STATE OF NEW JERSEY v. MOSES B. LOCKETT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3835-07T43835-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MOSES B. LOCKETT a/k/a

MOSES BERNARD LOCKETT, MOSEES B.

LOCKETT, MOSES BARNARD LOCKETT,

Defendant-Appellant.

 

Submitted January 25, 2010 - Decided

 
Before Judges Lisa, Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-02-0192.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Moses Lockett, was convicted of second-degree passion provocation manslaughter, N.J.S.A. 2C:11-4b(2) (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count three); fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4) (count four); second-degree possession of a weapon, a firearm, for an unlawful purpose, N.J.S.A. 2C:39-4a (count six); third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count seven); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5d (count eight); third-degree hindering, N.J.S.A. 2C:29-3b(1) (count nine); and fourth-degree maintenance of a gambling resort, N.J.S.A. 2C:37-4a (count ten). The jury acquitted defendant of counts two and five.

On September 21, 2007, following appropriate mergers, the trial court sentenced defendant to eight years, subject to the eighty-five percent parole disqualification provision of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the charge of manslaughter, count one, followed by a five-year term, also subject to NERA, on the aggravated assault conviction. Thus, defendant received an aggregate term of thirteen years, subject to NERA. Concurrent terms of incarceration were imposed as follows: one year on the fourth-degree aggravated assault, count four; four years on the possession of a firearm for an unlawful purpose, count seven; three years on the hindering, count nine; and time already served on the maintenance of a gambling resort, count ten. Appropriate fines and penalties were also imposed. Defendant appeals and we affirm.

The following account of the incident was developed during trial. Defendant took his grandson to school on the morning of March 22, 2005, where he encountered Lavon Walls (Lavon), the wife of the homicide victim, Elliot Walls (Walls). As Lavon kissed her child goodbye, defendant jokingly asked her, "what about me?" He thought Lavon understood that he was being facetious because she laughed. Defendant had been friendly with the couple for years, acting as a witness at their wedding.

That afternoon when defendant visited Walls' store, Terrence James and Larry McLeod were there playing cards. Walls confronted defendant about his earlier comment in their presence. Defendant testified that Walls appeared angry and warned him not to say "crazy things" to his wife again. He threatened to "break [defendant's] jaw" if he did. Defendant denied having said anything disrespectful, but the encounter left him feeling uncomfortable. After about twenty minutes, defendant left the premises.

At approximately 5:20 that afternoon, another acquaintance named Andy Reed phoned defendant inquiring if he could play cards at defendant's house. Defendant, who regularly hosted card games in his basement on weekends, told Reed that he could not stop by on a weeknight. Defendant testified that Reed nonetheless called back shortly afterwards and said that he and the usual group of approximately ten players, which typically included Walls, James, and McLeod, were on their way to defendant's home. Walls had been reluctant to go to defendant's house, but James and another man convinced him to join the game.

After Reed's second call, defendant retrieved a gun from his bedroom dresser. He claimed on direct that he took the gun out because he had been robbed in the past. On cross-examination he admitted that he had never been robbed during a card game. The gun, given to defendant by his sister some twenty-eight years earlier, was kept loaded at all times.

The card game lasted approximately two hours. Although defendant did not play, he kept ten percent of the winnings as the host. The mood and atmosphere appeared normal; there were no arguments or fights. One of the players, John Simpson, brought up defendant's comment to Walls' wife, and said that when defendant encountered Lavon at the school, defendant had asked her for a kiss. Walls nodded his head, indicating that the story was true, but he did not appear to be angry.

Once the game ended, Reed heard defendant ask Walls to repay a $20 debt. Walls responded that he did not have any money. Defendant "said something to the effect [of], well you be here when I come back" and went upstairs. After Reed used the facilities located in the basement, he and James walked outside together to join the group, and when they turned the corner of the house, Reed saw defendant and Walls "locked up with each other" in the front yard while another man was trying to separate them. Defendant, according to Reed, had a metal object in his hand. Reed heard Walls say, "oh, you wanna play with knives" and saw Walls pull a razor out of his pocket.

Reed and James helped separate the combatants. Reed tried to calm Walls down while defendant walked away to the side of the house. Walls was still angry when suddenly defendant reappeared from the corner of the house holding a gun. Walls said: "[N]ow what you gonna do with that? Don't be crazy." Reed saw defendant raise the gun and fire it. Walls, holding the razor, ran towards defendant and began to cut him. Defendant fired again; this time, Reed ran for cover behind a tree. He heard defendant fire three or four more shots. He turned and saw Walls stumble, then fall to the ground.

McLeod, who had been nearby, was injured by a stray bullet. As he lay in the street, he cried out that he had been shot. Reed heard him, went and stood next to him, so he would not be struck by a passing motorist. Coincidentally, a police car drove by, which Reed flagged down.

All the other eyewitnesses reiterated that after the men were separated, defendant walked away but then returned, gun in hand, and fired. McLeod fell first, Walls attacked defendant with a knife, and defendant shot at Walls again. McLeod testified that before defendant walked away, Walls grabbed defendant's shoulder and in a normal tone of voice said, "I should have gave you a buck fifty," meaning that Walls should have struck defendant to the extent the injuries would require 150 stitches.

Walls died on the scene moments after being shot. The autopsy revealed the presence of six bullets in his body, two in the neck, three in the arm, and one in the abdominal cavity. One of the shots that entered the neck was fired from a distance between two and six inches.

The first officer at the scene was Thomas Greeley of the Englewood Police Department. He testified that he saw McLeod lying wounded in the street at approximately 8:49 p.m. and immediately called for backup and an ambulance. He next observed a man lying on the ground with his head down and his arm up against a side yard fence. When Greeley asked McLeod who shot him, he responded by saying that he had been shot in the groin. Greeley entered defendant's house after seeing blood on the concrete steps leading to the door. Defendant's wife was hysterical, as were the children in the home. Defendant was bleeding from a couple of deep lacerations around his left eye; defendant told Greeley that Walls had stabbed him.

Nathaniel Kinlaw, another officer at the scene, saw a knife in the open position lying on the ground nearby Walls' body. Inside the house, he saw defendant holding a towel, completely soaked red with blood, to the wounds on his face. Kinlaw, not knowing what had transpired, asked defendant if he could pat him down for weapons. Defendant agreed. Defendant told Kinlaw that he had also been cut on the side.

Kinlaw rode in the ambulance with defendant, who was not handcuffed. Defendant explained that he and Walls had an argument after Walls accused him of being disrespectful to his wife. When defendant denied having done so, Walls became angry and drew a knife, slashing at defendant. Defendant said nothing to Kinlaw about shooting a gun.

Ana Bedoya, another officer at the scene, also asked McLeod who shot him, and he responded that he did not know. After feeling Walls' body for a pulse, Bedoya walked towards the house, following a trail of blood leading to the rear yard and the back of the shed behind the house. There, she discovered a handgun lying on the ground.

At the hospital, McLeod had a bullet removed that had pierced his left thigh and lodged in his penis. McLeod was released from the hospital the following morning.

The trauma surgeon who treated both defendant and McLeod, Kathleen O'Hara, testified that defendant had numerous knife wounds to his face, had lost part of his lower left eyelid, and suffered a less serious cut to the chest. When he arrived at the hospital he was alert and talking, and his vital signs remained stable. After a plastic surgeon had stitched his wounds, Detective John Straniero of the Bergen County Prosecutor's Office asked if defendant would consent to an interview. As a precautionary measure, Straniero read him each of the Miranda rights from a card. To the officer, defendant seemed alert and oriented, and appeared to understand his rights. He did not refuse to be questioned or invoke his rights.

Defendant told Straniero that he and Walls had argued during a card game, gone outside and had a "pushing match" when Walls stabbed him. Defendant denied having a gun or shooting anyone, and claimed that he did not own a gun. Defendant insisted that although he heard a shot, he did not know who fired it. Straniero's questioning lasted approximately fifteen to twenty minutes.

Defendant spent the night at the hospital, and according to hospital records, appeared to sleep throughout the night. He was discharged at approximately 8:45 a.m. to the custody of police and was prescribed Percocet for pain. He wore a hospital gown because the police had taken his clothes as evidence. Defendant was driven to the Bergen County Prosecutor's Office and placed in an interview room, where he met with Detectives Mark Bendul and Peter Schwartz of the Bergen County Prosecutor's Office. He was not handcuffed or otherwise restrained. He did not appear to be in pain or confused. Although he frequently dabbed a gauze pad at clear liquid oozing from his injured eye, which he said was uncomfortable, he told the officers that his mind was sufficiently clear for him to be interviewed. He was instructed to let the officers know if he needed anything. At 9:20 a.m., Bendul placed a Miranda form in front of defendant and read each right to him. Defendant wrote "yes" next to each right, signifying that he understood, and agreed to speak to officers in the absence of counsel. Bendul said defendant had no problems either writing or speaking.

Defendant was emotional and began to cry as the officers questioned him. He provided his first version of the events of the prior evening that the card game ended at about 8:30 p.m., that James, Walls, Simpson, and Reed were the last to leave, and that they congregated in defendant's front yard. When defendant walked outside and told them to leave, Walls said, "I'm going to f--- you up," and then attacked him with a knife. Defendant admitted shooting Walls.

When Bendul indicated that the accounts of other witnesses differed from his, defendant insisted that they must be mistaken. Defendant then added that after Walls grabbed him, he pulled a knife. Simpson and Reed separated them, but Walls lunged at him again, this time also armed with a knife. Defendant admitted shooting at Walls, but did not know if the bullets struck him. Bendul told defendant that although this version was more honest, it still differed from the version his friends had given police.

At approximately 10:15 a.m., defendant asked for water and permission to use the bathroom. He was given water and escorted to the restroom. He smoked a cigarette as the interview continued. Bendul told defendant that according to his friends, defendant shot at Walls before Walls attacked him, which defendant "vehemently denied." At 10:45 a.m., defendant finally admitted that he had shot Walls before Walls lunged at him with the knife. According to Bendul, defendant said that Walls was about an arm's length away from him when he fired the gun. He felt threatened because Walls earlier said he was going to cut him.

Defendant stated that after he shot at Walls, Walls lunged at him with a knife and began cutting him. At that point, defendant "fired the remaining rounds, and continued to pull the trigger until the gun would not fire anymore." Defendant admitted hiding the gun behind his shed but did not remember what he did with the knife.

Bendul took another statement from defendant, recorded by a stenographer, beginning at 11:34 a.m. and ending at 11:53 a.m. Defendant was asked to review the typed statement. After defendant initialed and signed the statement, he was formally arrested, charged, and placed in a holding cell.

Bendul read defendant's statement to the jury, in which defendant claimed that when he walked outside to tell the men to leave after the card game, Walls said to him, "I'm going to f--- you up." When defendant told Walls to go home, Walls grabbed him by the collar. Defendant pulled his knife from his pocket and Walls pulled his knife out as well, and the men began to struggle. Eventually, they were separated by Reed and Simpson. When Walls repeated that he was going to "f---" defendant "up," defendant drew his gun and fired it in Walls' direction. Defendant did not believe that he hit Walls. Walls lunged at defendant with a knife, grabbed him by the collar and began to cut him. As defendant felt the blood run down his face, he fired the gun three or four times and stumbled backwards. Walls fell on top of him. Defendant pushed Walls off, hid the gun behind the shed, and walked into his house.

At trial, defendant denied that he shot Walls before Walls attacked him with a knife. He claimed that when he went outside to ask the men to leave, Walls threatened him with a knife. He testified that when Walls grabbed him by the collar, he drew his own knife and was trying to pry Walls' hands loose when Walls sliced his face just above his left eye. Defendant fell backwards, saw the blood on his hands, and believed that Walls was "really trying to hurt" him. Walls grabbed at defendant again, looking very angry. Defendant drew his gun while Walls continued to cut his face and continued to fire as Walls slashed him. He was unaware that he had injured McLeod, as he did not deliberately fire the gun at him and had no intention to hurt him. He hid the gun because he was scared, went inside the house, and told his grandson to call the police. He put the knife in his dresser drawer because he just "didn't want it on" him.

The court conducted pretrial hearings on defendant's motion to suppress any and all statements made to police at the scene, in the ambulance on the way to the hospital, while at the hospital, and at the Bergen County Prosecutor's Office. The application to suppress statements was denied.

On appeal, defendant raises the following points:

POINT I:

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE VARIOUS STATEMENTS MADE BY THE DEFENDANT TO THE POLICE.

A. FACTUAL INTRODUCTION.

B. SINCE THE DEFENDANT WAS SUBJECTED TO CUSTODIAL INTERROGATION AT THE SCENE AS WELL AS IN THE AMBULANCE ON THE WAY TO THE HOSPITAL, THE FAILURE OF THE POLICE TO ADVISE HIM OF HIS RIGHTS RENDERED ALL STATEMENTS MADE BY THE DEFENDANT INADMISSIBLE.

C. ALTHOUGH THE POLICE APPROPRIATELY ISSUED WARNINGS TO THE DEFENDANT AT THE HOSPITAL BECAUSE IT INVOLVED A CUSTODIAL INTERROGATION SETTING, HE COULD NOT, AND DID NOT, VOLUNTARILY WAIVE HIS RIGHTS, RENDERING ANY STATEMENTS AT THAT TIME INADMISSIBLE.

D. ASSUMING THE DEFENDANT'S ORAL AND WRITTEN STATEMENTS AT THE PROSECUTOR'S OFFICE WERE NOT TAINTED BY THE STATEMENT IMPROPERLY OBTAINED AT THE HOSPITAL, THEY WERE NEVERTHELESS INVOLUNTARY IN NATURE, WARRANTING THEIR SUPPRESSION.

POINT II:

THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF AGGRAVATED ASSAULT BY RECKLESSLY CAUSING SERIOUS BODILY INJURY TO LARRY MCLEOD ARISING OUT OF COUNT III WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III:

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

I.

a.

Defendant asserts that all his statements, pre- and post-Miranda, were admitted in violation of his constitutional right to remain silent. When determining if statements made in the absence of Miranda warnings are admissible, we examine the totality of the circumstances and consider whether an objectively reasonable person would have believed he was under arrest when questioned by police. State v. Smith, 374 N.J. Super. 425, 430 (App. Div. 2005). Relevant factors include: "the time, place and duration of the detention; the physical surroundings; the nature and degree of the pressure applied to detain the individual; language used by the officer; and objective indications that the person questioned is a suspect." Id. at 431. Statements made in violation of constitutionally protected rights will be suppressed in the absence of Miranda warnings. State v. Brown, 352 N.J. Super. 338, 351 (App. Div.), certif. denied, 174 N.J. 544 (2002).

In reviewing a trial court's decision on a motion to suppress, we apply a deferential standard because the court's findings are "influenced by the judge's opportunity to hear and see the witnesses and to have the 'feel' of the case." State v. Alvarez, 238 N.J. Super. 560, 564 (App. Div. 1990) (citing State v. Johnson, 42 N.J. 146, 161 (1964)). The question is whether the credible evidence in the record supports the trial court's findings and whether the court's "legal conclusions are valid." Smith, supra, 374 N.J. Super. at 430 (citing Alvarez, supra, 238 N.J. Super. at 564).

With these relevant legal principles in mind, we turn first to Kinlaw's testimony about his questioning of defendant in the ambulance. Preliminarily, Kinlaw said that he patted everyone down for weapons at the scene, including defendant, because he did not know who were assailants and who were victims. Kinlaw did not consider defendant to be in police custody, did not consider him a suspect, nor did he place him under arrest. During the thirty-minute drive to the hospital, Kinlaw asked defendant multiple times to describe what happened as did a paramedic. Defendant did not initially answer, but eventually stated that "somebody" hit him and "possibly stabbed him." Defendant asked Kinlaw about Walls, and said only that he and Walls had an argument over a comment he made to Walls' wife. Defendant reported that Walls got mad and jumped him.

The trial court found that Kinlaw was not required to advise defendant of his Miranda rights because this was "preliminary on-the-scene questioning" of a victim, not a suspect. Although defendant was injured and in pain, nothing suggested that he should not have been questioned, that his answers were not voluntarily given, or that they were otherwise inadmissible. Giving the trial judge's assessment of Kinlaw's credibility the deference to which it is entitled, we agree that Miranda warnings need not have been administered. Defendant was not in custody and did not perceive himself to be in custody. These statements were properly admitted.

b.

We turn next to defendant's statements to Straniero at the hospital. Miranda warnings remind citizens, before they are subjected to police questioning, of their constitutional right to counsel and against self-incrimination. State v. Stott, 171 N.J. 343, 364 (2002). The warnings protect a suspect from the inherently coercive nature of custodial police interrogation. Brown, supra, 352 N.J. at 351. "'Custodial interrogation' means 'questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Ibid. (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706).

In order for such statements to be admissible, "the State must prove beyond a reasonable doubt that the defendant waived his right against self-incrimination, or Miranda rights, and that his decision to do so was knowing, intelligent, and voluntary in light of all the circumstances." State v. Cabrera, 387 N.J. Super. 81, 99 (App. Div. 2006) (citing State v. Knight, 183 N.J. 449, 461-63 (2005)). We ask whether, given the totality of the circumstances, a suspect's waiver was indeed knowing, intelligent and voluntary. Id. at 99-100.

The trial court's findings on this score must be supported by the credible evidence in the record, and the court's legal conclusions must be valid. Smith, supra, 374 N.J. Super. at 430. We give substantial deference to those findings arising from the judge's opportunity to observe the witnesses' demeanor and to develop a feel for the case. Ibid.

It is undisputed that Straniero read defendant his Miranda rights after he was treated at the hospital. Straniero testified that he was there in order to ascertain the extent of defendant's and McLeod's injuries, and to recover the bullet removed from McLeod. He did not consider defendant a suspect but advised him of his Miranda rights out of an abundance of caution because of the limited information he had about the incident. Even though defendant had serious facial wounds, he appeared lucid and coherent. Straniero, in addition to eighteen years experience in law enforcement, had been an emergency medical technician since 2001. Nothing about defendant's demeanor caused him to doubt his ability to answer questions.

The trial court ruled that defendant's statements to Straniero to the effect that he had argued with Walls, that it had turned into a pushing match, and that Walls had stabbed him before he shot at him, were admissible. Similarly, defendant's other statements to Straniero that he did not own a gun nor know who fired the shots were also admitted. Defendant was neither handcuffed nor restrained at the hospital. Medical staff had cleared him to speak with police. Nothing in the record indicates that defendant's waiver of his Miranda rights during Straniero's hospital interview was anything but knowing, intelligent, and voluntary.

c.

Last, we analyze defendant's statements to Bendul at the Bergen County Prosecutor's Office. Defendant sat unrestrained in an interview room while he talked to Bendul. He was uncomfortable from the cuts to his face but said that his mind was clear and he would not have any difficulty speaking. Bendul testified that defendant's speech was not slurred, he did not appear to be under the influence of drugs or alcohol, and he was "quiet and approachable."

Bendul advised defendant of his rights using a Miranda form. He read each right to defendant, and after each, defendant confirmed that he understood. Defendant initialed each right and signed a waiver. His initial statement, made after he was informed of Walls' death, was admittedly emotional. He cried for "some time." Defendant's version of events at this juncture included details which establish defendant's mental clarity, including that he and Walls were friends of long standing and that he acted as a witness at Walls' wedding. Defendant reiterated that he only fired the gun after Walls stabbed him.

Although Bendul subsequently told defendant a falsehood, that others were describing the incident differently, this type of misrepresentation is permissible. See State v. Knight, 183 N.J. 449, 463 (2005) (citations omitted) ("'use of a psychologically-oriented technique . . . is not inherently coercive'"); State v. Galloway, 133 N.J. 631, 655 (1993) (citations omitted) ("'The fact that the police lie to a suspect does not, by itself, render a confession involuntary'"); State v. Cooper, 151 N.J. 326, 355 (1997) (citation omitted) (police "misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge"). Defendant asked to use the restroom, asked for water, and asked for a cigarette. All of these requests were accommodated.

At that juncture defendant acknowledged that during the card game he had a knife in his right front pants pocket, a gun in his right back pocket, and that he fired at Walls before the victim stabbed him. He admitted hiding the gun behind the shed in the back yard.

Nothing in the record, medical or otherwise, establishes that defendant's waiver of his Miranda rights was less than knowing, intelligent, and voluntary. Bendul's interview was relatively short in duration and defendant had two breaks during that time. These statements were also properly admitted.

II.

Defendant contends that the court erred in denying his motion for a new trial on the conviction for second-degree aggravated assault because McLeod did not suffer serious bodily injury from the gunshot wound. The trial court charged the jury on serious bodily injury aggravated assault, N.J.S.A. 2C:12-1b(1), as well as the lesser-included offenses of third-degree significant bodily injury aggravated assault, N.J.S.A. 2C:12-1b(7), and disorderly persons simple assault, N.J.S.A. 2C:12-1a(1). McLeod testified he was shot in the thigh, that the bullet lodged in his penis, that he experienced profuse bleeding, and that he still suffered from stiffness and numbness near the entry wound in his leg.

The trial court relied upon State v. Johnson, 216 N.J. Super. 588, 617 (App. Div.), certif. denied, 107 N.J. 647 (1987), in reaching its decision to defer to the jury's fact-finding as to the extent of McLeod's injuries. In Johnson, the victim was shot in the knee, and his injury was sufficient for a conviction of second-degree assault. See id. at 597. An injury to a victim's thigh and penis would certainly appear to be at least as serious. The fact that McLeod was released the following day from the hospital does not negate the gravity of the wounds or undercut the jury's conclusion.

Motions for a new trial should be granted when "required in the interest of justice." R. 3:20-1. No interest of justice is in need of vindication here. The jury had ample evidence from which they could have reasonably reached their conclusion that defendant inflicted serious bodily injury on McLeod. Denial of the motion for a new trial was not error.

III.

In support of his argument that his sentence was manifestly excessive, defendant asserts that the court inappropriately balanced aggravating and mitigating factors, wrongly denied his motion to reduce counts one and three from second-degree offenses to third-degree offenses for sentencing purposes, and erred in making the imprisonment on count three, for the assault upon McLeod, consecutive to count one, the manslaughter conviction.

A sentence should only be disturbed when the trial court fails to follow the sentencing guidelines, when the aggravating and mitigating factors are not supported by the evidence, or when application of the guidelines renders a sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Unless the facts and law show "such a clear error of judgment that it shocks the judicial conscience," a sentence will not be disturbed on appeal. Id. at 364 (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).

The court found aggravating factor one, "the nature . . . of the offense and . . . whether it was committed in an especially heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1a(1); three, "the risk that . . . defendant will commit" other offenses, N.J.S.A. 2C:44-1a(3); and nine, the need to deter him and others, N.J.S.A. 2C:44-1a(9). The court found factor one because defendant "fired six bullets into . . . Walls at . . . close range." The court grounded its conclusion that defendant was at risk to commit other offenses because of his prior arrest history, including a juvenile adjudication and three dismissed charges, occurring in 1970, 1978, and 1989 respectively. The three charges were simple assault, aggravated assault, and child cruelty. The judge also considered that defendant had been hosting illegal gambling games for a number of years, a separate basis for a finding of aggravating factor three. The court properly found that factor three was warranted but should be given limited weight.

As to mitigating factors, the court found factor four, that "[t]here were substantial grounds tending to excuse or justify defendant's conduct," though not amounting to a defense, N.J.S.A. 2C:44-1b(4); factor seven, defendant's lack of a conviction history, N.J.S.A. 2C:44-1b(7); and eleven, that imprisonment would entail excessive hardship on defendant and his dependents, N.J.S.A. 2C:44-1b(11). The court noted that defendant and Walls both had knives during the altercation, that Walls had threatened defendant, and that the cuts to defendant's face required a number of stitches. The court did not give mitigating factor four significant weight because, to some extent, Walls' conduct was taken into consideration by the jury when they found defendant guilty of the lesser passion provocation manslaughter as opposed to first-degree purposeful murder. He did, however, give it "some" weight. As to mitigating factor eleven, the court found that defendant, at fifty-nine, was helping to raise a fourteen-year-old grandchild with his wife of some twenty-three years. He suffered from "various ailments" that qualified him for disability. The court did not give this factor much weight, however, in light of the harm he visited upon Walls' wife, children, and family. After balancing the factors, the sentencing judge concluded that the mitigating and aggravating factors were "relatively comparable," except as to the manslaughter conviction. On that conviction, the court gave the aggravating factors, particularly aggravating factor one, greater weight.

With respect to downgrading offenses for purposes sentencing, N.J.S.A. 2C:44-1f(2) provides:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

In State v. Megargel, 143 N.J. 484, 501-02 (1996), the Court instructed:

The decision to downgrade a defendant's sentence "in the interest of justice" should be limited to those circumstances in which defendant can provide "compelling" reasons for the downgrade. [State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984).] These reasons must be in addition to, and separate from, the "mitigating factors which substantially outweigh the aggravating factors," that the trial court finds applicable to a defendant under the first prong of section 44-1f(2).

The court declined to sentence defendant to a term in the range one degree lower because the mitigating factors simply did not outweigh the aggravating and therefore did not warrant such a reduction. The court underscored that defendant not only drew a knife, but also a gun that he fired numerous times, injuring McLeod, killing Walls, and risking the lives of everyone standing in his front yard. As the trial court put it, "[i]n no way could . . . I ever determine that such a reduction is demanded in the interest of justice."

In our view, substantial credible evidence supports the court's finding as to each aggravating and mitigating factor, and supports the balancing process employed by the court. The mitigating factors did not outweigh the aggravating. Nothing in the record warranted a sentence, in the interest of justice, to a degree lower. The sentence range for a second-degree crime is five to ten years, N.J.S.A. 2C:43-6a(2), and the court sentenced defendant to eight years for manslaughter despite the fact that he shot six bullets into his victim's body. Defendant benefited from the court's weighing process, albeit not to the extent he wished.

The decision whether to impose consecutive or concurrent sentences is discretionary. State v. Abdullah, 184 N.J. 497, 513 (2005); N.J.S.A. 2C:44-5(a). "Under our sentencing scheme, there is no presumption in favor of concurrent sentences . . . ." Abdullah, supra, 184 N.J. at 513. In exercising its discretion, the sentencing court is guided by the Yarbough criteria. State v. Miller, 108 N.J. 112, 122 (1987). Those factors focus on the policy that "there . . . be no free crimes in a system for which the punishment shall fit the crime" and the facts relating to individual crimes, including whether or not the crimes were predominantly independent of each other, involved separate acts of violence, or, most significantly in this case, involved multiple victims. Yarbough, supra, 100 N.J. at 643-44.

The court imposed sentences on count one and count three consecutively because, although defendant's conduct in firing the weapon was aimed at one person, he injured two victims. Additionally, the court viewed defendant's repeated firing of the weapon as posing a danger to the several individuals standing in close proximity. To have run the sentences concurrently would have, in the court's opinion, granted defendant the unwarranted benefit of a free crime. This Yarbough analysis is unimpeachable.

Defendant further contends that McLeod's consent to a concurrent sentence in light of defendant's age and poor health warranted the imposition of concurrent terms. McLeod's forgiveness of defendant, although magnanimous, does not carry the day in terms of the sentence. Sentencing decisions are made based on the Code, and focus on the conduct of the offender. Forgiveness by the victim is not dispositive. It does not address greater societal concerns. As the court noted, defendant deserved separate punishments because, by the repeated discharge of his weapon, he killed Walls and made McLeod an unintended victim.

Defendant's sentence does not shock our conscience. It is not excessive, but rather was closely tailored to fit the crime as well as the individual circumstances of the offender.

 
Affirmed.

Defendant had been indicted for first-degree purposeful murder, N.J.S.A. 2C:11-3a(1), but was convicted only of the lesser-included offense.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

(continued)

(continued)

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A-3835-07T4

April 6, 2010