NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3502-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN T. BRAGG, a/k/a JOHN WHITE,
Defendant-Appellant. _______________________
Argued April 29, 2024 – Decided May 7, 2024
Before Judges Mawla, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 18-12-0715.
Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer Nicole Sellitti, Public Defender, attorney; Stefan Van Jura, of counsel and on the brief).
Colin J. Rizzo, Assistant Prosecutor, argued the cause for respondent (Angelo J. Onofri, Mercer County Prosecutor, attorney; Colin J. Rizzo, of counsel and on the brief). PER CURIAM
Defendant John T. Bragg appeals from his convictions for: first-degree
attempted murder, N.J.S.A. 2C:11-3(a)(1) and N.J.S.A. 2C:5-1(a)(1), (counts
one and two); first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and (2), (counts
three, four, and five); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1),
(counts six and seven); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) and
2C:12-3(a), (counts eight and ten); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d), (counts fourteen and fifteen); third-
degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2), (count
seventeen); and lesser-included offenses of harassment, N.J.S.A. 2C:33-4(a),
(counts eleven and twelve).1 After merging the remaining counts (nine, thirteen,
sixteen, eighteen, and nineteen), the trial judge sentenced defendant to an
aggregate term of life imprisonment, which defendant also challenges on this
appeal. We affirm.
In the early morning hours of October 1, 2017, Trenton Police Officers
Frankie Guzman and Tomas Martinez were dispatched to a ninth-floor
apartment located in a high-rise complex on Cooper Street for a domestic
1 Counts eleven and twelve were originally indicted as second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-degree terroristic threats, N.J.S.A. 2C:12-3(b). A-3502-21 2 dispute. When Officer Guzman approached the apartment and knocked on the
door, a female voice asked who was at the door. Officer Guzman told her it was
the police, and the voice instructed him to come in. When Officer Guzman tried
the door, it was locked.
A male voice then asked who was at the door, and Officer Guzman again
responded that it was the police. After another exchange with the female voice,
the officer heard "some sort of physical altercation happening, and a female
voice definitely in distress and asking for help." The officers kicked down the
door on the third attempt and saw a "Black male, skinny in stature covered in
blood" who seemed "[s]cared like he had been fighting for his life." That man,
whom they later identified as Daquan Anderson, had a piece of porcelain in his
hand. When he saw the officers, he yelled: "[H]elp, help. He's killing her, he's
stabbing her."
As officers followed the man into a darkened hallway inside the
apartment, Lorenza Fletcher emerged and began running toward Officer
Guzman. He testified Fletcher
was completely covered in blood, naked. At first[, he] didn't know she was naked because there was so much blood until she got out into the hallway.
....
A-3502-21 3 [S]he was definitely in the fight for her life. She was scared, crying, breathing very heavily and just kept saying . . . something [like] . . . he killed me or he's trying to kill me.
Officers saw Anderson with a small child, L.I., who is Fletcher's three-
year-old son. Officer Guzman testified the child's "t-shirt was covered in
blood," but aside from a small mark on his elbow, the child was uninjured.
Fletcher and Anderson had numerous wounds.
When paramedics arrived, they determined Fletcher had a tension
pneumothorax, which is a bleeding into her chest cavity. This required them to
perform a needle decompression by inserting a large catheter into her chest to
evacuate air or blood and allow the lungs to expand properly. Paramedics also
noted Anderson was bleeding from his arms and neck. A paramedic testified
Anderson also "had some sort of shoelaces wrapped around both wrists and . . .
ankles."
At the hospital, a physician treated Fletcher for the pneumothorax, as well
as multiple laceration wounds on her face, scalp, chest, neck, arms, and hands.
Fletcher also had surgery to repair the tendons in her hands. The same physician
also treated Anderson for wounds on his arms, right side of his neck, shoulder,
and hand.
A-3502-21 4 According to Officer Guzman, when police found defendant inside the
apartment, he "was calm, he cooperated, he laid there" but he "had a
sweater . . . covering his head and his face" and the sweater had blood on it.
When the sweater was removed, it revealed "a real big gash wound laceration to
the left side of his head." At the hospital, defendant was treated for: a
concussion; two large lacerations on his scalp and forehead; and several smaller
lacerations to his head.
After everyone was removed from the apartment, officers returned to
inspect the crime scene. Detective Samuel Gonzalez recalled it seemed to be "a
vacant apartment." Sergeant Luis Nazario testified that "it looked like a vacant
apartment somebody may have moved out of. It looked like they were beginning
to move in, but there was next to nothing in there," and the only items in the
apartment were a deflated air mattress, a curtain that was knocked down, and
"some stuff in the kitchen, like a frying pan . . . . But it was . . . almost empty."
Anderson and Fletcher testified for the State, and defendant testified in
his own defense. Fletcher had a history of drug abuse and had sent L.I. to live
with her mother while Fletcher attended a rehabilitation facility. Although
Fletcher saw her son every day, she was not allowed to stay with him.
A-3502-21 5 Fletcher met defendant in the summer of 2017. She would have sex with
him in exchange for Percocet and cocaine. She testified he assaulted her shortly
after they first met, and there were other occasions when he smacked, choked,
or threatened to kill her. Nevertheless, Fletcher and defendant continued to see
each other regularly and defendant gave her a phone.
Anderson testified he and Fletcher are cousins and he has known her his
entire life. They were close and would see each other multiple times a week.
He met defendant through Fletcher, in the summer of 2017, and defendant would
call his cell phone whenever he could not find Fletcher. He described Fletcher's
relationship with defendant as transactional, "sex for money and drugs."
Although Anderson used drugs, and testified defendant had offered it to him, he
did not accept drugs or money from defendant because he had his own supply.
On September 30, 2017, Anderson, Fletcher, and L.I. attended Fletcher's
mother's wedding and reception. That night, they returned to Anderson's
cousin's house, 2 where Anderson had been staying. After changing out of her
wedding clothes, Fletcher called defendant to have him bring her a baby bottle,
Percocet, and cocaine.
2 This was a different cousin than Fletcher. A-3502-21 6 Defendant drove Fletcher, Anderson, and L.I. to two different stores in
search of a bottle, but when they were unsuccessful, defendant told them he
wanted to make a stop at the apartment. Fletcher testified she had never been to
the apartment and was unaware defendant lived there. Fletcher told Detective
Gonzalez that defendant said "he had to make a stop at a friend's house."
Defendant had a key to the apartment. However, Anderson was skeptical
the apartment belonged to defendant. He had never visited defendant at the
apartment and once inside it he found mail with "a lady's name and address and
the place looked vacant. . . . It was . . . empty. There wasn't really nothing in
there, [only] an air mattress[ and] a tv. It just didn't look like . . . it was
operable." However, defendant tried to make Anderson and Fletcher
comfortable by plying them with pills, drugs, and liquor. Once they were
settled, defendant left to continue the search for a bottle or sippy cup for L.I.
Anderson explained defendant returned with a used sippy cup that
belonged to a girl and still had "juice or something in it." Fletcher became upset
and began "calling him all type[s] of names." Fletcher testified she told
defendant that L.I. would not use the cup because it had a hard nipple, and L.I.
liked the soft kind. Defendant became angry, and Fletcher said they were going
to leave. Fletcher called a taxi using Anderson's phone.
A-3502-21 7 Defendant asked Anderson if he agreed with Fletcher's name-calling, and
when Anderson agreed and said defendant was "stupid for bringing that cup in
here," defendant became angry. Anderson testified defendant "jumped up and
punched [Anderson] in [the] face" and a fight ensued. During the fight,
Anderson saw a knife jutting out of his hand. He testified as follows:
I didn't even see or notice [that defendant] had enough time to even pull out a knife so maybe he had already had it or whatever. I don't know. But I know the knife came out of my hand. I looked and it's going out again. . . . I'm, like, Lorenza, . . . he just stabbed me. Like, this man just stabbed me. . . . [S]o [I] just, grab [L.I.] and I'm . . . trying to think . . . what do I do now. So I'm . . . backing up towards the window. I start kicking out a window but . . . in my head, [I'm thinking] if you kick this window out, he's going to throw you out of it so I'm just trying to think of things to do, you know.
And so then he kind of gave me, like, an ultimatum, 'cause after that, he's, like, listen, man. [S]he's going to die today. You have a chance to live and, if you want to live, that starts by me tying you up.
Fletcher testified she saw defendant and Anderson "tussling" and that
defendant was holding a knife. Her testimony mirrored Anderson's, except she
said she was the one who kicked out the window so she could yell for help.
After the initial struggle, Fletcher testified she, Anderson, and L.I. were
ushered into the bathroom. Anderson testified he went into the bathroom,
A-3502-21 8 opened the medicine cabinet, and took a piece of a shattered shelf from it,
concealing the glass shard in his hand. He dialed 9-1-1, but defendant came in
and broke the phone. Anderson and Fletcher took off their shoes, and defendant
used their shoelaces to bind Anderson's feet and tie his hands behind his back.
Fletcher testified she and Anderson were hurt and bleeding, and defendant told
her "I want to have sex with you for the last time." He also told her it was her
"killing day." Fletcher undressed, and defendant took her to the living room.
While Anderson was alone in the bathroom, he used the glass shard to free
his hands and untied his feet. Although the bathroom door was open, he would
not leave the apartment to save himself if he could not save Fletcher and L.I. as
well. Anderson removed the toilet tank lid and, when defendant returned to the
bathroom, Anderson struck defendant in the head with it.
Anderson testified he and Fletcher then began hitting defendant, and the
struggle moved out of the bathroom and into the kitchen, where Anderson armed
himself with a pot or pan. While they were fighting, L.I. ran out of the bathroom
toward the fight, and the fighting ceased. Fletcher pleaded with defendant not
to hurt her son, and defendant returned her to the bathroom, where she started
cleaning up the blood. Anderson testified that defendant then faced him, told
him he was going to die with Fletcher, and stabbed him in the neck. Anderson
A-3502-21 9 retreated into the bathroom with Fletcher. When defendant came into the
bathroom, Anderson tried to douse him with a cleaning product.
As she was cleaning, Fletcher recalled hearing knocking on the apartment
door. Although defendant told her to be quiet, she yelled for help. She recalled
defendant then jumped on her and started stabbing her while Anderson and L.I.
ran for the door. Anderson testified when they heard knocking at the door,
Fletcher dropped everything and tried to run to the door, but defendant "grabbed
her down by the hair" and began "stabbing away, just stabbing, and she's tr ying
to block with her hands and he's just stabbing." Anderson and Fletcher then
began trying to hit defendant, but defendant did not stop stabbing. When
Anderson saw his efforts were not working, he went to the apartment door and
opened it. Fletcher testified that while Anderson ran to open the door, she tried
to grab the knife from defendant and injured her hands to the point where she
could no longer bend some fingers on each hand.
Before defendant testified, the trial judge addressed the jury charges for
the close of the case, particularly on self-defense, and whether he could charge
the jury that defendant had no obligation to retreat in his own dwelling. The
judge noted that part of the charge was not included in the jury instruction in
defendant's case because, based on "the evidence before the [c]ourt, it
A-3502-21 10 appears . . . that [the apartment]'s not his dwelling." Defense counsel agreed
and responded, "I think the charge as it reads is fine the way it is."
Defendant testified he met Fletcher in the summer of 2017. At the time,
"[s]he was heavily into drugs, getting high," but he "liked being around her ."
He admitted giving her Percocet and cocaine. When he found out she was
"selling herself for two or three Perc[ocet]s," he decided he would give her "the
Perc[ocet]s she wanted so she wouldn't have to run the streets and . . . have her
son more." He also enjoyed spending time with L.I. and would take him to the
zoo, watch movies, or "just hang out" with him.
Defendant testified he had been living with his niece but was now "in
transit" and "in the process of moving into" the apartment complex when he
brought Fletcher, Anderson, and L.I. to his apartment the night of the incident .
Defendant was not on the lease and paid no rent, but claimed he was subletting
the apartment from a customer of his car business by giving a car to the customer
in exchange for staying in the apartment for four to six months. Defendant
claimed he had been living in the apartment for a few weeks. He had a key fob
for the apartment, but recalled it only worked sometimes, and other times, he
A-3502-21 11 would have to be buzzed in by security.3 He previously resided in Georgia. He
had a Georgia driver's license, and his car was registered there.
Defendant acknowledged neither Fletcher nor Anderson had ever been to
the apartment. He claimed he would never have brought them to the apartment
"if they didn't have [L.I. with them.]" He "would have never trusted them in
that apartment" because they were the reason he was kicked out of his niece's
apartment. He believed Anderson needed Fletcher because she supplied him
with the Percocet.
Defendant left the apartment because Fletcher insisted L.I. needed a sippy
cup. As defendant was driving, Fletcher called saying she wanted to have sex
with him. He believed Fletcher was "trying to hold [him] up" and decided to
return to the apartment. When he returned, he saw his belongings in his duffel
bag. When he confronted Fletcher, he was hit in the head from behind.
Defendant attempted to use his mace but could not get the canister out of his
pocket. Meanwhile, Anderson was still swinging at him, so defendant pulled
out his knife and stabbed him.
3 The former director of security for the complex testified someone with defendant's surname signed in as a visitor the night of the incident. A detective also testified he received the building sign-in sheet, which listed "John Bragg" as a visitor and the name of a different person in the spot designated for the tenant. A-3502-21 12 Defendant testified Fletcher joined in the fight, which moved into the
bedroom. L.I. was asleep on an air mattress, so defendant tried to stay to the
side of the room. When L.I. woke up, Fletcher stopped fighting to grab her son
and moved him away from the fight. Fletcher managed to break up the fight,
telling Anderson and defendant not to fight in front of her son.
When defendant pulled out his phone, Anderson tried to hit him again, the
fighting resumed, and Fletcher again managed to break it up. Fletcher tried to
talk to defendant, but he refused to approach her. Defendant testified Fletcher
then pretended to tie up Anderson. Defendant followed Fletcher into a room to
try to talk to her, but Anderson again struck him from behind with a pan.
Defendant tried to walk to the bathroom, but only made it to the bedroom,
where he sat down, and Anderson and Fletcher took the knife from him. He
testified he heard them in the bathroom, and believed they were trying to clean
up their blood. They also tried to tie him up with shoelaces, but he could not
remember which one was tying him up.
According to defendant, when the police knocked on the door, Fletcher
went to answer, but Anderson stopped her and handed her the knife. She then
attacked defendant, and they began fighting again, with defendant stabbing at
Fletcher and Fletcher biting defendant. Anderson answered the door and came
A-3502-21 13 back, again striking defendant. When the police entered, defendant fell onto the
living room floor while Fletcher ran out. Defendant claimed as soon as the
police heard Fletcher's story, they did not listen to his side and instead
handcuffed him.
Defendant denied tying up or threatening to kill Anderson. He claimed
he never threatened Fletcher, and that "the only thing [he] was doing was trying
to survive out of that situation." He testified "[t]hey cracked [him] in the head
first." Defendant only used force "because [Anderson] hit [him] in the head,
and he still was swinging at [defendant]." He claimed he had no choice but to
defend himself. Defendant testified he would have retreated but when Fletcher
was pretending to tie Anderson up, defendant claimed "they got [him] blocked
off[ and he could] go nowhere."
During its summation, the State pointed out the inconsistencies in
defendant's testimony and argued he did not act in self-defense. It argued
defendant could recall every detail about Fletcher's and Anderson's actions but
could not remember the details about when he claimed he was tied up. The State
asked the jury to consider why Fletcher would tie Anderson up, rather than just
leave the apartment when defendant was drifting in and out of consciousness or
when he dropped his knife, and why would they bind defendant's feet but not his
A-3502-21 14 hands. There were no bindings on defendant's legs when police arrived, but
there were bindings on Anderson that were so tight, they were cutting off
circulation to his hands. The State pointed out defendant did not leave the
apartment, despite the opportunity to do so. Moreover, Fletcher and Anderson
had numerous defensive wounds to their hands, whereas defendant did not.
At the conclusion of the case, the trial judge held a charge conference, and
regarding the issues raised by defendant here, noted the "self-defense charge
obviously is included." The judge asked counsel if they were satisfied with the
proposed self-defense charge, which addressed self-defense but did not state the
apartment was defendant's dwelling, and both sides responded the instructions
were satisfactory.
Following summations, the trial judge instructed the jury at length on self-
defense and the duty to retreat. Consistent with instruction that was prepared
and discussed during the charge conferences, the charge did not instruct the jury
that defendant had no duty to retreat in his own home. The defense did not
object to the jury charge. The jury subsequently returned a guilty verdict.
At sentencing, the trial judge found aggravating factors three, six, and
nine, N.J.S.A 2C:44-1(a)(3), (6), and (9), and no mitigating factors. He granted
the State's motion for an extended term and sentenced defendant to life
A-3502-21 15 imprisonment on count three, which ran concurrent to two twenty-year sentences
on counts one and two, and two thirty-year sentences on counts four and five.
Defendant raises the following points on appeal:
POINT I
DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY A FAULTY SELF-DEFENSE JURY CHARGE THAT FAILED TO CORRECTLY INSTRUCT THE JURY THAT DEFENDANT HAD NO DUTY TO RETREAT IN HIS OWN DWELLING. U.S. CONST. AMEND. XIV; N.J. CONST. ART. 1, PARS. 1, 9, AND 10. (NOT RAISED BELOW).
POINT II
THE IMPOSITION OF AN EXTENDED-TERM SENTENCE OF LIFE FOR KIDNAPPING WAS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE WHERE DEFENDANT RAISED A BONA FIDE CLAIM OF SELF-DEFENSE.
I.
In Point I, defendant argues the self-defense instruction was erroneous
because the trial judge did not instruct the jury defendant had no duty to retreat
in his own apartment. Defendant asserts the no-retreat exception applied
because he was in the process of moving into the apartment when the incident
occurred, and the apartment was his dwelling. The instruction was critical
because so much of the State's case centered on whether and why he did not
A-3502-21 16 retreat. He argues the charge led to an unjust result because there was a "very
real possibility that the jury found self-defense to be inapplicable because of a
duty to retreat from the dwelling—a duty defendant did not have under the law."
"When a defendant fails to object to an error or omission [about a jury
charge] at trial, we review for plain error. Under that standard, we disregard
any alleged error 'unless it is of such a nature as to have been clearly capable of
producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016)
(quoting R. 2:10-2). Reversal is warranted only where an error raises
"reasonable doubt . . . as to whether the error led the jury to a result it otherwise
might not have reached." Ibid. (quoting State v. Jenkins, 178 N.J. 347, 361
(2004)). "The mere possibility of an unjust result is not enough." Ibid. A jury
instruction is particularly "crucial to the jury's deliberations on the guilt of a
criminal defendant," and "'[e]rrors [having a direct impact] upon these sensitive
areas of a criminal trial are poor candidates for rehabilitation' under the plain
error theory." State v. Jordan, 147 N.J. 409, 422-23 (1997) (quoting State v.
Simon, 79 N.J. 191, 206 (1979)).
A "trial court must give 'a comprehensible explanation of the questions
that the jury must determine, including the law of the case applicable to the facts
that the jury may find.'" State v. Baum, 224 N.J. 147, 159 (2016) (quoting State
A-3502-21 17 v. Green, 86 N.J. 281, 287-88 (1981)). Accordingly, "the court has an
'independent duty . . . to ensure that the jurors receive accurate instructions on
the law as it pertains to the facts and issues of each case, irrespective of the
particular language suggested by either party.'" Ibid. (quoting State v. Reddish,
181 N.J. 553, 613 (2004)).
Evidence should be viewed in "the light most favorable to the defendant"
when deciding whether a defendant is entitled to a jury instruction. State v.
Galloway, 133 N.J. 631, 648-49 (1993) (citing State v. Breakiron, 108 N.J. 591,
617 (1987)). However, when reviewing a jury instruction for error, it "must be
evaluated in the light of the totality of the circumstances—including all the
instructions to the jury, the arguments of counsel, whether the weight of the
evidence was overwhelming, and other relevant factors." State v. Camacho, 218
N.J. 533, 551 (2014) (quoting Kentucky v. Whorton, 441 U.S. 786, 789 (1979)).
The use of force against another person is "justifiable when the actor
reasonably believes that such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by such other person."
N.J.S.A. 2C:3-4(a). Deadly force is not justifiable when an actor can "avoid the
necessity of using such force with complete safety by retreating." N.J.S.A.
2C:3-4(b)(2)(b).
A-3502-21 18 However, "[t]he actor is not obliged to retreat from his dwelling, unless
he was the initial aggressor." N.J.S.A. 2C:3-4(b)(2)(b)(i). The Model Jury
Charges reiterate that where applicable, "[a]n exception to the rule of retreat
however, is that a person need not retreat from his or her own dwelling,
including the porch, unless he/she was the initial aggressor." Model Jury
Charges (Criminal), "Justification—Self Defense: In Self Protection (N.J.S.A.
2C:3-4)" at 3 (rev. Nov. 13, 2023).
In order to succeed on a self-defense claim where the defendant used
deadly force, the jury must find that: (1) the defendant had an honest and
reasonable belief that deadly force was immediately necessary to protect himself
or herself from serious bodily injury or death, and (2) the defendant did not
provoke the attacker. N.J.S.A. 2C:3-4(a) and (b)(2)(a); State v. Gentry, 439 N.J.
Super. 57, 66-69 (App. Div. 2015). Whether the defendant's belief was
reasonable is measured by what the jury, not the defendant, considers reasonable
under an objective standard. State v. Bess, 53 N.J. 10, 16 (1968). Accord State
v. Handy, 215 N.J. 334, 356-57 (2013).
Applying these principles, we discern no plain error that led to an unjust
result. The State presented substantial objective evidence showing the
apartment was not defendant's dwelling. Defendant presented only his self-
A-3502-21 19 serving testimony. Moreover, given the guilty verdict returned on fourteen of
the nineteen counts, it is clear the jury did not believe defendant's testimony and
was obviously convinced he was the aggressor. Indeed, the jury found defendant
guilty of kidnapping Fletcher, Anderson, and L.I. This required them to find he
purposely acted to unlawfully confine his victims for a substantial period with
the purpose to inflict bodily injury or to terrorize them. N.J.S.A. 2C:13-1(b)(2).
The jury further found defendant abused or neglected L.I. and purposely
harassed Fletcher. The evidence simply did not support a finding of self-
defense, regardless of whether the apartment belonged to defendant.
II.
In Point II, defendant argues the life sentence he received for count three
was excessive. He claims the court failed to find mitigating factors, including
that: he acted under strong provocation; there were substantial grounds tending
to excuse or justify his conduct; and the victims induced or facilitated
defendant's conduct. N.J.S.A. 2C:44-1(b)(3), (4), and (5). He reiterates the
mistaken jury charge on self-defense led the jury to convict him on the first-
degree kidnapping charge in count three, which in turn prevented the judge from
considering these mitigating factors, leading to an unjust sentence.
A-3502-21 20 On appeal, we review a sentencing decision for an abuse of discretion.
State v. Miller, 237 N.J. 15, 28 (2019). We must "consider whether the trial
court has made findings of fact that are grounded in competent, reasonably
credible evidence and whether 'the factfinder [has] appl[ied] correct legal
principles in exercising its discretion.'" State v. Blackmon, 202 N.J. 283, 297
(2010) (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)).
We may not substitute our judgment for that of the sentencing court. State v.
Fuentes, 217 N.J. 57, 70 (2014). A sentence will be affirmed unless a trial court
violated the sentencing guidelines, found aggravating or mitigating factors not
based on competent and credible evidence in the record, or applied the
guidelines in such a manner as to "make[] the sentence clearly unreasonable so
as to shock the judicial conscience." Miller, 237 N.J. at 28 (quoting Fuentes,
217 N.J. at 70).
At sentencing, a court must identify and balance the aggravating and
mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b) and explain the
factual basis supporting its findings. Fuentes, 217 N.J. at 73, 81. "It is sufficient
that the trial court provides reasons for imposing its sentence that reveal the
court's consideration of all applicable mitigating factors in reaching its
sentencing decision." State v. Bieniek, 200 N.J. 601, 609 (2010). "After
A-3502-21 21 balancing the factors, the trial court may impose a term within the permissible
range for the offense." Id. at 608.
A defendant convicted of first-degree kidnapping "shall be sentenced" to
a term of imprisonment "for a specific term of years which shall be between
[thirty] years and life imprisonment." N.J.S.A. 2C:43-7. Under N.J.S.A. 2C:44-
3(a), this sentence may be extended if the defendant is a "persistent offender"
who is at least twenty-one years of age and "who has been previously convicted
on at least two separate occasions of two crimes, committed at different times,
when he was at least [eighteen] years of age." Defendant conceded he was
eligible for an extended term under this statute due to his age and prior record ,
which included multiple convictions in New Jersey and in three other states, one
of which was a federal offense. The judge noted defendant had spent most of
his adult life in prison.
The sentencing record shows the trial judge considered the mitigating
factors argued by defendant but found them inapplicable. As relates to the
arguments raised on appeal, the judge found the verdict showed the jury
"emphatically" rejected defendant's self-defense theory. Moreover, based on the
judge's observations of the trial, he found defendant's testimony "was self-
serving, and not credible, and very simply not true."
A-3502-21 22 The judge rejected defendant's argument regarding mitigating factor two,
noting he agreed with the jury's finding that "defendant's conscious object was
to kill." Defendant's actions, therefore, were not merely negligent or reckless
but purposeful.
The judge rejected mitigating factor three because defendant's actions
were the result of "not having his evening go exactly the way he wanted it to
go," not, as defendant argued, a result of any provocation. Mitigating factor
four was also inapplicable because there was "no basis to justify . . . defendant's
conduct."
As for the aggravating factors, the judge considered defendant's past
charges, convictions, and sentences, and concluded defendant was likely to
reoffend because of his lengthy criminal history. Further, the sentence would
deter defendant and protect society.
The trial judge found "[t]he aggravating factors substantially outweigh the
non-existent mitigating factors." He concluded the extended sentence was
appropriate.
Having considered defendant's arguments in light of the record, we are
satisfied the sentence was supported by the credible evidence in the record and
was not an abuse of discretion. The trial judge's findings are consistent with the
A-3502-21 23 sentencing guidelines and applicable law. The evidence in the record supported
the application of the aggravating factors found by the judge and did not support
the application of any of the mitigating factors argued by defendant at
sentencing or on appeal. Under the facts and circumstances presented,
defendant's extended sentence of life imprisonment does not shock the judicial
conscience.
Affirmed.
A-3502-21 24