                           NOT FOR PUBLICATION WITHOUT THE
                         APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
         parties in
        parties   in the
                      the case
                           case and
                                 and its
                                      its use
                                           use in
                                                in other
                                                    other cases
                                                           cases is
                                                                  is limited.
                                                                      limited. R.
                                                                                R.1:36-3.
                                                                                   1:36-3.


                                                   SUPERIOR COURT OF NEW JERSEY
                                                   APPELLATE DIVISION
                                                   DOCKET NO. A-5498-15T2


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

ABRAHAM ROMAN, a/k/a JOSE
RODRIGUEZ, and ABRAHAM TORRES,

     Defendant-Appellant.
__________________________

               Submitted May 2, 2018 — Decided June 12, 2018

               Before Judges Fuentes, Koblitz and Suter.

               On appeal from Superior Court of New Jersey,
               Law Division, Union County, Indictment No. 13-
               07-0651.

               Joseph E. Krakora, Public Defender, attorney
               for appellant (Richard Sparaco, Designated
               Counsel, on the brief).

               Michael A. Monahan, Acting Union County
               Prosecutor, attorney for respondent (Izabella
               M. Wozniak, Special Deputy Attorney General/
               Acting Assistant Prosecutor, of counsel and
               on the brief).

PER CURIAM

        After a jury trial, Defendant Abraham Roman appeals from his

convictions        for    second-degree        reckless      manslaughter,        N.J.S.A.
2C:11-4(b)(1), and third-degree theft, N.J.S.A. 2C:20-3.              The

court sentenced defendant to the statutory minimum of five years

in   prison,   with   an   eighty-five   percent   parole   disqualifier

pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,

and a concurrent three year term for theft.

      On appeal, defendant argues:

           POINT I: DEFENDANT'S STATEMENT TO THE POLICE
           SHOULD HAVE BEEN SUPPRESSED BECAUSE THE POLICE
           INTERROGATORS INITIALLY WITHHELD THE FACT THAT
           THE VICTIM HAD DIED AS A RESULT OF THE ASSAULT.

           POINT II:       THE TRIAL COURT COMMITTED
           REVERSIBLE ERROR IN FAILING TO INSTRUCT THE
           JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE
           ASSAULT UNDER N.J.S.A. 2C:12-1[(a)].

           POINT III:    THE DEFENDANT'S SENTENCE WAS
           EXCESSIVE – THE COURT ERRED IN FAILING TO
           SENTENCE THE DEFENDANT TO ONE DEGREE LOWER.

           POINT IV:     THE DEFENDANT'S MOTION FOR A
           JUDGMENT OF ACQUITTAL N.O.V. BASED UPON
           INSUFFICIENCY OF THE EVIDENCE SHOULD HAVE BEEN
           GRANTED.

We find no merit to these arguments and affirm.

                                   I.

      Defendant's case was severed from that of his co-defendant

Juan Cruz, who was charged with aggravated assault.         We glean the

following facts from the trial testimony.      Shortly before midnight

on November 21, 2012, the night before Thanksgiving, Detective

James Szpond of the Elizabeth Police Department was in an unmarked

patrol car in the parking lot of a car wash in Elizabeth when he

                                    2                           A-5498-15T2
heard something bump into his car, and saw two Hispanic males with

a bicycle.      Both men got on the bicycle, and Szpond followed them

in his car.

       The men separated, and Szpond stopped defendant, who said he

had been in a fight outside a bar.        Defendant was holding a cell

phone that was not his, and Szpond took it from him.         Szpond began

calling numbers in the call history of the phone, and eventually

made contact with Leslie DeJesus, who said she knew the phone's

owner, Victor Vasquez.

       DeJesus testified that after she received the call, she

visited Vasquez and saw that he was limping and had two kitchen

knives by his bed.     His face was bruised, swollen, and "purplish."

DeJesus brought Vasquez to the police station where he identified

his    phone.     Vasquez   refused   medical   assistance   and   was   not

interested in further police investigation of the incident.                He

stayed at DeJesus's house that night, complaining that his head

and body were hurting. He refused medical attention because he did

not have insurance.

       The following day, Vasquez went to his aunt's house for

Thanksgiving dinner.        She testified that he looked "very beaten

up."    "His lips, his face, his eyes, it was all swollen."              She

encouraged Vasquez to go to the hospital, but he refused.




                                      3                            A-5498-15T2
     Stephanie Burgos, the mother of Vasquez's son, testified that

they had lived together for nine years, but separated approximately

a year before Vasquez died.           She typically saw Vasquez two or

three times a week, but after Thanksgiving, he did not see her or

the children due to injuries to his ribs and migraine headaches.

     Vasquez's     cousin   and    co-worker     testified    that      after

Thanksgiving Vasquez did not go to work because his chest and head

hurt.   Vasquez was unable to eat, and was losing his balance and

falling down.    He had injuries to his neck and face.               Vasquez

refused to see a doctor.

     Carlos   Luis    Martinez,   a    supervisor    at   Vasquez's     work,

testified that on the Monday after Thanksgiving, Vasquez did not

go to work because he had a headache.         The next day, Vasquez went

to work, and Martinez saw scratches on his face, and marks under

one eye and on his forehead.      Vasquez seemed weak, and said he was

dizzy and his neck, back and head hurt.             He did not return to

work.

     Martinez went to Vasquez's residence on Monday, December 3,

to check on him.     Vasquez "had a real bad headache, his back was

hurting real bad and his neck."           Martinez told Vasquez to go to

the hospital.        On December 11, 2012, Vasquez's dead body was

found on the floor of his home.




                                      4                              A-5498-15T2
       Two    days    later,   detectives     interviewed       defendant    twice.

Defendant      waived    his   Miranda1   rights     at   the    outset     of   both

interviews, which were recorded and played for the jury.

       In his first statement, defendant said that at around 11 p.m.

on the night before Thanksgiving he was drinking at a bar and was

"a little tipsy."        He stepped outside and Vasquez, who was Puerto

Rican,       made    disparaging   comments     to   him    about    Columbians.

Defendant punched Vasquez in the face two or three times. Co-

defendant Juan Cruz joined in the fight.

       After Vasquez left, Cruz said to defendant "come on, let's

go get him[,]" and they rode one bike to chase Vasquez.                   When they

caught up, Cruz hit Vasquez twice in the head.                   Vasquez dropped

to the ground, and defendant hit him and said he may have kicked

Vasquez. Defendant grabbed Vasquez's cell phone out of his pocket.

       More than halfway through the first interview, the detectives

told defendant that Vasquez had died. Defendant responded: "That's

what I thought."         The detectives asked why he thought that, and

defendant replied that it was because an experienced detective was

involved in the investigation.            Defendant added, "I really didn’t

want to kill the guy."          He said, "I never meant to hurt the guy

and kill him."




1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                          5                                 A-5498-15T2
     The detectives asked defendant to drive around with them to

locate Cruz, who they found in a parking lot.          After returning to

headquarters, defendant gave another recorded statement after

again waiving his right to remain silent.       He said that he had not

been mistreated by the police.

     Junaid   Shaikh,   M.D.,   the   Union   County   medical   examiner,

performed an autopsy. Vasquez had contusions on his forehead,

abrasions and contusions on his knees, and abrasions on his right

hand.   The abrasions had started to heal, indicating that Vasquez

did not suffer the injuries immediately prior to death. The injury

to his forehead "was sustained some time ago."

     Vasquez had a subdural hemorrhage on the right side and base

of his brain and bruising on the right lobe of his brain.               The

doctor also saw a fresh hemorrhage, which could have been caused

in one of two ways; either a new injury or a "re-bleed."            Shaikh

believed, to a reasonable degree of medical certainty, that Vasquez

suffered a re-bleed of the initial hemorrhage because there was

no evidence of another serious injury.        The doctor explained that

a rebleed was not unusual if the individual did not seek medical

attention after the initial injury, and concluded the cause of

Vasquez's death was "subdural hemorrhage due to blunt head trauma."

     Shaikh also testified that based on "decompositional changes"

to the body, he believed that Vasquez had died two or three days


                                      6                           A-5498-15T2
before his body was found.        He testified that Vasquez died as a

result of injuries sustained approximately fourteen days prior to

his death, "plus or minus[] a couple of days."

     Defendant did not testify or call any witnesses.              Defense

counsel had retained an expert to counter Shaikh, but the expert

was "not prepared to go to trial," and defendant, in consultation

with counsel, chose not to call the expert.

                                   II.

     Defendant   contends   the    court   should    have   suppressed    his

recorded statements, arguing that his waiver of the right against

self-incrimination was invalid because the police did not tell him

at the outset of the interview that Vasquez had died.                    When

determining whether a suspect's waiver of the right against self-

incrimination is knowing, intelligent, and voluntary, we defer to

a trial court's credibility determinations and factual findings

as long as they are supported by sufficient credible evidence in

the record.   State v. W.B., 205 N.J. 588, 603 n.4 (2011); State

v. Yohnnson, 204 N.J. 43, 64-65 (2009).             That standard applies

even when those findings are "based solely on video or documentary

evidence . . . ."    State v. S.S., 229 N.J. 360, 379 (2017).              So

long as the trial court "applied the correct legal test and its

findings are supported by sufficient credible evidence in the

record," we will only reverse its determination if "there was an


                                    7                              A-5498-15T2
abuse of discretion." State v. Nyhammer, 197 N.J. 383, 409 (2009).

Legal issues are reviewed de novo.              State v. Shaw, 213 N.J. 398,

411 (2012); W.B., 205 N.J. at 603 n.4.

     The privilege against self-incrimination is protected by the

Fifth Amendment to the Federal Constitution, and has been codified

in N.J.S.A. 2A:84A-19, as well as N.J.R.E. 503.                       Because the

privilege    is     not   self-effectuating,          "Miranda's    prophylactic-

procedural safeguards" protect it.             State v. Knight, 183 N.J. 449,

461 (2005) (quoting State v. Burris, 145 N.J. 509, 520 (1996)).

"[F]or a confession to be admissible as evidence, prosecutors must

prove beyond a reasonable doubt that the suspect's waiver was

knowing,    intelligent,       and   voluntary         in   light    of     all    the

circumstances."       State v. Presha, 163 N.J. 304, 313 (2000).

     The crux of that inquiry is whether the "suspect's confession

is the product of free will," which requires courts to "assess the

totality of circumstances surrounding the arrest and interrogation

. . . ."    Ibid.    This test requires a court to consider a suspect's

previous    encounters     with    the   law    and    "such   factors      as    'the

suspect's     age,    education      and     intelligence,         advice    as     to

constitutional       rights,      length     of    detention,        whether       the

questioning was repeated and prolonged in nature and whether

physical punishment or mental exhaustion was involved.'"                          Ibid.

(quoting State v. Miller, 76 N.J. 392, 402 (1978)).


                                         8                                  A-5498-15T2
      The circumstances in this case are somewhat similar to those

in Nyhammer, 197 N.J. at 383.                There, the police asked the

defendant if he would meet with them to discuss allegations that

his uncle sexually abused his grand-niece, Amanda.                Id. at 389-

90.     The defendant waived his Miranda rights and agreed to a

videotaped interview, admitting that he sexually abused Amanda.

Ibid.    Only after the interview concluded, did the police inform

the defendant of Amanda's allegations against him.                Id. at 391.

He then gave another videotaped statement in which he described

the sexual abuse in detail.         Id. at 391-92.

      The defendant argued that "his confession should be deemed

involuntary because, in addition to giving the Miranda warnings,

the police must inform a person, at the outset of any questioning,

that he is a suspect (if indeed he is a suspect) or read again

the Miranda warnings after questioning begins when he becomes a

suspect."     Id.    at    401.    The   Court   rejected   the   defendant's

argument, and found that Nyhammer did not "fall within the limited

category of cases in which we have applied a bright-line rule."

Id. at 405.    The Court applied the totality-of-the-circumstances

test,    holding    that    the   defendant's    confession   was    properly

admitted into evidence because he voluntarily and intelligently

waived his rights.         Id. at 408-09.




                                         9                           A-5498-15T2
      Though the defendant was not aware that he was a suspect, the

police were not required to supply him "'with a flow of information

to help him calibrate his self-interest in deciding whether to

speak or stand by his rights' because 'the additional information

could   affect   only    the   wisdom      of   a Miranda waiver,      not   its

essentially voluntary and knowing nature.'"            Id. at 407 (quoting

Colorado v. Spring, 479 U.S. 564, 576-77 (1987)).                   In other

words, "a valid waiver does not require that an individual be

informed of all information useful in making his decision."               Ibid.

(quoting Spring, 479 U.S. at 576).

      The same is true here.     Defendant was aware of his rights and

chose to waive them.       While he was not told that the victim had

died, that piece of information was not essential to a voluntary

and knowing waiver of his rights. Defendant also said he suspected

the victim had died before he was informed of the death. Moreover,

defendant continued to cooperate with the detectives even after

they told him Vasquez had died, going so far as to drive around

Elizabeth with them to locate another suspect.                The totality of

the   circumstances     demonstrate     that    defendant's   waiver    of   his

rights was knowing, intelligent, and voluntary.

      Defendant was thirty-one years old.            He had a high school

diploma and could read and write English.               He had three prior

criminal convictions, and was familiar with his Miranda rights


                                      10                               A-5498-15T2
because he had previously read them and seen them administered on

television.       Defendant         read   the    warnings    aloud    and   said    he

understood them before waiving his right to remain silent.

      Defendant later volunteered that he had "waived [his] rights"

and "spoke freely."          He was not detained for a lengthy period of

time, the questioning was not repeated or prolonged, nor was

physical punishment or mental exhaustion involved. In fact, during

the interview defendant said that he was not mistreated, and that

"there was no pressure."

      Defendant also quotes from the Court's opinion in State v.

O'Neill, for the proposition that "police officers conducting a

custodial    interrogation          cannot      withhold   essential     information

necessary for the exercise of the privilege." 193 N.J. 148, 179

(2007).     In O'Neill, the police interrogated the nineteen-year-

old   defendant      for    ninety-five         minutes,     eliciting   statements

linking him to a murder.            Id. at 154.     The police then advised the

defendant of his Miranda rights, and interrogated him for an

additional     five        hours,     again      eliciting     self-incriminating

statements.     Ibid.        At trial, the State sought to admit into

evidence only the statements made after the police advised the

defendant of his Miranda rights.                Id. at 154.

      When reversing the admission of the statement, the Court

explained     that    the     "two-step,          'question-first,       warn-later'


                                           11                                A-5498-15T2
interrogation is a technique devised to undermine both the efficacy

of Miranda and our state law privilege."       Id. at 180.    The Court,

however, refused to adopt a "bright-line rule" prohibiting the

practice.    Id. at 181.   Thus, O'Neill supports the totality-of-

the-circumstances test applied by the trial court here.              A two-

step process was not used here.       Based on the totality of these

circumstances,   defendant's   waiver   of   his   right   against    self-

incrimination was properly found to be knowing, intelligent, and

voluntary.

                                 III.

     Defendant argues the court erred by failing to instruct the

jury on simple assault as a lesser-included offense of aggravated

manslaughter.    At the charge conference, the parties agreed that

the court should instruct the jury on reckless manslaughter as a

lesser-included offense of aggravated manslaughter.            Defendant

sought an instruction on simple assault as an additional lesser-

included offense, but objected to the inclusion of an aggravated

assault instruction.2

     The trial court found defendant's position contradictory.           It

explained that "the elements are exactly the same, except for the




2
    Defense counsel objected because the consequences of an
aggravated assault conviction could be "more severe" than a
conviction for reckless manslaughter.


                                 12                              A-5498-15T2
bodily injury, plain bodily injury for a simple assault, and

significant   bodily   injury,   and   serious"    bodily   injury   for

aggravated assault.    The court also addressed this issue in its

written opinion denying defendant's motion for a new trial.          The

court found "there was no rational basis to charge Simple Assault,

a mere beating[,] when the evidence supported a finding that the

beating resulted in the victim's death."          The court added that

"the jury did not have to find that any one of [] defendant's

blows caused the victim's death" so long as it found that "he

and/or the co-defendant beat the victim causing the victim's

death."

     Clear and correct jury instructions are essential for a fair

trial because they are "a road map to guide the jury, and without

an appropriate charge, a jury can take a wrong turn in its

deliberations." State v. Nelson, 173 N.J. 417, 446 (2002) (quoting

State v. Koskovich, 168 N.J. 448, 507 (2001)).       If the "defendant

requests a charge on an offense indicated by the proofs, the charge

should be given."   State v. Sloane, 111 N.J. 293, 299 (1988).

     When a trial court denies a defendant's request to instruct

the jury on a lesser-included offense, an appellate court must

determine "whether the evidence presents a rational basis on which

the jury could [1] acquit the defendant of the greater charge and

[2] convict the defendant of the lesser."    State v. Alexander, ___


                                 13                            A-5498-15T2
N.J. ___, ___ (2018) (slip op. at 19) (quoting State v. Cassady,

198 N.J. 165, 178 (2009)).        The Criminal Code directs that "[t]he

court shall not charge the jury with respect to an included offense

unless there is a rational basis for a verdict convicting the

defendant of the included offense."           N.J.S.A. 2C:1-8(e) (emphasis

added).

      Defendant argues that there was a rational basis to charge

the jury on simple assault because "the jury could have found that

the defendant punched the victim, that the defendant intended to

cause only bodily injury, and that the causal relationship between

the assault and the victim's death had not been proven beyond a

reasonable doubt."

      A defendant is guilty of aggravated manslaughter if he or she

"recklessly causes death under circumstances manifesting extreme

indifference to human life."          N.J.S.A. 2C:11-4(a)(1).           The State

must prove three elements beyond a reasonable doubt:                    that the

defendant (1) caused the victim's death; (2) did so recklessly;

and   (3)    did     so   under   circumstances           manifesting     extreme

indifference    to    human   life.        Model   Jury    Charge   (Criminal),

"Aggravated Manslaughter (N.J.S.A. 2C:11-4(a))" (rev. Mar. 22,

2004).    Reckless manslaughter requires the State to prove only the

first two elements:       that the defendant (1) caused the victim's

death and (2) did so recklessly.             Model Jury Charge (Criminal),


                                      14                                 A-5498-15T2
"Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22,

2004).

     The difference between aggravated and reckless manslaughter

"is the difference in the degree of the risk that death will result

from defendant's conduct."      State v. Curtis, 195 N.J. Super. 354,

364 (App. Div. 1984); see also State v. Breakiron, 108 N.J. 591,

605 (1987) (endorsing our decision in Curtis).         If the defendant

created only "a mere possibility of death," then he is guilty of

reckless manslaughter.      Ibid.

     A defendant is guilty of simple assault if, as relevant here,

he "purposely, knowingly or recklessly causes bodily injury to

another."     N.J.S.A. 2C:12-1(a)(1) (emphasis added).         The State

must prove beyond a reasonable doubt that the defendant (1) caused

bodily injury, and (2) acted purposely or knowingly or recklessly.

Model Jury Charge (Criminal), "Simple Assault (Bodily Injury)

(Lesser Included Offense) (N.J.S.A. 2C:12-1(a)(1))" (rev. May 8,

2006).

     The jury acquitted defendant of aggravated manslaughter, and

convicted him of reckless manslaughter, indicating it found that

his actions created a possibility, as opposed to a probability,

of   death.     See   Model   Jury    Charge   (Criminal),    "Aggravated

Manslaughter    (N.J.S.A.     2C:11-4(a))"     (rev.   Mar.   22,      2004)

(differentiating between aggravated and reckless manslaughter).


                                     15                             A-5498-15T2
     Defendant   argues    that     "the   jury   could   have   found   that

defendant did not cause, either directly or as an accomplice, the

death of the victim."     Causation, in the context of manslaughter,

requires the State to prove beyond a reasonable doubt that "but

for the defendant's conduct, [the victim] would not have died."

Model Jury Charge (Criminal), "Aggravated Manslaughter (N.J.S.A.

2C:11-4(a))" (rev. Mar. 22, 2004); see also Model Jury Charge

(Criminal), "Reckless Manslaughter (N.J.S.A. 2C:11-4(b)(1))" (rev.

Mar. 22, 2004) (stating same).       The State also must prove that the

victim's death was

           within the risk of which the defendant was
           aware. If not, it must involve the same kind
           of injury or harm as the probable result of
           the defendant's conduct and must also not be
           too remote, too accidental in its occurrence,
           or too dependent on another's volitional act
           to have a just bearing on the defendant's
           liability or on the gravity of his/her
           offense. In other words, the State must prove
           beyond a reasonable doubt that [the victim's]
           death was not so unexpected or unusual that
           it would be unjust to find the defendant
           guilty of . . . manslaughter.

           [Model Jury Charge (Criminal), "Aggravated
           Manslaughter (N.J.S.A. 2C:11-4(a))" (rev.
           Mar. 22, 2004).]

see also Model Jury Charge (Criminal), "Reckless Manslaughter

(N.J.S.A. 2C:11-4(b)(1))" (rev. Mar. 22, 2004) (stating same).

Whether   defendant's     actions    caused   Vasquez's    death   was    the




                                     16                             A-5498-15T2
critical issue in dispute, and the jury made its determination as

to the cause of death.

     While defendant contested that the subdural hemorrhage caused

Vasquez's death, he did not contest that he and Cruz caused the

subdural   hemorrhage   when   they   attacked   Vasquez.   A   subdural

hemorrhage constitutes more than "pain, illness, or [physical]

impairment," and is therefore more serious than simple "bodily

injury" under N.J.S.A. 2C:11-1(a).           As confirmed by Shaikh's

testimony, a subdural hemorrhage is "impairment . . . of the

function of [a] bodily . . . organ," namely the brain, and is

"serious bodily injury" under N.J.S.A. 2C:11-1(b).

     There was no evidence to support the notion that defendant

caused only "bodily injury" to Vasquez and therefore there was no

rational basis for the jury to find defendant guilty of simple

assault. See State v. Crisantos, 102 N.J. 265, 280 (1986) (stating

that there is no rational basis to support a jury charge if it "is

substantiated by no testimony in the record").

                                       IV.

     Defendant contends that the court should have sentenced him

as a third-degree offender, downgrading the reckless manslaughter

charge.    Prior to sentencing, the State moved for imposition of a

discretionary extended term because defendant had three prior

felony convictions and was a persistent offender under N.J.S.A.


                                  17                            A-5498-15T2
2C:44-3(a).      The State recommended that defendant be sentenced to

an aggregate term of fifteen years in prison with an eighty-five

percent parole disqualifier.           Defendant conceded that he was

eligible   for    a   discretionary    extended   term   as   a   persistent

offender, but requested the court sentence him as a third-degree

offender to three or four years in prison, subject to NERA.

       The court denied the State's motion for an extended term,

because defendant was "extremely remorseful," had "been truthful

numerous times," and "it wasn't [his] intent to kill Mr. Vazquez."

       Defendant argued that the court should find the following

mitigating factors:      two, that he "did not contemplate that his

conduct would cause or threaten serious harm"; three, that he

"acted under a strong provocation"; five, that the "victim of

[his] conduct induced or facilitated its commission"; nine, that

his "character and attitude . . . indicate that he is unlikely to

commit another offense"; and twelve, his "willingness . . . to

cooperate with law enforcement authorities."         See N.J.S.A. 2C:44-

1(b).    The court found no mitigating factors.

       The court found aggravating factors three, the risk that

defendant will commit another offense; six, the extent of his

prior criminal record and seriousness of the offense; and nine,

the need for deterring defendant and others from violating the

law.    See N.J.S.A. 2C:44-1(a).


                                      18                            A-5498-15T2
       Although it found that the aggravating factors outweighed the

mitigating factors, the court sentenced defendant to the statutory

minimum aggregate sentence: five years in prison subject to NERA.

Thus, even if the court had formally found mitigating factor

twelve, that defendant cooperated with law enforcement, it could

not have legally sentenced defendant to a lesser term.                  The court

in its comments made clear that it sentenced defendant leniently

due to defendant's cooperation with law enforcement and his deep

remorse.

       The   court    properly    rejected    defendant's      request     to    be

sentenced as a third-degree offender.                 Under N.J.S.A. 2C:44-

1(f)(2), if a defendant is convicted of a first- or second-degree

offense, and a sentencing court "is clearly convinced that the

mitigating factors substantially outweigh the aggravating factors

and where the interest of justice demands, the court may sentence

the defendant to a term appropriate to a crime of one degree lower

than that of the crime for which he was convicted."               Thus, "for a

sentence to be downgraded, a two-step test must be satisfied."

State v. Megargel, 143 N.J. 484, 495 (1996).               The sentencing court

must   be    "(1)    clearly    convinced    that    the   mitigating    factors

substantially        outweigh    the   aggravating    factors    and    (2)     the

interest of justice must demand the downgrade."                 Ibid.    Neither

of those requirements was satisfied in this case.


                                        19                               A-5498-15T2
     We cannot reverse a sentence "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)" it "'shock[s] the

judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014)

(alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)).     The trial court followed sentencing guidelines in

imposing the most lenient sentence permitted by law.

                                       V.

     Finally, defendant argues briefly that the court erred by

denying   his    motion   for    a   judgment    of   acquittal    based    on

insufficient evidence.      The State presented sufficient evidence

that defendant recklessly caused the victim's death by assaulting

him and stole the victim's cell phone.           This argument is without

sufficient merit to require further discussion.             R. 2:11-3(e)(2).

     Affirmed.




                                     20                              A-5498-15T2
