STATE OF NEW JERSEY v. DOUGLAS MANNING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4134-03T44134-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOUGLAS MANNING,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 13, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 01-10-03949-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Donald T.

Thelander, Assistant Deputy Public

Defender, of counsel and on the brief).

Paula T. Dow, Assistant Attorney General/

Acting Essex County Prosecutor, attorney

for respondent (Joan E. Love, Special

Deputy Attorney General, on the brief).

PER CURIAM

After trial before Judge Peter Vazquez and an Essex County jury, the jury found defendant guilty of second-degree burglary, simple assault, second-degree attempted sexual assault, fourth-degree unlawful possession of a weapon, and third-degree possession of the same weapon for unlawful purposes. Judge Vazquez sentenced defendant to an aggregate term of seven years imprisonment, and defendant appealed raising only the following two points: (1) the judge "became an advocate for the State," and violated defendant's constitutional rights by "only molding the jury charge to the State's version of events . . . and [in essence] direct[ing] the verdict"; and (2) "defendant's sentence [was] manifestly excessive, unduly punitive and not in conformance with the Code of Criminal Justice." Except for directing the correction of a technical defect in the judgment of conviction, we reject defendant's arguments and affirm.

The State presented evidence, tending to establish that at approximately 2:15 a.m., defendant broke into the basement apartment of L.H., who did not know defendant. While armed with an eighteen-inch metal stake, defendant entered L.H.'s bedroom, asked "can I eat you out," and pinned her to the bed. L.H. screamed and fought with defendant. Her mother, who lived on the first floor of the apartment, heard L.H. scream, "Mommy, he's trying to rape me." L.H.'s mother broke into her daughter's apartment and helped chase defendant from the apartment. Defendant was pursued into the street by L.H. and a boyfriend of L.H.'s sister who caught defendant and held him until he was arrested by responding officers.

Defendant testified in his own defense and denied all of the charges, claiming each of the offenses must have been committed by someone else. Defendant explained his presence in the area by testifying that he was attempting to locate a party when he was inexplicably chased by a man and woman. He ran to escape because he thought the persons chasing him intended to mug or rob him. It was this defense that defendant claims Judge Vazquez failed to weave into the charge, and thereby, according to defendant, implied to the jury that the State had correctly identified the perpetrator.

We agree that an accurate and understandable jury instruction is essential to a fair trial. State v. Concepcion, 111 N.J. 373, 379 (1988). The judge in a criminal prosecution has an obligation to appropriately explain the questions the jury must determine, "'including the law of the case applicable to the facts that the jury may find.'" Ibid. (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "Ordinarily, the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case." Ibid.

In this case, the facts in dispute were not complicated and the State and defense positions were well demarcated. Defendant did not object to the judge's charge, and we cannot conclude that any failure of the judge to specifically highlight defense testimony was "clearly capable of producing an unjust result." R. 2:10-2.

The court explained that defendant had made a "general denial of guilt," and that defendant claimed the State had failed to carry its burden of proving by "sufficient, reliable evidence" that he was "the person who committed the alleged offense." The court made clear that for the jury to find defendant guilty, "the State must prove beyond a reasonable doubt that this defendant is the person who committed the crime." Defendant does not challenge the specific language the court chose for its instruction on identification, flight, and credibility.

Judge Vazquez imposed a seven-year sentence for second-degree burglary, second-degree attempted sexual assault, and the other lesser offenses. Defendant urges that the concurrent, seven-year sentences for second-degree offenses were "excessive, unduly punitive, and not in conformance with the Code of Criminal Justice." To sentence defendant, the judge found mitigating factor N.J.S.A. 2C:44-1b(7), no prior indictable conviction, but because defendant had a history of arrests, the judge also found aggravating factors N.J.S.A. 2C:44-1a(3) and (9), the risk that defendant will commit another offense and the need to deter him and others from committing crimes. The judge believed the aggravating and mitigating factors were in equipoise.

Defendant claims the court "overvalued the relevant aggravating factors and failed to find an additional appropriate mitigating factor, resulting in an excessive sentence." Defendant asserts that it was "glaringly obvious" that defendant suffered from a mental illness that was not properly weighted by the trial court. According to defendant, the judge ignored defendant's mental state, which tended to excuse his conduct, even if it failed to establish a defense. See N.J.S.A. 2C:44-1b(4) ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense").

The sentence imposed, however, is the precise sentence requested by defense counsel, does not violate the pertinent sentencing standards, and does not shock our conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984). According to defense counsel, defendant chose not "to put on a defense encompassing his mental disease and disorder since he was competent and ruled to be competent with a doctor." Counsel urged that besides imposing the presumptive term, defendant "receive treatment for his mental illness while he's incarcerated." Judge Vazquez did just that, and impliedly agreed with the prosecutor that defendant's condition did not constitute mitigating factor N.J.S.A. 2C:44-1b(4). We cannot fault the judge's sentence as an abuse of discretion.

The judgment of conviction reflects, however, that defendant was convicted of second-degree aggravated assault, which is erroneous. The jury acquitted defendant of this charge and found him guilty of the lesser included simple assault. In this regard, the judgment must be corrected.

 
Remanded to correct the judgment of conviction, but affirmed in all other respects.

Under State v. Natale, 184 N.J. 458, 487 (2005), where a sentence greater than the presumptive was imposed, the Court found unconstitutional the requirement that a judge must award the presumptive sentence unless aggravating or mitigating factors preponderate. After Natale, presumptive terms do not apply. Judges must weigh the aggravating and mitigating factors to determine an appropriate sentence within the legislatively established range. Id. at 488.

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A-4134-03T4

September 28, 2005