October 4, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
HUGUES FRANCOIS, A/K/A JACKIE FRANCOIS, JAQUES FRANCOIS AND JACK FRANCOIS DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-10-1788.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 10, 2012
Before Judges Messano, Yannotti and Espinosa.
Defendant appeals from his convictions for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a) (count one); second-degree disturbing or removing human remains, N.J.S.A. 2C:22-1(a)(1) (count two); third-degree forgery, N.J.S.A. 2C:21-1(a)(2),(3) (counts three and four); fourth-degree theft by deception, N.J.S.A. 2C:20-4 (count five); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); and his sentence. We affirm.
The victim, Thalia Stathis, was employed as a waitress at the Arena Diner in Hackensack where she worked the overnight shift. Harry Mavrozisis, the Arena Diner night manager, testified that Thalia was an "excellent" employee who worked six days a week. Both he and Jimmie Vetsas, another night manager, stated that she rarely missed work.
Thalia's mother, Joanne Stathis, testified that her relationship with her daughter changed "drastically" when Thalia began dating defendant. On September 7, 2007, Stathis first informed her mother that she was leaving defendant and wanted to come back home. Thalia also confided in two Arena Diner customers who became friends, Ronni Sheldon and Janet Teller, in early September 2007, that she intended to leave defendant.
Thalia had a number of telephone conversations with her parents in the days following September 7. On September 10, 2007, Thalia called Joanne, crying. The two met at a local restaurant, where Thalia told Joanne that she had broken up with defendant and did not want to see him again. Thalia returned to work after lunch and Joanne did not see her daughter alive again.
Thalia last reported for work on September 13, 2007. That evening, she told both Mavrozisis and Vetsas that she was going to leave defendant. Thalia told Vetsas that before leaving him she intended to return to her apartment to pick up clothes. According to Vetsas, he advised Thalia that her father should accompany her to the apartment, but Thalia stated it was unnecessary.
Following that evening, Mavrozisis found it unusual and became concerned when Thalia missed her scheduled shifts. When he failed in his efforts to contact Thalia, Mavrozisis ultimately contacted the police four or five days later.
On September 26, 2007, when Thalia had been missing for approximately fourteen days, Cliffside Park police officers were dispatched to her apartment to check on her welfare. They spoke with defendant, who informed them that he lived in the apartment with Stathis, his girlfriend of approximately three years, and that he had not seen her for about a week. Defendant was arrested on charges unrelated to this matter.
Defendant was advised of his Miranda*fn1 rights and agreed to answer the officers' questions without an attorney present. He stated that the Cliffside Park apartment belonged to Stathis, and that she paid the rent. Although he had keys to the apartment, he did not sleep there often. Defendant stated he had last seen and spoken to Stathis on September 14, 2007, when he picked her up from work and dropped her off at her apartment between 2:00 and 3:30 in the morning. Defendant claimed that Thalia wanted him to spend the night with her but he left after dropping her off.
According to telephone records, Thalia's last outgoing call was made to defendant's telephone at 1:56 a.m. on the morning of September 14. The last time Thalia's cellphone was active was at 2:51 a.m. that morning, when an incoming call from defendant's phone was forwarded to voicemail. Telephone records also revealed that at the time of both calls, Thalia's phone was within the area of Hackensack Hospital, a short distance from the Arena Diner.
Defendant stated that he returned to the apartment later on the evening of September 14 to drive Thalia to work but she was not there. He returned to the apartment a few hours later but
Thalia was not there and did not answer his telephone call. Defendant contacted the Arena Diner and was told Thalia was not at work.
Defendant called the diner again on September 15 and 23 and also called Thalia's cell phone on September 15, 16, and 21. He returned to her apartment on a daily basis after September 14 "just to see if she was there."
After Thalia was missing for a few days, defendant became concerned about paying the bills. He admitted he had written and signed a check from Thalia's account to pay a cable bill despite the fact that he did not have permission to use her account. Bank records revealed that the last transaction for Thalia's bank account was a forged check to Time Warner Cable that was cashed on September 17, 2007.
During the course of the interview, defendant stated he owned a vehicle, a 2007 Honda Accord, that was parked around the block from the apartment. He consented to a search of the vehicle.
The search of the car's trunk yielded two laundry bags containing clothing, detergent and an air freshener as well as other items. The floor plate that would have covered the spare tire was missing, as was a carpet padding. A "yellowish brown" substance, containing compounds commonly found in cleaning products, was found below the spare tire. There were also five "reddish brown" stains in the trunk. Three of the stains were tested and found to contain Thalia's blood. Several items linked to Thalia, including her ATM card and pin number, were found in the interior of the car. A floor mat was missing from the front passenger side of the vehicle.
Following the car search, police re-interviewed defendant, who said the detectives were lying about finding blood in the car. Asked if he had killed Thalia, defendant became "very belligerent, very uncooperative" and refused to speak further.
A search of Thalia's apartment led to the discovery of four blood stains in the bathroom. Two of those stains, one found on the wall behind the toilet and the one on the underside of the sink were Thalia's blood. Police observed that a blue sheet covered the bed mattress.
Defendant remained incarcerated from September 26, 2007 through July 9, 2008, when Thalia's body was discovered by New York State Police Trooper Kevin Reppenhagen in a garbage bag lying on the shoulder of the Southern State Parkway in New York. The location where the body was found was not maintained or cleaned by the State's Department of Transportation (DOT). Reppenhagen testified that the bag containing the body was similar to refuse commonly seen near the Southern State Parkway.
There was, however, a "heighten[ed] awareness" regarding debris after June 27, 2008, when the partial remains of another victim were found on the side of the highway. The location where the body was found was approximately eight miles from the home of defendant's uncle, where defendant had lived from February to July 2006.
Thalia's body was dressed only in underwear and wrapped in three plastic shopping/laundry-type bags, a garbage bag, and a blue sheet. The body was badly decomposed, a complete skeleton, and contained evidence of live insect activity.
Andrew Wolodzko, M.D., Deputy Medical Examiner for Nassau County, conducted an autopsy. His examination revealed multiple skull and hand fractures, as well as a fractured hyoid, the bone above Thalia's larynx. A toxicology report revealed that no drugs were found in the body. Thalia's death, according to the autopsy, was caused by homicide, specifically blunt force trauma, including multiple blows to Thalia's head. Due to the magnitude of the fractures to the skull, either blow could have been lethal. Accordingly, Dr. Wolodzko identified the cause of death as blunt force head trauma. He also testified that a hyoid fracture is "the hallmark of manual strangulation." He could not tell, however, whether strangulation occurred before or after the blows to the skull.
Dr. Vincent Stefan, qualified as an expert in forensic anthropology, offered the opinion that Thalia died "anywhere between three months to a year" before her remains were found. The doctor noted, however, that, under the circumstances, an entomologist could more accurately estimate Thalia's time of death.
The State presented the testimony of Dr. Linda-Lou O'Connor, qualified as an expert in "entomology and its forensic application[,]" regarding insects recovered from Thalia's remains. In general, Dr. O'Connor stated that the calliphoridae species, a type of fly species, is attracted to the tissue and flesh that remains in corpses "within minutes to hours after death." Once they locate a body, calliphoridae lay their eggs and attract other calliphoridae, who also lay eggs. About one day later, maggots hatch from these eggs and begin feeding under the dead body's skin. Only when the maggot reaches its final development stage does it leave its "pupal casing" and never return to the body again. As the body continues to decompose, beetles, rather than flies, are drawn to it. Ultimately, only the body's bones remain.
Dr. O'Connor examined two types of empty calliphoridae pupal casings, calliphora vicina and phormia regina, recovered from Thalia's body. She also found house flies, which do not immediately emerge on a dead body. Dr. O'Connor additionally discovered Piophilidae Liopiopila, or cheese skippers, which were in a larval stage. The remains also contained several beetles, including many larvae, which are typically found in the late stages of decomposition.
According to the doctor, calliphoridae development had to have been completed by October 27, 2007, "because after that it just would have been too cold for them to complete their life cycle." Turning first to the calliphora vacina pupal casings, Dr. O'Connor estimated that the casings were left behind sometime between September 24 and October 7, 2007. The flies shedding those casings were positioned between September 17 and October 2, 2007. The other pupal casings, the phormia regina, were left sometime between October 5 and 13, 2007, the doctor said. The flies leaving phormia casings arrived between October 1 and 7, 2007. Because some of the pupal casings were found outside the bags which contained Thalia's body, Dr. O'Connor opined that "[the] bag[s] ha[d] not been moved since [the] flies emerged from [the] pupal casings." She also noted that because Thalia's body was wrapped in bags, insects may not have been able to immediately access the body.
The late-arriving species, specifically the Piophilidae Liopiopila and beetles, were alive when the body was found, Dr. O'Connor testified, and therefore, "they would have had to start colonizing the body sometime after the freezing temperatures" around April 16, 2008. The doctor estimated that colonization for the Piophilidae Liopiopila concluded between June 22, 2008 and July 4, 2008. She stated that colonization for the beetles was completed between June 25, 2008 and June 29, 2008.
Defendant presented testimony from two witnesses to counter the theory that he had killed and disposed of Thalia's body before his incarceration on September 27, 2007. A college student testified that, around 11 p.m. on July 8, 2008, she saw a white man with a ponytail rolling a suitcase near the exit where Thalia's body was found the next day. She admitted that, although she knew about the prior homicide victim, she only alerted authorities about the suitcase after learning of the discovery of Thalia's body. In addition, records showed that Southern State Parkway highway crews conducted "debris patrols" on various days from September 2007 through June 2008 to pick up debris on the roadway and exit/entrance ramps. Bart Howe, a highway crew supervisor, testified that he believed his crew would have noticed and picked up Thalia's body from the entrance ramp on such a debris patrol. He admitted, however, that keeping the highway clean was a "daunting" task.
Defendant also presented the testimony of several of Thalia's neighbors, who found nothing disturbing or unusual in defendant's interactions with Thalia. In addition, two taxi drivers testified for the defense. Each testified that he had driven Thalia to the Lincoln Tunnel Motel in North Bergen, where she met a man. One of the taxi drivers testified that he drove Thalia to the motel in September 2007. This was a motel that defendant had identified as a place he visited to get high on drugs.
The jury convicted defendant of first-degree aggravated manslaughter (count one),*fn2 second-degree disturbing or removing human remains (count two); third-degree forgery (counts three and four); fourth-degree theft by deception (count five); and third-degree hindering apprehension (count six). On count one, the trial court sentenced defendant to a thirty-year term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a five-year period of parole supervision. A concurrent sentence of ten years, including a five-year parole ineligibility period, was imposed on count two. The court merged counts four and five with count three, and imposed a sentence of five years, including a two and one-half-year period of parole ineligibility on count three. A sentence of five years, including a two and one-half-year period of parole ineligibility, was also imposed on count six. The court ordered that the sentences imposed on counts three and six were to run consecutive to each other and to the sentence imposed on count one, resulting in an aggregate sentence of forty years. In addition, appropriate fines and penalties were imposed.
Defendant presents the following issues for our consideration in his appeal:
UNDER THE CIRCUMSTANCES OF THIS CASE, THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE ELEMENT OF TERRITORIAL JURISDICTION, REQUIRES A NEW TRIAL.
B. TERRITORIAL JURISDICTION
IS AN ELEMENT OF THE OFFENSE AND MUST BE CHARGED WHERE, AS HERE, THE RECORD CLEARLY INDICATES A FACTUAL DISPUTE OVER WHERE THE CRIME TOOK PLACE
C. THE CIRCUMSTANCES OF
THIS CASE "CLEARLY INDICATE[D] A FACTUAL DISPUTE CONCERNING WHERE THE CRIMES OCCURRED"
THE TRIAL JUDGE FAILED TO GIVE PROPER CONSIDERATION TO APPELLANT'S IN-TRIAL MOTION, PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, TO PROCEED PRO SE.
A. THE RIGHT TO PROCEED PRO SE IS VIRTUALLY ABSOLUTE AND ITS DENIAL CANNOT BE HARMLESS ERROR
B. FACTUAL SETTING
C. DISCUSSION POINT III
THE TRIAL JUDGE ERRED BY IMPOSING MAXIMUM TERMS ON ALL COUNTS AND IN BY IMPOSING CONSECUTIVE TERMS OF IMPRISONMENT ON THE THIRD-DEGREE OFFENSES After reviewing these arguments in light of the applicable legal principles, we are satisfied that none have any merit.
I Defendant first argues that the trial court erred in failing to charge the jury sua sponte that the State was required to prove that the homicide occurred within its territorial jurisdiction.
In State v. Denofa, 187 N.J. 24 (2006), the Supreme Court addressed the question "whether territorial jurisdiction is an element of the crime of murder and must be charged to the jury, even absent a request by defendant." Id. at 29. Although the State's authority to prosecute is limited to crimes committed within its territorial jurisdiction, id. at 36, the Court concluded that it is "a non-material element, and for good reason never submitted to the jury unless there is some factual dispute concerning whether the crime occurred in this State." Id. at 41. The Court adopted the standard applicable to the submission of lesser-included offenses to the jury, i.e.,
[C]courts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted. Thus, when the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge. Only if the record clearly indicates a lesser-included charge--that is, if the evidence is jumping off the page--must the court give the required instruction. [Id. at 42 (internal citations omitted).]
See also State v. Walker, 203 N.J. 73, 86-87 (2010).
In outlining the procedure to be followed when territorial jurisdiction is at issue, the Court emphasized that any objection to jurisdiction "should be raised as early as possible before trial." Denofa, supra, 187 N.J. at 43. To prevail on a motion to dismiss on jurisdictional grounds, the moving party must show "that no inference could reasonably be drawn placing the site of the crime within the State." Ibid. (quoting State v. McDowney, 49 N.J. 471, 475 (1967)). The Court also defined the appellate standard applicable to our review in this case:
In any appeal from a conviction in which the defendant did not request a territorial jurisdiction charge, an appellate court first must determine whether the record clearly indicated that the crime's location was at issue. If territorial jurisdiction was not clearly in dispute, then the appellate court must still be satisfied regarding the sufficiency of the evidence.
On that issue, the standard of review is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find beyond a reasonable doubt that the crime occurred within the State. [Denofa, supra, 187 N.J. at 44 (internal quotation marks omitted).]
Defendant argues that the need for a charge on territorial jurisdiction was "clearly indicated" by the record here. The first point he makes is that the victim's body was found in New York State. In addition, he notes the prosecutor's concession that the homicide did not occur at the victim's apartment in Cliffside Park. Finally, he contends that the defense raised the jurisdictional issue as part of its motion to dismiss at the conclusion of the State's case.
The location where the victim's body was found is the only fact that associates her homicide with New York. In Denofa, the victim suffered some injury in a fall from a motel balcony in Pennsylvania and was transported to New Jersey where she was thrown from a bridge and her body was discovered. Id. at 30-31. Although the discovery of her body in New Jersey gave rise to an inference that the murder occurred in New Jersey in Denofa, that inference was not dispositive. Id. at 39. There was additional evidence to support the conclusion that the victim was killed in New Jersey. Specifically, there was unrefuted testimony of the medical examiner that, based upon his examination of the victim's physical injuries, it was his opinion that she was alive at the time she was thrown from the bridge in New Jersey. Id. at 45.
In this case, the expert testimony was similarly unrefuted. A forensic entomologist described the sequence of insects attracted to corpses and their life cycles. Among the evidence of insect activity she found were pupal casings of the calliphoridae species of flies, a species attracted to corpses soon after death. Based upon weather conditions, she opined that the casings were left sometime between September 24 and October 7, 2007, and that the flies shedding those cases were positioned in the corpse between September 17 and October 2, 2007. A forensic anthropologist's testimony was consistent with this opinion, estimating that death occurred between three months and one year before the body was found in July 2008.
These findings corresponded with evidence that Thalia was last seen alive in New Jersey in mid-September 2007. There was no activity from her bank account after the check defendant forged was cashed on September 17, 2007. Her cell phone was last used on September 14, 2007 in New Jersey. Her blood was found in the trunk of defendant's car before he was arrested on September 26, 2007. Her body was found wrapped in a blue sheet, the same color as the sheet police officers saw on the bed in her apartment on September 26, 2007. In contrast to this persuasive, albeit circumstantial, evidence that Thalia was murdered in New Jersey prior to defendant's arrest, there is no evidence that she was alive when taken to New York or that she was fatally injured in New York.
We are satisfied that an issue of territorial jurisdiction was not "clearly indicated" by this record. Further, giving the State the benefit of all testimony favorable to it and the favorable inferences that can be reasonably drawn from such evidence, we are satisfied that a reasonable jury could find beyond a reasonable doubt that the homicide occurred in New Jersey.
Defendant argues that, although the charge was not requested, the issue was nonetheless presented to the court when defense counsel moved for a judgment of acquittal at the close of the State's case. Defendant argued that the State failed to prove that Thalia was killed in Cliffside Park. The judge denied the motion, ruling there was sufficient evidence to permit the jury to find that the murder was committed in the Borough of Cliffside Park. Defendant did not argue that there was evidence to support a conclusion that the murder occurred in New York or at any location outside New Jersey. We are satisfied that this motion did not raise the issue of territorial jurisdiction before the trial court.
As noted earlier, in Denofa, the Supreme Court instructed that the issue of territorial jurisdiction should be raised as early as possible. Denofa, supra, 187 N.J. at 43. Defense counsel's motion, made after the State had rested, cannot reasonably be considered to have been made as early as the state of the evidence on territorial jurisdiction was known. Since defendant had to show "that no inference could reasonably be drawn placing the site of the crime" in New Jersey to prevail on that motion, ibid., it is evident that the evidence did not permit such a result. However, the fact that such a motion was made merely identifies a defense strategy. Argument does not equate with evidence. Even if the motion was viewed as sufficient notice to the trial court regarding an instruction on territorial jurisdiction, there was no rational basis to conclude that there was a genuine factual dispute based upon the evidence as to where the homicide occurred.
Defendant next argues that a reversal of his convictions is required because his Sixth Amendment right to represent himself was violated. We disagree.
After the close of testimony on the second day of trial, the prosecutor asked the court to advise defendant that he should not be speaking in front of the jury and that he should communicate through his attorney and comply with appropriate courtroom decorum. The judge addressed defendant, pointed out that he did get up and start to speak, and told him that he could not do that. When the judge stated he was not going to debate the issue, defendant said,
If that's the case, why don't you let me represent myself then? Because [counsel is] not doing the stuff I'm asking him to do anyway. So let me represent myself. . . . I'm competent. I -- I have a high school diploma. I -- I know how to read and I know how to write and let me -- cause there's questions that's not being asked. There's things that are not being said.
After explaining why he considered his defense deficient, defendant made six further requests to represent himself. The judge repeatedly stated he was just telling defendant the rules regarding courtroom behavior and called his counsel "extremely capable[.]" Defendant disagreed and again requested to proceed pro se. The judge stated,
[W]e are now in about day five of the trial including jury selection. If there was an application going to be made to represent yourself, it should have been done before trial and I would have considered it. . . .
[T]he Public Defender's Office . . . assigned [you] Mr. Kalisch and he will be your attorney throughout the matter.
Defendant protested, reiterating that his counsel was not asking the questions he wanted him to ask. The judge again stated that Kalisch would serve as his attorney and advised defendant to contact the Public Defender's Office if there were issues communicating with Kalisch. Defendant then interrupted the judge and asked, "So why can't I represent myself and he sit right here by my side[?]" The judge refused, again noting that the trial was in its fifth day, and "we're not going to be thinking about changing attorneys at this point." Defendant did not renew his request to proceed pro se thereafter.
A defendant "possesses both the right to counsel and the right to proceed to trial without counsel." State v. DuBois, 189 N.J. 454, 465 (2007). The Sixth Amendment to the United States Constitution grants "criminal defendants the right to proceed without counsel when they voluntarily and intelligently elect to do so." Ibid. (citing Faretta v. California, 422 U.S. 806, 818, 95 S. Ct. 2525, 2532, 45 L. Ed. 2d 562, 572 (1975)).
When a defendant makes an "unequivocal request for self-representation," the trial court is required to question the defendant to determine the scope of his request, State v. Figueroa, 186 N.J. 589, 593 (2006), and explain
(1) the nature of the charges, statutory defenses, and possible range of punishment;
(2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel. [DuBois, supra, 189 N.J. at 467 (citing State v. Crisafi, 128 N.J. 499, 511-12 (1992)).]
Following that inquiry, the trial court "must determine on the record whether the defendant is seeking to exercise the right to self-representation in whole or in part." Figueroa, supra, 186 N.J. at 593.*fn3 If a defendant wishes to fully assume his own representation, the trial court must further determine whether the waiver of counsel is knowing and voluntary. There is, however, "no constitutional right to partial or hybrid representation[,]" where counsel will continue to participate. Id. at 594. Such representation is discouraged but may be granted in the court's discretion. Id. at 595.
Even in the case where a defendant seeks to fully assume his own representation, the right to do so is not absolute. As noted, the defendant must voluntarily and intelligently decide to waive counsel and represent himself. Faretta, supra, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L.Ed. 2d. at 581. In addition, the request for self-representation must be made "in a timely manner." Martinez v. Court of Appeal, 528 U.S. 152, 162 120 S. Ct. 684, 691, 145 L. Ed. 2d 597, 607 (2000).
The right of self-representation is not a license to disrupt the criminal calendar, or a trial in progress. . . . A defendant cannot be permitted to place the trial judge in the unenviable dilemma where, in managing the business of the court, he appears to be depriving the accused of his right to self-representation. [State v. Buhl, 269 N.J. Super. 344, 362-63 (App. Div.) (internal citations omitted), certif. denied, 135 N.J. 468 (1994).]
See also State v. Harris, 384 N.J. Super. 29, 57-58 (App. Div.), certif. denied, 188 N.J. 357 (2006); State v. Roth, 289 N.J. Super. 152, 165 (App. Div.) ("A defendant who desires to exercise his right to proceed pro se must do so with reasonable diligence."), certif. denied, 146 N.J. 68 (1996).
In State v. Pessolano, 343 N.J. Super. 464 (App. Div.), certif. denied, 170 N.J. 210 (2001), the defendant had expressed his dissatisfaction with his retained counsel and had consulted with other attorneys but did not make a motion to adjourn the trial to obtain new counsel until the day of trial. Id. at 473. He first made his request to proceed pro se after jury selection and "immediately before opening statements." Ibid. We concluded that the trial judge did not abuse his discretion in denying his request. Ibid.
Here, defendant did not make any request to represent himself until the trial was underway and there had been two days of testimony. Defendant argues that this request was not untimely because the basis for his request - his dissatisfaction with his attorney's conduct of the defense - was unknown and unknowable to him prior to trial. He also argues that the fact trial had commenced may not be an "automatic disqualifier" for his request. We agree. However, the fact that the trial was in progress and two days of testimony had been taken distinguishes this case from those in which a request to proceed pro se is made prior to trial, and calls for an exercise of discretion on the part of the trial judge. We are satisfied that the trial judge did not abuse his discretion in denying defendant's request under all the circumstances.
Finally, defendant argues that the trial court abused its discretion in imposing maximum sentences on all counts and in imposing consecutive terms of imprisonment for the third-degree offenses.
When a trial court "properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]" the sentence imposed is entitled to deference and should be affirmed, even if the appellate court would have reached a different result. State v. O'Donnell, 117 N.J. 210, 215 (1989); see also State v. Cassady, 198 N.J. 165, 180-81 (2009). Defendant does not contend that the trial court erred in finding aggravating factors (3), (6) and (9), N.J.S.A. 2C:44-1(a)(3),(6) and (9), or in finding no mitigating factors.
Rather, he argues that the trial judge erred because he repeatedly utilized the same aggravating factors to impose the maximum penalty possible on each count and to justify two consecutive periods of parole ineligibility. We disagree. Defendant's criminal record presented an established history of violent crime, including a prior conviction for first-degree aggravated manslaughter as well as convictions for second-degree sexual assault and second-degree possession of a firearm. The facts therefore justified substantial weight being given to the aggravating factors in determining the sentence for each crime, justifying even the maximum sentence for each crime. The fact that the aggravating factors were considered when the sentence for each crime was determined does not constitute impermissible "double-counting," which occurs when the sentencing court considers an element of the offense that the Legislature has taken into account in grading the offense and relies upon that element to find an aggravating factor. See State v. Carey, 168 N.J. 413, 425 (2001); State v. Pineda, 119 N.J. 621, 627 (1990).
Defendant also argues that the trial judge erred in imposing consecutive sentences for the forgery and hindering counts. Again, we disagree. The sentencing judge appropriately considered and weighed the factors identified in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The court observed that the forgery, which defendant admitted he committed to pay the cable bill, was "predominantly independent of the [aggravated] manslaughter," and was "committed at a different time." The court also noted that defendant's actions in hindering his apprehension were also "committed at a separate time" and "the objectives of that crime were separate from the killing[.]" Moreover, as Thalia was the victim of the manslaughter, the cable company was the victim of the forgery, and hindering apprehension is "an offense against the public administration of laws," there were multiple victims for these offenses, providing further support for consecutive sentences. Carey, supra, 168 N.J. at 431.
The decision to impose a consecutive or concurrent sentence lies within the discretion of the trial judge. State v. Miller, 205 N.J. 109, 128 (2011); see also N.J.S.A. 2C:44-5(a). We discern no abuse of discretion either in the imposition of consecutive sentences or in the terms imposed.