STATE OF NEW JERSEY v. DEVIN TATE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0311-06T40311-06T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DEVIN TATE,

Defendant-Respondent.

_______________________________________________________

 
Argued on the March 7, 2007 Sentence

Oral Argument Calendar - Decided April 11, 2007

Before Judges Stern and Lyons.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 06-01-00237.

Sara A. Friedman, Assistant Essex County

Prosecutor, argued the cause for appellant

(Paula T. Dow, Essex County Prosecutor,

attorney).

Ruth Carlucci, Assistant Deputy Public

Defender, argued the cause for respondent

(Yvonne Smith Segars, Public Defender,

attorney).

PER CURIAM

The State appeals, pursuant to N.J.S.A. 2C:44-1f(2), from a judgment and sentence of seven years with an 85% parole ineligibility term under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first degree armed robbery. A five year period of parole supervision was also imposed. Other counts were merged therein, and the sentence was imposed to run concurrent to a Union County sentence for another robbery.

At the time of plea, the State recommended a ten year sentence with NERA to be served consecutively to the Union County sentence. The judge indicated that if defendant pled to the indictment, she would impose a seven year sentence concurrent with the Union County sentence. See R. 3:9-3(c). According to the judge, the defendant was only twenty years old, nothing was taken from the victim (an older man in Maplewood at whom defendant, while in a van that pulled alongside the victim, waved a gun and asked for money), and was influenced by an older co-defendant, Samantha Wiseman.

The following factual basis was given:

Q Mr. Tate, on June 8th, 2005 at about 10:30 in the evening, you were in a van, is that correct?

A Yes.

Q And who was driving the van?

A Samantha Wiseman (phonetic).

Q And who else was in the van with you?

A [T.M.]

Q Okay. And he was a juvenile at that time, correct?

A Yes.

Q In the area of Francis Coolidge (phonetic) Road in Maplewood there was an older Caucasian man, did you approach him from the van?

A Yes.

Q Did you get out of the van or did [T.]?

A Nobody got outta the van.

Q Nobody got out of the van?

Q No.

Q Well was your purpose to rob Mr. Beall (phonetic)?

A Yes.

Q And how were you gonna do that?

A With a gun.

Q So what did you [do] to rob him, you -- you waved a gun at him and asked him for money?

A Yes.

Q And what did he say?

A He didn't have any.

Q Okay. And then you drove away?

A Yes.

Q And Miss Wiseman, who was the driver of the van, knew your purpose was to commit the robbery, correct?

A Yes.

Q Okay.

A So I did --

MS. TRUNCALE [Defense Counsel]: Is that satisfactory to the Court?

BY MS. TRUNCALE:

Q Oh, and you -- who had the gun?

A I did.

Q You didn't have a permit for that gun did you?

A No.

THE COURT: And did you know it was unlawful to have a gun? Did you know it was unlawful to have a gun that wasn't registered?

DEFENDANT: Yes.

THE COURT: Okay. Miss Deshpande, [is] the State satisfied?

MS. DESHPANDE: No --

THE COURT: You have no --

MS. DESHPANDE: -- Judge, it's not for me to decide.

THE COURT: -- participation. The Court is satisfied. Okay.

The State did not seek to supplement the factual basis.

At sentencing, the judge merged the conspiracy and possession with unlawful purpose counts into the robbery conviction, and imposed a three year sentence for the permit violation.

In imposing the seven year sentence, the judge specifically found the existence of mitigating factors "(8) The defendant's conduct was the result of circumstances unlikely to recur; (12) The willingness of the defendant to cooperate with law enforcement authorities; [and] (13) The conduct of a youthful defendant was substantially influenced by another person more mature than the defendant." See N.J.S.A. 2C:44-1b. The judge also found one aggravating factor: "(9) The need for deterring the defendant and others from violating the law." See N.J.S.A. 2C:44-1a. Further, the judge stated that defendant had "only one prior conviction" and she viewed the 60-day period during which he was twice arrested as "an aberration" in defendant's life.

The judge then explained that she downgraded defendant's sentence because she was

clearly convinced that the mitigating factors outweigh the aggravating factor and the interest of justice demands that [defendant] is sentenced to a degree lower than a first degree crime. I note for the record that Mr. Tate is approximately five foot three and weighs 125 pounds and [is] of small stature, which is different from at least the adult codefendant that is in this case. He is a youthful offender. The incident involves he and another juvenile and someone who is older than both.

Since he is willing to cooperate with the [S]tate pertaining to the adult codefendant in this matter, for those reasons I am going to sentence him a degree lower.

N.J.S.A. 2C:44-1f(2) permits judges, under specified circumstances, to sentence a person convicted of a crime in the first or second degree "to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." N.J.S.A. 2C:44-1f(2). In interpreting this statute, the Supreme Court held that

the standard for downgrading an offense for the purpose of sentencing under section 44-1f(2) is two pronged: first, the court must be "clearly convinced" that the mitigating factors "substantially" outweigh the aggravating ones, and second, the court must find that the "interest of justice" demands that the sentence be downgraded. The reasons justifying a downgrade must be "compelling," and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors.

. . . The trial court must adhere to the principles applicable to all sentencing matters. Thus, the trial court must focus primarily on the gravity of the crime.

[State v. Megargel, 143 N.J. 484, 504-505 (1996).]

In Megargel, the Court further explained that factors to be considered in downgrading a sentence should "focus on the offense rather than the offender" and include "the nature of and the relevant circumstances pertaining to the offense[,]" such as the similarity of the offense to "a lower degree offense" and
the "defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him." Id. at 500-01; see also State v. Moore, 377 N.J. Super. 445 (App. Div.), certif. denied, 185 N.J. 267 (2005). However, "a somewhat lower standard should apply to the decision to downgrade" than "truly extraordinary and unanticipated circumstances," necessary to overcome the presumption of imprisonment because the presumption of imprisonment continues. Megargel, supra, 143 N.J. at 501; see also N.J.S.A. 2C:44-1d; State v. O'Connor, 105 N.J. 399, 403-05 (1985).

As already noted, prior to setting out the sentence, the judge explained that she allowed defendant to plead to the indictment as "it is only fair" since he "has chosen to own up to his responsibility in this matter, although it appears that he was not the mastermind . . . ." Further, building on her prior conclusion that defendant's criminal behavior was an "aberration," the judge directly addressed the "interest of justice" standard. She stated, "this conviction and the Union County conviction happened within 60 days, less than 60 days of this - of each other, and I do believe that in the interest of justice this is a fair penalty." Furthermore, as noted during the plea hearing, "[n]o one did get injured here," a fact which related to the crime itself.

In sum, while not explaining why a sentence at the bottom of the first degree range was not "more appropriate," the judge expressly addressed both the weighing of the factors and specified why the "interest of justice" was served by downgrading defendant's sentence, Megargel, supra, 143 N.J. at 502. Based on our scope of review applicable to the State's appeal such as this, Megargel, supra, 143 N.J. at 493-94; State v. Roth, 95 N.J. 334, 343-45, 363-66 (1984); see also State v. Balfour, 135 N.J. 30, 35-37, 39-41 (1994), we affirm the judgment.

 

A three year term was noted on the record at the time of sentencing. While the oral sentence normally controls, see State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956), here the five year sentence was mandatory on downgrading of a first degree crime. See N.J.S.A. 2C:43-7.2c; State v. Cheung, 328 N.J. Super. 368, 371 (App. Div. 2000). The judgment so provides.

From our review of the presentence report it appears the judge was referring to the Union County matter and to adult indictable convictions only.

(continued)

(continued)

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A-0311-06T4

April 11, 2007