STATE OF NEW JERSEY v. ANDRE L. HENDERSON
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-4019-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDRE L. HENDERSON,
a/k/a ANDRE LYDELL HENDERSON,
Defendant-Appellant.
___________________________________
Submitted May 2, 2017 – Decided May 17, 2018
Before Judges Ostrer, Leone, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 12-
06-0488.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Andrew L. Henderson appeals his February 13, 2015
judgment of conviction. We affirm.
I.
Officer Israel Valentin testified at trial as follows. On
March 11, 2012, he was in uniform on routine patrol and stopped
his marked police car briefly to mail a letter. As he left his
patrol car, he heard someone screaming. When he attempted to
cross the street, he was approached by defendant, who put his body
against Valentin's and shouted "are you looking for me?" Valentin
backed away until he reached his patrol car, at which point
defendant "swung at [him] with his left fist and caught [him] on
the right side of [his] face, followed by a right to the chin area
which knocked [him] to the ground." Valentin fell on his back,
and defendant began kicking him. After receiving "a blow to [his]
right side rib area," Valentin became unconscious.
Officer Carlos Cancel, Jr. testified to the following. While
his car was stopped at an intersection, he "saw a gentleman across
the street screaming" and heard someone say "something to the
effect of I'm going to punch you in the face." Cancel saw Officer
Valentin "standing on the corner outside of his squad car" and
"saw the attacker approach the police officer and proceed to attack
the police officer." He witnessed "the officer receiving several
punches to the face . . . and body." After getting out of his
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car, he saw Valentin "on the ground, face down, and he was being
kicked."
As Officer Cancel ran to help he saw Miguel Garcia pull a
"baseball bat" out of his car and hit defendant to stop the attack.
As defendant was being hit with the bat, he continued to kick
Valentin, using the "officer's squad car sort of as leverage and
kicking onto the police officer while he was down . . . in a
stomping motion." Cancel described the force used as "excessive"
and "extreme." He estimated the attack lasted forty or fifty
seconds. Cancel used Valentin's radio to call for assistance.
Garcia testified as follows. Garcia was driving by when he
observed defendant cross the street and punch Officer Valentin in
the face and knocked him down. Garcia left his car, obtained a
"softball bat" from his trunk, and approached defendant. Defendant
kicked and stomped on Valentin at least ten times as hard as he
could. Garcia yelled at defendant to stop. Defendant looked at
Garcia but continued kicking Valentin. Garcia told him to stop
again, and when he continued to kick Valentin, Garcia struck
defendant's arm with the bat. That elicited no reaction from
defendant, who kept kicking Valentin. Garcia then struck defendant
in the head, prompting defendant to look at Garcia and ask if he
"want[ed] some of this." Defendant stopped kicking Valentin and
pursued Garcia. Another officer arrived, drew his service
3 A-4019-14T4
revolver, and ordered defendant to get on the ground, which he
did.
Garcia's wife checked on Officer Valentin, and found him
unresponsive and spitting blood. Officers found Valentin was
catatonic with a large bruise on his head. When Valentin regained
consciousness, he was in great pain and could not move.
Dr. Madonna Lee, a surgical resident at Robert Wood Johnson
University Hospital, testified as follows. She treated Officer
Valentin on the day of the attack. He had five broken ribs and a
"scattered foci subarachnoid hemorrhage," which "means that he has
some blood in his brain." He had "a lump on his right temple," a
laceration on his lip, and was complaining of chest pain and
sternal pains. Due to the brain hemorrhage, Valentin was given
anti-seizure medication. He was hospitalized for four days, was
in pain, and required medical treatment and a hospital bed for two
to three months, and was only able to return to work six months
later.
The jury acquitted defendant of first-degree attempted
murder,
N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:11-3, but convicted him
of second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1), and
third-degree aggravated assault upon a law enforcement officer,
N.J.S.A. 2C:12-1(b)(5). On the second-degree offense, the court
exercised its discretion under
N.J.S.A. 2C:44-3(a) and sentenced
4 A-4019-14T4
defendant to an extended term of sixteen years in prison, with an
85% period of parole ineligibility under the No Early Release Act,
N.J.S.A. 2C:43-7.2. Defendant received a concurrent sentence of
five years in prison on the third-degree offense.
Defendant appeals, raising five points:
I. DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL
AS A RESULT OF THE ADMISSION OF EVIDENCE THAT
THE TRIAL COURT SHOULD HAVE PRECLUDED UNDER
N.J.R.E. 403 DUE TO CONFUSION OF THE ISSUES
OR MISLEADING THE JURY.
II. DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL
WHEN THE COURT DENIED DEFENDANT'S MOTION TO
DISMISS THE ATTEMPTED MURDER COUNT AND THE
JURY WAS PERMITTED TO CONSIDER IT,
NOTWITHSTANDING DEFENDANT'S ACQUITTAL ON THAT
CHARGE.
III. DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL
WHEN THE COURT, OVER DEFENDANT'S OBJECTION,
ALLOWED LAY OPINION TESTIMONY THAT DEFENDANT
USED EXCESSIVE FORCE AGAINST THE VICTIM.
IV. THE TRIAL COURT COMMITTED ERROR IN GRANTING
THE STATE'S MOTION FOR A DISCRETIONARY
EXTENDED-TERM SENTENCE.
V. THE SENTENCE OF 16 YEARS WAS EXCESSIVE.
II.
Defendant raises two evidentiary challenges.
"'[C]onsiderable latitude is afforded a trial court in determining
whether to admit evidence, and that determination will be reversed
only if it constitutes an abuse of discretion.'" State v.
Kuropchak,
221 N.J. 368, 385 (2015) (citation omitted). "In light
5 A-4019-14T4
of the broad discretion afforded to trial judges, an appellate
court evaluates a trial court's evidentiary determinations with
substantial deference." State v. Cole,
229 N.J. 430, 449 (2017).
"Under that standard, an appellate court should not substitute its
own judgment for that of the trial court, unless 'the trial court's
ruling "was so wide of the mark that a manifest denial of justice
resulted."'" Kuropchak,
221 N.J. at 385 (citations omitted). We
must hew to that standard of review.
A.
Defendant called Dr. Daniel Paul Greenfield, a physician with
specialty in psychiatry addiction medicine and general
preventative medicine, who testified defendant's actions were
consistent with a psychotic episode resulting from the use of PCP.
On direct, defense counsel asked Dr. Greenfield whether defendant
had brain damage:
Q. . . . Was there some organicity?
A. Yes, there was.
Q. Okay.
A. Slow on the uptake, difficulty, to some
extent, following our discussion. . . .
. . . .
Q. Let's talk about organicity. Define
organicity to the jury.
6 A-4019-14T4
A. Organicity is the – the simple way to
describe it is some degree of brain damages,
there's something wrong with the brain, with
an individual's ability to think, focus, pay
attention, concentrate, do things like that
. . . .
In issuing his opinion that defendant was in a psychotic
episode due to the effects of PCP, Greenfield reiterated that
defendant had an "underlying organicity" which caused
"vulnerability towards those affects."
During cross-examination by the prosecutor of Dr. Greenfield,
the following exchange took place without objection:
Q. You were retained and asked to give an
opinion with respect to his state of mind
at the time of the incident at issue here
on March 11, 2012?
A. In part, yes. That's part of what I was
asked to do.
Q. You were also retained for the purpose
of determining whether or not the
defendant was competent to stand trial?
A. Yes.
. . . .
A. To develop an opinion from a clinical
point of view. It's obviously the Court
that determines whether a person is
competent or not.
. . . .
Q. Now you found the defendant, your opinion
was that the defendant was competent to
stand trial?
7 A-4019-14T4
A. Yes.
Later, the prosecutor asked: "For the purpose of determining
or giving your opinion as to whether or not the defendant was
competent to stand trial, did you find any underlying . . . mental
disorder that disabled him in any way from . . . competency to
stand trial?" At this point, defense counsel objected under
N.J.R.E. 403, arguing it would confuse the jury. The prosecutor
said he was trying to draw the distinction between a mental
disorder and a substance-induced mental disorder. The prosecutor
asked:
Q. . . . There was no independent mental
illness that . . . disabled this
defendant from siting here and being
competent to be here at trial today?
A. No.
The trial court overruled defendant's objection. The
prosecutor then asked, without objection, "[s]o he's got
essentially nothing else going on regarding mental disorders other
than . . . all that time ago the substance[-]induced psychotic
disorder," and "so absent the PCP, no psychosis?," to which
Greenfield responded "Definitely no psychosis no."
Defendant argues this line of questioning was irrelevant
because Dr. Greenfield was called to testify about defendant's
PCP-induced psychosis on the day of the assault, not his mental
8 A-4019-14T4
health at the time of trial. However, Dr. Greenfield also opined
that defendant's vulnerability to PCP was increased by organic
brain damage which caused problems with his ability to think and
understand. As a result, defendant's mental health and ability
to think and understand were relevant, as was the information the
prosecutor elicited on cross: that Dr. Greenfield found that
defendant had sufficient ability to think and understand to be
competent to stand trial, and that he had no mental illness
preventing him from doing so. "Such impeachment to expose the
weaknesses of an expert's testimony potentially might assist in
the search for the truth, one of the recognized goals of our law
of evidence." James v. Ruiz,
440 N.J. Super. 45, 75 (App. Div.
2015). "'[A]n expert witness is always subject to searching cross-
examination as to the basis of his opinion[.]'" State v. Martini,
131 N.J. 176, 259 (1993) (citation omitted).
Defendant claims the trial court nonetheless should have
excluded that information as confusing under N.J.R.E. 403. Under
Rule 403, "relevant evidence may be excluded if its probative
value is substantially outweighed by the risk of (a) undue
prejudice, confusion of issues, or misleading the jury or (b)
undue delay, waste of time, or needless presentation of cumulative
evidence." N.J.R.E. 403 (emphasis added). The "trial court's
weighing of probative value against prejudicial effect 'must stand
9 A-4019-14T4
unless it can be shown that the trial court palpably abused its
discretion'" and committed "'a clear error of judgment.'" Cole,
229 N.J. at 449 (citations omitted).
The trial court did not abuse its discretion in allowing the
prosecutor to elicit Dr. Greenfield's opinions on defendant's
mental health and ability to think and understand. Moreover,
there was no evidence the information confused the jury,
particularly after being clarified in the prosecutor's final
questions. "We accord substantial deference to the trial court's
'highly discretionary determination.'" State v. Cook,
179 N.J.
533, 568 (2004).
In any event, any error was harmless. It was obvious that
defendant had not been found incapable of standing trial because
he was standing trial. Moreover, his defense was centered on PCP-
induced psychosis, not mental illness. Eliciting that he did not
have a mental illness rendering him incompetent to stand trial was
not "clearly capable of producing an unjust result." R. 2:10-2.
B.
Defendant also challenges the following question to Officer
Cancel:
Q. Could you tell whether or not the force
of the attack increased when the
defendant started using the patrol car
for leverage?
10 A-4019-14T4
A. Yes, it was an excessive force that was
being put onto the officer.
Defendant argues that "excessive" means "extreme," that
"extreme" is an element of second-degree aggravated assault, and
that Cancel's answer was thus improper lay opinion about an
ultimate issue. Every part of defendant's argument is mistaken.
First, "excessive" simply means "exceeding what is usual,
proper, necessary, or normal." Merriam-Webster's Collegiate
Dictionary 435 (11th ed. 2014). Second, extreme force is not an
element of second-degree aggravated assault. Rather, a person is
guilty of that crime if he "[a]ttempts to cause serious bodily
injury to another, or causes such injury purposely or knowingly
or under circumstances manifesting extreme indifference to the
value of human life recklessly causes such injury[.]"
N.J.S.A.
2C:12-1(b)(1). Extreme indifference is a "mental state," not a
measure of physical force. State v. Villar,
292 N.J. Super. 320,
327 (App. Div. 1996).
Third, as an eyewitness to the assault, Officer Cancel
properly could give a lay opinion that defendant was using
"excessive" or "extreme" force. "N.J.R.E. 701 sets forth the
prerequisites for the admission of lay opinion testimony[.]" State
v. Bealor,
187 N.J. 574, 586 (2006). N.J.R.E. 701 provides:
If a witness is not testifying as an expert,
the witness' testimony in the form of opinions
11 A-4019-14T4
or inferences may be admitted if it (a) is
rationally based on the perception of the
witness and (b) will assist in understanding
the witness' testimony or in determining a
fact in issue.
Officer Cancel's testimony describing the amount of force
defendant used was "rationally based on the perception of" Cancel,
who saw defendant stomping on Officer Valentin using his patrol
car for leverage. It would also serve to "assist [the jury] in
. . . determining a fact in issue," ibid., including whether
defendant was attempting to cause death, serious bodily injury,
or bodily injury.
N.J.S.A. 2C:11-3(a)(1); N.J.S.A. 2C:11:12-
1(b)(1), (5); see
N.J.S.A. 2C:5-1. Knowing the amount of force
used is relevant, although not necessarily dispositive, to
defendant's state of mind and the extent of the injuries caused
by defendant.
Fourth, N.J.R.E. 704 provides: "Testimony in the form of an
opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier
of fact." "If lay . . . opinion testimony is otherwise competent
under N.J.R.E. 701 . . . , the fact that it may embrace the
ultimate fact issue in dispute does not render it incompetent."
Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt.
on N.J.R.E. 704 (2018).
12 A-4019-14T4
There was also no error when the prosecutor later asked
Officer Cancel to "describe the level of force that you saw the
defendant using upon" Officer Valentin, and Cancel responded: "It
was extreme force that he used." Moreover, defendant's only
objection to that question was "asked and answered," and he does
not challenge it on appeal.
In any event, Officer Cancel's "excessive" and "extreme"
comments were not the only evidence on the amount of force
defendant used on Officer Valentin. Several eyewitnesses
testified without objection that defendant was "kicking and
stomping on" Valentin "[a]s hard as you can," and "jumping on top
of him with all his might." Thus, Officer Cancel's comments were
not "clearly capable of producing an unjust result." R. 2:10-2.
III.
Defendant argues the trial court erred in not granting his
motion at the close of the State's case for dismissal of the
attempted-murder charge. Under Rule 3:18-1, "if the evidence is
insufficient to warrant a conviction," the trial court may enter
"a judgment of acquittal[.]" Even if the evidence was
insufficient, defendant was not prejudiced, as the jury ultimately
acquitted defendant of the attempted-murder charge.
Defendant claims the effect of not dismissing that charge was
to give the jury "the propensity to find defendant guilty of a
13 A-4019-14T4
lesser offense than the attempted murder charge." It was once
permissible for a defendant acquitted of a murder charge to claim
the prosecution of the charge created a real "possibility that the
jury, in the absence of sufficient evidence to sustain a first
degree murder charge, may have reached a compromise verdict" of
guilty on a lesser charge. State v. Christener,
71 N.J. 55, 69-
70 (1976).
However, our Supreme Court overruled Christener in State v.
Wilder,
193 N.J. 398, 403 (2008); see State v. Kornberger,
419 N.J. Super. 295, 304 (App. Div. 2011). The Court in Wilder found
it was "'pure fancy' to speculate that a jury's verdict on a lesser
offense was a compromise."
193 N.J. at 415. The Court noted such
"jury-overcharge" claims were impermissibly "premised on the
assumption that jurors ignore the trial court's instructions
regarding compromise verdicts," and improperly "encourag[ed] a
reviewing court to speculate on the jury's thinking." Id. at 415,
418. "Moreover, it also is wasteful of judicial resources to have
appellate courts attempting to second-guess what may have
transpired during jury deliberations. And, it is wasteful of the
trial court's time if perfectly sound jury verdicts, supported by
sufficient evidence, are overturned based on speculation of a
compromise verdict." Id. at 416.
14 A-4019-14T4
The Supreme Court in Wilder held that such "jury-overcharge"
claims instead "should be subjected on appeal to the same 'unjust
result' standard established in Rule 2:10-2." Id. at 418. The
Court then observed: "Very likely, few jury-overcharge cases would
meet the 'unjust result' standard for error because a party must
present cognizable evidence that an error occurred." Id. at 418.
Defendant makes his jury-overcharge claim "without any
evidence of jury compromise[.]" Id. at 415. He offers no evidence
the jurors disregarded the trial court's instructions that they
could not convict defendant of aggravated assault unless "the
State has proven each element beyond a reasonable doubt," that
"the defendant is entitled to have each Count considered
separately," and that a juror must "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." Therefore, defendant cannot show
the denial of his motion to dismiss a charge on which he was later
acquitted was "clearly capable of producing an unjust result[.]"
R. 2:10-2.
In any event, the trial court did not err in denying
defendant's motion to dismiss the attempted-murder charge. Under
State v. Reyes,
50 N.J. 454, 459 (1967),
15 A-4019-14T4
the question the trial judge must determine
is whether, viewing the State's evidence in
its entirety, be that evidence direct or
circumstantial, 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.
"On appeal, we utilize the same standard as the trial court in
determining whether a judgment of acquittal was warranted." State
v. Ellis,
424 N.J. Super. 267, 273 (App. Div. 2012).
A defendant is guilty of attempted murder if he purposefully
did anything with purpose of, and made a substantial step toward,
causing the victim's death.
N.J.S.A. 2C:5-1(a)(2);
N.J.S.A.
2C:11-3(a)(a).
Defendant took a substantial step toward causing Officer
Valentin's death, and his purpose to cause death could be inferred
from his actions. He launched an unprovoked attack on Valentin,
punching him in the head. He continued to assault Valentin after
he was knocked to the ground, and even after he was lying
unconscious. Defendant, who weighed 250 to 275 pounds, kicked and
stomped on Valentin's head and chest with all his might, holding
onto the patrol car so he could jump with both feet onto Valentin
and thus increase the force of his stomping. He did not stop
kicking and stomping Valentin when bystanders begged him, when
another police officer arrived, or even when Garcia first hit him
16 A-4019-14T4
with a bat. When Garcia hit him again with the bat, defendant
stopped only to pursue Garcia.
Even though interrupted, defendant's attack caused Valentin
five broken ribs, lumps and bruises on his head, and a blood
hemorrhage in his brain, which Dr. Lee testified could cause
Valentin to have seizures and stop breathing. Moreover,
eyewitnesses saw no indication defendant would have stopped
kicking and stomping Valentin if Garcia and others had not
intervened. The trial court properly found this evidence was
sufficient to allow the attempted-murder charge to be considered
by the jury.
Defendant complains the trial court also cited Officer
Valentin's testimony that "I thought I was going to die that date
at that time right there." However, Valentin's perception of the
severity of the attack was properly considered though not
dispositive. In any event, the court recognized this was just
"his testimony," and considered the other eyewitness testimony and
medical testimony on the severity of the attack, which was more
than ample evidence.
IV.
Lastly, 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
17 A-4019-14T4
courts." State v. Case,
220 N.J. 49, 65 (2014) (citation omitted).
Thus, disturbing a sentence is permissible 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 the sentencing court erred in imposing an
extended-term sixteen-year sentence for second-degree aggravated
assault. Under
N.J.S.A. 2C:44-3, a court may grant the State's
motion to sentence a person to an extended term if "(a) [t]he
defendant has been convicted of a crime of the first, second or
third degree and is a persistent offender."
A persistent offender is a person who at the
time of the commission of the crime is 21 years
of age or over, who has been previously
convicted on at least two separate occasions
of two crimes, committed at different times,
when he was at least 18 years of age, if the
latest in time of these crimes or the date of
the defendant's last release from confinement,
whichever is later, is within 10 years of the
date of the crime for which the defendant is
being sentenced.
[N.J.S.A. 2C:44-3(a).]
Defendant has never disputed he met all of those statutory
requirements. In fact, defendant had five prior criminal
convictions, for third-degree drug distribution in 1997, third-
18 A-4019-14T4
degree drug possession in 1998, first-degree drug distribution in
January 2003, and second- and third-degree drug distribution
offenses in November 2003. His 2003 offenses were within ten
years of the 2012 assault, and his release from confinement for
the 2003 offenses was in 2009.
Because defendant was statutorily eligible, he "could
lawfully be sentenced within a range of between five and twenty
years." State v. Abril,
444 N.J. Super. 553, 564 (App. Div. 2016).
"Where, within that range of sentences, the court chooses to
sentence a defendant remains in the sound judgment of the court,"
based on "the court's assessment of the aggravating and mitigating
factors, including the consideration of the deterrent need to
protect the public." State v. Pierce,
188 N.J. 155, 168-69 (2006).
In reviewing the sentencing court's choice we "apply an abuse of
discretion standard[.]" Id. at 169-70.
The trial court found aggravating factors one, two, three,
six, and nine, and no mitigating factors. Based on its finding
that "there is a need for protection of the public," the court
granted the State's motion. The court sentenced defendant to
sixteen years, which "plainly falls within the statutory range."
Abril,
444 N.J. Super. at 564.
Defendant argues that the trial court did not do an evaluation
of public protection, that there was no evidence that defendant
19 A-4019-14T4
had a propensity to dangerous conduct, and that the extended-term
sentence was not necessary to protect the public. To the contrary,
the court explicitly addressed the need for public protection.
Moreover, the court explained that defendant's repeated commission
of crimes despite being given probation and other diversionary
opportunities showed he posed a risk to commit another offense,
and that there was a need to deter defendant and others. In any
event, "a finding of 'need to protect the public' is not a
precondition to a defendant's eligibility for sentencing up to the
top of the discretionary extended-term range." Pierce,
188 N.J.
at 170.
Defendant argues the assault was an isolated incident
resulting from his PCP use. However, the trial court did not find
defendant's expert credible and did not believe PCP played any
part in the assault.
Defendant notes that this was his first conviction for assault
and that all his prior convictions were drug-related. However,
the persistent offender statute does not require that the
defendant's prior crimes be violent, State v. Bauman,
298 N.J.
Super. 176, 211 (App. Div. 1997), or similar to his current crime,
cf. ibid.
Defendant contends the trial court double-counted the prior
record used to qualify him for an extended term when it considered
20 A-4019-14T4
"[t]he extent of the defendant’s prior criminal record and the
seriousness of the offenses of which he has been convicted."
N.J.S.A. 2C:44-1(a)(6). However, "other aspects of the
defendant's record, which are not among the minimal conditions for
determining persistent offender status, such as a juvenile record,
parole or probation records, and overall response to prior attempts
at rehabilitation, will be relevant factors in adjusting the base
extended term." State v. Dunbar,
108 N.J. 80, 92 (1987). Ignoring
two convictions to trigger the extended-term statute, defendant
had three other serious criminal convictions, five municipal court
convictions, two juvenile adjudications, and a violation of
probation. Cf. State v. Vasquez,
374 N.J. Super. 252, 267 (App.
Div. 2005) (finding error where the judge "raise[d] the presumptive
extended base term on account of defendant's only prior conviction,
the very conviction which both allowed and required an extended
term"). The other offenses were sufficient to find aggravating
factor six.
Defendant argues the sentencing court erred in finding
aggravating factors one and two. "[A]n appellate court should not
second-guess a trial court's finding of sufficient facts to support
an aggravating or mitigating factor if that finding is supported
by substantial evidence in the record." State v. O'Donnell,
117 N.J. 210, 216 (1989).
21 A-4019-14T4
Aggravating factor one addresses "[t]he nature and
circumstances of the offense, and the role of the actor therein,
including whether or not it was committed in an especially heinous,
cruel, or depraved manner[.]"
N.J.S.A. 2C:44-1(a)(1). "Under
this factor, the sentencing court reviews 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) (citation
omitted). "[A] sentencing court may justify the application of
aggravating factor one, without double-counting, by reference to
the extraordinary brutality involved in an offense" or where
"'defendant's behavior extended to the extreme reaches of the
prohibited behavior.'" State v. Fuentes,
217 N.J. 57, 75 (2014)
(citation omitted).
The trial court found that, even "without double counting,"
defendant's assault on Officer Valentin was "despicable, heinous,
[and] depraved." The court did not specifically state the facts
on which it relied. However, any error was harmless, as the facts
plainly supported finding aggravating factor one. Defendant hit
Officer Valentin for no reason, then continuously kicked and
stomped on Valentin with two feet, using the patrol car as
leverage. "[T]he extraordinary brutality" of defendant's attack
22 A-4019-14T4
on Valentin "extended to the extreme reaches of" aggravated
assault. Fuentes,
217 N.J. at 75. Moreover, his attack was
random, unprovoked, and senseless. See State v. Bowens,
108 N.J.
622, 639 (1987) (citing "the brutal, senseless nature of the
stabbing"); see also Lawless,
214 N.J. at 610 (citing Bowens).
Aggravating factor two addresses
[t]he gravity and seriousness of harm
inflicted on the victim, including whether or
not the defendant knew or reasonably should
have known that the victim of the offense was
particularly vulnerable or incapable of
resistance due to advanced age, ill-health,
or extreme youth, or was for any other reason
substantially incapable of exercising normal
physical or mental power of resistance . . . .
[
N.J.S.A. 2C:44-1(a)(2) (emphasis added).]
Aggravating factor two "focuses on the setting of the offense
itself with particular attention to any factors that rendered the
victim vulnerable or incapable of resistance at the time of the
crime." Lawless,
214 N.J. at 610—11. The factor "does not limit
'vulnerability' to age or other physical disabilities of the
victim." State v. O'Donnell,
117 N.J. 210, 218-19 (1989).
Again eschewing double counting, the trial court found
aggravating factor two applied because Officer Valentin "was
getting out of his car at the time, going to mail a letter at the
post office, was not responding to a call as to this person as the
time," when defendant sucker-punched him. We have upheld a finding
23 A-4019-14T4
that a gas station attendant alone at night is "'particularly
vulnerable.'" State v. Faucette,
439 N.J. Super. 241, 272 (App.
Div. 2015). In any event, after Valentin was prone and unconscious
he became particularly vulnerable and incapable of resistance, yet
defendant continued to kick and stomp on him. See O'Donnell,
117 N.J. at 218-19 (finding a victim particularly vulnerable after
being tied up by the defendant).
Defendant also argues the trial court erred in finding
aggravating factor twelve, "[t]he defendant committed the offense
against a person who he knew or should have known was 60 years of
age or older[.]"
N.J.S.A. 2C:44-1(a)(12). However, the judge
explicitly stated "I do not find that [factor] 12 applies." Thus,
we need not consider whether aggravating factor twelve would have
been appropriate given that Officer Valentin was sixty years old.
The trial court did not abuse its discretion in considering
the aggravating and mitigating factors, or in imposing the
extended-term sentence, which was not excessive.
Affirmed.
24 A-4019-14T4
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