Opinion
DOCKET NO. A-1067-12T2
02-17-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN BJUGSTAD, a/k/a JOHN BJUESTAD, Defendant-Appellant.
Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-10-00730. Hegge & Confusione, LLC, attorneys for appellant (Michael Confusione, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
A grand jury indictment charged defendant John Bjugstad with first-degree robbery, N.J.S.A. 2C:15-1a(2) (Count One), and third-degree terroristic threats, N.J.S.A. 2C:12-3a (Count Two). Following unsuccessful motions to suppress evidence and to exclude statements he gave to police, the matter proceeded to trial where a jury convicted defendant of both counts. The court denied defendant's post-trial motions for a new trial and a judgment of acquittal. On the robbery charge, defendant was sentenced to a thirteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received a concurrent five-year prison sentence on the terroristic threats conviction.
Defendant now appeals his convictions and sentence, raising the following points for our consideration:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS STATEMENTS AND EVIDENCE.After reviewing the record in light of the contentions advanced on appeal, we affirm.
II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OR FOR NEW TRIAL ON THE FIRST-DEGREE ROBBERY CHARGE.
III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR THE LESSER CHARGE OF THEFT.
IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR MISTRIAL OR FOR NEW TRIAL BECAUSE OF THE PROSECUTOR'S IMPROPER USE OF VIDEO EVIDENCE DURING SUMMATION, AND THE TRIAL COURT ERRED IN PERMITTING THE VIDEO EVIDENCE TO GO WITH THE JURY INTO THE DELIBERATION ROOM.
V. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I.
We derive the following facts from the record. On September 5, 2008, at around 3:30 p.m., defendant entered the Peapack-Gladstone Bank in Bridgewater Township dressed in a jacket and tie, and carrying a black satchel over his shoulder. Defendant initially left the bank, but then returned minutes later and asked a bank teller to cash a check drawn on the account of "John Basilone Post 280 American Legion VFW." The teller twice informed defendant that she could not cash the check unless he had an account at the bank. Defendant then instructed the teller to read the check, which was made out for $5000 and contained a notation to the effect "remain calm, I have a bomb, cash this check and you will live." Fearing defendant's threat, the teller gave defendant $5000 in cash. Defendant placed the money in his satchel, exited the bank, and departed in a pickup truck.
The teller informed another bank employee that she had just been robbed, at which point she suffered back spasms and collapsed. Members of the Bridgewater Township Police Department, Somerset County Prosecutors' Office, and the FBI responded to the bank, with Bridgewater Police Officer Ryan Cerro arriving first at 3:35 p.m. Cerro reviewed the bank's security footage, which showed defendant entering the bank, interacting with the teller, and driving away.
Bridgewater Police Detective Sean O'Neill assumed charge of the investigation. He spoke with the bank teller, whom he noted was very upset, and also examined the check and the security footage. Bridgewater Detective Larry S. Boody used the security footage stills to prepare a TRAK flier, which is similar to a wanted poster, and was sent to various law enforcement agencies in New Jersey. Boody also used the stills to prepare a press release for the media.
The next day, defendant's father called defendant's girlfriend and told her he saw defendant on television in connection with the bank robbery. Defendant's girlfriend then called defendant, who told her to meet him in Weehawken. While she was traveling there with defendant's father, defendant called her and told her to meet him at a bar at the Sheraton Hotel, where defendant then presented her with a diamond ring.
Around the time defendant was meeting his girlfriend, Weehawken Police Officer Juan Mejia observed defendant's father acting suspiciously. Mejia stopped defendant's father, who relayed his concern that his son was involved in the Bridgewater bank robbery. Bridgewater police were contacted, and they faxed a copy of the TRAK flier to the Weehawken Police Department. When it became clear that defendant was the suspected bank robber, additional Weehawken officers were dispatched to the Sheraton Hotel.
Defendant observed the police arrive, and proceeded to run out of the hotel and jump in the Hudson River. The officers retrieved defendant from the river and placed him under arrest. Mejia then advised defendant of his Miranda rights and transported him to Weehawken Police Headquarters. Before placing defendant in a holding cell Mejia performed an inventory search, and found a large sum of cash, a cell phone, a watch, and a hotel keycard on defendant's person.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Bridgewater police officers arrived at Weehawken Police Headquarters at midnight. Around that time, defendant began yelling that he wanted to speak to a detective. Defendant was brought to the Detective Bureau, where O'Neill read him his Miranda rights from a printed form. Defendant stated that he understood his rights and signed the Miranda form. He then invoked his right to counsel, indicating he would "rather have a lawyer present to talk about it." O'Neill immediately ceased questioning defendant and returned him to his holding cell.
Defendant again asked to speak to a detective a few minutes later. Once again, O'Neill administered defendant his Miranda rights using the printed form. Defendant acknowledged understanding his rights orally and in writing, and indicated that he now wished to waive his rights and speak with the detectives. Defendant then gave a recorded statement in which he admitted robbing the bank.
In his statement, defendant claimed he did not know why he committed the robbery, and that he was drunk and high on cocaine at the time. He indicated that he had spent $1000 of the stolen money on his hotel room, clothes, and toiletries. He spoke of wanting to kill himself and responded "[m]y head[']s just not right" when asked why he robbed the bank. He also claimed he did not know what was written on the check, nor did he actually possess any weapon. Defendant's statement was taken while he was still wet with a blanket around him, and he was not given warm clothes until the police accompanied him to his hotel room two hours later.
The detectives also obtained defendant's consent to search his truck, home, and hotel room. In his truck, police found the black satchel used in the bank robbery along with clothes resembling the robbery outfit, a shopping bag with new underwear and socks, and a new cell phone still in the box. The police also found a checkbook bearing the name of John Basilone Post 280 American Legion VFW, receipts for items recently purchased, and a "Diamond Certificate" for the ring defendant gave his girlfriend. In his hotel, the police seized sales receipts, toiletries purchased the day of the robbery, and dress shoes worn during the robbery. Although defendant and his father attributed defendant's conduct to drug and alcohol abuse, the police found no evidence of drugs or alcohol in the truck or hotel room.
At trial, defendant's father testified that defendant had a fragile emotional state from drug addiction and that he had attempted suicide in the past.
II.
A.
We begin by addressing the suppression issues raised in Point I of defendant's brief. Defendant contends that his statements should be suppressed because the State failed to prove that he was provided valid Miranda warnings, or that his statements were made voluntarily, knowingly, and intelligently.
Our analysis of defendant's argument is guided by fundamental principles of law that apply to custodial interrogation of suspects. Every person has a privilege against self-incrimination. U.S. Const. amend. V; N.J.R.E. 503. A person can, however, make a knowing and voluntary waiver of the privilege. "Inherent in every Fifth Amendment analysis is the question of whether the statement was voluntary, and, independently, whether the law enforcement officers taking it complied with Miranda." State v. W.B., 205 N.J. 588, 605 (2011).
When the State intends to introduce a defendant's confession at trial, it "must prove beyond a reasonable doubt that . . . [the] confession was voluntary and was not made because the defendant's will was overborne," State v. Knight, 183 N.J. 449, 462 (2005), "and, if custodial, that the defendant was advised of his rights and knowingly, voluntarily and intelligently waived them." W.B., supra, 205 N.J. at 602 n.3.
When reviewing a trial court's denial of a defendant's motion to suppress a statement, we generally defer to the factual findings of the trial court when they are supported by sufficient credible evidence in the record. See State v. Nyhammer, 197 N.J. 383, 409 (2007) (citing State v. Elders, 192 N.J. 224, 243-44 (2007)), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009); see also W.B., supra, 205 N.J. at 603 n.4 ("As the finding of compliance with Miranda and voluntariness turned on factual and credibility determinations, we need only find sufficient credible evidence in the record to sustain the trial judge's findings and conclusions.").
Defendant initially contends that Mejia failed to advise him of his Miranda rights upon his arrest. Citing State v. O'Neill, 193 N.J. 148, 154 (2007), he contends that although he was subsequently given his Miranda warnings, incriminating statements he allegedly made, especially regarding the location of his truck, had already been improperly extracted from him under a "question-first, warn-later" technique. Consequently, he argues that his statements and the items seized during the searches of his truck and hotel room should be suppressed under the "fruit of the poisonous tree" doctrine. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441, 454 (1963).
Defendant's argument hinges on the credibility of Mejia's testimony. Mejia testified that he administered defendant Miranda warnings when he placed defendant in the patrol vehicle immediately following his arrest. Mejia noted that he checked off boxes on defendant's arrest report that such warnings were given. Mejia further testified that he "didn't ask [defendant] any questions after that." At the conclusion of the hearing on defendant's motion to suppress his statements, the judge found the testimony of Mejia and the other police officers credible. In denying defendant's motion, the judge found it "apparent that the State fulfilled its obligation to inform [] defendant of his [Miranda] rights." We defer to the trial court's credibility findings, which are amply supported by the record.
Defendant further argues that even if the recorded statement he gave at police headquarters is not inadmissible as fruit of the poisonous tree, it is nonetheless inadmissible because he did not voluntarily, knowingly, and intelligently waive his Miranda rights. He points to his mental state, cocaine abuse, and the fact that he was wet and cold when pulled from the river as evidence that his statement was not voluntary.
The fact that a suspect makes a statement while under the influence of an intoxicant does not render the statement automatically inadmissible. See State v. Wade, 40 N.J. 27, 35 (holding that "[a] confession made by a person while under the influence of drugs is not per se involuntary"), cert. denied, 375 U.S. 846, 84 S. Ct. 100, 11 L. Ed. 2d 73 (1963). In gauging voluntariness, a court must consider the totality of all surrounding circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973). In State v. Warmbrun, 277 N.J. Super. 51, 61 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995), the defendant argued the trial court erred in failing to exclude statements he made when he was too intoxicated to have knowingly and voluntarily waived his Miranda rights. We rejected his argument, finding that because defendant was "capable of communicating[,] . . . was responsive in answering questions[,] and could answer correctly questions such as his name, age, etc.[,]" his statement was properly admitted. Id. at 64.
In the present case, the trial judge carefully reviewed the testimony and rejected defendant's argument that his statement was involuntary. The judge reasoned:
Here, it is clear, given the totality of the circumstances, that [] defendant knowingly, intelligently[,] and voluntarily waived his Miranda rights.
Defendant's argument that he was under the influence of drugs at the time of the waiver is unsupported by the evidence. Furthermore, defendant's argument that he was not attended to in his jail cell is unsupported, as the police officers, whose testimony the [c]ourt finds to be responsive, forthright, credible[,] and worthy of belief, testified that [] defendant never requested medical attention and actually refused it when it was offered.
Finally, defendant argues that the police violated his right to counsel, which he invoked the first time O'Neill read him his Miranda rights. He further contends that there was insufficient proof that he thereafter initiated the second conversation with police in which he confessed to the robbery. We disagree.
It is well established that "once a suspect in custody invokes his right to counsel, the interrogation 'must cease,' and 'the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.'" State v. Wessells, 209 N.J. 395, 402 (2012) (quoting Miranda, supra, 384 U.S. at 474, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723). "[A] suspect who has invoked his or her right to counsel 'is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.'" Id. at 403 (quoting Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1885, 68 L. Ed. 2d 378, 386 (1981)). Police may resume a custodial interrogation after a suspect invokes the right to remain silent only if they administer a new set of warnings. State v. Hartley, 103 N.J. 252, 267 (1986) (stating the requirement that fresh Miranda warnings are administered is "indispensable to a permissible resumption of custodial interrogation of a previously-warned suspect").
Using this standard, we conclude that the judge did not err in denying defendant's motion to suppress the recorded statement he gave at police headquarters. Defendant initially indicated that he wished to speak with the detectives. He was then taken from his cell, read his Miranda rights, and acknowledged that he understood them. Upon stating that he "would rather have a lawyer present," the police scrupulously honored defendant's rights by immediately ceasing questioning and returning him to his cell. When defendant later initiated contact, he was again read his Miranda rights, indicated he understood them, and signed a written waiver agreeing to speak to the police. Sufficient credible evidence in the record supports a finding that defendant initiated this second communication, and his argument to the contrary is unpersuasive.
B.
We next turn to defendant's argument that the trial court erred in denying his motion to suppress the evidence seized from his truck and hotel room. As with his statements, defendant contends that his consent to search was not freely and voluntarily given.
We begin with a review of the principles that guide our analysis. "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Elders, supra, 192 N.J. at 243 (quotation marks and citation omitted). A motion court's findings of fact may be disturbed only when they are "so plainly unwarranted that the interests of justice demand intervention and correction." State v. Johnson, 42 N.J. 146, 162 (1964).
A consent to search is an exception to the warrant requirement. Schneckloth, supra, 412 U.S. at 222, 93 S. Ct. at 2045, 36 L. Ed. 2d at 860; State v. Maristany, 133 N.J. 299, 305 (1993); State v. Miller, 159 N.J. Super. 552, 556 (App. Div.), certif. denied, 78 N.J. 329 (1978). Such consent need not be written. State v. Birkenmeier, 185 N.J. 552, 557 (2006). The State meets its burden under the Fourth Amendment and New Jersey Constitution if consent to search was "freely and voluntarily given." Schneckloth, supra, 412 U.S. at 222, 93 S. Ct. at 2045, 36 L. Ed. 2d at 860 (citation and internal quotation marks omitted); see also State v. Johnson, 68 N.J. 349, 353-54 (1975).
While New Jersey's search and seizure provision is similar to its federal counterpart, consent searches require a higher level of scrutiny. State v. Carty, 170 N.J. 632, 639, modified on other grounds, 174 N.J. 351 (2002). To justify a warrantless search based on consent, "the State must prove that the consent was voluntary and that the consenting party understood his or her right to refuse consent." Maristany, supra, 133 N.J. at 305 (citing Johnson, supra, 68 N.J. at 353-54). The State must "prove voluntariness by 'clear and positive testimony.'" State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000) (citation omitted). Furthermore, the State must "show that the individual giving consent knew that he or she had a choice in the matter." Carty, supra, 170 N.J. at 639 (citation and internal quotation marks omitted).
Guided by these standards, we affirm the decision denying the motion to suppress. The trial judge concluded:
This [c]ourt, having given due consideration to all pertinent facts, is convinced beyond a reasonable doubt that [ ] defendant's consent was voluntary and intelligent.
[D]efendant was advised of his Miranda rights, including the right to remain silent and the right to have an attorney prior to granting consent to search his vehicle.
Moreover, the transcript of the second interview establishes that not only did the officers inform [] defendant of his right to refuse consent, but also evinces the lack of coercion used to obtain it and the demonstrable understanding and participation of [] defendant in this process.
The officers read the consent form verbatim to [ ] defendant, and he signed it and, thereafter, observed the officers search his truck and his hotel room.
The judge's findings are based on his determination that the police witnesses were credible, a determination we have no reason to disturb. Because there is sufficient evidence in the record to support the judge's findings, we affirm his decision.
III.
Defendant next argues that the trial court erred in denying his post-trial motions for acquittal or a new trial on the first-degree robbery conviction. We find no merit to this contention.
Rule 3:18-1 permits the court, either on defendant's motion or its own initiative, to "order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." The trial judge must determine whether, viewing the evidence in its entirety and giving the State the benefit of all favorable testimony as well as all favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Fiorello, 36 N.J. 80, 90 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). "[T]he trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). Our review of a motion for acquittal is "limited and deferential" and governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004).
Additionally, under Rule 3:20-1, a trial judge may set aside a jury's verdict as "against the weight of the evidence," only if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." We apply essentially the same test under Rule 3:20-1 as the trial court, giving due regard to the trial judge's "feel of the case" and opportunity to assess witness credibility and demeanor. Carrino v. Novotny, 7 8 N.J. 355, 360 n.2 (1979); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002).
Applying these standards, we conclude that the motions for a judgment of acquittal or for a new trial were properly denied. We note that our Supreme Court recently sustained a conviction for first-degree robbery under remarkably similar facts. In State v. Williams, 218 N.J. 576, 579 (2014), the defendant demanded money from a bank teller and stated he was armed with a bomb, but did not do anything suggesting that he actually possessed a bomb. The Court found this constituted sufficient evidence of an immediate threat to use a deadly weapon during the course of a theft so as to raise the offense from second-degree to first-degree robbery. Ibid.
In the present case, defendant admitted robbing the bank. Even if defendant did not possess a bomb, the record establishes that the bank teller reasonably believed he did so based on his behavior, the wording on the check, and the fact that the teller was emotionally upset and physically collapsed after the robbery. Further, the bank's security footage supports the teller's version of events, and defendant's father's identification of his son on the surveillance video confirms defendant's involvement in the robbery.
IV.
Defendant next argues that the trial court erred in refusing to charge theft as a lesser-included offense of robbery. He contends that there was a rational basis for the lesser charge because, while he admitted committing a theft, he argued to the jury that he did not act purposely to put the bank teller in fear of harm. Under the facts presented, we disagree.
The jury charge is "a road map to guide the jury and without an appropriate charge a jury can take a wrong turn in its deliberations." State v. Savage, 172 N.J. 374, 387 (2002) (internal quotation marks omitted). A trial judge's determination whether to charge a lesser-included offense is guided by N.J.S.A. 2C:1-8(e), which states, "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." To satisfy this condition, the evidence must present a rational basis for a jury to acquit on the greater charge but convict on the lesser-included charge. See State v. Jenkins, 178 N.J. 347, 361 (2004); State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004); State v. Messino, 378 N.J. Super. 559, 581 (App. Div.), certif. denied, 185 N.J. 297 (2005); Cannel, New Jersey Criminal Code Annotated, comment 12 on N.J.S.A. 2C:1-8 (2014). When a defendant requests a jury charge on a lesser-included offense, a court's failure to do so constitutes reversible error if the evidence provided "a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of [a] lesser." State v. Brent, 137 N.J. 107, 117-18 (1994).
"A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3(a). Under N.J.S.A. 2C:15-1(a),
[a] person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury; or
(3) Commits or threatens immediately to commit any crime of the first or second degree.
[N .J.S.A. 2C:15-1(a).]Second-degree robbery rises to first-degree robbery if the defendant threatens the immediate use of a deadly weapon. N.J.S.A. 2C:15-1(b).
In the present case, the State's proofs amply demonstrated that defendant intended to place the bank teller in fear of harm by handing her a check indicating he possessed a bomb. The teller believed defendant's threat, which caused her both physical and emotional suffering. On these facts, we find no rational basis to find defendant guilty of theft but not robbery.
Additionally, robbery and theft are both specific intent crimes. As noted, theft requires that an accused act with purpose to deprive another of his property. N.J.S.A. 2C:20-3(a). Robbery similarly requires a purposeful state of mind. N.J.S.A. 2C:15-1(b); State v. Nero, 195 N.J. 397, 400-01 (2008). Here, at defendant's request, the court charged the jury on intoxication. Voluntary intoxication is a defense to a purposeful or knowing crime, but not to a crime requiring a mens rea of recklessness. State v. Mauricio, 117 N.J. 402, 418 (1990). Intoxication from the use of illegal drugs "has the same legal consequences as intoxication from alcohol[.]" State v. Sette, 259 N.J. Super. 156, 173 (App. Div.), certif. denied, 130 N.J. 597 (1992). The defense requires a showing of such "prostration of faculties" as to deprive the defendant of the capability of acting purposely or knowingly, an "extremely high level" of intoxication. State v. Cameron, 104 N.J. 42, 54, 57-58 (1986).
Here, the jury clearly determined that defendant did not suffer a "prostration of faculties" so as to render him incapable of forming the requisite intent to commit robbery. Since theft requires a similar purposeful mens rea, rather than some lower standard such as recklessness, we again find no basis to conclude that the jury would have convicted defendant of theft but not robbery.
V.
We find insufficient merit in defendant's Point IV to warrant extended discussion. R. 2:11-3(e)(2). Defendant argues that the prosecutor deceptively manipulated the bank security video during summation by using selected stills from the video that distorted it. However, the prosecutor did not alter the security footage, which had been entered in evidence at trial without objection. Rather, she simply paused the video at certain stages to emphasize particular points she was making in summation. It is well established that prosecutors "are afforded considerable leeway" when presenting "vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), so long as the prosecutor's arguments are based on the facts of the case and reasonable inferences therefrom. State v. Smith, 167 N.J. 158, 178 (2001).
We also reject defendant's claim that the trial court erred in allowing the jury access to the bank security video in the jury room, rather than requiring it to be viewed in open court. In doing so, we acknowledge that juries should not be granted unfettered access to video recorded statements or testimony in the jury room. See State v. A.R., 213 N.J. 542, 546-47 (2013) (videotaped interviews of defendant and victim); State v. Burr, 195 N.J. 119, 135 (2008) (videotaped pretrial interview of victim). See also State v. Miller, 205 N.J. 109, 123 (2011) (video playback of trial testimony should take place in open court).
However, the Court in Burr recognized a distinction between video recorded statements and other types of exhibits introduced into evidence. The Court noted:
The videotaped pretrial statement at issue in this appeal is, however, significantly different from a demonstrative exhibit. Although it is evidence, it is also testimony. It is, in effect, a hybrid of the two. Unlike a demonstrative exhibit, the videotape contains hearsay statements offered for the truth of the matter asserted. Moreover, the videotape is
powerful evidence for the jury to see again, if it is not placed into context.
[Burr, supra, 195 N.J. at 134.]
In the present case, the security footage at issue contains no testimonial statements or interviews. Rather, it depicts the crime scene as the alleged robbery unfolded. There is little question that still photographs of these same events would be permitted in the jury room during deliberations. To allow the jury to view such photographs in the jury room but not the video would merely exalt form over substance.
VI.
Finally, in Point V, defendant argues that his sentence was excessive. We disagree.
Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). Judges must identify and consider "any relevant aggravating and mitigating factors" that "'are called to the court's attention[,]'" and "explain how they arrived at a particular sentence." State v. Case, 220 N.J. 49, 64-65 (2014) (quoting State v. Blackmon, 202 N.J. 283, 297 (2010)). "Appellate review of sentencing is deferential," and we therefore avoid substituting our judgment for the judgment of the trial court. Id. at 65; State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).
Here, the judge noted that defendant had prior indictable convictions for second-degree sexual assault and violating his community supervision for life. Defendant also had two nonindictable convictions. The judge found that three aggravating factors were present: the risk that defendant will commit another offense, the extent of his prior record, and the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6), and (9). Although the judge considered defendant's past alcohol and cocaine abuse, he did not find it qualified as a mitigating factor in this case. Rather, the court specifically found that "there is only one mitigating factor applicable, and that is factor 12, the willingness of [] defendant to cooperate with law enforcement authorities." The court then weighed the aggravating and mitigating factors, and concluded that "the aggravating factors are overwhelmingly controlling."
See State v. Ghertler, 114 N.J. 383, 390 ( 1989) (finding that drug dependency is not a mitigating factor).
N.J.S.A. 2C:44-1(b)(12).
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We note that the judge had presided over defendant's multi-day trial, as well as the pre-trial Miranda and suppression motions, and had the feel of the case. We are satisfied that at sentencing the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, and applied the correct sentencing guidelines enunciated in the Code. The application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. Case, supra, 220 N.J. at 65; O'Donnell, supra, 117 N.J. at 215-16. Accordingly, we discern no basis to second-guess defendant's thirteen-year sentence which, we note, is toward the lower end of the first-degree range.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION