STATE OF NEW JERSEY VS. M.C.-A. (13-08-1143, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-1059-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARK DUBAS,
Defendant-Appellant.
——————————————————————————————
Submitted December 8, 2016 – Decided March 1, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
11-09-0767.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michael J. Confusione,
Designated Counsel, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Lila B. Leonard,
Deputy Attorney General, of counsel and on
the brief).
PER CURIAM
Following a bench trial on an eight-count Passaic County
indictment, the trial judge convicted defendant Mark Dubas of
first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a); theft
by unlawful taking, N.J.S.A. 2C:20-3; theft of a motor vehicle,
N.J.S.A. 2C:20-2(b)(2)(b); and possession of a controlled
dangerous substance; N.J.S.A. 2C:35-10(a)(1). The judge
sentenced defendant to twenty-four years in prison for the
aggravated manslaughter conviction, subject to an eighty-five
percent period of parole ineligibility pursuant to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge also
sentenced defendant to a concurrent six-month term of
imprisonment and two concurrent four-year terms for the other
convictions.
On appeal, defendant raises the following arguments:
Point 1
The trial court erred in denying defendant's
motion for suppression of statements of
defendant and evidence seized by police.
Point 2
Defendant's sentence is improper and
excessive.
After reviewing the record in light of the contentions advanced
on appeal, we affirm.
I.
We briefly summarize the facts from the record. At
approximately 6:30 a.m. on the morning of April 1, 2011, Clifton
Police arrested defendant after discovering heroin, cocaine, and
related paraphernalia next to and inside the car he was driving.
2 A-1059-14T2
The car belonged to defendant's grandmother. Defendant had
stayed at her home the previous week.
After learning defendant had been arrested, defendant's
mother called defendant's grandmother, at approximately 7:30
a.m. When she received no response, she called the Clifton
Police Department and then traveled to the grandmother's house
with her husband. When Clifton Police Officer Victor Reyes
arrived at the home, he found all the doors and windows locked
except for one open window on the second floor. After a Clifton
firefighter entered the window and came downstairs to open the
door, defendant's mother entered the home and found the
grandmother lying dead on the basement floor in a pool of blood,
her body covered by a rug, with a pair of scissors sticking out
of her back. According to the medical examiner's testimony at
trial, the cause of death was cut wounds to the head, neck, and
torso, and the manner of death was homicide.
Prior to questioning defendant at the police station,
detectives presented defendant with a Miranda1 waiver form, which
he signed. At the end of the interview, police collected
defendant's clothing; the State police lab determined through
DNA analysis that the blood on defendant's shoes and pants
belonged to the victim. Police also determined that the bloody
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
3 A-1059-14T2
footprints found at the scene matched defendant's sneaker
treads. Police further searched a sports bag and found in the
car during his arrest and discovered ten items of jewelry inside
the bag. Defendant's mother told police that three of these
items belonged to defendant's grandmother.
On March 12 and May 13, 2014, the trial judge conducted a
Miranda hearing regarding defendant's motion to suppress his
statements to police. On May 14, 2014, the judge denied
defendant's motion, and then began the bench trial. Following
all of the testimony, the judge heard arguments on defendant's
motion to suppress the physical evidence. The judge granted the
motion with regard to the cocaine, but denied suppression of all
other evidence. The judge then found defendant guilty of the
offenses noted above.
II.
Defendant argues on appeal that the trial judge should have
granted his motion to suppress his statements to police,
contending: (1) he invoked his right to counsel, (2) he invoked
his right to silence, (3) police did not properly advise him
that he was a suspect in a murder investigation, and (4) his
statements were not voluntary because he needed medical
treatment during the interrogation. We reject these arguments.
4 A-1059-14T2
The events of defendant's interrogation proceeded as
follows. After arriving at the police station, defendant waited
there for approximately twelve hours; questioning began around
5:50 p.m. At the beginning of his interview, defendant
complained of a pain in his leg and told the detectives he
wanted to go to the hospital. Detective Aliano, one of the
interrogating officers, asked defendant whether he would be
willing to speak with him regarding "some things that we're
looking into" before going to the hospital. Defendant
responded, "I mean without a lawyer present?" Aliano then
explained that he had a Miranda form for defendant to review,
and that he could not talk to him without reviewing the form.
Defendant replied that he would "answer what questions I can
without a lawyer present."
The detectives then reviewed the Miranda form with
defendant, going line-by-line over each statement of rights.
When the officer asked defendant if he understood the line
advising that he had the right to speak with a lawyer, defendant
responded, "Mm-hm. But I don't have a lawyer present 'cause I'd
have to get one, right?" The detective began to respond,
"Exactly. 'If you want . . . ,'" but defendant cut him off and
continued reading the portion regarding his right to counsel.
Upon reaching the bottom waiver paragraph, defendant read the
5 A-1059-14T2
line, "I am willing to talk," and then stated, "[A]nd answer
certain questions I'll add to that." Defendant continued
reading and then said, "You're making me sign . . . that I don't
want a lawyer."
Following this statement, Detective Aliano explained the
purpose of the waiver form, stating, "At any time you have the
right to stop talking. So if there's anything that you don't
want to talk about you can always stop talking to us about that
and ask for an attorney." In order to ensure defendant
understood, Detective Aiello had defendant read the waiver
paragraph again. The following exchange then occurred:
Q: Do you understand that? Are you willing
to talk to us and answer questions whatever
– like you said certain questions . . .
A: Yeah
Q: . . . without a lawyer right now?
A: Mm-hm.
Q: Okay. Then sign the form right there. I
just want to make sure that you understand
it and we're clear as to – as to what, you
know, it is that you're reading.
Defendant signed the waiver form and the officers proceeded
with questioning. At one point during the interview, defendant
stated he needed "physical help" and was "craving a doctor right
now." The detectives requested emergency medical services and
informed defendant an ambulance was on the way, and they
6 A-1059-14T2
obtained defendant's permission to continue talking while they
waited. Shortly thereafter, approximately thirty-five minutes
after the Miranda warnings, the detectives informed defendant
his grandmother was dead and they believed he killed her. The
detectives also told defendant he was being charged with murder
and attempted to induce defendant to confess. Defendant
eventually responded, "I'm pleading the Fifth. I'm not talking
to you guys anymore." The detectives then ended the interview.2
Following the Miranda hearing regarding these events, the
trial judge denied defendant's motion to suppress his
statements. The judge determined defendant did not invoke his
right to counsel, finding defendant "made reference to . . . not
having a lawyer at this time and perhaps getting one or needing
one. But he doesn't say when." The judge noted defendant made
some ambiguous references to counsel, but determined the
detectives clarified these statements "several times" in order
to determine "exactly what it was that the defendant Dubas
wanted[,]" in accordance with State v. Alston, 204 N.J. 614
(2011).
2
The record shows one of the detectives asked defendant
several additional questions after this point. The trial judge
noted this final portion should be suppressed but found
defendant did not make any additional admissions. The judge
also acknowledged defendant planned to use some of his
statements as part of his defense strategy.
7 A-1059-14T2
The trial judge then found defendant invoked his right to
remain silent near the end of the interview when he stated "I'm
not talking to you guys anymore." Last, the judge discussed how
the detectives did not tell defendant he would be questioned
about his grandmother at the beginning of the interview. Noting
it was a "close call," the judge found the police did not
purposely delay filing formal charges in "bad faith" in order to
interview defendant without informing him of the situation.
In reviewing a motion to suppress, we "must uphold the
factual findings underlying the trial court's decision so long
as those findings are supported by sufficient credible evidence
in the record." State v. Elders, 192 N.J. 224, 243 (2007)
(citation omitted). However, the trial court's application of
the law to the factual findings is not given the same deference.
State v. Handy, 206 N.J. 39, 45 (2011).
We first address defendant's argument regarding his right
to counsel. When a defendant challenges a statement made during
a police interrogation, the State must prove beyond a reasonable
doubt that the waiver of the defendant's Miranda rights "was
knowing, intelligent, and voluntary in light of all the
circumstances." State v. Presha, 163 N.J. 304, 313 (2000). If
an individual "indicates in any manner and at any stage of the
process that he wishes to consult with an attorney before
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speaking there can be no questioning." Miranda, supra, 384 U.S.
at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707.
Our Supreme Court has held that "a suspect need not be
articulate, clear, or explicit in requesting counsel; any
indication of a desire for counsel, however ambiguous, will
trigger entitlement to counsel." State v. Reed, 133 N.J. 237,
253 (1993). To determine whether an individual has invoked his
or her right to counsel, our courts employ a "totality of the
circumstances approach that focuses on the reasonable
interpretation of [the] defendant's words and behaviors." State
v. Diaz-Bridges, 208 N.J. 544, 564 (2012).
Should a suspect's "words amount to even an ambiguous
request for counsel, the questioning must cease, although
clarification is permitted; if the statements are so ambiguous
that they cannot be understood to be the assertion of a right,
clarification is not only permitted but needed." Alston, supra,
204 N.J. at 624. In responding to an ambiguous statement, the
officer must limit himself or herself to clarification, "not
questions that operate to[] delay, confuse, or burden the
suspect in his assertion of his rights." State v. Johnson, 120
N.J. 263, 283 (1990) (citation omitted).
Defendant argues his statements indicating his willingness
to answer questions without a lawyer present were "at least
9 A-1059-14T2
ambiguous," requiring the detectives to "confirm or clarify
whether he was asserting his right to counsel." Although the
trial judge found the detectives did so "several times,"
defendant maintains the detectives "did not clarify defendant's
inquiries or references to obtaining counsel; they bypassed it."
Defendant's argument lacks merit. The record clearly shows
that in response to defendant's ambiguous statements regarding
counsel, the detectives took the time to carefully ensure he
understood he was waiving this right. Although the detectives
may not have asked defendant point-blank, "Do you want a
lawyer," as the interrogating officer did in Alston, supra, 204
N.J. at 626, the detectives made significant efforts to ensure
defendant understood his rights before he signed the waiver
form. Under the totality of the circumstances, we discern no
basis for disturbing the trial judge's conclusion that defendant
waived his right to counsel knowingly, intelligently, and
voluntarily.
Defendant similarly argues his statements to police were
inadmissible because he invoked his right to remain silent.
When a defendant unambiguously invokes his right to silence,
interrogation must immediately cease. State v. Maltese, 222
N.J. 525, 545 (2015). However, where the invocation is
ambiguous, the officers must "stop the interrogation completely"
10 A-1059-14T2
or "ask only questions narrowly directed to determining whether
defendant [is] willing to continue." Ibid. (alteration in
original) (quoting Johnson, supra, 120 N.J. at 284). Whether
the defendant has invoked his or her right turns on the totality
of the circumstances. Diaz-Bridges, supra, 208 N.J. at 569.
In Maltese, supra, 222 N.J. at 546, our Supreme Court held
a suspect's repeated statements to interrogating officers that
he wanted to speak with his uncle before answering questions
constituted an invocation of the right to remain silent.
Defendant argues the same conclusion applies here, contending he
invoked his right to silence at several points during the
interrogation; specifically, when he told the detectives he
would only answer "certain questions" and that there were some
questions he could not answer, when he said, "You're making me
sign that I don't want a lawyer," and when he told the officers
he needed "help." We disagree. Based on the totality of the
circumstances, we find these statements do not constitute
ambiguous invocations of the right to silence. We therefore
reach the same conclusion as the trial judge, that defendant did
not invoke his right to silence until he said he was "pleading
the Fifth" in response to the questions about his grandmother's
death.
11 A-1059-14T2
Next, defendant argues his Miranda waiver was involuntary
because the detectives did not inform him he was a murder
suspect at the beginning of the interview, in violation of State
v. A.G.D., 178 N.J. 56 (2003), and its progeny. Defendant
contends the trial court's finding was erroneous because there
is no "bad faith" requirement in the A.G.D. test.
In A.G.D., our Supreme Court held a defendant's Miranda
waiver was invalid because the police "did not inform him that
an arrest warrant had been issued against him." Id. at 66. The
Court continued, "Without advising the suspect of his true
status when he does not otherwise know it, the State cannot
sustain its burden to the Court' satisfaction that the suspect
has exercised an informed waiver of rights . . . ." Id. at 68.
Defendant contends he did not knowingly waive his rights under
this standard because police did not inform him he was being
charged with murder until approximately thirty-five minutes
after the Miranda warnings.
This argument lacks merit. In State v. Nyhammer, 197 N.J.
383, 404-05, cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L.
Ed. 2d 48 (2009), our Supreme Court distinguished A.G.D., noting
in the absence of an arrest warrant or criminal complaint, a
defendant's status as a suspect "is not an objectively
verifiable and discrete fact" for the interrogating officers.
12 A-1059-14T2
Rather than applying a bright-line rule, the Court held the
failure to inform a defendant of his suspect status at the time
of the Miranda warnings is a factor in the totality-of-the-
circumstances test for determining whether the suspect validly
waived his rights. Id. at 405, 407-08.
Applying this standard, we find the trial court
appropriately determined defendant knowingly and voluntarily
waived his rights. Unlike A.G.D., at the time of the
interrogation, police obtained search warrants but they had not
filed an arrest warrant or criminal complaint against defendant.
Moreover, shortly after completing the Miranda waiver form, the
detectives began asking defendant questions about his
grandmother's car. Although this occurred after the initial
waiver, defendant clearly demonstrated later in the interview he
had the mental capacity to assert his rights. The detectives
further asked defendant if he knew why he was being questioned,
to which defendant replied, "[b]ecause of drugs." Detective
Aliano responded, "Well, and – other things, too[,]" and asked
defendant if he knew what else they might ask about. Defendant
responded, "The fact that I was in my grandma's car."
Based on these exchanges, as well as defendant's review of
the Miranda waiver form, it is clear defendant was generally
aware of the relevant circumstances and therefore made a valid
13 A-1059-14T2
waiver of his Miranda rights. We are satisfied the trial
court's conclusion was not erroneous.
Last, defendant contends the State did not prove his
statements were voluntary, arguing because he was in custody for
twelve hours prior to the interrogation, and because he needed
medical treatment, his decision-making ability was impaired. We
disagree. Based on our review of the record, it is clear that
despite defendant's alleged medical issues he was attentive and
competent during the interview. We find no basis to disturb the
trial judge's ruling on defendant's motion to suppress.
III.
Defendant next argues the trial judge erred by denying his
motion to suppress the physical evidence seized from his person
and his grandmother's car. Defendant contends the police
violated his Fourth Amendment rights by stopping him without
reasonable suspicion and subsequently seizing the items during a
warrantless search. Defendant further argues, because the
police violated his rights, the court should have suppressed the
physical evidence and his statements as "fruits" of the illegal
search and seizure. We disagree.
During trial, three Clifton police officers testified to
the events of defendant's initial arrest. On April 1, 2011, at
approximately 6:30 a.m., Officer Justin Varga arrived at
14 A-1059-14T2
Maplewood Avenue, a residential neighborhood, due to a report of
a suspicious individual ringing doorbells asking for a drink.
Upon arriving at the scene, Officer Varga observed a parked 1992
Saturn car. Officer Varga approached the vehicle in his marked
police car and activated his overhead lights. At this point,
defendant exited the Saturn car and walked toward Officer Varga,
stating to the officer that his car would not start.
Officer Varga walked with defendant back to the Saturn.
Defendant got into the driver's seat, but the car did not start
when defendant turned the key. Varga noted he was not
investigating a crime during this time, but was trying to help
defendant as a "community caregiver." Officer Varga's backup,
Officer Hriczov, arrived at the scene, and defendant was asked
to produce his license. When the police noticed defendant's
license said he lived in Wayne, defendant told police he had
been living with his grandmother in Clifton, at her home on
Knapp Avenue, for approximately one week. Defendant stated he
borrowed the car from his grandmother.
While speaking with defendant, the officers observed
hypodermic needles and an open needle in the front passenger
seat of defendant's vehicle. The officers asked defendant where
he was coming from, and defendant responded he had been at a
needle exchange in Paterson and was now returning home to Knapp
15 A-1059-14T2
Avenue. However, when the officers asked defendant why his car
was facing Paterson since he had come from that direction,
defendant became "nervous [and] flustered." Officer Varga
further noticed "six glassine baggies" and a used hypodermic
needle outside defendant's driver-side window.
Another officer, Officer Eliasz, arrived at the scene.
Without entering the vehicle, Officer Eliasz looked through the
car windows and observed two hypodermic syringes and glassine
envelopes consistent with heroin use on the back seat and floor.
Defendant told the officers these items "must be one of my
friend's." Officer Eliasz proceeded to search the car and
further discovered purple bags, which he suspected contained
cocaine, under an ashtray in the center console. Defendant
again denied the substances were his. Police then placed
defendant under arrest for possession of controlled substances.
Reviewing this testimony, the trial judge found the police
acted appropriately in arresting and searching defendant. The
judge noted Officer Varga first approached defendant's car as a
community caretaker, and then observed the needles and heroin
outside the car under the plain view exception to the warrant
requirement. Officer Eliasz further looked in the vehicle and
noticed a syringe and heroin envelopes in plain view. At that
point, the judge determined the officers had probable cause to
16 A-1059-14T2
arrest defendant for heroin possession, and therefore the
officers appropriately searched defendant's car and backpack
under the search incident to arrest doctrine. The judge ruled
all the physical evidence was admissible except the cocaine,
which was not in a position where defendant could have reached
it during the arrest.
The Fourth Amendment to the United States Constitution and
Article I, paragraph 7 of the New Jersey Constitution preclude
the police from undertaking a warrantless search or seizure
unless the search or seizure falls within one of the few
exceptions to the warrant requirement. State v. Rodriguez, 172
N.J. 117, 125 (2002) (quoting State v. Maryland, 167 N.J. 471,
482 (2001)). These exceptions include limited instances where
police are performing a community caretaking function, State v.
Vargas, 213 N.J. 301, 305 (2013); when items are found in plain
view, State v. Gonzales, 227 N.J. 77, 101 (2016); and when a
search is incident to a lawful arrest, State v. Minitee, 210
N.J. 307, 318 (2012).
First, the community caretaking doctrine excuses the
warrant requirement when police officers are acting "to ensure
the safety and welfare of the citizenry at large." State v.
Diloreto, 180 N.J. 264, 276 (2004) (citation omitted). Police
must be acting in a way that is unrelated to their criminal
17 A-1059-14T2
investigatory duties, and courts should use a reasonableness
standard to determine whether police conduct was appropriate
under the circumstances. Id. at 275-76.
Next, our Supreme Court developed a three-part test to
determine whether the plain view exception may excuse a
warrantless search. State v. Earls, 214 N.J. 564, 592 (2013).
Specifically, the doctrine requires (1) the officer must be
"lawfully in the viewing area"; (2) it must be "immediately
apparent" to the officer that the items in plain view "were
evidence of a crime" or are contraband; and (3) the evidence
must be discovered "inadvertently." Ibid. (quoting State v.
Mann, 203 N.J. 328, 341 (2007)).3
Finally, under the search incident to arrest doctrine,
police may search a person and the area within his immediate
grasp during a legal arrest in order to ensure their safety and
prevent the destruction of evidence. See Minitee, supra, 210
N.J. at 318; State v. Pena-Flores, 198 N.J. 6, 20 (2009) ("[T]he
search incident to arrest exception is focused on the arrestee
himself and on eliminating his potential to endanger the police
or destroy evidence."), overruled on other grounds by State v.
3
Our Supreme Court recently eliminated the "inadvertence
prong" from the plain-view exception to the warrant requirement,
applying this new rule of law prospectively. See Gonzales,
supra, 227 N.J. at 101. Therefore, we analyze the circumstances
in the instant matter under the prior three-prong test.
18 A-1059-14T2
Witt, 223 N.J. 409 (2015). The search can occur prior to the
arrest if it is "part of a single uninterrupted transaction."
State v. O'Neal, 190 N.J. 601, 614 (2007) (quoting State v.
Bell, 195 N.J. Super. 49, 58 (1984)). However, the doctrine
does not apply where a suspect "has no capacity to reach the
interior of the vehicle to destroy evidence or to endanger the
police." State v. Dunlap, 185 N.J. 543, 548-49 (2006).
Applying these standards, we find the trial judge did not
abuse his discretion in denying defendant's motion to suppress
the physical evidence. Although he activated his overhead
lights upon arriving at the scene, it is clear Officer Varga
first approached defendant's car pursuant to his role as a
community caretaker in order to help defendant start his car.
Therefore, he was lawfully beside defendant's car when he
"inadvertently" noticed, in plain view, the "immediately
apparent" evidence of contraband. Earls, supra, 214 N.J. at
592.
The trial judge appropriately determined the situation then
evolved into a search incident to arrest. Although defendant
was outside the vehicle, because he was not yet handcuffed, the
judge found the officers had the right to "search the car [and]
the immediate area within the defendant's grasp . . . to see if
there [were] any weapons, to make sure they were not unsafe."
19 A-1059-14T2
The judge included officer Eliasz's search of defendant's
backpack under the reasoning, finding it also could have
contained a weapon. The judge further determined the search
occurred "simultaneously" with the arrest. We therefore discern
no basis to disturb the trial judge's well-reasoned findings and
conclusions regarding the arrest and search.
Defendant further contends the police unlawfully obtained
his statements and seized the additional evidence without a
warrant as "fruits" of the unlawful search, including a letter,
cell phones, defendant's jeans and sneakers, the DNA sample, a
receipt, and the jewelry. However, Detective Aliano testified
police obtained search warrants for the car, the grandmother's
home, and defendant's clothes and bag prior to his
interrogation. Because defendant's initial arrest was valid,
his argument with regard to the other evidence lacks merit.
IV.
Last, defendant argues his sentence was improper and
excessive because the court failed to appropriately weigh the
aggravating and mitigating factors during sentencing. We
disagree.
We maintain a limited scope of review when considering the
trial court's sentencing determinations on appeal. State v.
Roth, 95 N.J. 334, 364-65 (1984). We will ordinarily not
20 A-1059-14T2
disturb the sentence imposed unless it constitutes a clear error
of judgment or "shocks the judicial conscience." State v.
Blackmon, 202 N.J. 283, 297 (2010) (quoting Roth, supra, 95 N.J.
at 363-65). We are bound to affirm so long as the judge
properly identifies and balances the aggravating and mitigating
factors, and their existence is supported by sufficient credible
evidence in the record. State v. Cassady, 198 N.J. 165, 180-81
(2009). Remand may be required if we determine the sentencing
judge failed to find mitigating factors that "clearly were
supported by the record." State v. Bieniek, 200 N.J. 601, 608
(2010).
Here, the judge found aggravating factors N.J.S.A. 2C:44-
1(a)(2) (seriousness of the harm including vulnerability of the
victim); (3) (risk of reoffending); (6) (prior criminal record);
(9) (need for deterrence); (12) (offense against a person sixty
years or older); and (13) (using a stolen motor vehicle in the
course of the crime), and gave specific reasons for his
findings. The judge then found mitigating factors N.J.S.A.
2C:44-1(b)(4) (substantial ground excusing defendant's conduct);
(7) (defendant led a law-abiding life); and (11) (excessive
hardship).
Defendant argues the trial judge erred by failing to give
more weight to the mitigating factors, particularly factor
21 A-1059-14T2
N.J.S.A. 2C:44-1(b)(4), and also erred by rejecting defendant's
offer of mitigating factors (3) (defendant acted under strong
provocation); (8) (defendant's conduct was the result of
circumstances unlikely to reoccur); and (9) (character of
defendant indicates he is unlikely to reoffend). Defendant
further contends the judge failed to explain the weight he
applied to these factors. However, the record shows the trial
judge thoroughly reviewed and credited defendant's evidence that
his conduct was exacerbated by his use of Prozac. The trial
judge also appropriately rejected mitigating factors (3), (8),
and (9), as the record does not support their application.
Moreover, although the trial judge did not explicitly state the
weight he assigned to each mitigating factor, the record shows
he clearly explained his reasoning for his findings.
Defendant also argues the judge's reasoning for finding
aggravating factors N.J.S.A. 2C:44-1(a)(2), (3), (6), and (9)
was erroneous. First, defendant argues the judge double counted
factor (2) because the harm to the victim was already part of
the aggravated manslaughter conviction. However, the trial
judge did not base his finding solely on the harm defendant
inflicted, but rather on the vulnerability of the victim.
Next, defendant contends the judge incorrectly found
aggravating factor (3) (risk of reoffending) and (6) (prior
22 A-1059-14T2
criminal record) because he also found mitigating factor (7)
(defendant led a law-abiding life). However, the judge made
clear he was only finding factor (7) to a "slight extent,"
noting although defendant lived most of his life without
incident, he fell into the habit of using heroin, an illegal
substance, almost every day. The judge found this drug use and
his mental issues suggested he was at risk for reoffending.
Last, defendant argues the judge erred by giving aggravating
factor (9) significant weight. However, we find the judge
provided adequate reasons for finding this factor based on the
violence in the state and the nation at large.
In addition to challenging the judge's findings on the
specific aggravating and mitigating factors, defendant also
argues the twenty-four-year sentence for the aggravated
manslaughter conviction was excessive because the judge did not
properly balance and explain the weight assigned to these
factors. However, the record clearly shows the judge
"qualitatively assessed" each factor and assigned each factor
the appropriate weight. State v. Fuentes, 217 N.J. 57, 72-73
(2014). We reject defendant's contention that the aggravating
and mitigating factors were in "equipoise" and find the judge
did not abuse his discretion by imposing a sentence closer to
23 A-1059-14T2
the maximum term of thirty years for an aggravated manslaughter
conviction. N.J.S.A. 2C:11-4(c).
Finally, defendant contends the trial judge erred by
denying his motion for reconsideration of his sentence. Because
we find the trial judge did not abuse his discretion during
sentencing, this argument lacks sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
24 A-1059-14T2