SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0117-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWIN A. JIMENEZ, a/k/a SURIEL

ADAN CUBENO-JIMENEZ,

Defendant-Appellant.

Submitted January 29, 2018 – Decided

Before Judges Messano and O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Passaic County, Indictment Nos. 

11-02-0117 and 12-08-0637.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Susan Brody, Deputy Public 

Defender, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Tom Dominic Osadnik, 

Assistant Prosecutor, of counsel and on the 

brief).

Appellant filed a pro se supplemental 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NOT FOR PUBLICATION WITHOUT THE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.

June 18, 2018
2 A-0117-15T2

A jury convicted defendant Edwin A. Jimenez of two counts of 

passion/provocation manslaughter in the deaths of I.P. and S.M., 

N.J.S.A. 2C:11-4(b)(2); second-degree aggravated assault of D.V., 

N.J.S.A. 2C:12-1(b) (causing serious bodily injury (SBI)); three 

counts of second-degree possession of a firearm for an unlawful 

purpose, N.J.S.A. 2C:39-4(a)(1); and second-degree illegal 

possession of a handgun, N.J.S.A. 2C:39-5(b)(1).1 The same jury 

found defendant guilty after a bifurcated second trial of seconddegree possession of a firearm by certain persons prohibited from 

having such weapons, N.J.S.A. 2C:39-7(b). The judge imposed three 

consecutive nine-year terms of imprisonment on the manslaughter 

and aggravated assault convictions, each subject to the No Early 

Release Act, N.J.S.A. 2C:43-7.2, and a consecutive eight-year term 

of imprisonment, with a five-year period of parole ineligibility, 

on the certain persons conviction.

Defendant raises the following points for our consideration: 

POINT I

THE COURT ERRED IN REFUSING TO SUPPRESS 

DEFENDANT'S STATEMENT BECAUSE THE POLICE

INTERROGATOR THREATENED HIM WITH THE DEATH 

PENALTY AND COERCED HIM BY GIVING HIM FALSE 

INFORMATION ABOUT THE LAW, SOME OF WHICH

 

1 The jury returned verdicts of passion/provocation manslaughter 

as lesser-included offenses of the two murder counts in the 

indictment; the SBI aggravated assault was a lesser-included 

offense of attempted murder. We use initials to keep the victims' 

identities confidential.
3 A-0117-15T2

DIRECTLY CONTRADICTED THE MIRANDA WARNINGS HE 

HAD JUST RECEIVED.

POINT II

THE TRIAL WAS IRREPARABLY TAINTED BY THE 

PROSECUTOR'S MULTIPLE ACTS OF MISCONDUCT. (NOT 

RAISED BELOW)

POINT III

THE 35-YEAR AGGREGATE SENTENCE IMPOSED WAS 

MANIFESTLY EXCESSIVE.

Appellant also provided additional points for our 

consideration in his pro se supplemental brief.

POINT I

THE DEFENDANT'S CONVICTION ON COUNT 5 MUST BE 

REVERSED BECAUSE THE TRIAL COURT'S JURY 

INSTRUCTION ON AGGRAVATED ASSAULT-SERIOUS 

BODILY INJURY WAS FATALLY FLAWED. THIS ERROR 

DEPRIVED THE DEFENDANT OF A PROPERLY 

INSTRUCTED JURY AND A FAIR TRIAL, IN VIOLATION 

OF U.S. CONST. AMENDS. VI, XIV. (NOT RAISED 

BELOW).

POINT II

ABSENT RELEVANT MEDICAL EVIDENCE TO SUSTAIN A 

LESSER-INCLUDED OFFENSE ON COUNT 5, THE TRIAL 

COURT ERRED BY INSTRUCTING THE JURY ON 

AGGRAVATED MANSLAUGHTER-SERIOUS BODILY 

INJURY; OR IN THE ALTERNATIVE, BY NOT ENTERING 

A JUDGMENT OF ACQUITTAL DUE TO LACK OF 

EVIDENCE OF THE SERIOUSNESS OF THE VICTIM'S 

INJURIES TO SUPPORT A CONVICTION ON AGGRAVATED 

ASSAULT-SERIOUS BODILY INJURY. (NOT RAISED 

BELOW).
4 A-0117-15T2

POINT III

THE JUDGMENT OF CONVICTION ON COUNT 5 REFLECTS 

THE DEFENDANT WAS SENTENCED ON AGGRAVATED

ASSAULT-BODILY INJURY, PURSUANT TO N.J.S.A. 

2C:12-1(b)(7). THE DEGREE OF THE CRIME IS 

INCORRECTLY LISTED AS A SECOND-DEGREE CRIME 

INSTEAD OF A THIRD-DEGREE CRIME. THE COURT 

MUST RESOLVE THIS CONFLICT. (NOT RAISED

BELOW)

Having considered these arguments in light of the record and 

applicable legal standards, we affirm defendant's conviction, and 

the sentences imposed. We remand solely for the filing of a 

corrected judgment of conviction (JOC).

I.

We briefly synopsize the State's evidence to place 

defendant's arguments in context.

At approximately 7:00 p.m. on February 18, 2012, the three 

victims and a fourth man, A.M., were standing outside a bodega in 

Passaic. Defendant walked toward them and began firing a handgun. 

A.M. ran inside the bodega, pulled D.V., who had already been 

shot, inside the store and hid behind a counter. Defendant fired 

through the door of the store, shattering the glass, and fled. 

There were no spent shell casings at the scene, but police 

recovered two projectiles from inside the store and an apparent 

hallway.
5 A-0117-15T2

A.M. also fled, but police found him later in the evening and 

took a statement from him. A.M. identified a photograph of 

defendant as the shooter, and also identified defendant in court, 

testifying that he knew him from high school.2

Around midnight, Clifton police stopped a motor vehicle 

driven by defendant's brother; defendant was the front seat 

passenger. Defendant had two bags of marijuana in his jacket, and 

police found a revolver under the driver's seat.

Passaic Police Department Detective Alex Flores interrogated 

defendant. After conducting a hearing pursuant to N.J.R.E. 104(c), 

which we discuss below, the judge admitted defendant's videorecorded statement to Flores. Defendant admitted that he bought 

the gun earlier in the evening of February 18 for $300 and shot 

all three men, who defendant knew from school. Defendant claimed 

the men were "after him," and had allegedly fired shots at 

defendant one week earlier.

Defendant did not testify or call any witnesses.

 

2 The jury acquitted defendant of the attempted murder of A.M. and 

related weapons charge.
6 A-0117-15T2

II.

Detective Flores was the only witness at the pretrial hearing 

on the admissibility of defendant's statement to police.3 

Defendant and the detective are bilingual, and the statement, 

although mostly in English, included snippets of questions and 

answers in Spanish. The prosecutor told the judge a transcript 

was prepared that included translations of the Spanish words, that 

she and defense counsel had reviewed the transcript and, but for 

minor modifications, agreed it was accurate.

Flores knew A.M. had already identified defendant as the 

shooter. He initially questioned defendant about the gun found 

in the car, reminding defendant that he knew defendant's father 

and had his cellphone number. Defendant did not immediately 

provide any information, other than his alleged whereabouts 

earlier that evening. Flores told defendant that he was a young 

man, and he would help himself by telling the truth. Defendant 

 

3 At the start of the interrogation, defendant indicated he was 

more comfortable speaking Spanish. The detective utilized a 

Spanish language Miranda rights form that he read aloud as 

defendant followed along, indicating he understood each right 

before signing the form and agreeing to speak to Flores. Miranda 

v. Arizona, 384 U.S. 436 (1966). The judge found that defendant 

knowingly and voluntarily waived his Miranda rights, a finding 

that defendant does not challenge on appeal.
7 A-0117-15T2

soon told Flores he purchased the gun from an unnamed person just 

hours before the shooting.

At that point, Flores told defendant he was suspected in the 

homicides, intimating that ballistics could match the bullets 

recovered from the victims to defendant's gun.4 Flores said:

[I]f it wasn't you, that's fine. Talk to me. 

I'm telling you this. Like I told you before 

that the game you're in right now, you're 

never gonna see the sun. Two dead, one 

injured. In this country, it isn't . . . the 

death penalty but if they look for it, they 

can find it. You're 20 years old. In this 

moment you have to think clearly. If you did 

something, say it because this – this is the 

only thing that the judge wants to hear.

Defendant asked Flores "[w]hat can happen to my brother?" Flores

told defendant he had not yet spoken to the others in the car, 

including defendant's brother, but that defendant should "worry 

about [himself] right now."

Defendant asked, "How many years do you think they'll give 

me?" Flores responded,

For cases that I've had that people don't say 

s***, they hit them hard. They hit hard with 

30, 50 years . . . .

When you help yourself, they see that. When 

you sit here and lie . . . they hit you hard 

 

4 No ballistic testing had been done at that point. At trial, the 

parties stipulated that the analysis of four projectiles, two 

recovered from the scene and two recovered from the bodies of the 

deceased, was inconclusive.
8 A-0117-15T2

bro. I ain't going to lie, they f*** the s*** 

out of you.

. . . .

Not even for lying, just from making . . . me 

work and making them work to find out the truth 

when we already know the truth.

Thirty-two minutes into the interrogation, defendant 

confessed to the shootings. He identified pictures of the three 

victims and A.M. Defendant again indicated his brother, who had 

a young son, had nothing to do with the shooting.

After hearing the argument of counsel, the judge rendered an 

oral decision. He noted the ability to view the video recording 

was "critical" to his assessment of the "totality of the 

circumstances" and his consideration of whether the "statement 

itself was voluntary and not the product of coercion, or official 

misconduct." The judge said Flores' reference to the "death 

penalty" was a "red herring," because it was vague and came in the 

context of a discussion of "potential penalties." He paraphrased 

Flores' remarks to defendant as "look there's no question, you're 

gonna get jail time here. I can't really tell you how much . . . . 

I don't know. I can't tell you that." The judge went on to find:

[W]hat you have is a very cordial and very 

comfortable exchange between the defendant and 

the police officer. The mere fact that this 

police officer apparently knows the defendant 

from the streets, knows the defendant's 

brother, knows his parents, shouldn't work 
9 A-0117-15T2

against the police. That would be . . . 

ludicrous.

In fact, it seemed at least, to put the 

defendant in a comfort zone. There was no 

raising of voices, there was no overt coercive 

acts on the part of the officer. There were 

no major misrepresentations by the 

officer. . . . [I]t appeared at times that 

the officer . . . had a genuine concern for 

the defendant, and particularly for the 

defendant's father.

. . . . 

[W]hen you look at that entire tape, I 

can't see how anybody can walk away from it 

and say, there was this coercive aspect to it, 

which renders the statement . . . involuntary.

Defendant contends Flores' statements urging him to provide 

information as the only way to help himself or garner favor with 

a judge essentially contradicted the Miranda warnings and 

neutralized defendant's waiver of those rights. We disagree.

"Appellate courts reviewing a grant or denial of a motion to 

suppress must defer to the factual findings of the trial court so 

long as those findings are supported by sufficient evidence in the 

record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State 

v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J. 

224, 243 (2007)). We apply this deferential standard "even [to] 

factfindings based solely on video or documentary evidence," 

"taking corrective action [only] when factual findings are so 

clearly mistaken -- so wide of the mark -- that the interests of 
10 A-0117-15T2

justice demand intervention." State v. S.S., 229 N.J. 360, 379, 

381 (2017). "By contrast, the task of appellate courts generally 

is limited to reviewing issues of law," which we do de novo. Id.

at 380.

Even when Miranda warnings are properly administered, "the 

State bears the burden of proving beyond a reasonable doubt that 

a defendant's confession is voluntary and not resultant from 

actions by law enforcement officers that overbore the will of a 

defendant." Hubbard, 222 N.J. at 267 (citing State v. Hreha, 217 

N.J. 368, 383 (2014); State v. Galloway, 133 N.J. 631, 654 (1993)). 

"Determining whether the State has met that burden requires a 

court to assess 'the totality of the circumstances, including both 

the characteristics of the defendant and the nature of the 

interrogation.'" Hreha, 217 N.J. at 383 (quoting Galloway, 133 

N.J. at 654).

Defendant cites cases in which the interrogation techniques 

employed by law enforcement actually contradicted or undermined 

the Miranda warnings, resulting in suppression of the defendant's 

statement. In State v. Pillar, 359 N.J. Super. 249, 268 (App.

Div. 2003), we held that a detective's "acquiescence to hear an 

'off-the-record' statement" from the defendant "totally 

undermine[d] and eviscerate[d] the Miranda warnings." Similarly 

in State v. Fletcher, 380 N.J. Super. 80, 87-88 (App. Div. 2005), 
11 A-0117-15T2

one detective, a friend of the family, told defendant, "If you 

come in and help us off-the-record, it's a feather in your cap, 

it will help you. It is good for you to cooperate . . . ." The 

defendant waived his rights and gave an incriminating statement 

to another detective. Id. at 88. Relying on Pillar, we concluded 

the defendant's statement was "induced by the promise and not 

freely and voluntarily given." Id. at 82. Lastly, in State v. 

Puryear, 441 N.J. Super. 280 (App. Div. 2015), we suppressed the 

defendant's statement because the detective, in explaining the 

Miranda rights' caveat that anything said could be used against 

the defendant, told him that meant, "if you lie, it can be used 

against you." Id. at 290.

None of these cases support defendant's argument in this case 

because Flores never represented the statement would be "off-therecord," nor did he incorrectly explain the Miranda warnings. At 

most, Flores told defendant it would be in his best interest to 

tell the truth.

In this regard, defendant relies on State ex rel. A.S., 203 

N.J. 131 (2010). Citing Pillar, the Court there agreed the 

detective should not have told the fourteen-year-old defendant 

that answering his questions "would show that she was a 'good 

person' and would actually benefit [the defendant]." Id. at 150-

51. "Not only was the veracity of such advice dubious, a fact of 
12 A-0117-15T2

which an attorney would have made A.S. aware, it also contradicted 

the Miranda warning provided to A.S.: that anything she said in 

the interview could be used against her in a court of law." Ibid.

However, we view A.S. as distinguishable from the facts of 

this case. Defendant is not a juvenile and, at age twenty, already 

had familiarity with the criminal justice system. See id. at 149 

(noting A.S. was "on the cusp for heightened protections because 

a fourteen-year-old is still of tender sensibilities and may have 

great difficulty withstanding the rigors of a police 

interrogation"). A.S.'s parent, although present, failed to act 

as the buffer between police and her stepdaughter, and actually 

assisted police in overriding the child's reluctance to answer 

questions. Id. at 149-50. The parent's misstatements of law 

regarding Miranda went uncorrected by police. Id. at 150-51. The 

Court suppressed the statement based upon the totality of these 

circumstances, id. at 152, not solely the officer's assurance that 

A.S. could help herself by providing a statement.

The Court has long recognized that "[e]fforts by a law 

enforcement officer to persuade a suspect to talk 'are proper as 

long as the will of the suspect is not overborne.'" State v. 

Maltese, 222 N.J. 525, 544 (2015) (quoting State v. Miller, 76 

N.J. 392, 403 (1978)). "The inquiry turns on 'whether an 

investigator's statements were so manipulative or coercive that 
13 A-0117-15T2

they deprived [defendant] of his ability to make an unconstrained, 

autonomous decision to confess.'" Ibid. (alteration in original) 

(quoting State v. Di Frisco, 118 N.J. 253, 257 (1990)).

In Miller, 76 N.J. at 403-04, the Court squarely considered

"whether an interrogating officer can appeal 

to a suspect by telling him that he is the 

suspect's friend and wants to help him. . . . 

Does the officer have the right to tell the 

suspect that he must help himself first by 

telling the truth and then the officer will 

do what he can to help the suspect with his 

problem?"

The Court conceded "this technique moves into a shadowy area and 

if carried to excess in time and persistence, can cross that 

intangible line and become improper." Id. at 404. However, 

"[e]fforts by an interrogating officer to dissipate" a suspect's 

"natural reluctance to admit to the commission of a crime" "and 

persuade the person to talk" are proper unless the suspect's will 

is overborne. Id. at 403.

In this case, the factual findings made by the judge were 

supported by substantial, credible evidence in the record. Flores'

questioning was relatively brief, and he told defendant that he 

would be incarcerated whether he made a statement or not. The 

detective's dubious claim about the likelihood of defendant's 

cooperation leading to a lesser sentence should not be condoned. 

Nevertheless, as the judge found based upon the overall tenure of 
14 A-0117-15T2

the interview, Flores' interrogation techniques did not overbear 

defendant's free will.

III.

Defendant argues the prosecutor's "multiple acts of 

misconduct," none of which was objected to by defense counsel at 

trial, require reversal. Again, we disagree.

While prosecutors are entitled to zealously argue the merits 

of the State's case, State v. Smith, 212 N.J. 365, 403 (2012), 

they occupy a special position in our system of criminal justice. 

State v. Daniels, 182 N.J. 80, 96 (2004). "[A] prosecutor must 

refrain from improper methods that result in a wrongful conviction, 

and is obligated to use legitimate means to bring about a just 

conviction." Ibid. (quoting State v. Smith, 167 N.J. 158, 177 

(2001)).

In considering defendant's argument, we examine whether a 

timely objection was made, whether the remarks were withdrawn, or 

whether the judge acted promptly and provided appropriate 

instructions. Smith, 212 N.J. at 403. "Generally, if no objection 

was made to the improper remarks, the remarks will not be deemed 

prejudicial." State v. R.B., 183 N.J. 308, 333 (2005). Even if 

the prosecutor exceeds the bounds of proper conduct, "[a] finding 

of prosecutorial misconduct does not end a reviewing court's 

inquiry because, in order to justify reversal, the misconduct must 
15 A-0117-15T2

have been 'so egregious that it deprived the defendant of a fair 

trial.'" Smith, 167 N.J. at 181 (quoting State v. Frost, 158 N.J. 

76, 83 (1999)).

In her opening, the assistant prosecutor invited jurors to 

imagine themselves at the scene of the homicides and then 

described, in somewhat gruesome detail, what they would have seen. 

In his summation, a different assistant prosecutor attempted to 

explain A.M.'s reluctance to sign defendant's photograph when 

questioned by police on the night of the homicides and his initial 

reluctance to testify when called at trial.

Now, I am sure none of us have ever experienced 

anything like [A.M.] did. I certainly hope 

so and I'm sure you would be sure enough to 

share that with us if that was the case. But 

there are a few times I'm going to ask you to 

kind of put yourself in somebody's shoes. 

Think about this.

Think about what that must be like. [A.M.] 

was shot at, saw all of his friends [sic] 

blood, saw his two friends outside, one dead, 

clearly the other, you know, where it's 

headed. What must that be like? How does 

that make you feel?

How do you react to that? Well, we've got to 

follow [A.M.] a little bit and his reaction. 

He's taken to police headquarters and he 

knows, of course, the police are going to ask 

him . . . what happened. Now, if any of us 

was in that situation and somebody asked us 

what should we do.

Of course, you tell the police you saw the 

shooting. You tell them two kids are dead. 
16 A-0117-15T2

Of course. It's innocent heinous, right? 

Well, put yourself in his shoes. You're at 

police headquarters. You saw somebody commit 

cold blooded murder.

What do you do? What do you do? Is it so 

easy to sit there and tell the police I saw 

it, I know who did it because you still live 

there and you have a family. What do you do? 

Is it such an easy decision?

[(emphasis added).]

We do not countenance emotional appeals to the jury. State 

v. Blakney, 189 N.J. 88, 96 (2006). Moreover, asking the jurors 

to place themselves in the shoes of the victim has been soundly 

discouraged by other courts that have considered the tactic. See, 

e.g., Tyree v. United States, 942 A.2d 629, 643 (D.C. 2008). 

However, the prosecutor's opening remarks were brief and made at 

the very beginning of a trial that lasted several days. As to the 

summation comments, we note that defense counsel portrayed the 

shootings as "brutal indeed," described the "copious amounts of 

blood" at the scene, and the victims' pleas for life. He called 

the homicides "call[o]us and cold-blooded," perhaps "an 

assassination." "Our task is to consider the fair import of the 

State's summation in its entirety," State v. Jackson, 211 N.J. 

394, 409 (2012) (citations omitted), particularly in light of 

defense counsel's failure to object. The prosecutor's comments 

did not deprive defendant of a fair trial.
17 A-0117-15T2

Defendant also argues the prosecutor laced her direct 

examination of Flores before the jury with improper questions 

calling upon the detective to interpret what was happening, or 

explain what defendant was doing, as the jury viewed the videorecorded statement. At points, despite no objection by defense 

counsel, the judge interrupted and admonished the prosecutor. In 

doing so, the judge acted properly, because we have no doubt these 

questions were inappropriate. However, we are convinced that the 

prosecutor's actions did not amount to plain error requiring 

reversal. R. 2:10-2.

To the extent we have not otherwise specifically addressed 

them, defendant's remaining claims of prosecutorial misconduct and 

the alleged cumulative effect of the prosecutor's actions do not

warrant discussion in a written opinion. R. 2:11-3(e)(2).

IV.

In his pro se supplemental brief, defendant challenges the 

jury's guilty verdict on count five of the indictment. As noted, 

the jury found defendant guilty of second-degree SBI aggravated 

assault of D.V. as a lesser-included offense of attempted murder. 

Defendant contends the judge repeated a portion of the charge 

after giving jurors a break, thereby unduly emphasizing the 

requisite mental state required for a conviction, and used "bodily 
18 A-0117-15T2

injury" instead of "serious bodily injury" at one point during the 

charge.

Defendant also argues the judge erred in submitting SBI 

aggravated assault to the jury because D.V. did not testify and 

there was insufficient proof that he suffered "serious bodily 

injury" as a result of the shooting.

These arguments lack sufficient merit to warrant discussion. 

R. 2:11-3(e)(2). The judge properly explained the elements of SBI 

bodily injury. D.V. suffered gunshot wounds to the face and 

shoulder, and his hospital records were admitted into evidence by

stipulation.

Lastly, defendant properly points out that the JOC 

incorrectly lists count five as a conviction for aggravated 

assault, N.J.S.A. 2C:12-1(b)(7), causing significant bodily 

injury, a third-degree crime. We therefore remand the matter to 

the trial court to correct the JOC to reflect defendant's 

conviction under count five for SBI aggravated assault, N.J.S.A. 

2C:12-1(b)(1).

V.

Defendant contends the aggregate thirty-five year sentence 

was manifestly excessive. He points to comments made by the judge 

as indicative of the judge's intention to impose the harshest 

possible sentence because of the jury's decision to acquit 
19 A-0117-15T2

defendant of two murders. Defendant contends the judge 

inappropriately applied the Yarbough5 factors to impose 

 

5 The Yarbough factors are:

(1) there can be no free crimes in a system 

for which the punishment shall fit the crime;

(2) the reasons for imposing either a 

consecutive or concurrent sentence should be 

separately stated in the sentencing decision;

(3) some reasons to be considered by the 

sentencing court should include facts relating 

to the crimes, including whether or not:

(a) the crimes and their objectives 

were predominantly independent of 

each other;

(b) the crimes involved separate 

acts of violence or threats of 

violence;

(c) the crimes were committed at 

different times or separate places, 

rather than being committed so 

closely in time and place as to 

indicate a single period of aberrant 

behavior;

(d) any of the crimes involved 

multiple victims;

(e) the convictions for which the 

sentences are to be imposed are 

numerous;

(4) there should be no double counting of 

aggravating factors;

(5) successive terms for the same offense 

should not ordinarily be equal to the 

punishment for the first offense[.]

[State v. Yarbough, 100 N.J. 627, 643-44 

(1985).]

(footnote continued next page)
20 A-0117-15T2

consecutive sentences on the passion/provocation manslaughters and 

SBI aggravated assault.

We begin by recognizing "[a]ppellate review of sentencing 

is deferential, and appellate courts are cautioned not to 

substitute their judgment for those of our sentencing courts." 

State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 

214 N.J. 594, 606 (2013)). Generally, we only determine whether:

(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. Fuentes, 217 N.J. 57, 70 (2014)

(alteration in original) (quoting State v. 

Roth, 95 N.J. 334, 364-65 (1984)).]

Furthermore, "trial judges have discretion to decide if sentences 

should run concurrently or consecutively." State v. Miller, 205 

N.J. 109, 128 (2011). "When a sentencing court properly evaluates 

the Yarbough factors in light of the record, the court's decision 

will not normally be disturbed on appeal." Id. at 129.

 

(footnote continued)

A sixth factor, imposing an overall outer limit on consecutive 

sentences, was superseded by legislative action. See State v. 

Eisenman, 153 N.J. 462, 478 (1998).
21 A-0117-15T2

Here, the judge found aggravating factors one, three, six and 

nine. See N.J.S.A. 2C:44-1(a)(1) (nature and circumstances of the 

offense, including whether it was committed in an especially 

heinous, cruel or depraved manner); (3) (risk of re-offense); (6) 

(the extent of prior criminal record and seriousness of current 

offense); (9) (need to deter defendant and others). Hewing closely 

to the jury's actual verdict of passion/provocation manslaughter, 

the judge accepted defendant's argument that mitigating factors 

three and five applied. See N.J.S.A. 2C:44-1(b)(3) (defendant 

acted under strong provocation); (5) (the victim induced or 

facilitated defendant's conduct). The judge considered the 

Yarbough factors, relying extensively upon the Court's decision 

in State v. Carey, 168 N.J. 413 (2001).

The sentencing transcript evidences a thoughtful 

consideration by the judge of all relevant factors. We commend 

the judge for such a comprehensive analysis, with frequent citation 

to case law. We certainly find no mistaken exercise of his broad 

discretion in fashioning the appropriate sentence in this case.

Affirmed. The matter is remanded solely for correction of 

the JOC as to count five.