                                 NOT FOR PUBLICATION WITHOUT THE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-2625-15T4

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JAMES KNIGHT, JR., a/k/a
CARTER KNIGHT, J. KNIGHT,
JAMES ARTHUR KNIGHT,
JAMES-JR. KNIGHT, JIMMY
KNIGHT, JR. KNIGHT, JAMES
NIGHT, and JUNIOR KNIGHT,

     Defendant-Appellant.
_____________________________

                    Submitted November 8, 2018 – Decided September 12, 2019

                    Before Judges Nugent and Mawla.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 14-03-0210.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Alicia J. Hubbard, Assistant Deputy Public
                    Defender, of counsel and on the brief).

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

PER CURIAM

     Indicted and convicted for attempted murder, armed robbery, two counts

of assault, and two weapons offenses, and sentenced to life imprisonment,

defendant, James Knight, Jr., seeks to have his conviction reversed and his

sentenced vacated. He makes these arguments:

           POINT I
           THE COURT ALLOWED THE JURY TO HEAR THE
           ACCUSER'S      UNRELIABLE          IN-COURT
           IDENTIFICATION, AND THEN COMPOUNDED
           THE PROBLEM BY MISCHARACTERIZING THE
           IDENTIFICATION MADE BY ANOTHER WITNESS
           AND FAILING TO PROVIDE THE FACT FINDERS
           WITH APPROPRIATE JURY INSTRUCTIONS ON
           HOW TO CONSIDER THE EVIDENCE. (U.S.
           CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947)
           (NOT RAISED BELOW).

           POINT II
           AN EXCESSIVE SENTENCE WAS IMPOSED
           AFTER THE COURT IMPROPERLY USED THE
           SAME FACTORS BOTH TO FIRST IMPOSE AN
           EXTENDED TERM THEN SET A TERM OF LIFE
           IMPRISONMENT WITHOUT ANY ADDITIONAL
           ANALYSIS. THE COURT ALSO IMPROPERLY
           FOUND     INAPPLICABLE  AGGRAVATING
           FACTORS.

     For the reasons that follow, we affirm.



                                                                    A-2625-15T4
                                      2
                                       I.

                                       A.

      A grand jury charged defendant in a six-count indictment with the first-

degree crimes of attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and

armed robbery, N.J.S.A. 2C:15-1; second-degree and third-degree aggravated

assault, N.J.S.A. 2C:12-1(b)(1) and N.J.S.A. 2C:12-1(a)(2); and the second-

degree crimes of unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).

Following the indictment, the trial court granted defendant's motions to suppress

the victim's out-of-court identification and bar her from identifying defendant

during the trial.

      A jury convicted defendant on all counts. The trial court granted the

State's application to sentence defendant to an extended term. After merging

the aggravated assault counts, the court imposed concurrent sentences on the

four remaining counts. For attempted murder, the court sentenced defendant to

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

7.2. For armed robbery, the court sentenced defendant to a term of twenty years

subject to NERA. For unlawful possession of a weapon and possession of a

weapon for an unlawful purpose, the court sentenced defendant to, respectively,


                                                                         A-2625-15T4
                                       3
a ten-year prison term with five years of parole ineligibility and an eight-year

prison term with four years of parole ineligibility. The court also imposed

appropriate fines, penalties, and assessments.

                                       B.

      During defendant's trial, the State presented the testimony of twenty

witnesses, showed the jury surveillance videos, played the recorded 9-1-1 calls

of witnesses, and played a recording of defendant's statement to police. The

State's proofs included the following evidence.

      The victim was working alone in her son's Plainfield perfume store at or

around noon on October 5, 2013, when a man stood in the store's doorway and

asked to use a phone. She said she did not have one. He left but returned

approximately one hour later and asked to purchase perfume. She reached for a

bottle of perfume beneath the counter and when she turned to give it to him he

shot her in the chest with a handgun.       The man pulled the trigger again,

repeatedly, but the gun would not fire, so he struck the victim's head twice with

the gun butt and then began striking her back and her head with a chair. Despite

the violent attack, the victim eventually managed to walk out of the store. She

was later hospitalized and treated for a three-millimeter gunshot wound to her

left chest and back, the latter likely an exit wound, and four cuts on her head.


                                                                          A-2625-15T4
                                        4
      The assailant could be seen on a store surveillance video, though his face

was covered. The victim described him as a tall, thin black man wearing a white

shirt and black jacket with a hood. During her trial testimony, when asked if

her assailant was skinny, fat, or somewhere in between, the victim replied that

he was skinny then, fat now. Defendant did not object to the comment.

      Several witnesses saw the victim exit the store, screaming and covered in

blood. She was pointed out her assailant as he ran away. One witness began to

give chase but stopped after a short distance out of concern the man might be

armed.

      Another witness, who had heard a gunshot, saw a black man run out of the

store. The man was wearing a white shirt, another shirt on top, which was either

black or blue, and "blue jeans and sandals." The second witness saw the victim

come out of the store, "desperate" and "covered in blood." The second witness

followed the assailant as he ran into a lot behind a wall. The witness knew there

was no exit for the assailant, so the witness remained in place until the assailant

emerged from the lot and then chased the assailant as he ran into an appliance

store. The police arrived and the second witness directed them into the appliance

store. When he testified at trial, the second witness identified the assailant in

the video as the man he chased into the appliance store.


                                                                           A-2625-15T4
                                        5
      An appliance store employee testified that a six-foot-one or six-foot-two,

"slender, black" male, whom the employee identified as defendant, entered the

store "somewhere around lunchtime" and said "they're going to get me." The

employee testified defendant looked "very distraught" and "tense" and he was

also "sweating." Defendant headed to the back of the store, which had no rear

exit but did have a stairway to a second story that was used for storage. "Waves"

of four to five people followed defendant. Ultimately, twenty to thirty people

entered the store in pursuit of defendant, "yelling[] call 9-1-1, call 9-1-1."

      Sergeants Nuno Carvalho and Christopher Sylvester were among the

several Plainfield Police Officers who responded to the appliance store.

Sergeant Carvalho testified he and the other officers entered the building, yelled

"Plainfield Police," and told the crowd and employees to leave the building. The

officers searched the first floor but did not locate the suspect. They ascended

the stairs to the second floor while continuing to yell, "Plainfield Police" and

"Plainfield Police. Is anyone up here? Plainfield Police." The officers received

no response. The second floor was pitch dark so Sergeant Carvalho scanned the

room with his flashlight. The room was full of "[o]ld boxes, a lot of papers and

debris[.]" As Sergeant Carvalho scanned the room he saw defendant's "head




                                                                            A-2625-15T4
                                         6
protruding from the top of some boxes[.]" Sergeant Carvalho drew his weapon

and yelled "Plainfield Police, show me your hands."

      Defendant did not immediately respond. Only after Sergeant Sylvester

reached the second story and joined Sergeant Carvalho in yelling for defendant

to show the officers his hands did defendant cease crouching behind the boxes.

Although defendant rose up onto his knees, defendant remained noncompliant

with the officers' requests for him to show them his hands, so Sergeant Carvalho

provided cover while Sergeant Sylvester handcuffed defendant. As the officers

placed defendant in handcuffs, Sergeant Carvalho noticed defendant had blood

on his shirt but did not appear to be bleeding. Sergeant Sylvester recovered a

bloodied Yankees baseball cap from the area where defendant was hiding.

      Defendant was transported to Plainfield Police headquarters for booking.

Defendant's Nike sandals, jeans, belt, black dress shirt, and white t-shirt were

all taken as evidence. The Yankees baseball cap was also taken as evidence.

      Plainfield Police Officer Anastasio Anastasatos was among the crime

scene investigators who responded to the perfume store to process the blood-

splattered scene.   The officer discovered a .22 caliber handgun that had

malfunctioned when a cartridge stuck in the ejection port.




                                                                        A-2625-15T4
                                       7
      The scientific testimony elicited at trial established the bloodstains on

defendant's jeans and white t-shirt matched the victim's DNA. The results of

the testing performed on the grip of the .22 handgun recovered from the Store

revealed two DNA profiles. The victim "could not be excluded as a major

contributor" of that profile and defendant "could not be excluded as a possible

minor contributor[.]"

      Defendant testified on his own behalf. He denied assaulting the victim.

Defendant stated he was involved in a physical altercation with a man who

almost knocked defendant down when the man came running out of a parking

lot. Defendant said the man was wielding an iron pipe and had blood on his

hands and arms. When asked to describe the man, defendant testified the man

was a slim black man wearing a dark–colored short sleeve shirt, who appeared

to be in his thirties. After exchanging words, the men tried to strike defendant

with the pipe, but defendant ducked and hit the man. Defendant kicked and

tripped the man, then stood over him to hit him again. Just then, t wo Spanish

men came running around the corner yelling. One had a gun. Defendant fled to

the appliance store. Sometime during the altercation, he realized he had dropped

his knit cap. He inadvertently picked up another, which must have been his

assailant's cap. Police retrieved the cap from the floor when they arrested him.


                                                                         A-2625-15T4
                                       8
      Defendant was impeached with the transcript of his recorded statement to

the police and admitted he told the police the man wielding the pipe was

"Spanish."    According to the transcript of defendant's recorded statement,

defendant reported the man was wearing a "white" shirt. However, defendant

asserted that was a "misprint." Defendant was also was confronted with portions

of the surveillance video of the victim's attacker entering the perfume store.

Defendant was asked whether or not the person in the video had a similar

appearance to the man with the pipe. Defendant replied, "No, this person has

on a long-sleeve shirt." When defendant was asked if he could identify the

attacker's shoes, he could not deny the attacker was wearing black Nike flip flops

with socks like defendant was wearing when arrested. Defendant also admitted

the person depicted in the video was wearing a white t-shirt with a dark-colored,

long-sleeve shirt on top, jeans, and a Yankees baseball cap.

                                       C.

      During defendant's sentencing proceeding, the court granted the State's

motion to sentence defendant to an extended term of ten years to life. N.J.S.A.

2C:44-3(a); N.J.S.A. 2C:43-7(a)(2); State v. Pierce, 188 N.J. 155, 168 (2006).

Defendant did not dispute that he was eligible for an extended term under the

statutory criteria.


                                                                          A-2625-15T4
                                        9
      In determining the appropriate sentence, the court found five aggravating

factors and no mitigating factors.    The court found the aggravating factors

delineated in N.J.S.A. 2C:44-1(a)(1), the nature and circumstances of the

offense, including whether it was committed in an especially heinous, cruel or

depraved manner, based on the severe beating defendant inflicted on his

victim—with the gun and the chair—after robbing and shooting her. The court

found aggravating factors delineated in N.J.S.A. 2C:44-1(a)(2), the gravity and

seriousness of harm inflicted on the victim, including whether she was

particularly vulnerable or incapable of resistance, based on the woman being

beaten while she was alone in the store and entirely unsuspecting until she turned

around when and defendant shot her.

      The court also found the aggravating factors delineated in N.J.S.A. 2C:44-

1(a)(3), the risk defendant would reoffend; 2C:44-1(a)(6), the extent of his prior

criminal record and the seriousness of his prior crimes; and 2C:44 -1(a)(9), the

need for deterring defendant. Last, the court found the public needed protection.

The court based these findings on defendant's eleven prior convictions, drug

abuse, lack of success in diversionary programs, prior crimes of a similar nature,

and lack of stable employment. The court sentenced defendant to an aggregate

term of life imprisonment subject to NERA.


                                                                          A-2625-15T4
                                       10
                                         II.

      Defendant argues the trial court allowed the jury to hear an impermissible

in-court identification of defendant by the victim. Defendant also argues the

trial court failed to provide appropriate jury instructions. Defendant did not

object to the alleged errors at trial.

                                         A.

      In evaluating defendant's arguments, we bear in mind that the "[a]bsence

of contemporaneous objection may lead to a fair inference that 'in the context of

the trial the error was actually of no moment.'" State v. McGuire, 419 N.J.

Super. 88, 149-50 (App. Div. 2011) (quoting State v. Nelson, 173 N.J. 417, 471

(2002)); accord State v. Echols, 199 N.J. 344, 360 (2009) ("Failure to make a

timely objection indicates that defense counsel did not believe the remarks were

prejudicial at the time they were made.") (quoting State v. Timmendequas, 161

N.J. 515, 576 (1999)).

      When defendants do not object at trial to evidence or testimony they later

challenge on appeal, the defendants "must demonstrate plain error to prevail.

Plain error is 'error possessing a clear capacity to bring about an unjust result

and which substantially prejudiced the defendant's fundamental right to have the




                                                                         A-2625-15T4
                                         11
jury fairly evaluate the merits of his defense.'" Timmendequas, 161 N.J. at 576-

77 (quoting State v. Irving, 114 N.J. 427, 444 (1989)).

      Similarly, "[o]ur rules provide that a defendant waives the right to contest

an instruction on appeal if he does not object to the instruction." State v. Torres,

183 N.J. 554, 564 (2005) (citing R. 1:7-2.). "We will reverse on the basis of

unchallenged error if we find error was 'clearly capable of producing an unjust

result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting R. 2:10-2).

             "Plain error in the context of a jury charge is '[l]egal
            impropriety in the charge prejudicially affecting the
            substantial rights of the defendant sufficiently grievous
            to justify notice by the reviewing court and to convince
            the court that of itself the error possessed a clear
            capacity to bring about an unjust result.'"

            [Torres, 183 N.J. at 564 (alteration in original) (quoting
            State v. Jordan, 147 N.J. 409, 422 (1997)).]

      Even if we determine the charge contained an error, the "error must be

evaluated 'in light of the overall strength of the State's case.'" State v. Sanchez-

Medina, 231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388

(2012)).

                                        B.

      Here, before trial, the court suppressed the victim's out-of-court

identification of defendant because it had come about as the result of an unduly


                                                                            A-2625-15T4
                                        12
suggestive identification procedure.        The court precluded the State from

conducting an in-court identification of defendant by the victim. During her

trial testimony, when the victim was asked if her assailant appeared to be skinny,

fat, or somewhere in between, she replied: "Back then, he was thin. Right now,

he's fat." Defense counsel did not object or move to strike. The prosecutor

immediately moved on to having the victim explain where her assailant shot her.

      Defendant now argues the victim's comment informed the jury she

believed defendant was her attacker. He adds that because the trial court barred

the victim from identifying defendant in court as her attacker, her testimony

denied defendant a fair trial. We disagree.

      The victim's comment was fleeting. There is no evidence she looked at

defendant or pointed to defendant when she made it. It came almost immediately

after she had become emotional, expressing disbelief and her inability to

understand why the assailant wanted to kill her when she had done nothing to

him. In this instance, the absence of a contemporaneous objection does lead to

a fair inference that in the context of the trial the error was actually of no

moment. McGuire, 419 N.J. Super. at 149-50.

      What's more, in view of the State's overwhelming evidence of defendant's

guilt, we conclude defendant has failed to demonstrate the victim's fleeting


                                                                          A-2625-15T4
                                       13
reference to her assailant being fat "now" possessed any capacity, let alone a

clear capacity, to bring about an unjust result. R. 2:10-2. State v. Pressley, 232

N.J. 587, 594 (2018). The jury's finding that the defense was incredible is easily

understandable, considering defendant was seen exiting the perfume store,

chased to the appliance store, and apprehended in the same clothes and hat worn

by the perpetrator. Defendant's explanation as to how the victim's blood got on

his clothes defied reason and common sense.

                                         C.

      For similar reasons, we reject defendant's challenge to the jury instruction

on identification, which defendant now challenges for the first time. Defendant

argues the trial court gave an inaccurate and inadequate jury instruction

regarding the second witness's identification of defendant. Recall the second

witness saw defendant exit the store and chased him to the appliance store, after

waiting as defendant turned into a lot—a lot the witness knew defendant could

not exit—and returned.

      Defendant emphasizes the underscored text in the following portion of the

trial court's instruction to the jury in support of his contention:

                   You heard testimony that [the second witness]
             expressed his level of certainty that the person he
             selected is . . . in fact, the person who committed the
             crime. As I explained earlier, a witness's level of

                                                                          A-2625-15T4
                                        14
               confidence, standing alone, may not be an indication of
               reliability of the identification.    Although some
               research has found that highly confident witnesses are
               more likely to make accurate identifications,
               eyewitness confidence is generally an unreliable
               indicator of accuracy.

      We reject the argument, as well as the tactic of taking part of a jury charge

out of context and misconstruing a court's comments. Given the witness's

testimony, the court properly gave the instruction from the Confidence and

Accuracy section of the Model Jury Charges (Criminal), "Identification: In-

Court Identification Only" (rev. July 19, 2012), and it is entirely understandable

why trial counsel did not object to the charge, which was both balanced and

appropriate.

      Defendant also asserts "[i]t was crucial for the jury to understand that [the

second witness's] identification of the person he knew was under arrest as the

same person he was chasing earlier could be tainted by the circumstances under

which he viewed the man being removed from the building."                Defendant

suggests the court should have instructed the jury sua sponte on show-ups.

There is no support in the record for defendant's argument. The police did not

conduct a show-up, and the evidence does not support the argument that the

witness's in-court identification was tainted because the witness observed

defendant shortly after defendant was arrested. A trial court is required to

                                                                           A-2625-15T4
                                        15
instruct a jury on remote possibilities unsupported by the evidence presented

during the trial.

         Defendant's remaining arguments concerning identification are without

sufficient merit to warrant further discussion. R. 2:11-3(e)(2). The court did

not commit error when charging the jury and certainly did not commit plain

error.

                                        III.

         Defendant argues his sentence is excessive.      He asserts the court

improperly applied aggravating factors two and nine; aggravating factor two

because the victim was as capable as any other person to resist the attack, and

nine—the need for deterrence—because the court improperly considered

defendant's continuing proclamation of innocence.        In addition, defendant

contends the court failed to conduct a two-part analysis when it granted the

State's motion for an extended term and then sentenced defendant to life

imprisonment.

         "Appellate courts review sentencing determinations in accordance with a

deferential standard." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence

must be affirmed unless

              (1) the sentencing guidelines were violated; (2) the
              aggravating and mitigating factors found by the

                                                                         A-2625-15T4
                                       16
     sentencing court were not based upon competent and
     credible evidence in the record; or (3) "the application
     of the guidelines to the facts of [the] case makes the
     sentence clearly unreasonable so as to shock the
     judicial conscience."

     [Ibid. (alteration in original) (quoting State v. Roth, 95
     N.J. 334, 364-65 (1984)).]

The Supreme Court has reiterated:

            The general deference to sentencing decisions
     includes application of the factors set forth in N.J.S.A.
     2C:44-1(a) and (b): appellate courts do not "'substitute
     [their] assessment of aggravating and mitigating
     factors' for the trial court's judgment." State v. Miller,
     205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200
     N.J. 601, 608 (2010)). "Permitting appellate courts to
     substitute their factual findings for equally plausible
     trial court findings is likely to 'undermine the
     legitimacy of the [trial] courts in the eyes of litigants,
     multiply appeals by encouraging appellate retrial of
     some factual issues, and needlessly reallocate judicial
     authority.'" State v. S.S., 229 N.J. 360, 380-81 (2017)
     (alteration in original) (quoting Fed. R. Civ. P. 52(a)
     advisory committee's note to 1985 amendment). "[T]he
     public's interest in 'stability and judicial economy' is
     promoted by designating our trial courts, rather than
     appellate courts, as 'the finder of the facts,' in the
     absence of clear error." Id. at 381 (quoting Fed. R. Civ.
     P. 52(a) advisory committee's note to 1985
     amendment).

     [State v. Miller, 237 N.J. 15, 28-29 (2019) (alterations
     in original).]




                                                                  A-2625-15T4
                                17
      Thus, we will not "second-guess a trial court's finding of sufficient facts

to support an aggravating or mitigating factor if that finding is supported by

substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989)

(citing Roth, 95 N.J. at 365-66 (1984)). 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 "shock[s] the

judicial conscience" in light of the particular facts of the case. Roth, 95 N.J. at

364 (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).

      The sentencing record establishes that the court did not violate the

sentencing guidelines, and the court's finding of aggravating factors and no

mitigating factors was based on competent and credible evidence in the record.

Considering defendant's lengthy criminal record, the nature of the crimes that

are the subject of his previous convictions, the brutality of the current crime,

and the other factors considered by the trial court, we cannot conclude the court's

application of the sentencing guidelines to the facts of this case makes the

sentence so clearly unreasonable as to shock the judicial conscience.

      Affirmed.




                                                                           A-2625-15T4
                                       18
