evidence, the prosecutor presented his summation. During summation, he read back portions of the testimony of witnesses. The prosecutor queried whether the testimony of Kaur, Liquidator's assistant manager, was consistent with defendant's version or with the State's version and proceeded to read excerpts from Kaur's testimony. The prosecutor also read back excerpts from Mose's testimony in which Mose identified defendant as the person who robbed him, as well as Mose's explanation for his confusion when earlier, he was unable to identify defendant as the person who robbed him.

Finally, the prosecutor read back a brief excerpt from Hall's testimony as to defendant's whereabouts on the day of the robbery. Defense counsel did not object to any of these readbacks.

The jury deliberated for one day before finding defendant guilty on all counts. Sentencing took place on September 24, 2010. In sentencing defendant, the court considered four aggravating factors: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); existence of a prior record, N.J.S.A. 2C:44-1a(6); the need to deter defendant and others, N.J.S.A. 2C:44-1a(9); and imposition of a fine or penalty or order for imprisonment would be perceived by the defendant as merely part of the cost of doing business, N.J.S.A. 2C:44-1a(11). The court also found mitigating factor eleven, N.J.S.A. 2C:44-1b(11), imprisonment will entail excessive hardship. Finding "the aggravating factors substantially outweighed the mitigating factors" as to all counts and determining that "with the prior record[, defendant] is not entitled to the bottom end of any of these sentences," the court imposed an aggregate sentence of nineteen years.

On appeal, defendant raises the following points for our consideration:

POINT I

UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE, THE COURT ERRED WHEN IT ALLOWED THE STATE TO RECALL THE ONLY WITNESS TO THE ROBBERY TO IDENTIFY DEFENDANT AS THE ASSAILANT AFTER THAT WITNESS UNEQUIVOCALLY TESTIFIED THAT HE WAS UNABLE TO IDENTIFY ANYONE IN THE COURTROOM.

POINT II

THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT READ, VERBATIM, SUBSTANTIAL PORTIONS OF WITNESS TESTIMONY TO THE JURY IN ITS SUMMATION. (NOT RAISED BELOW).

POINT III

DEFENDANT COULD NOT, AS A MATTER OF LAW, BE CONVICTED OF THIRD[-]DEGREE SHOPLIFTING FOR THE THEFT OF A TELEVISION WHOSE FULL RETAIL VALUE WAS $499. (NOT RAISED BELOW).

POINT IV

THE SENTENCE IMPOSED ON THE ROBBERY CONVICTION IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

In his pro se supplemental brief, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL WHEN HE FAILED TO REQUIRE A WADE HEARING REGARDING THE VICTIM[']S IDENTIFICATION[,] WHICH DEPRIVED HIM FROM HAVING A FAIR TRIAL[,] CONTRARY TO N.J.R.E. 104 HEARING[,] U.[S]. CON[S]T[.] AMENDS. V, VI AND XIV, N.J. CONST. (1947) ART. I, [¶ 1], 9 AND 10. U.S. V. WADE, 388 U.S. 218 (1967) MISIDENTIFICATION.

POINT II

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED ON MITIGATING AND AGGRAVATING FACTORS USED BY THE TRIAL COURT AND MUST BE REVERSED.

Based on our review of the record and applicable law, with the exception of his conviction for third-degree shoplifting, we are not persuaded by defendant's arguments. We agree, however, defendant's conviction for third-degree shoplifting was erroneous and remand for re-sentencing.

I.

Defendant argues the court erred in permitting the State to recall Mose after he testified he was unable to identify anyone in the courtroom. Defendant acknowledged that under State v. Clausell, 121 N.J. 298 (1990), and United States v. Domina, 784

F.2d 1361 (9th Cir. 1986), in-court identification is not required to meet the same standards as a pretrial identification. Defendant, however, argues these cases predate the "modern understanding" of the general limitation of eye witness identification and neither dealt with the "unique circumstances" of this case where "the only witness to the robbery was unable to select defendant's photograph from a pre-trial array and was unable to identify defendant in court the first time he took the stand." Defendant further argues that although defense counsel did not specifically cite United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) in his objection to the witness recall, the court was nonetheless obligated to assess the reliability of the proffered identification testimony, and erred in failing to do so.

As defense counsel voiced his objection to the witness recall during trial, we review the court's decision under the harmless error standard. An error or omission shall be disregarded on appeal unless it is of such a nature as to have been "clearly capable of producing an unjust result." R. 2:10-2; see State v. Macon, 57 N.J. 325, 337-38 (1971).

We discern no error in the admission of the eyewitness testimony and are satisfied the issue was properly left to the jury. In general, "[t]he reliability of properly admitted eyewitness identification, like the credibility of the other parts of the prosecution's case is a matter for the jury." Foster v. California, 394 U.S. 440, 443 n.2, 89 S. Ct. 1127, 1129 n.2, 22 L. Ed. 2d 402, 407 n.2 (1969). However, "in some cases the procedures leading to an eyewitness identification may be so defective as to make the identification constitutionally inadmissible as a matter of law." Ibid.

Where out-of-court identification is made under suggestive circumstances, the court must conduct a preliminary hearing, a Wade hearing, to determine the admissibility of the identification evidence. State v Ridout, 299 N.J. Super. 233, 238 (App. Div. 1997); see State v. Herrera, 187 N.J. 493, 501-04 (2006) (discussing the development of the analysis related to the admission of eyewitness testimony). "What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection" or observation at the time of the crime charged or results from the suggestive pretrial identification. State v. Farrow, 61 N.J. 434, 451 (1972).

Defendant apparently seeks to expand this rule of admissibility to situations in which there has been no suggestive out-of-court identification, but only an allegedly suggestive in-court identification. There is, however, no legal support for this proposition. While recognizing an in-court identification is inherently suggestive, State v. Madison, 109 N.J. 223, 243 (1988), our Supreme Court has noted the United State Supreme Court, to which we look for guidance, has set no guidelines for in-court identification procedures nor indicated that in-court identification must be made in a way that is not suggestive. State v. Clausell, 121 N.J. 298, 327 (1990) (citing Domina, supra, 784 F.2d at 1368).

An explanation for the disparate treatment of in-court and out-of-court identification is offered by Domina: "[w]hen the initial identification is in court, there are different considerations [than those implicated in a pretrial identification]. The jury can observe the witness during the identification process and is able to evaluate the reliability of the initial identification." 784 F.2d at 1368. A hearing on the suggestiveness of the identification is thus not required. Testimony is admissible subject only to the normal rules of evidence which permit only relevant, probative, and competent evidence to be considered by the fact-finder. State v. Chen, 208 N.J. 307, 318-19 (2011).

In the present case, Mose failed to identify defendant in an out-of-court photo array, failed to identify defendant on direct examination, then on recall testified he was "[one] hundred percent" sure defendant was the man who robbed him. Whether this about-face was the product of any external influence on Mose was for the jury to resolve, before whom this change in testimony occurred. On direct examination, the prosecutor did not ask Mose to identify the robber in a manner that suggested he was present in the courtroom or that defendant was the perpetrator, State v. Wilson, 362 N.J. Super. 319, 326, and there is no evidence that between the time he left the courtroom after direct examination and the time he returned to the stand, Mose spoke to anyone other than the officer to whom he commented that he recognized defendant. Thus, he was properly permitted to testify on redirect as to defendant's identity. "The strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under appropriate instructions from the trial judge." Farrow, supra, 61 N.J. at 451. The trial court instructed the jury on assessing the credibility of a witness's testimony, including how to evaluate inconsistent statements. There is nothing in the record to suggest the jury did not follow the court's instructions in this regard. State v. Little, 296 N.J. Super. 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997).

II.

Defendant next argues the prosecutor committed prosecutorial misconduct by reading, verbatim, large portions of the transcript of the trial testimony of the State's principal witnesses, Kaur and Mose, during his summation, mandating reversal of his conviction. We disagree.

In determining whether prosecutorial misconduct requires a reversal, we examine whether the conduct complained of "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). It is well-settled that prosecutors are afforded considerable leeway in their closing arguments and in criminal cases especially, are expected to make vigorous and forceful closing arguments to juries. Frost, supra, 158 N.J. at 82; State v. Harris, 141 N.J. 525, 559 (1995). There is no per se rule in New Jersey disallowing the readback of portions of trial testimony during summation. See Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 535-36 (Law Div. 1996) ("[I]t is acceptable to read portions of the trial testimony from a transcript to the jury during summation . . . ."). Nor are there any express rules governing the manner in which testimony may be read back during summation.

In general, "[t]he scope of defendant's summation argument must not exceed the 'four corners of the evidence.'" Loftin, supra, 146 N.J. at 347 (citation omitted). "[C]omment must be restrained within the facts shown or reasonably suggested by the evidence adduced," State v. Bogen, 13 N.J. 137, 140, cert. denied, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953), and counsel may not "misstate the evidence nor distort the factual picture," Matthews v. Nelson, 57 N.J. Super. 515, 521 (App. Div. 1959), certif. denied, 31 N.J. 296 (1960).

In the present case, the prosecutor did not misstate or distort the evidence. Counsel relied on verbatim recitals. We note defendant's concern about the piling on or overemphasis of select parts of the testimony. See State v. Muhammad, 359 N.J. Super. 361, 380-81 (App. Div.) (discussing these concerns in the context of video playback), certif. denied, 178 N.J. 36 (2003). However, the readback at issue was not unduly long so as to permit the State to substantially present its case a second time through the excerpts. Id. at 380. Of approximately thirty pages of summation, less than one-third were dedicated to readbacks. Finally, although the trial judge did not give cautionary instructions specifically addressed to the prosecutor's readback, the instructions given in his charge were sufficient to inform the jurors of their obligation to determine the facts from their own recollection. Id. at 382. In his charge, the judge directed that:

Regardless of what counsel has said or what I may have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts. . . . Although the attorneys may point out what they think [is] important in this case, you must rely solely upon your own understanding and recollection of the evidence that was admitted during the trial. . . . Any comments by counsel are not controlling.

We must assume the jury followed the judge's instruction.

In light of the judge's overall instructions, the brevity of the excerpts and the lack of distortion, the readback in this case was not clearly capable of producing an unjust result. Additionally, defense counsel failed to object to the readback, which may be deemed indicative of a lack of prejudice. Ramseur, supra, 106 N.J. at 323. As such, we conclude the prosecutor's readback was not improper and did not violate defendant's right to a fair trial.

III.

In his next point, defendant argues the definition of "full retail value" set forth in the shoplifting statute does not include sales tax and, as such, he could not have been found guilty of third-degree shoplifting but only fourth-degree shoplifting, and requests that the judgment of conviction (JOC) be amended accordingly.

The State submits that although the shoplifting statute is silent as to the inclusion of sales tax, the general theft statute, N.J.S.A. 2C:20-2, which includes sales tax as part of the valuation for theft offenses, should guide the application of the shoplifting provision with respect to the inclusion of sales tax as a part of determining value.

Shoplifting is defined as purposely taking possession of merchandise offered for sale by a store with the intention of depriving the merchant of the possession, use or benefit of such merchandise or converting the same "without paying to the merchant the full retail value thereof." N.J.S.A. 2C:20-11b(1). Shoplifting constitutes a crime of the third degree "if the full retail value of the merchandise exceeds $500 but is less than $75,000" and a crime of the fourth degree "if the full retail value of the merchandise is at least $200 but does not exceed $500." N.J.S.A. 2C:20-11c(2) and c(3). "Full retail value" is defined by the statute as "the merchant's stated or advertised price of the merchandise." N.J.S.A. 2C:20-11a(7).

The gradation scheme for shoplifting parallels the gradation scheme for theft under the general theft statute, Statement to S.267 (Jan. 11, 2000), under which theft constitutes a crime of the third degree if "[t]he amount involved exceeds $500.00 but is less than $75,000.00" and a crime of the fourth degree if "the amount involved is at least $200.00 but does not exceed $500.00." N.J.S.A. 2C:20-2b(2)(a) and (3). "Amount involved" is defined in the Code's definitional section as "the fair market value at the time and place of the operative act." N.J.S.A. 2C:1-14m. Whereas the shoplifting statute is silent as to whether sales tax should be taken into account in determining the full retail value, the general theft statute provides that the "amount involved" in a theft "shall include, but shall not be limited to, the amount of any State tax avoided, evaded or otherwise unpaid, improperly retained or disposed of." N.J.S.A. 2C:20-2b.

The State seeks to equate the term "full retail value" (stated or advertised price) with the term "amount involved" (fair market value). However, a plain reading of the statute indicates that these terms are not synonymous. See State v. King, 164 N.J. Super. 330, 336 n.1 (App. Div. 1978) ("Rather than the terminology of 'price or value' the grades of indictable theft offenses are defined in terms of 'the amount involved.'"), certif. denied, 81 N.J. 54 (1979).

Price is probative, but not conclusive of fair market value and a party may prove that the sales price is not the fair market value by producing evidence showing that the list price of the article in question exceeds the sales price posted by other shops in the vicinity for similar articles or that the victim retailer customarily offers discounts of the posted sales price of the article in question. Ibid.

Cannel, New Jersey Criminal Code Annotated, comment 5 on N.J.S.A. 2C:20-11 (2011), also notes "[t]he phrase 'full retail value' is used in an entirely different context" than "amount" under the general theft provision. The author explains that under the shoplifting provision, "conclusiveness of price as value is required insofar as flexibility would allow a shoplifter to alter price labels [in violation of N.J.S.A. 2C:20-11b(3)] and argue that he was merely correcting them to reflect true or market value." Ibid.

While it is clear "full retail value" is not equivalent to "amount," the question still remains whether the "full retail value" or "price" should or does include tax. Based on the purpose of the shoplifting statute, which is "preventing the loss of merchandise without full payment -- the protection of inventory," De Angelis v. Jamesway Dep't Store, 205 N.J. Super. 519, 525 (App. Div. 1985), we believe the better approach would be to interpret full retail price to mean the pre-tax price. Sales tax is not a part of a store's inventory, so it should not be considered in assessing the value of the merchandise stolen. Additionally, not all goods are subject to sales tax,*fn1 and as such, the full retail value of certain products can never include such tax. Imposing greater criminal liability dependent solely on whether or not sales tax is paid has no rational relationship to an assessment of the gravity of the larcenous act. People v. Medjdoubi, 661 N.Y.S.2d 502, 506 (N.Y. Sup. Ct. 1997). We thus conclude "full retail value" is the price of the stolen merchandise exclusive of tax.

Based on this analysis, defendant's conviction for third-degree shoplifting must be reversed. He cannot be convicted of such because the full retail value of the television was below the statutory threshold of $500.

This conclusion requires that we determine the appropriate disposition of the shop-lifting charge. A court may mold a verdict and "enter a judgment of conviction for a lesser included offense where the jury verdict necessarily constitutes a finding that all the elements of the lesser included offense have been established and where no prejudice to the defendant results." State v. Greenberg, 154 N.J. Super. 564, 567-68 (App. Div. 1977), certif. denied, 75 N.J. 612 (1978). A guilty verdict may be molded to convict on a lesser-included offense if "'(1) defendant has been given his day in court, (2) all the elements of the lesser included offense are contained in the more serious offense and (3) defendant's guilt of the lesser included offense is implicit in, and part of, the jury verdict.'" State v. Farrad, 164 N.J. 247, 266 (2000) (citation omitted).

Because fourth-degree shoplifting requires proof of the same elements as third-degree shoplifting, the only difference being that the punishment is less severe if the full retail value of the merchandise is at least $200 but does not exceed $500, defendant's JOC must be amended to reflect a conviction for fourth-degree shoplifting as a lesser-included offense of fourth-degree shoplifting.

IV.

We turn now to defendant's challenge to his sentence. Defendant argues that in sentencing him for first-degree armed robbery, three of the four aggravating factors the court considered did not apply. The State concedes the trial court improperly found aggravating factor eleven, N.J.S.A. 2C:44-1a(11), but argues this error caused no appreciable prejudice to defendant because, given the court's finding of the additional aggravating factors, and only one mitigating factor, it is thus "doubtful that aggravating factor eleven affected the court's analysis."

In reviewing the sentence imposed by a trial court, we must

(a) determine if the sentencing guidelines were violated; (b) assess whether the aggravating and mitigating factors found were based upon competent, credible evidence in the record; and (c) "determine whether, even though the court sentenced in accordance with the guidelines, nevertheless, the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). The appellate court should however avoid substituting its preferences for those of the sentencing court. State v. Bieniek, 200 N.J. 601, 608 (2010). In other words,

[a]n appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience. [State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)).]

The ordinary term for a first-degree crime is between ten years and twenty years. N.J.S.A. 2C:43-6a(1). The length of the term within this range depends on the court's analysis of the aggravating and mitigating factors. N.J.S.A. 2C:44-1a. Once the appropriate sentence is determined, the court shall "state on the record the reasons for imposing the sentence, including its findings pursuant to the criteria for withholding or imposing imprisonment . . . and the factual basis supporting its findings of particular aggravating or mitigating factors affecting [the] sentence." N.J.S.A. 2C:43-2e; R. 3:21-4(g). "The absence of such a statement conceals both sound and improper reasons and bars informed evaluation on appeal." State v. Martelli, 201 N.J. Super. 378, 385 (App. Div. 1985). "Without such a statement, appellate review becomes difficult, if not futile." State v. Kruse, 105 N.J. 354, 360 (1987).

Defendant was sentenced to fifteen years imprisonment on the robbery count based on the court's finding of aggravating factors three, N.J.S.A. 2C:44-1a(3); six, N.J.S.A. 2C:44-1a(6); nine, N.J.S.A. 2C:44-1a(9); and eleven, N.J.S.A. 2C:44-1a(11); and mitigating factor eleven, N.J.S.A. 2C:44-1b(11), and the court's declaration that the "aggravating factors substantially outweigh the mitigating factors." The court however failed to explain its basis for finding these factors or how they were balanced. The record reveals defendant has only one prior conviction in New York for larceny, several arrests and two pending charges. We do not, however, know how the court weighed those circumstances with respect to the aggravating factors it found to exist. Martelli, supra, 201 N.J. Super. at 385. This cursory review of the aggravating and mitigating factors does not reflect "the qualitative weighing process contemplated by the Code." State v. Towey, 114 N.J. 69, 84 (1989).

As the State concedes, the trial court improperly considered aggravating factor eleven, N.J.S.A. 2C:44-1a(11), which is addressed to situations in which "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business." This provision, by its very terms, "is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502 (2005). Because defendant was convicted of a crime for which imprisonment is presumed, N.J.S.A. 2C:44-1a(11) should not have been applied. State v. Rivera, 351 N.J. Super. 93, 110 (App. Div. 2002), aff'd, 175 N.J. 612 (2003); N.J.S.A. 2C:44-1d. We thus remand to the trial court for re-sentencing on all counts. "[O]n remand[,] the trial court should qualitatively evaluate the aggravating and mitigating factors, explaining that evaluation on the record in sufficient detail to permit appellate review." Towey, supra, 114 N.J. at 84.

The robbery and attempted shoplifting convictions are affirmed. The third-degree shoplifting conviction is vacated and the matter is remanded for entry of judgment of conviction for fourth-degree shoplifting and resentencing on all counts. We do not retain jurisdiction.


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