STATE OF NEW JERSEY v. RUSSELL A. AQUINO

NOT FOR PUBLICATION WITHOUT THE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.

RUSSELL A. AQUINO, JR.,

a/k/a RUSSELL A. AQUINO,

Defendant-Appellant.

________________________________

SubmittedMay 21, 2014 Decided June 4, 2014

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-12-02152.

Fusco & Macaluso, LLC, attorneys for appellant (Anthony J. Fusco, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Russell A. Aquino, Jr. appeals from the twelve-year term of imprisonment1 imposed following his plea of guilty to first-degree attempted murder, N.J.S.A. 2C:11-3a and N.J.S.A. 2C:5-1, and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d.2 We affirm.

At the plea hearing, defendant testified that he and three members of the Latin Kings gang attempted to kill the victim, M.P., on the evening of February 18, 2005.3 Defendant stated he was not a gang member, but he participated in the attempt "so that [he] could become a Latin King[.]" The group lured M.P. to a car wash, where defendant and one of the other men stabbed her thirty-two times while the victim was in the back seat of her car. M.P. pretended she was dead and the men drove away with her still in the car. At some point, M.P. was able to jump out of the car onto the street, where she was struck twice by the vehicle. M.P. survived the assault, but lost the use of her left eye and partial use of her left arm.

In return for his plea to attempted murder and unlawful possession of a weapon, the State agreed to recommend a sentence not exceeding fourteen years in prison, subject to NERA, provided that defendant fully cooperated with the prosecutor's office by giving truthful testimony against his co-defendants. "[D]efendant complied with his agreement and substantially cooperated with the State in the prosecution of the co-defendants" by testifying at their trials.

At sentencing, defendant noted his compliance with the terms of the plea agreement, stated he was remorseful for his participation in the offenses, and asserted that his conduct was unlikely to recur. The State argued that defendant's cooperation, although extensive, had been taken into account in the plea agreement.

The sentencing judge found aggravating factors N.J.S.A. 2C:44-1a(1), "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[,]" and N.J.S.A. 2C:44-1a(2), "[t]he gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim . . . was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance[.]" In a written amplification of his findings of fact and conclusions of law pursuant to Rule 2:5-1(b), the judge explained that he:

found the crimes unconscionable. The defendant and his co-defendants tricked the victim into going to the carwash under the guise that they would help her clean her car. A co-defendant then trapped [M.P.] in between the seats while the defendant began stabbing her repeatedly. As the defendant and co-defendants drove away, [M.P.] was so frightened that she chose to jump out of a moving vehicle onto a busy highway, where the co-defendants ran over her twice with [the] car. It was only out of fear that an oncoming motorist would see them that the defendant and co-defendants finally drove away. Medical examination revealed that [M.P.] was stabbed a total of 32 times. She lost the use of her eye and partially lost the use of her left arm. Her survival was truly miraculous.

The judge also found aggravating factors N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense[,]" and N.J.S.A. 2C:44-1a(5), "[t]here is a substantial likelihood that the defendant is involved in organized criminal activity[.]" The judge stated:

The defendant and his co-defendant were part of the Latin Kings gang and were acting on orders from higher-ranking gang members when they attempted to kill [M.P.]. The sole motivation of the attempted murder was to protect other members of the gang from the police. The Court found a risk that the defendant would re-offend as a result of his gang affiliation.

Noting the "need to deter . . . defendant and society from such horrific conduct and gang violence[,]" the court also found aggravating factor, N.J.S.A. 2C:44-1a(9), "[t]he need for deterring the defendant and others from violating the law[.]"

Weighed against these aggravating factors, the judge found mitigating factor N.J.S.A. 2C:44-1b(7), "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[.]" The judge explained that "defendant only had two minor charges prior to the present offense." The judge found mitigating factor N.J.S.A. 2C:44-1b(11), "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[,]" because of the impact of his imprisonment on "defendant's family."

The judge also "gave substantial weight" to defendant's "willingness to cooperate" by providing testimony against his co-defendants. The judge stated that defendant's cooperation "was a necessity in order for the State to obtain convictions. Additionally, by testifying against higher-ranking gang members, the defendant placed his safety and his family's safety in danger." Therefore, the judge found mitigating factor N.J.S.A. 2C:44-1b(12), "[t]he willingness of the defendant to cooperate with law enforcement authorities[.]"

After carefully balancing these factors, the judge sentenced defendant to twelve years in prison, subject to NERA, which was two years less than what was contemplated by the plea agreement. This appeal followed.

On appeal, defendant raises the following contentions:

POINT ONE

[DEFENDANT'S] SENTENCE IS EXCESSIVE AND SHOULD BE REDUCED BECAUSE THE SENTENCING JUDGE FAILED TO CONSIDER ALL THE APPLICABLE MITIGATING FACTORS.

POINT TWO

[DEFENDANT'S] SENTENCE IS EXCESSIVE AND SHOULD BE REDUCED BECAUSE THE SENTENCING JUDGE FAILED TO GIVE AMPLE WEIGHT TO MITIGATING FACTORS.

POINT THREE

[DEFENDANT'S] SENTENCE IS EXCESSIVE AND SHOULD BE REDUCED BECAUSE THE IMPOSED SENTENCE DOES NOT [ALIGN] WITH THE AIMS AND GOALS OF OUR SENTENCE SCHEME.

POINT FOUR

[DEFENDANT'S] PRESENT INCARCERATION ALONG SIDE HIS CO-DEFENDANTS PLACES HIS LIFE IN JEOPARDY AND AS A RESULT, THE MATTER SHOULD BE REMANDED SO [DEFENDANT] CAN BE RESENTENCED AND PLACED INTO AN OUT OF STATE FACILITY.

Our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge "'were based upon competent credible evidence in the record.'" Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). As directed by the Court, we must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

We have considered defendant's contentions in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons the judge expressed at sentencing and in his written amplification of his findings. We are satisfied that the judge did not violate the sentencing guidelines and the record amply supports his findings on aggravating and mitigating factors. The sentence is clearly reasonable and does not shock our judicial conscience.

Finally, defendant's request for a transfer to an out-of-state institution must be raised in the first instance to the Commissioner of the State Department of Corrections, who has "complete discretion in determining an inmate's place of confinement" under N.J.S.A. 30:4-91.2. Smith v. N.J. Dep't of Corr., 346 N.J. Super. 24, 29-30 (App. Div. 2001). Here, there is nothing in the record indicating that defendant has made such a request or obtained an order concerning it.4 Therefore, this request is not properly before us. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461-62 (App. Div.), certif. denied 174 N.J. 544 (2002).

Affirmed.

1 This term was subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

2 In addition to the two charges to which he pled guilty, a Bergen County grand jury indicted defendant for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3a(1)(2) and N.J.S.A. 2C:5-2. These charges were dismissed at sentencing as part of the plea agreement.

3 In order to protect her privacy, we refer to the victim by her initials.

4 The only order designated in defendant's notice of appeal is the March 16, 2012 judgment of conviction.