Opinion
DOCKET NO. A-3905-10T4
05-17-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. WILLIAM SILVI, Defendant-Appellant.
Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary and Jane M. Personette, on the brief). Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-11-0142.
Brian J. Neary argued the cause for appellant (Law Offices of Brian J. Neary, attorneys; Mr. Neary and Jane M. Personette, on the brief).
Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, on the brief). PER CURIAM
The Bergen County grand jury returned Indictment No. 09-01-00229, charging defendant William Silvi and his brother-in-law, co-defendant Daniel Tunks, with first-degree conspiracy to murder Silvi's father, William Marcucci, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3(a)(1) and (2) (Count One); first-degree murder of Marcucci, N.J.S.A. 2C:11-3(a) (Count Two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Four); three counts of second-degree attempted theft by deception, N.J.S.A. 2C:5-1 and 2C:20-4 (Counts Five, Six and Seven); and third-degree attempted theft by deception, N.J.S.A. 2C:5-1 and 2C:20-4 (Count Eight). Defendant alone was charged with third-degree witness tampering, N.J.S.A. 2C:28-5(a) (Counts Nine and Ten). Following an extended joint jury trial, Tunks was acquitted of all counts, and defendant was acquitted of all charges except Counts Five through Eight.
The judge sentenced defendant as follows: Count Five, a term of imprisonment of six years with a three-year period of parole ineligibility; Count Six, a six-year term of imprisonment with a three-year period of parole ineligibility, consecutive to the sentence on count five; Count Seven, a flat six-year term of imprisonment, concurrent to the sentences imposed on Counts Five and Six; and, Count Eight, a flat four-year sentence concurrent to all other sentences.
Defendant now raises the following points on appeal:
Point IWe have considered these arguments in light of the record and applicable legal standards. We affirm.
THE COURT BELOW ERRED IN FAILING TO ENTER JUDGMENTS OF ACQUITTAL ON ALL FOUR COUNTS OF ATTEMPTED THEFT BY DECEPTION BOTH FOR THE STATE'S FAILURE TO ESTABLISH JURISDICTION AND FAILURE TO ESTABLISH SUFFICIENT PROOFS AT TRIAL
a. The Court below erred in failing to enter a judgment of acquittal as New Jersey lacked territorial jurisdiction
b. The Court below erred in failing to enter a judgment of acquittal as insufficient evidence was adduced to support the jury's verdict as to Counts [Five] through [Eight] of the indictment
Point II
THE SENTENCE IMPOSED BY THE COURT BELOW IS EXCESSIVE
I.
A.
On May 20, 2008, Marcucci's lifeless body was discovered slumped over the steering wheel of his car in the rear parking lot of Bennigan's restaurant on North Midland Avenue in Saddle Brook. Marcucci's body was first noticed in the morning, but, it was not until Marcucci was observed to be in the same position hours later that police were notified. State Medical Examiner, Dr. Jennifer Lynne Schwartz, responded to the scene at approximately 5:30 p.m. and determined that Marcucci, sixty-four years' old, had been shot once through the neck behind the left ear, the spent bullet exiting and lodging against his jacket collar. Based upon gunpowder stippling near the wound, Swartz estimated the gun was fired from within two to three feet of Marcucci.
Schwartz performed an autopsy the next day and noted that Marcucci had a pacemaker and suffered from significant ailments and advanced, potentially fatal, coronary disease. The death certificate Schwartz issued listed the cause of death as a gunshot of the neck, the manner of death as homicide and the time of death as "unknown."
At the scene, between the driver's seat and door of Marcucci's car, detectives found a potato wrapped in plastic with a hole in one end. The State's lead investigator, Detective Keith Delaney of the Bergen County prosecutor's office, opined that the potato was an amateurish silencer but had probably fallen off the end of the gun before any bullet was discharged. The detectives seized Marcucci's cell phone, which was attached to his belt, as well as a torn piece of paper from one of his jacket pockets. On the paper was Marcucci's name and an address in the Bronx, which, further investigation revealed, was Marcucci's residence for seven to eight months prior to his death. Delaney testified that the following notation was on the reverse side of the note:
9:00 p.m. 62-80 North Midland on left, . . . one and a quarter hyphen half. Bennigan's, park back and . . . green Mustang.
The State contended at trial that defendant and Tunks planned the murder to collect on a series of accidental life insurance policies defendant had procured on his father's life with four companies -- Minnesota Life, in the amount of $300,000; Globe Life Insurance (Globe), in the amount of $250,000; Liberty/RBC Insurance Company (Liberty), in the amount of $124,000; and Combined Insurance Company (Combined), in the amount of $50,000 -- each the subject of one count in the indictment. The policies were alleged to have been procured without Marcucci's knowledge. The State's theory was that defendant lured Marcucci to Bennigan's parking lot, and Tunks shot him.
The Liberty policy apparently also paid a separate benefit of $24,800 to defendant as Marcucci's beneficiary.
To this end, the State introduced the records from various cell phones. An analysis of the victim's cell phone revealed four outgoing calls to defendant's and his wife's cell phones, as well as two incoming calls from defendant to Marcucci, between the hours of 8:32 p.m. and 9:23 p.m. on May 19. The State established that Marcucci had eaten dinner at Bennigan's shortly before, and, in each instance, the calls came through a cell phone site at 100 Midland Avenue, Saddle Brook, in close proximity to the restaurant.
Defendant and Tunks resided together in Colorado Springs, Colorado, in a home that Marcucci owned. On May 4, 2008, two pre-paid cell phones were activated in Colorado Springs. Investigators determined through phone records that, between May 5 and 8, one of these phones traveled to the Bronx, while the other remained in Colorado Springs; there were frequent calls between them.
Delaney testified that one of the pre-paid cell phones was found in Tunks' GMC Yukon in August 2008 when authorities executed a search warrant and arrested Tunks in Colorado. The SIM card had been removed from the phone. In the truck, police also found a map book opened to the page containing the street where Marcucci lived in the Bronx. In a statement he gave to Delaney after his arrest, Tunks claimed that he visited Marcucci in the Bronx in late April 2008 to pick up some pigeons, which Marcucci wanted delivered to his grandchildren in Colorado.
The phone records also revealed that, on May 17, 2008, a cell phone registered to Tunks moved easterly from Colorado Springs toward Indianapolis, where Tunks' family lived. Beginning on the morning of May 19, the pre-paid cell phone hit cell sites in an easterly direction until ultimately using the site at 100 Midland Avenue. Between 8:42 p.m. and 9:33 p.m., that pre-paid cell phone received a series of calls placed from the other pre-paid phone, still in Colorado. The records also reflected that, after 9:26 p.m., the pre-paid cell phone in New Jersey started utilizing cell towers in a westerly direction along Route 80 moving away from Saddle Brook.
The number for the other pre-paid cell phone that remained in Colorado never appeared in Marcucci's phone's records. However, the records from defendant's own cell phone revealed that calls he made to his father were frequently followed by calls to the pre-paid cell phone in New Jersey.
When defendant's home in Colorado Springs was searched, various documents pertaining to the four policies referenced above were found, but no documents pertaining to the policies were ever found in Marcucci's apartment. A power of attorney from Marcucci to defendant was also found.
We need not recite in detail the State's evidence regarding defendant's procurement of the four accidental life insurance policies between the months of October 2007 through April 2008; defendant was the beneficiary in each case. Testimony permitted the jury to conclude beyond a reasonable doubt that before completing the necessary application paperwork, defendant made sure that the policies would pay benefits if his father were murdered. The jury heard taped phone conversations that permitted them to also conclude beyond a reasonable doubt that, on occasion, defendant posed as Marcucci in arranging for the policies and used his home address in Colorado.
Although defendant did not testify, the State introduced a taped conversation between defendant and Tunks that occurred after both were arrested and being held by the Colorado Springs Police Department.
In some instances, the proceeds of the policies were directly linked to the pay-off of existing mortgages on the home where defendant and his wife lived, and on another property in Colorado Springs, previously owned by defendant's wife but recently sold to Marcucci. What is particularly important for purposes of this appeal is that none of the four insurance companies were based in New Jersey, none of defendant's contacts with them took place in New Jersey and none of the policies were issued from New Jersey.
Defendant notified Minnesota Life of his father's death on May 29, 2008. The company forwarded various forms to defendant who completed them and returned them by the end of June. On July 21, Minnesota Life received a letter from defendant. He indicated that he had "tried for a month and a half to obtain the autopsy report, the toxicology report, and the medical examiner report." Defendant's letter acknowledged his conversations with Delaney and a "district attorney" in Bergen County, who indicated "it [was] . . . policy not to allow any information concerning an ongoing case to be released to anyone, period."
On May 29 and June 2, defendant also made claims with the other three companies for the proceeds of the accidental life insurance policies. In each instance, he was required to enclose copies of Marcucci's death certificate and complete various forms. The jury heard taped phone conversations between defendant and Liberty's representatives over the ensuing months. In a conversation on August 12, 2008, defendant became quite agitated over the delay caused by the company's investigation, which included its need to obtain the "police report and autopsy report."
Although one of the companies, Combined, issued a check representing the proceeds of the policy on Marcucci's life, defendant was arrested without the other three companies making any payment. The check issued by Combined was made payable to defendant in care of his attorney in Colorado and was not cashed, but returned after defendant was arrested and Combined issued a stop payment order.
Defendant did not testify, but several defense witnesses were called. In general, they described a loving relationship between defendant and his father. One, Alexis Sanchez, was a notary public who worked for a credit union in Colorado. She notarized powers of attorney and Marcucci's last will with both defendant and his father present. Sanchez indicated defendant was resistant to being named Marcucci's attorney-in-fact, but that Marcucci insisted.
B.
Defendant made three applications to the trial judge seeking to dismiss the four attempted theft counts in the indictment. The first motion was made immediately before trial. Defense counsel argued a lack of territorial jurisdiction since defendant was never in New Jersey, and the victims of the alleged attempted thefts -- the insurance companies -- had no connection to New Jersey. In opposing the motion, the prosecutor argued that "the precipitating event that allowed [defendant] to try to collect on these policies" was the murder which "happened within the State of New Jersey."
Citing State v. Streater, 233 N.J. Super. 537 (App. Div.), certif. denied, 117 N.J. 667 (1989), the judge concluded that based upon the State's proffered evidence, "the connections . . . here with respect to what . . . occurred between [defendant] and Tunks . . . clearly put those four counts in a situation where the State does have jurisdiction." He denied the motion.
Defendant renewed the motion at the end of the State's case, again arguing that the evidence as to the attempted thefts demonstrated no connection to New Jersey, and, further, that the evidence was insufficient to find him guilty beyond a reasonable doubt. The judge denied the motion. Defendant did not seek, and the judge did not provide the jury with, a charge on territorial jurisdiction.
After the verdicts were returned, defendant filed a motion for acquittal. See R. 3:18-2. Defendant contended that the judge must consider the jurisdictional issue anew in light of the verdict finding him not guilty of murder, "the sole element and connection . . . to the State of New Jersey, the death of . . . Marcucci . . . ."
The State argued that the judge's prior decisions were the "law of the case," and defendant's acquittal of the murder was irrelevant. The prosecutor contended that the verdicts may have been "inconsistent," but, under established precedent, there was no basis to disturb them.
The judge denied the motion, essentially reiterating his earlier ruling and expressing continued reliance on Streater. He also stated that the jury verdicts were not necessarily inconsistent, and, even if they were, pursuant to State v. Banko, 182 N.J. 44 (2004), there was no reason to set them aside. The judge imposed the sentences referenced above.
II.
(A)
We set forth some general principles that guide our review of the separate, but related, arguments defendant raises on appeal in Point I.
Whether made before a verdict is returned, see Rule 3:18-1, or after, see Rule 3:18-2, the standard for deciding a motion for acquittal is the same. State v. Speth, 323 N.J. Super. 67, 81 (App. Div. 1999).
[W]hether, 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."The trial judge must consider only the existence of such evidence, not its 'worth, nature, or extent.'" State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (1974), certif. denied, 67 N.J. 72 (1975)). We conduct our review de novo, applying the same standard used by the trial judge. State v. Bunch, 180 N.J. 534, 548-49 (2004).
[State v. Reyes, 50 N.J. 454, 459 (1967).]
"Under the Code of Criminal Justice, territorial jurisdiction is classified as an element of an offense. N.J.S.A. 2C:1-14(h) . . . . As such, when in dispute, territorial jurisdiction, like every other element, must be 'proved beyond a reasonable doubt.'" State v. Denofa, 187 N.J. 24, 38 (2006) (quoting N.J.S.A. 2C:1-13(a)). "[T]he Code distinguishes between elements of an offense, designating some as material and others as non-material. Territorial jurisdiction is designated as a non-material element of an offense." Id. at 40 (citing N.J.S.A. 2C:1-14(i)). As such, the issue of territorial jurisdiction is "never submitted to the jury unless there is some factual dispute . . . ." Id. at 41.
As the Denofa Court explained, "[a]ny objection to the State's jurisdiction to prosecute a crime should be raised as early as possible before trial." Id. at 43. When raised pre-trial, the defendant "'must carry the burden by showing that no inference could reasonably be drawn placing the site of the crime within the State.'" Ibid. (quoting State v. McDowney, 4 9 N.J. 471, 475 (1967)).
Once that motion is denied, a defendant may not move for an acquittal based upon lack of territorial jurisdiction "during trial." R. 3:10-2(e). As the Court explained, "[w]e construe [Rule 3:10-2] to mean that the court, as a matter of law, may dismiss an indictment for lack of jurisdiction, pre-trial or post-conviction, due to insufficiency of evidence, but may not do so 'during trial.'" Denofa, supra, 187 N.J. at 41 (emphasis added).
"Because the validity of any conviction depends on sufficient proof of each element of the offense, lack of territorial jurisdiction may be raised in a motion for a judgment of acquittal notwithstanding a verdict of guilty." Id. at 43-44 (citing R. 3:18-2). A defendant's challenge to the sufficiency of the State's proof regarding territorial jurisdiction made after trial, therefore, requires the judge to employ the same standard applied to any claim that the evidence was insufficient to prove the requisite elements of the crime. In other words, the trial court's only function in response to such a motion, and, indeed ours on review, is to search the record for the existence of sufficient evidence and inferences favorable to the State such that "a reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, supra, 50 N.J. at 459 (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961) , cert. denied, 368 U.S. 967, 82 S. Ct. 439, L. Ed. 2d 396 (1962)); see also Denofa, supra, 187 N.J. at 44 (recognizing this standard when an appellate court considers the sufficiency of the evidence regarding territorial jurisdiction). We have no doubt that the State's evidence as detailed above was sufficient to prove defendant's guilt of the four attempted thefts, including the element of territorial jurisdiction, beyond a reasonable doubt.
In Denofa, supra, 187 N.J. at 28, the Court held that even in the absence of a request from the defendant, a court must provide the jury with instructions on territorial jurisdiction "provided the record clearly indicates a factual dispute concerning where the crime occurred." The Court explained:
In any appeal from a conviction in which the defendant did not request a territorial jurisdiction charge, an appellate court first must determine whether the record clearly indicated that the crime's location was at issue. If territorial jurisdiction was not clearly in dispute, then the appellate court must still be satisfied regarding the sufficiency of the evidence.Defendant takes no exception to the lack of jury instructions on territorial jurisdiction in this case, and under the unique facts in this case, the lack of any instruction does not require our intervention. That is so because, to the extent Marcucci's murder was a substantial step in defendant's attempted thefts by deception, there was no dispute that the murder occurred in New Jersey, and, to the extent his murder was an integral part of defendant's attempted thefts by deception, there was simply no "factual dispute concerning where the crime occurred." Ibid.
[Id. at 44.]
(B)
Pursuant to N.J.S.A. 2C:5-1(a)(3),
[a] person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he:The "statute requires proof of a defendant's criminal purpose, as well as evidence that he or she had taken a 'substantial step' toward the commission of an object crime." State v. Perez, 177 N.J. 540, 553 (2003) (citing N.J.S.A. 2C:5-1(a)(3)).
. . . .
Purposely does . . . anything which, under the circumstances as a reasonable person would believe them to be, is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.
"[A] substantial step is conduct by an accused that strongly corroborates his or her alleged criminal purpose." Ibid. (citations omitted). "[T]he step taken must be substantial and not just a very remote preparatory act, and must show that the accused has a firmness of criminal purpose." State v. Belliard, 415 N.J. Super. 51, 73 (App. Div. 2010) (quoting Model Jury Charge (Criminal), "Attempt" (Rev. June 15, 2009)). Even if "'further major steps are required before a crime can be completed,'" a defendant may be guilty of criminal attempt. State v. Davis, 390 N.J. Super. 573, 590 (App. Div.) (quoting State v. Fornino, 223 N.J. Super. 531, 540 (App. Div.), certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109 S. Ct. 152, 102 L. Ed. 2d 123 (1988)), certif. denied, 192 N.J. 599 (2007).
N.J.S.A. 2C:20-4(a) provides that a person is guilty of theft by deception if "he purposely obtains property of another by deception," i.e., he "[c]reates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind . . . ." See State v. Krueger, 241 N.J. Super. 244, 249 (App. Div. 1990) (quoting State v. Talley, 184 N.J. Super. 167, 169 (App. Div. 1982), rev'd on other grounds, 94 N.J. 385, 388 (1983)) ("Theft by deception 'occurs where one obtains the property of another by purposely creating a false impression.'").
Lastly, as to territorial jurisdiction, N.J.S.A. 2C:1-3(a) provides:
[A] person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:Our decisions in Streater, supra, and State v. Sanders, 230 N.J. Super. 233 (App. Div. 1989), illustrate application of these two provisions.
(1) Either the conduct which is an element of the offense or the result which is such an element occurs within this State;
(2) . . . ;
(3) . . . ;
(4) Conduct occurring within the State establishes complicity in the commission of, or an attempt, or conspiracy to commit, an offense in another jurisdiction which also
is an offense under the law of this State
. . . .
In Streater, supra, 233 N.J. Super. at 543, we held that "the language of N.J.S.A. 2C:1-3(a)(4) and the penal code commentaries support the conclusion that planning and preparing in this State for the commission of a crime in another state may be sufficient to confer jurisdiction on the New Jersey courts to convict a defendant under the laws of this State." Id. at 542 (citation omitted). Affirming the defendant's conviction, we concluded "[t]he record . . . shows that [the] defendant engaged in substantial conduct in New Jersey evidencing his complicity in the theft by deception and uttering of a forged instrument committed in Connecticut[,]" and such "conduct in New Jersey provided a sufficient basis to confer jurisdiction on our courts to convict him of the theft by deception and uttering of a forged instrument consummated in Connecticut." Id. at 543-44.
In Sanders, 230 N.J. Super. at 235, the defendant's guilty plea to endangering the welfare of her child, N.J.S.A. 2C:24-4(a), was based on her admission to having left Atlantic City by bus with her two-day old baby expressly for the purpose of abandoning the child at the bus station in Philadelphia. On appeal, we considered defendant's contention that her guilty plea lacked an adequate factual basis and was insufficient "to permit acceptance of the guilty plea for an offense subject to prosecution in this State." Id. at 235-36.
We first noted that "[u]nder N.J.S.A. 2C:1-3(a)(1), New Jersey has territorial jurisdiction if [e]ither the conduct which is an element of the offense or the result which is such an element occurs within this State . . . ." Id. at 236 (citations omitted). We concluded that, by boarding a bus in Atlantic City with the purpose of abandoning her child in another state, the defendant had taken "a substantial step . . . towards the ultimate act of neglecting [her] child, as prohibited by N.J.S.A. 2C:24-4[,]" and the defendant's admission "constituted . . . an attempt to endanger in New Jersey." Id. at 237.
In this case, the evidence demonstrated that defendant and Tunks engaged in conduct in this State that conferred territorial jurisdiction upon New Jersey under both subsections of N.J.S.A. 2C:1-3(a). The facts in a light most favorable to the State, and inferences available from those facts, proved that, through his own and Tunks' conduct, for which defendant could be held legally accountable, substantial steps were taken in New Jersey to commit the crime of theft by deception. These included luring Marcucci to the restaurant where he was shot; using the cell phone towers throughout the state to communicate with each other before and after the shooting; the actual shooting; and communications with various government officials in New Jersey to obtain the necessary forms to present to the four life insurance companies so defendant could obtain the benefits in Colorado.
The intended theft in Colorado could not have been consummated unless Marcucci died under circumstances requiring the four insurance companies to pay defendant as his beneficiary. In other words, procuring the policies alone would not have resulted in payment to defendant; more was required. Those additional substantial steps occurred in New Jersey, thus conferring territorial jurisdiction upon New Jersey pursuant to N.J.S.A. 2C:1-3(a)(4).
The same evidence conferred territorial jurisdiction on the State to prosecute defendant for attempted theft based upon "conduct [that was] an element of the offense . . . occur[ring] within this State." N.J.S.A. 2C:1-3(a)(1). We need not decide whether procuring the policies in Colorado was a substantial step that alone may have conferred jurisdiction upon that state to prosecute defendant for attempted theft. See Sanders, supra, 230 N.J. Super. at 236 (noting the issue was not whether a sister state could also prosecute the defendant). Here, the evidence proved that defendant took substantial steps in New Jersey in an attempt to collect on the life insurance policies procured through defendant's deceptive conduct that occurred elsewhere.
Because he was acquitted of conspiracy to commit murder and the other substantive offenses charged, defendant claims the evidence was insufficient to prove every element of the crime of attempted theft, including the element of territorial jurisdiction. This argument may essentially be reduced to a claim that the jury's not guilty verdicts on those other charges somehow alter the analysis we otherwise apply to defendant's motion for acquittal on the attempted theft counts pursuant to Rule 3:18-2. We reject this contention as nothing more than a claim that the verdicts were inconsistent.
The trial judge reasoned the verdicts were not inconsistent. Because the indictment specifically charged that defendant conspired with Tunks, and, because the State contended defendant was Tunks' accomplice, the jury may have acquitted defendant solely because it believed someone other than Tunks killed Marcucci. The judge also concluded that even if the verdicts were inconsistent, it did not matter pursuant to State v. Banko, 182 N.J. 44 (2004). We assume for purposes of our decision that the verdicts were inconsistent.
"Inconsistent verdicts are normally permitted 'so long as the evidence was sufficient to establish guilt on the substantive offenses beyond a reasonable doubt.'" State v. Petties, 139 N.J. 310, 319 (1995) (quoting State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div.), certif. denied, 130 N.J. 18 (1992)). "Review of the sufficiency of the evidence on the guilty verdict[s] is independent of the jury's determination that evidence on another count[s] was insufficient." Ibid. (citing United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478, 83 L. Ed. 2d 461, 470 (1984). "Each count in an indictment is regarded as if it was a separate indictment." State v. Muhammad, 182 N.J. 551, 578 (2005) (quoting Banko, supra, 182 N.J. at 53 (in turn quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 358-59 (1932))).
"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 sufficient to support a conviction on any count on which the jury found the defendant guilty." Muhammad, supra, 182 N.J. at 578 (citations omitted). "We do not speculate whether verdicts resulted from jury lenity, mistake, or compromise . . . ." Ibid.; see also State v. Grey, 147 N.J. 4, 11 (1996) (noting inconsistent verdicts may have "resulted from jury lenity, compromise, or mistake not adversely affecting the defendant").
Based upon our prior discussion, it is clear that the State adduced sufficient evidence to prove defendant's guilt as to each and every element of the four attempted theft counts, including the element of territorial jurisdiction, beyond a reasonable doubt. We therefore affirm defendant's convictions.
III.
Lastly, defendant contends his sentence was excessive. The judge noted defendant's prior criminal record, that included a prior "indictable felony" conviction in Colorado for negligent child abuse resulting in death, and a "prior arrest record." The judge found aggravating factors three, "[t]he risk that the defendant will commit another offense," six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(a)(3), (6) and (9). Noting the "amount of proceeds involved in the attempted theft, and the aspects of the policies . . . underscoring the necessity of an accidental death being a prerequisite to the collection of the proceeds . . . ," the judge also found aggravating factor one, "[t]he nature and circumstances of the offense, and the role of the actor therein," N.J.S.A. 2C:44-1(a)(1). He found no mitigating factors. Further noting there were "four separate victims," and citing State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge imposed the consecutive sentences noted earlier.
The pre-sentence report indicates that at the time of sentencing, there was an active warrant from Virginia charging defendant with "fraud by wire," and two "detainers" from Colorado and the Internal Revenue Service "Criminal Division."
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Defendant contends the judge erred by failing to find mitigating factors four, five and eight. See N.J.S.A. 2C:44-1(b)(4) ("There were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[.]"); (b)(5) ("The victim of the defendant's conduct induced or facilitated its commission[.]") and, (b)(8) ("The defendant's conduct was the result of circumstances unlikely to recur[.]"). Defendant further argues that the judge failed to follow Yarbough's instructions in imposing consecutive sentences. Lastly, defendant argues that "in imposing sentence, . . . the trial court was plagued by the fact . . . it was impossible to divorce the reasoning for the severity of the sentence from consideration of the charges of which [defendant] had been acquitted . . . ." We again disagree and affirm defendant's sentence.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
In Yarbough, supra, 100 N.J. at 643-44, the Court set forth the following factors to be considered in imposing a consecutive sentence:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)) (internal quotation marks omitted). They should be applied qualitatively, not quantitatively. Id. at 427. A court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. Id. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (even when offenses are connected by a "unity of specific purpose," "somewhat interdependent of one another," and "committed within a short period of time," concurrent sentences need not be imposed) (internal quotation marks omitted), certif. denied, 165 N.J. 492 (2000).
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;(4) there should be no double counting of aggravating factors;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .
[Ibid. (footnote omitted).]
We categorically reject defendant's argument in support of the specific mitigating factors advanced. The argument lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Regarding the imposition of a consecutive sentence, defendant contends that the judge failed to separately explain his reasoning, "the alleged crimes were committed in close temporal proximity to each other, thus indicating a single period of aberrant behavior[]" and "none of the alleged thefts by deception involved violence or the threat of violence." Defendant also argues the judge imposed two six-year consecutive terms, in violation of Yarbough's "Guideline 5."
We think the judge adequately explained his reasoning by noting the separate victims involved and the amounts of the anticipated thefts. Any argument that the attempted thefts amounted to a single isolated episode of aberrant behavior is belied by the evidence, which revealed a calculated course of conduct over several months that anticipated a violent outcome. Lastly, so-called "Guideline 5" does not limit the sound exercise of the court's discretion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION