STATE OF NEW JERSEY VS. ARTURO I. ALOMAS (16-08-0560, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1055-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ARTURO I. ALOMAS,
a/k/a ARTURO ALOMAS
and JAMAL WILLIAMS,
Defendant-Appellant.
_______________________
Submitted January 4, 2021 – Decided April 30, 2021
Before Judges Hoffman, Suter and Smith.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 16-08-0560.
Joseph E. Krakora, Public Defender, attorney for
appellant (Seth Spiegal, Designated Counsel, on the
briefs).
Lyndsay V. Ruotolo, Acting Union County Prosecutor,
attorney for respondent (Meredith L. Balo, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
PER CURIAM
Defendant, Arturo I. Alomas, appeals his judgment of conviction. In this
matter we consider whether the trial court committed reversible error by
admitting evidence of a witness's out-of-court identification of defendant, and
by giving a flight charge to the jury. We also consider whether the trial court
erred in sentencing defendant to a seventy-five-year life term of incarceration
with eighty-five percent parole ineligibility. We affirm as to each issue for the
reasons set forth below.
I.
In March 2016, Trencie Johnson was in a relationship with defendant.
They lived together in the Mravlag Manor apartment complex, Building 30.
Saturday, March 26th was Ms. Johnson's birthday, so that weekend Ms.
Johnson and her friends and family members went out to celebrate while
defendant stayed home and watched their two-month-old child. Johnson and
friends went to a nightclub between 11 p.m. and midnight and left the club
between 2 a.m. and 2:30 a.m. the next morning.
Also on March 26th, Kadijah Hix attended a friend's party at Mravlag
Manor in Building 36 that lasted from Saturday night to early Sunday morning.
During the party, she had one beer. Around 4 a.m., Ms. Hix stepped outside the
apartment to get some air. While outside, Ms. Hix saw defendant walking from
A-1055-18
2
the apartment he shared with Ms. Johnson. She observed defendant walking
quickly, carrying something that looked like a bag in his hand. She saw the side
and back of defendant's head at that moment, but not his face. Ms. Hix sold
children's clothes to Ms. Johnson and defendant approximately eight times in
the previous two weeks. From these previous sales, Ms. Hix was able to take
note of defendant's head and face, complexion, physical body shape, how
defendant walked, and his mannerisms.
Later that day, during a phone conversation, Ms. Hix learned from her
sister that "something happened" to Ms. Johnson. Ms. Hix told her sister she
had seen defendant earlier that morning when she stepped outside of the party
at 4:00 a.m.
The next day, March 27, 2016, two of Ms. Johnson's cousins and her
mother went to Ms. Johnson's apartment. When they got there, they could not
open the door, so they started knocking and calling Ms. Johnson's name. When
they finally entered the apartment, they found Ms. Johnson laying on the floor
with a bag over her face. There was a wire tied around her neck and duct tape
used to restrain her wrists and feet. Defendant and the infant child were not at
the apartment.
A-1055-18
3
That same day, North Carolina State Trooper Denny Morgan noticed
defendant's Dodge Magnum driving down I-85 because it had blue lights in the
fog lamps. Trooper Morgan pursued defendant and eventually pulled him over.
Defendant's driver side wheels were on the fog line. Trooper Morgan got on his
vehicle's PA to tell defendant to move his car over. Defendant did not move
over. Trooper Morgan moved his patrol car closer to defendant's before he got
out of his patrol car. As Morgan emerged from his car, defendant pulled off and
sped down the interstate. Trooper Morgan gave chase and caught defendant
again. Once both cars stopped, he ordered defendant to get out of his car with
his hands up. Defendant complied and Morgan handcuffed defendant. When
Trooper Morgan checked the car, he observed a child inside. He notified the
Department of Child Services to pick up the child. Further, Trooper Morgan
discovered that this car was registered to Ms. Johnson.
Shortly after the chase, State Trooper Kevin Barringer arrived. Defendant
gave him permission to remove the child from the car. While in the car Trooper
Barringer observed that the vehicle's cargo area was loaded to the ceiling with
trash bags containing baby clothes, among other items. Barringer also saw a
purse and two cell phones. Trooper Barringer used those phones to talk to
defendant's mother and other individuals who were calling both phones.
A-1055-18
4
Barringer spoke to defendant's mother from his phone, while on one of the other
phones Barringer talked to "various individuals, some female and at least one
male."
On August 24, 2016, defendant was indicted for first-degree murder. He
filed a Wade/Henderson 1 motion to suppress the out-of-court identification of
him by Ms. Hix. The court conducted the hearing on June 20, 2018 and denied
defendant's motion that same day. After trial, a jury found defendant guilty of
murder. The trial court sentenced defendant to a seventy-five-year extended life
term subject to eighty-five percent parole ineligibility. Defendant filed a timely
notice of appeal.
II.
The Wade/Henderson Motion
At the hearing, Ms. Hix testified about the party she attended at Mravlag
Manor, Building 36, Apartment A the night of March 26 and into the early
morning hours of March 27. She had one beer at the party. Between 3 a.m. and
4 a.m., Ms. Hix stepped out of the apartment into the hallway. She described
the weather as breezy and clear, with a temperature of fifty to sixty degrees.
1
United States v. Wade, 388 U.S. 218 (1967) and State v. Henderson, 208 N.J.
208 (2011).
A-1055-18
5
While in the hallway she saw a bald light-skinned man wearing a green jacket
in the courtyard. He was walking from Building 30, Ms. Johnson's apartment
building. Ms. Hix said he was about a two-minute walk away from where she
was in the hallway of Building 36; but she also testified it was the distance from
the witness box to the back of the courtroom, fifty-two feet.2 She identified the
bald man as Ms. Johnson's boyfriend, defendant, although she did not know his
name. Ms. Hix testified that he looked like he had a bag in his hands when he
was walking across the courtyard. She went back into the apartment after she
lost sight of defendant. Later that day, Ms. Hix's sister called to tell her that Ms.
Johnson had been killed. Ms. Hix remembered what she saw early that morning
and called her sister back. Although the conversation with her sister shocked
her, it did not change what she thought she saw before talking to her. Ms. Hix
recognized defendant from having visited Ms. Johnson's apartment
approximately eight times to sell her baby's clothes before March 27. Defendant
paid Ms. Hix on those visits.
2
At the conclusion of trial, the court informed the jury that the parties stipulated
to a distance of three-hundred and twenty-eight feet between the apartment
where Ms. Hix was partying, and defendant's apartment that he shared with Ms.
Johnson.
A-1055-18
6
Ms. Hix also testified about her interview with the detectives. She
described defendant to them before they showed her a picture of him. She did
not feel as if she had to identify anyone nor did she "feel pressured in any way".
She was 100 percent sure defendant was the person she saw walking in the
courtyard that morning.
One of the detectives showed Ms. Hix a picture of defendant and asked if
the picture looked like the person she saw, she replied "[t]hat's him." Ms. Hix
testified that after the detectives showed her the picture of defendant, they did
not show Ms. Hix any other pictures. The detectives did not tell her that she
"had no obligation to pick out anybody" or that the picture she was shown "may
not be the person [they are] talking about."
Detective Christopher Scuorzo from the Union County Prosecutor's Office
testified. He interviewed Ms. Hix along with Detective Sophia Santos. Before
starting her interview, he admitted that the two detectives did not give any
instruction 3 to Ms. Hix. Detective Scuorzo summarized Ms. Hix's interview:
"she saw a male exiting the Mravlag apartment building in the early hours, I
3
"The detective[s] made no mention of having warned the victim that the
suspect might not have been the perpetrator and that the victim should not feel
compelled to make an identification, as is required by the Attorney General
Eyewitness ID Guidelines and Henderson." State v. Wright, 444 N.J. Super.
347, 354 n.3 (App. Div. 2016) (citing Henderson 208 N.J. at 261).
A-1055-18
7
believe, somewhere around the 4:00 a.m. hour, who she recognized to be
someone that she knew."
Detective Scuorzo also admitted the detectives did not perform a double-
blind identification procedure, nor did they employ filler pictures during the
process. They only showed Ms. Hix the one photograph of defendant. Detective
Scuorzo explained that "[p]rior to showing her the photograph we felt we had
established that she did, in fact, describe and know the [defendant] on a basis
where she was able to be shown a one-on-one photograph and we were satisfied
with that."
The trial court rendered an oral decision using the system and estimator
variables4 established in Henderson, 208 N.J. at 248–67. Analyzing system
variables first, the court found the detectives failed to conduct a blind
administration of the photo identification process. The detectives were directly
involved in the homicide investigation and knew defendant's identity.
4
"System variables" are factors relating to the identification that are within the
State's control and include such things as lineup or showup construction, blind
administration, pre-identification instructions, avoiding feedback and recording
confidence. Wright, 444 N.J. Super. at 354 n.5 (citing Henderson 208 N.J. at
248–67). "Estimator variables" are factors over which the State has no control
as they relate to the witness, the perpetrator, or the event itself and include such
things as distance and lighting, duration, weapon focus, race bias and stress.
Ibid.
A-1055-18
8
Additionally, the detectives did not provide Ms. Hix with pre-identification
instructions, nor did they employ a photo line-up. The trial court concluded that
the detective's photo identification process was impermissibly suggestive.
The court next analyzed the estimator variables, and it found Ms. Hix
credible. It found she had the opportunity to see "the way defendant walks and
the structure of his head," "albeit from the back, but with convincing recall."
The court reviewed the facts as related by Ms. Hix, including distance, ambient
lighting, Ms. Hix's previous interactions with defendant, and the time interval
between Ms. Hix's sighting of defendant at 4 a.m. on March 27th and her
identification of defendant for the detectives at 10 p.m. the same day. The court
acknowledged Ms. Hix had one beer around 10 p.m. Saturday night and that she
stayed up until dawn. Nonetheless, the court found Ms. Hix's "sure" photo
identification of defendant reliable based on the credible evidence in the record.
The court next found defendant failed to show a substantial likelihood of
misidentification, notwithstanding the impermissibly suggestive identification
procedure used by the detectives. Consequently, the court denied defendant's
motion to suppress Ms. Hix's out-of-court identification.
Flight Jury Charge
A-1055-18
9
At the charge conference, the court noted there were no lesser charges,
only first-degree murder. The trial court then made the following observations
about the upcoming charge on the record:
[W]e talked about the standard charges. The false in
one, false in all will be charged. Prior inconsistent
statement of witnesses, credibility, prior conviction of
a witness and those two last charges, statements of
credibility and prior conviction of witness refer to Miss
Hix. Stipulation will be in there. The expert testimony
charge regarding the medical examiner and the DNA
expert. The statements of defendant referring to the
oral statements of defendant, that charge that was read
during the witness' testimony to Miss Childers and Miss
Bracy. They will be referred to in that charge as well.
Flight. Defendant's election not to testify. So the
charge is pretty much in the position that it will be when
the jury gets it at this point in time in the draft I
provided to counsel except for the identification charge
which needs some tweaking. I'll have that to you very
shortly and you can review that and let me know
whether or not there are any issues.
[(Emphasis added).]
After summations, the court gave the jury charge, which included the
Model Criminal Jury Charge on Flight. 5 Defendant did not object to any aspect
of the charge. The jury returned a verdict of guilty.
5
Model Jury Charges (Criminal), "Resisting Arrest – Flight Alleged (N.J.S.A.
2C:29-2(a))" (rev. May 7, 2007).
A-1055-18
10
The Sentencing Hearing
At sentencing, the court reviewed defendant's criminal history, 6 and found
defendant eligible for an extended term sentence.
The court addressed the aggravating and mitigating factors required for
sentencing pursuant to N.J.S.A. 2C:44-1. The court found aggravating factor
three applied because defendant was adjudicated as a juvenile three times and
he had an adult criminal history. The court found aggravating factor six applied
because of defendant's previous parole violation, and the seriousness of the
crime. The court found the record supported application of aggravating factor
nine, general deterrence. Finally, the court found aggravating factor fourteen
applied, finding that the killing of Ms. Johnson was an act of domestic violence
and that defendant committed it in the presence of their infant child.
Defendant argued for a non-statutory mitigating factor. He worked at a
local restaurant and had risen to a management position. The court rejected the
argument because he had only worked for a short period of time prior to the
6
Defendant was thirty-three at the time of this murder. In April 2003, defendant
was convicted of unlawful possession of an imitation firearm. In August 2003,
defendant was sentenced for three crimes: third-degree theft, third-degree
eluding, and third-degree burglary. On April 9, 2007, defendant was convicted
of second-degree eluding and two counts of third-degree assault. On November
30, 2007, defendant was convicted of second-degree robbery.
A-1055-18
11
murder.7 The defense argued mitigating factor eleven, hardship to himself or
his dependents, 8 which the court also rejected. The court found aggravating
factors three, six, nine and fourteen substantially outweighed what the court
determined to be non-existent mitigating factors.
The court then sentenced defendant to an extended life term of seventy-
five years with a parole ineligibility term of sixty-three years and eight months.
Defendant raises three issues on appeal:
POINT I:
ALOMAS' CONVICTION SHOULD BE REVERSED
BECAUSE THE CONVICTION IS THE RESULT OF
AN OUT OF COURT IDENTIFICATION THAT WAS
SO IMPERMISSIBLY SUGGESTIVE AS TO GIVE
RISE TO A VERY SUBSTANTIAL LIKELIHOOD OF
IRREPARABLE MISIDENTIFICATION.
POINT II:
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR BY FIRST INSTRUCTING THE JURY AS
TO FLIGHT BEING POSSIBLY INDICATIVE OF
CONSCIOUSNESS OF GUILT AND THEN
7
In defendant's "Letter Brief Seeking Mitigating Sentence" filed with the trial
court, defendant argued for mitigating factor eleven and the non-statutory
mitigation factor. At the sentencing hearing, defendant did not argue mitigating
factor eleven, but defendant has raised it on appeal.
8
The court found that defendant's only child was the two-month-old infant
daughter he shared with Ms. Johnson.
A-1055-18
12
COMPOUNDED THAT INITIAL ERROR BY
ISSUING AN UNCONSTITUTIONAL
INSTRUCTION ON FLIGHT AS CONSCIOUSNESS
OF GUILT; THIS ISSUE WAS NOT RAISED
BELOW.
POINT III:
DEFENDANT'S SENTENCE IS EXCESSIVE,
UNDULY PUNITIVE, AND MUST BE REDUCED.
III.
Ms. Hix's Out of Court Identification of Defendant
Our standard of review for an out-of-court-identification is "no different
from our review of a trial court's findings in any non-jury case." Wright, 444
N.J. Super. at 356–57 (citing State v. Johnson, 42 N.J. 146, 161 (1964)). "The
aim of the review at the outset is to determine whether the findings made could
reasonably have been reached on sufficient credible evidence present in the
record." Id. at 356 (quoting Johnson, 42 N.J. at 161). "Appellate review of a
motion judge's factual findings in a suppression hearing is highly deferential."
State v. Gonzales, 227 N.J. 77, 101 (2016) (citing State v. Hubbard, 222 N.J.
249, 262 (2015)). We will "not disturb the trial court's findings merely because
'it might have reached a different conclusion were it the trial tribunal' or because
'the trial court decided all evidence or inference conflicts in favor of one side' in
A-1055-18
13
a close case." State v. Elders, 192 N.J. 224, 244 (2007) (citing Johnson, 42 N.J.
at 162).
"The Due Process Clause of the Fourteenth Amendment prohibits the
admission of an unreliable out-of-court identification, which resulted from
impermissibly suggestive procedures." State v. Smith, 436 N.J. Super. 556, 564
(App. Div. 2014) (citing Manson v. Brathwaite, 432 U.S. 98, 106 (1977)).
Eyewitness evidence is inherently suspect, but it is equally recognized that an
eyewitness's identification may be the most crucial evidence. Ibid. (quoting
State v. Madison, 109 N.J. 223, 232 (1988)). "[W]hen a defendant presents
evidence that an identification was made under highly suggestive circumstances
that could lead to a mistaken identification, trial judges should conduct a
preliminary hearing, upon request, to determine the admissibility of the
identification evidence." State v. Chen, 208 N.J. 307, 311 (2011).
Four elements must be met by defendant before the trial court may grant
a Wade/Henderson hearing to determine the reliability of an identification.
"First, a defendant has the initial burden of showing some evidence of
suggestiveness that could lead to a mistaken identification." Henderson, 208
N.J. at 288. This "must be tied to a system—and not an estimator—variable."
Id. at 288-89. Second, the State must "offer proof to show that the proffered
A-1055-18
14
eyewitness identification is reliable—accounting for system and estimator
variables . . . ." Id. at 289. "Third, the ultimate burden remains on the defendant
to prove a very substantial likelihood of irreparable misidentification." Ibid.
(citing Brathwaite, 432 U.S. at 116). To do so, a defendant can cross-examine
eyewitnesses and police officials and present witnesses and other relevant
evidence linked to system and estimator variables. Ibid. "Fourth, if after
weighing the evidence presented a court finds from the totality of the
circumstances that defendant has demonstrated a very substantial likelihood of
irreparable misidentification, the court should suppress the identification
evidence." Ibid.We employ "system variables" to determine if there is suggestiveness.
Ibid. If the defendant "offers some evidence of suggestiveness", then the court
should conduct a Wade/Henderson hearing. Id. at 291. If the court finds proof
of suggestiveness, then it should consider estimator variables to evaluate the
"overall reliability of an identification and determine its admissibility . . . ." Id.
at 291.
Defendant contends Ms. Hix's identification was "extraordinarily
suggestive" and that the State failed to prove it was reliable. As a result,
A-1055-18
15
defendant argues the out-of-court identification was improperly before the jury.
We disagree.
After listening to witnesses' testimony and considering the Henderson
factors, the court found that Ms. Hix's identification was reliable because she
knew defendant by sight, by the way he was walking, from his head structure,
the fact that it was unusual to see him at that time of morning, and because she
knew defendant and her identification was based on that knowledge. Although
the court found that the police's procedures were impermissibly suggestive, it
ultimately concluded that defendant did not meet his burden to show the
identification had a substantial likelihood of misidentification.
Our review of this matter is "highly deferential" to the trial court's
findings. Gonzales, 227 N.J. at 101 (citing Hubbard, 222 N.J. at 262). Our
purpose on appeal is to determine whether "findings made could reasonably have
been reached on sufficient credible evidence present in the record." Wright, 444
N.J. Super. at 356 (quoting Johnson, 42 N.J. at 161). The ample record in this
case reveals sufficient credible evidence to support the trial court's conclusion
that Ms. Hix's photo identification of defendant was reliable. The
Wade/Henderson motion was properly denied by the trial court.
Flight Jury Charge
A-1055-18
16
"[W]here a defendant fails to object contemporaneously to a jury charge,
a plain error standard applies." State v. Nero, 195 N.J. 397, 407 (2008) (citing
State v. Chapland, 187 N.J. 275, 288-89 (2006)). "[P]lain error requires
demonstration of 'legal impropriety in the charge prejudicially affecting the
substantial rights of the defendant and sufficiently grievous to justify notice by
the reviewing court and to convince the court that of itself the error possessed a
clear capacity to bring about an unjust result.'" Ibid. (quoting Chapland, 187
N.J. at 288-89). Further, the error must be viewed in totality of the entire charge,
not in isolation. Ibid. (quoting Chapland, 187 N.J. at 288-89); see also State v.
Wilbely, 63 N.J. 420, 422 (1973) (citing State v. Council, 49 N.J. 341 (1967)).
In addition, any finding of plain error depends on an evaluation of the overall
strength of the State's case. Nero, 195 N.J. at 407 (quoting Chapland, 187 N.J.
at 288-89).
Moreover, trial errors that "[are] induced, encouraged or acquiesced in or
consented to by defense counsel ordinarily are not a basis for reversal on
appeal." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107
N.J. 339, 345 (1987)) (internal quotation marks omitted). This means "if a party
has 'invited' the error, he is barred from raising an objection for the first time on
A-1055-18
17
appeal." Ibid. (citing N.J. Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J.
328, 342 (2010)).
We apply the plain error standard because, as defendant acknowledges in
his brief, he did not object to the jury charge. Quite frankly, defendant had two
chances to object to the charge: first, when the court gave each party the entire
jury charge to review in preparation for summations and jury instructions, and
second, when the court explicitly asked the parties for objections to the charge.
Defendant has not met the burden required under Nero to justify appellate
review of this newly raised issue. We can find no legal impropriety whatsoever
in the model flight charge given to the jury. The record supports the trial court's
incorporation of the flight charge for consideration by the finder of fact. To the
extent that there is any error here, and we find none, it was consented to by the
defense. A.R., 213 N.J. at 561. Nothing about this charge "prejudicially
affect[ed] the substantial rights of the defendant and [was] sufficiently grievous
to justify notice by the reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an unjust result." Nero, 195
N.J. at 407. The flight charge issue is not properly before us for review.
The Sentence
A-1055-18
18
An abuse of discretion standard applies in the review of a sentencing
court's decision to impose an extended-term sentence. State v. Pierce, 188 N.J.
155, 166 n.4 (2006). A sentencing court must first "determine whether the
minimum statutory eligibility requirements for an extended-term sentence are
present." Id. at 169; see also State v. Tillery, 238 N.J. 293, 323 (2019). "[O]nce
the court finds that those statutory eligibility requirements are met, the
maximum sentence to which defendant may be subject is the top of the extended-
term [sentencing] range." Pierce, 188 N.J. at 169; see also Tillery, 238 N.J. at
324. "On appellate review, [we] apply an abuse of discretion standard to the
sentencing court's explanation for its sentencing decision within the entire
[sentencing] range." Pierce, 188 N.J. 169-70.
A sentencing court must address three questions when reviewing a
sentence: (1) "whether the correct sentence guidelines have been followed"; (2)
"whether there is substantial evidence in the record to support the findings of
fact upon which the sentencing court based the application of those guidelines";
and (3) "whether, in applying those guidelines to the relevant facts, the trial
court clearly erred by reaching a conclusion that could not have reasonably been
made upon a weighing of the relevant factors." State v. Martelli, 201 N.J. Super.
A-1055-18
19
378, 384–85 (App. Div. 1985) (quoting State v. Roth, 95 N.J. 334, 365–66
(1984)).
The relevant sentencing guidelines are found in N.J.S.A. 2C:44-3,
N.J.S.A. 2C:43-7(a)(6), and N.J.S.A. 2C:43-7.2. N.J.S.A. 2C:44-3 permits a
sentencing court to, "upon application of the prosecuting attorney, sentence a
person who has been convicted of a crime of the first, second or third degree to
an extended term of imprisonment if it finds" that defendant is a persistent
offender. N.J.S.A. 2C:44-3.
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.]
For a sentence pursuant to a murder conviction, the statute calls "for a
specific term of years which shall be fixed by the court between 35 years and
life imprisonment, of which the defendant shall serve 35 years before being
eligible for parole." N.J.S.A. 2C:43-7(a)(6). Further, the sentencing court on a
A-1055-18
20
murder conviction is statutorily required to fix a minimum term of eighty -five
percent of the sentence imposed, during which the defendant shall not be eligible
for parole. N.J.S.A. 2C:43-7.2(d)(1).
Defendant argues his life term was excessive, unduly punitive and must
be reduced. The trial court first reviewed defendant's past criminal history and
found the minimum statutory eligibility requirements for an extended term
sentence were present. The court found defendant qualified as a persistent
offender. Defendant has not contested this finding on appeal. The court
followed the correct sentencing guidelines. A thorough review of the sentencing
transcript reveals the trial court used the substantial credible evidence in the
record to find facts with which it performed its aggravating and mitigating factor
analysis.9 Among other facts the trial court found at sentencing, was that the
victim, Ms. Johnson, was found with her hands and feet bound by duct tape,
with a plastic bag over her head and an electrical cord near her neck. The court
9
The statutory aggravating factors considered by the trial court were: (3) the
risk that the defendant will commit another offense, (6) the extent of the
defendant's prior criminal record and the seriousness of the offenses of which
[the defendant] has been convicted, (9) the need for deterring the defendant and
others from violating the law, and (14) the offense involved an act of domestic
violence committed in the presence of a child under 16 years of age. N.J.S.A.
2C:44-1. The court found no mitigating factors applied.
A-1055-18
21
observed that the cause of death in evidence was asphyxiation as well as manual
strangulation.
We find the trial court's sentence was a "conclusion that could have
reasonably been made upon a weighing of the relevant factors." Martelli, 201
N.J. Super. at 384–85. We find no abuse of discretion in the trial court's sentence
of defendant to an extended life term of seventy-five years, nor do we find any
error in the imposition of the statutorily required eighty-five percent term of
parole ineligibility pursuant to N.J.S.A. 2C:43-7.2(d)(1).
Any argument not addressed here lacks sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-1055-18
22