STATE OF NEW JERSEY v. CHRISTOPHER H. BLANK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5815-07T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER H. BLANK,

Defendant-Appellant.

________________________________________________________________

April 13, 2011

 

Submitted January 19, 2011 - Decided

 

Before Judges Wefing, Baxter and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 06-08-1914.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief).

 

Paula T. Dow, Attorney General, attorney for respondent(Robyn B.Mitchell, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Christopher H. Blank was convicted of disarming a police officer and shooting her three times, shooting another officer in his bullet-proof vest and shooting near the head of a third police officer as he tried to arrest defendant on an outstanding warrant. Defendant was charged in Atlantic County Indictment No. 06-08-1914 with three counts of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3a(1) and (2) (counts one, two and three); three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts four, five and six); three counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (counts seven, eight and nine); first-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11 (count ten); third-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count eleven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count twelve); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (count thirteen).

After trial, the jury found defendant guilty of counts one through twelve, and after defendant waived his right to a jury trial, the court found defendant guilty of count thirteen. The court merged several counts and sentenced defendant on counts one, two, three and thirteen to an aggregate extended term of eighty-five years with an eighty-five percent parole bar under the No Early Release Act (NERA). N.J.S.A. 2C:43-7.2. Defendant raises numerous issues regarding the fairness of his trial and the length of the sentence imposed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The police officers testified to the following facts. A car cut in front of Egg Harbor Police Officer Christopher Leary's patrol car just after midnight on July 13, 2006. Leary recognized defendant as a passenger in the car and was aware of an outstanding warrant for his arrest for possession of stolen construction tools. Leary executed a "high risk stop" by ordering the driver to turn off the car and both the driver and passenger to put their hands out through the windows. Leary then ordered defendant to get out of the car and to put his hands on his head. As defendant was getting out of the car, Egg Harbor Police Officer Clear Constantino arrived on the scene to serve as back-up to Leary. Upon seeing that Leary was executing a high-risk stop and that his gun was drawn, Constantino also drew her gun and pointed it at defendant.

Leary ordered defendant to keep his hands on his head, walk backwards toward the sound of Leary's voice and, once he was in front of Leary, to get on his knees and cross his feet. Defendant was compliant up to this point, although he repeatedly asked Leary, as Leary testified, "[w]hy all this caution?"

After exiting the car, defendant went down on his knees but would not cross his feet. Leary then holstered his weapon and attempted to handcuff defendant. After Leary cuffed one of his hands, defendant began to resist and would not allow his other hand to be cuffed. The officers hit and kneed defendant in an effort to subdue and handcuff him. Although Constantino sprayed defendant with pepper-spray, defendant continued to struggle. Defendant eventually broke free and ran to the side of an abandoned house. The officers ran after defendant and caught up with him in the yard of the abandoned house.

After the police caught up with defendant, a struggle ensued. Leary put his arm around defendant's neck in an attempt to secure him until additional back-up arrived. Just as Leary had gotten defendant in a choke hold, Constantino shouted that defendant had her gun, which he had taken from her holster.

Defendant shot Constantino three times beneath her bullet-proof vest, once in her right side into her abdomen and twice in her right thigh. Leary released defendant in order to draw his own weapon, but he was immediately shot by defendant into his bullet-proof vest covering his chest. Leary yelled for Constantino to take cover, and both officers ran from the area to wait for help to arrive.

After shooting at Leary and Constantino, defendant ran away and encountered Egg Harbor Police Officer William Loder, who was on patrol and had responded to the scene. Loder shone a spotlight on defendant and ordered him to stop and identify himself. When defendant refused, Loder repeatedly ordered defendant to show his hands. Defendant did not respond, headed toward the woods and then fell to the ground. When defendant got up, he pointed a gun at Loder. Loder shot at defendant five times, hitting him once in the arm. Defendant then shot at Loder, narrowly missing his head. Defendant's gun jammed after defendant fired once at Loder. Defendant then discarded the gun and ran into the woods.

Police officers, SWAT teams, and K-9 officers combed the area in search of defendant. Egg Harbor Police Officer James Knight testified that his K-9 dog led him to defendant, and upon locating him, defendant began "fighting [and] punching the dog." Before police subdued him, defendant received a serious dog bite.

Defendant testified that after the officers caught up with him at the house, they handcuffed him to a fence and kicked and beat him to such a degree that he did not think he would survive. Defendant said he was hit on the head with a metallic object and fell to the ground. Defendant testified that while on his knees he found a gun on the ground, picked it up and fired at the officers. After shooting at the officers, defendant claims that he shot the handcuffs off of the fence, broke free and jumped over the fence.

Defendant testified that he fired one shot at Loder in self-defense and then discarded the gun. Defendant maintained that after he ran away from Loder, he was handcuffed and hoisted over a fence where he was beaten by several officers and attacked by a dog.

Defendant was taken to the hospital and treated for his injuries. On the way to the hospital, the police questioned defendant about the location of the gun, which the police later found in the woods.

Defendant raises the following arguments on appeal:

POINT I

 

THE TRIAL COURT ERRED IN FAILING TO CHARGE ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER TO THE JURY. (Not Raised Below)

 

POINT II

 

THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY ON THE DUTY OF AN OFFICER TO INFORM AN ARRESTEE OF THE CHARGES CONTAINED IN AN ARREST WARRANT AS THIS DUTY HAD THE CAPACITY TO AFFECT THE REASONABLENESS OF THE DEFENDANT'S RESORT TO SELF-DEFENSE.

 

POINT III

 

THE TRIAL COURT ERRED IN DENYING THE JURORS PERMISSION, DURING DELIBERATIONS, TO RE-ENACT THE REMOVAL OF THE GUN FROM THE HOLSTER.

 

POINT IV

 

THE TRIAL COURT ERRED IN PERMITTING THE PROSECUTOR TO IMPEACH THE DEFENDANT BASED ON HIS VIOLATIONS OF PROBATION. (Not Raised Below)

POINT V

 

THE PROSECUTOR COMMITTED MISCONDUCT BY REFERRING TO "THE THIN BLUE LINE" AND BY VOUCHING FOR THE CREDIBILITY OF THE TESTIFYING POLICE OFFICERS. THE FAILURE [OF] THE TRIAL COURT TO ADDRESS THIS MISCONDUCT CONSTITUTED ERROR AND DENIED THE DEFENDANT A FAIR TRIAL. (Partially Raised Below)

 

POINT VI

 

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

 

I

As plain error, citing State v. Powell, 84 N.J. 305, 318 (1980), defendant argues in Point I of his brief that the trial court erred by not sua sponte charging the jury with the lesser offense of attempted passion/provocation manslaughter because the facts "clearly indicate" that this charge was appropriate. The court gave a self-defense charge, but not the lesser-included offense charge defendant now claims was required. When a defendant does not request a lesser-included offense charge, a court need only include the charge if "the facts 'clearly indicate' the appropriateness of that charge. . . ." State v. Choice, 98 N.J. 295, 299 (1985). Attempted passion/provocation manslaughter has four elements: "the provocation must be adequate; the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying." State v. Mauricio, 117 N.J. 402, 411 (1990). When a defendant does not request a passion/provocation charge, the court must first find that the first two objective elements are "clearly indicated" by the evidence before charging the jury with passion/provocation manslaughter. State v. Robinson, 136 N.J. 476, 491 (1994). In assessing these objective factors, courts should view the evidence in a light most favorable to defendant. Mauricio, supra, 117 N.J. at 412.

Provocation is adequate when it is "sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control." Robinson, supra, 136 N.J. at 491-92 (internal quotation marks and citations omitted). In Robinson, the court noted that "battery, except for a light blow, has traditionally been considered, almost as a matter of law, to be sufficiently provocative." Id. at 492 (citations omitted). The Court found adequate provocation where the victim struck a powerful blow to the defendant's face. Ibid.

Viewing the evidence in a light most favorable to defendant and based on his version of events, he claims he was first mistreated by the police officers when they sprayed him with pepper spray, kicked and beat him after he resisted arrest. The police, however, have the right to use force when necessary. "[N]either a lawful arrest nor the use of necessary force to accomplish the arrest can constitute provocation justifying a finding of manslaughter." State v. Madden, 61 N.J. 377, 398 (1972). The police were attempting to arrest defendant pursuant to a lawful warrant. A person is not entitled to resist an arrest, even if it is not a lawful arrest. State v. Kane, 303 N.J. Super. 167, 182 (App. Div. 1997). Thus, an arrest by a law enforcement officer in the course of his or her official duties cannot serve as provocation for the killing of that officer. Because the evidence viewed in a light most favorable to defendant does not support provocation, the trial court did not commit error by not sua sponte giving a passion/provocation charge.

II

Defendant argues in Point II of his brief that the trial court erred by refusing to supplement the model jury charge for self-defense with language from Rule 3:3-3(c), governing execution of warrants, which states that when an officer is not in possession of an arrest warrant, the officer "shall inform the defendant of the offense charged and of the fact that a warrant has been issued." The court charged the jury with the model jury charge for self-defense. See Model Jury Charge (Criminal), "Justification - Self Defense" (2006). When charging the jury, the court explained that "[a] person may not . . . resist any arrest[] he knows is being made by an officer in the performance of the officer's duties, whether the arrest is legal or illegal, unless that officer uses unlawful force." The court then instructed the jury to "determine whether the officer used substantially more force than was necessary to [e]ffect the arrest of [defendant]. If you find, as a matter of fact, that the officer used only the amount of force necessary, to [e]ffect the arrest, then you should reject [defendant's] self-defense claim."

In making this factual determination, the court told the jury to "consider whether or not a person of ordinary prudence and intelligence in the circumstances of this [d]efendant would have concluded that he had to use the force that [defendant] actually is charged with using. Only if you conclude that he did act reasonably is the defense available to him." Defendant requested the court to also charge the jury that, "New Jersey law requires that a police officer advise a subject of the purpose of the arrest before using force if there's a reasonable ability to do so." Defendant argues that if this language had been included in the self-defense charge, the jury would have found he acted reasonably because the officer did not tell him why he was being arrested before handcuffing him.

Rule 3:3-3(c) does not specify when an officer must inform the defendant of the offense charged and therefore, does not expressly require the officer to do so before securing and handcuffing the defendant. Safety of the officers and the public is paramount when arresting an individual. Officers have the discretion to make the arrest before relaying the required information.

Defense counsel read Rule 3:3-3(c) to the jury, but it was initially given no instruction from the court on how to apply the Rule to this case. During deliberations, the jury asked the court for more information regarding an officer's duty to disclose charges to a defendant. In response, the court read Rule 3:3-3(c) to the jury and informed it that the Rule only applied to the resisting arrest charge, not to self-defense.

The court was not required to charge the jury to apply Rule 3:3-3(c) to the self-defense charge. Non-compliance with Rule 3:3-3(c) does not justify assault on a police officer. A private citizen must submit to an arrest by a police officer, even when that arrest may be deemed unlawful or simply wrong in some way as long as the officer "is acting in good faith and under color of his authority." State v. Crawley, 187 N.J. 440, 451 (2006). N.J.S.A. 2C:3-4b(1)(a) states that the use of force is not justified "[t]o resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, unless the peace officer employs unlawful force to effect such arrest. . ." When an officer uses excessive or unlawful force, recourse to self-defense is permissible. State v. Mulvihill, 57 N.J. 151, 155-56 (1970).

Defendant argues that he thought he was being arrested on a child support warrant or a motor vehicle violation, charges that he believed did not justify the police in drawing guns and handcuffing him. Thus, he argues that he rightfully felt his life was in danger when the police took high precautions for their safety and would not immediately tell him the nature of the charges against him. Defendant's subjective view of the level of precaution taken by the police in effectuating the arrest is not relevant to his claim of self-defense.

The relevant question is whether the police used excessive or unlawful force. N.J.S.A. 2C:3-7a permits the use of force "when the actor is making or assisting in making an arrest and the actor reasonably believes that such force is necessary to effect a lawful arrest." N.J.S.A. 2C:3-7b restricts the use of force in executing arrests pursuant to warrants to situations where the police "make[] known the purpose of the arrest or reasonably believe[] that it is otherwise known by or cannot reasonably be made known to the person arrested." Although the court was careful not to permit evidence of defendant's prior record to be introduced before the jury to justify the manner of his arrest, defendant's extensive and violent record supports the precautions taken by the police. The officers reasonably chose not to inform defendant of the purpose of the lawful arrest before handcuffing him. Moreover, "the right to make an arrest . . . necessarily carries with it the right to use some degree of physical coercion . . . to effect it." Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 1871-72, 104 L. Ed. 2d 443, 455 (1989).

III

In Point III of his brief, defendant argues that the court erred in not permitting the jurors to re-enact the removal of the officer's gun from her holster. During deliberations, the jury asked the court to remove a safety lock from Constantino's gun, which was in evidence. Unfortunately, the jury's question was not preserved, and the discussion of how to handle the question was not conducted on the record.1 When asked, "can we take or can the lock be taken off of the gun[?]," the court, after conferring with counsel from both sides, simply wrote "no" on the note from the jury and returned the note to it. Defendant argues that the court should have clarified the intent of the jury and should then have allowed it to re-enact the removal of the gun from the holster if that was its desire.

The State claimed that defendant took the gun, a Glock .40 caliber handgun, out of Constantino's holster while she and Leary were trying to restrain him. The State's firearms witness, Sergeant Charles DeFebbo of the Atlantic County Prosecutor's Office, an expert in the use and handling of the gun involved, testified and also demonstrated that defendant could have removed the officer's gun from her holster. Defendant, on the other hand, claimed that Constantino was beating him with her gun when it dropped to the ground. He testified he found the gun on the ground, picked it up and fired at the officers. Defense counsel also argued that it would be difficult, if not impossible, for someone in defendant's position to remove a gun from a holster as alleged by the State.

The jury may have wanted to test for itself how easy it was to remove the gun from the holster. The court refused to take the lock from the gun as requested by the jury because the jury also had live ammunition in evidence. We know of no reason why the ammunition could not have been removed from the jury room so that the jury could safely remove the gun from the holster.

When a court receives a question from the jury, the court should read the question "with care" and determine what help the jury needs in deliberation. State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994). "All proceedings respecting a jury's question during deliberations, including the question itself, must be recorded." Pressler & Verniero, Current N.J. Court Rules, comment 3.2 to R. 1:2-2 (2011). Here, the court discussed this question with counsel from both sides and decided the matter off the record.

Defendant cites Muchell v. V & V Inc., 263 N.J. Super. 412, 416 (Law Div. 1992), for the proposition that the jury should have been allowed to experiment with the evidence and re-enact the holster demonstration. In Muchell, the Law Division held that "[a]n experiment or demonstration is proper when conducted by the jury with the use of exhibits properly submitted to it for the purpose of testing the truth of statements made by witnesses or duplicating tests made by witnesses on the stand." Id. at 417 (citation omitted).

Although the better practice would have been to accommodate the jury's wishes if practical, the denial of the request without further inquiry does not require reversal because it was not "clearly capable of producing an unjust result." R. 2:10-2. Even if defendant picked up Constantino's gun from the ground, he would still have exercised unlawful control over it and therefore be culpable of disarming an officer and firing the officer's gun. N.J.S.A. 2C:12-11a; N.J.S.A. 2C:12-11b.

We agree with the State's argument that whether defendant picked the gun off the ground or took it out of Constantino's holster is irrelevant because both constitute disarming a law enforcement officer in that the gun was either in her actual or her constructive possession. An error during a criminal trial will only result in reversal of the defendant's conviction if the error was of such magnitude as to raise a reasonable doubt as to whether it led the jury to a decision it would not have reached otherwise. State v. Taffaro, 195 N.J. 442, 454 (2008). There will be "some measure of imperfection [in] almost every trial[,] . . . . A defendant is entitled to a fair trial but not a perfect one." State v. Feaster, 156 N.J. 1, 84 (1998) (citations omitted).

IV

Defendant argues in Point IV of his brief that it was plain error for the State to improperly impeach defendant with three violations of probation because the introduction of this information significantly damaged defendant's credibility. At the Sands hearing, the court ruled that defendant's prior criminal convictions and violations of probation, if sanitized, were admissible to impeach defendant's credibility. State v. Sands, 76 N.J. 127, 144 (1978) (holding that a prior criminal conviction must be admitted unless it is excluded by the court "as remote or for other causes"). Defendant took the stand in his own defense, and on cross-examination, the prosecutor questioned defendant about his criminal history, including violations of probation. Defense counsel did not object to this questioning at trial.

In State v. Jenkins, we held that a violation of probation cannot be used to impeach a witness under N.J.R.E. 609 because it is not a criminal conviction. 299 N.J. Super. 61, 75 (App. Div. 1997). However, we noted that the sentence that a defendant receives that resulted from the violation may be used for impeachment, especially if the prior conviction was sanitized pursuant to State v. Brunson, 132 N.J. 337, 394 (1993), as occurred here. Jenkins, supra, 299 N.J. Super. at 76. When a conviction is sanitized, the prosecutor is limited to mentioning the date and the degree of a defendant's conviction. Brunson, supra, 132 N.J. at 394. Prior convictions must be sanitized when they are similar to the offenses for which the defendant is being tried. Ibid.

Because the court carefully sanitized all of defendant's prior convictions, and the prosecutor focused on the sentences resulting from the violations of probation rather than the violations themselves, given the standard of plain error as discussed above, the error in allowing into evidence the prior violations of probation was harmless.

V

Defendant argues in Point V of his brief that the State impermissibly vouched for its witnesses by referring to the officers who testified as members of "the thin blue line" who put their lives in danger for the community and by making statements such as, "[d]o you really think that someone with [Officer Constantino's] character would deliberately lie to you?"

A prosecutor's "primary duty . . . is not to obtain convictions, but to see that justice is done." State v. Frost, 158 N.J. 76, 83 (1999) (citation omitted). In summation, prosecutors may "make vigorous and forceful closing arguments to juries" based on the evidence and all reasonable inferences. State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Also, they may vigorously rebut specific arguments made by defense counsel. State v. Mahoney, 188 N.J.359, 376 (2006). If defense counsel does not raise a timely objection to remarks in summation, this "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made [and] deprives the court of an opportunity to take curative action. Frost, supra, 158 N.J. at 84 (citation omitted). However, failure to object will not bar reversal if the offending remarks are so egregious that they deprived defendant of a fair trial. State v. Neal, 361 N.J. Super. 522, 535 (App. Div. 2003).

In deciding whether a defendant was deprived of a fair trial, the court should consider whether defense counsel made a timely objection to the offensive remarks, whether the remark was withdrawn or stricken, and whether the court gave a curative instruction to the jury. Frost, supra, 158 N.J. at 83 (citation omitted). At trial, defense counsel did not object to the prosecutor's characterization of the police officers as members of the "thin blue line." Defense counsel did, however, object to the prosecutor referencing the strong moral character of Constantino. Inappropriate prosecutorial remarks must be viewed in the context of the summations and trial as a whole to decide if they amount to prejudicial error. United States v. Young, 470 U.S. 1, 11-12, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1, 10 (1985).

It is improper for a prosecutor to state his or her personal opinion about the guilt of a defendant or the reliability of evidence. Id. at 8, 105 S. Ct. at 1042, 84 L. Ed. 2d at 8. The risk is that the jurors will trust the government's opinion over their own. Id. at 18-19, 105 S. Ct. at 1048, 84 L. Ed. 2d at 14. Improper conduct occurs when the prosecutor leads the jury to believe that its opinion is based on evidence that is not before the jury. State v. Wakefield, 190 N.J. 397, 440 (2007). Improper vouching for a witness is judged by the same standards as improperly opining on defendant's guilt; the question is whether the jury is led to believe that the prosecutor is relying on evidence that is not before it to the extent that defendant was deprived of a fair trial. Frost, supra, 158 N.J. at 87.

Here, the State's comments in summation were fair rebuttal to arguments made by defense counsel and fair inferences drawn from the evidence adduced at trial. There is nothing intrinsically wrong with referring to police officers as members of "the thin blue line in a situation where they are shot in the line of duty. The prosecutor was not personally vouching for the officers' veracity or putting the weight of the State behind them. In fact, the prosecutor told the jury, after making the previous comment, not to believe the officers "because of the color of their uniform."

The prosecutor referenced Constantino's moral character in response to defense counsel's argument that the officers were lying while defendant was telling the truth. The prosecutor drew attention to the evidence that was produced at trial, including the officers' demeanor on the witness stand.

The State did not exceed the bounds of fair comment during summation in this case so as to deprive defendant of his right to a fair trial.

VI

Defendant argues in Point VI of his brief that the court erred in sentencing defendant by applying the incorrect standard to determine his eligibility for an extended term, improperly applying aggravating and mitigating factors and improperly sentencing him to three consecutive terms. Defendant was found guilty of all thirteen counts of the indictment. After merging the thirteen offenses into four, the trial court sentenced defendant to a mid-range extended term of fifty years in prison subject to NERA on count one. See N.J.S.A. 2C:43-7a(2) (extended term sentences for first-degree crimes range from twenty years to life imprisonment); cf. N.J.S.A. 2C:44-1f(1)(e) (Prior to the Court's decision in State v. Natale, 184 N.J. 458, 466 (2005), eliminating presumptive term sentences, sentences imposed pursuant to N.J.S.A. 2C:43-7a(2) carried a presumptive term of fifty years.). The court imposed an ordinary term of twenty years subject to NERA on count two and fifteen years subject to NERA on count three, with all three sentences to be served consecutively. The court sentenced defendant to a concurrent term of one year for count thirteen.

Defendant argues that the court used an incorrect analysis when imposing an extended term. He argues that the court erroneously relied on language from State v. Dunbar, 108 N.J. 80 (1987), which has since been overruled by State v. Pierce, 188 N.J. 155 (2006). The court stated in Dunbar that "[t]he standard for determining the appropriateness of an extended term is whether it is necessary for protection of the public from future offenses by a defendant." 108 N.J. at 90-91. This formulation was overturned by the New Jersey Supreme Court in Pierce where the Court held that the need to protect the public was no longer a threshold issue in determining applicability of an extended term, but rather a factor for the court to consider when deciding the length of an extended term after it is determined that the defendant is eligible. Pierce, supra, 188 N.J. at 168.

Although the court initially misstated the procedure for determining an extended term at the sentencing hearing, itultimately employed the correct procedure. In deciding whether to impose an extended term, the court must determine "whether a defendant meets the definition of a 'persistent offender,' . . . examin[ing] the defendant's prior record and his or her age at the time of any prior convictions." Id. at 162. The court determined that defendant was a "persistent offender," and thus eligible for an extended term under N.J.S.A. 2C:43-7a due to his extensive criminal record as an adult. The court noted that defendant, who was twenty-nine at the time, had been convicted of twelve crimes since he turned eighteen. The court also noted that defendant was at least twenty-one years old when he committed the crime for which he was being sentenced. Although the court noted that it must consider the public interest in determining whether to impose an extended sentence, it had already properly characterized defendant as a "persistent offender." Based on the trial court's consideration of defendant's prior record, the misstatement of the Dunbar/Pierce standard was harmless. R. 2:10-2.

In determining the appropriate sentence to be imposed on a convicted individual, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005); State v. Kruse, 105 N.J. 354, 378 (1987). If a sentencing judge properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996). If a judge adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:

Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence.

 

[Id. at 612.]

 

Defendant argues that the court erred by focusing on the defendant's prior record and not the offense charged when determining the length of defendant's sentence. The court noted that defendant had been arrested in three states for various offenses, had previously been incarcerated, had violated probation four times and parole once, had an active bench warrant out of Philadelphia and was registered in the Domestic Violence Registry as a result of a temporary restraining order filed by his girlfriend. The court also noted that as a juvenile defendant was arrested eleven times, had five adjudications, including one for possession of a firearm and another for aggravated assault and had violated probation twice.

The court, however, did not rely on defendant's prior record alone in determining the length of his sentence. In fact, the court noted that the violent crimes for which defendant had previously been convicted were "pale in comparison with attempting to murder three law enforcement officers." The court stated:

While . . . a defendant's prior criminal record alone should not be used to determine the extent of an extended term, the court may consider other aspects of defendant's record that are not among the minimal conditions for imposing an extended term, such as, juvenile record, parole and probation records, and prior response and attempts at rehabilitation under State v. Byard [ 328 N.J. Super. 106 (App. Div. 2000)]. This defendant has had numerous opportunities at rehabilitation due to the juvenile system and the adult system and has terribly failed. The court can consider the whole person for sentencing purposes.

 

The court then provided a more detailed account of defendant's criminal history before discussing specific aggravating and mitigating factors.

The court properly found aggravating factors one, "[t]he nature and circumstances of the offense, and the role of the actor," N.J.S.A. 2C44-1a(1); three, "the risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); six, "the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," N.J.S.A. 2C:44-1a(6); eight, "[t]he defendant committed the offense against a police or other law enforcement officer, . . . acting in the performance of his duties," N.J.S.A. 2C:44-1a(8); and nine, the need to deter defendant and others, N.J.S.A. 2C:44-1a(9). The court considered the seriousness of this particular crime when finding aggravating factor one and properly considered defendant's prior record in finding aggravating factor six.

Finally, defendant argues that the court should not have sentenced him to consecutive terms for each of the three attempted murders. The court determined that because there were three distinct victims of these three crimes, consecutive sentences were appropriate. This reasoning comports with State v. Yarbough, 100 N.J. 627 (1985), where the court determined that sentences for crimes against separate victims should ordinarily be served consecutively.

Under the circumstances present here, the sentence of eighty-five years imprisonment subject to NERA is reasonable and does not "shock the judicial conscience". Roth, supra, 95 N.J. at 365.

Affirmed.

 

1 We remanded for a reconstruction of the in-chambers discussion of this jury question.