STATEOF NEW JERSEY v. HASAN BRUCE

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1611-15T1

STATE OF NEW JERSEY,

              Plaintiff-Respondent,

v.

HASAN BRUCE, a/k/a
HASSAN BRUCE,

          Defendant-Appellant.
__________________________________

              Submitted January 11, 2018 – Decided January 25, 2018

              Before Judges Haas and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              13-04-1116.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Stephen W. Kirsch, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent (Sarah C. Hunt, Deputy
              Attorney General, of counsel and on the
              brief).

PER CURIAM
       Following a bench trial, the judge found defendant guilty of

first-degree aggravated manslaughter, 
N.J.S.A. 2C:11-4(a), as a

lesser-included offense of first-degree murder, 
N.J.S.A. 2C:11-

3(a)(1) and (2) (count one); and second-degree unlawful possession

of a handgun, 
N.J.S.A. 2C:39-5(b) (count four).              The judge found

defendant not guilty of first-degree conspiracy to commit murder,


N.J.S.A. 2C:5-2 and 
N.J.S.A. 2C:11-3 (count two); and second-

degree possession of a weapon for an unlawful purpose, 
N.J.S.A.

2C:39-4(a) (count three).1

       The judge sentenced defendant to eighteen years in prison on

count one, subject to the 85% parole ineligibility provisions of

the No Early Release Act, 
N.J.S.A. 2C:43-7.2, with five years of

parole supervision upon release; and to a consecutive six-year

term    on   count     four   with   a       three-year   period   of    parole

ineligibility.       This appeal followed.

       On appeal, defendant raises the following contentions:

             POINT I

             THE TRIAL JUDGE'S STATED REASONS FOR REJECTING
             THE CLAIM OF SELF-DEFENSE AT THIS BENCH TRIAL
             INDICATE A FUNDAMENTAL MISUNDERSTANDING OF THE
             LAW OF SELF-DEFENSE, AND, THUS, THE VERDICT
             FOR AGGRAV[A]TED MANSLAUGHTER MUST BE REVERSED
             AND THE MATTER REMANDED FOR TRIAL.


1
   Defendant was tried along with his brother, who faced the same
charges.    However, the judge dismissed the charges against
defendant's brother at the end of the State's case.

                                         2                              A-1611-15T1
              POINT II

              THE MATTER SHOULD BE REMANDED FOR RESENTENCING
              TO CONCURRENT TERMS.

      Our review of a judge's verdict in a non-jury case is limited.

The standard is not whether the verdict was against the weight of

the evidence, but rather "whether there is sufficient credible

evidence in the record to support the judge's determination."

State ex rel. R.V., 
280 N.J. Super. 118, 121 (App. Div. 1995).

Moreover, we are obliged to "give deference to those findings of

the   trial    judge     which   are   substantially     influenced   by     [the]

opportunity to hear and see the witnesses and to have the 'feel'

of the case, which a reviewing court cannot enjoy."                   State v.

Locurto, 
157 N.J. 463, 471 (1999) (quoting State v. Johnson, 
42 N.J. 146, 161 (1964)).

      "[T]he factual findings of the trial court are binding on

appeal     when     supported     by    adequate,      substantial,   credible

evidence."        State ex rel. W.M., 
364 N.J. Super. 155, 165 (App.

Div. 2003).       "[W]e do not disturb the factual findings and legal

conclusions of the trial judge unless we are convinced that they

are   so   manifestly      unsupported       by   or   inconsistent   with      the

competent, relevant and reasonably credible evidence as to offend

the interests of justice[.]"           Rova Farms Resort, Inc. v. Investors

Ins. Co. of Am., 
65 N.J. 474, 484 (1974) (quoting Fagliarone v.


                                         3                                 A-1611-15T1
Twp. of N. Bergen, 
78 N.J. Super. 154, 155 (App. Div. 1963)).

After   considering   these   standards,   we   discern   no    basis   for

interfering with the judge's well-developed findings, conclusions,

and disposition of the charges against defendant.

     Here, defendant admitted he shot the victim, but claimed he

did so in self-defense.       "A person may justifiably use force

against another if he [or she] 'reasonably believes that such

force is immediately necessary for the purpose of protecting

himself [or herself] against the use of unlawful force by such

other person on the present occasion.'"         State v. Galicia, 
210 N.J. 364, 389 (2012) (quoting 
N.J.S.A. 2C:3-4(a)).             "The use of

deadly force is not justifiable . . . unless the actor reasonably

believes that such force is necessary to protect himself [or

herself] against death or serious bodily harm[.]"         
N.J.S.A. 2C:3-

4(b)(2).   Moreover, the use of deadly force is not justifiable if

"[t]he actor knows that he [or she] can avoid the necessity of

using such force with complete safety by retreating . . . ."


N.J.S.A. 2C:3-4(b)(2)(b).

     Applying these principles to the facts developed at trial,

the judge properly concluded that the State disproved defendant's

claim of self-defense beyond a reasonable doubt.          Defendant and

the victim were both having a relationship with the same woman.

On the day the victim died, defendant's brother went to the

                                   4                               A-1611-15T1
victim's home and asked to speak to him.    The victim accompanied

defendant's brother to a corner where defendant was waiting.        A

witness testified that the three men were speaking normally, and

were not arguing.   When the victim returned to the house, he told

the witness that "it was dead," meaning there was no longer a

problem.

     However, defendant called the victim later that night and

argued with him. After the call ended, the victim told his friends

that he was about to fight, tucked a gun in his clothing, and left

the house.   Two of the victim's friends followed from a distance.

By this time, defendant and his brother had driven to the middle

of the block.   Defendant got out of the car.

     The victim approached defendant with his arms up and his

hands open and empty, and said, "what's up?"     Defendant put his

hand on the gun he was carrying and he and the victim began walking

toward each other. The victim asked defendant what he was reaching

for and, when the two men were face to face, the victim moved to

"push [defendant] and trie[d] to reach and [defendant] had [his]

hand on [his] gun already."   Defendant admitted he "never did see

a gun in [the victim's] hand."

     Defendant then shot the victim twice.       According to the

autopsy, the first bullet struck the victim in the base of his

neck.   Defendant shot the victim a second time in the back as he

                                 5                          A-1611-15T1
was running away.     The medical examiner testified that either of

the two shots would have proven fatal.

     Defendant testified he felt threatened because he believed

the victim "was a gangster," who sent their mutual girlfriend a

threatening text message about defendant a couple of days before

the shooting, and had posted a similar message on a social media

account.   For this reason, defendant stated he was "not just about

to sit around and let [the victim] do something to [him]."

     Based upon these facts, the judge concluded that defendant

did not have an objectively reasonable belief that deadly force

was necessary to defend himself.            In so ruling, the judge found

"[t]here can be no question that the perceived threat of the victim

reaching   for   a   gun   was   provoked    by   .   .   .   defendant's   own

provocative conduct" and that "th[e] entire sequence of events

. . . was caused by . . . defendant's conduct."               The judge noted

that defendant never saw a gun in the victim's hand and, therefore,

had "no objective[ly] reasonable basis . . . to believe he was

about to be shot by the victim."

      After reviewing the record, we conclude that the judge's

factual findings are fully supported by the record and, in light

of those facts, his legal conclusions are unassailable.                       We

therefore affirm substantially for the reasons that the judge



                                     6                                 A-1611-15T1
expressed in his well-reasoned oral opinion at the conclusion of

the trial.

     In Point II, defendant argues that his sentence was excessive.

We disagree.

     Trial judges have broad sentencing discretion as long as the

sentence is based on competent credible evidence and fits within

the statutory framework.          State v. Dalziel, 
182 N.J. 494, 500

(2005).      Judges    must   identify     and   consider       "any     relevant

aggravating and mitigating factors" that "are called to the court's

attention[,]"    and   "explain    how    they   arrived   at    a     particular

sentence."     State v. Case, 
220 N.J. 49, 64-65 (2014) (quoting

State v. Blackmon, 
202 N.J. 283, 297 (2010)).              "Appellate review

of sentencing is deferential," and we therefore avoid substituting

our judgment for the judgment of the trial court.                    Id. at 65;

State v. O'Donnell, 
117 N.J. 210, 215 (1989); State v. Roth, 
95 N.J. 334, 365 (1984).

     We are satisfied the judge made findings of fact concerning

aggravating and mitigating factors that were based on competent

and reasonably credible evidence in the record, and applied the

correct sentencing guidelines enunciated in the Code, including

the imposition of consecutive sentences.           Accordingly, we discern

no basis to second-guess the sentence.

     Affirmed.

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