                        NOT FOR PUBLICATION WITHOUT THE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-2826-14T4

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

SAINT H. MERILAN a/k/a,
SAINT HILAIRE MERILAN,
SAINT H. MERIALN, SAINT
MERILAN, JASON WILLIAMS,

     Defendant-Appellant.
_______________________________

              Submitted February 9, 2017 - Decided April 24, 2017

              Before Judges Lihotz and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Indictment No. 12-
              12-0913.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Daniel S. Rockoff, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Grace H. Park, Acting Union County Prosecutor,
              attorney for respondent (Meredith L. Balo,
              Special    Deputy   Attorney    General/Acting
              Assistant Prosecutor, on the brief).

PER CURIAM
     Tried by a jury, defendant Saint H. Merilan was convicted of

second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a

lesser included offense to the charged offense of aggravated

manslaughter (count one); third-degree possession of a knife for

an unlawful purpose (count two), N.J.S.A. 2C:39-4D; and fourth-

degree unlawful possession of a knife (count three), N.J.S.A.

2C:39-5D.    Defendant was acquitted of aggravated assault (count

four).     Following merger, the trial judge imposed a nine-year

sentence, subject to the eighty-five percent parole ineligibility

period imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2,

and three years of parole supervision upon release.

     Defendant appeals from the October 30, 2014 judgment of

conviction and imposed sentence. Following review of the arguments

in light of the record and applicable law, we affirm.

                                       I.

     The    State   presented    the        following   evidence    at    trial.

Defendant, having spent the day with his daughter, waited for

Janet,1 the child's mother, to return home from work.              As the child

and defendant sat in his car, Janet, her infant son, her partner,

and his sister pulled up and parked facing defendant's car, parked

in front of her apartment.      The partner approached defendant's car


1    We have used pseudonyms for the witnesses to protect their
privacy.

                                       2                                 A-2826-14T4
and made a comment to defendant that angered him; defendant exited

his vehicle. Janet did not see how the fight started, but observed

the two men fighting, with her partner "towering" over defendant.

Janet related her unsuccessful attempts to separate the men, by

swinging a black "stick-shaped" object she grabbed from a nearby

trashcan.    During these attempts, she struck both defendant and

her partner.

     While   Janet   continued   efforts   to    separate   the   men,   she

realized she was stabbed.    She then saw her partner collapse and

observed defendant holding a knife, which he dropped.                 Janet

realized her partner had been repeatedly stabbed and grabbed the

knife.   She ran clutching the knife and defendant chased her.

Defendant trapped Janet against another parked vehicle, yelling,

"let go of the knife."    Defendant tried to wrench the knife from

Janet's hand.    In the process, Janet's finger was cut, but she

would not release the knife.

     Janet's partner's sister, who remained in Janet's car also

testified.   She maintained defendant was the aggressor, she saw a

knife in defendant's hand, saw blood on her brother's shirt and

ran from the scene in fear.       She also identified the object in

Janet's hand as "a little piece of wood."

     Defendant's daughter testified.            She recalled the events

occurring two years earlier, when she was seven.            She explained

                                   3                                A-2826-14T4
Janet's partner slowly approached defendant's car holding a "black

stick" and banged on her father's car window.        She replied "no"

when asked if Janet's partner punched her father in the face and

said she did not remember telling police Janet's partner punched

her   father.    On   cross-examination,    the   child   reviewed   her

statement, given to police on the day of the altercation.            The

statement recorded: "when my mom got home her boyfriend got out

of the car with a stick and then he hit my dad."            When asked

whether the child told this to the detective conducting the

interview after the fight, the child said, "well, I don't remember.

That's why I said I didn't see it."        After additional questions

regarding the statement, the child testified:         "that's what it

said on the paper, but . . . I didn't remember that - - that I

said that."

      Cross-examination continued and the child was asked whether

Janet's partner "was the first person who threw the punch at your

father," to which the child replied "I don't remember having told

you that."    The child agreed, however, when Janet's partner threw

his first punch, defendant was seated in his car and then exited.

Redirect elicited this testimony:

           [WITNESS]: I remember that [Janet's partner]
           got out of the car, he went to my dad's car
           and he banged on the window. And then he --
           when -- my dad put the window down he asked
           him a question.

                                  4                             A-2826-14T4
                 [PROSECUTOR]: Okay. And did he hit your
            dad? Did you see your dad hit him or him hit
            your dad while your dad was still in the car?
            Do you remember any of that?

                 . . . .

            A:   No.

                 Q:   And what do you remember seeing
            after you saw [Janet's partner] banged on your
            dad's window?

            A:   He – my dad put down the window, he asked
            him – a que –

                 Q:     Okay don't say what they said.

            A:   He asked him a question. And then – and
            then my dad got mad, so he got out of the car
            and then that's when they started fighting.

     After Janet's partner lay on the ground, the child approached

her parents.     Defendant instructed her to get in his car and he

drove to the Elizabeth police station, where he was questioned and

detained.

     Janet cradled her partner's head, attempted to stop the

bleeding, and called 9-1-1.       Police responded to the apartment,

where they found Janet and her unresponsive partner.

     Detectives collected the knife, blood stained clothing and a

black metal rod.      At the station, police photographed defendant's

body and observed cuts on his arms and hands, which did not appear

serious.


                                    5                         A-2826-14T4
     The county medical examiner reported Janet's partner had five

stab wounds: two on the left side of his chest, one to the back

of his head, one on the left side of his back, and one to the

chest that pierced his heart.         She described the length and size

of each wound, noting the last was the only fatal wound.

     Defendant took the stand in his defense.         He testified he was

in his car waiting for Janet when a man approached the vehicle and

punched him in the face, through the open window.               Defendant was

in shock and grabbed his pocketknife, intending to scare the man.

When he exited his car, he was assaulted by Janet, who struck him

in the back of the head "with a tire iron," as well as her partner,

who repeatedly punched him.            Janet and her partner cornered

defendant against his car: one in front of him and one behind; two

other men flanked also him on each side.           Defendant explained he

needed to defend himself.       While he was being struck by members

of the group, he opened his knife and just started swinging, making

a stabbing motion.      The fight suddenly stopped, as Janet's partner

fell to the ground, and the two unidentified men "ran off."

Defendant dropped the knife, which Janet picked up and began

swinging toward him.      He grabbed his daughter and drove directly

to the police station, where he gave a statement.

     The   jury   did   not   find   defendant    guilty   of    first-degree

aggravated   manslaughter      or    aggravated   assault.        Rather,    it

                                       6                              A-2826-14T4
convicted defendant of the lesser-included offense of second-

degree reckless manslaughter and the weapons charges.

                              II.

    On appeal defendant argues:

         POINT I.
         [DEFENDANT]'S SELF-DEFENSE CLAIM WAS UNFAIRLY
         CIRCUMSCRIBED AT TRIAL.    (Partially Raised
         Below).

              (A) THE COURT TOLD THE JURY THAT THE
         SOLE    EYEWITNESS   STATEMENT   CONFIRMING
         [DEFENDANT]'S ACCOUNT OF BEING ATTACKED WAS
         NOT CREDIBLE.

              (B) THE        PROSECUTOR        ELICITED
         INADMISSIBLE    N.J.R.E.     404(B)    HEARSAY
         SUGGESTING DEFENDANT HAD A HISTORY OF STARTING
         FIGHTS.

              (C) THE    JURY   CHARGE   ON   RECKLESS
         MANSLAUGHTER CONTRADICTED THE REQUIREMENT
         THAT THE STATE DISPROVE SELF-DEFENSE BEYOND A
         REASONABLE DOUBT.

              (D) CONCLUSION: BECAUSE THESE THREE
         ERRORS    INDIVIDUALLY    AND    CUMULATIVELY
         PREJUDICED MERILAN'S SELF-DEFENSE CLAIM, A NEW
         TRIAL IS REQUIRED.

         POINT II.
         BECAUSE THE COURT IMPOSED A SENTENCE AT THE
         HIGH END OF THE SECOND-DEGREE RANGE ONLY AFTER
         (A) FINDING IMPROPER AGGRAVATING ACTORS, AND
         (B) FAILING TO FIND CRITICAL MITIGATING
         FACTORS,   A   REMAND  FOR   RESENTENCING   IS
         REQUIRED.

              (A) THE COURT INAPPROPRIATELY RELIED ON
         AGGRAVATING FACTORS (1), (2), (3), AND (9) TO
         JUSTIFY IMPOSITION OF A NERA SENTENCE AT THE
         HIGH END OF THE SECOND-DEGREE RANGE.

                               7                          A-2826-14T4
          (i) The    Court    Erred    by
     Finding Aggravating Factor (1).

          (ii) The   Court    Erred    by
     Finding Aggravating Factor (2).

         (iii) The   Court    Erred    by
     Finding Aggravating Factor (3).

          (iv) Aggravating Factor      (9)
     Warranted Minimal Weight Only.

     (B) THE COURT IMPOSED A NERA SENTENCE AT
THE HIGH END OF THE SECOND-DEGREE RANGE ONLY
AFTER FAILING TO FIND MITIGATING FACTORS (2),
(3), (4), (8), (9), AND (12).

          (i) Because [Defendant] was a
     First-Time Offender Responding to
     an Unprovoked Attack, the Court
     Erred by not Finding Mitigating
     Factors (2), (3), and (4).

          (ii) Because [Defendant] was a
     First-Time Offender who Expressed
     Remorse After Responding to an
     Unprovoked Attack, the Court Erred
     by not Finding Mitigating Factors
     (8) and (9).

         (iii) Because      [Defendant]
     Distinguished Himself from other
     Defendants by Immediately Driving
     to the Police Station, Turning
     Himself in, and giving a Statement
     to the Police, the Court Erred by
     Failing to Find Mitigating Factor
     (12).

     (C) CONCLUSION: BECAUSE THE SENTENCING
COURT ERRED IN ASSESSING BOTH AGGRAVATING AND
MITIGATING FACTORS, THIS COURT MUST REMAND FOR
RESENTENCING.


                      8                          A-2826-14T4
We consider these arguments.

                                       A.

      First, defendant identifies three errors, which he maintains

"unfairly       circumscribed"   his   assertion      of    self-defense     and

deprived him of a fair trial.          Arguing Janet's partner initiated

an unprovoked assault and Janet joined in the attack, he contends

he   was   justified    in    defending     himself   with    a   pocketknife.

Defendant believes evidence showing he was protecting himself

against    an    unprovoked   attack   "was   thus    the    lynchpin   of   his

defense," requiring acquittal.

      Defendant argues the first error was the judge's comment

during jury instruction regarding the child's statement to police.

Defendant states the judge's comment erroneously "cast doubt on

the sole eyewitness statement confirming [defendant]'s testimony"

he was the victim of an unprovoked attack.

      Discussing the witness's testimony, the judge remarked:

            In regard to the testimony of [defendant's
            child], on cross-examination inconsistencies
            were shown between prior statements and those
            given on the stand. The witness gave reasons
            therefore, saying that such prior statements
            or omissions were inaccurate.      Among the
            reasons given that I recall was poor
            recollection at the time.

                 The extent to which such inconsistencies
            or omissions reflect the truth is for you to
            determine.   Consider their materiality and
            relationship to her entire testimony and all

                                       9                                A-2826-14T4
             the evidence in the case, when, where, and the
             circumstances under which they were said or
             omitted and whether the reasons she gave you
             therefore appear to be to you believable and
             logical.

Other instructions explained the jury may consider the earlier

statements "as proof of the fact," to which the statement applied.

     "Clear and correct jury charges are essential for a fair

trial."     State v. Cook, 300 N.J. Super. 476, 488 (App. Div. 1996)

(citation omitted).     "[T]he failure of a trial court to properly

charge a jury is grounds for reversal, even though defense counsel

failed to object at the appropriate time."        State v. Harrington,

310 N.J. Super. 272, 277 (App. Div. 1998).         "So critical is the

need for accuracy that erroneous instructions on material points

are presumed to be reversible error."          Ibid. (quoting State v.

Martin, 119 N.J. 2, 15 (1990)).

     Defendant did not raise an objection to the jury instructions

at trial.    Therefore, we consider whether the judge's comment rose

to plain error.       R. 2:10-2.        More specifically, whether the

challenged instruction is "of such a nature as to have been clearly

capable of producing an unjust result."          State v. Garrison, __

N.J. __ (2017) (slip op. at 6) (quoting R. 2:10-2).      "For an error

to require reversal, there must be 'some degree of possibility

that [the error] led to an unjust result.         The possibility must

be real, one sufficient to raise a reasonable doubt as to whether

                                   10                          A-2826-14T4
[it] led the jury to a verdict that it otherwise might not have

reached.'"     State v. Galicia, 210 N.J. 364, 388 (2012) (quoting

State v. Lazo, 209 N.J. 9, 26 (2012)).

     Importantly, in our review, we must consider the jury charge

as a whole, and examine it in its entirety.                  State v. Delibero,

149 N.J. 90, 106-07 (1997).                Further, the charge provisions,

including the alleged error, should be assessed "in the context

of the evidence."       State v. Robinson, 165 N.J. 32, 47 (2000).

     The      judge's    comment      suggesting       the    reason   for   the

inconsistent statements by defendant's child resulted from "poor

recollection," was accurate, as the defendant's child stated at

trial she could not remember if she told police Janet's partner

threw   the   first     punch   or   who     started   the   fight.    She   also

acknowledged her prior statement to police relating these events.

     For purposes of our opinion, we will assume the judge's

statement is ambiguous because it might suggest the judge recalled

the child believed her police statement was the result of "poor

recollection at the time."           Following our review of the arguments

in light of the record, we conclude the comment did not deprive

defendant of a fair trial, when considered in the context of the

total instruction given to the jury.




                                        11                              A-2826-14T4
     Importantly,   the   judge   repeatedly   informed   the   jury   its

recollection of the evidence controlled and it was the sole

factfinder, stating:

               You and you alone are the sole and
          exclusive judges of the evidence, of the
          credibility of the various witnesses, and the
          weight to be attached to the testimony of each
          witness.

               Regardless of what counsel said or I may
          have said recalling the evidence in this case,
          it is your recollection of the evidence that
          should guide you as judges of the facts.
          Arguments, statements, remarks, openings, and
          summations of counsel are not evidence and
          must not be treated as evidence.

               Although the attorneys may point out what
          they think important in this case, you must
          rely solely upon your understanding and
          recollection of the evidence that was admitted
          during the trial.

     Moreover, the now challenged comment did not misconstrue a

legal   instruction;   rather,    it   was   designed   to   provide    an

illustration of inconsistencies between two witness statements.

In the same charge on the same subject, the judge also included a

much clearer example and told the jurors to consider all evidence

and discern whether the prior statement was correct or whether the

different trial statement was correct.

     Finally, the child's testimony was read back to the jury at

its request, making her statements fresh in each juror's mind when



                                  12                             A-2826-14T4
deliberations resumed.    In this light, we reject defendant's

argument of plain error warranting reversal.

     Defendant also contends the judge erred in denying a mistrial

after the child responded to a question by noting Janet's partner

asked defendant why he had punched him.     We reject this argument

as lacking merit.   R. 2:11-3(e)(2).

     Upon defendant's objection, the judge struck the statement

and issued a swift, clear, strong instruction for the jury, see

State v. Vallejo, 198 N.J. 122, 134-35 (2009), ordering jurors to

disregard the witness's inadvertent response to the prosecutor's

inartful question and firmly told the jury not consider it in

deliberations, "in any manner, size, shape, or form during the

course of this trial."   We find no abuse of discretion in denying

the resultant motion for mistrial.     "[W]e trust juries to follow

instructions."   State v. Short, 131 N.J. 47, 65 (1993); see also

State v. Winter, 96 N.J. 640, 649 (1984) (holding that jury is

capable of following a curative instruction to ignore prejudicial

matter).   We have no reason to conclude the jury did not do so in

this case.

     Finally, defendant argues the self-defense instructions

           misleadingly suggested that the State did not
           need to disprove self-defense beyond a
           reasonable doubt in order for the jury to
           convict   [defendant]  .   .  .   .     These
           instructions were misleading because they

                                13                          A-2826-14T4
          suggested the State only had to prove
          [defendant] violated the elements found in the
          specific criminal statutes . . . . But the
          State also had to prove beyond a reasonable
          doubt the absence of the justification defense
          . . . .

     The judge tailored his charge, guided by the Model Jury

Charges on reckless manslaughter and self-defense.         Defendant

agreed the charge was appropriate and raised no objection at trial.

We disagree with the suggestion that the charge as issued was

erroneous or confusing, and reject defendant's claim of plain

error.   We also reject as lacking merit defendant's claim of

cumulative error.   R. 2-11:3(e)(2).

                                 B.

     Defendant raises several arguments challenging the imposed

sentence of nine years.    We review sentencing decisions for an

abuse of discretion.   State v. Blackmon, 202 N.J. 283, 297 (2010).

          Appellate     courts     review     sentencing
          determinations    in   accordance     with   a
          deferential standard.     The reviewing court
          must not substitute its judgment for that of
          the sentencing court. State v. O'Donnell, 117
          N.J. 210, 215 (1989).     The appellate court
          must affirm the 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 [the] case makes the sentence
          clearly unreasonable so as to shock the
          judicial conscience." State v. Roth, 95 N.J.
          334, 364-65 (1984).

                                14                           A-2826-14T4
             [State v. Fuentes, 217 N.J. 57, 70 (2014).]

When   the   trial   judge   properly      identifies   and    balances   the

aggravating    and   mitigating   factors,      which   are   supported     by

sufficient credible evidence in the record, we will affirm the

sentence.     State v. Cassady, 198 N.J. 165, 180-81 (2009).

       Here, the judge found aggravating factors one (the act was

committed in a heinous, cruel, or depraved manner), two (the

gravity and seriousness of harm inflicted on the victim, including

whether defendant knew or reasonably should have known the victim

was particularly vulnerable or incapable of resistance), three

(risk defendant will re-offend), and nine (need for deterrence).

N.J.S.A. 2C:44-1(a)(1), (2), (3), (9).            The judge also applied

mitigating    factors   five   (the    victim   induced   or    facilitated

defendant's conduct) and seven (defendant has no history of prior

delinquency or criminal activity).          N.J.S.A. 2C:44-1(b)(5), (7).

       Defendant argues the imposed sentence was excessive because

the trial judge: (a) improperly applied aggravating factors one,

two, and three; (b) failed to apply applicable mitigating factors

two (defendant did not contemplate his conduct would cause serious

harm), nine (defendant's character and attitude show it is unlikely

he will commit another offense), and twelve (defendant cooperated

with law enforcement), see N.J.S.A. 2C:44-1(b)(2), (9), (12),


                                      15                             A-2826-14T4
although    requested     by   defendant;    and   (c)   did    not    consider

application of mitigating factors three (defendant acted under

strong provocation), four (substantial grounds tending to excuse

or justify defendant's conduct, though failing to establish a

defense)    and   eight   (defendant's      conduct    was     the    result    of

circumstances unlikely to recur).            See N.J.S.A. 2C:44-1(b)(3),

(4), (8).    We consider each of these arguments.

                                       1.

    Defendant argues aggravating factor one was not applicable.

The judge applied the factor because defendant chose to engage

Janet's partner, instead of driving away.            Defendant asserts this

conduct    goes   to   recklessness;    therefore,     the   judge's    finding

double counted an element of the offense.             We disagree.

    In Fuentes, the Supreme Court recently discussed this exact

issue, stating:

            When applying this factor, "the sentencing
            court reviews the severity of the defendant's
            crime, 'the single most important factor in
            the sentencing process,' assessing the degree
            to which defendant's conduct has threatened
            the safety of its direct victims and the
            public." State v. Lawless, 214 N.J. 594, 609
            (2013) (quoting [State v. ]Hodge, 95 N.J.
            [369,] 379 [(1984)]). As the Court has held,
            "[t]he paramount reason we focus on the
            severity of the crime is to assure the
            protection of the public and the deterrence
            of others. The higher the degree of the crime,
            the greater the public need for protection and


                                    16                                   A-2826-14T4
the more need for deterrence."      State   v.
Megargel, 143 N.J. 484, 500 (1996).

     When it assesses whether a defendant's
conduct was especially "heinous, cruel, or
depraved,"    a   sentencing    court    must
scrupulously avoid "double-counting" facts
that establish the elements of the relevant
offense. See State v. Yarbough, 100 N.J. 627,
645 (1985); [State v. ]Kromphold, 162 N.J.
[345,] 352 [(2000)]. As this Court observed:

    [In Yarbough], we recognized that
    facts that established elements of
    a crime for which a defendant is
    being sentenced should not be
    considered      as      aggravating
    circumstances in determining that
    sentence. We reasoned that the
    Legislature had already considered
    the elements of an offense in the
    gradation of a crime. If we held
    otherwise, every offense arguably
    would implicate aggravating factors
    merely by its commission, thereby
    eroding the basis for the gradation
    of offenses and the distinction
    between elements and aggravating
    circumstances. In the same manner,
    double-counting of elements of the
    offenses as aggravating factors
    would be likely to interfere with
    the Code's dedication to uniformity
    in sentencing.

    [Kromphold, supra, 162 N.J. at 353
    (internal citation omitted).]

     In appropriate cases, a sentencing court
may justify the application of aggravating
factor one, without double-counting, by
reference to the extraordinary brutality
involved in an offense.      See [State v.]
O'Donnell, 117 N.J. [210,] 217 [(1989)]. In
O'Donnell, supra, the Court held that "cruel"

                     17                          A-2826-14T4
          conduct may give rise to an aggravating factor
          in   a  manslaughter   sentencing   when   the
          defendant intended "'to inflict pain, harm and
          suffering — in addition to intending death.'"
          Id. at 217-18 (quoting State v. Ramseur, 106
          N.J. 123, 208 (1987)); see also State v. Soto,
          340 N.J. Super. 47, 54-55, 71-72 (App. Div.),
          certif. denied, 170 N.J. 209 (2001) (affirming
          application of aggravating factor one when
          trial   court   noted   protracted   suffering
          inflicted and brutal killing of victim); State
          v. Mara, 253 N.J. Super. 204, 214 (App. Div.
          1992) (affirming sentencing court's finding
          that aggravating factor one applied when, in
          aggravated assault case, "the serious injuries
          were far in excess of that required to
          satisfy" statutory elements).    A sentencing
          court may consider "aggravating facts showing
          that [a] defendant's behavior extended to the
          extreme reaches of the prohibited behavior."
          State v. Henry, 418 N.J. Super. 481, 493 (Law
          Div. 2010) (citing State v. Taylor, 226 N.J.
          Super. 441, 453 (App. Div. 1988)).

          [Fuentes, supra, 217 N.J. at 74-75.]

     Here, the judge's comment, suggesting defendant could have

driven away but instead exited his vehicle secreting a knife,

reflects the manner in which defendant acted and the cruel nature

of the killing.    We do not agree the trial judge abused his

discretion in applying this factor.   See State v. Bowens, 108 N.J.

622, 639 (1987) (focusing on the "brutal, senseless nature of [a]

stabbing").   We also note the judge lessened the weight of this

factor, finding it was "offset" by mitigating factor five, noting

the victim initiated the altercation.



                               18                           A-2826-14T4
     In applying aggravating factor two, the judge recognized the

seriousness of the harm that resulted from defendant's actions.

He found defendant escalated a fistfight by employing a knife.

Thus, the victim was vulnerable because he "was in no [way]

prepared to stave off a knife fight, so obviously when a knife is

brought to a dispute there is some vulnerability for the victim."

Defendant's claim of double-counting characterizing this finding

as representing the "use of deadly force" is rejected.

     "[Aggravating factor two] compels 'a pragmatic assessment of

the totality of harm inflicted by the offender on the victim.'"

State v. Anthony, 443 N.J. Super. 553, 575-76 (App. Div. 2016)

(quoting Lawless, supra, 214 N.J. at 610.)              "It focuses on the

setting of the offense itself with particular attention to any

factors   that   rendered      the   victim   vulnerable   or    incapable      of

resistance at the time of the crime." Ibid. (quoting Lawless,

supra, 214 N.J. at 611).         In State v. Faucette, 439 N.J. Super.

241 (App. Div. 2015), we affirmed the application of aggravating

factor two when the defendant was aware his co-defendant was armed

with a gun as he went to rob an unsuspecting gas station attendant,

reciting the trial judge's stated findings: "The victim was just

plain vulnerable and had no chance whatsoever. . . ."             Id. at 272.

     In   our    view,   the    judge's     findings   reflect   those     facts

identified in Faucette.        As the trial judge stated, defendant used

                                       19                                A-2826-14T4
a knife in a fistfight, making the unsuspecting victim vulnerable.

Additionally, the judge did not accord heavy weight to this

finding.

      Next, applying aggravating factor three, the judge cited

defendant's prior alcohol use, lack of stable employment, and

conduct, including commission of domestic violence and a municipal

court offense, represented a deviation from the standards of

society, from which he concluded defendant was likely to engage

in future criminal conduct.          However, defendant argues this was

his first criminal offense and the evidence cited was insufficient

to support the finding he will reoffend.

      Defendant's contention that aggravating factor three cannot

coexist with mitigating factor seven, is not correct.               See State

v.   Case,   220   N.J.   49,   67   (2014)   ([W]e   do   not   presume   that

aggravating factor three cannot coexist with mitigating factor

seven . . . ."); State v. Varona, 242 N.J. Super. 474, 491 (App.

Div.), certif. denied, 122 N.J. 386 (1990) (finding aggravating

factor three despite lack of prior record).            The issue is whether

the cited factual findings are grounded in competent, credible

evidence in the record.         See Roth, supra, 95 N.J. at 363.

      We reject the generalities of social alcohol use, cited by

the judge, as support for the likelihood of re-offense.             Also, the

pre-sentence report identifies defendant was employed at the time

                                      20                              A-2826-14T4
this offense occurred and the judge did not explain why he found

defendant's employment was unstable.

     That said, the judge did mention three other facts bearing

on application of aggravating factor three.                   First, he noted

defendant   had    been    involved    in     domestic      violence    matters.

Documents   show   final   restraining       orders   were    granted    against

defendant for assault in January 2007 and again in March 2007.

Further, matters tried in municipal court included charges for

disturbing the peace and shoplifting in 2006 and downgraded charges

of resisting arrest to improper behavior in 2009, both of which

resulted in suspended jail sentences.           The judge stated defendant

was not deterred by these interactions with the justice system and

diversionary   programs.       He     also    found   defendant's       conduct,

although not criminal, showed a "deviation or . . . violation of

the standard mores of society" tending to suggest he will reoffend.

Finally,    when   discussing       deterrence,       the    judge     mentioned

defendant's lack of appreciation for the gravity of his conduct

and his insistence the killing was justified.                This finding also

bears on likelihood of re-offense.             In sum, adequate evidence

supporting application of aggravating factor three was presented.

     Defendant's suggestion the judge erred because application

of aggravating factor nine (deterrence) deserved little weight is

rejected.   See R. 2:11-3(e)(2).           The findings regarding specific

                                      21                                 A-2826-14T4
and general deterrence were adequately stated and will not be

disturbed.

     We    turn   to   the    trial   judge's   rejection     of   requested

application of mitigating factors.          Defendant correctly asserts

mitigating factors that are called to the court's attention should

not be ignored, Blackmon, supra, 202 N.J. at 297, "and when 'amply

based in the record . . . they must be found.'"            Case, supra, 220

N.J. 49, 64 (quoting State v. Dalziel, 182 N.J. 494, 504 (2005)).

During the deliberative process, a judge, must state the basis for

rejecting a claimed mitigating factor.          Ibid.

     The judge fully rejected application of mitigating factor

two, noting defendant could not arm himself with a deadly weapon

and believe serious harm would not result. We conclude defendant's

arguments to the contrary are specious.

     We also conclude the judge's reliance on defendant's past

conduct,     including    domestic     violence,    shoplifting,      and     a

downgraded resisting arrest offense, was insufficient to deter him

from engaging in future criminal conduct.               These facts reflect

supporting the rejection of mitigating factor nine.

     Defendant     also      argues   the   judge       erroneously    denied

application of mitigating factor twelve.                Defendant urges he

cooperated with police by driving to the stationhouse immediately

after the stabbing and voluntarily gave a statement.           In rejecting

                                      22                              A-2826-14T4
application of this factor, the judge found defendant's motives

were not to cooperate, but to give his version of the incident,

asserting he was a victim of an unprovoked attack, before police

spoke to Janet, who he knew had called 9-1-1.            The judge also

noted defendant falsely told police there were two other men

involved with the assault, in an attempt to justify his fear for

his life.    In this light, we do not agree the judge abused his

discretion in denying application of factor twelve.

     For the first time on appeal, defendant asserts the judge

should have applied mitigating factor three, defendant acted under

strong provocation.      We disagree.      The facts show defendant was

confronted by Janet's partner, who along with Janet, struck him

in the course of the altercation.        Defendant's testimony asserting

his life was threatened requiring he act in self-defense was

rejected by the jury and belied by the evidence, including the

testimony    of   the   arresting   officer   along   with   photographic

evidence showing defendant suffered mere minor injuries.         Further,

no support existed for defendant's claim two additional attackers

were involved, but fled.

     We reject as unfounded defendant's claim to apply mitigating

factor four, suggesting substantial grounds existed tending to

excuse or justify defendant's conduct, though failing to establish

a defense.   The State appropriately refuted this request stating,

                                    23                            A-2826-14T4
"a strike to the face does not justify a stab to the heart."

Moreover, the claim of self-defense was rejected by the jury, such

that the killing was not found justified.          See State v. Kelly, 97

N.J. 178, 204 n.12 (1984) ("[S]elf-defense based on a reasonable

belief in the need for deadly force would constitute justification

— a complete defense — to the charge of reckless manslaughter.");

State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997) ("Self-

defense is a complete defense not only to murder but also to

manslaughter . . . .").

     Defendant further maintains for the first time, his conduct

was the result of circumstances unlikely to recur, warranting

application of mitigating factor eight.             He argues the facts

surrounding    the   assault,   including   attacks   by    Janet   and   her

partner, were unusual, and therefore, unlikely to reoccur.            We are

unpersuaded.     The trial judge noted defendant's prior domestic

violence and municipal court charges involved altercations, which

we note are reflective of an inability to walk away from such

physical encounters, when challenged.

     The   judge     properly    applied     and    balanced    applicable

aggravating and mitigating factors.         The term imposed fell within

the range applicable to defendant's conviction.            Consequently, we

determine there is no basis to interfere with this sentence.

     Affirmed.

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