NOT FOR PUBLICATION WITHOUT THE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-2003-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHNATHAN L. CHISOM,
Defendant-Appellant.
______________________________
Submitted September 13, 2018 – Decided September 24, 2018
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 15-11-
1375.
Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Denny, Assistant Deputy Public
Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie D. Piderit, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Johnathan L. Chisom appeals from a September 16, 2016
judgment of conviction for second-degree eluding, N.J.S.A. 2C:29-2(b) (count
one), fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count two), and
third-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10(c)
(count four). Defendant also appeals from his December 12, 2016 sentence to
five years in prison for count one, which was merged with count two, and the
three-year concurrent sentence for count four. We affirm.
The following facts are taken from the record. On August 19, 2014,
defendant visited the residence of his girlfriend, the victim, in Sayreville. He
had taken a cab to her home because his driver's license was suspended. Once
there, the couple consumed more than one bottle of wine and defendant became
intoxicated. Defendant discovered a text message on the victim's telephone from
another man with whom he believed the victim was having an affair. An
argument ensued, and the victim attempted to leave in her vehicle, but realized
defendant had the key, which he refused to give her.
As a result, she left the residence on foot and began to walk down the
street. Defendant followed her and the couple stopped on the property of Joseph
DeFelice. There, according to the victim, defendant yelled at her to return home,
grabbed her upper arm, and continued to accuse her of infidelity. When the
A-2003-16T4
2
victim refused to comply with defendant's demands, he jerked her body as if he
intended to throw her into oncoming traffic, and pulled her pocketbook off and
threw it across the street.
The victim ran across the street towards a house with its lights on. As she
approached the house, she "felt a really hard push" from behind and fell to the
ground. Defendant then grabbed her leg and began dragging her away as she
tried to crawl backward. Defendant then grabbed her shirt and lifted her off the
ground.
DeFelice testified he was at home watching television and heard the
couple arguing. He observed the victim was sitting on his yard, with defendant
standing over her. DeFelice asked them to "break it up" or he would contact the
police. He called police and informed them there was a domestic dispute
involving two individuals who were drunk.
DeFelice testified the couple then crossed the street, the victim was on the
ground, and defendant was attempting to pick her up by her wrist. He described
it like "a kid who doesn't want to get up, he's having a temper tantrum, you're
trying to pick them up and just, like, yank them, let's go. Pretty much like that."
DeFelice said defendant went into the street and retrieved a purse in the road ,
the couple walked away, and continued arguing.
A-2003-16T4
3
Mark Turon was jogging in the neighborhood at the time. He testified he
observed the victim walking with "a man stumbling back and forth behind her."
He noted she appeared "panicked and terrified," and "was briskly walking ahead
of the man." Turon continued his run, but returned and observed the couple
from across the street. Turon testified he saw the victim "was with her bottom
down, and [defendant] . . . he was shaking her, beating on her." Turon shouted
at defendant to stop, crossed the street, and kept yelling at him to stop. As he
approached defendant, Turon testified there was "a horrific smell of alcohol."
Turon testified he saw a man standing in the area, and told him to call the
police. When police arrived, Turon testified defendant pushed him aside and
ran. Turon chased after him, but did not find defendant.
Sayreville Police Officer George Lestuck was the first to arrive on scene.
Officer Lestuck testified he recognized defendant from at least three prior
meetings. He saw defendant walking away from the scene, and told him to stop,
but instead defendant "took off." Officer Lestuck saw the victim on the ground
and took her back to her house, while other officers searched the area for
defendant. Officer Lestuck searched the house, but defendant was not there.
Officer Lestuck advised the victim to stay with a friend for the night. After she
A-2003-16T4
4
left with her friend, Officer Lestuck returned to the station to obtain an arrest
warrant for defendant for assault.
Officers then contacted the local cab company to inquire if they had any
calls for a pick-up in the area. Police asked the cab dispatcher to call if there
were any such requests. At 10:56 p.m. the cab dispatcher notified police there
had been a pick-up request near the victim's house. The caller ID showed the
victim's name, but the caller's voice was male.
Officers Lestuck, Gabriel Lugo, and Anthony D'Onofrio took up positions
around the neighborhood to stop the cab defendant had hailed. Officer Lugo,
who had two prior contacts with defendant, testified he had parked his police
cruiser on a corner a few blocks from the victim's home when he noticed
defendant driving by in the victim's vehicle. Officer Lugo signaled the car to
pull over, but the vehicle sped away.
Officer D'Onofrio, who joined the pursuit in a separate vehicle, also
identified defendant as the driver of the vehicle. Officer D'Onofrio had at least
two prior interactions with defendant.
The vehicle defendant was driving reached speeds of eighty miles per
hour, drove through several red lights, crossed a dividing median, became
airborne, and glanced off of an oncoming car. After hitting the oncoming car,
A-2003-16T4
5
defendant continued fleeing, but the front right tire of the vehicle was flat.
Therefore, the officers ceased the pursuit for safety reasons. The victim's
vehicle was ultimately recovered abandoned in Perth Amboy.
Police issued a "be on the lookout" bulletin for defendant to neighboring
towns. On August 20, 2014, at approximately 1:15 a.m., Woodbridge Police
Officer Marc Sokolow saw defendant exiting a cab in Woodbridge. Officer
Sokolow recognized defendant from a prior contact and placed him under arrest.
Following defendant's indictment, he was also charged with simple assault
and criminal mischief, both disorderly persons offenses. Defendant filed a pre-
trial motion to sever the disorderly persons offenses from the indictable
offenses, which the trial judge denied. Defendant was tried and convicted by a
jury on the indictable offenses. The trial judge acquitted him of the disorderly
persons charges, and sentenced defendant accordingly. This appeal followed.
On appeal, defendant raises the following arguments:
POINT I:
THE JUDGE ERRED BY FAILING TO GRANT
[DEFENDANT'S] MOTION FOR A SEPARATE
TRIAL ON THE DISORDERLY PERSONS
CHARGES RELATED TO THE EARLIER
ARGUMENT, CREATING TREMENDOUS RISK OF
UNDUE PREJUDICE IN [DEFENDANT'S] JURY
TRIAL FOR THE LATER ELUDING.
A-2003-16T4
6
POINT II:
PROSECUTORIAL MISCONDUCT DURING THE
TRIAL AND SUMMATION INTENDED TO
REFRAME THE TRIAL INTO A VERDICT ON
[DEFENDANT'S] CHARACTER DENIED
[DEFENDANT] DUE PROCESS AND A FAIR
TRIAL.
A. The prosecutor intentionally elicited
voluminous other-crimes evidence that was not
relevant to any material issues concerning the
charges before the jury.
B. The prosecutor argued during summation
that [defendant] had violated [the victim's] rights
as a woman and emphasized her love for him.
POINT III:
THE JUDGE'S INSTRUCTIONS ON THE
ACCEPTABLE USE OF THE OTHER—CRIMES
EVIDENCE WERE INCOMPLETE AND
CONFUSING, CREATING A GREAT RISK THE
EVIDENCE WAS USED IMPROPERLY. (Not raised
below)
POINT IV:
THE CUMULATIVE EFFECT OF THE
AFOREMENTIONED ERRORS DENIED
[DEFENDANT] A FAIR TRIAL. (Not raised below)
POINT V:
THE TRIAL JUDGE SHOULD HAVE
DOWNGRADED [DEFENDANT'S] SENTENCE TO
THE THIRD-DEGREE RANGE BECAUSE THE
A-2003-16T4
7
MITIGATING FACTORS SUBSTANTIALLY
OUTWEIGHED THE AGGRAVATING FACTORS.
I.
Defendant argues the court should have severed the disorderly persons
offenses of simple assault and criminal mischief from the indictable offenses
tried by the jury. Defendant claims he was prejudiced because the jury heard
testimony related to those charges, whereas the judge was the sole factfinder for
the disorderly persons charges.
The State opposed defendant's motion to sever arguing the evidence of the
disorderly persons charges was "intrinsic to the crime of eluding," which
stemmed from the altercation. Defendant asserted the prior altercation was not
necessary to prove motive, because defendant had stipulated to having a
suspended license, which provided the motive to flee the police when they
attempted to stop him while operating the victim's car. The trial judge
determined while "it is a little cumulative in terms of the fact that we have the
driving while suspended as a motive, . . . it makes it an even stronger case for
motive, plan, intent, preparation, all of the allowable reasons that something
comes in under 404(b)," and denied the motion.
A trial judge's decision to admit prior bad acts evidence will be upheld
unless the decision is deemed to be an abuse of discretion. State v. Marrero,
A-2003-16T4
8
148 N.J. 469, 483-84 (1997). Absent a showing of a mistaken exercise of
discretion such as a "clear error of judgment," we will not disturb the trial court's
decision. State v. Moorman, 286 N.J. Super. 648, 660 (App. Div. 1996).
Evidence that is highly inflammatory may still be admitted where its probative
value outweighs its prejudicial effect. See State v. Cusick, 219 N.J. Super. 452,
464-65 (App. Div. 1987) (admitting evidence defendant had previously sexually
assaulted children, on the grounds such evidence was "extremely probative" to
establish defendant's intent in a trial for the sexual assault of minors).
N.J.R.E. 404(b) prohibits the introduction of evidence showing a person
committed other crimes, wrongs or bad acts in order to prove the disposition of
the person to commit such acts. However, evidence of other crimes is admissible
to prove "motive, opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident when such matters are relevant to a material issue
in dispute." N.J.R.E. 404(b).
[I]n order to avoid the over-use of extrinsic evidence of
other crimes or wrongs:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. It must be similar in kind and reasonably
close in time to the offense charged;
A-2003-16T4
9
3. The evidence of the other crime must be
clear and convincing; and
4. The probative value of the evidence
must not be outweighed by its apparent
prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992).]
Defendant argues the evidence was inadmissible and Cofield factors one,
three, and four were not met. He asserts factor one was not met because the
evidence was not necessary to prove motive, as he had stipulated to having a
suspended license. As we noted, the trial judge found evidence of defendant's
altercation with the victim provided support for "motive, plan, intent,
preparation, all of the allowable reasons that something comes in under 404(b),"
as defendant fled in the victim's car. Defendant's suspended license only
provided support for motive. It was not an abuse of discretion for the trial judge
to deny the motion under factor one.
Defendant argues factor three was not met because the trial judge had not
heard any testimony prior to the decision to admit the evidence, but relied on
the State's assurance it would offer three witnesses who saw defendant assault
the victim. Defendant claims the only person who would testify to the assault
was the victim. As such, he asserts the trial judge should have held an
evidentiary hearing to determine whether the proffered testimony provided
A-2003-16T4
10
"clear and convincing" evidence of the assault. Defendant argues because the
trial judge acquitted him of the disorderly persons charges, and found the State's
witnesses not credible, the evidence should not have been admitted.
The trial judge did not abuse her discretion by finding the disorderly
persons charges were supported by clear and convincing evidence. There was
probable cause to issue an arrest warrant for defendant after his altercation with
the victim and before the car chase. Moreover, the victim and Turon's testimony
of the assault, as we have recounted it, was clear and convincing evidence.
Although the trial judge ultimately found their testimony not credible and
acquitted defendant of the disorderly persons charges, the burden was beyond a
reasonable doubt and therefore higher than the clear and convincing standard
necessary to meet the third Cofield factor.
Defendant argues the fourth factor was not met because the evidence was
more prejudicial than probative. We disagree.
The trial judge found the evidence was:
[R]elevant to the issue of [defendant's] motive and his
intent and even his preparation of why he did what he
did. And it was certainly similar in time. . . . I don't
think . . . the prejudice weighs heavier than the need for
this information to explain the circumstances of what
happened that evening.
A-2003-16T4
11
We agree. The probative nature of the evidence and its potential to shed
light on defendant's opportunity, intent, preparation, plan, knowledge, identity,
and motive clearly outweighed any prejudicial effect. The judge's finding under
the fourth factor was not an abuse of discretion and the decision to deny the
motion to sever was not an error.
II.
We turn next to defendant's contention the prosecutor exceeded the
bounds of proper advocacy by presenting the evidence of the disorderly persons
offenses in the jury trial. Defendant asserts the prosecutor's purpose of arguing
the other crimes was "to portray [defendant] as a bad person who runs away
from the police." Specifically, defendant notes the victim was allowed to testify
to her "fear, panic, and injury [defendant] had caused her," and testified
"[defendant] tried to shove her into traffic." Defendant argues Turon was
permitted to testify the victim was "terrified," and permitted to opine on
defendant's level of intoxication using Turon's Russian and Polish heritage,
which Turon stated enabled him to determine defendant's inebriated state .
Defendant further argues the prosecutor elicited testimony from Officer
D'Onofrio that defendant had previously been implicated in other criminal
A-2003-16T4
12
interactions at the victim's home. Also, defendant claims the prosecutor made
prejudicial comments in summation by referencing women's rights.
At the outset, we note defendant failed to object to the testimony regarding
the other crimes during the trial. When a defendant fails to object to testimony
at trial, we review for plain error, and "disregard any alleged error 'unless it is
of such a nature as to have been clearly capable of producing an unjust result.'"
State v. Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Under the plain
error standard, "defendant has the burden to show that there is an error, that the
error is 'clear' or 'obvious,' and that the error has affected 'substantial r ights.'"
State v. Chew, 150 N.J. 30, 82 (1997) (quoting and ruling "[o]ur law is the same"
as United States v. Olano, 507 U.S. 725, 734 (1993)).
"[W]hen counsel does not make a timely objection at trial, it is a sign 'that
defense counsel did not believe the remarks were prejudicial.'" State v. Pressley,
232 N.J. 587, 594 (2018) (citation omitted). "Defendant's lack of objections . . .
weighs against defendant's claim that errors were ‘clear’ or 'obvious.' Indeed,
'[i]t [is] fair to infer from the failure to object below that in the context of the
trial the error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471
(2002) (alterations in original) (citation omitted).
A-2003-16T4
13
Officer D'Onofrio's testimony that he knew defendant from prior brief
interactions was limited, and was central to proving the eluding offense and the
officer's identification of defendant as the driver of the vehicle. Moreover, the
admission of this testimony and the facts surrounding the disorderly persons
offenses were not error because the trial judge instructed the jury to not treat the
testimony as evidence of other convictions or arrests. Additionally, defense
counsel's objection to Turon's testimony regarding defendant's state was
sustained.
We turn to defendant's assertions of prosecutorial misconduct in
summations. The following occurred during the prosecutor's summation:
[PROSECUTOR]: Ladies and gentlemen, a woman has
a right to walk out of her house when she wants. A
woman has a right to walk away from somebody she's
upset with or someone who is bothering her. A woman
has a right to walk on the street without being harassed
or followed. A woman has a right not to be dragged,
pushed down, pulled, held —
[DEFENSE COUNSEL]: Objection.
As a result of defense counsel's objection, the trial judge stated she did
not "want to go too much further talking about women's rights. I mean, I know
the point of it but we don't want that to be the focus of this case." The prosecutor
then resumed summation and stated:
A-2003-16T4
14
Ladies and gentlemen, a woman has a right not to be
restrained by someone else. And this defendant knew
that those – that that's what the real world expectations
were. And as a result of that, he knew that what he was
doing out there was wrong, and he knew that he wasn't
going to take responsibility for what he was doing out
there.
Defendant did not renew his objection and the remainder of the prosecutor's
summation addressed the evidence relating to the eluding offense.
In considering this issue, we note "[p]rosecutors are afforded considerable
leeway in closing arguments as long as their comments are reasonably related to
the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999)
(citations omitted). Prosecutors "are duty-bound to confine their comments to
facts revealed during the trial and reasonable inferences to be drawn from that
evidence." Id. at 85 (citation omitted). "In determining whether prosecutorial
misconduct is prejudicial and denied defendant a fair trial, [courts] consider
whether defense counsel made a timely and proper objection, whether the
remark was withdrawn promptly, and whether the court ordered the remarks
stricken from the record and instructed the jury to disregard them." State v.
Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-
42 (1953)).
A-2003-16T4
15
During summation a prosecutor may not "make inaccurate legal or factual
assertions[.]" Frost, 158 N.J. at 85. Also, "'[a] prosecutor is not permitted to
cast unjustified aspersions' on defense counsel or the defense." Id. at 86
(citations omitted). Prosecutorial "misconduct does not warrant reversal unless
it is 'so egregious that it deprived the defendant of a fair trial.'" State v. Jackson,
211 N.J. 394, 409 (2012) (quoting Frost, 158 N.J. at 83). "To warrant reversal
on appeal, the prosecutor's misconduct must be 'clearly and unmistakably
improper' and 'so egregious' that it deprived defendant of the 'right to have a jury
fairly evaluate the merits of his defense.'" Pressley, 232 N.J. at 593-94 (citation
omitted).
Given the wide latitude afforded the prosecutor in presenting summations,
the summation here did not mislead or prejudice the jury or the outcome. Rather,
the prosecutor's argument intended to describe defendant's motive for eluding
police after he assaulted the victim. Moreover, the prosecutor's remarks were
limited and contained within a much broader summation, whose message had no
relationship to women's rights.
III.
Defendant argues the trial judge erred by not providing a limiting
instruction regarding the other-crimes evidence prior to the admission of the
A-2003-16T4
16
testimony. He also argues the charging instruction given to the jury before
deliberation was incomplete and confusing. Specifically, he asserts the charging
instruction was confusing, unclear, and utilized terms such as "consciousness of
guilt," "flight," and "scene of the altercation" without defining the terms or
explaining the nature of the altercation. Defendant also argues the charge should
have instructed the jury it could only consider the other-crimes evidence to
prove motive.
Again, we note defendant did not seek a limiting instruction before the
admission of the other-crimes evidence, and did not object to the jury charge
given to the jury. Therefore, we review his arguments subject to the plain error
standard.
We have stated:
[I]n addition to its inclusion in the final jury charge, a
prompt delivery of limiting instructions, either before,
simultaneously with, or immediately after, the
admission of other crimes evidence is preferable, and
— unless there is some compelling reason to do
otherwise — should be standard procedure followed by
trial courts in all cases.
[State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.
2000).]
The Supreme Court has stated: "instructions should be timely given both when
the evidence is admitted and in the final charge." State v. Gillispie, 208 N.J. 59,
A-2003-16T4
17
93 (2011) (citation omitted). Notably, the failure to give the instruction in either
case was not determined to be plain error. See ibid. and Angoy, 329 N.J. at 89.
Defendant has not demonstrated how he was prejudiced due to the lack of
a jury instruction before the admission of the other-crimes evidence. For these
reasons, we decline to conclude the lack of such an instruction here was
reversible error.
In her closing instructions to the jury, the trial judge said the following:
The State has introduced evidence of an altercation
between the defendant and [the victim] shortly before
the crimes charged. Normally such evidence is not
permitted under our Rules of Evidence. Our rules
specifically exclude evidence that the defendant may
have committed other crimes, wrongs or acts when it is
offered only to show that he has a disposition or
tendency to do wrong and therefore must be guilty of
the charges, the offenses charged.
Before you give any weight to that evidence, you must
be satisfied that the defendant fled from the scene of the
altercation. If you are not so satisfied, you may not
consider it for any purpose.
However, our rules do permit evidence of other crimes,
wrongs or acts when the evidence is used for certain
specific narrow purposes. In this case, the State has
introduced this evidence to show that the defendant's
consciousness of guilt in a prior altercation gave rise to
a motive to commit the charged offenses.
Here the evidence has been offered to attempt to
convince you that the defendant's involvement in the
A-2003-16T4
18
altercation and the flight therefrom is evidence of the
defendant's motive to elude the police and resist arrest.
You may not draw this inference unless you conclude
that the acts alleged were motive to engage in the
crimes charged in the indictment.
When we assess jury instructions, the charge must be read as a whole.
State v. Martini, 187 N.J. 469, 477 (2006). "[A] court should not state generally
the content of N.J.R.E. 404(b), but should 'state specifically the purposes for
which the evidence may be considered and, to the extent necessary for the jury's
understanding, the issues on which such evidence is not to be considered.'"
Gillispie, 208 N.J. at 92 (quoting State v. Fortin, 162 N.J. 517, 534 (2000)
(quoting State v. Stevens, 115 N.J. 289, 309 (1989))).
Here, the jury instruction was understandable and neither confusing nor
in need of further definitional terms. Moreover, the instruction explained the
other-crimes evidence was for the purpose of proving motive, and nothing more.
The instruction followed the model jury charge for Rule 404(b), which advises
the trial judge to "[d]escribe the limited purpose, relevant to a genuine, disputed
issue, for which the evidence has been introduced, and explain specifically how
that limited purpose relates to the facts of the case." Model Jury Charge
(Criminal), "Proof of Other Crimes, Wrongs, or Acts (N.J.R.E. 404(b))" (rev.
Sept. 12, 2016). Here, the instruction explained the other-crimes evidence could
A-2003-16T4
19
be used only for the limited purpose of establishing motive to commit the
eluding offense. Defendant has not demonstrated the jury charge prejudiced him
on account of the jury's inability to understand it.
IV.
Defendant argues the cumulative effect of the errors at trial undermined
his constitutional rights to due process and a fair trial. However, we are satisfied
that none of the errors alleged by defendant, individually or cumulatively,
warrant the granting of a new trial. State v. T.J.M., 220 N.J. 220, 238 (2015);
State v. Orecchio, 16 N.J. 125, 129 (1954).
V.
Finally, defendant argues the trial judge should have downgraded his
sentence from second-degree eluding to a third-degree offense because the
mitigating factors substantially outweighed the aggravating factors. We
disagree.
It is well settled that when reviewing a trial court's sentencing decision,
"[a]n appellate court may not substitute its judgment for that of the trial court."
State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210,
215 (1989)). However, an appellate court may review and modify a sentence
when the trial court's determination was "'clearly mistaken.'" State v. Jabbour,
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118 N.J. 1, 6 (1990) (internal quotation marks omitted) (quoting State v. Jarbath,
114 N.J. 394, 401 (1989)). Within these limitations, an appellate court can:
(a) review sentences to determine if the legislative
policies, here the sentencing guidelines, were violated;
(b) review the aggravating and mitigating factors found
below to determine whether those factors were based
upon competent credible evidence in the record; and (c)
determine whether, even though the court sentenced in
accordance with the guidelines, nevertheless the
application of the guidelines to the facts of this case
makes the sentence clearly unreasonable so as to shock
the judicial conscience.
[State v. Evers, 175 N.J. 355, 387 (2003) (citation
omitted).]
Moreover,
The [New Jersey Code of Criminal Justice] provides
that a sentencing court
shall deal with a person who has been convicted of a
crime of the first or second degree by imposing a
sentence of imprisonment unless, having regard to the
character and condition of the defendant, it is of the
opinion that his imprisonment would be a serious
injustice which overrides the need to deter such conduct
by others.
[Id. at 388 (citation omitted).]
"Absent a proper finding of 'serious injustice' that outweighs the need for general
deterrence, a trial court must impose a custodial sentence." Ibid. (citation
omitted).
A-2003-16T4
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In deciding whether the "character and condition" of a
defendant meets the "serious injustice" standard, a trial
court should determine whether there is clear and
convincing evidence that there are relevant mitigating
factors present to an extraordinary degree and, if so,
whether cumulatively, they so greatly exceed any
aggravating factors that imprisonment would constitute
a serious injustice overriding the need for deterrence[]
....
. . . that a particular defendant is distinguished from the
"heartland" of cases for the particular offense.
[Id. at 393-94.]
Here, at sentencing, the judge found aggravating factors three (risk that
the defendant will commit another offense) and nine (need for deterring the
defendant and others) applied. The judge found mitigating factors six
(defendant has compensated or will compensate the victim), seven (defendant
has no history of delinquency), nine (character and attitude of defendant indicate
that he is unlikely to commit another offense), and ten (defendant is particularly
likely to respond affirmatively to probationary treatment) applied.
Defendant argued for a downgrade, but the judge declined, finding the
aggravating and mitigating factors were balanced. Specifically, the judge stated:
Now I know that defense counsel is arguing . . . it would
be a serious injustice to sentence [defendant] to prison
and that the [c]ourt should . . . at least look at a degree
A-2003-16T4
22
below what he was found guilty of when determining
his sentence.
And while every person is special in their own way, this
is not the type of unique situation. He had some tough
years. He had a . . . bad breakup. He got hooked on
. . . alcohol and drugs. And that is sadly a very common
thing in this day and age.
. . . He may have PTSD . . . and that's something that
has perhaps gone unaddressed for a lot of years, but it
doesn't rise to the level of making him such a unique
circumstance that it would be a serious injustice to put
him in jail.
On appeal defendant claims the court erred by not considering all the
mitigating factors supported by the evidence, namely, defendant's veteran status,
employment, his efforts towards substance abuse recovery, and the poor health
of his mother. Our review of the record reveals the judge considered these
mitigating factors defendant now raises on appeal. The trial judge balanced
these factors against the rather serious nature of defendant's offense and other
aggravating factors we have noted. For the reasons stated by the trial judge in
her thorough sentencing decision, defendant's sentence was not a serious
injustice warranting our intervention.
Affirmed.
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