                                 NOT FOR PUBLICATION WITHOUT THE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-1384-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

LATIF GADSON, a/k/a
QUAMIR WILLIAMS,

     Defendant-Appellant.
____________________________

                   Argued May 21, 2019 – Decided July 8, 2019

                   Before Judges Suter, Geiger and Enright.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Passaic County, Indictment No. 15-12-1001.

                   Stefan Van Jura, Deputy Public Defender, argued the
                   cause for appellant (Joseph E. Krakora, Public
                   Defender, attorney; Stephen W. Kirsch, Assistant
                   Deputy Public Defender, on the brief).

                   Sarah C. Hunt, Deputy Attorney General, argued the
                   cause for respondent (Gurbir S. Grewal, Attorney
                   General, attorney; Sarah C. Hunt, of counsel and on the
                   brief).
PER CURIAM

      Defendant Latif Gadson appeals his judgment of conviction for third-

degree aggravated assault. He contends the trial court's jury instruction about

"extreme indifference to human life" was "manifestly" incorrect.       He also

contends that his discretionary extended term sentence was excessive because

the court double counted his convictions. We reject these arguments, finding no

basis to reverse the judgment of conviction or sentence.

      While waiting near the Temple Street Bridge in Paterson to pick up her

grandson from school, Cynthia Pilgrim saw a man take off his clothes and cross

the bridge dressed only in socks. As he passed an older woman on the bridge,

who held shopping bags in her hands, he savagely hit her in the head. He

repeatedly punched her body and tried unsuccessfully to throw her off the

bridge. Pilgrim, who was minding another grandchild, directed her daughter,

Atilla Bundick, to help the woman, and gave Bundick a can of mace and a taser.

Bundick kicked defendant between his legs, tased him and gave him a "face

mace bath." She chased him when he ran to a nearby store. Pilgrim assisted the

victim who was not then responsive.

      The victim testified she was on the bridge talking to a man when she "felt

a punch . . . on the left side of [her] head." When she "came to . . . somebody


                                                                        A-1384-17T4
                                       2
[was] holding [her] arms in the back" and her head was pounding. She testified

the pain continues to come and go.

        Defendant was indicted for second-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1). He was convicted by a jury of the lesser-included offense of

third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). The State's motion to

sentence defendant as a persistent offender under N.J.S.A. 2C:44-3(a) was

granted. He was sentenced to a term of seven and one-half years to be served

consecutively to a five-year term of incarceration imposed by another judge for

violation of probation. 1 This appeal followed.

        Defendant raises the following issues:

        POINT I

              THE DEFINITION OF THE OFTEN-USED PHRASE
              "UNDER    CIRCUMSTANCES     MANIFESTING
              EXTREME INDIFFERENCE TO HUMAN LIFE"
              SHOULD NOT BE INTERPRETED TO CHANGE
              FROM CRIMINAL STATUTE TO CRIMINAL
              STATUTE; RATHER THE DEFINITION OF THAT
              PHRASE AS FIRST INTERPRETED IN STATE V.
              CURTIS, AND APPROVED THEREAFTER BY THE
              NEW JERSEY SUPREME COURT, SHOULD APPLY
              WHENEVER IT IS USED IN THE CODE.
              CONSEQUENTLY, THE JURY INSTRUCTION ON
              THIRD-DEGREE AGGRAVATED ASSAULT WAS
              MANIFESTLY INCORRECT.


1
    That sentence is not part of this appeal.
                                                                       A-1384-17T4
                                          3
      POINT II

            THE SENTENCE IMPOSED IS MANIFESTLY
            EXCESSIVE.

      We do not agree that either issue warrants reversal of defendant's

conviction or sentence.

      Because there was no objection made to the jury instruction at trial, we

review that issue for plain error, meaning that our inquiry is to determine

whether this was an error that was "clearly capable of producing an unjust

result." R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971). Under that

standard, reversal of defendant's conviction is required if there was error

"sufficient to raise a reasonable doubt as to whether [it] led the jury to a result

it otherwise might not have reached." State v. Green, 447 N.J. Super. 317, 325

(App. Div. 2016) (quoting Macon, 57 N.J. at 336).

      We consider the charge as a whole in determining whether it was

prejudicial. State v. Outland, 458 N.J. Super. 357, 372 (App. Div. 2019) (citing

State v. Wilbely, 63 N.J. 420, 422 (1973)). "[A]ppropriate and proper [jury]

charges are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016)

(quoting State v. Reddish, 181 N.J. 553, 613 (2004)). Where no objection is

made to a jury instruction, this creates "a presumption that the charge was not



                                                                           A-1384-17T4
                                        4
error and was unlikely to prejudice the defendant's case." State v. Singleton,

211 N.J. 157, 182 (2012) (citing Macon, 57 N.J. at 333-34).

      Defendant argues that use of the phrase "under circumstances manifesting

extreme indifference to human life" should mean "circumstances that indicate a

probability of death," but that in the instruction given here, the phrase referred

to "a probability of only a significant bodily injury." Defendant contends the

legislature used the same phrase in other related statutes and that it is supposed

to mean the same thing each time. He argues the court did not properly define

this phrase for the jury because in this case, involving a third-degree aggravated

assault, it was defined to mean a probability of significant injury, rather than of

death. Defendant argues this "could easily affect the verdict in a case where the

risk of significant injury was likely probable, but the risk of death perhaps only

possible." We find no merit in this argument.

      The judge instructed the jury on the lesser included offense of third-degree

aggravated assault under N.J.S.A. 2C:12-1(b)(7). Under that statute, a person is

guilty of aggravated assault if one:

            attempts to cause significant bodily injury to another or
            causes significant bodily injury purposely or knowingly
            or, under circumstances manifesting extreme
            indifference to the value of human life recklessly
            causes such significant bodily injury.


                                                                           A-1384-17T4
                                        5
            [N.J.S.A. 2C:12-1(b)(7).]

The jury charge followed this statutory language. The court defined "significant

bodily injury" consistent with its definition in N.J.S.A. 2C:11-1(d)2, adding only

that the five senses are "sight, hearing, taste, touch and smell." The court told

the jury that the State must prove defendant acted "purposely or knowingly or

acted recklessly under circumstances manifesting extreme indifference to the

value of human life." The court separately defined "purposely" consistent with

N.J.S.A. 2C:2-2(b)(1), and "knowingly" consistent with N.J.S.A. 2C:2-2(b)(2),

because either type of culpability would satisfy N.J.S.A. 2C:12-1(b)(7).

      Defendant challenges the jury instruction on the third type of culpability:

"recklessly under circumstances manifesting extreme indifference to the value

of human life." 3 In the jury charge, the court defined "recklessly" consistent

with N.J.S.A. 2C:2-2(b)(3). It then discussed the phrase "manifesting extreme

indifference to the value of human life."

            The phrase "under circumstances manifesting extreme
            indifference to the value of human life" does not focus

2
  N.J.S.A. 2C:11-1(d) states, "'[s]ignificant bodily injury' means bodily injury
which creates a temporary loss of the function of any bodily member or organ
or temporary loss of any one of the five senses."
3
  The verdict sheet contained a single question on the lesser included offense
that included all three types of culpability. Thus, we do not know if the jury
convicted based on this type of culpability.
                                                                           A-1384-17T4
                                        6
              on the state of mind of the actor, but rather on the
              circumstances under which you find that he acted. If,
              in light of all the evidence, you find that the conduct of
              the defendant resulted in a probability as opposed to a
              mere possibility of significant bodily injury, then you
              may find that he acted under circumstances manifesting
              extreme indifference to the value of human life.

              In determining whether the defendant acted purposely
              or knowingly or acted recklessly under circumstances
              manifesting extreme indifference to the value of human
              life, you may consider the nature of the acts themselves,
              and the severity of the resulting injuries to [the victim].

The court's jury instruction made clear that defendant could be found guilty if

he caused bodily injury to another or "attempted to cause significant bodily

injury to another." The court defined "attempt" consistent with N.J.S.A. 2C:5-

1(a).

        Defendant simply is incorrect that the court instructed the jury using the

phrase "under circumstances manifesting extreme indifference to human life."

That is not what the court said. It is not part of the definition of aggravated

assault under N.J.S.A. 2C:12-1.        Defendant is citing to language from the

aggravated manslaughter statute, which provides that "[c]riminal homicide

constitutes aggravated manslaughter when . . . the actor recklessly causes death

under circumstances manifesting extreme indifference to human life." N.J.S.A.

2C:11-4(a)(1). The assault statutes are in Chapter Twelve of Title 2C and use a


                                                                            A-1384-17T4
                                          7
different phrase: "under circumstances manifesting extreme indifference to the

value of human life."

      In interpreting a statute, we first "look to the plain language of the statute."

Perez v. Zagami, LLC, 218 N.J. 202, 209-10 (2014). The assault statute does

not refer to death. If the legislature meant to require an assault that would likely

cause death, it would have said so. The legislature used the phrase "value of

human life."    We have said previously that "[t]his [phrase] differs from a

probability of death resulting from the defendant's conduct . . . ." State v. Scher,

278 N.J. Super. 249, 272 (App. Div. 1994). Therefore, there is no reason to

assume the legislature meant to restrict the statute as defendant suggests.

      This charge also was consistent with the model charge on third-degree

aggravated assault.     Model Jury Charges (Criminal), "Aggravated Assault

(N.J.S.A. 2C:12-1(b)(7))" (rev. May 16, 2005).          Jury instructions given in

accordance with model charges, or which closely track model charges, are

generally not considered erroneous. Mogull v. CB Commercial Real Estate

Grp., Inc., 162 N.J. 449, 466 (2000). We are satisfied there was no error in this

instruction and certain none that would constitute plain error.

      We disagree with defendant's suggestion that we should not follow Scher.

In State v. Moore, 158 N.J. 292, 302 (1999), our Supreme Court accepted Scher's


                                                                              A-1384-17T4
                                          8
standard that "under circumstances manifesting extreme indifference to the

value of human life means a probability as opposed to a mere possibility of

causing such injury."    The instruction given here was consistent with this,

because it required the jury to find a probability of significant injury rather than

just a possibility. We see no basis to question Scher's continued viability based

on this or other case law cited by defendant.

      Defendant was sentenced to an extended sentence as a persistent offender

under N.J.S.A. 2C:44-3(a). Because he was convicted of a third-degree offense,

he was subject to a term of incarceration between five and ten years. N.J.S.A.

2C:43-7(a)(4).

      In sentencing defendant, the court gave "great weight" to aggravating

factors three (the risk that defendant will commit another offense), six (the

extent of defendant's prior criminal record and the seriousness of the offenses of

which he has been convicted), and nine (the need to deter defendant and others

from violating the law). N.J.S.A. 2C:44-1(a)(3), (6) and (9). The court noted

defendant's "violent history in addition to a longstanding criminal history

involving indicatable offenses, a total of [sixteen] adult arrests with [seven]

indictable convictions." His involvement in drug treatment programs while on

probation did not "sufficient[ly] . . . deter [defendant] from criminal behavior."


                                                                            A-1384-17T4
                                         9
The court found aggravating factor twelve, N.J.S.A. 2C:44-1(a)(12), ("[t]he

defendant committed the offense against a person who he knew or should have

known was [sixty] years of age or older, or disabled"), but found it to be a

"nominal" factor in the sentencing. The court also found certain "non-statutory

mitigating factors," such as defendant's "underlying psychopathology," drug

use, efforts to rehabilitate while in jail, remorse, and educational achievements ,

weighed against imposing the maximum extended term. The court "temper[ed]"

defendant's sentence from a possible ten-year term to a term of seven years and

six months, even though defendant committed this offense while on probation.

      Defendant does not dispute that he satisfied the statutory definition of a

persistent offender: he was twenty-one or older when the assault occurred, he

had been convicted "on at least two separate occasions of two crimes, committed

at different times, when he was at least [eighteen] years of age," and the "latest

of the crimes" or the "date of his last release," was within ten years of this

offense. N.J.S.A. 2C:44-3(a).

      Defendant argues the sentence was excessive because the trial court

double counted his convictions by not separating "the prior offenses that

triggered the extended-term from those used to set the length of that term,"




                                                                           A-1384-17T4
                                       10
contrary to State v. Dunbar, 108 N.J. 80 (1987). Defendant does not dispute that

his criminal record was extensive.

        The convictions relied on for extended term sentencing would not have

the same "qualitative weight" for sentencing, according to Dunbar,4 but the

court's decision rested on its "weighing and balancing of the aggravating and

mitigating factors that it found." State v. Pierce, 188 N.J. 155, 169 (2006). As

Dunbar said, "the primary focus [is] on the conduct that occasions the sentence."

108 N.J. at 92. The court gave great weight to the aggravating factors. It also

considered other factors in sentencing defendant, such as prior attempts at

rehabilitation while on probation, the need to protect the public because of the

violent nature of the crime and the victim's age, and defendant's violent history.

        We are satisfied that the court did not abuse its discretion in sentencing

defendant within the extended term range. Pierce, 188 N.J. at 169-70. The

findings of aggravating and mitigating factors were based upon competent and

credible evidence in the record.      Defendant's sentence did not violate the

sentencing guidelines nor was it excessive for this offense.

        Affirmed.




4
    108 N.J. at 92.
                                                                          A-1384-17T4
                                        11
