STATE OF NEW JERSEY VS. RASHAWN CARTER (11-12-2963, CAMDEN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-1132-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RASHAWN CARTER, a/k/a
CURTIS WALKER,
Defendant-Appellant.
_____________________________
Argued April 11, 2018 – Decided July 17, 2018
Before Judges Fuentes, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
11-12-2963.
David A. Gies, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; David A. Gies, on the
briefs).
Linda A. Shashoua, Assistant Prosecutor,
argued the cause for respondent (Mary Eva
Colalillo, Camden County Prosecutor,
attorney; Linda A. Shashoua, of counsel and
on the brief).
PER CURIAM
Tried by a jury over nine days,1 defendant Rashawn Carter was
convicted in connection with an armed robbery of a bakery in which
co-owner Oscar Hernandez (Hernandez) was murdered. Defendant was
found guilty of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3)
(count two); five counts of first-degree armed robbery, N.J.S.A.
2C:15-1 (counts three, four, six, seven and eight); five counts
of third-degree criminal restraint, N.J.S.A. 2C:13-2(a) (counts
fifteen through nineteen); and conspiracy to commit armed robbery,
criminal restraint and possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:5-5, N.J.S.A. 2C:15-1, N.J.S.A. 2C:13-2(a)
and N.J.S.A. 2C:39-4 (count twenty-three). The remaining charges
were dismissed.
On September 21, 2015, having previously denied a motion for
a new trial, the court imposed an aggregate 107-year term of
incarceration subject to eighty-five percent parole ineligibility
in accord with the No Early Release Act (NERA), N.J.S.A. 2C:43-
7.2. More specifically, the court ordered that defendant first
serve the sentence imposed on the murder charge (count two), which
was merged with a robbery charge (count three), of fifty-five
years' incarceration with eighty-five percent parole ineligibility
1
William Cooper, co-defendant, was tried together with defendant.
Cooper filed an appeal based upon his conviction and sentence.
The merits of that appeal do not affect the instant appeal.
2 A-1132-15T1
subject to NERA. The court then merged the remaining counts and
ordered that defendant serve a consecutive sixteen-year term of
incarceration with eighty-five percent parole ineligibility
subject to NERA. Defendant appeals and we affirm.
We derive the following facts from the trial record. On
October 14, 2009, at approximately 8:40 p.m., three men, later
identified as defendant, co-defendant William C. Cooper, and
Maurice Carter, defendant's brother, entered Alex's Bakery in
Woodlynne. Present were Hernandez and Silvia Ramos Morales,
husband and wife who owned the bakery, and patrons. Cooper was
armed with a handgun, and wore a hooded sweatshirt with the hood
pulled over his head, along with a black face mask that covered
his entire face and gloves. Defendant wore a red "Ed Hardy"
jacket, with no mask or gloves. Maurice2 wore a black jacket with
grey and white stripes. After the men entered the bakery, Cooper
walked toward the cash-register and pointed the gun at Hernandez,
who was standing behind the counter. Hernandez ran toward the
bakery's kitchen and attempted to shut the kitchen door to block
Cooper from entering. Cooper followed Hernandez, and after a
struggle, was able to push open the door. Cooper then fatally
shot Hernandez.
2
We refer to defendant's brother by his first name to avoid
confusion.
3 A-1132-15T1
While this occurred, Maurice stood guard at the front door
of the bakery while defendant ordered the other bakery patrons,
Blanca and Anayeli Ramirez, and Felipe Lopez, to get on the ground.
Cooper then gathered Blanca, Anayeli, and Felipe, and brought them
into the kitchen, where he demanded they give him their money.
Ramos Morales was able to stay hidden from defendant's view and
pressed an alarm button. Defendant and Maurice attempted to open
the cash register without success. When two individuals attempted
to enter the bakery, defendant held the door closed and told them
the bakery was closed. Before leaving the bakery, Cooper noticed
Ramos Morales, who was still pressing the alarm button, and
motioned her with his gun to go back into the kitchen. When
someone yelled that the police were on their way, the men left.
That night, Sergeant Lance Saunders, a detective with the
Camden County Prosecutor's Office (CCPO), interviewed Ramos
Morales. She described the person who shot her husband as "tall,
not a really short person but not that tall" and as taller than
Saunders. She told Saunders that he was a "little bit heavier
than the others" and that she could not see his face.
Latasha Baker, defendant's sister, was also interviewed as a
witness and a victim of the robbery. Prior to the robbery, Baker
entered the bakery with her then a one-year-old son, and attempted
to buy a slice of cake. After Hernandez informed her that he was
4 A-1132-15T1
unable to sell her a slice of cake, as the cake had to be sold
whole, Baker walked around the bakery and left. Baker then
returned with her son and again asked if Hernandez would sell her
a slice of cake. Baker was inside the bakery when it was robbed.
She alleged that her cell phone had been taken during the robbery,
and provided the police with her cell phone number.
Saunders obtained a Communications Data Warrant to track
Baker's allegedly stolen cell phone. John Husinger, a United
States Marshal, was able to trace the cell phone to Baker's house
using her cell phone number. Baker allowed the police to enter
her home. Using a hand-held signal monitoring device, the cell
phone was found underneath her couch. Baker was then re-
interviewed. When asked how the allegedly stolen cell phone was
in her house, she gave three different reasons. First, "that
[defendants] probably knew she was a single mother with two kids[,]
so they broke into her house and put the phone back." Second,
"that [defendants] were trying to frame her." Third, "[defendants]
probably put it back so she wouldn't tell on them."
Based on this information, Saunders reviewed Baker's cell
phone records and discovered that on the date of the robbery,
between 8 and 9 p.m., there were approximately thirteen calls
between Baker's cell phone and defendant. All the calls were
placed in the general area of the bakery and Baker's home.
5 A-1132-15T1
Saunders then reviewed the security footage of the bakery from the
night of the robbery. From that review, he observed Baker leaving
the bakery for the first time and walking toward a back alley,
which was the alley that defendants emerged from a few minutes
later, prior to the robbery and shooting.
In the course of the investigation, Saunders spoke to Eddie
Bell, the father of Baker's son. Saunders showed Bell a picture
of the robbery suspects. Bell was able to recognize the red Ed
Hardy jacket that defendant wore during the robbery as his own
jacket. Saunders also showed Bell the surveillance footage of the
bakery from the night of the robbery, and Bell was able to identify
defendant. Saunders also spoke to Vernon Carter, defendant's
brother. Vernon3 told Saunders that his brother told him they
were "supposed to . . . get the money and that's it" but that the
"robbery went bad."4
A warrant was issued for defendant's arrest and executed at
Baker's house by the U.S. Marshals Regional Fugitive Task Force.
3
We refer to defendant's brother by his first name to avoid
confusion.
4
During the trial, Vernon, who was compelled to testify, recanted
his statement.
6 A-1132-15T1
Defendant and Cooper were found hiding in a pantry closet and
arrested.5
Prior to trial, Maurice pled guilty to one count of armed
robbery. Pursuant to the plea agreement, Maurice was sentenced
to a ten-year term of incarceration subject to eighty-five percent
parole ineligibility in accord with NERA.
During jury deliberations, the jury sent a note to the court
stating, "[the] deliberation process [for juror five] is too
stressful, and she is asking to be substituted with one of the
alternate jurors." The same note also stated that "last night
[j]uror [eleven] looked up info on [the] internet about facts on
everything in [the] [manila] folder. Is this ok? Can info be
shared to all jurors?"
The court brought out juror eleven into the courtroom to
inquire if she had shared any information with the other jurors.
Juror eleven stated that the manila folder contained her printed
research that she found on the internet that morning. The research
included: "Police Records" by the Reporters Committee for Freedom
of the Press, Winter 2008; "How Reliable is Eyewitness Testimony"
by the American Psychological Association, April 2006; and
5
At trial, a cellmate of Cooper's, Michael Streater, testified
regarding an admission by Cooper of his participation in the
robbery and his shooting of Hernandez. Defendant does not
challenge that testimony or its admissibility on appeal.
7 A-1132-15T1
"Exonerations in the United States, 1989 to 2012," by the National
Registry of Exonerations, June 2012. The court then asked whether
she had told any other jurors that she had those materials. The
following colloquy occurred between the court and juror eleven:
JUROR ELEVEN: What I said was that I couldn't
sleep last night and that I needed some — I
needed to have a better understanding of
certain things and that I went on the internet
and I looked up two articles and a paper. And
– that I read them. And that I printed them
out – I didn't feel like I was violating my
oath as a juror because I wasn't looking up
the case but I read – you know, I felt like I
had a better understanding of what my
questions were. But I felt like I needed to
share that because – but I didn't share what
I read or what I took from it.
THE COURT: First off, did you show any of the
other jurors any of the written materials?
JUROR ELEVEN: No. I told them what – I said
what the names of the articles were.
THE COURT: Okay.
JUROR ELEVEN: That's what I said. I just
said like this article from this paper.
THE COURT: So did you – I mean did you tell
them it was about articles about eyewitness
identifications?
JUROR ELEVEN: Yes.
THE COURT: And exonerations.
JUROR ELEVEN: I said I had a question on
eyewitness – eyewitness identifications and I
also had questions on when things got
overturned due to erroneous eyewitness
8 A-1132-15T1
identification. And I had questions on what
could or could not be shared during an
investigation by the press in the State of New
Jersey and Pennsylvania.
THE COURT: All right. [W]as everybody within
earshot when you were talking about this?
JUROR ELEVEN: Yes. I came in this morning
and said I couldn't sleep last night. I had
questions, you know, and this is what I – I
looked up and I said the names of the articles.
I said, you know, I feel like I need to tell
you that I did this. I said I think I need
to let you guys know that I did this. And I
did – I said I'm not going to say what I read
—
THE COURT: So did you disclose to any of the
other jurors the content of what you read?
JUROR ELEVEN: No, not what I read – I told
them the article's name but not that according
to this article this is this or that is that,
no. And I said, you know, I think this needs
to get shared and if, you know, if it's okay
to be shared then I think it's up to everybody
else if they want to look at it or not.
. . . .
THE COURT: Did anybody say anything in
response to the particular subjects that you
were mentioning?
JUROR ELEVEN: No.
The court discharged juror eleven, without objection, and
then called each juror individually to ask what juror eleven said
to them about her research, and to determine if the jurors could
remain impartial in their deliberations. After questioning each
9 A-1132-15T1
juror, the court was satisfied that deliberations could continue.
Again, no objection was raised.
The court also discharged juror five, without objection, who
was approximately seven months pregnant. Juror five explained
that the stress from the deliberation process was too much for her
to handle, explaining "[m]y head was splitting and I was very
anxious, I couldn't stop thinking about it. I woke up in the
middle of the night, I was thinking, I couldn't go back to sleep.
I'm a usually calm person and I couldn't even sleep." The court
then selected two alternate jurors, without objection, and the
judge instructed the jury to begin deliberations as a new jury.
After deliberating for two days, the jury sent a note stating,
"[W]e are currently a hung jury and have not been able to reach a
unanimous decision after days of deliberation. Where do we go
from here?" However, before the court could respond, the jury
sent another note, stating, "[W]e're trying a new strategy to
reconsider our decision." Shortly thereafter, another note was
sent stating, "Juror [fourteen] feels that juror [seven] has
preconceived notions on the case. [Juror seven] said she knew the
area and specific details on it. Also, she recalls reading the
paper."
Based upon the note, juror fourteen was brought into the
courtroom. The court asked juror fourteen, "how is it that you
10 A-1132-15T1
are saying here that [juror seven] said she knew the area and
specific details on it?" Juror fourteen explained:
[W]e were looking at a piece of evidence and
she made reference and said there's a gas
station here, there's Mount Ephraim here,
speaking of a street, counting how many houses
it was to a certain person. Just there's a
lot of things that to me didn't make sense.
Like, obviously she said she's from
Camden so she knew the area, but to me she
knew specific streets and like things right
next to the bakery. That to me was like if
you know this you probably know the bakery is
here.
And also a couple of days ago she was
speaking about how she most likely read the
article about the incident . . . so she had
prior knowledge to [sic] the incident.
The court then called juror seven, who explained the basis
of her knowledge of the location.
[W]hat was given to us, the big board, and my
knowledge, which when we came up and asked the
questions, I'm from the city, I'm familiar.
So from looking on the board with the streets,
something would indicate that it was a light.
And I indicated what street the light was on.
That was it, from my knowledge of the city and
on the board from the street.
Juror seven also stated that she might have read a newspaper
article when the murder happened because she lives in the same
city, but it happened so long ago that she did not remember.
The following colloquy occurred between the court and juror
seven:
11 A-1132-15T1
THE COURT: Do you have any preconceived
notions about the case?
JUROR SEVEN: I do not.
THE COURT: Okay. Does the fact that
apparently at least as of this morning
somebody else on the jury thought you did,
would that impact your ability to continue to
be fair and impartial as a juror?
JUROR SEVEN: No.
THE COURT: Would it impact your ability to
interact with that juror or any of the other
jurors as part of your deliberations?
JUROR SEVEN: Not at all.
The court then brought juror fourteen into the courtroom and
asked whether he could continue to interact with juror seven and
the other jurors effectively as part of his deliberations. Juror
fourteen replied, "I'm just – I don't know. It's tough." The
court called each juror individually to determine if the content
of juror fourteen's note would impact their ability to be a fair
and impartial juror. The court then addressed the jury as a whole,
instructing:
I've concluded that there's nothing, no
information to indicate that outside
information has been improperly interjected
into this case.
[E]ach of you must decide the case for
yourself but do so only after an impartial
consideration of evidence with your fellow
jurors. . . . do not hesitate to reexamine
your own views and change your opinion if
12 A-1132-15T1
convinced it is erroneous but do not surrender
your honest conviction as to the weight or the
effect of evidence solely because of the
opinion of your fellow jurors or for the mere
purpose of returning a verdict.
After a lunch break, the court again called juror fourteen
and asked whether, based on the instructions the court gave before
lunch, he could deliberate with the other jurors. Juror fourteen
replied, "I think my head would be clear, I'll be alright to
deliberate."
The jurors continued deliberations without objection. That
same day, the jury returned its unanimous verdict finding defendant
not guilty of murder, conspiracy to commit murder, and the two
possession of weapon offenses. The jury found defendant guilty
of the remaining charges, including felony murder. The court
polled the jury, and all members were in agreement with the
verdict.
A day later, juror seven emailed the Camden jury mailbox
requesting to send a note to the trial judge. Several days later,
the court received a letter from juror seven, stating:
This note is to inform you that I feel I
was pressured to vote guilty. I left the court
Tuesday night not knowing what happened.
I was hit with [the] accusation because
I was from the city in which the crime took
place and may have heard about the crime [five
years] ago that I was unfit to serve, although
I wasn't the only one with doubt . . . [A] lot
13 A-1132-15T1
that went on during deliberation, but Tuesday
was heated.
At one point I had to walk out [of] the
room, and another moment I had to address
juror [nine's] use of profanity. I asked that
we have a moment of silen[ce] several times,
to cool things down.
I went to [the] bathroom and came out to
find they continued deliberating and came up
with guilty for [m]urder bartering not guilty
for murder to get guilty for another.
I was in shock in the courtroom hearing
all the guilty. I didn't remember agreeing
to all that, when I was on the fence the whole
time giving in at the last hour under
unbelievable accusations and pressure.
[I] felt like I was on trial, I was the
only one asked if I knew the defendants
although I wasn't the only one having a hard
time placing them there. (Now I know how it
feels to be innocent in a room of people [who]
feel you are guilty)[.] . . . I felt myself
defending myself although I was innocent.
. . . .
It wasn't right. I was on a [trial
sometime] ago, and it was nothing like this.
I was confident with my decision walking in
on [November 18, 2014], and it changed an hour
before it was all over. I would like to ask
if any erased not guilty was on the paper,
although I recalled some blanks that we [were]
suppose[d] to go over. We started the
[paperwork the] day prior, and never went back
over [it].
Upon defendant's motion for a new trial, made prior to
sentencing, the court held that the post-verdict note did not
14 A-1132-15T1
require another voir dire of the excused jurors. The motion was
denied.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT'S DECISIONS TO REMOVE JURORS
AFTER SUBMISSION OF THE CASE WAS AN ABUSE OF
DISCRETION WHERE IT DID NOT BASE ITS
DETERMINATION ON THE RULE OF LAW.
POINT II
THE TRIAL COURT'S DENIAL OF THE DEFENDANT'S
NEW TRIAL REQUEST WAS ERRONEOUS WHERE THE
DELIBERATION PROCESS EMPLOYED MAJORITARIAN
BULLYING AND INTIMIDATION.
POINT III
THE MEANS USED BY THE STATE TO IDENTIFY THE
DEFENDANT AS ONE OF THE THREE PERPETRATORS
INSIDE THE STORE AT THE TIME OF THE ROBBERY
WERE UNRELIABLE OR UNDULY PREJUDICIAL.
POINT IV
NOT ONLY WAS VERNON'S PRIOR STATEMENT
UNRELIABLE BECAUSE IT WAS BASED ON AN
UNDERSTANDING THAT HE WOULD RECEIVE A REWARD,
BUT THE TRIAL COURT DID NOT DETERMINE ITS
ADMISSIBILITY UNDER THE APPROPRIATE BURDEN OF
PROOF.
POINT V
THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE WHERE, TOGETHER WITH THE
UNRELIABLE IDENTIFICATION TESTIMONY, THE
FORENSIC EVIDENCE, WHICH WAS MINIMAL, DID NOT
PLACE THE DEFENDANT AT THE SCENE OF THE CRIME.
15 A-1132-15T1
POINT VI
WHERE THE PROSECUTOR REPEATEDLY ATTEMPTED TO
IMPROPERLY ELICIT INFORMATION, WHETHER
INTENTIONAL OR NOT, THE DEFENDANT'S RIGHT TO
A FAIR TRIAL WAS UNDULY PREJUDICED.
POINT VII
THE DEFENDANT'S SENTENCE IS EXCESSIVE AND
DISPROPORTIONATE TO THE SENTENCE IMPOSED ON
MAURICE WHERE, CONTRARY TO THE TRIAL COURT'S
FINDING, THE BROTHER'S ROLE IN THE ROBBERY AND
MURDER WAS SUBSTANTIALLY SIMILAR.
I.
Defendant argues that the trial court abused its discretion
by discharging two jurors. In opposition, the State invokes the
invited-error doctrine, and argues that defendant should be barred
from appealing the jurors' dismissal, because he did not raise
this issue below and did not object when these jurors were
discharged. The State also argues that defendant did not object
to the retention of juror fourteen. Further, the State argues
that although defendant waived this argument for purpose of appeal,
the trial court's discharge of the jurors was proper.
Mistakes at trial are subject to the invited-error doctrine.
State v. A.R., 213 N.J. 542, 561 (2013). Under that doctrine,
trial errors that "were induced, encouraged or acquiesced in or
consented to by defense counsel ordinarily are not a basis for
reversal on appeal . . . ." State v. Corsaro, 107 N.J. 339, 345
16 A-1132-15T1
(1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App.
Div. 1974)). If a party has "invited" the error, he is barred
from raising an objection for the first time on appeal. See N.J.
Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342
(2010).
We are satisfied that "this case presents no fundamental
injustice that would warrant relaxing the invited error doctrine."
M.C. III, 201 N.J. at 342. Here, defendant's counsel did not
object when the trial court discharged juror five and juror eleven,
and when the court did not discharge juror fourteen. The
acquiescence of defendant to the discharge and non-discharge of
the jurors, in our view, constituted invited error.
Even if the invited-error doctrine does not apply, we conclude
the court properly exercised its discretion in dismissing both
juror five and juror eleven. This court's "review of a trial
court's decision to remove and substitute a deliberating juror
because of an 'inability to continue,' pursuant to Rule 1:8-
2(d)(1), is deferential. [A reviewing court] will not reverse a
conviction [on that basis] unless the court has abused its
discretion." State v. Musa, 222 N.J. 554, 564-65 (2015). Further,
claimed errors, to which no objection was made at trial, warrant
reversal only if "of such a nature as to have been clearly capable
of producing an unjust result[.]" R. 2:10-2.
17 A-1132-15T1
Rule 1:8-2(d)(1) provides that after a jury begins
deliberations, a juror may not be discharged and an alternate
juror substituted unless "a juror dies or is discharged by the
court because of illness or other inability to continue . . . ."
R. 1:8-2(d)(1). A juror may be discharged for "personal reasons
unrelated to the case," and not from his or her interactions with
other jurors. State v. Ross, 218 N.J. 130, 147 (2014). Physical
illness or a juror's psychological condition are reasons that a
juror may be discharged. Id. at 147-48; see also State v.
Williams, 171 N.J. 151, 164 (2002) (explaining that "'inability-
to-continue' has been invoked to remove a juror under circumstances
that reveal that the juror's emotional condition renders him or
her unable to render a fair verdict.").
Juror five was discharged after she informed the court that
the stress from the deliberation process was too much for her to
handle given she was approximately seven months pregnant at the
time. She complained of feeling "very anxious," having a splitting
headache, and being unable to sleep at night. She also explained
that the stress had "nothing to do with the positions that people
[were] taking." Since the discharge of juror five was not based
on the deliberation, but based on reasons personal to her, the
court did not abuse its discretion in her discharge. Musa, 222
N.J. at 567.
18 A-1132-15T1
A trial court may remove a juror who has "expressed refusal
to abide by her sworn oath to follow the law," State v. Jenkins,
182 N.J. 112, 130 (2004), and "disregard[s] the court's unambiguous
admonitions" against speaking with individuals not on the jury who
may influence them. State v. Holloway, 288 N.J. Super. 390, 404
(App. Div. 1996). "[I]f during the course of the trial it becomes
apparent that a juror may have been exposed to extraneous
information, the trial court must act swiftly to overcome any
potential bias and to expose factors impinging on the juror's
impartiality." State v. R.D., 169 N.J. 551, 557-58 (2001) (citing
State v. Bey, 112 N.J. 45, 83-84 (1988)).
The jury was specifically instructed to "follow the law as
. . . instructed by [the trial court]," and that "[a]nything less
would be a violation of your oath or affirmation as jurors." As
part of the jury charge, the court discussed in great length eye
witness identifications and their reliability, and instructed the
jury on specific factors they could consider in determining whether
the identification should be afforded weight.
Juror eleven admitted to conducting outside research on the
reliability of eyewitness testimony and exonerations in the United
States. Accordingly, the court properly dismissed her for
violating her oath as a juror for conducting outside research.
19 A-1132-15T1
II.
Defendant also argues that it was error to deny the motion
for a new trial based upon "bullying" by a juror and the resultant
corruption of the jury. For the reasons stated above, we find no
merit to this argument.
Rule 3:20-1 provides that a trial court may not set aside a
jury's verdict and order a new trial "unless, having given due
regard to the opportunity of the jury to pass upon the credibility
of the witnesses, it clearly and convincingly appears that there
was a manifest denial of justice under the law." Similarly, a
trial court's ruling on a defendant's new trial motion "shall not
be reversed unless it clearly appears there was a miscarriage of
justice under the law." State v. Sims, 65 N.J. 359, 373-74 (1974);
R. 2:10-1. "The 'semantic' difference between 'miscarriage of
justice' and 'manifest denial of justice under the law' is an
'oversight and should not be construed as providing for a different
standard in criminal cases at the trial level than that applicable
to appellate review . . . .'" State v. Armour, 446 N.J.
Super. 295, 306 (App. Div. 2016) (quoting Pressler &
Verniero, Current N.J. Court Rules, cmt. 2 on R. 3:20-1 (2016)).
The Supreme Court has "explained that a 'miscarriage of justice'
can arise when there is a 'manifest lack of inherently credible
evidence to support the finding,' when there has been an 'obvious
20 A-1132-15T1
overlooking or under-valuation of crucial evidence,' or when the
case culminates in 'a clearly unjust result.'" Hayes v. Delamotte,
231 N.J. 373, 386 (2018) (quoting Risko v. Thompson Muller Auto.
Grp., Inc., 206 N.J. 506, 521-22 (2011)).
The decision whether to grant or deny a motion for a new
trial is left to the trial judge's sound discretion, and this
court should interfere with the exercise of that discretion only
when "a clear abuse has been shown." State v. Brooks, 366 N.J.
Super. 447, 454 (App. Div. 2004) (quoting State v. Russo, 333 N.J.
Super. 119, 137 (App. Div. 2000)).
During deliberations, juror fourteen expressed concern that
he felt "held hostage, like it's this way or it's not" by juror
seven's "preconceived notions on the case." However, juror
fourteen, upon questioning by the court, later clarified that he
was no longer concerned about juror seven's preconceived notions
as it may have been based on "a piece of evidence, one of the
articles that was in evidence." Again, defendant did not object
to retaining juror fourteen.
Defendant also takes issue that the court decided to continue
with the deliberations after juror substitution and to not declare
a mistrial.
The trial court's specialized "feel of the case" extends to
assessing whether the timing of the removal made it unwise to
21 A-1132-15T1
substitute a juror. Generally, the determinative factors of this
assessment include: (1) the length of time the jury deliberates,
and (2) the progress in deliberations that will bear on the
reconstituted jury's ability realistically to begin deliberations
anew. Jenkins, 182 N.J. at 132. When the "'deliberative process
has progressed for such a length of time . . . that it is strongly
inferable that the jury has made actual fact-findings or reached
determinations of guilt or innocence,' there is a concern that the
new juror will not play a meaningful role in deliberations." Ibid.(quoting Corsaro, 107 N.J. at 352).
Our Supreme Court has not recognized the duration of
deliberation as a bright line indication that a jury is incapable
of beginning anew. See Ross, 218 N.J. at 154-55. Instead, our
courts have sometimes compared the length of deliberations before
and after the substitution as part of "the totality of the
circumstances." State v. Williams, 377 N.J. Super. 130, 150 (App.
Div. 2005).
It has been recognized that, rather than cause a rift in
deliberations, alternate jurors are likely to function as
effectively as if they had been present from the beginning and may
also be able to reconcile solidifying and divergent positions of
other jurors. See Holloway, 288 N.J. Super. at 405.
22 A-1132-15T1
Here, the substitution occurred merely three hours into
deliberations, following approximately thirteen hours of testimony
over five trial days, with myriad videos, photos, and items of
evidence to review and debate. Based upon the totality of the
circumstances, we discern no factual or legal basis for error in
the substitution of jurors.
Nor do we discern error in the denial of the motion for a new
trial predicated upon the post-verdict note from juror seven. We
agree with the court that the issues raised in the note were "no
more than the discomfort produced by deliberative
pressures . . . ." State v. Williams, 213 N.J. Super. 30, 35
(App. Div. 1986).
III.
Defendant also argues, for the first time on appeal, that the
trial court's evidentiary rulings were improper. Specifically,
defendant raises the following issues: (1) Bautistas' out-of-court
identification is improper due to impermissible suggestive
questioning; (2) Bell's out-of-court identification is unreliable;
and (3) the Historical Cellular Site Analysis is unreliable. Since
we give substantial deference to a trial court's evidentiary
rulings, they should be upheld absent a showing of an abuse of
discretion. State v. Weaver, 219 N.J. 131, 149 (2014).
23 A-1132-15T1
First, defendant claims Bautistas' identification of
defendant was the result of impermissibly suggestive questioning
by the police. When the admissibility of out-of-court
identification is questioned due to impermissibly suggestive
questioning, New Jersey uses the following two-step analysis: (1)
whether the identification used by the police was impermissibly
suggestive, and if so, (2) whether that procedure was nevertheless
reliable by considering the totality of the circumstances and
"weighing the suggestive nature of the identification against the
reliability of the identification." State v. Romero, 191 N.J. 59,
76-77 (2007) (quoting State v. Herrera, 187 N.J. 493, 503-04
(2006)); see also United States v. Wade, 388 U.S. 218 (1967).6
Here, the court denied defendant's motion for a Wade hearing
pre-trial, as defendant failed to meet the burden of demonstrating
the existence of suggestive police procedures. Based upon our
review of the record relating to the out-of-court identification,
we discern no error.
Defendant also argues that the court improperly rejected
defendant's challenge regarding Bell's identification of defendant
based on the surveillance video. The court found Bell's
6
The eyewitness identification standards our Supreme Court
adopted in State v. Henderson, 208 N.J. 208, 302 (2011) do not
apply here because these crimes occurred on October 14, 2009.
24 A-1132-15T1
identification was not lay opinion testimony, but rather a
statement of fact. Lay witnesses may properly offer
interpretations of a video recording so long as those
interpretations are based on personal knowledge and will be helpful
to the jury. See State v. Loftin, 287 N.J. Super. 76, 100 (App.
Div. 1996).
In Loftin, we held that the personal knowledge of the
detective that allowed him to narrate the videotape was properly
based on "his own perception of defendant's actions as seen on the
videotape." Id. at 100. Similarly, someone who can demonstrate
familiarity may be permitted to testify regarding identification.
See State v. Carbone, 180 N.J. Super. 95 (Law Div. 1981). In
Carbone, the State was permitted to admit lay witness testimony
of personal photographic identifications of the defendant before
the jury in an armed robbery prosecution, by persons who were not
witnesses to the crime, but had personal knowledge of and
familiarity with the defendant's appearance at the time of the
commission of the offense charged where the defendant's appearance
had changed since that time. Id. at 96-97, 100.
Here, Bell was familiar with defendant's appearance, having
known him personally for about six years. Bell also identified
defendant by the distinctive jacket defendant wore during the
robbery and later found at Baker's house. The court found, and
25 A-1132-15T1
the record supports, that Bell's statement was rationally based
on his perception and thus admissible.
Defendant also argues that the Historical Cell Site Analysis
is unreliable. This argument is wholly unsupported. Aside from
bald assertions, defendant points to no authority that would
undermine the reliability of this evidence.
As the court noted, and we agree, defendant's challenges
regarding the methodology of his identification were addressed
before the jury during the cross-examination of the State's
witnesses and also addressed during summation. Presumably, the
jury considered those challenges in reaching the verdict.
IV.
Defendant further argues that Vernon's statements were
unreliable because he was expecting a reward in exchange for the
testimony and that the statements did not satisfy the burden of
proof for admissibility. We disagree.
We first address the prior statement argument. A prior
statement of a witness is not excluded by the hearsay rule if the
statement "is inconsistent with the witness' testimony at the
trial or hearing and is offered in compliance with Rule 613."
N.J.R.E. 803(a)(1). In State v. Bryant, we held that inconsistent
testimony was not restricted to "diametrically opposed answers but
may be found in evasive answers, inability to recall, silence or
26 A-1132-15T1
changes in position." 217 N.J. Super. 72, 75 (App. Div. 1987)
(quoting United States v. Dennis, 625 F.2d 782, 795 (8th Cir.
1980)).
In accordance with N.J.R.E. 803(a)(1), when a prior statement
is being offered by the party who called the witness, the statement
must not only be inconsistent, but is also subject to the
additional requirements that it "(A) is contained in a sound
recording or in a writing made or signed by the witness in
circumstances establishing it reliability or (B) was given under
oath subject to the penalty of perjury at trial or other
judicial . . . proceeding . . . ." See State v. Baluch, 341 N.J.
Super. 141, 178-79 (App. Div. 2001).
In Baluch, we noted that when an "out-of-court written or
recorded statement [is] sought to be admitted under N.J.R.E.
803(a)(1)(A)," the trial court must determine whether the
statement was made under circumstances establishing sufficient
reliability. Baluch, 341 N.J. Super. at 179. The reliability
factors to be considered in this evaluation were set forth in
State v. Gross, 121 N.J. 1, 10 (1990). Moreover, "the standard
for determining reliability is one that invokes all surrounding
circumstances." State v. Spruell, 121 N.J. 32, 42 (1990).
In Gross, our Supreme Court held that the reliability of the
statement must be established by a fair preponderance of the
27 A-1132-15T1
evidence prior to admitting the statement per N.J.R.E.
803(a)(1)(A). 121 N.J. at 15-16. The Court held that the
following fifteen factors should be considered to determine if a
statement is reliable:
(1) The declarant's connection to and interest
in the matter reported in the out-of-court
statement, (2) the person or persons to whom
the statement was given, (3) the place and
occasion for giving the statement, (4) whether
the declarant was then in custody or otherwise
the target of investigation, (5) the physical
and mental condition of the declarant at the
time, (6) the presence or absence of other
persons, (7) whether the declarant
incriminated himself or sought to exculpate
himself by his statement, (8) the extent to
which the writing is in the declarant's hand,
(9) the presence or absence, and the nature
of, any interrogation, (10) whether the
offered sound recording or writing contains
the entirety, or only a portion of the
summary, of the communication, (11) the
presence or absence of any motive to
fabricate, (12) the presence or absence of any
express or implicit pressures, inducement or
coercion for making the statement, (13)
whether the anticipated use of the statement
was apparent or made known to the declarant,
(14) the inherent believability or lack of
believability of the statement, and (15) the
presence or absence of corroborating evidence.
[Id. at 10 (quoting State v. Gross, 216 N.J.
Super. 98, 109-10 (App. Div. 1987)).]
Specifically, with respect to factor fifteen, it has been
recognized that the corroboration requirement cannot be overly
exacting. See Bryant, 217 N.J. Super. at 75.
28 A-1132-15T1
During the investigation, police reached out to Vernon who
provided a taped statement about a conversation he had with
defendant. Vernon stated that a few days after the robbery,
defendant told him about a "[r]obbery [that] went bad." Vernon
said he initially thought defendant was joking, because defendant
was "playing around and laughing and stuff, so I thought he was
playing."
Vernon's appearance at trial was compelled by a material
witness warrant after Vernon refused to sign a subpoena to appear
in court. In his trial testimony, Vernon denied talking to
defendant about any crime, and claimed that he did not remember
talking to the sergeant at the prosecutor's office. Vernon claimed
that he was never served with a subpoena, although he testified
about his refusal to sign the subpoena.
After finding that Vernon was feigning his inability to recall
his prior inconsistent statement regarding his conversation with
defendant about the crime, the court conducted a Gross hearing to
determine the reliability of Vernon's prior recorded statement by
hearing from the detective who took the statement and listening
to the un-redacted audio. Applying the Gross factors, the court
concluded the statement to be reliable and found: (1) Vernon had
an interest in the matter as his brother was one of the alleged
perpetrators and he was involved in helping the marshals locate
29 A-1132-15T1
defendants; (2) the statement was made to law enforcement while
Vernon was not in custody or handcuffed, and principally in front
of one detective; (3) the location was in an unsecured conference
room at the prosecutor's office and Vernon was free to leave.
Regarding factor seven, whether Vernon incriminated himself
or sought to exculpate himself by his statement, the court noted
that Vernon was not even a target. The court found the physical
and mental condition of Vernon to have been sound, finding that
he was not under the influence or in any kind of discomfort.
Regarding factor ten, the trial judge found that the recording
contained the entirety of the statement.
Regarding factor eleven, the court found no motive to
fabricate from the statement itself, and no express or implied
pressure by the interrogator. The court noted that while Vernon
seemed "confused, arguably kind of convinced that something was
in it for him" in return for turning in co-defendant Cooper, he
was not in the same state of mind regarding turning in defendant.
The court stated:
I do not see any evidence here that [Vernon]
was under any belief that he was going to be
paid or otherwise treated favorably for
talking to [Saunders] and answering questions
about what his brother allegedly told him in
a telephone call.
30 A-1132-15T1
The court also noted that there was no legal requirement to tell
Vernon about the anticipated use of the statement and that Vernon's
statement was "much more inherently believable rather than
unbelievable." Accordingly, the court found Vernon's prior
recorded inconsistent statement to be admissible.
The record supports the court's factual and credibility
findings and legal conclusion. While the court did not reference
the preponderance burden expressly, it was clear from the context
that the court was fully aware that it was the State's burden.
The court referenced the Gross standard and each factor
individually in his comprehensive oral ruling. In sum, we discern
no error in the evidentiary rulings relating to Vernon's testimony.
V.
Defendant further argues that the jury's verdict was against
the weight of the evidence. Specifically, defendant argues there
was a lack of forensic evidence and lack of reliability on the
part of the State's witnesses.
A trial court's denial of a defendant's motion may not be
reversed on appeal unless "it clearly appears that there was a
miscarriage of justice under the law." R. 2:10-1; Sims, 65 N.J.
at 373-74.
It is well-established that a trial court may not "set aside
the verdict of the jury as against the weight of the evidence
31 A-1132-15T1
unless, having given due regard to the opportunity of the jury to
pass upon the credibility of the witnesses, it clearly and
convincingly appears that there was a manifest denial of justice
under the law." R. 3:20-1.
It is well-settled law that "a reviewing court should not
overturn the findings of a jury merely because the court might
have found otherwise if faced with the same evidence." State v.
Afanador, 134 N.J. 162, 178 (1993). "Unless no reasonable jury
could have reached such a verdict, a reviewing court must respect
a jury's determination." Ibid. The objective in such a review
"is not to second-guess the jury" in its assessment of the
witnesses' credibility, "but to correct the injustice that would
result from an obvious jury error." State v. Saunders, 302 N.J.
Super 509, 524 (App. Div. 1997) (citing State v. Balles, 47 N.J.
331, 337 (1967)).
Given the totality of the evidence and reasonable inferences
that the jury could have drawn from the evidence, we conclude that
defendant's lack of forensic evidence argument lacks merit.
As well, defendant's argument that the testimony of Vernon
and Bell was "unreliable" similarly lacks merit. We add only that
the court found that "[t]he contents of Vernon Carter's statement
would have been sufficient to justify the jury's guilty verdicts
against Carter even had the State presented no other evidence
32 A-1132-15T1
against Carter," recognizing that Vernon's statement included a
confession by defendant which was corroborated by the surveillance
video and enhanced by the accuracy of Vernon's information which
led police to the defendants. In regard to Bell's testimony, the
court found that the statement that Bell recognized the person he
had known for six years pictured in the video wearing what appeared
to be his red-hooded jacket as defendant was a "powerful evidence
that by itself would have justified the jury's verdicts against
[defendant]." These findings are supported in the trial record
and were not erroneous.
VI.
Defendant also argues that prosecutorial misconduct denied
him a fair trial. Specifically, defendant argues that the State
asked irrelevant questions to Michael Streater; the State
improperly referred to Baker as "defendant's sister"; and the
court's instructions did not cure the taint caused by Saunders'
misidentification.
Whether a comment by counsel is prejudicial and whether a
prejudicial remark can be neutralized through a curative
instruction or undermines the fairness of a trial are "peculiarly
within the competence of the trial court," who has the feel of the
case and is best equipped to gauge the effect of a prejudicial
comment on the jury in the overall setting. State v. Yough, 208
33 A-1132-15T1
N.J 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646-47
(1984)).
"For that reason, an appellate court should not reverse a
trial court's denial of a mistrial motion absent a 'clear showing'
that 'the defendant suffered actual harm' or that the court
otherwise 'abused its discretion.'" Yough, 208 N.J. at 397
(quoting State v. LaBrutto, 114 N.J. 187, 207 (1989)). The
granting of a mistrial is an extraordinary remedy to be exercised
only when necessary "to prevent an obvious failure of justice."
State v. Harvey, 151 N.J. 117, 205 (1997).
During cross-examination, Cooper's counsel repeatedly asked
Streater about a portion of his police interview where Streater
told Saunders that he knew a person who worked at City Select Auto
who, as Cooper's counsel put it, was "the only black guy" that
worked there. However, Streater tried to clarify that the
conversation was not about cars. On redirect, the prosecutor
allowed Streater to clarify:
Q: Now, counsel was asking you a bunch of
questions about autos and City Select Auto and
you said when you were having that
conversation with Sergeant Saunders it wasn’t
about cars, it was about trying to pinpoint
someone.
A: Yes.
34 A-1132-15T1
Q: Right. Okay. What was it you were trying
to explain to Sergeant Saunders that led to
you talking about somebody at City Select?
A: I was explaining that the guy – it was a
black guy that used to work there.
Q: Okay.
A: He was the only black guy, I think, at
that time that I was describing him as like a
goofy guy.
Q: Okay. What relevance did that guy have
to the case you were talking about, to William
Cooper?
A: Supposedly had a baby by the female, the
house that they planned the stuff in.
Q: Okay. So . . . what William Cooper told
you about, him having a baby with this woman
where they planned the crime?
A: Yes.
On re-cross-examination, Cooper's counsel again asked: "Mr.
Streater, with respect to the guy that was at City Select, isn't
what Mr. Cooper told you was that his girlfriend had a sister who
had a baby with that guy?" Streater replied, "Something like
that." When the prosecutor attempted to follow up by asking, "But
what was the relevance of his girlfriend's sister to the case?",
there was an objection. Streater did not get to respond before
the trial judge advised counsel to move on.
In denying defendant's motion for a new trial regarding this
exchange, the court pointed out that defendant still had not
35 A-1132-15T1
identified how this exchange prejudiced him and concluded that
"this line of questioning was so tangential and confusing that the
jury could not have concluded that this opaque [trial] somehow led
to [defendant]." The court properly found that such a fleeting
exchange was rightfully short of constituting a prosecutorial
error, much less a manifest injustice.
Regarding whether the State's designation of Baker as
"defendant's sister" during the questioning of FBI Agent William
Shute about the crimes was proper, the court properly found that
the reference to Baker as a "defendant" was isolated and did not
constitute misconduct.7
Regarding Saunders' testimony identifying the persons in the
picture as "defendants" rather than as "suspects," there was no
objection. Notably, it was the court that raised the concern, not
defense counsel.
On cross-examination, co-defendant's counsel inquired of
Saunders:
Q: I guess my question is in that snapshot
of the video there are people in the video,
correct?
A: Yes.
7
Shute provided expert testimony and applied a technique known
as historical cellular site analysis to opine that during the
minutes before the robbery, defendant's cell phone was within one-
half to seven-tenths of a mile from Bakers's cell phone.
36 A-1132-15T1
Q: Is that who you were referring to as the
defendants?
A: Yes, that's correct.
Q: Can you see the people who are in that
picture?
A: Yes.
Q: Well, can you see facially who those
people are?
A: No.
Q: I guess my question is when you said the
area that the defendants were in, did you mean
where the suspects came from?
A: Well, they're defendants, so. You mean
– I'm not too –
Q: I guess my question is are you making an
identification saying that these people are
these defendants or are you saying —
A: Oh, yeah, I know who they are.
The court gave a curative instruction relative to the use of
the word "defendants." We give great deference to the trial
court's determination when reviewing the effectiveness of curative
instructions. Winter, 96 N.J. at 646-47. In the exercise of that
deference, we discern no error.
VII.
Finally, we turn to defendant's arguments relating to the
sentence. It is well-recognized that "[a]ppellate review of the
length of a sentence is limited." State v. Miller, 205 N.J. 109,
37 A-1132-15T1
127 (2011). "[A]dherence to the Code's sentencing scheme triggers
limited appellate review." State v. Cassady, 198 N.J. 165, 180
(2009). More specifically, "[a]n appellate court is not to
substitute its assessment of aggravating and mitigating factors
for that of the trial court." State v. Bieniek, 200 N.J. 601, 608
(2010) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). At
sentencing, the court adhered to the sentencing guidelines and
stated reasons for imposing the sentence.
On defendant's felony murder conviction, the court imposed a
fifty-five-year NERA term; after merging defendant's count three
robbery conviction into count two, and similarly merging the
criminal restraint counts, the court imposed consecutive sixteen-
year NERA terms on the remaining robbery charges under counts
four, six, seven and eight.
The court then considered the applicable aggravating and
mitigating factors. The court found aggravating factors one,
three, six and nine pursuant to N.J.S.A. 2C:44-1(a).
The record amply supports the court's detailed findings of
each of the aggravating factors, which justifies the imposed
sentence. O'Donnell, 117 N.J. at 215-17. Concerning the court's
application of aggravating factor one, that factor was only applied
to the armed robbery offenses. The court found that, "It was
especially cruel and completely unnecessary for the defendant to
38 A-1132-15T1
force the other victims and to stay in the store after the shooting
and to actively participate in herding them into the kitchen where
Hernandez lay dying."
Our Supreme Court recently noted that when applying factor
one, "the sentencing court reviews the severity of the defendant's
crime, 'the single most important factor in the sentencing
process,' assessing the degree to which defendant's conduct has
threatened the safety of its direct victims and the public." State
v. Fuentes, 217 N.J. 57, 74 (2014) (quoting State v. Lawless, 214
N.J. 594, 609 (2013)). "[A] sentencing court may justify the
application of aggravating factor one . . . by reference to the
extraordinary brutality involved in an offense." Id. at 75. "A
sentencing court may consider 'aggravating facts showing that [a]
defendant's behavior extended to the extreme reaches of the
prohibited behavior.'" Ibid. (alteration in original) (quoting
State v. Henry, 418 N.J. Super. 481, 493 (Law Div. 2010)).
Here, the court's basis for applying this factor was premised
upon detailed findings regarding the heinous nature of defendant's
conduct. Those findings fully support the court's conclusion that
aggravating factor one applied.
As well, we find no basis for error in the court's rejection
of mitigating factor two. In rejection of that mitigating factor,
the court reasoned:
39 A-1132-15T1
In finding the defendant liable as an
accomplice, the jury necessarily concluded
that the defendant knew beforehand that at
least one of the perpetrators would be armed
and that the defendant acted with the purpose
to facilitate armed robberies that involved
either the use of force or the threat of force.
Thus, it cannot be said that the defendant did
not contemplate that his conduct would cause
or threaten serious harm to anyone.
We next address the court's imposition of consecutive
sentences. Consecutive sentences do not constitute an abuse of
discretion when separate crimes involve separate victims, separate
acts of violence, or separate times and places. State v. Carey,
168 N.J. 413, 422-23 (2002).
Furthermore, under our sentencing scheme, there is no
presumption in favor of concurrent sentences, and the common law
guidelines that there should be "no free crimes" tilts a court in
the direction of consecutive sentences. Id. at 423; State v.
Yarbough, 100 N.J. 627, 630 (1985).
The Yarbough guidelines direct a court to focus on the facts
relating to the crimes, concentrating on such considerations as
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 involved separate victims. Carey, 168
N.J. at 423.
40 A-1132-15T1
Moreover, "[t]he total impact of singular offenses against
different victims will generally exceed the total impact on a
single individual who is victimized multiple times[,]" and thus,
"defendant's culpability exceeds the culpability of someone who
commits the same group of offenses against a single victim . . . ."
Carey, 168 N.J. at 429.
In this case, the court imposed consecutive terms for the
robberies. The court found:
As to the crimes against bakery co-owners
Oscar Hernandez and Silvia Ramos Morales,
meaning the felony murder of Oscar Hernandez
under [c]ount [t]wo and the armed robbery of
Silvia Ramos Morales under [c]ount [f]our, the
objectives of those crimes were not
predominantly independent of each other. On
the other hand, the crimes against the other
victims and the objectives of those crimes
were predominantly independent of the
objectives of the felony murder and the armed
robbery of the bakery. The armed robbery and
criminal restraint of the other victims were
committed in a desperate ad hoc attempt to
salvage some proceeds from the attempted theft
of the bakery that had yielded no proceeds
after the defendant and the other perpetrators
were unable to open the bakery's cash
register. It is reasonable to conclude from
the evidence in this case that the defendant's
objective in storming into the bakery with his
accomplices was not to restrain and rob the
other victims, but to rob the bakery. Thus,
this factor supports imposition of concurrent
sentences for the crimes against Oscar
Hernandez and Silvia Ramos Morales and
consecutive sentences for the crimes against
the other victims.
41 A-1132-15T1
The court continued:
The second . . . fourth, and fifth
Yarbough factors also support imposition of
consecutive sentences for the crimes against
the other victims. The armed robberies under
[c]ounts [s]ix, [s]even, and [e]ight involved
separate acts of violence or threats of
violence from the violence used in the felony
murder and the robbery of the bakery, and the
criminal restraint of the victim who was not
robbed created a substantial risk of injury
separate from that created by the felony
murder and the armed robbery of the bakery.
Also, those other armed robberies and the
criminal restraint involved multiple victims.
Further, the convictions for which sentences
are to be imposed are numerous.
The court found that factor three supported the imposition
of concurrent sentences, as all the crimes were committed close
in time and in the same place. Thus, in weighing the Yarbough
factors on a qualitative and quantitative basis, the court found
that the sentences for the offenses under counts two and four
would be concurrent, while the sentences involving the other
victims would be consecutive.
Considering the numerous crimes defendant committed, the
punishment was proper. Carey, 168 N.J. at 423. By not imposing
a consecutive term, it would have resulted in giving defendant
multiple "free" crimes. Defendant's consecutive term for these
separate crimes, perpetrated on these separate victims, does not
42 A-1132-15T1
shock the judicial conscience. See State v. Spivey, 179 N.J. 229,
245 (2004).
Finally, we address the disparate sentence argument. When a
comparison of co-defendant's sentences reveals "grievous
inequities," the greater sentence may be deemed excessive. State
v. Roach, 167 N.J. 565, 570 (2001) (Roach II). This court's review
of an allegation of sentencing disparity is quite limited, and not
different from a case in which a defendant maintains that the
sentence imposed was excessive. See State v. Tango, 287 N.J.
Super. 416, 422 (App. Div. 1996). We have also recognized that,
where the defendants' backgrounds, roles in the crime, and
cooperation with prosecution differed widely, their sentences may
differ widely. State v. Williams, 317 N.J. Super. 149, 159 (App.
Div. 1998).
The court, in rejection of defendant's argument found:
First and foremost, [Maurice] is not
substantially similar to the defendant
regarding all relevant sentencing criteria.
Most significantly, [Maurice] was convicted
following a guilty plea to a single offense
involving a single victim, the armed robbery
of Silvia Ramos Morales. As part of his plea,
[Maurice] implicated [Carter] as well as the
other co-defendant, William Cooper. By
contrast, [Carter] was found guilty not only
of the same offense as that to which [Maurice]
pleaded guilty, the armed robbery of Ms. Ramos
Morales, but also a felony murder as to Oscar
Hernandez, armed robbery as to Mr. Hernandez,
43 A-1132-15T1
armed robbery as to three other victims, and
criminal restraint of multiple victims.
Moreover, the defense['s] argument that
the nature and extent of the role of [Maurice]
and [Carter] in this case were substantially
similar is unpersuasive. The record in this
case includes cell phone records and expert
testimony showing that during the hours and
even minutes leading up to the robbery, the
defendant was the person who was in frequent
communication with his sister, La[t]asha
Baker, who acted as lookout inside the bakery
and later falsely played the role of victim.
Thus, there is reason to conclude that the
defendant was far more involved with the
planning of the robbery than was [Maurice].
As to the second Roach factor, the basis
for the sentence imposed on [Maurice], . . .
resulted from a plea agreement that the
sentencing court found to be fair and
reasonable. . . . Also, the State's choice to
make a plea offer to [Maurice] and the details
of that offer, and [Maurice]'s acceptance of
that offer, including the requirement that he
implicate the other defendants, are matters
that are not relevant to the disparity
analysis.
As to the third Roach factor, as noted,
[Maurice] was sentenced to a [ten]-year [NERA]
sentence for a single count of armed robbery.
In conclusion, the sentence imposed on
[Maurice] is not entitled to any weight in
determining . . . this defendant's sentence
since [Maurice] is not substantially similar
to [Carter] as to any relevant sentencing
criteria.
Accordingly, we are satisfied that disparate sentences were
each factually and legally supported. There was no clear error
of judgment and no misapplication of the sentencing guidelines so
44 A-1132-15T1
as to "shock[] the judicial conscience." State v. Roth, 95 N.J.
334, 364 (1984).
Affirmed.
45 A-1132-15T1