STATE OF NEW JERSEY v. JALIYL AMAKER
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-5068-17T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JALIYL AMAKER, a/k/a
JAMALL BROWN, JALIL
BROWN, JAYLIL AMAKER,
JALIYL S. AMAKER, JALIVI S.
AMAKER, JAVLIL AMAKER,
JAYLIL TAYLOR, and JOLLI,
Defendant-Appellant.
_____________________________
Submitted November 4, 2020 – Decided December 14, 2020
Before Judges Yannotti, Mawla, and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Indictment No. 17-04-0256.
Joseph E. Krakora, Public Defender, attorney for
appellant (Laura B. Lasota, Assistant Deputy Public
Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor, attorney for
respondent (Erin M. Campbell, Assistant Prosecutor,
on the brief).
PER CURIAM
Following a jury trial, defendant was convicted of second-degree unlawful
possession of a weapon and other offenses. Defendant appeals from his
judgment of conviction dated May 21, 2018. For the following reasons, we
affirm defendant's convictions and sentence.
I.
In January 2017, a 9-1-1 caller reported that there was a man flashing a
gun on a street in Jersey City and threatening to shoot people. The responding
officers observed a group of men at the identified location but only the defendant
matched the description provided by the 9-1-1 caller. As the defendant
approached the officers, one of the responding officers saw a handgun
protruding from his waistband.
Defendant then grabbed the handgun from his waistband, turned, and ran
from the responding officers followed by Reonte Oliver. One officer testified
that Oliver yelled out "throw the gun, throw the gun" to defendant. Defendant
threw the gun from his waistband and discarded it as he crossed the street. The
handgun was later described by one of the officers as "gigantic," and had a
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magazine loaded with eight .45 caliber bullets with an additional bullet in the
chamber.
Defendant was ultimately tackled and during a search incident to arrest,
the police seized a handgun magazine loaded with eight bullets in defendant's
jacket. The officers also arrested Oliver.
Defendant was later charged with second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b)(1) (count one); fourth-degree possession of a
defaced firearm, N.J.S.A. 2C:39-3(d) (count two); fourth-degree obstruction of
the administration of law, N.J.S.A. 2C:29-1(a) (count three); fourth-degree
resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count four); fourth-degree
possession of a large capacity magazine, N.J.S.A. 2C:39-3(j) (count five); third-
degree hindering his own apprehension, N.J.S.A. 2C:29-3(b)(1) (count six); and
second-degree certain persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(1)
(count eight). Oliver was charged with third-degree hindering the apprehension
of another, N.J.S.A. 2C:29-3(a)(4).
The morning of jury selection, defendant moved to sever his case from
Oliver's. Defendant argued that trying the cases together would be unfairly
prejudicial because the State intended to introduce Oliver's statement directing
defendant to "throw the gun" which was averse to his interests. When asked by
A-5068-17T1
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the court why defendant's counsel waited so long to make the motion, counsel
stated she thought "there [wa]s no co-defendant in this case." The State opposed
the motion as untimely and noted that defendant's counsel was fully aware of
Oliver's status as a co-defendant, having received previous orders of the court
which identified Oliver as such.
The court noted that the motion practice in the case included Oliver's
application to dismiss the indictment and the State's motion to admit the 911
call, which were "filed, heard, [and] ruled upon" and as such, defendant's
counsel would have received notifications of the court's rulings which confirmed
Oliver's status as a co-defendant. The court accordingly denied defendant's
motion and characterized it as "terribly out of time" as all motions were to be
filed no later than June 5, 2017, approximately nine months prior to the date on
which defendant filed his severance application. The court also found that
defendant had "ample opportunity" to make a timely application and that there
was no newly discovered evidence unavailable to defendant prior to making the
motion.
During jury selection, the prosecutor used his peremptory challenges to
excuse four African-American jurors. The first excused juror stated he had
previously testified in court when "somebody claimed to be [him], got a ticket,
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didn't pay it, [and the court] sent out a bench warrant." He explained that he
offered proof about the mistaken identity issue, but the officer refused to state
whether he recognized him. When the prosecutor sought clarification as to how
this affected his views of the justice system and police, the juror stated, "I just
didn't appreciate the way he didn't acknowledge that I wasn't the person."
A second excused juror stated she was a probation officer, had a degree
in social work, and had a cousin incarcerated for attempted murder. A third
juror explained how he had previously served as a juror in a civil case in the
Bronx. Finally, the fourth juror, when explaining his views on gun cont rol,
stated "I don't think guns are the problem, guns have never been the problem,
it's stupid people with guns."
The court, sua sponte, addressed the State's challenges with the prosecutor
who offered non-race-based reasons for dismissing each juror. Regarding the
juror who was issued an erroneous bench warrant, the prosecutor explained he
was "afraid that [the juror] would not believe the officer's testimony" which was
significant as the evidence was "completely officer-based." With respect to the
juror who was employed as a probation officer, the prosecutor noted that because
a family member was incarcerated and she served as a probation officer, he
"didn't want somebody who was dealing with criminals on a daily basis" serving
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as a juror. As to the juror who had previously served on a jury in the Bronx, the
prosecutor explained that he "attempted to make eye contact with him more than
once" and the juror "looked back towards the defense a number of times."
Finally, the prosecutor stated the fourth juror was excused because "[t]he stupid
people with guns comment bothered" him and he was concerned regarding
potential jury nullification.
The court denied defendant's motion for a mistrial and explained that it
"recall[ed] the comment about stupid people carrying guns" and that the juror
who experienced mistaken identity seemed "a bit annoyed." The court also
found the probation officer "ha[d] much contact with criminal defendants" and
"could lead one to believe that she may be a little bit softer or more lenient" on
defendant. The court concluded that the prosecutor's decision to strike the four
African-American jurors was "simply coincidental" and "not an effort to purge
the jury of African-Americans."
At trial, defendant stipulated that he did not have a permit to carry a
firearm. A detective for the State Police Ballistics Unit testified that the gun
was operable, the magazine held .45 caliber ammunition which fit into
defendant's gun, was capable of being fired with the magazine, and the serial
number had been grinded off. On the State's application, the court dismissed
A-5068-17T1
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count five because the ballistics expert concluded the gun only carried fourteen
bullets, not fifteen as required by N.J.S.A. 2C:39-3(j).
After the State rested, Oliver moved for a judgment of acquittal, which
the court granted. The court determined that Oliver's statement was not
admissible against defendant because "the prejudice far outweigh[ed] any
relevance." The court then instructed the jury as follows:
I've struck those statements from the record. They are
not evidence. When you return to deliberate at the end
of this case, you cannot consider those statements as
evidence.
Now I don't expect that you can erase that from your
mind. I know the mind is not a tape recorder. In
instructing you on that, what I'm telling you is, you
have to remember those statements and remember that
you cannot use [them]. They can't come up during the
deliberations, they can play no role.
They had only been admitted as they related to Mr.
Oliver. As you know, he's not here, so the statements
play no role in this case and the case against Mr.
Amaker.
During the jury charge, the court again instructed the jury that Oliver's
statement was not evidence and could not "be considered by you in your
deliberations in this matter." The jury found defendant guilty of counts one,
two, three, four, and six. Defendant subsequently pled guilty to count eight,
which was bifurcated from the trial.
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At sentencing, the State made an application for an extended term
pursuant to N.J.S.A. 2C:43-6(c), and defendant conceded his prior conviction
for aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4), subjected him to
a mandatory extended term which converted his sentencing exposure for his
second-degree charge from five to ten years to the range for a first-degree crime,
or ten to twenty years. See N.J.S.A. 2C:43-6(a). The court reviewed defendant's
prior arrests and convictions and noted "a history that is replete with violent
behavior."
After concluding that the aggravating factors substantially outweighed the
nonexistent mitigating factors, the court imposed the following prison term for
each count: 1) sixteen years subject to eight years of parole ineligibility,
pursuant to N.J.S.A. 2C:43-6(c) for count one; 2) separate eighteen-month
sentences for counts two, three, and four; 3) five years for count six; and 4) ten
years subject to five years of parole ineligibility for count eight. The court found
the sixteen-year sentence imposed on count one "sufficient" and ordered the
remaining sentences to run concurrent to the sentence imposed on count one.
On appeal, defendant raises the following contentions:
I. THE TRIAL COURT ERRED WHEN IT HELD
THAT DEFENDANT'S SEVERANCE MOTION
WAS UNTIMELY AND REFUSED TO
CONSIDER THE MERITS OF THAT MOTION.
A-5068-17T1
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A. [THE TRIAL COURT ERRED
WHEN IT REFUSED TO
CONSIDER DEFENDANT'S
SEVERANCE MOTION AND
INSTEAD FOUND THAT IT WAS
MADE OUT OF TIME.]
B. [THE SEVERANCE MOTION
SHOULD HAVE BEEN
GRANTED.]
C. [THE TRIAL COURT'S ERRORS
IN FAILING TO SEVER THE
CASES WAS COMPOUNDED
WHEN JUDGMENT OF
ACQUITTAL WAS GRANTED
FOR THE CO-DEFENDANT
AFTER HIS PREJUDICIAL AND
INADMISSIBLE STATEMENT
HAD ALREADY BEEN
ADMITTED AT TRIAL.]
D. [THE TRIAL COURT'S
CURATIVE INSTRUCTION WAS
INSUFFICIENT TO CURE THE
TAINT CAUSED BY THE
FORMER CO-DEFENDANT'S
PREJUDICIAL STATEMENT.]
II. THE TRIAL COURT ERRONEOUSLY RULED
THAT THE STATE'S USE OF PEREMPTORY
CHALLENGES TO EXCUSE FOUR
AFRICAN-AMERICAN JURORS WAS BASED
UPON LEGITIMATE NON-
DISCRIMINATORY REASONS.
A-5068-17T1
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III. DEFENDANT'S SENTENCE IS MANIFESTLY
EXCESSIVE AND MUST BE REDUCED.
II.
In his first point, defendant challenges the court's severance decision on
both procedural and substantive grounds. Procedurally, he contends the court
abused its discretion in denying the motion as untimely as good cause existed
for the court to consider the merits of his application. Substantively, he
maintains that the severance application should have been granted as he was
prejudiced by the jury considering then co-defendant Oliver's statement to
"throw the gun, throw the gun," notwithstanding the court's limiting instructions.
We disagree with both of these arguments.
The applicable law of severance is clear. "Two or more defendants may
be tried jointly 'if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an offense
or offenses.'" State v. Brown, 170 N.J. 138, 159-60 (2001) (quoting R. 3:7-7).
Courts generally prefer to try co-defendants jointly, "particularly when 'much of
the same evidence is needed to prosecute each defendant.'" Id. at 160 (quoting
State v. Brown, 118 N.J. 595, 605 (1990)). "That preference is guided by a need
for judicial efficiency, to accommodate witnesses and victims, to avoid
A-5068-17T1
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inconsistent verdicts, and to facilitate a more accurate assessment of relative
culpability." Ibid.
A single joint trial, however, may not take place at the expense o f a
defendant's right to a fair trial. State v. Sanchez, 143 N.J. 273, 290 (1996).
When considering a motion for severance, a trial court should "balance the
potential prejudice to defendant's due process rights against the State's interest
in judicial efficiency." Brown, 118 N.J. at 605 (quoting State v. Coleman, 46 N.J. 16, 24 (1965)).
Courts apply a rigorous test for granting severance. Brown, 170 N.J. at
160. A mere claim of prejudice is insufficient to support a motion to sever.
State v. Moore, 113 N.J. 239, 274 (1988). A defendant also does not have the
right to severance simply because he or she believes that a separate trial "would
offer defendant a better chance of acquittal." State v. Johnson, 274 N.J. Super.
137, 151 (App. Div. 1994) (quoting State v. Morales, 138 N.J. Super. 225, 231
(App. Div. 1975)).
"A motion for separate trial of counts of an indictment or accusation must
be made pursuant to [Rule] 3:10-2, unless the court, for good cause shown,
enlarges the time." R. 3:15-2(c). Typically, post-indictment motions must be
made by the initial case disposition conference and a pre-trial motion should be
A-5068-17T1
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determined before the trial memorandum is prepared and the trial date is fixed
"unless the court, for good cause, orders it deferred for determination at or after
trial." R. 3:10-2(b).
Our scope of review on this issue is limited. The decision to sever rests
within the trial court's discretion. State v. Weaver, 219 N.J. 131, 149 (2014).
An appellate court will defer to the trial court's decision on a severance motion
unless it constitutes an abuse of discretion. Ibid.
In this matter, the court did not abuse its discretion in refusing to consider
the defendant's severance application. The motion was made the morning of
jury selection, well after the deadline imposed by the Rules. Further, while
defendant offered lack of notice about the joint trial as a reason for the delay,
the court's conclusion that defendant's explanation did not establish good cause
under Rule 3:10-2 was amply supported by the record as defendant would have
been aware of his status as a co-defendant with Oliver based on the motion
practice in the case, at a minimum.
Citing State v. McLaughlin, 205 N.J. 185, 206-08 (2011) and Bruton v.
United States, 391 U.S. 123 (1968), defendant also contends that by failing to
consider the severance motion, defendant's constitutional right to confront
Oliver about his statement was violated. Defendant argues allowing the
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statement was prejudicial because it created the inference that "defendant was,
in fact, in possession of a gun." Defendant also contends: 1) the statement's
prejudice to defendant was "compounded" when a judgment of acquittal was
granted for Oliver, 2) the statement was inadmissible hearsay, and 3) the court's
curative instruction to the jury was "meaningless," citing State v. Vallejo, 198 N.J. 122, 134 (2009), because the instruction was not "firm" or "clear."
We conclude these arguments are substantively meritless as they ignore
the practical effect of the court's dismissal of the charge against Oliver, its
subsequent multiple limiting instructions, and the overwhelming evidence of
defendant's guilt independent of Oliver's statement.
First, as noted, when the court granted Oliver's motion for a judgment of
acquittal, it effectively severed it from defendant's trial prior to the jury's
deliberations. Second, the court provided two strongly worded limiting
instructions that directed the jury to give no consideration to Oliver's statement.
We assume and have no reason to doubt based on the record, that the jury heeded
the court's instructions. See State v. Burns, 192 N.J. 312, 335 (2007) ("One of
the foundations of our jury system is that the jury is presumed to follow the trial
court's instructions." (citing State v. Nelson, 155 N.J. 487, 526 (1998))).
A-5068-17T1
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Additionally, the evidence of defendant's guilt was overwhelming. See
State v. Sterling, 215 N.J. 65, 104 (2013) (affirming defendant's conviction
despite improper joinder because of "the strong, independent proof of
defendant's guilt"). Indeed, one of the responding officers who arrested
defendant testified that he clearly saw a gun protruding from defendant's
waistband, that defendant "grabbed at the handgun" before running from him,
that he subsequently "discarded [the gun] on the street," and he heard the gun
"ma[k]e a loud clanking noise when it hit the ground." The officer also
identified the gun and the loaded magazine that defendant discarded, and a gun
magazine and bullets found on defendant when he was arrested. A second
responding officer similarly testified to observing defendant in possession of the
gun.
Finally, the 9-1-1 call which the jury considered described an individual
resembling defendant as in possession of a gun. The responding officers
identified defendant as the only person who matched the description provided
by the 911 caller. Thus, even if the court's joinder decision was incorrect, the
overwhelming evidence against defendant supports the conclusion that any error
was harmless. See R. 2:10-2; see also State v. Prall, 231 N.J. 567, 588 (2018)
("[W]hen evaluated in light of the vast evidence against defendant, . . . errors
A-5068-17T1
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[by the trial court] were not 'sufficient to raise a reasonable doubt as to whether
[they] led the jury to a result it otherwise might not have reached.'" (alteration
in original) (quoting State v. Daniels, 182 N.J. 80, 95 (2004))).
III.
In his second point, defendant challenges the prosecutor's exercise of
peremptory challenges. Defendant, an African-American, specifically claims
the prosecutor improperly used preemptory challenges to exclude prospective
African-American jurors from the jury panel, in violation of defendant 's
constitutional right under Batson v. Kentucky, 476 U.S. 79 (1986), and State v.
Gilmore, 103 N.J. 508 (1986), as explained in State v. Osorio, 199 N.J. 486
(2009). We disagree.
"[T]he determination of whether the prosecution has exercised peremptory
challenges in a discriminatory manner involves a three-step procedure." State
v. Clark, 316 N.J. Super. 462, 468 (App. Div. 1998). It begins with a "rebuttable
presumption that the prosecution has exercised its peremptory challenges on "
permissible grounds. State v. Thompson, 224 N.J. 324, 340 (2016) (quoting
Gilmore, 103 N.J. at 535). To rebut this presumption, the defense must show
"that the prosecution exercised its peremptory challenges on constitutionally -
impermissible grounds." Id. at 341 (quoting Gilmore, 103 N.J. at 539).
A-5068-17T1
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As the party objecting to a peremptory challenge, defendant bears the
burden to prove purposeful discrimination based on the "totality of the relevant
facts." Batson, 476 U.S. at 94. "The opponent of the strike bears the burden of
persuasion regarding racial motivation . . . ." Thompson, 224 N.J. at 334
(quoting Davis v. Ayala, 576 U.S. 257, 271 (2015)). "That burden is slight, as
the challenger need only tender sufficient proofs to raise an inference of
discrimination." Osorio, 199 N.J. at 492.
After the defense has made this showing, the burden shifts to the State to
"articulat[e] 'clear and reasonably specific' explanations of its 'legitimate
reasons' for exercising each of the peremptory challenges." Thompson, 224 N.J.
at 341 (quoting Gilmore, 103 N.J. at 537). The party exercising the peremptory
challenge must provide evidence "that the peremptory challenge[] under review
[is] justifiable on the basis of concerns about situation-specific bias." Gilmore,
103 N.J. at 537.
The trial court must determine whether counsel provided a "reasoned,
neutral basis for the challenge or if the explanations tendered are pretext."
Osorio, 199 N.J. at 492. The party "must satisfy the court that [it] exercised
such peremptories on grounds that are reasonably relevant to the pa rticular case
A-5068-17T1
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on trial or its parties or witnesses." Gilmore, 103 N.J. at 538 (alteration in
original) (quoting People v. Wheeler, 583 P.2d 748, 760-61 (Cal. 1978)).
In the third step, if the court is satisfied that the State has advanced
legitimate nondiscriminatory grounds in response to the objection, it must then
determine "whether, by a preponderance of the evidence, the party contesting
the exercise of a peremptory challenge has proven that the contested peremptory
challenge was exercised on . . . impermissible grounds of presumed group bias."
Osorio, 199 N.J. at 492-93. The court must consider whether the party
exercising the peremptory challenge:
has applied the proffered reasons for the exercise of the
disputed challenges even-handedly to all prospective
jurors. A nondiscriminatory reason for exercising a
peremptory challenge which appears genuine and
reasonable on its face may become suspect if the only
prospective jurors with that characteristic who the
[party exercising the peremptory challenge] has
excused are members of a cognizable group.
In addition, the court must consider the overall pattern
of the [party exercising the peremptory challenge]'s use
of its peremptory challenges. Even if the reasons for
each individual challenge appear sufficient when
considered in isolation from the . . . other challenges,
the use of a disproportionate number of peremptory
challenges to remove members of a cognizable group
may warrant a finding that those reasons are not
genuine and reasonable.
A-5068-17T1
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Finally, the court must consider the composition of the
jury ultimately selected to try the case. Although the
presence on the jury of some members of the group
alleged to have been improperly excluded does not
relieve the trial court of the responsibility to ascertain
if any prospective juror was peremptorily challenged on
a discriminatory basis, this circumstance may be highly
probative of the ultimate question whether the . . .
proffered nondiscriminatory reasons for exercising
peremptory challenges are genuine and reasonable.
[Id. at 506 (alterations in original) (quoting Clark, 316
N.J. Super. at 473-74).]
We will uphold the trial court's ruling on whether the prosecution has
exercised its peremptory challenges on constitutionally impermissible grounds
unless it is clearly erroneous. Thompson, 224 N.J. at 344. The standard of
review "necessarily applies to the trial court's assessment of the prosecutor's
candor and sincerity in the presentation of reasons for exercising peremptory
challenges." Id. at 345 (citing State v. Williams, 113 N.J. 393, 411 (1988)).
We are satisfied from a review of the record that the court's decision was
not clearly erroneous. Even assuming that defendant made a prima facie
showing under the first step of the Osorio analysis based on the court's sua
sponte raising of the issue, the prosecutor provided a reasoned, neutral basis for
excluding each African-American juror that was supported by the record thereby
satisfying step two of the Osorio test. Those reasons included: 1) one juror's
A-5068-17T1
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potential to not believe the police officer's testimony, 2) a second juror who
worked as a probation officer and the prosecutor's concerns regarding purported
bias, 3) a third juror's failure to make eye contact with the prosecutor, and 4) the
fourth juror's comment about "stupid people with guns." After considering the
prosecutor's explanations, the court explicitly found that "the State ha[d]
provided sufficient information to establish that the striking of these jurors [wa]s
simply coincidental." 1
As to step three, the court considered the arguments of both the State and
defendant's counsel and found no constitutional violation. The court further
explained:
I do find that the State has provided . . . sufficient
information to establish that the striking of these jurors
1
While the court did not make a specific finding as to the juror who the
prosecutor contended failed to make eye contact, defendant points to no
authority to suggest he is entitled to a reversal of his conviction because of this
failure. We have previously acknowledged that "[i]t is not unimportant for an
attorney to establish eye contact with a potential juror." State v. Clark, 324 N.J.
Super. 558, 571-72 (App. Div. 1999) (upholding the strike of a potential juror
who "refused to look at" the prosecutor). Further, the reasons offered by the
prosecutor were strong and undisputed. In this regard, defense counsel did not
dispute that the excused juror refused to make eye contact with the prosecutor
while repeatedly looking at defense counsel. Cf. Osorio, 199 N.J. at 496-97
(trial counsel contested whether potential jurors high-fived each other). Finally,
the trial court's statements detailed supra, and its resumption of jury selection,
established that the court credited the prosecutor's non-discriminatory reasons
and rejected any claim of discrimination.
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is simply coincidental, it was not a pattern, not an effort
to purge this jury of African-Americans.
....
There has been a large number of African-Americans
excused by the court for cause. I would say that when
the panel came up it was a true reflection of the
community in terms of various sexes, races, ethnic
backgrounds . . . . It[ is just that] to this point . . . we
have had numerous African-Americans that were
excused for cause without objection.
So the fact that it is now a limited number is not as a
result of the actions of the State it has been for reasons
that we [have] had jurors come to sidebar, victims of
crimes, opinions on guns, and things of that nature. 2
In sum, there was ample evidence that the prosecutor had offered a
credible, "reasoned, neutral basis for [each] challenge," and that defendant had
failed to "prove[] that the contested peremptory challenge was exercised on
unconstitutionally impermissible grounds of presumed group bias." Osorio, 199 N.J. at 492-93. That evidence rebutted the apparent satisfaction of defendant's
prima facie claim, and defendant offered the trial court no evidence, argument,
or complaint to the contrary. "[I]f . . . the trial court believes the prosecutor's
nonracial justification, and that finding is not clearly erroneous, that is the end
2
We note that defendant did not renew his motion for a mistrial at the conclusion
of jury selection.
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of the matter." Thompson, 224 N.J. at 340 (alteration in original)(citation
omitted).
IV.
In defendant's final argument, he contends that the sentencing court erred
by finding aggravating factors three and six, failing to "find specific deterrence
as it relates to aggravating factor nine," refusing to "apply mitigating factors two
and eleven," and imposing "an excessive sentence in light of the aggravating
factors." We disagree with all of these arguments.
Sentencing determinations are reviewed on appeal with a highly
deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
The appellate court must affirm the sentence unless (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. (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
Once the trial court has balanced the aggravating and mitigating factors
set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the
permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010);
A-5068-17T1
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see also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts
may not substitute their judgment for that of the sentencing court, provided that
the "aggravating and mitigating factors are identified [and] supported by
competent, credible evidence in the record").
Here, the court found aggravating factors three, "[t]he risk that . . .
defendant will commit another offense," N.J.S.A. 2C:44–1(a)(3); six, "[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); and nine, "[t]he need
for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-
1(a)(9). We are satisfied from our review of the record that the court based its
findings on these aggravating factors on the seriousness of the offenses,
defendant's criminal history, and the need for deterrence. These findings were
all supported by competent and credible evidence in the record.
Further, any possible mitigating factor was clearly outweighed by the well-
supported aggravating factors. As the court observed, defendant has an
extensive juvenile and adult criminal history, that was "replete with violent
behavior." This criminal history supports a finding that there was a need for
specific deterrence. See State v. Thomas, 188 N.J. 137, 153-54 (2006).
A-5068-17T1
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The fact that defendant attempted to evade the responding officers while
in possession of a defaced and loaded gun supports the court's decision not to
apply mitigating factor two. See N.J.S.A. 2C:44-1(b)(2) ("The defendant did
not contemplate that his conduct would cause or threaten serious harm."). Nor
does the record contain evidence of excessive hardship establishing the
applicability of mitigating factor eleven. See N.J.S.A. 2C:44-1(b)(11) ("The
imprisonment of the defendant would entail excessive hardship to himself or his
dependents."); State v. Dalziel, 182 N.J. 494, 505 (2005).
In sum, the sentence is well within the permissible range, is supported by
credible evidence in the record, and does not shock the judicial conscience.
Accordingly, we discern no abuse of discretion. State v. Fuentes, 217 N.J. at
70.
To the extent we have not addressed any of the defendant's arguments, it
is because we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-5068-17T1
23
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