STATE OF NEW JERSEY v. DAIQUAN C. BLAKE STATE OF NEW JERSEY v. ROBERT F. BLAKE STATE OF NEW JERSEY v. ROBERT F. IVERSON (17-03-0259, CUMBERLAND COUNTY AND STATEWIDE) (CONSOLIDATED) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1554-18
A-2739-18
A-3183-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAIQUAN C. BLAKE,
Defendant-Appellant.
_______________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT F. BLAKE,
Defendant-Appellant.
_______________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ROBERT F. IVERSON,
a/k/a ROBERT F. BLAKE,
and ROBERT IVERSON,
Defendant-Appellant.
_______________________
Argued (A-1554-18) January 13, 2022, Argued (A-
2739-18) February 3, 2022, and Submitted (A-3183-18)
January 13, 2022 – Decided February 17, 2022
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 17-03-
0259.
Douglas R. Helman, Assistant Deputy Public Defender,
argued the cause for appellant Daiquan C. Blake
(Joseph E. Krakora, Public Defender, attorney; Douglas
R. Helman, of counsel and on the briefs).
Alison Gifford, Assistant Deputy Public Defender,
argued the cause for appellant Robert F. Blake (Joseph
E. Krakora, Public Defender, attorney; Alison Gifford,
of counsel and on the briefs).
Joseph E. Krakora, Public Defender, attorney for
appellant Robert F. Iverson (Monique Moyse,
Designated Counsel, on the briefs).
Regina M. Oberholzer, Deputy Attorney General,
argued the cause for respondent (Andrew J. Bruck,
Acting Attorney General, attorney; Regina M.
Oberholzer, of counsel and on the briefs).
PER CURIAM
A-1554-18
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In these three back-to-back appeals, defendants Daiquan C. Blake, Robert
F. Blake, and Robert F. Iverson appeal from their convictions and sentences
related to the shooting and death of Juanita Holley outside the home she shared
with her husband, Reggie Holley. 1 We affirm the convictions of all three
defendants, the sentences of Robert 2 and Iverson, and remand for Daiquan's
resentencing.
In September 2016, Daiquan was invited to a baby shower for his ex-
girlfriend Sianni Powers at Reggie and Juanita's home in Bridgeton. Daiquan
arrived at approximately 1:00 p.m. At the shower, Daiquan had an argument
with Marvin Sharpe, Powers' sister's boyfriend. Reggie intervened and asked
both men to leave. Daiquan used Powers' phone to find a ride home by using
her Facebook account to message his own account, which was being used by his
then-girlfriend, stating: "This Dai, I'm good. I gotta get my gun."
Daiquan's cousin picked him up and drove him home to Penns Grove.
Later the same day, at approximately 7:00 p.m., Dianna Carlson drove Daiquan
1
Because Juanita and Reggie share a surname, we refer to them by their first
names. We intend no disrespect.
2
Because Daiquan and Robert share a surname, we refer to them by their first
names. We intend no disrespect.
A-1554-18
3
and his sister Hyshonna 3 back to the Holley residence. Carlson followed a
minivan driven by Iverson, Daiquan's father, with Daiquan's brothers, Robert
and Isaiah Harris as passengers. After parking down the street from the Holley
home, Carlson and Hyshonna exited Carlson's car and stood outside. Daiquan's
brothers then walked up to Carlson and Hyshonna.
Daiquan knocked on Reggie's door and asked to speak with Powers, but
Reggie informed him she was not there. Reggie believed Daiquan was searching
for Sharpe. Daiquan returned to Carlson's car. Reggie then called his friend,
Bruce Hall, who was coming to buy a car, and asked Hall to bring his gun. When
Hall arrived approximately fifteen minutes later, Reggie walked outside to meet
him. When Carlson and Hyshonna observed Hall's vehicle pull up, they returned
to Carlson's car. Shortly thereafter, Carlson stated she saw Daiquan and his
brothers running and then heard gunshots.
Harold Govan, Reggie's neighbor, was sitting with his wife on their porch
when the shooting took place. He told police he saw three men running down
the street and into a bush. He then saw one of the men walk into the middle of
the street and shoot toward the Holley residence.
3
Hyshonna shares a surname with Daiquan and Robert. For these reasons, we
refer to her by her first name. We intend no disrespect.
A-1554-18
4
Reggie identified Daiquan as the shooter. When he saw Daiquan shoot,
he ducked and tried to turn around, but tripped over Juanita's body. She had
followed him outside and was struck by a bullet in the chest. She later died at
the hospital.
Police canvassed the scene and recovered several projectiles. Based on
the evidence, they concluded there were two shooters: Daiquan and Hall.
A few hours after the shooting, State Police detectives John Weber and
C.J. Tortella questioned Daiquan regarding the incident. The recorded interview
lasted approximately an hour. After reading Daiquan his Miranda4 rights and
confirming he understood them, Daiquan signed a Miranda waiver card.
Daiquan continued speaking to the detectives.
The interview recording was played for the jury. In it, Daiquan claimed
he left the baby shower because the party was over. He later admitted arguing
with Sharpe at the party but claimed they "talked it out[.]" He stated he returned
with the others to drop off gifts for Powers, and when he knocked on Reggie's
door, Reggie "started coming crazy." Daiquan claimed he left after Reggie told
him Powers was not there.
4
Miranda v. Arizona, 384 U.S. 436 (1966).
A-1554-18
5
Daiquan denied shooting a gun, but claimed that shortly after he argued
with Reggie, another car pulled up and "somebody" started shooting. He was
scared and ran until he borrowed a phone from somebody on the street to call
his sister. The interview concluded when Daiquan asked to speak with a lawyer.
A few minutes later, Daiquan asked to speak with police again. Detective
Sergeant Joseph Itri and Lieutenant Thomas Wieczerak conducted the second
interview, which was also recorded, after re-Mirandizing Daiquan. He admitted
Reggie asked him to leave the party because of the altercation and admitted
Robert was present at the scene. The second interview ended when Daiquan
asked to speak to his mother.
Police also Mirandized and interviewed Carlson. She stated Hyshonna
told her Daiquan "went to the baby shower and they tried to jump him." Carlson
stated Daiquan told her when he knocked on Reggie's door, he told Reggie "I
want my fair one because you all tried to jump me. I want my fair one. Can
you come outside?" Daiquan also told her, "they started shooting first and that's
when he said he let one . . . . He shot once." She did not see Daiquan's gun but
heard two guns during the shooting.
Daiquan was indicted on: first degree murder, N.J.S.A. 2C:11-3(a)(1)
(count one); second degree possession of a weapon for an unlawful purpose,
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N.J.S.A. 2C:39-4(a)(1) (count two); second degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b)(1) (count three); fourth degree aggravated assault,
N.J.S.A. 2C:12-1(b)(4) (count four); and second degree conspiracy to commit
aggravated assault, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(1) (count
five). Robert, Iverson, and Harris were each indicted on a single count of second
degree conspiracy to commit aggravated assault, attempting to cause serious
bodily injury, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(1).
The trial judge denied Daiquan's motion to suppress his statements to
police after considering testimony from Weber and Itri. The judge concluded
Daiquan voluntarily re-initiated communication with the police after
terminating the first interview and both of his statements were given after a
knowing and voluntary waiver of his rights.
Harris, Iverson, and Robert's cases were severed from Daiquan's. At
Daiquan's trial, the jury heard testimony from, among others: Powers, Govan,
Carlson, and Reggie. The State played Daiquan's first interview for the jury in
its entirety as well as portions of his second interview.
No gun was recovered from Daiquan's home. Police did recover a P38
semiautomatic pistol from Hall's home and determined it matched some of the
A-1554-18
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shell casings found. However, no gun was ever found that matched the projectile
found in Juanita's body.
Govan testified he saw three males "coming down the street" from
Reggie's house. One man was wearing a gray hoodie and the other two "had
black hoodies on[.]" He saw the group run to a bush and overheard one of the
men say, "F that, I'm not running." The man walked into the street, reached into
his pants, pulled out a gun and fired towards the Holley home. Govan then heard
gunfire coming from "down the street" in response. Afterwards, the group ran
down the street and jumped in a van. He also saw another vehicle speeding
away from the area.
Carlson testified she did not see Daiquan with a gun. Contrary to her
initial statement to police, she denied Daiquan ever told her he shot a gun and
claimed police pressured her to make the statement during her interview. Given
her inconsistent testimony, the State sought to play her police interview for the
jury. The trial judge held a Gross5 hearing at which Weber testified he
interviewed Carlson and she voluntarily provided her statement. The judge
concluded Carlson's recorded statement was reliable and therefore could be
presented to the jury as a prior inconsistent statement pursuant to N.J.R.E.
5
State v. Gross, 121 N.J. 1 (1990).
A-1554-18
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803(a)(1). After rendering the decision, the judge inquired whether the parties
wished to redact portions of the recording before it was played for the jury;
neither raised an objection.
Reggie testified he heard Daiquan arguing with Sharpe at the shower and
told them both to leave. Reggie stated Daiquan left for "a couple [of] hours"
before returning looking for Sharpe, asking Reggie "[w]here he at now?" Reggie
responded Sharpe was not there and was "long gone." Undeterred, Daiquan
responded "[w]ell, it started here and it's gonna . . . finish."
Reggie also testified when Hall called him about coming to look at a car
Reggie was selling, he warned him to "be careful . . . because that young boy is
still out here acting stupid . . . ." He also advised Hall to "bring [his gun] just
in case." Approximately fifteen minutes later, Reggie walked outside holding
"a BB gun" to meet Hall. Reggie saw Daiquan sitting in a car parked about two-
hundred feet up the street, and then heard someone say "[h]e brung in some
people." He then heard a gunshot, ducked, turned around, and found Juanita on
the ground. Reggie told Hall Juanita was hit and then Hall "got back in his truck
and start[ed] shooting." Reggie heard Hall shoot back about "four or five" times.
Although Reggie did not know Daiquan's first name and the shower was
the first time the two met, he identified Daiquan as the shooter because he could
A-1554-18
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see him "[v]ery well [because] [h]e had just left [his] porch." He testified
Daiquan wore a red or rust colored shirt to the shower but returned wearing a
hoodie.
The jury convicted Daiquan on counts one through four with count one
amended to second degree passion/provocation manslaughter. At sentencing,
the trial judge found no mitigating factors. The judge found aggravating factors
three and nine, N.J.S.A. 2C:44-1(a)(3) and (9), giving both factors "substantial
weight."
The judge merged count two into count one and sentenced Daiquan to ten
years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He also
merged count four into count one. On count three, the judge sentenced Daiquan
to ten years pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), and subject to five-
years of parole ineligibility. After analyzing the Yarbough6 factors, the judge
determined counts one and three would be served consecutively.
Following Daiquan's conviction, Harris pled guilty and Robert and
Iverson's case was tried before a jury, presided over by the same judge as
Daiquan's trial. Prior to the trial, Iverson moved to suppress two statements he
had given police following Daiquan's arrest. The first statement was a recording
6
State v. Yarbough, 100 N.J. 627 (1985).
A-1554-18
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made in Iverson's home, which the judge found admissible because police were
questioning Iverson as a witness and not as a suspect. This statement was played
for the jury and Iverson does not challenge it on appeal.
The second was a formal video statement taken at State Police barracks
the next morning. At the outset of the recording the following took place:
[WEBER:] . . . Before we start . . . I have to advise you
of your rights okay. You're not under arrest at this time.
[IVERSON:] Yea.
[WEBER:] But I'm . . . going to read it to you anyway.
[IVERSON:] Uh huh.
[WEBER:] And then you can just indicate that you'll
understand as I'm . . .
[IVERSON:] Should I have my lawyer present with me
with this?
[WEBER:] Do you feel like you need a lawyer here? I
mean . . .
[IVERSON:] I don't feel (indiscernible as both . . .
Weber [and] Iverson speaking at the same time).
(laughs) You talking about reading me my rights.
[WEBER:] . . . [L]ike I said . . . it's something I . . .
have to do okay.
[IVERSON:] Alright.
A-1554-18
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The trial judge found Weber's testimony at the Gross hearing credible.
The judge found Iverson's second statement was knowing and voluntary because
Iverson did not request counsel. He further found Weber's statement was
appropriate because it was not made to dissuade Iverson, and when asked if he
felt he needed counsel, Iverson responded "no." The judge concluded "the tenor
and the content" of Iverson's statements showed he was "familiar with how
police investigations go. He says he understands, he knows what they're doing.
That they have to do what they're doing." At trial, the second statement was not
played for the jury and was instead briefly mentioned during the State's case, as
we will discuss.
Carlson, Reggie, and Govan testified similarly in Robert and Iverson's
cases as in Daiquan's case. Carlson explained Hyshonna called her to ask if she
wanted to give people a ride. Carlson arrived at the Iverson home around 6:00
p.m. Iverson and Daiquan asked her to drive them back to the Holley home after
a "discussion about returning back to the location where [Daiquan] was earlier
that day[.]" Carlson believed the group was only going to Reggie's for Daiquan
to fight Sharpe one-on-one. She testified Daiquan brought his brothers and
father "to make sure it was a fair fight."
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When they arrived, Carlson, Hyshonna, and Daiquan got out of Carlson's
car, and were joined by Harris and Robert. The group talked and "stood around."
Harris and Daiquan then approached Reggie's door while Robert stayed by the
car. When they returned, Harris told Carlson and Hyshonna to get back in the
car because another car was approaching. Carlson testified that during the
shooting Robert was in front of her car. Carlson and Hyshonna left the scene
and later met up again with Harris, Daiquan, Iverson, and Robert.
Govan testified he saw two men with hoods on walk down the street. He
saw one of them walk past his home to meet someone and then come back with
a third man. The three men were walking towards Reggie's home when
something startled them, causing them to run. Govan then said, "they ran right
past [a] bush and then . . . one said; 'F that,' and went back [into the street] and
reached in his pants . . . and shot." He saw the men run away and jump in a van,
followed by Carlson's car speeding away.
Iverson's neighbor, Keyla Parrilla Caballos, testified she owned a Mazda
minivan, which the group borrowed that day. She could not identify which son
asked to borrow the vehicle, but believed Iverson was the driver.
State Police Sergeant John DeHart and Weber also testified. DeHart
spoke with Iverson the evening of the shooting, and Iverson denied the family
A-1554-18
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ever left the house. Weber explained he obtained cell phone location data for
Iverson, Daiquan, Hyshonna, and Carlson.
The State also called State Police Detective Sergeant Steven Foster as an
expert witness. He analyzed Iverson, Hyshonna, and Robert's cell phones.
Using cell-tower data, he located Robert halfway between Penns Grove and
Bridgeton at around 6:40 p.m. He testified Robert made four calls within that
area after 8:00 p.m. in the evening, three of those calls were made to Carlson
between 8:00 and 8:01 p.m. According to Foster, Robert left Bridgeton and
returned to Penns Grove at 8:58 p.m. Foster also located Iverson's cell phone in
Penns Grove at 9:10 p.m.
After the State rested, the trial judge denied Robert and Iverson's motions
for acquittal. The jury convicted both men on the sole count in their indictments.
The judge denied each defendant's motion for a new trial.
At Robert's sentencing, the trial judge found aggravating factors three and
nine, N.J.S.A. 2C:44-1(a)(3) and (9), and gave both substantial weight, and
found mitigating factor thirteen, N.J.S.A. 2C:44-2(b)(13). The judge concluded
the aggravating and mitigating factors were in equipoise and sentenced Robert
to seven years subject to NERA and three years of parole supervision upon
release.
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Iverson was sentenced to seventeen years subject to NERA followed by
three years of parole supervision. The judge found aggravating factors three,
six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9) applicable, and no mitigating
factors.
Daiquan raises the following points on appeal:
I. DESPITE IDENTIFICATION BEING A KEY
ISSUE AT TRIAL, THE JUDGE FAILED TO
CHARGE THE JURY THAT THE STATE MUST
PROVE THE IDENTITY OF THE PERPETRATOR
BEYOND A REASONABLE DOUBT. THE
MISSING INSTRUCTION DEPRIVED [DAIQUAN]
OF A FAIR TRIAL, REQUIRING REVERSAL.
II. THE COURT ALSO FAILED TO GIVE THE
REQUIRED JURY CHARGES REGARDING THE
RELIABILITY OF EYEWITNESS
IDENTIFICATION, IN A CASE THAT HINGED
ALMOST ENTIRELY ON THE TESTIMONY OF
ONE EYEWITNESS. REVERSAL IS REQUIRED.
III. THE TRIAL WAS LITTERED WITH
REFERENCES TO NONTESTIFYING WITNESSES
WHO HAD PURPORTEDLY IDENTIFIED
[DAIQUAN] AS THE SHOOTER. THESE
REPEATED REFERENCES VIOLATED
[DAIQUAN'S] RIGHT TO CONFRONTATION, AND
THE JUDGE FURTHER ERRED IN REPLAYING
THE STATEMENTS IN THEIR ENTIRETY. THIS
RENDERED THE ENTIRE TRIAL UNFAIR,
REQUIRING REVERSAL.
A. The right to confrontation is essential to a
fair trial.
A-1554-18
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B. The playing and replaying of Carlson's full
recorded interview violated the hearsay
rules, [Daiquan's] right to confrontation,
and was overly prejudicial.
C. The same Confrontation Clause violations
also infected the playing and replaying of
[Daiquan's] police interview.
IV. THE CUMULATIVE IMPACT OF THESE
ERRORS DENIED [DAIQUAN] A FAIR TRIAL..
V. THE CONSECUTIVE SENTENCE, BASED
UPON A MISAPPLICATION OF THE FACTS AND
A MISUNDERSTANDING OF WHAT
CONSTITUTES GUN POSSESSION UNDER THE
LAW, IS MANIFESTLY EXCESSIVE.
Robert raises the following points on his appeal:
I. THE COURT ERRED IN DENYING
[ROBERT'S] MOTION FOR ACQUITTAL BECAUSE
THERE WAS NO PROOF THAT HE AGREED TO
COMMIT AGGRAVATED ASSAULT, SERIOUS
BODILY INJURY. ALTERNATIVELY, THE
COURT ERRED IN DENYING [ROBERT'S]
MOTION FOR A NEW TRIAL BECAUSE THE
JURY'S VERDICT WAS AGAINST THE WEIGHT
OF THE EVIDENCE.
A. A judgment of acquittal is required
because, even construing the evidence in the light
most favorable to the state, there was insufficient
evidence to warrant a conviction.
B. Alternatively, Robert . . . is entitled to a
new trial because the jury's verdict was plainly
against the weight of the evidence.
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II. THE COURT'S REFUSAL TO INSTRUCT THE
JURY THAT MERE PRESENCE AT THE SCENE OF
THE CRIME IS INSUFFICIENT TO SUPPORT A
CONSPIRACY CONVICTION DEPRIVED
[ROBERT] OF A FAIR TRIAL.
III. IF AN ACQUITTAL OR A NEW TRIAL IS
NOT GRANTED, THE MATTER MUST BE
REMANDED FOR A RESENTENCING BECAUSE
THE COURT ERRED IN FAILING TO FIND
MITIGATING FACTOR SEVEN.
Iverson raises the following points on his appeal:
I. THE TRIAL COURT'S ADMISSION OF THE
STATEMENT OBTAINED FROM . . . IVERSON
VIOLATED HIS CONSTITUTIONAL RIGHTS TO
COUNSEL AND TO REMAIN SILENT.
II. THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE CONSPIRACY CHARGE IN THIS
CASE.
III. THE COURT'S REFUSAL TO INSTRUCT THE
JURY THAT MERE PRESENCE AT THE SCENE OF
THE CRIME IS INSUFFICIENT TO SUPPORT A
CONSPIRACY CONVICTION DEPRIVED . . .
IVERSON OF A FAIR TRIAL.
IV. . . . IVERSON'S SENTENCE WAS UNJUSTLY
DISPARATE FROM THOSE OF HIS CO-
DEFENDANTS.
V. THE TRIAL COURT ABUSED ITS
DISCRETION AND IMPOSED A MANIFESTLY
EXCESSIVE SENTENCE.
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We address the trial errors raised by each defendant in separate sections
and will address the arguments they raise regarding their sentences together.
I.
Daiquan challenges the State's evidence identifying him as the shooter.
He argues Reggie's identification testimony was not reliable because "Juanita
was shot in the evening, in the dark, and Reggie . . . had never met any of the
potential assailants until that day." He asserts Reggie and Govan provided
inconsistent accounts of the clothing he was wearing the night of the incident.
Although he did not request such an instruction, he contends the jury should
have been instructed "that the State has the ultimate burden of proving the
identity of the perpetrator beyond a reasonable doubt." He also argues the judge
failed to instruct the jury regarding the reliability of Reggie's in-court
identification, denying him the right to due process and a fair trial.
Daiquan also argues the prosecutor violated his right to confrontation by
referring in her opening to unnamed non-testifying eyewitnesses who allegedly
identified him as the shooter. He further argues the State violated the
Confrontation Clause7 by admitting Carlson's entire police interview over
defense counsel's objection, as a prior inconsistent statement. He alleges
7
U.S. Const. amend. VI; N.J. Const. art. I ¶ 10.
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Carlson's interview was unduly prejudicial because it contained improper
references to non-testifying witnesses who accused him of murder and an
assertion that police had a warrant for his arrest. He claims the judge erred by
not allowing the defense to cross-examine Carlson after her police interview
video was played.
Daiquan also contends his police interview video was improperly admitted
for similar reasons. He claims that during the interview, police made several
references to unnamed witnesses who allegedly identified him as the shooter,
which violated his right to confrontation.
Daiquan argues the cumulative effect of these errors warrants reversal of
his convictions on due process grounds. We address these arguments in turn.
A.
"When a defendant does not object to an alleged error at trial, such error
is reviewed under the plain error standard." State v. Singh, 245 N.J. 1, 13
(2021). This includes an unchallenged jury instruction. State v. Torres, 183
N.J. 554, 564 (2005).
The alleged error constitutes plain error if it was "clearly capable of
producing an unjust result." Singh, 245 N.J. at 13 (quoting R. 2:10-2). "The
mere possibility of an unjust result is not enough." State v. Funderburg, 225
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N.J. 66, 79 (2016). This standard "is a 'high bar,' requiring reversal only where
the possibility of an injustice is 'real' and 'sufficient to raise a reasonable doubt
as to whether the error led the jury to a result it might otherwise not have
reached[.]'" State v. Alessi, 240 N.J. 501, 527 (2020) (quoting State v.
Santamaria, 236 N.J. 390, 404 (2019); State v. Macon, 57 N.J. 325, 336 (1971)).
When defense counsel raises an objection at trial, the alleged error is
reviewed under a harmless error standard. State v. Mohammed, 226 N.J. 71, 86
(2016). Under this standard, "[t]he question for the appellate court [is] simply
whether in all the circumstances there [is] a reasonable doubt as to whether the
error denied a fair trial and a fair decision on the merits." Id. at 86-87 (second
and third alterations in original) (quoting Macon, 57 N.J. at 338). Like with
plain error, the error must be "clearly capable of producing an unjust result."
Ibid. (quoting R. 2:10-2).
"When identification is a 'key issue,' the trial court must instruct the jury
on identification, even if a defendant does not make that request." State v. Cotto,
182 N.J. 316, 325 (2005). Identification is a key issue when "'[i]t [i]s the major
. . . thrust of the defense,' particularly in cases where the State relies on a single
victim-eyewitness . . . ." Id. at 325-26 (alterations in original) (quoting State v.
Green, 86 N.J. 281, 291 (1981)) (internal citations omitted). Further, "[t]he
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determination of plain error depends on the strength and quality of the State's
corroborative evidence rather than on whether defendant's misidentification
argument is convincing." Id. at 326 (citing State v. Davis, 363 N.J. Super. 556,
561 (App. Div. 2003)).
At the outset, we note Daiquan did not request a jury charge on
identification. Even so, the trial judge instructed the jury multiple times the
State bore the burden to prove each element of the charges beyond a reasonable
doubt and the burden did not shift to Daiquan. The judge also instructed the
jury on witness credibility. The jury was free to accept or reject Reggie's
testimony that Daiquan was the shooter based on his interaction with him earlier
in the day.
We are unconvinced the absence of an identification instruction was plain
error because the State's case was built upon several other items of evidence
pointing to Daiquan as the shooter. Indeed, Govan's description of the men he
saw in the street, including the shooter, matched Reggie's description of the
clothing he said Daiquan was wearing when he fired the gun. Carlson's
interview also corroborated Daiquan as the shooter based on her statement to
police that Daiquan "shot once." Daiquan's Facebook message further
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corroborated he was the shooter. Therefore, the lack of a detailed identification
instruction was not error.
Defense counsel was able to cross-examine and attack the credibility of
these witnesses, undermine the evidence, and addressed credibility in
summation to the jury. For these reasons, we are unconvinced the jury charge
constituted reversible error, or that the failure to give a specific charge on
identification or reliability of witness identification was "clearly capable of
producing an unjust result." See R. 2:10-2.
B.
"Prosecutors 'are afforded considerable leeway in making opening
statements and summations.'" State v. Echols, 199 N.J. 344, 359-60 (2009)
(quoting State v. Williams, 113 N.J. 393, 447 (1988)). Nevertheless, prosecutors
"must confine their comments to evidence revealed during the trial and
reasonable inferences to be drawn from that evidence." Id. at 360 (quoting State
v. Reddish, 181 N.J. 553, 641 (2004)) (alterations in original). "Reversal is
justified when the prosecutor['s] . . . conduct was 'so egregious as to deprive
defendant of a fair trial.'" Ibid. (quoting State v. Wakefield, 190 N.J. 397, 437
(2007)).
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"Generally, if no objection was made to the improper remarks, the remarks
will not be deemed prejudicial. Failure to make a timely objection indicates that
the defense counsel did not believe the remarks were prejudicial at the time they
were made." Ibid. (quoting State v. Timmendequas, 161 N.J. 515, 576 (1999)).
In her opening arguments, the prosecutor told the jury she planned to call
two of Holley's neighbors who were sitting outside during the shooting. The
prosecutor then described what the witnesses saw, which mirrored Govan's
statement to police.
Our review of the record shows the prosecutor planned to call Govan and
his wife, who Govan testified was sitting on his porch with him when the
shooting occurred. Although the prosecutor mentioned a witness she did not
ultimately call, we are unconvinced her comment created an unjust result or
unduly prejudiced Daiquan because she did not state or infer the witness would
identify Daiquan as the shooter. Moreover, Govan testified consistently with
the prosecutor's description of his testimony and never identified Daiquan as the
shooter. The defense cross-examined Govan on his statements, and although
Weber testified to his interview with Govan and his wife, the defense cross-
examined him. Furthermore, the trial judge sufficiently instructed the jury that
A-1554-18
23
statements by attorneys were not evidence and could only consider the testimony
and exhibits admitted into evidence.
C.
Our Supreme Court has stated that "both the Confrontation Clause and the
hearsay rule are violated when, at trial, a police officer conveys, directly or by
inference, information from a non-testifying declarant to incriminate the
defendant in the crime charged." State v. Branch, 182 N.J. 338, 350 (2005).
"When evidence is admitted that contravenes not only the hearsay rule but also
a constitutional right, an appellate court must determine whether the error
impacted the verdict." State v. Weaver, 219 N.J. 131, 154 (2014). In other
words, it "requir[es] a reviewing court 'to declare a belief that [the error] was
harmless beyond a reasonable doubt.'" Ibid. (second alteration in original)
(quoting Chapman v. California, 386 U.S. 18, 24 (1965)).
Carlson's recorded police interview was properly admitted as a prior
inconsistent statement under N.J.R.E. 803(a)(1) after she denied at trial that
Daiquan told admitted to her he shot once and that police pressured her during
the interview to make that claim. At the Gross hearing, the judge considered
Weber's testimony and defense counsel's objections to the statement's
admission, and concluded Carlson's statement to police was voluntary,
A-1554-18
24
uncoerced and reliable. We have no basis to second guess the trial judge's
decision to admit the recording.
There was no confrontation clause violation because Carlson testified at
trial, her police interview was available during her testimony, and she was
subject to cross-examination. See State v. Burr, 392 N.J. Super. 538, 568-69
(App. Div. 2007) (finding no confrontation clause violation where a witness'
videotaped statement was played for the jury after her testimony concluded).
Daiquan also challenges two statements in Carlson's recorded interview
referencing statements from non-testifying witnesses. Carlson told police
someone from the neighborhood told her "they're trying to say [Daiquan] killed
somebody." She also stated she heard another person in the neighborhood state:
"They saying that [Daiquan] killed somebody. That's crazy. That's crazy; right?
That's crazy?"
Although the judge admitted Carlson's statement under N.J.R.E.
803(a)(1), he ruled the portion of the recording addressing whether Carlson had
been arrested should be redacted, and asked both parties whether there were "any
other particular statements contained within the recordings that . . . should not
be played?" The defense did not object. Daiquan now argues defense counsel's
overarching objection to the admission of Carlson's statement sufficed.
A-1554-18
25
We discern no reversible error. A thorough review of Carlson's statement
shows that immediately following the two statements, Carlson made clear she
did not believe the individuals. The statements are part of the conversation
where Carlson makes clear to police she did not see Daiquan kill anyone. Based
on the context of the conversation, Carlson did not believe the statements and
was not repeating them for their truth.
As noted, during openings both sides told the jury the only person who
identified Daiquan as the shooter was Reggie. During summations, the parties
again reminded the jury Reggie identified the shooter and allowed the jury to
accept or reject his testimony. Therefore, the jury was not misled into believing
that non-testifying witnesses identified Daiquan as the shooter.
Similarly, Daiquan argues the court erred by admitting his statement to
police because it contained comments by police referencing witnesses who
identified him as the shooter. Our Supreme Court has stated "[w]hen the logical
implication to be drawn from the testimony leads the jury to believe that a non-
testifying witness has given the police evidence of the accused's guilt, the
testimony should be disallowed as hearsay." State v. Bankston, 63 N.J. 263, 271
(1973); see also Branch, 182 N.J. at 350. However, police, "in the interrogation
process may, by the officer's statements, make misrepresentations of fact or
A-1554-18
26
suggest that evidence in the form of reports or witnesses exist that will implicate
a suspect." State v. Patton, 362 N.J. Super. 16, 32 (App. Div. 2003).
We are unpersuaded the admission of this evidence constituted reversible
error. Our review of the record shows police informed Daiquan there were
witnesses who stated he had a gun and was the shooter. Their representations
to Daiquan were consistent with the fact that: 1) Reggie identified Daiquan as
having a gun and shooting Juanita; 2) Carlson's police interview and Daiquan's
Facebook message to his girlfriend corroborated that he had a gun; and 3) Weber
testified Reggie was the only individual who could identify Daiquan as the
shooter. These facts established the jury was not led to believe there were any
additional, non-testifying witnesses who could identify Daiquan as the shooter.
Accordingly, we discern no reversible error.
D.
Under the cumulative error doctrine, we may reverse a defendant's
conviction when "any one of several errors assigned would not in itself be
sufficient to warrant a reversal, yet . . . all of them taken together justify the
conclusion that defendant was not accorded a fair trial." State v. Terrell, 452
N.J. Super. 226, 308 (App. Div. 2016) (quoting State v. Orecchio, 16 N.J. 125,
A-1554-18
27
134 (1954)). Because we reject Daiquan's claims of error, the cumulative error
doctrine does not apply.
II.
Both Robert and Iverson argue the trial judge erred by not granting their
motions for acquittal and new trial on grounds of insufficient evidence to
support a conspiracy to commit aggravated assault. Robert asserts there was no
evidence showing he made statements, orchestrated the trip, confronted people
at the scene, intended to harm Reggie, or knew Daiquan was carrying a gun. He
argues, at best, the evidence shows he agreed to serve as back up for Daiquan in
the event he faced more than one person during the confrontation and the jury
relied upon inferences not reasonably based on the evidence to convict him.
Iverson claims he merely drove one of the vehicles to Reggie's home and was
not present during the shooting. Both Robert and Iverson argue the ju dge erred
by refusing to instruct the jury that one's mere presence at the scene of the crime
is insufficient to support a conspiracy conviction.
A.
"In assessing the sufficiency of the evidence on an acquittal motion, we
apply a de novo standard of review." State v. Williams, 218 N.J. 576, 593-94
(2014). When a defendant moves for acquittal following conclusion of the
A-1554-18
28
State's case the trial judge must determine whether "based on the entirety of the
evidence and after giving the State the benefit of all its favorable testimony and
all the favorable inferences drawn from that testimony, a reasonable jury could
find guilt beyond a reasonable doubt." Id. at 594.
"In considering circumstantial evidence, we follow an approach 'of logic
and common sense. When each of the interconnected inferences [necessary to
support a finding of guilt beyond a reasonable doubt] is reasonable on the
evidence as a whole, judgment of acquittal is not warranted.'" State v. Jones,
242 N.J. 156, 168 (2020) (alteration in original) (quoting State v. Samuels, 189
N.J. 236, 246 (2007)).
A trial judge may grant a defendant a new trial "if required in the interest
of justice." R. 3:20-1. A motion for a new trial is subject to the trial judge's
discretion and we will not reverse unless such discretion was abused. State v.
Armour, 446 N.J. Super. 295, 306 (App. Div. 2016). The motion is considered
"in light of the credible evidence and with deference to the trial judge's feel for
the case and observation of witnesses." Terrell, 452 N.J. Super. at 268-69 (citing
State v. Brooks, 366 N.J. Super. 447, 454 (App. Div. 2004)). "The jury verdict
will be upheld where there is sufficient evidence to support the conviction on
[the] charge." Id. at 269 (citing State v. Muhammad, 182 N.J. 551, 578 (2005)).
A-1554-18
29
"The trial judge's ruling 'shall not be reversed unless it clearly appears
there was a miscarriage of justice under the law.'" State v. Gaikwad, 349 N.J.
Super. 62, 82 (App. Div. 2002) (quoting R. 2:10-1). "There is no 'miscarriage
of justice' when 'any trier of fact could rationally have found beyond a
reasonable doubt that the essential elements of the crime were present.'" State
v. Jackson, 211 N.J. 394, 413-14 (2012) (quoting State v. Afanador, 134 N.J.
162, 178 (1993)).
Pursuant to N.J.S.A. 2C:5-2(a)(2), a person commits the offense of
conspiracy provides if they "[a]gree[] to aid such other person or persons in the
planning or commission of such crime or of an attempt or solicitation to commit
such crime." "[T]he essence of conspiracy is the illegal agreement and not the
specific crime which is the object of conspiracy." State v. Soltys, 270 N.J.
Super. 182, 186 (App. Div. 1994). "Thus, under the Code [8] 'the major basis of
conspiratorial liability [is] the unequivocal evidence of a firm purpose to co mmit
a crime' that is provided by the agreement." Samuels, 189 N.J. at 245 (alteration
in original) (quoting State v. Roldan, 314 N.J. Super. 173, 181 (App. Div.
1998)).
8
The Code of Criminal Justice N.J.S.A. 2C:1-1 to :104-9.
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30
Conspiracy may be proven with circumstantial evidence because the
conduct and words of co-conspirators are usually shrouded in "silence,
furtiveness, and secrecy[.]" Id. at 246 (quoting State v. Phelps, 96 N.J. 500, 509
(1984)). "An implicit or tacit agreement may be inferred from the facts and
circumstances." State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div. 1992).
Moreover, "[t]he mere knowledge, acquiescence, or approval of the substantive
offense, without an agreement to cooperate, is not enough to establish one as a
participant in a conspiracy." State v. Abrams, 256 N.J. Super. 390, 401 (App.
Div. 1992). "There must be intentional participation in the activity with a goal
of furthering the common purpose; mere association is inadequate." Ibid.Pursuant to these principles, we conclude the trial judge did not err in
denying Robert and Iverson's motions for acquittal and a new trial. The State
presented sufficient circumstantial evidence, meeting the elements under
N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:12-1(b)(1). The record shows both men
agreed to and did accompany Daiquan to Reggie's home. Indeed, Carlson
testified the group agreed to go back to Reggie's before she arrived at the
Iverson's later in the evening, and the group was still talking about the day's
earlier events when she arrived. Carlson said she did not see a gun in her car,
leading the jury to deduce Robert and Iverson brought the gun in the minivan.
A-1554-18
31
Her testimony also proved the group's purpose in returning to the Holley
residence for Daiquan to fight.
Robert's conduct at the shooting allowed the jury to conclude there was
an agreement because Govan and Reggie testified seeing Robert walk down the
street with Daiquan, and both saw him in the street during the shooting. Govan
and Reggie saw the men acting furtively. The jury could also deduce the group's
target was Reggie because they stayed at the house even after they found out
Sharpe was not there. Robert's actions following the incident also established
his participation in the conspiracy because he returned to the minivan and called
Carlson three times rather than fleeing.
Likewise, Iverson not only drove Daiquan to the Holley residence, he
waited in the van during the shooting. The State presented evidence Iverson
was in constant communication with Hyshonna, who was with Daiquan and
Carlson outside the Holley residence. After the shooting, Iverson drove Daiquan
and Robert away and later rendezvoused with Carlson for Daiquan to switch
vehicles. The jury could infer Iverson and Robert disposed of the gun because
Daiquan switched cars and entered Carlson's vehicle without a gun. Carlson
also saw Iverson turn in a different direction to go home and arrived at the house
after she did. See State v. Savage, 172 N.J. 374, 405 (2002) ("a conspiracy may
A-1554-18
32
continue beyond the actual commission of its objective if it is shown that a
conspirator enlisted false alibi witnesses, concealed weapons, or fled in order to
avoid apprehension.").
There was ample evidence tying Robert and Iverson to the crime and
therefore no grounds to grant either of them an acquittal. Our Supreme Court
has found "no manifest denial of justice in the trial court's refusal to set aside [a
jury] verdict" where "the defendant was not entitled to an acquittal at the close
of the State's case . . . ." State v. Perez, 177 N.J. 540, 555 (2003). The trial
judge properly found "[t]here was sufficient evidence the jury could find from
the evidence, and infer that there was an agreement, and that the agreement was
to commit an aggravated assault." For these reasons the jury verdict did not
represent a miscarriage of justice to warrant a new trial.
B.
"When an appellate court reviews jury instructions, the court must
examine the challenged language in the context of the entire charge." State v.
Simon, 161 N.J. 416, 477 (1999). "[I]nsofar as consistent with and modified to
meet the facts adduced at trial, model jury charges should be followed and read
in their entirety to the jury." State v. R.B., 183 N.J. 308, 325 (2005).
A-1554-18
33
At the charge conference, Robert's counsel requested the trial judge
instruct the jury that his mere presence at the scene was not grounds to convict
him on conspiracy to commit aggravated assault. Iverson did not join in the
request. The trial judge declined to deviate from the model jury charge, noting
familial relationships were insufficient grounds to establish a conspiracy.
The trial judge did not err. Neither Robert nor Iverson were charged with
accomplice liability. Therefore, the presence of either defendant on scene was
not necessary for the State to prove a conspiracy. Rather, as indicated in the
model charge read to the jury "[f]or [a defendant] to be found guilty of
conspiracy, the State has to prove beyond a reasonable doubt that when he
agreed it was his conscious object or purpose to promote or make it easier t o
commit the crime of [a]ggravated [a]ssault serious bodily injury." The evidence
adduced showed Robert and Iverson were not merely present but agreed to
company Daiquan to Reggie's home for a confrontation and Iverson agreed to
provide the transportation. Once on scene, Robert and Iverson each played a
role in facilitating the crime. For these reasons, there was no rational basis to
give the mere presence instruction in either defendant's case.
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34
III.
Iverson argues the trial judge erred by admitting his statements to police
because they questioned him after he asked if he should have an attorney present.
He argues police never answered his question and manipulated him into making
uncounseled admissions. He also argues his statement was not voluntary
because police tricked him into believing he was not a suspect and downplayed
his right to remain silent.
"[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." State v. Rockford,
213 N.J. 424, 440 (2013) (alteration in original) (quoting State v. Robinson, 200
N.J. 1, 15 (2009)). "Thus, appellate courts should reverse only when the trial
court's determination is 'so clearly mistaken that the interests of justice demand
intervention and correction.'" State v. Gamble, 218 N.J. 412, 425 (2014)
(internal quotation marks omitted) (quoting State v. Elders, 192 N.J. 224, 244
(2007)).
We affirm the decision denying Iverson's suppression motion for the
reasons expressed by the trial judge. Iverson's arguments lack sufficient merit
to warrant discussion in a written opinion. See R. 2:11-3(e)(2).
A-1554-18
35
IV.
Finally, we address each defendant's arguments regarding sentencing.
Sentencing decisions are discretionary in nature. State v. Cuff, 239 N.J. 321,
347 (2019). For these reasons, we review sentencing determinations for an
abuse of discretion. State v. Jones, 232 N.J. 308, 318 (2018). We defer to the
sentencing court's factual findings and should not "second-guess" them. State
v. Case, 220 N.J. 49, 65 (2014). However, our deference applies "only if the
trial judge follows the Code and the basic precepts that channel sentencing
discretion." State v. Trinidad, 241 N.J. 425, 453 (2020) (quoting Case, 220 N.J.
at 65). "To facilitate meaningful appellate review, trial judges must explain how
they arrived at a particular sentence." Case, 220 N.J. at 65. Moreover, when
deciding to impose concurrent or consecutive sentences, trial judges must
consider the guidelines set in Yarbough, 100 N.J. at 627.
A.
Daiquan argues the sentencing judge should not have imposed a
consecutive sentence for the manslaughter and unlawful gun possession
offenses. He argues the offenses "had the same objective, there was only one
threat or use of violence, the crimes were committed at the same place and time,
there were not multiple victims, . . . there were not numerous convictions . . .
A-1554-18
36
[and constituted] the same course of conduct." He claims the judge failed to
consider each Yarbough factor weighing in his favor. He argues he was
convicted of possession of an unlawful weapon despite the fact thinking about
getting a gun is not in itself a crime. He asserts there was no evidence showing
he possessed a gun at any point before the shooting.
During the pendency of Daiquan's appeal, the State filed a letter seeking
a remand for findings regarding the overall fairness of his sentence pursuant to
State v. Torres, 246 N.J. 246 (2021). In Torres, the Court held:
An explicit statement, explaining the overall
fairness of a sentence imposed on a defendant for
multiple offenses in a single proceeding . . . is essential
to a proper Yarbough sentencing assessment. . . .
Acknowledging and explaining the fairness of the
overall sentence imposed on the defendant advances
critical sentencing policies of the Code, as amplified by
Yarbough.
[Id. at 268.]
Daiquan does not dispute there should be a remand pursuant to Torres but
argues it should be for resentencing and reassessment of the aggravating and
mitigating factors, including newly enacted mitigating factor fourteen, N.J.S.A.
2C:44-1(b)(14). The State disagrees and argues the remand should be limited
to a re-assessment of the Yarbough factors.
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37
We remand for resentencing because Torres requires the sentencing judge
conduct a fairness assessment of the "overall sentence imposed on the defendant
[to] advance[] critical sentencing polices of the Code[.]" Ibid. The sentencing
policies of the code are not limited to the Yarbough factors because the Torres
Court said those policies were "amplified by Yarbough." Ibid. In our view, this
requires consideration of all the aggravating and mitigating factors at the time
the court considers the "overall sentence." In State v. Bellamy, 468 N.J. Super.
29, 39 (App. Div. 2021) we stated: "When an appellate court orders a
resentencing, a defendant is ordinarily entitled to a full rehearing." For these
reasons, the trial judge should resentence Daiquan and consider the aggravating
and mitigating factors, including mitigating factor fourteen, N.J.S.A. 2C:44-
1(b)(14). Because we remand for resentencing, we do not reach the remaining
sentencing arguments raised by Daiquan.
B.
Robert argues the judge erred in failing to find mitigating factor seven,
N.J.S.A. 2C:44-1(b)(7), "[t]he defendant has no history of prior delinquency or
criminal activity or has led a law-abiding life for a substantial period of time
before the commission of the present offense[,]" despite rejecting aggravating
factor six, N.J.S.A. 2C:44-1(a)(6), "[t]he extent of the defendant’s prior criminal
A-1554-18
38
record and the seriousness of the offenses of which the defendant has been
convicted[.]" He asserts the judge focused on his anger issues rather than
consider his lack of a criminal record. He argues his sentence would be shorter
if the judge found the mitigating factor because it would outweigh the
aggravating factors. Robert also argues the judge failed to consider that he was
under twenty-six years of age at the time of the offense and thus we should
remand for consideration of mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14).
"When a court weighs aggravating and mitigating factors, the judge
exercises 'a far-ranging discretion as to the sources and types of evidence used
to assist him or her in determining the kind and extent of punishment to be
imposed.'" State v. Tillery, 238 N.J. 293, 325 (2019) (quoting State v. Davis,
96 N.J. 611, 619-20 (1984)). "[T]he finding of any factor must be supported by
competent, credible evidence in the record." Id. (quoting Case, 220 N.J. at 64).
Robert's record contained five juvenile arrests and nine adult arrests.
None of the adult arrests resulted in a criminal conviction. For these reasons
aggravating factor six did not apply. However, the trial judge properly declined
to apply mitigating factor seven because Robert's record showed he did not lead
a law-abiding life. The judge's discussion of Robert's anger does not prove the
A-1554-18
39
judge erred by not applying mitigating factor six; the judge was simply
explaining the cause of Robert's many run-ins with the law.
Robert's sentencing took place in January 2019 before the Legislature
enacted N.J.S.A. 2C:44-1(b)(14), which became effective October 19, 2020.
The new mitigating factor is inapplicable because we have affirmed the
sentence. See Bellamy, 468 N.J. Super. at 39. Notwithstanding the new
mitigating factor, we are unconvinced Robert's youth would have resulted in a
different sentence. Considering Robert faced a maximum sentence of ten years
with a maximum eight-and-a-half years of parole ineligibility, his seven-year
sentence does not shock the judicial conscience. See Tillery, 238 N.J. at 323.
C.
Iverson argues his sentence was excessive and disparate from the other
defendants who were more culpable. He reiterates he merely drove the vehicle
to the scene. He argues the judge punished him with an extended term for failing
to control his adult sons, yet the judge's belief that he had such control was
conjectural. He asserts the judge considered prior convictions that were too
remote and for lesser offenses.
Iverson also argues the judge did not give reasons for imposing
aggravating factor three, N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant
A-1554-18
40
will commit another offense" and relied only on his prior history to find
aggravating factor N.J.S.A. 2C:44-1(a)(9), "[t]he need for deterring the
defendant and other from violating the law[.]" He asserts the judge should have
found mitigating factors two, five, and eight, N.J.S.A. 2C:44-1(b)(2), (5), and
(8), "[t]he defendant did not contemplate that [his] conduct would cause or
threaten serious harm; . . . [t]he victim of the defendant's conduct induced or
facilitated its commission; . . . [t]he defendant's conduct was the result of
circumstances unlike to recur."
At sentencing Iverson conceded the applicability of aggravating factors
three, six, and nine. Notwithstanding Iverson's stipulation, the trial judge noted
he had a lengthy record of juvenile arrests and adjudications, disorderly persons
and indictable convictions, violations of probation (VOP), and several arrests in
Delaware, which included felony and VOP. The judge explained Iverson was
on probation when he conspired with Daiquan and the others to commit the
aggravated assault and that the "full array of criminal sanctions, including
diversion, probation and incarceration, [did not] dissuade[] him from continued
anti-social behavior." Further, the jury's guilty finding supported the sentence
because Iverson did not play a minor role in committing the offense and instead
was an active participant in the conspiracy by agreeing to drive his sons to the
A-1554-18
41
Holley residence and wait while Daiquan committed the crime. The judge's
findings supported application of aggravating factors three, six, and nine and did
not support any mitigating factors.
We reject Iverson's assertion his sentence was disparately harsher than the
other defendants. As the judge noted, Iverson's long criminal history showed he
was a persistent offender and was extended term eligible pursuant to N.J.S.A.
2C:44-3(a). The Court has stated: "[A] sentence of one defendant not otherwise
excessive is not erroneous merely because a codefendant's sentence is lighter."
State v. Hicks, 54 N.J. 390, 391 (1969). Neither is a defendant's sentence
necessarily manifestly excessive if his sentence is more severe than that of his
or her co-defendant. State v. Tyson, 43 N.J. 411, 417 (1964) (citing State v.
Gentile, 41 N.J. 58, 59-60 (1963)). For these reasons, we find no reversible
error in Iverson's sentence.
Affirmed in A-1554-18 as to the convictions and remanded for
resentencing, and affirmed in A-2739-18 and A-3183-18. We do not retain
jurisdiction.
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42