                                NOT FOR PUBLICATION WITHOUT THE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




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1882-17T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

WILLIAM TORRES a/k/a
WILLIAM TORRES JR.,

     Defendant-Appellant.
_______________________

                    Submitted December 16, 2019 – Decided January 21, 2020

                    Before Judges Sabatino and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment Nos. 16-03-0321,
                    17-01-0025, and 17-02-0098.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Louis H. Miron, Designated Counsel, on the
                    brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Alanna M. Jereb, Assistant Prosecutor, on
                    the brief).

PER CURIAM
      Defendant was tried before a jury and found guilty of third-degree

aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(7). He appeals from the

judgment of conviction (JOC) and sentence, and raises the following issues:

      POINT I

            THE TRIAL COURT ERRED IN CHARGING THE
            JURY CONCERNING ACCOMPLICE LIABILITY
            WHERE THE CO-DEFENDANTS DID NOT
            TESTIFY AT TRIAL, DID NOT HAVE ANY LEGAL
            OR OTHER CONNECTION WITH DEFENDANT,
            AND HAD EACH ENTERED PLEAS TO SIMPLE
            ASSAULT.

      POINT II

            THE TRIAL COURT ERRED IN FAILING TO
            CHARGE SELF-DEFENSE WHEN THE DEFENSE
            WAS WARRANTED AND SUPPORTED BY THE
            FACTS.

      POINT III

            THE TRIAL COURT ABUSED ITS DISCRETION IN
            SENTENCING DEFENDANT TO A MANIFESTLY
            EXCESSIVE AND UNJUST SENTENCE BASED
            UPON THE RECORD AND, THEREFORE,
            DEFENDANT'S    SENTENCE    SHOULD    BE
            VACATED.

After considering these arguments against the record and applicable legal

principles, we affirm both defendant's conviction and sentence.




                                                                       A-1882-17T3
                                       2
                                         I.

      The trial record reveals the following relevant facts. In November 2016,

at approximately 6:40 p.m., an unidentified man approached Antonio Portillo

and asked him for $2. After Portillo gave him the money, Portillo kept walking

and was then approached by a second man, the defendant, who asked him for a

cigarette. Portillo had seen defendant "hanging out on [the street] on many

occasions," and told him "that if he wanted, he could go out and get a job."

Defendant responded by calling Portillo a "motherfucker," and Portillo replied

with similar vituperative epithets. Portillo and defendant continued to argue,

and Portillo "thr[ew] [a] punch" at defendant which did not strike him. Portillo

testified that at the time of the altercation he was drunk.

      Portillo then walked away from defendant towards his home. At some

point later, and after the initial interaction between defendant and Portillo was

over, defendant and two other men approached Portillo. Portillo testified that

three or four people attacked him and that one of the men hit him near his ear,

causing him to fall to the ground. While on the ground, defendant kicked him

in the face. Portillo was unsure how many times he was hit thereafter as he

testified that he fainted.




                                                                         A-1882-17T3
                                         3
      At approximately 7:00 p.m., the police initially received a report regarding

a sexual assault on Bergenline Avenue. Officer Lazarel Alvarez arrived at the

scene and was approached by Alberto Jimenez who advised that he was "the one

that called the police . . . about the man who had been beat up." Jimenez

informed Officer Alvarez that the incident involved approximately five to seven

men, that he witnessed one of the men strike defendant who then "went down,"

and pointed him to where Portillo was "slouched in a kneeling position."

      Officer Alvarez observed that Portillo had "one eye semi-closed,"

"injuries to his hands," and "blood in his mouth, his hands, [and] his clothing."

Additionally, Portillo had "multiple lacerations to the . . . face . . . [and] lower

lip." Portillo was "semi-conscious" and unable to speak coherently.

      An emergency medical technician (EMT) arrived to assist Portillo and

smelled an odor of alcohol on Portillo as he attended to his injuries. Portillo

attempted to "flee," but was advised that he needed medical treatment because

he had been drinking and because of the "significant trauma" to his face.

      Detective Michael Musa also responded to the scene and secured a

surveillance tape from a nearby restaurant that depicted portions of the initial

interaction between Portillo and defendant. After the EMTs transported Portillo

to the hospital, an individual approached Detective Musa and informed him that


                                                                            A-1882-17T3
                                         4
one of the "guys involved [was] a few blocks south with two females" and

wearing black. Detective Musa then stopped a man, Raymond Nieves, who was

with two women. Nieves was later arrested and charged along with defendant

and two other individuals with the assault.

      As a result of the incident, Portillo suffered bilateral, lower jaw mandible

fractures. Three days after he was admitted to the hospital, Portillo underwent

surgery and his jaw was wired shut. At trial, almost a year later, Portillo testified

that he still felt pain and was unable to eat anything hard.

      The court sentenced defendant with respect to the aggravated assault

conviction as well as two prior guilty pleas stemming from separate indictments

that charged defendant with possession and distribution of controlled dangerous

substances (CDS). With respect to the aggravated assault conviction, the court

"expressly reject[ed]" defendant's request to apply mitigating factors three and

four. The court explained that "[t]here was nothing that . . . amounted to strong

provocation," and, given defendant's drug history, "[t]here [was] nothing . . .

that would tend to excuse or justify his conduct for which he was convicted."

The court applied aggravating factors two, three, six, and nine, and sentenced

defendant to a five-year-term of imprisonment to run consecutive to his sentence

on the CDS charges.


                                                                             A-1882-17T3
                                         5
                                        II.

      In defendant's first point, he asserts that the court improperly charged the

jury on accomplice liability, claiming there was a dearth of evidence supporting

the charge. Further, defendant contends that "this error was compounded by the

trial court's den[ial] [of] [defendant's] application to take judicial notice of the

co-defendants' pleas to simple assault . . . ." Defendant adds that "none of the

co-defendants [were] identified as having been involved with, or legally

connected to, [defendant]."       According to defendant, the "effect of the

instructions . . . was to obfuscate the possibility that the co-defendants were the

ones who purposely committed the assault, and that [defendant], although at the

scene . . . did not intend the victim to suffer serious bodily harm." We disagree.

      "Appropriate and proper charges to a jury are essential for a fair trial."

State v. Jordan, 147 N.J. 409, 421 (1997) (quoting State v. Green, 86 N.J. 281,

287 (1981)).     Because an individual's liberty is at stake, "[e]rroneous

instructions on matters or issues that are material to the jury's deliberations are

presumed to be reversible error in criminal prosecutions." Id. at 422 (citing

State v. Warren, 104 N.J. 571, 579 (1986)). "In determining whether a charge

was erroneous, the charge must be read as a whole." Ibid. (citing State v.

Wilbely, 63 N.J. 420, 422 (1973)). Essentially, if the charge adequately covers


                                                                            A-1882-17T3
                                         6
the matter requested, there is no error. State v. Thompson, 59 N.J. 396, 411

(1971). Therefore, "[t]here is no reversible error where the charge, considered

as a whole, adequately conveys the law and is unlikely to confuse or mislead the

jury." State v. Gaikwad, 349 N.J. Super. 62, 75 (App. Div. 2002) (internal

quotation marks omitted).

      N.J.S.A. 2C:2-6(c) provides in relevant part that an individual is an

accomplice of another if "[w]ith the purpose of promoting or facilitating the

commission of the offense[,] he . . . [s]olicits such other person to commit it,

[or] [a]ids or agrees or attempts to aid such other person in planning or

committing it." For accomplice liability to attach, the jury "must find that [the

defendant] 'shared in the intent which is the crime's basic element, and at least

indirectly participated in the commission of the criminal act.'"        State v.

Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993) (quoting State v. Fair,

45 N.J. 77, 95 (1965)); see also State v. Whitaker, 200 N.J. 444, 458 (2009) ("An

accomplice is only guilty of the same crime committed by the principal if he

shares the same criminal state of mind as the principal."). Additionally, "where

the evidence indicates a rational basis for accomplice liability, [a] judge can

charge the jury on that basis even though the indictment does not expressly




                                                                         A-1882-17T3
                                       7
allege a violation of N.J.S.A. 2C:2-6." State v. Hakim, 205 N.J. Super. 385, 388

(App. Div. 1985).

      Here, it is not disputed that the court's charge mirrored the post-

Bielkiewicz Model Jury Charge, see Model Jury Charge (Criminal), "Liability

for Another's Conduct/Complicity," (2018). State v. Whitaker, 402 N.J. Super.

495, 513-14 (App. Div. 2008) (quoting State v. Angoy, 329 N.J. Super. 79, 84

(App. Div. 2000)) ("When a jury instruction follows the model jury charge,

although not determinative, 'it is a persuasive argument in favor of the charge as

delivered.'"). And, there was ample evidence elicited at trial to support the

accomplice liability charge. For example, Portillo stated at trial, which was in

part corroborated by Jimenez's testimony and the surveillance tape, that after the

initial argument with defendant, he was approached by a group of men, including

defendant. Portillo stated that one of the men, who he was unable to identify,

struck him in the ear. He explicitly stated that defendant then kicked him in the

face and was uncertain how many times he was hit afterwards.

      At a minimum, this testimony supports not only the jury's verdict that

defendant committed an aggravated assault, but also that he had a "shared intent"

with the co-defendants to purposely commit, and participate in the commission

of, the aggravated assault. The evidence presented at trial therefore provided a


                                                                          A-1882-17T3
                                        8
rational basis for accomplice liability and we discern no error in the court's

charge on the issue as it "adequately convey[ed] the law and [was] unlikely to

confuse or mislead the jury." Gaikwad, 349 N.J. Super. at 75.

       Finally, we deem defendant's argument that the court erred in failing to

advise the jury, or take judicial notice, of the fact that Nieves and the other co-

defendants pled guilty to simple assault without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). The fact that co-defendants

pled guilty to simple assault has no bearing on the appropriateness of the court's

accomplice liability jury charge, as there was a rational basis to support the

instruction.

                                       III.

      Defendant next asserts that the court erred in denying his request for a

self-defense jury charge, "as it was a theory of defendant's defense throughout

the trial." Again, we disagree.

      Pursuant to N.J.S.A. 2C:3-4(a), "the use of force upon or toward another

person is justifiable when the actor reasonably believes that such force is

immediately necessary for the purpose of protecting himself against the use of

unlawful force by such other person . . . ." "The defendant must harbor an actual

reasonable belief that his use of force is necessary to prevent the imminent


                                                                           A-1882-17T3
                                        9
application of unlawful force by the assailant." State v. Villanueva, 373 N.J.

Super. 588, 597 n.1 (2004) (citing State v. Kelly, 97 N.J. 178, 199 (1984)).

      "In considering whether to charge the jury on self-defense, a court should

consider the circumstances that might give rise to that defense, including the

defendant's and alleged aggressor's conduct . . . ." State v. Rodriguez, 195 N.J.

165, 174 (2008).     "[I]f there exists evidence in either the State's or the

defendant's case sufficient to provide a 'rational basis' for [its] applicability,"

"the trial court must charge the jury on self-defense." State v. Bryant, 288 N.J.

Super. 27, 35 (App. Div. 1996).

      In this case, the evidence demonstrates that the parties engaged in a verbal

dispute that culminated with Portillo unsuccessfully attempting to strike

defendant. Significantly, the initial altercation ended, and Portillo walked away

from defendant. At that point, any threat of unlawful force by Portillo ceased.

The trial proofs further established that defendant later approached Portillo with

a group of men and struck him without warning or provocation. On these facts,

the trial evidence did not support a self-defense charge as defendant did not have

a reasonable belief that use of force was necessary to prevent the imminent

application of unlawful force by Portillo. The court properly denied defendant's

request for a self-defense charge.


                                                                           A-1882-17T3
                                       10
                                       IV.

      Finally, defendant asserts that the court abused its discretion by ordering

his sentence on his aggravated assault conviction to run consecutive to his

sentences on the unrelated CDS convictions, resulting in an aggregate sentence

of ten years of incarceration with three years of parole ineligibility. He further

argues that the court failed to consider mitigating factors three, four and five.

We reject defendant's arguments as we are satisfied that the court properly

considered the aggravating and mitigating factors and sentenced defendant to a

five-year consecutive term, which was within the appropriate sentencing range.

See N.J.S.A. 2C:43-6(a)(3).

      "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). An appellate court must affirm 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) "the application of the guidelines to

the facts of [this] case makes the sentence clearly unreasonable so as to shock

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

omitted).


                                                                          A-1882-17T3
                                       11
      Further, we are "'bound to affirm a sentence, even if [the reviewing court]

would have arrived at a different result, as long as the trial court properly

identifies and balances aggravating and mitigating factors that are supported by

competent credible evidence in the record.'" State v. Grate, 220 N.J. 317, 337

(2015) (citation omitted). To be accorded such deference, the sentencing court

is required to "identify the relevant aggravating and mitigating factors,

determine which factors are supported by a preponderance of evidence, balance

the relevant factors, and explain how it arrives at the appropriate sentence."

State v. O'Donnell, 117 N.J. 210, 215 (1989) (citation omitted); State v. M.A.,

402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g).

      Although the judge has discretion as to the weight to be given to each

factor, the judge lacks discretion to decline to "take into account a mitigating

factor that is fully supported by the evidence," but "must [include such factor

as] part of the deliberative process." State v. Dalziel, 182 N.J. 494, 505 (2005).

In addressing the aggravating and mitigating factors, the court must engage in a

qualitative weighing process, evaluating each of the aggravating and mitigating

factors and explaining that evaluation on the record in sufficient detail to permit

appellate review. State v. Towey, 114 N.J. 69, 84 (1989); State v. Roth, 95 N.J.

334, 368 (1984). A court, however, need not "explicitly reject each and every


                                                                           A-1882-17T3
                                       12
mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 609

(2010).   Rather, "[i]t is sufficient that the trial court provides reasons for

imposing its sentence that reveal the court's consideration of all applicable

mitigating factors in reaching its sentencing decision." Ibid.

      The court explained that it found aggravating factors two ("[t]he gravity

and seriousness of harm inflicted on the victim, including whether or not the

defendant knew or reasonably should have known that the victim of the offense

was particularly vulnerable or incapable of resistance . . . "), 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.

      Additionally, contrary to defendant's assertion, the court considered and

rejected the applicability of mitigating factors three, four and five. As noted, in

considering mitigating factor three ("[t]he defendant acted under a strong

provocation"), the sentencing judge stated, "I saw the videotape [and] . . . [t]here

was nothing that . . . amounted to strong provocation."           With respect to

mitigating factor four ("[t]here were substantial grounds tending to excuse or

justify the defendant's conduct, though failing to establish a defense"), the judge


                                                                            A-1882-17T3
                                        13
found "[t]here is nothing that I saw, even given defendant's drug abuse history,

that would tend to excuse or justify his conduct for which he was convicted."

      As to mitigating factor five ("[t]he victim of the defendant's conduct

induced or facilitated its commission"), defendant relies on State v. Robinson,

266 N.J. Super. 268, 283 (App. Div. 1993), rev'd on other grounds, 136 N.J. 476

(1994), and claims "the fact that the trial court denied [defendant's] self-defense

argument and concluded that Portillo's own conduct did not excuse [defendant's]

actions should not render factor [five] inapplicable." Defendant further asserts

that in State v. Robinson, the court concluded that factor [five] applied, "where

the defendant engaged in a far more serios encounter with the victim."       First,

we note that contrary to defendant's claims, the court in State v. Robinson did

not address or conclude that mitigating factor five applied in that case. Second,

and more importantly, we are satisfied from our review of the record, and the

JOC, that the court considered all of the aggravating and mitigating factors. We

glean from that record that although the court did not specifically cite to

mitigating factor five, the sentencing judge clearly considered its applicability

as he dismissed defendant's reliance on State v. Robinson, but nevertheless

concluded that nothing in the record would support the conclusion that the




                                                                           A-1882-17T3
                                       14
victim provoked defendant and "[t]here [was] nothing . . . that would tend to

excuse or justify his conduct for which he was convicted."

      Finally, defendant's contention that his sentence was excessive because it

ran consecutive to his sentences for his CDS convictions is without merit. In

imposing a consecutive sentence, courts should consider "facts relating to the

crimes," including whether "the crimes and their objectives were predominantly

independent of each other," or whether "the crimes were committed at different

times or separate places." State v. Yarbough, 100 N.J. 627, 644 (1985); see also

State v. Soto, 385 N.J. Super. 247, 257 (App. Div. 2006) (affirming the court's

imposition of a consecutive sentence where there were "separate crimes

committed on separate occasions"). Here, the underlying CDS convictions were

materially different factually and legally than defendant's aggravated assault

conviction. The crimes were independent, with different objectives, and took

place at different times and locations. The court did not abuse its discretion in

imposing a consecutive sentence and the court's overall sentence does not shock

our judicial conscience.

      Affirmed.




                                                                         A-1882-17T3
                                      15
