STATE OF NEW JERSEY v. TYRELL L. BROWN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TYRELL L. BROWN,

Defendant-Appellant.

___________________________________________________

July 25, 2014

 

Submitted March 4, 2014 Decided

 

Before Judges Messano and Rothstadt.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-07-1076.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief).

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Tyrell L. Brown was convicted of second-degree aggravated assault of Dmitri Gizas, N.J.S.A. 2C:12-1(b)(1) (causing or attempting to cause serious bodily injury ("SBI")), and the lesser-included, third-degree aggravated assault of Matthew McBride, N.J.S.A. 2C:12-1(b)(7) (causing or attempting to cause significant bodily injury); third-degree aggravated assault of McBride and Gizas, N.J.S.A. 2C:12-1(b)(2) (purposely or knowingly causing or attempting to cause bodily injury with a deadly weapon, a knife); and fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). The jury acquitted defendant of third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d). After appropriate mergers, the judge sentenced defendant to an aggregate term of five years imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant raises the following points on appeal:

Point 1: The trial court erred in denying defendant's motion for acquittal.

 

Point 2: The trial court erred and violated defendant's Fifth Amendment rights by permitting defendant's statements to police before the jury below.

 

Point 3: Other-crimes evidence heard by the jury below caused an unfair trial for defendant, warranting a new trial here (plain error).

 

Point 4: Improper questions and comments by the prosecutor cumulatively acted to deprive the defendant of a fair trial (partially raised below).

 

Point 5: The trial court erred and violated defendant's right to raise reasonable doubt before the jury by instructing the jury to disregard part of defense counsel's summation.

 

Point 6: The trial court's jury charges and verdict sheet were confusing and prejudicial to defendant, warranting a new trial here (plain error).

 

Point 7: Defendant's sentence is improper and excessive.

 

Having considered these arguments in light of the record and applicable legal standards, we affirm defendant's convictions but remand the matter for resentencing.

I.

At approximately 11:00 p.m. on February 18, 2011, Dmitri Gizas, a student at Rutgers University and member of Zeta Psi fraternity, planned to attend a party at the fraternity house with several of his male friends. Gizas's friends were not permitted inside, so he remained outside with them.

Matthew McBride, a Rutgers football player, also arrived at the fraternity house with two male friends. He observed a group of four men and one woman arrive, intending to enter the party. Although McBride made no in-court identification, the State contended that defendant was one of those individuals, and the young woman was his girlfriend, Victoria Long. McBride testified that when the group was denied access, Long became upset and began to curse. The confrontation began on the stairs of the fraternity house but gravitated down to street level.

McBride, who denied serving as a "bouncer" at the party and also denied having any physical confrontation with anyone that evening, testified that he saw a "movement from behind." A man hit him in the back of the knee before moving away quickly. McBride felt a lot of pain, and his friends saw that he was bleeding. They summoned a police officer who called for an ambulance. McBride suffered two stab wounds that required a total of four stitches.

Gizas testified that during the altercation, Long put her hands on his face in a "claw[ing]" manner. Gizas instinctively pushed her away and then immediately felt a "punch in [his] arm." He also had been stabbed. At trial, Gizas was "90 percent" sure it was defendant who stabbed him. Gizas was taken to the hospital and underwent surgery. At trial, he described a persistent numbness in his forearm and the need to undergo rehabilitation before he was able to use his arm to write again.

Gizas and McBride described the man who stabbed them as wearing a distinctive sweatshirt. Other witnesses called by the State echoed this description. Rutgers University Police Officer Carlos Correa was dispatched to patrol the area looking for anyone who fit the description. He advised his sergeant, Matthew Gulsby, that he had located a group of people, one of whom was wearing a sweatshirt that matched the description. Gulsby responded to the scene.

In court, Gulsby identified defendant as the person wearing the distinctive sweatshirt. Gulsby also noticed that defendant had blood on his sweatpants. When asked about the blood on his clothing, defendant claimed he had been in a fight. According to Gulsby, defendant had "some scrapes" on his hand, but otherwise appeared uninjured. Defendant was arrested.

Rutgers University Police officer Nicholas Cevasco was searching for the possible knife used in the assault on Gizas and McBride when Henry Koslow, one of the fraternity brothers, handed him a knife that he claimed to have found in the parking lot next to the fraternity house. DNA tests performed on the knife were positive for Gizas's blood.

Defendant provided a statement to Rutgers University Police Detective Sean Skala that was recorded on video and played for the jury. It suffices to say that defendant admitted the knife was his, but claimed that he acted in self-defense after being viciously assaulted by a number of individuals at the fraternity house. Several State witnesses, however, denied there was any assault.

After the State rested, the judge denied defendant's motion for acquittal, and the defense case commenced. Donald Kinsey, a long-time friend of defendant, Long, and defendant gave their accounts of what happened outside the fraternity house. In short, they basically testified that after a verbal altercation on the steps of the fraternity house, someone poured a beer on Long, and defendant went to her defense. As the dispute became more heated, defendant was tackled by McBride and assaulted by a group of eight or nine people, including Gizas. Defendant acknowledged swinging his pen knife, one he used at work, only to "get people off [him]."

Defendant also called two members of the Rutgers University Police Department who spoke to McBride and Gizas at the hospital on the evening of the assault. Contrary to his testimony at trial, McBride admitted that he was serving as a bouncer at the fraternity house; Gizas, who the officer noted smelled of alcohol, described the incident as "a large street fight."

II.

Defendant argues the judge erred in denying his motion for acquittal because the State failed to prove beyond a reasonable doubt that he caused "serious bodily injury" to Gizas, or acted with the requisite state of mind, and because the State failed to prove beyond a reasonable doubt that he did not act in self-defense. We disagree.

The "well-established standard for determining the sufficiency of the evidence against an accused on a Rule 3:18-1 motion for acquittal[,]" State v. Wilder, 193 N.J. 398, 406 (2008), is set forth in State v. Reyes, 50 N.J. 454, 459 (1967) (citation omitted):

[W]hether[] viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

 

We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 534, 548-49 (2004).

A person is guilty of second-degree aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A. 2C:12-1b(1). "Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A.2C:11-1b.

The surgeon who treated Gizas at the hospital testified that the injury to the triceps muscle was "not something that is likely to heal itself," and that Gizas suffered "loss of strength due to less muscle fibers being attached." Gizas himself testified to the continued numbness in his arm years after the assault. We therefore reject defendant's claim that Gizas did not suffer serious bodily injury.

Defendant's claim that the evidence was insufficient to prove that he acted with the requisite mental state, or that the State failed to disprove he acted in self-defense, lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). It suffices to say that both aspects of that argument rely upon acceptance of the defense version of the facts, something the jury was permitted to, and obviously did, find unpersuasive.

III.

We turn to the issues raised regarding the trial itself, none of which compel reversal.

For the first time on appeal, defendant claims that he did not voluntarily waive his rights before providing a statement to Skala because the detective lied to him, specifically by saying that he would speak to defendant's probation officer about his cooperation if he agreed to give a statement. Skala admitted that he never contacted the probation department.

There was no objection at trial to the admission of defendant's statement for obvious reasons. It was essentially consistent with the testimony he provided to the jury, as well as the testimony of Long and Kinsey. We therefore review defendant's contention by application of the plain error standard. See State v. Rose, 206 N.J. 141, 157 (2011) ("[I]f the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" (quoting R. 2:10-2)).

We apply a totality-of-the-circumstances test to decide whether defendant's statement followed a knowing and voluntary waiver of rights. State v. Nyhammer, 197 N.J. 383, 388 (2009). In that context, "the use of trickery and false representations by police officers" has been approved in a "legion of cases." State v. Patton, 362 N.J. Super. 16, 32 (App. Div.), certif. denied, 178 N.J. 35 (2003). "Although misrepresentations by police officers to the subject of an interrogation are relevant in analyzing the totality of the circumstances, misrepresentations alone are usually insufficient to justify a determination of involuntariness or lack of knowledge." State v. Cooper, 151 N.J. 326, 355 (1997) (citations omitted), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). Defendant's claim that he did not voluntarily waive his rights before providing the statement to Skala is unsupported by any other evidence in the record, and we reject it.

Defendant also claims the judge committed plain error by permitting references to defendant's prior conviction for marijuana possession. Defendant argues this violated N.J.R.E. 404(b) ("evidence of other crimes . . . is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith[,]" although "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident . . . .").

However, the State correctly points out that defendant, during cross-examination of the State's witnesses and through his own testimony, repeatedly referred to his prior conviction, using that fact to explain his reluctance to report to police the alleged assault against him. Moreover, the judge repeatedly provided an adequate limiting instruction to the jury regarding references to defendant's prior conviction. The argument lacks sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).

Defendant next argues that he was denied a fair trial by the prosecutor's misconduct while cross-examining Kinsey, and by the judge's ruling that sustained the prosecutor's objection to defense counsel's closing comments. The issues arose in the following context.

Kinsey testified that police never questioned him before they arrested defendant. During cross-examination, the prosecutor asked Kinsey to review a police report in which Officer Correa indicated he spoke to several individuals, including Kinsey. The prosecutor then asked if Correa was "lying." Before any objection from defense counsel, the judge struck that question and a subsequent question by the prosecutor, telling the jury to disregard them.

In summation, defense counsel commented that one of the several Rutgers football players allegedly involved in the melee at the fraternity house, Betim Bujari, did not testify. The prosecutor immediately objected and argued at sidebar that defendant was asking the jury to draw an adverse inference from the State's failure to produce a witness, without complying with the procedure outlined in State v. Clawans, 38 N.J. 162, 170-72 (1962). The judge agreed.

When defense counsel resumed, he again stated that the jury had not heard from the Bujari, and, when the prosecutor again objected, the judge told the jury, "Please disregard that ladies and gentlemen. There's testimony about [Bujari], but disregard that he didn't testify."

Initially, we agree with defendant that the prosecutor's questions to Kinsey were clearly improper. See State v. Frisby, 174 N.J. 583, 594 (2002) (explaining that asking one witness to "assess[] another witness's credibility is prohibited"). But, the judge quickly and competently reacted by interrupting the prosecutor before any objection had been made and striking the questions. As a result, any misconduct did not deny defendant a fair trial. See State v. Smith, 167 N.J. 158, 181 (2001) ("A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" (quoting State v. Frost, 158 N.J. 76, 83 (1999)).

Regarding the judge's ruling on defense counsel's summation comments, we would agree in a general sense that when a party seeks an adverse inference charge, certain procedures preferably should be followed. "The party seeking the . . . charge must notify the opposing party and the judge, outside of the presence of the jury, must state the name of the witness or witnesses not called, and must set forth the basis for the belief that the witness or witnesses have superior knowledge of relevant facts." State v. Hill, 199 N.J. 545, 560-61 (2009) (citing Clawans, supra, 38 N.J.at 172).

However, defense counsel never sought an adverse inference charge but rather only commented on the absence of a witness. Whether he would have said more had he been allowed to continue is unknown. A distinction must be drawn between a defendant's right to comment on the lack of evidence, and by inference, the State's failure to carry its formidable burden of proof, versus a defendant's ability to urge an adverse inference because the State failed to produce a witness. In short, defense counsel's comments, at least to the extent revealed on this record, were not improper.

In any event, we are firmly convinced that if there was error in the judge's ruling, it was harmless beyond a reasonable doubt. Obviously, not every person present at the fraternity house was called as a witness. Nevertheless, the jury heard from multiple witnesses who were present, some called by the State and some by defendant, and ultimately the jury had to assess the credibility of those who testified. That the judge did not permit defendant to expound on the absence of one potential witness did not deny defendant the opportunity to have the jury fairly consider the evidence against him.

Lastly, defendant takes issue with the jury charge and verdict sheet. The indictment charged defendant with having committed SBI aggravated assault against McBride "and/or" Gizas. The verdict sheet asked the jury to find whether defendant "did attempt to cause serious bodily injury to . . . McBride and/or . . . Gizas or as to . . . Gizas[] did cause such injury . . . ." There was then a separate question as to each victim. The verdict sheet told the jury that if it found defendant "[n]ot [g]uilty," it should proceed to answer the next question regarding the lesser-included offense. That asked the jury to find whether defendant "did attempt to cause significant bodily injury to . . . McBride and/or . . . Gizas or did cause such injury . . . ." Again, there was a separate question for each victim.

In a separate count, the indictment similarly alleged that defendant "did attempt to cause or purposely or knowingly did cause bodily injury to . . . McBride and/or . . . Gizas with . . . a knife[.]" There was then a separate question as to each victim.

During the final jury instructions, the judge used the "and/or" phrase in providing instructions as to the elements of some of the offenses. There was no objection to the charge or verdict sheet at trial.

After some deliberation, the jury asked the following question: "Please confirm that . . . McBride is excluded from all of count number one?" Without objection, the judge answered,

McBride is not excluded from all of count one, no. And if you look at your verdict sheet, your verdict says, 'How do you find as to count one of the indictment charging that [defendant] . . . did attempt to cause serious bodily injury to . . . McBride and/or . . . Gizas?'

 

So that part of count one, in terms of attempt to cause serious bodily injury is still in the case as to . . . McBride. Just as it is for . . . Gizas.

 

. . . .

 

Now . . . again, the . . . verdict sheet, we . . . maybe should have split it out. But basically the only thing in count one regards . . . McBride is whether there was an attempt to cause serious bodily injury to . . . McBride.

 

The jury found defendant guilty of second-degree SBI aggravated assault of Gizas, and not guilty of second-degree aggravated assault of McBride. It proceeded to consider the lesser-included offense of third-degree, "significant bodily injury" aggravated assault only as to McBride and found defendant guilty. The jury separately found defendant guilty of third-degree aggravated assault with a weapon as to both McBride and Gizas by answering the special interrogatory as to each.

Defendant argues the judge committed plain error because he failed to impart to the jury that "in assessing self-defense and the principal elements of the aggravated assault charges, the jury must unanimously agree which of the factors the State has disapproved [sic] beyond a reasonable doubt . . . , and on which acts . . . defendant committed with respect to each victim . . . ." We disagree that the charge amounted to plain error.

"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assesed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citation omitted). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Moreover, the failure to object signifies that "in the context of the trial[,] the [alleged] error was actually of no moment." State v. Ingram, 196 N.J.23, 42 (2008) (citation omitted).

The principle of unanimity is "deeply ingrained in our jurisprudence" and requires that "'jurors [must] be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." Frisby, supra, 174 N.J. at 596 (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). How the unanimity requirement "plays out in individual cases is more complicated." Ibid.

It is clear that the jury must be provided with a "'specific unanimity'" instruction when requested or where there is a danger of a fragmented verdict. State v. Gandhi, 201 N.J. 161, 192 (2010) (citing State v. Parker, 124 N.J. 628, 637 (1991)). The Court has explained that,

where there is an allegation on appeal that a specific unanimity charge should have been given, the core question is, in light of the allegations made and the statute charged, whether the instructions as a whole posed a genuine risk that the jury would be confused. The reviewing court should examine two factors: whether the acts alleged are conceptually similar or are contradictory or only marginally related to each other, and whether there is a tangible indication of jury confusion.
 
[Id. at 193 (internal quotations and alterations omitted).]

 

In State v. Gentry, 183 N.J. 30, 31 (2005), the defendant was indicted for one count of second-degree robbery of a Rite Aid store "and/or" its employee "and/or" its manager. He was accused of seizing several boxes of cigars before running out of the store. Ibid. The State alleged that during the theft, the defendant "charged" the employee, knocking her backwards, then punched and kicked the manager as he fled. Ibid. The defendant testified and contended that he only "brush[ed]" past the employee, and accidentally kicked the manager, who had grabbed the defendant's pants in an attempt to thwart his escape. Ibid. The defendant argued that he never intended to use force against or threaten either victim. Ibid.

During deliberations, the jury sent a note explaining that, while they unanimously agreed the "'defendant knowingly used force against'" either the manager or the employee, one group of jurors believed that the unlawful force had been used only against the manager and another group of jurors believed force was used only against the employee. Id. at 31-32. When the jurors asked if this constituted "'a unanimous vote[,]'" the judge told them:

If a portion of this jury believes that that force has been shown and that same element of force requiring knowing intent has been distributed to someone else and they're both encompassed within the format of this indictment, I'm satisfied that that would be a unanimous determination of the force required by the statute has been proved by the State beyond a reasonable doubt if that is the jury's finding.

 

[Id. at 32.]

 

On appeal, a majority of our colleagues affirmed the defendant's conviction. State v. Gentry, 370 N.J. Super. 413 (App. Div. 2004), rev'd on dissent, 183 N.J. 30 (2005). Judge Coburn dissented, concluding that the jurors had not agreed unanimously on which acts were committed against which victim. Id. at 426-27 (Coburn, J., dissenting). The Supreme Court reversed and remanded for a new trial, substantially for the reasons expressed by Judge Coburn. Gentry, supra, 183 N.J. at 33.

We again note our specific disapproval of the language of the indictment, i.e., its use of the terms "and/or," because such language only leads to potential confusion depending on the facts of the particular case. However, contrary to defendant's assertions, the interrogatories used in this case specifically focused the jury's attention on the need to return unanimous verdicts as to each victim. The fact that the jury acquitted defendant of SBI aggravated assault of McBride, presumably based on his less than "serious bodily" injuries, but found him guilty of SBI with respect to Gizas, reflects its understanding of the unanimity requirement and the judge's response to the jury's note. We find no basis to reverse defendant's conviction.

IV.

Defendant contends that the judge misapplied the sentencing factors by failing to adequately explain his finding of certain aggravating factors and by failing to consider certain mitigating factors.1 Specifically, defendant argues that mitigating factors three, four and seven apply. See N.J.S.A.2C:44-1(b)(3) (defendant acted under a strong provocation); (4) (though failing to establish a defense, substantial grounds existed to excuse or justify defendant's conduct); and (7) (defendant had no history of prior delinquency or criminal activity or led a law-abiding life for a substantial period of time before present offense). Defendant also argues that the judge erred by denying his motion to downgrade the second-degree SBI aggravated assault conviction and sentence him as third-degree offender. See N.J.S.A. 2C:44-1(f)(2).

Without elucidation, the judge noted defendant's prior conviction for possession of marijuana and found aggravating factors three, six and nine existed. See N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); (6) (the extent of defendant's prior record and the seriousness of the current offense); and (9) (the need for deterrence). Because he ordered restitution, the judge also found mitigating factor six, N.J.S.A. 2C:44-1(b)(6) ("[t]he defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained"). In considering defendant's motion for a downgrade, the judge also explained:

There is no basis for me to sentence him at one degree less than second degree. But I do find that he does not have a serious criminal history. He is a very young man. He has a lot going for him, and he just got involved, you would have thought that with his nice girlfriend and some of his friends that something like this wouldn't happen. But he had this knife on him, and he lashed out, and in a few seconds he caused some serious bodily injury to . . . Gizas, and bodily injury to . . . McBride.

 

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid.(quoting State v. O'Donnell, 117 N.J.210, 215 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J.334, 364 (1984) (citation omitted); accordState v. Cassady, 198 N.J.165, 183-84 (2009).

In finding aggravating factors (3), (6), and (9), "courts are expected to make a qualitative assessment about the defendant in light of his criminal history." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-1 (2014). "A court's findings assessing the seriousness of a criminal record, the predictive assessment of chances of recidivism, and the need to deter the defendant and others from criminal activity, do all relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153 (2006).

Here, the judge failed to explain how defendant's single prior conviction for possession of marijuana supported the finding of these three aggravating sentencing factors. "To be sure, sentences can be upheld where the sentencing transcript makes it possible to 'readily deduce' the judge's reasoning. But those cases are the exception, not the rule." Miller, supra, 205 N.J. at 129-30 (quoting State v. Bieniek, 200 N.J. 601, 609 (2010)). In this case, we cannot readily discern why the judge found all three aggravating sentencing factors.

We more easily deduce the judge's decision not to adopt additional mitigating factors, two of which defendant now urges for the first time on appeal. Factor seven does not apply, although the judge specifically found that defendant did not have a "serious criminal history." The jury's verdict implicitly rejected the defendant's principal claims at trial, i.e., that he was provoked and acted in self-defense. The judge acknowledged the unfortunate nature of the circumstances, but we cannot find he abused his discretion in not specifically finding other mitigating factors. See, e.g., Cassady, supra, 198 N.J. at 183 ("In finding defendant guilty of robbery, the jury necessarily found that the defendant knowingly caused or threatened serious bodily harm." (internal alterations omitted)).

The issue is whether we should remand the matter to the trial court for proper assessment of the aggravating sentencing factors and the weighing of those factors against the statutory mitigating factor and non-statutory mitigating factors suggested by the judge's comments. See State v. Rice, 425 N.J. Super. 375, 381 (App. Div.) ("Although our sentencing statute lists only thirteen mitigating factors, we have recognized the court's ability to use non-statutory mitigating factors in imposing a sentence."), certif. denied, 212 N.J. 431 (2012). We recognize that the judge imposed the minimum term for a second-degree offense, which certainly implies that his weighing process, otherwise unstated on the record, yielded a sentence at the bottom-most number. See N.J.S.A. 2C:43-6(a)(2).

However, defendant also argues that the judge erred by denying his request to be sentenced one degree lower. Pursuant to N.J.S.A. 2C:44-1f(2), when sentencing for a first- or second-degree crime, the judge may impose a sentence one degree lower if "clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands . . . ." "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." State v. Megargel, 143 N.J. 484, 505 (1996). "[B]ecause the focus remains on the offense and not the offender, the surrounding circumstances used as compelling reasons for a downgrade should arise from within the context of the offense itself." State v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009) (citing Megargel, supra, 143 N.J. at 500-01).

In this case, the existing record makes it difficult for us to discern the judge's rationale for finding three aggravating sentencing factors. Additionally, the judge clearly considered the age of defendant and the circumstances of the crime in imposing the sentence without explicitly finding certain mitigating factors. The judge's explanation of his findings in the context of the calculus required by Megargel was also lacking. Under these circumstances, we believe the wiser course is to remand the matter to the Law Division for re-sentencing. We do so with a full understanding that the sentence imposed was the minimum sentence for a second-degree crime, and without suggesting that the remand should necessarily change that result.

Defendant's convictions are affirmed. The matter is remanded for resentencing. We do not retain jurisdiction.

 

 

 

 

 

1 Defendant also argues that the third-degree aggravated assault with a deadly weapon conviction should have merged into SBI aggravated assault. The judgment of conviction in the appellate record, however, reflects that the charges were in fact merged at sentencing.