STATE OF NEW JERSEY v. RICHARD BARGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4970-09T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RICHARD BARGE,

Defendant-Appellant.

________________________________________________________________

November 26, 2012

 

Submitted March 13, 2012 - Decided

 

Before Judges Espinosa, Kennedy and Guadagno.

 

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 08-06-1851.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

 

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Nancy P. Scharff, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant appeals from his sentence and convictions for first-degree murder, N.J.S.A. 2C:11-3(a)(1)(2); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a)(1); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). We affirm.

Nicholas Syders was shot to death on November 22, 2007, as he sat in the driver's seat of an automobile with Steven Goldsboro. Syders tried to drive off as he was being shot. The car accelerated, crossed a parking lot and the street, crashing into the wall of a brick building. Goldsboro jumped from the car before the crash, shattering his left knee cap when he hit the ground.

Goldsboro was still at the scene when Officer Luis Sanchez of the Camden Police Department arrived. Initially, Goldsboro denied seeing anything. Then, he told Sanchez that he and Syders were sitting in the car in the parking lot when a black male wearing all black clothing and a black ski mask covering the lower part of his face began firing a handgun in the direction of the rear windshield. Goldsboro told the police that the assailant was unknown to him but subsequently admitted he knew the identity of the shooter.

Goldsboro had to have knee replacement surgery and was hospitalized for a week after the shooting. He was contacted by an investigator, James Bruno, from the Prosecutor's Office but still did not admit he knew the identity of the shooter. After his release from the hospital, Goldsboro was approached by Joanne Syders, Nick Syders's mother, who was working with the Prosecutor's Office to find the person who killed her son. She asked Goldsboro to tell her what happened and recorded their conversation. Goldsboro eventually admitted to her that the shooter's name was Rich and described some of the areas where Rich might be located. The following day, November 30, 2007, Goldsboro gave a taped statement at the Prosecutor's Office in which he indicated that the person who shot Syders on Thanksgiving night was the man he knew as "Rich" who had been in a fight with Syders at the Nice Little Bar weeks earlier. When Investigator Bruno showed Goldsboro a photograph of defendant, Goldsboro confirmed that defendant was "Rich."

That summer, months after he provided this statement, Goldsboro received threats directed not only at him but at his family. One of the people who approached Goldsboro about changing his statement was "Boo-Bop," the brother of defendant's girlfriend, Ronnet Brown, known as "Mom-Mom." Arrangements were made for Mom-Mom to pick up Goldsboro and drive him to the office of the lawyer who represented defendant at the time to give a new statement that changed his account "so [defendant] can get away." Goldsboro testified that Mom-Mom remained in the room while a defense investigator taped the statement. Goldsboro signed a written statement on that date, July 7, 2008, indicating that he "saw the shooter that killed Nicholas and it was not Richard Barge." Goldsboro stated he provided this statement because he "was scared" by the threats and believed that if he recanted his earlier statement implicating defendant, nothing would happen to his family. He testified that the July 7, 2008 statement was untrue and explained he provided it only "[t]o protect [his] family."

Approximately one year after Goldsboro recanted his identification to the defense investigator, Investigator Bruno conducted a second, taped interview of him. Goldsboro explained his reasons for providing the July 7, 2008 statement to the defense investigator and indicated that this statement was not true; he reiterated that it was in fact defendant who shot Syders on Thanksgiving night.

At trial, Goldsboro testified further that he first saw the gunman standing approximately two to three feet away from the driver's side of the car. He recognized the gunman as defendant, with whom he was acquainted. Although defendant was wearing a hoodie with the hood pulled over his head, the area was brightly lit and Goldsboro "could still see [his] face." Goldsboro explained that he did not initially identify defendant because he was afraid for himself and the safety of his family.

Two inmates housed with defendant at the Camden County Jail also testified at trial. Jamal Gibbs was incarcerated following his guilty plea to second degree manslaughter, and housed in a cell across from defendant. Andre Munday, who had pled guilty to aggravated manslaughter, had a cell next to defendant's cell. Both Gibbs and Munday admitted they hoped their cooperation would reduce the sentences they would receive.

Gibbs testified that he considered defendant an "associate" whom he met through another acquaintance. Gibbs testified that he and defendant were able to communicate with each other through hand signs and, on occasion, by speaking for short periods of time. According to Gibbs, defendant communicated to him that he approached or "checked" Nick Syders at a bar and that the two of them "had words" and it got "heated." When defendant was later shot, defendant believed that "it was Nick [Syders's] work." On Thanksgiving, somebody called defendant and told him that Nick was at the Off Broadway bar downtown. Defendant went there and "got at" Nick when he was in a car. Since there were other inmates around when he and defendant were "signing" to each other, Gibbs explained that "you don't want to come out and say I killed him. You want to say I got at him."

Gibbs testified that defendant also verbally confirmed this information, telling Gibbs that he "got shot and he believed Nick did it or had something to do with it and he got down at Nick at Off Broadway." Defendant advised Gibbs that he "hit him up when he was in a car[,]" which Gibbs explained meant that defendant "shot him as he was in the car."

When asked whether defendant told him anything else about what happened, Gibbs testified that defendant told him that Nick's car "crashed." Gibbs further testified that defendant said, "Somebody told on me" and that he would find out who it was when he received his discovery. Later, defendant told Gibbs he "found out who the witness was" and that it was someone named Steven who was in the car with Syders. Defendant also indicated to Gibbs that he would "just [get] Mom-Mom . . . to give [Steven] 15 grand . . . to change his statement."

Munday testified he was "affiliated with a gang called the Bloods" and that since everyone in the next cell, with the exception of defendant, was also a Blood member, he "eventually . . . [got] to know" defendant, who told Munday about his case. Specifically, defendant told Munday that it "involved [] a little situation with some guy named Nick[,]" who had gotten into "a little beef" with defendant and "some guy named Lid" and that defendant got shot "not too long after that." Munday testified that someone alerted defendant to Nick's location and when he arrived there, defendant saw Nick get in a car with someone defendant did not know. Defendant ran up to the car and as soon as Nick started his engine, "Rich shot him." The car eventually "wrapped around a pole or tree or something" and defendant "ran off." Munday said the other person in the car with Nick was named "Steve." When asked whether it was "common to talk about cases in jail[,]" Munday responded that it was okay to talk freely among members of the Bloods gang because

if you give a statement or you testify against somebody, you're a target. Your life is in danger. That's it. . . . As soon as they get the chance . . ., they're going to kill you.

 

Munday testified that it took him several months to decide whether to cooperate with the authorities. Among other reasons, he was afraid he would be beaten up by the other inmates, and he did not want to be called a "snitch," which would "dirty" his name.

Defendant testified and denied he killed Nicholas Syders or had any knowledge of the crime. He stated that he was at the apartment of Vanessa Brown, his girlfriend's mother, for Thanksgiving dinner, arriving at approximately 3:00 p.m. At approximately 7:00 p.m., he and Mom-Mom left the apartment for a very short time to take his son back to his son's mother's home. He testified that he left with Mom-Mom and her two children about thirty to sixty minutes after dinner and returned to their apartment, where he remained the rest of the night. Although defendant could not recall the exact time, he said it was probably after 10:30 when they left. As defendant acknowledged on cross-examination, this testimony was inconsistent with prior statements he had given in which he stated he stayed at Vanessa's apartment until he left at 9:00 or 9:30.

In addition to defendant, three witnesses testified on defendant's behalf: defendant's girlfriend, Mom-Mom; her mother, Vanessa Brown; and Mom-Mom's fifteen-year old daughter. All three women testified that defendant had Thanksgiving dinner with them at Vanessa's apartment at approximately 10:00 p.m. that night and that, except for leaving for a few minutes at approximately 6:00 or 6:30 p.m. to drive his son home, defendant was at the apartment from the late afternoon until approximately 11:00 p.m. or midnight.

Defendant denied ever meeting Steven Goldsboro and stated that the "first and only time" he ever saw Goldsboro was when Goldsboro testified. He also denied knowing Jamal Gibbs or Andre Munday, although he acknowledged that he had seen Munday "on the tier" at the jail. He stated that Gibbs and Munday were lying when they testified that he admitted his involvement in Syders's death and maintained that he had "no idea" what all three of them were "talking about."

Defendant acknowledged that he and Mom-Mom were at the Nice Little Bar at about 9:00 p.m. approximately three weeks before the homicide. While there, Mom-Mom introduced him to Nick Syders, whom she considered her cousin. He admitted that he and Nick had "words" but denied it ever got physical. Defendant also testified that he was shot after the incident with Nick Syders at the Nice Little Bar.1

The jury convicted defendant on all charges. The court merged count two (second-degree possession of a weapon for an unlawful purpose) with count one (first-degree murder) and sentenced defendant to fifty years imprisonment with 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count one; four years imprisonment on count three (third-degree unlawful possession of weapons), and seven years imprisonment with five years parole ineligibility on count four (second-degree certain persons not to have weapons). The sentences imposed on counts three and four were concurrent to each other and consecutive to the sentence imposed on count one. Additionally, the requisite fines and penalties were imposed, as well as restitution in the amount of $4107, representing the cost of victim Nicholas Syders's funeral expenses.

Defendant presents the following arguments in his appeal:

POINT I

 

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE COURT ALLOWED STATE'S WITNESS STEVEN GOLDSBORO TO IDENTIFY THE DEFENDANT AS THE SHOOTER DESPITE THE IMPERMISSIVE SUGGGESTIVENESS OF A PRIOR PHOTO IDENTIFICATION LINEUP AND THE IRREPARABLE PROBABILITY OF MISIDENTIFICATION.

 

POINT II

 

THE TRIAL COURT SHOULD HAVE GRANTED THE JOINT MOTIONS TO REOPEN THE WADE[2] HEARING WHEN IT WAS DISCOVERED THAT THE STATE FAILED TO INFORM OR PROVIDE DEFENSE COUNSEL WITH EVIDENCE OF THE SECOND INTERVIEW OF THE WITNESS WHILE USING THE SAME PHOTOGRAPHIC PROCEDURE AS WAS USED IN THE FIRST INTERVIEW.

 

POINT III

 

THE COURT'S JURY INS[T]RUCTIONS WERE FLAWED IN THAT [THEY] FAILED TO INCLUDE AN INSTRUCTION ON ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER AS A LESSER-INCLUDED OFFENSE OF THE MURDER. (NOT RAISED BELOW).

 

(a) DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO HIS ATTORNEY'S FAILURE TO OBJECT TO THE LACK OF INSTRUCTION ON PASSION/PROVOCATION MANSLAUGHTER.

 

POINT IV

 

DEFENDANT'S MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED BASED UPON NEWLY DISCOVERED EVIDENCE.

 

POINT V

 

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE WHERE THE ONLY EYEWITNESS ONLY SAW THE SHOOTER FOR A SPLIT SECOND, AND RECANTED HIS IDENTIFICATION OF THE DEFENDANT AS THE SHOOTER.

 

POINT VI

 

SENTENCE OF 57 WITH 47 1/2 OF PAROLE INELIGIBILITY YEARS WAS EXCESSIVE.

After carefully considering these arguments in light of the record and applicable legal principles, we are satisfied that none of them have any merit.

I

We first address defendant's arguments in Points I and II challenging the introduction of Goldsboro's identification testimony and the denial of his request to reopen the Wade hearing.

Defendant argues that because the State's case rests almost entirely on Goldsboro's identification of him as the shooter, the reliability of his identification was of critical importance. He contends that the evidence demonstrates clearly that Goldsboro never saw the face of the shooter. In the days following the shooting, Goldsboro repeatedly stated that he did not see the shooter's face and could not identify him. He argues that, within this context, a one-photo lineup was impermissibly suggestive. However, aside from the fact that only one photo was shown to Goldsboro, defendant has not identified any other facts that demonstrate that the police used a procedure that was impermissibly suggestive.

As defendant notes, Goldsboro repeatedly disclaimed any ability to identify the shooter. This information was presented to the jury to assist it in determining his credibility and the credibility of his identification. However, independent of any input from the police and prior to being shown the photograph, Goldsboro provided independent identifying factors that assisted in the identification of defendant. He told police he knew the shooter as "Rich" and described some of the areas where Rich might be located. Goldsboro also told the police that "Rich" had been in a fight with Syders at Nice Little Bar weeks earlier. This information was actually corroborated by defendant, who acknowledged in his testimony that he had been involved in an argument with Syders at the Nice Little Bar three weeks before Syders was killed. When Investigator Bruno showed Goldsboro a photograph of defendant, Goldsboro confirmed that defendant was the man he referred to as "Rich."

"[T]he ultimate burden remains on the defendant to prove a very substantial likelihood of irreparable misidentification." State v. Henderson, 208 N.J. 208, 289 (2011). Here, Goldsboro provided identifying information about the shooter, including a first name, before he was shown a photograph by the police. Moreover, the detail that he provided regarding defendant's involvement in a dispute with the victim at a specific bar was confirmed by defendant. We are satisfied that the evidence clearly and convincingly established that the identification was based upon Goldsboro's prior knowledge regarding defendant and was not the product of any suggestive procedure used by the police. See id. at 238-239; State v. Madison, 109 N.J. 223, 245 (1988) (citing Wade, supra, 388 U.S. at 240, 87 S. Ct. at 1939, 18 L. Ed. 2d at 1164).

Defendant argues that, nonetheless, it was error to permit Goldsboro to identify him as the shooter. Citing his prior denials of knowledge of the shooter's identity, defendant argues that Goldsboro was so unreliable as to render his identification inadmissible. We disagree. It was up to the jury to determine whether Goldsboro's identification testimony was credible. All the information defendant relies upon now was provided to the jury, allowing them a full and fair opportunity to assess Goldsboro's credibility.

Defendant also argues that the procedure employed violated the Attorney General's guidelines because the person who showed the photograph to Goldsboro was both the lead investigator and the officer who interviewed Goldsboro. He has cited no authority for the proposition that this alleged departure from the guidelines warrants reversal where an identification was not impermissibly suggestive.3

Defendant argues further that the trial court erred in denying his motion to reopen the Wade hearing, which was unopposed by the State. On July 1, 2009, approximately one year after Goldsboro provided the statement to a defense investigator in which he denied defendant was the shooter, Investigator Bruno conducted a second interview of him, which was videotaped. In that interview, Goldsboro explained his reasons for giving the statement in which he recanted his earlier identification to the defense investigator, and again identified defendant as the shooter. The tape was not transcribed and provided to the defense until after the Wade hearing was held. Defendant does not argue that the tape and transcript were deliberately withheld by the State. However, he contends that, without the tape, he was denied "a fair opportunity to fully argue the motion on the issue of impermissible suggestibility."

In denying the motion, the trial judge stated the focus of the Wade hearing was the suggestibility of procedures used in the first identification. She stated her review of the transcript of the second interview provided no basis for reopening the Wade hearing:

I read the transcript of it. And there's nothing in there that says anything about identification -- the first identification. It's all about what he said and what happened at the time of the meeting with the investigator for [defense counsel's] office and it's about what they're talking about that day in his identification on that day. But they're not talking about anything that happened at the first meeting. And I think that in order for it to be relevant to a Wade hearing it has to be about the first hearing. . . . [t]here's not a single thing about that in here. It's all about -- it's mostly all about the recantation itself and not about the identification originally.

 

A defendant must "proffer . . . some evidence of impermissible suggestiveness" to be entitled to a Wade hearing. State v. Rodriquez, 264 N.J. Super. 261, 269 (App. Div. 1993), aff'd o.b., 135 N.J. 3 (1994); State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Defendant has identified nothing in the tape of the July 2009 interview that constitutes evidence of impermissible suggestiveness regarding Goldsboro's identification of him, and the trial judge found none based upon her independent review of the transcript. We are therefore satisfied that this argument lacks any merit.

II

In Point III, defendant argues that the trial court committed plain error in failing to include an instruction, sua sponte, on attempted passion/provocation manslaughter as a lesser-included offense of murder. We disagree.

A trial court "does not . . . have the obligation on its own meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences might rationally sustain a manslaughter charge." State v. Choice, 98 N.J. 295, 299 (1985). A "duty" to give a charge sua sponte "arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction." State v. Rivera, 205 N.J. 472, 489 (2011) (citing Choice, supra, 98 N.J. at 299). Thus, it is only when the facts "clearly indicate the appropriateness of" a provocation/passion charge that the trial court has a duty to so charge. Id. at 489-90 (internal quotation marks omitted).

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. The first two criteria are objective, the other two subjective. If a slaying does not include all of those elements, the offense of passion/provocation manslaughter cannot be demonstrated.

 

[State v. Mauricio, 117 N.J. 402, 411 (1990) (internal citation omitted).]

 

In State v. Robinson, 136 N.J. 476 (1994), the Supreme Court provided the following guidance for determining whether the evidence "clearly indicates" that a passion/provocation charge should be given to the jury on the court's own initiative:

[W]e hold that a trial court in charging a jury sua sponte must find first that the two objective elements of passion/provocation manslaughter are clearly indicated by the evidence. If they are, the two subjective elements should almost always be left for the jury.

 

[Id. at 491 (internal quotation marks and citation omitted).]

Although an instruction should not be given that would unfairly surprise either the prosecution or the defense, id. at 489-90, the mere fact that the instruction conflicts with defendant's trial strategy is not fatal to a determination that it is appropriate based upon the evidence in the case, see State v. Taylor, 350 N.J. Super. 20, 38 (App. Div.) (citing State v. Grunow, 102 N.J. 133, 148 (1986)), certif. denied, 174 N.J. 190 (2002). Moreover, in making this determination, "the judge must consider the evidence in the light most favorable to the defendant." Taylor, supra, 350 N.J. Super. at 38.

In light of these principles, we review the evidence to determine if the evidence clearly indicated (1) the provocation was adequate and (2) defendant did not have time to cool off between the provocation and the slaying. See Robinson, supra, 136 N.J. at 490.

The measure of adequate provocation is whether "loss of self-control is a reasonable reaction" to the provocation. Mauricio, supra, 117 N.J. at 412. The provocation must be

sufficient to arouse the passions of an ordinary [person] beyond the power of his [or her] control. The provocation must be severe enough that the intentional homicide may be as much attributable to the extraordinary nature of the situation as to the moral depravity of the actor.

 

[Ibid. (Alterations in original) (citations and internal quotation marks omitted).]

 

Even if the evidence "clearly indicates" that defendant was impassioned by adequate provocation, the second element requires that the evidence also "clearly indicates" that defendant did "not have [] time to cool down between the provocation and the retaliation." Robinson, supra, 136 N.J. at 492. Although "it is well-nigh impossible to set specific guidelines in temporal terms[,]" a passion/provocation manslaughter instruction is inappropriate "if there was undeniably a reasonable cooling-off period[.]" Mauricio, supra, 117 N.J. at 413.

The defense in this case was that defendant did not shoot Syders and that he should not be held criminally liable for murder or any lesser-included offense because he had committed no wrong.4 Although no argument was made on behalf of defendant that he met the criteria for passion/provocation manslaughter, defendant now argues that the criteria was satisfied by the State's theory that defendant shot Syders in retaliation for two events: a physical altercation between them that occurred weeks earlier and because defendant believed Syders had shot him.

According to defendant, he first met Syders at the Nice Little Bar, approximately three weeks before Syders was killed, when his girlfriend introduced him to Syders. Defendant admitted that he and Syders had "words" but denied there was a physical altercation. Moreover, contrary to the characterization of that incident advanced now, defendant testified that they had only a "minor" argument. Defendant testified further that he did not know who shot him.

Based upon defendant's testimony, the "minor" argument was insufficient to support a conclusion that defendant's "loss of self-control [was] a reasonable reaction." And, defendant's testimony that he did not know who shot him effectively precludes consideration of the shooting as adequate provocation. We are therefore satisfied that the evidence failed to "clearly indicate" that there was adequate provocation for defendant to shoot Syders.

Moreover, "there was undeniably a reasonable cooling-off period" from the time of either of the allegedly provocative acts and the murder. As a result, the evidence also failed to "clearly indicate" the second element of passion/provocation manslaughter. We are therefore satisfied that the trial court did not err in failing to provide an instruction, sua sponte, on passion/provocation manslaughter.

Defendant also argues that his trial counsel was ineffective in failing to request such an instruction. To prevail on a claim of ineffective assistance of counsel, defendant must meet the two-prong test of establishing both that: (l) counsel's performance was deficient and he or she made errors that were so egregious that counsel was not functioning effectively as guaranteed by the Sixth Amendment to the United States Constitution; and (2) the defect in performance prejudiced defendant's rights to a fair trial such that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687, 694, l 04 S. Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693, 698 (1984); State v. Fritz, l 05 N.J. 42, 52 (l987).

Because passion/provocation manslaughter is available only if defendant actually killed the victim, it is fundamentally incompatible with defendant's testimony that he was not involved in the shooting. It is an entirely reasonable exercise of judgment for a trial attorney to choose one of two conflicting theories and seek only those jury instructions that further a theory that is supported by the testimony of the defendant and witnesses called on his behalf. Accordingly, defendant's argument cannot satisfy the first prong of the Strickland/Fritz test, and this contention lacks any merit.

III

Defendant argues that the trial court erred in denying his motions for a new trial based on newly discovered evidence and in failing to set aside the verdict as against the weight of the evidence. We disagree and are further satisfied that defendant's argument that the verdict was against the weight of the evidence lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In support of his motion for a new trial, defendant submitted a statement by Terrance Damon, dated January 20, 2010, in which he stated that Gibbs admitted to him that he was reviewing the discovery of inmates and then lying that they had confessed to him in order to get a better sentence.

In State v. Ways, 180 N.J. 171 (2004), the Supreme Court described the standard applicable to a motion for a new trial based upon newly discovered evidence:

[D]efendant must show that the evidence is 1) material, and not "merely" cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was "not discoverable by reasonable diligence beforehand"; and 3) that the evidence "would probably change the jury's verdict if a new trial were granted."

 

[Id. at 187 (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]

All three prongs of that test must be satisfied before a new trial is warranted. Ibid. The trial judge concluded that defendant had failed to satisfy two of these prongs.

As to the first prong, the evidence was clearly impeaching in nature. Moreover, Gibbs admitted that he was providing the testimony against defendant in the hope that it would secure him a better sentence. Therefore, the proffered evidence from Damon did not offer a new insight into a possible motivation for Gibbs to provide false testimony. As the trial judge observed, the jury was well aware of this and able to take it into consideration in evaluating Gibbs's credibility. The judge also found that, in light of the very substantial evidence of defendant's guilt and the cumulative nature of the proffered impeaching evidence, the "newly discovered evidence" "would probably [not] change the jury's verdict if a new trial were granted." Ibid. We agree.

Moreover, there is support for a finding that defendant failed to satisfy the second prong. The trial in this matter was conducted on January 13, 14, 20, 21, and 22, 2010. In argument, defense counsel represented that the statement from Damon was obtained "on the last day or two of our trial. So [there] was no way that I would have been able to know about that until after the verdict came in." Ways requires that the newly discovered evidence be "discovered after completion of the trial" and that it "was not discoverable by reasonable diligence beforehand." Ibid. (internal quotation marks omitted). By defense counsel's account, the statement was obtained while the trial was ongoing and therefore, despite his denial, would appear to have been available through the exercise of reasonable diligence before the trial's completion.

IV

Finally, defendant challenges his sentence as excessive.

Appellate review of a sentence entails the following determinations:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgement [sic] that it shocks the conscience.

 

[State v. Megargel, 143 N.J. 484, 493 (1996).]

The standard of review is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).

To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Although the judge has discretion as to the weight to be given to each factor, the judge lacks discretion to decline to "take into account a mitigating factor that is fully supported by the evidence[,]" but "must [include such factor as] part of the deliberative process." State v. Dalziel, 182 N.J. 494, 504-05 (2005).

Defendant argues that the trial judge erred in failing to find mitigating factor (5), (that the victim induced its commission, N.J.S.A. 2C:44-1(b)(5)), by shooting defendant several weeks prior to his murder. This argument was raised and rejected at sentencing. Defendant's contention that he chose to avenge the prior shooting by murdering his assailant is not cognizable as a mitigating factor under the statute or in a civilized society.

Affirmed.

 

 

 

 

 

1 Defendant presented inconsistent testimony on the sequence of these events. During redirect, he testified that he got shot on October 26th, 2007, before the Nice Little Bar encounter. On re-cross-examination, he admitted he did not recall the date of the Nice Little Bar incident, but maintained that it was "after [he] got shot."

2 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

3 We note that the procedures articulated in Henderson were explicitly given prospective application. Henderson, supra, 208 N.J. at 302.

4 Defense counsel initially opposed an instruction on aggravated manslaughter but then requested instructions on both aggravated manslaughter and reckless manslaughter. The court gave both instructions as requested.