STATE OF NEW JERSEY v. DADJE DAWARA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3903-03T43903-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DADJE DAWARA,

Defendant-Appellant.

 

Submitted: January 25, 2006 - Decided February 10, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Number 01-02-0559.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Dadje Dawara appeals from his conviction on four counts of first-degree robbery and on drug and weapons charges, and from the sentences imposed. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Essex County Indictment Number 01-02-559 with first-degree armed robbery of Angel Luna, N.J.S.A. 2C:15-1 (count one); first-degree armed robbery of Ronnie Sanderson, N.J.S.A. 2C:15-1 (count two); first-degree armed robbery of Jose Martinez, N.J.S.A. 2C:15-1 (count three); first-degree armed robbery of Berto Estevez, N.J.S.A. 2C:15-1 (count four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); four counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (counts six, seven, eight and nine); third-degree possession of cocaine, N.J.S.A. 2C:35-10a(1) (count ten); second-degree possession of cocaine in a quantity one-half ounce or more, but less than five ounces, N.J.S.A. 2C:35-5b(2) (count eleven); third-degree possession of cocaine with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count twelve); fourth-degree possession of a weapon, mace, under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (count thirteen); third-degree possession of a weapon, mace, for an unlawful purpose, N.J.S.A. 2C:39-4d (count fourteen); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d (count fifteen); and fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f (count sixteen). Co-defendants Hamadio Aaron and Maurice Anderson were charged in counts one through fourteen.

Just prior to commencement of trial, co-defendant Aaron pled guilty to all charges against him in Indictment Number 01-02-559, and to charges in two other indictments. As part of his plea agreement, Aaron agreed to testify truthfully in the trial against defendant and co-defendant Anderson. Tried to a jury jointly with Anderson, defendant was acquitted of the third-degree school zone-charge in count twelve, but was convicted on all other counts. The jury also found that the four armed robberies constituted violent crimes, thereby warranting imposition of the eighty-five percent (85%) parole disqualifier set forth in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On sentencing, the trial judge imposed a fifteen-year term of imprisonment, with an eighty-five percent NERA parole disqualifier, on the first-degree armed robbery conviction on count one; an eighteen-year term of incarceration, with an eighty-five percent NERA parole disqualifier, on the armed robbery conviction on count two, consecutive to the term given on count one; an eighteen-year prison term, with an eighty-five percent NERA parole disqualifier, on the armed robbery conviction on count three, concurrent with the terms imposed on counts one and two; an eighteen-year term of imprisonment, with an eighty-five percent NERA parole disqualifier, on the armed robbery conviction on count four, concurrent with the terms imposed on counts one, two and three; a five-year term on the third-degree conviction for unlawful possession of a handgun, concurrent with the terms imposed on counts one through four; a seven-year term of imprisonment on the second-degree conviction for possession of cocaine with intent to distribute on count eleven, consecutive to the terms imposed on counts one and two; and concurrent eighteen-month terms of imprisonment on the convictions on counts thirteen, fifteen and sixteen. The remaining convictions were merged and dismissed. Applicable mandatory minimum fines and penalties were also assessed. The aggregate term thus imposed was thirty-nine years with a parole disqualifier of eighty-five percent of thirty-two years.

The charges against defendant arose from incidents occurring on October 24, 2000 in Newark. The evidence adduced by the State at trial, if credited, disclosed that defendant, Aaron and Anderson, armed with a handgun loaded with hollow point bullets and a can of mace, robbed two different bodegas the Crosstown Food Market located at 475 15th Avenue, and the Central Avenue Supermarket at 291 Central Avenue and that when they were apprehended 232 vials of cocaine were discovered in the trunk of their vehicle.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE DEFENDANT'S CONVICTION SHOULD BE REVERSED AND HIS SENTENCE VACATED BECAUSE THE JUDGE GAVE AN IMPROPER INSTRUCTION TO THE JURY ON ACCOMPLICE LIABILITY (Not Raised Below).

POINT II

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE THE DIGITAL PHOTOS MARKED AS S-15, S-16 AND S-17.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING TESTIMONY TO BE INTRODUCED CONCERNING THE MOTIVE OF THE TWO ROBBERIES AS BEING AN ATTEMPT TO RAISE BAIL MONEY FOR CO-DEFENDANT AARON AS THIS WAS HIGHLY PREJUDICIAL AND CONTRARY TO EVIDENCE RULE 404(b) CONCERNING PRIOR BAD ACTS.

POINT IV

DEFENDANT'S SENTENCE MUST BE MODIFIED AS THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES AS WELL AS IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE TERM CONTRARY TO THE HOLDING OF BLAKELY v. WASHINGTON.

I.

Defendant argues for the first time on appeal that the trial judge erred by providing the jury with improper instructions on the issue of accomplice liability. Specifically, defendant contends that the court erred by failing to clearly explain to the jury that he could have been convicted of an offense less than that perpetrated by the principal if the jury perceived him to be an accomplice.

Here, there was no request by defendant to charge a lesser-included offense, and there was no objection to the charge given. Where the issue of an improper jury instruction is not first raised at trial, on appeal, it is reviewed under a plain error standard. State v. Oliver, 316 N.J. Super. 592, 596 (App. Div. 1998), aff'd, 162 N.J. 580 (2000). Plain error will require reversal only where it is "clearly capable of producing an unjust result." R. 2:10-2. Accordingly, we will reverse only if "the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

"By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." State v. White, 98 N.J. 122, 129 (1984) (emphasis in original). Therefore, a jury must be instructed that in order to find a defendant guilty under a theory of accomplice liability, he must have shared in the intent, which is the crime's basic element, and participated, at least in some indirect way, in the commission of the crime. State v. Fair, 45 N.J. 77, 95 (1965). Here, the judge instructed the jury in pertinent part:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of the offense, he solicits such other person to commit it and/or aids or agrees or attempts to aid such other person in planning or committing it.

This provision of the law means that not only is the person who actually commits the criminal act responsible for it, but one who is legally accountable as an accomplice is also responsible if he committed the crime as if he committed the crime himself.

* * * *

You must also find that it was the defendant's purpose to promote or facilitate the commission of the offense, and, lastly, you must find the defendant did possess the criminal state of mind that is required to be proved against the person who actually committed the act.

Remember that one acts purposely with respect to his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result. . . .

* * * *

In sum, in order to find defendant guilty, that was of the crime of the armed robbery, each defendant guilty, the State must prove each of the elements beyond a reasonable doubt, that the crime was committed either by the other defendant and/or Hamadio Aaron; that the defendant's purpose was to promote or facilitate the commission of the offense; that the defendant solicited the other defendant and/or Hamadio Aaron to commit it, and/or did aid or attempt to aid either/or, defendant or Hamadio Aaron, in planning or committing it; and that the defendant possessed the criminal state of mind that is required to be proved against the person or persons who actually committed the criminal act.

Again I will remind you that you must consider the accomplice status separately as to each defendant as to each charge.

When an alleged accomplice is charged with a different degree offense than the principal, or lesser included offenses are submitted to the jury, the court has an obligation to carefully explain the specific intent required for the grades of the offense. State v. Weeks, 107 N.J. 396, 410 (1987).

Here, the alleged accomplices were all charged with the same degrees of the same crimes, and there was no evidence at trial that defendant acted with any different purpose other than that of his co-defendants. There is evidence that for each of the crimes charged, defendant possessed the specific intent to commit the crimes, and that he was a substantial participant in the commission of these crimes. Thus, there was no evidence to support a charge of any lesser intent or any lesser-included offenses.

The evidence adduced established that throughout the course of the robberies, the three co-defendants drove together and it was defendant who had retrieved the weapon from his friend and who had brandished it during the robbery of the 15th Avenue bodega belonging to Angel Luna. During the robbery of the Central Avenue store belonging to Berto Estevez, the three co-defendants entered the store together "jokingly, they burst in, came in very fast." Like the first robbery, the evidence demonstrated that they committed this crime in tandem; however, defendant carried the mace. Following these crimes, defendant and the co-defendants drove together to the house of defendant's friend and defendant returned the gun to her.

Therefore, the evidence adduced at trial revealed that the crimes were carried out by three like-minded co-defendants, based on the fact that they drove to each crime together, entered each store to commit the robberies together, worked together in the commission of the robberies, exited the stores together and drove to subsequent locations together. The group behavior exhibited throughout the course of these crimes indicated that the three co-defendants possessed the same mental state.

"Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. Here, all the evidence at trial established that the perpetrators of the robberies traveled together to pick up the weapon, either used it or witnessed its use during the robberies, and all returned it after the robberies were committed. Neither the law nor the facts adduced at trial provided any basis for an instruction on a lesser mental state for robbery, or for the charge of a lesser-included offense.

II.

Defendant asserts that the trial judge erred by admitting the digital photographs marked as S-15, S-16 and S-17 into evidence. We disagree.

Whether evidence should be admitted is a matter left to the sound discretion of the trial court, which decision will be the basis for reversal only where the court misapplies its discretion and that error prejudices the defendant's right to a fair trial. State v. Carter, 91 N.J. 86, 106 (1982). Here, we find no basis in the record for a conclusion that the trial judge misapplied his discretion in admitting the digital photographs.

A photograph is an admissible type of writing, one consisting of pictures or data compilations. N.J.R.E. 801(e). N.J.R.E. 1001(b) provides that photographs include "still photographs, X-ray films, video tapes, motion pictures and similar forms of reproduced likenesses."

Although the issue of the admissibility of digital photographs in criminal cases is novel in New Jersey, other jurisdictions have ruled that no special rules should be applied to the admissibility of digital photographs that would distinguish them from the criteria applicable for admission of regular photographs. See United States v. Seifert, 351 F. Supp. 2d 926 (D.C. Minn. 2005); State v. Harding, 273 F. Supp. 2d 411 (S.D.N.Y. 2003); Perry v. Commonwealth, 780 N.E.2d 53,55-57 (Mass. 2002); Almond v. State, 553 N.E.2d 803, 805 (Ga. 2001).

We also conclude that digital photographs are properly considered photographs under the criteria set forth in N.J.R.E. 1001(b). The modern interpretation of the word "photograph" includes digital photographs. "In modern parlance, an image produced by a digital camera is considered 'photography,' i.e., it is 'characterized by great truth of representation or minute detail in reproduction.'" Perry, supra, 780 N.E.2d at 55 (citing Webster's Third New Int'l Dictionary 1702 (1993)). "It matters not that the scene is captured in bytes rather than on conventional film." Ibid. In its analysis, the Perry court cited to the comment by Justice Oliver Wendell Holmes, that "[a] word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Id. at 55-56 (quoting Towne v. Eisner, 245 U.S. 418, 425, 38 S. Ct. 158, 159, 62 L. Ed. 372, 376 (1918)).

Moreover, we note that a digital photograph qualifies as a photograph for consideration under our rules of evidence because it is a similar form of reproduced likeness under N.J.R.E. 1001(b). In essence, a digital camera captures an image and preserves that image, producing a product similar to a regular photograph, except with digital imaging techniques instead of film. Here, the trial judge explained that the societal acceptance of digital photography was so widespread that he believed most people would agree that it was a similar form of reproduced likeness to regular photography, stating:

Basically, it's for me initially to decide is a print from a digital camera considered a similar form of reproduced likeness as a still photograph which is defined in the rule. There's been no expert testimony one way or the other, but I do find that digital photography is not something new. I mean I therefore don't feel scientific evidence would be necessary to prove whether it's accepted or not accepted. Obviously, they're sold commercially and there's millions of them out there. Now, that doesn't mean that they have to be accepted, but as far as me determining whether digital photographs or digital images taken from a digital camera should be generally accepted as a similar form of reproduced likeness, I so find.

We agree. The trial judge reasonably concluded that digital photographs could be admissible as a writing under the evidence rules, as long as they were deemed relevant, authenticated and a chain of custody was established for them.

Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." State v. Wilson, 135 N.J. 4, 13 (1994) (quoting N.J.R.E. 401). The authentication process for a photograph establishes that the photograph is a "substantially correct representation of the matters . . . offered into evidence[.]" Id. at 14. Authentication of a photograph can be made by any witness with knowledge of the facts represented by the photograph. Ibid. For proper authentication, "testimony must establish that:

(1) the photograph is an accurate reproduction of what it purports to represent; and (2) the reproduction is of the scene at the time of the incident in question, or, in the alternative, the scene has not changed between the time of the incident in question and the time of the taking of the photograph.

[Wilson, supra, 135 N.J. at 15.]

Finally, a chain of custody for the photograph must be shown between the time that it was taken and the time of its admission at trial.

Here, the contested digital photographs were all taken by Officer Moore on his digital camera, downloaded on his computer and copied through the use of county equipment. The three photographs included two pictures of the center console in the Mitsubishi (one normal shot and one close-up) and a picture of the Mitsubishi at the intersection of Littleton Avenue and 14th Avenue, where the officers arrested the defendants.

These photographs were all relevant because they showed that jewelry and money were found in the center console, and they corroborated witness testimony as to the contents of the car at the time of the arrest. Thus, the photographs made two material facts of consequence more likely: that the three men had stolen money from the stores and that they had stolen jewelry from Estevez, as he had testified.

Officer Moore was the policeman who pulled over the defendants and made the arrest on the night in question. Thus, he had personal knowledge of the car and the intersection at the time the incidents occurred. Officer Moore testified that all three photographs accurately reflected the scenes at the time of the arrest and that he did not change or alter any of the photographs.

Regarding the chain of custody, Officer Moore testified that he was the only person who possessed the digital camera and reaffirmed that he did not manipulate or alter any of the photographs. On this issue, the trial judge stated:

[Detective Moore] did establish the necessary foundation for admission into evidence. He did describe how he took the photograph, how he put the disk in his computer, how he printed out the print from the computer. He also talked about having it in his custody and not doing anything with it until this point in time. He described the manner and he also said it accurately reflected what he saw at the time he took the photograph. Therefore, I do find that that is sufficient to lay a foundation to have the photographs admitted as originals based on his testimony[.]

Finally, the fact that digital technology is a medium that can be easily altered or manipulated is not detrimental to the State's request for admission of the digital photographs, particularly where, as here, the defense failed to suggest that the photographs in question were enhanced or altered in any way, but merely cited to the possibility of alteration in a hypothetical sense. Certainly, an inquiry into the possible manipulation of a photograph is a matter for cross-examination or possibly expert testimony. Here, the trial judge properly concluded that the potential for manipulation was "not a basis to not admit the digital photos into evidence."

III.

Defendant further argues that the court erred by allowing testimony to be introduced that the motive of the two robberies was to raise bail money for a friend, contending that such testimony was highly prejudicial and contrary to N.J.R.E. 404(b) concerning prior bad acts. We disagree.

All relevant evidence is admissible unless it is barred by a specific rule. N.J.R.E. 402. Relevant evidence is "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of this action." N.J.R.E. 401.

N.J.R.E. 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

This rule precludes other-crimes and bad-act evidence when such evidence is offered only to prove defendant's propensity to commit a crime. State v. Stevens, 115 N.J. 289, 300 (1989). The rule is meant to ensure that juries do not convict a defendant on the basis of prior bad acts, or punish a defendant more harshly because it concludes that defendant's prior bad acts indicate bad character and a propensity to chronically break the law. State v. DiFrisco, 137 N.J. 434, 498 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). The decision to admit evidence of prior bad acts or crimes falls within the sound discretion of the trial judge and his or her decision will not be upset absent a showing of a clear abuse of discretion. State v. Moorman, 286 N.J. Super. 648, 661 (App. Div. 1996).

Here, the disputed evidence is one statement made by Hamadi Aaron during his testimony that the motive of the robberies was to raise money to bail one of their friends out of jail. Defendant argues that this evidence should not have been admitted because of the connotation of bailing out a friend.

However, the trial judge did not conclude that this evidence fell within the purview of "other-crimes" or "bad-act" evidence pursuant to N.J.R.E. 404(b). The judge explained:

In regard to Mr. Aaron testifying as to a motive for committing these crimes with Mr. Aaron and Mr. Anderson regarding that they were trying to raise money to bail out someone who Mr. Dawara knew, as it's stated to me I don't find that's testimony of other crimes evidence, simply bailing out somebody who's been accused of a crime and hasn't been convicted of a crime. That's not a crime in and of itself and I will preliminarily rule, I don't know what the specific testimony is, but Mr. Aaron can testify that that was a motive.

Aaron's testimony that they were trying to bail one of their friends out of jail does not implicate defendant for any prior crime, or even any prior bad act. It is the friend whose prior crime or bad act is implicated by the reference to the friend being incarcerated.

Although not argued, it is possible that the jury might infer that if the defendant associates with friends who are incarcerated for alleged bad acts or crimes, that the defendant also probably commits bad acts or crimes. However, even if so viewed, N.J.R.E. 404(b) would permit admission of Aaron's statement because it demonstrated motive.

N.J.R.E. 403 provides that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." We find no error in admission of Aaron's statement. The jury was aware that co-defendant Aaron had pled guilty to the present crime. Therefore, the fact that defendant may have associated with another criminal, beyond Aaron, does not add much, if any, additional prejudice. Given that Aaron's statement was highly probative and relevant on the issue of motive, we find no error in its admission.

IV.

Lastly, defendant contends that the trial court erred by imposing a sentence in excess of the presumptive term, and by imposing consecutive sentences. We disagree.

In State v. Roth, 95 N.J. 334, 365-66 (1984), the Court explained our function in reviewing sentences imposed by the trial court, as follows:

[A]ppellate review of a sentencing decision calls for us to determine, first, whether the correct sentencing guidelines, or in this case, presumptions, have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors.

Under the New Jersey Code of Criminal Justice, first-degree crimes are punishable by a term of imprisonment of between ten and twenty years, N.J.S.A. 2C:43-6a(1), with a presumptive term of fifteen years. N.J.S.A. 2C:44-1f(1)(b). Second-degree crimes were punishable by a term between five and ten years, N.J.S.A. 2C:43-6a(2), with a presumptive term of seven years. N.J.S.A. 2C:44-1f(1)(c). When imposing a sentence of imprisonment, courts were required to impose the presumptive term unless the preponderance of aggravating or mitigating factors weighed in favor of a higher or lower term within the statutory range. N.J.S.A. 2C:44-1(f)(1). Those mitigating and aggravating factors could reduce or increase the sentence within the statutory range as long as the factors were clearly enumerated by the judge in the record. Ibid.

Recently, the New Jersey Supreme Court reconsidered this sentencing structure and adapted the Code to comply with the principles articulated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt"). See Blakely v. Washington, 542 U.S. 296, 302, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413 (2004) (defining the statutory maximum for Apprendi purposes as the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant); United States v. Booker, 543 U.S. 220, __, 125 S. Ct. 738, 757, 160 L. Ed. 2d 621, 650 (2005) (striking down portions of the Federal Sentencing Guidelines that authorized judges, based on their own fact findings, to impose sentences exceeding those allowed by a jury verdict alone). Based upon those guiding principles, the Court revised the Code's sentencing scheme in State v. Natale (Natale II), 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005).

In Natale II, supra, the defendant had argued that, based on a jury verdict alone, the maximum sentence that a judge could have imposed upon him were the presumptive sentences for the crimes he committed. In addressing this argument, the Court eliminated the concept of "presumptive terms" from the New Jersey Criminal Code. 184 N.J. at 487. That ruling applies prospectively to cases such as this one that are in the appellate "retroactive pipeline," meaning cases that are on direct appeal as of August 2, 2005, the date of the Natale II decision. Id. at 494. "Without presumptive terms, the 'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense[.]" Id. at 487. Judges will continue to determine whether credible evidence supports the finding of aggravating or mitigating factors, and whether either preponderate, but they are limited to offender-based aggravating factors as opposed to factors related to the crime. Ibid.; Abdullah, supra, 184 N.J. at 503.

Offender-based aggravating factors relate to the defendant's prior criminal convictions. Ibid. Those factors must be analyzed as part of a reasonable balancing process, without the fixed point of a statutory presumptive. Natale II, supra, 184 N.J. at 488. "The touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court." Ibid.

Here, defendant was sentenced under count one, first-degree robbery, to a term of fifteen years' imprisonment. Under count two, also first-degree robbery, defendant was sentenced to eighteen years' imprisonment. Both terms, of course, were subject to the applicable NERA parole disqualifier. According to the Code, the sentencing range for first-degree crimes is between ten and twenty years. N.J.S.A. 2C:43-6a(1). Therefore, neither the fifteen nor the eighteen year sentences exceed the statutory maximum of twenty years for a first-degree crime.

However, since the eighteen-year sentence is on the higher end of the spectrum for first-degree sentencing, we must consider whether that term is justified based upon offender-based aggravating factors, or whether the facts of that increased penalty should have been submitted to a jury. Here, we conclude that the increase was properly based on offender-related aggravating factors. The court noted that defendant had fifteen prior arrests and that this was the defendant's sixth indictable conviction. The judge found several aggravating factors applicable in this case: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of the defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); and the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1a(9).

Our review of the sentencing record discloses that all of the aggravating factors found and weighed by the trial judge are offender-based aggravating factors. Therefore, we find no violation of the guidelines prescribed by Natale II and Abdullah.

Defendant also argues that the court erred in imposing consecutive terms of imprisonment. In State v. Yarbough, 100 N.J. 627, 643-644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court developed the following criteria to be applied by the trial courts in deciding whether to impose concurrent or consecutive sentencing:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Footnotes omitted.]

Here, the trial judge set forth in detail his reasons for imposing consecutive sentences. He explained that the crimes were separate and distinct in nature because there were two separate grocery stores that were robbed with two separate sets of victims. There is special weight given to multiple victims, since "crimes involving multiple victims represent an especially suitable circumstance for the imposition of consecutive sentences because the 'total impact of singular offenses against different victims will generally exceed the total impact on a single individual who is victimized multiple times.'" State v. Molina, 168 N.J. 436, 512 (2001). Here, there were four distinct victims, each constituting a separate act of violence. Additionally, the judge noted as a factor the space in time between the robberies at 15th Avenue and the robberies at Central Avenue.

Although defendant argues that these crimes constituted one period of aberrant behavior, the fact that there was an intermittent car ride between the robberies, allowing for reflection and an opportunity for all defendants to abandon the pursuit, indicates that this was not simply one period of aberrant behavior. All of the defendants made a conscious decision to drive to a second grocery store and commit a second robbery with a different set of victims, and with the defendants playing different roles in the robbery itself.

Additionally, the judge noted that his imposition of the consecutive sentences did not exceed the forty year maximum time for successive terms. Finally, Abdullah, supra, instructs that there is no constitutional impediment to a judge deciding whether a defendant should serve consecutive sentences under the Code. 184 N.J. at 512. Accordingly, we find no basis to interfere with the sentence imposed.

 
Affirmed.

This point heading is improperly designated on page 1 of defendant's brief; here, we recite the correct point heading as contained in the body of the brief.

The judgment of conviction erroneously lists the aggravating factors found at the August 2, 2002 sentencing hearing to be those contained in N.J.S.A. 2C:44-1a(2) (gravity and seriousness of harm inflicted on the victim); N.J.S.A. 2C:44-1a(5) (mis-numbered, but described as 2C:44-1a(6), extent of defendant's prior criminal record and the seriousness of the offenses of which he has been previously convicted); and N.J.S.A. 2C:44-1a(8) (again, mis-numbered, but described as 2C:44-1a(9), the need to deter defendant and others from violating the law). Ordinarily, the sentencing transcript is considered determinative. See State v. Murray, 338 N.J. Super. 80, 91 (App. Div.), certif. denied, 169 N.J. 608 (2001).

(continued)

(continued)

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A-3903-03T4

February 10, 2006