SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2826-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SAINT H. MERILAN a/k/a,

SAINT HILAIRE MERILAN,

SAINT H. MERIALN, SAINT

MERILAN, JASON WILLIAMS,

Defendant-Appellant.

_______________________________

Submitted February 9, 2017 - Decided 

Before Judges Lihotz and Whipple.

On appeal from Superior Court of New Jersey, 

Law Division, Union County, Indictment No. 12-

12-0913.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Daniel S. Rockoff, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Grace H. Park, Acting Union County Prosecutor, 

attorney for respondent (Meredith L. Balo, 

Special Deputy Attorney General/Acting 

Assistant Prosecutor, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

April 24, 2017
2 A-2826-14T4

Tried by a jury, defendant Saint H. Merilan was convicted of 

second-degree reckless manslaughter, N.J.S.A. 2C:11-4b(1), as a 

lesser included offense to the charged offense of aggravated 

manslaughter (count one); third-degree possession of a knife for 

an unlawful purpose (count two), N.J.S.A. 2C:39-4D; and fourthdegree unlawful possession of a knife (count three), N.J.S.A.

2C:39-5D. Defendant was acquitted of aggravated assault (count 

four). Following merger, the trial judge imposed a nine-year 

sentence, subject to the eighty-five percent parole ineligibility 

period imposed by the No Early Release Act, N.J.S.A. 2C:43-7.2, 

and three years of parole supervision upon release. 

Defendant appeals from the October 30, 2014 judgment of 

conviction and imposed sentence. Following review of the arguments 

in light of the record and applicable law, we affirm.

I.

The State presented the following evidence at trial. 

Defendant, having spent the day with his daughter, waited for 

Janet,1 the child's mother, to return home from work. As the child 

and defendant sat in his car, Janet, her infant son, her partner,

and his sister pulled up and parked facing defendant's car, parked 

in front of her apartment. The partner approached defendant's car

 

1 We have used pseudonyms for the witnesses to protect their 

privacy. 
3 A-2826-14T4

and made a comment to defendant that angered him; defendant exited 

his vehicle. Janet did not see how the fight started, but observed 

the two men fighting, with her partner "towering" over defendant. 

Janet related her unsuccessful attempts to separate the men, by 

swinging a black "stick-shaped" object she grabbed from a nearby 

trashcan. During these attempts, she struck both defendant and 

her partner. 

While Janet continued efforts to separate the men, she 

realized she was stabbed. She then saw her partner collapse and 

observed defendant holding a knife, which he dropped. Janet 

realized her partner had been repeatedly stabbed and grabbed the 

knife. She ran clutching the knife and defendant chased her. 

Defendant trapped Janet against another parked vehicle, yelling, 

"let go of the knife." Defendant tried to wrench the knife from 

Janet's hand. In the process, Janet's finger was cut, but she 

would not release the knife.

Janet's partner's sister, who remained in Janet's car also 

testified. She maintained defendant was the aggressor, she saw a 

knife in defendant's hand, saw blood on her brother's shirt and 

ran from the scene in fear. She also identified the object in 

Janet's hand as "a little piece of wood."

Defendant's daughter testified. She recalled the events 

occurring two years earlier, when she was seven. She explained 
4 A-2826-14T4

Janet's partner slowly approached defendant's car holding a "black 

stick" and banged on her father's car window. She replied "no" 

when asked if Janet's partner punched her father in the face and 

said she did not remember telling police Janet's partner punched 

her father. On cross-examination, the child reviewed her 

statement, given to police on the day of the altercation. The 

statement recorded: "when my mom got home her boyfriend got out 

of the car with a stick and then he hit my dad." When asked 

whether the child told this to the detective conducting the 

interview after the fight, the child said, "well, I don't remember. 

That's why I said I didn't see it." After additional questions 

regarding the statement, the child testified: "that's what it 

said on the paper, but . . . I didn't remember that - - that I 

said that." 

Cross-examination continued and the child was asked whether 

Janet's partner "was the first person who threw the punch at your 

father," to which the child replied "I don't remember having told 

you that." The child agreed, however, when Janet's partner threw 

his first punch, defendant was seated in his car and then exited. 

Redirect elicited this testimony: 

[WITNESS]: I remember that [Janet's partner] 

got out of the car, he went to my dad's car 

and he banged on the window. And then he --

when -- my dad put the window down he asked 

him a question. 
5 A-2826-14T4

[PROSECUTOR]: Okay. And did he hit your 

dad? Did you see your dad hit him or him hit 

your dad while your dad was still in the car? 

Do you remember any of that?

. . . . 

A: No.

Q: And what do you remember seeing 

after you saw [Janet's partner] banged on your 

dad's window?

A: He – my dad put down the window, he asked 

him – a que –

Q: Okay don't say what they said.

A: He asked him a question. And then – and 

then my dad got mad, so he got out of the car 

and then that's when they started fighting.

After Janet's partner lay on the ground, the child approached 

her parents. Defendant instructed her to get in his car and he 

drove to the Elizabeth police station, where he was questioned and 

detained. 

Janet cradled her partner's head, attempted to stop the 

bleeding, and called 9-1-1. Police responded to the apartment, 

where they found Janet and her unresponsive partner. 

Detectives collected the knife, blood stained clothing and a 

black metal rod. At the station, police photographed defendant's 

body and observed cuts on his arms and hands, which did not appear 

serious. 
6 A-2826-14T4

The county medical examiner reported Janet's partner had five 

stab wounds: two on the left side of his chest, one to the back 

of his head, one on the left side of his back, and one to the 

chest that pierced his heart. She described the length and size 

of each wound, noting the last was the only fatal wound.

Defendant took the stand in his defense. He testified he was 

in his car waiting for Janet when a man approached the vehicle and 

punched him in the face, through the open window. Defendant was 

in shock and grabbed his pocketknife, intending to scare the man. 

When he exited his car, he was assaulted by Janet, who struck him 

in the back of the head "with a tire iron," as well as her partner,

who repeatedly punched him. Janet and her partner cornered 

defendant against his car: one in front of him and one behind; two 

other men flanked also him on each side. Defendant explained he 

needed to defend himself. While he was being struck by members 

of the group, he opened his knife and just started swinging, making 

a stabbing motion. The fight suddenly stopped, as Janet's partner 

fell to the ground, and the two unidentified men "ran off." 

Defendant dropped the knife, which Janet picked up and began 

swinging toward him. He grabbed his daughter and drove directly 

to the police station, where he gave a statement. 

The jury did not find defendant guilty of first-degree 

aggravated manslaughter or aggravated assault. Rather, it 
7 A-2826-14T4

convicted defendant of the lesser-included offense of seconddegree reckless manslaughter and the weapons charges. 

II.

On appeal defendant argues:

POINT I.

[DEFENDANT]'S SELF-DEFENSE CLAIM WAS UNFAIRLY 

CIRCUMSCRIBED AT TRIAL. (Partially Raised 

Below).

(A) THE COURT TOLD THE JURY THAT THE 

SOLE EYEWITNESS STATEMENT CONFIRMING 

[DEFENDANT]'S ACCOUNT OF BEING ATTACKED WAS 

NOT CREDIBLE.

(B) THE PROSECUTOR ELICITED 

INADMISSIBLE N.J.R.E. 404(B) HEARSAY 

SUGGESTING DEFENDANT HAD A HISTORY OF STARTING 

FIGHTS.

(C) THE JURY CHARGE ON RECKLESS 

MANSLAUGHTER CONTRADICTED THE REQUIREMENT 

THAT THE STATE DISPROVE SELF-DEFENSE BEYOND A 

REASONABLE DOUBT.

(D) CONCLUSION: BECAUSE THESE THREE 

ERRORS INDIVIDUALLY AND CUMULATIVELY 

PREJUDICED MERILAN'S SELF-DEFENSE CLAIM, A NEW 

TRIAL IS REQUIRED.

POINT II.

BECAUSE THE COURT IMPOSED A SENTENCE AT THE 

HIGH END OF THE SECOND-DEGREE RANGE ONLY AFTER 

(A) FINDING IMPROPER AGGRAVATING ACTORS, AND 

(B) FAILING TO FIND CRITICAL MITIGATING 

FACTORS, A REMAND FOR RESENTENCING IS 

REQUIRED.

(A) THE COURT INAPPROPRIATELY RELIED ON 

AGGRAVATING FACTORS (1), (2), (3), AND (9) TO 

JUSTIFY IMPOSITION OF A NERA SENTENCE AT THE 

HIGH END OF THE SECOND-DEGREE RANGE.
8 A-2826-14T4

(i) The Court Erred by 

Finding Aggravating Factor (1).

(ii) The Court Erred by 

Finding Aggravating Factor (2).

 (iii) The Court Erred by 

Finding Aggravating Factor (3).

(iv) Aggravating Factor (9) 

Warranted Minimal Weight Only.

(B) THE COURT IMPOSED A NERA SENTENCE AT 

THE HIGH END OF THE SECOND-DEGREE RANGE ONLY 

AFTER FAILING TO FIND MITIGATING FACTORS (2), 

(3), (4), (8), (9), AND (12).

(i) Because [Defendant] was a 

First-Time Offender Responding to 

an Unprovoked Attack, the Court 

Erred by not Finding Mitigating 

Factors (2), (3), and (4).

(ii) Because [Defendant] was a 

First-Time Offender who Expressed 

Remorse After Responding to an 

Unprovoked Attack, the Court Erred 

by not Finding Mitigating Factors 

(8) and (9).

 (iii) Because [Defendant] 

Distinguished Himself from other 

Defendants by Immediately Driving 

to the Police Station, Turning 

Himself in, and giving a Statement 

to the Police, the Court Erred by 

Failing to Find Mitigating Factor 

(12).

(C) CONCLUSION: BECAUSE THE SENTENCING 

COURT ERRED IN ASSESSING BOTH AGGRAVATING AND 

MITIGATING FACTORS, THIS COURT MUST REMAND FOR 

RESENTENCING.
9 A-2826-14T4

We consider these arguments.

A.

First, defendant identifies three errors, which he maintains 

"unfairly circumscribed" his assertion of self-defense and 

deprived him of a fair trial. Arguing Janet's partner initiated 

an unprovoked assault and Janet joined in the attack, he contends

he was justified in defending himself with a pocketknife. 

Defendant believes evidence showing he was protecting himself 

against an unprovoked attack "was thus the lynchpin of his 

defense," requiring acquittal. 

Defendant argues the first error was the judge's comment 

during jury instruction regarding the child's statement to police. 

Defendant states the judge's comment erroneously "cast doubt on 

the sole eyewitness statement confirming [defendant]'s testimony" 

he was the victim of an unprovoked attack. 

Discussing the witness's testimony, the judge remarked: 

In regard to the testimony of [defendant's 

child], on cross-examination inconsistencies 

were shown between prior statements and those 

given on the stand. The witness gave reasons 

therefore, saying that such prior statements 

or omissions were inaccurate. Among the 

reasons given that I recall was poor 

recollection at the time.

The extent to which such inconsistencies 

or omissions reflect the truth is for you to 

determine. Consider their materiality and 

relationship to her entire testimony and all 
10 A-2826-14T4

the evidence in the case, when, where, and the 

circumstances under which they were said or 

omitted and whether the reasons she gave you 

therefore appear to be to you believable and 

logical. 

Other instructions explained the jury may consider the earlier 

statements "as proof of the fact," to which the statement applied. 

"Clear and correct jury charges are essential for a fair 

trial." State v. Cook, 300 N.J. Super. 476, 488 (App. Div. 1996) 

(citation omitted). "[T]he failure of a trial court to properly 

charge a jury is grounds for reversal, even though defense counsel 

failed to object at the appropriate time." State v. Harrington, 

310 N.J. Super. 272, 277 (App. Div. 1998). "So critical is the 

need for accuracy that erroneous instructions on material points 

are presumed to be reversible error." Ibid. (quoting State v. 

Martin, 119 N.J. 2, 15 (1990)).

Defendant did not raise an objection to the jury instructions 

at trial. Therefore, we consider whether the judge's comment rose 

to plain error. R. 2:10-2. More specifically, whether the 

challenged instruction is "of such a nature as to have been clearly 

capable of producing an unjust result." State v. Garrison, __ 

N.J. __ (2017) (slip op. at 6) (quoting R. 2:10-2). "For an error 

to require reversal, there must be 'some degree of possibility 

that [the error] led to an unjust result. The possibility must 

be real, one sufficient to raise a reasonable doubt as to whether 
11 A-2826-14T4

[it] led the jury to a verdict that it otherwise might not have 

reached.'" State v. Galicia, 210 N.J. 364, 388 (2012) (quoting 

State v. Lazo, 209 N.J. 9, 26 (2012)). 

Importantly, in our review, we must consider the jury charge 

as a whole, and examine it in its entirety. State v. Delibero, 

149 N.J. 90, 106-07 (1997). Further, the charge provisions, 

including the alleged error, should be assessed "in the context 

of the evidence." State v. Robinson, 165 N.J. 32, 47 (2000). 

The judge's comment suggesting the reason for the 

inconsistent statements by defendant's child resulted from "poor 

recollection," was accurate, as the defendant's child stated at 

trial she could not remember if she told police Janet's partner 

threw the first punch or who started the fight. She also 

acknowledged her prior statement to police relating these events. 

For purposes of our opinion, we will assume the judge's 

statement is ambiguous because it might suggest the judge recalled 

the child believed her police statement was the result of "poor 

recollection at the time." Following our review of the arguments 

in light of the record, we conclude the comment did not deprive 

defendant of a fair trial, when considered in the context of the 

total instruction given to the jury. 
12 A-2826-14T4

Importantly, the judge repeatedly informed the jury its 

recollection of the evidence controlled and it was the sole 

factfinder, stating: 

You and you alone are the sole and 

exclusive judges of the evidence, of the 

credibility of the various witnesses, and the 

weight to be attached to the testimony of each 

witness.

Regardless of what counsel said or I may 

have said recalling the evidence in this case, 

it is your recollection of the evidence that 

should guide you as judges of the facts. 

Arguments, statements, remarks, openings, and 

summations of counsel are not evidence and 

must not be treated as evidence.

Although the attorneys may point out what 

they think important in this case, you must 

rely solely upon your understanding and 

recollection of the evidence that was admitted 

during the trial. 

Moreover, the now challenged comment did not misconstrue a 

legal instruction; rather, it was designed to provide an

illustration of inconsistencies between two witness statements. 

In the same charge on the same subject, the judge also included a 

much clearer example and told the jurors to consider all evidence 

and discern whether the prior statement was correct or whether the 

different trial statement was correct. 

Finally, the child's testimony was read back to the jury at 

its request, making her statements fresh in each juror's mind when 
13 A-2826-14T4

deliberations resumed. In this light, we reject defendant's 

argument of plain error warranting reversal. 

Defendant also contends the judge erred in denying a mistrial 

after the child responded to a question by noting Janet's partner 

asked defendant why he had punched him. We reject this argument 

as lacking merit. R. 2:11-3(e)(2). 

Upon defendant's objection, the judge struck the statement 

and issued a swift, clear, strong instruction for the jury, see

State v. Vallejo, 198 N.J. 122, 134-35 (2009), ordering jurors to 

disregard the witness's inadvertent response to the prosecutor's 

inartful question and firmly told the jury not consider it in 

deliberations, "in any manner, size, shape, or form during the 

course of this trial." We find no abuse of discretion in denying 

the resultant motion for mistrial. "[W]e trust juries to follow 

instructions." State v. Short, 131 N.J. 47, 65 (1993); see also

State v. Winter, 96 N.J. 640, 649 (1984) (holding that jury is 

capable of following a curative instruction to ignore prejudicial 

matter). We have no reason to conclude the jury did not do so in 

this case.

Finally, defendant argues the self-defense instructions 

misleadingly suggested that the State did not 

need to disprove self-defense beyond a 

reasonable doubt in order for the jury to 

convict [defendant] . . . . These 

instructions were misleading because they 
14 A-2826-14T4

suggested the State only had to prove 

[defendant] violated the elements found in the 

specific criminal statutes . . . . But the 

State also had to prove beyond a reasonable 

doubt the absence of the justification defense 

. . . .

The judge tailored his charge, guided by the Model Jury 

Charges on reckless manslaughter and self-defense. Defendant 

agreed the charge was appropriate and raised no objection at trial. 

We disagree with the suggestion that the charge as issued was 

erroneous or confusing, and reject defendant's claim of plain 

error. We also reject as lacking merit defendant's claim of 

cumulative error. R. 2-11:3(e)(2).

B.

Defendant raises several arguments challenging the imposed 

sentence of nine years. We review sentencing decisions for an 

abuse of discretion. State v. Blackmon, 202 N.J. 283, 297 (2010). 

Appellate courts review sentencing 

determinations in accordance with a 

deferential standard. The reviewing court 

must not substitute its judgment for that of 

the sentencing court. State v. O'Donnell, 117 

N.J. 210, 215 (1989). The appellate court 

must affirm the sentence unless (1) the 

sentencing guidelines were violated; (2) the 

aggravating and mitigating factors found by 

the sentencing court were not based upon 

competent and credible evidence in the record; 

or (3) "the application of the guidelines to 

the facts of [the] case makes the sentence 

clearly unreasonable so as to shock the 

judicial conscience." State v. Roth, 95 N.J.

334, 364-65 (1984). 
15 A-2826-14T4

[State v. Fuentes, 217 N.J. 57, 70 (2014).]

When the trial judge properly identifies and balances the 

aggravating and mitigating factors, which are supported by 

sufficient credible evidence in the record, we will affirm the 

sentence. State v. Cassady, 198 N.J. 165, 180-81 (2009).

Here, the judge found aggravating factors one (the act was 

committed in a heinous, cruel, or depraved manner), two (the 

gravity and seriousness of harm inflicted on the victim, including 

whether defendant knew or reasonably should have known the victim 

was particularly vulnerable or incapable of resistance), three 

(risk defendant will re-offend), and nine (need for deterrence). 

N.J.S.A. 2C:44-1(a)(1), (2), (3), (9). The judge also applied 

mitigating factors five (the victim induced or facilitated 

defendant's conduct) and seven (defendant has no history of prior 

delinquency or criminal activity). N.J.S.A. 2C:44-1(b)(5), (7). 

Defendant argues the imposed sentence was excessive because

the trial judge: (a) improperly applied aggravating factors one, 

two, and three; (b) failed to apply applicable mitigating factors 

two (defendant did not contemplate his conduct would cause serious 

harm), nine (defendant's character and attitude show it is unlikely

he will commit another offense), and twelve (defendant cooperated 

with law enforcement), see N.J.S.A. 2C:44-1(b)(2), (9), (12), 
16 A-2826-14T4

although requested by defendant; and (c) did not consider 

application of mitigating factors three (defendant acted under 

strong provocation), four (substantial grounds tending to excuse 

or justify defendant's conduct, though failing to establish a 

defense) and eight (defendant's conduct was the result of 

circumstances unlikely to recur). See N.J.S.A. 2C:44-1(b)(3), 

(4), (8). We consider each of these arguments.

1.

Defendant argues aggravating factor one was not applicable. 

The judge applied the factor because defendant chose to engage 

Janet's partner, instead of driving away. Defendant asserts this 

conduct goes to recklessness; therefore, the judge's finding 

double counted an element of the offense. We disagree. 

In Fuentes, the Supreme Court recently discussed this exact 

issue, stating:

When applying this factor, "the sentencing 

court reviews the severity of the defendant's 

crime, 'the single most important factor in 

the sentencing process,' assessing the degree 

to which defendant's conduct has threatened 

the safety of its direct victims and the 

public." State v. Lawless, 214 N.J. 594, 609 

(2013) (quoting [State v. ]Hodge, 95 N.J.

[369,] 379 [(1984)]). As the Court has held, 

"[t]he paramount reason we focus on the 

severity of the crime is to assure the 

protection of the public and the deterrence 

of others. The higher the degree of the crime, 

the greater the public need for protection and 
17 A-2826-14T4

the more need for deterrence." State v. 

Megargel, 143 N.J. 484, 500 (1996).

When it assesses whether a defendant's 

conduct was especially "heinous, cruel, or 

depraved," a sentencing court must 

scrupulously avoid "double-counting" facts 

that establish the elements of the relevant 

offense. See State v. Yarbough, 100 N.J. 627, 

645 (1985); [State v. ]Kromphold, 162 N.J.

[345,] 352 [(2000)]. As this Court observed:

[In Yarbough], we recognized that 

facts that established elements of 

a crime for which a defendant is 

being sentenced should not be 

considered as aggravating 

circumstances in determining that 

sentence. We reasoned that the 

Legislature had already considered 

the elements of an offense in the 

gradation of a crime. If we held 

otherwise, every offense arguably 

would implicate aggravating factors 

merely by its commission, thereby 

eroding the basis for the gradation 

of offenses and the distinction 

between elements and aggravating 

circumstances. In the same manner, 

double-counting of elements of the 

offenses as aggravating factors 

would be likely to interfere with 

the Code's dedication to uniformity 

in sentencing.

[Kromphold, supra, 162 N.J. at 353 

(internal citation omitted).]

In appropriate cases, a sentencing court 

may justify the application of aggravating 

factor one, without double-counting, by 

reference to the extraordinary brutality 

involved in an offense. See [State v.] 

O'Donnell, 117 N.J. [210,] 217 [(1989)]. In 

O'Donnell, supra, the Court held that "cruel" 
18 A-2826-14T4

conduct may give rise to an aggravating factor 

in a manslaughter sentencing when the 

defendant intended "'to inflict pain, harm and 

suffering — in addition to intending death.'" 

Id. at 217-18 (quoting State v. Ramseur, 106 

N.J. 123, 208 (1987)); see also State v. Soto, 

340 N.J. Super. 47, 54-55, 71-72 (App. Div.), 

certif. denied, 170 N.J. 209 (2001) (affirming 

application of aggravating factor one when 

trial court noted protracted suffering 

inflicted and brutal killing of victim); State 

v. Mara, 253 N.J. Super. 204, 214 (App. Div.

1992) (affirming sentencing court's finding 

that aggravating factor one applied when, in 

aggravated assault case, "the serious injuries 

were far in excess of that required to 

satisfy" statutory elements). A sentencing 

court may consider "aggravating facts showing 

that [a] defendant's behavior extended to the 

extreme reaches of the prohibited behavior." 

State v. Henry, 418 N.J. Super. 481, 493 (Law 

Div. 2010) (citing State v. Taylor, 226 N.J. 

Super. 441, 453 (App. Div. 1988)).

[Fuentes, supra, 217 N.J. at 74-75.]

Here, the judge's comment, suggesting defendant could have 

driven away but instead exited his vehicle secreting a knife, 

reflects the manner in which defendant acted and the cruel nature 

of the killing. We do not agree the trial judge abused his 

discretion in applying this factor. See State v. Bowens, 108 N.J.

622, 639 (1987) (focusing on the "brutal, senseless nature of [a] 

stabbing"). We also note the judge lessened the weight of this 

factor, finding it was "offset" by mitigating factor five, noting 

the victim initiated the altercation. 
19 A-2826-14T4

In applying aggravating factor two, the judge recognized the 

seriousness of the harm that resulted from defendant's actions. 

He found defendant escalated a fistfight by employing a knife.

Thus, the victim was vulnerable because he "was in no [way] 

prepared to stave off a knife fight, so obviously when a knife is 

brought to a dispute there is some vulnerability for the victim." 

Defendant's claim of double-counting characterizing this finding 

as representing the "use of deadly force" is rejected. 

"[Aggravating factor two] compels 'a pragmatic assessment of 

the totality of harm inflicted by the offender on the victim.'" 

State v. Anthony, 443 N.J. Super. 553, 575-76 (App. Div. 2016) 

(quoting Lawless, supra, 214 N.J. at 610.) "It focuses on the 

setting of the offense itself with particular attention to any 

factors that rendered the victim vulnerable or incapable of 

resistance at the time of the crime." Ibid. (quoting Lawless, 

supra, 214 N.J. at 611). In State v. Faucette, 439 N.J. Super.

241 (App. Div. 2015), we affirmed the application of aggravating 

factor two when the defendant was aware his co-defendant was armed 

with a gun as he went to rob an unsuspecting gas station attendant, 

reciting the trial judge's stated findings: "The victim was just 

plain vulnerable and had no chance whatsoever. . . ." Id. at 272.

In our view, the judge's findings reflect those facts 

identified in Faucette. As the trial judge stated, defendant used 
20 A-2826-14T4

a knife in a fistfight, making the unsuspecting victim vulnerable.

Additionally, the judge did not accord heavy weight to this

finding. 

Next, applying aggravating factor three, the judge cited 

defendant's prior alcohol use, lack of stable employment, and 

conduct, including commission of domestic violence and a municipal

court offense, represented a deviation from the standards of 

society, from which he concluded defendant was likely to engage 

in future criminal conduct. However, defendant argues this was 

his first criminal offense and the evidence cited was insufficient

to support the finding he will reoffend. 

Defendant's contention that aggravating factor three cannot 

coexist with mitigating factor seven, is not correct. See State 

v. Case, 220 N.J. 49, 67 (2014) ([W]e do not presume that 

aggravating factor three cannot coexist with mitigating factor 

seven . . . ."); State v. Varona, 242 N.J. Super. 474, 491 (App. 

Div.), certif. denied, 122 N.J. 386 (1990) (finding aggravating 

factor three despite lack of prior record). The issue is whether 

the cited factual findings are grounded in competent, credible 

evidence in the record. See Roth, supra, 95 N.J. at 363. 

We reject the generalities of social alcohol use, cited by 

the judge, as support for the likelihood of re-offense. Also, the 

pre-sentence report identifies defendant was employed at the time 
21 A-2826-14T4

this offense occurred and the judge did not explain why he found 

defendant's employment was unstable. 

That said, the judge did mention three other facts bearing 

on application of aggravating factor three. First, he noted 

defendant had been involved in domestic violence matters. 

Documents show final restraining orders were granted against 

defendant for assault in January 2007 and again in March 2007. 

Further, matters tried in municipal court included charges for 

disturbing the peace and shoplifting in 2006 and downgraded charges 

of resisting arrest to improper behavior in 2009, both of which 

resulted in suspended jail sentences. The judge stated defendant 

was not deterred by these interactions with the justice system and 

diversionary programs. He also found defendant's conduct,

although not criminal, showed a "deviation or . . . violation of 

the standard mores of society" tending to suggest he will reoffend. 

Finally, when discussing deterrence, the judge mentioned 

defendant's lack of appreciation for the gravity of his conduct 

and his insistence the killing was justified. This finding also 

bears on likelihood of re-offense. In sum, adequate evidence 

supporting application of aggravating factor three was presented. 

Defendant's suggestion the judge erred because application 

of aggravating factor nine (deterrence) deserved little weight is 

rejected. See R. 2:11-3(e)(2). The findings regarding specific 
22 A-2826-14T4

and general deterrence were adequately stated and will not be 

disturbed. 

We turn to the trial judge's rejection of requested 

application of mitigating factors. Defendant correctly asserts 

mitigating factors that are called to the court's attention should 

not be ignored, Blackmon, supra, 202 N.J. at 297, "and when 'amply 

based in the record . . . they must be found.'" Case, supra, 220 

N.J. 49, 64 (quoting State v. Dalziel, 182 N.J. 494, 504 (2005)). 

During the deliberative process, a judge, must state the basis for 

rejecting a claimed mitigating factor. Ibid.

The judge fully rejected application of mitigating factor 

two, noting defendant could not arm himself with a deadly weapon 

and believe serious harm would not result. We conclude defendant's 

arguments to the contrary are specious. 

We also conclude the judge's reliance on defendant's past 

conduct, including domestic violence, shoplifting, and a 

downgraded resisting arrest offense, was insufficient to deter him 

from engaging in future criminal conduct. These facts reflect 

supporting the rejection of mitigating factor nine. 

Defendant also argues the judge erroneously denied 

application of mitigating factor twelve. Defendant urges he 

cooperated with police by driving to the stationhouse immediately 

after the stabbing and voluntarily gave a statement. In rejecting 
23 A-2826-14T4

application of this factor, the judge found defendant's motives 

were not to cooperate, but to give his version of the incident, 

asserting he was a victim of an unprovoked attack, before police 

spoke to Janet, who he knew had called 9-1-1. The judge also 

noted defendant falsely told police there were two other men 

involved with the assault, in an attempt to justify his fear for 

his life. In this light, we do not agree the judge abused his 

discretion in denying application of factor twelve. 

For the first time on appeal, defendant asserts the judge 

should have applied mitigating factor three, defendant acted under 

strong provocation. We disagree. The facts show defendant was 

confronted by Janet's partner, who along with Janet, struck him 

in the course of the altercation. Defendant's testimony asserting 

his life was threatened requiring he act in self-defense was 

rejected by the jury and belied by the evidence, including the 

testimony of the arresting officer along with photographic 

evidence showing defendant suffered mere minor injuries. Further, 

no support existed for defendant's claim two additional attackers 

were involved, but fled. 

We reject as unfounded defendant's claim to apply mitigating 

factor four, suggesting substantial grounds existed tending to 

excuse or justify defendant's conduct, though failing to establish 

a defense. The State appropriately refuted this request stating, 
24 A-2826-14T4

"a strike to the face does not justify a stab to the heart." 

Moreover, the claim of self-defense was rejected by the jury, such 

that the killing was not found justified. See State v. Kelly, 97 

N.J. 178, 204 n.12 (1984) ("[S]elf-defense based on a reasonable 

belief in the need for deadly force would constitute justification 

— a complete defense — to the charge of reckless manslaughter.");

State v. Hines, 303 N.J. Super. 311, 323 (App. Div. 1997) ("Selfdefense is a complete defense not only to murder but also to 

manslaughter . . . ."). 

Defendant further maintains for the first time, his conduct 

was the result of circumstances unlikely to recur, warranting 

application of mitigating factor eight. He argues the facts 

surrounding the assault, including attacks by Janet and her 

partner, were unusual, and therefore, unlikely to reoccur. We are 

unpersuaded. The trial judge noted defendant's prior domestic 

violence and municipal court charges involved altercations, which 

we note are reflective of an inability to walk away from such 

physical encounters, when challenged.

The judge properly applied and balanced applicable 

aggravating and mitigating factors. The term imposed fell within 

the range applicable to defendant's conviction. Consequently, we 

determine there is no basis to interfere with this sentence.

Affirmed.