STATE OF NEW JERSEY v. KEVIN JEROME HUDSON a/k/a KYWAN JUSTICE, KYWUN HUDSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4273-08T24273-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN JEROME HUDSON a/k/a

KYWAN JUSTICE, KYWUN HUDSON,

Defendant-Appellant.

 

Submitted June 7, 2010 - Decided

Before Judges Alvarez and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-07-1466.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin Hudson was convicted by a jury of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and fourth-degree unlawful possession of a weapon (an unknown sharp object) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d. He was sentenced on March 6, 2009, as a discretionary extended-term offender, N.J.S.A. 2C:44-3, to five years with twenty-four months of parole ineligibility, consecutive to a sentence he was then serving. Appropriate fines and penalties were imposed. Defendant appeals and we affirm.

Defendant raises the following points:

POINT I

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR AGGRAVATED ASSAULT. THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL. IN THE ALTERNATIVE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II

THE COURT'S INSTRUCTION ON SECOND DEGREE AGGRAVATED ASSAULT (SERIOUS BODILY INJURY) AND THIRD DEGREE AGGRAVATED ASSAULT (SIGNIFICANT BODILY INJURY) AND THE FAILURE TO CHARGE THE JURY ON THE LESSER INCLUDED OFFENSE OF SIMPLE ASSAULT CONSTITUTED PLAIN ERROR. (Not Raised Below).

POINT III

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE CONVICTION FOR FOURTH DEGREE UNLAWFUL POSSESSION OF A WEAPON (AN UNKNOWN SHARP OBJECT) ON OR ABOUT FEBRUARY 8, 2006. (Partially Raised Below).

POINT IV

THE COURT'S INSTRUCTION ON POSSESSION OF A WEAPON UNDER CIRCUMSTANCES NOT MANIFESTLY APPROPRIATE FOR A LAWFUL USE WAS LEGALLY ERRONEOUS AND VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not Raised Below).

POINT V

THE SENTENCE WAS MANIFESTLY EXCESSIVE AND ILLEGAL.

The twenty-three-count indictment initially charged defendant with crimes against two victims, G.B., the victim in this case, and a second woman with whom defendant was romantically involved. Defendant's severance motion was granted; thus, he was already serving an extended-term sentence of seven years imprisonment, subject to three and one-half years parole ineligibility, for the convictions as to the other victim when tried on the charges as to G.B. The charged conduct was separate and distinct as to each woman.

Eighteen counts in the indictment related to G.B., including attempted murder. Four counts were dismissed on the State's application before trial began. Accordingly defendant was tried on the following: (1) two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); (2) three counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; (3) three counts of fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d; (4) two counts of first-degree kidnapping, N.J.S.A. 2C:13-1b (prior to trial, one of these counts was amended to attempted kidnapping); (5) one count of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3); (6) one count of second-degree sexual assault, N.J.S.A. 2C:14-2c(1); and (7) one count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7).

Defendant's convictions result from a February 8, 2006 incident in Asbury Park. G.B. was then in her early twenties and defendant was forty-six. The two had been casually involved for a little over a year. On that date, G.B. arrived at the train station nearest her home close to midnight. She testified that defendant approached her from the porch of an abandoned house and wanted to speak to her. She refused, and he pulled at her arm and insisted. G.B. claimed that defendant had slashed her cheeks and otherwise assaulted her months earlier, conduct that was detailed in the counts of the indictment of which defendant was acquitted. Although she had received thirty-six stitches to treat the largest cut as a result of the earlier incident, was permanently scarred, and reported the attack, she did not initially identify defendant as her assailant and claimed that some unknown person had tried to rob her. She said she was afraid of him.

When defendant approached G.B. on February 8, she was afraid to rebuff him. Defendant walked G.B. through the parking lots of surrounding apartment complexes as he unsuccessfully tried to gain entry into the basement of each building. After a couple of hours, they entered a hallway where, G.B. testified, defendant proceeded to engage in sexual intercourse with her. After he finished, they resumed walking outside. G.B. told defendant she wanted to go home and attempted to flee. Defendant chased her around a car, grabbed her, and wrestled her into submission, giving her a small black eye in the process. They continued walking around the neighborhood, entered another building, and went to the top of the stairs. G.B. sat down and fell asleep. Defendant was seated two steps down from her when she awakened, but then got up and sat on the steps above her so he could rummage through her bag. He asked if he could listen to her cell phone messages. She immediately began to delete messages from another man, but defendant caught her. He took a plastic bag, placed it over her head, and attempted to suffocate her. G.B. poked a hole in the bag with her finger. Defendant said she was making him angry and placed a second bag over her head through which she also poked a hole so she could breathe.

Defendant then pulled out what G.B. described as looking like an "eyebrow archer," a razor blade with a plastic handle. She exclaimed, "oh you're going to cut me again," and defendant confirmed her that he was indeed going to "cut [her] up." He sliced the blade over the fresh scar on her face, inflicting a new tiny cut which did not require medical attention. He then placed the eyebrow archer against her neck and made several additional cuts. Eventually, as the two sat on the top of the stairs, G.B. saw daylight through a window and heard people stirring. They left the building, when G.B. coincidentally saw Officer Charles Graves, to whom she had reported the prior assault. Defendant saw Graves as well, and told G.B. that here was her opportunity to go to police. She said nothing to Graves, and defendant let her go home. G.B. explained that she said nothing to Graves because of her fear of defendant. She did not call 9-1-1 or her mother during that night because she believed "not doing anything was the only thing that was going to keep [her] alive." Once she returned home, G.B. went to sleep for a brief period, woke up, showered, cleaned her neck and face, and went to work.

Within a day or so, G.B. told her mother about the incident and was taken to the police station. She filed a complaint as to the February 8 incident and the prior October 12, 2005 attacks, although she did not report the sexual assault until February 16, 2006.

G.B. admitted that between February 8 and February 21, she spoke with defendant over the phone when either he would call her or she would call him to find out where he was so she could avoid him. She told him she had reported the incidents to police.

On February 21, 2006, defendant approached G.B. again as she was on the phone to police while walking home alone from a bus station. Defendant showed her a steak knife and stabbed her in the stomach with the handle. Defendant said he just wanted to talk to her and walked on with G.B. a few steps behind him. G.B. surreptitiously called 9-1-1 and kept the phone in her pocket. When she saw a police cruiser approach, she "screamed and ran out into the middle of the street." She then told the officer in the vehicle, Sergeant Marshawn Love, that defendant had assaulted her with a knife. Defendant fled but was quickly apprehended.

Defendant's testimony was that G.B. was more interested in pursuing the relationship than he was, that she wanted to marry him, and have children with him. He claimed that although the relationship had started off reasonably well, it deteriorated because G.B. was an extremely jealous person who was greedy, manic depressive, and had low self-esteem because she was unhappy with her appearance. He denied the October 12 incidents, of which he was acquitted, because he was at home babysitting his son. He also claimed that G.B. knew by February 2006 that he was going to end his relationship with her because he was again involved with his son's mother. Defendant denied having had any contact with her on February 8, 2006, asserting that on that date he was in Perth Amboy assisting his brother. Defendant testified that he did not approach G.B. on February 21; rather, he stated that she approached him because she wanted to talk about his relationship with his son's mother. He alleged that G.B. "lunged at [him] with a knife," but denied that he had shown her a weapon or stabbed her in the stomach with a knife handle.

During defendant's attempted flight from police, he was observed throwing his backpack into a dumpster. The backpack contained plastic bags, socks, a black glove, a black mask, numerous latex gloves, and a jar of gasoline. Defendant insisted on the stand that he ran from police because he was nervous. He initially denied any knowledge of the latex gloves in his backpack but then said that he intended to use them when working with the gasoline necessary to his hobby of racing model airplanes and model cars.

I.

Defendant first contends that the trial judge erred in denying his Rule 3:18-1 motion for acquittal as to the aggravated assault charge stemming from the February 8 incident. In his third point, he argues the judge erred in denying his motion for acquittal as to the charge of fourth-degree unlawful possession of a weapon. In fact, no such motions were made as to either of these offenses.

Defense counsel did argue during the charge conference that the State had presented insufficient evidence on the issue of whether G.B. had suffered serious bodily injury as required on a second-degree aggravated assault. See N.J.S.A. 2C:12-1b(1). Serious bodily injury is injury that "creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss of impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b. As the court pointed out, however, the severity of the injury was a factual issue well within the jury's provenance. See State v. Sloane, 111 N.J. 293, 298-99 (1988) (stating that question of severity of wound should be left to jury). Moreover, defendant faced the possibility of conviction not only resulting from the infliction of serious injury, but on the theory that he attempted to inflict serious bodily injury. N.J.S.A. 2C:12-1b(1). A jury could readily conclude that the cuts to G.B.'s face and neck, particularly over her old scar, or the attempts to suffocate her, constituted attempts to cause "serious bodily injury." See ibid.

In any event, the court elected to charge the jury on the lesser-included third-degree aggravated assault as well. That offense requires that the State prove an attempt "to cause significant bodily injury to another or cause[] significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly cause[] such significant bodily injury." N.J.S.A. 2C:12-1b(7). Significant bodily injury is defined as "bodily injury which creates a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1d.

G.B.'s testimony constituted sufficient evidence to withstand a motion for acquittal, even if one had been made. The jury could reasonably conclude from the proofs that defendant at least attempted to cause significant bodily injury to G.B. She testified that defendant inflicted multiple cuts on her face and neck and attempted to suffocate her, conduct which fits within the statutory definition.

Moreover, if the jury credited G.B.'s testimony, the verdict was not against the weight of the evidence. And as the trial court observed, defendant's inconsistent testimony rendered his credibility highly suspect. It was therefore reasonable for the jury to believe G.B.'s version of events and conclude that an attempt to cause significant bodily injury occurred or that significant bodily injury was inflicted. See State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.) (stating that reviewing courts should not reverse verdict "merely because it might have found otherwise upon the same evidence" because of jury's ability to assess witness credibility), certif. denied, 102 N.J. 312 (1985) (citations omitted).

Fourth-degree unlawful possession of a weapon is defined as knowingly possessing a weapon "under circumstances not manifestly appropriate for such lawful uses as it may have." N.J.S.A. 2C:39-5d. A weapon is "anything readily capable of lethal use or of inflicting serious bodily injury." N.J.S.A. 2C:39-1(r). The weapon charged in this case was the "unknown sharp object" that G.B. described as an eyebrow archer. If believed, her testimony was sufficient to establish the existence of a weapon and the circumstances surrounding defendant's possession.

Defendant suggests that because he was acquitted of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, he was improperly convicted of unlawful possession of a weapon. These are two distinct crimes with distinct elements. During deliberations, the jury asked to be recharged as to the differences between the two crimes. We think their question establishes only that they carefully examined the evidence in light of the instructions.

In cases where the reason for the inconsistency is not clear, "[i]nconsistent verdicts are permitted as long as there is sufficient evidence to permit a rational factfinder to find a defendant's guilt beyond a reasonable doubt on the charges on which the defendant was convicted." State v. Ellis, 299 N.J. Super. 440, 455-56 (App. Div.), certif. denied, 151 N.J. 74 (1997). When the evidence is sufficient to convict but a defendant has been acquitted of a crime that precludes the finding of an element of the crime of which he was convicted, the verdict will not be sustained. See State v. Grey, 147 N.J. 4, 16-17 (1996). If, however, the reason for the inconsistency cannot be determined, the verdict should be sustained. Id. at 11-12 (citing United States v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 476-77, 83 L. Ed. 2d 461, 468-69 (1984); State v. Williams, 289 N.J. Super. 611, 616 (App. Div. 1996) (citation omitted). Inconsistency in verdicts does "not necessarily indicate that the jury was unconvinced of the defendant's guilt." Grey, supra, 147 N.J. at 9 (citation omitted). Rather, an inconsistent "verdict might indicate only an exercise of leniency or nullification." Ibid. (citation omitted). While illogical or inconsistent verdicts are not tolerated in civil trials, they are upheld in criminal cases so long as there is sufficient evidence to support the conviction beyond a reasonable doubt. Id. at 10 (citations omitted).

We are satisfied that the jury's acquittal of defendant on the charge of possession of a weapon for an unlawful purpose does not represent an inconsistency that would preclude a finding of an element of the crime of which he was convicted. See id. at 16-17. There is a significant difference between possession of a weapon for unlawful purpose and possession of a weapon in "circumstances not manifestly appropriate" for the item's lawful use; one does not preclude the other. See N.J.S.A. 2C:39-5d; N.J.S.A. 2C:39-4d. Defendant cannot suggest that his possession of an eyebrow archer while in the midst of a several-hours-long encounter with G.B. was possession of a weapon in circumstances appropriate for lawful use. See N.J.S.A. 2C:39-5d. There was sufficient evidence in the record to convict defendant beyond a reasonable doubt. See id. at 10. We therefore find defendant's assertion to lack merit.

We reiterate that defendant cannot claim the court erred in denying motions for acquittal as to the offenses of aggravated assault and unlawful possession of a weapon as no such motions were made. He also asserts that his trial counsel's arguments at sentencing were the "functional equivalent of a motion for a new trial." Clearly they were not.

Because no such motions were made, defendant's further position that the jury's verdicts were rendered against the weight of the evidence is not cognizable on appeal. See R. 2:10-1. Such arguments cannot be entertained "unless a motion for a new trial on that ground was made in the trial court." Ibid. In any event, no "miscarriage of justice under the law" occurred because, as we have discussed above, the jury had a rational basis for finding defendant guilty beyond a reasonable doubt of third-degree aggravated assault, and there was no inconsistency in its guilty verdict on the charge of fourth-degree unlawful possession of a weapon. See R. 2:10-1. See also State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006) (citations omitted). The jury's verdict is grounded upon its assessment of witness credibility, and no plain error occurred. See State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993).

II.

Defendant further contends that the trial judge erred in his instructions as to second-degree aggravated assault and third-degree aggravated assault, as well as in failing to charge the jury on the lesser-included offense of simple assault. Since these contentions were not raised before the trial court, they are subject to the plain error analysis and we do not reverse unless the appellant shows it was "clearly capable of producing an unjust result." R. 2:10-2. Furthermore, not any possibility of an unjust result will suffice: "[t]he 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." State v. Macon, 57 N.J. 325, 336 (1971).

Initially, we note that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. . . . Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (citation omitted). Jury instructions are "'a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations.'" State v. Cuni, 303 N.J. Super. 584, 603 (1997), aff'd, 159 N.J. 584 (1999) (quoting State v. Gartland, 149 N.J. 456, 475 (1997)).

As we have said, defendant failed to object to the challenged instructions as required under Rule 1:7-2 and failed to request an instruction as to simple assault. When counsel fails to object, it may be presumed that the instructions were adequate. Macon, supra, 57 N.J. at 333. If counsel makes no objection, it is indicative that no prejudice was perceived to result from the charge. State v. Wilbely, 63 N.J. 420, 422 (1973).

Consequently, in this context, plain error would constitute "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Afanador, supra, 151 N.J. at 54 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Bearing these principles in mind, we examine the substance of the judge's charge and the impact, if any, of the omission of the simple assault instruction.

Defendant theorizes that the jury's acquittal on the more serious second-degree charge meant that trial counsel correctly argued the testimony did not establish "serious bodily injury" within the meaning of N.J.S.A. 2C:11-1b. This does not affect the judge's analysis, however. As he reasoned, should the jury believe G.B. and not defendant, the jury could reasonably conclude that the statutory elements of the third-degree offense were met.

A court may charge a jury on a lesser-included offense when the included crime satisfies the definition contained within N.J.S.A. 2C:1-8d. State v. Ruiz, 399 N.J. Super. 86, 96 (App. Div. 2008) (citation omitted) (alteration in original). Additionally, there must be "'a rational basis in the [record] to support'" an acquittal on the greater offense and a conviction on the lesser-included offense before the jury can be charged with the included crime. Ibid. (citation omitted). In such instances, the "trial court has an independent obligation to" charge the lesser-included offense. State v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted). This is true when the lesser charge is clearly indicated by the facts; the court is not required to examine the entire record to find lesser-included offenses. Sloane, supra, 111 N.J. at 303.

Charging the jury with clearly indicated lesser-included offenses is crucial to a fair trial; otherwise "a jury [that is] reluctant to acquit [a] defendant might compromise on" finding the defendant guilty of the more serious crime. Id. at 299. On the other hand, charging a lesser-included offense that is not clearly indicated could cause a conflicted jury to settle on the lesser offense when it is not supported by the evidence. See id. at 298-99.

Defendant was charged with second-degree aggravated assault, defined as "[a]ttempt[ing] to cause serious bodily injury to another, or caus[ing] such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly caus[ing] such injury." N.J.S.A. 2C:12-1b(1). The lesser-included offense of third-degree aggravated assault differs substantively from second-degree crime by the substitution of the word "serious" with "significant." N.J.S.A. 2C:12-1b(7). Because the third-degree charge "differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person . . . suffices to establish its commission," it satisfies the first requirement under Ruiz. See N.J.S.A. 2C:1-8d(3).

Ample evidence supported a finding of either serious or significant bodily injury given G.B.'s testimony about defendant's assaultive conduct towards her on the night in question. If the jury believed G.B.'s testimony, the conduct included placement of two plastic bags over her head, cuts inflicted on her face and neck, and a black eye.

Defendant contends that even if G.B. was believed, the evidence supported a finding solely of "bodily injury," and the trial court therefore was obliged to also, sua sponte, charge the jury with simple assault. Simple assault is an "[a]ttempt[] to cause or purposely, knowingly or recklessly cause[] bodily injury to another." N.J.S.A. 2C:12-1a(1). "'Bodily injury' means physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1(a). We do not agree.

The testimony indicated more than an attempt to cause or the actual causing of mere bodily injury. Defendant deliberately placed bags over G.B.'s head and tightened them around her neck, actions that strongly suggest an attempt to cause serious or significant injury. He also cut her face and neck with a sharp object, actually cutting her along the fault line of the scar he previously inflicted, further indicating an intent to cause serious or significant injury. Even if we were convinced that G.B. only suffered bodily injury due to the depth of the cuts and her ability to poke holes in the bags, the conduct was, at a minimum, an attempt to cause a more severe injury and therefore does not fit within the definition of simple assault. Accordingly, we find that the court was not obligated to sua sponte charge the jury as to simple assault and that the decision to charge third-degree aggravated assault was correct.

Defendant also objects to the court's instruction as to unlawful possession of a weapon. This argument too is without merit. Defendant did not object to the jury charge at the time it was given. Hence, this claim is also subject to the plain error standard of review. See R. 2:10-2.

The court's instruction mirrored the model jury instruction almost verbatim. See Model Jury Charge (Criminal), "Unlawful Possession of a Weapon" (2005). Nonetheless, defendant contends that the model charge is "woefully inadequate" and "legally erroneous." He argues that the included definition of a weapon ("anything readily capable of lethal use or of inflicting serious bodily injury") is undermined by the subsequent explanation on possession:

It is, however, necessary for the State to prove that [the weapon] was possessed under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon; in other words, under circumstances where it posed . . . a likely threat of harm to others. . . .

[Ibid. (emphasis added).]

Contrary to defendant's contentions, the cited portion of the charge does not redefine a weapon as an object that merely threatens harm rather than one which can cause death or serious bodily injury. Instead, the charge correctly defines a weapon and then, in the context of possession, explains that the weapon must have been possessed under circumstances where it was likely to threaten harm. Ibid. When added to the definition of weapon, it is clear that the harm referred to is death or serious injury. Thus, the court's use of the model jury charge was not plain error.

III.

Defendant's final point is that his sentence was manifestly excessive and illegal. We find no merit to these claims either.

When reviewing a sentence, the appellate court must: (1) ensure the sentencing guidelines were not violated; (2) "review the aggravating and mitigating factors found" by the trial court and "determine whether [they] were based" on credible evidence; and (3) determine whether, even if the first two criteria are met, the sentence nonetheless shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364 (1984). See also State v. Dalziel, 182 N.J. 494, 501 (2005) (stating that exercise of discretion must be based on proper "'legal principles'" and factual findings that are "'grounded in competent, reasonably credible evidence,'" and reversal or modification will occur "'when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience.'") (citation omitted).

Defendant claims his sentence was improper because the court imposed an extended term when he had already received an extended term for another charge on the same indictment. Pursuant to N.J.S.A. 2C:44-5a(2), "[n]ot more than one sentence for an extended term shall be imposed" at the time of sentencing. "[A] court may impose only one extended term on one sentencing occasion." State v. Papasavvas, 163 N.J. 565, 627 (2000), corrected by 164 N.J. 553 (2000).

At the sentencing hearing, defendant conceded that his prior convictions made him eligible for an extended term. He argued, however, that imposition of the term was improper under Papasavvas because he had been sentenced to an extended term at an earlier proceeding on the severed charges. He contended that imposing a second extended term would essentially punish him "for going to trial" as to the entire indictment.

The court agreed that defendant qualified for the extended term based on his criminal record and pointed out that the hearing regarding the convictions with respect to G.B. was "a second and separate sentencing hearing." The court distinguished Papasavvas, finding that in defendant's case there were "two different victims," "two different courts," and two different sentencing proceedings. It concluded that these facts permitted imposition of a second extended term, even if the convictions originally stemmed from the same indictment.

The trial court imposed an extended sentence when the defendant was already serving such a sentence in State v. Reldan, 231 N.J. Super. 232, 237-38 (App. Div. 1989). Referring to N.J.S.A. 2C:44-5a(2), we found that "the statute speaks only to situations where multiple sentences are imposed at the same proceeding for more than one offense. The statute has no application to [a] case where extended terms are imposed by two different courts for different offenses at proceedings separated by a span of [] years." Id. at 238. See also State v. Williams, 299 N.J. Super. 264, 272-73 (App. Div. 1997) (citation omitted).

Although the charges on which defendant received extended terms originated from the same indictment, he sought severance and subjected himself to two separate trials and two separate sentencing proceedings. He cannot now be heard to complain about the consequences of his successful application.

Defendant received two extended terms for separate crimes against separate victims. He was sentenced by two different courts almost two years apart. Despite receiving an extended term for these offenses, the actual sentence imposed was in the non-extended-term range for third-degree crimes. See N.J.S.A. 2C:43-6a(3). The trial court did not err in imposing an extended term on defendant's third-degree aggravated assault conviction.

Defendant next contends that the court "failed to properly find and weigh the" mitigating and aggravating factors. This argument is similarly without merit.

The court found no mitigating factors but found the following aggravating factors: (1) N.J.S.A. 2C:44-1a(3), "[t]he risk that defendant will" reoffend; (2) N.J.S.A. 2C:44-1a(6), his "prior criminal record" and present conviction for serious offenses; and (3) N.J.S.A. 2C:44-1a(9), the need to deter. These factors were amply supported by the record, which shows an extensive prior criminal history dating back to 1978, when defendant was nineteen years old. His prior convictions include aggravated assault, petit larceny, burglary, and weapons possession.

Defendant submits that the court should have found mitigating factors N.J.S.A. 2C:44-1b(1) and N.J.S.A. 2C:44-1b(2), that "defendant's conduct neither caused nor threatened serious harm" and he "did not contemplate that" it would do so. By acquitting defendant of second-degree aggravated assault, the jury found that defendant did not cause serious bodily injury to G.B.; however, his actions in cutting her and placing bags over her head at least threatened serious harm. It is not credible that defendant could have engaged in such conduct without anticipating that his actions would cause such a result. Therefore, the court's failure to find mitigating factors one and two was not error.

Defendant also contends that the court should have found mitigating factor N.J.S.A. 2C:44-1b(4), that "substantial grounds" existed to excuse or justify his conduct. Defendant states that he was experiencing depression but no evidence was produced that would have actually supported a finding of this factor for any reason. Contrary to defendant's contentions, no evidence existed suggesting the court erred by failing to order him to undergo a psychological evaluation pursuant to N.J.S.A. 2C:44-6.

The same is true of defendant's argument that G.B. "induced," "facilitated," or provoked his conduct and that he was therefore entitled to the mitigating factors in N.J.S.A. 2C:44-1b(3) and N.J.S.A. 2C:44-1b(5). Certainly, it is possible G.B. and defendant were merely having relationship problems, but no evidence in the record suggested she did anything to provoke or induce defendant to cut her or attempt to suffocate her.

Finally, defendant argues that "imprisonment . . . would entail excessive hardship" on his strong relationship with his son and his role as caretaker; in other words, that he is entitled to the mitigating factor contained in N.J.S.A. 2C:44-1b(11). Although defendant testified that he was taking care of his son during the October attack, he presented no other evidence demonstrating any role defendant played in his son's life.

Thus, the court did not err in failing to apply any mitigating factors. Its decision that the aggravating factors significantly outweighed any other consideration was based on substantial evidence in the record and was not an abuse of discretion.

Affirmed.

 

The court and the parties clarified on the record at the commencement of the trial that the State was proceeding on thirteen indictment counts. A fifth charge, first-degree certain persons not to have weapons, N.J.S.A. 2C:39-7a, according to the judgment of conviction, was dismissed by the court after trial.

(continued)

(continued)

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A-4273-08T2

July 21, 2010