NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-0009-17T3 A-0189-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN AVILES,
Defendant-Appellant. __________________________
TOMMY PHAM,
Argued (A-0009-17) and Submitted (A-0189-17) November 20, 2019 – Decided December 10, 2019
Before Judges Haas and Mayer. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-08-1116.
Jane M. Personette argued the cause for appellant Kevin Aviles in A-0009-17 (Law Offices of Brian J. Neary, attorneys; Brian J. Neary, of counsel and on the brief; Jane M. Personette, on the brief).
Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent State of New Jersey in A- 0009-17 (Esther Suarez, Hudson County Prosecutor, attorney; Alanna M. Jereb, Assistant Prosecutor, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Tommy Pham in A-0189-17 (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for respondent State of New Jersey in A-0189-17 (Alanna M. Jereb, Assistant Prosecutor, on the brief).
PER CURIAM
In these back-to-back appeals, which we now consolidate for purposes of
this opinion, defendants Kevin Aviles and Tommy Pham challenge their
convictions and sentences following a joint jury trial involving murder and
weapons possession charges in connection with the stabbing death of the victim,
Kermy Amparo. We affirm in all respects in both appeals.
I.
A-0009-17T3 2 A Hudson County grand jury returned an indictment charging Aviles with
first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or N.J.S.A. 2C:11-3(a)(2)
(count four); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d)
(count five); and third-degree possession of a knife for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count six). The indictment charged Pham with these same
offenses in counts one, two, and three, respectively. 1
Following a multi-day trial, the jury convicted defendants of second-
degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), as a lesser-included
offense of first-degree murder, and acquitted defendants of the weapons charges.
The judge sentenced each defendant to nine years in prison for reckless
manslaughter, subject to an eighty-five percent period of parole ineligibility, and
three years of parole supervision pursuant to the No Early Release Act, N.J.S.A.
2C:43-7.2. These appeals followed.
On appeal, Aviles raises the following contentions:
1 Two of defendants' friends, Ricardo Gallardo and Lee Lozada, were charged in the remaining counts of the fourteen-count indictment with committing aggravated assault with a deadly weapon upon a different victim, Chamir Garcia, and associated weapons offenses. Prior to defendants' trial, Gallardo pled guilty to third-degree aggravated assault upon Garcia with a deadly weapon, N.J.S.A. 2C:12-1(b)(2), and received a five-year term of probation conditioned upon 364 days in jail. Lozada pled guilty to third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d), and was sentenced to four years of probation. A-0009-17T3 3 POINT I
THE TRIAL COURT'S DECISION TO CHARGE THE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND MANSLAUGHTER OVER THE DEFENSE OBJECTION CONSTITUTED ERROR REQUIRING VACATION OF DEFENDANT'S CONVICTION.
POINT II
THE [TRIAL] COURT ERRED IN PRECLUDING DEFENDANT FROM CROSS-EXAMINING DETECTIVE BISONE REGARDING EVIDENCE OF A CO-DEFENDANT'S PRIOR ARREST FOR A STABBING, THEREBY UNDULY INFRINGING ON DEFENDANT'S ABILITY TO PRESENT EVIDENCE OF THIRD PARTY GUILT.
POINT III
THE CONVICTION MUST BE SET ASIDE AS THE JURY VERDICT WAS INCONSISTENT.
POINT IV
CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
POINT V
THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.
a. The [c]ourt below failed to credit [defendant] with all applicable mitigating factors.
A-0009-17T3 4 b. The [c]ourt below erred in applying aggravating factor 3.
c. The [c]ourt below erred in failing to sentence [d]efendant as if convicted of offenses one degree lower.
Pham presents the following arguments:
POINT I
THE FAILURE TO GIVE THE COMPLETE CHARGE ON CAUSATION WAS PLAIN ERROR BECAUSE CAUSATION WAS A MATERIAL ISSUE IN DISPUTE. U.S. Const. Amend V, VI, XIV; N.J. Const. Art. I, ¶¶ 1, 10. (Not Raised Below).
THE FAILURE TO CONSIDER DEFENDANT'S YOUTH REQUIRES A REMAND FOR RESENTENCING. U.S. Const. Amend. VII, XIV; N.J. Const. Art. I, ¶¶ 1, 12.
After reviewing the record in light of the contentions raised by each
defendant on appeal, we affirm.
II.
To place these issues in their proper context, we begin by reciting the
salient facts surrounding the death of Kermy Amparo from multiple stab wounds
to his chest and abdomen. After spending the late evening with his friends,
Divanna Cedeno and Chamir Garcia, at a barbeque and later a bar, Amparo drove
A-0009-17T3 5 the trio to a house in Jersey City where another friend, Amanda Guzman, was
hosting a birthday party for herself.2 Guzman had not invited Amparo to the
party, but when she saw him and his friends outside and across the street from
the house at around 2:00 a.m., she was excited to see them. 3
While Guzman was talking to Amparo, she saw Aviles, Pham, and two of
their close friends, Gallardo and Lozada, sitting on the steps and leaning on a
gate of a house next to the site of the party. Guzman and Amparo walked across
the street to the party house, and then returned to the other side so Amparo could
introduce Guzman to Cedeno. Guzman then crossed the street again to say hello
to Pham.
Amparo and Garcia called out to Guzman and asked what they were doing
next because the party was breaking up. Guzman told them to cross the street
to where she was standing next to Aviles, Pham, Gallardo, and Lozada. When
he did so, Amparo told Guzman he felt awkward because the four men were
staring at them, and he thought they might want to fight.
2 During the course of the evening, between twenty-five and forty individuals had attended the party. 3 Guzman testified she and Amparo had a romantic relationship at some point in the past and were now friends, and that she was also familiar with Garcia. She did not know Cedeno. A-0009-17T3 6 Guzman asked the four men, "There's no problem here, right?" Gallardo
responded that Amparo and Garcia can "get beat up right here[,]" and Garcia
replied, "So, what's up then?" Guzman told the group to calm down and, as the
four men approached Amparo and Garcia, she tried to get between them.
Guzman testified that Garcia walked off the sidewalk toward the street and she
focused her attention on calming him down.
Guzman then saw Pham and Amparo fighting behind her. As she
screamed at them to stop, Guzman saw Aviles "jump in" to join the fight against
Amparo a few seconds later. Guzman observed Pham "swinging" at Amparo,
"sort of like uppercutting." Guzman tried to hold Pham's arms behind his back,
but she was not able to stop him. Guzman testified that Aviles and Pham were
"both grabbing [Amparo] and doing whatever they could to hurt him." It looked
to her like they were standing "in a huddle" on the sidewalk. The autopsy
revealed no defensive wounds on Amparo, indicating that he was "unable to put
up a fight."
Guzman did not see Garcia, Gallardo, or Lozada during the attack on
Amparo by Aviles and Pham. To Guzman, it looked like "two attacking one and
[Aviles and Pham] were kind of both just trying to hurt" Amparo and "get their
hits in." At the end of the attack, one of the assailants threw Amparo to the
A-0009-17T3 7 ground. Guzman then saw Lozada come and kick Amparo in the head before
running away. Guzman did not see Aviles or Pham with a weapon at any point,
and stated that she also did not see Gallardo or Lozada carrying a knife.
Not wanting to "snitch" on her friends, Guzman did not immediately tell
the police who had attacked Amparo. Instead, she reported that five white males
were the assailants. However, she later admitted that "it had to be [Pham] or
[Aviles]," and she repeated this assertion at the trial. Guzman testified she
previously thought that Gallardo could have done the stabbing, and that sh e
could not see well due to her poor eyesight, darkness, and the stress of the
events. However, Guzman again confirmed that Garcia, Gallardo, and Lozada
were in the street during the incident, while Aviles, Pham, and the victim
remained behind her.
Cedeno testified she saw five individuals involved in a brawl that evening.
She then saw Garcia "running frantically" away while two men followed him
down the block and around the corner.
Cedeno claimed she did not see anyone attack Amparo, but later saw him
lying on the ground on his back with wounds on his stomach and near his heart.
Cedeno stated she saw an individual running away from Amparo, but she could
A-0009-17T3 8 not identify him, other than saying he had long hair and was "indigenous -
looking."
Jose and Carmen Rosario4 lived next door to the house where Guzman
held the party. In the early morning hours, Jose saw a group of four or five men
fighting outside the house. He and Carmen also saw two women yelling at the
men to stop. Jose testified he saw one individual holding Amparo on the ground
while the others were punching him. Jose went outside and yelled at the men,
who then ran away. The two women stayed behind and began arguing. Jose and
Carmen identified one of the women as Guzman.
Jose tried to render aid to Amparo. His chest wound was bleeding and
Jose got a towel to try to cover it until the ambulance arrived. Amparo was
pronounced dead at the hospital. An autopsy revealed that Amparo suffered
three major injuries, a stab wound to the chest, and two to the abdomen.
Although all three wounds were potentially fatal, the stab wound to the chest
caused significant damage to Amparo's heart, which would be a more rapid
cause of death than the other stab wounds.
4 Because these witnesses share the same surname, we refer to them by their first names to avoid confusion. In doing so, we intend no disrespect. A-0009-17T3 9 Defendants did not testify at the trial. Pham presented the testimony of a
detective, who stated that Cedeno told him on the night of the attack that both
Amparo and Garcia were stabbed by the same individual, who she could not
identify.
III.
In Point I of his brief, Aviles argues that the trial judge erred by granting
the State's request to charge aggravated manslaughter and reckless manslaughter
as lesser-included offenses of first-degree murder. We disagree.
It is well settled that "[a]ppropriate and proper charges are essential for a
fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original)
(internal quotation marks omitted) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)). Jury instructions 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." Id. at 159 (quoting State v. Green, 86 N.J.
281, 287-88 (1981)).
In order to charge a lesser-included offense, the judge must first find that
"there is a rational basis for a verdict convicting the defendant of the included
offense." State v. Cassady, 198 N.J. 165, 178 (2009) (quoting N.J.S.A. 2C:1-
8(e)). The judge must consider whether the evidence at trial "presents a rational
A-0009-17T3 10 basis on which the jury could acquit the defendant of the greater charge and
convict the defendant of the lesser." Ibid. (quoting State v. Brent, 137 N.J. 107,
117 (1994)). A trial court should consider the evidence in the light most
favorable to the defendant when making this determination. State v. Mauricio,
117 N.J. 402, 412 (1990).
Applying these principles, we conclude that the evidence amply supported
an instruction on the lesser-included offenses of aggravated manslaughter and
reckless manslaughter. "There is no dispute that aggravated manslaughter and
[reckless] manslaughter are true lesser-included offenses to murder, and can be
charged, if warranted, in a murder case with or without consent." State v.
Ramsey, 415 N.J. Super. 257, 263-64 (App. Div. 2010) (footnote omitted). Our
Supreme Court has described the "key distinctions" between these three offenses
as follows:
To be guilty of [serious bodily injury] murder, the defendant must have knowingly or purposely inflicted serious bodily injury with actual knowledge that the injury created a substantial risk of death and that it was highly probable that death would result. In aggravated manslaughter, by contrast, the defendant must have caused death with an awareness and conscious disregard of the probability of death. If, instead, the defendant disregarded only a possibility of death, the result is reckless manslaughter.
A-0009-17T3 11 [State v. Jenkins, 178 N.J. 347, 363 (2004) (citations and internal quotation marks omitted).]
Here, there was obviously a rational basis in the record to support the
judge's decision to charge the jury on murder, aggravated manslaughter, and
reckless manslaughter. Aviles and Pham attacked Amparo, got him into a
"huddle," and tried to "get their hits in." During the attack, Amparo was stabbed
in the chest and abdomen and died from those wounds.
Based on the evidence presented, the jury could have determined that
Aviles (and Pham) had the purposeful, knowing, or reckless state of mind to
support a conviction for murder or either of the two lesser-included offenses.
On the one hand, the jury could have concluded that Aviles knowingly attacked
the victim with the actual knowledge that stabbing him would create a
substantial risk of death and that it was highly probable that death would r esult.
On the other, the evidence was also clearly sufficient to enable the jury to find,
as it did, that Aviles was aware of, yet disregarded only a possibility that
Amparo would die from a stab wound inflicted during the fight.
Under these circumstances, we discern no error in the judge's decision to
charge the two lesser-included offenses.
IV.
A-0009-17T3 12 In Point II of his brief, Aviles asserts that under N.J.R.E. 404(b), the judge
should have allowed him to cross-examine a police detective regarding evidence
that Gallardo had been arrested in 2012, two years before the offenses involved
in the present case, for stabbing a guest at a party. Again, we disagree.
We review a judge's ruling on admission of evidence of third-party guilt
for abuse of discretion. State v. Cotto, 182 N.J. 316, 333 (2005). The trial court
must provide criminal defendants the opportunity to present a complete defense
including that someone else committed the crime charged. Id. at 332. Such a
defense includes the right to introduce evidence of third-party guilt if the proof
offered has a rational tendency to engender a reasonable doubt with respect to
an essential feature of the State's case. Ibid. This requires the defendant to offer
evidence that "creates the possibility of reasonable doubt" by demonstrating
some link between the third party and the victim. Id. at 333. Because this is a
fact-sensitive inquiry, the court has broad discretion to admit or preclude such
evidence. Ibid.
It is not enough to prove some hostile event and leave its connection to
the crime charged to mere conjecture. State v. Sturdivant, 31 N.J. 165, 179
(1959). "There must be some link between the evidence and the victim or the
crime." State v. Koedatich, 112 N.J. 225, 301 (1988).
A-0009-17T3 13 As the State correctly points out, Aviles and Pham argued throughout the
trial that other party guests, including Gallardo, were responsible for attacking
Amparo. Indeed, the judge specifically instructed the jury on defendants' third -
party guilt argument in his final charge to the jury by stating:
In this case, defendants contend that there is evidence before you indicating that someone other than the defendants may have committed the crime or crimes and that evidence raises a reasonable doubt with respect to their guilt.
In this regard, I charge you that a defendant in a criminal case has the right to rely on any evidence produced at trial that has a rational tendency to raise a reasonable doubt with respect to his own guilt. I have previously charged you with regard to the State's burden of proof, which never shifts to the defendant.
The defendants do not have to provide or produce evidence that proves the guilt of another person, but may rely on evidence that creates a reasonable doubt. In other words, there is no requirement that this evidence proves or even raises a strong probability that someone other than the defendants committed the crime.
You must decide whether the State has proven the defendants' guilt beyond a reasonable doubt, not whether the other person or persons may have committed the crime. [5]
5 This instruction followed the model jury instruction. See Model Jury Charges (Criminal), "Third Party Guilt Jury Charge" (approved March 9, 2015). A-0009-17T3 14 Thus, the judge clearly permitted Aviles to pursue a third-party guilty defense
at the trial.
However, Aviles wanted to bolster that argument by introducing evidence
of Gallardo's prior arrest during his cross-examination of a detective. This
officer had apparently been involved in investigating that incident, but had no
first-hand knowledge of what occurred. Other than asserting that Gallardo had
been arrested in 2012 for stabbing a guest at a party, defense counsel proffered
no firm details concerning what had transpired. Even more significantly, the
State represented that a grand jury declined to indict Gallardo on any charge
and, therefore, there was no judicial determination that Gallardo committed a
"prior bad act" as alleged by Aviles.
Aviles based his argument for admitting the detective's testimony on
N.J.R.E. 404(b), which states:
[e]xcept as otherwise provided by Rule 608(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
A-0009-17T3 15 When the State proffers 404(b) evidence, a four-pronged analysis,
outlined in State v. Cofield, must take place. 127 N.J. 328, 338 (1992).
However, "[w]hen a person charged with a criminal offense seeks to use other-
crimes evidence defensively, the Cofield standard does not govern because 'an
accused is entitled to advance in his defense any evidence which may rationally
tend to refute his guilt or buttress his innocence of the charge made.'" State v.
Weaver, 219 N.J. 131, 150 (2014) (citing State v. Garfole, 76 N.J. 445, 453
(1978)).
Therefore, "when it is the defendant who 'offer[s] that kind of proof
exculpatorily … simple relevance to guilt or innocence'" is the deciding factor
for admissibility. Ibid. (alteration in original) (citing Garfole, 76 N.J. at 452-
53). Evidence is relevant where there is a "logical connection between the
proffered evidence and a fact in issue, i.e., whether the thing sought to be
established is more logical with the evidence than without it." State v. Hutchins,
241 N.J. Super. 353, 358 (App. Div. 1990).
Despite this more relaxed standard, however, "trial courts must still
determine that the probative value of the evidence is not substantially
outweighed by any of the Rule 403 factors, which are 'undue prejudice,
confusion of issues, or misleading the jury,' and 'undue delay, waste of time, or
A-0009-17T3 16 needless presentation of cumulative evidence.'" Weaver, 219 N.J. at 151. "This
determination is highly discretionary." Ibid.; see State v. Cook, 179 N.J. 533,
568-69 (2004) (where the court found that although the other-crimes evidence
was relevant, its probative value was "minimal" because there was "nothing
distinctive to tie" a sexual assault with a non-sexual abduction).
Applying these principles, we discern no basis for disturbing the judge's
decision to bar the admission of hearsay testimony from a police detective
concerning the 2012 incident, which resulted in no criminal charges being filed
against Gallardo or any adjudication of guilt. As the judge found, the very
sparse details defense counsel was able to provide surrounding Gallardo's arrest
were not "remotely relevant" or even "tangential to this case." As N.J.R.E.
404(b) clearly states, a prior bad act "is not admissible to prove the disposition
of a person in order to show that such person acted in conformity therewith."
Thus, the judge properly denied Aviles's request to admit this improper
propensity evidence through a witness who had no first-hand knowledge of what
may have happened at the 2012 party.
Aviles's contention in Point III of his brief that he was entitled to an
acquittal based on the jury's alleged inconsistent verdict requires only brief
A-0009-17T3 17 comment. Inconsistent verdicts are permitted in New Jersey. State v. Banko,
182 N.J. 44, 53-55 (2004). "[S]o long as the evidence [is] sufficient to establish
guilt on the substantive offense beyond a reasonable doubt[,]" an inconsistent
verdict will not invalidate a conviction. Id. at 55 (quoting State v. Petties, 139
N.J. 310, 319 (1995)). Because the jury was entitled to evaluate each count of
the indictment on its own merits, and there was sufficient evidence in the record
to support this defendant's conviction beyond a reasonable doubt, we discern no
basis for disturbing that conviction.
VI.
Aviles argues in Point IV of his brief that the cumulative prejudice of the
errors he raises deprived him of a fair trial. Having rejected defendant's
argument that any reversible error occurred during his trial, we also reject his
cumulative error argument.
VII.
In Point I of his brief, Pham argues for the first time on appeal that the
judge should have instructed the jury that in order to convict Pham of reckless
manslaughter, Amparo's death had to be
within the risk of which the actor is aware, . . . or if not, the actual result must involve the same kind or injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on
A-0009-17T3 18 another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.
This argument clearly lacks merit.
"A trial court is vested with discretion in delivering the jury instructions
that are most applicable to the criminal matter before it." State v. Funderburg,
225 N.J. 66, 80 (2016) (citing State v. Ernst, 32 N.J. 567, 583-84 (1960)). To
assess the soundness of the jury instruction, we consider "how and in what sense,
under the evidence before them, and the circumstances of the trial, would
ordinary . . . jurors understand the instructions as a whole." State v. Savage, 172
N.J. 374, 387 (2002) (alteration in original) (internal quotation marks omitted)
(quoting Crego v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)).
"[I]n reviewing any claim of error relating to a jury charge, the 'charge
must be read as a whole in determining whether there was any error[.]'" State
v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div. 2016) (quoting State v.
Torres, 183 N.J. 554, 564 (2005)). If, like here, defense counsel did not object
to the jury charge at trial, the plain error standard applies. State v. Singleton,
211 N.J. 157, 182-83 (2012). We reverse only if the error was "clearly capable
of producing an unjust result," id. at 182 (quoting R. 2:10-2), and consider the
totality of the circumstances when making this determination. State v. Marshall,
A-0009-17T3 19 123 N.J. 1, 145 (1991). Applying these standards, we conclude there was no
error, let alone plain error.
Here, the trial judge followed the Model Jury Charge for reckless
manslaughter under N.J.S.A. 2C:11-4(b)(1).6 We have consistently held that a
jury charge that tracks the language of the governing statute, and which is
consistent with the applicable Model Jury Charge, is not plainly erroneous.
State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003). Consistent with
the Model Charge, the judge carefully instructed the jury
that the State must prove beyond a reasonable doubt . . . that the defendant caused Kermy Amparo's death. You must find that Kermy Amparo would not have died, but for the defendant's conduct. If after consideration of all the evidence, you are convinced beyond a reasonable doubt that the defendant recklessly caused Kermy Amparo's death, then your verdict must be guilty of reckless manslaughter. Contrary to Pham's newly-minted argument, the judge was not required to
give the jury an additional instruction dealing with the causal relationship 7
6 Model Jury Charges (Criminal), "Reckless Manslaughter" (revised March 22, 2004). 7 This optional portion of the Model Charge dealing with causal relationship states: Causation has a special meaning under the law. To establish causation, the State must prove two elements, each beyond a reasonable doubt:
A-0009-17T3 20 between Pham's conduct and Amparo's death. As the Model Charge provides,
this charge is only necessary in fact scenarios similar to that addressed by our
Supreme Court in State v. Martin, 119 N.J. 2 (1980).
In Martin, there were "divergent factual versions" presented by the State
and the defense that "g[a]ve rise to different theories of causation." Id. at 16.
Per the State's rendition of the events, the defendant deliberately set a fire on the
ground floor of an apartment building using kerosene as an accelerant that
caused the death of an individual who was passed out in an upstairs apartment.
Id. at 7. But, according to the defense, defendant never intended to harm the
victim but, instead, lit a paper bag on fire, which he expected would extinguish
itself after merely make a mess. Id. at 6. Defendant argued that "supervening
First, that but for the defendant's conduct, the victim would not have died.
Second, [the victim's] death must have been within the risk of which the defendant was aware. If not, it must involve the same kind of injury or harm as the probable result of the defendant's conduct and must also not be too remote, too accidental in its occurrence, or too dependent on another's volitional act to have a just bearing on the defendant's liability or on the gravity of his/her offense. In other words, the State must prove beyond a reasonable doubt that [the victim's] death was not so unexpected or unusual that it would be unjust to find the defendant guilty of reckless manslaughter. A-0009-17T3 21 causes broke the chain of causation" between his action and the victim's death,
and that the victim's death was not a "foreseeable, intended, or probable
consequence of his conduct." Id. at 9. Under these circumstances where the
nexus between the defendant's act and the ultimate outcome was at issue, the
Court held that the additional causal relationship charge should be given. Id. at
14-17.
Here, Pham did not assert there was an intervening cause between the
attack on Amparo and his death minutes later. Instead, Pham raised a straight -
forward third-party guilt defense in which he argued that he was not responsible
for what happened to Amparo because the stabbing was carried out by some
other individual. As noted earlier, the judge fully instructed the jurors on this
defense by presenting the third-party guilt charge to them as part of his final
instructions. Thus, the jury had the opportunity to determine whether it was
Aviles and Pham, or some other individual, who stabbed and killed Amparo.
Considering, as we must, the jury instructions as a whole, we detect no
error in the causation charge the judge provided to the jury. In addition, Pham's
"failure to interpose a timely objection constitutes strong evidence that the error
belatedly raised here was actual of no moment." State v. Tierney, 356 N.J.
Super. 468, 481-82 (App. Div. 2003) (quoting State v. White, 326 N.J. Super.
A-0009-17T3 22 304, 315 (App. Div. 1999)). Therefore, we reject Pham's contention on this
point.
VIII.
In the final arguments in each of their briefs, defendants assert that their
sentences were excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is
based on competent credible evidence and fits within the statutory framework.
State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider
"any relevant aggravating and mitigating factors" that "are called to the court's
attention[,]" and "explain how they arrived at a particular sentence." State v.
Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297
(2010)). "Appellate review of sentencing is deferential," and we therefore avoid
substituting our judgment for the judgment of the trial court. Id. at 65.
We are satisfied the judge made findings of fact concerning aggravating
and mitigating factors that were based on competent and reasonably credible
evidence in the record, and applied the correct sentencing guidelines enunciated
A-0009-17T3 23 in the Code in the case of both Aviles and Pham. Accordingly, we discern no
basis to second-guess the sentences.8
Affirmed.
8 As for the balance of any of defendants' arguments not expressly discussed above, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). A-0009-17T3 24