STATE OF NEW JERSEY v. MANUEL BURDOIN, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3735-03T43735-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MANUEL BURDOIN, JR.,

Defendant-Appellant.

_________________________________

 

Submitted October 17, 2005 - Decided

Before Judges Cuff and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-07-00848.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, of counsel and on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon L. Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant was convicted of third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (Count One), and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (Count Two). On June 9, 2003, defendant was sentenced to a six-year term of imprisonment with a three-year period of parole ineligibility pursuant to the Graves Act on Count Two, and to a term of four years imprisonment on the conviction for Count One, to run concurrently with the sentence on Count Two. Appropriate penalties and assessments were also imposed.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT II.

THE DEFENDANT IS ENTITLED TO A NEW TRIAL AS THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT III.

THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL.

POINT IV.

THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.

We have carefully considered each of the issues in light of the record and applicable law, and we are satisfied that none of them are of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We note the following as to Points I and IV.

At trial, testimony was presented by the State through several witnesses, one of whom was Denny Velazquez. He testified as follows. On April 7, 2002, at approximately 2:30 a.m., Lisa Terranova, an individual with whom defendant had a dating relationship, was in her apartment with six other persons, including Velazquez, listening to music and drinking beer. Defendant entered the apartment through the back door and walked into the living room. Defendant inquired of the occupants as to whether there was a party going on, and if so, he stated that he would "set it off." Defendant reached into one of his pockets, pulled out a Glock 10mm handgun, cocked the slide mechanism, and pointed the gun around the room. Defendant stepped up to Velazquez and put the gun on his stomach and asked him, "Are you having sex with my girl?" Velazquez responded, "No, it's not even like that." At that time, Hector Cruz, one of the other guests, hit defendant over the head with a beer bottle after which Cruz and defendant began struggling, and the gun fired. The struggle continued with the two individuals falling to the floor, causing the gun to fire a second time.

We conclude the evidence sufficient to defeat a motion for judgment of acquittal. A reasonable jury could find defendant's guilt beyond a reasonable doubt after considering the evidence, then giving the State the benefit of all favorable evidence and inferences. State v. Reyes, 50 N.J. 454, 458-59 (1967).

Defendant argues under Point IV that the six-year sentence of imprisonment on Count Two was excessive and contrary to the constitutional precepts announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Defendant also argues that the trial judge erred in balancing the aggravating and mitigating factors under the sentencing statute and double-counted an element of the offense as an aggravating factor. Defendant requests that the sentence be vacated or modified.

On review of a sentencing decision, the appellate court must determine:

[F]irst, whether the correct sentencing guidelines, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

[State v. Roth, 95 N.J. 334, 365-66 (1984).]

In applying the above standard, we do not substitute our judgment for that of the trial court. Id. at 365.

Defendant argues under Blakely that the trial court erred by imposing a six-year term of imprisonment because the presumptive sentence for a conviction on Count Two was five years. While we acknowledge that trial courts are required to follow Blakely because of recent changes to our sentencing procedures established by the Court last term, we find the argument misplaced. Prior to the Court excising presumptive terms from the sentencing provisions in the New Jersey Code of Criminal Justice by its decision in Natale, the presumptive term for a second-degree crime was seven years of imprisonment, not five. N.J.S.A. 2C:44-1(f)(1)(c). As such, the defendant's sentence is one year less than the former presumptive term, and defendant's reliance on Blakely is misplaced.

Defendant argues that the judge erred in weighing and balancing the aggravating and mitigating factors under the sentencing statute, N.J.S.A. 2C:44-1a and b, finding aggravating factors (3), (6), and (9), while only finding mitigating factor (10). We determine no error in the judge's assessment of the aggravating factors. The judge considered defendant's juvenile record of adjudications of delinquency for matters which, if committed by an adult, would have constituted two separate aggravated assaults. This clearly supports aggravating factor (6). It was also within the judge's discretion to find aggravating factor (3) based on defendant's prior record, having been twice adjudicated delinquent for serious charges and then having been convicted of the instant offense. Certainly, his record does not predict a life free of crime. We also conclude that defendant's past record supported the judge's finding of aggravating factor (9). It was within the judge's discretion to have concluded that it was necessary to deter this defendant from the type of serious charges for which he has been adjudicated delinquent in the past and is presently convicted. Although defendant argues that the judge should have found additional mitigating factors under the statute, defendant does not propose any in his argument nor do we determine any from the record.

Lastly, defendant argues that the judge double-counted an element of the offense as an aggravating factor contrary to State v. Jarbath, 114 N.J. 394, 404 (1989). Defendant references the judge's remarks that defendant was "the one who brought the firearm into the room" and was the one who "took it out." Defendant contends that the remarks concerning the firearm violated the double-counting prohibition because the charge itself involved possession of a firearm. While the principle relied upon by defendant is meritorious, we find it inapplicable to the present matter. The remarks were not expressed by the judge as an aggravating factor. The judge was responding to remarks made by the defendant, by commenting on how the incident occurred.

 
Affirmed.

N.J.S.A. 2C:43-6c.

State v. Natale, 184 N.J. 458 (2005).

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A-3735-03T4

November 14, 2005