STATE OF NEW JERSEY v. SHAHID JAVED

NOT FOR PUBLICATION WITHOUT THE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-Appellant,

v.

SHAHID JAVED,

Defendant-Respondent.

_______________________________________

December 4, 2015

Submitted November 4, 2015 Decided

Before Judges Yannotti and Guadagno.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-08-00139.

John J. Hoffman, Acting Attorney General, attorney for appellant (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

Anderl & Oakley, P.C., attorneys for respondent (David R. Oakley, of counsel and on the brief).

PER CURIAM

The State appeals and challenges the sentence imposed by the trial court following defendant's conviction of second-degree theft by deception and other charges. We reverse and remand for resentencing.

I.

We briefly summarize the relevant facts. In August 2013, a State grand jury charged defendant and co-defendant Du Kang ("Kang") with second-degree conspiracy to commit theft by deception, N.J.S.A. 2C:5-2 and 2C:20-4; theft by deception, N.J.S.A. 2C:20-4, 2C:20-2b(1) and 2C:2-6 (count two). Defendant and Kang were tried jointly.

At the trial, the State presented evidence which established that in the spring or summer of 2010, H.D. and his wife investigated investing in a business.1 H.D. learned that he might be able to invest in a gas station in Union, and he was referred to defendant. H.D. contacted defendant, who showed him several gas stations that were available.

In September or October 2010, defendant introduced H.D. to Kang. Defendant said they were "business partners." Thereafter, defendant told H.D. about a gas station in the South Brunswick area. Defendant and Kang asked if H.D. was interested in purchasing the right to operate the gas station with them.

Defendant said the owner wanted $425,000 for the lease, but H.D. replied that he was only interested in investing $80,000 to $100,000. Defendant stated that he was "very close to the owner" and thought he could get a better price. On October 31, 2010, defendant called H.D., and stated that he and Kang wanted to meet him.

They met the following day. Defendant told H.D. that the owner of the gas station was willing to drop his price, and it would be between $300,000 and $350,000. They went to look at the gas station. They also decided to open a bank account "just in case" the owner decided to drop his price, and to form a partnership.

On November 4, 2010, defendant and Kang contacted H.D. and said the owner was demanding $300,000. The owner wanted the money that day or he would sell the lease to someone else. Defendant and Kang knew that H.D. only had $100,000, so Kang said he borrowed $300,000 from his father, which had been paid to the owner that day.

The following day, defendant and Kang showed H.D. the receipt. They asked H.D. when he would be able to pay Kang's father back, and H.D. told them he needed a week to get the money. Shortly thereafter, defendant, Kang and H.D. signed a partnership agreement, which stated that H.D.'s capital contribution was $310,370, and defendant and Kang would each contribute $34,065.

H.D. testified that he wanted defendant and Kang as his partners, "because of their expertise." H.D. said he did not know what the business would be worth. Defendant and Kang told him about the gas station's performance. They put together a spreadsheet and calculated the business's profit margin.

H.D. later told defendant and Kang he had the money to repay Kang's father, and he was told to bring cash to a meeting on November 12, 2010, but H.D. informed them his bank would not give him that much cash. They agreed that he could bring the money in the form of checks, and he should try to break the total "down to smaller amounts." H.D. and his wife met defendant and Kang, and gave them three bank checks totaling $300,000.

Thereafter, H.D. told Kang that he and his wife were "so happy" with the business opportunity, and grateful that Kang had helped him pay the owner the $300,000. H.D. said they were going to work hard to make the business a success. On November 24, 2010, H.D. began to operate the gas station. He asked defendant and Kang for a copy of the signed lease. Defendant and Kang said "it was under review by the lawyer" and they did not have a copy they could provide to him.

Defendant and Kang provided H.D. with a letter of intent but it was not the letter of intent that Kang had signed. The actual letter of intent reflected a purchase price of $125,000.

In December 2010, defendant and Kang told H.D. they had decided to withdraw from the partnership because they were pursuing other business opportunities. H.D. agreed to return their investments, and he started to do so in installments. In February 2011, the partnership was dissolved. H.D. asked the owner of the gas station to transfer the lease to him. H.D. later learned that the purchase price for the lease was $125,000, not $300,000.

R.V. testified that he was personally involved in the leasing of the gas station in the fall of 2010. R.V. stated that he never discussed a purchase price of $300,000 with defendant or Kang. He said the business had been leased for $125,000. P.V., R.V.'s son and managing partner of the family business, testified that he was the owner of eight gas stations, one of which was the gas station leased to defendants Kang and H.D. In 2010, P.V., defendant and Kang signed a letter of intent to lease the right to operate the business. P.V. said the price was $125,000.

P.V. testified that he never told defendant and Kang the price was either $425,000 or $300,000. He said the draft lease indicated that $1125,000 would be paid when it was signed. However, Kang sent P.V. a draft lease and asked that the purchase price be removed. Kang did not tell P.V. why he wanted the price deleted. The purchase price was not included in the lease that was executed. The lease was signed on November 16, 2010, and within a few days, P.V. received $125,000.

After the State rested, defendant and Kang informed the court that they would not be testifying. At the charge conference, the trial judge stated that she would not charge the jury on fourth-degree falsifying or tampering with records, N.J.S.A. 2C:21-4, as a lesser-included offense. The judge stated, however, that she would include this offense in the instructions because it was "related" to the charged offenses. Defendant and Kang agreed. The jury found defendant guilty of all charges.

The judge sentenced defendant and Kang on June 4, 2014. The judge merged the convictions for conspiracy and falsifying or tampering with records with the conviction for second-degree theft by deception. The judge found that the mitigating factors substantially outweighed the aggravating factors, and the interest of justice warranted imposition of downgraded sentences.

The judge sentenced defendant to three years of incarceration. The judge ordered defendant to pay restitution in the amount of $87,500 and imposed appropriate monetary penalties. Kang received the same sentence. The State's appeal followed.2

II.

On appeal, the State argues that the sentencing judge mistakenly exercised her discretion by imposing a downgraded sentence of three years for the second-degree offense of theft by deception. The State maintains that the judge erred in her assessment of the aggravating and mitigating factors, and failed to articulate any basis for imposing a downgraded sentence, as required by N.J.S.A. 2C:44-1f(2) and State v. Megargel, 143 N.J. 484 (1996).

Here, the trial judge found aggravating factor nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge also found mitigating factors six, N.J.S.A. 2C:44-1b(6) (defendant has compensated or will compensate the victim); seven, N.J.S.A. 2C:44-1b(7) (defendant has no history of prior delinquency or criminal activity or has led a law abiding life for a substantial period of time); and ten, N.J.S.A. 2C:44-1b(10) (defendant is likely to respond affirmatively to probationary treatment).

The judge stated that she was finding a "strong" aggravating factor nine. The judge noted that defendant and Kang had "swindled" H.D. out of $175,000, and his actions caused H.D. to suffer serious financial and emotional harm. The judge observed that H.D. lost $175,000, and the gas station was not a success. The judge stated that defense counsel represented to the court that defendant would make restitution in the amount ordered, and defendant and his family had the ability to provide funds to do so. The judge viewed this as "an important factor."

In addition, the judge stated that she was giving defendant the benefit of mitigating factor seven. The judge said she did not "approve" of defendant's two prior convictions for driving while under the influence ("DWI"). The judge noted, however, that defendant had no prior indictable convictions.

The judge commented that it was "unfortunate" defendant had come up with this "scheme" but he had not done anything like this before. The judge also said she was finding mitigating factor ten because there was nothing to suggest that defendant would not do well in probation, but "that [does not] have too much weight." The judge stated

In terms of my evaluation, I look at a . . . young man who did something so stupid here and again, just out of greed, took advantage of an older person who followed his lead. But on the other hand, he has no record of convictions. He [intends] to fully compensate the victim. And with that being said and looking at the one aggravating factor of the need to deter the defendant and others from violating the law, I am clearly convinced that the mitigating factors substantially outweigh the aggravating and that the interest of justice demands a downgraded sentence.

Again, [I am] not in any way minimizing the fact that this is a second degree offense . . . and the fact that there was harm [to] the victim both emotionally and monetarily, but this [is not] a situation of physical harm to the [victim]. I believe that the defendant is truly remorseful for what he did. And . . . if the money is repaid, frankly, I think that that will go a long way towards helping the victim recuperate from the harm that he has suffered. He needs that money to get back on track and hopefully . . . repay his parents and get back to the lifestyle that he had before. And I know that is of great concern. So that particular factor has specific weight. And [defense counsel] has represented to the [c]ourt that the family of this defendant will repay the money.

The judge concluded that that mitigating factors substantially outweighed the aggravating factors and "the interest of justice demands a downgraded sentence."

The State argues that the judge erred by finding mitigating factor six because neither defendant nor Kang had, at the time of sentencing, repaid the money they stole from the victim. We do not agree. As noted by the judge, defendant's counsel had represented to the court that defendant would pay his share of the money stolen from H.D., and defendant's family had the money to make restitution. Thus, the record supports the judge's finding of mitigating factor six.

The State also argues that the judge erred by finding mitigating factor seven. We agree. Defendant has a history of prior criminal activity and has not led a law-abiding life for a substantial period of time before he committed the offenses at issue here. Therefore, the record does not support the judge's finding of mitigating factor seven.

Instead of finding mitigating factor seven, the judge should have found aggravating factor six, N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted). The judge should have considered defendant's prior convictions for DWI and simple assault, in addition to the absence of any indictable convictions, in determining the weight to be given to that factor.

The State further argues that the judge erred by finding mitigating factor ten. Again, we agree. Defendant was being sentenced for a second-degree offense, for which there was a presumption of incarceration. State v. Washington, 408 N.J. Super. 564, 581 (App. Div. 2009). Defendant did not establish any basis to override that presumption, especially when considered in light of the seriousness of the offenses for which he was convicted, and the harm to the victim, as noted by the trial judge.

In addition, the State contends that the judge failed to make the necessary findings that would warrant imposition of a downgraded sentence pursuant to N.J.S.A. 2C:44-1(f)(2), which states in pertinent part that

[i]n cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

To warrant imposition of a downgraded sentence pursuant to N.J.S.A. 2C:44-1f(2), the court must be "clearly convinced" that the mitigating factors "substantially outweigh" the aggravating factors, and "the interest of justice must demand" the downgrade. Megargel, supra, 143 N.J. at 495-96, 504-05. The court is not permitted to downgrade a sentence unless there are "compelling reasons" to do so. Id. at 502, 505. Those reasons must be in addition to, and separate from, the mitigating factors which substantially outweigh the aggravating factors. Ibid.

Furthermore, "[a]lthough the surrounding circumstances and the need for deterrence may be taken into account, the severity of the crime remains the single most important factor in considering whether the interest of justice demands a downgrade." State v. Lake, 408 N.J. Super. 313, 326 (App. Div. 2009) (citation omitted). The sentencing judge should not downgrade a sentence without giving due regard to the Legislature's intent that the severity of the offense is the single most "important factor in the sentencing process." Megargel, supra, 143 N.J. at 500 (citing State v. Hodge, 95 N.J. 369, 379 (1984)).

In this case, the judge merely stated that the mitigating factors substantially outweighed the aggravating factors and the interest of justice demands a sentencing downgrade. The judge did not set forth any compelling reasons to sentence defendant as a third-degree offender.

Moreover, the judge stated that she was making a "strong" finding of aggravating factor nine, but apparently did not consider the severity of the offense in determining whether to impose a downgraded sentence. As noted, the judge said H.D. had been "swindled" out of $175,000, and as a result, H.D. had suffered serious financial and emotional difficulties.

Therefore, we reverse defendant's sentence and remand the matter to the trial court for resentencing. The judge shall reassess the aggravating and mitigating factors in light of our opinion, and reconsider whether to impose a downgraded sentence pursuant to N.J.S.A. 2C:44-1f(2).

Defendant's sentence is reversed and the matter remanded to the trial court for resentencing in conformance with this opinion. We do not retain jurisdiction.

1 We refer to certain individuals involved in this matter by their initials to protect their privacy.

2 The State has also appealed Kang's sentence, and that matter is docketed as A-4890-13. In addition, Kang has appealed his conviction. That matter is docketed as A-5376-13. In an opinion also filed this date, we affirm Kang's conviction, reverse his sentence and remand for resentencing.