NOT FOR PUBLICATION WITHOUT THE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-4140-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
QUDDIS WIDENER,
Defendant-Appellant.
_________________________
Submitted October 2, 2019 – Decided January 15, 2020
Before Judges Fasciale and Rothstadt.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 16-09-2544.
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel Vincent Gautieri, Assistant Deputy
Public Defender, of counsel and on the brief).
Theodore N. Stephens II, Acting Essex County
Prosecutor, attorney for respondent (Matthew E.
Hanley, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Quddis Widener appeals from a April 27, 2018 judgment of
conviction and sentence that were entered after a jury found him guilty of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and acquitted him of
second-degree weapons charges. The charges arose from defendant's altercation
with the victim after defendant mistreated the victim's girlfriend, which resulted
in the victim being shot. On appeal, defendant argues that the trial judge erred
when he failed to conduct a Wade 1 hearing or instruct the jury with lesser-
included offenses, and by improperly denying defendant's motion for an
acquittal after finding that the conviction was not against the weight of the
evidence. As to his sentence, defendant argues the judge improperly relied on
inconsistent facts when sentencing him. For the reasons that follow, we affirm.
I.
We summarize the facts developed at defendant's trial. The events giving
rise to defendant's arrest and conviction occurred on July 4, 2016, when the
victim, his girlfriend, and the girlfriend's sister, stopped at a neighborhood store
where defendant and his friend were inside. While the victim sat in his vehicle,
the sister went inside the store, and she was soon followed by the girlfriend.
1
United States v. Wade, 388 U.S. 218, 241-42 (1967).
A-4140-17T4
2
Once inside the store, defendant, who the sister had seen before, started
to verbally abuse the two women by making inappropriate sexual comments.
According to the girlfriend, defendant appeared to be intoxicated as he was
slurring his words. After asking defendant to stop, the girlfriend left the store
and went to the car, where she explained to the victim what had just occurred.
A few minutes later, the sister left the store and went to the victim's vehicle's
passenger window to make sure her sister was okay. Before she was able to
return to the backseat of the car, defendant appeared, leaned into the vehicle's
passenger window, and apologized to the victim. Since it was the 4th of July,
the victim wanted to get on his way to the barbeque he and the women were
supposed to attend, so he told defendant to go ahead as he did not want any
issues to arise.
Without explanation, the victim's statement to defendant caused him to
begin screaming at the victim. Defendant's friend attempted to get him under
control, however, defendant took off his shirt, began to bang on the hood of the
victim's car, and walked around to the driver's side of the car in preparation for
a fight. When the victim stepped out of his car, defendant swung at him but
missed and fell to the ground. After getting up, they then began to fight, with
A-4140-17T4
3
defendant never landing a blow to the victim. The fight ended after the victim
knocked defendant to the ground several times.
After lingering for a short time, defendant left the scene and the victim
and his girlfriend took a short walk to a nearby street corner so he could calm
down. Defendant suddenly reappeared after five minutes, began screaming at
the victim, and, according to the victim and the two women, he reached into his
pocket and pulled out a gun.
After seeing the gun, the sister ran into the store and locked herself in the
store's bathroom. After hearing three to four gunshots, she called the police.
Meanwhile, the victim and his girlfriend started running and eventually stopped
in a driveway where they hid behind a van until the police arrived.
Once the police responded, the victim discovered he had been shot in the
buttocks. After being treated by an emergency medical technician (EMT), the
victim and his girlfriend were transported to the hospital. After leaving the
hospital, the two reported to the police station where the victim gave a statement.
Meanwhile, after calling the police, the sister left the store and ran into
the street looking for the victim and her sister. After seeing them while the
victim was being checked by the EMT, Police Detective Tyrone Grundy
A-4140-17T4
4
approached the sister, spoke to her, and then took the sister in his car so she
could show him where defendant lived.
While outside defendant's house, the sister saw someone walking away
from her and Grundy. Once the individual was under the light, she identified
the individual as defendant, even though he was wearing a different shirt. To
get a better look at the individual, Grundy drove around the block with the sister
and when she was closer to the person, she confirmed that the individual was
defendant. After Grundy called for backup, defendant was arrested, and Grundy
took the sister to the police station where she gave a statement about what
happened that night. In their ensuing investigation, the police were never able
to locate a weapon associated with the crime.
Later, the police asked the victim to participate in a photo array, conducted
by Detective Willy Cox. After looking at several pictures, the victim selected a
photograph of defendant that he was confident depicted his assailant. The
A-4140-17T4
5
girlfriend was never questioned at the police station and was not asked to look
at a photo array. 2
An Essex County Grand Jury returned an indictment, charging defendant
with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) ("(b)(1)"),
second-degree possession of a weapon, N.J.S.A. 2C: 39-5(b)(1), and second-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C: 39-4(a)(1).
Defendant's trial on those charges took place over the course of a week in
February 2018. At trial, the victim and the two women testified for the State, as
did Cox and another police officer who responded to the scene.
Defendant did not testify but raised an alibi defense in response to the
charges. In support of his alibi defense, he presented his girlfriend and his
cousin as witnesses. They testified that defendant was at home on the day of the
incident, except for the period between 7:00 p.m. to 7:30 p.m., and again until
he later left the house at 10:45 p.m. to 11:00 p.m. They also stated that they had
no knowledge about defendant having a gun.
In addition to the witnesses' testimony, the parties presented stipulations
that they reached before trial. In the stipulations, the parties agreed that
2
The girlfriend later found a picture of defendant on the internet while trying
to determine the charges brought against him. The girlfriend, however, never
testified at trial to her investigation or seeing the picture.
A-4140-17T4
6
defendant did not have a permit to own or carry a weapon and that the victim
was shot by a handgun on July 4, 2016.
Prior to charging the jury, the trial judge conducted a charge conference
to review the proposed instructions. Neither party raised any objections to the
charges nor requested any additional instructions as to lesser-included offenses.
During deliberations, the jury sent a note to the judge asking for clarification
about the aggravated assault instruction. After conferring with counsel, the
judge re-read the same charge he gave earlier and provided additional
clarification without any objection. The jury resumed its deliberations until it
later returned its verdict, convicting defendant of the assault charge.
Defendant filed a motion under Rule 3:18-2 for acquittal notwithstanding
the jury's verdict (JNOV), which the judge denied. At his sentencing, the judge
considered the statutory aggravating and mitigating factors before imposing a
six-year term, subject to a period of parole ineligibility under the No Early
Release Act, N.J.S.A. 2C:43-7.2. This appeal followed.
On appeal, defendant presents the following arguments:
POINT I
THE JUDGE COMMITTED PLAIN ERROR IN
FAILING TO CHARGE THE LESSER-INCLUDED
OFFENSES TO AGGRAVATED ASSAULT WHERE
THE EXTENT OF THE VICTIM'S INJURY WAS AT
A-4140-17T4
7
ISSUE; AND THE JUDGE'S RESPONSE TO A JURY
QUESTION WAS INADEQUATE BECAUSE THE
QUESTION ALSO REVEALED THE NEED TO
INSTRUCT ON LESSER-INCLUDED OFFENSES.
(NOT RAISED BELOW).
A. BECAUSE THE NATURE OF THE
VICTIM'S INJURY WAS UNCLEAR, THE COURT
ERRED IN FAILING TO CHARGE THE LESSER-
INCLUDED OFFENSES TO AGGRAVATED
ASSAULT.
B. THE COURT'S ANSWER TO THE
JURY'S QUESTION REGARDING THE ASSAULT
WAS INADEQUATE, AS THE COURT SHOULD
HAVE INSTRUCTED JURORS REGARDING
LESSER-INCLUDED OFFENSES WHEN THEY
SUGGESTED THAT THEY VIEWED THE
ASSAULT AS INVOLVING MERELY A BODILY
INJURY WHICH MAY HAVE OCCURRED DURING
A FIGHT.
POINT II
IN IMPOSING SENTENCE, THE COURT ERRED
WHEN IT CONSIDERED FACTS THAT WERE
INCONSISTENT WITH THE JURY'S VERDICT IN
ORDER TO SEND A MESSAGE TO THE
DEFENDANT AND OTHERS.
In defendant's pro se supplemental brief, he provided these additional
points for our consideration:
POINT I
A-4140-17T4
8
THE CONVICTION IS AGAINST THE WEIGHT OF
THE EVIDENCE AND THEREFORE REQUIRES
REVERSAL UNDER RULE 3:18-2.
A. THE EVIDENCE ADDUCED AT TRIAL
IS INSUFFICIENT TO SUSTAIN A FINDING OF
GUILT BEYOND A REASONABLE DOUBT AS TO
CHARGE OF AGGRAVATED ASSAULT IN THE
SECOND DEGREE CAUSING SERIOUS BODILY
INJURY.
B. BECAUSE THIS CASE INVOLVED THE
IDENTIFICATION PROCESS, A WADE HEARING
SHOULD HAVE BEEN HELD TO CHALLENGE
THE ENTIRE IDENTIFICATION PROCESS.
POINT II
THE INTERNALLY INCONSISTENT VERDICT IS
IMPERMISSIBLE AS IT WAS CAUSED BY THIS
COURT'S INCOMPLETE INSTRUCTION TO THE
JURY.
POINT III
IN THE ALTERNATIVE, THIS COURT SHOULD
GRANT A NEW TRIAL PER RULE 3:20-1.
We are not persuaded by any of defendant's arguments.
II.
A.
We first consider defendant's contention that based upon a lack of medical
evidence as to the extent of the victim's injury, the trial judge should have sua
A-4140-17T4
9
sponte instructed the jury about lesser-included offenses. During the judge's
charge, after reading the first count of the indictment charging second-degree
aggravated assault under (b)(1), and reading that section of the statute, the judge
read the Model Jury Charge associated with aggravated assault. See Model Jury
Charges (Criminal), "Aggravated Assault – Serious Bodily Injury (N.J.S.A.
2C:12-1(b)(1))" (rev. Jan. 9, 2012).
On appeal, defendant argues that the judge's failure to have instructed
jurors to consider lesser-included offenses under N.J.S.A. 2C:12-13 "deprived
[him] of due process and the right to jury trial." He argues that the charges on
the lesser-included offenses were warranted because the victim did not
immediately know he was shot, and there was no evidence provided by the State
about the extent of the victim's injuries. Defendant also states his intoxication
may have made him "unable to accurately aim the weapon at an intended target,"
3
Specifically, defendant argues the jury should have been allowed to consider
third-degree aggravated assault under N.J.S.A. 2C:12-1(b)(2) (addressing
"bodily injury with a deadly weapon" (emphasis added)); third-degree
aggravated assault under N.J.S.A. 2C:12-1(b)(7) (addressing attempts to cause
"significant bodily injury" (emphasis added)); fourth-degree assault under
N.J.S.A. 2C:12-l(b)(3) (addressing "[r]ecklessly caus[ing] bodily injury to
another with a deadly weapon" (emphasis added)); and simple assault under
N.J.S.A. 2C:12-1(a) (addressing "[a]ttempts to cause . . . bodily injury,"
"[n]egligently caus[ing] bodily injury to another with a deadly weapon," and
"[a]ttempts by physical menace to put another in fear of imminent serious bodily
injury" (emphasis added)).
A-4140-17T4
10
and that it is unclear whether he intentionally shot the victim or meant to cause
a serious bodily injury. We disagree.
At the outset, we observe that "[w]hen a defendant fails to object to an
error or omission [about a jury charge] at trial, we review for plain error. Under
that standard, we 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). Reversal is warranted only where
an error raises "a reasonable doubt . . . as to whether the error led the jury to a
result it otherwise might not have reached." Ibid. (alteration in original)
(quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). "The mere possibility of
an unjust result is not enough." Ibid. In our review of a trial judge's instructions,
if a defendant does not object to an instruction at trial, we presume "that the
instructions were adequate." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div.
2010) (quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003)).
In its jury charges, a "trial [judge] must give 'a comprehensible
explanation of the questions that the jury must determine, including the law of
the case applicable to the facts that the jury may find.'" State v. Baum, 224 N.J.
147, 159 (2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)).
Accordingly, "the [judg]e has an 'independent duty . . . to ensure that the jurors
A-4140-17T4
11
receive accurate instructions on the law as it pertains to the facts and issues of
each case, irrespective of the particular language suggested by either party.'"
Ibid. (alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613
(2004)).
"[I]f the parties do not request a lesser-included offense charge, reviewing
courts 'apply a higher standard, requiring the unrequested charge to be "clearly
indicated" from the record.'" State v. Fowler, 239 N.J. 171, 188 (2019) (quoting
State v. Alexander, 233 N.J. 132, 143 (2018)). Further, there must be a rational
basis "to acquit defendant of the greater [-included] offense," before a court is
required to deliver the lesser charge. N.J.S.A. 2C:1-8(e); see also State v.
Denofa, 187 N.J. 24, 41-42 (2006). As such,
[t]he "clearly indicated" standard does not require trial
[judges] either to "scour the statutes to determine if
there are some uncharged offenses of which the
defendant may be guilty," or "'to meticulously sift
through the entire record . . . to see if some combination
of facts and inferences might rationally sustain' a lesser
charge." Instead, the evidence supporting a lesser-
included charge must "jump[] off the page" to trigger a
trial [judge's] duty to sua sponte instruct a jury on that
charge.
[Alexander, 233 N.J. at 143 (second and third
alterations in original) (citations omitted).]
A-4140-17T4
12
Here, we conclude that the evidence did not clearly indicate that the lesser-
included offenses should have been charged. The indictment charged defendant
under (b)(1) with "[a]ttempt[ing] to cause serious bodily injury to another, or
caus[ing] injury purposely or knowingly or under circumstances manifesting
extreme indifference to the value of human life recklessly caus[ing] such
injury." The parties stipulated that the victim was shot by a handgun. Witnesses
testified about defendant firing a weapon numerous times at the victim.
The fact that the victim did not suffer a more serious injury than being
shot in the buttocks "did not warrant the judge charging sua sponte any of the
unrequested suggested lesser-included offenses." State v. Mingo, 263 N.J.
Super. 296, 305 (App. Div. 1992) (D'Annunzio, J. dissenting), rev'd on dissent,
132 N.J. 75 (1993). An attempt under (b)(1) does not "require[] that defendant
actually cause injury." Ibid. "Thus, defendant was guilty of the [(b)(1)] offense
if he had attempted to cause serious bodily injury, even if his purposeful or
knowing behavior resulted in only bodily injury." Ibid.
We are not persuaded to the contrary by defendant's reliance upon the
holding in State v. Sloane, 111 N.J. 293 (1988). Unlike defendant, the defendant
in Sloane specifically asked for a charge on lesser-included offenses where he
had repeatedly stabbed his victim, and the question of the defendant's
A-4140-17T4
13
responsibility turned on the extent of the injury. See id. at. 298-300. Here, the
State's evidence did not support a claim that defendant caused a serious bodily
injury, but rather that by shooting at the victim numerous times, defendant
attempted to cause such injury. Defendant's reliance on Sloane is inapposite.
Even if we were to conclude the judge erred by not including instructions
on lesser offenses, the omission was not plain error. The Court has said that:
In the context of a jury charge, plain error requires
demonstration of "[l]egal impropriety in the charge
prejudicially affecting the substantial rights of the
defendant sufficiently grievous to justify notice by the
reviewing court and to convince the court that of itself
the error possessed a clear capacity to bring about an
unjust result."
[State v. Burns, 192 N.J. 312, 341 (2007) (second
alteration in original) (quoting State v. Jordan, 147 N.J.
409, 422 (1997)).].
The allegation of error must be assessed in light of "the totality of the
entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006)
(citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). Here, the jury was free to
find that defendant did not cause any serious bodily injury and did not attempt
to do so, if the State failed to prove either. In light of the fact that there was no
evidence about the seriousness of the victim's injuries, the jury followed the trial
judge's charge about attempting to cause serious bodily injury and found that the
A-4140-17T4
14
State proved beyond a reasonable doubt that defendant was guilty under (b)(1)
of an attempt. Under the totality of the circumstances, we discern no plain error
in the judge omitting charges on the lesser-included offenses of aggravated
assault.
B.
We are not persuaded to the contrary by defendant's argument that the
jury's note somehow triggered an obligation to charge the unrequested lesser-
included offenses. The note stated the following: "We would like to clarify
aggravated assault – causing bodily injury – attempting to cause bodily injury.
The charge states aggravated assault serious bodily injury. If this was an attempt
(say fight) does this qualify for aggravated assault? The document does not
clarify this well enough for us." (Emphasis added). During the judge's
conference about the note with counsel, the prosecutor stated he believed the
note related to the jury "trying to figure out how . . . attempting falls into . . .
agg[ravated] assault." Defendant's attorney agreed that re-reading the jury
charge was the only way to respond, but he mentioned "we don't know if they're
thinking is a fight enough for a serious bodily injury."
A-4140-17T4
15
After considering counsels' comments, the judge re-read the original
charge and further reinstructed the jury, without any objection by defendant, as
follows:
All right, so with aggravated assault here, it's serious
bodily injury, sort of a two branch statute, all right. So
you have causing serious bodily injury or attempting to
cause serious bodily injury, but on the causing serious
bodily injury branch of it you need -- you need a finding
of serious bodily injury, that's the first element, right,
that I read to you, but you also have to find that the
defendant acted purposely or knowingly or acted
recklessly under circumstances manifesting extreme
difference to the value of human life. That's causing
serious bodily injury, that branch.
The other branch of it is attempting to cause serious
bodily injury where, as I just read to you, there you have
to find beyond a reasonable doubt that . . . defendant
purposely attempted to cause serious bodily injury to
[the victim]. It does not matter whether such injury
actually resulted, all right. So, that's the difference
there.
[(Emphasis added).]
As noted, on appeal, defendant contends that the note revealed the jury
"viewed the assault as involving merely a bodily injury which may have
occurred during a fight." He argues that the judge's response to the jury was
inadequate as the judge should have given a tailored instruction that would have
A-4140-17T4
16
clarified whether the assault could have been based on the fight alone. We find
no merit to defendant's contentions.
We conclude that the trial judge's response to the jury's note properly
addressed and clarified the issue raised by the jury. "'[W]hen a jury requests a
clarification,' the trial [judge] 'is obligated to clear the confusion.'" State v.
Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super.
133, 157 (App. Div. 1984)). When a "note [is] ambiguous . . . the trial judge
should not . . . assume[] the meaning of the jury's questions, but [instead]
should . . . instruct[] the jury to clarify those questions," State v. Whittaker, 326
N.J. Super 252, 262-63 (1999), "so that the actual concern of the jury may be
appropriately addressed." Pressler & Verniero, Current N.J. Court Rules, cmt.
7 on R. 1:8-7 (2020). The trial judge must answer questions "clearly and
accurately and in a manner designed to clear its confusion, which ordinarily
requires explanation beyond rereading the original charge. The court's failure
to do so may require reversal." Ibid.
Here, the trial judge properly recognized that the jury's question related to
an attempt to cause serious bodily injury as provided under (b)(1). The note
itself acknowledged that the jury understood they were asked in the charge to
determine whether there was an attempt to cause serious bodily injury, and its
A-4140-17T4
17
question was focused on what circumstances supported a finding of an attempt.
The judge's explanation properly addressed that issue. The judge evidently
provided the explanation the jury was looking for as demonstrated by the lack
of any further questions before the jury returned its verdict.
We reject defendant's contention that the focus of the note was about the
fight that preceded the shooting. There was clearly no evidence in the record,
nor did the State ever argue, that defendant attempted to cause serious bodily
injury to the victim when he swung at but missed defendant or when they
subsequently struggled for a few moments before the fight ended. Contrary to
defendant's contentions, that insignificant "attempt," which did not and could
not have caused any bodily injury, 4 did not satisfy the requirements of any of
4
N.J.S.A. 2C:11-1 defines the various injuries required for a finding of assault.
It states in pertinent part:
a. "Bodily injury" means physical pain, illness or any
impairment of physical condition;
b. "Serious bodily injury" means bodily injury which
creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or
organ;
....
A-4140-17T4
18
the lesser-included offenses he argues should have been charged. Here again
we find no error.
III.
We turn next to defendant's contention that the evidence adduced at trial
was insufficient to sustain a conviction under (b)(1). Essentially, defendant
again argues that the lack of evidence about the extent of the victim's actual
injury should have resulted in an acquittal. For that reason, defendant argues
his Rule 3:18-2 motion for acquittal JNOV should have been granted. We
disagree.
In our review of a denial of a motion filed under Rule 3:18-2, we apply
the same standard as the trial judge. State v. Tindell, 417 N.J. Super. 530, 549
(App. Div. 2011) (citing State v. Moffa, 42 N.J. 258, 263 (1964)). We consider
whether the evidence viewed in its entirety, and giving
the State the benefit of all of its favorable testimony and
all of the favorable inferences which can reasonably be
drawn therefrom, is such that a jury could properly find
beyond a reasonable doubt that the defendant was guilty
of the crime charged.
[Ibid. (quoting State v. D.A., 191 N.J. 158, 163
(2007)).]
d. "Significant bodily injury" means bodily injury
which creates a temporary loss of the function of any
bodily member or organ or temporary loss of any one
of the five senses.
A-4140-17T4
19
Applying that standard, we conclude that the trial judge properly denied
defendant's motion as there was sufficient evidence that defendant committed a
(b)(1) aggravated assault by shooting at the victim multiple times, as testified to
by the victim, his girlfriend, and her sister. We find defendant's arguments to
the contrary to be without sufficient merit to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
IV.
We turn our attention next to defendant's argument that his conviction
cannot be sustained because it was inconsistent with his acquittal on the weapons
possession charges. According to defendant, if the jury found he did not possess
a weapon, it could not have also found that he attempted to cause serious bodily
injury to the victim by shooting at him. We disagree.
Contrary to defendant's argument, and as held by the Supreme Court,
inconsistent verdicts are acceptable. As the Court explained in State v.
Muhammad, 182 N.J. 551, 578 (2005):
Consistency in the verdict is not necessary. Each count
in an indictment is regarded as if it was a separate
indictment. Our jurisprudence does not allow us to
conjecture regarding the nature of the deliberations in
the jury room. In reviewing a jury finding, we do not
attempt to reconcile the counts on which the jury
returned a verdict of guilty and not guilty. Instead, we
determine whether the evidence in the record was
A-4140-17T4
20
sufficient to support a conviction on any count on
which the jury found the defendant guilty. We do not
speculate whether verdicts resulted from jury lenity,
mistake, or compromise.
[(Citations omitted).]
As we have already observed, here, there was sufficient evidence for the
jury to rely upon in finding defendant guilty of the (b)(1) aggravated assault.
We have no cause to speculate as to why the jury acquitted defendant on the
other charges.
V.
Next, we address defendant's contention that the trial judge should have
conducted a Wade hearing about the victim's and his girlfriend's identification
of defendant because the victim did not identify him and the girlfriend's out-of-
court identification was inadmissible.
We conclude defendant's argument is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, his
contentions are belied by the record as the victim did identify defendant through
a photo array, about which there was no evidence that the procedure used was
"the product of suggestive or coercive interview techniques," State v. Michaels,
136 N.J. 299, 320 (1994) (quoting Watkins v. Sowders, 449 U.S. 341, 350
(1981)); see State v. Henderson, 208 N.J. 208, 218 (2011), modified by State v.
A-4140-17T4
21
Anthony, 237 N.J. 213, 233-34 (2019); see also State v. Pressley, 232 N.J. 587,
596-97 (2018), and defendant's girlfriend never testified at trial about her out -
of-court identification of defendant using the internet.
VI.
Having determined that defendant's challenges to his conviction were
without merit, we now address his contentions about his sentence. At
defendant's sentencing, the trial judge considered the statutory criteria for
5
imposing sentences and found aggravating factors three, six, and nine
applicable given that defendant was previously convicted for an unlawful
possession of a weapon within the last four years. He also found mitigating
factor eleven6 applicable, as defendant provided financial support to his three
children, which "would entail [an] excessive hardship" to defendant and his
children if he were incarcerated. The judge then found that the aggravating
factors outweighed the mitigating factor and sentenced defendant to six years
5
See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another
offense"); (6) ("[t]he extent of the defendant’s prior criminal record and the
seriousness of the offenses of which he has been convicted"); and (9) ("[t]he
need for deterring the defendant and others from violating the law").
6
See N.J.S.A. 2C:44-1(b)(11) ("[t]he imprisonment of the defendant would
entail excessive hardship to himself or his dependents").
A-4140-17T4
22
subject to a period of parole ineligibility under the No Early Release Act under
N.J.S.A. 2C:43-7.2.
On appeal, defendant argues that the judge "imposed a sentence that was
inconsistent with the verdict." He contends that it was wrong for the judge to
rely on the victim being shot when sentencing defendant because he was
acquitted of the weapons charges. He also argues that he was prejudiced when
the judge imposed a sentence to "send a message to [him] and others." In support
of his contentions, defendant relies upon our holding in Tindell where a trial
judge imposed a maximum sentence against the defendant after he allowed his
personal views to cloud his judgment by making disparaging comments about
defendant, the jurors, and witnesses at sentencing. Tindell, 417 N.J. Super. at
572. We find no merit to these contentions.
We review a sentence imposed by the trial judge under an abuse of
discretion standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we
consider whether: "(1) the sentencing guidelines were violated; (2) the findings
of aggravating and mitigating factors were . . . 'based upon competent credible
evidence in the record;' [and] (3) 'the application of the guidelines to the facts'
of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221,
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228 (2014) (third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-
65 (1984)).
Applying this standard, we discern no abuse in the trial judge's discretion
nor did the sentence he imposed shock our judicial conscience. The judge
imposed a sentence in the lower range for a second-degree crime. The judge's
reliance upon the evidence in the record about defendant committing a (b)(1)
offense was permissible even though the jury acquitted defendant of the
weapons charges. Moreover, the judge properly considered and applied
aggravating factor nine as a legitimate consideration under the statute. We have
no cause to disturb defendant's sentence.
VII.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude that they are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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