STATE OF NEW JERSEY VS. EDWIN A. JIMINEZ (11-02-0117 AND 12-08-0637, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0117-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN A. JIMENEZ, a/k/a SURIEL
ADAN CUBENO-JIMENEZ,

Defendant-Appellant.

Submitted January 29, 2018 – Decided June 18, 2018

Before Judges Messano and O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment Nos.
11-02-0117 and 12-08-0637.

Joseph E. Krakora, Public Defender, attorney
for appellant (Susan Brody, Deputy Public
Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Tom Dominic Osadnik,
Assistant Prosecutor, of counsel and on the
brief).

Appellant filed a pro se supplemental brief.

PER CURIAM
 A jury convicted defendant Edwin A. Jimenez of two counts of

passion/provocation manslaughter in the deaths of I.P. and S.M.,

N.J.S.A. 2C:11-4(b)(2); second-degree aggravated assault of D.V.,

N.J.S.A. 2C:12-1(b) (causing serious bodily injury (SBI)); three

counts of second-degree possession of a firearm for an unlawful

purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree illegal

possession of a handgun, N.J.S.A. 2C:39-5(b)(1).1 The same jury

found defendant guilty after a bifurcated second trial of second-

degree possession of a firearm by certain persons prohibited from

having such weapons, N.J.S.A. 2C:39-7(b). The judge imposed three

consecutive nine-year terms of imprisonment on the manslaughter

and aggravated assault convictions, each subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, and a consecutive eight-year term

of imprisonment, with a five-year period of parole ineligibility,

on the certain persons conviction.

Defendant raises the following points for our consideration:

POINT I

THE COURT ERRED IN REFUSING TO SUPPRESS
DEFENDANT'S STATEMENT BECAUSE THE POLICE
INTERROGATOR THREATENED HIM WITH THE DEATH
PENALTY AND COERCED HIM BY GIVING HIM FALSE
INFORMATION ABOUT THE LAW, SOME OF WHICH

1
The jury returned verdicts of passion/provocation manslaughter
as lesser-included offenses of the two murder counts in the
indictment; the SBI aggravated assault was a lesser-included
offense of attempted murder. We use initials to keep the victims'
identities confidential.

2 A-0117-15T2
 DIRECTLY CONTRADICTED THE MIRANDA WARNINGS HE
HAD JUST RECEIVED.

POINT II

THE TRIAL WAS IRREPARABLY TAINTED BY THE
PROSECUTOR'S MULTIPLE ACTS OF MISCONDUCT. (NOT
RAISED BELOW)

POINT III

THE 35-YEAR AGGREGATE SENTENCE IMPOSED WAS
MANIFESTLY EXCESSIVE.

Appellant also provided additional points for our

consideration in his pro se supplemental brief.

POINT I

THE DEFENDANT'S CONVICTION ON COUNT 5 MUST BE
REVERSED BECAUSE THE TRIAL COURT'S JURY
INSTRUCTION ON AGGRAVATED ASSAULT-SERIOUS
BODILY INJURY WAS FATALLY FLAWED. THIS ERROR
DEPRIVED THE DEFENDANT OF A PROPERLY
INSTRUCTED JURY AND A FAIR TRIAL, IN VIOLATION
OF U.S. CONST. AMENDS. VI, XIV. (NOT RAISED
BELOW).

POINT II

ABSENT RELEVANT MEDICAL EVIDENCE TO SUSTAIN A
LESSER-INCLUDED OFFENSE ON COUNT 5, THE TRIAL
COURT ERRED BY INSTRUCTING THE JURY ON
AGGRAVATED MANSLAUGHTER-SERIOUS BODILY
INJURY; OR IN THE ALTERNATIVE, BY NOT ENTERING
A JUDGMENT OF ACQUITTAL DUE TO LACK OF
EVIDENCE OF THE SERIOUSNESS OF THE VICTIM'S
INJURIES TO SUPPORT A CONVICTION ON AGGRAVATED
ASSAULT-SERIOUS BODILY INJURY. (NOT RAISED
BELOW).

3 A-0117-15T2
 POINT III

THE JUDGMENT OF CONVICTION ON COUNT 5 REFLECTS
THE DEFENDANT WAS SENTENCED ON AGGRAVATED
ASSAULT-BODILY INJURY, PURSUANT TO N.J.S.A.
2C:12-1(b)(7). THE DEGREE OF THE CRIME IS
INCORRECTLY LISTED AS A SECOND-DEGREE CRIME
INSTEAD OF A THIRD-DEGREE CRIME. THE COURT
MUST RESOLVE THIS CONFLICT. (NOT RAISED
BELOW)

Having considered these arguments in light of the record and

applicable legal standards, we affirm defendant's conviction, and

the sentences imposed. We remand solely for the filing of a

corrected judgment of conviction (JOC).

I.

We briefly synopsize the State's evidence to place

defendant's arguments in context.

At approximately 7:00 p.m. on February 18, 2012, the three

victims and a fourth man, A.M., were standing outside a bodega in

Passaic. Defendant walked toward them and began firing a handgun.

A.M. ran inside the bodega, pulled D.V., who had already been

shot, inside the store and hid behind a counter. Defendant fired

through the door of the store, shattering the glass, and fled.

There were no spent shell casings at the scene, but police

recovered two projectiles from inside the store and an apparent

hallway.

4 A-0117-15T2
 A.M. also fled, but police found him later in the evening and

took a statement from him. A.M. identified a photograph of

defendant as the shooter, and also identified defendant in court,

testifying that he knew him from high school.2

Around midnight, Clifton police stopped a motor vehicle

driven by defendant's brother; defendant was the front seat

passenger. Defendant had two bags of marijuana in his jacket, and

police found a revolver under the driver's seat.

Passaic Police Department Detective Alex Flores interrogated

defendant. After conducting a hearing pursuant to N.J.R.E. 104(c),

which we discuss below, the judge admitted defendant's video-

recorded statement to Flores. Defendant admitted that he bought

the gun earlier in the evening of February 18 for $300 and shot

all three men, who defendant knew from school. Defendant claimed

the men were "after him," and had allegedly fired shots at

defendant one week earlier.

Defendant did not testify or call any witnesses.

2
The jury acquitted defendant of the attempted murder of A.M. and
related weapons charge.

5 A-0117-15T2
 II.

Detective Flores was the only witness at the pretrial hearing

on the admissibility of defendant's statement to police.3

Defendant and the detective are bilingual, and the statement,

although mostly in English, included snippets of questions and

answers in Spanish. The prosecutor told the judge a transcript

was prepared that included translations of the Spanish words, that

she and defense counsel had reviewed the transcript and, but for

minor modifications, agreed it was accurate.

Flores knew A.M. had already identified defendant as the

shooter. He initially questioned defendant about the gun found

in the car, reminding defendant that he knew defendant's father

and had his cellphone number. Defendant did not immediately

provide any information, other than his alleged whereabouts

earlier that evening. Flores told defendant that he was a young

man, and he would help himself by telling the truth. Defendant

3
At the start of the interrogation, defendant indicated he was
more comfortable speaking Spanish. The detective utilized a
Spanish language Miranda rights form that he read aloud as
defendant followed along, indicating he understood each right
before signing the form and agreeing to speak to Flores. Miranda
v. Arizona, 384 U.S. 436 (1966). The judge found that defendant
knowingly and voluntarily waived his Miranda rights, a finding
that defendant does not challenge on appeal.

6 A-0117-15T2
soon told Flores he purchased the gun from an unnamed person just

hours before the shooting.

At that point, Flores told defendant he was suspected in the

homicides, intimating that ballistics could match the bullets

recovered from the victims to defendant's gun.4 Flores said:

[I]f it wasn't you, that's fine. Talk to me.
I'm telling you this. Like I told you before
that the game you're in right now, you're
never gonna see the sun. Two dead, one
injured. In this country, it isn't . . . the
death penalty but if they look for it, they
can find it. You're 20 years old. In this
moment you have to think clearly. If you did
something, say it because this – this is the
only thing that the judge wants to hear.

Defendant asked Flores "[w]hat can happen to my brother?" Flores

told defendant he had not yet spoken to the others in the car,

including defendant's brother, but that defendant should "worry

about [himself] right now."

Defendant asked, "How many years do you think they'll give

me?" Flores responded,

For cases that I've had that people don't say
s***, they hit them hard. They hit hard with
30, 50 years . . . .

When you help yourself, they see that. When
you sit here and lie . . . they hit you hard

4
No ballistic testing had been done at that point. At trial, the
parties stipulated that the analysis of four projectiles, two
recovered from the scene and two recovered from the bodies of the
deceased, was inconclusive.

7 A-0117-15T2
 bro. I ain't going to lie, they f*** the s***
out of you.

. . . .

Not even for lying, just from making . . . me
work and making them work to find out the truth
when we already know the truth.

Thirty-two minutes into the interrogation, defendant

confessed to the shootings. He identified pictures of the three

victims and A.M. Defendant again indicated his brother, who had

a young son, had nothing to do with the shooting.

After hearing the argument of counsel, the judge rendered an

oral decision. He noted the ability to view the video recording

was "critical" to his assessment of the "totality of the

circumstances" and his consideration of whether the "statement

itself was voluntary and not the product of coercion, or official

misconduct." The judge said Flores' reference to the "death

penalty" was a "red herring," because it was vague and came in the

context of a discussion of "potential penalties." He paraphrased

Flores' remarks to defendant as "look there's no question, you're

gonna get jail time here. I can't really tell you how much . . . .

I don't know. I can't tell you that." The judge went on to find:

[W]hat you have is a very cordial and very
comfortable exchange between the defendant and
the police officer. The mere fact that this
police officer apparently knows the defendant
from the streets, knows the defendant's
brother, knows his parents, shouldn't work

8 A-0117-15T2
 against the police. That would be . . .
ludicrous.

In fact, it seemed at least, to put the
defendant in a comfort zone. There was no
raising of voices, there was no overt coercive
acts on the part of the officer. There were
no major misrepresentations by the
officer. . . . [I]t appeared at times that
the officer . . . had a genuine concern for
the defendant, and particularly for the
defendant's father.

. . . .

[W]hen you look at that entire tape, I
can't see how anybody can walk away from it
and say, there was this coercive aspect to it,
which renders the statement . . . involuntary.

Defendant contends Flores' statements urging him to provide

information as the only way to help himself or garner favor with

a judge essentially contradicted the Miranda warnings and

neutralized defendant's waiver of those rights. We disagree.

"Appellate courts reviewing a grant or denial of a motion to

suppress must defer to the factual findings of the trial court so

long as those findings are supported by sufficient evidence in the

record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State

v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J.

224, 243 (2007)). We apply this deferential standard "even [to]

factfindings based solely on video or documentary evidence,"

"taking corrective action [only] when factual findings are so

clearly mistaken -- so wide of the mark -- that the interests of

9 A-0117-15T2
justice demand intervention." State v. S.S., 229 N.J. 360, 379,

381 (2017). "By contrast, the task of appellate courts generally

is limited to reviewing issues of law," which we do de novo. Id.

at 380.

Even when Miranda warnings are properly administered, "the

State bears the burden of proving beyond a reasonable doubt that

a defendant's confession is voluntary and not resultant from

actions by law enforcement officers that overbore the will of a

defendant." Hubbard, 222 N.J. at 267 (citing State v. Hreha, 217

N.J. 368, 383 (2014); State v. Galloway, 133 N.J. 631, 654 (1993)).

"Determining whether the State has met that burden requires a

court to assess 'the totality of the circumstances, including both

the characteristics of the defendant and the nature of the

interrogation.'" Hreha, 217 N.J. at 383 (quoting Galloway, 133

N.J. at 654).

Defendant cites cases in which the interrogation techniques

employed by law enforcement actually contradicted or undermined

the Miranda warnings, resulting in suppression of the defendant's

statement. In State v. Pillar, 359 N.J. Super. 249, 268 (App.

Div. 2003), we held that a detective's "acquiescence to hear an

'off-the-record' statement" from the defendant "totally

undermine[d] and eviscerate[d] the Miranda warnings." Similarly

in State v. Fletcher, 380 N.J. Super. 80, 87-88 (App. Div. 2005),

10 A-0117-15T2
one detective, a friend of the family, told defendant, "If you

come in and help us off-the-record, it's a feather in your cap,

it will help you. It is good for you to cooperate . . . ." The

defendant waived his rights and gave an incriminating statement

to another detective. Id. at 88. Relying on Pillar, we concluded

the defendant's statement was "induced by the promise and not

freely and voluntarily given." Id. at 82. Lastly, in State v.

Puryear, 441 N.J. Super. 280 (App. Div. 2015), we suppressed the

defendant's statement because the detective, in explaining the

Miranda rights' caveat that anything said could be used against

the defendant, told him that meant, "if you lie, it can be used

against you." Id. at 290.

None of these cases support defendant's argument in this case

because Flores never represented the statement would be "off-the-

record," nor did he incorrectly explain the Miranda warnings. At

most, Flores told defendant it would be in his best interest to

tell the truth.

In this regard, defendant relies on State ex rel. A.S., 203

N.J. 131 (2010). Citing Pillar, the Court there agreed the

detective should not have told the fourteen-year-old defendant

that answering his questions "would show that she was a 'good

person' and would actually benefit [the defendant]." Id. at 150-

51. "Not only was the veracity of such advice dubious, a fact of

11 A-0117-15T2
which an attorney would have made A.S. aware, it also contradicted

the Miranda warning provided to A.S.: that anything she said in

the interview could be used against her in a court of law." Ibid.

However, we view A.S. as distinguishable from the facts of

this case. Defendant is not a juvenile and, at age twenty, already

had familiarity with the criminal justice system. See id. at 149

(noting A.S. was "on the cusp for heightened protections because

a fourteen-year-old is still of tender sensibilities and may have

great difficulty withstanding the rigors of a police

interrogation"). A.S.'s parent, although present, failed to act

as the buffer between police and her stepdaughter, and actually

assisted police in overriding the child's reluctance to answer

questions. Id. at 149-50. The parent's misstatements of law

regarding Miranda went uncorrected by police. Id. at 150-51. The

Court suppressed the statement based upon the totality of these

circumstances, id. at 152, not solely the officer's assurance that

A.S. could help herself by providing a statement.

The Court has long recognized that "[e]fforts by a law

enforcement officer to persuade a suspect to talk 'are proper as

long as the will of the suspect is not overborne.'" State v.

Maltese, 222 N.J. 525, 544 (2015) (quoting State v. Miller, 76

N.J. 392, 403 (1978)). "The inquiry turns on 'whether an

investigator's statements were so manipulative or coercive that

12 A-0117-15T2
they deprived [defendant] of his ability to make an unconstrained,

autonomous decision to confess.'" Ibid. (alteration in original)

(quoting State v. Di Frisco, 118 N.J. 253, 257 (1990)).

In Miller, 76 N.J. at 403-04, the Court squarely considered

"whether an interrogating officer can appeal
to a suspect by telling him that he is the
suspect's friend and wants to help him. . . .
Does the officer have the right to tell the
suspect that he must help himself first by
telling the truth and then the officer will
do what he can to help the suspect with his
problem?"

The Court conceded "this technique moves into a shadowy area and

if carried to excess in time and persistence, can cross that

intangible line and become improper." Id. at 404. However,

"[e]fforts by an interrogating officer to dissipate" a suspect's

"natural reluctance to admit to the commission of a crime" "and

persuade the person to talk" are proper unless the suspect's will

is overborne. Id. at 403.

In this case, the factual findings made by the judge were

supported by substantial, credible evidence in the record. Flores'

questioning was relatively brief, and he told defendant that he

would be incarcerated whether he made a statement or not. The

detective's dubious claim about the likelihood of defendant's

cooperation leading to a lesser sentence should not be condoned.

Nevertheless, as the judge found based upon the overall tenure of

13 A-0117-15T2
the interview, Flores' interrogation techniques did not overbear

defendant's free will.

III.

Defendant argues the prosecutor's "multiple acts of

misconduct," none of which was objected to by defense counsel at

trial, require reversal. Again, we disagree.

While prosecutors are entitled to zealously argue the merits

of the State's case, State v. Smith, 212 N.J. 365, 403 (2012),

they occupy a special position in our system of criminal justice.

State v. Daniels, 182 N.J. 80, 96 (2004). "[A] prosecutor must

refrain from improper methods that result in a wrongful conviction,

and is obligated to use legitimate means to bring about a just

conviction." Ibid. (quoting State v. Smith, 167 N.J. 158, 177

(2001)).

In considering defendant's argument, we examine whether a

timely objection was made, whether the remarks were withdrawn, or

whether the judge acted promptly and provided appropriate

instructions. Smith, 212 N.J. at 403. "Generally, if no objection

was made to the improper remarks, the remarks will not be deemed

prejudicial." State v. R.B., 183 N.J. 308, 333 (2005). Even if

the prosecutor exceeds the bounds of proper conduct, "[a] finding

of prosecutorial misconduct does not end a reviewing court's

inquiry because, in order to justify reversal, the misconduct must

14 A-0117-15T2
have been 'so egregious that it deprived the defendant of a fair

trial.'" Smith, 167 N.J. at 181 (quoting State v. Frost, 158 N.J.

76, 83 (1999)).

In her opening, the assistant prosecutor invited jurors to

imagine themselves at the scene of the homicides and then

described, in somewhat gruesome detail, what they would have seen.

In his summation, a different assistant prosecutor attempted to

explain A.M.'s reluctance to sign defendant's photograph when

questioned by police on the night of the homicides and his initial

reluctance to testify when called at trial.

Now, I am sure none of us have ever experienced
anything like [A.M.] did. I certainly hope
so and I'm sure you would be sure enough to
share that with us if that was the case. But
there are a few times I'm going to ask you to
kind of put yourself in somebody's shoes.
Think about this.

Think about what that must be like. [A.M.]
was shot at, saw all of his friends [sic]
blood, saw his two friends outside, one dead,
clearly the other, you know, where it's
headed. What must that be like? How does
that make you feel?

How do you react to that? Well, we've got to
follow [A.M.] a little bit and his reaction.
He's taken to police headquarters and he
knows, of course, the police are going to ask
him . . . what happened. Now, if any of us
was in that situation and somebody asked us
what should we do.

Of course, you tell the police you saw the
shooting. You tell them two kids are dead.

15 A-0117-15T2
 Of course. It's innocent heinous, right?
Well, put yourself in his shoes. You're at
police headquarters. You saw somebody commit
cold blooded murder.

What do you do? What do you do? Is it so
easy to sit there and tell the police I saw
it, I know who did it because you still live
there and you have a family. What do you do?
Is it such an easy decision?

[(emphasis added).]

We do not countenance emotional appeals to the jury. State

v. Blakney, 189 N.J. 88, 96 (2006). Moreover, asking the jurors

to place themselves in the shoes of the victim has been soundly

discouraged by other courts that have considered the tactic. See,

e.g., Tyree v. United States, 942 A.2d 629, 643 (D.C. 2008).

However, the prosecutor's opening remarks were brief and made at

the very beginning of a trial that lasted several days. As to the

summation comments, we note that defense counsel portrayed the

shootings as "brutal indeed," described the "copious amounts of

blood" at the scene, and the victims' pleas for life. He called

the homicides "call[o]us and cold-blooded," perhaps "an

assassination." "Our task is to consider the fair import of the

State's summation in its entirety," State v. Jackson, 211 N.J.

394, 409 (2012) (citations omitted), particularly in light of

defense counsel's failure to object. The prosecutor's comments

did not deprive defendant of a fair trial.

16 A-0117-15T2
 Defendant also argues the prosecutor laced her direct

examination of Flores before the jury with improper questions

calling upon the detective to interpret what was happening, or

explain what defendant was doing, as the jury viewed the video-

recorded statement. At points, despite no objection by defense

counsel, the judge interrupted and admonished the prosecutor. In

doing so, the judge acted properly, because we have no doubt these

questions were inappropriate. However, we are convinced that the

prosecutor's actions did not amount to plain error requiring

reversal. R. 2:10-2.

To the extent we have not otherwise specifically addressed

them, defendant's remaining claims of prosecutorial misconduct and

the alleged cumulative effect of the prosecutor's actions do not

warrant discussion in a written opinion. R. 2:11-3(e)(2).

IV.

In his pro se supplemental brief, defendant challenges the

jury's guilty verdict on count five of the indictment. As noted,

the jury found defendant guilty of second-degree SBI aggravated

assault of D.V. as a lesser-included offense of attempted murder.

Defendant contends the judge repeated a portion of the charge

after giving jurors a break, thereby unduly emphasizing the

requisite mental state required for a conviction, and used "bodily

17 A-0117-15T2
injury" instead of "serious bodily injury" at one point during the

charge.

Defendant also argues the judge erred in submitting SBI

aggravated assault to the jury because D.V. did not testify and

there was insufficient proof that he suffered "serious bodily

injury" as a result of the shooting.

These arguments lack sufficient merit to warrant discussion.

R. 2:11-3(e)(2). The judge properly explained the elements of SBI

bodily injury. D.V. suffered gunshot wounds to the face and

shoulder, and his hospital records were admitted into evidence by

stipulation.

Lastly, defendant properly points out that the JOC

incorrectly lists count five as a conviction for aggravated

assault, N.J.S.A. 2C:12-1(b)(7), causing significant bodily

injury, a third-degree crime. We therefore remand the matter to

the trial court to correct the JOC to reflect defendant's

conviction under count five for SBI aggravated assault, N.J.S.A.

2C:12-1(b)(1).

V.

Defendant contends the aggregate thirty-five year sentence

was manifestly excessive. He points to comments made by the judge

as indicative of the judge's intention to impose the harshest

possible sentence because of the jury's decision to acquit

18 A-0117-15T2
defendant of two murders. Defendant contends the judge

inappropriately applied the Yarbough5 factors to impose

5
The Yarbough factors are:

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

[State v. Yarbough, 100 N.J. 627, 643-44
(1985).]
(footnote continued next page)

19 A-0117-15T2
consecutive sentences on the passion/provocation manslaughters and

SBI aggravated assault.

We begin by recognizing "[a]ppellate review of sentencing

is deferential, and appellate courts are cautioned not to

substitute their judgment for those of our sentencing courts."

State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless,

214 N.J. 594, 606 (2013)). Generally, we only determine whether:

(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience.

[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore, "trial judges have discretion to decide if sentences

should run concurrently or consecutively." State v. Miller, 205

N.J. 109, 128 (2011). "When a sentencing court properly evaluates

the Yarbough factors in light of the record, the court's decision

will not normally be disturbed on appeal." Id. at 129.

(footnote continued)
A sixth factor, imposing an overall outer limit on consecutive
sentences, was superseded by legislative action. See State v.
Eisenman, 153 N.J. 462, 478 (1998).

20 A-0117-15T2
 Here, the judge found aggravating factors one, three, six and

nine. See N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the

offense, including whether it was committed in an especially

heinous, cruel or depraved manner); (3) (risk of re-offense); (6)

(the extent of prior criminal record and seriousness of current

offense); (9) (need to deter defendant and others). Hewing closely

to the jury's actual verdict of passion/provocation manslaughter,

the judge accepted defendant's argument that mitigating factors

three and five applied. See N.J.S.A. 2C:44-1(b)(3) (defendant

acted under strong provocation); (5) (the victim induced or

facilitated defendant's conduct). The judge considered the

Yarbough factors, relying extensively upon the Court's decision

in State v. Carey, 168 N.J. 413 (2001).

The sentencing transcript evidences a thoughtful

consideration by the judge of all relevant factors. We commend

the judge for such a comprehensive analysis, with frequent citation

to case law. We certainly find no mistaken exercise of his broad

discretion in fashioning the appropriate sentence in this case.

Affirmed. The matter is remanded solely for correction of

the JOC as to count five.

21 A-0117-15T2