STATE OF NEW JERSEY v. LAWRENCE KING
Annotate this CaseNOT 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-3326-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
LAWRENCE KING,
Defendant-Appellant.
_______________________________
Submitted May 9, 2017 – Decided April 30, 2018
Before Judges Ostrer, Leone, and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
12-09-2500.
Joseph E. Krakora, Public Defender, attorney
for appellant (Robert Carter Pierce,
Designated Counsel, on the brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Nancy P. Scharff,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Lawrence King was convicted by a jury of various
weapons offenses and sentenced to nine years in prison. He appeals
his March 4, 2015 judgment of conviction. We affirm.
I.
The following evidence was elicited at the jury trial before
Judge Richard F. Wells. Investigator John Collins of the New
Jersey Division of Criminal Justice was involved in an undercover
investigation into the illegal sale of firearms. Collins first
met defendant through a confidential informant, who was being paid
to work on behalf of law enforcement. In September 2011, Collins
had several conversations with defendant regarding the sale of a
handgun. On September 28, 2011, defendant sold a handgun with a
defaced serial number to Collins while being audio- and video-
recorded. In January 2012, Collins was again in contact with
defendant with regard to the sale of additional weapons. On
January 18, 2012, defendant handed an assault rifle to Collins and
was arrested.
Based on the handgun sale, defendant was charged with second-
degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b);
fourth-degree unlawful possession of a defaced firearm,
N.J.S.A.
2C:39-3(d); and fourth-degree unlawful disposition of a defaced
firearm,
N.J.S.A. 2C:39-9(e). Based on the assault rifle sale,
the charges were amended to third-degree unlawful possession of a
2 A-3326-14T1
rifle,
N.J.S.A. 2C:39-5(c); and fourth-degree disposition of a
weapon,
N.J.S.A. 2C:39-9(d).
In addition, based on a sale of a shotgun on or around August
28, 2012, defendant was charged with third-degree unlawful
possession of a shotgun,
N.J.S.A. 2C:39-5(c)(1); third-degree
unlawful possession of a sawed-off shotgun,
N.J.S.A. 2C:39-3(b);
and third-degree unlawful disposition of a sawed-off shotgun,
N.J.S.A. 2C:39-9(b). The State dismissed those charges before
trial.
On the first day of trial, the jury heard testimony from
Collins, Special Agent Sara Coughlin, who testified primarily
regarding the chain of custody of the firearms, and defendant, who
presented the defense of entrapment. The jury heard recordings
from the September 2011 and January 2012 conversations between
Collins and defendant. The jury also reviewed the audio and video
recordings from the September 28, 2011 handgun sale. The January
18, 2012 rifle sale, however, was not recorded.
On the second day of trial, a Friday, the jury heard closing
arguments and the court's jury charge. Jury deliberations
commenced around 1:00 p.m. At 2:40 p.m., the jury submitted the
following question: "If entrapment are other charges dismissed?"
After some discussion with counsel and research, the trial court
responded that if defendant proved entrapment, the jury must find
3 A-3326-14T1
him not guilty. At 2:53 p.m., the trial court received a note
stating: "We cannot come to a decision." The court noted that it
"essentially got this note from the jury virtually almost by the
time they got back to the jury room with regard to the answer to
their initial question," that the jury had deliberated for less
than two hours, and that it was a "usefully insufficient time to
basically deliberate." The court responded by giving the jury the
charge adopted in State v. Czachor,
82 N.J. 392 (1980), and
embodied in the Model Jury Charge (Criminal), "Judge's
Instructions On Further Jury Deliberations" (approved Jan. 14,
2013):
It is your duty as jurors to consult with one
another and to deliberate with a view to
reaching an agreement if you can do so without
violence to individual judgment. Each of you
must decide the case for yourself, but do so
only after an impartial consideration of the
evidence with your fellow jurors. In the
course of your deliberations do not hesitate
to reexamine your own views and change your
opinion if convinced that it is erroneous, but
do not surrender your honest conviction as to
the weight or effect of evidence solely
because of the opinion of your fellow jurors
or for the mere purpose of returning a
verdict. You are not partisans, you are
judges, you are judges of the fact[s].
The trial court asked the jury to continue its deliberations.
At 3:45 p.m., the court received a third note from the jury,
stating: "Several members of the panel have indicated they will
4 A-3326-14T1
not change their mind, so we cannot come to a unanimous verdict."
The court discussed the note with counsel. The court noted that
while the trial was brief, due to the entrapment defense, this was
"a complex case" with two burdens of proof and an unusual verdict
sheet, and "a complex analysis that the jury needs to engage in."
The court also noted the jury "still ha[d]n't even deliberated for
three hours." The prosecutor thought that "any further instruction
from the Court to continue deliberations would be viewed by a
reviewing court as coercive," and that "probably the better cause
is to declare a mistrial." Defense counsel agreed.
At 4:19 p.m., in the midst of the trial court's discussion
of the third note with counsel, a fourth note was received from
the jury asking: "Can we view the video and audio" recordings
relating to the handgun sale. Defendant objected to consideration
of the question and said a mistral was required. The court noted
the jury sent this follow-up note with "no prodding whatsoever,"
suggesting the situation was not "clearly intractable."
Accordingly, at 4:25 p.m., the court said to the jurors he thought
the appropriate course was "to ask you to return to court Monday
and continue your deliberations. All right?" In a fifth note,
the jury asked if it would "be able to view the video/audio of
[the handgun sale] on Monday?" Court and counsel agreed they
could.
5 A-3326-14T1
On Monday, the trial court denied defendant's renewed request
for a mistrial. The audio and video recordings of the handgun
sale were played for the jury. After deliberating for about an
hour, the jury found defendant guilty of the three offenses based
on the sale of the handgun. The jury found defendant not guilty
of the two counts regarding the sale of the rifle.
The trial court denied defendant's motion for a new trial.
The court sentenced defendant to nine years' imprisonment, with
four years of parole ineligibility, for second-degree unlawful
possession of a handgun,
N.J.S.A. 2C:39-5(b), and concurrent
eighteen-month terms for fourth-degree unlawful possession of a
defaced firearm,
N.J.S.A. 2C:39-3(d), and fourth-degree unlawful
transport of a defaced firearm,
N.J.S.A. 2C:39-9(e).
Defendant argues the following on appeal:
POINT I – THE TRIAL COURT ERRED BY NOT ORDERING
A MISTRIAL AFTER THE JURY'S SECOND NOTE
DECLARING A DEADLOCK AND BY FAILING TO
PROPERLY INQUIRE OF THE JURY WHETHER FURTHER
DELIBERATIONS WOULD BE BENEFICIAL OR FUTILE.
POINT II – THE CONVICTION MUST BE REVERSED
BECAUSE THE TRIAL COURT'S ERRONEOUS JURY
INSTRUCTIONS LED TO AN INCONSISTENT VERDICT.
POINT III – MR. KING WAS DEPRIVED OF A FAIR
TRIAL DUE TO THE STATE'S DISCOVERY VIOLATION.
(Not Raised Below)
POINT IV – THE SENTENCE IMPOSED UPON MR. KING
WAS MANIFESTLY EXCESSIVE.
6 A-3326-14T1
II.
Defendant argues the trial court erred by giving the model
charge quoted above after the jury's second note, and by not
ordering a mistrial after the jury's third note. We must hew to
our standard of review. "The grant of a mistrial is an
extraordinary remedy[.]" State v. Yough,
208 N.J. 385, 397 (2011).
"Whether an event at trial justifies a mistrial is a decision
'entrusted to the sound discretion of the trial court.' Appellate
courts 'will not disturb a trial court's ruling on a motion for a
mistrial, absent an abuse of discretion that results in a manifest
injustice.'" State v. Smith,
224 N.J. 36, 47 (2016) (citations
omitted). Similarly, the "determination as to whether a Czachor
charge is warranted" is left to the "'sound discretion'" of the
trial court, and may be reversed only for an abuse of discretion.
State v. Ross,
218 N.J. 130, 144 (2014) (quoting Czachor,
82 N.J.
at 407).
In Czachor, our Supreme Court "provided guidance to trial
courts confronted with a jury's declaration that its deliberations
have progressed to an impasse." Ross,
218 N.J. at 143. The Court
"adopted the model charge suggested by the American Bar
Association," which was subsequently included as Model Jury Charge
(Criminal), "Judge's Instructions on Further Jury Deliberations"
(Jan. 14, 2013). Id. at 144.
7 A-3326-14T1
In deciding whether to give a Czachor charge "[w]hen a jury
communicates a deadlock, trial courts 'should be guided in the
exercise of sound discretion by such factors as the length and
complexity of trial and the quality and duration of the jury's
deliberations.'" Ibid. (quoting Czachor,
82 N.J. at 413). Only
"[w]hen the '"difference of opinion between members of the jury
is clearly intractable," . . . then the jury is deadlocked and a
mistrial should be declared.'" Id. at 145 (quoting State v.
Figueroa,
190 N.J. 219, 237 (2007)).
As the trial court explained, when the jury sent its second
note indicating "[w]e cannot come to a decision," the jury had
been deliberating for less than two hours.1 The note also came
only a few minutes after the trial court answered the jury's first
note about entrapment.
1
Defendant argues the jury had been deliberating for two hours
and forty-five minutes. He cites the times mentioned three months
after trial in the court's denial of the motion for a new trial,
which stated that the "jury exited the courtroom for deliberations
at 12:01 p.m.," and that "[a]t 2:45 p.m. the Court received a
second note[.]" However, the trial transcript shows that the
court sent the jury to lunch after its jury charge because "[i]t's
noon" and told them to return "at 1," that the jury began "to
deliberate at 1:00," that it was "seven minutes to three" when the
jury sent the second note, and that the court and both counsel
agreed the jury had been deliberating for two hours or less. We
rely on the contemporaneous time references in the trial transcript
rather than recollections three months later, which are not
materially different in any event.
8 A-3326-14T1
The entrapment issue added complexity to the trial, which
already involved five counts and two transactions, spanned two
trial days, and was "a tricky case procedurally," as defense
counsel told the jury. Defendant argues the case was not complex
because he did not contest making the gun sales. However, he
vigorously claimed entrapment in his testimony and in his counsel's
opening and closing arguments. To help show entrapment, his
counsel expanded the case by eliciting evidence of the shotgun
sale for which the charges had been dropped. The trial court's
entrapment instructions required the jury to apply two different
burdens of proof placed on different parties, and to consider a
defense which had four subparts and "both subjective and objective
elements"; even defense counsel in closing admitted he "never can
tell which is which." The complexity of the entrapment defense
was further evidenced by the jury's question about that defense.
Given the complexity of the case and the short period of
deliberations, the trial court was properly concerned about the
duration and quality of the jury's deliberations. As in Ross,
"the trial court properly exercised its discretion in response to
the jury's communication of an impasse by providing a Czachor
charge and directing the jury to resume deliberations."
218 N.J.
at 138, 145 (upholding the giving of a Czachor model charge when,
9 A-3326-14T1
after five days of deliberations, the jury stated it could not
reach a unanimous decision).
Defendant argues the trial court instead should have asked
whether "further deliberations would be futile" using Model Jury
Charge (Criminal), "Judge's Inquiry When Jury Reports Inability
To Reach Verdict" (approved June 10, 2013). However, the
instruction for this "inquiry" charge states: "This charge
presumes that the jury has already indicated its deadlock and has
been instructed about continuing deliberations" using the Czachor
model charge. Id. at 1 n.1. Thus, it was proper to give the
Czachor model charge first.
Further the "inquiry" charge was not required as the jury had
deliberated for less than two hours. As the Supreme Court stated
where a jury had deliberated for five hours and a half: "In light
of the brevity of the deliberations, we find no error in the trial
court's decision not to inquire specifically about whether further
deliberations would likely result in a verdict," and instead "to
require the jury to continue its deliberations." Figueroa,
190 N.J. at 226, 239-40. Even if the court had asked whether "further
deliberations would be futile" and the jury had said "yes," it
would have been proper for the court to then give the Czachor
model charge. State v. Johnson,
436 N.J. Super. 406, 415 n.10
(App. Div. 2014).
10 A-3326-14T1
After the trial court properly gave the Czachor model charge,
the jury deliberated for less than an hour before sending the
third note stating "we cannot come to a unanimous verdict." While
the court and counsel were discussing how to respond, the jury
sent its fourth note asking to "view the video and audio"
recordings of the handgun sale. As the court found, the jury's
fourth note revealed that the jury's alleged impasse was not
"intractable."
In Ross, the jury sent a note that it was "'unable to reach
a unanimous decision on any count. What is your next
instruction?'" Id. at 138. The Supreme Court found the jury's
note "did not signal an intractable divide that would warrant a
declaration of mistrial. Instead, it communicated that its effort
to reach consensus on the issues had fallen short." Id. at 145.
Here, the jury's request to view key evidence suggested even more
strongly that "the jury was still actively discussing the case and
wished to further review evidence" and "wanted to deliberate more,"
as the trial court found in denying a new trial.
Defendant argues the trial court should have declared a
mistrial or instructed the jury in the half hour between the third
and fourth jury notes. However, it appears from the transcript
that much of that time was consumed in reassembling the
participants in the courtroom, as defendant had been sent to a
11 A-3326-14T1
holding cell and the subsequent discussion between court and
counsel covers less than two transcript pages before the fourth
note is received. In any event, the court was hearing the
positions of counsel and considering the caselaw and the facts to
determine an appropriate response when it was interrupted by the
jury's fourth note. The court was permitted to conduct "a careful
analysis of the circumstances" rather than rushing into
precipitous actions. See id. at 144.
The jury's request in the fourth note to view key evidence
indicated the jury thought further deliberations would be
worthwhile. Defendant nonetheless contends the trial court was
required to ask the jury:
You have indicated that your deliberations
have reached an impasse. Do you feel that
further deliberations will be beneficial or
do you feel that you have reached a point at
which further deliberations would be futile?
Please return to the jury room to confer, and
advise me of your decision in another note.
[Model Jury Charge (Criminal), "Judge's
Inquiry When Jury Reports Inability To Reach
Verdict" (approved June 10, 2013).]
However, the jury's fourth note had already answered that
question by requesting further deliberations. The note also
indicated any prior impasse might not be impassable. Our Supreme
Court has rejected the idea "that an initial impasse signals the
end of meaningful deliberations"; our Court instead "contemplates
12 A-3326-14T1
that a previously deadlocked jury can conduct fair and effective
deliberations notwithstanding an earlier impasse." Ross,
218 N.J.
at 154 & n.5 (Czachor "is premised upon the principle that a
properly instructed jury can and will meaningfully deliberate,
notwithstanding a prior declaration of an impasse").
Because the jury's fourth note indicated it was not at an
intractable impasse, the trial court did not need to declare a
mistrial. We note the jury still had deliberated less than three
hours. See Id. at 138; State v. Hightower,
146 N.J. 239, 258
(1996). Moreover, the Czachor model "instruction may, as a matter
of sound discretion, be repeated if the trial judge finds that the
jury has been unable to agree." Czachor,
82 N.J. at 407; see
Figueroa,
190 N.J. at 234-35.
The trial court properly responded to the jury's fourth and
fifth notes by granting the jury's request to review the audio and
video evidence of the handgun sale and to deliberate further.
There was nothing coercive in simply giving the jury the
opportunity it requested. Cf. State v. Adim,
410 N.J. Super. 410,
420-22, 424-30 (App. Div. 2009) (reversing because the judge
"deviated from the Court-approved instruction" and "the content
of [his] instruction was so improperly coercive and intrusive").
Indeed, rather than pressing the jury to resume deliberations at
13 A-3326-14T1
a late hour on Friday, the court postponed further deliberations
until Monday.
Thus, the trial court did not abuse its discretion in
addressing the jury's notes. There was also no manifest injustice
requiring the extraordinary step of a mistrial.
III.
Defendant next argues the trial court caused an inconsistent
compromise verdict by its "erroneous jury instruction concerning
the second deadlock note." However, as discussed above, after the
jury's second and third notes, which indicated it could not reach
a decision, the jury issued its fourth note stating it wanted to
review the audio and video recordings of the handgun sale. All
the court did was grant the jury's request. We have rejected
defendant's arguments that the court issued an "erroneous jury
instruction" or erred by "inaction."
Moreover, the verdict was not logically inconsistent.
Defendant argues it was inconsistent for the jury to find defendant
guilty of the charges relating to the handgun sale but not guilty
of the charges relating to the rifle sale. Those charges arose
from two separate interactions between Collins and defendant – one
that was supported by audio and video recordings and one that was
not. Defendant testified Collins entrapped him into making the
two sales, Collins testified he did not, and defense counsel
14 A-3326-14T1
attacked Collins's credibility. The jury could have found that
the audio and video recordings of the handgun sale showed defendant
was not entrapped, but that the absence of such recordings of the
rifle sale raised doubts about the sale and suggested defendant
was entrapped. As the trial court noted in rejecting defendant's
inconsistency argument, defense counsel vigorously attacked
Collins's explanation for not recording the rifle sale and for
deleting a text that preceded the rifle sale, and defendant
insisted the rifle sale had not been consummated because no money
was exchanged. "Therefore, we see no inconsistency between the
verdicts." State v. Goodwin,
224 N.J. 102, 116 (2016).
In any event, "[o]ur system of justice has long accepted
inconsistent verdicts as beyond the purview of correction by our
courts, and therefore a defendant is forbidden from collaterally
attacking a guilty verdict on one count with an apparently
irreconcilable acquittal on another count." State v. Kelly,
201 N.J. 471, 487 (2010). "[A] jury may render inconsistent verdicts
so long as there exists a sufficient evidential basis in the record
to support the charge on which the defendant is convicted." State
v. Banko,
182 N.J. 44, 46 (2004). Defendant admitted selling the
handgun, and the sale and the lack of entrapment was amply
established by the audio and video recordings, Collins's
testimony, and other evidence.
15 A-3326-14T1
IV.
Defendant argues for the first time on appeal that the State
committed a Brady2 violation by declining to disclose the amount
of money the confidential informant was paid. Collins testified
that the informant was "working for money," and that the amount
of money paid was not revealed because the amounts could help to
identify the informant. Defendant did not request the revelation
of the amounts at that time, and instead used the lack of testimony
regarding the confidential informant's compensation to attack
Collins's credibility.
Because defendant failed to raise such a claim during trial,
defendant must show plain error. Under the plain error standard,
"defendant has the burden to show that there is an error, that the
error is 'clear' or 'obvious' and that the error has affected
'substantial rights.'" State v. Chew,
150 N.J. 30, 82 (1997)
(quoting United States v. Olano,
507 U.S. 725, 734 (1993)). To
show such an effect, defendant must prove the error was "clearly
capable of producing an unjust result[.]" R. 2:10-2.
"In Brady, the United States Supreme Court held that 'the
suppression by the prosecution of evidence to an accused . . .
violates due process where the evidence is material either to
2
Brady v. Maryland,
373 U.S. 83 (1963).
16 A-3326-14T1
guilt or to punishment, irrespective of the good faith or bad
faith of the prosecution.'" State v. Knight,
145 N.J. 233, 245
(1996) (citing Brady,
373 U.S. at 87). "Central to the Brady
analysis is the determination of whether evidence is sufficiently
'material' to require its timely disclosure to the defendant."
Id. at 246. "[E]vidence is material for Brady purposes 'if there
is a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.'" Ibid. (citation omitted).
Defendant cannot show the amount of money paid to the
confidential informant was material because the informant had no
involvement in the September 28 handgun sale other than introducing
defendant to Collins back in August. The informant was not
involved in the negotiations to purchase the handgun, was not
present at the sale, and was not a witness at trial. Our Supreme
Court has "refused to require the disclosure of the identity of
an informer who had merely introduced the undercover agent to the
defendant but had not participated in the criminal transaction
itself, [even if] he had been present." State v. Florenz,
134 N.J. 570, 578-79 (1994) (citing State v. Milligan,
71 N.J. 373,
388-89 (1976)). Similarly, there was no need to disclose the
informant's rate of pay as the informant played no role in the
handgun sale.
17 A-3326-14T1
Defendant argues that disclosure was required because he
raised an entrapment defense. The informant's privilege, codified
in
N.J.S.A. 2A:84A-28 and N.J.R.E. 516, may be inapplicable "when
the defendant may reasonably assert the defense of entrapment."
Id. at 579. In Florenz, the State used two paid informants,
Copola, and De La Roche who introduced the defendant to Copola.
Id. at 577. The two informants were the State's only actors in
the reverse-sting drug sale: the informants negotiated the sale
with the defendants and were present at the site of the sale, and
Copola sold the drugs to the defendants and collected the money
from the defendants. Id. at 576-77. The Court stressed that
Copola "played a central and critical part in the commission of
the crimes" and was the State's "key witness" at trial, and that
De La Roche "played a substantial part in arranging for the
commission of the crimes," "attended all the meetings between
defendants and Copola at which the criminal plan was devised," and
"was present when the drug transaction occurred." Id. at 578,
580, 592. As a result, the Court held that the State erred in
refusing to disclose Copola's true identity, and that it violated
Brady by failing to reveal that De la Roche was an informant. Id.
at 578-83, 592-94. The Court emphasized that "defendants urged
the defense of entrapment based in large measure on Copola's status
as an agent of the State and on his role in the commission of the
18 A-3326-14T1
crime," and that "De La Roche could have provided information that
would have had a direct bearing on Copola's testimony relating to
the commission of the crime," which "also would have been relevant
to the issue of entrapment." Id. at 580, 593.
By contrast, the confidential informant here was not involved
in the negotiation or consummation of the handgun sale. Defendant
testified informant "told [him] that it was easy to sell guns" and
"it was easy money." He testified he sold the guns because he
"was promised that it was easy money from the CI, and [he] needed
money to support [his disabled] mom." However, that was back in
August leading up to defendant's sale of the shotgun to Collins
with the informant present.3 However, the informant had no such
role in the handgun sale on September 28, which was negotiated and
consummated solely between defendant and Collins.
In any event, the State revealed and the jury knew that the
confidential informant was involved in August, and that the
informant was "working for money." Defendant only claims the
State should have revealed the amount the informant was paid, but
that had little if any relevance. Defendant claimed he was
entrapped not by pressure from the informant but by the prospect
3
The State withdrew the charges relating to the shotgun sale to
avoid disclosing the informant's identity. See Milligan,
71 N.J.
at 393 (noting defendants "may gain dismissal of the prosecution
where the State declines to reveal its source of information").
19 A-3326-14T1
of earning money by selling guns to Collins. Moreover, only
Collins and defendant negotiated and carried out the two sales
that went to trial; the informant was not involved in those sales
and did not testify at trial. Defendant failed to show that if
the amount had been disclosed, there was a reasonable probability
he would not have been convicted of the recorded handgun sale. He
certainly has not shown any error was "clearly capable of producing
an unjust result[.]" R. 2:10-2.
V.
Finally, defendant challenges his sentence. "Appellate
review of sentencing is deferential, and appellate courts are
cautioned not to substitute their judgment for those of our
sentencing courts." State v. Case,
220 N.J. 49, 65 (2014). We
"may disturb a sentence . . . in only three situations: (1) the
trial court failed to follow the sentencing guidelines, (2) the
aggravating and mitigating factors found by the trial court are
not supported by the record, or (3) application of the guidelines
renders a specific sentence clearly unreasonable." State v. Carey,
168 N.J. 413, 430 (2001).
Defendant argues his sentence was manifestly excessive
because the trial court overlooked mitigating factors one, two,
and eleven. A "sentencing court is required to consider evidence
of a mitigating factor and must apply mitigating factors that 'are
20 A-3326-14T1
amply based in the record.'" State v. Grate,
220 N.J. 317, 338
(2015) (citation omitted). Here, the trial court properly
considered and rejected those mitigating factors.
Mitigating factor one applies if "[t]he defendant's conduct
neither caused nor threatened serious harm,"
N.J.S.A. 2C:44-
1(b)(1), and mitigating factor two applies if "[t]he defendant did
not contemplate that his conduct would cause or threaten serious
harm,"
N.J.S.A. 2C:44-1(b)(2). The trial court found those
mitigating factors were not warranted because defendant's actions
"had the potential to result in serious harm to the community."
We agree. Defaced handguns are a common tool of criminals.
Illegally selling such a handgun enables its criminal use. The
jury and the court properly rejected defendant's claim he was
coerced into making that sale.
Mitigating factor eleven applies if "[t]he imprisonment of
the defendant would entail excessive hardship to himself or his
dependents."
N.J.S.A. 2C:44-1(b)(11). The trial court found this
mitigating factor inapplicable, as there were "no proofs of
excessive hardship to defendant or defendant's family over and
beyond the obvious hardships imposed on any individual subject to
incarceration." Although defendant testified at trial that he
sold the guns because he needed money to support his disabled
mother, he told Probation he had not been employed for five years.
21 A-3326-14T1
He "presented no evidence that he was a significant source of
support for his" mother. See State v. Hyman,
451 N.J. Super. 429,
460 (App. Div. 2017); see also State v. Blackmon,
202 N.J. 283,
301 (2010).
We agree these mitigating factors were not supported by ample
credible evidence. Given the absence of any mitigating factors
and the trial court's findings of aggravating factors three, six
and nine, based in part on defendant's prior convictions for drug
distribution and obstruction, defendant's sentence was not
excessive.
Affirmed.
22 A-3326-14T1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
