Opinion
DOCKET NO. A-5195-12T4
08-27-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAIME GONZALEZ, A/K/A LUGO WILFREDO, Defendant-Appellant.
John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Roberta DiBiase, Senior Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Assistant Prosecutor, of counsel; Ms. DiBiase, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-02-0311. John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief). Roberta DiBiase, Senior Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Samuel Marzarella, Assistant Prosecutor, of counsel; Ms. DiBiase, on the brief). PER CURIAM
An Ocean County Grand Jury returned Indictment Number 10-02-311, charging defendant Jaime C. Gonzalez with a total of thirty-four individual counts, all originating from the execution of a no-knock search warrant of defendant's residence by police officers from the Lakewood Police Department. Defendant was charged with eleven counts of first degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (counts one, three, five, seven, nine, eleven, thirteen, fifteen, seventeen, nineteen, and twenty-one); eight counts of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (counts two, eight, ten, fourteen, sixteen, eighteen, twenty, and twenty-three); and four counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (counts four, six, twelve, and twenty-two). Defendant was also charged with third degree fortification of premises for purposes of illegal narcotics activity, N.J.S.A. 2C:35-4.1c (count twenty-four); second degree possession of a firearm while engaged in certain drug activity, N.J.S.A. 2C:39-4.1a (count twenty-five); second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count twenty-six); third degree receiving a stolen handgun, N.J.S.A. 2C:20-7 (count twenty-seven); first degree possession with intent to distribute cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count twenty-eight); three counts of third degree possession of cocaine, Methylenedioxymethamphetamine (ecstasy), and Alprazolam, N.J.S.A. 2C:35-10a(1) (counts twenty- nine, thirty, and thirty-one, respectively); fourth degree possession of marijuana, N.J.S.A. 2C:35-10a(3) (count thirty-two); third degree possession with intent to distribute marijuana, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(11) (count thirty-three); and fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3e (count thirty-four).
Defendant was tried before a jury and convicted of twenty-six of the thirty-four counts. Specifically, the jury found defendant guilty of five counts of attempted murder (counts three, five, seven, nine, and seventeen); ten counts of aggravated assault (counts two, six, eight, ten, twelve, fourteen, sixteen, eighteen, twenty-two, and twenty-three); one count of fortification of premises (count twenty-four); one count of possession of a firearm while engaged in drug activity (count twenty-five); one count of possession of a firearm for an unlawful purpose (count twenty-six); one count of receipt of a stolen handgun (count twenty-seven); two counts of possession with intent to distribute controlled dangerous substances (CDS) (counts twenty-eight and thirty-three); four counts of possession of CDS (counts twenty-nine, thirty, thirty-one, and thirty-two); and one count of possession of a prohibited weapon (count thirty-four).
The jury acquitted defendant of first degree attempted murder of Police Officer Leroy Marshall; third degree aggravated assault of Police Officer Leonard Nieves, Sr. (including the lesser included offense of simple assault); first degree attempted murder of Police Officer Louis Sasso; first degree attempted murder of Police Officer Glenn Clayton; first degree attempted murder of Police Officer Robert DeSimone; first degree attempted murder of Police Officer Leonard Nieves, Jr.; first degree attempted murder of Police Officer Gregory Meyer; and fourth degree aggravated assault of Police Officer Leonard Nieves, Jr. (including the lesser included offense of simple assault).
After denying defendant's motion for a new trial, the court merged the appropriate counts and sentenced defendant to serve an aggregate term of forty-five years with twenty-nine and one-half years of parole ineligibility. The trial judge arrived at this aggregate sentence by imposing a twenty-year term, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the convictions for first degree attempted murder and aggravated assault. The judge then imposed a fifteen-year sentence with seven and one-half years of parole ineligibility on the drug-related convictions, and a ten-year sentence with five years of parole ineligibility on the convictions for second degree possession of a firearm for an unlawful purpose and third degree fortification of premises. The judge ordered each of these terms to run consecutively.
In this appeal, defendant argues the trial judge committed reversible error by failing to tailor the self-defense charge to provide a legal justification for the actions he took at the time the police officers entered his residence. Defendant claims the circumstances at the time the police officers executed the no-knock search warrant entitled him to a legal instruction directing the jury to determine whether he had the right to use deadly force to repel what he reasonably believed was a violent home invasion. If we were to reject this argument, defendant argues we need to remand the case for resentencing because the trial judge improperly found aggravating factor one, N.J.S.A. 2C:44-1(a)(1), applicable to all of the convictions involving more than one victim, and failed to find mitigating factor seven, N.J.S.A. 2C:44-1(b)(7).
After reviewing the record developed before the trial court, we reject the argument concerning the trial court's failure to modify the self-defense charge and affirm defendant's conviction. However, we conclude there are sufficient legal grounds to remand the matter for resentencing. The following facts will inform our legal analysis.
I
In the early morning hours of September 24, 2009, twelve members of the Lakewood Township Police Department, Special Response Team, arrived outside the location of defendant's residence to execute a no-knock search warrant. The law enforcement team selected for the task of securing the residence consisted of Lakewood Police Officers wearing "raid shirt[s]" with the word "police" inscribed on the sleeves. The team members were also equipped with bullet-proof vests with the word "police" emblazoned on the front and back of the vest, and ballistic helmets, which did not have any markings.
In Richards v. Wisconsin, 520 U.S. 385, 117 S. Ct. 1416, 137 L. Ed. 2d 615 (1997), the United States Supreme Court established the following standard for issuing a "no-knock warrant":
[T]o justify a "no-knock" entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard--as opposed to a probable-cause requirement--strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries.In State v. Johnson, 168 N.J. 608, 617-18 (2001), our Supreme Court adopted the Richards standards as consistent with our jurisprudence under Article I, paragraph 7 of the New Jersey Constitution in determining when to authorize the issuance of a no-knock search warrant.
[Id. at 394, 117 S. Ct. at 1421-22, 137 L. Ed. 2d at 624.]
Upon their arrival, the officers organized themselves in a linear fashion, forming a line to approach the residence. As explained at trial by Captain Gregory Meyer, a twenty-seven-year veteran of the Lakewood Police Department, this tactical formation is also referred to as a "stack" or "column." Each officer assumes a pre-assigned place in the line. Meyer testified it was his responsibility as supervisor of the team to assign each officer a position in the line, which position correlated with the officer's duty in executing the warrant and securing the residence.
Meyer was a lieutenant at the time this no-knock search was executed.
The team arrived at defendant's residence at approximately 2:25 a.m. Meyer described the weather conditions on arrival as "raining, thundering and lighting. It was a torrential downpour and wicked lightning . . . and thunder." Meyer deployed his team by placing Officer Leroy Marshall as the first officer in line; Marshall was responsible to take the team to the front door, thus making the door "ready for breaching." Officer Leonard Nieves was in the number two position in the tactical column; he carried the battering ram.
Meyer did not make clear whether he was referring to Leonard Nieves, Senior or Junior.
The front door of defendant's residence was "fortified," which Meyer defined as having a "double locked [door] with two deadbolts and no doorknob." Nieves struck the door with the battering ram two times before it "flew open." At that point, Marshall and Nieves "[fell] back," allowing Officer John Wilson, the third officer in the column, to enter the residence, followed by the fourth and fifth officers next in line. Meyers identified these officers as Robert Lopez and Jason Di Foot, respectively.
Wilson described the lighting conditions he encountered upon entering defendant's residence as "light enough to not really have to use my flashlight." With his handgun drawn, Wilson took two or three steps up the staircase located to the right of the front door, when he heard "a gunshot[,] [a]nd shortly thereafter . . . saw a gun." Wilson immediately yelled "gun," to alert his fellow officers behind him. He also saw "[a]n arm coming out of a bedroom holding a handgun pointed towards me." Wilson then fired his Glock 45 service weapon at the arm that was coming around the corner holding the gun.
Although not certain, Wilson "believe[d]" he made it to the top of the stairs before he lost his balance and fell back down the stairs. Wilson testified he continued to fire his service weapon as he fell back on top of the officers behind him. Specifically, on his way down, Wilson fell back into Lopez and Di Foot; all three men "hit the ground" at the stairs' landing. Officer Nieves, Jr. helped the three officers rise from the ground and move away from the landing. As he stood in the hallway, Wilson realized he had been shot in his left eye. It was later determined that Wilson was actually shot from behind by Officer Di Foot, who was armed that night with a .223 rifle.
On cross-examination, Wilson testified he fired between three and six rounds.
Louis Sasso had retired from the Lakewood Police Department with the rank of Sergeant by the time the trial began in February 2013. He was a member of the Special Response Team deployed to execute the no-knock search of defendant's residence. Although Sasso entered defendant's residence through the front, he decided not to follow the three officers as they ascended the stairs. Instead, Sasso walked straight ahead toward the kitchen area. Within "a couple of seconds" of passing by the stairway, Sasso was "struck in the [left] shoulder." After confirming he was not injured, Sasso continued to search the first floor for occupants. At this point, he heard shouts of "[p]olice, stop shooting."
The protective vest he was wearing prevented the bullet from injuring his shoulder. Sasso was shot by a ".45 caliber Lakewood police bullet[.]" This was the second "friendly fire" incident associated with the execution of this no-knock warrant.
Meyer, who had remained "on the front porch, to the right of the doorway," testified he heard gunshots coming from inside the house within two or three seconds of the initial officers' entry. Marshall, who had also remained on the front porch, testified: "I heard -- after the first gunshot . . . there was some time between the next, I guess volley of gunshots. It was about three more. And then I heard, 'Police, drop the gun,' a couple of times, and then gunshots were just going on at that time." According to Marshall, he heard his fellow officers yell out, identifying themselves as police officers "about three or four times."
Meyer was shot in the foot while standing on the porch. Marshall led Meyer away from the home to take cover by a van parked on the street. Meyer testified he heard "voices and shouting" and "yelling from inside the house[,]" but he "could [not] ascertain what [was being said]." Officer Eric Menck was positioned "approximately second or third to the back of the line." He testified he heard gunshots as he was approaching the house. As he entered the home, Menck testified "there was a lot of commotion, everybody [was] yelling, '[p]olice, search warrant.'"
A bullet fragment surgically removed from Meyer's foot matched the type of bullets fired by defendant.
Once inside the house, Menck saw a "muzzle flash" from the top of the stairs. He "engage[d] the threat" by returning fire. While exchanging gunfire with defendant, Menck and other officers continued to yell, "[p]olice, search warrant. Drop the gun. Drop the gun. Throw the gun out." Menck testified that defendant replied "[f]uck you," "a couple of times." Menck gave the following account of what had degenerated into a gun battle between police and defendant:
Q. Okay. Can you describe for the jurors this exchange where you are down by the foot of the staircase, there is a weapon upstairs, you can see -- does the weapon come into view and out of view?
A. Yes.
Q. It's both in and out?
A. Yes. Occasionally, the gun would come around the corner, then it would duck back. Any time I saw the gun come around the corner, that's when I -- you know, I feel that I'm a decent shot. So I was trying to shoot at the weapon. As well as occasionally the defendant occasionally looked around the corner.
Q. How many times did you see the defendant look around the corner from the bedroom doorway?
A. Approximately, three times.
Q. Okay. During this time, where were you?
A. I was in the same area.
Q. Okay. Was anyone near you?
A. Eventually, Officer Lenny Nieves, Senior was standing next to me assisting me.
Q. Okay. During this time, were the three officers still on the landing?
A. At the time of the defendant looking around the corner, no. At that time they were already able to get the officers off the landing, the injured officers. They were off to my left hand side where that table is, roughly. And they were laying on top of them trying to shield them with their bodies.
After clearing the first floor, Sasso returned to the truck to retrieve a ballistic shield. The shooting had ceased by the time Sasso returned with the shield. Sasso took advantage of this pause in the exchange of gunfire to go up the stairs and reach the upper floor, using the ballistic shield to protect himself and Nieves and Menck, who were behind him. They were soon joined by Marshall and Clayton. As Marshall described it, "[g]oing up the stairs, I could see the defendant actually laying outside the bedroom door. Half of his body was inside and half was outside the door. Myself, Officer Nieves, Senior, Sergeant Sasso and Officer Menck and Sergeant Clayton cleared upstairs." Marshall described the weapon found next to defendant as a revolver with five spent casings in the cylinder.
Sasso described that when he and his fellow officers
got to the top, I could see Mr. Gonzalez laying on the floor at the top of the stairs. The gun that he had was a few inches from his hand. I pushed it away. I stepped around him. I believe -- I don't know which officer it was that picked up the weapon. One of the officers behind me picked up the weapon.
Then I had actually asked Mr. Gonzalez if there was anybody else in the house, and he said "Yes." And then we cleared the upstairs. We went into the bedroom and cleared it, and we actually found another gentleman under the bed.
Edwin Lugo, was the person the police officers found hiding under the bed in the master bedroom. He was called as a witness by the State as part of its case-in-chief against defendant. Lugo described defendant as his friend. His association with defendant began around 2001, when he bought clothes from defendant while the latter worked in a store in Lakewood called Pro World. On the night before the early morning execution of the no-knock search warrant, Lugo testified he and defendant played pool, drank alcoholic beverages, and smoked marijuana. They went upstairs to defendant's bedroom at approximately two o'clock in the morning to watch an Ultimate Fighter fight.
Lugo was initially charged along with defendant. The State subsequently dismissed all of the charges against him. --------
While watching television, Lugo testified they heard "[a] loud, like a loud bang" coming from downstairs. According to Lugo, defendant said "he was getting robbed." Immediately thereafter, Lugo testified: "There was a lot of shooting." He then saw defendant "with a gun in his hand." According to Lugo:
A. He [defendant] heard the loud bang. And he said that he was getting robbed. And he opened fire.
Q. Okay. How long was it between the bang and his shot?
A. Very close.
Q. Was he the first one to shoot?
A. Yes.
Q. Then what happened?
A. Then a lot of shot [sic]came in. I heard a lot of noise. I went down on the bed.
Q. Did you have any conversation? Were you talking to the defendant during the time that the gunfire was going on?
A. I can't -- I had no, like, ear, but the loud gun. I might have said, maybe it's not a robbery. But I don't think he heard. I don't know if he heard.
Q. All right. So, do you know -- do you have any idea how many shots the defendant fired?
A. Maybe three, four.
The police officers who thereafter searched defendant's residence pursuant to the search warrant found and seized 191 grams of marijuana, 187 grams of cocaine, four ecstasy pills, a black scale with trace amounts of cocaine, and $12,582 in cash.
Defendant testified at trial as the only witness for the defense. According to defendant, he worked for the store known as "Urban Source" at the time of the incident. He worked for Urban Source for fourteen years. For approximately twenty-six years, he also had a side business as "a professional DJ," [working] at clubs, bars, [and] special occasions." He kept all of his DJ equipment at the house "in the basement and upstairs." That was his "profession" at the time. He had lived at the location where the warrant was served since 2003.
He testified he moved to this location because he had "a home invasion" in 2002. He described it as "a real bad experience." Overruling the prosecutor's objection, the court permitted defendant to describe what happened to him in 2002. In summary, he came home from work to find three men with guns in the basement of his residence. The men pointed the guns to his head. They forced him to call his friend who lived downstairs, tied them up, and "beat us up badly, to a pulp." He lost two teeth and had to have stitches in his head. According to defendant, the robbers had already entered the house and finished robbing him when he came home. Defendant claimed the robbers were waiting for him inside the house.
Defendant testified the robbers also told him they were going to wait for his girlfriend and his daughter to get home. After enduring approximately an hour of alleged beatings, defendant testified his girlfriend and his seven-month-old daughter finally arrived home. The robbers tied his girlfriend and infant daughter to a pool table, put a gun to their heads, and told him: "[I]f you don't give me the money, I'm going to kill your daughter." Defendant finally succumbed and told the robbers he had "$1,000 and some video game I used to have in the basement." He gave the robbers the money and video game, and they then "untie[d his] girlfriend and let them go." According to defendant, this event was the reason he relocated in 2003.
Defendant testified that approximately two weeks before the police executed the no-knock search warrant, at around 1:30 a.m., "somebody kicks in my door." Defendant testified the man told him "to get on the floor." Although he complied, he "tried to fight the intruder for the gun from the floor," while his mother, who had just come from Florida, was in the other room. However, when his mother "scream[ed] and yell[ed] [and] threaten[ed] to call the cops . . . they fle[d] away."
Because one of the intruders had a gun, defendant testified: "I told myself this been happening [sic] too much. I immediately went the next day to Newark and bought a gun." This was the same weapon the police seized in the shootout with defendant. Defendant described it as ".357." He paid $250 for the handgun. Defendant testified he did not know "exactly the guy. I just bought it from some guy." He put the handgun in a drawer in his bedroom. He never fired it until the night of September 24, 2009.
At the time this incident occurred on September 24, 2009, defendant testified he and Lugo were upstairs in his bedroom watching a fight on television. When he heard "something loud," he thought someone was trying to break into his home again. He testified he "looked to my door. I looked across the hallway. And I took a peek down stairs." Seeing "nobody," he "immediately" went and grabbed his gun, which he had "under [his] pillow." When he heard a noise, he "shot across the hallway, a warning shot." He claimed he did this from his room. In fact, defendant testified he never left his bedroom during the entire melee.
Defendant claimed he never heard anyone say "police." He denied yelling "fuck you" to the police officers. He testified he fired a total of four shots and that he was shot eight times. On cross-examination, defendant claimed he reported to the police the 2002 home invasion involving his girlfriend and his seven-month-old daughter, but did not report the most recent incident involving his mother. He denied being a drug dealer of "big quantities" or having had prior knowledge of some of the illicit drugs found in his apartment. He claimed drugs discovered in a center room in the apartment probably belonged to the person who had rented the room where the police found the drugs.
II
As required by Rule 1:8-7(b), the trial judge conducted a charge conference on the record with the attorneys before summations to the jury. Defense counsel requested that the court charge the jury on "self-defense and self-protection," because Lugo's testimony corroborated defendant's claim that he thought he was being robbed at the time the police executed the no-knock search warrant. The State urged the trial judge to charge the jury on "justification of the use of force upon an intruder [who is unlawfully in a dwelling]," as provided in N.J.S.A. 2C:3-4(c). The State acknowledged this would ultimately be rendered inapplicable if the jury determined the police were lawfully on the premises.
Prior to charging the jury, the trial judge again specifically addressed the self-defense charge, and asked counsel if they would like to be heard on the issue:
THE COURT: All right. I just want to indicate that in formulating the charge I considered [N.J.S.A.] 2C:3-4. There was no model charge that applies to these circumstances that I reviewed. The only case that I could find similar, referring to similar type facts, in New Jersey, it's a non-reported decision [from the Appellate Division]. . . .
In that case the Appellate Division indicated that self-defense is appropriately charged under the essentially similar circumstances. Without giving the specifics of the charge, the Appellate Court did cite to charge the defense charge that I used, generally [N.J.S.A.] 2C:3-4, and referred as the intruder charge.
Under those circumstances, I accept that as persuasive authority, and I tried to fashion a charge that incorporates [N.J.S.A.] 2C:3-4 and these circumstances.
I provided it to counsel. Counsel, I'm satisfied with the charge. I intend to use the charge.
. . . .
Counsel, wish to be heard with regard to that?
. . . .
[DEFENSE COUNSEL]: No, Your Honor.
On the issue of justification, the trial judge charged the jury as follows:
Under certain conditions the law allows a person to use force upon another and the use of such force does not constitute a criminal offense. The law exonerates a defendant who uses force or deadly force upon or towards an intruder who is unlawfully in a dwelling when the defendant reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of what the occupant, in this case, Jaime Gonzalez, reasonably believes is the use of unlawful force by the intruder on the present occasion.
Keep in mind that the State has the burden to prove to you beyond a reasonable doubt that the force used by the defendant Jaime Gonzalez against the police was not justified.
If the State fails to sustain this burden, the defendant must be found not guilty of the crimes charged. Conversely, this defense should be rejected if the State disproves beyond a reasonable doubt any of the elements or conditions which constitute justification.
In this case, Lakewood Police were acting -- pardon me were entering the defendant's home at night in order to conduct a search. It is undisputed that the police were authorized to enter the home as they did. What is at issue is whether it was reasonable for [defendant] to believe the police were intruders and whether he was justified in using the force that he employed.
For the force used by the defendant against another to be justified the following two conditions must exist: First, the other person, in this case the Lakewood police officers, were perceived by the defendant to be intruders who were unlawfully in the
dwelling. That's the first condition. An intruder is one who is unlawfully in a dwelling. That is, he or she was not licensed or privileged to be in the dwelling. . . . .
The second condition, the defendant reasonably -- must reasonably believe that force or deadly force was immediately necessary for the purpose of protecting himself or any persons in the dwelling against the use of unlawful force by the intruders on the present occasion.
A reasonable belief exists when a defendant, to protect himself or a third person, was in his own dwelling at the time of the offense, or was privileged to be thereon, and the encounter between the defendant and the intruder was sudden and unexpected compelling the defendant to act instantly, and the defendant reasonably believed that the intruder would inflict personal injury upon the defendant or others in the dwelling, or the defendant demanded that the intruder disarm, surrender or withdraw and the intruder refused to do so.
I instruct you that a reasonable belief is different from an honest belief. What is reasonable is not measured by what defendant found reasonable, but rather what a jury finds reasonable. Thus, the reasonableness of defendant's belief is based on an objective standard. That is, by how an ordinary reasonable person with a detached viewpoint would view it. A subjective belief based on the viewpoint of the defendant is immaterial.
It is for you, as jurors, to determine what is reasonable. And in considering the reasonableness of the defendant's beliefs and actions, you may also consider all of the surrounding circumstances including the defendant's allegations of prior robberies,
as well as the State's allegation that [defendant] was involved in the distribution of illegal drugs, and how, if at all, these facts affect the reasonableness of the defendant's conclusion that he was being robbed as opposed to a conclusion that the event was the result of a police investigation.
That is, whether defendant's belief that he was being robbed was reasonable; or whether he knew or had reason to know that the persons entering the premises were police and, therefore, not reasonable.
If the defendant did employ protective force, he has the right to estimate the necessity of using force without retreating, surrendering position, withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.
The State has the burden of proving beyond a reasonable doubt that the force used by the defendant against another person was not justified. That is, the State has the burden of proving beyond a reasonable doubt that any of the elements or conditions of justification do not exist.
If you find that that [sic] the State has met its burden of proof beyond a reasonable doubt, there is no justification and you will consider whether the State has otherwise sustained its burden of proving beyond a reasonable doubt each and every element of the offenses alleged in the indictment of attempted murder and aggravated assault and assault.
If the State has not met its burden in this regard on the issue of justification, the defendant must be found not guilty as to the charges of attempted murder and aggravated assault and assault.
[(Emphasis added).]
After concluding his legal instructions to the jury on the requisite elements of each offense, the trial judge again asked counsel, "any exceptions to the charge so far?" Defense counsel responded, "[n]o, Your Honor." After a brief recess, the judge concluded charging the jury and once again asked counsel if they had "any exceptions to the charge[.]" Once again, defense counsel responded: "No, Judge."
III
Against this record, defendant now raises the following arguments:
POINT I
THE JUDGE FAILED TO INSTRUCT THE JURY ON SELF-DEFENSE, DESPITE THE DEFENDANT'S TESTIMONY THAT HE ONLY FIRED HIS GUN IN RESPONSE TO WHAT HE REASONABLY BELIEVED WAS GUNFIRE IN HIS HOUSE AT 2:30 A.M., PUTTING HIS LIFE AT RISK. INSTEAD, THE JUDGE ERRONEOUSLY PROVIDED THE JURY WITH A CHARGE ON USE OF FORCE UPON AN INTRUDER. AS A RESULT, THE JUDGE UNDERCUT MR. GONZALEZ'S DEFENSE, AND CONFUSED THE JURY WITH AN INTERNALLY INCONSISTENT INSTRUCTION, DENYING HIS RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW.
POINT II
THIS CASE MUST BE REMANDED FOR RESENTENCING BECAUSE THE JUDGE IMPROPERLY APPLIED AGGRAVATING FACTOR ONE TO ALL THE CHARGES WITH MULTIPLE VICTIMS, AND IMPROPERLY SENTENCED MR. GONZALEZ TO CONSECUTIVE SENTENCES. MOREOVER, THE JUDGE FAILED TO
PROPERLY WEIGH MITIGATING FACTOR SEVEN ON THE BASIS OF EVIDENCE OUTSIDE THE RECORD THAT MR. GONZALEZ HAD BEEN DEALING CDS OVER A PERIOD OF TIME.
We reject the argument in Point One and affirm defendant's conviction. The charge crafted by the trial judge in this case tracked the essential statutory requirements in N.J.S.A. 2C:3-4(a) and (c). The judge correctly instructed the jury to consider defendant's testimony about prior alleged incidents of home invasion, against the lawful actions taken by the police officers executing a no-knock search warrant. Our Supreme Court has
repeatedly emphasized the importance of correct jury instructions in criminal cases . . . The charge must provide 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. [The] jury charge is a road map to guide the jury, and without an appropriate charge a jury can take a wrong turn in its deliberations.
[State v. Galicia, 210 N.J. 364, 386 (2012) (citations omitted) (internal quotation marks omitted).]
Here, the trial judge properly balanced the public policy interests reflected in these two sections of N.J.S.A. 2C:3-4 and gave the jury a proper road map to follow in determining whether defendant was legally justified to use deadly force under these circumstances. We also note the trial judge gave defense counsel multiple opportunities to express any dissatisfaction he had with the jury instructions. Because defense counsel did not object, we are bound to review this argument under the plain error standard, which requires us to ignore any argument not raised at the trial level unless the alleged error is of "such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. Defendant has not presented any evidence to satisfy this high standard of review.
Finally, we turn to defendant's arguments challenging the sentence imposed by the court. On the convictions for first degree attempted murder the sentencing judge found aggravating factors N.J.S.A. 2C:44-1(a)(1),(3),(8), and (9). On the conviction for second degree possession of a firearm for an unlawful purpose, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(1),(3), and (9). On the conviction for third degree aggravated assault, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(1),(2),(3), and (9). On "all other counts," the judge found aggravating factors N.J.S.A. 2C:44-1(a)(3) and (9). Defendant argues the trial judge included an element of the offense of attempted murder in his determination to find aggravating factor one.
Our Supreme Court has recently addressed and reaffirmed the basic principles that guide a trial court when imposing a sentence, and the standards that guide our review of that sentence as an appellate court. "Appellate 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)). We are bound to uphold a sentence imposed by the trial court unless:
(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) (citing State v. Roth, 95 N.J. 334, 364-65 (1984)).]
When finding aggravating factor one, the sentencing judge must "scrupulously avoid 'double-counting' facts that establish the elements of the relevant offense." Id. at 74-75. Accordingly, "an application of aggravating factor one must be premised upon factors independent of the elements of the crime and firmly grounded in the record." Id. at 63. Aggravating factor one requires the sentencing judge to consider "the nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner[.]" N.J.S.A. 2C:44-1(a)(1).
Here, the trial judge did not provide any reasons for finding that aggravating factor one applied to the offense of first degree attempted murder or second degree possession of a firearm for an unlawful purpose. Although it can be argued that defendant's decision to shoot his handgun indiscriminately at police officers as they attempted to ascend the stairs shows his depraved, antisocial character, we cannot sustain the imposition of the sentence by sheer speculation. We are bound to remand this matter for resentencing to permit the judge to explain the reasons why he found aggravating factor one. The second part of defendant's argument with respect to mitigating factor seven lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant's conviction is affirmed. The case is remanded for resentencing in accordance with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION