STATE OF NEW JERSEY VS. FAQUAN MARTIN (14-10-2513, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0926-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FAQUAN MARTIN, a/k/a BIRTH
AL-FUQUAN MARTIN, ALFUQUAN
MARTIN, FUQUAN J. MARTIN,
FUQUA MARTIN and DEVIN M. MAYS,

Defendant-Appellant.

_____________________________

Submitted May 22, 2018 – Decided June 22, 2018

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 14-
10-2513.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michael Denny, Assistant Deputy
Public Defender, of counsel and on the brief).

Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Kayla
Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).

PER CURIAM
 Defendant Faquan Martin appeals from his jury-verdict

convictions for third-degree receiving stolen property, N.J.S.A.

2C:20-7(a) (count three); second-degree unlawful possession of a

handgun, N.J.S.A. 2C:39-5(b) (count four); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count five); fourth-degree possession of hollow nose

bullets, N.J.S.A. 2C:39-3(f)(1) (count seven); second-degree

eluding, N.J.S.A. 2C:29-2(b) (count eight); fourth-degree

resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2) (count ten);

and first-degree witness tampering, N.J.S.A. 2C:28-5 (count

twelve). He was found not guilty of second-degree conspiracy,

N.J.S.A. 2C:5-2 (count one); first-degree carjacking, N.J.S.A.

2C:15-2 (count two); third-degree criminal mischief, N.J.S.A.

2C:17-3(a)(1) (count six); third-degree resisting arrest, N.J.S.A.

2C:29-2(a)(3)(a) (count nine); and first-degree robbery, N.J.S.A.

2C:15-1 (count eleven). He contends:

POINT I

THE STATE DID NOT PROVE BEYOND A REASONABLE
DOUBT THAT A REASONABLE PERSON COULD CONCLUDE
THAT [DEFENDANT]'S CONDUCT COULD CAUSE A
WITNESS TO TESTIFY FALSELY.

POINT II

THE TRIAL COURT IMPROPERLY RAN SEPARATE
CHARGES STEMMING FROM THE SAME CONDUCT
CONSECUTIVELY AND IMPOSED AN EXCESSIVE
SENTENCE.

2 A-0926-16T4
We are not persuaded by either argument and affirm.

Defendant — whose motion for judgment of acquittal was denied

by the trial judge — claims his witness tampering conviction was

unsupported by the State's evidence. The tampering charge was

engendered by a letter defendant wrote to the juvenile, A.W.,1

who, the State contended, was with defendant when he committed the

precedent crimes. The letter2 and accompanying affidavit,3 sent

1
We refer to the juvenile co-defendant by his initials.
2
As best we can decipher from the copy of the letter provided in
his appendix, defendant wrote:

What'[s] good BRO, you on some bull shit, I
told you I'ma gon take the [(illegible)]
elude, all you had to do was sign a[n]
affidavit [and] cut me loose from the
[(illegible)]. If you already took it, you
letting all these [(illegible)] nigga[]s put
shit inside your head, we better than that,
you gon let me go down for something you
already took[.] If I go down for [thirty]
year[]s you better hope we never cross
path[]s. We suppose to be brother[]s, but it's
my bad[.] I thought you was a real nigga.
I'ma the only nigga that did something for you
when you came home, now you all big headed.
My word[]s are short. Write back.
3
"Affidavit" is the term used in the document, but the document
does not conform to the requirements of Rule 1:4-4(a). It reads:

I'ma [A.W.] and I'ma writing this affidavit
on my own behalf to say I'ma the carjacker of
[the victim]. I cop[p]ed out to the charges
as a juvenile. Faquan Martin ain't have

3 A-0926-16T4
to A.W. at the Bordentown juvenile facility, were intercepted

there before the documents reached A.W.

Defendant maintains in order to prove that he "knowingly

engaged in conduct which a reasonable person would believe would

cause a witness . . . to testify or inform falsely,"4 the jury had

to have been presented with "some evidence that the letter had

been received by [A.W.] for them to conclude it would be likely

to cause him to testify falsely." Defendant submits the evidence,

considered in the light most favorable to the State, "showed that

[he] sent the letter intending for [A.W.] to be influenced, but

because it was intercepted, there was no proof that he could have

nothing to do with it at all. I seen Mr.
Martin walkin'[,] I[] ask[ed] him did he need
a ride[.] He said yes but he wanted to
drive[.] I let Mr. Martin drive. He put his
gun under the seat. Then after a short drive
that's when the chase took place[.] The end.

PS, I'ma willing to [testify] on my own
behalf.

Sincerely,

[A.W.]
4
N.J.S.A. 2C:28-5(a)(1) provides in pertinent part: "[a] person
commits an offense if, believing that an official proceeding or
investigation is pending or about to be instituted or has been
instituted, he knowingly engages in conduct which a reasonable
person would believe would cause a witness or informant to . . .
[t]estify or inform falsely."

4 A-0926-16T4
been." Because the crime was not completed, and the jury was not

instructed to "consider attempt," he prays we "vacate his

conviction and enter a judgment of acquittal."

Defendant's appeal, grounded in the insufficiency of the

evidence – not that the verdict was against the weight of the

evidence — requires us to apply the same standard as that used by

the trial court in determining a motion for judgment of acquittal

under Rule 3:18-1.5 State v. Moffa, 42 N.J. 258, 263 (1964). When

deciding a motion for judgment of acquittal at the conclusion of

the State's case a trial court must consider "whether the evidence

at that point is sufficient to warrant a conviction of the charge

involved." State v. Reyes, 50 N.J. 454, 458 (1967). Specifically,

the trial court must determine "whether, viewing the State's

evidence in its entirety, be that evidence direct or

circumstantial," and giving the State the benefit of all reasonable

inferences, "a reasonable jury could find guilt of the charge

beyond a reasonable doubt." Id. at 458-59.

The 2008 amendments to the tampering statute replaced the

element that a defendant "knowingly attempt[] to induce or

otherwise cause a witness or informant to . . . [t]estify or inform

5
Rule 3:18-1 mandates the trial court to enter a judgment of
acquittal "if the evidence is insufficient to warrant a conviction"
on any indicted charge.

5 A-0926-16T4
falsely." L. 2008, c. 81. The revised statute requires the

State prove defendant "knowingly engage[d] in conduct which a

reasonable person would believe would cause a witness . . . [t]o

testify or inform falsely." N.J.S.A. 2C:28-5(a)(1). Thus,

contrary to defendant's argument, "attempt" — no longer an element

of the crime — need not have been charged to the jury. Defendant

did not object to the charge; in fact, he agreed to it. We

therefore determine the jury instruction given by the trial judge,

which largely followed the model jury charge,6 was not clearly

capable of producing an unjust result. R. 2:10-2.

We also determine there was sufficient evidence to support

the tampering verdict. Like the former statute where the crime

was deemed completed if a defendant knowingly attempted to induce

a witness to falsely testify, tampering under the new law is

perpetrated "regardless of whether or not the result is achieved."

State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999). A

defendant need only "engage[] in conduct" which reasonably can be

believed to cause a witness to falsely testify. See N.J.S.A.

2C:28-5(a)(1). As we recognized in Speth:

Satisfying this requirement alone to support
a conviction is sufficient to meet the
societal need to discourage or preclude

6
Model Jury Charges (Criminal), "Tampering with Witnesses and
Informants (N.J.S.A. 2C:28-5(a)) (Cases arising after September
10, 2008)" (approved Mar. 16, 2009).

6 A-0926-16T4
 persons from interfering in the proper
administration of justice. The evil to be
addressed is approaching the witness rather
than the likelihood of successfully convincing
that witness not to testify or to alter such
testimony.

[323 N.J. Super. at 87.]

There is no requirement that a defendant's aim be realized or that

the intended target know of the defendant's conduct. It is of no

moment, therefore, that defendant's letter never reached A.W.

Defendant's act of sending the letter to A.W., considering the

letter's overtly threatening language, was conduct which a

reasonable person would believe would cause A.W. to falsely

testify.

Defendant did not specify in his notice of appeal or criminal

case information statement that he was appealing from the trial

judge's denial of his motion for a new trial. His merits brief

arguments are couched in terms applicable to a Rule 3:18-1 motion;

his response brief acknowledges that his argument relates to his

motion for judgment of acquittal. If, in fact, the denial of the

new trial motion is a ground for appeal, we do not determine under

the foregoing analysis that "it clearly and convincingly appears

that there was a manifest denial of justice under the law." R.

3:20-1; Dolson v. Anastasia, 55 N.J. 2, 6-7 (1969) (quoting R.

4:49-1).

7 A-0926-16T4
 Defendant was sentenced by Judge Michael L. Ravin to state

prison terms of: four years for receiving stolen property (count

three), consecutive to seven years with three and one-third years

of parole ineligibility for possession of a weapon for an unlawful

purpose (count five), consecutive to eight years for eluding (count

eight), consecutive to seventeen years for witness tampering

(count twelve); he also received eighteen-month prison terms for

two fourth-degree charges which were concurrent to each other and

concurrent to the other sentences imposed.

In determining to run sentences concurrently or consecutively

pursuant to N.J.S.A. 2C:44-5(a), judges are required to consider

the factors pronounced in State v. Yarbough, 100 N.J. 627, 643-44

(1985) (footnote omitted):

(1) there can be no free crimes in a system
for which the punishment shall fit the crime;

(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;

(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:

(a) the crimes and their objectives were
predominantly independent of each other;

(b) the crimes involved separate acts of
violence or threats of violence;

(c) the crimes were committed at
different times or separate places,

8 A-0926-16T4
 rather than being committed so closely
in time and place as to indicate a single
period of aberrant behavior;

(d) any of the crimes involved multiple
victims;

(e) the convictions for which the
sentences are to be imposed are numerous.

(4) there should be no double counting of
aggravating factors; [and]

(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense.

"When a sentencing court properly evaluate[d] the Yarbough factors

in light of the record, the court's decision will not normally be

disturbed on appeal." State v. Miller, 205 N.J. 109, 129 (2011).

We are unconvinced by defendant's arguments that concurrent

sentences were warranted because the crimes defendant committed

were "inseparable parts of the same incident" and that the

"objectives of each crime . . . were intertwined." In sentencing

defendant, Judge Ravin both considered the Yarbough factors, 100

N.J. at 643-44, and complied with the Court's mandate that “the

reasons for imposing either a consecutive or concurrent sentence

should be separately stated in the sentencing decision,” id. at

643. In fact, Judge Ravin carefully parsed each Yarbough factor

as it related to each count sentenced and we affirm the imposition

9 A-0926-16T4
of consecutive sentences for the reasons set forth in his

comprehensive and thoughtful oral statement of reasons.

We are also unpersuaded that defendant's sentence was

excessive, particularly rejecting defendant's argument that the

seventeen-year sentence for witness tampering was inappropriate

because the letter was never received by the intended recipient

and was "mildly threatening." Again, the fact that the letter –

which, as we observed, contained an overt threat — was not received

does not nullify defendant's intent to discourage or stop A.W.

from testifying against him, the exact behavior the statute was

intended to prevent.

Judge Ravin found aggravating factors three, N.J.S.A. 2C:44-

1(a)(3) (risk of defendant committing another offense); nine,

N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from

violating the law); and thirteen, N.J.S.A. 2C:44-1(a)(13)

(possession of a stolen vehicle while in the course of committing

or attempting to commit the crime, including immediate flight

therefrom). He found no mitigating factors. He recognized that

"[a]lthough [defendant] does not have an adult record, he was

[nineteen] at the time of the present offenses and he'd already

amassed a lengthy juvenile record at that time, which included

charges of receiving stolen property, theft, burglary, resisting

arrest, possession of [controlled dangerous substance], and

10 A-0926-16T4
unlawful possession of a weapon." Judge Ravin noted defendant,

as a juvenile, "received the benefit of deferred dispositions,

dismissals and probation, [and] juvenile detention center, [but]

none of that has deterred him from breaking the law." He fully

complied with the mandate that a sentencing judge "must 'state

reasons for imposing such sentence including . . . the factual

basis supporting a finding of particular aggravating or mitigating

factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73

(2014) (alteration in original) (quoting R. 3:21-4(g)).

We apply a deferential standard of review to a trial court’s

sentence and do not "substitute [our] judgment" for that of the

judge. State v. Case, 220 N.J. 49, 65 (2014). "When the

aggravating and mitigating factors are identified, supported by

competent, credible evidence in the record, and properly balanced,

we must affirm the sentence and not second-guess the sentencing

court, provided the sentence does not 'shock the judicial

conscience.'" Ibid. (citations omitted). We defer to Judge

Ravin's well-supported sentence which does not shock our

conscience.

Affirmed.

11 A-0926-16T4