STATE OF NEW JERSEY v. MARK ANTHONY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4951-07T44951-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK ANTHONY,

Defendant-Appellant.

_______________________________________________

 

Submitted November 10, 2009 - Decided

Before Judges Wefing and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-10-2283.

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

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Anthony Marks appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(7); and second-degree bias intimidation, N.J.S.A. 2C:16-1. After merging the conspiracy charge into the aggravated assault conviction, the judge sentenced defendant to a four-year term of imprisonment, and imposed a consecutive eight-year term, with a four-year period of parole ineligibility, on the bias intimidation conviction.

On appeal, defendant raises the following issues:

POINT ONE

THE [ANTI-]MERGER PROVISION[S] OF N.J.S.A. 2C:16-1(e) VIOLATE[] THE DUE PROCESS AND DOUBLE JEOPARDY PROVISIONS OF THE STATE CONSTITUTION AND THEREFOR[E] THE SENTENCE IMPOSED ON THAT COUNT MUST BE VACATED. (NOT RAISED BELOW)

POINT TWO

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE

POINT THREE

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter for re-sentencing.

I.

At approximately 3:30 a.m. on June 20, 2003, M.D. Morshed, a taxicab driver of Bangladeshi descent, was walking along the streets of Atlantic City. Morshed had been drinking in the D j Vu Lounge for several hours. A.K. Mohammad, a fellow cab driver who was also of Bangladeshi descent, saw his friend and exited his parked cab to greet him. The two men conversed for a short time on the sidewalk before a gray truck with Oklahoma license plates passed by, circled back toward Mohammad's cab, and parked behind it.

Defendant and his co-defendant, Danny Vlado, emerged from the truck and asked Mohammad, "What the hell are you doing here?" They were "aggressive," cursed Morshed and Mohammad, and told them to "[g]o back to [their] country." Morshed tried to avoid them, but defendant and Vlado continued to approach, calling the two men "[m]other fucker, Muslim, son[s] of bitch." Both men "attacked [Mohammad] simultaneously[,]" but he ran to the other side of his cab and was able to avoid them.

The men then turned their attention to Morshed, striking him in the nose and breaking it. One man held him "from the back[,]" while the other continued to hit him "all over [his] body." Morshed fell to the ground and was repeatedly kicked by defendant and Vlado. He claimed that one of the men retrieved an iron rod from the truck and hit him in the head. His assailants left the scene in their truck.

Morshed passed out; his next memory was awakening in the Atlantic City Medical Center where he was treated in the intensive care unit for four days. He remained unable to return to work for two years, and, as of the date of the trial, forty-two months after the events, Morshed still suffered from blurred vision.

Cab driver Brispulo Fuentes saw the assault and called 911. The police responded, tended to Morshed, and broadcast a description of defendant's vehicle. Approximately two blocks from the scene, other officers stopped the truck. Mohammad was asked to follow the police to the scene of the motor vehicle stop where defendant and Vlado were already outside the truck standing against a wall. Atlantic City police officer Brett Foster testified that Vlado and defendant were "both very agitated, [and] angry," when they saw Mohammad. Mohammad identified defendant and Vlado as the assailants. In court, he identified defendant, but could only testify that Vlado looked "very much like" the other attacker.

Both defendant and Vlado testified; neither denied being involved in the altercation with Morshed and Mohammad. Defendant claimed that a fight ensued over insulting remarks that Morshed made to two women on the street. Vlado, who was of Asian-Indian descent, claimed that Mohammad tried to quiet his friend in his native Bangla tongue. Defendant called Morshed "a fucking jerk" for insulting the women, causing Morshed to approach the truck, grab defendant's shirt, and attempt to pull him through the window of the vehicle. Ultimately, a struggle ensued between defendant, Vlado and Morshed. Defendant claimed that Vlado was the major aggressor in the assault.

Defendant and Vlado were both convicted of aggravated assault, conspiracy, and bias intimidation. At sentencing, defendant moved for a new trial contending, among other things, that the verdicts were against the weight of the evidence. The judge rejected the argument, concluding "[t]here was an abundance of evidence" supporting the jury's decision.

After merging the conspiracy and aggravated assault convictions, the judge reviewed defendant's background, noting that he was "31 years old and ha[d] a substantial criminal history of sixteen arrests." Since the events at issue, defendant had been convicted of "falsifying or tampering with public records and burglary." Defendant also had outstanding warrants for his arrest from Maryland. The judge took note that defendant "has never held a legitimate position of employment." Based upon these facts, the judge found aggravating factors three (the risk of re-offense) and nine (the need to deter) existed. See N.J.S.A. 2C:44-1(a)(3) and (9). He found no mitigating factors. See N.J.S.A. 2C:44-1(b). The judge concluded that "the aggravating factors outweigh[ed] the mitigating . . . ."

The judge further noted that "the issue of whether . . . consecutive sentences should be imposed" required consideration of the factors cited in State v. Yarbough." Although N.J.S.A. 2C:16-1(e) "d[id] not mandate consecutive sentences," the judge concluded that concurrent sentences would "provide a de facto merger and ignore the fact that these were indeed separate crimes." He continued:

The aggravated assault is a serious offense independent of the bias crime since it resulted in substantial injuries to the victim. The bias nature of the crime stands on its own since it targets an evil separate and apart from that targeted by the aggravated assault statute. A concurrent sentence would also be viewed as providing a free crime where we are mandated that punishment should fit the crime and that there be no free crimes. Accordingly, consecutive sentences are deemed necessary.

The judge did not provide any explanation for his decision to impose a period of parole ineligibility on the bias intimidation conviction. This appeal ensued.

II.

In Point One, defendant poses "a direct challenge to the validity of N.J.S.A. 2C:16-1(e)," arguing that its anti-merger provision resulted in "double punishment for the same offense[,]" thereby violating the Double Jeopardy provisions of the United States and the State Constitutions. Relying extensively on State v. Dillihay, 127 N.J. 42 (1992), defendant argues that subsection (e) permits double punishment for a single criminal act, in this case, the assault upon Morshed, without the requirement that the State prove any other conduct proscribed by the Criminal Code.

The State counters by arguing that if the Legislature "specifically authorizes" double punishment for the same conduct pursuant to two statutes, the Double Jeopardy clauses are not implicated. In the case of bias intimidation, the State contends the Legislature did just that.

To be guilty of bias intimidation, a person must commit "an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes . . . ," "with a purpose to intimidate[,]" or "knowing . . . [such] conduct . . . would cause an individual . . . to be intimidated because of [his] race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity . . . ." N.J.S.A. 2C:16-1(a)(1) and (2). Based upon a specific interrogatory, the jury found that defendant committed an aggravated assault upon Morshed "with the purpose to intimidate him" "[b]ecause of his color or ethnicity." Defendant's challenge is specifically to N.J.S.A. 2C:16-1(e) which provides:

Notwithstanding the provisions of N.J.S.[A.] 2C:1-8 or any other provision of law, a conviction for bias intimidation shall not merge with a conviction of any of the underlying offenses referred to in subsection a. of this section, nor shall any conviction for such underlying offense merge with a conviction for bias intimidation. The court shall impose separate sentences upon a conviction for bias intimidation and a conviction of any underlying offense.

[Ibid. (emphasis added).]

Our Supreme Court "ha[s] consistently interpreted New Jersey's constitutional double-jeopardy protection . . . as co-extensive with the guarantee of the federal constitution." Dillihay, supra, 127 N.J. at 47 (citations omitted).

Federal double-jeopardy principles require a two-step analysis to determine whether multiple punishment violates double jeopardy. The first step requires the court to consider whether the legislature intended to impose multiple punishments. The federal double-jeopardy guarantee serves principally as a restraint on courts and prosecutors. Therefore, [w]here a legislature specifically authorizes cumulative punishment under two statutes, a court's task of statutory construction is at an end and the trial court or jury may impose cumulative punishment.

[Id. at 47-48 (quotations and citations omitted) (emphasis added).]

"Because the wording used by the Legislature provides the most direct path toward understanding legislative intent, we examine the plain language of the statute and ascribe to the words their ordinary meaning." State v. Smith, 197 N.J. 325, 332 (2009).

Recently, in State v. Quezada, 402 N.J. Super. 277, 287 (App. Div. 2008), we construed the anti-merger provision of N.J.S.A. 2C:30-7(b) which contains nearly-identical language to that contained in N.J.S.A. 2C:16-1(e). Concluding that "[n]othing could be clearer with respect to the legislative intent[,]" we rejected the defendant's argument that his conviction for official misconduct should merge with his conviction for committing a pattern of official misconduct. Id. at 289.

Similarly, in this case, the legislature's intent is clear. We must agree with the State that by enacting the specific language contained in N.J.S.A. 2C:16-1(e) -- prohibiting any merger between the two offenses and requiring that the judge "impose separate sentences upon a conviction for bias intimidation" -- the "legislature specifically authorize[d] cumulative punishment under two statutes . . . ." We therefore reject defendant's argument that the anti-merger provisions of N.J.S.A. 2C:16-1(e) violate the Federal or State Constitutions.

We find the argument that the jury's verdicts were against the weight of the evidence to be of insufficient merit to warrant extensive discussion. See R. 2:11-2(e)(2). Defendant raises no specific argument in this regard in his brief. It suffices to say that the jury had the opportunity to assess the credibility of defendant and the various witnesses; the evidence was clearly sufficient to support the verdicts, and we find no basis to disturb them.

Defendant argues that the judge inappropriately found aggravating factors three and nine, and failed to find as appropriate mitigating factors, N.J.S.A. 2C:44-1(b)(9) (his "character and attitude" make it "unlikely [he will] commit another offense"), and (12) (his "willingness . . . to cooperate with law enforcement authorities"). As a result, the sentence was manifestly excessive and we should remand for re-sentencing. We disagree.

The judge's findings with respect to the aggravating factors were amply supported by evidence of defendant's criminal record and the seriousness of the crimes for which he was convicted. We find no reason whatsoever to conclude that the judge should have found the mitigating factors defendant now urges. There is no support in the record for either. When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. See State v. Roth, 95 N.J. 334, 364-65 (1984). We find no reason to disturb the sentence imposed on these grounds.

Nonetheless, we remand the matter to the trial judge for re-sentencing as to the mandatory period of parole ineligibility he imposed as part of defendant's sentence for bias intimidation. At sentencing, the prosecutor sought the imposition of a period of parole ineligibility "on one of the counts." She argued that a mandatory minimum sentence was justified pursuant to N.J.S.A. 2C:43-6(b). As noted above, the judge did not explain his reasons for imposing a four-year period of parole ineligibility.

"[W]here the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors, . . . [it] may fix a minimum term not to exceed one-half of the term . . . ." N.J.S.A. 2C:43-6(b).

In making this decision, the court balances the same aggravating and mitigating factors used to determine the appropriate sentence. The standard for balancing the factors, however, is different. In determining the appropriate sentence, the court must decide whether there is a preponderance of aggravating or mitigating factors. When determining parole ineligibility, by contrast, the court must be clearly convinced that the aggravating factors substantially outweigh the mitigating factors. The different standard reflects the fact that [p]eriods of parole ineligibility are the exception and not the rule. They are not to be treated as routine or commonplace.

[State v. Kruse, 105 N.J. 354, 359 (1987) (quotation omitted).]

Once the judge decides a period of parole ineligibility is appropriate, he must "identify the aggravating and mitigating factors, describe the balance of those factors, and explain how [he] determined defendant's sentence." Id. at 360. The failure to do so makes "appellate review . . . difficult, if not futile." Ibid.

Here, the judge gave no rationale for his decision to impose a period of parole ineligibility, nor did he engage a second time in the necessary weighing analysis that permits us to review the appropriateness of this aspect of the sentence. We hasten to add that we express no particular opinion on whether the imposition of a period of parole ineligibility was a mistaken exercise of the judge's discretion under all the circumstances. We therefore remand the matter to the judge for further proceedings consistent with our opinion.

 
In sum, we affirm defendant's conviction; we remand the matter for re-sentencing in accordance with our decision. We do not retain jurisdiction.

Defendant's notice of appeal was filed under the name Mark Anthony. However, the indictment denominates him as Anthony Marks, the same name that was used throughout the trial. We shall refer to defendant as Anthony Marks throughout this opinion.

After summations, Vlado failed to appear for trial and was absent when the verdicts were announced. A bench warrant issued, and he was apprehended and sentenced before defendant. We affirmed Vlado's conviction and sentence on appeal. State v. Danny Vlado, No. A-1693-07 (App. Div. June 16, 2007).

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

We rejected a similar challenge to the statute in Vlado's appeal. Vlado, supra, slip op. at 8-9.

A third culpable mental state is provided by N.J.S.A. 2C:16-1(a)(3). One noted commentator has observed that the provision is "not clear." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:16-1 (2008). That subsection of the statute is not relevant to our decision.

"Notwithstanding the provisions of N.J.S.[A.] 2C:1-8 or any other law, a conviction of pattern of official misconduct shall not merge with a conviction of official misconduct, official deprivation of civil rights, or any other criminal offense, nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences upon each violation . . . ." N.J.S.A. 2C:30-7(b).

Defendant has not specifically challenged the imposition of a consecutive sentence in this case. In its brief, the State argues that N.J.S.A. 2C:16-1(e) "authorized [the judge] to impose separate sentences and specifically authorized [him] to make them run consecutively." To the extent this implies that the statute requires a consecutive sentence, a position the State espoused at sentencing, we specifically decline the opportunity to address the question. However, in State v. Dixon, 396 N.J. Super. 329, 342-44 (App. Div. 2007), though the issue was not directly before us, we implicitly did not agree with the State's interpretation of the statute.

Here, the judge rejected the notion that he was required to impose a consecutive sentence. Instead, he specifically relied upon the factors enunciated in Yarbough, supra. Those factors focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). The judge rejected the imposition of a concurrent sentence because it "would . . . be viewed as providing a free crime where we are mandated that punishment should fit the crime and that there be no free crimes." See Yarbough, supra, 100 N.J. at 643 ("there can be no free crimes in a system for which the punishment shall fit the crime"). The judge further noted that the bias intimidation statute "targets an evil separate and apart from that targeted by the aggravated assault statute." However, the "nature and number of offenses" are only some of the factors supporting a consecutive sentence. In this case, consideration of the other factors -- the fact that only one victim was involved and that the criminal conduct occurred at one time and in one place -- might be viewed as mitigating against the imposition of a consecutive sentence. Because the issue is not before us, we express no opinion.

However, we are concerned about the imposition of a consecutive sentence in this case for another reason, i.e., whether the "no free crimes" rationale expressed in Yarbough, supra, should apply in the context of sentences imposed under a statutory scheme that contains an anti-merger provision such as that contained in N.J.S.A. 2C:16-1(e). In other words, where a defendant is convicted of two crimes, one of which is wholly-included within the other, and which, but for an applicable anti-merger provision, would merge by operation of N.J.S.A. 2C:1-8, is a consecutive sentence appropriately supported by the mere fact that two separate crimes requiring two separate sentences are involved?

As a court of intermediate appellate jurisdiction, we do not presume to decide whether the Yarbough "no free crimes" factor applies to such situations. That is more appropriately left to our Supreme Court. See Proske v. St. Barnabas Med. Ctr., 313 N.J. Super. 311, 316 (App. Div. 1998) (declining to address an issue "'in the absence of [any] precedent, or . . . clear direction by dictum from our Supreme Court'") (quoting Coyle v. Englander's 199 N.J. Super. 212, 226 (App. Div. 1985)), certif. denied, 158 N.J. 685 (1999).

We note in passing that the judge did not impose any period of parole ineligibility upon co-defendant Vlado.

(continued)

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A-4951-07T4

February 5, 2010