STATE OF NEW JERSEY v. ZENG L. CHEN
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-4929-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ZENG L. CHEN, a/k/a
ZENG B. CHEN,
Defendant-Appellant.
_____________________________
Submitted October 4, 2017 – Decided April 12, 2018
Before Judges Koblitz, Manahan, and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
10-10-1964.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michael Confusione, Designated
Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Zeng L. Chen appeals from his May 5, 2015 judgment
of conviction and sentence, asking for a new trial or for a remand
for resentencing. We affirm.
I
The case arose from the 2010 murders of Yao Chen and his
sister Yun Chen. Chen and his co-defendant Dong Biao Lin were
indicted on multiple charges. Lin's case was severed from Chen's
in 2012. In 2014, Lin pled guilty to two counts of first-degree
murder and two counts of felony murder.
In 2015, Chen was convicted by a jury of second-degree
conspiracy,
N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:18-2 (count one); one
count of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) and
N.J.S.A.
2C:11-3(a)(2) (count two); two counts of first-degree felony
murder,
N.J.S.A. 2C:11-3(a)(3) (counts four and five); second-
degree burglary,
N.J.S.A. 2C:18-2 (count six); first-degree armed
robbery,
N.J.S.A. 2C:15-1 (count seven); and third-degree
possession of a weapon (knife) for an unlawful purpose,
N.J.S.A.
2C:39-4(d) (count eight). He was sentenced to a life term of
imprisonment with an eighty-five percent period of parole
ineligibility under the No-Early Release Act (NERA) on count two.
He also was sentenced to a thirty-year term on count five and a
fifteen-year term on count seven, both of which were subject to
2 A-4929-14T3
NERA, with both to run concurrently with count two. The remaining
counts were merged.
Chen alleges the court erred in denying his motion to suppress
the statement he gave to the police after he was arrested, his
request to present expert testimony in support of that motion, and
his motion for acquittal. He also alleges that certain jury
instructions were incorrect and incomplete and that his sentence
was improper and excessive.
We gather the following facts from the record developed at
Chen's suppression motion. On June 16, 2010 at about 5:15 p.m.,
Lieutenant John Todd of the Freehold Township Police Department
testified that he was on patrol. He heard a report about a
stabbing and to be on the lookout for two men described as "two
oriental males between 20 and 25 years old. One was wearing a
green shirt. One was wearing a light colored shirt." Based on a
tip from a citizen caller about their possible location, he
proceeded to Williams Street where he saw two persons matching the
description walking on the sidewalk. They appeared disheveled.
He stopped his vehicle in front of them. He ordered them to get
on the ground, which they did but not immediately, and held them
at gunpoint. They did not seem to speak English. He observed
that one had "blood splatter on his pants and . . . blood splatter
on his hand." He took Chen to the police station.
3 A-4929-14T3
In June 2010, Detective Sergeant Michael Magliozzo of the
Monmouth County Prosecutor's Office was assigned to the Major
Crimes Bureau. He was briefed on the scene by Detective Chris
Otlowski about a male victim, Yao Chen, who had collapsed in the
street with his hands bound and suffering from multiple wounds.
When Magliozzo received word that two suspects had been captured,
he proceeded to the police station. Both suspects, Chen and Lin,
indicated they spoke Chinese. The Prosecutor's Office contacted
Officer Robert Wei of the Piscataway Police Department to provide
translation assistance because he spoke Mandarin Chinese. By this
time, the police learned there was a female victim at the
residence, Yun Chen, who was deceased and that the male victim,
Yao Chen, had died at the hospital.
Magliozzo, Wei, and Otlowski interviewed Chen using Wei as
the translator. According to Magliozzo, Chen appeared to
understand. Wei "was [not] having any difficulty interpreting or
speaking to" Chen. The interview was videotaped and there is a
transcript.
Magliozzo read the Miranda1 rights to Chen. As they were
being read to him, Chen said, "[y]es. I have the right to remain
silent." Chen responded affirmatively when advised that anything
1
Miranda v. Arizona,
384 U.S. 436 (1966).
4 A-4929-14T3
he said may be used against him and that he had the right to
consult with an attorney and to have him present during
questioning. In response to being advised that if "he could not
afford an attorney, one would be appointed for him," Chen responded
"Attorney? I don’t have family here." When advised again, he
responded affirmatively that he understood an attorney could be
appointed for him if he could not afford one. Chen asked what it
meant not to have to speak or talk, and he was advised he did not
have to talk if he did not want to. Chen then said he did not
understand "the first one" and was advised again he had the right
to remain silent and to refuse to answer any questions. Chen
asked about "number two" and Magliozzo again explained to him that
anything Chen said could be used against him in a court of law.
Chen asked that if he lied whether that was going to come out in
court and was told "yes".
Based on Chen's questions, Magliozzo reread the Miranda
rights to Chen, and Wei interpreted them. Chen answered
affirmatively that he understood these rights. When asked "Okay.
Does he want to speak and answer questions", Chen replied "yes."
Chen then gave a statement to the police about what had occurred.
Wei testified that he interpreted Mandarin Chinese
"[c]ountless times" and administered Miranda warnings in Chinese
about twenty or thirty times over the last ten years. He was born
5 A-4929-14T3
in Taiwan and learned Mandarin Chinese as his first language. He
learned English when he was nine years old because his family
moved to the United States. He is not certified as an interpreter.
Wei translated the interview with Chen. He did not translate
everything word for word. He testified "[m]ost of the things I
did. There's certain things that I couldn't translate word for
word, so I did the best that I could to convey the message." He
had no trouble understanding Chen. Chen was responsive to his
questions and appeared to understand him. After the transcript
was produced, he went over it twice comparing it to the video tape
and made corrections to it.
Dr. Weili Lu, an associate professor and licensed
psychologist, was called by the defense as an expert witness in
the field of psychology and to testify "about the specific province
that Mr. Chen is from and his understanding of . . . the Miranda
rights." On voir dire, she testified that she evaluates families
facing deportation to determine whether someone would experience
an extreme and exceptional hardship as it relates to immigration
proceedings. She has testified as an expert in immigration court.
Although she had published articles on post-traumatic stress
disorder, she had not written any about law enforcement, Chinese
law, Miranda or Chinese immigrants and their understanding of
6 A-4929-14T3
Miranda. She had no familiarity with Miranda rights before she
was retained for this case.
Lu testified that Chen is from Fugan Province in China.
Because Lu has family from the same province and has lived there,
her testimony was proffered regarding Chen's state of mind when
he gave his statement to the police and whether he made a knowing
and intelligent waiver of his rights.
The court barred her admission as an expert witness because
she lacked expertise "about cross cultural effects or analysis of
Miranda rights and the understanding of them with regard to
individuals who are born out of this country." The court did not
find that her testimony would be helpful to the court.
Chen testified that he came to the United States in 2006 when
he was eighteen from the Fujian province in China. He speaks
Fuzhou and Mandarin Chinese. In 2010, he could not speak or read
English. After he was arrested, the police spoke to him through
the interpreter.
Chen testified that he did not understand what the police
explained to him. He did not understand what it meant to have the
right to remain silent. He did not "quite comprehend" what the
interpreter said about the law. He did not remember what an
attorney was. When the interpreter told him that what he said
could be used against him in court, he responded, "I didn't know
7 A-4929-14T3
any law and I didn't know what it meant, it would work against me,
so I just said everything." He did not understand he could first
speak with an attorney or have the attorney present during
questioning. He said he was "stunned" when the police told him
that Lin said he had killed the victim, and "I was so confounded
after he said these things and I didn't know anything else." Chen
was asked,
PROSECUTOR: When you were provided these
rights, you were asked if you understood them?
CHEN: Well, yes. This police officer who act
as interpreter asked me do you understand this
law.
PROSECUTOR: And there were points when you
told him yes and there were times when you
nodded your head?
CHEN: I nod my head.
PROSECUTOR: So why would you tell him that you
understood something if you did not?
CHEN: Well, he told me I have commit a murder
about those things, but I do not fully
understand, but I say yes. Yes. Yes.
. . . .
PROSECUTOR: So you didn't understand that if
you wanted to stop talking to the police that
you had that option?
CHEN: Well, I don't know.
8 A-4929-14T3
Chen claimed that he did not understand he could stop
answering questions. He stated "[a]s long they ask me question I
keep on answering." When he spoke with the police, he testified
that he did not know he was giving up the rights that had been
read to him.
The trial court found based on a totality of the circumstances
that Chen gave "a knowing, voluntary, and intelligent waiver of
his rights." The court found there was not any "overreaching."
The interview atmosphere was calm; defendant was offered food and
water. Magliozzo went through the Miranda rights twice,
particularly the right to have an attorney appointed and to waive
that right. The court found that Chen understood his rights;
"there was clearly the shake of the head up and down indicating
yes that he understood." The court observed that the officer "did
take his time, made sure the defendant understood, and in certain
circumstances gave examples." The court found the police advised
defendant of his rights with the assistance of an interpreter.
The court found there was no requirement that the police use a
certified interpreter.
The court took into consideration that Chen was twenty-years
old at the time of the offense, had been in the country over three
years, had worked in different states, that the length of the
questioning was about ninety minutes, and that Chen had no prior
9 A-4929-14T3
encounters with the law here or in China. The court stated that
"[t]here was an active understanding by the defendant, maybe not
initially as to some questions when he didn't understand some of
the questions, they were repeated until the point, . . . that in
fact he wanted to waive his rights and to essentially . . . tell
his story. He wanted to tell his story[.]" He wanted to "distance
himself from the physical act" of committing murder.
Chen's case proceeded to trial. Part of the evidence included
Chen's statement to the police. In that statement, Chen told the
police he was "hanging out" in Chinatown in New York with Lin but
did not know Lin had a knife. On June 16, 2010, they took a bus
to Freehold, New Jersey because Lin used to work at a restaurant
there. Lin was aware the restaurant owner kept money at his
residence and they went there to burglarize it. They walked around
the house and waited an hour before going in. They cut a screen
window with the knife that Lin brought and they gained entry.
Almost immediately, they discovered a man who had a bowl of food.
Chen tied him up with telephone wire. Lin went upstairs while
Chen guarded the man. Chen heard a woman upstairs who was
screaming "and I was pretty sure she was being killed." He knew
Lin took the knife upstairs but was not certain if the woman died.
Then, the man he was watching started to scream. Chen held him
10 A-4929-14T3
down. Chen said Lin then came downstairs and killed the man by
stabbing him in his neck, arms and buttocks.
Chen stated that he did not know they were going to go there
and kill anyone. He was "scared and shocked" by this. Chen
admitted to holding a white knife that was used in the stabbings,
but that he gave it back to Lin when Lin went upstairs. Chen had
a pair of brass knuckles. The white knife broke as Lin was
stabbing the man. Lin obtained "the other big knife" from the
kitchen to stab the man. Lin did not want to kill him, but did
because he kept screaming and yelling. The female victim upstairs
recognized Lin because he used to work at the restaurant.
Chen denied using the knife to kill anyone. He said he
threatened the man with the brass knuckles and also punched him a
couple of times with them. Chen held the man down and put clothing
over his mouth because he was screaming. Chen said he stood there
as Lin stabbed the man, but that he was "shocked" and "never
thought this would happened."
Lin also testified at Chen's trial about the events on June
16, 2010. He testified that Chen knew he had the white knife
before they left Chinatown. He described, as had Chen, how they
took a bus to Freehold, that they intended to burglarize the house
of his former supervisor, and that they broke in and encountered
the male victim. Chen helped to tie him up. Lin testified that
11 A-4929-14T3
Chen suggested Lin go upstairs to search for more to steal. When
Lin encountered the female victim and, although she told him to
take what he wanted, he recognized her and "lost control" stabbing
her to death. Lin went downstairs to assist Chen with the man who
was struggling, and again lost control. He testified Chen held
the man down when Lin began stabbing him and then Chen slowly
walked behind him. Lin testified that Chen and he had discussed
that if they found someone in the house, they could use the knife
to threaten them.
Chen moved for acquittal under Rule 3:18-1 on Count Two, "the
knowing and purposeful murder of [the male victim]." The trial
court denied the motion because, viewing the states' evidence in
its entirety, it found that a "reasonable jury could find guilt
of the charges under accomplice or co-conspirator theories beyond
a reasonable doubt." Chen was convicted of all charges and
sentenced to a life term with a thirty-year period of parole
ineligibility.
On appeal, Chen raises the following issues.
Point 1 The trial court erred in denying
defendant's motion for acquittal (raised
below), and the trial court's jury charges
were incorrect and incomplete (plain error),
warranting vacation of defendant's
convictions for murder, armed burglary and
robbery, felony murder, and possession of a
weapon for an unlawful purpose.
12 A-4929-14T3
Point 2 The trial court erred in denying
defendant's motion to suppress statements made
to police.
Point 3 The trial court erred in precluding
defendant from offering expert testimony in
support of his motion to suppress.
Point 4 Defendant's sentence is improper
and excessive.
II
We defer to the trial court's factual findings on a motion
to suppress unless they were "clearly mistaken" such that appellate
intervention is necessary "in the interests of justice." State
v. Elders,
192 N.J. 224, 244 (2007) (internal quotation marks and
citation omitted). Our review of "purely legal conclusions" is
plenary. State v. Goodman,
415 N.J. Super. 210, 225 (App. Div.
2010).
"[I]n determining whether incriminating statements are
admissible, the State must 'prove beyond a reasonable doubt that
the suspect's waiver [of rights] was knowing, intelligent, and
voluntary[.]'" State v. A.M., __ N.J. Super. __, __ (App. Div.
2018) (slip op. at 13) (quoting State v. Yohnnson,
204 N.J. 43,
59 (2009)). To do so, a court must consider the "totality of the
circumstances." Ibid. This includes consideration of factors such
as defendant's "age, education and intelligence, advice as to
constitutional rights, length of detention, whether the
13 A-4929-14T3
questioning was repeated and prolonged in nature and whether
physical punishment or mental exhaustion was involved." Ibid.
Chen contends that the waiver of his Miranda rights was not
"knowing and informed" because of the translation. In State v.
Mejia,
141 N.J. 475, 503 (1995), the Court recognized "[t]he
problem of communicating Miranda rights to non-English-speaking
defendants is important, particularly in a state with so diverse
a population." In State v. Marquez,
202 N.J. 485 (2009), the
Court reversed a drunk driving conviction of a non-English speaking
defendant where the standard statement about submitting to a breath
test was read to him in English, because this "failed to inform
[the] defendant of the consequences of the refusal." Id. at 514.
However, in State v. Homdziuk,
369 N.J. Super. 279, 290 (App. Div.
2009), we affirmed the denial of a suppression motion where the
defendant "was given his Miranda rights in his native language and
admitted that he understood them."
Recently, in A.M., we reversed the denial of a suppression
motion. In A.M., the defendant spoke Spanish as his primary
language. He read and signed the Miranda waiver form that was
written in Spanish and then gave a statement to the police.
However, the court did not ask defendant about his level of
education, determine if defendant was literate in Spanish, ask
defendant to read the waiver provisions aloud or mention the word
14 A-4929-14T3
waiver to defendant. We concluded that the court "improperly
shift[ed] the burden of proof to defendant to alert the
interrogating officers about any difficulty he may be having
understanding the ramifications of a legal waiver[.]" A.M., __
N.J. Super. __ (slip op. at 17).
Here, Wei translated the Miranda rights that Magliozzo read
to Chen. Wei acknowledged he did not interpret the rights word
for word. We are satisfied based on the transcript and videotape
that as in Mejia, the "police, confronted with the practical
problem of advising a [Chinese]-speaking suspect, adequately
administered the Miranda warnings." Mejia,
141 N.J. at 503. The
rights were twice read to Chen. The transcript shows that
initially there were discrepancies in the translation, including:
M.M.: Okay. We are going to read you your
rights.
R.W.: [H]e is going to read the card to you.
You listen. I will translate for you.
. . . .
M.M.: You have the right to consult with an
attorney at any time and have him present
before or during questions.
R.W.: You have the right to consult with an
attorney.
. . . .
15 A-4929-14T3
M.M.: If you cannot afford an attorney, one
would be provided if you so desire prior to
any questions.
R.W.: If you cannot afford an attorney, one
would be provided for you.
. . . .
M.M.: A decision to waive these rights is not
ffinal; you may withdraw your waiver whenever
you wish either before or during questioning.
R.W.: Whatever you said, you have the right
to not talk at any time if you want to hire
an attorney, [w]henever you wish.
However, Chen asked questions and the rights were repeated.
The transcript shows that the discrepancies were corrected and
Chen indicated he understood. The videotape shows that Chen is
engaged with the officers and nodding his head in affirmance.
Therefore, we are satisfied based on the record that Chen's waiver
of his Miranda rights was knowing and intelligently given.
We also discern no error by the trial court in precluding Dr.
Lu from testifying at the Miranda hearing. Our review of evidence
issues "is limited to examining the decision for abuse of
discretion." Hisenaj v. Kuehner,
194 N.J. 6, 12 (2008) (citing
Brenman v. Demello,
191 N.J. 18, 31 (2007)). "Considerable
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. Feaster, 156 N.J.
16 A-4929-14T3
1, 82 (1998). 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.'" State v. Marrero,
148 N.J. 469, 484 (1997) (quoting
State v. Kelly,
97 N.J. 178, 216 (1984)).
The admission of "expert testimony depends on a witness's
'specialized knowledge' to address matters outside a juror's
understanding." State v. Hyman,
451 N.J. Super. 429, 443 (App.
Div. 2017) (quoting Kelly,
97 N.J. at 208). "If scientific,
technical, or other specialized knowledge will assist the trier
of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an
opinion or otherwise." N.J.R.E. 702. There are three
requirements:
(1) the intended testimony must concern a
subject matter that is beyond the ken of the
average juror; (2) the field testified to must
be at a state of the art such that an expert's
testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise
to offer the intended testimony.
[Hyman,
451 N.J. Super. at 443.]
17 A-4929-14T3
We discern no misapplication of discretion by the court in
precluding Dr. Lu's testimony2 when she had no familiarity with
Miranda before she was retained by the defense, had not studied
law enforcement, Chinese Law, Miranda or Chinese immigrants and
their understanding of Miranda.
Chen contends that the trial court erred in instructing the
jury on the law. Because there was no objection made to the charge
at trial, we review this issue under a plain error standard,
meaning that our inquiry is to determine whether this was an error
that was "clearly capable of producing an unjust result." R.
2:10-2; see State v. Macon,
57 N.J. 325, 336 (1971). Where no
objection is made to a jury instruction, this creates "a
presumption that the charge was not error and was unlikely to
prejudice the defendant's case." State v. Singleton,
211 N.J.
157, 182 (2012).
Under the plain error standard, reversal of a defendant's
conviction is required if there was error "sufficient to raise a
reasonable doubt as to whether [it] led the jury to a result it
otherwise might not have reached." State v. Green,
447 N.J. Super.
317, 325 (App. Div. 2016) (quoting Macon,
57 N.J. at 336); see
2
Dr. Lu testified at Chen's trial as an expert in clinical
psychology. She offered the opinion that Chen has post-traumatic
stress disorder from the events of June 16, 2010.
18 A-4929-14T3
also State v. Green,
86 N.J. 281, 289 (1981) (applying plain error
when no objection was made to the judge's jury charge on
identification).
Chen contends that it was error to deny his motion for
acquittal or to allow the jury to consider whether Chen "either
by his own hand" committed the murder of the male victim because
he contends there was not enough evidence to show that his physical
actions were done with the conscious object to cause death or
serious injury. He contends that it was error not to use language
from State v. Bridges,
133 N.J. 447, 467 (1993) in charging the
jury because the male victim's murder was not "objectively
foreseeable or reasonably to be anticipated." He contends the
court erred in allowing the jury to consider whether Chen committed
count one (armed burglary) or count six (armed robbery) "either
as a principal or accomplice" because mere possession of the knife
was not enough. Chen contends that because the underlying robbery
and burglary charges were flawed, that it affected the felony
murder charges under counts three and four. He asserts that the
court erred in instructing the jury that it could find defendant
guilty of possession of the knife for an unlawful purpose as an
accomplice.
In reviewing the adequacy of the judge's charge to the jury,
we consider the charge as a whole in determining whether it was
19 A-4929-14T3
prejudicial. See State v. Figueroa,
190 N.J. 219, 246 (2007)
(citing State v. Wilbely,
63 N.J. 420, 422 (1973)). "[A]ppropriate
and proper jury charges are essential to a fair trial." State v.
Baum,
224 N.J. 147, 158-59 (2016) (quoting State v. Reddish,
181 N.J. 553, 613 (2004)); State v. Collier,
90 N.J. 117, 122 (1982)
(quoting Green,
86 N.J. at 287).
Here, there was nothing clearly capable of producing an unjust
result about the judge's charge to the jury. The charge tracked
the model jury charges. Model jury charges are often helpful to
trial courts performing this important function. See Mogull v.
CB Commercial Real Estate Grp., Inc.,
162 N.J. 449, 466 (2000)
(holding that instructions given in accordance with model charges,
or which closely track model charges, are generally not considered
erroneous).
"[A] defendant must be shown to have engaged in conduct
designed to aid another in the commission of a crime to be found
guilty under a theory of accomplice liability." State v. Roldan,
314 N.J. Super. 173, 189 (App. Div. 1989). "[A] defendant may be
found guilty under a theory of conspiratorial liability based
solely on an agreement to commit a crime." Ibid. "If the facts
will support liability as an accomplice or a co-conspirator, each
theory supported by the facts should be charged to the jury, and
the jury need not agree on the basis for liability to convict the
20 A-4929-14T3
defendant of the substantive crime." Cannel, N.J. Criminal Code
Annotated, cmt. 7 on
N.J.S.A. 2C:2-6(c) (2017).
Lin's testimony supported both theories. Chen was aware
before they travelled to New Jersey that Lin had a knife and brass
knuckles. Chen was traveling with Lin to New Jersey to steal from
the home of Lin's former supervisor. Chen knew they brought the
knife with them and that Lin used it to enter the house. They
discussed using the knife to threaten someone if they found them
in the house. Although Lin testified that he stabbed both victims,
Chen assisted in tying up the male victim's hands and feet. Chen
suggested that Lin go upstairs to look for more things to steal.
Chen beat the male victim with brass knuckles. He stuffed rags
in his mouth to try to keep him quiet. Chen called Lin downstairs
because he was having trouble keeping the male victim subdued once
he heard his sister screaming from upstairs. Chen told the police
in his statement that he thought that Lin was killing the female
victim upstairs. Chen held down the male victim when Lin commenced
stabbing him but then backed away.
We are satisfied on this record that there was no error
producing an unjust result in the charge to the jury. The charge
relied heavily on the model charges. It was not necessary for the
charge to use the exact language from Bridges when it incorporated
the concepts. The jury appropriately considered whether Chen was
21 A-4929-14T3
an accomplice or co-conspirator and the charge explained these to
the jury. The court did not err in charging the jury that defendant
could be found guilty as a principal or accomplice based on the
record.
Chen contends that the trial court erred in denying his motion
for an acquittal. Chen moved for acquittal under Rule 3:18-1 on
count two, "the knowing and purposeful murder of [the male
victim]." Defense counsel argued that Chen did not act purposely
in killing the male victim.
Under Rule 3:18-1, a trial court must enter a judgment of
acquittal "if the evidence is insufficient to warrant a conviction"
of one or more offenses charged in the indictment. The court "is
not concerned with the worth, nature or extent (beyond a scintilla)
of the evidence, but only with its existence, viewed most favorably
to the State," State v. Muniz,
150 N.J. Super. 436, 440 (App. Div.
1977), and whether that would enable a jury to find guilt of the
charge beyond a reasonable doubt. "If the evidence satisfies that
standard, the motion must be denied." State v. Spivey,
179 N.J.
229, 236 (2004). We apply the same standard in determining this
issue. See State v. Bunch,
180 N.J. 534, 549 (2004).
We agree with the trial court that based on the evidence,
which included Lin's testimony about Chen's role in the armed
burglary and his acts that enabled Lin to stab the male victim,
22 A-4929-14T3
that serious bodily injury or death was a reasonably foreseeable
consequence of their plan.
Chen contends that his sentence was excessive. He argues
that the court should not have found aggravating factors one or
two because he did not commit the murders with his own hand.
We review the judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes,
217 N.J. 57, 70 (2014).
We must determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) 'the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.'
[Ibid. (alterations in original) (quoting
State v. Roth,
95 N.J. 334, 364-65 (1984)).]
Aggravating factor one concerns "the 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). Factor two concerns
the "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 . . . ."
N.J.S.A. 2C:44-1(a)(2).
23 A-4929-14T3
We are satisfied the court did not abuse its discretion in
finding these factors. The male victim was tied hand and foot and
to the bed frame, making him more vulnerable to attack. The
medical examiner testified that the male victim was stabbed
seventy-four times, with disfiguring cuts to his face and abdominal
cuts that revealed his intestines. Chen tied the victim, beat him
and then held him at least in part while Lin stabbed him. The
victim was alive long enough to escape, leave the house and stumble
to the street before collapsing.
There was nothing about Chen's sentence that shocked one's
conscience in light of his actions. The court was clear that
because there were two victims, Chen could have been sentenced to
consecutive terms. He was sentenced to concurrent terms because
Lin was sentenced to this. Chen's sentence was not excessive
given his involvement with these crimes.
Affirmed.
24 A-4929-14T3
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