STATE OF NEW JERSEY v. MICHAEL HAWKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4159-02T44159-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL HAWKINS,

Defendant-Appellant.

__________________________________

 

Submitted October 24, 2005 - Decided January 23, 2006

Before Judges Lintner, Parrillo and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 01-02-0530.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard W. Berg, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Linda K. Danielson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On December 12, 2000, an Essex County Grand Jury charged defendant, Michael Hawkins, in Indictment No. 00-12-3231 with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (Count One); third-degree possession of a weapon, a shotgun, without obtaining a firearm purchaser identification card, N.J.S.A. 2C:39-5c(1) (Count Two); and second-degree possession of a weapon, a shotgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three).

On February 5, 2001, an Essex County Grand Jury returned a second Indictment, No. 01-02-530, charging defendant with third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count One); second-degree eluding, N.J.S.A. 2C:29-2b (Count Two); second-degree aggravated assault, N.J.S.A. 2C:12-1b(6) (Count Three); and third-degree possession of a weapon, a handgun, without obtaining a permit, N.J.S.A. 2C:39-5b (Count Six).

Following a six-day jury trial before Judge Isabella on the charges in Indictment No. 00-12-3231, defendant was acquitted of the charge of first-degree murder and convicted on the two weapon charges.

On June 13, 2002, defendant appeared before Judge Vazquez, and pursuant to a plea agreement, pled guilty to the charges of third-degree receiving stolen property and second-degree eluding, Counts One and Two, respectively, of Indictment No. 01-02-530. His plea was in exchange for the State's promise of dismissal of Counts Three and Six of that Indictment and of a third Indictment, No. 01-02-532, as well as a promise to recommend a sentence not to exceed seven years. Judge Vazquez indicated that he would sentence defendant to a term of six years to be served concurrently with the sentence to be imposed on Indictment No. 00-12-3231.

On June 28, 2002, Judge Isabella denied defendant's motion for judgment of acquittal on Counts Two and Three of Indictment No. 00-12-3231. On the same day, the judge sentenced defendant on that Indictment to a prison term of five years on the third-degree conviction for possession of a weapon without first obtaining a firearm identification card, and to a concurrent term of ten years with a five-year parole disqualifier pursuant to the Graves Act on the second-degree conviction for possession of a weapon for an unlawful purpose. Judge Isabella also sentenced defendant on his convictions under Indictment No. 01-02-530 to six years imprisonment on Count Two, to run concurrently with a four-year term of imprisonment on Count One and the term imposed on Indictment No. 00-12-3231. Appropriate fines and penalties were assessed. The court also ordered restitution to the victim of the charges in Indictment No. 01-02-530 in the amount of $1,000. Counts Three and Six of Indictment No. 01-02-530 were dismissed, as was Indictment No. 01-02-532.

On appeal, defendant argues:

POINT I.

THERE WAS INSUFFICIENT EVIDENCE OF DEFENDANT'S GUILT, THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND INCOMPLETE JURY INSTRUCTIONS LED TO VERDICTS THAT WERE MANIFESTLY UNJUST. (PARTIALLY RAISED BELOW).

POINT II.

THE TRIAL COURT ERRONEOUSLY ADMITTED EVIDENCE OF PRIOR CRIMES, WRONGS OR ACTS, ESPECIALLY HEARSAY TESTIMONY CONCERNING SUCH PRIOR ACTS.

POINT III.

THE TRIAL COURT ERRED IN DETERMINING THAT THE RECANTING WITNESSES' STATEMENTS WERE RELIABLE AND ADMISSIBLE, AND THE JURY INSTRUCTIONS WERE INCOMPLETE.

POINT IV.

THE CUMULATIVE EFFECT OF ALL THE ERRORS DENIED DEFENDANT A FAIR TRIAL UNDER THE STATE AND FEDERAL CONSTITUTIONS.

POINT V.

THE SENTENCE IMPOSED WAS ILLEGAL AND MANIFESTLY EXCESSIVE.

For reasons stated, we affirm the convictions and remand for re-sentencing in light of the recent decisions of State v. Natale, 184 N.J. 458 (2005) (Natale II), and State v. Abdullah, 184 N.J. 497 (2005).

On August 5, 2000, a fight occurred among four men in Irvington, New Jersey, after Sharif Derick concluded that defendant had taken $150 from him. The other participants were Lorenzo Jamison, Derick's friend, and Goffo, defendant's friend. Nestor Jackson, Shaheed Capers and Kenny Taylor arrived and attempted to stop the fight.

In the early morning hours of August 8, 2000, Jackson was shot with a shotgun in front of residential premises at 36-38 22nd Street, Irvington. Jackson was taken to the hospital by ambulance, and although the injuries did not initially appear to be life-threatening, Jackson died at the hospital on September 2, 2000. The medical examiner determined that Jackson's injuries were caused by shotgun wounds resulting in an anoxic episode leading to his death.

Police officers responded to the scene within ten minutes of the shooting. Although there were fifteen to twenty bystanders at the scene when the police arrived, no one could immediately provide any information about the shooting or the perpetrator. Based on information developed during their investigation, the police subsequently obtained statements from four witnesses: Shaheed Capers, Lorenzo Jamison, Durell Ingram and Corey Spears.

On August 11, 2000, Shaheed Capers gave a statement concerning the events surrounding the shooting to Detective Lieutenant Michael Islin of the Irvington Police Department at police headquarters. Capers had been arrested on a warrant unrelated to the shooting, and was in the Irvington police headquarters' holding cell at the time. The statement was obtained by way of questions from Detective Islin, who typed each question, together with each answer that he received from Capers. In the statement, Capers confirmed the fight of August 5, 2000. He advised Detective Islin that at the time of the shooting, he was on 22nd Street, Irvington, in the presence of Corey Spears, when he observed a gold Lincoln automobile drive down 22nd Street from Springfield Avenue, and as the car passed him, Capers observed defendant in the passenger seat with a shotgun pointed out the window. The car stopped in front of 36 22nd Street, and words were exchanged between defendant and Jackson, but Capers did not hear what was said. Jackson stood up from the stoop where he was sitting, and defendant shot him once with the shotgun.

Capers further advised Islin that he saw defendant the following evening driving the same automobile. Defendant stopped and conversed with Capers, at which time Capers observed that defendant was holding a shotgun. After the conversation, defendant drove off. Capers acknowledged the truth of the typed statement, and signed it.

On September 6, 2000, Essex County Investigator, Mark Stolarz, obtained a statement from Lorenzo Jamison at the Union County Jail, where Jamison was incarcerated on criminal charges unrelated to the shooting. The statement was obtained in the same question and answer manner as that of Capers. Jamison advised Stolarz that he was with Jackson prior to the shooting and proceeded home to his house located on the corner of 22nd Street and 20th Avenue to lie down. While lying down, he heard a gun shot. Jamison got up and ran to his front window where he observed a light brown Lincoln driving up the street towards his house from the area of Jackson's house. Jamison observed Todd Hawkins, defendant's brother, driving the car, and observed defendant in the back seat. Although Jamison did not observe a shotgun in defendant's possession at that time, he advised the investigator that he had seen a shotgun in the backseat of the Lincoln a few hours earlier that night when he observed Todd Hawkins drive down 22nd Street with defendant as a passenger. Jamison picked out defendant's photograph from a photo array, identified defendant as the individual he observed sitting in the backseat of the Lincoln leaving the scene of the shooting on August 8, 2000, and signed his name to the back of the photograph. Jamison also confirmed the fight of August 5, 2000, and the involvement of both defendant and Jackson in the fight. At the conclusion of the interview, Jamison read the statement, and affirmed the truth of the same by signing the typed statement.

On September 7, 2000, Stolarz obtained a statement from Durell Ingram, at the Essex County Prosecutor's Office. Ingram advised Stolarz that he had been with Jackson prior to the shooting, and at the time of the shooting he was standing up the block by 28 22nd Street. He observed a gold Lincoln turn from Springfield Avenue onto 22nd Street. As the vehicle passed, he saw defendant in the passenger seat with a shotgun sticking out the window. The vehicle stopped in front of 36-38 22nd Street, the passenger door opened, and Ingram heard a gunshot as Jackson attempted to run into the building. Ingram estimated that he was three houses from where the shooting occurred when he observed defendant point the gun at Jackson and saw sparks come out of the gun as it was fired. Ingram identified defendant from a photo array as the individual he observed fire the shotgun. Ingram also confirmed the fight of August 5, 2000. At the conclusion of the interview, Ingram acknowledged the truth of the typed statement, and signed both the statement and photograph.

Stolarz also obtained a statement from Corey Spears on January 4, 2001, when Spears came to the Essex County Prosecutor's Office and advised that he wanted to speak to Stolarz to give a statement concerning the shooting because his conscience was bothering him. Again, the statement was obtained in the same question and answer manner as the prior three. He advised Stolarz that he had been working prior to the shooting, and after finishing work, he left his home located on 19th Avenue, and commenced walking towards Springfield Avenue to purchase cigarettes. As he was walking down 22nd Street towards Springfield Avenue, he saw a car pull up to a house, and saw defendant jump out of the passenger's seat of the car and shoot Jackson. Defendant then jumped back into the car, and the car pulled away, passing Spears. Spears also selected a photograph of defendant from a photo array identifying defendant as the individual he observed shoot Jackson on the evening in question. Spears affirmed that his statements were truthful, and signed the statement.

The State presented the four witnesses at trial, where they recanted their statements and denied seeing defendant shoot Jackson. Capers testified that he was a couple of buildings away from Jackson at the time of the shooting, and saw "somebody come through in a [Lincoln] and they shot [Jackson];" but that he did not see the person well enough to identify him. He testified that he previously told the police that he saw defendant shoot Jackson, but that it was a lie. Capers stated, "I told Irvington police what they wanted to hear so I could get myself out of trouble; that is just what happened." When asked whether he was lying at the time of trial, Capers stated: "No, it's somebody's life on the line. I am here to tell you what happened. That is what you asked me."

Jamison testified that while he was lying down in his room, he heard a shot, and immediately went to go outside when he was stopped by his mother. Jamison denied looking out the window and seeing defendant and his brother fleeing the scene in the Lincoln automobile. He also denied that he saw defendant earlier in the evening with a shotgun.

Ingram testified that he was at the corner of Springfield Avenue and 22nd Street at the time of the shooting, and that he "didn't see nothing." Although he denied seeing the shooting, he testified that the fight did occur on August 5, 2000. Ingram stated that he had lied in his statement to the police "because that me and [defendant] had our own altercation." Spears testified that at the time of the shooting he was on 22nd Street proceeding towards Springfield Avenue to purchase cigarettes when he saw a dark car leave the scene. He stated that although he saw defendant get out of the car, and then get back into the vehicle before it left, he never saw defendant shoot Jackson, nor did he see defendant in possession of a gun. He testified that at the time he gave the statement to the police, his head was "cloudy with a lot of things" because he was on drugs.

Judge Isabella held a Gross hearing on all four witnesses' prior statements, and ruled that they were admissible as substantive evidence under N.J.R.E. 803(a)(1). The judge also ruled that the evidence of defendant's prior fight was admissible under N.J.R.E. 404(b) as proof of intent, motive or plan, and that "the prior act[] of being in possession of a gun" in the back seat of his car was admissible for the "limited purpose . . . of establishing the identity of the weapon." The judge gave limiting instructions at the time the evidence was admitted.

At the conclusion of trial, the judge gave instructions concerning prior inconsistent statements, credibility determinations, and evidence of prior crimes or acts. In addition, the judge charged the jury with respect to each element of all counts in the indictment.

During the second day of deliberations, the jury notified the judge that it was deadlocked. The judge instructed the jury to continue deliberating in accordance with Czachor. The jury later sent a note indicating it was deadlocked on Count Three after reaching a unanimous verdict on Count One. The judge again requested the jury to continue deliberating because it was making progress, and repeated the Czachor instruction. The jury acquitted the defendant of first-degree murder, but convicted him of the weapon offenses.

Defendant moved for acquittal on the ground that the evidence was insufficient to convict him of Counts Two and Three because the verdicts were inconsistent with the jury acquitting him on the first count. The court denied the motion on June 28, 2002.

We first address defendant's arguments under Points II and III. Defendant argues that evidence of his involvement in the Saturday fight should not have been admitted to prove his motive in shooting Jackson. We disagree.

A reviewing court grants substantial deference to a trial judge in making discretionary evidentiary decisions and reviews them for abuse of discretion. State v. Marrero, 148 N.J. 469, 483 (1997). Only where there is a clear error of judgment should the appellate court disturb the trial judge's determination. Ibid. Generally, the determination of the admissibility of other-crime evidence is within the trial judge's broad discretion. Ibid. Our role is not to substitute our judgment for that of the trial judge, but to decide whether the trial judge pursued a manifestly unjust course. See Cosme v. Borough of E. Newark Tp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998).

We examine first defendant's contention that the judge erred in admitting evidence of defendant's participation in the Saturday fight. N.J.R.E. 404(b) provides:

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.

The rule is one of "exclusion" rather than "inclusion," and is intended to bar admission of other conduct when such evidence is offered solely to establish the "forbidden inference of propensity or predisposition." State v. Nance, 148 N.J. 376, 386 (1997). N.J.R.E. 404(b), however, does not preclude other conduct evidence in all instances. It allows admission of such evidence when relevant to prove some fact genuinely in issue. Marrero, supra, 148 N.J. at 482; State v. Oliver, 133 N.J. 141, 151 (1993). Other conduct evidence is admissible where it is (1) relevant to a material issue, (2) similar in kind and reasonably close in time to the act alleged, (3) clear and convincing, and (4) of sufficient probative value to not be outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992) (citing Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).

Moreover, if evidence of other conduct is admitted, the jury must be instructed as to the limited purpose of the evidence and the restricted significance that the jury can attach to it. Marrero, supra, 148 N.J. at 495; see also N.J.R.E. 105. The trial judge's limiting instruction "'should be formulated carefully to explain precisely the permitted and prohibited purposes of the evidence.'" Cofield, supra, 127 N.J. at 341 (quoting State v. Stevens, 115 N.J. 289, 309 (1989)).

That other conduct evidence prejudices defendant's case is not by itself a reason to exclude otherwise admissible and probative evidence. State v. Frost, 242 N.J. Super. 601, 620-21 (App. Div.), certif. denied, 127 N.J. 321 (1990). A wide range of evidence is admissible when the motive or intent of the accused is material. State v. Covell, 157 N.J. 554, 565 (1999).

We conclude that the evidence of defendant's participation in the fight is relevant to and probative of defendant's motive to shoot Jackson, an issue in dispute. The State presented evidence that defendant and Jackson knew each other and traveled in the same social circle. Second, the fight was reasonably close in time to the shooting as it occurred only two days prior. See id. at 567 (citing Stevens, supra, 115 N.J. at 295-96 (holding that evidence of an act occurring over two years prior to the crime for which defendant is on trial was admissible). We also determine that defendant's contention that the evidence should not have been admitted because the fight was not similar to the shooting is without merit. A jury could reasonably conclude that Jackson's breaking up the fight led directly to the shooting. There is no other evidence in the record that any other action by Jackson would have given defendant a motive to shoot him, or that anyone else had a motive to shoot Jackson.

Third, the judge found clear and convincing evidence of the prior fight. Defendant claims that the judge erroneously relied on the other witnesses' statements, which were replete with hearsay, to determine whether the prior fight occurred such that the statement would be admissible under Cofield. This argument fails. A judge may rely on inadmissible evidence, including hearsay, to determine whether to admit evidence. N.J.R.E. 104(a). In addition, the judge relied on the consistency of the witnesses' statements in concluding that a prior fight occurred. While three of the statements referenced the prior fight, each statement corroborated the others such that the judge reasonably relied on their content finding by clear and convincing evidence that the fight occurred.

Lastly, evidence claimed to be prejudicial can be excluded only where its probative value is "'so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation'" of the issues in the case. Covell, supra, 157 N.J. at 568 (quoting State v. Thompson, 59 N.J. 396, 421 (1971)); see also id. at 570 (stating motive evidence requires a very strong showing of prejudice to justify exclusion and may be admitted even though it will arouse or inflame the jury against the defendant). Here, the evidence of the fight was highly probative of defendant's motive; the fight occurred only two days prior to the shooting; and the evidence was not so inflammatory as to lead the jury to believe that defendant liked to engage in violence. Accordingly, the judge did not abuse his discretion, or make a "clear error of judgment" by admitting this evidence.

Defendant argues next that the judge abused his discretion in admitting evidence of his prior possession of a shotgun as identity evidence. We conclude otherwise. While other-acts evidence used to prove identity traditionally relates to the identity of the defendant, State v. Jenkins, 349 N.J. Super. 464, 478 (App. Div.), certif. denied, 174 N.J. 43 (2002), it may also be used to prove the identity of a weapon where that fact is disputed. State v. Long, 119 N.J. 439, 474 (1990); State v. Carswell, 303 N.J. Super. 462, 471-72 (App. Div. 1997). Here, the issue of defendant being in possession of a shotgun at the time of the shooting was disputed. Jamison's prior statement that the defendant had a shotgun the night Jackson was shot was relevant to the weapon offenses as the State had to prove beyond a reasonable doubt that defendant had possessed the shotgun. Defendant's possession of a shotgun several hours before the fatal shooting of Jackson had a "tendency in reason to prove" that defendant was the shooter, a "fact of consequence to the determination of the action." N.J.R.E. 401. In addition, the evidence was similar as on both occasions the accused was described as possessing a shotgun and riding in his car. The evidence was also reasonably close in time because Jamison stated that the defendant had the shotgun with him in his car a few hours earlier on the evening when Jackson was shot.

Evidence that the defendant possessed a shotgun prior to Jackson's shooting was clear and convincing. The judge reasonably relied on Jamison's prior statement, which was corroborated by the other three statements. Lastly, the evidence was highly probative of defendant's ownership of or control over the shotgun used to shoot Jackson. Such evidence outweighs any apparent prejudice that defendant has a propensity to carry a gun. See Carswell, supra, 303 N.J. Super. at 464-65, 470 (where the defendant was charged with aggravated assault, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose). There, we held the trial judge properly admitted evidence of the defendant's prior gun possession for the purpose of identifying the gun and establishing defendant's possession on the date the incident occurred. Id. at 471. We are satisfied that the evidence met all four prongs of Cofield, and was properly admitted at trial.

Defendant next challenges the judge's ruling admitting the

recanting witnesses' prior statements to the police under N.J.R.E. 803(a)(1). For a witness' prior inconsistent statement to be admitted as substantive evidence by the party calling the witness, the court must conduct a Gross hearing to determine its reliability by a fair preponderance of the evidence, considering all surrounding circumstances. State v. Spruell, 121 N.J. 32, 41-42 (1990).

The State offered the prior statements after the witnesses testified that they either did not remember their prior statements or that their prior statements were lies. As such, N.J.R.E. 803(a)(1) applies. State v. Burgos, 200 N.J. Super. 6, 10 (App. Div.), certif. denied, 101 N.J. 304 (1985). The judge held a Gross hearing on all four witnesses' statements. He examined the relevant factors set forth in Gross, including, but not limited to, the place and occasion for giving the statement, physical and mental condition of the declarant at that time, absence of other persons, absence of any express or implicit pressures, inducement or coercion, and presence of corroborating evidence. Gross, supra note 3, 121 N.J. at 10. The judge determined that the statements were reliable and admissible as substantive evidence. No error occurred as the judge's procedures and rulings comport with the requirements of Gross.

Under Point I, defendant argues that the verdict was against the weight of the evidence. He further asserts that his conviction should be reversed because the jury instructions were incomplete. In considering whether a jury verdict is against the weight of the evidence, an appellate court must determine whether "'any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present,'" but must not overturn a verdict merely because it would have decided the case differently. Smith, supra note 6, 262 N.J. Super. at 512 (quoting State v. Carter, 91 N.J. 86, 96 1982), cert. denied, 484 U.S. 1011, 108 S. Ct. 711, 98 L. Ed. 2d 661 (1988)). Additionally, the appellate court must decide whether "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We conclude that there is sufficient admissible evidence that the essential elements of the crimes existed.

Defendant argues next that the convictions must be reversed because the jury instructions were improper. As defendant did not object to the jury charge at trial, we are required to review the matter under the plain error standard. R. 2:10-2. To prevail on a claim under the plain error rule, the "[d]efendant must establish not only that there was error, but also that it was clearly capable of producing an unjust result." State v. Swint, 328 N.J. Super. 236, 256 (App. Div.), certif. denied, 165 N.J. 492 (2000). In connection with a claim of plain error, "[t]he possibility of an unjust result is not any possibility; the possibility must be sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." Ibid.

Defendant, citing State v. Banko, 182 N.J. 44, 60 (2004) (Wallace, J., concurring), asserts that the judge's instruction with respect to the jury being deadlocked was incomplete because he did not instruct the jury that it "cannot create [its] own unlawful purpose." We find defendant's reliance upon Banko misplaced. Justice Wallace's language in the concurring opinion in Banko was in discussing a matter not properly before the Court, specifically whether the trial court had a duty to clarify the jury's confusion to avoid inconsistent verdicts. Ibid. Such is not this case. Where, as here, a jury is deadlocked, Czachor sets forth the appropriate instruction. There, the Court held that the formerly used Allen charge denies a criminal defendant the right to a fair trial because it exerts "pressure upon the jury, . . . which is inconsistent with jury freedom and responsibility. Such a charge does not permit jurors to deliberate objectively, freely, and with an untrammeled mind." Czachor, supra note 4, 82 N.J. at 402. Instead, the Court recommended the use of the American Bar Association's model charge for a deadlocked jury, which the judge gave almost verbatim. Id. at 405-07. We conclude that no error occurred.

Defendant also argues that the jury instruction on Count Three, possession of a weapon for an unlawful purpose, was incomplete because it should have included the defendant's ability to carry a gun for a protective purpose. Because defendant did not request the instruction at trial, this argument must also be reviewed for plain error. R. 2:10-2. A justification defense is "not relevant under N.J.S.A. 2C:39-4a" because if defendant possessed a weapon only to protect himself and "not . . . to use [the] weapon unlawfully against another," no justification defense would be necessary as the State would not have sustained its burden of proof. State v. Williams, 168 N.J. 323, 332 n.1 (2001); see also Harmon, supra note 7, 104 N.J. at 207.

Defendant relies on Williams, where the Court held that it was plain error for the trial judge not to have explained to the jury that an honest, but unreasonable belief that one need act in self-defense may negate the element that he intended to use the weapon unlawfully, though it does not exculpate one from the substantive crime for which the weapon was used. Williams, supra, 168 N.J. at 334-36. Here, however, unlike in Williams, the record is devoid of facts from which the jury could have inferred that defendant armed himself with the shotgun for protective purposes such that an "honest-but-unreasonable" instruction was required. If defendant armed himself for protection from Jackson, it does not follow that he drove by Jackson's house several times with the shotgun rather than staying away. A protective purpose charge was not warranted and the judge's omission of such an instruction does not constitute error.

Defendant argues next that the jury instruction concerning the recanting witnesses' prior inconsistent statements was incomplete because it did not "focus the jury's attention on the motives of the declarant, his or her interest in the outcome of the criminal proceedings, and all of the surrounding circumstances that would bear on the reliability and veracity of the statement." State v. Gross, 121 N.J. 18, 30-31 (1990) (F. Gross). Defendant's reliance on F. Gross is misplaced. The particularized instructions referenced in F. Gross are required only where a declarant gives a statement while in custody as a suspect in the crime for which defendant is on trial. Id. at 30 (stating that such an instruction is important where prior custodial statements of the suspect-declarant are admitted as substantive evidence). Here, the judge found that none of the recanting witnesses were suspects in the case. Moreover, the judge gave a limiting instruction when the statements were admitted, and properly explained the nature of the evidence at the end of trial.

As to defendant's argument under Point IV that the cumulative effect of all errors denied him a fair trial under the State and Federal Constitutions, we reject the argument as being without merit. There was no error, much less plain error.

Lastly, we address defendant's arguments concerning his sentence. Defendant argues that the imposition of a sentence above the then statutory presumptive term was unconstitutional and manifestly excessive. Defendant also argues that the judge failed to consider as mitigating factors the hardship to defendant's children whom he is obliged to support, N.J.S.A. 2C:44-1b(11), and that defendant acted under a strong provocation when confronted and attacked by Jackson's "associate," Rico. N.J.S.A. 2C:44-1b(3). Defendant argues that Jackson, Rico's friend, induced his protective response because Jackson had threatened defendant by discharging a firearm on August 5, 2000. N.J.S.A. 2C:44-1b(5). Defendant contends that Jackson's actions on August 5, 2000, provided substantial grounds tending to excuse or justify defendant's protective action, though failing to establish a defense. N.J.S.A. 2C:44-1b(4). Except for the argument asserting mitigating factor (11), none of the other contentions were presented below.

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)).

As to defendant's argument that the trial judge failed to consider as a mitigating factor that defendant was "obliged to support" his three children, we find the argument to be without merit. It is only where statutory mitigating factors are supported by evidence in the record that the judge is obligated to find and consider such factors when sentencing a defendant. State v. Dalziel, 182 N.J. 494, 504-05, (2005). Here, the record fails to show that defendant lived with or supported his children. Under these facts, there is no basis for finding that incarceration would constitute excessive hardship to the children. Id. at 505. We also determine that defendant's argument, raised for the first time on appeal, that he acted under strong provocation, N.J.S.A. 2C:44-1b(3), is not supported by the facts in the record. On August 5, 2000, Jackson helped break up a fight among friends. Jackson was not an instigator of the fight. Several days later, defendant sought out Jackson, armed with a shotgun, and shot him. Jackson's actions in breaking up the fight on August 5, 2000, did not equate to a strong provocation. Had the jurors believed defendant armed himself for purposes of self-defense, they probably would not have convicted defendant of Count Three.

Lastly, defendant argues that the terms imposed violate Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Natale II, our Supreme Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale II, supra, 184 N.J. at 466. Thus, when a defendant receives a sentence higher than the presumptive term based on a judicial finding other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Id. at 487.

For defendants whose cases were on direct appeal as of the date of the decision or who had raised this challenge to their sentences at trial or on direct appeal, and who had been sentenced to a term above the presumptive in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. Id. at 494. At that hearing, which is to be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

The judge found the following aggravating factors: N.J.S.A. 2C:44-1a(3) ("risk that the defendant will commit another offense"), N.J.S.A. 2C:44-1a(6) ("extent of the defendant's prior criminal record"), and N.J.S.A. 2C:44-1a(9) ("need for deterring the defendant and others from violating the law"). He did not find any mitigating factors. In citing aggravating factor (3), the judge stated, "He [has] been arrested and involved with the law numerous times. I think it [is] safe to say he [has] not been arrested since September [ ] 2000, because he [has] been locked up. So I think there [is] a strong risk you would commit another offense." Respecting aggravating factor (6), the judge stated, "The extent of his prior criminal record is certainly an aggravating factor." As to aggravating factor (9), the judge stated, "Also the need to deter him and others from violating the law."

 
Although the judge may have been correct in his analysis that aggravating factors (3), (6), and (9) are appropriate factors in sentencing defendant, we conclude that the mere parroting of the statutory language of aggravating factor (9) fails to comply with Natale II. The sentencing judge is required to announce how the aggravating factors tie into defendant's prior criminal record. Natale II, supra, 184 N.J. at 488; N.J.S.A. 2C:43-2e; R. 3:21-4(g). Here, the judge failed to state why he found aggravating factor (9) applicable. Accordingly, the convictions are affirmed, and the matter is remanded for re-sentencing in accordance with this opinion. We do not retain jurisdiction.

Co-defendant Toyon Royster was charged in Counts One, Four, Five, and Seven with receiving stolen property and weapon violations.

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

State v. Gross, 121 N.J. 1 (1990).

State v. Czachor, 82 N.J. 392 (1980).

Defendant notes that the judge acknowledged the presence of hearsay when he discussed redacting portions of Jamison's statement. While hearsay may not be admitted at trial unless it falls within an exception, N.J.R.E. 802, thus requiring it to be redacted for trial, the judge may consider it in determining the admissibility of evidence.

We note that the post-trial motion was presented to the court as a motion for judgment of acquittal, R. 3:18-2, not as a motion for a new trial, R. 3:20-1, primarily on the grounds that the jury's return of guilty verdicts on the weapon charges was inconsistent with the jury finding defendant not guilty of murder. Generally, where a defendant fails to move for a new trial after the jury has rendered a verdict, he or she is ordinarily barred from raising a weight of the evidence argument on appeal. R. 2:10-1; State v. McNair, 60 N.J 8, 9 (1972); State v. Brown, 325 N.J. Super. 447, 456 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). Nonetheless, we may address the argument in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993); State v. Pickett, 241 N.J. Super. 259, 265-66 (App. Div. 1990). Because the post-trial argument also cursorily mentioned that the guilty verdicts on the weapon charges were against the weight of the evidence, although not the primary basis for the motion, we shall entertain the argument.

There is sufficient evidence of Count Two, third-degree possession of a weapon without an identification card, N.J.S.A. 2C:39-5c(1), because admissible testimony showed that defendant possessed the shotgun, and police records disclosed that he did not have a permit to possess the weapon. Additionally, the jury rationally could have found sufficient evidence to prove Count Three, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, because, as the judge found, testimony, including the witnesses' prior statements, established all four elements:

(1) the item possessed was a "firearm" within the meaning of N.J.S.A. 2C:39-1(f); (2) the defendant "possessed" it, which under N.J.S.A. 2C:2-1(c) requires knowledge or awareness of his control over the item; (3) the defendant's purpose or conscious objective was to use it against the person or property of another; and (4) the defendant intended to use it in a manner that was proscribed by law.

[State v. Petties, 139 N.J. 310, 315 (1995); State v. Harmon, 104 N.J. 189, 212 (1986).]

Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896).

We have designated this case by the defendant's first initial "F" to distinguish it from the prior case of State v. Gross, supra note 3, where the defendant's first initial was "A".

While defendant claims in the heading of Point IV, that the sentence is illegal, he fails to pursue that argument in the text of his brief. Instead, he argues that the sentence is manifestly excessive and unconstitutional.

The pre-sentence report indicates that defendant had an active bench warrant for non-payment of child support.

(continued)

(continued)

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A-4159-02T4

January 23, 2006