STATE OF NEW JERSEY v. PHILIP HOLDEN ABDUL MUSLIM

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. PHILIP HOLDEN, n/k/a ABDUL MUSLIM, Defendant–Appellant.

DOCKET NO. A–2663–11T2

Decided: April 10, 2014

Before Judges Messano and Rothstadt. Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Andrew R. Burroughs, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief.

Defendant Philip Holden, n/k/a Abdul Muslim appeals from his conviction after a jury trial on numerous charges arising from his fatally shooting an innocent bystander during a dispute he was having with another person.   The dispute allegedly arose out of both of their drug dealing activities.   As a result of that incident, a grand jury returned an indictment charging defendant with first-degree robbery, N.J.S.A. 2C:15–1 (Count One);  second-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1) (Count Two);  first-degree attempted murder, N.J.S.A. 2C:5–1, 11–3 (Count Three);  first-degree murder, N.J.S.A. 2C11–3a(1), (2) (Count Four);  second-degree unlawful possession of a handgun, N.J.S.A. 2C:39–5b (Count Five);  and second-degree unlawful use of a handgun, N.J.S.A. 2C:39–4a (Count Six).

Count One was dismissed prior to the start of trial and the jury found defendant guilty of all remaining charges.   Subsequently, the court sentenced defendant to a term of life imprisonment with a thirty-five year parole disqualifier on Count Three,1 and to a consecutive life term with a thirty-five year parole disqualifier on Count Four.2 The court also sentenced defendant to ten years, subject to a five-year parole disqualifier, on Count Five, which was to run concurrently with Count Three.   As to both of those counts, the court required defendant to serve eighty-five percent of his sentence before being parole eligible pursuant to the No Early Release Act, N.J.S.A. 2C:43–7.2.

On appeal, defendant's counsel asserts the following arguments:

POINT I

THE ABSENCE OF A JURY INSTRUCTION ON ATTEMPTED PASSION/PROVOCATION MANSLAUGHTER AS A LESSER INCLUDED OFFENSE OF MURDER AND ATTEMPTED MURDER DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.   U.S. CONST.   AMEND, XIV, N.J. CONST.  (1947) ART. I, PARS. 1, 9, 10.  (Not Raised Below).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

In a pro se supplemental brief he filed, defendant also argues:

POINT I

DEFENDANT WAS DENIED THE RIGHT TO A FAIR AND IMPARTIAL TRIAL WHEN TRIAL ATTORNEY WAS INEFFECTIVE DUE TO FAILURE [TO] PRESENT EXCULPATORY EVIDENCE IN SUUPORT OF THIRD PARTY GUILT DEFENSE, AND FAIL[URE] TO TIMELY OBJECT TO THE JUDGE'S ENCOURAGING LEADING QUESTIONS BY THE PROSECUTION DEPRIVED DEFENDANT OF A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE AND A FAIR TRIAL IN VIOLATION OF U.S. CONST.   AMENDMENTS V, VI, XIV.

POINT II

THE TRIAL JUDGE ERRED BY NOT ALLOWING THE DEFENDANT A NEW TRIAL BASED ON DEFENDANT'S MOTION FOR A MISTRIAL BASED ON THE TESTIMONY ELICITED FROM STATE'S WITNESS DENIED DEFENDANT A FAIR TRIAL.

POINT III

THE TRIAL JUDGE ERRED WHEN [HE] ALLOWED BALLISTIC EXPERT TO TESTIFY TO MATTERS THAT [WERE] SOLELY BASED ON OPINION AND THIS ACT WITH THE CUMULATIVE ACTS OF THIS EXPERT WAS PREJUDICIAL AND THUS DEPRIVED DEFENDANT THE RIGHT TO A FAIR TRIAL.

POINT IV

THE TRIAL COURT ERRED BY NOT GIVING A CURATIVE INSTRUCTION CONCERNING THE TESTIMONY OF [DEFENDANT'S GIRLFRIEND].

POINT V

THE PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT IN HIS CLOSING REMARKS TO THE JURY.

We have considered these arguments in light of the record and applicable legal standards.   We affirm.

I.

At trial, the State's witness, Elijah Agee, testified that on the night of January 11, 2010, he was standing outside of Manny's Liquor Store (“Manny's”) in Newark, a spot where he admittedly engaged in selling heroin.   On this particular night, however, Agee testified that he was not selling drugs and was instead “engaging in horseplay with two fellow peers.”   Agee testified that while he was socializing, he was approached by three men with whom he ultimately became involved in a fist fight.   He believed that the three men confronted him because they wanted to force him to “split the sales” from his business dealing heroin, but he was not interested in doing so.   Agee recognized one of the three assailants who struck him, and stated that the two had exchanged words the previous day in front of Manny's.   Agee estimated that the fight lasted approximately ten minutes, and ended when he chased the three men around the corner with a baseball bat he had retrieved from a friend's car.   Eventually, Agee caught up to one of the men, who was not defendant, and hit him with the baseball bat.

Agee testified that he returned to the area in front of Manny's because his house keys and Bluetooth had been misplaced over the course of the fist fight.   Agee stated that as he bent down to look for his keys, he “saw a guy coming from Twelve [Street] and threw a shot, and I just started running.”   Agee stated that he heard “about four” shots fired, and was able to escape the area without being hit by running through a vacant lot and around the corner.   When Agee fled the area, he was unaware that someone had been shot.

Craig Palmer, a second witness for the State, testified that he came to Newark on the night of January 11, 2010 to purchase heroin from a drug dealer he knew as “Youngen.” 3  He testified that upon driving in to the area by Manny's, he saw “four dudes scuffling.   Basically it was a three on one.   You can tell that's how it was.   And then all of a sudden ․ [Agee] produced a bat out of somewhere and started chasing these dudes down Thirteenth Street.   And after that I just continued down Sixteenth Avenue.”   Once the fight had ended, Palmer and his friend approached the area where Agee stood in order to purchase heroin, but did not speak directly to him because Agee was “all souped up” from the fight that had occurred and was discussing the night's events with other people.

As Palmer and his friend waited off to the side, he observed defendant speaking with another man on the corner.   Palmer testified that he had previously encountered defendant, known to him as “Whack,” approximately two times in the past twenty-five years.4  After defendant finished speaking with the man on the corner, he proceeded back towards Manny's.   Palmer stated that defendant “had both of his hands in his pocket and ․ he had a bandanna around his neck and he was trying to put his face through that bandanna.”   Palmer testified that he was clearly able to identify defendant as he walked past him.   Palmer stated that when defendant was almost right in front of Manny's, “he just started shooting at [Agee].” When the shooting began, Palmer ran.   He also saw Agee run towards a vacant lot across the street.   Palmer stated that although he was not completely certain, he believed that defendant fired approximately six shots.   Initially, Palmer also did not realize that anyone was injured by the gunshots, and did not report the incident to anyone that night.

Police Officer Louis Waltman testified that on the night of January 11, he was on patrol duty when he received an alert from the “spot shotter,” a device “that picks up gunshots” and uses GPS technology to guide officers to the location where the shots were fired.   Upon arriving at Manny's, Officer Waltman stated that the “first thing we did [was] scan the location for victims which we did not see any.”   However, four spent forty-five caliber shells were recovered in front of Manny's and in the immediate vicinity.

The next morning, police received a call “to respond to a possible sick or injured person” in a car parked near Manny's.   Eventually, they discovered the body of a woman in the driver's seat of her vehicle, later identified as Karen Cunningham.

Surveillance footage from Manny's showed Cunningham exiting Manny's just prior to the shooting.   She was apparently shot while returning to her car from the liquor store, and was able to get into her vehicle before she passed away.   According to testimony from the medical examiner, Cunningham suffered “a gunshot wound of entrance in the right upper arm and a gunshot wound of exit on the left upper chest.”   The autopsy revealed that the bullet had gone through Cunningham's chest, causing damage to her “aortic arch ․ left upper lobe of the lung ․ [and] second rib.”

As mentioned above, neither Palmer nor Agee initially realized that anyone had been injured in the shooting, and neither man reported the incident to police.   However, Palmer subsequently learned of Cunningham's death from a television news report.   On the afternoon of January 12, police arrested Palmer during a traffic stop in Verona when they discovered an outstanding warrant for Palmer arising from his failure to pay a fine.   The police transported Palmer to headquarters, where he eventually disclosed that he “was a witness to a homicide in the Newark” and requested to speak to someone regarding what he witnessed.   Although defendant's attorney inferred that Palmer shared this information to avoid incarceration, Palmer testified that he did so because “it was eating at [him]” that an innocent bystander had been killed and that he had not come forward with what he knew.   Palmer also identified defendant as the shooter when surveillance footage was played during the trial.

On January 12, Agee was also aware that police were investigating Cunningham's death because he was back in the vicinity of Manny's selling heroin.   However, he did not voluntarily come forward at that time because he “was still doing what [he] was doing so [he] didn't want to draw no attention to [himself].”   A few days later, Agee learned that police wanted to speak to him in connection with Cunningham's death.   When Agee did finally speak to police, he initially told them that the fight broke out after he was robbed because he did not want to implicate himself as a drug dealer.   However, he did tell police that someone had tried to shoot him.   When the police subsequently showed a photo array to Agee and asked him to identify the man who fired the shots on January 11, he identified defendant as the culprit.

Defendant voluntarily surrendered to police on January 14, 2010.   The police did not recover any weapons when they executed a search warrant at defendant's home, which he shared with his girlfriend.   In addition, police did not find any items of clothing in the home matching Agee's or Palmer's descriptions.

At trial, the State presented testimony from Agee, Palmer, Cunningham's husband, and several law enforcement officers and personnel involved in the investigation of Cunningham's death.   Defendant did not testify on his own behalf, but presented testimony from his girlfriend, who stated that defendant was living with her in January 2010, and that on the night of January 11, 2010, he was at home with her and her daughters, preparing for his overnight shift at a ShopRite in West Orange.

In addition, at trial, the parties entered into a stipulation regarding the gun used in the shooting death of Cunningham.   Specifically, the parties agreed that the gun was also used in later shootings on August 15, 2010 and September 26, 2010, after defendant was already in custody.

During the charge conference conducted by the court, defense counsel did not request a passion/provocation manslaughter instruction be given to the jury.   At the conference, the judge stated that the proper lesser included offenses for defendant's first-degree murder charges were “agg[ravated] man[slaughter, N.J.S.A. 2C:11–4a] ․ and reckless manslaughter[, N.J.S.A. 2C:11–4b(1) ].”   When asked if he requested the inclusion of any other lesser-included offenses in the charge, defense counsel stated that he “just s[aw] those two.”   The State responded the same.   Accordingly, during the jury charge, the judge instructed the jury regarding the elements of aggravated manslaughter and reckless manslaughter, as well as murder.

After deliberations, the jury convicted defendant of all charges and the court subsequently sentenced him and entered the judgment of conviction from which he now appeals.

II.

Defendant's primary argument on appeal is that the trial court committed reversible error by not charging the jury with the law on attempted passion/provocation manslaughter 5 as a lesser included offense of murder and attempted murder.   Defendant contends that such an instruction was appropriate under these circumstances because “the attempted murder victim [Agee] had been in a fight with defendant and two other men.   The fight ended with Agee attacking the other men with a baseball bat and using it to strike at least one of them and knock him to the ground.”   Defendant further points to Agee's testimony wherein he admitted participating in “hand to hand” fighting with defendant as evidence that a passion/provocation manslaughter instruction was proper.

As noted, defense counsel did not request that the specific charge be given to the jury nor did he take issue to its omission after the court's charge.   As a result, defendant must demonstrate plain error, i.e., that the error, if any, was “clearly capable of producing an unjust result.”  R. 2:10–2;  see also State v. Taffaro, 195 N.J. 442, 454 (2008) (citing State v. Macon, 57 N.J. 325, 336 (1971)).  “Reversal of defendant's conviction is required only if there was error ‘sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.’ ”  State v. Atwater, 400 N.J.Super. 319, 336 (App.Div.2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)).   Applying this standard, we are satisfied that defendant has not met his burden on this issue because the evidence adduced at trial did not require the court to instruct the jury with that charge.

As a lesser-included offense of murder, passion/provocation manslaughter must be charged, even absent a request, where it is “clearly indicate[d]” by the proofs.  State v. Jenkins, 178 N.J. 347, 361 (2004).  “[W]here the facts on record would justify a conviction of a certain charge, the people of this State are entitled to have that charge rendered to the jury[.]”  State v. Garron, 177 N.J. 147, 180 (2003) (quoting State v. Powell, 84 N.J. 305, 319 (1980), certif. denied, 87 N.J. 332 (1981)), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L. Ed.2d 1204 (2004);  see also State v. R.T., 205 N.J. 493, 510 (2011) (Long, J., concurring) (stating that “the need for the charge must ‘jump off’ the proverbial page”) (citing State v. Denofa, 187 N.J. 24, 42 (2006)).

A key purpose of charging lesser included offenses is to guard against the prospect that “a jury reluctant to acquit defendant might compromise on a verdict of guilt on the greater offense.”  State v. Sloane, 111 N.J. 293, 299 (1988).  “Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.”  Ibid. (quoting Keeble v. United States, 412 U.S. 205, 212–13, 93 S.Ct. 1993, 1998, 36 L. Ed.2d 844, 850 (1973) (emphasis in original)).

In order to properly decide whether a passion/provocation manslaughter instruction was “clearly indicated” by the proofs, it is necessary to explore the elements of this particular crime and the facts of the case.   See State v. Crisantos, 102 N.J. 265, 273–78 (1986).  N.J.S.A. 2C:11–4b states that a “[c]riminal homicide constitutes manslaughter when ․ [i]t is committed recklessly;  or ․ [a] homicide which would otherwise be murder ․ is committed in the heat of passion resulting from a reasonable provocation.”

Our case law has recognized four components to passion/provocation manslaughter:  “(1) reasonable and adequate provocation;  (2) no cooling-off time in the period between the provocation and the slaying;  (3) a defendant who actually was impassioned by the provocation;  and (4) a defendant who did not cool off before the slaying.”  State v. Josephs, 174 N.J. 44, 103 (2002) (citing State v. Mauricio, 117 N.J. 402, 411 (1990)).  “The first two elements of the offense are objective;  thus, if they are supported by the evidence, the trial court should instruct the jury on passion/provocation manslaughter, leaving the determination of the remaining elements to the jury.”  Ibid. (citing State v. Robinson, 136 N.J. 476, 491 (1994)).

In deciding whether an instruction on passion/provocation manslaughter is warranted, courts should view the evidence in a light most favorable to the defendant.  Mauricio, supra, 117 N.J. at 412.  “[T]he judge must determine whether a reasonable fact-finder could conclude that the [defendant's] loss of self control was a reasonable reaction” to the victim's provocation.  State v. Viera, 346 N.J.Super. 198, 212 (App.Div.2001), certif. denied, 174 N.J. 38 (2002).   The charge should only be withheld when “no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person[.]”  Mauricio, supra, 117 N.J. at 412.

Defendant argues that “the propriety of a jury instruction on passion/provocation manslaughter as a lesser included offense of murder and attempted murder was clearly indicated by the trial evidence that the shooting was immediately provoked by the victim's baseball bat assault on defendant and his friends.”   The State argues that defendant cannot rely on a passion/ provocation instruction when he himself was “the instigator of the fight” with Agee.

Our review of the record does not reveal any facts that would support charging the jury in this case with passion/ provocation manslaughter, even if requested by defendant.   Agee's defending himself using a baseball bat did not constitute a reasonable and adequate provocation for defendant's action.   First, Agee's use of the bat was not directed toward defendant, but a different person.   Second, even if Agee used the bat to threaten or harm defendant, it was to defend himself from an attack instigated by defendant and his friends.   We have previously held that “the passion of an assailant aroused as the result of injuries inflicted by his victim attempting to defend himself is, as a matter of law, insufficient to mitigate the assailant's culpability for the resulting homicide.”  State v. Pasterick, 285 N.J.Super. 607, 617 (App.Div.1995).

In addition, there are no facts in the record to support defendant's argument that there was “no cooling-off time in the period between the provocation and the slaying.”  Josephs, supra, 174 N.J. at 103 (citing Mauricio, supra, 117 N.J. at 411).   Rather, the record indicates that defendant did not return to the site of the scuffle with a gun until some time after the fight had already concluded, after Agee chased defendant and his friends and hit one of them with a baseball bat.   After those events, defendant spent time preparing himself to return with a gun to shoot Agee and then, defendant had enough time to cool down after he successfully avoided Agee. Instead of leaving the scene, he put on a bandanna and returned, specifically looking for Agee. When he saw Agee, defendant then opened fire.   Enough time had elapsed for defendant to have collected himself, camouflaged his appearance and then hunt down his intended victim.

Finally, contrary to defendant's argument, his shooting at Agee was not part of “hand to hand” fighting so as to constitute “mutual combat.”  “Mutual combat under certain circumstances may constitute adequate provocation to reduce murder to manslaughter.”  Pasterick, supra, 285 N.J.Super. at 617 (citing Crisantos, supra, 102 N.J. at 274–75).   Mutual combat is different, however, from acting in self-defense.  “ ‘[A] mutual combat requires a mutual intent to fight, as distinguished from an encounter where one is attacking and the other is merely defending himself, in which case a homicide by the defender would not even be unlawful.’ ”  Ibid. (quoting Charles E. Torcia, 2 Wharton's Criminal Law § 161, at 361 (15th ed.1994)).

Although it is true that Agee did ultimately engage defendant and his three friends in “hand to hand” fighting, he did so only after being attacked by them in the first place.   In any event, he used the bat against his aggressors in order to ward them off, but significantly he did not use the bat against defendant.   In response defendant used a gun which was not a “proportionate” response to Agee's attempt to defend himself.  State v. Darrian, 255 N.J.Super. 435, 449 (App.Div.1992). [“the provocation must be proportionate to the manner of retaliation and therefore if a defendant on a slight provocation attacked the victim with violence out of proportion to the provocation, the crime is murder”].

Viewing all of these facts in a light most favorable to defendant, we are satisfied that the trial court did not commit any error in failing to issue a jury instruction for passion/ provocation manslaughter.

III.

We next turn to the issues raised by defendant in his pro se supplemental brief.   After carefully reviewing those issues in the context of the record in this matter we are satisfied that defendant's arguments lack sufficient merit to warrant extensive discussion in a written opinion.  R. 2:11–3(e)(2).   We note only the following as to each:

Initially, defendant raises issues about the performance of his trial attorney.   Such claims are not cognizable on direct appeal, but should be reserved for a future potential application for post-conviction relief (PCR), where the record may be expanded with appropriate proofs outside of the trial transcripts.  State v. McDonald, 211 N.J. 4, 30 (2012);  State v. Hess, 207 N.J. 123, 145 (2011).

Defendant also argues that the court erred by not granting his motion for a mistrial.   However, our review of the record does not reveal that defendant ever made that motion.   In addition, defendant does not cite to any specific portion of the transcript where he believes the motion is raised or discussed.   Having not properly briefed the issue we are inclined to deem his argument abandoned.  W.H. Indus., Inc. v. Fundicao Balancis, Ltda, 397 N.J.Super. 455, 459 (App.Div.2008);  see R. 2:6–2.6

Although not objected to at trial, on appeal defendant argues that the court erred by permitting a medical examiner 7 to testify to a report prepared by a different medical examiner.   The medical examiner testified regarding the contents of an autopsy report that was not entered into evidence after having an opportunity to review the information presented therein and conducting her own independent analysis.   The defense was given the opportunity to question her but declined.   Under these circumstances, it was not error to allow the testimony about the report.  N.J.R.E. 703;  Williams v. Illinois, _ U.S. _, 132 S.Ct. 2221, 2228, 183 L. Ed.2d 89, 98 (2012) (holding that testimony was proper because forensic scientist was permitted, as an expert witness, to rely upon “facts or data” that were not in evidence.) 8

IV.

Finally, defendant's counsel argues that defendant's sentence is excessive.   We disagree.

Defendant argues that the trial court erred by imposing consecutive life sentences for his convictions for both the murder of Cunningham and the attempted murder of Agee. According to defendant, the “trial record clearly supported substantial mitigating factors that weighed in favor of a lesser sentence.”   We find no merit to defendant's argument.

In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44–1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal.  State v. Abdullah, 184 N.J. 497, 507 (2005);  State v. Kruse, 105 N.J. 354, 378 (1987).   If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient evidence in the record, an appellate court should affirm the sentence.  State v. Carey, 168 N.J. 413, 426–27 (2001).   If a court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it “shocks the judicial conscience.”   State v. Cassady, 198 N.J. 165, 183–84 (2009).

Our review of sentencing decisions is limited.  State v. Miller, 205 N.J. 109, 127 (2011).   In State v. Bieniek, our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division.  200 N.J. 601, 608 (2010).   Where “the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing.”  Id. at 612.  “We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence.”  Ibid.

The court here performed its obligation to consider the aggravating and mitigating factors before sentencing defendant to a legal sentence.   Specifically the court found aggravating factors three, N.J.S.A. 2C:44–1(a)(3) (risk of re-offense), six, 2C:44–1(a)(6), (prior criminal history), and nine, 2C:44–1(a)(9), (need for deterrence), primarily based on defendant's extensive criminal record.   As noted by the trial court, that record consisted of:

[N]ine prior indictable convictions, two for CDS in 1989 and 2009, one in 1992 for attempted murder, robbery, unlawful possession of a weapon, handgun and possession of a weapon for an unlawful purpose.   One for aggravated assault, serious bodily injury in 1992, one for unlawful possession of handgun in '02, one for a certain person not to have a weapon in '02, one for receiving stolen property in '02, one for eluding law officer and resisting arrest in 2010, two probationary sentences, seven prison sentences, one escape charge and two disorderly persons offenses.

The court also noted that it considered the mitigating factors and found that none applied.   We find no error in any of the trial court's findings or the sentence imposed based on those findings.

Finally, defendant argues that because the two crimes — murder as to Cunningham, and attempted murder as to Agee — both occurred within the same incident, consecutive sentences should not have been imposed.   Again, we disagree.

“When a sentencing court properly evaluates the Yarbough 9 factors in light of the record, the court's decision will not normally be disturbed on appeal.”  Miller, supra, 205 N.J. at 129;  see also Cassady, supra, 198 N.J. at 182 (2009).  “However, if the court does not explain why consecutive sentences are warranted, a remand is ordinarily needed for the judge to place reasons on the record.”  Ibid. (citations omitted).

In Yarbough, supra, our Supreme Court identified the relevant criteria for determining when consecutive, as opposed to concurrent, sentences should be imposed.  Yarbough, supra, 100 N.J. at 643–45.   The Court noted that it is “senseless” to give a criminal “free” crimes.  Id. at 639.   Instead, a sentencing court should consider the factual content of the crimes, including whether or not:  (1) “the crimes and their objectives were predominantly independent of each other;” (2) “the crimes involved separate acts of violence or threats of violence;” (3) “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;” (4) “any of the crimes involved multiple victims;” and (5) “the convictions for which the sentences were imposed were numerous.”  Id. at 644.

These five factors are to be applied qualitatively, rather than quantitatively.  Carey, 168 N.J. at 427.   A consecutive sentence can be imposed even if a majority of the Yarbough factors support concurrent sentences.  Id. at 427–28.   The fairness of the overall sentence should be considered in reviewing the imposition of consecutive sentences.  State v. Sutton, 132 N.J. 471, 485 (1993) (citing State v. Miller, 108 N.J. 112, 121 (1987)).

At the sentencing hearing, the trial court noted that it had considered the applicable factors in Yarbough in determining the appropriate length of defendant's sentence.   The judge stated:

The Court is ․ aware of the mandate from State versus Yarbough by the Supreme Court that there are no free crimes in New Jersey.

The factors involve crimes and objectives [that] were independent of each other;  two, separate acts of violence or threats of violence;  three, different types and places of crime other than being so close as to show a single period of aberrant behavior;  four, multiple victims;  and let's see, the convictions are numerous for which the sentence would be imposed.

Now the Court has considered these various factors.   There are two victims in this particular case, one of which was Mrs. Cunningham who was killed by a stray bullet, as well as the attempted murder of Mr. Agee. And the gentleman as I believe some of the cases do quote, should not benefit from his bad aim with regard to having missed killing Mr. Agee.

Therefore, I've considered the various Yarbough factors and I find the multiple victim factor substantially ․ preponderates the other factors in this particular matter.

Thus, the trial court “succinctly explained its reasons for imposing a consecutive sentence,” State v. Spivey, 172 N.J. 229, 245 (2004), based primarily on the fact that there were multiple victims.   As noted, the fact that other Yarbough factors do not support a consecutive sentence does not mean that the reason stated here by the trial court judge was in any way insufficient.   By imposing consecutive sentences, the court obviously intended to make clear Yarbough's reminder “that there are no free crimes.”  Ibid. The court here “heard all the witnesses ․ and was familiar with defendants' lengthy ․ criminal history.   We cannot conclude that the trial court abused its discretion by imposing consecutive sentences.”  Ibid.

Affirmed.

FOOTNOTES

1.  FN1. Prior to sentencing defendant, the court granted the State's motion to sentence him to an extended term.  N.J.S.A. 2C:43–7, 44–3(a) and (d).

2.  FN2. The court merged Count Two with Count Three.   It also merged Count Six with Counts Three and Four.

3.  FN3. Youngen is apparently Agee's street name.

4.  FN4. Although the nature of Palmer's relationship with defendant was not disclosed to the jury, the record indicates that Palmer and defendant had previously served time together.

5.  FN5. The Model Jury Charge (Criminal), § 2C:11–3a(1) and (2);  2C:11–4a, b(1) and b(2), “Murder, Passion/Provocation and Aggravated/Reckless Manslaughter” (2011), defines passion/provocation manslaughter and sets forth its elements:Passion/provocation manslaughter is a death caused purposely or knowingly that is committed in the heat of passion resulting from a reasonable provocation.Passion/provocation manslaughter has four factors which distinguish it from murder.   In order for you to find defendant guilty of murder, the State need only prove the absence of any one of them beyond a reasonable doubt.   The four factors are:(1) There was adequate provocation;(2) The provocation actually impassioned defendant;(3) Defendant did not have a reasonable time to cool off between the provocation and the act which caused death;  and(4) Defendant did not actually cool off before committing the act which caused death.

6.  FN6. We assume that defendant is referring to his motion for acquittal at the end of the State's case.  R. 3:18–1.   In deciding that motion a 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 its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.”  State v. Reyes, 50 N.J. 454, 458–59 (1967).   We are satisfied that applying this standard, the trial court did not abuse its discretion in denying that motion because it was supported by substantial credible evidence in the record, including that established by eyewitness testimony and a videotape.

7.  FN7. Defendant refers to the medical examiner as a “ballistics expert.”

8.  FN8. We are aware that our Supreme Court recently considered oral argument in the matter of State v. Williams,_N.J._ (2014), which involved similar arguments advanced by defendant.   A decision from the Court is pending.

9.  FN9. State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed.2d 308 (1986).

PER CURIAM

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