                                NOT FOR PUBLICATION WITHOUT THE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-3522-16T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

CHRISTOPHER J. MCKENNA,

           Defendant-Appellant.


                    Submitted November 8, 2018 – Decided February 7, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 15-08-
                    1401.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stephen W. Kirsch, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Carey J. Huff,
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
      Tried by a jury, defendant Christopher J. McKenna was convicted of

second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1).         On February 3,

2017, the judge sentenced defendant to state prison for eight years subject to the

No Early Release Act, N.J.S.A. 2C:43-7.2. He appeals and we affirm.

      The facts are drawn from the record. Shortly after midnight on January 1,

2015, Andrew Pezza, the victim, and two friends went to a bar to continue

drinking. Upon arrival, Pezza noticed his cell phone was missing, and rushed

out to his car to see if it was there. He slammed the front door to the bar, causing

a glass picture frame to fall on the floor and break. Defendant got up from the

bar and followed the victim. As he later explained to police officers, he wanted

Pezza "held accountable for his actions[.]"        Defendant was neither a bar

employee nor acquainted with him.

      According to Pezza, he was attacked from behind, and punched

repeatedly, even while he was on the ground. His injuries included short-term

memory loss, surgery to implant man-made bone in a depressed area in the front

of his skull or forehead, fractures of his sinuses and a nasal bone, and

hemorrhaging. When the victim testified at trial, he still suffered from his

injuries. Pezza is permanently scarred, has trouble with his balance, and leans

to one side as he walks.


                                                                            A-3522-16T4
                                         2
      Defendant was seen chasing after and attacking Pezza by Thomas Dyson,

a co-worker over whom defendant then had supervisory authority. Initially,

Dyson told police that the victim punched defendant first and that defendant

only hit Pezza three or four times.         Dyson videotaped the event, but at

defendant's request, forwarded the video to defendant and deleted it from his

cell phone. Dyson later told police that the victim never even attempted to hit

defendant and apologized repeatedly in an effort to stop defendant's onslaught.

      Another eyewitness said she saw multiple fists punching and legs ki cking

the victim as he lay crying on the ground.         She acknowledged on cross -

examination that she could not tell if it had been one person or two, but after the

assault stopped, she saw defendant drag Pezza on his back by his shirt from the

parking lot across the street, where defendant "threw" the bleeding and severely

injured victim onto a bench outside the bar, and fled. She testified that she

identified defendant by the red and black plaid shirt he wore on the night of the

incident.

      Police later contacted defendant, who, shortly after assaulting the victim,

was injured in a separate confrontation at another location. He told police that

he had been attacked, was in the hospital, and could not speak to them at that

time. When defendant finally arrived at police headquarters with his attorney


                                                                           A-3522-16T4
                                        3
two months later, he claimed Pezza had been acting rowdy after he broke a

window in the bar, so defendant followed him. Defendant claimed Pezza took

a swing at him, and that he punched the victim three or four times before walking

him across the street.    He also maintained he had witnesses who would

corroborate this version of events, although they were never interviewed by

police. Eventually, defendant acknowledged that the injuries for which he was

treated at the hospital were not inflicted by the victim but resulted from an

unrelated event.

      Before trial, the judge signed a consent order dismissing the affirmative

defenses of duress and self-defense, after they were withdrawn by counsel.

Nonetheless, the judge gave the jury a self-defense instruction. The judge also

complied with the State's request to charge the jury as to flight. The judge

followed the model jury charges, and instructed the jury as to second and third-

degree aggravated assault and simple assault.      No objection was made by

counsel to the proposed closing instructions. No objection was raised by either

attorney after the judge's closing charge.

      At sentencing, the judge found that defendant, who at the time was twenty-

nine years old, had an extensive juvenile history including burglary, aggravated

assault, robbery, and criminal mischief. As an adult, he was convicted on four


                                                                         A-3522-16T4
                                        4
occasions of indictable offenses and violated probation. The indictable offenses

included aggravated arson, third-degree aggravated assault, and burglary.

Defendant had served prior state prison terms, and had maxed out on at least one

sentence. The same day that defendant assaulted Pezza, he was charged with

the eventually dismissed disorderly persons offense of attempting to cause

bodily injury to another.

      During the sentencing hearing, the judge observed that after the verdict

was announced, defendant appeared to be in shock. She overheard him say, "but

I'm a changed man." The judge did not agree that defendant was a changed man

because he showed so little remorse. He had been in and out of jail most of his

life on offenses that included violence, this being his third aggravated assault.

Furthermore, the judge described the attack in detail, including the fact that

during the assault the victim cried and begged defendant to stop.            When

interviewed by the probation officer who authored defendant's presentence

report, defendant said he wanted to sue the victim for the injuries he had received

that night, although he eventually acknowledged that those injuries occurred

later and were not inflicted by Pezza.

      The judge would not allow defendant's character witnesses to testify. She

said she had read all twenty-three letters she received supporting defendant,


                                                                           A-3522-16T4
                                         5
including letters from persons who might have been present. Only two of those

mentioned the harm to the victim.

      The judge found aggravating factor three, the risk defendant would

reoffend, N.J.S.A. 2C:44-1(a)(3); aggravating factor six, the extent of

defendant's prior criminal record and seriousness of the convicted offense,

N.J.S.A. 2C:44-1(a)(6); and aggravating factor nine, the need for deterrence,

N.J.S.A. 2C:44-1(a)(9), and only mitigating factor eleven, that his imprisonment

would result in excessive hardship to his family, N.J.S.A. 2C:44-1(b)(11). At

the time, defendant had a two-year-old daughter and a step-child for whom he

was financially responsible.

      On appeal, defendant raises the following points of error for our

consideration:

            POINT I
            WHEN SOME EYEWITNESSES PRESENTED A
            SCENARIO THAT POTENTIALLY INVOLVED
            MORE THAN ONE ACTOR INVOLVED IN THE
            OVERALL MELEE WITH THE VICTIM, IT WAS
            REVERSIBLE ERROR TO FAIL TO INSTRUCT THE
            JURY ON ACCOMPLICE LIABILITY AND TO FAIL
            TO EXPLAIN TO THE JURY THAT MULTIPLE
            ACTORS MIGHT POSSESS DIFFERENT STATES
            OF MIND AND, THUS, BE GUILTY OF DIFFERENT
            OFFENSES UNDER STATE V. BIELKIEWICZ.




                                                                        A-3522-16T4
                                       6
            POINT II
            THE JURY INSTRUCTIONS ON SELF-DEFENSE --
            THE ONLY AFFIRMATIVE DEFENSE AT ISSUE IN
            THE CASE: (1) BADLY MISINFORMED THE JURY
            ON THE CORRECT BURDEN OF PROOF; AND (2)
            WAS     NOT    INCORPORATED   INTO   THE
            INDIVIDUAL COUNTS AGAINST DEFENDANT,
            THEREBY ALLOWING THE JURY TO CONVICT
            BASED UPON THE SIMPLE ELEMENTS OF THE
            CRIMES      CHARGED     WITHOUT     EVER
            CONSIDERING THE APPLICABILITY OF SELF-
            DEFENSE TO THE CASE.

            POINT III
            A RESENTENCING REMAND IS REQUIRED
            BECAUSE THE JUDGE SHOULD NOT HAVE
            DENIED, WITH NO SIGNIFICANT STATEMENT
            OF REASONS, THE DEFENDANT THE RIGHT TO
            HAVE OTHERS SPEAK IN SUPPORT OF HIM AT
            SENTENCING []; ADDITIONALLY, A REMAND IS
            REQUIRED BECAUSE THE RESTITUTION
            AWARD     WAS     ORDERED     WITH   NO
            CONSIDERATION OF THE ABILITY TO PAY.

                                        I.

      It is well-settled that "appropriate and proper jury charges are essential to

a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). The standard for

assessing the soundness of a challenged jury instruction is "'how and in what

sense, under the evidence before them, and the circumstances of the trial, would

ordinary . . . jurors understand the instructions as a whole.'" Ibid. (citing Crego

v. Carp, 295 N.J. Super. 565, 573 (App. Div. 1996)). Thus, "[a] portion of a


                                                                           A-3522-16T4
                                        7
charge alleged to be erroneous . . . 'cannot be dealt with in isolation . . . [and]

should be examined as whole to determine its overall effect.'" Ibid. (citing State

v. Wilbely, 63 N.J. 420, 422 (1973)). However, the trial court need not use

particular language in a charge so long as it adequately conveys the applicable

legal principles to the jury. State v. Ball, 268 N.J. Super. 72, 113 (App. Div.

1993).

      Even though a defendant generally waives the right to appeal an

instruction if no objection is made at trial, we may still reverse on the basis of

unchallenged error under the plain error standard. State v. Adams, 194 N.J. 186,

206-07 (2008); R. 2:10-2. The plain error standard permits us to "reverse on the

basis of unchallenged error if . . . [it] was 'clearly capable of producing an unjust

result.'" State v. Torres, 183 N.J. 554, 564 (2005) (citing R. 2:10-2). Indeed,

"[p]lain error in the context of a jury charge is '[l]egal impropriety . . .

prejudicially affecting the substantial rights of the defendant sufficiently

grievous to . . . convince the court that of itself the error possessed a clear

capacity to bring about an unjust result.'" Ibid. (citing State v. Jordan, 147 N.J.

409, 422 (1997)).




                                                                             A-3522-16T4
                                         8
                                         II.

      Defendant first contends the court's failure to charge accomplice liability

was reversible error. It is well-established that if multiple individuals participate

in the same criminal act, those involved may be guilty of different degrees of

offense, depending on their own actions and culpability. State v. Franklin, 377

N.J. Super. 48, 55 (App. Div. 2005) (citing State v. Bielkiewicz, 267 N.J. Super.

520, 528 (App. Div. 1993)). Under the statute governing accomplice liability,

"[a] person is guilty of an offense if it is committed by his own conduct or by

the conduct of another person for which he is legally accountable, or both."

N.J.S.A. 2C:2-6(a). Further, a person may be held liable as an accomplice if

that person purposefully aids or attempts to aid another in the commission of a

crime. N.J.S.A. 2C:2-6(c).

      Where "a prosecution is based on the theory that a defendant acted as an

accomplice, the court is obligated to provide the jury with accurate and

understandable jury instructions regarding accomplice liability even without a

request by defense counsel." Bielkiewicz, 267 N.J. Super. at 527. That being

said, "the obligation to provide the jury with instructions regarding accomplice

liability arises only in situations where the evidence will support a conviction

based on the theory that a defendant acted as an accomplice." State v. Crumb,


                                                                             A-3522-16T4
                                         9
307 N.J. Super. 204, 221 (App. Div. 1997). Moreover, in order to charge a

lesser-included offense, like accomplice liability, "there must be a rational basis

for a jury to reject the greater [principal] charge." Franklin, 377 N.J. Super. at

56. Accordingly, "the failure to give a Bielkiewicz charge is not plain error

where a jury could not reasonably conclude that defendant was an accomplice."

State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998).

         That is the case here—the testimony at trial established that defendant

acted alone, not as an accomplice. That the eyewitnesses could not see what

was happening at all times, and that they saw others standing around defendant

while he kicked and punched the victim's head is not equivalent to a factual basis

for an accomplice instruction. Thus no error occurred, much less prejudicial

error.

                                        III.

         We review defendant's contention that the self-defense instruction was

deficient under the plain error standard as he did not object at trial. See State v.

Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010); R. 1:7-2. In assessing

whether there was plain error, if the court uses language directly from a model

jury charge, that factor is not "determinative, [but] is a persuasive argument in




                                                                            A-3522-16T4
                                        10
favor of the charge as delivered." State v. Angoy, 329 N.J. Super. 79, 84 (App.

Div. 2000).

      A trial judge must charge the jury on self-defense "if there exists evidence

in either the State's or the defendant's case sufficient to provide a 'rational basis'

for [its] applicability." State v. Fowler, 453 N.J. Super. 499, 507 (App. Div.

2018) (citing State v. Blanks, 313 N.J. Super. 55, 69-70 (App. Div. 1998)). If

such evidence exists, "the jury must be instructed that the State is required to

prove beyond a reasonable doubt that the self-defense claim does not accord

with the facts; acquittal is required if there remains a reasonable doubt whether

the defendant acted in self-defense." State v. Kelly, 97 N.J. 178, 200 (1984). In

providing the instruction, the trial court shall not misstate or dilute the State's

burden to prove guilt beyond a reasonable doubt. State v. Medina, 147 N.J. 43,

59 (1996). Further, "[c]ontradictory and inconsistent charges are inherently

inadequate as they 'create a reasonable likelihood that a juror understood the

instructions in an unconstitutional manner.'" State v. Moore, 122 N.J. 420, 433

(1991) (citing Humanik v. Beyer, 871 F.2d 432, 442 (3d Cir.) (1989)).

      There simply was no testimony that defendant acted in self-defense. The

judge instructed the jury as follows:

                    Self-defense is . . . the right of a person to defend
              against seriously threatened, unlawful force that is

                                                                              A-3522-16T4
                                         11
actually pending or reasonably anticipated. When a
person is in imminent danger of bodily harm, the person
has the right to use force or even deadly force when that
force is necessary to prevent the use against him of
unlawful force. The force used by the defendant must
not be significantly greater than and must be
proportionate to the unlawful force threatened or used
against the defendant.

      ....

      If you find that the defendant knew that he could
avoid the necessity of using deadly force by retreating,
provided that the defendant knew he could do so with
complete safety, then the defense is not available to
him.

       In your inquiry as to whether a defendant who
resorted to deadly force knew that an opportunity to
retreat with complete safety was available, the total
circumstances, including the attendant excitement
accompanying the situation, must be considered.

      ....

      The State has the burden to prove to you beyond
a reasonable doubt that the defense of self-defense is
untrue. The defense only applies if all the conditions or
elements previously described exist. The defense must
be rejected if the State disproves any of the conditions
beyond a reasonable doubt.

      ....

      The burden of proof upon the State is to prove
beyond a reasonable doubt that the defendant knew he
could have retreated with complete safety. . . . If the
State carries its burden, then you must disallow the

                                                            A-3522-16T4
                          12
            defense. If the State does not satisfy its burden and you
            have a reasonable doubt, then it must be resolved in
            favor of the defendant and you must allow the claim of
            self-defense and acquit the defendant.

      We do not agree that the charge misinformed this jury on the burden of

proof, and that even if that were the case, it would have prejudiced the outcome.

The judge gave the charge in an abundance of caution, but we are hard-pressed

to see any basis for the defense.

      The victim had no contact with defendant whatsoever before leaving the

bar. Defendant chased Pezza as he crossed the street to his car, sucker-punched

and knocked him onto the ground, and then proceeded to strike him repeatedly

in the head and torso while the victim pleaded for defendant to stop. Nothing in

those facts gave rise to the defense. Furthermore, here the judge even asked the

jury to address the threshold question of self-defense on the verdict sheet, before

moving on to the issue of whether defendant assaulted Pezza. The instruction

the judge gave tracking the model charge more than sufficed. Asking the jury

to address self-defense first was an eminently reasonable way to eliminate the

issue before consideration of any other question regarding guilt. There is no

merit to the claim that the instruction was fatally flawed.




                                                                           A-3522-16T4
                                       13
                                      IV.

      Finally, defendant contends that the court erred by precluding testimony

from defendant's character witnesses, and that the matter should be remanded

for that purpose. We disagree.

      "Other than defendants, and crime victims or their survivors, there is no

absolute right to speak at a sentencing proceeding." State v. Blackmon, 202 N.J.

283, 305 (2010). Aside from those who have the right to speak at sentencing,

deciding who else may be heard "remains a matter that is committed to the

sentencing court's discretion." Id. at 307. "However, to the extent that the

choice about who may speak is an exercise of discretion . . . it must be

accompanied by some expression of reasons sufficient to permit appellate

review." Ibid.

      At the sentencing hearing, the judge denied defense counsel's request that

defendant's family and friends speak on his behalf. She stated she had reviewed

in detail the letters supporting him, which were incorporated into the

presentence report. That she made close study of them is corroborated by her

comment that out of the twenty-three letters, only two acknowledged the harm

defendant inflicted on Pezza.




                                                                        A-3522-16T4
                                      14
      The sentencing judge was not required to allow statements that would

merely have repeated information of which she was already aware. See id. at

305. Therefore, her decision not to allow defendant's character witnesses to

speak in light of the ample documentation regarding his good character was not

an abuse of discretion.

      Finally, defendant complains that the restitution award was imposed

without consideration of defendant's ability to pay. In this case, where defendant

faces a lengthy period of incarceration, the $2735 imposed by way of restitution

is not unreasonable. No hearing was requested at the time he was sentenced,

and defendant's presentence report indicates his household income was $3500 a

month. No remand is necessary in light of the modest restitution and defendant's

income earning capacity.

      Affirmed.




                                                                          A-3522-16T4
                                       15
