STATE OF NEW JERSEY VS. DENNIS THIGPEN, JR.(10-07-1359, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-2490-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DENNIS THIGPEN, JR.,
Defendant-Appellant.
___________________________
Argued May 31, 2017 — Decided August 11, 2017
Before Judges Koblitz, Rothstadt and Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
10-07-1359.
Tamar Y. Lerer, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. Lerer, of counsel and on the brief).
Shiraz Imran Deen, Assistant Prosecutor,
argued the cause for respondent (Joseph D.
Coronato, Ocean County Prosecutor, attorney;
Samuel Marzarella, Chief Appellate Attorney,
of counsel; Mr. Deen, Assistant Prosecutor,
on the brief).
PER CURIAM
A jury convicted defendant Dennis Thigpen, Jr. of first-
degree conspiracy to commit murder, N.J.S.A. 2C:11-3(a) and
N.J.S.A. 2C:5-2 and second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b).1 Defendant had been indicted for murder. The
State's theory was that the victim was killed because the Bloods
street gang believed he had told the police about a member's
participation in an armed robbery of a restaurant. After two hung
juries on murder and possession of a gun for an unlawful purpose,
the court dismissed those charges at the State's request. On
appeal, defendant argues the court made various incorrect and
prejudicial evidentiary rulings, improperly allowed the jury to
view recorded witness statements in the jury room, and gave him
an overly harsh sentence. After reviewing the record in light of
the contentions advanced on appeal, we affirm the conviction and
the sentence, but remand for the limited purpose of correcting a
typographical error in the judgment of conviction.
Prior to trial, the court granted the State's motion to admit
gang evidence under N.J.R.E. 404(b) as proof of motive. The
evidence consisted of expert testimony concerning the history,
1
The judgment of conviction erroneously states that defendant was
convicted of possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4(a).
2 A-2490-14T2
makeup, hierarchy and general background information of the
Bloods.
The trial revealed the following facts. Defendant's co-
defendant, Dyshon Ragland,2 held the second-highest rank within
the Bloods. At least one hundred people reported to him. Ragland
lived with his girlfriend, Z.J.,3 in her apartment at the High
Point apartment complex where he engaged in gang activity.
Bloods member N.R. testified that on February 27, 2008,
Ragland committed an armed robbery of a restaurant in Toms River.
After the robbery, N.R. and Ragland escaped in a car with other
Bloods members. They discussed the robbery in the car, in the
presence of eighteen-year-old Bloods member Anthony Skyers. N.R.
and Ragland were both charged with the robbery in May 2008.
On the afternoon of June 5, 2008, Skyers was arrested with
another person for underage possession of alcohol. Skyers was
released the same day with a summons, while the other man was
jailed for the additional charge of possession of marijuana. A
police officer testified that Skyers did not provide any
2
Ragland was tried separately and, after being found guilty of
murder and related offenses, was sentenced to forty-five years in
prison.
3
Given the nature of the crime, we use initials in place of the
names of the State's witnesses.
3 A-2490-14T2
information about Ragland's participation in the armed robbery of
the restaurant.
Ragland's girlfriend Z.J. testified that later that evening,
she and Ragland were at her apartment when Ragland received
"between five to seven phone calls." Ragland "seemed to be very
upset" at the nature of the phone calls. He told Z.J., referring
to Skyers, "I hope he didn't do what I think he did, because if
he did, I'm going to have to shut him up." Ragland left the
apartment and returned alone. Fellow Bloods member C.B. arrived
at the apartment shortly thereafter. Ragland and C.B. then left
together.
Ragland returned alone to the apartment shortly before 1:00
in the morning. Five minutes later, defendant arrived at the
apartment. Defendant's "eyes were big like in shock" and he was
"very sweaty." According to Z.J., defendant looked "[k]ind of
upset" but more "frightened." Z.J. asked defendant why he
"look[ed] like he killed someone." Defendant did not answer. He
and Ragland went to the bathroom together, shut the door and talked
with the water running. Z.J. could not hear what they said.
Defendant left the apartment five minutes later.
Later that morning, Skyers was found dead in the woods behind
the High Point apartment complex with two gunshot wounds in the
4 A-2490-14T2
back of his head. A witness who lived near the scene reported
hearing the gunshots at approximately 9:20 p.m. the night before.
More than a year after the murder, C.B. and his cousin, B.N.,
also a Bloods member, were arrested for multiple counts of
unrelated armed robberies. The State called both men as witnesses.
C.B. testified that on June 5, 2008, Ragland called him and ordered
him to go to Ragland's apartment in High Point. When C.B. arrived
at Ragland's apartment that night, Ragland told C.B. that he wanted
to show C.B. something. Ragland took C.B. to the woods behind the
High Point apartment complex and showed C.B. Skyers's dead body.
Ragland told C.B. that he "killed [Skyers]," that "[Skyers] had
to go" and that "this is what happens when somebody snitches."
C.B. testified that before Skyers's murder in June 2008,
defendant was trying to become a member of the Bloods. By the
fall of 2008, defendant was a new member of the Bloods and
immediately held a high-ranking positon, which was unusual because
new members usually start at a low-level position and work their
way up by committing crimes. Other Bloods members disapproved of
defendant's fast assent to a high-ranking level.
In September 2008, defendant told some members that he gained
his high rank because he killed Skyers. C.B. testified that
defendant talked about Skyers's murder a second time while he,
defendant and other Bloods members were riding in a car on their
5 A-2490-14T2
way to Newark. Defendant complained that the Bloods members were
not showing him the respect he deserved for killing Skyers.
C.B.'s cousin B.N. testified that in the end of June or early
July 2009, defendant spoke about himself, saying "he's not a bad
person" but that "the way [he] was raised, when people snitch on
you, you got to handle that." B.N. asked defendant if he was
talking about Skyers and defendant responded "yeah." Defendant
also told B.N. the way he got his rank was "the whole thing with
[Skyers]."
R.C., defendant's girlfriend who lived with him at the time
of the murder, gave a statement to the police thirteen months
after the murder. Six months before the statement, defendant told
her that he killed an eighteen-year-old boy. Defendant said he
killed Skyers because Skyers was suspected to have "snitched" or
was going to "snitch" on Ragland. Defendant thought Skyers was
an informant because Skyers was released from jail shortly after
having been arrested. R.C. said defendant admitted to murdering
Skyers because defendant was "stressed out" about the killing.
At trial, R.C. recanted her prior statement, explaining that
she had lied to the police about defendant's involvement in the
Skyers's murder because the police threatened that if she did not
give a statement, they would arrest her and take her children
6 A-2490-14T2
away. When asked why she told the police that defendant murdered
Skyers, R.C. responded, "That's what I heard on the streets."
J.V. testified at trial that she lived with R.C. and defendant
in 2008. She and defendant "were real close." J.V. testified
defendant revealed to her that "[h]e murdered the boy" in the
woods. Defendant told J.V.:
he lured [Skyers] to the woods and told
[Skyers] to walk up ahead of him and he shot
[Skyers]. The first time the safety was on
the gun, it didn't go off and [Skyers] turned
around and said what are you doing?
[Defendant] said, I'm just kidding, go ahead.
And then [Skyers] turned around and
[defendant] shot him again.
According to J.V., defendant murdered Skyers because Skyers
was suspected to have "ratted out [defendant's] friend that was
locked up, like a snitch." Defendant said before the murder, the
Bloods members were debating about who would kill Skyers and
defendant "was the only one that had the balls to do it." Defendant
bragged: "I killed the kid, I could do it again, it's nothing to
kill somebody." Defendant talked about murdering Skyers "[a]lmost
every day."
After his arrest in July 2009, defendant gave two video-
recorded statements to the police denying that he murdered Skyers.
Defendant stated at the time of the murder he was in North Carolina
and did not return to New Jersey until August 2008. Defendant
told the police that before the murder, Ragland called him while
7 A-2490-14T2
he was in North Carolina and asked him to kill Skyers because
Ragland suspected that Skyers had snitched on him. Defendant said
he refused. Ragland called defendant the next day and told
defendant that Skyers was dead. Defendant stated Ragland "put his
name out there" as the person who killed Skyers and he agreed to
go along with it to divert suspicion away from Ragland. Defendant
did not testify at trial, but the video statements were admitted
into evidence.
Defendant raises the following issues on appeal:
POINT I: EXTENSIVE TESTIMONY REGARDING THE
BLOODS, INTRODUCED IN VIOLATION OF N.J.R.E.
404(b) AND 702, WAS SO INFLAMMATORY THAT IT
WOULD HAVE BEEN IMPOSSIBLE FOR A JURY TO
DECIDE THE CASE FAIRLY AND IMPARTIALLY.
HENCE, DEFENDANT'S CONSTITUTIONAL RIGHTS TO
DUE PROCESS AND A FAIR TRIAL WERE VIOLATED AND
HIS CONVICTIONS MUST BE REVERSED.
POINT II: EXTENSIVE TESTIMONY ABOUT AN ARMED
ROBBERY COMMITTED BY A GANG MEMBER WAS UNDULY
PREJUDICIAL AND SHOULD NOT HAVE BEEN ADMITTED.
ITS IMPROPER ADMISSION NECESSITATES THE
REVERSAL OF DEFENDANT'S CONVICTIONS.
(Partially Raised Below)
POINT III: THE IMPROPER ADMISSION OF RAMPANT
HEARSAY TESTIMONY THROUGHOUT THE TRIAL
PREJUDICED THE DEFENDANT AND NECESSITATES
REVERSAL OF HIS CONVICTIONS. (Partially
Raised Below)
POINT IV: BECAUSE NO EVIDENCE WAS PRESENTED
OF AN AGREEMENT TO KILL THE VICTIM, THE TRIAL
COURT ERRED IN DENYING THE DEFENDANT'S MOTION
FOR A JUDGMENT OF ACQUITTAL ON THE CONSPIRACY
CHARGE.
8 A-2490-14T2
POINT V: BECAUSE THE TRIAL COURT'S DECISION
TO ALLOW THE JURY UNFETTERED ACCESS TO VIDEO-
RECORDED STATEMENTS WAS ERRONEOUS,
DEFENDANT'S CONVICTIONS MUST BE REVERSED.
POINT VI: THE CUMULATIVE IMPACT OF THE ERRORS
DENIED DEFENDANT A FAIR TRIAL. (Not Raised
Below)
POINT VII: DEFENDANT'S SENTENCE IS EXCESSIVE
AND MUST BE VACATED BECAUSE THE COURT FAILED
TO ADDRESS MITIGATING FACTORS OR EXPLAIN ITS
REASONING FOR FINDING AGGRAVATING FACTORS.
I
Defendant argues in Point I that the jury improperly heard
extensive testimony from multiple lay witnesses and an expert
witness about the Bloods and defendant's association with the
Bloods. Defendant argues that this testimony violated N.J.R.E.
404(b) because it was "extraordinarily prejudicial" to defendant.
He further argues the expert testimony also violated N.J.R.E. 702
because it was unreliable and cumulative, reiterating testimony
about the Bloods presented by other witnesses.
Defendant also argues as plain error that the court's jury
instruction in the preliminary and final charge regarding gang
testimony violated State v. Blakney, 189 N.J. 88, 93 (2006), which
requires the court to issue a curative instruction at the time
other crimes evidence is presented. He argues the court's
instruction during its final charge, was misleading.
9 A-2490-14T2
We give great deference to the decision of the trial court
on the admissibility of evidence under N.J.R.E. 404(b). State v.
Barden, 195 N.J. 375, 390 (2008). "Only where there is a clear
error of judgment should the trial court's conclusion with respect
to that balancing test be disturbed." Id. at 391 (quoting State
v. Marrero, 148 N.J. 469, 483 (1997)).
N.J.R.E. 404(b) provides that "evidence of other crimes,
wrongs, or acts is not admissible to prove the disposition of a
person in order to show that such person acted in conformity
therewith. Such evidence may be admitted for other purposes, such
as proof of motive . . . ." In State v. Cofield, our Supreme
Court enunciated a four-part test for the admissibility of other
crimes or wrongs evidence: "(1) The evidence of the other crime
must be admissible as relevant to a material issue; (2) It must
be similar in kind and reasonably close in time to the offense
charged; (3) The evidence of the other crime must be clear and
convincing; and (4) The probative value of the evidence must not
be outweighed by its apparent prejudice." State v. Cofield, 127
N.J. 328, 338 (1992).
The admissibility of expert testimony is governed by N.J.R.E.
702. "If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
10 A-2490-14T2
knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." N.J.R.E. 702
requires that: "(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. Jenewicz, 193 N.J. 440, 454 (2008).
In Torres, the defendant was a gang member involved in
ordering the murder of one of the gang's other members. State v.
Torres, 183 N.J. 554, 559-62 (2005). The issue before the Court
was "whether an experienced police officer who specialize[d] in
street gang investigations should be permitted to give expert
testimony on 'gang' hierarchy, organization, and discipline." Id.
at 559. The Court held that the trial court did not abuse its
discretion in finding the officer was qualified as an expert and
his testimony would be helpful for the jury. Id. at 579. The
Court held, "We are in accord with those jurisdictions that have
concluded that testimony explaining the structure, organization,
and procedures of street gangs would be helpful to a jury's
understanding of the relevant issues at trial." Ibid.
Here, the trial court analyzed the Cofield factors in reaching
its decision to admit evidence about the Bloods. Regarding the
11 A-2490-14T2
first Cofield factor, the court found that the evidence was
relevant to show why defendant murdered Skyers, who defendant
asserted he did not know, and to show the pecuniary benefit of the
higher rank that defendant gained from committing the murder.
The court noted that where motive is at issue, satisfaction
of the second prong of Cofield, requiring similarity in crime and
closeness in time, is not required, yet substantively satisfied
nonetheless. State v. Williams, 190 N.J. 114, 122 (2007); State
v. Goodman, 415 N.J. Super. 210, 230 (App. Div. 2010), certif.
denied, 205 N.J. 78 (2011). As to the third prong, the court
found, based on C.B.'s testimony, "a reasonable juror could be
convinced beyond a reasonable doubt that the defendant committed
this offense for the reasons stated . . . at the direction of
Dyshon Ragland."
The court also found the evidence satisfied the fourth prong
of Cofield, that the probative value of the gang evidence
outweighed its prejudicial impact. The court explained why it
thought the State's gang expert, Keith Bevacqui, would offer
valuable evidence as to motive:
the probative value is very great, that is
this evidence explains why someone would
murder someone, kill someone, who they don't
know, and offer[s] an explanation, that is why
someone would do that at the direction of
another person and what discipline he would
face and what pecuniary benefit he would
receive for committing such an act. I think
12 A-2490-14T2
that is purely testimony that is required to
be provided by an expert and I'm satisfied
that in reviewing the report that was provided
and admitted into evidence for purposes of
this hearing of Mr. Bevacqui, Keith Bevacqui
of the New Jersey State Police, that his
report provides the answer, provides an
explanation as well as a background as to the
Bloods and the relevance and weight of the
pecuniary benefit that was given to the
defendant for his actions and what
disciplinary actions he faced if he did not
follow out the order.
During preliminary instructions to the jury, the court
cautioned the jury regarding the use of this evidence:
Now, when we were selecting the jury in this
case, I told you that during the course of the
trial you will hear references to an
allegation that the decedent, Anthony Skyers,
and the defendant, Dennis Thigpen, were
members of a street gang. It will be up to
you to determine if that is true or not true,
and whether if it is true, that it has any
relevance to a possible motive for the charges
set forth in the indictment. I can tell you,
however, that you can never use that evidence
to conclude that the defendant has a
predisposition to commit any crimes or that
simply because you find he was a member of a
gang or that the victim may have been a member
of a gang that the defendant, therefore, must
be guilty of the crimes charged in the
indictment.
During the final charge, the court gave a similar instruction:
[Y]ou may not use this evidence to decide that
the defendant has a tendency to commit crimes
or that he is a bad person. That is, you may
not decide that just because the defendant is
a member of the street gang, or that decedent
was a member of a street gang, the defendant
must be guilty of the present crimes. I have
13 A-2490-14T2
admitted this evidence only to help you decide
the specific question of motive. You may not
consider it for any other purpose and may not
find the defendant guilty now simply because
the State has offered evidence that he was a
member of a street gang.
Although inherently prejudicial, testimony about defendant's
involvement with the Bloods was directly related to the State's
well-supported theory that defendant killed Skyers at Ragland's
direction because defendant wanted to join the Bloods. Evidence
about the Bloods, its activities and its hierarchical system were
probative to defendant's motive. As in Torres, supra, 183 N.J.
at 573, the gang expert's testimony was helpful to the jury's
understanding of a relevant issue. Further, the court twice gave
clear jury instructions to eliminate any undue prejudice. Given
the volume of gang references throughout the trial, it did not
make sense to point each reference out to the jury with a
cautionary instruction.
II
Defendant argues in Point II as "partially raised" at the
trial level, that testimony regarding Ragland's robbery of a
restaurant was unduly prejudicial and violated N.J.R.E. 403. Under
N.J.R.E. 403, relevant evidence may be excluded if its probative
value is substantially outweighed by the risk of undue prejudice.
Testimony about Ragland's robbery was relevant to the State's
theory that Ragland ordered defendant to murder Skyers because
14 A-2490-14T2
Skyers was suspected of informing on Ragland about the robbery.
Defendant had not robbed the restaurant and the court determined
the evidence of Ragland's robbery was not unduly prejudicial to
defendant.
III
Defendant argues in Point III that inadmissible hearsay
elicited throughout the trial violated N.J.R.E. 802 and
inappropriately bolstered the State's case. Hearsay is an out-
of-court statement offered for the truth of the matter asserted.
N.J.R.E. 801(c). Hearsay is inadmissible unless it fits within
an exception. N.J.R.E. 802.
Defendant argues for the first time on appeal that R.C.'s
testimony that she "heard on the streets" that defendant was the
killer was improper. Defense counsel did not object to this
testimony at trial. When a defendant raises an objection for the
first time on appeal we reverse only if the error "is clearly
capable of producing an unjust result." R. 2:10-2.
The State logically asserts that defense counsel did not
object to R.C.'s statement for strategic reasons because it
benefited defendant by offering an alternative source for the
information R.C. provided the police. R.C. recanted on the stand
and justified how she would know enough about the situation to
tell the police defendant had confessed to killing Skyers. R.C.'s
15 A-2490-14T2
alternative explanation of why she falsely gave the police a
statement incriminating defendant was not clearly capable of
producing an unjust response.
Defendant further argues that C.B. also offered inadmissible
hearsay testimony when he said, that "people" did not "approve of
[defendant] having [a high gang] status," and that "some people
felt some type of way about him killing [Skyers] that like it was
wrong. Then after that, mostly everyone else just felt like people
still did not respect the fact that even if he did it, that how,
like how he was going to just still pass everyone else in rank."
Defendant argues the court erroneously overruled trial
counsel's objection to C.B.'s testimony when it concluded the
testimony was not offered for the truth of the matter asserted,
but to "give context to a conversation." C.B.'s testimony was not
inadmissible hearsay because the State was not attempting to prove
the truth of C.B.'s statements, that other Bloods members were
dissatisfied, but rather to provide context for C.B.'s testimony
regarding defendant's spontaneous confession to Skyers's murder.
Defendant was explaining his rapid ascension through the ranks.
Defendant further contends that Z.J.'s testimony that on the
night of the murder, she told defendant that he "look[ed] like he
killed someone" was inadmissible hearsay because the statement
constituted inadmissible lay opinion testimony, in violation of
16 A-2490-14T2
N.J.R.E. 701. Defendant argues that Z.J.'s testimony was
particularly prejudicial because her testimony was the only
testimony linking Ragland and defendant on the night of the murder.
Defense counsel did not object to the statement at trial and thus
raises the issue as plain error. It is incredible that the jury
would believe Z.J. knew what someone looked like after committing
a murder. Z.J.'s testimony was not inadmissible lay opinion but
rather a colloquial description of an excited and scared person.
Z.J. made the statement while commenting that defendant was
"sweaty" and "upset."
We review the trial court's evidentiary rulings for an abuse
of discretion. State v. Gorthy, 226 N.J. 516, 539 (2016). None
of the rulings complained of by defendant constitutes error that
would affect the outcome of the trial.
IV
Defendant argues in Point IV that the State presented no
evidence of an agreement between defendant and anyone else and
therefore defendant's motion for acquittal on the conspiracy
charge should have been granted. When ruling on a motion for a
judgment of acquittal, the trial court must determine whether,
viewing the State's evidence in its entirety and giving the State
the benefit of all favorable testimony as well as favorable
inferences which could be reasonably drawn, a reasonable jury
17 A-2490-14T2
could find guilt of the charge beyond a reasonable doubt. Rule
3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967). We apply the
same standard used by the trial court in its determination of a
defendant's motion for a judgment of acquittal. State v. Tindell,
417 N.J. Super. 530, 549 (App. Div. 2011), certif. denied, 213
N.J. 388 (2013).
Defendant was charged with conspiracy to commit murder.
A person is guilty of conspiracy with another
person or persons to commit a crime if with
the purpose of promoting or facilitating its
commission he: (1) Agrees with such other
person or persons that they or one or more of
them will engage in conduct which constitutes
such crime or an attempt or solicitation to
commit such crime; or (2) Agrees to aid such
other person or persons in the planning or
commission of such crime or of an attempt or
solicitation to commit such crime.
[N.J.S.A. 2C:5-2(a).]
In denying defendant's motion for a judgment of acquittal,
the court held that a reasonable jury could find defendant guilty
of conspiracy beyond a reasonable doubt based on trial testimony,
particularly that of Z.J., who testified that she saw defendant
on the evening of the murder, he appeared upset and had a secret
conversation with Ragland, the alleged co-conspirator.
Evidence supported the State's claim that defendant sought
to attain membership and a high position within the Bloods and had
confessed to murder on numerous occasions. Evidence suggested
18 A-2490-14T2
defendant murdered Skyers after Skyers was thought to have informed
the police about Ragland's participation in the restaurant
robbery. Ragland had the necessary authority to order an aspiring
member of the Bloods to carry out a murder. J.V. testified
defendant told her the Bloods had been debating about who was
going to murder Skyers and defendant was the only one with the
"balls" to do it. From the evidence presented at trial, the jury
could have made a reasonable inference that defendant had conspired
with Ragland to murder Skyers.
V
In Point V, defendant argues the court's decision to allow
the jury unregulated access to two videotaped statements of
defendant and one audiotaped statement of R.C., who recanted at
trial, was erroneous. The court overruled defendant's objection,
deciding the jury's unfettered access to the videotaped statements
did not violate State v. Burr, 195 N.J. 119 (2008). Defendant
argues that the court's decision did violate Burr and was
prejudicial because the court could not ensure that the videotape
was not unduly emphasized by the jury.
"The test of whether an error is harmless depends upon some
degree of possibility that it led to an unjust verdict. The
possibility must be real, one sufficient to raise a reasonable
doubt as to whether the error led the jury to a result it otherwise
19 A-2490-14T2
might not have reached." State v. Bankston, 63 N.J. 263, 273
(1973).
In Burr, the Court noted that
allowing a jury unfettered access to
videotaped witness statements could have much
the same prejudicial effect as allowing a jury
unrestricted access to videotaped testimony
during deliberations. The danger posed is
that the jury may unfairly emphasize [the
child victim]'s videotaped statements over
other testimony presented at trial, including
her own cross-examination.
[Burr, supra, 195 N.J. at 134.]
In Burr, a child's videotaped statement was introduced by the
State under the "tender years" exception to the hearsay rule. Id.
at 131; see also N.J.R.E. 803(c)(27). The court held that "any
playback of the videotape must occur in open court." Id. at 135.
This case did not involve child-sex-abuse, where the reliability
of pretrial statements of children is particularly problematic.
See State v. Michaels, 136 N.J. 299, 317 (1994).
The trial court determined that defendant's videotaped
statements did not fall within Burr because defendant did not
testify at trial. Thus, the videotapes could not take on a greater
weight than the pertinent trial testimony, as in Burr. The tapes
were not introduced by the State to challenge the veracity of, or
to enhance trial testimony, and the tapes in fact contained an
exculpatory explanation of defendant's out-of-court admissions.
20 A-2490-14T2
R.C.'s audiotaped statement implicating defendant was
inconsistent with her trial recantation, but because it was not
visual, did not have the impact of her trial testimony or a
videotape. The audiotape was also not the most significant
evidence against defendant. Defendant's detailed admission to
J.V. was much more compelling evidence of his guilt. See, e.g.,
State v. Morton, 155 N.J. 383, 416 (1998), cert. denied, 532 U.S.
931, 149 L. Ed. 2d 396, 121 S. Ct. 1380 (2001). Although the
court's decision to allow the jury unfettered access to defendant's
videotaped statements and R.C.'s audiotaped statement did not
comport with the intent of Burr, the decision did not constitute
harmful error given the plethora of evidence against defendant.
See R. 2:10-2; State v. Weston, 222 N.J. 277, 300 (2015) (finding
a lack of plain error in two trials where the court allowed the
jury unfettered access to a videotaped statement). We perceive
no other error in the trial and therefore reject defendant's Point
VI, where he argues that cumulative error rendered the trial
unfair.
VI
The court sentenced defendant to an aggregate prison term of
seventeen years with an 85% parole disqualifier pursuant to the
No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant argues in
Point VII that the trial court did not spend sufficient time
21 A-2490-14T2
explaining its reasons for finding mitigating and aggravating
factors.
"Appellate courts review sentencing determinations in
accordance with a deferential standard." State v. Fuentes, 217
N.J. 57, 70 (2014). We are bound to affirm a sentence
even if [we] would have arrived at a different
result, as long as the trial court properly
identifies and balances aggravating and
mitigating factors that are supported by
competent credible evidence in the record.
Assuming the trial court follows the
sentencing guidelines, the one exception to
that obligation occurs when a sentence shocks
the judicial conscience.
[State v. Cassady, 198 N.J. 165, 180 (2009)
(quoting State v. O'Donnell, 117 N.J. 210,
215-16 (1989)).]
The court appropriately reviewed and balanced the aggravating
and mitigating factors prior to imposing a sentence that does not
shock the judicial conscience. We remand only to correct the
judgment of conviction to reflect a conviction for illegal
possession of a gun, N.J.S.A. 2C:39-5(b), rather than possession
of a gun for an unlawful purpose, N.J.S.A. 2C:39-4(a). We do not
retain jurisdiction.
Affirmed. Remanded only to correct the statutory reference
in the judgment of conviction.
22 A-2490-14T2