STATE OF NEW JERSEY v. CARLOS E. BRYANT

NOT FOR PUBLICATION WITHOUT THE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.

CARLOS E. BRYANT,

Defendant-Appellant.

_______________________________

October 20, 2014

Submitted September 15, 2014 - Decided

Before Judges Lihotz, Espinosa and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 08-08-0717.

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Carlos E. Bryant was charged in Gloucester County Indictment No. 08-08-0717 with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2), count one; third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), count two; third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2), count three; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), count four. Tried by a jury, defendant was found guilty of the lesser included offense of reckless manslaughter; aggravated assault resulting in serious bodily injury; aggravated assault with a deadly weapon; and possession of a weapon for an unlawful purpose.

At sentencing, after merger, the court sentenced defendant to eight years imprisonment for reckless manslaughter, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and subject to three years of parole supervision upon release. The judge imposed a concurrent three-year sentence for the unlawful possession of a weapon conviction, imposed applicable fines and penalties, and ordered restitution in the amount of $5000.1 Defendant's post-sentencing motion to reduce his sentence was denied.

On appeal, defendant asserts trial errors require his convictions be vacated. He also maintains the sentence imposed was excessive and the order imposing restitution was unsupported. More specifically, defendant argues

POINT ONE

THE TRIAL COURT'S CHARGE ON SELF-DEFENSE AND DEFENSE OF OTHERS WAS DIVORCED FROM ITS PRESENTATION OF THE SUBSTANTIVE OFFENSES TO WHICH THESE JUSTIFICATIONS APPLIED AND FAILED TO PROVIDE THE NECESSARY FACTUAL CONTEXT. AS A RESULT, THE INSTRUCTION WAS INADEQUATE AND CONFUSING AND DEPRIVED THE DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV, N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).

POINT TWO

THE COURT ERRED IN FAILING TO AT LEAST INTERVIEW THE JURORS AFTER TWO JURORS REFUSED TO ACT AS FOREPERSON, ESPECIALLY BECAUSE THERE WAS EVIDENCE THAT ONE OF THEM HAD BEEN SUBJECTED TO HARASSMENT.

POINT THREE

BECAUSE THE TRIAL COURT MISAPPLIED AND MISWEIGHED THE RELEVANT AGGRAVATING AND MITIGATING FACTORS, THE SENTENCE IT IMPOSED ON THE DEFENDANT ON HIS RECKLESS-MANSLAUGHTER CONVICTION WAS EXCESSIVE AND SHOULD BE REDUCED.

POINT FOUR

A REMAND SHOULD BE ORDERED FOR AN INQUIRY INTO DEFENDANT'S ABILITY TO PAY RESTITUTION. (Not Raised Below).

Following our review, we affirm the judgment of conviction and sentences imposed. However, we vacate the restitution order and remand the matter for an ability to pay hearing, as required by N.J.S.A. 2C:44-2(b)(2).

Defendant's convictions result from the death of Robert Harrell, the paramour of defendant's younger sister, D.S., and the father of their two children. We will generally relate the facts surrounding Harrell's death, and add additional facts, as necessary, in our discussion when addressing defendant's arguments.

D.S. began her relationship with Harrell in 2005. In early 2006, defendant's sister F.B. wrote to defendant, then an inmate at the Gloucester County jail, to inform him she witnessed Harrell's physical and verbal abuse of D.S. while residing with the couple. F.B. detailed one incident during which her attempted intervention resulted in Harrell punching F.B. several times in the face, such that her lips "were busted and there was blood everywhere." D.S. began screaming and Harrell "just went on a rampage, throwing stuff. He hit [F.B.] with the iron in [her] mouth."

D.S. and Harrell separated. With the financial assistance of family members, D.S. and her children leased an apartment. On December 17, 2007, Harrell visited D.S. and the children. F.B. also was present. D.S. and Harrell "had got into a little argument about a girl" that D.S. learned Harrell had been seeing. However, the disagreement was only verbal and D.S. explained Harrell's physical abuse ceased in August 2007. Harrell spent the night in D.S.'s home.

The following day, furniture was delivered to the apartment. As D.S. and Harrell were assembling the furniture, they heard a knock at the door. Harrell went downstairs to open the door and encountered defendant, who arrived to help move the furniture. There is no dispute defendant did not recognize Harrell, or that he did not expect to see Harrell in his sister's home. Defendant asked whether D.S. was home.

As D.S. approached the door, she heard Harrell "pretty calm[ly]" ask defendant: "Why do you have a problem with me?" D.S. intervened, telling defendant to "just go" and asking Harrell to "just go upstairs." Defendant exited the apartment.

As Harrell walked upstairs, he told D.S. he "fe[lt] disrespected." D.S. told Harrell, "don't worry about it. Just leave it alone. Not a big deal." A minute or two later, D.S. "heard someone kind of jogging up the steps[.]" Defendant was then "back in the apartment at the top landing of the stairs." D.S. repeated her request for defendant to leave, but he told her to "[g]et out of [his] way." Defendant "kind of pushed [her] out of his way and [she] got right back in front of him and . . . [said:] 'Just please, please leave.'" Defendant grabbed D.S. and "tossed [her] to the side[,]" ripping her shirt.

"By the time [D.S.] g[ot] up, [all she could see was] a bunch of swinging between [Harrell] and [defendant]. [She] still didn't know at that point that [defendant] had a knife." It appeared to D.S. that defendant was attacking Harrell, whose movements suggested "he was trying to run one way to get away and then go another way to get away." D.S. believed Harrell "knew at that point that [defendant] did have a knife." Harrell was unarmed. The scuffle lasted for "maybe a minute. It was really fast. Everything happened fast." At that point, defendant "turned and left."

Harrell then stated: "He stabbed me. Did he really just stab me?" It was then that D.S. realized Harrell was stabbed by defendant. Initially, Harrell was "pacing back and forth" and looked out the window to check if defendant was still outside. As he turned, his movements slowed and his expression displayed something was wrong. D.S. believed Harrell was in shock. Harrell soon collapsed. He became unresponsive and D.S. recounted he was "shaking and his eyes [were] kind of rolling." D.S. called 9-1-1.

Emergency medical responders performed CPR, without success. Harrell was taken to Kennedy Hospital, where surgical repair of his heart was attempted, but he expired. An autopsy revealed

The decedent died of a stab wound to the chest. The wound passed left to right, front to back, and upward for approximately 1 to 1 1/2 inches striking the aorta causing massive bleeding. Additionally, there were incised and superficial stab wounds to the left upper extremity and hip indicating a struggle. There were no preexisting injuries or disease which may have contributed to death.

In the course of the five-day trial, the State presented fact and expert witnesses to establish these facts. Defendant offered evidence to support his claims of self-defense and the defense of others.

The jury convicted defendant of four offenses, including the lesser-included offense of reckless manslaughter and unlawful possession of a weapon. Defendant's motion for a new trial was denied. Following sentencing, defendant's motion for reduction was denied, and this appeal ensued.

On appeal, defendant first challenges the propriety of the jury instruction with respect to self-defense and defense of others, claiming the instructions confused the jury. Defendant argues the charges on the defenses were "totally divorced from the instructions on murder and the lesser-included offenses to which [they] applied" and failed to properly inform the jury their finding that the stabbing was not justified was "a necessary precursor" to a guilty verdict.

Importantly, defendant did not raise these objections at trial. Accordingly, we review his arguments to determine whether an error, if present, rises to plain error, R. 2:10-2, which, in the context of a jury charge, requires a "'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Nero, 195 N.J. 397, 407 (2008) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). Under this standard, not any possibility of an unjust result will suffice; rather, the possibility must be "'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. Noble, 398 N.J. Super. 574, 596 (App. Div.) (quoting State v. Macon, 57 N.J. 325, 336 (1971)), certif. denied, 195 N.J. 522 (2008).

During the charge conference, the judge rejected defendant's request to charge simple assault and mutual fighting. The parties agreed on the inclusion of lesser included offenses and the defenses sought by defendant.

In instructing the jury, the judge issued general charges for issues including the description of evidence, the role of counsel, the State's burden of proof, and the jury's obligation as factfinder, and then read the indictment. She then proceeded to charge each of the crimes of murder, passion/provocation manslaughter, aggravated manslaughter, reckless manslaughter, aggravated assault causing serious bodily injury, aggravated assault with a deadly weapon, and possession of a weapon with the purpose to use it unlawfully against a person. For each crime, she described the burden to prove the individual elements of the offense, repeating the necessary states of mind.

At the conclusion on these charges, the judge told the jury: "Later on in this charge, I will instruct you on the concept of self-defense and defense of others, as it applies to the offenses of [m]urder and [a]ggravated [a]ssault." Before continuing she stated

The concept of self-defense and defense of others, as it applies to those offenses, is different from that of protective purpose, that applies to . . . this count of the [i]ndictment.

When applied to those offenses, self-defense requires the [d]efendant have both an honest and a reasonable belief in the need to use force, as compared to this particular count of the [i]ndictment.

The judge continued to address defenses, informing the jury: "Now, justification and self-defense. The [i]ndictment charges the [d]efendant has committed the crimes of [m]urder, [a]ggravated [a]ssault [w]ith [b]odily [i]njury, [a]ggravated [a]ssault [w]ith a [d]eadly [w]eapon [w]ith [b]odily [in]jury and [w]eapons [p]ossession for an [u]nlawful [p]urpose." She next stated defendant "contends that if the State proves he used or threatened to use force upon [] Harrell, that such force was justifiably used for his self-protection." Thereafter, she proceeded to recite the Model Jury Charges addressed to justification, self-defense and the defense of others. See Model Jury Charge (Criminal), "2C:3-4 Justification-Self Defense in Self Protection" (June 13, 2011) and "2C:3-5 Justification-Use of Force in Protection of Others" (October 17, 1988).

During deliberations, the jury sent the trial judge questions, including: "If we find that [defendant] acted in self-defense, then is he completely acquitted from all of the charges?" Both the State and defendant agreed "the question [was] not simple enough to give a yes or no answer" and concurred the judge should reread "the law that would enable them to answer the questions." The trial judge agreed and recharged the jury on self-defense and defense of others.

On appeal, defendant suggests the order in which the instructions were given likely altered the jury's application of the charge of self-defense, and maintains the judge failed to "tie the concepts into the elements of murder" and did not consider "what parts of the charges were relevant[.]" Also, the judge charged each crime, ending with possession of a weapon for an unlawful purpose, before addressing the asserted defenses; thus, defendant contends the jury mistakenly understood the defenses could only apply to the weapons charge, because when informing the jury about the defenses, the judge implied they were only relevant to "this particular count of the [i]ndictment." We are not persuaded by defendant's assertion that this charge was "hopelessly misleading." See State v. Bilek, 308 N.J. Super. 1, 10-12 (App. Div. 1998) (holding the judge's failure to tailor the self-defense instruction "rendered an already confusing charge hopelessly misleading").

Our jurisprudence is clear: "Appropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The charge is the jury's road map of the law to guide it in its deliberations. State v. Martin, 119 N.J. 2, 15 (1990). Moreover, jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting State v. Weeks, 107 N.J. 396, 410 (1987)), certif. denied, 156 N.J. 387 (1998). A trial judge must discharge the "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). However, a defendant is entitled to an accurate charge, not one delivered as he directs. State v. Thompson, 59 N.J. 396, 411 (1971).

In our review of the charge as a whole, a finding that the charge was "inadequate to guide the jury in the course its deliberation should take," requires the defendant's conviction be reversed. State v. Jackmon, 305 N.J. Super. 274, 290 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Even if a defendant does not object, the standard set forth in Rule 2:10-2 mandates we review the charge to assure a claimed defect is not "[e]rroneous . . . on matters material to a jury's deliberations," which is "ordinarily presumed to be reversible error." Id. at 277-78.

Following our review of this jury charge, we agree the instructions may have been over inclusive. For example, the judge listed every crime in the indictment prior to informing the jury regarding the elements of the defenses, not simply those related to Harrell's death. Nevertheless, we fail to see how such an error may have prejudiced defendant.

Defendant challenges the inclusion of a discussion of non-deadly force, stating it was confusing because "no one claimed [defendant] used non-deadly force" and, even more important, the specific instruction contained an error. Although we agree the non-deadly force portion of the charge may have been omitted and the court's recital of this charge contained one slight deviation from the model charge, we disagree with defendant's conclusions that this created reversible errors. We find these errors harmless.

The inclusion of the non-deadly force charge was decided during the charge conference. At that time, defendant requested instructions on "mutual fighting," a form of simple assault. The judge rejected this request, but agreed instructions on passion/provocation manslaughter, self-defense, and the defense of others were appropriate. Importantly, no objection was made. "Where there is a failure to object, it may be presumed that the instructions were adequate." State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.) (citing Macon, supra, 57 N.J. at 333), certif. denied, 177 N.J. 572 (2003).

The judge's deviation from the model charge when delivering the non-deadly force instruction was also harmless. In charging non-deadly force, the judge stated: "Non-deadly force; a person may also use non-deadly force in his own defense . . . . If you find that this [d]efendant did not use deadly force to defend himself, then you must determine whether the force was justified." The charge should have been: "If you find that this [d]efendant did use non-deadly force to defend himself . . . ." The court's instruction, but for this instance, tracked the model jury charges, which are based on the respective statutes. The cited misstatement was corrected on recharge, issued during deliberations. During the recharge, the judge also tied the defendant's "honest, though unreasonable belief, that he needed to use the knife to protect himself or [D.S.]," to the fact that "the purposeful mental state would be negated." Therefore, the jury had received correct information prior to rendering its verdict.

The "[u]se by the court of model jury charges is recommended as a method, albeit not [a] perfect [one], for avoiding error." Pressler & Verniero, Current N.J. Court Rules, comment 8.1 on R. 1:8-7 (2014). See State v. Lykes, 192 N.J. 519, 538-39 (2007) (finding no error when charge issued in response to the jury's question "tracked defense counsel's expressed views"). The single deviation from the model charge highlighted by defendant may be erroneous, but it certainly does not rise to reversible error. Rather, it represents an "isolated" instance that had little or no effect on the jury's determinations. See State v. Docaj, 407 N.J. Super. 352, 364-65 (App. Div.), certif. denied, 200 N.J. 370 (2009).

Further, the absence of an objection to the charges, both when initially delivered and when repeated in response to the jury's question, suggests the asserted minor flaws were immaterial. Morais, supra, 359 N.J. Super. at 134-35. The trial judge's instruction charging non-deadly force could only have been advantageous to defendant because the jury was allowed to determine for itself, rather than being told by the judge, whether the force used by defendant was non-deadly or deadly. He cannot now claim error for being given the benefit of such instruction.

Defendant also contends the judge failed to mold the charges on self-defense and defense of others. Pressler & Verniero, supra, comment 8.1 on R. 1:8-7. ("[I]t may be necessary for the court to adapt the model jury charge to the facts in evidence, and failure to do so will constitute error."). The argument lacks merit. R. 2:11-3(e)(2). Fact-tailored instructions are required only when "the statement of relevant law, when divorced from the facts, [is] potentially confusing or misleading to the jury." State v. Robinson, 165 N.J. 32, 42 (2000). The facts here do not fit that paradigm, as they are neither "complex [n]or confusing" as to require their "intricate discussion in the charge." State v. Morton, 155 N.J. 383, 422 (1998).

In this matter we cannot agree the charge as delivered was confusing or somehow misled the jury regarding the application of the asserted defenses. On the facts presented by the State, the jury could reject defendant's assertion he "reasonably believed" the use of deadly force was necessary to avoid being killed or to avert suffering serious bodily injury or because he was protecting D.S. from such harm. See State v. Rodriguez, 195 N.J. 165, 172 (2008) (holding "exoneration on the basis of self-defense would be clearly inconsistent with a finding of manslaughter that a person recklessly killed his aggressor"). In our view, the verdict reflects the jury sifted through all the evidence and concluded defendant's decision to get a knife from his car, reenter his sister's home, and repeatedly stab the unarmed Harrell was not, as the State asserted, purposeful, but amounted to a reckless act ending in Harrell's death. The conviction for reckless manslaughter is supported beyond a reasonable doubt by the evidence presented. The verdict will not be disturbed.

Defendant next claims error occurred in the manner in which the judge addressed the jury's foreperson's request, made during deliberations, to select her replacement. Defendant argues this evidence of juror discord was improperly ignored by the judge, who declined to intervene. We relate the factual context of this issue.

During deliberations, the appointed jury foreperson sent the judge this note: "I do not feel comfortable being the jury foreperson anymore. Could you please reelect [sic] someone else." Defense counsel suggested the foreperson, a young woman, was being bullied by her colleagues in the jury room, and stated he would not object to choosing another. Additionally, he requested "some instruction be given to [the jurors] that they should be civil and they should honor each other's opinions and not conduct deliberations in such a way that someone would be made uncomfortable." The prosecutor disagreed with this interpretation, stating alternative explanations existed, including "she does not want to be the one to stand up and say anything in open court." The trial judge concluded the statement did not reflect the foreperson was "not comfortable being a juror," and decided against further inquiry "as to the inter-workings of what is taking place inside the jury deliberation room."

The judge then asked juror two to serve as foreperson, but the juror declined. Juror three was asked to assume the foreperson responsibilities and accepted. The jury was then excused for the weekend.

When trial resumed, defendant's mother submitted a certification stating while "outside of the courthouse [she] overheard the initial jury foreperson speaking to other jurors. [The foreperson] sounded upset and said something to the effect of 'I'm tired of her screaming at me.'" A second certification by another family member, present during this contact with the jury, contained similar statements. The defense suggested juror interviews were necessary to determine "if there is conduct that should not be permitted in the jury deliberation chambers." The State objected.

Considering the issue, including the initial foreperson's request to be relieved, the judge denied defendant's request, explaining

She [the foreperson] did ask to be relieved from that responsibility. She did not ask to be relieved from service on the jury.

It does not surprise the [c]ourt, either, that there's some lively conversation going on whenever there's any jury deliberation.

Indeed, the famous movie 12 Angry Men comes to mind. And now we've got women that's [sic] involved, as well, so I'm sure there's some lively conversations going on.

I don't find that it's appropriate for the [c]ourt to start an inquiry without a request from one of the jurors or without having some direct knowledge that there's some improper behavior.

Loud conversations and yelling? Although it may be rude, it's not necessarily improper as far as debating issues of this nature.

I am not going to inquire as to whether they're as to how they are interacting unless there is a juror that brings it to my attention or unless it spills out of the jury room and there's some need for interaction by the Sheriff's Department or the [c]ourt.

I don't find it []proper for me to just go and start asking, how are you getting along with your fellow jurors?

They're not supposed to be back there necessarily making friends but they're supposed to be back there deliberating the issues in this case an coming to a verdict, if they're able to do so.

Defendant moved for a mistrial, which was also denied.

Defendant argues the judge's failure to intervene in light of evidence of possible juror improprieties denied him a fair trial. We disagree.

The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to be tried by an impartial jury. State v. R.D., 169 N.J. 551, 557 (2001). Securing and preserving the impartiality of the jury "goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983). Constitutional safeguards require "a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." Id. at 60.

Defendant's challenge is informed by Rule 1:16-1, which states

Except by leave of court granted on good cause shown, no attorney or party shall directly, or through any investigator or other person acting for the attorney, interview, examine, or question any grand or petit juror with respect to any matter relating to the case.

[R. 1:16-1.]

The rule is designed to protect jurors from unwarranted disclosure of deliberations and avoids possible stifling of free debate or expression of thought. Importantly, the bar assures jurors are not "'made to feel that their arguments and ballots [are] to be freely published to the world.'" State v. LaFera, 42 N.J. 97, 106 (1964) (quoting Clark v. United States, 289 U.S. 1, 13, 53 S. Ct. 465, 469, 77 L. Ed. 993, 999 (1933)). Further, the law seeks to "'promote the finality of jury verdicts'" by disfavoring efforts to summon jurors who have completed their service. State v. Bisaccia, 319 N.J. Super. 1, 18 (App. Div. 1999) (quoting State v. Harris, 156 N.J. 122, 154 (1998)).

"Although the rule is drawn in terms of a post-verdict interrogation of jurors, the technique provided by the rule for determining juror taint is obviously applicable during the course of the trial as well when a circumstance arises suggesting that a juror may in fact be tainted." Pressler & Verniero, supra, comment 2.1 on Rule 1:16-1. A juror should not be interrogated unless there is a "strong showing that a litigant may have been harmed by jury misconduct." State v. Athorn, 46 N.J. 247, 250, cert. denied, 384 U.S. 962, 86 S. Ct. 1589, 16 L. Ed. 2d 674 (1966).

The thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct [like juror exposure to outside influences] is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality. Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.

[State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.) (citations omitted), certif. denied, 151 N.J. 466 (1997).]

Following our review, we conclude, as did the trial judge, the evidence presented was insufficient to support a claim of juror irregularity that required interrogation to probe the jurors' decisions to decline service as foreperson. Certainly, there is no evidence of exposure to extraneous information or outside influences, impinging on the jury's freedom of action. Although the certifications submitted on behalf of defendant possibly reflect instances of a juror's strong expression of opinion or even forceful argument in evaluating the proofs, the statements do not evince irregularity rising to misconduct, or hint of impartiality that warrants judicial inquiry. SeeState v. Young, 181 N.J. Super.463, 466-69 (App. Div. 1981) (holding a juror's feelings of being pressured to return a verdict by other jurors who wanted to get back to work for fear of losing their jobs did not constitute "good cause" to conduct juror interviews under Rule1:16-1), certif. denied, 91 N.J.222 (1982). We reject defendant's suggestion of error or abuse of discretion in the trial judge's administration during jury deliberations.

Turning to the sentencing challenges, defendant argues the judge improperly weighed the facts, contending she (1) erroneously applied aggravating factor one; (2) refused to find mitigating factor eight; and (3) failed to give sufficient weight to mitigating factors three and four. In this light, he contends she erroneously denied his motion to reduce the sentence imposed for reckless manslaughter.

The trial court found aggravating factors one (the nature and circumstances of the offense), three (the risk that the defendant will commit another offense), six (the extent of defendant's prior record), and nine (the need for deterring defendant and others from violating the law).2 N.J.S.A. 2C:44-1(a)(1), (3), (6), and (9). Further, the judge found mitigating factors three (the defendant acted under strong provocation), four (there were substantial grounds tending to excuse or justify defendant's conduct), and six (defendant has compensated or will compensate the victim of his conduct for the damage or injury sustained). N.J.S.A. 2C:44-1(b)(3), (4), and (6).

She recited specific findings on each aggravating and mitigating factor. Aggravating factor one was appropriate as

[d]efendant recklessly caused the death of an unarmed man, while his sister pleaded with him to leave. The victim received a mortal stab wound to the chest that struck his aorta causing massive bleeding. The victim also suffered superficial stab wounds to the left upper extremity and hip during the struggle.

Factor three was supported because defendant had "a history of violence, including [an] assault on [a] young lady who was cut across the face." Factor six was applicable based on defendant's past criminal record, and factor nine, the need for deterrence, was found to always be important.

Regarding mitigating factors, the judge stated

Number 3, was requested, that you acted under strong provocation. There is an indication that your sister had been abused . . . by the victim before. I give that some consideration, because there's no evidence presented at trial that she was being abused at the time that you reacted, sir.

I also considered that [D.S.] had agreed not to let [] Harrell live there with her because of a history of domestic violence, and this was advice given by the aunt who co-signed the lease in front of the rental agent. So, I give that moderate consideration.

[T]here was also a request for mitigating factor [n]umber 4, substantial grounds tending to excuse or justify your conduct though failing to establish a defense.

Although [D.S.] had been a victim of domestic violence in the past, as I've already indicated, there's no credible evidence in the record indicating that [] Harrell abused [D.S.] on the date in question, which was December 18th of 2007.

There's no evidence of an immediate threat to [D.S.], although domestic violence may tend to excuse, or justify a reaction, it fails to establish a defense in this case. So, I will just give that slight consideration.

The judge also gave slight consideration to the offer of restitution, applying factor six.

She declined application of mitigating factors two (defendant did not contemplate that his conduct would cause serious harm), eight (defendant's conduct was unlikely to recur), and eleven (imprisonment of defendant would entail excessive hardship). N.J.S.A. 2C:44-1(b)(2), (8), and (11). In rejecting mitigating factor eight, the trial judge stated

Number 8, was requested, that the conduct was a result of circumstances unlikely to re-occur. I give that no consideration because there is the history of violence. You were 21 years of age at the time of this event and there is a history of prior assaults, there's a history of you being arrested as a juvenile and as a[n] adult, even as a young man. So, there's a high risk of re-occurrence.

Finally, the judge also considered the fact that sentencing resulted after trial, noting

I find that you did not accept personal responsibility, and your shortcomings are blamed on others, . . . your shortcomings have been blamed on [] Harrell, and I do not find that to be valid.

I also find that . . . you have pled guilty to a violation of probation, and I've determined that you willfully violated probation, and you've not otherwise responded affirmatively to probationary treatment . . . .

There is, with a second-degree offense of reckless manslaughter, a presumption of incarceration. It has not been overcome. There's also a presumption of incarceration because of your prior record. But, there's a strong presumption of incarceration applicable to a second-degree crime.

Aggravating factors, I do find substantially outweigh any mitigating factors; and I do not find it appropriate to sentence you to one degree lower. Mitigating factors have been outweighed by the aggravating factors in this matter.

Defendant repeats his objections to the application of aggravating factor one, contending the "superficial cuts" suffered by Harrell after the struggle cannot justify imposing aggravating factor one, and suggests its inclusion was inappropriate "double-counting." He also renews his claim to include mitigating factor eight, but offers no specific facts, stating simply it was "clearly applicable."

In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider and identify aggravating and mitigating circumstances applicable, balance them, and explain the determined sentence imposed. State v. Abdullah, 184 N.J. 497, 506-07 (2005). We conclude the trial judge has done just that. She detailed the brutal and senseless nature of the offense resulting in Harrell's death and emphasized defendant repeatedly stabbed the unsuspecting, unarmed victim, in the presence of his girlfriend. Indeed, it is beyond the pale to characterize the injuries defendant inflicted upon decedent as "superficial wounds." Also, the judge fully assessed and rejected defendant's claim his conduct was unlikely to recur, citing his past acts of violence, obviating application of the factor. See State v. DeRoxtro, 327 N.J. Super. 212, 225-26 (App. Div. 2000) (rejecting defendant's argument that her conduct was unlikely to recur, noting that prior to the murder, she had engaged in acts of domestic violence).

The Supreme Court has fortified the authority of sentencing judges, reminding this court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division, stating: "Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing." State v. Bieniek, 200 N.J. 601, 612 (2010). Here, the judge properly adhered to the sentencing guidelines and the sentence imposes does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).

The last matter for consideration regards the imposition of restitution, pursuant to N.J.S.A. 2C:43-3. In addition to fines and penalties, $5000 restitution was ordered to reimburse the Victims Compensation Fund for its payment of the victim's funeral expenses. For the first time on appeal, defendant argues the judge omitted the requisite inquiry to establish defendant's ability to pay the ordered restitution.

We agree this lapse requires the award be vacated and the matter remanded for a determination of whether defendant can satisfy the order. See State v. Pessolano, 343 N.J. Super. 464, 479 (App. Div.) (remanding for reconsideration of the restitution award where the trial judge "held no hearing and made no comments during sentencing about defendant's financial status or ability to pay"), certif. denied, 170 N.J. 210 (2001). A court is authorized to impose restitution on "[a] person who has been convicted of an offense" subject to certain criteria contained in N.J.S.A. 2C:44-2. N.J.S.A. 2C:43-3. Specifically, N.J.S.A. 2C:44-2(b)(2) requires the sentencing court to find "[t]he defendant is able to pay or, given a fair opportunity, will be able to pay restitution" prior to entering an order.

Affirmed, except the order for restitution is vacated and remanded for an ability to pay hearing.

1 At sentencing, the judge also addressed defendant's convictions in three other indictments: Indictment No. 09-09-0771, under which defendant pleaded guilty to aggravated assault pursuant to the terms of a negotiated plea agreement, and Indictment Nos. 06-04-0367 and 06-07-0626 charging third-degree probation violations, which also were the subject of separate plea agreements. Further, in accordance with the terms of the negotiated plea to the charges under Indictment No. 09-09-0771, the judge imposed a flat three-year sentence, to run consecutive to the sentence imposed for Indictment No. 08-08-0717. Finally, for each violation of probation, defendant was sentenced to three years imprisonment, to run concurrent to each other and consecutive to the sentence on Indictment No. 08-08-0717.

2 Initially, the judge also applied aggravating factor two (the gravity and seriousness of the harm inflicted), stating defendant knew or should have known the unarmed Harrell was vulnerable. However, reviewing the matter on defendant's motion to review his sentence, the State acknowledged use of aggravating factor two amounted to double counting, after the inclusion of factor one. The judge removed consideration of factor two, but found no basis to alter the sentence imposed.