NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2804-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARQUISE HAWKINS,
Defendant-Appellant. _______________________
Argued May 14, 2025 – Decided July 18, 2025
Before Judges DeAlmeida and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-01-0200.
Nadine Kronis, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Nadine Kronis, of counsel and on the briefs).
Frank J. Ducoat, Deputy Chief Assistant Prosecutor, argued the cause for respondent (Theodore N. Stephens, II, Essex County Prosecutor, attorney; Frank J. Ducoat, of counsel and on the brief).
PER CURIAM Defendant Marquise Hawkins appeals the sentence he received on
resentencing for the murder of a teenage boy during an armed robbery, the armed
robbery of the murder victim and three others, and related offenses. We affirm
defendant's sentence, but remand for the court to consider the practical effect of
the consecutive sentences it imposed on defendant's parole eligibility date and
to correct an error in the May 12, 2023 judgment of conviction (JOC).
I.
On February 17, 2012, defendant, then seventeen years old, and his two
codefendants, twenty-year-old Haroon Perry, and sixteen-year-old Azim
Brogsdale, drove around Irvington for approximately six hours looking for
victims to rob. After seeing four teenage boys walking together on a sidewalk,
Perry parked the car. Brogsdale and Perry, both armed with handguns, exited
the vehicle and robbed the group at gunpoint. Defendant remained in the
backseat of the car.
Brogsdale told the victims to empty their pockets and "if they ran they
would get shot." When one victim attempted to escape, defendant shouted from
the car, "[g]et the guy in the yellow jacket." Brogsdale and Perry opened fire,
killing sixteen-year-old Khalil Williams, who was a victim of the robbery but
A-2804-22 2 not the victim wearing the yellow jacket. Defendant and his codefendants took
cash and cell phones from the victims. Defendant kept one of the cell phones.
Because defendant was a juvenile when the offenses were committed,
jurisdiction of his delinquency case was waived to the Law Division from the
Family Part pursuant to Rule 5:22-2. An Essex County grand jury subsequently
indicted defendant, Perry, and Brogsdale, charging them with: (1) second-
degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1;
(2) four counts of first-degree robbery, N.J.S.A. 2C:15-1; (3) first-degree felony
murder, N.J.S.A. 2C:11-3(a)(3); (4) first-degree conspiracy to commit murder,
N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1)-(2); (5) first-degree knowing or
purposeful murder, N.J.S.A. 2C:11-3(a)(1)-(2); (6) two counts of second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and (7) second-degree
possession of handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).
Defendant was tried separately and before his codefendants. The jury
convicted him on all counts except one unlawful possession of a weapon count.
At his May 8, 2015 sentencing, the trial court found aggravating factor
one, N.J.S.A. 2C:44-1(a)(1), the nature and circumstances of the offense; three,
N.J.S.A. 2C:44-1(a)(3), the risk defendant will reoffend; and nine, N.J.S.A.
2C:44-1(a)(9), the need to deter defendant and others from violating the law.
A-2804-22 3 When finding aggravating factor one, the court noted defendant's role in the
offense, explaining that "the shooting did not start, nor did it appear that there
was any intention to shoot anyone until the order was given by" defendant , as
well as defendant's receipt of a cell phone taken from one of the victims.
The court found no mitigating factors. Although noting defendant's prior
juvenile and criminal history consisted of only one dismissed deferred
disposition for shoplifting, the court declined to find mitigating factor seven,
N.J.S.A. 2C:44-1(b)(7), defendant has no history of prior delinquency or
criminal activity. The court stated, however, it would consider that defendant
had no significant history of delinquency or criminal activity. The court also
rejected mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13), conduct of youthful
defendant substantially influenced by more mature defendant, because
defendant gave the command to shoot the victim, appeared to be influencing
Brogsdale, and was not influenced by Perry, the only adult defendant.
The court merged the conspiracy to commit robbery conviction with the
four robbery convictions and imposed a fifteen-year term of incarceration with
an eighty-five-percent period of parole ineligibility pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, on each robbery conviction. The
court directed those sentences be served concurrently with each other.
A-2804-22 4 The court merged the conspiracy to commit murder conviction and the
possession of a weapon for an unlawful purpose conviction with the knowing
and purposeful murder conviction. The court imposed a forty-year term of
imprisonment with an eighty-five-percent period of parole ineligibility pursuant
to NERA on the felony murder conviction and a forty-year term of imprisonment
with an eighty-five-percent period of parole ineligibility pursuant to NERA on
the knowing and purposeful murder conviction.
The court ordered the sentences on the murder convictions be served
concurrently with each other and consecutively to the sentences imposed on the
robbery convictions. The court found "notwithstanding the fact that" the crimes
"occurred at the same place, in a relatively short span of time," they were
"separate acts of violence" and had "predominately independent objectives."
Finally, the court imposed an eight-year term of incarceration with a four-
year period of parole ineligibility on the unlawful possession of a weapon
conviction. The court directed the sentence on the unlawful possession of a
weapon conviction be served concurrently with the other sentences.
A-2804-22 5 Thus, the court sentenced defendant to an aggregate term of fifty-five
years of imprisonment, with an eighty-five-percent, or a forty-six-year-and-
nine-month, period of parole ineligibility. 1
We affirmed defendant's convictions. State v. Hawkins, No. A-4848-14
(App. Div. Apr. 9, 2018) (slip op. at 37). We rejected defendant's argument the
trial court erred by ordering the sentences for the robbery convictions be served
consecutively to the sentences for the murder convictions. Id. at 25-28.2 We
also rejected defendant's argument the aggravating and mitigating factors
applied by the court were not supported by the record. Id. at 28-30.3
1 In June 2015, pursuant to a negotiated plea agreement, Perry pled guilty to aggravated manslaughter, conspiracy, and two counts of robbery and agreed to testify at Brogsdale's trial. The court sentenced Perry to an aggregate seventeen- year term of imprisonment, with an eighty-five-percent period of parole ineligibility pursuant to NERA. In 2017, a jury convicted Brogsdale of all charges. The court sentenced Brogsdale to an aggregate term of fifty-five years in prison with a parole ineligibility period of fifty years and three months. We affirmed Brogsdale's convictions and remanded for resentencing because we found insufficient support for the sentencing court's application of an aggravating factor not applicable here. State v. Brogsdale, No. A-4782-16 (App. Div. Aug. 8, 2019) (slip op. at 33). 2 We agreed with defendant and the State that the felony murder conviction should have been merged with the purposeful and knowing murder conviction. Id. at 28 n.5. We directed the trial court merge those convictions on remand. 3 Although the JOC listed aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's prior criminal record and the severity of those offenses, the
A-2804-22 6 However, we found defendant's aggregate sentence of fifty-five years with
forty-six years and nine months of parole ineligibility "approaches" the practical
equivalent of a life sentence without parole under State v. Zuber, 227 N.J. 422,
446-47 (2017), which was issued after defendant was sentenced. Id. at 34, 37.
In Zuber, the Court held the holding in Miller v. Alabama, 567 U.S. 460, 465
(2012), that the Eighth Amendment requires "a sentencing judge 'take into
account how children are different, and how those differences counsel against
irrevocably sentencing them to a lifetime in prison,' applies with equal strength
to a sentence that is the practical equivalent of life without parole." 227 N.J. at
446-47 (quoting Miller, 567 U.S. at 465). The Miller Court set forth five factors,
which will be discussed in greater detail below, that a sentencing court must
consider when sentencing a juvenile to a sentence of life without the possibility
of parole. 567 U.S. at 477-78. In our opinion on defendant's direct appeal, we
noted the Zuber "Court explained that the 'proper focus' under the Eighth
Amendment is 'the amount of real time a juvenile will spend in jail and not the
formal label attached to his sentence.'" Hawkins, slip op. at 34 (quoting Zuber,
227 N.J. at 429).
court did not find this aggravating factor at sentencing. Id. at 30 n.6. We directed the trial court delete the mistaken reference to this aggravating factor from the JOC after resentencing. Ibid. A-2804-22 7 We also observed that in Zuber, the Court held in addition to the factors
set forth in Miller, a court sentencing a juvenile must consider the principles
established in State v. Yarbough, 100 N.J. 627, 643-44 (1985), and "the
aggregate impact of consecutively-imposed sentences . . . bearing in mind the
real-world practical expectation of when such an offender with consecutive
aggregate sentences might be eligible for parole." Hawkins, slip op. at 35 (citing
Zuber, 227 N.J. at 449-50).
We therefore vacated defendant's sentence and remanded for resentencing
and for the trial court to consider the factors established in Miller, including
defendant's "'immaturity, impetuosity, and failure to appreciate risks and
consequences'; 'family and home environment'; family and peer pressures;
'inability to deal with police officers or prosecutors' or his own attorney; and
'the possibility of rehabilitation.'" Id. at 36 (quoting Zuber, 227 N.J. at 453). In
addition, we directed the court to consider the practical implication consecutive
sentences would have on defendant's eligibility for parole. Id. at 35.
The original sentencing judge retired prior to issuance of our decision. On
remand, a new judge held a two-day hearing at which defendant presented the
testimony of Megan Perrin, an expert neuropsychologist. In addition, defendant,
his stepfather, his cousin, and the murder victim's mother made statements.
A-2804-22 8 Having interviewed defendant and reviewed his educational, juvenile,
criminal, and prison records, social history, familial relationships, and the
environment in which he was raised, as well as the trial transcripts, Perrin opined
defendant acted impetuously when he told his cohorts to "get" the boy in the
yellow jacket and without consideration of the significant risk of death created
by his command. She also opined defendant's decision-making and ability to
navigate the legal system were impaired by his upbringing and age, but he is
capable of rehabilitation. Perrin relied in part on scientific evidence with respect
to brain development in teenage boys. She opined that because of his immature
brain development, defendant's responses to highly-charged emotional
situations, such as the armed robbery, were the product of impulsive instincts
overwhelming rational decision-making, with little regard for potential negative
consequences. Perrin acknowledged defendant's searching for robbery victims
over a six-hour period was not impetuous.
Perrin opined defendant's participation in the robbery and murder were
motivated, in part, by his desire to impress Perry, who had a reputation in the
community as a successful drug dealer with access to women and money.
According to Perrin, defendant's motivation for acceptance by Perry may have
been attributable to the absence of a consistent father figure in defendant's life
A-2804-22 9 during his childhood and adolescence, as well as his father's position in the
community as a respected drug dealer who had served time in State prison.
When he was not incarcerated, defendant's father intermittently appeared in
defendant's life, but also absented himself for long periods. Defendant's access
to his father was limited to his presence during his father's street level drug
dealing.
In addition, Perrin noted defendant's repeated exposure to violent acts
against others during his childhood likely affected his participation in the
robbery and murder. Defendant witnessed several adults rob his mother, was
present at a block party when gunshots were fired, and witnessed an adult shot
another adult in the street near his home.
Perrin testified defendant had limited exposure to the legal system prior
to his arrest for the robberies and murder. This left him, in Perrin's opinion,
with limited capacity to navigate the legal system and deal with police and
prosecutors. According to Perrin, defendant did not participate in a meaningful
way in plea negotiations and was not engaged in his defense, likely because of
depression and a strong desire not to implicate his codefendants. In addition,
she noted defendant did not have a trusting relationship with his trial counsel
A-2804-22 10 and relied on the advice of inmates at the county jail more than advice from his
attorney.
Perrin opined defendant is capable of rehabilitation based on his lack of
prison infractions while in State custody and his participation in numerous
educational programs while incarcerated. She noted defendant's regret for the
death of his victim, acknowledgment of the pain he caused the victim's family,
and recognition of the harm his conduct inflicted on his family.
In his statement to the resentencing court, defendant took responsibility
for his actions and apologized to the victim's family and his family. He
requested the court consider his impetuosity at the time of the crimes and the
extent to which he matured during his incarceration.
On March 27, 2023, the court resentenced defendant. The court
interpreted our remand as limited to: (1) application of the Miller factors to
determine the appropriate length of defendant's sentence; (2) merger of the
felony murder conviction with the knowing and purposeful murder conviction;
and (3) removal of aggravating factor six from the JOC. In addition, the court
noted defendant was to be sentenced as he stood before the court at resentencing,
State v. Jaffe, 220 N.J. 114, 116 (2014), and entitled to the benefit of mitigating
factor fourteen, N.J.S.A. 2C:44-1(b)(14), defendant was under twenty-six years
A-2804-22 11 old at the time of the commission of the offenses, which was enacted in 2020.
See L. 2020, c. 110, § 1 (eff. Oct. 19, 2020).
In its oral opinion, the court applied the factors set forth in Miller. The
court found defendant's decision to search for victims to rob over a prolonged
period and command to his cohorts to "get" one of the victims were not
impetuous. Perrin conceded the hours-long search for victims was not
impetuous and the court found defendant ordered Brogsdale to kill the victim
because he wanted to avoid the consequences of being apprehended.
The court also found defendant produced no evidence establishing he
suffered physical or emotional abuse as a youth or lived in a dysfunctional home
environment. To the contrary, the court found defendant had a supportive
family, including a positive male role model in his stepfather, who was a
consistent presence in defendant's life, even if defendant chose not to engage
with him until his late teenage years. While defendant grew up poor and was
exposed to violence in his neighborhood, the court found insufficient evidence
he was raised in an oppressive environment from which he could not escape.
The court found defendant did not commit his offenses because of peer
pressure. Instead, the court concluded "[t]he record is clear as to defendant's
level of culpability as to the planning and participation in the pre -meditated
A-2804-22 12 robbery conduct." The court also found it was not until defendant's command
to "get" the victim in the yellow jacket that the younger Brogsdale, under
pressure from defendant, began shooting at the victims.
In addition, the court found defendant did not establish he might have been
convicted of lesser offenses if not for incompetencies associated with his youth.
The court found defendant's failure to comprehend the criminal process and trust
his attorney "is not unique or necessarily based upon his age."
Noting defendant did not mention the victim's name in his statement
expressing his remorse for his crimes, the court found defendant did not appear
to truly acknowledge his full culpability. However, the court found defendant
established he is capable of rehabilitation, in light of his infraction-free prison
record and participation in rehabilitative services while incarcerated.
The court incorporated the original sentencing court's findings that
aggravating factors one, three, and nine applied. As noted above, the court also
applied mitigating factor fourteen, which the court gave "great weight."
The court did not alter the merger decisions of the original sentencing
court, other than merging the felony murder conviction with the knowing and
purposeful murder conviction, as directed in our remand. The court sentenced
A-2804-22 13 defendant to a thirty-year term of imprisonment with a thirty-year period of
parole ineligibility on the knowing and purposeful murder conviction .
The court did not alter the sentences imposed on the four robbery
convictions. Thus, the court sentenced defendant to a fifteen-year term of
imprisonment, with an eighty-five-percent period of parole ineligibility pursuant
to NERA, on each robbery conviction. The period of parole ineligibility on each
sentence for robbery is twelve years and nine months. The court directed the
sentences on the robbery convictions be served concurrently with each other and
consecutively to the sentence on the murder conviction.
The court did not change the sentence of eight years with a four-year
period of parole ineligibility for possession of a weapon for an unlawful purpose.
The court directed the sentence for that count be served concurrently with the
sentences for murder and the robberies.
Thus, the court sentenced defendant to an aggregate sentence of forty-five
years imprisonment, which is ten years less than the aggregate sentence of fifty-
five years imprisonment he originally received. However, the court sentenced
defendant to an aggregate period of parole ineligibility of forty-two years and
nine months, which is four years less than the period of parole ineligibility to
A-2804-22 14 which he was originally sentenced. 4 A May 12, 2023 JOC memorialized the
sentence imposed on defendant. 5
This appeal followed. Defendant raises the following arguments:
POINT I
THE RESENTENCING COURT'S FAILURE TO PROPERLY CONSIDER THE MILLER FACTORS DENIED [DEFENDANT] DUE PROCESS AND RESULTED IN THE IMPOSITION OF AN AGGREGATE SENTENCE THAT WAS FIVE YEARS LONGER THAN THE ONE RECOMMENDED BY THE STATE. ACCORDINGLY, HE IS ENTITLED TO A NEW RESENTENCING.
A. THE MILLER FACTORS WEIGH STRONGLY AGAINST THE IMPOSITION OF A LENGTHY SENTENCE.
4 After serving twenty years of his sentence, defendant will be eligible to argue for a reduction in his sentence and parole-ineligibility period based on a demonstration of maturity and rehabilitation during his incarceration . State v. Comer, 249 N.J. 359, 370 (2022). 5 The May 12, 2023 JOC indicates the court imposed a sentence on the knowing and purposeful murder conviction of thirty years of imprisonment with an eighty-five-percent period of parole ineligibility. This differs from the term imposed at resentencing. The parties' briefs do not address this apparent error. "In the event of a discrepancy between the court's oral pronouncement of sentence and the sentence described in the [JOC], the sentencing transcript controls and a corrective judgment is to be entered." State v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016). We therefore remand for entry of a JOC reflecting a sentence of thirty years with a thirty-year period of parole ineligibility for defendant's knowing and purposeful murder conviction. A-2804-22 15 i. THE COURT FAILED TO CONSIDER THE IMPACT OF [DEFENDANT'S] YOUTH ON HIS PARTICIPATION IN THE OFFENSE, AS REQUIRED UNDER MILLER FACTOR ONE.
ii. THE COURT FAILED TO CONSIDER HOW [DEFENDANT'S] CONDUCT WAS AFFECTED BY PEER PRESSURE – INCLUDING HIS ADULT CO- DEFENDANT'S PARTICIPATION IN THE OFFENSE – AS REQUIRED UNDER MILLER FACTOR THREE.
iii. THE COURT FAILED TO PROPERLY CONSIDER THE EFFECT OF [DEFENDANT'S] YOUTH ON HIS ABILITY TO DEAL WITH POLICE AND PROSECUTORS AND TO ASSIST IN HIS OWN DEFENSE, AS REQUIRED UNDER MILLER FACTOR FOUR.
B. THE RESENTENCING COURT DID NOT CONDUCT ANY ANALYSIS WHEN IMPOSING CONSECUTIVE SENTENCES. HAD IT DONE SO, IT WOULD HAVE IMPOSED CONCURRENT SENTENCES.
C. THE RESENTENCING COURT IMPROPERLY ADOPTED THE ORIGINAL AGGRAVATING FACTORS BASED ON THE REASONS PROVIDED BY THE 2015 SENTENCING COURT, FAILED TO ADDRESS THE MITIGATING FACTORS RAISED BY [DEFENDANT], AND FAILED TO ORDER A NEW PRESENTENCE REPORT.
i. HAD THE RESENTENCING COURT PROPERLY ASSESSED THE AGGRAVATING FACTORS IN LIGHT OF THE EVIDENCE PRESENTED AT RESENTENCING AND THE
A-2804-22 16 MILLER FACTORS, IT WOULD HAVE GIVEN THEM MINIMAL WEIGHT AT BEST.
ii. THE RESENTENCING COURT FAILED TO ADDRESS THE MITIGATING FACTORS REQUESTED BY [DEFENDANT], WHICH WERE AMPLY SUPPORTED BY THE RECORD.
D. DESPITE FINDING [DEFENDANT] CLEARLY CAPABLE OF REHABILITATION AND APPLYING MILLER FACTOR FIVE, THE COURT ONCE MORE IMPOSED AN EXTREMELY LENGTHY SENTENCE WITH A NEARLY IDENTICAL PERIOD OF PAROLE INELIGIBILITY.
II.
"Appellate review of the length of a sentence is limited." State v. Miller,
205 N.J. 109, 127 (2011). An appellate court "must not substitute its judgment
for that of the sentencing court[,]" State v. Fuentes, 217 N.J. 57, 70 (2014), and
is bound to affirm the sentence absent a "clear abuse of discretion." State v.
Roth, 95 N.J. 334, 363 (1984).
Appellate courts must affirm the sentence of a trial court unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not "based upon competent credible evidence in the record;" or (3) "the application of the guidelines to the facts" of the case "shock[s] the judicial conscience."
[State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting Roth, 95 N.J. at 364-65).]
A-2804-22 17 A. Application of Miller Factors.
Our remand directed the court to apply the holdings in Zuber and Miller
to determine whether the length of defendant's original sentence comported with
the Eighth Amendment. In Miller, 567 U.S. at 489, the Court held the Eighth
Amendment prohibits the imposition of a mandatory life sentence without parole
on a defendant convicted of homicide while a juvenile. "[T]he Court grounded
its decision[] on commonly accepted scientific and sociological notions about
the unique characteristics of youth and the progressive emotional and behavioral
development of juveniles." State ex rel. C.K., 233 N.J. 44, 68 (2018).
In Zuber, 227 N.J. at 446-47, our Supreme Court held that "Miller's
command that a sentencing judge 'take into account how children are different,
and how those differences counsel against irrevocably sentencing them to a
lifetime in prison,' applies with equal strength to a sentence that is the practical
equivalent of life without parole." (quoting Miller, 567 U.S. at 480) (citation
omitted). In addition, the Court held that "the force and logic of Miller's
concerns apply broadly: to cases in which a defendant commits multiple
offenses during a single criminal episode; to cases in which a defendant commits
multiple offenses on different occasions; and to homicide and non-homicide
cases." Id. at 448.
A-2804-22 18 The Court held the five factors set forth in Miller must be considered when
sentencing defendants to lengthy sentences for crimes committed as a juvenile.
Those factors are:
Mandatory life without parole [or its equivalent] for a juvenile
[1] precludes consideration of his chronological age and its hallmark features – among them, immaturity, impetuosity, and failure to appreciate risks and consequences.
[2] prevents taking into account the family and home environment that surrounds him – and from which he cannot usually extricate himself – no matter how brutal or dysfunctional.
[3] neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him.
[4] ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth – for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys.
[5] disregards the possibility of rehabilitation even when the circumstances most suggest it.
[Miller, 567 U.S. at 477-78 (citations omitted).]
A-2804-22 19 Zuber noted, "even when judges begin to use the Miller factors at sentencing, a
small number of juveniles will receive lengthy sentences with substantial
periods of parole ineligibility, particularly in cases that involve multiple
offenses on different occasions or multiple victims." 227 N.J. at 451.
Defendant argues the resentencing court erred when it found he only
established one of the Miller factors. In addition, he argues the court, although
finding defendant was capable of rehabilitation, did not afford him meaningful
relief when it reduced the sentence on his murder conviction by ten years
because the imposition of consecutive sentences for the murder and robbery
convictions effectively reduced his period of parole ineligibilty by only four
years. We disagree.
The resentencing court's findings with respect to the Miller factors are
sufficiently supported by the record. The court, having heard the testimony of
defendant's expert, found her opinion lacked crediblity in many respects.
The court rejected the expert's opinion defendant's command to "get" the
victim was impetuous. The court found instead that defendant was aware of the
potential consequences of being caught participating in an armed robbery and
sought to prevent the victim's escape to avoid detection. We cannot conclude
the court's finding on this point lacks sufficient support in the record.
A-2804-22 20 We also see no basis on which to disturb the court's finding the evironment
in which defendant was raised, while difficult, was not so extreme as to warrant
further reduction in his sentence. Defendant was raised by his biological mother
and lived with his six half-sisters. While the family faced financial difficulties,
the record contains no evidence defendant was deprived of food or lodging. Nor
is there evidence defendant was subjected to physical or emotional abuse or that
there was substance abuse in the home. Defendant witnessed violence in his
neighborhood, including the robbery of his mother. Yet, the record contains no
evidence defendant was subjected to violent acts as a child.
Defendant's father was a known drug dealer and convicted felon who was
often incarcerated. There is no doubt his frequent absences and involvement in
illegal activity were negative influences on defendant. Yet, a stepfather was
present and attempted to nurture a relationship with defendant. Defendant chose
instead to spend time on the streets where his father was selling drugs and where
he connected with his soon-to-be codefendants. While these circumstances are
unfortunate, we do not find the resentencing court erred when it concluded they
did not warrant a further reduction in defendant's sentence.
We also see no basis on which to disturb the resentencing court's
conclusion defendant's criminal acts were not the result of him succumbing to
A-2804-22 21 peer pressure or undertaken to impress Perry. The record supports the
conclusion defendant planned the armed robbery with his codefendants and gave
the order to "get" the victim. Brogsdale, who is younger than defendant,
executed defendant's order when he shot and killed Williams.
The resentencing court found defendant's lack of trust in his trial attorney,
as well as his desire not to implicate his codefendants, were not unique and not
necessarily attributable to defendant's age. Our review of the record identified
no evidence defendant would have secured a more favorable outcome had he not
been youthful. Defendant produced no evidence he was offered a plea bargain
or that he would have been willing to testify against his codefendants had such
an offer been made. Nor does the record establish that defendant, who was
twenty at the time of trial, was unable to assist his counsel. The record supports
the conclusion defendant was dedicated to refusing to cooperate with the State
lest he be branded a "snitch" in his community.
B. Aggravating and Mitigating Factors.
We detect no error in the court's finding, like the original sentencing court,
that aggravating factors one, three, and nine were applicable. We affirmed the
original sentencing court's application of those factors and are not convinced by
defendant's argument that developments since the original sentencing
A-2804-22 22 invalidated their applicability. Nor are we persuaded by defendant's argument
the resentencing court was required to order the production of a new presentence
report. He cites no authority in support of that contention and we recognize
neither the Rules of Court nor the Code of Criminal Justice mandate a new
presentence report on resentencing. Pursuant to N.J.S.A. 2C:44-6(a), however,
"[t]he court may order a presentence investigation" even when an investigation
is not "required by the Rules of Court." Here, however, the court was fully
apprised of the progress defendant made while incarcerated, including through
the testimony of his expert neuropsychologist. We therefore conclude an
updated presentence report was not necessary.
Notably, the resentencing court found mitigating factor fourteen, enacted
after the original sentence was imposed, applicable. The court gave "great
weight" to that factor, which, along with the court's finding defendant was
capable of rehabilitation under Zuber, resulted in a ten-year reduction in his
sentence for the knowing and purposeful murder conviction. Our review of the
record reveals no error in the resentencing court's application and weighing of
the aggravating and mitigating factors.
A-2804-22 23 C. Effect of Consecutive Sentences.
We also find no error in the resentencing court's imposition sentences for
the robbery convictions to be served consecutively to the sentence for the murder
conviction. In the direct appeal, we affirmed the imposition of consecutive
sentences for those convictions for several reasons. The principles supporting
our decision remain the same after resentencing.
We agree, however, with defendant's argument that the resentencing court
did not consider the practical effect of the consecutive sentences on when he
will be eligible for release on parole. As noted above, after resentencing
defendant will be eligible for parole after serving forty-two years and nine
months, which is four years sooner than he would have been eligible for parole
under his original sentence. We remand for the resentencing court to consider
the aggregate impact of consecutively-imposed sentences on the "real-time
outcome" of defendant's eligibility for parole. See Zuber, 227 N.J. at 449-50.
We offer no view on the outcome of the remand.
We have considered defendant's remaining arguments and conclude they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
A-2804-22 24 Defendant's sentence is affirmed. The matter is remanded for the court to
consider the practical effect of the consecutive sentences on defendant's parole
eligibility date and entry of an amended JOC reflecting a sentence of thirty years
imprisonment with a thirty-year period of parole ineligibility for count eight of
the indictment, knowing and purposeful murder. We do not retain jurisdiction.
A-2804-22 25