STATE OF NEW JERSEY VS. AZIM BROGSDALE (13-01-0200, ESSEX COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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-4782-16T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    AZIM BROGSDALE, a/k/a HAZIM
    BROGSDALE, AZIM LANG,
    HAZIM M. BROGSDALE,
    and AZIM N. BROGSDALE,
    Defendant-Appellant.
    ________________________________
    Submitted December 13, 2018 – Decided August 8, 2019
    Before Judges Simonelli and DeAlmeida.
    On appeal from the Superior Court of New Jersey, Law
    Division, Essex County, Indictment No. 13-01-0200.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (Michele A. Adubato, Designated Counsel,
    on the brief).
    Theodore N. Stephens II, Acting Essex County
    Prosecutor, attorney for respondent (Barbara A.
    Rosenkrans, Special Deputy Attorney General/Acting
    Assistant Prosecutor, of counsel and on the brief).
    PER CURIAM
    Defendant Azim Brogsdale appeals from the April 28, 2017 amended
    judgment of conviction and sentence he received for murder, robbery, and
    related crimes. We affirm defendant's convictions and remand for resentencing.
    I.
    The following facts are derived from the record. On February 17, 2012,
    co-defendant Haroon Perry, co-defendant Marquise Hawkins, and Jaquill
    Waters decided to commit a robbery. The trio drove to pick up defendant, then
    sixteen years old, who agreed to participate in the robbery. Perry drove the car
    with defendant in the front seat. Hawkins and Waters sat in the back seat.
    At around 10:30 p.m., sixteen-year-old K.W., and three friends, D.A.,
    N.W., and K.N., all teenagers, were walking on an Irvington sidewalk.1
    Defendant and one of his co-conspirators, while armed, exited the vehicle and
    approached the group. Their faces were partially covered. The two announced
    a robbery and ordered the victims to empty their pockets. The car containing
    the two other co-conspirators was nearby.
    D.A. gave the assailants lip balm, gum, and a dollar, while N.W. gave
    them his cell phone. The victims then attempted to flee. Hawkins, who was in
    1
    We use initials to protect the identity of the victims.
    A-4782-16T4
    2
    the car yelled, "[g]et the guy in the yellow jacket" or "watch the one with the
    yellow coat." K.N., who was wearing a yellow jacket, was running from the
    scene.
    At that point, defendant and the co-conspirator on the sidewalk began
    shooting at the fleeing robbery victims. One of the shots struck K.W. in the
    back. He was discovered with a faint pulse by a police officer responding to a
    report of gunfire. Despite resuscitation attempts, K.W. died a short time later.
    D.A. and N.W. were taken by detectives to the prosecutor's office to give
    recorded statements. They gave descriptions of the assailants that differ in some
    respects and do not fully match defendant's appearance.
    The investigation led to Hawkins, who turned over N.W.'s stolen cell
    phone. A detective later interviewed Perry, who identified defendant as having
    been involved in the robbery.
    On March 30, 2012, D.A. and N.W. were brought back to the prosecutor's
    office for photo array identifications. They were kept in separate rooms at all
    times, accompanied by their mothers, and did not have an opportunity to interact
    with one another. Both D.A. and N.W. identified defendant's picture from a
    photo array as one of the assailants. D.A. stated that the photograph depicted
    the person who killed K.W.
    A-4782-16T4
    3
    As a result of the identification, on April 9, 2012, the State issued a
    juvenile complaint against defendant. He was not arrested until four months
    later because he could not be located by detectives. On December 3, 2012, the
    Family Part granted the State's application to waive jurisdiction over the charges
    against defendant and transferred the matter to the Law Division.
    A grand jury charged defendant and the co-defendants with: second-
    degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1
    (count one); first-degree robbery, N.J.S.A. 2C:15-1 (counts two, three, four and
    five); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count six); first-
    degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:11-3 (a)
    (1) and (2) (count seven); first-degree purposeful or knowing murder, N.J.S.A.
    2C:11-3(a)(1) and (2) (count eight); second-degree unlawful possession of two
    guns, N.J.S.A. 2C:39-5(b) (counts nine and ten); and second-degree possession
    of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eleven).
    In June 2015, Perry entered a plea of guilty to aggravated manslaughter,
    conspiracy, and two counts of robbery. As part of the plea agreement, he
    testified at defendant's trial. In exchange, the State agreed to recommend a
    twenty-year term of imprisonment followed by a five-year period of parole
    supervision and to allow Perry to argue for a seventeen-year sentence.
    A-4782-16T4
    4
    Defendant was tried separately from his remaining co-defendant. At trial,
    the State provided testimony from the surviving robbery victims, an independent
    eyewitness, law enforcement personnel, the State medical examiner, and Perry.
    D.A., N.W., and Perry identified defendant as the shooter who killed K.W.
    During the victims' testimony, defense counsel elicited several discrepancies in
    their description of their assailants, and pointed out that some of the details of
    their descriptions did not match defendant's personal characteristics.
    On January 26, 2017, the jury found defendant guilty on all counts. He
    filed a motion for a new trial and judgment of acquittal notwithstanding the
    verdict, arguing the court erred by limiting his cross-examination and refusing
    to instruct the jury on third-party guilt. The court denied the motion.
    At sentencing, the court considered the aggravating and mitigating factors
    set forth in N.J.S.A. 2C:44-1. The court found aggravating factors: (a) "[t]he
    nature and circumstances of the offense, and the role of the actor therein,
    including whether or not it was committed in an especially heinous, cruel, or
    depraved manner" (factor one), N.J.S.A. 2C:44-1(a)(1); (b) the risk of re-offense
    (factor three), N.J.S.A. 2C:44-1(a)(3); (c) the "substantial likelihood that the
    defendant is involved in organized criminal activity" (factor five), N.J.S.A.
    2C:44-1(a)(5); (d) the extent of defendant's past criminal record and the
    A-4782-16T4
    5
    seriousness of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6); and (e) the
    need for criminal deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The court
    found no mitigating factors.
    The court sentenced defendant to an aggregate term of fifty-five years
    with a parole ineligibility period of fifty years and three months. The court: (1)
    merged count one with counts two through five and on count two imposed a
    sentence of fifteen years with an eighty-five-percent period of parole
    ineligibility; (2) imposed concurrent terms of fifteen years with an eighty-five-
    percent period of parole ineligibility for counts three, four, and five; (3) merged
    counts six and seven with count eight on which it imposed a sentence of forty
    years, with a thirty-year mandatory minimum, and subjected the remaining ten
    years to an eighty-five-percent period of parole ineligibility, for a total parole
    bar of thirty-eight and a half years2; (4) merged count eleven with count eight;
    2
    There is a discrepancy between the sentencing transcript and the amended
    judgment of conviction as to whether the court intended to impose: (1) a thirty-
    four-year parole disqualifier on count eight by subjecting the forty-year base
    term to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, or; (2) a thirty-
    eight-and-one-half-year parole disqualifier by imposing the mandated thirty-
    year parole bar under N.J.S.A. 2C:11-3, plus an additional eight-and-one-half
    years parole-bar pursuant to NERA on the ten remaining years of the forty-year
    sentence. This should be clarified on remand.
    A-4782-16T4
    6
    and (5) on counts nine and ten imposed concurrent sentences of eight years with
    a four-year period of parole ineligibility.
    This appeal followed. Defendant raises the following arguments for our
    consideration:
    POINT I
    THE UNFAIR RESTRICTIONS PLACED BY THE
    TRIAL COURT IN THE PRESENTATION OF HIS
    CASE    DEPRIVED  DEFENDANT   OF   HIS
    CONSTITUTIONAL RIGHTS OF DUE PROCESS,
    RIGHT OF CONFRONTATION AND RIGHT TO A
    FAIR TRIAL.
    POINT II
    THE TRIAL COURT ERRED IN REFUSING TO
    CHARGE THE JURY ON THIRD PARTY GUILT AT
    DEFENDANT'S REQUEST.
    POINT III
    COMMENTS MADE BY THE PROSECUTOR
    DURING THE SUMMATION CONCERNING
    DEFENDANT'S ARREST FOUR MONTHS AFTER
    THE ISSUANCE OF THE ARREST WARRANT WAS
    GROSSLY   PREJUDICIAL   AND   DEPRIVED
    DEFENDANT OF A FAIR TRIAL.
    POINT IV
    DENIAL OF THE DEFENDANT'S MOTION FOR
    NEW TRIAL WAS ERROR.
    A-4782-16T4
    7
    POINT V
    THE AGGREGATE SENTENCE OF FIFTY-FIVE
    (55) YEARS WITH [EIGHTY-FIVE PERCENT]
    PAROLE INELIGIBILITY WAS EXCESSIVE AND
    SHOULD BE MODIFIED AND REDUCED.
    POINT VI
    THE   AGGREGATE       ERRORS                   DENIED
    DEFENDANT OF A FAIR TRIAL.
    II.
    Defendant argues that the court improperly restricted his counsel from
    delving into the discrepancies in D.A. and N.W.'s out-of-court descriptions of
    their assailants during his opening statement. "[A]n opening statement should
    set forth only a succinct statement of what a party proposes to prove." State v.
    Tilghman, 
    385 N.J. Super. 45
    , 55 (App. Div. 2006) (quoting State v. Stamberger,
    
    209 N.J. Super. 579
    , 581 (Law Div. 1985)). "The fundamental purpose of
    opening statements is to do no more than inform the jury in a general way of the
    nature of the action and the basic factual hypothesis projected[.]" 
    Ibid. (quoting Passaic Valley
    Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 
    32 N.J. 595
    ,
    605 (1960)). "Counsel is also cautioned that 'the proposed evidence should not
    be detailed,' and when evidence is addressed, it should appear as little more than
    A-4782-16T4
    8
    a 'fairly indefinite' outline." 
    Ibid. (quoting Passaic Valley
    Sewerage 
    Comm'rs, 32 N.J. at 605
    ).
    During the opening statement, defendant's counsel detailed various
    discrepancies in the victims' descriptions of the gunmen during the
    investigation. As the opening statement continued, the assistant prosecutor
    suspected defendant's counsel was reading from a transcript of testimony of one
    of the witnesses. The State objected, arguing that it was improper for defense
    counsel to read from a transcript not yet in evidence. Although defense counsel
    denied reading from a transcript, the court sustained the objection, concluding
    that the opening statement went "way beyond opening comments" and was
    instead "a summation, as opposed to comments where we normally indicate to
    the jury what we intend to prove."
    "New Jersey has a long-standing tradition of allowing the court 'wide
    discretion' in supervising the conduct of a trial." 
    Id. at 53-54
    (quoting Sullivan
    v. State, 
    46 N.J.L. 446
    , 447 (Sup. Ct. 1884)). Our review of the record reveals
    no abuse of discretion by the court. Instead of providing a general outline of
    proposed evidence, defendant's counsel provided detailed descriptions of the
    discrepancies in the victims' identifications, facts which were not yet in
    evidence. The court was well within its authority to limit the opening statement.
    A-4782-16T4
    9
    Nor do we agree with defendant's argument that the court denied his
    counsel the ability to effectively cross-examine the State's witnesses. At the
    time of trial, D.A. had a pending misdemeanor marijuana possession charge in
    Texas. N.W. also had several pending criminal charges at the time of trial: (1)
    in March 2016, he was charged with second-degree robbery, third-degree theft,
    and second-degree conspiracy to commit robbery, for one incident, and second-
    degree aggravated assault and second-degree witness tampering for another
    incident; (2) in October 2016, he was charged with second-degree possession of
    a weapon during a drug offense, third-degree possession of marijuana with intent
    to distribute, and third-degree possession with intent to distribute within 500
    feet of public property; and (3) in June 2017, he was charged with a disorderly
    persons offense relating to marijuana. K.N., who also testified, was convicted
    of third-degree trespassing while the charges against defendant were pending.
    He was sentenced to time served. At the time of trial, he also had two pending
    third-degree charges and two pending disorderly person charges.
    Defendant's counsel sought to question these witnesses regarding their
    pending criminal charges, including the nature of each charge, its potential term
    of imprisonment, and their expectation for favorable treatment from the State.
    The court allowed defense counsel to question the witnesses about the degree of
    A-4782-16T4
    10
    the charges pending against them, the sentencing exposure they faced, and
    expected assistance from the State, but barred questions about the nature of the
    pending charges. The court reasoned that "the degree of crime as well as the
    extent of any possible penalty if convicted on those crimes, is more than
    sufficient to get adequate information" to the jury regarding the motivation of
    the witnesses. We agree.
    While testifying, D.A. admitted the degrees of his pending charges and
    testified that the State made no promises to him in exchange for his testimony.
    N.W. admitted the degrees of the charges pending against him and that those
    charges exposed him to a potential of forty-five years of incarceration. He
    testified that the State made no promises regarding those charges in exchange
    for his testimony. K.N. testified that he did not receive assistance from the State
    with respect to sentencing on his trespass conviction. He acknowledged that he
    was exposed to a potential eleven and one-half years of imprisonment on his
    pending charges and testified he did not ask the State for assistance regarding
    those charges.
    Both the Sixth Amendment to the United States Constitution and Article
    I, Paragraph 10 of the New Jersey Constitution provide in a criminal trial the
    accused has the right "to be confronted with the witnesses against him[.]" U.S.
    A-4782-16T4
    11
    Const. amend. VI; N.J. Const. art. I, ¶ 10. "Our legal system has long recognized
    that cross-examination is the 'greatest legal engine ever invented for the
    discovery of truth.'" State v. Basil, 
    202 N.J. 570
    , 591 (2010) (quoting California
    v. Green, 
    399 U.S. 149
    , 158 (1970)). "[T]he exposure of a witness' motivation
    in testifying is a proper and important function of the constitutionally protected
    right of cross-examination." State v. Bass, 
    224 N.J. 285
    , 301 (2016) (quoting
    Delaware v. Van Arsdall, 
    475 U.S. 673
    , 678-79 (1986)). "[A] defendant must
    be afforded the opportunity through effective cross-examination to show bias on
    the part of adverse state witnesses." State v. Sugar, 
    100 N.J. 214
    , 230 (1985);
    see also State v. Parsons, 
    341 N.J. Super. 448
    , 458 (App. Div. 2001) (holding "a
    defendant has a right to explore evidence tending to show that the State may
    have a 'hold' of some kind over a witness, the mere existence of which might
    prompt the individual to color his testimony in favor of the prosecution")
    (quoting State v. Holmes, 
    290 N.J. Super. 302
    , 312 (App. Div. 1996)). "A . . .
    claim that there is an inference of bias is particularly compelling when the
    witness is under investigation, or charges are pending against the witness, at t he
    time that he or she testifies." 
    Bass, 224 N.J. at 303
    .
    "In an appropriate case the right of confrontation will yield to other
    'legitimate interests in the criminal trial process, such as established rules of
    A-4782-16T4
    12
    evidence and procedure designed to ensure the fairness and reliability of
    criminal trials.'" State v. Castagna, 
    187 N.J. 293
    , 309 (2006) (quoting State v.
    Garron, 
    177 N.J. 147
    , 169 (2003)). "That the credibility of a witness may be
    impeached on cross-examination is well settled" however "[t]he scope of cross-
    examination is a matter resting in the broad discretion of the trial court ." State
    v. Martini, 
    131 N.J. 176
    , 255 (1993), rev'd on other grounds State v. Fortin, 
    178 N.J. 540
    (2004). "A trial judge may bar inquiry into a witness's potential bias,
    without offending the Confrontation Clause, because of concerns about
    'harassment, prejudice, confusion of the issues, the witness' safety, or
    interrogation that is repetitive or only marginally relevant.'" 
    Bass, 224 N.J. at 303
    (quoting Van 
    Arsdall, 475 U.S. at 679
    ). Pursuant to Rule 403 "relevant
    evidence may be excluded if its probative value is substantially outweighed by
    the risk of . . . undue prejudice[.]" N.J.R.E. 403.
    Our review of the record in light of these precedents leads us to affi rm the
    court's decision. The court balanced defendant's right to confront the witnesses
    on any expectation of favorable treatment they hoped to receive from the State
    in return for their testimony with the State's right to be free from prejudicial
    evidence regarding the nature of the charges pending against its witnesses. The
    limitations did not prevent defendant from using cross-examination for the
    A-4782-16T4
    13
    desired purpose of questioning the witnesses' credibility by suggesting the State
    may have influenced their testimony.
    Defendant also argues that the court improperly barred his counsel from
    eliciting testimony that co-defendant Perry sold drugs in the past with co-
    defendant Hawkins and Waters.         Because evidence existed that Perry had
    attempted to purchase drugs from defendant in the past, the court concluded
    questioning Perry about his history selling drugs would open the door to the
    State inquiring whether defendant had sold drugs to Perry.
    We see no abuse of discretion in the court's decision precluding
    defendant's counsel from asking Perry about his history of drug sales. First, the
    proposed inquiry sought testimony not relevant to the murder, robbery, and
    related charges before the jury. Moreover, the potential prejudicial effect of
    eliciting testimony portraying defendant as a drug dealer greatly outweighed the
    potential value of discrediting Perry's credibility.
    Finally, defendant's counsel sought to have a detective recount how N.W.
    described the shooter to another detective, who wrote the description in a report.
    The description at issue differed from defendant's physical appearance, and in
    some respects reflected other co-conspirators' appearances. While the court
    allowed the witness to explain how he used the information in the report in his
    A-4782-16T4
    14
    investigation, the court barred the witness from recounting "a description that
    somebody else placed in that report."
    Our review of the record reveals no error in the court's decision. The
    testimony that defendant's counsel sought to elicit was a triple hearsay account
    of N.W.'s description of the assailant. The detective had no personal knowledge
    of N.W.'s description of the shooter and could merely read into the record what
    another officer reported N.W. to have said.
    III.
    Defendant argues the court erred when it failed to charge the jury on third-
    party guilt as requested by defense counsel.      Defendant contends he could
    reasonably have argued to the jury that co-defendant Perry or one of the other
    participants in the robbery fired the shot that killed K.W.
    "Accurate and understandable jury instructions in criminal cases are
    essential to a defendant's right to a fair trial." State v. Concepcion, 
    111 N.J. 373
    , 379 (1988). "[A] complete defense includes a criminal defendant's right to
    introduce evidence of third-party guilt 'if the proof offered has a rational
    tendency to engender a reasonable doubt with respect to an essential feature of
    the State's case.'" State v. Perry, 
    225 N.J. 222
    , 238 (2016) (quoting State v.
    Cotto, 
    182 N.J. 316
    , 332 (2005)). A defendant must demonstrate "some link
    A-4782-16T4
    15
    between the [third-party] evidence and the victim or the crime."         State v.
    Koedatich, 
    112 N.J. 225
    , 301 (1988). "[T]rial courts retain broad discretion to
    admit or preclude evidence of third-party guilt." Cotto, 182 at 333.
    At trial, defendant argued the State's witnesses were not credible and
    identified defendant as the shooter to receive favorable treatment from the State
    on pending charges.      His main contention was that Perry entered a plea
    agreement "to save himself from spending the rest of his life in jail" and
    identified defendant as the shooter "to minimize his conduct."
    The court instructed the jury that it was the State's burden to prove
    the identity of the person who committed the crime[.]
    The defendant has neither the burden nor the duty to
    show that the crime, if committed, was committed by
    someone else or to prove the identity of that person.
    You must determine, therefore, not only whether the
    State has proven each and every element of the offense
    charged beyond a reasonable doubt, but also whether
    the State has proven beyond a reasonable doubt that this
    defendant is the person who committed the crime.
    ....
    It is your function to determine whether the witness[es']
    identification of the defendant is reliable and believable
    or whether it is based on a mistake or for any reason is
    not worthy of belief. You must decide whether it is
    sufficiently reliable evidence that this defendant is the
    person who committed the offenses charged.
    A-4782-16T4
    16
    The court specified that "[e]yewitness identification evidence must be
    scrutinized carefully," and that "[h]uman memory is not foolproof." The court
    noted "[a]lthough nothing may appear more convincing than a witness's
    categorical identification of a perpetrator, you must critically analyze such
    testimony."
    We find no error in the court's instructions. Defendant's theory of the
    case, that the witnesses identified defendant as the shooter in exchange for
    favorable treatment, was adequately represented in the jury instructions. The
    jury was aware that Perry and the other co-conspirators were present at the
    shooting and that it could not convict defendant if it did not find the testimony
    and out-of-court identifications of defendant as the shooter to be credible.
    In addition, ballistic evidence admitted at trial established that two guns
    were fired after the robbery. Thus, even if defendant convinced the jury that
    Perry or one of his other cohorts was the shooter who killed K.W., he would not
    have been insulated from a conviction.           Under the accomplice liability
    instructions given to the jury, if the jury determined that defendant facilitated or
    assisted his cohorts in committing the murder and robbery, they were to find
    him guilty.
    A-4782-16T4
    17
    IV.
    Defendant challenges comments made during the State's summation.
    During his summation, the assistant prosecutor said "for four months Detective
    Green went to Azim Brogsdale's house, went to locations that he knows he goes
    to. He couldn't get him. It wasn't until August that he was arrested. And you
    can consider that with all the other evidence that you consider." Defendant's
    counsel did not object to the prosecutor's comments. For the first time on appeal,
    defendant argues the comments were inappropriate because they implied flight
    and deliberate evasion of law enforcement, which were not supported by the
    evidence.
    Because this issue was not raised before the court, we review defendant's
    contentions under a plain error standard. State v. Ross, 
    229 N.J. 389
    , 407
    (2017). Our inquiry is to determine whether the alleged error was "clearly
    capable of producing an unjust result." R. 2:10-2. Under this standard, reversal
    is required if there was an error "sufficient to raise a reasonable doubt as to
    whether [it] led the jury to a result it otherwise might not have reached." State
    v. Green, 
    447 N.J. Super. 317
    , 325 (App. Div. 2016) (quoting State v. Macon,
    
    57 N.J. 325
    , 336 (1971)).
    A-4782-16T4
    18
    "Prosecutors are expected to assert vigorously the State's case and are
    given considerable leeway in delivering their summations." State v. Daniels,
    
    182 N.J. 80
    , 96 (2004). However, "[t]hey are duty-bound to confine their
    comments to facts revealed during the trial and reasonable inferences to be
    drawn from that evidence." State v. Frost, 
    158 N.J. 76
    , 85 (1999).
    "Not every improper prosecutorial statement will warrant a new trial."
    
    Daniels, 182 N.J. at 96
    . "[P]rosecutorial misconduct is not grounds for reversal
    of a criminal conviction unless the conduct was so egregious as to deprive
    defendant of a fair trial." State v. Timmendequas, 
    161 N.J. 515
    , 575 (1999).
    "To justify reversal, the prosecutor's conduct must have been 'clearly and
    unmistakably improper,' and must have substantially prejudiced defendant's
    fundamental right to have a jury fairly evaluate the merits of his defense." 
    Ibid. (quoting State v.
    Roach, 
    146 N.J. 208
    , 219 (1996)).         Additionally, "if no
    objection was made to the improper remarks, the remarks will not be deemed
    prejudicial[,]" as "[f]ailure to make a timely objection indicates that defense
    counsel did not believe the remarks were prejudicial at the time they were
    made." 
    Id. at 576.
    The prosecutor's statement contained factual elements, as it was true that
    defendant was charged in April 2012 but not arrested until August 2012, and
    A-4782-16T4
    19
    also that a detective attempted to locate him at his previously known locations
    during that time. However, the State concedes that the assistant prosecutor
    should not have remarked that the jury can consider the four months "with all
    the other evidence that you consider" because the record contains no evidence
    of defendant's attempt to evade arrest. While the statement may have been
    improper, it was isolated in a summation that composed thirty-five pages of the
    trial transcript. In addition, the State produced a significant amount of evidence
    linking defendant to the murder and robberies with which he was charged. We
    therefore conclude that the prosecutor's remark was not clearly capable of
    producing an unjust result.
    V.
    Defendant argues the court erred in denying his motion for a new trial and
    for a judgment of acquittal notwithstanding the verdict. We disagree.
    "[A] motion for a new trial is addressed to the sound discretion of the trial
    judge, and the exercise of that discretion will not be interfered with on appeal
    unless a clear abuse has been shown." State v. Russo, 
    333 N.J. Super. 119
    , 137
    (App. Div. 2000). "In considering whether a jury verdict was against the weight
    of the evidence, our task is to decide whether 'it clearly appears that there was a
    miscarriage of justice under the law.'" State v. Smith, 
    262 N.J. Super. 487
    , 512
    A-4782-16T4
    20
    (App. Div. 1993) (quoting R. 2:10-1). "We must sift through the evidence 'to
    determine whether any trier of fact could rationally have found beyond a
    reasonable doubt that the essential elements of the crime were present.'" 
    Ibid. (quoting State v.
    Carter, 
    91 N.J. 86
    , 96 (1982)). However, "an appellate court
    may not overturn the verdict 'merely because it might have found otherwise upon
    the same evidence.'" 
    Ibid. (quoting State v.
    Johnson, 
    203 N.J. Super. 127
    , 134
    (App. Div. 1985)). "Appellate intervention is warranted only to correct an
    'injustice resulting from a plain and obvious failure of the jury to perform its
    function.'" Ibid. (quoting 
    Johnson, 203 N.J. Super. at 134
    ). "Where the jury's
    verdict was grounded on its assessment of witness credibility, a reviewing court
    may not intercede, absent clear evidence on the face of the record that the jury
    was mistaken or prejudiced." 
    Ibid. (citing State v.
    Haines, 
    20 N.J. 438
    , 446-47
    (1956)).
    A motion for a judgment of acquittal notwithstanding the verdict must be
    denied if all of the evidence, including defendant's proofs, is sufficient to enable
    a jury to find defendant guilty of the charges beyond a reasonable doubt. State
    v. Speth, 
    323 N.J. Super. 67
    , 81 (App. Div. 1999). Rule 3:20-1 provides that a
    court cannot set aside a jury verdict as against the weight of the evidence unless,
    "having given due regard to the opportunity of the jury to pass upon the
    A-4782-16T4
    21
    credibility of witnesses, it clearly and convincingly appears that there was a
    manifest denial of justice under the law." When deciding a motion, the court is
    "not concerned with the worth, nature or extent (beyond a scintilla) of the
    evidence, but only with its existence, viewed most favorably to the State." State
    v. Kluber, 
    130 N.J. Super. 336
    , 342 (App. Div. 1974).
    The substantive bases for defendant's motion for a new trial or a judgment
    of acquittal notwithstanding the verdict were also raised in his appeal: the
    limitations the court placed on defense counsel's examination of witnesses and
    the absence of a third-party guilt charge in the jury instructions. We concluded
    that those arguments are without merit and therefore also conclude that the court
    did not err when it denied defendant's motion.3
    VI.
    Defendant argues his sentence is excessive and unconstitutional. He
    contends the court improperly considered the consecutive sentencing factors,
    improperly weighed the statutory aggravating and mitigating factors, and did
    not sufficiently consider his youthfulness at the time of the offenses.
    3
    The parties dispute whether defendant's motion for a new trial was timely
    filed. See R. 3:20-2. Although the court concluded that defendant's motion was
    untimely, it elected to address the motion's merits. In light of our rejection of
    defendant's substantive arguments, we need not address whether his motion was
    timely filed or whether the court erred in considering the motion.
    A-4782-16T4
    22
    "Appellate review of the length of a sentence is limited." State v. Miller,
    
    205 N.J. 109
    , 127 (2011). We are to affirm a sentence, even if we would have
    imposed a different one, so long as the sentencing judge "properly identifies and
    balances aggravating and mitigating factors that are supported by competent
    credible evidence in the record." State v. Natale, 
    184 N.J. 458
    , 489 (2005)
    (quoting State v. O'Donnell, 
    117 N.J. 210
    , 215 (1989)). "In general, a trial court
    should identify the relevant aggravating and mitigating factors, determine which
    factors are supported by a preponderance of evidence, balance the relevant
    factors, and explain how it arrives at the appropriate sentence." 
    O'Donnell, 117 N.J. at 215
    . We must affirm a 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)). "An appellate court may also remand for resentencing if
    the trial court considers an aggravating factor that is inappropriate to a particular
    defendant or to the offense at issue." 
    Ibid. A-4782-16T4 23 "In
    determining the appropriate sentence to impose within the range,
    judges first must identify any relevant aggravating and mitigating factors set
    forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 
    220 N.J. 49
    , 64 (2014). "The finding of any factor must be supported by competent,
    credible evidence in the record." 
    Ibid. "Whether a sentence
    should gravitate
    toward the upper or lower end of the range depends on a balancing of the
    relevant factors." 
    Ibid. "[W]hen the mitigating
    factors preponderate, sentences
    will tend toward the lower end of the range, and when the aggravating factors
    preponderate, sentences will tend toward the higher end of the range." 
    Natale, 184 N.J. at 488
    . "[T]he judge shall state reasons for imposing such sentence
    including . . . the factual basis supporting a finding of particular aggravating or
    mitigating factors affecting sentence . . . ." R. 3:21-4(g).
    Defendant challenges the court's findings of aggravating factors one and
    five. Aggravating factor one is "[t]he nature and circumstances of the offense,
    and the role of the actor therein, including whether or not it was committed in
    an especially heinous, cruel, or depraved manner[.]" N.J.S.A. 2C:44-1(a)(1). In
    assessing whether this factor applies, "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
    A-4782-16T4
    24
    safety of its direct victims and the public." State v. Lawless, 
    214 N.J. 594
    , 609
    (2013) (quoting State v. Hodge, 
    95 N.J. 369
    , 378-79 (1984)). However, a
    sentencing court "must avoid double-counting any element of an offense as an
    aggravating factor[.]" 
    Id. at 601.
    Defendant asserts the court erroneously found factor one because the
    victim's death may not be used as an aggravating factor in a homicide case.
    However, the court did not base its finding of factor one on K.W.'s death, but
    instead found that defendant needlessly shot K.W. after the robbery was
    completed and while the robbery victims were attempting to flee. The court
    determined these circumstances go beyond a normal robbery-homicide. We do
    not find fault with the court's determination.
    Aggravating factor five is "a substantial likelihood that the defendant is
    involved in organized criminal activity." N.J.S.A. 2C:44-1(a)(5). The State did
    not argue that factor five applied.      The court, however, found the factor
    applicable because defendant admitted he was once a gang member. Defendant
    argues that it was inappropriate for the court to apply this factor as there is no
    link between his prior gang involvement and the subject offenses.
    We conclude that the court's application of this factor is not supported by
    the record. There is no evidence in the record that defendant was an active gang
    A-4782-16T4
    25
    member at the time of the offenses or that the murder and robbery were
    connected to gang activity. Other than a warning to Perry "not to reference
    gangs in this case [or] anyone being in any type of gang membership[,]" the
    record is devoid of any mention or discussion of gang activity. There is,
    therefore, insufficient support for the court's determination that aggravating
    factor five applied. A remand is necessary for the court to reconsider defendant's
    sentence without aggravating factor five.
    Although we remand for reconsideration of defendant's sentence in light
    of our conclusion regarding aggravating factor five, we address the remaining
    arguments raised by defendant with respect to his sentence. Defendant argues
    that the imposition of consecutive sentences for murder and robbery was an
    error, as the crimes were closely related, constituting a single period of criminal
    behavior, or one event. We disagree.
    "Under the Code of Criminal Justice, trial judges have discretion to decide
    if sentences should run concurrently or consecutively." 
    Miller, 205 N.J. at 128
    .
    "[I]n fashioning consecutive or concurrent sentences under the Code, sentencing
    courts should be guided by the Code's paramount sentencing goals that
    punishment fit the crime, not the criminal, and that there be a predictable degree
    of uniformity in sentencing." State v. Yarbough, 
    100 N.J. 627
    , 630 (1985).
    A-4782-16T4
    26
    In Yarbough, the Court adopted criteria to be applied when deciding
    whether to impose consecutive sentences:
    (1) there can be no free crimes in a system for which
    the punishment shall fit the crime;
    (2) the reasons for imposing either a consecutive or
    concurrent sentence should be separately stated in the
    sentencing decision;
    (3) some reasons to be considered by the sentencing
    court should include facts relating to the crimes,
    including whether or not:
    (a) the crimes and their objectives were
    predominantly independent of each other;
    (b) the crimes involved separate acts of
    violence or threats of violence;
    (c) the crimes were committed at different
    times or separate places, rather than being
    committed so closely in time and place as to
    indicate a single period of aberrant behavior;
    (d) any of the crimes involved multiple
    victims;
    (e) the convictions for which the sentences are
    to be imposed are numerous;
    (4) there should       be    no   double   counting   of
    aggravating factors;
    (5) successive terms for the same offense should not
    ordinarily be equal to the punishment for the first
    offense; and
    A-4782-16T4
    27
    (6) there should be an overall outer limit on the
    cumulation of consecutive sentences for multiple
    offenses not to exceed the sum of the longest terms
    (including an extended term, if eligible) that could be
    imposed for the two most serious offenses.[4]
    [Id. at 643-44 (footnotes omitted).]
    The Yarbough factors focus upon "the nature and number of offenses for
    which the defendant is being sentenced, whether the offenses occurred at
    different times or places, and whether they involve numerous or separate
    victims." State v. Carey, 
    168 N.J. 413
    , 423 (2001) (quoting State v. Baylass,
    
    114 N.J. 169
    , 180 (1989)). The factors "should be applied qualitatively, not
    quantitatively. . . . [i]t follows that a sentencing court may impose consecutive
    sentences even though a majority of the Yarbough factors support concurrent
    sentences." 
    Carey, 168 N.J. at 427-28
    . "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." 
    Miller, 205 N.J. at 129
    .
    The charges against defendant involved multiple, independent crimes.
    Although the murder and robbery were committed close in place and time, the
    4
    Guideline six was superseded by statutory amendment to N.J.S.A. 2C:44-5,
    which provides that "[t]here shall be no overall outer limit on the cumulation of
    consecutive sentences[,]" as first recognized in State v. Eisenman, 
    153 N.J. 462
    ,
    478 (1998).
    A-4782-16T4
    28
    objective of the robbery, to obtain stolen property, was independent of, and
    accomplished prior to, the murder. Defendant shot the victim of his robbery as
    he was attempting to flee, for no apparent reason. We see no error in the court's
    decision not to merge the murder and robbery offenses.
    We also reject defendant's contention that his aggregate sentence is
    unconstitutional because it is excessive in light of his age at the time of the
    murder and robbery. In Miller v. Alabama, 
    567 U.S. 460
    , 489 (2012), the Court
    held the Eighth Amendment prohibits the imposition of a mandatory life
    sentence without parole on a defendant convicted of homicide while a juvenile.
    "[T]he Court grounded its decisions on commonly accepted scientific and
    sociological notions about the unique characteristics of youth and the
    progressive emotional and behavioral development of juveniles."            State in
    Interest of C.K., 
    233 N.J. 44
    , 68 (2018).
    In State v. Zuber, 
    227 N.J. 422
    , 446-47 (2017), our Supreme Court held
    that "Miller's command that a sentencing judge 'take into account how children
    are different, and how those differences counsel against irrevocably sentencing
    them to a lifetime in prison,' applies with equal strength to a sentence that is the
    practical equivalent of life without parole." (citation omitted) (quoting 
    Miller, 567 U.S. at 480
    ). In addition, the Court held that "the force and logic of Miller's
    A-4782-16T4
    29
    concerns apply broadly: to cases in which a defendant commits multiple offenses
    during a single criminal episode; to cases in which a defendant commits multiple
    offenses on different occasions; and to homicide and non-homicide cases." 
    Id. at 448.
    The Court held that the five factors set forth in Miller must be considered
    when sentencing defendants to sentences that are the practical equivalent to life
    without parole for crimes committed as a juvenile. Those factors are:
    Mandatory life without parole for a juvenile
    [1] precludes consideration of his chronological age
    and its hallmark features—among them, immaturity,
    impetuosity, and failure to appreciate risks and
    consequences.
    [2] prevents taking into account the family and home
    environment that surrounds him—and from which he
    cannot usually extricate himself—no matter how brutal
    or dysfunctional.
    [3] neglects the circumstances of the homicide
    offense, including the extent of his participation in the
    conduct and the way familial and peer pressures may
    have affected him.
    [4] ignores that he might have been charged and
    convicted of a lesser offense if not for incompetencies
    associated with youth—for example, his inability to
    deal with police officers or prosecutors (including on a
    plea agreement) or his incapacity to assist his own
    attorneys.
    A-4782-16T4
    30
    [5] disregards the possibility of rehabilitation even
    when the circumstances most suggest it.
    
    [Miller, 567 U.S. at 477-78
    (citations omitted).]
    Zuber noted that, "even when judges begin to use the Miller factors at
    sentencing, a small number of juveniles will receive lengthy sentences with
    substantial periods of parole ineligibility, particularly in cases that involve
    multiple offenses on different occasions or multiple 
    victims." 227 N.J. at 451
    .
    At sentencing, the court acknowledged the holding in Zuber and applied
    the Miller factors. The court found: (1) defendant has the support of his family;
    (2) defendant voluntarily decided to participate in the robberies, carry a gun, and
    start shooting the victims as they were attempting to escape; and (3) it is highly
    unlikely defendant could be rehabilitated because he previously served several
    probationary sentences that did not curb his criminal activity. The court found
    that even after considering defendant's age and the Miller factors, the
    aggravating factors outweighed the mitigating factors, dictating a custodial
    sentence towards the upper range allowed. The court found, however, that its
    application of the Miller factors led it to conclude that consecutive sentences on
    all charges were not warranted.
    After reviewing the record, we are satisfied the court sufficiently
    considered defendant's youth at sentencing. Defendant's criminal history is
    A-4782-16T4
    31
    lengthy, several probationary sentences did not deter his criminal activity, and
    the serious nature of his crimes has escalated over time from drug offenses to
    assault and second-degree robbery relating to a carjacking. Each of these facts
    support the court's conclusion that despite his youth, defendant's rehabilitation
    is unlikely. In addition, there is ample support in the record for the court's
    conclusion that the murder and robbery were not impulsive acts, brought about
    by excessive familial or peer pressures, but deliberate decisions by a defendant
    who enjoyed a supportive familial environment.5
    Nor do we find the length of defendant's sentence to shock the judicial
    conscious. Defendant conspired with three others to commit an armed robbery.
    Testimony at trial indicated that defendant selected the teenage victims. Once
    the robbery was accomplished, defendant shot at the fleeing victims, needlessly
    murdering a teenager with a bullet in his back. A long sentence was justified.
    Having reviewed the record in light of applicable precedents, we conclude
    that defendant's remaining arguments are without sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(2).
    5
    The State argues that defendant's sentence, under which he would be eligible
    for parole when he is sixty-six, is not the practical equivalent of life without
    parole. In light of our conclusion that the court complied with the holding in
    Zuber, we need not decide whether defendant's sentence is the practical
    equivalent of life without parole.
    A-4782-16T4
    32
    Defendant's judgment of conviction is affirmed. The matter is remanded
    for resentencing in light of our holding with respect to aggravating factor five,
    N.J.S.A. 2C:44-1(a)(5), and to clarify the sentence imposed on count eight. We
    do not retain jurisdiction.
    A-4782-16T4
    33