STATE OF NEW JERSEY v. SEAN M. DALY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1422-07T41422-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

SEAN M. DALY,

Defendant-Appellant/

Cross-Respondent.

______________________________________________

 

Submitted November 18, 2008 - Decided

Before Judges Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 07-03-812.

Law Offices of Robert M. Gamburg, attorney for appellant/cross-respondent (Mr. Gamburg, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent/cross-appellant (Linda A. Shashoua and Leo Feldman, Assistant Prosecutors, of counsel and on the brief).

PER CURIAM

Defendant Sean M. Daly appeals his conviction on one count of aggravated arson, N.J.S.A. 2C:17-1(a)(3) (second degree) and two counts of arson N.J.S.A. 2C:17-1(b)(1) and (2) (third degree). The trial court downgraded his aggravated arson conviction for sentencing purposes under N.J.S.A. 2C:44-1(f)(2), and sentenced defendant to concurrent terms of three years of imprisonment on each conviction. On its cross-appeal, the State challenges the sentence imposed.

At trial, the State presented proofs that on September 23, 2006, fires started at two locations in defendant's apartment, which was part of a multifamily building containing eight apartment units. The fire marshal determined that the fires originated in the kitchen and the bedroom. While no accelerants were used, the fire marshal concluded that the fires were caused by direct ignition. A matchbook cover was found among the debris in the kitchen. No one was injured as a result of the fires.

Defendant did not testify at the trial, but his two conflicting statements to the police about what happened were presented to the jury. On the day of the fire, defendant told the police that he had left his apartment at about 6:30 p.m. with his friend Charles C. Cornaglia, and that everything was in order at that time. He was "baffled" by the fire. In a second statement given two days later, defendant said that Cornaglia had tossed a lit cigarette into plaintiff's bedroom, that the two got into a physical altercation, and that when they saw the comforter on the bed in flames, they left the apartment.

Cornaglia testified that on the day in question he had gone to defendant's apartment, where defendant told him he was looking for a loan of $40,000. While Cornaglia denied smoking inside of the apartment, he admitted that he smoked outside of it for about two to four minutes before defendant exited the apartment, and they left. At the time of the fire, defendant had a $40,000 renter's insurance policy, and he filed his claim against the policy the day after the fire.

Defendant, twenty-one years old at the time of the fire, had no prior criminal convictions. He previously worked for over a year at the Camden County Department of Corrections; however, he had recently left that job, aspiring to work as a State corrections officer.

The jury acquitted defendant of the charge of aggravated arson for purposely setting the fire and "purposely or knowingly placing another person in danger of death or bodily injury," N.J.S.A. 2C:17-1(a)(1), but found him guilty of the lesser included offense of arson for purposely starting the fire and "recklessly placing another person in danger of death or bodily injury," N.J.S.A. 2C:17-1(b)(1). The jury also acquitted defendant of the charge of aggravated arson for purposely starting the fire "[w]ith the purpose of destroying a building or structure of another," N.J.S.A. 2C:17-1(a)(2), but found him guilty of the lesser included offense of arson for "recklessly" doing so, N.J.S.A. 2C:17-1(b)(2). The jury did convict defendant of the charge of aggravated arson for purposely starting the fire "[w]ith the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury," N.J.S.A. 2C:17-1(a)(3).

At sentencing, the trial court found deterrence to be an aggravating factor. N.J.S.A. 2C:44-1(a)(9). The trial court found the following mitigating factors: (6) defendant will compensate the victim for the crime, N.J.S.A. 2C:44-1(b)(6) (the court ordered restitution in the sum of $81,000 as part of the sentence); (7) defendant had no prior contact with the criminal justice system, N.J.S.A. 2C:44-1(b)(7); (8) defendant's conduct resulted from circumstances unlikely to reoccur, N.J.S.A. 2C:44-1(b)(8); and (9) in light of defendant's character and attitude, he is unlikely to commit another offense, N.J.S.A. 2C:44-1(b)(9) (the trial court noted the numerous character witnesses and letters for defendant). The trial court gave mitigating factors 6, 7 and 9 the heaviest weight, and after weighing the aggravating factor and the mitigating factors, qualitatively as well as quantitatively, the court found that the mitigating factors clearly outweighed the aggravating factor. While the trial court rejected defendant's argument that the presumption of incarceration had been overcome, it did grant his request that he be sentenced as though convicted of a crime one degree lower as permitted by N.J.S.A. 2C:44-1(f)(2). Defendant was sentenced to three years on each of the three convictions, the sentences to run concurrently.

On appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE.

POINT II

THE STATE'S WITNESS, DEPUTY FIRE MARSHAL JOSEPH JACKSON, IMPERMISSIBLY TAMPERED WITH AND RELOCATED PHYSICAL EVIDENCE THEREBY DENYING THE DEFENDANT DUE PROCESS AND A FAIR TRIAL.

In its cross-appeal, the State challenges defendant's sentence, raising the following contention:

POINT I

THE STATE CROSS-APPEALS AS THE TRIAL COURT ERRED IN SENTENCING DEFENDANT ONE DEGREE LOWER, BY FAILING TO PROPERLY IDENTIFY, WEIGH, AND EXPLAIN THE AGGRAVATING AND MITIGATING FACTORS, AND MISAPPLYING THE INTEREST-OF-JUSTICE ANALYSIS UNDER N.J.S.A. 2C:44-1(f)(2).

We find no merit in defendant's argument that the trial court erred in denying his motion for acquittal at the end of the State's case. Such a motion must be granted where the evidence presented by the State is "insufficient to warrant a conviction." R. 3:18-1. When deciding the motion, the trial court must consider all of the State's evidence, giving the State the benefit of all of the favorable testimony and favorable inferences that may be drawn from the evidence, and determine whether "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).

Defendant argues that the record does not contain sufficient proof that the fire was started with the purpose of damaging the property of another or that he knowingly, purposely, or recklessly placed another in danger of death or bodily injury. We disagree. A reasonable person could readily infer from the evidence that other people were in this eight unit apartment building at the time the fire was started during the dinner hour. A reasonable person could further infer that a person purposely setting a fire in the unit would knowingly or recklessly be putting others in danger of death or bodily harm. Since defendant was a tenant in the building, one can reasonably assume that someone other than defendant owned the structure, and that anyone purposely setting the fire would purposely be destroying or damaging the structure.

After a careful review of the record and arguments presented by counsel, we find that the balance of the arguments raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Similarly, we find no merit in the State's contention that the trial court erred in identifying the relevant aggravating and mitigating factors. Ibid. However, we address the trial court's decision to sentence defendant one degree lower on the aggravated arson charge.

A trial court has the discretion to sentence a defendant convicted of a first or second degree crime to a term appropriate for a crime one degree lower, provided two criteria are met: (1) "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors" and (2) "the interest of justice demands [it]." N.J.S.A. 2C:44-1(f)(2). The reasons for sentencing a defendant one degree lower "must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." State v. Megargel, 143 N.J. 484, 505 (1996). The standard for downgrading an offense under the statute is "high." Id. at 500.

When determining whether an offense should be downgraded for sentencing purposes under N.J.S.A. 2C:44-1(f)(2), the trial court must consider the general sentencing principles that require focus on the severity of the crime and the need for deterrence. Ibid. The Supreme Court has stated that the primary focus of the court must be on the severity of the offense, "the most single important factor in the sentencing process." Ibid. The Court has explained the process of evaluating the severity of the offense in the following way:

In evaluating the severity of the crime, the trial court must consider the nature of and the relevant circumstances pertaining to the offense. Every offense arises in different factual circumstances. The surrounding circumstances of an offense may make it very similar to a lower degree offense, thus suggesting that a downgraded sentence may be appropriate. For example, a defendant who simulates having a gun by placing his hand in his pocket can be convicted of first-degree robbery. Such a crime, however, is very similar to second-degree robbery.

[Id. at 500-01 (citation omitted).]

The court may also consider defendant's role in the crime, for example, whether he was the mastermind or a loyal follower, when evaluating the need to protect the public and deter defendant from future criminal conduct. Id. at 501. The need for deterrence is "in direct proportion to the gravity and [harmfulness] of the offense and the deliberateness of the offender." Ibid. (quoting State in re C.A.H. & B.A.R., 89 N.J. 326, 337 (1982)).

In order to downgrade the offense under N.J.S.A. 2C:44-1(f)(2), the trial court must find "compelling" reasons to do so. Id. at 501-02. Those reasons must be separate from the mitigating factors that outweigh the aggravating factors, and should be clearly identified in the record. Id. at 502.

The trial court recognized that a compelling reason must be present in addition to the mitigating factors outweighing the aggravating factors, and explained its decision as follows:

In Megarel [sic], the Supreme Court stated these compelling reasons must be in addition to and separate from, the fact that the mitigating factors outweigh the aggravating factors. The Court finds that in the interest of justice the defendant should be sentenced one degree lower, i.e. as a 3rd degree offender. The Court takes into account the fact the jury acquitted the defendant of aggravated arson based on defendant's purposely or knowingly placing another in danger of death or bodily injury and of purposely destroying a building of another. The logical conclusion is the jury was not convinced the defendant intended serious harm to another. Therefore, the Court finds the interest of justice demands the defendant be sentenced as though convicted of a crime one degree lower.

This rationale does not adequately support a downgrading of the offense for sentencing purposes under N.J.S.A. 2C:44-1(f)(2). Presumably, as the trial court states, the jury acquitted defendant of the first two aggravated arson charges because he had not "purposely or knowingly" placed another in danger of death or bodily injury or destroyed the building of another. However, this "purposely or knowingly" requirement is not an element of the third charge of aggravated arson. Defendant was convicted of purposely starting the fire "[w]ith the purpose of collecting insurance for the destruction or damage to such property under circumstances which recklessly place any other person in danger of death or bodily injury." N.J.S.A. 2C:17-1(a)(3) (emphasis supplied). The facts in the record support that verdict. We recognize that defendant was acquitted of the more heinous charges against him. However, the Legislature has determined that even arson that recklessly places another in danger when done to secure insurance proceeds is a second degree offense. As a result, some compelling reason, other than that the conduct did not meet the purposefully or knowingly requirement, must be shown to downgrade the offense.

After a careful review of the record including arguments of counsel and the trial court's analysis of the sentence, we find no compelling reasons for the downgrade. The circumstances of the crime indicate that defendant deliberately set a fire in his apartment and left the multifamily building without taking any steps to alert anyone to the presence of the fire or to attempt to put the fire out. The potential for harm was grave. He took these steps in order to collect insurance money from his renter's insurance policy. He was the sole instigator and participant in the crime. We find no compelling reasons indicating that the interests of justice demand that the aggravated arson charge be downgraded. Accordingly, we vacate the sentence on count one, aggravated arson.

We affirm the conviction, and we remand for resentencing on count one in accordance with this opinion.

 

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A-1422-07T4

January 15, 2009