                                NOT FOR PUBLICATION WITHOUT THE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-3002-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOHN J. GUTIERREZ, a/k/a
JOHN GUIERREZ,

     Defendant-Appellant.
______________________________

                    Submitted September 9, 2019 – Decided December 5, 2019

                    Before Judges Rothstadt and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Hudson County, Indictment No. 16-07-0930.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Michele A. Adubato, Designated Counsel,
                    on the brief).

                    Esther Suarez, Hudson County Prosecutor, attorney for
                    respondent (Erin M. Campbell, Assistant Prosecutor,
                    on the brief).

PER CURIAM
      Defendant John J. Gutierrez appeals from the Law Division's judgment of

conviction that the trial court entered after a jury acquitted defendant of

manslaughter but convicted him of aggravated assault and possession of a

controlled dangerous substance (CDS). He also appeals from his aggregate

sentence of seven years. At trial, the evidence established the victim died after

being beaten by defendant.

      On appeal, defendant argues that the trial court should not have admitted

into evidence statements he made to police, and for the first time on appeal, he

contends that it was plain error for the trial court to not instruct the jury about

their consideration of defendant's statements in accordance with the Model Jury

Charges. He also contends that he was deprived of a fair trial by the prosecutor's

misstatements made during summation.             Finally, defendant argues that in

imposing its sentence, the trial court improperly rejected all but one mitigating

factor. For the reasons that follow, we reject defendant's contentions and affirm.

                                            I.

      Defendant's conviction arose from a fight he engaged in with the victim,

a friend of his, on October 10, 2015. 1 According to defendant, who testified at


1
  Defendant testified that the two had known each other since he was in grammar
school, they often used drugs together, and that defendant had entered into a
sexual relationship with the mother of the victim's child.
                                                                           A-3002-17T1
                                        2
trial, just prior to the beginning of the fight, defendant had been smoking

phencyclidine (PCP) with the victim and other friends in defendant's car. During

the ensuing altercation that started inside the car, the victim struck defendant in

the head, hit him in the face, and took hold of him by his neck, while defendant

was defending himself against the victim.2

      After the fight, a meter attendant observed defendant walking near a car

and using a bottle of water in attempt to wash blood off his hands. The meter

attendant alerted the police and Officer David Tafer responded to the scene.

Upon his arrival, Tafer found defendant in the car with an injury to his eye and

a scratch to his face, and another individual who appeared to be unconscious, if

not dead, on the floor of the car.

      Tafer removed defendant from the vehicle, placed him under arrest, and

handcuffed him, before placing him in the back of Tafer's police vehicle.

Defendant did not make any statements to Tafer nor did Tafer ask him any

questions.




2
    Other evidence, including surveillance camera video tapes, defendant's
testimony that he did not fear the victim, the victim's blood on the bottom of
defendant's shoes, the extent of the injuries to the victim, and the lack of any
significant injuries to defendant, indicated that defendant beat the victim during
the fight.
                                                                           A-3002-17T1
                                        3
      A police detective, Michelle Aviles, joined Tafer at the scene. Upon her

arrival, she observed defendant laying down in the back of the police car. When

she checked to see if "he was okay," defendant spontaneously stated that he had

gotten into a fight with "Eddie." Aviles, not knowing that "Eddie" was the

victim in defendant's car, asked defendant where "Eddie" was located at the

time. Defendant responded that he was "in [my] car." Defendant also stated he

was "never doing PCP again."

      Moments later, an emergency medical technician (EMT) arrived with an

ambulance. As the EMT approached, defendant stated the victim "got crazy on

PCP." Defendant was then taken to the hospital. He was accompanied in the

ambulance by then police officer Ramy Hanna. In the ambulance, Hanna never

asked defendant any questions. However, defendant spontaneously asked Hanna

where the victim was and stated that the two of them "got too excited . . . [,] got

in an argument," and defendant "fucked [the victim] up," after they "smoked too

much PCP." In response, Hanna "advised him to hold all his questions for

detectives, and [that Hanna did not] have any answers for him, and to only

answer the medical questions that was being asked by the EMT."

      While defendant was being transported to the hospital, another police

officer conducted a search of the vehicle where defendant was found. The


                                                                           A-3002-17T1
                                        4
officer observed the victim's lifeless body, took photographs, and helped remove

the body. A vile of PCP was also recovered from the vehicle.

      Dr. Leah Cronin, the medical examiner, conducted an autopsy of the

victim on October 13, 2015. The doctor observed bruises and scrapes on the

body, including near the victim's eyes, legs, chest, on his fingers, and neck. She

also noted that the victim suffered from coronary heart disease and had suffered

a heart attack on an earlier occasion.

      The doctor did not reach a conclusion as to the cause of death and only

indicated that the determination was pending, although the doctor advised a

detective that she did not believe the victim's death was caused by the bruises

and abrasions she found on his body. In order to help reach a conclusion as to

the cause of death, Cronin requested a consult with a neuropathologist as to the

condition of the victim's brain.

      A neuropathologist, Dr. Leroy Sharer, conducted an examination of the

victim's brain that revealed hemorrhaging. Sharer concluded there was only a

mild injury to the brain that occurred less than twenty-four hours before the

victim expired, but that it was neither significant nor the cause of death.




                                                                              A-3002-17T1
                                         5
      Toxicology testing of the victim revealed that the PCP level in his blood

exceeded the toxic range but had not reached a fatal level. There was also

evidence that the victim had taken medication used to treat seizures.

      After reviewing these additional reports, Cronin concluded that the

victim's death was a homicide and the cause of death was a blunt impact to the

head. She would not opine as to what type of blunt force occurred or the time

of the victim's death. Cronin also identified PCP intoxication, hypertension, and

heart disease as contributory factors. According to the doctor, the victim's use

of PCP could have caused the victim's heart, which she found to be enlarged, to

"work harder" than normal. She further explained that the victim's hypertension

had impacted his kidneys and his earlier heart attack made him prone to

ventricular fibrillation, but that could not be detected by the autopsy.

      In 2016, a grand jury returned an indictment charging defendant with

second-degree manslaughter, N.J.S.A. 2C:ll-4(b)(1) (count one); second-degree

aggravated assault, N.J.S.A. 2C:12-l(b)(1) (count two); and with third-degree

possession of CDS (PCP), N.J.S.A. 2C:35-l0(a)(1) (count three).            Prior to

defendant's trial, the State filed motions to admit statements made by defendant.

After conducting hearings, on July 31, 2017, the trial court granted in part and

denied in part one motion, and on September 28, 2017, it granted the other.


                                                                           A-3002-17T1
                                        6
       The trial took place over nine days in October 2017. At its conclusion,

the jury acquitted defendant of manslaughter, but convicted him of aggravated

assault and possession of CDS. At sentencing, the trial court imposed the

aggregate seven-year term, subject to a parole ineligibility period under the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This appeal followed.

       On appeal, defendant asserts the following contentions:

             POINT I

             THE CUSTODIAL STATEMENTS MADE BY
             DEFENDANT TO POLICE WERE IN VIOLATION
             OF HIS RIGHT AGAINST SELF-INCRIMINATION
             AND SHOULD NOT HAVE BEEN ADMITTED
             INTO EVIDENCE.

             POINT II

             THE FAILURE OF THE TRIAL COURT TO GIVE
             HAMPTON     AND     KOCIOLEK[3]   JURY
             INSTRUCTIONS WAS PLAIN ERROR.     (NOT
             RAISED BELOW).

             POINT III

             MISSTATEMENTS OF FACT AND LAW BY THE
             PROSECUTOR DURING HIS SUMMATION WERE
             UNDULY   PREJUDICIAL   AND    DEPRIVED
             DEFENDANT OF A FAIR TRIAL. (NOT RAISED
             BELOW).



3
    State v. Hampton, 61 N.J. 250 (1972); State v Kociolek, 23 N.J. 400 (1957).
                                                                        A-3002-17T1
                                        7
             POINT IV

             BECAUSE    THE     SENTENCING     COURT
             ERRONEOUSLY       REJECTED       CERTAIN
             MITIGATING FACTORS IN IMPOSING A NERA
             SENTENCE OF SEVEN (7) YEARS, DEFENDANT'S
             SENTENCE MUST BE MODIFIED AND REDUCED.

       We are not persuaded by any of these arguments.

                                        II.

       Defendant's first argument relates to the trial court's admission of the

statements defendant made to police prior to his arrival at the hospital and before

he received any Miranda4 warnings. After conducting an evidentiary hearing

under Rule 104, the trial court found the statements were made while defendant

was in police custody, but it concluded they were not made in response to any

police interrogation and were therefore admissible. Specifically, as to Aviles's

question about where "Eddie" was, the trial court concluded that the officer

could not have anticipated defendant's identification of "Eddie" as the victim

lying in his car when she asked her question.

       Defendant argues that Aviles questioning defendant about the victim's

location, her and Hanna's knowledge that defendant was under the influence of




4
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                           A-3002-17T1
                                        8
PCP, which impaired his mental and physical condition, and that defendant was

injured, warranted the suppression of the statements. We disagree.

      Our review of a trial court's grant or denial of a motion to suppress a

defendant's statement is deferential. State v. Vincenty, 237 N.J. 122, 131-32

(2019). If a trial court's findings are supported by sufficient, credible evidence

present in the record, our "task is complete and [we] should not disturb the

result." State v. Johnson, 42 N.J. 146, 162 (1964). In contrast, we review de

novo a trial court's legal conclusions. State v. Hubbard, 222 N.J. 249, 263

(2015).

      It is beyond cavil that Miranda warnings are designed to protect an

individual's Fifth Amendment right to remain silent when confronted with a

criminal charge and exposure to police interrogation. "Miranda safeguards

come into play whenever someone is subject either to express questioning 'or its

functional equivalent.'" State ex rel. A.A., 455 N.J. Super. 492, 503 (App. Div.

2018) (quoting State v. Brown, 282 N.J. Super. 538, 549 (App. Div. 1995)).

      However, "Miranda has no application to statements that are

'volunteered.'" State v. Brabham, 413 N.J. Super. 196, 210 (App. Div. 2010)

(quoting Miranda, 384 U.S. at 478).         "Interrogation triggering the State's

obligation to deliver Miranda warnings requires 'words or actions on the part of


                                                                          A-3002-17T1
                                        9
the police that they should have known were reasonably likely to elicit an

incriminating response.'" Id. at 210-11 (quoting Rhode Island v. Innis, 446 U.S.

291, 303 (1980)).

      In this case, we conclude that the trial court correctly determined that

defendant's statements were not the result of police interrogation as there was

no action taken by law enforcement that elicited an incriminating response from

defendant. When Aviles asked the only question put to defendant about where

"Eddie" was located, Aviles had no knowledge that "Eddie" was the victim.

Aviles asked the question when defendant spontaneously stated he had been in

a fight with "Eddie." The other statements admitted were purely spontaneous

and unrelated to police interrogation. We therefore discern no abuse in the trial

court's discretion by admitting defendant's statements.

                                        III.

      We next consider defendant's challenge to the trial court's jury

instructions. According to defendant, even though he did not raise any issue as

to the jury instructions before the trial court, it was plain error for the court to

have not charged the jury with the statements made by defendant "as required

by N.J.R.E. 104(c) and State v. Hampton and State v Kociolek." According to

defendant, his conviction should be reversed because "[t]he court failed to


                                                                            A-3002-17T1
                                        10
advise the jury that they must consider and weigh such evidence with caution,

weigh whether it was in fact said and if it was reported accurately." We disagree.

      Where, as here, a defendant raises a challenge to the trial court's jury

instructions for the first time on appeal, he must establish that the error about

which he complains rises to the level of plain error. Plain error is established

when the error, if any, had the capacity to result in the jury reaching a decision

it might otherwise not have made. R. 2:10-2; see also State v. Funderburg, 225

N.J. 66, 79 (2016).

      As applied to jury instructions, plain error is an error that "prejudicially

affect[s]" a defendant's substantial rights in a "sufficiently grievous" manner,

which has the "clear capacity to bring about an unjust result." State v. Afanador,

151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); see

also Funderburg, 225 N.J. at 79. "The mere possibility of an unjust result is not

enough. To warrant reversal . . . an error at trial must be sufficient to raise 'a

reasonable doubt . . . as to whether the error led the jury to a result it otherwise

might not have reached.'" Funderburg, 225 N.J. at 79 (second alteration in

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

      To be sure, "[a]ppropriate and proper charges are essential for a fair trial."

State v. Baum, 224 N.J. 147, 158-59 (2016) (alteration in original) (quoting State


                                                                            A-3002-17T1
                                        11
v. Reddish, 181 N.J. 553, 613 (2004)). A "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.'" Id. at 159 (alteration in original) (quoting Reddish,

181 N.J. at 613). "Because proper jury instructions are essential to a fair trial,

'erroneous instructions on material points are presumed to' possess the capacity

to unfairly prejudice the defendant." Ibid. (quoting State v. Bunch, 180 N.J.

534, 541-42 (2004)); see also State v. Singleton, 211 N.J. 157, 182-83 (2012).

      The omitted instruction, which is commonly known as a Hampton-

Kociolek charge, advises the jury its "function [is] to determine whether or not

[any written or oral] statement was actually made by the defendant, and if made,

whether the statement or any portion of it is credible." Model Jury Charges

(Criminal), "Statements of Defendant" (rev. June 14, 2010). "[W]henever a

defendant's oral or written statements . . . are introduced," trial courts are

mandated to give the instruction whether requested by defendant or not. Jordan,

147 N.J. at 425.

      Hampton addressed statements made in response to police questioning,

while Kociolek related to statements to lay witnesses. In Hampton, the Supreme

Court held that when a defendant's confession is admitted in evidence, the judge


                                                                          A-3002-17T1
                                       12
shall instruct the jurors "that they should decide whether . . . the defendant's

confession is true," and if they conclude "that it is not true, then they must . . .

disregard it for purposes of discharging their functions as fact finders."

Hampton, 61 N.J. at 272. "The failure of a court to give a Hampton charge,

however, is not reversible error per se." Jordan, 147 N.J. at 425.

            It is reversible error only when, in the context of the
            entire case, the omission is "clearly capable of
            producing an unjust result. . . ." R. 2:10-2. That
            problem would arise most frequently when the
            defendant's statement is critical to the State's case and
            when the defendant has challenged the statement's
            credibility. If, however, the defendant's statement is
            unnecessary to prove defendant's guilt because there is
            other evidence that clearly establishes guilt, or if the
            defendant has acknowledged the truth of his statement,
            the failure to give a Hampton charge would not be
            reversible error.

            [Id. at 425-26 (first alteration in original) (emphasis
            added).]

      The Kociolek charge pertains to the reliability of an inculpatory statement

made by a defendant to any witness. See Kociolek, 23 N.J. at 421-23. As

explained in Kociolek, the jury should be instructed to "'receive, weigh and

consider such evidence with caution,' in view of the generally recognized risk

of inaccuracy and error in communication and recollection of verbal utteran ces

and misconstruction by the hearer." Id. at 421. However, similar to a Hampton


                                                                            A-3002-17T1
                                        13
charge, a Kociolek charge need not be provided to the jury where "an alleged

oral inculpatory statement was not made in response to police questioning, and

there is no genuine issue regarding its contents, . . . because the only question

the jury must determine is whether the defendant actually made the alleged

inculpatory statement." State v. Baldwin, 296 N.J. Super. 391, 401-02 (App.

Div. 1997) (emphasis added).

      The failure to give a Kociolek charge also is not plain error per se. Jordan,

147 N.J. at 428 (noting it would be "a rare case where failure to give a Kociolek

charge alone is sufficient to constitute reversible error"). We have held that

"[w]here such a charge has not been given, its absence must be viewed within

the factual context of the case and the charge as a whole to determine whether

its omission was capable of producing an unjust result." State v. Crumb, 307

N.J. Super. 204, 251 (App. Div. 1997) (finding "no reported case in which a

failure to include a Kociolek charge has been regarded as plain error"); Baldwin,

296 N.J. Super. at 398 (holding that "a special cautionary instruction is not

required when a defendant has allegedly made a voluntary inculpatory statement

to a non-police witness without being subjected to any form of physical or

psychological pressure").




                                                                           A-3002-17T1
                                       14
      Here, defendant did not give a confession in response to police

questioning, therefore, a Hampton charge concerning the statements he made in

the presence of Aviles or Hanna was not required. Moreover, defendant's

testimony at trial established there was no dispute as to the veracity of the

statements he claims warranted the specific jury instructions. At trial, defendant

did not dispute that he was in a fight with the victim and caused him injuries.

Rather, defendant testified that he acted in self-defense, and that the two of them

used PCP prior to the fight. Therefore, since "defendant's statement [was]

unnecessary to prove [his] guilt because . . . defendant has acknowledged the

truth of his statement, the failure to give a Hampton charge [is] not . . . reversible

error." Jordan, 147 N.J. at 425-26.

      Under these circumstances and given the trial court's instruction as to the

jury's determination of the credibility of all witnesses, we conclude defendant

has failed to establish any error, let alone plain error, in the court not instructing

the jury about his statements. See State v. Setzer, 268 N.J. Super. 553, 563-65

(App. Div. 1993) (holding the omission of a Hampton charge was not clearly

capable of producing an unjust result when a general credibility charge was

given); see also Jordan, 147 N.J. at 429.




                                                                              A-3002-17T1
                                         15
                                        IV.

      We turn our attention to defendant's contention that it was plain error for

the trial court to allow certain comments that were made by the prosecutor

during summation.      According to defendant, those statements contained

"misstatements of fact and law, were grossly prejudicial and deprived . . .

defendant of a fair trial." In support of his contention, defendant specifically

cites to the following comments made by the prosecutor during his summation:

            [I]t's been suggested to you throughout this case and in
            summation that [defendant] is somehow not responsible
            for what happened here because [the victim] was a sick
            guy, because he wasn't the picture of health, because
            [he] had a bad heart, he used drugs, he was a little
            overweight, his liver wasn't that good. As if that
            somehow was an excuse. As if he [was] not entitled to
            any less protection because of these reasons.

            [The defense s]uggested . . .          some     mysterious,
            unknown cause of death.

            We have a decedent in this case. I think that speaks
            plainly. You've heard about the injures [the victim]
            sustained. I think that . . . speaks plainly . . . to the use
            of deadly force.

            How he admitted that it wasn't a fight. It was a beat
            down. That was his testimony.

      Defendant argues that he did not admit to there having been a "beat down,"

as he clearly testified that he had been attacked and was defending himself


                                                                            A-3002-17T1
                                        16
against the victim's aggression.    Moreover, he challenges the prosecutor's

comments about defendant trying to "excuse" his behavior through the dispu te

over the victim's cause of death. Defendant contends that the prosecutor's

comment was to "engender[] sympathy" from the jury. In addition, he argues

because there was no evidence of any weapon being used, the prosecutor's

reference to deadly force was not appropriate. We conclude these contentions

are without merit.

      Prosecutors are "expected to make vigorous and forceful" summations,

and they "are afforded considerable leeway" so long as their remarks are tethered

to the evidence presented and the reasonable inferences to be drawn therefrom.

State v. Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 525, 559

(1995)); (State v. Williams, 113 N.J. 393, 447 (1988)).        For that reason,

prosecutors are afforded "wide latitude" during summation. State v. R.B., 183

N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968)).

However, prosecutors generally "must confine their comments to evidence

revealed during the trial and reasonable inferences to be drawn from that

evidence." See State v. Smith, 167 N.J. 158, 178 (2001) (first citing Frost, 158

N.J. at 86; then citing State v. Marks, 201 N.J. Super. 514, 534 (App. Div.

1985)). Nevertheless, where a prosecutor's comment was a fair response to


                                                                         A-3002-17T1
                                      17
defense counsel's summation, we will reject a defendant's argument that the

comment was improper. State v. Smith, 212 N.J. 365, 404 (2012); State v.

Williams, 317 N.J. Super. 149, 158 (1998).

      In evaluating a claim of prosecutorial misconduct, there are two issues to

be addressed: (1) whether the prosecutor's comments amounted to misconduct

and, if so, (2) whether the prosecutor's conduct justifies a new trial. State v.

Wakefield, 190 N.J. 397, 446 (2007) (citing Smith, 167 N.J. at 181). Reversal

of defendant's conviction is not justified unless the prosecutor's comments were

"so egregious that [they] deprived defendant of a fair trial." Ibid. (quoting

Smith, 167 N.J. at 181).

      "Generally, if no objection was made to the [prosecutor's] remarks," the

remarks "will not be deemed prejudicial." State v. Kane, 449 N.J. Super. 119,

141 (App. Div. 2017) (quoting Frost, 158 N.J. at 83). "The failure to object

suggests that defense counsel did not believe the remarks were prejudicial at the

time they were made." Frost, 158 N.J. at 84. "The failure to object also deprives

the court of an opportunity to take curative action."      Ibid. (citing State v.

Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997)).

      Applying these guiding principles here, we discern no plain error and

conclude that defendant's contentions to the contrary are without sufficient merit


                                                                          A-3002-17T1
                                       18
to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say,

the challenged statements were based upon defendant's testimony and made in

response to defendant's summation that focused on the dispute over the victim's

cause of death. In light of the jury's acquittal of defendant on the manslaughter

charge, defendant was not deprived of a fair trial based upon the prosecutor's

remarks.

                                       V.

      Last, we address defendant's challenge to his sentence. At his sentencing,

the trial court considered the parties' written and oral submissions regarding the

applicability of the statutory aggravating and mitigating charges, N.J.S.A.

2C:44-1(a) and (b), as well as defendant's request to be sentenced in the third-

degree range for his second-degree conviction of aggravated assault.           See

N.J.S.A. 2C:44-1(f)(2); State v. Megargel, 143 N.J. 484, 487 (1996).

      In a comprehensive oral decision, the trial court rejected defendant's

request for sentencing in a lower range, after concluding that the only

aggravating factor it found, number nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need

for deterring the defendant and others from violating the law"), outweighed the

only mitigating factor it found, number seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he

defendant has no history of prior delinquency or criminal activity or h as led a


                                                                          A-3002-17T1
                                       19
law-abiding life for a substantial period of time before the commission of the

present offense"). In doing so, the trial court analyzed each aggravating factor

advanced by the State and each mitigating factor argued for by defendant before

concluding that only the two factors applied.5 The court then considered the

factors under State v. Yarbough, 100 N.J. 627, 643-44 (1985), placed its reasons

on the record, and imposed the seven-year term subject to a parole ineligibility

period under NERA on the aggravated assault conviction, and a concurrent,

rather than consecutive, three-year term for the CDS possession.




5
   The State also argued for application of aggravating factors two, N.J.S.A.
2C:44-1(a)(2) ("[t]he gravity and seriousness of harm inflicted on the victim,
including whether or not the defendant knew or reasonably should have known
that the victim of the offense was particularly vulnerable or incapable of
resistance . . . ."); and six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the
defendant’s prior criminal record and the seriousness of the offenses of which
he has been convicted").
       Defendant also argued for mitigating factor two, N.J.S.A. 2C:44-1(b)(2)
("[t]he defendant did not contemplate that his conduct would cause or threaten
serious harm"); three, N.J.S.A. 2C:44-1(b)(3) ("[t]he defendant acted under a
strong provocation"); four, N.J.S.A. 2C:44-1(b)(4) ("[t]here were substantial
grounds tending to excuse or justify the defendant’s conduct, though failing to
establish a defense"); five, N.J.S.A. 2C:44-1(b)(5) ("[t]he victim of the
defendant’s conduct induced or facilitated its commission"); eight, N.J.S.A.
2C:44-1(b)(8) ("[t]he defendant’s conduct was the result of circumstances
unlikely to recur"); nine, N.J.S.A. 2C:44-1(b)(9) ("[t]he character and attitude
of the defendant indicate that he is unlikely to commit another offense"); and,
ten, N.J.S.A. 2C:44-1(b)(10) ("[t]he defendant is particularly likely to respond
affirmatively to probationary treatment").
                                                                        A-3002-17T1
                                      20
      On appeal, defendant contends that the trial court improperly rejected the

other mitigating factors he argued were applicable to the circumstances. This

was based primarily upon defendant's testimony that the victim started the

altercation, defendant had no prior indictable convictions, defendant was in need

of drug treatment, and was remorseful. He argues "[h]ad the sentencing court

correctly evaluated the relevant mitigating factors, [they] would have

outweighed the sole aggravating factor of deterrence." We again disagree with

defendant's contentions.

      We review a sentence imposed by the trial court under an abuse of

discretion standard. State v. Jones, 232 N.J. 308, 318 (2018). In doing so, we

consider whether: "(1) the sentencing guidelines were violated; (2) the findings

of aggravating and mitigating factors were . . . 'based upon competent credible

evidence in the record;' [and] (3) 'the application of the guidelines to the facts'

of the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J. 221,

228 (2014) (third alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-

65 (1984)).

      Applying that standard, we conclude defendant's challenge to his sentence

is without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(2). We affirm substantially for the reasons the trial court expressed at


                                                                           A-3002-17T1
                                       21
sentencing in its thorough oral decision. We are satisfied that the court did not

violate the sentencing guidelines, and the record amply supports its findings on

aggravating and mitigating factors. The sentence is clearly reasonable and does

not shock our judicial conscience.

      Affirmed.




                                                                         A-3002-17T1
                                      22
