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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3221-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
J.Y.D.,
Defendant-Appellant.
________________________________
Argued October 2, 2017 – Decided November 9, 2017
Before Judges Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
12-05-1124.
Rebecca Gindi, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Susan Brody, Deputy Public Defender, of
counsel and on the briefs; Ms. Gindi, on the
briefs).
Melinda A. Harrigan, Assistant Prosecutor,
argued the cause for respondent (Damon G.
Tyner, Atlantic County Prosecutor, attorney;
Ms. Harrigan, of counsel and on the brief).
PER CURIAM
Defendant, J.Y.D. (defendant), appeals from his November 14,
2014 judgment of conviction after pleading guilty to first-degree
robbery,
N.J.S.A. 2C:15-1, and second-degree sexual assault,
N.J.S.A. 2C:14-2(c)(1). Defendant argues the family part judge's
decision to waive him into adult court was error because the
likelihood for rehabilitation outweighed the reasons for the
waiver. He further argues his sentence must be vacated as the
trial court did not apply the guidelines set forth in State v.
Yarbough,
100 N.J. 627 (1985), cert. denied,
475 U.S. 1014,
106 S. Ct. 1193,
89 L. Ed. 2d 308 (1986), failed to account for
defendant's age and attendant circumstances, and failed to
properly weigh the aggravating and mitigating factors. We affirm.
We discern the following facts from the record. On June 9,
2010, the victim, a twenty-four year old mother, was returning
from work and driving home to Atlantic City. While stopped at a
red light, defendant, age fifteen, and an accomplice, R.J., jumped
into her car. Defendant entered through the rear passenger door,
and R.J. entered through the rear driver's side door and pointed
a gun at her saying, "[i]f you want to live you'll do as I say."
After defendant instructed the victim to move the car to a
more discreet location, R.J. demanded money, but she did not have
any. She offered her bank card, cell phone, and eventually, her
car. R.J. declined the car.
2 A-3221-14T4
Defendant instructed the victim to again move the car, and
asked her if she was going to call the police. Once they were in
a darker location, R.J. handed the gun to defendant, who continued
to point it at her head. R.J. wanted to "get[] something out of
this[,]" and demanded the victim strip and to get on top of him.
Defendant then exclaimed, "Fuck this. I'm getting something out
of this, too." They forced the victim to have vaginal intercourse
with R.J. and perform oral sex on defendant simultaneously. Both
defendants ejaculated into her, and she spit defendant's semen
onto her sweatshirt.
Defendant ordered the victim to drive them to a sub shop.
While she was driving, defendant repeatedly asked her if she was
going to notify the police. She responded no, and that she was
going home to shower. Defendant and R.J. exited the vehicle and
"clapped each other up," laughed, and walked down Mississippi
Avenue towards Fairmont Avenue.
The victim immediately drove to the public safety building
and entered the Detective Bureau and reported two males had raped
her. An ambulance transported her to the hospital.
Police canvassed the area where the incident occurred and
recovered video surveillance from a bar showing the two suspects
entering the victim's car. A confidential informant helped to
identify R.J. and defendant. The victim identified defendant as
3 A-3221-14T4
the male who was who pointed the gun at her head while she performed
oral sex on him and vaginal intercourse with R.J. Both were
arrested.
On June 21, 2010, a juvenile delinquency complaint charged
defendant with second-degree possession of a weapon for an unlawful
purpose,
N.J.S.A. 2C:39-4(A); second-degree unlawful possession
of a weapon,
N.J.S.A. 2C:39-5(B); fourth-degree aggravated
assault,
N.J.S.A. 2C:12-1(B)(4); second-degree conspiracy,
N.J.S.A. 2C:5-2(A)(1); first-degree carjacking,
N.J.S.A. 2C:15-
2(A)(2); first-degree kidnapping,
N.J.S.A. 2C:13-1(B)(1); first-
degree robbery,
N.J.S.A. 2C:15-1(A)(2); and first-degree
aggravated sexual assault,
N.J.S.A. 2C:13-1(B)(1).
On July 15, 2010, the State moved to waive jurisdiction from
the family part to the adult court. On October 6, 2010, the family
part judge conducted a waiver hearing.
The court heard testimony from Detective Stacey Herrerias,
who was present at the time the victim arrived at the public safety
building and described the subsequent investigation. Following
the detective's testimony, the court made the initial finding that
defendant was above the age of fourteen at the time of the offense,
and the acts alleged by the victim "fit the allegations or the
complaints that [had] been filed." The court found the evidence
and testimony proffered supported a finding that probable cause
4 A-3221-14T4
existed as to the crimes of conspiracy, carjacking, kidnapping,
robbery, and aggravated sexual assault.
Having made the initial findings, the burden shifted to
defendant to show the probability of his rehabilitation prior to
age nineteen and that potential rehabilitation outweighed the
waiver. On November 3, 2011, defendant called Rochelle Andres,
Acting Assistant Superintendent and social worker at the
Harborfields Detention Center for the New Jersey Juvenile Justice
Commission. Andres worked with defendant for more than 500 days
at Harborfields. She noted when defendant first arrived, he was
"terrible," regularly acting out and causing disruptions to the
rest of the class. Andres further testified when kept away from
R.J., defendant's conduct generally improved, however, there were
still times he caused disruptions. Andres provided the court a
letter in support of defendant.
Defendant presented Dr. Elliott L. Atkins, Ed.D., who
testified defendant could be rehabilitated within the statutory
timeframe by the juvenile justice system. After evaluating
defendant, Dr. Atkins found him remorseful and genuine. Dr. Atkins
also described defendant's chaotic family history and his history
of attachment, behavioral, and attention deficit disorders, which
heavily attributed to defendant's psychological struggles. Dr.
5 A-3221-14T4
Atkins believed defendant possessed the rehabilitative nature to
succeed.
The State initially retained Dr. Phillip Witt, Ph.D., but
sought the services of another expert, Dr. Louis B. Schlesinger,
Ph.D., after Dr. Witt opined defendant was amenable to
rehabilitation. Dr. Schlesinger testified after administering his
own tests and reviewing defendant's history, that it was his
opinion defendant was unable to be rehabilitated within the
requisite timeframe. Dr. Schlesinger noted defendant failed to
accept the consequences of his actions. Furthermore, Dr.
Schlesinger noted that although R.J., not defendant, was the
dominant actor in the incident, defendant still participated.
On April 13, 2012, the court found, in a separate written
opinion, the State met its burden to waive jurisdiction, pursuant
to
N.J.S.A. 2A:4A-26(a)(1) and (2). The court also found there
was a probability defendant could be rehabilitated in accordance
with the time requirements of
N.J.S.A. 2A:4A-26, but that
ultimately his prospects for rehabilitation did not outweigh the
reason for waiver. The court considered the testimony as well as
defendant's background, noting the improvement in defendant's
behavior during the years he lived with his father. The court
further noted defendant's two years at Harborfields and increased
maturity supported a finding of potential rehabilitation.
6 A-3221-14T4
However, the court considered five factors, outlined in State
in the Interest of C.A.H. and B.A.R.,
89 N.J. 326, 344-45 (1982),
and determined that "clearly, grave offenses were committed[,]
. . . [t]he acts perpetrated upon the victim were particularly
heinous, and are of the type the legislation and the [c]ourts have
advised engender the need for deterrence," and that defendant's
actions were deliberate. The Family Part judge granted the State's
motion, finding the State met the probable cause threshold to
waive jurisdiction and defendant's prospects for rehabilitation
did not substantially outweigh the reason for waiver.
On May 10, 2012, an Atlantic County grand jury indicted both
defendant and R.J.1 The charges against defendant included two
counts of first-degree kidnapping,
N.J.S.A. 2C:13-1(b); second-
degree conspiracy,
N.J.S.A. 2C:5-2; two counts of first-degree
carjacking, N.J.S.A. 2C:15-2(a)(2)&(4); first-degree conspiracy,
N.J.S.A. 2C:5-2; two counts of first-degree robbery,
N.J.S.A.
2C:15-1; second-degree conspiracy,
N.J.S.A. 2C:5-2; four counts
of first-degree aggravated sexual assault,
N.J.S.A. 2C:14-2(a);
second-degree conspiracy,
N.J.S.A. 2C:5-2; second-degree
possession of a weapon for unlawful purposes,
N.J.S.A. 2C:39-4(a);
third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b);
1
Though defendant and R.J. were both listed on the indictment,
both were tried separately, and R.J. is not a party to this appeal.
7 A-3221-14T4
third-degree conspiracy,
N.J.S.A. 2C:5-2; and fourth-degree
aggravated assault,
N.J.S.A. 2C:12-1(b)(4).
On November 22, 2013, defendant pled guilty to first-degree
robbery and second-degree sexual assault. As part of the plea
agreement, the State recommended an aggregate sentence of eighteen
years, subject to the No Early Release Act (NERA),
N.J.S.A. 2C:43-
7.2, which included a ten-year sentence for the first-degree
robbery charge and an eight-year consecutive sentence for the
second-degree sexual assault charge.
On November 14, 2014, defendant, then age nineteen, was
sentenced to an aggregate eighteen-year prison term, subject to
parole ineligibility under NERA. Defendant was also subject to
mandatory parole supervision and Megan's Law consequences. The
other charges were dismissed. This appeal followed.2
2 On April 29, 2016, defendant moved to supplement the appellate
record to include a videotaped statement made by the victim at the
police station on the day following the events in question. By
order of June 3, 2016, the motion was deferred to the merit panel.
We granted the motion and reviewed the videotape for the sake of
completeness.
Defendant argues the State manipulated the record by relying
on Detective Herrerias' hearsay testimony, rather than the
videotape, because the videotape account offers a more reliable
and accurate account of the incident.
Notably, defendant provides no explanation about when the
defense came into possession of the videotape and why it was not
part of the record. In particular, defendant provides no
explanation about why Detective Herrerias was not cross-examined
about any alleged inconsistencies between her testimony and the
8 A-3221-14T4
Defendant raises the following arguments on appeal:
POINT I.
THE COURT ERRED IN WAIVING J.D. TO ADULT COURT BECAUSE
THE PROBABILITY OF HIS REHABILITATION PRIOR TO THE AGE
OF NINETEEN SUBSTANTIALLY OUTWEIGHED THE REASONS FOR THE
WAIVER.
A. Legal Framework.
B. The Family Court Failed to Apply Correct Legal
Standards Resulting in a Clear Error Judgment.
1. The Family Court Erred by Failing to Provide Any
Reasons as to How J.D.'s Waiver Would Deter Crime.
2. The Family Court Incorrectly Analyzed the
Gravity of the Crime and Deliberateness Prongs of
the Test Established in C.A.H.
3. Application of Proper Legal Principles Indicates
that Waiving J.D. to Adult Court is Unnecessary to
Specifically Deter Him.
4. Application of Proper Legal Principles Indicates
that Subjecting J.D. to the More Severe Sentences
in Adult Court is Highly Unlikely to Deter
Similarly Situated Individuals.
C. J.D.'s Trial Counsel Was Ineffective, Resulting in
Prejudice to J.D.
POINT II.
J.D.'S EIGHTEEN-YEAR SENTENCE MUST BE VACATED AND THE
MATTER REMANDED BECAUSE THE COURT FAILED TO APPLY THE
YARBOUGH GUIDELINES, FAILED TO CONSIDER J.D.'S AGE-15
AT THE TIME OF THE OFFENSE, AND FAILED TO PROPERLY ASSESS
AGGRAVATING AND MITIGATING FACTORS.
videotaped statement. More significantly, defendant does not
argue, nor do we discern, any errors on the part of either the
Family Part judge or the sentencing judge in not considering the
videotape.
9 A-3221-14T4
A. The Court Failed To Conduct A Yarbough Analysis Before
Imposing Consecutive Sentences. Had It Properly Done
So, It Would Have Found That The Factors Set Forth in
Yarbough Counsel Against Imposition Of Consecutive
Sentences.
B. The Court Failed To Consider J.D.'s Age And Attendant
Circumstances During Sentencing.
C. The Court Failed To Properly Weigh Aggravating and
Mitigating Factors.
I.
We review juvenile waiver cases under an abuse of discretion
standard. State in re V.A.,
212 N.J. 1, 25-26 (2012). We consider
"whether the correct legal standard has been applied, whether
inappropriate factors have been considered, and whether the
exercise of discretion constituted a 'clear error of judgment' in
all of the circumstances." State v. R.G.D.,
108 N.J. 1, 15 (1987)
(quoting State v. Humphreys,
89 N.J. 4, 13 (1982)); State in
Interest of J.F.,
446 N.J. Super. 39, 51-52 (App. Div. 2016).
Our review requires that "1) findings of fact be grounded in
competent, reasonably credible evidence, 2) correct legal
principles be applied, and 3) the judicial power to modify a trial
court's exercise of discretion will be applied only when there is
a clear error of judgment that shocks the judicial conscience."
J.F., supra,
446 N.J. Super. at 52. We defer to the family part's
expertise, but reverse if "the trial court has erroneously applied
10 A-3221-14T4
the governing principles of law[.]" In re State ex rel. A.D.,
212 N.J. 200, 215 (2012); J.F., supra,
446 N.J. Super. at 52.
At the time of defendant's crime,
N.J.S.A. 2A:4A-26
controlled juvenile waivers.3 See State in Interest of N.H.,
226 N.J. 242, 248-49 (2016). The statute provided, in pertinent part,
that:
On a motion by the prosecutor, a court shall,
without the consent of the juvenile, waive
jurisdiction over a case . . . if it finds,
after hearing, that:
(1) The juvenile was 14 years of age or older
at the time of the charged delinquent act; and
(2) There is probable cause to believe that
the juvenile committed a delinquent act or
acts which if committed by an adult would
constitute:
(a) Criminal homicide other than death
by auto, strict liability for drug
induced deaths, pursuant to [N.J.S.
2C:35-9], robbery which would constitute
a crime of the first degree, carjacking,
aggravated sexual assault, sexual
assault, aggravated assault which would
constitute a crime of the second degree,
kidnapping, aggravated arson, or gang
criminality . . . .
[N.J.S.A. 2A:4A-26.]
If the court finds both elements are met, then it must engage
in further analysis:
3
This statute was repealed and replaced by
N.J.S.A. 2A:4A-26.1,
effective on March 1, 2016.
11 A-3221-14T4
If the juvenile can show that the probability
of his rehabilitation by the use of the
procedures, services and facilities available
to the court prior to the juvenile reaching
the age of 19 substantially outweighs the
reasons for waiver, waiver shall not be
granted. . . .
[N.J.S.A. 2A:4A-26(e).]
When a defendant demonstrates the potential for
rehabilitation by age nineteen, "the court must then determine
whether the prospects for rehabilitation overcome the need for
deterrence in the given case." C.A.H., supra,
89 N.J. at 338-39.
Thus, the court balances the defendant's rehabilitation against
deterrence of crime. The deterrence concept is twofold: whether
the punishment will dissuade the individual offender from
committing the criminal acts again and whether the punishment will
discourage others from committing similar offenses. Id. at 334-
35. Such analysis must account for the following factors: (1) the
commission of a grave offense; (2) the deliberateness of conduct;
(3) an older juvenile offender; (4) the offender's past record of
infractions; (5) and the offender's background of delinquency and
exposure to the juvenile justice system. Id. at 344-45.
Here, the court found defendant was fifteen years and seven
months old at the time of the alleged offenses and probable cause
existed that he committed the alleged offenses. These findings
are entitled our deference.
12 A-3221-14T4
The court engaged in the next level of analysis and evaluated
the evidence and testimony presented by both parties at the
hearings, including expert testimony. The court found there was
a probability defendant could be rehabilitated by age nineteen,
that defendant's behavior had improved while he was at
Harborfields, and there was evidence of increasing maturity.
The court then balanced defendant's rehabilitation against
deterrence, finding defendant's rehabilitation did not outweigh
the reason for the waiver. See ibid. Specifically, the court
found grave offenses present as defendant was charged with
committing five of ten crimes characterized as waivable offenses
pursuant to
N.J.S.A. 2A:4A-26(2)(a).
Based upon the testimony of Dr. Atkins and Dr. Schlesinger,
as well as testimony from the victim, the court found defendant
"acted with deliberateness of conduct and purpose with respect to
the offenses for which he has been charged." The court found
defendant was of at least average intelligence and free will, and
although reluctant, acted at his own behest.
The third factor, an older juvenile offender, did not apply,
since defendant was fifteen at the time of the alleged offenses.
As to the fourth factor and fifth factors, the court found
defendant's past record showed a negligible record of infractions
and some exposure to the juvenile justice system.
13 A-3221-14T4
We reject defendant's assertion that the court evaluated the
C.A.H. factors without consideration of how the waiver promotes
individual deterrence or general deterrence, and failed to provide
a required statement of reasons.
In balance, the court found defendant's potential for
rehabilitation did not outweigh the reasons for the waiver and
deterrence. We cannot say this was an abuse of the court's
discretion.
Defendant asserts the court incorrectly analyzed the gravity
of the crime and deliberateness prongs of C.A.H., supra,
89 N.J.
at 344-45, and engaged in "double counting," placing additional
emphasis on the elements of the "heinous" crimes committed. He
asserts his "conduct was [not] heinous beyond the elements of the
crimes themselves," arguing he tried to "extricate himself from
the situation" and was less culpable than R.J.
The gravity of the crime prong is "perhaps the most obvious
and potent factor in the favor of deterrence[.]" C.A.H., supra,
89 N.J. at 345. Here, the court made a finding based on substantial
credible evidence there was probable cause to believe defendant
pointed a gun at the victim, pressured her not go to the police,
and ejaculated into her mouth while she was being raped by R.J.
Defendant acted in a manner beyond that required for a conviction
on the charged offenses, and imposed excessive violence on the
14 A-3221-14T4
victim. Cf. State v. Carey,
168 N.J. 413, 425-26 (2001); State
v. Dunbar,
108 N.J. 80, 96-97 (1987); State v. Noble,
398 N.J.
Super. 574, 599 (App. Div. 2008).
As to the second prong, defendant contends his acts were not
purposeful or deliberate conduct. We disagree. The court found
defendant acted with deliberateness, reasoning that he was of
average intelligence and free will, agreed to robbing someone,
allegedly walked away "high-fiving" his co-conspirator, and there
was sufficient evidence in the record to infer defendant knew
about the gun.
Deliberate conduct is volitional and nonimpulsive behavior.
C.A.H., supra,
89 N.J. at 335. Perhaps defendant did not set out
with deliberate action to sexually assault the victim, and may
have only acted in the moment. However, the record demonstrates
defendant knew he and R.J. planned to carjack and rob someone
using a gun. He knew or should have known that such actions would
result in additional danger. Thus, defendant acted with
deliberateness in the inception of his actions. Moreover, the two
targeted a vulnerable victim, which shows a degree of planning.
Defendant next argues the court erred in waiving him to adult
court under the premise of individual deterrence. Defendant argues
subjecting him to the more severe sentences in adult court is
highly unlikely to deter similarly situated individuals, because
15 A-3221-14T4
juveniles are less likely to consider punishment when making
decisions, and general deterrence, divorced from individual
deterrence, has insignificant penal value. Both of these arguments
are without merit.
Defendant emphasizes that juveniles lack maturity, are less
likely to consider punishment, and argues the court failed to
engage in an analysis of the penal value and deterrence. Defendant
provides no support for the first two assertion. Furthermore,
when criminal conduct is of "'pressing public' concern," courts
"should give 'priority to punishment as a deterrence to others and
as an aid to law enforcement.'" State v. Onque,
290 N.J. Super.
578, 586 (App. Div. 1996) (quoting C.A.H., supra,
89 N.J. at 336).
Rehabilitation is "more appropriately reserved for cases involving
'relatively minor antisocial conduct of juveniles[,]'" ibid.
(quoting C.A.H., supra,
89 N.J. at 337), not "for juveniles who
have committed serious offense," when "the range of discretion for
courts to balance deterrence and rehabilitation is greatly
reduced." Ibid. (quoting State v. Scott,
141 N.J. 457, 472
(1995)).
"Protection of the public is not limited to ensuring society's
safety or physical security from the offender; rather, deterrence
is a relevant factor in its objective of preventing future criminal
conduct by both the juvenile and others." R.G.D., supra, 108 N.J.
16 A-3221-14T4
at 7 (citing C.A.H., supra,
89 N.J. at 334). Here, such punishment
is aimed at the general population of individuals who commit
heinous acts similar to those of the defendant. Defendant did not
only commit these crimes, but also appreciated the criminal nature
of his actions.
II.
Defendant argues his consecutive eighteen-year sentence must
be vacated because the court did not apply the guidelines set
forth in State v. Yarbough, supra.4 Defendant argues the
4
Though there are no statutorily set rules for imposing
consecutive sentences, the Court, in Yarbough, adopted six
criteria for such situations:
(1) there can be no free crimes in a system
for which the punishment shall fit the crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;
(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, . . . including whether or not:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of
violence or threats of violence;
(c) the crimes were committed at
different times or separate places,
rather than being committed so closely
17 A-3221-14T4
sentencing court did not account for defendant's age and attendant
circumstances, and did not properly weigh the aggravating and
mitigating factors. Our review of a criminal sentence is governed
by the "clear abuse of discretion" standard. State v. Roth,
95 N.J. 334, 363 (1984). We consider whether the sentencing
guidelines were violated, whether the aggravating and mitigating
factors were determined based upon credible evidence within the
record, and whether the sentence shocks the judicial conscience.
in time and place as to indicate a single
period of aberrant behavior;
(d) any of the crimes involved multiple
victims;
(e) the convictions for which the
sentences are to be imposed are numerous;
(4) there should be no double counting of
aggravating factors;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense; and
(6) there should be an overall outer limit on
the cumulation of consecutive sentences for
multiple offenses not to exceed the sum of the
longest terms (including an extended term, if
eligible) that could be imposed for the two
most serious offenses.
[Yarbough, supra,
100 N.J. at 643-44
(footnotes omitted); see also State v. Zuber,
227 N.J. 422, 429 (2017).]
18 A-3221-14T
4 Id. at 364-65. Sentences entered into in accordance with
negotiated plea agreements are presumed reasonable. State v.
Fuentes,
217 N.J. 57, 70-71 (2014).
Defendant contends, under Yarbough, proper application of the
required analysis, before imposing consecutive sentences, would
have prevented defendant's current sentence. This argument is
without merit.
Courts "may impose consecutive sentences even though a
majority of the Yarbough factors support concurrent sentences."
Carey, supra,
168 N.J. at 427-28; see also State v. Swint,
328 N.J. Super. 236, 264 (App. Div.) (holding that concurrent sentences
were not mandated even where the crimes were connected by a "unity
of specific purpose, . . . were somewhat interdependent of one
another," and were both committed in a short time frame), certif.
denied,
165 N.J. 492 (2000). Our courts recognize that "there
should be no free crimes[.]" Swint, supra,
328 N.J. Super. at
264.
Additionally, sentencing courts must provide a separate
statement of reasons for imposing consecutive sentences, or risk
a remand for resentencing. State v. Miller,
108 N.J. 112, 122
(1987). However, we may affirm a consecutive sentence "where the
facts and circumstances leave little doubt as to the propriety of
the sentence imposed." State v. Jang,
359 N.J. Super. 85, 97-98
19 A-3221-14T4
(App. Div.), certif. denied,
177 N.J. 492 (2003). Thus, a sentence
need not be modified or remanded if it is not "clearly mistaken."
Id. at 98 (quoting State v. Kromphold,
162 N.J. 345, 355 (2000)).
Here, as in Jang, the sentencing court did not expressly
explain why it imposed consecutive sentences. However, defendant
has not shown the sentencing court was "clearly mistaken." The
attendant "facts and circumstances leave little doubt" about the
sentence imposed. Id. at 97-98.
The prosecutor provided the context of defendant's crimes and
negotiated sentences to the sentencing court. Furthermore, the
court reasoned, on the record, that taking into account all the
evidence and testimony provided, including the horrid consequences
suffered by the victim, the plea agreement was fair to all parties.
Finally, and perhaps most importantly, defendant entered into this
plea agreement, knowing full well about the consecutive sentences.
As such, the sentencing court's rationale is indirectly
ascertained, and there is no reason to remand. See Miller, supra,
205 N.J. at 129-30 ("[S]entences can be upheld where . . . [w]e
can safely 'discern' the sentencing court's reasoning.").
We reject the assertion the court did not consider defendant's
age and attendant circumstances, including his background, mental,
and emotional development as required by Miller v. Alabama,
567 U.S. 460, 476-77,
132 S. Ct. 2455, 2467,
183 L. Ed. 2d 407, 422
20 A-3221-14T4
(2012). See Graham v. Florida,
560 U.S. 48, 68,
130 S. Ct. 2011,
2026,
176 L. Ed. 2d 825, 842-43 (2010); see also, Roper v. Simmons,
543 U.S. 551, 569-71,
125 S. Ct. 1183, 1195-96,
161 L. Ed. 2d 1,
21-22 (2005). These cases limit the possible sentences imposed
upon juveniles, Zuber, supra,
277 N.J. at 438-39, and all dealt
with juvenile defendants who had either been sentenced to capital
punishment, or under sentencing schemes that require life
imprisonment without possibility of parole. Here, defendant was
sentenced, pursuant to a plea agreement, to a maximum imprisonment
of eighteen years – even less when considering NERA. Moreover,
the sentencing court clearly accounted for defendant's age and
background, either by notice from the prosecutor or raised in its
own reasoning.
Finally, defendant argues the sentencing court did not
properly weigh the aggravating and mitigating factors. In
reviewing such arguments, we affirm if the trial court properly
identified and balanced the factors that are supported by competent
credible evidence. State v. O'Donnell,
117 N.J. 210, 215-16
(1989). Here, the sentencing judge noted a presumption of
imprisonment for the two counts within the purview of the plea
agreement. He then found that aggravating factors one, three, and
nine, of
N.J.S.A. 2C:44-1(a), applied.
21 A-3221-14T4
Defendant contends that the court did not specify the facts
supporting aggravating factor one, which considers "the severity
of the defendant's crime, 'the single most important factor in the
sentencing process,' assessing the degree to which defendant's
conduct has threatened the safety of its direct victims and the
public." State v. Lawless,
214 N.J. 594, 609 (2013) (internal
citations omitted) (quoting State v. Hodge,
95 N.J. 369, 378-79
(1984)). The record reflects the court found the prosecutor's
summary credible, and adopted it accordingly. Furthermore, the
court again noted the pain and struggle the victim endured. The
heinous nature of defendant's crime is apparent in the record.
Regarding aggravating factor three, the risk that defendant
will commit another offense, the court determined although
defendant did not have a prior history of offenses, there was
evidence within the record to support re-offending, including
defendant's lack of remorse and minimization of his role.
The court also found aggravating factor nine, the need for
deterrence, existed. In this regard, the court determined that
the entire sentence was "ultimately about" deterrence. This entire
record, notably the juvenile waiver, supports this finding.
Finally, the court found mitigating factor seven existed, as
the adverse to defendant's lack of previous criminal activity.
The court then determined that "the aggravating factors clearly
22 A-3221-14T4
preponderate[.]" We cannot say the sentence imposed here "shocks
the judicial conscience." O'Donnell, supra,
117 N.J. at 216.
Finally, defendant claims his trial counsel was ineffective,
resulting in prejudice to him. Because defendant's ineffective
assistance claim would be more appropriately addressed in a
separate post-conviction relief appeal we do not address it here.
See State v. Preciose,
129 N.J. 451, 459-60 (1992).
Affirmed.
23 A-3221-14T4
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