Opinion
DOCKET NO. A-3696-11T4
04-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LENROY LAURANCE, a/k/a DAMON D. WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Legal Assistant, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 10-08-0841. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, Legal Assistant, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Lenroy Laurance was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one); first-degree felony murder during a kidnapping, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) (count three); first-degree felony murder during a robbery, N.J.S.A. 2C:11-3(a)(3) (count four); first-degree carjacking, N.J.S.A. 2C:15-2(a)(4) (count five); first-degree felony murder during a carjacking, N.J.S.A. 2C:11-3(a)(3) (count six); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count seven); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count nine). In a bifurcated second trial that followed immediately thereafter, the jury convicted defendant of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count ten). After considering mergers, the judge sentenced defendant to an aggregate term of life imprisonment plus forty years, subject to ninety-four and one-quarter years of parole ineligibility.
Although it appears in different forms throughout the record, we use the spelling of defendant's name as it appears in the indictment that also named Marcus St. Claire White and Robby R. Willis as co-defendants. Defendant's trial was severed from proceedings against his co-defendants, the results of which are undisclosed in this record.
On appeal, defendant raises the following points:
POINT I
THE DEFENDANT'S MOTION THAT THE TRIAL COURT LACKED TERRITORIAL JURISDICTION SHOULD HAVE BEEN GRANTED.
POINT II
THE DEFENDANT'S FIVE (5) HOUR STATEMENT TO THE POLICE ADMITTED INTO EVIDENCE VIOLATED HIS RIGHTS UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
POINT III
THE ADMISSION OF OTHER CRIME EVIDENCE WAS GROSSLY PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL.
POINT IV
THE ADMISSION OF TESTIMONY FROM THE ATTORNEY FOR THE COOPERATING WITNESS REGARDING HIS REPRESENTATION OF HIM IN THIS MATTER WAS IRRELEVANT, GROSSLY PREJUDICIAL AND CONSTITUTED ERROR NECESSITATING A NEW TRIAL.
POINT V
THE OVERZEALOUSNESS OF THE PROSECUTOR FROM HIS OPENING STATEMENT TO HIS REMARKS AT SENTENCING DENIED DEFENDANT A FAIR TRIAL. (Partially raised below)
POINT VI
THE PROOFS PRESENTED BEFORE THE JURY WERE INSUFFICIENT TO ESTABLISH THE OFFENSE OF CERTAIN PERSONS NOT TO HAVE WEAPONS.
POINT VII
IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE THE OFFENSES OF SECOND DEGREE ROBBERY AND AGGRAVATED ASSAULT.
POINT VIII
THE AGGREGATE SENTENCE IMPOSED UPON MR. LAURANCE OF LIFE IMPRISONMENT WITH 94 1/4 YEARS OF PAROLE INELIGIBILITY MUST BE MODIFIED AND REDUCED. (Not raised below)
POINT IXWe have considered these arguments in light of the record and applicable legal standards. We vacate defendant's conviction on count ten, otherwise affirm his conviction and the sentence imposed, and remand the matter to the trial court for entry of an amended judgment of conviction.
THE AGGREGATE OF ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below)
I.
At approximately 3:30 p.m. in the afternoon of September 2, 2009, Lyudmila Burshteyn's lifeless body was found in a field in Mansfield Township. Early in the morning of September 3, defendant was driving Burshteyn's car with his two co-defendants and others as passengers when South Carolina police stopped the car for speeding. After a search of the vehicle produced three loaded handguns, police took all of the car's occupants into custody. Detectives from the Burlington County Prosecutor's Office eventually were notified of defendant's arrest and interrogated defendant in South Carolina on September 5.
The admissibility of the videotaped statement secured from defendant was the subject of a pre-trial hearing. Defendant argued that he had asserted his right to counsel, detectives failed to scrupulously honor his request and their continued interrogation violated defendant's Miranda rights. No witnesses were produced, but the judge considered the video recording, a copy of which is part of the appellate record.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The recording revealed that before Detective Robert Hageman of the Burlington County Prosecutor's Office read defendant his rights from a card, defendant told Hageman, "I know everything that's on that card already, do you have to read it?" Hageman persisted and read the card completely before defendant answered the questions on the card and signed his name indicating waiver of his rights. Approximately one-third of the way through the interview, defendant indicated that he had spoken to his wife, who told him he was charged with murder, and he told her "[g]o get me a lawyer that's in New Jersey to find out what's going on. . . . I need a good lawyer that's gonna get me bail . . . . That's gonna show them that I had nothing to do with this murder."
Shortly thereafter, the following exchange occurred:
Hageman: Can we continue to talk to you?
Defendant: . . . Why would I sit here and . . . continue to talk to you when . . . you telling me I'm lying?
. . . .
Hageman: . . . Do you want to continue to talk to me?A short time later, Hageman told defendant, "I can't talk to you anymore," to which defendant responded, "Why you can't talk to me anymore?" The colloquy resumed:
Defendant: What do you want to continue to talk you [sic] about being hurt and know that I can't even go [sic] my wife tomorrow?
Hageman: . . . [Y]ou're talking about a lot of things . . . , but I'm not sure that you want to continue to talk to me because you said you wanted to see if a lawyer can help you.
Defendant: Do you have a lawyer present[] for me, that can help me?
Hageman: I don't have a lawyer here for you.
Defendant: . . . I want to see my family. I just want to see my family I want to talk to my wife. Like I want to be with my family, I'm not gonna go to jail for something I didn't do.
Hageman: '[C]ause you asked if a lawyer could help you.Hageman asked again, "Do you want a lawyer here?" Defendant responded, "Can I have a lawyer present right now? How long it's gonna take for a lawyer to be present?" Hageman responded that he did not know, and after some further banter, the interview recessed for a short period.
Defendant: No, I wasn't talking to you towards that. Like, I told that to my wife, not to y'all.
Hageman recommenced by telling defendant, "I can't get you a lawyer here. Do you want to talk to us without a lawyer or not?" Defendant was evasive, and Hageman again asked, "Do you want a lawyer or not?" Defendant parried, "Right now?" and then told Hageman "I don't see the reason why I need a lawyer." Hageman persisted, "Do you want a lawyer here while we talk to you right now? Or do you not want a lawyer. Do you want to talk to us, first of all?" Defendant answered, "I wanna talk to y'all." Defendant continued, "I'll talk to ya'll without a lawyer if ya'll help me." Hageman told defendant he "can't make [him] any promises." After several more parries, defendant told Hageman, "Yes, I'll talk to you . . . without a lawyer present. At this moment in time, yes, I'll talk to you." Defendant further indicated that he understood Hageman had made no promises.
The trial judge concluded that defendant "was entirely clear and unequivocal in his desire to continue to speak with the detectives" without the presence of counsel. She found that none of defendant's statements amounted to a request to stop speaking with the detectives or a request for counsel and that, "if there was any ambiguity, it certainly was clarified" by the defendant's positive response to the police questions about whether he would speak to them without an attorney. The judge concluded that defendant "did not invoke the protections of Miranda." Defendant's redacted statement was played at trial for the jury.
Before us, defendant reiterates the arguments he made at trial. We conclude defendant's statement was properly admitted.
"[O]nce 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). The Court has held that "a suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Alston, 204 N.J. 614, 622 (2011) (quoting State v. Reed, 133 N.J. 237, 253 (1993)) (internal quotation marks omitted). However, "[w]hen a suspect's words are ambiguous, . . . police [may] follow up by asking questions that are designed to clarify the meaning of those words." Id. at 623. Such clarifying questions are not the equivalent of interrogation, because they are not intended to elicit an incriminating response. Ibid.
In making the threshold determination of whether a suspect has invoked his or her right to counsel, the trial court employs "a totality of the circumstances approach that focuses on the reasonable interpretation of defendant's words and behaviors." State v. Diaz-Bridges, 208 N.J. 544, 564 (2012); Alston, supra, 204 N.J. at 621-22. Our review applies the same analysis. Diaz-Bridges, supra, 208 N.J. at 569.
We quoted defendant's exchange with Hageman at length because it demonstrates, as the trial judge found, that defendant never invoked his right to have counsel present before the interrogation continued, or to otherwise end the interrogation. Hageman's questions were legitimate, repeated attempts to understand if defendant was, in fact, invoking his rights or waiving them. And, in the end, it is clear that defendant knowingly and voluntarily did waive his rights before continuing with the statement.
We also reject defendant's claim, contained in a single sentence in his brief, that his "request to speak to his wife" should have terminated any further interrogation. Citing State v. Harvey, 121 N.J. 407, 419 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991), defendant contends that his question early in the session, "[i]s there, by any chance, that I could call my wife?", was an invocation of his right to remain silent.
Hageman responded that defendant could speak to his wife when the statement ended. Much later, defendant renewed his request to speak to his wife, stating, "bring me to New Jersey, then, 'cause I'm not, I ain't got nothing else left to say until I talk to my wife." Hageman responded, "[a]lright," and questioning ceased.
In Harvey, the defendant specifically told police that he would tell them about the murder after he spoke to his father. Id. at 417. More than three hours later, the defendant spoke to his father and the interrogation continued, but without reissuance of Miranda warnings. Ibid. The Court noted that "[t]he implied intent to talk later does not change the fact . . . that [the] defendant sought to terminate the interrogation." Id. at 420.
Here, defendant's first statement was a question about the possibility of speaking to his wife; it was not a condition of which satisfaction was a prerequisite to further questioning. Ibid. When defendant clearly and unequivocally expressed his desire not to speak any further "until" he spoke to his wife, the interrogation ceased.
II.
The testimony at trial revealed that at all relevant times, defendant was staying in a house in Philadelphia, with his co-defendants and White's girlfriend, Shaniqua Williams. On occasion, defendant's girlfriend, Kenesha Wilson, with whom he had a child, stayed there, as would Iaeshia Brown, who was Willis's girlfriend. Willis's seventeen-year-old cousin, Kareem Harrison, also stayed at the house. Harrison, Brown, Wilson, Williams and Williams's sixteen-year-old sister all testified as State's witnesses.
Harrison was named as an unindicted co-conspirator. By the time of trial, Harrison was an adult.
On Sunday morning, August 30, 2009, defendant, White, Williams and Thomas were returning to Philadelphia from New York City on the New Jersey Turnpike in a rented car when White, who was driving, struck another car. The other driver summoned police, and before they arrived, defendant and White placed two handguns in Williams's purse. White told Williams and her sister to leave the scene and meet the two men later at a designated place the men would provide by phone.
Williams and her sister left, however, Williams became scared and dropped the purse in some bushes on the side of the road. When Williams and her sister later rejoined the men, White was displeased that Williams had thrown the guns away, and White and defendant both told Williams that they had to go back and retrieve the weapons. After an unsuccessful attempt to find the guns later on Sunday, on either Monday or Tuesday, defendant, White and Williams took a bus to New York City and met a friend of defendant, who drove them to various locations along the Turnpike. Their search for the weapons was unsuccessful.
Meanwhile, Harrison, a self-acknowledged drug dealer, stole two handguns from another drug dealer in Philadelphia, brought them home and gave them to defendant and White. On Wednesday morning, September 2, 2009, defendant awakened Harrison and told him that they were going "to go do something," which Harrison understood to mean they were going to rob someone. Harrison woke Willis, who agreed to join.
Armed with handguns, defendant, Willis, and Harrison left the house on foot seeking to rob someone and steal a car so they could return to search for the guns discarded by Williams. The men saw Burshteyn sitting in her car that was parked on the street. After circling around the car so they could approach from the rear, defendant opened the passenger-side door, and at gunpoint ordered Burshteyn not to move. When she screamed, Willis pulled Burshteyn out of the car and threw her onto the floor of the rear seat. Defendant drove the car to the corner and picked up Harrison, who was acting as lookout, while Willis sat in the rear.
Burshteyn pleaded for the men to take anything they wanted but not hurt her. Willis pistol-whipped her after she refused to remain quiet and threw a dark cloth over her head. Defendant took cash and credit cards from Burshteyn's purse and announced they were going to use the car to search for the lost handguns on the Turnpike before disposing of it at a "chop shop" he knew of in South Carolina.
Defendant drove back to the house and ran inside to get White. Williams heard him nervously tell White to hurry up and get dressed because "we got somebody in the car." The two men left the house and joined Harrison and Willis in the car, and together, the four left for New Jersey to search for the discarded handguns. Burshteyn was still captive on the floor of the back seat.
When Burshteyn complained that she had asthma and could not breath because of marijuana smoke in the car, defendant responded in a loud voice, "she's going to die anyway." Defendant drove the car in an unsuccessful search for the two handguns, and, according to Harrison, defendant said "he was going to kill [Burshteyn]."
As documented by EZ-Pass records for Burshteyn's car, at 1:49 p.m., defendant exited the Turnpike. According to Harrison, defendant drove to a remote area near an open field and some woods and said, "I'm gonna leave the girl right here." Defendant exited the car, while Willis tightly taped the cloth that had been resting loosely on Burshteyn's head so that she could not see. Defendant pulled her from the car and told her that she was in front of her house.
Defendant approached Harrison and asked to use his .22 caliber handgun because it would make the least amount of noise. Defendant then walked Burshteyn a few yards into the woods, placed the barrel of the gun against the left side of her wrapped head and fired one shot. Burshteyn fell, and the men re-entered the car and drove away quickly.
At about 3:30 p.m., a passing motorist noticed a motionless body near the road and called police. Subsequent forensic investigation revealed that Burshteyn died from a single, small-caliber gunshot that entered her neck, severed major blood vessels and caused her rapidly to bleed to death. The medical examiner testified the wound was consistent with a .22 caliber bullet, but not a .38 or .44 caliber bullet.
Defendant and the other men drove to a restaurant in Philadelphia where it was pre-arranged they would meet Williams, his sister, Brown and Brown's child. There was not enough room for Brown and her child, so they were left behind as the others drove off. White had told Williams they were going on vacation, and she did not know the true purpose of the trip until White told her the men had killed the owner of the car, and they were going to a chop shop in South Carolina to sell the car to one of defendant's friends.
As already noted, around 1:40 a.m., on September 3, 2009, defendant was driving Burshteyn's car in Summerton, South Carolina, when he was stopped for speeding. When South Carolina authorities found guns in the car and discovered it was registered to Burshteyn, all the occupants were placed in custody. Williams subsequently told the South Carolina police that the woman who owned the car was dead.
The jury also saw the redacted version of defendant's statement in which he admitted having driven the car since 1:00 or 2:00 p.m. on September 2, 2009. He denied knowing the car was stolen. He also initially denied knowing anything about the murder, claiming instead that he and the others were going to South Carolina to see a friend. When confronted with information from the EZ-Pass records, defendant admitted first driving north on the Turnpike and told detectives about his attempt to find the discarded guns.
Defendant initially denied leaving the Turnpike after giving up the search for the weapons, but then admitted that he had left the Turnpike at Exit Four. Late in his statement, defendant admitted being present at the murder but claimed he stayed in the car while the victim was dragged off and shot.
Defendant also stated that Harrison put on defendant's gloves before exiting the car with Burshteyn. The gloves had Harrison's DNA on them and were found in the car when stopped in South Carolina. Finally, information stored in the GPS system in the victim's car revealed that the car was located only one and one-half miles from the murder scene when a destination search for defendant's home in Philadelphia was entered into the system.
No defense witnesses were called, and defendant chose not to testify.
III.
Defendant concedes that territorial jurisdiction to prosecute the crimes of kidnapping, felony murder during a kidnapping, and the weapons offenses lay in New Jersey. He argues that the other crimes — armed robbery, felony murder during a robbery, carjacking, felony murder during a carjacking, and terroristic threats — were committed and completed in Pennsylvania, and, therefore, New Jersey lacked jurisdiction. The State argues that defendant never asserted lack of territorial jurisdiction in the trial court, and we should not consider the argument for the first time on appeal. It also contends that there was evidence beyond a reasonable doubt that "all of the criminal conduct charged" in the indictment "occurred in New Jersey."
While the record is less than crystal clear, we reject the State's position that the issue was never raised below. Defendant admittedly did not raise the issue prior to trial, and he acknowledges that he could not have raised the issue during trial. See R. 3:10-2(e). However, the record includes defendant's pro se notice of motion "for lack of jurisdiction," dated October 10, 2011, four days before the jury rendered its verdict. As the State notes, the copy of the motion in the record does not bear any stamp indicating it was filed, nor is there any indication that it was served on the prosecutor. Defense counsel did not raise the argument or mention the motion during sentencing.
During his allocution at sentencing, however, defendant told the judge, "I submitted a motion the other day about jurisdiction which you have denied." Defendant attempted to argue the motion, but the judge refused to consider any argument, indicating that it was the date set for defendant's sentencing. While the issue may not have been properly raised in the trial court, we consider it nonetheless and conclude that it lacks merit.
As the Court recently noted, "[t]here must be territorial jurisdiction in New Jersey for the State to prosecute a crime here." State v. Sumulikoski, ___ N.J. ___, ___ (2015) (slip op. at 12). The analysis that guides our review was clearly set forth by Justice Albin, writing for the Court in State v. Denofa, 187 N.J. 24, 44 (2006):
In any appeal from a conviction in which the defendant did not request a territorial jurisdiction charge, an appellate court first must determine whether the record clearly indicated that the crime's location was at issue. If territorial jurisdiction was not clearly in dispute, then the appellate court must still be satisfied regarding the sufficiency of the evidence. On that issue, the standard of review is "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find" beyond a reasonable doubt that the crime occurred within the State. State v. Reyes, 50 N.J. 454, 458-59 (1967).During his opening statement, the prosecutor briefly alluded to the fact that Burshteyn was "originally taken off the street in Philadelphia," but referencing "dual sovereignty," he told the jury that New Jersey was the "right place" to try defendant for the crimes charged in the indictment. Except for those comments, there was no mention of territorial jurisdiction throughout the trial until defendant's sentencing allocution. In short, "territorial jurisdiction was not clearly in dispute." Denofa, supra, 187 N.J. at 44.
Furthermore, we are convinced there was proof beyond a reasonable doubt that all the crimes "occurred within" New Jersey. Ibid. N.J.S.A. 2C:1-3(a)(1) provides:
Except as otherwise provided in this section, a person may be convicted under the law of this State of an offense committed by his own conduct or the conduct of another for which he is legally accountable if:"[T]o meet the requirement of territorial jurisdiction, the State must offer proof of 'conduct' or 'result,' . . . but cannot rely on relevant attendant circumstances." Sumulikoski, supra, slip op. at 16. Here, the crimes of robbery and carjacking, and the related felony murder charges associated with each, as well as the crime of terroristic threats, took place in New Jersey.
(1) Either the conduct which is an element of the offense or the result which is such an element occurs within this State[.]
N.J.S.A. 2C:15-1(a)(1) provides:
A person is guilty of robbery if, in the course of committing a theft, he:
(1) Inflicts bodily injury or uses force upon another[.]Whether an act occurs during "immediate flight" hinges upon whether the actor has reached a point of at least temporary safety or is in custody. State v. Mirault, 92 N.J. 492, 500-01 (1983). In those circumstances, the crime of robbery may be deemed to have been completed. Ibid.
. . . .
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
[(Emphasis added).]
The same analysis applies to the crime of carjacking, whose definitional terms "mirror[]" the robbery statute. State v. Garretson, 313 N.J. Super. 348, 356 (App. Div.), certif. denied, 156 N.J. 428 (1998).
A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle, . . . he:
. . . .
(4) operates or causes said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle.
An act shall be deemed to be "in the course of committing an unlawful taking of a motor vehicle" if it occurs during an
attempt to commit the unlawful taking of a motor vehicle or during an immediate flight after the attempt or commission.Simply put, when defendant drove into New Jersey with the proceeds of the robbery in his possession and Burshteyn captive inside her vehicle, he had not reached a point of safety, and his flight from the theft that originated in Pennsylvania continued.
[N.J.S.A. 2C:15-2(a)(4) (emphasis added).]
Pursuant to N.J.S.A. 2C:11-3(a)(3), "criminal homicide constitutes murder when . . . [i]t is committed when the actor . . . is engaged in the commission of . . . or flight after committing . . . robbery . . . [or] carjacking." It is undisputed that Burshteyn was killed in New Jersey, and for the reasons already expressed, there was sufficient evidence to prove defendant committed felony murder in New Jersey.
Lastly, N.J.S.A. 2C:12-3(a) provides that a "person is guilty of a crime of the third degree if he threatens to commit any crime of violence with the purpose to terrorize another." There was direct evidence that while defendant was in Burshteyn's car in New Jersey, he threatened to kill her.
IV.
A.
Defendant claims certain testimony from Harrison and Wilson violated N.J.R.E. 404(b), which provides that subject to limited exception,
evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.We disagree that admission of the disputed evidence requires reversal.
The judge conducted a pre-trial hearing to determine whether testimony regarding events in the days before the actual murder would be admissible, either under Rule 404(b) or as "instrinsic evidence." Harrison testified at the hearing that he stole two handguns from a drug dealer a day or two before the murder and gave them to defendant and Willis. The judge rejected defendant's argument that the testimony was inadmissible under Rule 404(b), concluding instead that the evidence was intrinsic to the charged crimes, in particular, the weapon-possession charges contained in the indictment, and was therefore admissible. Harrison repeated the testimony before the jury.
Elsewhere without objection during his trial testimony, Harrison claimed to have overheard a conversation between defendant and White regarding the guns Williams had discarded by the Turnpike. Harrison testified "they needed to get the guns so they [could] have more people." Harrison also explained that as the men set off to find the lost weapons, defendant stopped and bought eight bags of marijuana, giving two bags to each of his cohorts and keeping two for himself. They smoked the marijuana as they traveled in Burshteyn's car, with Burshteyn held captive on the floor of the back seat. Defendant now argues this testimony violated Rule 404(b).
Defendant cites a fourth instance of Harrison's testimony that allegedly violated Rule 404(b). Harrison claimed that defendant had threatened to kill him. This was first elicited by defense counsel in an attempt to demonstrate Harrison's antipathy toward defendant. There was no objection to the prosecutor's re-direct questioning about the threat. Any argument that admission of this evidence requires reversal lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Defendant objected to the admission of a series of letters defendant sent to Wilson while incarcerated before trial in which he implicitly or explicitly threatened her if she testified against him. Defendant's objection was solely that the probative value of the evidence was substantially outweighed by the likely prejudice. See N.J.R.E. 403 ("[R]elevant evidence may be excluded if its probative value is substantially outweighed by the risk of [] undue prejudice, confusion of issues, or misleading the jury . . . ."). Defendant did not specifically argue that the letters were inadmissible under Rule 404(b).
Citing State v. Goodman, 415 N.J. Super. 210 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011), State v. Buhl, 269 N.J. Super. 344, 364 (App. Div.), certif. denied, 135 N.J. 468 (1994), and other cases, the judge held that "when a criminal defendant makes threats against a prosecution witness with the intent to induce him or her . . . not to testify, he cannot rely on [Rule] 404(b) to . . . bar testimony relating to those threats." The judge provided a limiting jury instruction following the testimony, which she essentially repeated in her final jury instructions. The judge advised jurors that the evidence was admitted for a "narrow" purpose, that it may not be considered as demonstrating defendant "ha[d] a propensity to commit crimes or that he is in fact a violent individual," but "may only be [considered] as it may relate to the defendant's consciousness of guilt and for no other purpose." Defendant now argues admission of the letters and Wilson's testimony regarding them violated Rule 404(b).
We begin by noting that "[a] trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). Where there is no objection to the evidence, we "review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2). "When specifically reviewing the sensitive admissibility rulings made pursuant to the weighing process demanded by Rule 404(b), . . . we have further said that '[o]nly where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed.'" Id. at 157-58 (alteration in original) (quoting State v. Barden, 195 N.J. 375, 391 (2008)). However, if the trial court fails to engage in a proper Rule 404(b) analysis, our review is plenary. Id. at 158 (citing State v. Lykes, 192 N.J. 519, 534 (2007)).
"The threshold determination under Rule 404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403." Id. at 179. Evidence may be intrinsic to the charged crime in two ways. First, "evidence is intrinsic if it 'directly proves' the charged offense. . . . Second, 'uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime.'" Id. at 180 (quoting United States v. Green, 617 F.3d 233, 249 (3d Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d 234 (2010)).
The trial judge's reasoning was spot-on as to Harrison's testimony regarding the two guns. That was intrinsic evidence since, at the least, defendant was charged with possessory crimes regarding those specific weapons. Harrison's testimony that defendant wanted to find the discarded guns to "have more people" was ambiguous at best. The prosecutor never asked him to explain the meaning of the phrase, and its admission was not plain error. Nor was Harrison's testimony regarding defendant's purchase of marijuana.
The disputed testimony by Wilson regarding the letters and their admission into evidence should have triggered a Rule 404(b) analysis, although defendant did not pose so specific an objection. "Our courts have long held that evidence of threats made by a defendant to induce a witness not to testify is admissible because it illuminates the declarant's consciousness of guilt." Goodman, supra, 415 N.J. Super. at 232 (quoting Buhl, supra, 269 N.J. Super. at 364) (internal quotation marks omitted). However, in both Goodman and Buhl, we considered admission of the evidence under Rule 404(b) or its predecessor, Rule 55. Goodman, supra, 415 N.J. Super. at 232-34; Buhl, supra, 269 N.J. Super. at 364. We therefore apply de novo review to the admission of Wilson's testimony regarding the letters and the letters themselves.
The judge also cited State v. Johnson, 216 N.J. Super. 588, 611 (App. Div.) (quoting State v. Lassiter, 197 N.J. Super. 2, 8 (App. Div. 1984), certif. denied, 101 N.J. 215 (1985)), certif. denied, 107 N.J. 647 (1987), where we said, "This type of evidence illuminates 'defendant's consciousness of his own guilt' and is not subject to the restriction of Evid. R. 55." We did not mean to imply that the proper Rule 404(b) analysis was unnecessary, but only that the exclusionary aspects of the Rule do not apply because the evidence is admissible for purposes other than "to prove the disposition of a person." N.J.R.E. 404(b).
The "seminal case in New Jersey on the proper application of Rule 404(b)" is State v. Cofield, 127 N.J. 328 (1992), which set out a
four-part test to determine if evidence of uncharged misconduct is admissible at trial:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
Without question, the disputed evidence in this case satisfied the Cofield test.4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Rose, supra, 206 N.J. at 159-60 (quoting Cofield, supra, 127 N.J. at 338).]
Wilson's testimony and the letters were plainly relevant of defendant's guilty conscience. The second part of the Cofield test is understood not to apply in all cases, this one included, because "[t]emporality and similarity of conduct is not always applicable." Id. at 160. The third part of the Cofield test is satisfied because the letters, hand-written by defendant, were clear and convincing evidence of his attempts to intimidate Wilson. Lastly, the probative value of Wilson's testimony and the associated letters was not outweighed by their obvious prejudice to defendant. Ibid.
B.
Without objection, Kevin Walker, Harrison's counsel, was called as a State's witness, ostensibly to discuss the plea bargain that Harrison struck with the prosecution. Harrison had pled guilty to an accusation charging him with first-degree aggravated manslaughter, N.J.S.A. 2C:11-4(a), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). In return for Harrison's truthful testimony at trial, the State agreed to recommend a maximum sentence of thirty years in prison with an 85% period of parole ineligibility.
Early in the testimony, the prosecutor began to question Walker about the felony-murder doctrine. An objection ensued, and at sidebar, the judge not only sustained the objection but questioned the prosecutor: "What was the purpose of [] Walker being here to testify from the outset?" She restricted Walker's testimony to a discussion of the factors he considered in negotiating the plea and in making his assessment of Harrison's legal situation.
Walker's testimony comprises nearly eighty pages of the transcript. In addition to discussing the terms of Harrison's plea bargain, the prosecutor asked Walker to calculate Harrison's maximum exposure had he gone to trial on all nine counts of the indictment on which defendant was being tried. The prosecutor then asked Walker to explain the likely range of Harrison's maximum sentence. He asked Walker if, based upon his decades of experience as an attorney, it was probable that Harrison would be sentenced on "the lower side of the spectrum," i.e., receive a thirty-year aggregate sentence, based on his youth. Walker said that would "[t]ypically" be the case.
Defendant now argues that Walker's testimony was irrelevant and prejudicial because it permitted the prosecutor to bolster the credibility of Harrison. We agree and are deeply troubled by the wholesale admission of this largely irrelevant evidence.
Harrison was a critical witness in the State's case, and, in large part, the thrust of the defense was that Harrison shot the victim and lied in an attempt to minimize his involvement. Defendant was entitled to impeach Harrison's credibility by demonstrating that he pled guilty in return for a favorable plea bargain conditioned upon testifying against defendant. See, e.g., State v. Holmes, 290 N.J. Super. 302, 312-13 (App. Div. 1996) (commenting on the propriety of such impeachment evidence).
There was other evidence adduced at trial that implicated Harrison as the person who actually fired the fatal shot.
Harrison, who testified immediately after Walker, was questioned directly about the terms of his plea bargain, a condition of which was that he testify truthfully at trial. We assume that the purpose of Walker's testimony, at least in part, was to support Harrison's credibility, by showing the sentence bargained for was potentially not much more favorable than the probable sentence Harrison would have received if convicted at trial. However, the only relevant evidence was Harrison's perception that he curried more favorable treatment by being a State's witness against defendant. In analyzing the relevancy of impeachment evidence of this nature, we have said:
There may exist no express agreement at all that the witness will benefit from testifying favorably for the State, or, alternatively, that the witness will suffer because of failing to do so. All that matters is that the witness subjectively regards himself as vulnerable to government pressure.
[Holmes, supra, 290 N.J. Super. at 313.]
Walker's testimony posed the risk of substantial prejudice. Immediately before Harrison testified, the jury heard his experienced attorney explaining the calculus used in offering advice to defendant's guilty co-defendant that ultimately resulted in Harrison pleading guilty. As the judge herself recognized when she sustained an objection at side bar and restrained the prosecutor from asking Walker about his assessment of the strengths of the State's case, the prosecution's case against defendant was "the same case" as the one against Harrison, i.e., all four men were guilty of felony murder. Walker's testimony had the potential to raise in the jury's mind a dangerous, prejudicial implication. If Harrison — who was present every step of defendant's murderous way — pled guilty after receiving his attorney's advice, why was defendant proceeding to trial?
In a different case, we might conclude admission of Walker's testimony compels reversal. However, as noted, there was only limited objection to Walker's testimony, and when defense counsel did object, the judge sustained his objection. In summation, defense counsel used Walker's testimony to argue that Harrison actually faced less jail time than what he bargained for, since Walker testified that he would ask the judge to impose a lesser sentence on his client based upon Harrison's cooperation.
As the Court most recently said, when applying the plain error doctrine to evidence that should have been excluded, "the error will be disregarded unless a reasonable doubt has been raised whether the jury came to a result that it otherwise might not have reached." State v. R.K., ___ N.J. ___, ___ (2015) (slip op. at 21) (citing State v. Daniels, 182 N.J. 80, 95 (2004)). In weighing the effect of improperly admitted evidence, we may assess "if the State's case is particularly strong." Ibid.
Here, we cannot ignore that defendant significantly incriminated himself in the statement he gave to Hageman, some details of which actually corroborated Harrison's testimony. Furthermore, Harrison's testimony was corroborated by other witnesses. Walker's testimony was irrelevant and should not have been admitted at trial, and we strongly caution prosecutors from attempting to utilize such testimony in the future. However, we are firmly convinced the admission of Walker's testimony was not plain error that requires reversal.
C.
Defendant contends that the prosecutor's "overzealousness" amounted to misconduct requiring reversal. While prosecutors occupy a special position in our system of criminal justice, see, e.g., Daniels, supra, 182 N.J. at 96, they are nevertheless entitled to zealously argue the merits of the State's case. State v. Smith, 212 N.J. 365, 403 (2012), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). "The duty of the prosecutor 'is as much . . . to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.'" Ibid. (quoting State v. Frost, 158 N.J. 76, 83 (1999)) (internal quotation marks omitted). 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 have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting Frost, supra, 158 N.J. at 83). One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J. 394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." Smith, supra, 212 N.J. at 407.
Defendant cites examples from the prosecutor's opening statement during which he utilized a visual presentation that included a photo of the victim. The prosecutor stated that Burshteyn's family was still coping with her loss. The prosecutor also showed the jury two photographs of defendant sitting in the back of a police car, and he referred to defendant by his different aliases. He told the jury that defendant had a 16-year-old girl in his car when he was arrested in South Carolina, and the prosecutor played portions of defendant's statement to Hageman.
There was no objection at any point during the opening statement. All of the items shown to the jury were eventually admitted into evidence, as was defendant's statement, and there was testimony during trial regarding defendant's aliases. When the evidence was actually adduced at trial, there was no objection.
In the absence of any objection at trial, defendant's claim that it was error to permit the prosecutor to show the items to the jury before they were admitted into evidence lacks merit. While we fail to see the relevance of some of the evidence, for example, the photos of defendant in a police car, we cannot conclude that showing them to the jury was plain error.
During trial, the prosecutor asked Burshteyn's business associate if he had ever met Burshteyn's grandchild, whose photograph was contained on Burshteyn's cellphone, which defendant had in his possession when arrested. Defendant cites this and other instances during trial that he claims amount to misconduct requiring reversal. We have considered them all and find the argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We address more specifically below two other instances of alleged misconduct by the prosecutor that defendant has raised, specifically that the prosecutor's comments at sentencing require reversal, and that the prosecutor's decision to proceed with the bifurcated trial on the certain persons offense without a certified judgment of conviction was improper.
V.
Trial on the certain persons offense, N.J.S.A. 2C:39-7(b)(1), count ten of the indictment, commenced immediately following receipt of the jury's verdict on counts one through nine. Defense counsel lodged an immediate objection at sidebar, noting the State had not furnished a certified judgment of conviction demonstrating that defendant had been previously convicted of one of the predicate offenses contained in the statute. The State conceded that it had no certified judgment of conviction for a predicate offense, but claimed that the statute did not require such proof.
Although at another point, the prosecutor told the judge, "the worst that happens [is] we're wrong and the Appellate Division can deal with this separately."
Instead, the State called Sergeant Jayson Abadia of the Burlington County Prosecutor's Office, who had testified during the trial-in-chief. In front of the jury, Abadia was shown "a computerized database history for" defendant. The prosecutor asked if the document showed that defendant "has had prior convictions in the state of New York," to which Abadia answered, "[t]hat's true." Abadia described how, upon arrest, defendant's fingerprints were submitted to various databases, thereby assuring that this criminal history, although sometimes reflecting another name, was defendant's criminal history.
The prosecutor then had Abadia identify a certified judgment of conviction from New York dated July 17, 2003, showing that "Glenroy Laurence" had been convicted in Queens County for "attempted robbery." Abadia confirmed that the judgment of conviction indicated that the sentence imposed was to run concurrent to "another court case" in Queens County with a different docket number. The prosecutor then asked Abadia to compare that docket number to the computerized criminal history. Abadia confirmed that the docket number reflected an arrest for "drug distribution" that defendant "was ultimately sentenced on . . . in New York." Abadia also confirmed that the criminal history revealed a sentence was imposed on that offense on November 20, 2001. The State moved the computerized criminal history and the judgment of conviction for attempted robbery into evidence.
Both documents are contained in the State's appendix.
Defense counsel objected again after Abadia's testimony, renewing his claim that the State failed to produce a certified judgment of conviction for the predicate offense. Overruling the objection, the judge reasoned, "I believe the law does require a Judgment of Conviction but because it is contained within a Judgment of Conviction that it is appropriate [to] allow [the two documents] in evidence."
Defendant produced no evidence, the judge provided the jury with instructions, and it returned a guilty verdict as to count ten within thirty minutes.
Defendant argues that the State did not present sufficient evidence to sustain the conviction under N.J.S.A. 2C:39-7(b)(1), and the judge failed to "sanitize" the conviction. We conclude much of the evidence actually adduced was inadmissible, and the admissible evidence was insufficient to prove defendant guilty beyond a reasonable doubt. We are compelled to reverse defendant's conviction on count ten.
"[I]f defendant stipulates to the offense, the jury need be instructed only that defendant was convicted of a predicate offense. If the defendant does not stipulate, then the trial court should sanitize the offense or offenses and limit the evidence to the date of the judgment." State v. Brown, 180 N.J. 572, 585 (2004).
To convict a person of violating N.J.S.A. 2C:39-7(b)(1), "the State must prove beyond a reasonable doubt that defendant possessed a weapon and that he previously was convicted of an enumerated crime." Brown, supra, 180 N.J. at 578. Attempted robbery is not an enumerated crime, although possession of a controlled dangerous substance with intent to dispense is an enumerated crime. N.J.S.A. 2C:39-7(b)(1). Several drug offenses are predicate crimes, although possession of a controlled dangerous substance is not. Ibid.
The computerized criminal history was not competent evidence that defendant was convicted in New York of a predicate charge that proved a violation of N.J.S.A. 2C:39-7(b)(1) in New Jersey. See, e.g., State v. Underwood, 286 N.J. Super. 129, 138-39 (App. Div. 1995) (holding it was error to permit officer to testify that car was reported stolen in the National Crime Information Center (NCIC) computer); see also State v. McGee, 131 N.J. Super. 292, 297-98 (App. Div. 1974) (concluding it was error to permit detective to testify that gun was reported stolen based upon NCIC printout).
Moreover, the computerized criminal history in this case contained other information that was completely irrelevant to the prosecution. For example, it revealed that a warrant had issued for defendant after his conviction for the alleged predicate drug offense, that the original charge against him was not attempted robbery, but robbery, and that he had been "paroled to U.S. immigration." Moreover, the State attempted to prove a necessary element of N.J.S.A. 2C:39-7(b)(1), i.e., a prior conviction of a predicate offense, by using a judgment of conviction for a crime that did not qualify, i.e., attempted robbery. As a result, the jury was told that defendant had been convicted of this crime too, something that was irrelevant and prejudicial.
We vacate defendant's conviction on count ten.
VI.
We turn to the issues regarding defendant's sentence.
The prosecutor asked the judge to permit presentation of a video-recording prepared by Burshteyn's family that showed aspects of her life. The judge reviewed the recording, which was two minutes and forty-seven seconds long, and found that, with the music muted, it complied with the requirements of State v. Hess, 207 N.J. 123, 156-59 (2011). The video was played at sentencing.
During his presentation, the prosecutor likened defendant to a "domestic terrorist," and alluded to armed robberies he allegedly committed in Trenton and Brooklyn, as well as references defendant himself made during his statement to Hageman regarding participation in the "Bloods criminal street gang." The prosecutor urged the judge to find aggravating factors one, three, five, six, nine and thirteen applied. See N.J.S.A. 2C:44-1(a)(1) (the nature and circumstance of the offense and whether it was committed in "an especially heinous, cruel, or depraved manner"); (a)(3) (the risk of re-offense); (a)(5) (substantial likelihood of involvement in organized crime); (a)(6) (defendant's prior criminal record and the seriousness of the offenses for which he has been convicted); (a)(9) (the need to deter); (a)(13) (possession of a stolen motor vehicle during the course of committing a crime). Defense counsel did not urge that the judge find any specific mitigating factors. See N.J.S.A. 2C:44-1(b).
Addressing issues of merger, the judge determined that the convictions on counts two (felony murder during a kidnapping), four (felony murder during a robbery), five (carjacking) and eight (possession of a firearm for an unlawful purpose) should merge into the conviction on count six (felony murder during a carjacking), and the conviction on count nine (terroristic threats) should merge into the conviction on count three (robbery). The judge did not merge the convictions on count one (kidnapping), count three (robbery), count seven (unlawful possession of handguns) and count ten (certain persons).
Thereafter, the judge considered the aggravating and mitigating sentencing factors, and concluded aggravating factors one, two, see N.J.S.A. 2C:44-1(a)(2) ("[T]he gravity and seriousness of the harm inflicted on the victim"), three, six, nine and thirteen, and no mitigating factors, applied. Determining that the aggravating factors strongly outweighed the nonexistent mitigating factors, the judge concluded that any sentence imposed must be in the uppermost reaches of the permissible ranges for these crimes.
The judge then addressed whether any of the sentences imposed should run consecutively. Carefully considering the factors enunciated in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the judge concluded that the sentences imposed for kidnapping (count one), and unlawful possession of handguns (count seven) should be served consecutively to each other and to the sentence imposed for felony murder during a carjacking (count six).
On count six (felony murder during a carjacking), the judge imposed a sentence of life imprisonment, subject to the eighty-five percent parole disqualifier of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count one (kidnapping), the judge imposed a consecutive sentence of thirty years, also subject to NERA, and on count seven (unlawful possession of handguns), the judge imposed a consecutive ten-year term of imprisonment, subject to a five-year parole disqualifier, under the Graves Act, N.J.S.A. 2C:43-6(h). The judge imposed concurrent sentences on count three (robbery), and count ten (certain persons not to have a weapon). The resulting aggregate sentence was life imprisonment plus forty years, subject to a parole-disqualifier period of ninety-four and one-quarter years.
Defendant first contends that permitting the prosecutor to show the video prepared by Burshteyn's family, and the remarks made by the prosecutor noted above amount to misconduct that requires reversal. We disagree.
The Court has recognized that crime victims and their families have a right to make a statement, including a video presentation, at the time of a defendant's sentencing. Hess, supra, 207 N.J. at 156. The Court, however, has imposed reasonable limits. Id. at 158-59. In this case, the judge carefully considered and followed the Court's guidance, and we find no error.
We also conclude that the prosecutor's comments, while hard-edged, do not require reversal. Information cited by the prosecutor regarding other crimes were reflected in the record, including defendant's unredacted statement to authorities. It is clear that to the extent they were inflammatory, the prosecutor's rhetoric had no effect on the judge's thoughtful consideration of the sentence to be imposed.
Defendant argues that the convictions for kidnapping and robbery should have been merged into the conviction for felony murder during a carjacking because the events were all part of "one continuous criminal episode." At sentencing, the judge explicitly relied on the rationale expressed by the Court in State v. Hill, 182 N.J. 532 (2005).
There, the Court addressed the "vexing question" of "what, if any, predicate crimes must merge with a felony murder conviction for sentencing purposes when more than one predicate crime has been proven." Id. at 535. The Court concluded that "[i]f the jury designates more than one felony as the predicate for felony murder, the trial court at sentencing is to merge only the predicate felony that set in motion the chain of events leading to the murder — the 'first-in-time' predicate felony — into the felony murder conviction." Id. at 535, 548. Later occurring predicate offenses do not necessarily merge. Id. at 539-40, 551. The trial judge carefully considered the holding in Hill, and we find no error in her decision not to merge the kidnapping and robbery into the felony murder during a carjacking because those crimes were separate offenses from the carjacking.
Defendant also argues the aggregate sentence imposed was unduly punitive. In particular, he takes issue with the judge's finding of aggravating factors one, two and three, as well as her imposition of a consecutive sentence for kidnapping.
We begin by noting that "[a]ppellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). As the Court has recently reiterated:
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. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
The Court recently noted that "[w]hen applying [factor one], 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." Id. at 74 (internal quotation marks omitted). "[A] sentencing court may justify the application of aggravating factor one . . . by reference to the extraordinary brutality involved in an offense. . . . A sentencing court may consider aggravating facts showing that [a] defendant's behavior extended to the extreme reaches of the prohibited behavior." Id. at 75 (alteration in original) (internal quotation marks omitted).
"[Aggravating factor two] compels 'a pragmatic assessment of the totality of harm inflicted by the offender on the victim.'" State v. Lawless, 214 N.J. 594, 610 (2013) (quoting State v. Kromphold, 162 N.J. 345, 358 (2000)). "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." Id. at 611 (citing N.J.S.A. 2C:44-1(a)(2)).
It suffices to say that the judge carefully explained her findings regarding aggravating factors one and two, they were amply supported by the record, and we find no reason to disturb them. Defendant's argument regarding aggravating factor three lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).
Furthermore, "trial judges have discretion to decide if sentences should run concurrently or consecutively." Miller, supra, 205 N.J. at 128. "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. The judge in this case carefully considered the appropriate factors guiding her discretion in terms of concurrent or consecutive sentences. We affirm defendant's sentence.
In light of our discussion, we reject defendant's claim of cumulative error requiring reversal.
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In sum, we vacate defendant's conviction on count ten, certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). In all other respects, we affirm defendant's conviction and the sentence imposed. We remand the matter to the trial court for entry of an amended judgment of conviction. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION