                                     RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-5042-16T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

LUIS R. PACHECO, a/k/a
JOSE M. RIVERA, LUIS
ROSARIO, and LUIS
ROSARIO PACHECO,

     Defendant-Appellant.
_________________________

                   Submitted March 20, 2019 – Decided April 11, 2019

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 15-03-0698.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Matthew E.
                   Hanley, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Luis Pacheco appeals from an August 1, 2017 amended

judgment of conviction for attempted murder, robbery, endangering the welfare

of a child, and criminal restraint. He argues for the first time on appeal that the

judge erroneously failed to charge lesser-included offenses and the prosecutor

argued improperly in summation. The judge sentenced defendant to forty years

in prison subject to the eighty-five percent parole disqualifier required by the

No Early Release Act, N.J.S.A. 2C:43-7.2, for attempted murder, and a

consecutive five-year custodial sentence with a two and one-half year parole

disqualifier for endangering the welfare of a child. We affirm, but remand for

resentencing.

      A jury convicted defendant of first-degree attempted murder, N.J.S.A.

2C:5-1 and 2C:11-3(a); first-degree robbery, N.J.S.A. 2C:15(a)(1); third-degree

terroristic threats, N.J.S.A. 2C:12-3(b); third-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4(a); and third-degree criminal restraint, N.J.S.A.

2C:13-2(a). He was acquitted of first-degree kidnapping.




                                                                          A-5042-16T4
                                        2
        The record reveals the following facts. On August 22, 2014, H.D.1 was

working the 2:00 p.m. to 8:00 p.m. shift at a gold-buying and jewelry store in

Newark. She was also babysitting her grandson, who was nearly two-years-old.

        Sometime before 7:00 p.m., as H.D. turned around to pick up her

grandson, she was pushed from the back "with a lot of force" onto the floor.

Once on the ground, a man grabbed H.D. by the shirt and hair and dragged her

further into the second room of the store. He then struck her twice with a closed

fist on the left side of her face. H.D. thought she was "going to be killed" and

started screaming for help, prompting defendant to drag H.D. by her hair into

the third room of the store.

        In the third room, H.D. could not see her grandson, but heard him

screaming. Defendant, still holding H.D. by her hair, dropped her on the floor

in the middle of the room and then grabbed H.D. by the neck with his hands,

using "his whole strength." H.D. tried to remove defendant's hands from her

neck, but was unsuccessful. She could also no longer call for help because she

could not breathe properly.

        While defendant choked H.D., he told her "to die, to die already." When

H.D. did not die, defendant removed his hands from her neck and started


1
    We use initials to protect the privacy of the victim.
                                                                        A-5042-16T4
                                          3
punching her again "very hard" with a closed fist on both sides of her face. After

striking H.D., defendant began choking her again with "[a] lot of strength" to

the point that she had difficulty breathing.

      H.D. then grabbed her grandson's "metal toy car" from the floor and hit

defendant in the face with it.      Defendant continued to choke H.D..           H.D.

struggled with defendant, who then stood up and kicked her on the left side of

the face. At that point, H.D. saw her screaming and crying grandson standing

in the doorway.

      After he kicked H.D., defendant bent over, grabbed her with his hands by

the neck, and said: "Die, die." Defendant then stood behind H.D., and put her

in a chokehold. H.D. struggled, telling defendant: "Please don't kill me. Look

at . . . my boy that is right there . . . . Take anything you want, but don't kill me.

I have children."

      Defendant stopped choking H.D. and said: "I'm going to let go of you . . .

[b]ut do not move because I will kill you." After defendant walked into another

room, H.D. grabbed her grandson to stop him from crying. Defendant reentered

the third room and said, "I told you not to move or . . . I'll kill you." Defendant

then took H.D.'s chain, bracelets and wedding band before walking into the other

room again, where he stole $500 from a cabinet drawer.


                                                                             A-5042-16T4
                                          4
       A Newark officer arrived at the store at 7:20 p.m. He saw H.D., who

looked "badly beaten."    She provided a description of defendant, who had

spoken to her in Spanish. H.D. was transported to the hospital, where she was

diagnosed with a broken rib, broken nose and "broken ear." She had bruising

and swelling on her face, eyes, and neck.

       At 7:40 p.m., Detectives Debbie Teixeira and Gerardo Rodriguez arrived

at the store. The detectives walked through the store, directed another detective

to photograph the crime scene, and drove to the hospital to speak with H.D.

H.D. told the detectives that during the attack she struck defendant with a toy

car and scratched him. The detectives did not take fingernail scrapings from

H.D.

       Detective Rodriguez found the toy car in the third room and discovered a

glass pipe located six inches from the toy car. No pictures were taken of these

two items at the crime scene. Defendant's DNA was found on the pipe.

       Detective Rodriguez did not see any security cameras and was not told

about any cameras located outside of the store. Detective Teixeira observed

City of Newark cameras on the corner; however, no one was available from the

City to review the cameras. The police never recovered any footage from the

cameras.


                                                                        A-5042-16T4
                                       5
      Six days later, on August 28, 2014, H.D. encountered defendant's brother,

Jose Pacheco, while she was working at the store. Jose saw H.D.'s injuries and

began to cry. He gave a statement to the police that defendant attacked H.D.

and robbed the store on August 22, 2014. Jose told officers that he was home

on that date when defendant arrived "in a desperate state" with money and

jewelry in his possession and a scratched face. Defendant asked Jose "to get

him a taxi, because he was leaving because he had . . . committed a . . . robbery

or something like that."

       Defendant raises the following issues on appeal:

            POINT I:     THE ATTEMPTED MURDER
            CONVICTION MUST BE REVERSED BECAUSE
            THE JURY WAS NOT INSTRUCTED ON ANY
            LESSER-INCLUDED OFFENSES. (NOT RAISED
            BELOW)

            POINT II: ASKING THE JURY TO NOT "HOLD
            THE VICTIM ACCOUNTABLE" FOR THE POLICE
            OFFICERS' FAILURE TO FULLY INVESTIGATE
            WAS PROSECUTORIAL MISCONDUCT THAT
            DEPRIVED DEFENDANT OF HIS RIGHT TO A
            FAIR TRIAL. (NOT RAISED BELOW)

            POINT III: DEFENDANT'S FORTY-FIVE YEAR
            SENTENCE IS MANIFESTLY EXCESSIVE.

                                     I.
      Defendant contends the trial court committed plain error in failing to

charge second and third-degree aggravated assault as lesser-included offenses

                                                                        A-5042-16T4
                                       6
of attempted murder. Based on the record and applicable case law, the trial court

correctly instructed the jury.

      Generally, "a trial court has an independent obligation to instruct on

lesser-included charges when the facts adduced at trial clearly indicate that a

jury could convict on the lesser while acquitting on the greater offense." State

v. Jenkins, 178 N.J . 347, 361 (2004). However, "courts are required to instruct

the jury on lesser-included offenses only if counsel requests such a charge and

there is a rational basis in the record for doing so or, in the absence of a request,

if the record clearly indicates a charge is warranted." State v. Denofa, 187 N.J.

24, 42 (2006); see also State v. Thomas, 187 N.J. 119, 131-32 (2006)

(determining the court must analyze "whether the evidence presents a rational

basis on which the jury could acquit the defendant of the greater charge and

convict the defendant of the lesser") (quoting State v. Brent, 137 N.J. 107, 117

(1994)).

      "[W]hen the defendant fails to ask for a charge on lesser-included

offenses, the court is not obliged to sift meticulously through the record in search

of any combination of facts supporting a lesser-included charge." Denofa, 187

N.J. at 42.   The court is only obligated to give a lesser-included offense

instruction sua sponte "if the record clearly indicates a lesser-included charge -


                                                                            A-5042-16T4
                                         7
- that is, if the evidence is jumping off the page . . . ." Ibid.; see also Thomas,

187 N.J. at 132 (finding that a "court ha[s] no duty to instruct the jury sua sponte

on [an included offense charge if] the evidence [does] not clearly indicate or

warrant such a charge") (alterations in original) (quoting State v. Savage, 172

N.J. 374, 401 (2002)). Because defendant did not raise the issue during trial, we

review for plain error. See Thomas, 187 N.J. at 133; R. 1:7-2.

      While aggravated assault is a lesser-included offense of attempted murder,

State v. Russo, 243 N.J. Super. 383, 411 (App. Div. 1990), the record lacks a

"clear indicat[ion]" warranting instruction on second or third-degree aggravated

assault, see Denofa, 187 N.J. at 42.

      A defendant "is guilty of attempted murder only if he . . . actually intended

the result, namely, death, to occur." State v. Rhett, 127 N.J. 3, 7 (1992). Here,

defendant's statements that he wanted the victim to die, coupled with testimony

that he attempted to strangle her with full force, was sufficient for the trial court

to limit its charge to attempted murder because evidence of aggravated assault

did not "jump[ ] off the page." See Denofa, 187 N.J. at 42. H.D. testified that

defendant told her "to die, to die already" and "[d]ie, die," while choking her

twice to the point that she had difficulty breathing. He also repeatedly punched

and kicked her. Defendant's words, combined with the prolonged period of


                                                                            A-5042-16T4
                                         8
intense choking, demonstrated defendant intended to kill H.D. during their

encounter. The trial court was not required to instruct the jury on aggravated

assault absent a request from defendant.

                                       II.

      During summation, defense counsel argued the Newark police did not use

proper investigation techniques, raising reasonable doubt about defendant's

guilt. In response, the prosecutor stated:

                  The police, they didn't do everything they should
            have done. That's no secret in this case, but ladies and
            gentlemen, I'm asking you not to hold the victim
            accountable for what the police did or didn't do in this
            case.

                  And here's the reason why: After hearing all the
            evidence this isn't a case about what the police did or
            didn't do. You don't need a video to find out who
            committed these heinous crimes. You don't need DNA
            scrapings off the victim's fingernails to find out who
            did these heinous crimes. And that's because the
            defendant, through his actions, did that for you. He
            identified himself. When he left that pipe behind with
            his DNA and when he confided in his brother that he
            was the one who robbed the victim on Broad Street on
            August 22, 2014.

Defense counsel did not object to these remarks.

      Defendant contends for the first time on appeal that the prosecutor's

remark during summation deprived defendant of his right to a fair trial. "The


                                                                       A-5042-16T4
                                        9
failure to object suggests that defense counsel did not believe the remarks were

prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).

Because defense counsel did not object to the prosecutor's remark in his

summation, we consider defendant's argument under the plain error standard of

review. State v. Daniels, 182 N.J. 80, 95 (2004). The plain error standard

requires us to determine whether the remark was improper and, if so, whether it

was "clearly capable of producing an unjust result." R. 2:10–2.

      "[P]rosecutors are afforded considerable leeway in their closing

arguments" and are "expected to make vigorous and forceful closing arguments

. . . ." State v. Smith, 167 N.J. 158, 177 (2004). A new trial will be required,

however, if the prosecutor's improper comment was "so egregious that it

deprived the defendant of a fair trial." Id. at 181 (quoting Frost, 158 N.J. at 83).

      When reviewing a prosecutor's summation, the court must examine

questionable comments "in the context of the entire trial." State v. Morton, 155

N.J. 383, 419 (1998). This necessarily includes statements made by the defense

counsel, such as their "opening salvo," and prosecutorial comments attempting

to "right the scale" in response. State v. Engel, 249 N.J. Super. 336, 379 (App.

Div. 1991) (quoting United States v. Young, 470 U.S. 1, 12-13 (1985)). To

reverse, the prosecutor's summation must have been "clearly and unmistakably


                                                                           A-5042-16T4
                                        10
improper," and must have "substantially prejudiced defendant's fundamental

right to have a jury fairly evaluate the merits of his defense." State v. Wakefield,

190 N.J. 397, 438 (2007) (quoting State v. Papasavvas, 163 N.J. 565, 625

(2000)).

      Defendant argues the prosecutor's statement was a "call to arms." It is

improper for a prosecutor to make a statement that is "nothing less than a call to

arms" because it promotes a sense of partisanship incompatible with the role of

the jury. State v. Goode, 278 N.J. Super. 85, 89 (App. Div. 1994) (quoting State

v. Holmes, 255 N.J. Super. 248, 251–52 (App. Div. 1992)). In Goode, the

prosecutor stated during his opening statement that jurors had the opportunity to

"make a difference" in their community by convicting the defendant. Ibid. In

summation, the prosecutor noted, "I said to you you're going to be able to make

a difference in your community. This is one situation where you can finally do

something and say yes, drugs exist. I hate them . . . But this time I can do

something. I can make a difference." Id. at 90. We determined the "repeated

improper comments, which ran as a thread through th[e] trial, from opening to

summation, r[o]se to the level of plain error . . . ." Id. at 92; see also State v.

Neal, 361 N.J. Super. 522, 537 (App. Div. 2003) (finding prosecutorial

misconduct where the prosecutor repeatedly "asked the jury to hold [the]


                                                                           A-5042-16T4
                                        11
defendant accountable for his betrayal of the children of Asbury Park"); State v.

Buscham, 360 N.J. Super. 346, 364–65 (App. Div. 2003) (criticizing

prosecutor's remarks that it was the duty of adults, including the jurors, to protect

the child victim).

      The prosecutor here made a single comment, in passing, responding to the

defense summation. It did not rise to the level of impropriety found in Goode,

Neal, or Buscham. The prosecutor's statement, while inappropriate, was

responsive to the defense argument. It was fleeting and without the capacity to

deprive defendant of a fair trial.

                                        III.

      During defendant's sentencing, the trial court first addressed the State's

motion to impose a discretionary extended term by reviewing defendant's prior

offenses.   At the time of the incident, defendant was serving a five-year

probationary sentence for fourth-degree resisting arrest and a five-year

probationary sentence for second-degree robbery. The trial court also stated

defendant was found guilty of robbery on two other occasions and burglary on

four other occasions between 2004 and 2013. Consequently, the trial court

granted the State's motion.




                                                                            A-5042-16T4
                                        12
      Next, the trial court analyzed aggravating and mitigating sentencing

factors, and did not find any mitigating factors. The court found aggravating

factors one, three, six, and nine. N.J.S.A. 2C:44–1(a)(1), (3), (6), (9).

      We review sentencing decisions for an abuse of discretion.            State v.

Blackmon, 202 N.J. 283, 297 (2010). We do "not substitute [our] judgment for

that of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). We must

reverse, however, if the sentencing guidelines were violated. Ibid.

      The trial court found aggravating factor one because of "This wasn't just

a robbery . . . [defendant] did it in front of this woman's grandchild who sat there

helpless." On appeal, defendant argues it was improper for the trial court to

consider the harm he caused to the young child because defendant was convicted

of third-degree endangering of a child. We agree the trial court improperly

"double-counted" when applying aggravating factor one.

      Aggravating factor one requires a court to consider "[t]he nature and

circumstances of the offense, and the role of the actor therein, including whether

or not it was committed in an especially heinous, cruel, or depraved manner . . .

." N.J.S.A. 2C:44–1(a)(1). When determining whether this factor applies, "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


                                                                            A-5042-16T4
                                        13
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, 378–79 (1984)). The court may consider "aggravating facts showing

that [a] defendant's behavior extended to the extreme reaches of the prohibited

behavior." Fuentes, 217 N.J. at 75 (alteration in original) (quoting State v.

Henry, 418 N.J. Super. 481, 493 (Law Div. 2010)).

         In determining whether a defendant's conduct was "'heinous, cruel, or

depraved,' a sentencing court must scrupulously avoid 'double-counting' facts

that establish the elements of the relevant offense." Id. at 74–75; see also State

v. Yarbough, 100 N.J. 627, 641 (1985). Double-counting occurs when the

"established elements of a crime for which a defendant is being sentenced . . .

[are] considered as aggravating circumstances in determining that sentence."

State v. Kromphold, 162 N.J. 345, 353 (2000).

         Defendant was convicted of third-degree endangering the welfare of a

child.     Under N.J.S.A. 2C:24-4(a)(2), abuse of a child consists of "the

performing of any indecent, immoral or unlawful act or deed in the presence of

the child that may tend to debauch or endanger or degrade the morals of the

child." In finding aggravating factor one applied to defendant, the trial court

emphasized that the robbery and attack on H.D. occurred in the child's presence.


                                                                         A-5042-16T4
                                       14
Because performing the unlawful acts in the presence of a child is an element of

third-degree endangering the welfare of a child, the trial court "double-counted"

in finding aggravating factor one. See Kromphold, 162 N.J. at 353.

      Defendant also argues that the court did not properly explain why it

imposed consecutive sentences for attempted murder and endangering a child.

The trial court must state its reasons for the sentence imposed. R. 3:21-4(e).

When sentencing a defendant for multiple offenses, "such multiple sentences

shall run concurrently or consecutively as the court determines at the time of

sentence . . . ." N.J.S.A. 2C:44-5(a). Our Supreme Court provided the following

guidelines for a court in imposing a concurrent or consecutive sentence:

            (1) there can be no free crimes in a system for which
            the punishment shall fit the crime;

            (2) the reasons for imposing either a consecutive or
            concurrent sentence should be separately stated in the
            sentencing decision;

            (3) some reasons to be considered by the sentencing
            court should include facts relating to the crimes,
            including whether or not:

                  (a) the crimes and their objectives were
                  predominantly independent of each other;

                  (b) the crimes involved separate acts of violence
                  or threats of violence;



                                                                        A-5042-16T4
                                      15
                   (c) the crimes were committed at different times
                   or separate places, rather than being committed
                   so closely in time and place as to indicate a single
                   period of aberrant behavior;

                   (d) any of the crimes involved multiple victims;

                   (e) the convictions for which the sentences are to
                   be imposed are numerous;

            (4) there should be no double counting of aggravating
            factors;

            (5) successive terms for the same offense should not
            ordinarily be equal to the punishment for the first
            offense;

             [Yarbough, 100 N.J. at 643–44.]

      "When a sentencing court properly evaluates the Yarbough factors in light

of the record, the court's decision will not normally be disturbed on appeal."

State v. Miller, 205 N.J. 109, 129 (2011). "[I]f the court does not explain why

consecutive sentences are warranted, a remand is ordinarily needed for the judge

to place reasons on the record." Ibid.

      The trial court briefly mentioned Yarbough factor one during its

discussion, stating "there are no free crimes," but failed to address the remaining

Yarbough factors. This analysis is insufficient, and a remand is necessary to

conduct a proper Yarbough analysis and eliminate aggravating factor one from

consideration.

                                                                          A-5042-16T4
                                         16
      The court should consider the real-time consequence of a parole

disqualifier. State v. Lee, 411 N.J. Super. 349, 351 (App. Div. 2010); see also

State v. Marinez, 370 N.J. Super. 49, 57-58 (App. Div. 2004) (stating that

sentencing courts must consider the real-time consequences that NERA will

have on a sentence). Defendant, age thirty-three at sentencing, would be more

than sixty-six years old when he is first eligible for parole under the current

sentence. We affirm defendant's convictions, but remand for a full resentencing

hearing.

      Convictions affirmed. Remanded for resentencing. We do not retain

jurisdiction.




                                                                       A-5042-16T4
                                     17
