NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0772-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAZMECK HOLLINGSWORTH, a/k/a DARNELL DRAYTON, KAZ HOLLINGSWORTH, DARNEL DRAYTON, MARCUS N. FISHER, KAZMACK HOLLINGSWORTH, KAZMECK HOLLINSWORTH, KWAZEEK FISHER, KWA-ZZEK FISHER, and BIZZ,
Defendant-Appellant.
________________________________________________________________
Submitted February 7, 2017 – Decided August 18, 2017
Before Judges Espinosa and Suter.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-02-0648.
Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In his appeal, defendant argues his convictions for
aggravated assault and weapons offenses should be reversed because
the trial judge erred in failing to grant a motion for a mistrial
and because prosecutorial misconduct deprived him of a fair trial.
He also argues the sentence imposed was manifestly excessive. We
affirm.
I.
The evidence relevant to defendant's arguments can be
summarized as follows.
The victim, R.D., was shot several times at approximately
2:30 a.m. on June 28, 2009. Responding to a 911 call, Camden
Police Officer Craig Milbury found R.D. lying on the steps outside
an apartment, bleeding. R.D. told Officer Milbury he was in pain
and had been shot, but when asked, did not identify who had shot
him. He was transported to the hospital where he underwent
surgery. He later made a full recovery.
D.M., the victim's aunt, lived on the second floor of one of
the apartments. She told Officer Milbury she did not see what
happened to R.D. D.M. later gave a taped statement in which she
stated she did not see what happened to R.D., but that he yelled
out to her that he had been shot by defendant and M.H.
2 A-0772-14T2 In statements to the police, D.M.'s daughter, Da.M., and
M.M., a friend of the victim, said they saw defendant had a gun
before R.D. was shot. They also both reported that M.H.,
defendant's cousin and the father of Da.M.'s child, was also
present at the time of the shooting. Da.M. told police she saw
defendant shoot R.D. However, she later wrote a letter to the
trial court recanting that statement, insisting she "really didn't
see everything that happened to [R.D.]."
R.D. gave a taped statement to defense investigator Eric
Johnson in which he denied being shot by defendant.
The investigation of the crime scene revealed two shell
casings near the curb of the street, blood on the sidewalk, and
two bloody t-shirts on the steps where R.D. was found. No gun was
recovered.
At trial, D.M. testified she was inside her apartment when
she heard gunshots outside her open window. She looked out the
window and saw R.D. collapse on the steps outside her apartment,
bleeding and screaming to her that defendant and M.H. shot him.
She also saw defendant and M.H. walking away from R.D. after he
was shot.
M.M. testified she was sitting on the stoop with R.D., Da.M.
and another friend when defendant, M.H. and a third unidentified
person approached. She was then asked to identify defendant in
3 A-0772-14T2 the court room:
Q. Okay. So let's start with [defendant], do you see him sitting here in the courtroom today?
A. Yeah.
Q. Okay. Could you describe what he's wearing?
A. The khaki inmate suit.
Defendant was not wearing an "inmate suit." He was wearing
a khaki-colored shirt and jeans.
Defense counsel requested a sidebar conference and moved for
a mistrial. The trial judge did not explicitly deny the motion
but stated that, because defendant was "not wearing inmate
garments," the proper response would be
to indicate to the witness that, given how she's described his shirt it appears to me she's described the defendant. I'm going to have him stand up and ask if that's who she's referring to. And the jury will see and I'll indicate on the record that he's not – we'll indicate what he's wearing.
Defense counsel argued this response "just highlights the
problem," and asked that the trial move on without any curative
charge to the jury because it would be "ineffective." The trial
judge honored the request, and stated,
I'll just make sure to let the record reflect the fact that the defendant is not wearing a khaki inmate suit, he's wearing blue pants. Some of the jurors can see his pants, some
4 A-0772-14T2 probably can't. They're blue. He has on a tan colored shirt, which is not a Camden County issue shirt.
After the sidebar conference concluded, the trial judge
stated to the jury, "the witness has indicated the person wearing
the khaki colored shirt which is the defendant."
When M.M.'s testimony resumed, she recalled R.D. and M.H. had
an argument, during which defendant "told [M.H.] to step back" and
then "lift[ed] up his shirt showing . . . the gun." After she saw
the gun, M.M. ran inside and heard gunshots go off, but did not
see who shot R.D. She also could not recall if defendant had
pointed the gun at R.D.
Da.M. testified there was no third unidentified person, that
only M.H. and defendant approached the stoop. She confirmed M.H.
and R.D. had an argument and defendant told M.H. "to move, get out
the way." She recalled seeing defendant point the gun at R.D.'s
head before shooting him, but explained the gun did not go off and
instead made a clicking sound when defendant pulled the trigger.
Then, "everybody took off running" into the apartment. She
remained, however, and saw defendant shoot R.D.
Da.M. denied seeing M.H., or anyone other than defendant,
have a gun in their possession. Da.M. was also questioned about
her retraction letter. She admitted to writing the letter, but
testified she did see who shot R.D., despite the contents of the
5 A-0772-14T2 letter.
R.D. testified he and defendant were on good terms, and denied
ever having any problems with him. He knew defendant for about
twenty years and said they were "childhood buddies." He considered
defendant's two sons to be his "little cousins" and defendant to
be "like family." When asked about the prospect of "snitching on
a family member," R.D. stated, "I wouldn't do it if my heart
depended on it . . . [e]ven if it was the truth" because "family
[comes] before anything else."
R.D. admitted defendant was present when he was shot, but
denied defendant was the one who shot him. Instead, he described
the shooter as a dark-skinned male whom he did not know. He
explained that, before he was shot, M.H., defendant, and another
male named Tyheem first approached him. They were later joined
by
some fourth person . . . . And when I turned around the guy had a gun on me. My first reaction was to grab the gun. I didn't care who he was, what he was about, he had a gun. I grabbed the gun, we tussled, the gun went off, hit me twice.
R.D. also stated the shooter put the gun to his head and
threatened to kill him, but when he pulled the trigger he realized
he ran out of bullets and took off running. He ran after the
shooter, but only made it to the sidewalk curb before retreating
6 A-0772-14T2 back to the steps. He denied ever telling D.M. that defendant or
M.H. shot him.
Sometime after the shooting, R.D. had a telephone
conversation with defendant and his son. He described the
telephone conversation in his testimony:
Q. And at that point did the defendant tell you that, quote, [M.H.] got me in trouble?
A. Yeah, he told me that everybody told on him, accused him as the shooter.
Q. Okay. And did he ask you to give a taped statement to a defense investigator for him?
A. No, he didn't ask me. What he asked me was, he asked me how can I help. I said well, you got to tell me who your lawyer is and I'll go to your lawyer and talk to your lawyer. He didn't – he said that he was waiting for his mom to get the lawyer and everything. And that's when his mom came and seen me and we went and seen the investigator Eric Johnson.
. . .
Q. When you had this phone conversation with the defendant did you tell the defendant that you would do whatever you could to help him out and make this case go away?
A. I told him I'd do whatever it is to
7 A-0772-14T2 help him get out of trouble, yeah, because he in trouble for nothing.
Q. Did you also tell him that you didn't want to testify though?
A. No, I didn't tell him – I never told him that until like 2011 . . . .
R.D. testified he went with defendant's mother to meet with
defendant's private investigator so he could give a taped
statement. He also admitted receiving $900 from defendant's family
after he was shot.
Defendant did not testify at trial.
Defendant was acquitted of first-degree attempted murder,
N.J.S.A. 2C:5-1, 2C:11-3(a)(1) (count one), and convicted of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count
two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2)
(count three); second-degree possession of a handgun for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count
five); and second-degree possession of a handgun for an unlawful
purpose by a certain person not to have weapons, N.J.S.A. 2C:39-
7(b) (count six).
Defendant was sentenced to twenty-six years, which included
two eighteen-year concurrent sentences for counts two and five
subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
8 A-0772-14T2 and an eight-year consecutive sentence for count six subject to a
five-year parole disqualifier. Counts three and four merged with
count two for sentencing.
Defendant presents the following arguments in his appeal:
POINT I
THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT'S APPLICATION FOR A MISTRIAL WHEN [M.M.] IDENTIFIED AND DESCRIBED HIM IN COURT AS WEARING PRISON GARB AND COMPOUNDED THE PREJUDICE TO DEFENDANT ARISING FROM THE REMARK BY REPEATING [M.M.]'S IDENTIFICATION.
POINT II
THE PROSECUTOR ENGAGED IN MULTIPLE INSTANCES OF MISCONDUCT ON SUMMATION WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III
DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.
II.
Defendant argues he suffered irreparable damage as the result
of M.M.'s description of him as wearing an "inmate suit" and that
the trial judge compounded the prejudice to him "by affirming
[M.M.]'s identification and description of his attire to the jury."
This argument merits only limited comment. R. 2:11-3(e)(2).
In State v. Artwell, the Supreme Court described distinctive
9 A-0772-14T2 prison garb as "clothing that allows the jury to 'visibly identify'
the wearer as a prisoner, such as a one-piece jumpsuit, 'detention
greens,' or any clothing with markings identifying it as a
correctional uniform." 177 N.J. 526, 534 n.1 (2003) (citations
omitted). It is undisputed that defendant was not wearing
distinctive prison garb. Therefore, this is not a case in which
the defendant was denied his right to a fair trial because he was
required to "appear at trial in distinctive prison garb." Id. at
534-35 (citing State v. Carrion-Collazo, 221 N.J. Super. 103, 112
(App. Div. 1987), certif. denied, 110 N.J. 171 (1988)). What
occurred here is that a witness made a factual error in her
testimony that, if accepted by the jury, could inure to defendant's
detriment. The trial judge endeavored to correct that error and
defense counsel did not consent to the use of curative action
rather than a mistrial.
"A mistrial is an extraordinary remedy," State v. Goodman,
415 N.J. Super. 210, 234 (App. Div. 2010), certif. denied, 205
N.J. 78 (2011), that should only be granted "to prevent an obvious
failure of justice," State v. Harvey, 151 N.J. 117, 205 (1997),
cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683
(2000). Because the trial court "has the feel of the case and is
best equipped to gauge the effect of a prejudicial comment on the
jury in the overall setting," State v. Winter, 96 N.J. 640, 647
10 A-0772-14T2 (1984), "[a]n appellate court should defer to the decision of the
trial court . . . [and] will not disturb a trial court's ruling
on a motion for a mistrial, absent an abuse of discretion that
results in a manifest injustice," Harvey, supra, 151 N.J. at 205
(citation omitted); see also State v. Jackson, 211 N.J. 394, 407
(2012).
Because the witness's factual error was one that could easily
be remedied, it was well within the trial judge's scope of
discretion to suggest a course of action that corrected the factual
error without resorting to the nuclear option of declaring a
mistrial. Moreover, the error was made in the course of the
witness identifying defendant. There is no suggestion she was
otherwise unable to do so or relied upon her impression that he
was wearing an "inmate suit" in making the identification. We
discern no abuse of discretion in the trial judge's decision to
pursue corrective action rather than declare a mistrial.
III.
Defendant argues he should be granted a new trial because the
prosecutor's statements in summation constituted prosecutorial
misconduct sufficiently egregious to deprive him of a fair trial.
To support this argument he cites statements characterizing the
State as the "real victim" in the case, and arguing defendant and
11 A-0772-14T2 the victim conspired to fabricate the victim's testimony that
defendant did not shoot him.
Defense counsel's summation relied heavily on the victim's
testimony as proof that defendant did not shoot him and advanced
the theory that the actual shooter was M.H.
The State's summation first addressed the victim's testimony
that defendant was innocent with the assertion that
this case is called the State of New Jersey versus Kazmeck Hollingsworth. It's not [the victim] versus Kazmeck Hollingsworth. [The victim] in some sense was the victim in this case because he's the person that was shot that day. The real victim in this case is the State of New Jersey, the citizens of New Jersey.
Defense counsel objected to the characterization of the State as
the victim. The trial judge overruled the objection, stating the
State was the plaintiff in this case and "crimes are considered
an offense generally against the citizens of the State."
The prosecutor later argued R.D.'s testimony exonerating
defendant was a "lie" he crafted "around the truth" whereby "he
just switched who it was that he saw pulling the trigger at him."
She cited R.D.'s testimony that he considered defendant family and
"that snitching on a family member is the worst thing you could
do." She also suggested R.D.'s testimony was the product of
fabrication by him and defendant, noting in his telephone
12 A-0772-14T2 conversation with defendant, R.D. stated "he would, quote, do what
he could to help him out and make this case go away." The
prosecutor explained,
[R.D.] says some, quote, mystery fourth person comes up [to them]. This is the shooter, the mystery fourth person. And then he says well, initially we were actually calling him the third person. But since there was actually three of us already there, it was actually the fourth person. Yeah. Who are you talking about? Who was it that you were discussing who this mystery third person was? [R.D.] told you he talked to the defendant after the shooting. He was talking about the defendant, that's what they were putting together their story to say some mystery third person.
[(Emphasis added).]
Defense counsel objected, arguing the contents of the
telephone conversation were not in the record, and requested a
jury charge that counsel's statements were not evidence. The
trial judge overruled the objection because R.D. had testified
about the conversation and the prosecutor's comments about its
contents were reasonable inferences drawn from the evidence. He
found the comment similar to defense counsel's own argument that
the shooter was M.H. rather than defendant, an inference suggested
as an alternative explanation of the record.
Defense counsel also requested that the jury "be instructed
forcefully that [the] conversation is not in the record." The
13 A-0772-14T2 trial judge agreed to instruct the jury once again that it can
rely only on its own recollection of the evidence and cannot
consider counsels' statements evidence, and did so during the
final jury charge.
When "a claim [is made] of prosecutorial misconduct with
respect to remarks in summation, the issue presented is one of
law" and, thus, reviewed de novo. State v. Smith, 212 N.J. 365,
387 (2012), cert. denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L.
Ed. 2d 558 (2013). The issue raised in claims of prosecutorial
misconduct "is two-fold: whether the prosecutor committed
misconduct, and, if so, 'whether the prosecutor's conduct
constitutes grounds for a new trial.'" State v. Wakefield, 190
N.J. 397, 446 (2007) (quoting State v. Smith, 167 N.J. 158, 181
(2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed.
2d 817 (2008).
"[P]rosecutors are afforded considerable leeway" when they
address the jury, provided "their comments are reasonably related
to the scope of the evidence." State v. Cole, ___ N.J. ___, ____
(2017) (slip op. at 32) (quoting State v. Frost, 158 N.J. 76, 82
(1999)). "Prosecutors should not make inaccurate legal or factual
assertions during a trial. They are duty-bound to confine their
comments to facts revealed during the trial and reasonable
inferences to be drawn from that evidence." Frost, supra, 158
14 A-0772-14T2 N.J. at 85 (citation omitted). In addition, a prosecutor may not
express a personal belief or opinion as to the truthfulness of a
witness's testimony. State v. Marshall, 123 N.J. 1, 156 (1991),
cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694
(1993); State v. Staples, 263 N.J. Super. 602, 605 (App. Div.
1993).
A prosecutor is, however, "entitled to argue the merits of
the State's case 'graphically and forcefully,' and is not required
to present those arguments as if he were addressing a lecture
hall." Smith, supra, 212 N.J. at 403 (quoting State v. Feaster,
156 N.J. 1, 58 (1998), cert. denied, 532 U.S. 932, 121 S. Ct.
1380, 149 L. Ed. 2d 306 (2001)). They "may strike hard blows
[but] not . . . foul ones." Feaster, supra, 156 N.J. at 59
(quoting Bergee v. United States, 295 U.S. 78, 88, 55 S. Ct. 629,
633, 79 L. Ed. 2d 1314, 1321 (1935)).
"Notwithstanding the high standard to which a prosecutor is
held as he or she gives an opening statement or summation, 'not
every deviation from the legal prescriptions governing
prosecutorial conduct' requires reversal." Jackson, supra, 211
N.J. at 408-09 (quoting State v. Williams, 113 N.J. 393, 452
(1988)). A prosecutor's improper "comments are deemed to have
violated the defendant's right to a fair trial when they 'so
infect[] the trial with unfairness as to make the resulting
15 A-0772-14T2 conviction a denial of due process.'" Id. at 409 (alteration in
original) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988),
cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803
(1989)).
In our review of the prosecutor's comments, the factors to
be considered include: "whether 'timely and proper objections'
were raised; whether the offending remarks 'were withdrawn
promptly'; . . . whether the trial court struck the remarks and
provided appropriate instructions to the jury [; and] . . .
whether the offending remarks were prompted by comments in the
summation of defense counsel." Smith, supra, 212 N.J. at 403-04
(citations omitted).
Defense counsel registered his objection to each of the
comments challenged on appeal. The trial judge overruled each of
the objections but did give an additional instruction to the jury
regarding the fact that statements by counsel are not evidence,
as requested by defense counsel.
It is a bit strained to contend that the State was the real
victim here, rather than R.D. While it is true that, as a general
rule, it is the State that brings a criminal prosecution, R.D.'s
status as the person who was shot and left bleeding in the street
surely cements his role as victim. To the extent this feeble
effort to diminish the weight of R.D.'s apparent lack of animosity
16 A-0772-14T2 toward defendant was error, it was harmless beyond a reasonable
doubt for it surely lacked the capacity to infect the trial with
any unfairness. See State v. Ingram, 196 N.J. 23, 49 (2008)
(applying "harmless beyond a reasonable doubt" standard to
constitutional errors (quoting State v. Castagna, 187 N.J. 293,
312 (2006))).
The other comments challenged on appeal concern the
prosecutor's arguments that R.D. was not being truthful in
asserting defendant did not shoot him and that he colluded with
defendant to fabricate his testimony that another, unidentified
person was the shooter. We stress that these comments did not
include an expression of personal belief that R.D. was lying.
The evidence in the case included R.D.'s aunt's testimony
that she heard him exclaim at the time he was shot that he had
been shot by defendant and M.H. R.D.'s denial was reasonably
viewed within the context of his own testimony that he considered
defendant "family," that he wouldn't "snitch" on family "if [his]
heart depended on it . . . [e]ven if it was the truth," and his
own description of his conversation with defendant in which he
stated he told defendant he would "do whatever it is to help him
get out of trouble." In addition, R.D. testified he went with
defendant's mother to meet with defendant's private investigator
17 A-0772-14T2 so he could give a taped statement. Finally, he admitted receiving
$900 from defendant's family after he was shot.
Given this context, we conclude the prosecutor's comments
fell within the permissible range of reasonable inferences drawn
from the evidence and provide no grounds for reversal.
IV.
Finally, we turn to defendant's challenge to his sentence as
manifestly excessive.
At sentencing, the trial judge found aggravating factor one,
N.J.S.A. 2C:44-1(a)(1), applied because the victim was shot
"multiple times" and was unarmed. He also found aggravating
factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9),
and no mitigating factors. He determined the aggravating factors
"substantially and convincingly" outweighed the mitigating
factors. The trial judge merged counts three and four with count
two, finding there to be "just one assault here that occurred,"
requiring only one conviction "as a matter of constitutional
fairness."
Defendant, who was thirty-six years old at the time of the
shooting, has an extensive adult criminal record. According to
his presentence report, this offense was his seventh indictable
conviction in New Jersey and he had one felony conviction in
federal court. Four of the New Jersey convictions and the federal
18 A-0772-14T2 conviction were related to the illegal possession of firearms. He
served six terms in New Jersey state prisons. He also served two
federal sentences and was on supervised release at the time of
this offense. Defendant does not dispute the fact that a mandatory
extended term was required because his criminal history included
two predicate Graves Act offenses. See N.J.S.A. 2C:43-6.
The trial judge applied the Yarbough1 factors to determine
whether the sentence for the certain persons offense (count six)
should be consecutive or concurrent. The trial judge recognized
the conduct charged in count six did not involve "a different time
and separate place" from the aggravated assault or "multiple
victims." However, he observed the two counts charged were
"separate offenses with distinct elements . . . intended to
prohibit different conduct." He also added that imposing a
concurrent sentence for count six would "bypass[] in substantial
measure" any "legislative intent to deter by way of the enactment
of the certain persons statute" because count six "would then be
essentially subsumed by the greater second degree aggravated
assault sentence in" count two. Defendant's five separate
convictions under counts two through six were characterized as
"somewhat numerous," even though some were merged. Based upon
1 State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
19 A-0772-14T2 this reasoning, the trial judge imposed concurrent eighteen-year
sentences on counts two and five, both subject to NERA, and a
consecutive eight-year sentence with a five-year period of parole
ineligibility on count six.
"Appellate review of sentencing decisions is relatively
narrow and is governed by an abuse of discretion standard." State
v. Blackmon, 202 N.J. 283, 297 (2010). The Supreme Court directs
appellate courts to determine whether:
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (alteration in original).]
Appellate courts are "bound to affirm a sentence, even if
[they] would have arrived at a different result, as long as the
trial court properly identifies and balances aggravating and
mitigating factors that are supported by competent credible
evidence in the record." State v. O'Donnell, 117 N.J. 210, 215
(1989). An appellate court should modify a sentence "only when
the trial court's determination was 'clearly mistaken.'" State
v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114
20 A-0772-14T2 N.J. 394, 401 (1989)).
Defendant contends the trial judge lacked a factual basis for
finding aggravating factor one and that this finding constituted
impermissible double-counting. Defendant also argues the
imposition of consecutive sentences was a manifest abuse of
discretion. He states the trial judge's finding that defendant
had numerous offenses was erroneous because it was relying upon
two convictions that merged and it erred in considering the certain
persons offense as having a separate purpose under Yarbough.
Finally, he argues the sentence was improper because the trial
judge "did not consider the real-time consequences of NERA" in
imposing his sentence.
After reviewing these arguments in light of the record and
applicable legal principles, we conclude that defendant's
arguments regarding the imposition of a consecutive sentence for
the certain persons offense, his contention the trial judge
committed reversible error in failing to consider the consequences
of NERA2 and his criticism of the judge's reference to his offenses
2 The trial judge did observe the impact of NERA on the time defendant would serve, identifying the aggregate amount of time he would be ineligible for parole. Moreover, the trial judge had no discretion to impose a lesser parole ineligibility term given NERA's mandate of "a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2(a). In addition, "the impact of the eighty- five percent period of parole ineligibility on the time defendant
21 A-0772-14T2 as "numerous" lack sufficient merit to warrant discussion. R.
2:11-3(e)(2).
We agree with defendant that the record of this case did not
support a finding of aggravating factor one. That factor directs
the sentencing court to examine "[t]he nature and circumstances
of the offense, and the role of the actor therein, including
whether or not it was committed in an especially heinous, cruel,
or depraved manner." N.J.S.A. 2C:44-1(a)(1). The fact that R.D.
was shot multiple times while unarmed falls short of "the
extraordinary brutality" contemplated in Fuentes, supra, 217 N.J.
at 75. For this factor to apply, the cruelty must be such that
the infliction of pain is an end in itself. O'Donnell, supra, 117
N.J. at 216. There was no double-counting here, however, because
it is not an element of aggravated assault that the victim is
unarmed. See State v. Lawless, 214 N.J. 594, 608 (2013); State
v. Pineda, 119 N.J. 621, 627 (1990).
The trial judge stated he gave "substantial weight" to all
the aggravating factors he found and stated he gave factor one
"very heavy weight." He noted further that in weighing the
factors, he considered them "on a qualitative as well as
would spend in custody [is] not [a] statutory mitigating factor[] and thus [does] not need to be addressed by [the judge] in sentencing." State v. Bieniek, 200 N.J. 601, 610 n.1 (2010).
22 A-0772-14T2 quantitative basis" and concluded the aggravating factors
outweighed the non-existent mitigating factors "substantially and
convincingly."
If aggravating factor one is removed from the equation, the
record provides ample evidence to support the remaining
aggravating factors, none of which are disputed by defendant. He
also does not contend the trial judge erred in failing to find any
mitigating factor or in finding the aggravating factors
preponderated "substantially and convincingly."
Given the deference paid to a trial judge's discretion in
imposing sentence, "we will exercise that reserve of judicial
power to modify sentences when the application of the facts to the
law is such a clear error of judgment that it shocks the judicial
conscience," a power that is not to be invoked frequently. Roth,
supra, 95 N.J. at 364. Here, even though it was error to find
aggravating factor one, the sentence imposed is supported by the
remaining factors and the weight the trial judge accorded them.
We do not conclude the error amounted to a clear error in judgment
that shocks the judicial conscience but rather, we determine,
under the circumstances of this case and this defendant, such
error was harmless.
Affirmed.
23 A-0772-14T2