STATE OF NEW JERSEY v. SYLVAN BLACKMON
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1057-08T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SYLVAN BLACKMON,
Defendant-Appellant.
_______________________________
Submitted January 26, 2010 - Decided March 25, 2010
Before Judges Gilroy and Simonelli.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 06-04-1333.
Yvonne Smith Segars, Public Defender,
attorney for appellant (Stefan Van Jura,
Assistant Deputy Public Defender, of counsel
and on the brief).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Sara A.
Friedman, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
A jury convicted defendant of second-degree aggravated
2C:12-1b(1) (count one); fourth-degree
assault, N.J.S.A.
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-
5d (count two); and third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4d (count three). The trial
judge merged count three with count one and sentenced defendant
to a six-year term of imprisonment with an eighty-five percent
period of parole ineligibility, pursuant to the No Early Release
2C:43-7.2, and three years parole
Act (NERA), N.J.S.A.
supervision upon release on count one, and a concurrent one-year
term of imprisonment on count two. The judge also imposed the
appropriate assessments, penalties and fees.
On appeal, defendant raises the following contentions:
POINT I - THE PROSECUTOR'S MISCONDUCT IN
COMMENTING ON DEFENDANT'S PRE- AND POST-
ARREST SILENCE DENIED THE DEFENDANT DUE
PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST.
AMENDS. V, VI AND XIV; N.J. CONST. (1947),
ART. I, PARS. 1,
9 AND 10.
POINT II - THE TRIAL COURT IMPOSED AN
EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
We reject these contentions and affirm.
The incident giving rise to defendant's conviction occurred
in the early evening hours of February 12, 2006, at the
apartment of Qamar Palmer1 in East Orange. According to Palmer,
she and defendant were friends, having met a few years earlier
at a nursing home where she was recovering from a stroke that
left her paralyzed on the right side of her body. The two were
1
This name is fictitious.
A-1057-08T4
2
not intimate because, in addition to the stroke, she had told
defendant many times that she was HIV positive.
Palmer had asked defendant to leave her apartment because
it was getting late and she wanted to go to bed. Defendant left
but returned shortly thereafter because it was raining. Palmer
told defendant that he could get something to eat but she was
going to bed. She also told him that she "wanted to stop seeing
him so much because he was getting on my nerve." She denied
having an argument with defendant over money.
Shortly after going to bed, Palmer was awakened by a
burning sensation, which caused her to leap from the bed, take
off all of her clothes, and run outside into the hallway, where
she met Lawrence Powell, the building superintendent. Palmer
suffered second-degree burns on sixteen percent of her body.
Powell testified that at approximately 7:15 p.m., he saw
Palmer run from her apartment into the hallway completely nude,
screaming, "Why did he do that? . . . I was asleep. He burned
me." The skin around Palmer's neck and chest was "beginning to
bubble up" and the skin on her left elbow to shoulder was
"hanging off."
Powell went into the apartment, where he saw defendant
standing in the living room. Defendant, who had no injuries,
then sat down in a chair by the bedroom door. Powell saw a pot
A-1057-08T4
3
with a rag around its handle on a stand located where defendant
was sitting. Powell asked defendant what happened to Palmer,
and defendant responded, "I poured . . . hot water and butter on
her[]" because "she made me mad . . . [a]nd she's spen[t] my
money. She got my money." Powell called 9-1-1. Powell then
went into the bedroom, where he saw water on the bed and on the
floor. When he went into the kitchen, he saw no water on the
floor.
Powell was in Palmer's apartment when the police arrived.
He heard defendant repeat to the police that he had poured hot
water and butter on Palmer because she took his money and made
him mad.
Officer Anthony Rogers, Jr. of the East Orange Police
Department testified that upon arriving at Palmer's apartment,
he saw her naked on her bed with burns on her chest, left arm
and underneath her neck. Defendant, who had no injuries, was in
the kitchen talking to Powell at the time. Rogers overheard
defendant tell Powell that he threw hot water on Palmer because
she stole his money. To confirm what he had heard, Rogers went
into the kitchen, did not see any water on the floor, and asked
defendant what happened. Defendant responded, "I threw the
water on her because she stole my money." At that point, Rogers
arrested defendant and handcuffed him but did not issue
A-1057-08T4
4
defendant his Miranda warnings. Rogers then went into the
bedroom, where he saw water on the bed.
A second police officer arrived at the apartment after
defendant was handcuffed. The officer heard defendant say, "I
threw hot water on her because she stole my money."
After a Rule 104 hearing, the trial judge barred
defendant's statement to the second officer, but permitted his
statements to Powell, because Powell was not a police officer,
and his statements to Rogers, because they were made in response
to the officer's attempt to confirm what defendant had told
Powell, not to elicit an incriminating response.
Defendant testified on direct examination that he and
Palmer had an intimate relationship. While at Palmer's
apartment on the day of the incident, he saw cocaine on her bed.
He and Palmer then got into an argument about her use of his
money to buy drugs and about her HIV status, which she had
hidden from him.2 They were in the kitchen at the time, where
Palmer was cooking. When defendant told Palmer that he was
going to end their relationship, she took a pot containing
boiling water with her right and was going to throw the water on
him, but he "pounced on it[,]" pushed her back, "[a]nd that's
2
Defendant claimed that he learned from his and Palmer's mutual
doctor that Palmer was HIV positive.
A-1057-08T4
5
when she got burnt." Defendant admitted that he said nothing to
the police, except that he "told them about money."
On cross-examination, defendant reiterated that Palmer had
attacked him and that he acted in self-defense. He also
admitted that the only thing he told the police was that Palmer
stole his money.
In summation, the prosecutor referred to defendant's
failure to tell the police that he acted in self-defense:
Now, a defendant has no obligation to talk
to the police. But when the defendant does
talk to the police and when the defendant
takes the stand, you can analyze their
testimony the same as any other witness.
And what does he tell the police? Does he
tell the police, "Hey she came at me with a
pot. I'm very upset. I didn't mean for it
to happen?" Does he say that to the police?
Wouldn't --- wouldn't that be a normal
reaction if what happened -- what he says
happened happened? He doesn't say that. He
says, "I threw water on her because she
stole my money," and that's exactly what he
did.
Defendant contends for the first time on appeal that the
Amendment3 right against self-
prosecutor violated his Fifth
incrimination by cross-examining him on and commenting in
summation about his failure to tell the police he acted in self-
defense. We review this contention under the plain error
standard of review. R. 2:10-2; State v. Macon,
57 N.J. 325, 336
3
U.S. Const. amend. V.
A-1057-08T4
6
(1971). Under that standard, "we must disregard any error
unless it is clearly capable of producing an unjust result."
State v. Castagna,
187 N.J. 293, 312 (2006); Macon, supra,
57 N.J. at 337. Reversal of defendant's conviction is required
only if there was error "sufficient to raise a reasonable doubt
as to whether [it] led the jury to a result it otherwise might
Macon, supra,
57 N.J. at 336.
not have reached."
We discern no error, much less plain error, in the
prosecutor's conduct. On direct examination, defendant claimed
he acted in self-defense and admitted he did not tell this to
the police. The prosecutor had the right to cross-examine him
on the inconsistencies between his statements at the scene and
those made at trial and to comment on the inconsistencies in
summation. State v. Tucker,
190 N.J. 183, 189-90 (2007).
Defendant also contends that his sentence is excessive. At
sentencing, he asked to be sentenced in the third-degree range
to a three-year term of imprisonment due to his age, poor health
and lack of a criminal record.
Sentencing a first- or second-degree offender to a sentence
one degree lower is governed by N.J.S.A. 2C:44-1f(2), which
provides:
In cases of convictions for crimes of the
first or second degree where the court is
clearly convinced that the mitigating
factors substantially outweigh the
A-1057-08T4
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aggravating factors and where the interest
of justice demands, the court may sentence
the defendant to a term appropriate to a
crime of one degree lower than that of the
crime for which he was convicted.
The statute thus establishes a two-prong test. State v.
Megargel,
143 N.J. 484, 495-96 (1996). "The court must be
'clearly convinced that the mitigating factors substantially
outweigh the aggravating ones and that the interest of justice
demand[s] a downgraded sentence.'" Id. at 496 (quoting N.J.S.A.
2C:44-1f(2)). The Megargel Court observed that "the standard
governing downgrading is high." Id. at 500. First, a court
must apply the basic sentencing principles of the Code. Ibid.
Paramount is the requirement that the severity of the crime is
"the most single important factor in the sentencing process."
Ibid. "In evaluating the severity of the crime, the trial court
must consider the nature of and the relevant circumstances
pertaining to the offense . . . . The surrounding circumstances
of an offense may make it very similar to a lower degree
offense, thus suggesting that a downgraded sentence may be
appropriate. Id. at 500.
Nonetheless, "facts personal to the defendant may be
considered in the sentencing process." Id. at 501.
Courts should consider a defendant's role in
the incident to determine the need to deter
him from further crimes and the
corresponding need to protect the public
A-1057-08T4
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from him. Was the defendant the mastermind,
a loyal follower, an accomplice whose shared
intent is problematic, or an individual who
is mentally incapable of forming the
necessary criminal intent?
[Ibid.]
Deterrence is "one of the most important factors in sentencing."
Ibid.
A sentencing judge must then consider the interest of
justice. A decision to downgrade "should be limited to those
circumstances in which defendant can provide 'compelling'
Id. at 502 (citation omitted).
reasons for the downgrade."
Such "reasons must be in addition to, and separate from, the
'mitigating factors which substantially outweigh the aggravating
factors'" as found under the first prong. Ibid. Finally, after
identifying the sentencing factors, the judge must describe how,
in the exercise of discretion, he balanced those factors. Ibid.
At sentencing, the trial judge noted that defendant lacked
remorse, claimed a lack of memory of the crime, and called
Palmer a liar. The judge found and gave slight weight to
aggravating factor N.J.S.A. 2C:44-1a(3) (the risk that the
defendant will commit another offense) based on defendant's lack
of remorse and his deliberate act of throwing boiling water on
Palmer, found and gave great weight to aggravating factor
N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and
A-1057-08T4
9
others from violating the law) because the boiling water was a
weapon that caused serious injury to the defenseless Palmer, and
found aggravating factor N.J.S.A. 2C:44-1a(12) (the defendant
committed the offense against a person who he knew or should
have known was disabled).4 We are satisfied that the judge's
findings of the aggravating factors are clearly supported by
"competent, reasonably credible evidence in the record."
Megargel, supra,
143 N.J. at 493.
We also find no error in the mitigating factors found by
the judge.5 The judge found mitigating factors N.J.S.A. 2C:44-
1b(7) (the defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the present
offense), and found and gave "a great deal of weight" to
mitigating factor N.J.S.A. 2C:44-1b(11) (the imprisonment of the
defendant would entail excessive hardship to himself) based on
defendant's age and health. The judge concluded that the
mitigating factors "slightly preponderate" over the aggravating
factors, and imposed a sentence at the lower end of the range
4
Defendant only challenges aggravating factors (3) and (9).
5
Although defendant argues on appeal that the judge should have
found mitigating factor N.J.S.A. 2C:44-1b(8) (the defendant's
conduct was the result of circumstances unlikely to recur), he
did not request this factor at sentencing.
A-1057-08T4
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for a second-degree conviction. The record supports these
findings.
Having concluded that the record supports the aggravating
and mitigating factors, we must now determine whether the
interest of justice demand that defendant be sentenced as a
third-degree offender. We are clearly convinced that the high
standard governing downgrading, Megargel,
143 N.J. at 500, is
not met here. Compelling reasons do not exist for the
downgrade. Id. at 502.
Affirmed.
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