NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3167-16T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RALPH M. LEMAR,
Defendant-Appellant. ____________________________
Argued March 12, 2019 – Decided April 9, 2019
Before Judges Hoffman, Suter and Geiger.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 15-08-2401.
Stefan Van Jura, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).
Kevin J. Hein, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Ralph M. Lemar appeals his conviction and sentence for armed
robbery and related offenses. Defendant makes several claims of error that were
not raised at trial. Defendant also contends his conviction is against the weight
of the evidence even though he did not move for a new trial. Finally, defendant
argues his sentence is excessive. We affirm.
I
Defendant was tried with co-defendants Brian K. Williams, Marvela S.
Brown-Bailey, and Innis J. Henderson. We summarize the evidence adduced at
the joint trial.
On the afternoon of March 25, 2015, Brown-Bailey, a licensed bail
bondsman, traveled to the residence of Katie Wilson. Brown-Bailey enlisted
Wilson's help in apprehending Eric Webb, who was wanted for failing to appear
at a court hearing. Wilson was a former associate of Webb's. Wilson admitted
she and Webb participated in a car rental scheme whereby Wilson rented cars in
her name for Webb to drive because Webb did not have a license; she also
admitted to purchasing heroin from Webb.
Brown-Bailey asked Wilson if she would be willing to set up a meeting
with Webb so Brown-Bailey could apprehend him. Wilson agreed. In exchange,
A-3167-16T2 2 Brown-Bailey gave her $100, and promised her assistance with her "municipal
problems," which included a pending charge related to the car rental scheme.
Wilson contacted Webb and arranged for him to come to her residence
that night. When Webb pulled up, Wilson sent Brown-Bailey a text message,
and, within moments, "a couple of cars pulled up. One pulled from the front to
block [Webb] in and another came from the back so his car wasn't able to move."
Wilson testified she was "pretty sure" Brown-Bailey's red Dodge Avenger was
in the back and a white Chevrolet Impala associated with defendant was in the
front. Wilson testified she observed four people exit the Dodge and the Impala.
By that time, it was dark outside so Wilson could only positively identify
Brown-Bailey and Henderson, but she was certain the other two were black men.
Wilson testified they all yelled at Webb to get out of the car. In response, F.E.,
Webb's seventeen-year-old passenger, emerged from the car, but Webb did not.
Instead, Webb drove his car back and forth, hitting the vehicles blocking him so
he could get away.
Webb then fled in his silver Chevrolet Malibu. Defendant, Williams , and
co-defendant Jovani A. Diaz pursued Webb as he fled. 1 Diaz testified she was
1 Diaz was charged with the same offenses as defendant and Williams, but entered into a plea agreement prior to trial, pleading guilty to second-degree conspiracy to commit robbery. A-3167-16T2 3 driving the Impala, which belonged to the mother of one of defendant's children,
during the high-speed pursuit, which eventually terminated in a wooded area
behind a motel in Atco. Diaz also testified Webb was unable to exit his car via
the driver's side door because she stopped the Impala alongside the Malibu. Diaz
admitted Webb "was trying to get out. He was coming from the driver's side
leaning over to the passenger's side trying to get out the car." Webb testified it
was at that point defendant opened the passenger's side door, jumped in, and hit
him in the head with a tire iron. Diaz's testimony corroborated Webb's – she
stated she witnessed defendant hit Webb in the face with the tire iron. Webb
stated he received seven stitches in his forehead as a result of defendant striking
him with the tire iron.
Webb testified another male "jumped on" him from the back and began
punching him in the ribs. Webb could not positively identify Williams as the
other male, however, Diaz testified she witnessed Williams "punching on"
Webb. Diaz also testified defendant and Williams were both "beating on" Webb.
Webb also testified a woman "attacked [him] from the driver's side," and
restrained his legs. Although Webb could not identify the woman, Diaz admitted
to holding Webb's legs and to "hitting" him."
A-3167-16T2 4 Webb testified defendant took his sunglasses and necklace, and stated,
"You don't need this. You goin' to jail." Webb also stated the woman removed
money from his pockets after being ordered to do so by defendant. Diaz
admitted to taking Webb's cell phone and cash. Webb's cell phone was
recovered from Diaz's belongings after her arrest.
On the date he testified, Webb was serving two prison terms, one for
fourth-degree aggravated assault, and the other for charges stemming from the
heroin he was in possession of when the police searched him on the night of the
incident. Webb also testified to his prior convictions for burglary, resisting
arrest, and drug offenses; admitted he knew he had an arrest warrant out for him
for violating his probation, and for failing to appear for a court date while out
on bail on firearms charges; and admitted he had not made the required payments
to the bail bondsman.
Officers Michael Hackman and Timothy Arthur Lyons of the Waterford
Township Police Department both testified they observed blood in the front
passenger side area of Webb's car and a tire iron on the front passenger's seat of
the Impala. Officer Lyons also testified only Webb appeared injured. The
scientific testimony elicited at trial established the clothing worn by defendant
and Williams had Webb's blood on it.
A-3167-16T2 5 Brown-Bailey told police defendant helped her catch bail jumpers "every
now and then." She testified defendant occasionally accompanied her when she
went in search of bail jumpers to ensure her safety. According to Brown-Bailey,
it was defendant who enlisted the help of Williams, Henderson, and Diaz, who
was Henderson's then girlfriend.
A Grand Jury returned an indictment charging defendant, Williams, and
Diaz with first-degree robbery, N.J.S.A. 2C:15-l(a)(1) and (2) (count one);
second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1(a)(1) and (2) (count two); second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(2) (count four); third-degree possession of a weapon, specifically a
tire iron, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count five); and fourth-
degree unlawful possession of a weapon (the tire iron), N.J.S.A. 2C:39-5(d)
(count six). Henderson and Brown-Bailey were charged under the same
indictment with kidnapping, robbery, and other related offenses for the events
that transpired with F.E. after he exited Webb's vehicle.
Tried to a jury, defendant was convicted of counts one, two, four, five,
and six as charged. On count three, the jury convicted defendant of the lesser-
included offense of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7),
A-3167-16T2 6 while Williams was convicted of the lesser-included charge of simple assault,
N.J.S.A. 2C:12-1(a)(1). Henderson and Brown-Bailey were convicted of the
lesser-included charges of false imprisonment, conspiracy to commit false
imprisonment, and theft; Henderson was also convicted of related weapons
offenses.
After merging counts two, three (as amended), four, and five into count
one for sentencing purposes, defendant was sentenced to a seventeen-year prison
term, subject to an eighty-five percent period of parole ineligibility and five
years of parole supervision, pursuant to the No Early Release Act, N.J.S.A.
2C:43-7.2. On count six, defendant was sentenced to a concurrent eighteen-
month prison term. This appeal followed.
Defendant raises the following arguments:
POINT I THE TRIAL COURT'S INSTRUCTION AS TO ACCOMPLICE LIABILITY WAS ERRONEOUS AND NECESSARILY PREJUDICIAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below).
POINT II THE TRIAL COURT ERRED IN FAILING TO SUA SPONTE ORDER SEVERANCE OF THE TRIAL AS TO DEFENDANT LEMAR. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below).
A-3167-16T2 7 POINT III THE PROSECUTOR COMMITTED PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below). A. Diminution of the State's Burden of Proof. B. Misstatement of Law as to Accomplice Liability. C. Vouching for State's Witness. D. Misstatement of the Law of Conspiracy. E. Conclusion.
POINT IV THE CONVICTIONS WERE AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10. (Not Raised Below).
POINT V THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
II.
For the first time on appeal, defendant argues the trial court's accomplice
liability charge misstated the basis for conviction. He asserts the error warrants
reversal of his convictions for robbery and aggravated assault. We are
unpersuaded by this argument because the jury's verdict demonstrates there was
no prejudice.
A-3167-16T2 8 "Whether a defendant is being prosecuted as a principal or an accomplice,
'the State must prove that he possessed the mental state necessary to commit the
offense.'" State v. Maloney, 216 N.J. 91, 105 (2013) (quoting State v. Whitaker,
200 N.J. 444, 458 (2009)). "By definition an accomplice must be a person who
acts with the purpose of promoting or facilitating the commission of the
substantive offense for which he is charged as an accomplice." State v.
Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993) (quoting State v.
White, 98 N.J. 122, 129 (1984)). "An accomplice is only guilty of the same
crime committed by the principal if he shares the same criminal state of mind as
the principal." Whitaker, 200 N.J. at 458 (citing White, 98 N.J. at 129). "[A]n
accomplice who does not share the same intent or purpose as the principal may
be guilty of a lesser or different crime than the principal." Id. at 458-59 (citing
Bielkiewicz, 267 N.J. Super. at 528). "Thus, one defendant may be 'guilty of a
higher or lower degree of crime than the other, the degree of guilt depending
entirely upon his own actions, intent and state of mind.'" Id. at 458 (quoting
White, 98 N.J. at 129).
Normally, when "a defendant fails to object to a trial court's instructions,
the failure to challenge the jury charge is considered a waiver to object to the
instruction on appeal." Maloney, 216 N.J. at 104 (citing R. 1:7-2; State v.
A-3167-16T2 9 Torres, 183 N.J. 554, 564 (2005)). Nevertheless, "[b]ecause proper jury
instructions are essential to a fair trial, 'erroneous instructions on material points
are presumed to' possess the capacity to unfairly prejudice the defendant." State
v. Baum, 224 N.J. 147, 159 (2016) (quoting State v. Bunch, 180 N.J. 534, 541-
42 (2004)).
When the State proceeds on a theory "that a defendant acted as an
accomplice, the trial court is obligated to provide the jury with accurate and
understandable jury instructions regarding accomplice liability." Maloney, 216
N.J. at 105 (quoting Bielkiewicz, 267 N.J. Super. at 527). If "lesser[-]included
offenses are submitted to the jury, the court has an obligation to 'carefully
impart[] to the jury the distinctions between the specific intent required for the
grades of the offense.'" Id. at 106 (alterations in original) (quoting Bielkiewicz,
267 N.J. Super. at 528). Nonetheless, an error may still be excused if it is clear
it was "harmless beyond a reasonable doubt." Maloney, 216 N.J.at 105 (quoting
State v. Collier, 90 N.J. 117, 123 (1982)).
We must first determine if the court erred, and if it did, whether the failure
"was clearly capable of producing an unjust result such that a reasonable doubt
is raised as to whether the error led the jury to a result it otherwise might not
have reached." State v. Jenkins, 178 N.J. 347, 360-61 (2004) (quoting State v.
A-3167-16T2 10 Brims, 168 N.J. 297, 306 (2001)). In making that determination, our task is to
review the jury charge as a whole:
In passing upon the propriety of a trial court's instruction, this court will examine the entire charge to see whether the jury was misinformed as to the controlling law. It is ordinarily impossible for the trial court to state all of the applicable law in one sentence. The test, therefore, is whether the charge in its entirety was ambiguous or misleading.
[State v. R.B., 183 N.J. 308, 324 (2005) (quoting State v. Hipplewith, 33 N.J. 300, 317 (1960)).]
Defendant claims the trial court instructed the jury he could be guilty of a
lesser-included offense only if Williams were also guilty of the lesser offense,
negating the principle that a defendant can be guilty as an accomplice only to
the extent of his own specific intent, and therefore can be guilty as an accomplice
of a different crime than the principal. Although the portion of the trial court's
instruction to which defendant now objects deviated from the then-applicable
Model Jury Charge pertaining to accomplice liability and lesser-included
offenses, when reading the charge as a whole, we conclude the charge was not
error in light of the multiple theories advanced by the State. In addition, the
trial court repeatedly instructed the jury it had to consider each defendant's state
of mind and assess each defendant's guilt independently.
A-3167-16T2 11 Even if we were to consider the small portion of the charge to which
defendant objects to be a misstatement of the law, in light of the jury's verdict,
we are convinced it was "harmless beyond a reasonable doubt." On count three,
defendant was convicted of the lesser included-offense of third-degree
aggravated assault and Williams was convicted of the lesser-included disorderly
persons offense of simple assault. Thus, on the only count the jury convicted
both defendant and Williams, it convicted Williams of a lesser offense than
defendant. If defendant's assertion was correct, the jury would not have
convicted defendant of a more serious offense than Williams. The jury charge
did not cause the unjust result defendant alleges.
III.
For the first time on appeal, defendant argues the defenses raised by co-
defendants Williams and Brown-Bailey were designed to paint him as the sole
bad actor, which was so prejudicial that the trial court should have sua sponte
ordered severance, affording him a separate trial. Defendant claims joinder is
unmistakably prejudicial when each defendant claims that the other committed
the criminal act. We are unpersuaded by this argument.
"Two or more defendants may be charged and tried jointly 'if they are
alleged to have participated in the same act or transaction' constituting the
A-3167-16T2 12 offense." State v. Weaver, 219 N.J. 131, 148 (2014) (quoting R. 3:7-1
(indictment); R. 3:15-1 (trial)). Trying codefendants jointly is generally
preferred, "particularly when 'much of the same evidence is needed to prosecute
each defendant.'" State v. Brown, 170 N.J. 138, 160 (2001) (quoting State v.
Brown, 118 N.J. 595, 605 (1990)). "Indeed, under those circumstances, a joint
trial is 'preferable' because it serves judicial economy, avoids inconsistent
verdicts, and allows for a 'more accurate assessment of relative culpability.'"
Weaver, 219 N.J. at 148 (quoting Brown, 118 N.J. at 605).
Generally, a defendant is required to make any motion to sever the charges
before trial. R. 3:15-2(c); R. 3:10-2. When "considering a motion for severance,
the trial court should 'balance the potential prejudice to defendant's due process
rights against the State's interest in judicial efficiency.'" Brown, 118 N.J. at 605
(quoting State v. Coleman, 46 N.J. 16, 24 (1965)). "The decision whether to
grant severance rests within the trial court's sound discretion and is entitled to
great deference on appeal." Id. at 603-04 (citing State v. Laws, 50 N.J. 159, 175
(1967); State v. Sanchez, 224 N.J. Super. 231, 245 (App. Div. 1988)). If a
defendant fails to move for severance he must show plain error by making "a
strong showing of probable prejudice in fact." State v. Keely, 153 N.J. Super.
18, 22-23 (App. Div. 1977) (quoting State v. Baker, 49 N.J. 103, 105 (1967)).
A-3167-16T2 13 Defendant argues severance was required because the theory of Williams's
and Brown-Bailey's2 defenses were that any offenses against Webb were
committed by defendant. We disagree.
"The test for granting severance . . . is a rigorous one." Brown, 170 N.J.
at 160 (alteration in original) (quoting Brown, 118 N.J. at 605-06). "Separate
trials are required only when defendants 'present defenses that are antagonistic
at their core,'" and defenses are antagonistic at their core only if they are
mutually exclusive. Brown, 118 N.J. at 606 (quoting United States v.
Berkowitz, 662 F.2d 1127, 1134 (5th Cir.1981)). "The mere existence of
hostility, conflict, or antagonism between defendants is not enough." Ibid.
Defenses are only mutually exclusive if they limit "the jury's universe of
choices" such that it can believe only one defendant or the other. Ibid. "The
prosecutor's theory of the case, and the defenses themselves, must force the jury
to choose between the defendants' conflicting accounts and to find only one
defendant guilty." Ibid. "If the jury can return a verdict against one or both
defendants by believing neither, or believing portions of both, or, indeed,
believing both completely, the defenses are not mutually exclusive." Ibid. "The
2 As defendant acknowledges, Brown-Bailey was not charged with any of the same offenses as defendant. Their respective charges related to different victims. A-3167-16T2 14 fact that one defendant seeks to escape conviction by placing guilt on his or her
co-defendant has not been considered sufficient grounds for severance." State
v. Johnson, 274 N.J. Super. 137, 151 (App. Div. 1994) (quoting Brown, 118 N.J.
at 606). "Finally, and perhaps most importantly, a defendant does not have a
right to severance simply because the defendant believes that a separate trial
'would offer defendant a better chance of acquittal.'" Ibid. (quoting State v.
Morales, 138 N.J. Super. 225, 231 (App. Div. 1975)).
Neither the State's theory of the case nor defendant's and Williams's
defenses forced the jury to choose between their conflicting accounts and find
only one or the other guilty. In fact, only convicting defendant or Williams is
the opposite of what the State sought – the State argued both the existence of a
conspiracy and that defendant and Williams were accomplices because it sought
to convict both. The jury was not presented with an all or nothing proposition
of convicting defendant or Williams, and the fact that Williams sought to place
the blame on defendant does not give rise to mutually exclusive defenses. We
conclude defendant was properly tried with his co-defendants.
IV.
Defendant challenges statements made by the prosecution during
summation. "Because he failed to object at trial, we review the challenged
A-3167-16T2 15 comments for plain error." State v. Pressley, 232 N.J. 587, 593 (2018). "To
warrant reversal on appeal, the prosecutor's misconduct must be 'clearly and
unmistakably improper' and 'so egregious' that it deprived defendant of the 'right
to have a jury fairly evaluate the merits of his defense.'" Id. at 593-94 (quoting
State v. Wakefield, 190 N.J. 397, 437-38 (2007)).
"Prosecutors are expected to make a vigorous and forceful closing
argument to the jury, and are afforded considerable leeway in that endeavor."
State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Jenewicz, 193 N.J. 440,
471 (2008)). Prosecutorial comments violate a "defendant's right to a fair trial
when they 'so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.'" State v. Jackson, 211 N.J. 394, 409 (2012)
(alteration in original) (quoting State v. Koedatich, 112 N.J. 225, 338 (1988)).
"Generally, if no objection was made to the improper remarks, the remarks
will not be deemed prejudicial. Failure to make a timely objection indicates that
defense counsel did not believe the remarks were prejudicial at the time they
were made." State v. Echols, 199 N.J. 344, 360 (2009) (quoting State
v.Timmendequas, 161 N.J. 515, 576 (1999)).
Defendant argues the prosecutor's statements regarding the meaning of
reasonable doubt were a clear misstatement of the law necessitating reversal.
A-3167-16T2 16 While a prosecutor should not misstate the law, State v. Frost, 158 N.J. 76, 85
(1999), defendant has not demonstrated reversible error.
Defendant's reliance on State v. Whitaker, 402 N.J. Super. 495 (App. Div.
2008), aff'd, 200 N.J. 444 (2009), is misplaced. In Whitaker, we vacated the
defendant's conviction and remanded for a new trial because the trial court
"bolstered" the prosecutor's misstatement of the law during summation when it
provided no "curative or limiting instructions." Id. at 515. Here, however, the
trial court administered an appropriate charge as to reasonable doubt. "We
presume the jury faithfully followed that instruction . . . ." State v. Miller, 205
N.J. 109, 126 (2011). We conclude the prosecutor's comment was not clearly
capable of producing an unjust result.
Defendant also takes issue with the prosecutor's "overly simplistic
rendering of the principle" of accomplice liability. Defendant's argument fails
for the same reason his claim regarding the jury charge on accomplice liability
failed – because the argument is belied by the jury's verdict. Since defendant
cannot show he was prejudiced, he cannot demonstrate plain error.
Defendant also argues the prosecutor improperly "bolstered" Diaz's
credibility. Defendant points to two closely related statements made by the
prosecutor that he argues were meant to convince the jury Diaz should be
A-3167-16T2 17 believed defendant told her to "run the pockets" of Webb. First, the prosecutor
asked the jury the following rhetorical question: "Why wouldn't she be saying
[']I picked it up out of the car['] if that's what happened?" Second, the prosecutor
responded to his rhetorical question with the statement: "Now again, I would
also say that by her body language and her mannerism, you know she's telling
the truth." Defendant argues the prosecutor's summation warrants reversal
because she improperly voiced a personal opinion based on body language and
mannerism. We disagree.
Defense counsel attacked Diaz's credibility during summation. "A
prosecutor is permitted to respond to an argument raised by the defense so long
as it does not constitute a foray beyond the evidence adduced at trial." State v.
Patterson, 435 N.J. Super. 498, 510-11 (App. Div. 2014) (quoting State v.
Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001)). The prosecutor's comment
on the witness's credibility was responsive to defense counsel's argument.
Moreover, the prosecutor did not "personally vouch for the witness or refer to
matters outside the record as support for the witness's credibility." State v.
Walden, 370 N.J. Super. 549, 560 (App. Div. 2004) (citing State v. Scherzer,
301 N.J. Super. 363, 445 (App. Div. 1997)). Her comment was based on
A-3167-16T2 18 observable physical characteristics of the witness. The comment was isolated
and did not exceed fair comment on the evidence revealed at trial.
In addition, the trial court "clearly instructed the jury that the remarks
made by the attorneys in their summations were not evidence, but argument."
State v. Smith, 212 N.J. 365, 409 (2012). The trial court instructed the jury:
"Arguments, statements, remarks, openings and summations of counsel are not
evidence, and must not be treated as evidence. Although the attorneys may point
out what they think important in this case, you must rely solely upon your
understanding and recollection of the evidence that was admitted during the
trial." "We presume the jury followed the court's instructions." Smith, 212 N.J.
at 409 (citing State v. Loftin, 146 N.J. 295, 390 (1996)).
Defendant further argues the prosecutor misstated the law of conspiracy,
thereby misleading the jury. Notably, defendant does not assert the jury charge
on conspiracy misstated the law. We do not find the prosecutor's remarks were
capable of producing an unjust result, particularly in light of the appropriate
instruction the jury received on conspiracy.
Defendant argues the jury's verdict was against the weight of the evidence
because the State's witnesses were not credible, however, he did not move in the
A-3167-16T2 19 trial court for a new trial on that ground. "[T]he issue of whether a jury verdict
was against the weight of the evidence shall not be cognizable on appeal unless
a motion for a new trial on that ground was made in the trial court." R. 2:10-1.
"We do not consider a weight-of-the-evidence argument on appeal unless the
appellant moved in the trial court for a new trial on that ground." State v. Fierro,
438 N.J. Super. 517, 530 (App. Div. 2015) (citing R. 2:10-1; State v. Perry, 128
N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974)).
In any event, we find no merit in defendant's claim. R. 2:11-3(e)(2).
Defendant's argument is premised on the purported lack of credibility of the
State's witnesses. "As the trial court properly instructed the jury, it was the
jury's province to assess the credibility of all of the evidence. '[C]redibility is
an issue which is peculiarly within the jury's ken.'" State v. Cole, 229 N.J. 430,
450 (2017) (alteration in original) (quoting State v. Frisby, 174 N.J. 583, 595
(2002)). We find no basis to overturn the jury's verdict.
VI.
Last, defendant argues his sentence is excessive, claiming the trial court
over-valued the aggravating factors and failed to apply mitigating factor eleven
(imprisonment would entail excessive hardship to defendant or his dependents),
N.J.S.A. 2C:44-1(b)(11). We are unpersuaded by this argument.
A-3167-16T2 20 "Appellate courts review sentencing determinations in accordance with a
deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence
must be affirmed, unless:
(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."
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).] We "may not substitute [our] judgment for that of the trial court." State v.
Natale, 184 N.J. 458, 489 (2005) (quoting State v. Evers, 175 N.J. 355, 386
(2003)). Thus, we must affirm the defendant's sentence, even if we would have
arrived at a different result, as long as the trial court properly identified and
balanced the aggravating and mitigating factors. Ibid.
The sentencing court found aggravating factors three (risk defendant will
commit another offense), N.J.S.A. 2C:44-1(a)(3); six (extent of defendant's prior
criminal record and the seriousness of the offenses of which he has been
convicted), N.J.S.A. 2C:44-1(a)(6); and nine (need for deterring defendant and
others from violating the law), N.J.S.A. 2C:44-1(a)(9). After undertaking a
A-3167-16T2 21 thorough analysis, the trial court found no mitigating factors and that the
aggravating factors substantially outweighed the non-existent mitigating factors.
The trial court noted defendant has incurred multiple juvenile
adjudications, eight prior criminal convictions, and six prior municipal court
convictions. Defendant acknowledges he has a lengthy criminal record but
argues the trial court "somewhat overstated and over-valued" it. He disputes the
juvenile record shown in the Presentence Report, claiming he has no juvenile
record. Defendant also claims he has been arrested twenty-four times, not forty-
five times. He submits his record is not one of "unremitting criminality," as
stated by the sentencing court.
For the first time on appeal, defendant also asserts the trial court should
have applied mitigating factor eleven. The trial judge considered and rejected
mitigating factor eleven, finding the sentence would not entail hardship to
defendant and his family "over and above . . . any other defendant who would
be subject to incarceration."
Our review of the record convinces us that the trial court properly
identified and balanced the aggravating and mitigating factors. The defendant's
prior adult convictions and the offenses of which he was convicted warrant
A-3167-16T2 22 application of aggravating factors three, six, and nine. The record also supports
the rejection of mitigating factor eleven.
Although eligible, defendant was not sentenced to a discretionary
extended term as a persistent offender. Due to "defendant's unremitting
criminality" and "virtual total rejection of rehabilitation," the trial court imposed
a slightly higher than mid-range ordinary term on the armed robbery and a
concurrent term on the unlawful possession of a weapon. The sentence is not
manifestly excessive or unduly punitive and does not shock the judicial
conscience.
Affirmed.
A-3167-16T2 23