STATE OF NEW JERSEY v. CARLOS I. MENJIVAR (15-05-0762, MONMOUTH COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3742-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLOS I. MENJIVAR,
a/k/a IVAN MENJIVAR,
Defendant-Appellant.
________________________
Argued June 2, 2022 – Decided September 7, 2022
Before Judges Gilson, Gooden Brown, and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Monmouth County, Indictment No. 15-05-
0762.
Stephen W. Kirsch, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Stephen W. Kirsch, on the brief).
Monica do Outeiro, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Lori Linskey, Acting Monmouth
County Prosecutor, attorney; Mary R. Juliano, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a night of drinking, defendant Carlos Menjivar and two friends
went to the apartment of one of the friends where they met a woman. The men
and woman had sex together, after which one of the friends left. Later that day,
police discovered the bodies of the other friend and the woman. They had been
stabbed to death while lying in a bed.
A jury convicted defendant of both murders, and he was sentenced to life
imprisonment without parole. He appeals from his convictions and sentence.
We affirm his convictions but remand for resentencing on one of his murder
convictions.
I.
We summarize the facts based on the evidence presented at hearings and
the trial. In 2013, defendant lived with J.H. (Jimay).1
At approximately 10:30 p.m. on Saturday, March 23, 2013, Jimay drove
his girlfriend, defendant, A.G. (Andre), and F.V. (Ferdinand) to a club called
1
We use initials and fictitious names to protect the privacy interests of the
witnesses and victims.
A-3742-18
2
Bogart's. The group spent several hours at the club socializing and drinking.
While at the club, Ferdinand had a confrontation with another man and that man
was ejected from the club after some pushing and shoving.
That same night, M.C-M. (Maritza) dropped her three-year-old child at a
friend's house. The friend had agreed to babysit the child overnight while
Maritza went dancing at Bogart's.
When the club closed at approximately 2:00 a.m. on March 24, 2013,
Jimay and his girlfriend drove defendant, Andre, and Ferdinand home. During
that drive, Ferdinand arranged to meet Maritza, with whom he had a dating
relationship, at his apartment. Ferdinand also invited defendant and Andre to
join him and Maritza at the apartment. Jimay then dropped defendant, Andre ,
and Ferdinand at Ferdinand's apartment, where he saw a woman waiting outside
the apartment.
Andre and defendant went into the apartment while Ferdinand and Maritza
talked outside. While they were at the apartment, Andre saw that defendant had
a knife up his sleeve. Ferdinand then came into the apartment, and the men had
some drinks. Shortly thereafter, Maritza came into the apartment and the three
men and Maritza had group sex.
A-3742-18
3
At approximately 5:30 a.m., Andre left the apartment and took a taxi
home. While he was leaving, Andre heard Maritza ask for water and saw
defendant bringing water to the bedroom for her.
When Maritza failed to pick up her child later that morning, the friend
who was watching the child notified the police that Maritza was missing.
Through inquiries, the police determined that Maritza had a dating relationship
with Ferdinand, and in the afternoon of March 24, 2013, they went to
Ferdinand's apartment to investigate. Ferdinand's apartment was in a house that
was divided into five apartments. When the police arrived outside Ferdinand's
apartment, they smelled the odor of "decomposition." After no one answered
their knocks, the police forced the apartment door open. Inside, they found
Ferdinand and Maritza dead in a bed. Both had been stabbed multiple times.
Subsequent autopsies showed that Ferdinand had been cut and stabbed
twenty-eight times and Maritza had been cut and stabbed thirty-two times. A
medical examiner testified that Ferdinand's cause of death was multiple sharp -
force injuries to his head, neck, and chest. The examiner testified that Maritza
died from bleeding and asphyxiation.
A-3742-18
4
During the investigation of the murders, law-enforcement personnel spoke
with Jimay, Andre, and defendant. In March 2013, Andre and defendant gave
statements to the police.
In a statement given on March 26, 2013, defendant told the police that he
had been at the club with Ferdinand and Andre on March 24, 2013, they had left
around 2:00 a.m. to go to Ferdinand's home, Maritza had met them there, and
the group had sex. Defendant claimed that, thereafter, Andre had left
Ferdinand's apartment, he had left approximately five to ten minutes after Andre,
and when he left Ferdinand and Maritza had been in the bedroom. Defendant
also stated that as he had walked away from Ferdinand's apartment, he had seen
four people approach the apartment house.
On December 16, 2014, defendant gave another statement to Detective
Jose Rivera at the Monmouth County Sheriff's Office. Defendant had agreed to
go to the Sheriff's Office to undergo a polygraph test. The interview was
conducted in Spanish and was videotaped and transcribed. Ultimately, a
polygraph examination was not conducted. Instead, Rivera explained how a
polygraph test would be conducted and questioned defendant for approximately
four and a half hours.
A-3742-18
5
Rivera began by asking defendant to complete certain forms in connection
with the polygraph test. The forms Rivera provided to defendant were
completed in Spanish and later translated into English. One form asked
defendant what questions he would like to be asked during the polygraph exam
and whether he had any questions or concerns about the exam process. In
response, defendant listed several questions he wanted to be asked. Defendant
also completed a general truthfulness survey. Rivera also gave defendant a
notepad and asked him to write in his own words why he had agreed to take the
polygraph examination. Defendant wrote: "I came because the deceased family
is harassing my family because I don't want [sic] for my family. I'm here
because I have no option and I want peace for my family because I want to care
for them." Defendant initially stated that he did not kill Ferdinand , explaining
that he had gone to Ferdinand's apartment with Andre, they all had sex with
Maritza, Andre left, and he left shortly thereafter between approximately 6:00
a.m. and 7:00 a.m.
Following that exchange, Rivera provided defendant with a Miranda2
rights consent form. The form was in Spanish, and defendant stated that he
knew how to read it. Defendant then read and initialed each right,
2
Miranda v. Arizona, 384 U.S. 436 (1966).
A-3742-18
6
acknowledging that he had been advised of his constitutional rights, understood
those rights, and wished to waive the rights and give a voluntary statement.
Defendant was also given and signed a forensic psychological detection
and deception consent form (the polygraph form), which stated, in Spanish, that
he was there "of his own free will," he was "free to leave at any time," he
understood his rights, and he was willing to proceed with a polygraph
examination. When Rivera presented the polygraph form to defendant, the
following exchange took place:
[Defendant]: I can stop whenever I want to, right?
[Rivera]: What?
[Defendant]: I can also stop whenever I want to?
[Rivera]: What?
[Defendant]: Let's say I'm taking the test . . .
[Rivera]: Uh-huh.
[Defendant]: and I can . . . I can also stop talking . . .
[Rivera]: When taking the test, you have to answer yes
or no during the test. But I am going to explain all of
that to you.
During further questioning by Rivera, defendant claimed that Ferdinand
had been killed because he had snitched on people who sold drugs. Defendant
A-3742-18
7
also stated that he knew who killed Ferdinand and that they were paid
professionals from Mexico. Rivera then asked defendant if he was physically
present when Ferdinand was killed. Defendant admitted that he was present but
explained that he had been caught by a group of men outside the apartment,
taken back in, threatened, and held while they killed Ferdinand with a knife.
Rivera then reviewed defendant's Miranda rights for a second time by
reading each of the rights aloud from the form and confirming that defendant
understood and had initialed each statement on the Miranda rights consent form.
The final statement on the form stated: "Having these rights in mind, I wish to
waive them and give a voluntary statement and answer any questions." When
Rivera asked defendant if he had provided his signature on the form after that
statement and whether he understood it, defendant asked: "Does that mean I
cannot change my mind?" Rivera responded: "Huh? This, what this says is that
you understand. That having the rights in mind, you wish to waive them and
provide a voluntary statement to talk to me and answer each question. Ok, is
that right?" Defendant replied, "Uh-huh." Rivera then asked if defendant
understood everything and defendant replied, "yes."
Thereafter, the questioning continued. In response to Rivera's questions,
defendant recounted that when he had left Ferdinand's apartment, two men were
A-3742-18
8
waiting for him and six more got out of a van and they grabbed him and held a
machete-like knife against him. They then picked the lock to the apartment door
and pushed him inside against a wall. Three men stayed with him and five went
into the bedroom. Defendant claimed that he could hear the men "hacking"
Ferdinand.
When Rivera questioned whether defendant was telling him the whole
truth, defendant changed his story and ultimately claimed that the men had
threatened and forced him to stab Ferdinand with a knife that they had given
him. He explained that he had stabbed Ferdinand and then tossed the weapon
on the floor. He claimed that he did not touch Maritza. Following the interview,
defendant was arrested and charged with murder.
In 2015, defendant was indicted for two counts of first-degree murder,
N.J.S.A. 2C:11-3(a)(1) and (2); third-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(d); and fourth-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(d). The grand jury also charged defendant with
two aggravating factors in connection with the murder of Maritza. In that
regard, the grand jury found that there was probable cause to believe that
defendant had murdered Maritza to avoid detection for, and in the course of, the
murder of Ferdinand. See N.J.S.A. 2C:11-3(b)(4)(f) and (g).
A-3742-18
9
Before trial, defendant moved to suppress the statements he had given to
law-enforcement officers. The trial court conducted a six-day evidentiary
hearing and denied defendant's motion. The trial court concluded that defendant
was not in police custody at the time he had made his statements voluntarily.
The court also found no evidence to support a conclusion that defendant was
forced to submit to either an interview or a polygraph examination. Instead, the
trial court found that defendant voluntarily had gone to make the statement, had
received the Spanish-language form telling him of his Miranda rights, and had
signed the waiver.
At trial, a redacted video recording of defendant's December 16, 2014
statement was played for the jury. The jury was also given a transcript of the
statement in English, and they had that transcript to reference while the video
recording was played. The video recording and transcript used at trial omitted
all references to the polygraph examination.
The trial was conducted over two months between October 16, 2018 and
December 18, 2018. At trial, the jury heard testimony from over twenty
witnesses, including Jimay, Andre, the medical examiner, law enforcement
officers, and experts.
A-3742-18
10
One of the experts who testified for the State was Federal Bureau of
Investigation (FBI) Special Agent John Hauger. Hauger was proffered as an
expert who would testify concerning the location of a cell phone that the State
alleged defendant had in his possession on March 23 and 24, 2013.
Defendant moved in limine to exclude Hauger's testimony, and the trial
court conducted an evidentiary hearing outside the presence of the jury. At that
hearing, Hauger explained that he was a member of the FBI's Cellular Analysis
Survey Team and that he had special training in cell-phone technology. He
testified that he had personally tracked cell phones using Sprint per call
measurement data (PCMD) about a hundred times. He also testified that he and
other FBI agents had performed historical cell-site analysis using Sprint PCMD
thousands of times. Hauger explained that normal call detail records provide
the tower and location of the tower that the phone was using to connect to the
network. He went on to explain that PCMD "gives you a distance from the tower
based on an algorithm." Cell-phone companies use PCMD for network
optimization and troubleshooting. The FBI uses the data, which it uploads to a
mapping program developed by the FBI, to find people. Hauger stated that the
FBI found PCMD to be accurate within a tenth of a mile, "in some cases, in
A-3742-18
11
pinpointing the location of a phone." He went on to testify that he believed that
the measurements from the tower were "more than likely accurate."
Hauger acknowledged that Sprint did not vouch for the accuracy of the
latitudes and longitudes in its PCMD reports. Nevertheless, he explained that
the FBI, while finding some discrepancies with latitude and longitude, believed
the distances provided by PCMD were "accurate."
On cross-examination, Hauger acknowledged that there were no
validation studies or published articles to support his assertions that Sprint
PCMD was accurate. Instead, he explained that his accuracy claim was based
on the FBI's "practical experience of locating people with [PCMD]."
After hearing the testimony at the evidentiary hearing, the trial court
denied defendant's motion to exclude Hauger's testimony. The court found that
Hauger's cell-site analysis methodology had gained sufficient general
acceptance in courts throughout the country. The court concluded that any
concerns about the data's imprecision as "best estimates" could be adequately
addressed before the jury on cross-examination.
At trial, Hauger testified as an expert in historical cell-site analysis.
Hauger explained that he had analyzed records provided by Sprint for a cell
phone believed to be in the possession of defendant. He looked at the data for
A-3742-18
12
that cell phone between approximately 2:00 a.m. and 10:00 a.m. on March 24,
2013. According to Hauger, the data showed that the phone was "somewhere
very close" to Ferdinand's apartment between 2:14 a.m. to 7:31 a.m. By 7:54
a.m., the phone was closer to defendant's residence. Hauger also explained that
defendant's residence was about one mile from Ferdinand's apartment. He
acknowledged that there could be an error rate as much as one-tenth of a mile in
his analysis.
The jury also heard testimony from Kelly Walker, the records custodian
for Sprint Corporation. Walker testified that PCMD is mainly used internally to
make sure the network is working properly. Walker stated that Sprint has a
disclaimer that states that its PCMD data is used to estimate locations of mobile
devices, but Sprint does not guarantee the accuracy of the location information.
Walker also explained that Sprint does not use the data to track the locations of
people using their cell phones.
In his case, defendant called Spencer McInvaille as an expert in cellular
analysis. McInvaille opined that historic cell detail records cannot be used to
"precisely locate a device." He also testified that Sprint does not acknowledge
the accuracy of PCMD and that he was not aware of any scientific or engineering
studies demonstrating the accuracy of PCMD.
A-3742-18
13
One of the officers who testified at trial was a retired detective who
testified about a 2009 narcotics investigation. The retired detective explained
that the investigation involved Ferdinand and six other defendants. According
to the retired detective, Ferdinand was not a confidential informant nor a
cooperating witness in the investigation. The retired detective also stated that
he knew of no other cases involving Ferdinand and was not aware of Ferdinand
snitching on any drug dealers or other persons in Long Branch.
During his case, defendant called an investigator and during the
investigator's testimony, the 2009 judgments of conviction were admitted into
evidence. The judgments stated that Ferdinand had received a probationary
sentence, while a co-defendant named Manuel Savedra had been sentenced to
seven years in prison. In closing argument, defense counsel contended that
Ferdinand had been killed by hired professionals in retaliation for snitching on
Savedra.
After the State and the defense had put in their evidence, the trial court
instructed the jury. Before giving those instructions, the court informed counsel
that it would include a duress instruction because defendant had claimed that he
had been forced to murder Ferdinand. Defense counsel did not object to that
A-3742-18
14
instruction. Nor did defense counsel object to the verdict sheet that was given
to the jury.
After hearing closing arguments and the instructions by the court, the jury
found defendant guilty of all charges. The jury also found both aggravating
factors related to the murder of Maritza.
At sentencing, the trial court merged the weapons convictions into the
murder convictions. On the conviction for the murder of Ferdinand, defendant
was sentenced to life in prison with thirty years of parole ineligibility. On the
conviction for the murder of Maritza, defendant was sentenced to life in prison
without the possibility of parole. The sentences for the murder convictions were
ordered to be served consecutively. Defendant was also ordered to pay $5,00 0
in restitution to the Victims of Crime Compensation Office. Defendant now
appeals from his convictions and sentence.
II.
In a brief filed by his appellate counsel, defendant presented four
arguments for our consideration:
POINT I – THE DEFENDANT'S DECEMBER 2014
STATEMENT TO POLICE SHOULD HAVE BEEN
SUPPRESSED BECAUSE THE STATE DID NOT
PROVE THAT DEFENDANT KNOWINGLY AND
VOLUNTARILY WAIVED HIS RIGHTS AGAINST
SELF-INCRIMINATION. WHEN DEFENDANT
A-3742-18
15
TWICE ASKED WHETHER HE COULD STOP THE
INTERROGATION AT ANY TIME AND REFUSE
TO ANSWER QUESTIONS, A DETECTIVE TOLD
HIM THE FIRST TIME THAT HE COULD NOT DO
SO AND HAD TO ANSWER QUESTIONS, AND,
THE SECOND TIME, IGNORED THE
DEFENDANT'S QUESTION AND ANSWERED AS
IF A DIFFERENT QUESTION HAD BEEN ASKED.
MOREOVER, THE DETECTIVE COERCED THE
DEFENDANT INTO CONFESSING BY PROMISING
TO "HELP" DEFENDANT.
POINT II – THE EXPERT OPINION OF AN FBI
AGENT REGARDING THE COVERAGE RANGE OF
SPRINT CELL-PHONE TOWERS AND
DEFENDANT'S LIKELY LOCATION AT THE
CRIME SCENE AT A PARTICULAR TIME WAS
IMPERMISSIBLY UNRELIABLE AND A "NET
OPINION" BECAUSE IT WAS NOT BASED UPON
RELIABLE EVIDENCE OF THAT RANGE BUT,
RATHER, ON DATA THAT SPRINT ITSELF
REFUSED TO CERTIFY AS ACCURATE TO
DETERMINE A PHONE'S LOCATION.
POINT III – THE MANNER IN WHICH DURESS
WAS PRESENTED TO THE JURY ON THE
VERDICT SHEET, AND IN THE INSTRUCTION,
DEPRIVED DEFENDANT OF DUE PROCESS AND
A FAIR TRIAL ON THE COUNT OF THE
INDICTMENT CHARGING DEFENDANT WITH
THE MURDER OF [FERDINAND].
POINT IV – THIS COURT SHOULD REJECT STATE
V. TROXELL, AND HOLD THAT IT IS IMPROPER
TO INSTRUCT THE JURY TO BE UNANIMOUS IN
ORDER TO REJECT AN AGGRAVATING FACTOR
REGARDING A LIFE-WITHOUT-PAROLE (LWOP)
SENTENCE, WHEN, IN FACT, AS IN DEATH-
A-3742-18
16
PENALTY JURISPRUDENCE -- WHICH IS THE
BASIS FOR THE LWOP PROCEDURE -- THE ONLY
UNANIMITY REQUIREMENT IS TO FIND SUCH A
FACTOR, NOT TO REJECT IT; MOREOVER, THE
AGGREGATE SENTENCE IMPOSED IS
MANIFESTLY EXCESSIVE AND THE
RESTITUTION ORDER IS UNACCOMPANIED BY
A FINDING OF AN ABILITY TO PAY.
Defendant also filed his own supplemental brief where he presented the
following arguments:
POINT I: THE COURT MUST "MODIFY" THE
SENTENCE IN ACCORDANCE WITH N.J.S.A.
2C:44-7 TOWARDS ACCORD AND
SATISFACTION OF THE CONVICTION AS A
WHOLE. BECAUSE AN ILLEGAL SENTENCE
WAS IMPOSED, DEFENDANT HAS NO HISTORY
OF PRIOR CRIMINAL DELINQUENCY OR
CRIMINAL ACTIVITY [] CAUSING A WRONGFUL
CONVICTION.
A. During Sentencing, the court did not comply with
Rule 3:21-4(b) since the court did not address the
defendant personally and ask the defendant if he wished
to make a statement in his own behalf and to present
any information in mitigation of punishment.
B. When defendant was initially arrested and detained
back on 12/17/2014 defendant was 22 years old[,] a
young offender, the Judgment of conviction denotes
that defendant's date of birth is 10/29/1992 [], was only
eligible for a sentence pursuant to N.J.S.A. 2C:43-5,
which is consistent with Assembly Bill No. 4373.
A-3742-18
17
C. Instant convictions for Count 1 to Count 2 are
offences closely related, which the court below
[discretionally] decided to adjudicate split sentences.
D. The Sentencing Court violated Rule 3:21-4(f).
E. Mitigating Factors outweigh Aggravating factor to
lower the Count 1 and Count 2 [] one degree Lower
pursuant to N.J.S.A. 2C:44-1f.(2).
F. Cruel And Unusual Punishment When the Court
imposed 'natural life'.
POINT II: SUPPLEMENTING COUNSELED BRIEF
ARGUMENT [] TO ALERT THIS COURT OF THE
PUBLISHED OPINION OF THE APPELLATE
DIVISION IN STATE V. ANTHONY SIMS, JR.,
DOCKET NO. A-2641-17T2, DECIDED JANUARY 4,
2021; ET AL.
In summary, defendant makes five arguments, contending that (1) his
December 2014 statement should have been suppressed; (2) Agent Hauger
should not have been allowed to testify; (3) the trial court erred in instructing
the jury on the defense of duress; (4) the trial court erred in instructing the jury
on the aggravating factors related to the murder of Maritza; and (5) his sentence
was illegal or had other problems that require a resentencing. We reject all these
arguments, except for two matters concerning defendant's sentence.
Accordingly, we affirm his convictions and remand for resentencing on the
conviction for the murder of Ferdinand.
A-3742-18
18
A. Defendant's December 2014 Statement.
The Fifth Amendment of the United States Constitution guarantees all
persons with the privilege against self-incrimination. U.S. Const. amend. V.
This privilege applies to the states through the Fourteenth Amendment. U.S.
Const. amend. XIV; Griffin v. California, 380 U.S. 609, 615 (1965); State v.
Clark, 251 N.J. 266, 291 (June 29, 2022). Moreover, in New Jersey, there is a
common-law privilege against self-incrimination, which has been codified in
statutes and rules of evidence. N.J.S.A. 2A:84A-19; N.J.R.E. 503; State v.
O.D.A-C., 250 N.J. 408, 420 (2022).
If a person is not in custody, the privilege against self-incrimination must
generally be invoked. See State v. Ahmad, 246 N.J. 592, 610 (2021) (explaining
that "Miranda is triggered only when a person is in custody and subject to
questioning by law enforcement"). When an individual is subject to custodial
interrogation, that person is entitled to certain warnings in accordance with
Miranda. O.D.A.-C., 250 N.J. at 420 (citing State v. Hreha, 217 N.J. 368, 382
(2014)).
After receiving Miranda warnings, a person may knowingly and
intelligently waive those rights and agree to answer questions or make
statements. To admit the statement into evidence, the State must establish
A-3742-18
19
beyond a reasonable doubt that the waiver of the Miranda rights was given
intelligently, knowingly, and voluntarily in light of the totality of the
circumstances. State v. Sims, 250 N.J. 189, 211 (2022); State v. Nyhammer,
197 N.J. 383, 402-03 (2009). "Under the totality-of-the-circumstances test,
courts commonly consider a number of factors to determine if a Miranda waiver
is valid." O.D.A.-C., 250 N.J. at 421. "Those factors include the suspect's
'education and intelligence, age, familiarity with the criminal justice system,
physical and mental condition, . . . drug and alcohol problems,' how explicit the
waiver was, and the amount of time between the reading of the rights and any
admissions." Ibid. (quoting 49 Geo. L.J. Ann. Rev. Crim. Proc., 233-36 (2020)).
"Beyond the issue of waiver, there are separate due process concerns
related to the voluntariness of a confession." Ibid. The State must "prove
beyond a reasonable doubt that a defendant's confession was voluntary and was
not made because the defendant's will was overborne." Ibid. (quoting State v.
L.H., 239 N.J. 22, 42 (2019)). In assessing voluntariness, the totality-of-the-
circumstances test also applies and "[t]here is a substantial overlap [with] the
factors that" apply to a waiver analysis. Ibid. (citing State v. Tillery, 238 N.J.
293, 316-17 (2019)).
A-3742-18
20
When Miranda warnings are given, they must be given properly. O.D.A.-
C., 250 N.J. at 424. Accordingly, a law-enforcement officer cannot directly
contradict the warnings. Ibid.; see also L.H., 239 N.J. at 44 (explaining that "[a]
police officer cannot directly contradict, out of one side of his mouth, the
Miranda warnings just given out of the other" (quoting State ex rel. A.S., 203
N.J. 131, 151 (2010))).
In reviewing a trial court's decision on a motion to suppress a statement,
appellate courts generally defer to the factual findings of the trial court when
they are supported by sufficient credible evidence in the record. Sims, 250 N.J.
at 210; Nyhammer, 197 N.J. at 409 (citing State v. Elders, 192 N.J. 224, 243-44
(2007)). Moreover, appellate courts defer to a trial judge's findings "which are
substantially influenced by [the judge's] opportunity to hear and see the
witnesses and to have the 'feel' of the case, which a reviewing court cannot
enjoy[.]" State v. Davila, 203 N.J. 97, 109-10 (2010) (quoting State v. Johnson,
42 N.J. 146, 161-62 (1964)). Legal determinations are reviewed de novo. Sims,
250 N.J. at 218.
Defendant argues that he did not knowingly or voluntarily give his
December 2014 statement to Detective Rivera because Rivera provided
deceptive answers when defendant twice asked if he could stop answering
A-3742-18
21
questions. Defendant also contends that Rivera improperly promised to help
him.
Before the trial court, defendant moved to exclude all his statements and
consequently his arguments were not focused on the specific issues he raises on
this appeal concerning the December 2014 statement. Addressing the December
2014 statement, the trial court found that defendant had appeared voluntarily, in
an effort to eliminate himself as a suspect and because he and his family were
being harassed by Ferdinand's family. In addition, the trial court found that
defendant had been given Miranda warnings twice during his statement and
defendant had stated that he understood and waived those warnings.
Accordingly, the trial court also found that defendant had knowingly,
voluntarily, and intelligently waived his Miranda rights.
Initially, we hold that whether defendant was in custody when he gave the
statement in December 2014 is not the determinative issue. We agree with the
trial court that when defendant first appeared, he appeared voluntarily, and he
was not in custody. Early in the questioning, however, Detective Rivera gave
defendant Miranda warnings. After defendant admitted he was present when
Ferdinand was murdered, Rivera again reviewed the Miranda warnings with
defendant to confirm that he understood and was waiving his rights.
A-3742-18
22
Consequently, the determinative issue is whether any comment made by Rivera
rendered defendant's statement involuntary or unknowing.
Reviewed in the totality of the circumstances, there was substantial
credible evidence supporting the trial court's finding that the defendant's
statement was given knowingly, voluntarily, and intelligently. Moreover, when
we focus on the specific challenges raised by defendant on this appeal, we hold
that Rivera's comments did not undercut defendant's waiver of his Miranda
rights.
On this appeal, defendant first challenges the response Rivera made to
defendant while defendant was reviewing the polygraph form. In reviewing that
form, defendant asked: "I can stop whenever I want to, right?" After twice
asking "What?," Rivera responded: "When taking a test, you have to answer yes
or no during the test. But I am going to explain all of that to you." Considered
in the totality of the circumstances, Rivera's response did not undercut the
Miranda warnings. Just prior to the challenged exchange, Rivera had presented
defendant with a Miranda waiver form, defendant had reviewed all his Miranda
rights, initialed all those rights, and agreed to speak with Rivera. Accordingly,
defendant's question related to the polygraph form and Rivera's answers was not
misleading relative to the Miranda rights. Considered in context, the response
A-3742-18
23
by Rivera did not undercut defendant's understanding of his Miranda rights and,
in particular, his right to stop answering questions at any time he chose.
Defendant's second challenge is to a response Rivera gave when Rivera
readministered defendant's Miranda rights. After defendant admitted that he
was present when Ferdinand was murdered, Rivera reviewed defendant's
Miranda rights a second time. Specifically, Rivera read each statement on the
form aloud to defendant and defendant confirmed that he had initialed and
understood each statement. When Rivera got to the last part of the Miranda
waiver form, the following exchange took place:
[Rivera]: Having these . . . these rights in mind, I wish
to give up these rights and make a voluntary statement
and answer any question. Is that your signature? Do
you understand?
[Defendant]: Does that mean I cannot change my
mind? Right?
[Rivera]: Uh? This, what this says is that you
understand. That having the rights in mind, you wish
to waive them and provide a voluntary statement to talk
to me and answer each question. Ok, is that right?
[Defendant]: Uh-huh.
[Rivera]: Ok, and that is your signature, right? Today's
date and the time when you signed it. Do you
understand everything?
[Defendant]: Yes.
A-3742-18
24
Rivera's comment was not directly responsive to defendant's question of
whether defendant could change his mind. Nevertheless, considered in the
totality of the circumstances, Rivera's response did not undermine defendant's
waiver of his Miranda rights and make the statement inadmissible. Rivera
expressly explained that defendant was agreeing to waive his rights and to
provide a voluntary statement. Rivera's comment was made after he had already
reviewed each of defendant's constitutional Miranda rights and had confirmed
with defendant that he understood those rights.
Finally, defendant contends that Rivera's comments that he would help
defendant rendered defendant's statement involuntary and inadmissible. The
specific comment defendant objects to was made after defendant admitted to
being present in the apartment with eight intruders when the murders occurred.
Rivera told defendant that he did not believe defendant was telling the whole
truth and Rivera then commented that "I also promised I am going to do
everything, everything I can to help you out; everything I can to help you out
today. But what I need from you is the truth, the truth." Shortly thereafter,
defendant admitted to stabbing Ferdinand but claimed he was forced to do it.
Rivera's comment to help defendant did not include any specific promise
of the type of help Rivera would provide. Moreover, we note that at other times
A-3742-18
25
during the questioning in December 2014, Rivera made other references to
helping defendant. Those comments were also not specific promises of help.
Rivera's comments were qualitatively different from a false promise of leniency
or a promise that defendant's statement would not be used against him.
Consequently, the comments were not like the statements or promises that have
been held to undermine Miranda warnings. See O.D.A.-C., 250 N.J. at 423.
Instead, Rivera's comment is more analogous to an appeal "to [the suspect's]
sense of decency and urging him to tell the truth for his own sake." L.H., 239
N.J. at 44 (alteration in original) (quoting State v. Miller, 76 N.J. 392, 405
(1978)). In short, Rivera's comments to help defendant were not of a nature to
cause defendant's will to be overborne and induce an involuntary statement.
We also reject defendant's argument raised in his pro se brief concerning
this court's decision in State v. Sims, 466 N.J. Super. 346 (App. Div. 2021). In
Sims, this court held that to make a knowing and intelligent waiver of his or her
Miranda rights, a suspect who is under arrest must be informed of the crime for
which he or she was arrested, even if no formal complaint had yet been issued.
466 N.J. Super. at 354. The New Jersey Supreme Court, however, reversed our
decision in Sims and held that a suspect needs to be advised about pending
charges but not that he or she might or likely will be charged with a crime. Sims,
A-3742-18
26
250 N.J. at 214-16. It is undisputable that defendant had no pending charges
when he initially appeared on December 16, 2014, to give a statement and take
a polygraph exam. Consequently, during defendant's December 2014 statement
there was no violation of the rule identified by the Supreme Court in Sims.
In summary, defendant was advised of his Miranda rights, he
acknowledged that he understood those rights, and he knowingly, intelligently,
and voluntarily waived those rights and provided a statement. Accordingly, the
trial court did not err in admitting the redacted videotape and transcript of
defendant's December 2014 statement.
B. Agent Hauger's Testimony.
Defendant argues that the trial court erred by admitting Agent Hauger's
expert testimony, which relied on PCMD to place the cell phone defendant was
alleged to possess within one-tenth of a mile of Ferdinand's apartment for nearly
two hours after Andre left the apartment on March 24, 2013. Defendant
contends that Hauger's testimony was not sufficiently reliable to be admitted
under N.J.R.E. 702.
Expert testimony is admissible when "scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue" and the proposed expert has the requisite
A-3742-18
27
"knowledge, skill, experience, training or education" to form an expert opinion.
N.J.R.E. 702. There are three requirements for the admission of expert
testimony:
(1) the intended testimony must concern a subject
matter that is beyond the ken of the average juror; (2)
the field testified to must be at a state of the art such
that an expert's testimony could be sufficiently reliable;
and (3) the witness must have sufficient expertise to
offer the intended testimony.
[State v. Kelly, 97 N.J. 178, 208 (1984).]
In criminal cases, New Jersey applies the Frye test to determine whether
the field testified to is generally accepted within the relevant scientific
community. State v. Cassidy, 235 N.J. 482, 491-92 (2018) (citing State v.
J.L.G., 234 N.J. 265, 280 (2008)); see also Frye v. United States, 293 F. 1013(D.C. Cir. 1923).
Our Supreme Court has explained:
"Proof of general acceptance within a scientific
community can be elusive," and "[s]atisfying the test
involves more than simply counting how many
scientists accept the reliability of the proffered
[technique]." General acceptance "entails the strict
application of the scientific method, which requires an
extraordinarily high level of proof based on prolonged,
controlled, consistent, and validated experience." The
proponent of the technique has the burden to "clearly
establish" general acceptance and may do so using "(1)
A-3742-18
28
expert testimony, (2) scientific and legal writings, and
(3) judicial opinions."
[Cassidy, 235 N.J. at 492 (alterations in original)
(citations omitted).]
"Whether expert testimony is sufficiently reliable to be admissible under
N.J.R.E. 702 is a legal question [that appellate courts] review de novo." J.L.G.,
234 N.J. at 301. "When reviewing a decision on the admission of scientific
evidence, an appellate court should scrutinize the record and independently
review the relevant authorities, including judicial opinions and scientific
literature." State v. Harvey, 151 N.J. 117, 167 (1997). The determination of
whether the witnesses qualify to present expert testimony is reviewed for an
abuse of discretion. State v. Rosales, 202 N.J. 549, 562-63 (2010).
Initially, we reject defendant's argument that Hauger's testimony was a net
opinion. "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids
the admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 53-54 (2015)
(quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). "An expert must
'give the why and wherefore' that supports the opinion, 'rather than a mere
conclusion.'" Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,
A-3742-18
29
144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,
372 (2011)).
Hauger testified as an expert in the field of historical cell-site analysis.
He identified the factual basis for his conclusions, explaining that he relied on
Sprint PCMD. We have held that the field of historical cell-site analysis is at a
state of the art that is sufficiently reliable to allow a qualified expert's testimony.
State v. Burney, 471 N.J. Super. 297, 321-23 (App. Div. 2022). In that regard,
numerous federal and other state courts have allowed the admission of expert
testimony regarding historical cell-site data analysis. See United States v. Hill,
818 F.3d 289, 298 (7th Cir. 2016); United States v. Schaffer, 439 Fed. App'x
344, 347 (5th Cir. 2011); United States v. Jones, 918 F. Supp. 2d, 1, 5 (D.D.C.
2013); United States v. Evans, 892 F. Supp. 2d 949, 956 (N.D. Ill. 2012); State
v. Johnson, 797 S.E.2d 557, 563 (W.Va. 2017); Pullin v. State, 534 S.E.2d 69,
71 (Ga. 2000); Wilson v. State, 195 S.W.3d 193, 200-02 (Tex. Crim. App. 2006).
Defendant does not challenge that historical cell-site analysis is at a state
of the art that is sufficiently reliable. Instead, defendant challenges the
reliability of the Sprint PCMD on which Hauger relied in giving his expert
opinion.
A-3742-18
30
Hauger testified that he is an FBI agent with special training and
experience as part of the FBI's Cellular Analysis Survey Team. Hauger
explained that historical call detail record analysis determines "a general
geographic area of where the phone was when it did something" and is not used
to precisely locate a phone. Hauger also acknowledged, as confirmed by the
testimony of a Sprint representative, that Sprint uses its PCMD for system
optimization and not for locating phones. Moreover, Sprint disclaims the
accuracy of PCMD in locating phones. Hauger also acknowledged that there
were no underlying validation studies for using PCMD to locate a phone.
Instead, Hauger explained that his opinion was based on his experience of using
PCMD to locate Sprint phones about 100 times throughout his career. He also
relied on the FBI's general experience where it has used PCMD to locate phones
in thousands of situations.
This case does not require us to determine whether Hauger's testimony
and his reliance on Sprint's PCMD was sufficiently reliable. Instead, we
determine that the admission of Hauger's expert testimony was not reversible
error. Any error in admitting Hauger's testimony was harmless given
defendant's own admissions. In his statement, defendant acknowledged he was
present when Ferdinand and Maritza were murdered. Hauger's opinion went to
A-3742-18
31
that very issue in that it placed a cell phone in defendant's possession in
Ferdinand's apartment when only defendant, Ferdinand, and Maritza were
present in the apartment. Consequently, Hauger's expert testimony only helped
to confirm defendant's own admission.
C. The Jury Charge and Verdict Sheet Concerning the Defense of
Duress.
Defendant contends that the jury instructions and verdict sheet failed to
properly inform the jury concerning the possible defense of duress related to the
murder of Ferdinand. We disagree and reject this argument.
"Appropriate and proper charges to a jury are essential for a fair trial."
State v. Lora, 465 N.J. Super. 477, 501 (App. Div. 2020) (quoting State v. Green,
86 N.J. 281, 287 (1981)). "Jury charges must provide a 'comprehensible
explanation of the questions that the jury must determine, including the law of
the case applicable to the facts that the jury may find.'" State v. Singleton, 211
N.J. 157, 181-82 (2012) (quoting Green, 86 N.J. at 287-88).
If a defendant does not object when a charge is given, "there is a
presumption that the charge was not error and was unlikely to prejudice the
defendant's case." State v. Montalvo, 229 N.J. 300, 320 (2017) (quoting
Singleton, 211 N.J. at 182). When there is no objection, we review for plain
error and "disregard any alleged error 'unless it is of such a nature as to have
A-3742-18
32
been clearly capable of producing an unjust result.'" State v. Funderburg, 225
N.J. 66, 79 (2016) (quoting R. 2:10-2). Plain error in a jury charge is "[l]egal
impropriety in the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the reviewing court and
to convince the court that of itself the error possessed a clear capacity to bring
about an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (alternation
in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).
In reviewing a claim of error related to a jury charge, "[t]he charge must
be read as a whole in determining whether there was any error." State v. Torres,
183 N.J. 554, 564 (2005) (citing State v. Jordan, 147 N.J. 409, 422 (1997)). In
addition, the error "must be evaluated in light 'of the overall strength of the
State's case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State v.
Chapland, 187 N.J. 275, 289 (2006)).
"A verdict sheet is intended for recordation of the jury's verdict and is not
designed to supplement oral jury instructions." State v. Gandhi, 201 N.J. 161,
196 (2010). When the defendant does not object to an interrogatory on the
verdict sheet, appellate courts review for plain error. State v. Vasquez, 265 N.J.
Super. 528, 547 (App. Div. 1993). The "inquiry focuses on whether the jury
understood the elements [of the offense] as instructed by the judge, and was not
A-3742-18
33
misled by the verdict sheet." Gandhi, 201 N.J. at 197. "When there is an error
in a verdict sheet but the trial court's charge has clarified the legal standard for
the jury to follow, the error may be deemed harmless." State v. Galicia, 210
N.J. 364, 387 (2012).
At the end of the presentation of evidence at defendant's trial, the trial
court determined that it would instruct the jury on the defense of duress
concerning the murder charge related to Ferdinand. The trial court reasoned that
the defense of duress had effectively been presented in defendant's statements
because during those statements defendant contended that he had been coerced
and threatened into stabbing Ferdinand. The court then instructed the jury on
duress using the Model Jury Charge for Duress and modifying it to the facts of
defendant's case. In that regard, the trial court instructed the jury:
The State has the burden to pro[ve] beyond a reasonable
doubt each element of the offense of murder. [The]
State also has the burden to disprove, beyond a
reasonable doubt, the defense of duress.
If you find the State has proven beyond a reasonable
doubt each element of the offense charged and that the
State has disproved beyond a reasonable doubt the
defense of duress, you must find the defendant guilty of
murder, and answer no to question [1a.] on the verdict
sheet.
If, however, you determine that the State has proven
beyond a reasonable doubt each element of the offense
A-3742-18
34
of murder of [Ferdinand], but has failed to disprove the
defense of duress, then you must find the defendant
guilty of manslaughter, and answer yes to question [1a.]
on the verdict sheet.
Finally, as I previously instructed, if you determine that
[the] State has failed to prove beyond a reasonable
doubt one or more of the elements of murder of
[Ferdinand], you must find the defendant not guilty of
murder.
Question one on the verdict sheet asked the jury how it found as to whether
defendant committed the murder of Ferdinand. The jury then had the option of
answering not guilty or guilty. Question 1a. of the verdict sheet asked the jury
whether it found that defendant had committed the murder of Ferdinand
"because he was coerced to do so by the use of, or a threat to use, unlawful force
against his person or the person of another, which a person of reasonable
firmness in his situation would have been unable to overcome?" The jury then
had the option of answering no or yes.
Defendant did not object to the jury charge or the verdict sheet concerning
the defense of duress. On appeal, however, defendant now argues that " [t]he
manner in which duress was presented to the jury on the verdict sheet, and in
the instruction" deprived him of a fair trial. In that regard, defendant contends
that duress works like passion/provocation and that the defense of duress should
A-3742-18
35
have been presented to the jury in the same way that passion/provocation would
have been presented.
We reject defendant's argument and hold that the trial court properly
instructed the jury that the State had the burden to disprove duress beyond a
reasonable doubt. We also hold that the jury instructions concerning duress,
which were both read to and given to the jury, were correct. The instructions
clearly explained that duress acted as a defense, which would have reduced the
charge of murder to manslaughter. See N.J.S.A 2C:2-9(b) (explaining that "[i]n
a prosecution for murder, the defense [of duress] is only available to reduce the
degree of the crime to manslaughter").
Likewise, there was no plain error on the verdict sheet. The verdict sheet
was crafted to ensure that the jury did not find defendant guilty of murder
without considering the defense of duress. In addition, while the verdict sheet
itself did not mention manslaughter, the instructions clearly did. Accordingly,
we find no plain error in the jury instructions or verdict sheet concerning the
defense of duress.
D. The Instructions Concerning the Triggering and Aggravating
Factors Related to the Murder of Maritza.
In instructing the jury concerning the charge of the murder of Maritza, the
trial court explained that the jurors had to unanimously find defendant guilty of
A-3742-18
36
purposely or knowingly causing the death of Maritza. The trial court also
instructed the jury that they were to consider the triggering and aggravating
factors that, if found, would require defendant to be sentenced to life without
the possibility of parole. Accordingly, the trial court instructed the jury that
they must unanimously determine whether defendant had acted by his own
conduct in causing the death of Maritza. The court also instructed the jury that
they were to unanimously determine whether defendant had committed the
murder of Maritza for the purpose of escaping detection of or apprehension for
the murder of Ferdinand and whether defendant had committed the murder of
Maritza while he was engaged in the commission of, or an attempt to commit,
the murder of Ferdinand. Defendant did not object to those instructions or the
related questions on the verdict sheet.
The jury then found that defendant had murdered Maritza. The jury also
found the triggering factor that defendant acted by his own conduct in causing
the death of Maritza. In addition, the jury found two aggravating factors , finding
that defendant had committed the murder of Maritza for the purpose of escaping
detection of or apprehension for the murder of Ferdinand and defendant had
murdered Maritza while he was engaged in the murder of Ferdinand. Those
findings required that defendant be sentenced to life without the possibility of
A-3742-18
37
parole for the murder of Maritza. See N.J.S.A. 2C:11-3(b)(4); State v. Baylor,
423 N.J. Super. 578, 597 (App. Div. 2011).
On this appeal, defendant argues that his life-without-parole sentence for
the murder of Maritza should be reversed because the jury was not told that it
could reject the triggering or aggravating factors without being unanimous. We
have previously rejected that argument. See State v. Troxell, 434 N.J. Super.
502, 519 (App. Div. 2014). In Troxell, we held that trial courts are not required
to provide a non-unanimous instruction regarding the triggering factor that made
defendant eligible for a mandatory life sentence without parole. Ibid. We also
noted that the defendant in Troxell did not argue that a non-unanimous
instruction was required when the jury was considering the aggravating
sentencing factors. Id. at 521 n.7. Nevertheless, we explained that the rationale
for our decision in Troxell would apply equally to an argument concerning a
non-unanimous instruction related to aggravating sentencing factors. Ibid. In
short, as defendant concedes, to prevail on his argument we would have to
reverse our decision in Troxell.
We decline to reverse our decision in Troxell. Instead, we agree with the
rationale in Troxell and hold that it equally applies to aggravating factors, as
well as triggering factors, for the purpose of determining whether defendant
A-3742-18
38
should be sentenced to life without parole. In Troxell, we were "firmly
convinced that a jury need not be instructed that it may return a non -unanimous
verdict on any triggering factor under the current statutory scheme for murder
in New Jersey." Id. at 521. Troxell was decided in 2014 and since then the
Legislature has not amended the statute to impose a requirement for non -
unanimous instructions for cases being considered for a life-without-parole
sentence under N.J.S.A. 2C:11-3(b)(4). We presume that the Legislature is
aware of our decision in Troxell and, if they disagreed, they would have acted
to change the statute. State v. J.V., 242 N.J. 432, 445 (2020). Accordingly, we
reject defendant's argument and affirm his sentence of life without parole on the
conviction for the murder of Maritza.
E. The Sentence and Restitution.
As previously noted, defendant's weapon convictions were merged into
his murder convictions. On the conviction for the murder of Ferdinand,
defendant was sentenced to life in prison with thirty years of parole ineligibility.
On the conviction for the murder of Maritza, defendant was sentenced to life in
prison without the possibility of parole. The sentence for the murder of
Ferdinand was ordered to be served consecutive to the sentence for the murder
of Maritza. Defendant was also ordered to pay $5,000 in restitution to the
A-3742-18
39
Victims of Crime Compensation Office, which has paid for the funeral of
Ferdinand.
In his supplemental brief, defendant challenges his sentence contending
that (1) he was not given an opportunity to make a statement; (2) he should have
been sentenced to a youth correctional facility; (3) his sentences should have
been run concurrently; (4) additional mitigating factors should have been found
and his sentence should have been reduced to the second-degree range; (5) his
sentence constituted cruel and unusual punishment; and (6) his age (defendant
was twenty-two years old when he committed the murders) should have been
considered and mitigating factor fourteen should be applied retroactively. In
addition, defendant challenges the award of restitution because the sentencing
court did not make a finding that defendant had the ability to pay restitutio n.
We reject most of these arguments and determine that they lack sufficient
merit to warrant discussions in a written opinion. See R. 2:11-3(e)(2). Two
matters, however, require a remand.
First, we remand for a resentencing on the conviction for the murder of
Ferdinand. In doing so, we note that the State concedes that that sentence was
incorrect. On the conviction for the murder of Ferdinand, defendant was
sentenced to life in prison with thirty years of parole ineligibility. The murder
A-3742-18
40
statute, N.J.S.A. 2C:11-3(b)(1), states that if convicted of murder, a person
"shall be sentenced . . . to a term of [thirty] years, during which the person shall
not be eligible for parole, or be sentenced to a specific term of years which shall
be between [thirty] years and life imprisonment of which the person shall serve
[thirty] years before being eligible for parole." A sentence for murder, however,
is also subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Accordingly, the murder statute and NERA must be read together, and a
sentencing court can impose a term of between thirty years and life but must set
a minimum term of ineligibility of either eighty-five percent of the term or thirty
years, whichever is longer. See Cannel, N.J. Criminal Code Annotated, cmt. 4
on N.J.S.A. 2C:11-3 (2021) (explaining that a sentencing court "may set a
maximum term between [thirty] years and life and then must set a minimum
term of [eighty-five percent] of the term set or [thirty] years, whichever is
longer").
Under NERA, "a sentence of life imprisonment shall be deemed to be
[seventy-five] years." N.J.S.A. 2C:43-7.2(b). Accordingly, the period of parole
ineligibility for defendant's conviction for the murder of Ferdinand should have
been eighty-five percent of seventy-five years or sixty-three years and nine
months. See State v. Ramsey, 415 N.J. Super. 257, 272 (App. Div. 2010)
A-3742-18
41
(remanding case for resentencing where defendant was convicted of murder and
the sentencing court imposed a life sentence with a thirty-year period of parole
ineligibility instead of sixty-three years and nine months as required by NERA).
Because we are remanding for resentencing on the conviction for the
murder of Ferdinand, the court will also need to apply and consider mitigati ng
factor fourteen. See State v. Lane, 251 N.J. 84, 97 n.3 (2022). The sentencing
court should also impose the five-year term of parole supervision as required by
N.J.S.A. 2C:43-7.2(c). In remanding for a resentencing on the murder
conviction of Ferdinand, we recognize that the resentence will have no practical
effect. We have affirmed the conviction and sentence for the murder of Maritza.
Because the sentence on that conviction was life imprisonment without the
possibility of parole, the resentencing on the conviction for the murder of
Ferdinand will have no impact on the total amount of time that defendant will
serve. Nevertheless, the sentence for the conviction of the murder of Ferdinand
should comply with the governing statutes.
Second, we remand and direct the sentencing court to conduct an ability-
to-pay hearing concerning the restitution award. See N.J.S.A. 2C:44-2(b).
Although N.J.S.A. 2C:11-3c states that a defendant "shall be required to pay
restitution," N.J.S.A. 2C:44-2 sets forth the criteria for imposing restitution.
A-3742-18
42
Sections (b) and (c) of N.J.S.A. 2C:44-2 require an assessment of a defendant's
ability to pay.
III.
In summary, we affirm all of defendant's convictions. We also affirm
defendant's sentence for the conviction of the murder of Maritza. We remand
for the limited purposes of resentencing defendant on the conviction for the
murder of Ferdinand and for an ability-to-pay hearing on the restitution award.
Affirmed and remanded. We do not retain jurisdiction.
A-3742-18
43