STATE OF NEW JERSEY v. EVILE MALBRANCHE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EVILE MALBRANCHE,

Defendant-Appellant.

________________________________________________________________

June 8, 2016

Submitted May 10, 2016 Decided

Before Judges Espinosa and Currier.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-01-0014.

Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Y. Lerer, Assistant Deputy Public Defender, of counsel and on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor,attorney forrespondent (LucilleM. Rosano,Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one), and two weapons offenses: fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two), and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three). He appeals from his convictions and sentence. We affirm his convictions but remand to the trial court to vacate the sentence imposed on count three.

These offenses arose from a laundry room fight between defendant and another tenant in his apartment building, A.J. (Ava).1 The dispute began when defendant removed Ava's clothing from the one functioning dryer in the laundry room and placed it on a table so he could use the dryer. Ava testified she decided to leave the laundry room but defendant blocked her exit, pushed her away from the door and hit her in the head with a hammer when she tried to walk back to the door. She lost consciousness.

Ava's son, C.J. (Cal), and a second man, T.E. (Todd), entered the laundry room after hearing yelling. Cal testified that he caught the hammer as defendant swung it at him and held onto defendant until Todd arrived and removed the hammer from defendant's hand. Todd's testimony corroborated Cal's version of events.

Defendant testified that after they began arguing, Ava cursed at him and slapped him in the face. He stated he attempted to leave the laundry room with his clothing but that Ava followed him to the door and struck him twice with a broomstick. According to defendant, when Cal and Todd came to the laundry room, they encouraged Ava to kill him. Out of fear for his life, he grabbed the hammer and hit Ava when she came at him a third time. When she came back at him with the broom, he struck her again. He testified, "I didn't plan it, I was surprised. And then it was to stop to stop her. My life was in danger, to protect it." He stated further that Cal and Todd "kept beating [him] up" though he did not hit either man.

The trial judge merged the conviction for possession of a weapon for an unlawful purpose with the aggravated assault count. He sentenced defendant to eight years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the aggravated assault count and a concurrent sentence of eighteen months on the unlawful possession of a weapon count.

Defendant presents the following arguments in his appeal.

POINT I

THE TRIAL COURT'S FLAWED INSTRUCTIONS ON SELF-DEFENSE, WHICH WAS THE HEART OF THE DEFENSE, NECESSITATE REVERSAL OF THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT. (Not Raised Below).

A. THE TRIAL COURT'S ERRONEOUS INSTRUCTION THAT THE DEFENDANT HAD A DUTY TO RETREAT FROM AN INITIAL AGGRESSOR IN HIS OWN HOME REQUIRES THE REVERSAL OF HIS CONVICTION FOR AGGRAVATED ASSAULT.

B. THE INSTRUCTION ON AGGRAVATED ASSAULT, WHICH TOLD THE JURY TO RETURN A GUILTY VERDICT SOLELY IF THE JURORS FOUND THAT THE DEFENDANT HAD CAUSED SERIOUS BODILY INJURY, CONTRADICTED THE REQUIREMENT THAT THE STATE DISPROVE SELF-DEFENSE BEYOND A REASONABLE DOUBT AND REQUIRES REVERSAL OF THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT.

POINT II

THE TRIAL COURT'S ERRONEOUS AND INADEQUATE RESPONSE TO THE JURY'S QUESTION ABOUT THE RELEVANT TIME FRAME FOR THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE REQUIRES REVERSAL OF THAT CONVICTION. (Not Raised Below).

POINT III

THE CONVICTION FOR UNLAWFUL POSSESSION OF A WEAPON MUST MERGE WITH THE CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.

POINT IV

THE EIGHT-YEAR SENTENCE IS MANIFESTLY EXCESSIVE FOR THIS FIRST-TIME OFFENDER.

I.

The arguments defendant raises in Points I and II are presented for the first time on appeal.

Pursuant to Rule 1:7-2, defendant's failure to object to the jury instruction and to the trial judge's response to the jury question constitutes a waiver of his right to challenge those instructions on appeal. However, mindful of the principles that "appropriate and proper jury charges are essential to a fair trial," State v. Savage, 172 N.J. 374, 387 (2002), and are even more critical in criminal cases, State v. Jordan, 147 N.J. 409, 422 (1997), we review the charge to determine whether there was plain error clearly capable of producing an unjust result. R. 2:10-2; see State v. Nesbitt, 185 N.J. 504, 516 (2006).

Defendant argues the self-defense charge was flawed because it included an instruction on a duty to retreat. This argument is entirely lacking in merit. Although the assault occurred in defendant's apartment building, it was in a common area of the building and therefore the location did not relieve defendant of a duty to retreat. Defendant cites no authority to the contrary.

The trial judge instructed the jury on the elements of the charged offenses and then read the Model Jury Charge on self-defense. As part of that charge, he explained that the State bore the burden of disproving any of the elements of self-defense beyond a reasonable doubt. Nonetheless, defendant argues it was plain error for the court to fail to instruct the jury to consider whether the State satisfied its burden in disproving self-defense before it considered whether the State had proven the elements of aggravated assault. He attempts to extrapolate from the Supreme Court's decision in State v. Coyle, 119 N.J. 194 (1990), to support this argument. We find his reliance to be misplaced and are not persuaded.

Defendant also complains of the trial judge's response to a note from the jury during its deliberations. The jury had been supplied with a written copy of the instructions and, in its note, specified the paragraph in the instruction on possession of a weapon for an unlawful purpose, asking: "When he brought it into the room or when he picked it up. Specify time." Upon receipt of the note, the judge conferred with the prosecutor and defense counsel. He stated he could not tell the jury what specific time possession occurred and proposed to simply re-read that paragraph. The judge then asked counsel if they agreed. Both the prosecutor and defense counsel gave affirmative responses.

The alleged error in the trial judge's response to the jury question was, then, not merely one not raised at trial; defense counsel explicitly consented to the judge's response. The doctrine of invited error applies in the event the appellant "consents to, acquiesces in, or encourages an error" and then attempts to use such an error as the basis for appeal. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 341 (2010) (quoting Spedick v. Murphy, 266 N.J. Super. 573, 593 (App. Div.), certif. denied, 134 N.J. 567 (1993)).

The evidence here included the testimony of the victim, her son, and a third party. If believed, their testimony provided ample support for a guilty verdict. Defendant's testimony to the contrary presented the jury with a clear case for the determination of the credibility of the witnesses. None of the arguments raised for the first time on appeal had any merit, let alone the clear capacity to bring about an unjust result. R. 2:10-2.

II.

As the State concedes, defendant's conviction for unlawful possession of a weapon (the hammer), N.J.S.A. 2C:39-5(d), should have merged with his conviction for possession of that weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), because the weapon and the purpose was the same as to each of the charges. We therefore remand the sentence to the trial court to vacate the eighteen-month sentence imposed on count three.

III.

Defendant also challenges his eight-year sentence subject to NERA as excessive. We disagree.

The trial judge found applicable aggravating factors one, three and nine, N.J.S.A. 2C:44-1(a)(1), (3) and (9), and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7). He also found that the aggravating factors "far outweigh[ed]" the mitigating factor.

We review a judge's sentencing decision under an abuse of discretion standard. See State v. Fuentes, 217 N.J. 57, 70 (2014). As directed by the Court, we must determine whether

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or

(3) the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (internal quotation marks omitted).]

Defendant's challenge to his sentence rests primarily on the fact that he was a 53-year-old first offender with two college degrees and was gainfully employed at the time of this conviction. He argues the court erred in finding aggravating factor three, contending it is inappropriate to find there is a risk defendant will commit another offense because, in finding mitigating factor (7) applicable, the court also acknowledged defendant had no prior offenses. Although the fact a defendant has led a law-abiding life may be considered a reasonable basis for predicting he will not re-offend, it does not preclude a finding that there is a "risk" he "will commit another offense." N.J.S.A. 2C:44-1(a)(3). In this case, the trial judge provided his reason for finding that "risk" factor: "the act and gravity of the act and the total uncontrollable behavior exhibited by [defendant] doesn't bode well for the future. On the basis of that the Court will make a reasonable determination that he would be at risk to commit another offense."

In reviewing the sentence imposed, we do not "substitute [our] judgment for that of the trial court." State v. O'Donnell, 117 N.J. 210, 215 (1989). We are "bound to affirm a sentence, even if [we] would have [7] arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid.

The evidence regarding the severity of the attack, based upon limited provocation, provided sufficient support for the trial court's conclusion that defendant posed a "risk" to re-offend. We discern no abuse of discretion in the sentence imposed.

Defendant's convictions and sentence on count one are affirmed. We reverse and remand the sentence imposed on count three for the trial court to vacate the sentence. We do not retain jurisdiction.

1 We refer to the witnesses by pseudonyms to protect their privacy.