STATE OF NEW JERSEY v. JUSTIN ANTHONY HAZEL

NOT FOR PUBLICATION WITHOUT THE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.

JUSTIN ANTHONY HAZEL, a/k/a ANTHONY J. HAZEL,

Defendant-Appellant.

_________________________________

September 23, 2015

Submitted March 16, 2015 Decided

Before Judges Lihotz, Espinosa, and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-07-1306.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant Justin Hazel appeals from a judgment of conviction and order for commitment entered after a jury found him guilty of murder and two related weapons offenses. At the conclusion of the State's case, defendant moved for a judgment of acquittal on all charges pursuant to Rule 3:18-1. The court denied defendant's motion. Before the court's charge to the jury, defendant requested the court instruct the jury as to murder alone, not the lesser-included offenses of aggravated manslaughter and reckless manslaughter. The court granted defendant's request and the jury found defendant guilty of all charges. The court sentenced defendant to imprisonment for an aggregate term of thirty-five years for murder and one of the weapons charges, and a consecutive term of eighteen months on the other weapons charge.

On appeal, defendant challenges the sufficiency of the evidence upon which his conviction rests, the court's decision not to charge lesser-included offenses, and the court's sentence. He specifically argues

POINT I

BECAUSE THE STATE FAILED TO PROVE ALL OF THE ELEMENTS OF THE CRIMES CHARGED, THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE.

POINT II

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE APPROPRIATE LESSER-INCLUDED OFFENSES OF AGGRAVATED MANSLAUGHTER AND RECKLESS MANSLAUGHTER, DESPITE DEFENDANT'S OBJECTION, VIOLATED DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.

U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARAS. 1, 9 AND 10.

POINT III

BECAUSE THE TRIAL COURT MADE FINDINGS THAT WERE NOT SUPPORTED BY COMPETENT, CREDIBLE EVIDENCE IN THE RECORD, A REMAND FOR RESENTENCING IS REQUIRED.

We have considered defendant's arguments in light of our review of the record and the applicable legal principles. We affirm defendant's conviction, but remand the matter to the trial court for resentencing.

We recite the facts, as discerned from the record.

The charges against defendant arose from the murder of Floyd McLean on November 18, 2010, following an altercation between the two men. On July 8, 2011, an Essex County Grand Jury issued Indictment No. 11-07-1306, charging defendant with murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count one); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three).

The parties do not dispute that defendant and McLean were involved in an altercation on November 18, nor do they dispute that McLean later died of a stab wound to the chest. The question in this case is the relationship, if any, between these two events whether the stab wound that later proved fatal was inflicted by defendant during this altercation. At trial, the events of November 18 were developed through witness testimony, surveillance footage, and phone records. Two witnesses testified to seeing McLean in the hours before his death a friend of McLean's (Harris) and defendant's girlfriend (Campbell). Though neither Campbell nor Harris saw the wounding that proved fatal, Campbell was present throughout defendant's altercation with McLean.

At trial, Campbell testified she met McLean on Webster Place in East Orange on the evening of November 18 in order to purchase a pair of sneakers for her uncle. When McLean called Campbell to tell her he was nearby, she had already left her apartment to meet him. McLean spotted her and pulled over the SUV he was driving, and Campbell got in the front passenger seat. McLean showed Campbell three pairs of sneakers, and she selected a pair of Nikes in an orange box. Though Campbell estimated she met McLean "a little bit after 6:00 6:00 6:30" p.m., McLean's outgoing call record shows only two calls to Campbell that day at 6:13 and 6:23 p.m. indicating the two met shortly after the 6:23 call. Campbell's statement that McLean received a phone call while she was in the car, lasting "about a minute or so," also suggests their meeting was closer to 6:30, as the only call McLean received after the earliest he would have met Campbell was a 6:26 p.m. call from Harris.

Campbell testified she saw defendant pass by McLean's SUV, walking towards the apartment they shared, and defendant turned back and approached the passenger side of the vehicle when he saw her inside. Defendant was "[a] little bit angry" and started arguing with Campbell and McLean, "[a]sking why [she] was in [the SUV], what[ was] going on." Though Campbell had dated McLean from 2005 to 2008, to the best of her knowledge, defendant was unaware of this relationship at the time of the fight. Though she tried to explain why she was with McLean, defendant continued arguing and went around to the driver's side of the SUV. After Campbell got out of the SUV and walked around to the back of the vehicle, defendant kicked her in the stomach and she fell, losing sight of the altercation between defendant and McLean for approximately a minute. When she next saw defendant, he was standing by the driver's side of the SUV and the two men were "punching each other" through McLean's half-open window, though Campbell testified she saw defendant deliver only one punch. McLean never got out of his vehicle.

According to Campbell, defendant's cousin Sophie arrived and restrained defendant.1 When Sophie pulled defendant away from the SUV, Campbell testified she was able to see that his hands were empty. While defendant was being restrained, McLean drove away, though Campbell testified she did not see in which direction. McLean did not return and Campbell never spoke to him again.

Campbell and defendant continued to argue on the street for a period of time before walking back to their apartment, approximately five minutes away. She testified that, during this time, she did not see blood on his hands or clothing, nor did she see a weapon on him. When they arrived home, still arguing, defendant entered the apartment first and went into the bedroom for a matter of seconds before joining Campbell in the kitchen.

From the time Campbell first met with the police through her meetings in preparation for trial, Campbell repeatedly told investigators defendant had a "pointy thing" in his hand when he entered the kitchen, which she described in her statement as "a knife, but the point of [sic]." At trial, however, she maintained she never described it as a knife and, for the first time, denied ever seeing a "pointy thing" in defendant's hand, knife or otherwise. She testified her prior statements to the contrary were coerced by a detective who threatened to "take [her] son away . . . . [i]f [she] didn't tell [police] what [they] wanted to hear."

Defendant left the apartment immediately after the argument, carrying the sneakers Campbell had purchased from McLean. Campbell testified defendant disposed of the sneakers, though it is unclear from the record if she knew where he threw them out. A single sneaker and an orange Nike box were recovered by investigators in the garbage cans outside defendant's building the following morning. Shom Singh, the building's superintendent, testified he had found the items in front of the building on the morning of November 19 and had put them in the garbage.

Meanwhile, at approximately 6:33 p.m., Adam Burhani was approaching the intersection of Oraton Parkway and Central Avenue in East Orange when he was rear-ended by a dark-green SUV. The SUV then "careened off across Central Avenue" and struck the overpass. Burhani estimated it took him two minutes to locate his phone, which had fallen during the collision, and call the police. Detective Dave Sheridan of the East Orange Police Department was dispatched to the scene of the accident at 6:35 p.m. and, upon arrival, saw McLean "slumped over the center console laying towards the front passenger floorboard." Unable to open the doors, Sheridan broke a window and checked McLean for a pulse. When he felt none, he called for emergency medical services.

Dr. Eddy Lilavois, the assistant medical examiner who examined McLean's body, determined McLean died of a single stab wound to the right side of his chest. Though Lilavois had no definitive knowledge of the type of weapon used, the wound indicated the weapon was a single-edged blade, measuring approximately five-eighths of an inch.2 He also found a scratch near the stab wound, which he opined was caused by the hilt of a knife hitting the skin, indicating the entire blade entered McLean's body. Lilavois's examination revealed the blade had perforated McLean's heart, aorta, and pericardium, as well as "blunt injuries" bruises and scratches to McLean's face and hands not caused by the blade. He opined that someone suffering this type of stab wound would not die instantly, but rather would lose consciousness and die within "a short period of time, maybe, a few minutes," depending on the victim's level of physical activity. When asked to approximate how long it might take if the person were driving a car, Lilavois estimated death would "probably [occur] within a minute or two."

During their investigation, detectives used surveillance footage to trace McLean's movements from the time he left Webster Place to the time he crashed into the overpass. Then-Detective John Foti testified a vehicle matching the description of McLean's SUV was captured on several city cameras in the minutes before the crash. However, police were unable to definitively identify the vehicle or its driver from this footage or even that it was the same vehicle on each camera only that it was "darker-colored" and appeared to be an SUV.

During his testimony, Foti testified to, and identified on a map, the locations of three cameras that captured the SUV he identified as being McLean's. Between 6:30 and 6:32 p.m., the SUV was seen making several turns. The first sighting was in the vicinity of Webster Place, making a right turn onto Evergreen Place from Freeway Drive. The last was at Chestnut Street crossing South Munn Avenue. Within three minutes of this final footage, McLean's SUV crashed into the overpass at Oraton Parkway and Central Avenue, a few blocks from where the SUV was last seen on camera and "approximately . . . a block" from East Orange General Hospital.

When McLean's cell phone records indicated he had received a phone call from Harris in the minutes before his death, the police interviewed Harris to gain further insight into what happened in the hours leading up to McLean's death. Harris testified McLean had been at his house in Orange on November 18 for "maybe . . . five, ten minutes," estimating the meeting took place "between 5:00 and 6:00 [p.m.]" However, phone records revealed a 6:18 p.m. call from McLean to Harris, which Harris said corresponded to McLean's arrival at his house. They also showed a call from Harris to McLean at 6:26 p.m., which Harris explained was accidental and occurred "about five, six minutes" after McLean had left his house. Though he estimated the call lasted "only three seconds," after reviewing McLean's incoming call record, Harris agreed it showed the call lasted eighteen seconds.

After the State rested, defendant moved for a judgment of acquittal on all counts, pursuant to Rule 3:18-1, arguing the State's evidence was insufficient to establish his guilt beyond a reasonable doubt. Defense counsel argued the evidence, at best, showed defendant fought with McLean, but that "no evidence at all directly connect[ed] [defendant] to this homicide." However, after reviewing "the State's evidence in its entirety, . . . direct [and] circumstantial, and giving the State the benefit of all favorable inferences," the judge found that, "at th[at] stage, the State ha[d] sustained [its] burden of proof" and denied defendant's motion.

At the charging conference, the judge advised the parties of his proposed charges to the jury, which included the lesser-included offenses of aggravated manslaughter and reckless manslaughter, based on the evidence of "a fight between [d]efendant and [McLean,] and the inferences that c[ould] potentially be drawn from that fight." Defendant requested the judge instruct the jury on only the charge of murder, not on the lesser-included manslaughter offenses. Despite defense counsel's "hesitancy" and expressed belief that limiting the charges was not "necessarily a prudent strategy," defendant was "adamant in [his] request that . . . aggravated and reckless manslaughter not be charged." The State took no position on the matter.

The judge questioned defendant directly regarding his understanding of the nature and consequences of the request to charge only murder. Satisfied defendant was making a fully informed decision, the judge granted his request, stating

I think an argument can be presented that the lesser includeds are here. I do think and even notwithstanding [defendant's] request . . . there is sufficient reason to limit the instructions to murder. . . .

. . . I don't believe there is a clear, rational basis to establish support to require the [c]ourt, under these circumstances to put in the two lesser charges, even over the objection of the [d]efendant. But a deciding factor in the [c]ourt's decision is . . . [defendant's] clear direction that he only wants the murder charge to be submitted.

The judge's charge to the jury regarding count one therefore included only murder.

At sentencing, the State asked the court to consider aggravating factors three (risk of recidivism), six (prior criminal record), and nine (need for deterrence), as provided by N.J.S.A. 2C:44-1(a)(3), (6), (9), and impose a term of incarceration "certainly above the minimum" specifically fifty-two and a half years, with a period of parole ineligibility of forty-four and a half years. Defendant argued only aggravating factor nine applied, and asked the court to consider mitigating factors two (extent of harm unintended), three (provocation), four (excuse or justification), seven (law-abiding life), eight (circumstances unlikely to recur), nine (improbability of recidivism), and ten (likelihood of success of probationary treatment), as provided by N.J.S.A. 2C:44-1(b)(2)-(4), (7)-(10).

After reviewing the presentence report and the facts adduced at trial, the court found each of the aggravating factors urged by the State, and none of the mitigating factors argued for by defendant, were applicable. In finding aggravating factor three applied, the court considered defendant's response to the argument with McLean and determined he posed a risk of reoffending "if presented with the same situation." The court found aggravating factor six applicable, because, although defendant did not have "a serious criminal record, he did have six prior arrests," which the court afforded "some weight . . . as it relates to the character of the charges presented." The court also found factor nine was applicable, as "[t]here is a need to deter others from committing the crime of murder."

Turning to the mitigating factors argued for by defendant, the court found that "[c]learly three and four do[] not apply." Having already addressed defendant's prior record with regard to aggravating factor six, the court found mitigating factor seven inapplicable as well. Factor eight also did not apply, the court found, as it had "seen the [d]efendant act with a propensity for violence to minor situations." The court found mitigating factors "nine and ten just simply [do not] apply to a murder[ because t]here's no issue of probationary treatment."

Given the absence of mitigating factors, the court concluded the aggravating factors clearly prevailed. The court sentenced defendant to a term of thirty-five years for murder, with a thirty-year period of parole ineligibility, a term of five years on count three possession of a weapon for an unlawful purpose which merged into the murder count, and a term of eighteen months for unlawful possession of a weapon, to run consecutively.

We address first defendant's contention that the trial court clearly erred in denying his motion for a judgment of acquittal. Defendant argues the evidence presented by the State was insufficient to warrant submission to the jury, as it proved only that he and McLean fought and that McLean later died of a stab wound. Defendant suggests McLean could have fallen victim to "[a]ny number of crimes" from the time he left Webster Place to the time he was found unconscious in his vehicle. We disagree with defendant's claim of error and conclude the trial judge properly found the State presented sufficient evidence to defeat defendant's motion.

Pursuant to Rule 3:18-1, "[a]t the close of the State's case . . . the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." In deciding whether such judgment is warranted, the court must determine

whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

"If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

"We review the record de novo in assessing whether the State presented sufficient evidence to defeat an acquittal motion." State v. Dekowski, 218 N.J. 596, 608 (2014). We therefore conduct our own assessment of the evidence, applying the same standard as the trial court. See State v. Williams, 218 N.J. 576, 593-94 (2014). In making our determination, "no consideration may be given to any evidence or inferences from the defendant's case." Reyes, supra, 50 N.J. at 459.

Applying this standard, we find the evidence presented by the State was sufficient to warrant submission to a jury. Although defendant offers several alternate theories of how McLean may have suffered his fatal wound, they are not relevant to our consideration. See ibid. The State's evidence demonstrated defendant was engaged in a physical altercation with McLean, during which Campbell testified she saw defendant deliver a single punch into McLean's car. McLean's autopsy showed he died of a single stab wound to the chest, with no other injuries caused by a sharp object. Shortly after the altercation, city cameras captured a vehicle matching the description of McLean's SUV traveling from the vicinity of the altercation to the vicinity of the collision. Minutes later, McLean lost consciousness and crashed into an overpass, located mere blocks from the nearest hospital. Although she recanted at trial, Campbell told police she saw defendant holding a knife or "pointy thing" minutes after the altercation between defendant and McLean. Considering the State's evidence in its entirety, including all testimony and reasonable inferences in its favor, we find the State submitted evidence sufficient to support a jury finding guilt beyond a reasonable doubt and, therefore, to withstand defendant's motion for a judgment of acquittal.

We are equally unpersuaded by defendant's argument regarding the court's decision not to instruct the jury on the lesser-included manslaughter offenses. He argues the evidence adduced at trial could have supported a jury's finding that he caused McLean's death only recklessly that he "recklessly thrashed away at him to cut or scare him, but not to kill him." However, defendant's argument is not supported by the facts in the record or by the law.

In making our determination, we note that defendant asked that the court not instruct the jury on the lesser-included charges and that he did not object to the court's decision to limit the instruction to murder. He now claims this was error, arguing the court was required to give the instruction despite his request. We disagree, and conclude the court was not obligated to give the manslaughter instructions over defendant's objection because the facts presented at trial did not clearly indicate that a jury could convict on the lesser-included offenses.

Ordinarily, absent an objection at trial, we evaluate a challenge to jury instructions under the plain error standard. State v. Savage, 172 N.J. 374, 387 (2002) (citing R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997)).

Plain error, in the context of a jury charge, is "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[Afanador, supra, 151 N.J. at 54 (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997))].

When a defendant "invites" the error, however, a more stringent standard applies, and "relief will not be forthcoming on a claim of error by that defendant." State v. Jenkins, 178 N.J. 347, 358 (2004). A "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." Ibid. (quoting State v. Pontery, 19 N.J. 457, 471 (1955)). Like its "civil-law counterpart," judicial estoppel, "[t]he [invited-error] doctrine prevents litigants from 'playing fast and loose' with, or otherwise manipulating, the judicial process." Id. at 359 (quoting State v. Gonzalez, 142 N.J. 618, 632 (1995)). "In other words, if a party has 'invited' the error, he is barred from raising an objection for the first time on appeal." State v. A.R., 213 N.J. 542, 561 (2013). However, "[s]ome measure of reliance by the court [on the defendant's request] is necessary for the invited-error doctrine to come into play." Jenkins, supra, 178 N.J. at 359.

Here, the circumstances surrounding the judge's decision to instruct the jury on murder alone warrant the application of the invited-error doctrine. The judge's reliance upon defendant's position in reaching his decision is clear, as he initially planned to instruct the jury on the lesser-included offenses because of the fight between defendant and McLean, and changed his mind based on defendant's request. The judge recognized that "an argument can be presented that the lesser included are here," but noted that "a deciding factor in the [c]ourt's decision [wa]s . . . [defendant's] clear direction that he only want[ed] the murder charge to be submitted."

Determining the applicability of the invited-error doctrine, however, does not end our inquiry. "Even if a party has 'invited' an error, . . . courts will not bar defendants from raising an issue on appeal if the particular error . . . cut mortally into the substantive rights of the defendant . . . [or] [i]f the doctrine would cause a fundamental miscarriage of justice." A.R., supra, 213 N.J. at 562 (second and third alterations in original) (citations and internal quotation marks omitted).

"We . . . recognize . . . that, although brought about by defendant, there are errors of such magnitude that they trench directly upon the proper discharge of the judicial function." State v. Harper, 128 N.J. Super. 270, 278 (App. Div. 1974), certif. denied, 65 N.J. 574 (1974). We must, therefore, determine whether the error alleged by defendant "go[es] so plainly to the integrity of the proceedings that a new trial is the just course." State v. Macon, 57 N.J. 325, 338 (1971). "[E]rrors of this dimension may be cognizable on appeal as plain error notwithstanding their having been precipitated by a defendant at the trial level." Harper, supra, 128 N.J. Super. at 278. Thus, "[t]he inquiry in this situation calls for a close, balancing examination of the nature of the error, its impact on the trial and the jury's verdict, and the quality of defendant's motives and conduct in bringing about the error." Ibid.

The nature of the error alleged here relates to the trial court's obligation to instruct the jury on lesser-included offenses. If a defendant requests the court instruct the jury on a lesser-included offense "the trial court must give that charge if there is a rational basis in the record to do so." State v. Garron, 177 N.J. 147, 180 n.5 (2003) (citing State v. Choice, 98 N.J. 295, 298 (1985); State v. Powell, 84 N.J. 305, 317 (1980)), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). However, "[i]n the absence of such a request, the court need not sift through the record to determine whether any combination of facts would support a lesser charge." Ibid. Nevertheless, even where there is no request by defendant, the "trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Jenkins, supra, 178 N.J. at 361 (emphasis added); see also Garron, supra, 177 N.J. at 180.

"Very simply, where the facts on the record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury, and no one's strategy, or assumed (even real) advantage can take precedence over that public interest." Powell, supra, 84 N.J. at 319. Therefore, in determining whether the court has an independent obligation to instruct the jury on lesser-included offenses, the facts before the court and the elements of the charged and uncharged offenses are significant considerations.

In order to establish a defendant is guilty of murder, the State must prove a defendant purposely or knowingly caused the death of the victim. N.J.S.A. 2C:11-3(a)(1)-(2). To sustain a charge of manslaughter, however, the State must prove the defendant was only reckless in causing the death of another. N.J.S.A. 2C:11-4(a)(1), (b)(1). The distinction between reckless and aggravated manslaughter is "the difference in the degree of the risk that death will result from defendant's conduct." State v. Curtis, 195 N.J. Super. 354, 364 (App. Div.), certif. denied, 99 N.J. 212 (1984); see also State v. Grunow, 102 N.J. 133, 143 (1986). While the degree of risk required for reckless manslaughter is "a mere possibility of death," the requirement for aggravated manslaughter that "death be caused 'under circumstances manifesting extreme indifference to human life' elevates the risk level from a mere possibility to a probability." Curtis, supra, 195 N.J. Super. at 364; see also N.J.S.A. 2C:11-4(a)(1), (b)(1).

Defendant argues the trial court failed to properly analyze the law in light of the facts and, instead, made the same error as the trial court in Jenkins. There, the evidence indicated the defendant struck his victim in the head with a brick, "caus[ing] [the victim] to fall down a flight of stairs and plummet headfirst to the pavement below." Jenkins, supra, 178 N.J. at 363. Expert testimony indicated it was the fall, not the blow to the head that caused the victim's death. Id. at 364. The defendant, charged with first-degree murder, asked the court to exclude lesser-included offenses from the jury instructions and the court agreed. Id. at 359-60.

Upon review, the Court stated "[t]he pivotal question . . . [was] whether the jury could have concluded that defendant hit the victim without conscious knowledge that death was a high probability but, instead, with reckless disregard of the possibility or probability that death would occur." Id. at 363. The Court determined the trial court erred in "focus[ing] on the purposeful, knowing, and intentional nature of [the] defendant's alleged striking of the victim. . . . [rather than the] defendant's state of mind as to the risk of death." Ibid. The Court therefore reversed, finding the jury "could have found that [the] defendant consciously disregarded a known risk that created the possibility or probability that death would follow from his conduct." Id. at 364.

The facts here, however, are not analogous to Jenkins. There was no evidence presented of reckless conduct by defendant, such as testimony that defendant struggled with McLean or thrashed away at him with a knife. Instead, the medical examiner testified McLean suffered only the single knife wound that proved fatal, and Campbell testified defendant made only one punching motion into the car. The evidence, therefore, did not "clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." See Jenkins, supra, 178 N.J. at 361 (emphasis added). As a result, we conclude there was no error in the court's decision to acquiesce to defendant's request and not charge the lesser-included manslaughter offenses.

Defendant also appeals his sentence, contending the court erred in two respects in finding applicable the aggravating factors urged by the State applicable, and in sentencing him to consecutive terms of imprisonment. On the latter point, the State agrees.

The court's obligations when sentencing a defendant are clear. A sentencing court must determine which, if any, aggravating and mitigating factors apply, and balance those found applicable against one another. State v. Bieniek, 200 N.J. 601, 608 (2010); see also N.J.S.A. 2C:44-1. Once the court has balanced the applicable factors, it "may impose a term within the permissible range for the offense." Bieniek, supra, 200 N.J. at 608. "At the time sentence is imposed the [court] [must] state reasons for imposing such sentence . . . [and] the factual basis supporting [its] finding of particular aggravating or mitigating factors affecting sentence . . . ." R. 3:21-4(g).

We review criminal sentences under the "clear abuse of discretion" standard. State v. Roth, 95 N.J. 334, 363 (1984). We are bound to uphold the trial court's sentence unless

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

 
[State v. Fuentes, 217 N.J. 57, 70 (quoting Roth, supra, 95 N.J. at 364-65).]

Defendant argues the trial court erred in finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk of recidivism); six, N.J.S.A. 2C:44-1(a)(6) (extent and seriousness of defendant's prior criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (need for general and specific deterrence). This argument is without any merit.

We conclude that the judge's stated findings regarding the applicability of the aggravating factors were "based upon competent credible evidence in the record," and that the sentence imposed neither falls outside the permissible range for murder, nor "shock[s] the judicial conscience." Roth, supra, 95 N.J. at 364-65. The court did not, as defendant argues, rest its application of aggravating factor three on defendant's criminal record, rather, it found him likely to reoffend based on his violent reaction to the situation presented and the likelihood he would respond similarly in the future. See State v. Thomas, 188 N.J. 137, 154 (2006). Nor was it inconsistent for the court to apply factor six despite finding defendant's criminal record was not serious; defendant's argument in this respect confuses the applicability of a factor with the weight the court assigns that factor. See State v. Case, 220 N.J. 49, 65 (2014) ("[T]he court must qualitatively assess the relevant aggravating and mitigating factors, assigning each factor its appropriate weight."). Finally, though defendant correctly notes the court directly addressed only the need to deter others in its application of factor nine, the court implicitly found a special need to deter defendant by finding him likely to reoffend. See Thomas, supra, 188 N.J. at 153 (stating "a sentencing court's assessment of the defendant's risk of recidivism" includes analysis of aggravating factors three, six, and nine). Accordingly, we have no cause to disturb defendant's sentence based upon the court's weighing and application of the statutory factors. See Roth, supra, 95 N.J. at 363-64.

We do, however, agree with defendant's argument, which the State does not contest, that the court abused its discretion by imposing consecutive prison terms on counts one and two without articulating any reasons for doing so. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986) (providing factors courts should consider in determining whether to impose consecutive sentences); State v. Miller, 108 N.J. 112, 122 (1987) ("A statement of reasons is a necessary prerequisite for adequate appellate review of sentencing decisions."). We are, therefore, constrained to remand the matter for resentencing.

Affirmed as to defendant's conviction and sentences on each charge, but remanded for reconsideration, limited to the issue of whether a sentence of consecutive terms is warranted. We do not retain jurisdiction.

1 Sophie was never identified by investigators and did not testify at trial.

2 Although the police seized five knives from defendant's apartment, the knives were not given to Lilavois to compare to McLean's stab wound. No DNA evidence or other biological matter was found on the knives, and it is not clear from the record if they were ever fingerprinted.