                        NOT FOR PUBLICATION WITHOUT THE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-1745-15T2

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

TARI D. TURPIN, a/k/a TARID TURPIN,
TARI TURRIN and TARI DEMOND TURPIN,

        Defendant-Respondent.

______________________________


              Submitted May 9, 2017 – Decided June 8, 2017

              Before Judges Reisner and Sumners.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Hudson County,
              Indictment No. 14-05-0885.

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

              Esther Suarez, Hudson County Prosecutor,
              attorney for respondent (Kerry J. Salkin,
              Assistant Prosecutor, on the brief).

PER CURIAM
     Defendant Tari D. Turpin appeals from his conviction for two

counts   of    second-degree   aggravated   assault,   N.J.S.A.    2C:12-

1(b)(1), and other associated offenses.1      He also appeals from the

aggregate term of thirty years subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, consisting of an extended term of

twenty years for the first assault conviction, with a consecutive

ten-year term for the second assault conviction.         The remaining

sentences were concurrent.

     On this appeal, defendant raises the following points of

argument:

              POINT I

                  THE   JURY   CHARGE   ON   SECOND-DEGREE
                  AGGRAVATED ASSAULT DEPRIVED TURPIN OF DUE
                  PROCESS AND HIS RIGHT TO PRESENT A
                  DEFENSE BY ALLOWING THE JURY TO CONVICT
                  ON A THEORY OF RECKLESS CONDUCT THAT WAS
                  NOT SET FORTH IN THE INDICTMENT.

              POINT II

                  THE STATE FAILED TO PROVE THAT TURPIN
                  SHOT [A.M.] PURPOSELY OR KNOWINGLY.
                  THEREFORE, TURPIN'S MOTION FOR A JUDGMENT
                  OF ACQUITTAL OF COUNT II SHOULD HAVE BEEN
                  GRANTED.



1
  In addition to aggravated assault, defendant was convicted of
possessing a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a);
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); threatening
violence, N.J.S.A. 2C:12-3(a); possessing dum-dum bullets,
N.J.S.A. 2C:39-3(f); and creating a risk of injury, N.J.S.A. 2C:17-
2(c).

                                    2                             A-1745-15T2
           POINT III

                IN IMPOSING AN EXTENDED TERM ON COUNT I,
                THE COURT FAILED TO PROPERLY ANALYZE
                TURPIN'S RECORD AND TO MAKE APPROPRIATE
                FINDINGS.    IN IMPOSING THE TERMS ON
                COUNTS I AND II, THE COURT FAILED TO
                CONSIDER TWO MITIGATING FACTORS THAT WERE
                CALLED TO THE COURT'S ATTENTION AND AMPLY
                BASED IN THE RECORD.    BECAUSE OF THESE
                ERRORS, A REMAND IS REQUIRED.

                A.     The extended term was not justified
                       on the record.

                B.     Family hardship and provocation
                       should have been considered in
                       mitigation of the sentence imposed.

     After reviewing the record in light of the applicable legal

standards, we find no merit in any of those arguments.       We affirm

the conviction and the sentence.

     The pertinent trial evidence can be summarized briefly as

follows.   At about 4:30 a.m., while riding the PATH train from New

York to Jersey City, defendant and his female companion got into

an argument with another passenger, D.D.2      During the argument,

defendant pulled out a gun, and then returned it to his pocket.

He then began to pull the gun back out of his pocket, and D.D.'s

friend, A.M, intervened.     According to A.M., he put his left hand

over the pocket containing the gun, and put his right hand on



2
  We use initials to identify the victims, to protect their
privacy.

                                   3                           A-1745-15T2
defendant's wrist in an effort to keep him from pulling out the

gun. Defendant fired the gun, shooting off three fingers of A.M.'s

left hand but also wounding himself in the leg.            By this time the

train had reached Jersey City, and defendant exited the train,

still holding the gun.        He paused, turned, and fired two shots at

D.D., hitting her once in the leg and shattering her ankle.

       Defendant fled through the PATH station, discarding the gun

on a ledge, where it was later recovered by the police.               Shortly

after the incident, the police apprehended defendant a few blocks

from the PATH station.        The shooting set off a panic inside the

PATH station and resulted in a shutdown of PATH train service.

       Virtually the entire incident, including defendant committing

the shootings and discarding the gun, was captured by the PATH

system's security video cameras.           The videos were played for the

jury.   The State also presented testimony from the individual from

whom defendant obtained the gun, a Glock 9 model loaded with hollow

point bullets.

       On this appeal, defendant argues that, in charging the jury

as to the aggravated assault charges, the trial court should not

have    instructed   the   jury    that    they   could   consider    whether

defendant's conduct was reckless.           He contends that because the

indictment   only    stated    that   defendant   committed   the    assaults

"purposely" or "knowingly," but did not include "recklessly," the

                                       4                              A-1745-15T2
inclusion of reckless conduct in the jury charge and the verdict

sheet was an unfair surprise.

     We   agree   with   the   trial   judge   that   the   indictment   put

defendant on notice that he was charged with an offense, N.J.S.A.

2C:12-1(b)(1), that could be proven by demonstrating that he

committed the assault purposely, knowingly, or recklessly.                 In

that regard, we find persuasive the reasoning of Judge Stern's

opinion in State v. Murphy, 185 N.J. Super. 72, 76 (Law Div. 1982)

("[P]leading   the   most   serious    culpability    state   suffices   for

lesser kinds of culpability . . . irrespective              of whether the

lesser culpability is the basis for distinguishing between kinds

of crime, one crime and a lesser included offense or alternative

elements with respect to the same degree.")

     We also note that any claim of unfair surprise is belied by

the evidence in this case.      Defendant has not so much as suggested

how he would have mounted a different defense, depending on whether

the judge was going to charge the jury with recklessness in

addition to knowing or purposeful conduct.

     Next, defendant contends that he was entitled to a judgment

of acquittal as to the charge of aggravated assault on A.M.           After

reviewing the evidence in light of the standard set forth in State

v. Reyes, 50 N.J. 454, 458-59 (1967), we cannot agree.                   Both

defendant and A.M. were shot during the struggle - defendant in

                                       5                            A-1745-15T2
the leg and A.M. in the hand.         A jury could have found that

defendant purposely or knowingly pulled the trigger intending to

shoot A.M. in the hand.   They also could have found that defendant

caused A.M.'s injury recklessly "under circumstances manifesting

extreme indifference to the value of human life."     N.J.S.A. 2C:12-

1(b)(1).

     Finally, we address defendant's challenge to the sentence.

The trial court sentenced defendant to a discretionary extended

term of twenty years for shooting D.D., and added a consecutive

ordinary term of ten years for shooting A.M.      We find no basis to

disturb the extended term sentence for shooting D.D., which the

judge appropriately explained, or the imposition of a consecutive

term for shooting A.M.    See State v. Case, 220 N.J. 49, 64 (2014);

State v. Pierce, 188 N.J. 155, 168-69 (2006); State v. Yarbough,

100 N.J. 627, 643-44 (1985), certif. denied, 475 U.S.      1014, 106

S. Ct. 1193, 89 L. Ed. 2d 308 (1986).      We agree with the judge's

determination    that    no   mitigating   factors    applied     here.

Defendant's sentencing arguments are without sufficient merit to

warrant further discussion.    R. 2:11-3(e)(2).

     Affirmed.




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