                                NOT FOR PUBLICATION WITHOUT THE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-4348-16T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DANIEL J. LAWRENCE,

     Defendant-Appellant.
____________________________

                    Argued April 30, 2019 – Decided October 9, 2019

                    Before Judges Yannotti, Rothstadt and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Warren County, Indictment No. 15-02-0103.

                    Michael Timothy Denny, Assistant Deputy Public
                    Defender, argued the cause for appellant (Joseph E.
                    Krakora, Public Defender, attorney; Michael Timothy
                    Denny, of counsel and on the brief).

                    Kelly A. Shelton, Assistant Prosecutor, argued the
                    cause for respondent (Richard T. Burke, Warren
                    County Prosecutor, attorney; Kelly A. Shelton, of
                    counsel and on the brief).
      The opinion of the court was delivered by

ROTHSTADT, J.A.D.

      Defendant Daniel Lawrence appeals from the Law Division's May 23,

2017 Judgment of Conviction (JOC) entered after a jury found him guilty of

murder and weapons charges. He also challenges the trial judge's imposing of

an aggregate sentence of forty years subject to a period of parole ineligibility

under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant's

conviction was based upon his repeated fatal stabbing of his ex-girlfriend's

former boyfriend. At trial, defendant argued he acted in self-defense. The trial

judge instructed the jury on that defense and defendant never raised any

objection to that charge or to any other charge. Defendant did not ask for any

charge in addition to what was proposed by the trial judge.

      On appeal, defendant contends for the first time that the trial judge erred

(1) by not instructing the jury on passion-provocation manslaughter (PPM); (2)

by not properly instructing the jury on self-defense and how it applied to each

of the crimes charged; and (3) that resentencing is required because the judge

"double-counted" and found aggravating factors without reason. For the reasons

that follow, we affirm.




                                                                         A-4348-16T2
                                       2
                                        I.

      The facts as developed at trial are summarized as follows. Prior to the

fatal stabbing, on September 1, 2014, the victim W.M. (William) 1 contacted his

ex-girlfriend M.W. (Mary) to arrange his stopping by Mary's apartment the next

day to retrieve his belongings that he had left at Mary's home. The next day,

prior to William's arrival, defendant went to Mary's home at approximately 9:00

a.m. in an attempt to restore his relationship with her. Upon defendant's arrival,

the two drank alcohol and then fell asleep.

      Later that same day, William arrived and asked for his belongings. After

answering the door with defendant, Mary went back upstairs, looked throughout

her apartment, eventually located William's bag, and gave it to him. After

inspecting the bag, William discovered it had been sitting on Mary's porch for

over a year and had become infested with roaches. William became upset and

told Mary that he would not have treated her belongings that way. According

to Mary, it was at that point William and defendant began making "slick

comments" toward one another.




1
  We refer to individuals by their initials and use pseudonyms to protect their
privacy.
                                                                          A-4348-16T2
                                        3
      According to defendant, William, who was much larger than defendant,

quickly approached Mary. Defendant jumped in front of Mary, and William

attacked defendant by "grabb[ing] . . . punching and choking . . . [him]." Mary

described the altercation as "tussling." Defendant then "got a hold of [his] little

pocket knife and used it to fend . . . [William] off." Defendant, in fear for his

life, brandished his knife and cut William's arm after both his fists and

attempting to speak to William had no effect. At that point, the two stopped

fighting.

      According to Mary, instead of leaving, William decided to wait outside

her home until he could get a cab back to the train station. While he waited

outside, defendant and Mary's other family members were on the porch together.

According to Mary, defendant and William were "not okay with each other" and

were again "tussling." Mary told them to calm down and they complied.

      After Mary's family members left—leaving only her, defendant, and

William—defendant and William began "making comments" about their

relationships with Mary. Mary then went upstairs, heard "arguing" and more

"tussling," went back downstairs, saw the two "getting into it" both physically

and verbally, and threatened to call the police.




                                                                           A-4348-16T2
                                        4
      Shortly thereafter, Mary's dog got out of the house and Mary ran after him.

She then returned to her home with her dog and heard William and defendant

being "very, very loud" while she was inside putting on the dog's collar. She

walked outside and saw William sitting in a chair, defendant repeatedly striking

him while William attempted to protect himself. Seeing blood on defendant and,

after defendant did not respond to her verbal request to stop, Mary pulled him

off William.

      Mary thought defendant was bleeding and went upstairs to get medical

supplies. She looked out her bedroom window and noticed William lying on the

grass, defendant standing over him.        While William was on the ground,

defendant said "I guess that hurt" and was "being mean." Mary then called the

police. As it turned out, defendant had stabbed William eight times before Mary

pulled him off William.

      Local police officers and detectives responded to the scene.            An

ambulance also arrived and although William was still alive when EMTs placed

him into the ambulance, by the time they arrived at the hospital William had

died. The Medical Examiner later established the cause of death was "[m]ultiple

sharp force injuries" and a toxicology report indicated the presence of




                                                                         A-4348-16T2
                                       5
phencyclidine (PCP) and methamphetamine in William's blood, as well as a

blood alcohol content in excess of .12.

      On February 25, 2015, a Warren County Grand Jury issued an indictment

charging defendant with first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count

one); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d)

(count two); and third-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(d) (count three). Defendant was tried over six days in 2017.

      At the conclusion of the trial, before instructing the jury, the trial judge

conducted a charge conference during which he reviewed his proposed jury

charges with counsel. Defense counsel indicated he had reviewed the most

recent version of the charges, and when asked if he had any "[q]uestions,

comments, additions, deletions, [or] changes," he said he did not. After the

judge instructed the jury with his proposed charges and the jury deliberated, the

jury found defendant guilty of each offense charged in the indictment. The

following month, the trial judge sentenced defendant. This appeal followed.

      On appeal, defendant makes the following arguments:

            POINT I

            IT WAS PLAIN ERROR TO NOT GIVE AN
            INSTRUCTION ON PASSION-PROVOCATION
            WHEN THE DEFENSE WAS SELF-DEFENSE.
            (NOT RAISED BELOW).

                                                                          A-4348-16T2
                                          6
            POINT II

            THE JURY INSTRUCTIONS ON SELF-DEFENSE
            MISINFORMED THE JURY ON THE CORRECT
            BURDEN OF PROOF AND WERE NOT
            INCORPORATED    INTO   THE   INDIVIDUAL
            COUNTS, ALLOWING THE JURY TO CONVICT
            THE DEFENDANT UPON THE SIMPLE ELEMENTS
            OF THE CRIMES CHARGED WITHOUT EVER
            CONSI[]DERING THE APPLICABILITY OF SELF-
            DEFENSE. (NOT RAISED BELOW).

                A.  THE INSTRUCTIONS                  ON     SELF-
            DEFENSE WERE INCONSISTENT.

                B.   THE INSTRUCTIONS FAILED TO
            CONVEY HOW SELF-DEFENSE RELATES TO
            EACH OF THE SUBSTANTIVE CRIMES.

            POINT III

            RESENTENCING IS REQUIRED BECAUSE THE
            TRIAL COURT IMPERMISSIBLY DOUBLE-
            COUNTED, FOUND AGGRAVATING FACTOR
            ONE ABSENT ANY EVIDENCE OF PARTICULAR
            HEINOUSNESS OR CRUELTY, AND FOUND
            FACTORS THREE AND NINE WITHOUT ANY
            REASON WHATSOEVER.

      We are not persuaded by defendant's contentions.

                                           II.

      We first address defendant's argument that the trial judge committed plain

error by failing to charge PPM as a lesser-included offense of murder.

Defendant contends the trial judge had a duty to instruct the jury on any lesser-

                                                                         A-4348-16T2
                                       7
included offenses for which there is a rational basis in the record , even though

he did not request the charge. He argues that the evidence established the first

two elements of PPM, including defendant's allegation that William was the first

aggressor, that defendant reasonably believed his life was in danger, and that the

proof of mutual battery was sufficiently provocative to warrant the instruction.

Further, defendant contends that because the judge also charged aggravated and

reckless manslaughter as lesser-included offenses, his failure to charge PPM was

especially erroneous. We disagree.

                                            A.

      At the outset, as defendant recognizes, "[w]hen a defendant fails to object

to an error or omission [about a jury charge] at trial, we review for plain error.

Under that standard, we disregard any alleged error 'unless it is of such a nature

as to have been clearly capable of producing an unjust result.'"         State v.

Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2). Reversal is warranted

only where an error raises "a reasonable doubt . . . as to whether the error led

the jury to a result it otherwise might not have reached." Ibid. (alteration in

original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). "The mere

possibility of an unjust result is not enough." Ibid.




                                                                          A-4348-16T2
                                        8
      In its jury charges, a "trial court must give 'a comprehensible explanation

of the questions that the jury must determine, including the law of the case

applicable to the facts that the jury may find.'" State v. Baum, 224 N.J. 147, 159

(2016) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). Accordingly, "the

court has an 'independent duty . . . to ensure that the jurors receive accurate

instructions on the law as it pertains to the facts and issues of each case,

irrespective of the particular language suggested by either party.'"         Ibid.

(alteration in original) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)).

      "[I]f the parties do not request a lesser-included-offense charge, reviewing

courts 'apply a higher standard, requiring the unrequested charge to be "clearly

indicated" from the record.'" State v. Fowler, __N.J__, __, (2019) (slip op. at

22) (quoting State v. Alexander, 233 N.J. 132, 143 (2018)). See also State v.

Denofa, 187 N.J. 24, 42 (2006); N.J.S.A. 2C:1-8(e). As such,

            [t]he "clearly indicated" standard does not require trial
            courts either to "scour the statutes to determine if there
            are some uncharged offenses of which the defendant
            may be guilty," or "'to meticulously sift through the
            entire record . . . to see if some combination of facts
            and inferences might rationally sustain' a lesser
            charge." Instead, the evidence supporting a lesser-
            included charge must "jump[ ] off the page" to trigger
            a trial court's duty to sua sponte instruct a jury on that
            charge.



                                                                          A-4348-16T2
                                        9
            [Alexander, 233 N.J. at 143 (second and third
            alterations in original) (citations omitted).]

                                       B.

      PPM is a "well-established lesser-included offense of murder." State v.

Carrero, 229 N.J. 118, 129 (2017). Under N.J.S.A. 2C:11-4(b)(2), a criminal

homicide may be considered manslaughter when "[a] homicide which would

otherwise be murder . . . is committed in the heat of passion resulting from a

reasonable provocation." "Passion/provocation manslaughter is an intentional

homicide committed under extenuating circumstances that mitigate the murder."

State v. Robinson, 136 N.J. 476, 481 (1994). It "contains all the elements of

murder except that the presence of reasonable provocation, coupled with

defendant's impassioned actions, establish a lesser culpability." Id. at 482; see

N.J.S.A. 2C:1-8(d)(3).

      Four elements must be met for PPM: (1) there must be adequate

provocation; (2) "the defendant must not have had time to cool off between the

provocation and the slaying"; (3) the defendant must have been actually

impassioned by the provocation; and (4) "the defendant must not have actually

cooled off before the slaying." Funderburg, 225 N.J. at 80 (quoting State v.

Mauricio, 117 N.J. 402, 411 (1990)).



                                                                         A-4348-16T2
                                       10
      The first two elements are objective while the latter two are subjective.

Carrero, 229 N.J. at 129. Accordingly, a court should decide whether there is

sufficient evidence of the first two elements.         Ibid.   "To warrant the

passion/provocation jury charge, the evidence must rationally support only the

first two elements; the subjective elements 'should usually be left to the jury to

determine.'" Ibid. (quoting Mauricio, 117 N.J. at 413).

      The element of adequate provocation is measured by whether "loss of self-

control is a reasonable reaction." State v. Foglia, 415 N.J. Super. 106, 126 (App.

Div. 2010) (quoting Mauricio, 117 N.J. at 412). With regard to the first element,

"the provocation must be 'sufficient to arouse the passions of an ordinary

[person] beyond the power of his [or her] control.'" Carrero, 229 N.J. at 129

(alterations in original) (quoting Mauricio, 117 N.J. at 412). "The generally

accepted rule is that words alone, no matter how offensive or insulting, do not

constitute adequate provocation to reduce murder to manslaughter."

Funderburg, 225 N.J. at 80 (quoting State v. Crisantos, 102 N.J. 265, 274

(1986)). "Battery is . . . considered adequate provocation 'almost as a matter of

law'" and the element may also be satisfied by "the presence of a gun or knife."

Carrero, 229 N.J. at 129 (quoting Mauricio, 117 N.J. at 414). Also, for a PPM

charge to be warranted based on mutual combat, that combat "'must have been


                                                                          A-4348-16T2
                                       11
waged on equal terms [with] no unfair advantage taken of the deceased,' unlike

a setting in which the defendant uses a deadly weapon against an unarmed

victim." State v. Galicia, 210 N.J. 364, 380 (2012) (quoting Crisantos, 102 N.J.

at 274).

      Regarding the cool-off period, "it is well-nigh impossible to set specific

guidelines in temporal terms." Carrero, 229 N.J. at 129 (quoting Mauricio, 117

N.J. at 413). Therefore, "[t]rial courts are . . . remitted to the sense of the

situation as disclosed by the facts." Mauricio, 117 N.J. at 413.

                                       C.

      Applying these guiding principles, we conclude that the PPM charge was

unwarranted—there were no facts that clearly indicated it was applicable. There

was no evidence suggesting at the time defendant repeatedly stabbed William,

he had provoked defendant by anything more than "mere words" as he sat in a

chair waiting for a taxi. Moreover, there was no proof that William used any

type of weapon to threaten or harm either Mary or defendant at that time. To

the extent defendant relies upon his earlier fight with William in Mary's

apartment, it was apparent that a sufficient amount of time elapsed to permit

defendant to cool down had he been adequately provoked during the initial

encounter. Under these circumstances, in the absence of any request for the


                                                                        A-4348-16T2
                                      12
charge, there was no reason to instruct the jury with a PPM without there being

any supporting evidence in the record that clearly indicated it was warranted.

                                            III.

                                            A.

      Defendant also argues for the first time on appeal that the trial judge's

instruction on self-defense was inconsistent and improper because it "distort[ed]

and minimiz[ed] the State's burden of proof" and "fail[ed] to incorporate the

absence of self-defense into each of the substantive counts as effectively an

element that the State must disprove before a conviction can be returned." He

contends the jury should have been instructed that it was the State's burden to

prove defendant's belief was unreasonable, or that the elements of self -defense

did not exist, rather than instructing them it was defendant's burden to prove that

his belief was reasonable and that the elements of the defense did in fact exist.

Defendant also argues that the instructions "only briefly stated" the State bore

the burden of disproving self-defense and immediately contradicted that

statement by referencing the jury's duty to determine if the elements of the

defense existed.    Together, the instructions "diluted the State's burden of

disproving self-defense" and "d[id] not clearly and consistently inform the jury




                                                                           A-4348-16T2
                                       13
that they must acquit [defendant] unless the State disproves self-defense beyond

a reasonable doubt," constituting reversible error.

      Defendant also contends that the instructions did not convey how self-

defense relates to each of the crimes charged. More specifically, the jury was

not instructed on "the absence of self-defense" as "an element of those counts

that the State would have to prove before a conviction could be obtained." He

argues that in addition to charging the jury with the ordinary elements of each

of the charged crimes, if self-defense is raised, the court must include "an

additional element for the State to prove: the absence of self-defense" for each

charged crime. Also, according to defendant, juries should be instructed that

the absence of PPM is an element of murder that the State must disprove.

Similarly, they should be instructed that the absence of self-defense is an

element of murder. We find no merit to these contentions.

      The judge's charge on murder, and the lesser-included offenses of

aggravated manslaughter and reckless manslaughter, were followed by

instructions on self-defense that mirrored the applicable Model Jury Charge.

See Model Jury Charges (Criminal), "Justification-Self Defense in Self

Protection (N.J.S.A. 2C:3-4)" (rev. Jun. 13, 2011). The charge given by the

judge stated the following:


                                                                        A-4348-16T2
                                       14
The indictment charges that the defendant has
committed the crime of murder. The defendant
contends that if the State proves he used or threatened
to use force upon the other person, that such force was
justifiably used for his self-protection. The statute
reads, "[t]he use of force upon or toward another person
is justifiable when the actor reasonably believes that
such force is immediately necessary for the purpose of
protecting himself against the use of unlawful force by
such other person or on the present occasion."

In other words, self-defense is the right of a person to
defend against any unlawful force. Self-defense is also
the right of a person to defend against seriously
threatened unlawful force that is actually pending or
reasonably anticipated. When a person is in imminent
danger of bodily harm, the person has the right to use
force or even deadly force when that force is necessary
to prevent the use against him of unlawful force. The
force used by the defendant must not be significantly
greater than, and must be proportionate to, the unlawful
force threatened or used against the defendant.

Unlawful force is defined as force used against a person
without the person's consent in such a way that the
action would be a civil wrong or criminal offense. If
the force used by the defendant was not immediately
necessary for the defendant's protection, or if the force
used by the defendant was disproportionate in its
intensity, then the use of such force by the defendant
was not justified and the self-defense claim fails. There
are different levels of force that a person may use in his
own defense to prevent unlawful harm.

The defendant can only use that amount or degree of
force that he reasonably believes is necessary to protect
himself against harm. If the defendant is attempting to
protect himself against exposure to death or the

                                                             A-4348-16T2
                           15
substantial danger of serious bodily injury, he may
resort to the use of deadly force. Otherwise, he may
only resort to non-deadly force.

The use of deadly force may be justified only to defend
against force or the threat of force of nearly equal
severity and is not justifiable unless the defendant
reasonably believes that such force is necessary to
protect himself against death or serious bodily injury.
Deadly force is defined as force that the defendant uses
with the purpose of causing or which he knows to create
a substantial risk of causing death or serious bodily
injury. By serious bodily harm, we mean an injury that
creates a risk of death or which causes serious
permanent disfigurement or which causes a protracted
loss or impairment of the function of any bodily
member or organ. For example, if one were to
purposely fire a firearm in the direction of another
person, that would be an example of deadly force. A
mere threat with a firearm, however, intended only to
make the victim of the threat believe the defendant will
use the firearm if necessary is not an example of deadly
force.

One cannot respond with deadly force to a threat or
even an actual minor attack. For example, a slap or an
imminent threat of being pushed in a crowd would not
ordinarily justify the use of deadly force to defend
against such unlawful conduct. Therefore, you must
first determine whether the defendant used deadly
force. If you find that the defendant did so, then you
must determine if the defendant reasonably believes he
had to use deadly force to defend against the unlawful
conduct of another.

A reasonable belief is one which would be held by a
person of ordinary prudence and intelligence, situated
as this defendant was. Self-defense exonerates a person

                                                           A-4348-16T2
                          16
who uses force in the reasonable belief that such action
was necessary to prevent his or her death or serious
injury, even though his belief was later proven
mistaken. Accordingly, the law requires only a
reasonable, not necessarily a correct, judgment.

Even if you find the use of deadly force was reasonable,
there are limitations on the use of deadly force. If you
find that the defendant, with the purpose of causing
death or serious bodily harm to another person,
provoked or incited the use of force against himself in
the same encounter, then that defense is not available
to him.

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

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

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

The same theory applies to the issue of retreat.
Remember that the obligation of the defendant to
retreat only arises if you find that the defendant resorts
to the use of deadly force. If the defendant does not
resort to the use of deadly force, one who is unlawfully

                                                             A-4348-16T2
                           17
            attacked may hold his position and not retreat whether
            the attack upon him is by deadly force or some lesser
            force.

            The burden of proof is upon the State to prove beyond
            a reasonable doubt the defendant knew he could have
            retreated with complete safety. If the State carries its
            burden, then you must disallow the defense. If the State
            does not satisfy this burden and you do have a
            reasonable doubt, then it must be resolved in favor of
            the defendant and you must allow the claim of self-
            defense and acquit the defendant.

      Similarly, the judge instructed the jury as to the two other offenses in

accordance with the Model Jury Charges. As to count three, the judge included

a charge on protective purpose that applies when a defendant argues his

possession of the weapon was part of his self-defense. The judge also explained

how that charge differed from self-defense as it applied to murder in that it did

not require defendant have a reasonable belief that he needed the weapon to

defend himself. See Model Jury Charges (Criminal), "Unlawful Possession of

a Weapon (N.J.S.A. 2C:39-5(d))" (rev. Apr. 18, 2005); Model Jury Charges

(Criminal), "Possession of a Weapon with a Purpose to Use it Unlawfully

Against the Person or Property of Another (N.J.S.A. 2C:39-4(d))" (rev. Jun. 16,

2003).

      During their deliberations, the jury sent a question to the judge asking

"once the defendant claims self-defense, is the burden of proof shifted to the

                                                                         A-4348-16T2
                                      18
defendant?" The judge responded by stating the "simple straightforward answer

to that is no. The burden of proof never shifts to the defendant."

                                        B.

      We begin our review of the challenged charge by observing that here too,

defendant did not interpose an objection to any of the trial judge's charges,

requiring us to again review only for "plain error." We will reverse only for

plain error, or error that is "clearly capable of producing an unjust result."

Funderburg, 225 N.J. at 79 (quoting R. 2:10-2). The error must have "led the

jury to a result it otherwise might not have reached." State v. Castagna, 376 N.J.

Super. 323, 355-56 (App. Div. 2005) (quoting State v. Macon, 57 N.J. 325, 336

(1971)). "[P]lain error requires demonstration of 'legal impropriety in the charge

prejudicially affecting the substantial rights of the defendant and sufficiently

grievous to justify notice by the reviewing court . . . .'" State v. Nero, 195 N.J.

397, 407 (2008) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

      In our review, if a defendant does not object to an instruction at trial, we

presume that the instructions were adequate. State v. Belliard, 415 N.J. Super.

51, 66 (App. Div. 2010). Moreover, there is a "presumption of propriety that

attaches to a trial court's reliance on the Model Jury Charge" when it is used for




                                                                           A-4348-16T2
                                       19
the specific purpose for which it was adopted. Estate of Kotsovska v. Liebman,

221 N.J. 568, 596 (2015).

      We conclude there was no error, let alone "plain error" in the trial judge's

reliance upon the Model Jury Charges. Here, the jury instructions for the three

crimes charged mirrored the Model Jury Charge for each offense.                For

defendant's claim of self-defense, with regard to counts one and three, the judge

included instructions as to how self-defense applied to the offenses and how it

differed in the context of each crime. Correctly, the judge did not discuss self-

defense in the context of count two, because it "does not excuse possession of a

weapon in violation of section 5d except in 'those rare and momentary

circumstances where an individual arms himself spontaneously to meet an

immediate danger.'" State v. Kelly, 118 N.J. 370, 372 (1990) (quoting State v.

Harmon, 104 N.J. 189, 208-09 (1986)). That was not the situation here.

      We find the judge's charges adequately conveyed that the State bore the

burden of proof, the relationship of self-defense to the substantive charges, and

properly instructed the jury to apply self-defense if it found it appropriate.

Considering the charge as a whole, the jury did not consider defendant's guilt

without also considering the applicability of self-defense, as demonstrated by

the jury's request for clarification. The charges followed a logical sequence, and


                                                                          A-4348-16T2
                                       20
the judge advised the jury that it could not convict defendant unless the State

disproved self-defense beyond a reasonable doubt. Finally, the judge informed

the jury multiple times that even after defendant claims self-defense, the burden

of proof never shifts to the defendant.

                                               IV.

      Last, we address defendant's challenge to his sentence. The trial judge

sentenced defendant to a term of forty years subject to NERA for count one,

merged count three into count one, and imposed a concurrent eighteen months

for count two. In support of the sentence, the judge found aggravating factors

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

role of the actor therein, including whether it was committed in an especially

heinous, cruel, or depraved manner; three, N.J.S.A. 2C:44-1(a)(3), the risk that

defendant will commit another offense; and nine, N.J.S.A. 2C:44-1(a)(9), the

need for deterring the defendant and others from violating the law. The judge

noted that aggravating factor one was appropriate given the brutality of the

murder, the fact that defendant stabbed William nine times, and showed

indifference to the fact that he had taken a life.

      The judge rejected defendant's request for application of mitigating

factors three, N.J.S.A. 2C:44-1(b)(3), that defendant acted under a strong


                                                                         A-4348-16T2
                                          21
provocation, and seven, N.J.S.A. 2C:44-1(b)(7), that defendant had no history

of prior criminal activity or has led a law-abiding life. The judge declined to

find either, stating that there was a considerable amount of verbal altercation

prior to the stabbing, which is not strong provocation, and that although

defendant did not have prior felony convictions, he had municipal convictions.

      We "review sentences deferentially, ordinarily affirming even where we

would have arrived at a different result." State v. Locane, 454 N.J. Super. 98,

120 (App. Div. 2018) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We

"ask only if legislative guidelines have been followed, if competent credible

evidence supports each finding of fact upon which the judge based the sentence,

and . . . decide whether application of the facts to the law is such a clear error

of judgment that it shocks the judicial conscience." Ibid. (citing State v. Roth,

95 N.J. 334, 364-65 (1984)). "The assessment of statutory aggravating and

mitigating sentencing factors must be fully supported by the evidence. '[T]here

is more discretion involved in identifying mitigating factors than in addressing

aggravating factors.'" Ibid. (alteration in original) (quoting State v. Blackmon,

202 N.J. 283, 297 (2010)).

      On appeal, defendant contends that resentencing is necessary due to

improper application and weighing of aggravating factors. He argues that the


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trial judge did not provide an appropriate basis for finding aggravating factor

one or state why the crime was especially heinous or cruel as compared to other

murders. Rather, the judge stated only that defendant stabbed William nine

times and that defendant must have known that would result in death. Moreover,

defendant argues that because the trial judge found this factor based on an aspect

of the offense that the Legislature took into account for sentencing purposes—

defendant's mental state—it constituted "improper double-counting" of the

elements of the crime. Regarding factors three and nine, defendant contends

that the judge failed to engage in any analysis and they are unsupported by the

record.

      It is well-settled that a judge "shall state reasons for imposing [a] sentence

including . . . the factual basis supporting a finding of particular aggravating or

mitigating factors affecting sentence." State v. Natale, 184 N.J. 458, 488 (2005)

(quoting R. 3:21-4(g)) (alterations in original).         Defendant's arguments

regarding aggravating factor one being unsupported as double-counting are

unpersuasive. Defendant is correct that "a court may not double count a fac t

that establishes an element of the offense as a basis to support an aggravating or

mitigating factor." Locane, 454 N.J. Super. at 123. However, the trial judge

acknowledged this limitation and stated that although he could not use William's


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death as an aggravating factor without double-counting, he could properly

consider the nature of the death and brutality of the crime as aggravating factors.

See State v. Soto, 340 N.J. Super. 47, 71 (App. Div. 2001) (citations omitted)

("[W]here the Legislature has already taken certain aspects of the nature and

circumstances of the offense into account in grading, the judge may not consider

those same aspects again as aggravating factors. Nevertheless, the cruel manner

of an attack can be considered an aggravating factor.").          The trial judge

thoroughly explained the facts on the record that led him to find aggravating

factor one and did not abuse his discretion in doing so.

      With regard to aggravating factors three and nine, we conclude they were

supported by defendant's municipal court convictions and the nature of his

behavior, before and after, repeatedly and fatally stabbing William. We have

no reason to disturb defendant's sentence as the judge's decision was supported

by the evidence and it does not "shock the judicial conscience." See State v.

Fuentes, 217 N.J. 57, 80-81 (2014) (quoting Roth, 95 N.J. at 365).

      Affirmed.




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