STATE OF NEW JERSEY v. LATISHA M. KEARNEY

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5008-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LATISHA M. KEARNEY,

Defendant-Appellant.

________________________________________________________________

January 13, 2014

 

Argued October 9, 2012 - Decided

 

Before Judges Parrillo and Maven.

 

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-08-0553.

 

Lauren S. Michaels, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Michaels, of counsel and on the brief).

 

James L. McConnell, Assistant Prosecutor, argued the cause for respondent (Geoffrey D. Soriano, Somerset County Prosecutor, attorney; Mr. McConnell, of counsel and on the brief).

 

The opinion of the court was delivered by
 
MAVEN, J.A.D.
 

Tried by a jury, defendant Latisha M. Kearney was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1B(1), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4D. After appropriate mergers, the trial court imposed a term of eight years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, three years parole supervision, and mandatory fines and penalties. Defendant appeals, and we affirm.

I.

The relevant facts follow. At trial, Jahmeelah Mitchell testified that in July 2009, she and her boyfriend were visiting a friend at his home in North Plainfield. While Mitchell was on the back porch smoking a cigarette, she saw defendant come toward her and, without saying a word, defendant punched her in the face with a closed fist. When Mitchell punched her back, defendant hit Mitchell on the forehead with a bottle causing her to fall forward onto her stomach. Mitchell stated defendant got on her back and began cutting and stabbing her with a broken bottle on her face, neck, and arms. Mitchell tried to defend herself and wrest defendant off of her by twisting and turning on the ground, and using her arms to prevent any deep cuts. Mitchell could not see during the attack because of the blood in her eyes.

Mitchell testified that she screamed for help to others who were watching the attack, yet no one immediately responded. Eventually, she heard someone say "that's enough." Mitchell claimed that defendant then pulled her up by the back of her shirt nearly choking her, said "just one more time," hit her on the back of her neck, and then released Mitchell causing her to fall to the ground. Mitchell testified that her boyfriend carried her to the side of the house and laid her on the grass where she remained until the police arrived.

Mitchell also testified, as she did in the pre-trial Rule 104 hearing, about a prior confrontation she had with defendant in March 2009.1 According to Mitchell, she met defendant for the first time when she organized a limousine trip to New York City for a group of women, including defendant, to celebrate a friend's birthday. Defendant was introduced to Mitchell as "Boo-Boo." While riding in the limousine, Mitchell placed her wallet on the seat next to defendant and went to the back of limousine to smoke a cigarette. When she returned to her seat, the wallet was missing. Mitchell's cousin searched the women in the vehicle and found the wallet in defendant's coat pocket. Mitchell confronted defendant and demanded she get out of the limousine. When defendant refused, Mitchell ended the trip and directed the limousine to return to Newark. Once there, Mitchell's cousin searched the women again, finding the missing money under defendant's breasts. Mitchell testified that once she got her money back, she was no longer upset at defendant.

Regarding the July 2009 incident, defendant testified at trial that her cousin lived in the same house as Mitchell's friend, and she was familiar with the condition of the yard. She described the yard as primarily dirt, littered with broken glass and debris. On this particular day, defendant was also at the house. When she went to the back yard, she saw Mitchell who immediately began cursing at her and insulting her. Mitchell reportedly stood up and approached defendant as if to fight. According to defendant, she and Mitchell began to argue, and then engaged in a fistfight, exchanging "blows." Defendant, who weighed 180 pounds more than Mitchell, admitted that she had the advantage over Mitchell during the fight. She stated that she pulled Mitchell to the ground where they continued to tussle among the broken glass and debris. Defendant denied hitting Mitchell with a bottle. To explain how Mitchell may have gotten cut, defendant stated,

maybe when I had got her on the ground and there was, like I said, there were bottles busted on the ground. Maybe from me dragging her and like fighting her because she was on the bottom, . . . and she was tossing . . . around, . . . kicking me . . . . She was trying to . . . get up, and I was on top of her and I was just hitting her, her side, her legs. I was kicking, you know, pushing her legs off of me.

Defendant stated that the fighting stopped when someone said there was blood. They separated and Mitchell's boyfriend called the North Plainfield Police Department. Officer Justin Pelissier testified he was the first officer to arrive at the scene, where he observed Mitchell on the grass, bleeding with her shirt over her face covered in blood. Detective Alan McKay and the North Plainfield Rescue Squad arrived soon thereafter. Pelissier and McKay both testified that there was a trail of blood from the house to where the victim was lying. There was also a pool of blood on the back porch and steps. McKay seized a broken bottle as evidence.

Mitchell was taken to Robert Wood Johnson University Hospital in New Brunswick where she received treatment for the injuries. She was released the next day after doctors sutured wounds on her face, arms, chest, ear, neck, back, and nose. Once home, McKay went to Mitchell's house in South Plainfield to take her statement and photograph her injuries. Mitchell told McKay that she knew her attacker as "Boo Boo" and that Boo Boo had a brother, Dana Kearney. Mitchell also provided McKay with a photograph from her friend's New York City birthday party, which pictured defendant. Detective Michael Innella testified he joined McKay at Mitchell's residence and showed Mitchell a photograph of defendant, whom Mitchell confirmed as her attacker. Innella also obtained buccal swabs, a cotton tip swab for DNA comparison, from Mitchell.

After speaking with Mitchell, the detectives ascertained defendant's address, which was only a block from the scene of the attack. McKay went to the scene of the crime again and defendant's residence. While walking from the location of the crime, McKay saw droplets of blood on the sidewalk leading to the rear of defendant's residence. McKay and Detective Gene Segeda went to the rear door of defendant's third floor apartment and saw dried blood on the door handle and door trim. McKay photographed the bloodstains and Segeda took swabs of the blood. The detectives knocked at the door but no one responded. They went back to the residence later and gained entry, though defendant was not there. Once inside, they located a CD, pair of shoes, sheet, tissue, towel and jacket all stained with blood.

Detectives did not locate defendant until July 9, 2009 in Elizabeth at her friend's apartment. They found her hiding under a blanket in a closet in the upstairs bedroom. Defendant testified she got scared and went into the closet when she heard the police enter her friend's house. Defendant denies trying to avoid the police and stated she was spending time with family and friends from July 2 to July 4. The police arrested defendant and took a buccal swabs sample from her.

The evidence, including the broken bottle, blood swabs from defendant's doorway, blood-stained items found in defendant's residence, and DNA samples from Mitchell and defendant, were taken to the New Jersey State Police laboratory for forensic analysis. Annette Estilow, a forensic scientist, testified that the bloodstains found on defendant's apartment door, CD, sheet, the towel found in defendant's residence, and the broken bottle was human blood. Brett Hutchinson, from the State Police DNA Laboratory, testified with respect to the blood sample analyses. He concluded that Mitchell and defendant were the sources of the blood found on defendant's door, that Mitchell was the source of the blood found on the CD and broken bottle, and that defendant was the source of the blood from the sheet and towel found in her apartment.

After a four-day trial the jury found defendant guilty and defendant was subsequently sentenced. This appeal follows in which defendant raises the following arguments:

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR IN ALLOWING INADMISSIBLE OTHER-CRIMES EVIDENCE TO POLLUTE THE TRIAL, AND THEN FURTHER COMPOUNDED HIS ERROR IN FAILING TO PROVIDE A LIMITING INSTRUCTION.

The Trial Judge Committed Reversible Error In Allowing The Jury To Be Bombarded With Repeated And Detailed Testimony of An Irrelevant, Unproven, and Unduly Prejudicial Accusation Of Prior Theft.

 

To The Extent That Any Information About The Prior Interaction Was Admissible To Show Motive, The Failure to Sanitize The Evidence Denied Kearney A Fair Trial. (Not raised below)

The Judge's Failure To Provide The Jury With Any Limiting Instruction About the Other-Crimes Evidence, Despite The Numerous And Detailed References To It, Was Plain Error And Mandates A New Trial, Particularly Because The Case Hinged On The Respective Credibility of Kearney And Mitchell, The Complainant. (Partially raised below)

THE JUDGE'S FAILURE TO CHARGE THE JURY REGARDING KEARNEY'S EXPLANATION FOR HER ALLEGED FLIGHT WAS PLAIN ERROR AND DENIED HER A FAIR TRIAL. (Not raised below)

 

DEFENSE COUNSEL WAS INEFFECTIVE FOR HIS FAILURE TO RAISE THE AFOREMENTONED ISSUES, WHICH DEPRIVED KEARNEY OF A FAIR TRIAL.

THE JUDGE'S RELIANCE ON A MERE RECITATION OF THE INACCURATE PRE-SENTENCE REPORT, AND HIS UTTER DISREGARD OF FACTS CLEARLY ESTABLISHED DURING THE TRIAL OVER WHICH HE PRESIDED, WAS GROSSLY IMPROPER AND MANDATES RESENTENCING.

THIS COURT MUST REMAND FOR RESENTENCING BECAUSE THE RECORD DOES NOT SUPPORT THE JUDGE'S FINDINGS ON AGGRAVATING AND MITIGATING FACTORS, RESULTING IN A MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE SENTENCE.

 

Because The Factual Findings Were Based Solely [On] The Written Synopsis Of The Offense From The Presentence Report, This Court Should Review Them De Novo.

The Sentencing Judge's Errors In Respect Of Aggravating and Mitigating Factors Resulted In A Manifestly Excessive Sentence.

 

Aggravating factor (1) does not apply because the nature and circumstances of the offense were not especially heinous.

 

Aggravating factor (6) does not apply because thirty-five-year-old Kearney had no prior indictable offense and no juvenile record.

Aggravating factor (9) does not apply because no more deterrence was required than the minimum sentence of five years in prison with an 85% NERA parole disqualifier and three years of parole supervision.

Mitigating factor (6) applies because Kearney was willing to make restitution.

Mitigating factor (11) applies because Kearney's incarceration resulted in excessive hardship to her family.

The mitigating factors clearly outweigh any properly-found aggravating factors.

We have carefully considered defendant's arguments in light of the record and applicable legal principles, and conclude that none of the arguments have merit.

II.

A.

Defendant argues that the trial judge misapplied N.J.R.E. 404(b) with respect to the admissibility of testimony regarding the March 2009 confrontation, and failed to sua sponte sanitize that evidence and give the jury a limiting instruction regarding the evidence. Defendant further argues that the trial judge permitted repeated comments about the March 2009 incident in a manner which impermissibly impugned defendant's character. We reject these contentions.

At the 104 hearing, the trial court carefully evaluated the admissibility of defendant's prior acts, under N.J.R.E. 404(b). Mitchell testified regarding her initial encounter with defendant and the confrontation that ensued between them.2 Having received notice of defendant's intent to argue self-defense,3 the State sought to introduce evidence of the earlier confrontation to show defendant's intent and motive for assaulting Mitchell in July 2009.

The admission of other-crimes evidence is governed by N.J.R.E. 404(b), which states:

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

 

"Determinations on the admissibility of other-crime evidence are left to the discretion of the trial court." State v. Marrero, 148 N.J. 469, 483 (1997). "The trial court, because of its intimate knowledge of the case, is in the best position to engage in this balancing process. Its decisions are entitled to deference and are to be reviewed under an abuse of discretion standard." State v. Ramseur, 106 N.J. 123, 266 (1987).

Evidence of other crimes, wrongs or acts may not be introduced into evidence to prove a defendant's criminal disposition as a basis for establishing guilt of the crime charged. The evidence presented through this rule should not be used to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial.

 

[State v. Covell, 157 N.J. 554, 563 (1999) (citations and internal quotation marks omitted).]

 

However, "[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 when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b). Since "other-crime evidence is highly inflammatory, having the unique tendency to turn a jury against the defendant trial courts are required to make a careful and pragmatic evaluation of the evidence based on the specific context in which it is offered." State v. Hernandez, 170 N.J. 106, 119 (2001) (citations and internal quotation marks omitted).

The State must satisfy a four-part test to introduce evidence under N.J.R.E. 404(b):

[1] The evidence of the other crime must be admissible as relevant to a material issue;

[2] It must be similar in kind and reasonably close in time to the offense charged;

[3] The evidence of the other crime must be clear and convincing; and

[4] The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[State v. Cofield, 127 N.J. 328, 338 (1992); see also State v. Rose, 206 N.J. 141, 159-60 (2011).]

Here, the court credited Mitchell's testimony, and reasonably found:

The theft or the alleged theft and ultimately the confrontation . . . is highly relevant for the purpose of buttressing or discrediting the defendant's claim of self-defense as well as determining whether the defendant had the requisite mens rea necessary to satisfy the elements of the offense.

 

The Court also finds compelling that the evidence the prosecution seeks to admit involves a prior conflict between the same parties under which the substance of this controversy lies. Thus, the prior alleged theft or bad act provides a valuable insight into the mental states of the parties and their potential motives or lack thereof.

Further, the Court finds that the passage of four months between the prior act and the instant offense is reasonably close in time so as not to attenuate any potential motivation or intent possibly derived form the prior incident. The defendant does not allege nor does the Court find that the defendant will suffer any prejudice if the proposed testimony is presented to the jury. The proposed testimony serves as potential basis to ascertain a motive for the defendant to commit such an offense and is extremely probative for that purpose. Moreover, the presentation of said testimony is unlikely to invoke moral or emotional sentiments capable of interfering with the jury's ability to be impartial.

Finally, just as the prosecutor is permitted to utilize the evidence of prior bad act to rebut the defendant's claim of self-defense or prove the elements of the crime alleged, the defendant is equally now capable of using the proffered testimony to bolster her claim of self-defense or negate the existence of requisite mens rea. . . .

 

The testimony was clearly admissible "'to provide necessary background information' about the relationships among the players." United States v. Green, 617 F.3d 233, 249 (3d Cir.), cert. denied, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010). The Green court added that

most, if not all, other crimes evidence currently admitted outside the framework of Rule 404(b) as "background" evidence will remain admissible under the approach we adopt today. The only difference is that the proponent will have to provide notice of his intention to use the evidence, and identify the specific, non-propensity purpose for which he seeks to introduce it.

 

[Green, supra, 617 F.3d at 249.]

 

The State attempted throughout the trial to argue that the evidence was relevant to motive, i.e., that defendant harbored residual embarrassment, anger, or general bad feelings towards Mitchell due to the accusation and confrontations that occurred in the presence of the other partygoers. We are satisfied that defendant's anger toward Mitchell was highly relevant and provided a motive for defendant's assault upon Mitchell, and by implication, explains the aggressiveness with which defendant inflicted the injuries upon Mitchell. Moreover, we agree that the relevance of the evidence far outweighed any potential for prejudice. Here, the trial court considered Mitchell's testimony and properly analyzed the facts. We conclude the court did not abuse its discretion in allowing this evidence.

 
 

B.

We also reject defendant's contention that numerous references to the incident were prejudicial to defendant. Despite her present claim, at trial defendant was the first to tell the jury about the March 2009 confrontation. The State, in their opening statement, mentioned only that Mitchell had a photograph of defendant taken during the New York trip. Defendant, however, provided details of the incident. In the opening statement counsel stated "on the previous March incident, the victim has previously testified that she took money from my client. It was obviously bad blood between these two people." Later, defense counsel explained that Mitchell accused defendant of stealing her wallet and money. Importantly, defense counsel told the jury "[t]hese people do not like each other." Additionally, defendant adduced details of the incident during Mitchell's cross-examination and her direct testimony that was more specific than Mitchell's 104 hearing testimony. Defendant can hardly claim prejudice when she caused the discussion of the incident as much as or more than, the State.

C.

Defendant next argues that the trial judge failed to provide a limiting instruction to the jury on the prior bad act, thereby depriving her of a fair trial. The judge summarized the results of an "informal charge conference" conducted in chambers and sought comment from counsel. There was no request for a limiting instruction directed to the evidence of the March 2009 incident and no such instruction was given. Defense counsel did not object to that omission so we review this claim under the plain error standard, whether it was capable of producing an unjust result. R. 2:10-2.

"Accurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial. The trial court has an absolute duty to instruct the jury on the law governing the facts of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). "It is a well-settled principle that appropriate and proper jury charges are essential to a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). Jury instructions are "a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Martin, 119 N.J. 2, 15 (1990).

Pursuant to N.J.R.E.105, if other-crime evidence is admitted, the trial court must provide a limiting instruction to the jury explaining precisely how the evidence may and may not be used, Cofield, supra, 127 N.J.at 341. "A suitable limiting instruction explains precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Rose, supra, 206 N.J. at 161 (internal quotation marks omitted).

To warrant a reversal "improper conduct must have resulted in substantial prejudice to the defendant's fundamental right to have a jury fairly assess the persuasiveness of his case." State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.), certif. denied, 130 N.J. 13 (1992). Trial errors do not need to be reversed unless they concern highly contested aspects of the trial. State v. Smith, 167 N.J. 158, 185 (2001).

Since the trial judge failed to give a limiting instruction to the jury, we must determine whether the possibility of injustice is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Defendant did not use the March 2009 incident to support a claim of self-defense. Yet, before she changed her trial strategy, her counsel extensively referred to the incident during opening, cross-examination, and direct examination of defendant for her benefit. In contrast, the State's use of this evidence was limited to show defendant's motive. In her summation, the prosecutor argued

you heard evidence; you heard testimony about this whole thing that occurred in New York in March of 2009. And I'll agree with counsel that that was presented to you so that you could know the background of these individuals, how they knew each other. But you heard the testimony of the defendant where she said, oh, they wanted to go to the strip club: I didn't want to go there; they hit me with a shoe; they robbed me of my money. She was angry. She said so on the direct - - she wouldn't say it on cross - - she said it on direct. She was angry. And so when she sees Ms. Mitchell, this is her time to get back at her.

Both parties sought to use the March incident for their benefit. Defendant had ample opportunity to request that the evidence be sanitized or raise objections to the testimony at trial. We are particularly cognizant that it might have been a tactical decision by the defense not to request the limiting jury instruction. See State v. Krivacska, 341 N.J. Super. 1, 42-44 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002) (finding that when no limiting instruction was requested by the defense "to rerun a trial when the mistake could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal"). For all of these reasons, we do not consider the trial judge's failure to give a limiting instruction as plain error. Moreover, after deliberations the jury opted to convict defendant of second-degree aggravated assault, a lesser included offense. As such, the absence of the limiting jury instruction did not produce an unjust result.

III.

We reject defendant's contention that the trial judge failed to properly instruct the jury on flight. Defendant argues that the instruction failed to present defendant's explanation of why she went home after the fight and why she was found at her friend's apartment days later. Defendant raises this issue for the first time on appeal, as she failed to object to the jury instruction at trial and thus it must be examined under the plain error standard. R. 2:10-2.

"A jury reasonably may infer a defendant's consciousness of guilt from an attempt to avoid accusation." State v. Mann, 132 N.J. 410, 419 (1993). "In those instances in which the trial court deems the evidence of flight admissible, it must instruct the jury carefully regarding the inferences the jury may draw from that evidence." Id. at 420. "If a defendant offers an explanation for the departure, the trial court should instruct the jury that if it finds the defendant's explanation credible, it should not draw any inference of the defendant's consciousness of guilt from the defendant's departure." Id. at 421.

Here, the trial court's instruction was more than adequate, and substantially tracked the model criminal jury charge. The jury heard testimony from the officers with respect to their efforts to locate defendant several days after the July 2009 fight, and defendant's explanation of her whereabouts. The court issued the following instruction to the jury,

Now, in this case there has been some testimony from which you may infer that the defendant fled shortly after the alleged commission of the crime and continued to flee the police until her arrest on July 9th, 2009. The defendant denies any flight or the defendant denies that the acts actually constituted flight. The question of whether the defendant fled after the alleged commission of the crime is another question of fact for your consideration.

 

Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant, fearing that an accusation or arrest would be made against her on charges involved in this indictment took refuge in flight or the purpose of evading accusation or arrest on those charges, then you may consider such flight in consideration with all other evidence of guilty. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in this indictment.

 

These instructions fully informed the jury that defendant denied that her post-fight conduct constituted flight, and that it had to find that defendant intended to flee before it could consider such flight as evidence of consciousness of guilt. Even if the trial judge should have provided defendant's reason for her departure in the jury charge, this error was not "clearly capable of producing an unjust result" as the jury heard the explanations from defendant's testimony.

IV.

We turn now to defendant's claim of ineffective assistance of counsel. To establish a prima facie case of ineffective assistance of counsel, defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, defendant must show that defense counsel's performance was deficient. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

New Jersey has adopted the precepts of Strickland. See State v. Fritz, 105 N.J. 42, 58 (1987). Prejudice is not presumed "except in cases exemplified by egregious shortcomings in the professional performance of counsel." Id. at 61. Thus, defendant generally must show "that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." State v. Nash, 212 N.J. 518, 542 (2013).

"Generally, a claim of ineffective assistance of counsel cannot be raised on direct appeal." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Instead, "defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice." Ibid. Our Supreme Court has expressed a "general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Only in the rare instances "when the trial itself provides an adequately developed record upon which to evaluate defendant's claims," should an appellate court consider the issue of ineffective assistance of counsel on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006).

Defendant contends that her trial counsel failed to properly address the N.J.R.E. 404(b) other-crimes evidence, or raise the jury instruction issues. The trial record contains none of the facts essential to an evaluation of defendant's claim, as nothing in the record explains why trial counsel chose not to object to the testimony regarding the March 2009 incident, request modifications, or object to the jury instructions. We therefore conclude that resolving defendant's ineffective-assistance-of-counsel claim involves an analysis of strategic decisions and other evidence that lies outside the trial record. Defendant's ineffective-assistance-of-counsel claim is more appropriate for post-conviction review. We therefore decline to consider it and deem the issue preserved for the post-conviction relief phase. Preciose, supra, 129 N.J. at 460.

V.

We turn now to defendant's claim that the sentence was manifestly excessive because the trial judge relied on a factually erroneous Presentence Report (PSR), and conducted an improper analysis and balance of applicable aggravating and mitigating factors. In our review of this issue, we determine whether substantial evidence exists in the record to support the findings of fact upon which the sentencing court based the application of the guidelines. State v. Roth, 95 N.J. 334, 365-66 (1984). Finally, we determine whether, in applying those guidelines to the relevant facts, the trial court clearly erred in reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. Id. at 366.

When a trial court follows the sentencing guidelines, we will not second-guess the decision, as we do "not sit to substitute [our] judgment for that of the trial court." State v. Jabbour, 118 N.J. 1, 5-6 (1990) (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)). Unless the sentencing court was "clearly mistaken," State v. Jarbath, 114 N.J. 394, 401 (1989), or a sentence otherwise "shock[s] the judicial conscience," Roth, supra, 95 N.J. at 365, an appellate court is bound to affirm. See O'Donnell, supra, 117 N.J. at 215-16; cf. State v. Dunbar, 108 N.J. 80, 83 (1987) (sentence within statutory guidelines may strike reviewing court as harsh, but that is a consequence of the legislative scheme and not error by trial court). The Court has succinctly expressed these principles in State v. Cassady, 198 N.J. 165 (2009), stating: "our task is clear. If a sentencing court observes the procedural protections imposed as part of the sentencing process, its exercise of sentencing discretion must be sustained unless the sentence imposed 'shocks the judicial conscience.'" Id. at 183-84. Applying this standard, we identify no basis to disturb the sentence imposed.

We begin by reviewing defendant' assertion that the trial court rendered its factual basis for sentencing solely upon a factually erroneous PSR. Defendant posits that the court abused its discretion by failing to base its findings on "competent, reasonably credible evidence," Roth, supra, 95 N.J. at 362-66. Here, defendant asserts four factual errors in the PSR: 1) that officers found Mitchell on the grass with numerous large deep lacerations; 2) Officers also observed bloody earrings and bloody shoes strewn on the steps, as well as a broken bottle; 3) People at the scene told the police the actor was a large, heavyset, black female; 4) The victim was transported to the Robert Wood Johnson hospital for life threatening injuries.

A probation officer prepares the PSR by reviewing police reports and interviewing the defendant, among other things. The PSR often contains information outside of the trial record. Although from our review of defendant's PSR we cannot discern the source of the particular statements, we do not consider the variances from the trial testimony as significant. In particular, as to the first statement, it is plausible that one of the responding police officers indicated in his report that Mitchell suffered deep lacerations and was transported to a hospital with life threatening injuries, given the amount of blood observed on the steps and on Mitchell, as well as her disoriented mental state. In fact, Dr. Davidov's testimony demonstrates that Mitchell's injuries, on first review, appeared extensive. He testified that the emergency room physician, who initially saw Mitchell when she arrived at the hospital, called upon him for his expertise as a trauma surgeon "because he thought [Mitchell's injuries were] a higher level of injury."

As for defendant's contention that the PSR erroneously stated that witnesses spoke to police, the trial record appears to supports the PSR. Officer Pelissier, the first responding officer, testified that he spoke to two or three people who were with Mitchell as she laid in the grass and included this information in his report. Due to hearsay proscriptions, Pelissier could not relate what the persons stated. However, the following colloquy occurred during his direct and cross-examination:

[State]: Now, you indicated that next to Ms. Mitchell who was lying on the ground there were two other individuals. Is that right?"

 

[Pelissier]: Yes

 

[State]: And without telling us what they said to you, were you able to speak with them about Ms. Mitchell?

 

[Pelissier]: Yes

 

[State]: Okay. Now, after your initial conversation with individuals at the scene, these three individuals, did you make any other observations . . .

On cross-examination, defense counsel continued:

[Defense]: And you talked to two other individuals?

 

[Pelissier] Yes, sir.

 

[Defense]: And you described them as being uncooperative?

 

[Pelissier]: Yes.

 

[Defense]: Is that accurate, in your report?

 

[Pelissier]: Yes

In as much as the same judge presided over defendant's trial and sentencing, the judge could have relied on his knowledge of the evidence and considered the PSR statements as adequately supporting the facts for sentencing purposes. We find no cause to second guess the judge's recollection of the evidence or his exercise of discretion in relying on the PSR during sentencing. Moreover, defendant did not inform the court of any discrepancies in the PSR.

Next, defendant challenges the judge's weighing of aggravating and mitigating factors. The trial judge applied aggravating factors 1 ("The 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."), 3 ("The risk that the defendant will commit another offense."), 6 ("The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted."), and 9 ("The need for deterring the defendant and others from violating the law."). N.J.S.A.2C:44-1(a) (1), (3), (6), and (9). The judge considered the defendant's criminal history, noting a municipal charge for taking merchandise from a store; possession of marijuana; an attempt to cause bodily injury, for which she received fines, community service, and a jail term; and a pending simple assault charge. He noted defendant's personal circumstances, including her age, thirty-five years old, years of steady employment, and three children.

The judge did not find any applicable mitigating factors, and specifically rejected the mitigating factors proffered by defendant, namely 3("The defendant acted under a strong provocation"); 4 ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense"); 5 ("The victim of the defendant's conduct induced or facilitated its commission"); and 6 ("The defendant has compensated or will compensate the victim of his conduct for the damage or injury that he sustained"), N.J.S.A.2C:44-1(b)(3), (4), (5), and (6). With respect to these factors, the trial judge found:

First, the Defendant did not act under strong provocation, as Ms. Mitchell, this is the victim, did not do anything to [d]efendant to warrant the attack so viciously. The Defendant claims that there was substantial grounds tending to excuse her conduct on July 2nd. The evidence presented at trial does not support that argument. Ms. Mitchell struck the Defendant in an attempt to defend herself, after which she continued to strike as a protective measure.

 

Moreover, [d]efendant exceeded any force used upon her by Ms. Mitchell, by smashing a glass bottle over her, and then slashing Ms. Mitchell over and over again with that fragment of the bottle. There are no substantial grounds tending to excuse the Defendant's conduct. None whatsoever.

 

Moreover, the testimony at trial does not support the argument that the victim's conduct facilitated the commission of the present offense. The testimony related that she didn't do anything that would justify [d]efendant attacking her the way that she had.

 

There was also an argument with regard to the willingness of the [d]efendant to make restitution to Ms. Mitchell, and the facts clearly call into question the sincerity of this argument.

 

Finally, the [d]efendant had repeatedly engaged in antisocial criminal behavior which is underscored in the Court's findings of the substantial and repetitive assaultive activities on the part of [d]efendant.

Again, after this careful review, the Court finds that there are currently no mitigating factors that apply. Thus, the aggravating factors are clearly controlling.

 

Accordingly, the judge found that the aggravating factors controlled.

On appeal, defendant contends that aggravating factors 1, 6 and 9 do not apply, and mitigating factors 6 and 11 should have been considered. We have carefully reviewed the record and conclude that sufficient evidence exists on the record to support the findings upon which the judge based the sentence. With respect to the aggravating factors, we agree with the trial judge that sufficient proofs exist to support aggravating factor 1. The evidence indicates that the fight between defendant and Mitchell was much more than a fistfight, as suggested by defendant. Rather, Defendant, who outweighed Mitchell by 180 pounds, admitted that she had the advantage over Mitchell during the fight, and that she dragged Mitchell across the glass strewn yard. The evidence demonstrates further that defendant stabbed and slashed Mitchell repeatedly with a broken bottle, while standing above and behind her, causing "multiple complex lacerations" with jagged edges to Mitchell's left cheek, right nose near the cartilage, right ear, left neck, back, and face. Dr. Davidov testified that less serious lacerations were also inflicted on Mitchell's right shoulder and left arm. Mitchell also had defensive wounds on her hands.

The applicability of aggravating factors 6 and 9 is supported by the existence of a criminal history that includes assaultive conduct. Certainly any criminal conduct needs to be deterred. The record, however, does not support the application of mitigating factors 6, defendant's purported expression of remorse or desire to make amends, nor 11, evidence that the care of her children by their grandmother is more of a hardship than incarceration would impose on any sentenced defendant. See State v. Miller, 205 N.J. 109, 127 (2011).

In sum, we reject defendant's contention that the trial court improperly applied and weighed the aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1(a) and (b), See State v. Ghertler, 114 N.J. 383, 387-88 (1989), and we discern no support in the record for the claimed additional mitigating factors. We are satisfied the trial judge's findings of aggravating and mitigating factors were supported by the record, the sentence complied with the sentencing guidelines of the Code of Criminal Justice, and the sentence was not manifestly excessive, nor a mistaken exercise of discretion. Roth, supra, 95 N.J. at 363-65.

Based on the foregoing discussion of the issues presented, the conviction and sentence are affirmed.

 

Affirmed.

 

 

 

1 After the hearing, the court permitted the State to present testimony regarding the March 2009 theft and confrontation incident, and argue that defendant's conduct created a motive or intent relative to the July 2009 incident. The court ruled that the evidence was "highly relevant for the purpose of buttressing or discrediting the defendant s claim of self-defense as well as determining whether the defendant had the requisite mens rea necessary to satisfy the elements of the offense." The State also argued at the hearing that defendant's conduct after the July 2009 incident, leaving the scene of the fight, and not being located until several days later, was relevant as it showed "consciousness of guilt." The trial court deferred consideration of this request until the jury charge conference.

2 Although defendant did not testify at the hearing, at trial she denied taking the wallet and maintained the money Mitchell's cousin found belonged to her. Defendant also claimed that Mitchell's cousin struck her in the face with a shoe during the confrontation.

3

At trial, defendant did not pursue the self-defense argument.