STATE OF NEW JERSEY IN THE INTEREST OF J.A.W., JR. (FJ-07-0920-17 AND FJ-07-0962-17, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1686-18
STATE OF NEW JERSEY
IN THE INTEREST OF J.A.W., JR.,
a juvenile.
______________________________
Argued January 10, 2022 – Decided March 17, 2022
Before Judges Sabatino and Rothstadt.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
Nos. FJ-07-0920-17 and FJ-07-0962-17.
Brian P. Keenan, Assistant Deputy Public Defender,
argued the cause for appellant J.A.W., Jr. (Joseph E.
Krakora, Public Defender, attorney; Brian P. Keenan,
of counsel and on the briefs).
Hannah Faye Kurt, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent State of New Jersey (Theodore N.
Stephens II, Acting Essex County Prosecutor, attorney;
Hannah Faye Kurt, of counsel and on the brief).
PER CURIAM
J.A.W. appeals from a final adjudication of delinquency for behavior
which, if committed by an adult, would constitute the crimes of first-degree
felony murder, two counts each of first-degree robbery, second-degree
possession of a weapon for an unlawful purpose, second-degree unlawful
possession of a weapon, and one count of second-degree conspiracy to commit
robbery. J.A.W., who was almost sixteen years old when he was adjudicated
delinquent on October 26, 2018, received an aggregate sentence of eleven years
detention.
On appeal, he argues the following points:
POINT I
BY ADOPTING THE STATE'S UNFOUNDED
THEORY THAT THE SUBSEQUENTLY OBTAINED
SEARCH WARRANT SHIFTED THE BURDEN OF
PROOF TO J.A.W., A NOTION ROUNDLY
REJECTED BY OUR SUPREME COURT IN STATE
V. ATWOOD, 2[32] N.J. 433 (2018), THE MOTION
COURT ERRED IN DENYING HIS SUPPRESSION
MOTION CHALLENGING THE OFFICERS'
INITIAL WARRANTLESS ENTRY INTO THE
APARTMENT.
A. ON A MOTION TO SUPPRESS
CHALLENGING WARRANTLESS POLICE ENTRY
INTO A RESIDENCE, THE STATE HAS THE
BURDEN TO PROVE THAT AN EXCEPTION TO
THE WARRANT REQUIREMENT APPLIES.
B. THE MOTION COURT'S
MISAPPLICATION OF THE BURDEN OF PROOF
LED TO ITS ERRONEOUS CONCLUSIONS THAT
THE APARTMENT WAS [J.N.'S] RESIDENCE AND
THAT THE EXIGENT CIRCUMSTANCES
A-1686-18
2
EXCEPTION TO THE WARRANT REQUIREMENT
APPLIED – REQUIRING REVERSAL OF ITS
SUPPRESSION DENIAL AND J.A.W.'S
ADJUDICATIONS.
C. THE STATE'S FAILURE TO MEET ITS
BURDEN REQUIRES SUPPRESSION OF THE GUN.
POINT II
THE MOTION COURT, ERRONEOUSLY
CONCLUDING THAT THE EVIDENCE
SUPPORTING THE TWO COMPLAINTS WOULD
EACH BE ADMISSIBLE AS EVIDENCE IN A
TRIAL AS TO THE OTHER TO SHOW A COMMON
PLAN, FAILED TO APPLY THE COFIELD
STANDARD,[1] AND IMPROPERLY SHIFTED THE
BURDEN OF PROOF TO J.A.W., RESULTING IN
AN IMPROPER JOINDER OF THESE OFFENSES,
AND THE TRIAL COURT'S IMPROPER USE OF
THE OTHER-CRIMES EVIDENCE TO ESTABLISH
IDENTITY.
A. THE MOTION COURT'S ERRONEOUS
N.J.R.E. 404(b)/COFIELD ANALYSIS.
B. THE TRIAL COURT'S MISUSE OF THE
OTHER-CRIMES EVIDENCE TO IDENTIFY J.A.W.
AS THE SHOOTER IN THE NOVEMBER 30TH
HOMICIDE.
POINT III
THE TRIAL COURT ERRED IN GRANTING THE
STATE'S MOTION TO WAIVE J.A.W. TO ADULT
CRIMINAL COURT IN A SEPARATE AND
1
State v. Cofield, 127 N.J. 328, 338 (1992).
A-1686-18
3
UNRELATED MATTER WHILE DELIBERATING
THE VERDICT IN THESE CASES.
POINT IV
THE SENTENCING COURT ERRED IN IMPOSING
CONSECUTIVE SENTENCES ON THE ROBBERY
AND FELONY-MURDER ADJUDICATIONS
BASED ON THE NOTION THAT THE OFFENSES
HAD INDEPENDENT OBJECTIVES, WHEN
JOINDER OF THESE MATTERS WAS APPROVED
TO ALLOW THE STATE TO PROVE THE
OFFENSES WERE A PART OF A SINGLE, LARGER
PLAN.
We are persuaded by the juvenile's argument that the trial court should
have conducted an evidentiary hearing on J.A.W.'s suppression motion. For that
reason, we remand the matter for a suppression hearing and direct the trial court
to vacate the adjudication and hold a new trial if J.A.W. is successful at the
hearing. If not, the adjudication shall remain undisturbed because we conclude
J.A.W.'s remaining arguments are without merit for the reasons we express in
this opinion.
I.
The First Cab Ride
We summarize the facts leading to J.A.W.'s adjudication as developed at
his trial. On November 29, 2016, shortly before 11:00 p.m., taxi driver Ronald
Nicolas received a call for a pickup at 236 Snyder Street in Orange. He
A-1686-18
4
responded to the call and actually picked up, as he described, "two little boys,"
"one tall, one short," at nearby 157 North Day Street in Orange. At the time,
Nicolas's young son was travelling with him in the front passenger seat.
Nicolas recognized one of the two boys he picked up as his friend's son
J.N., whom he had known since he was a baby, and whom he had picked up in
the past. On prior occasions, J.N. tried paying Nicolas with counterfeit bills.
Nicolas also recognized the shorter of the two boys because, three weeks
prior, Nicolas picked him up at 400 Highland Terrace in Orange, and the boy
attempted to give him a counterfeit twenty-dollar bill to pay for his ride. The
calls for both pick-ups came from the same phone number.
Upon entering the cab, J.N. handed Nicolas a fifty-dollar bill that Nicolas
questioned as being counterfeit and warned the boys that his car was equipped
with a camera and that he would forward their picture to the police if it was
counterfeit. In response, the boys asked to be let out of the car.
Nicolas stopped the car, and J.N., who was seated in the rear passenger
seat, asked Nicolas to return the fifty-dollar bill and then placed a silver revolver
with a brown handle against Nicolas's head and told him not to move. Nicolas's
son said, "chill, chill, why you do that?" J.N. then pressed the gun against the
son's head and said, "shut up your mouth before I blow your head ."
A-1686-18
5
The shorter boy, who was seated directly behind Nicolas, demanded to
know "where's the money at," and Nicolas told him it was by the door. The
shorter boy took back the counterfeit fifty-dollar bill and twelve or thirteen
dollars belonging to Nicolas and said to J.N., "Josh, let's go." The pair ran back
towards Snyder Street, dropping one of the dollar bills in the process. After this
incident, Nicolas's son blocked the phone number that the pick-up calls came in
from on Nicolas's phone.
The Second Cab Ride
The next night, Nicolas was again working. At around 11:00 p.m., he
received three calls, one of which again requested a pick-up at 236 Snyder
Street. The telephone number associated with this call was different than the
one used the night before. Nicolas did not recognize the number or the caller's
voice and referred the pick-up request to another taxi company, Claudia Taxi,
because he was already backed up with other calls.
Thereafter, while driving in the area, Nicolas spotted a black Lincoln
Town Car with "C" written on its side turning right onto Snyder Street . Nicolas
called dispatch and said, "tell them if he sees two little boy[s], one tall and one
short, don't even stop." Nicolas was placed on hold.
A-1686-18
6
Nicolas pulled over and watched as the Claudia Taxi driver stopped and
two "little boys" entered the car. According to Nicolas, "the little one is – go to
the – to left side by the driver. And the tall one went in the back, go to the
passenger's side." It was too dark for Nicolas to see the boys' faces. As the taxi
sped off, Nicolas realized the boys were "hurt[ing]" and attempting to rob the
driver, so, as dispatch came back on the line with Nicolas, he asked them to call
the police. The Lincoln Town Car then struck another car and a tree. After the
car stopped, the two boys got out and ran away.
Detective Christopher DiRocco of the Essex County Prosecutor's Office
(ECPO) responded to the scene and found the heavily damaged Lincoln Town
Car with a deceased male, later identified as fifty-five-year-old Jonas LaRose,
in the driver's seat with gunshot wounds to his head. DiRocco took pictures of
the scene and located a projectile embedded in the driver's side front dashboard .
Autopsy results subsequently confirmed LaRose died from two fatal penetrating
gunshot wounds, one to the left side of his face that left three bullet fragments
inside his head and one that penetrated the right side of his skull and exited out
the other side.
During the ensuing police investigation, officers spoke with several
witnesses. Also, they obtained surveillance video from nearby cameras.
A-1686-18
7
After visiting the scene, ECPO Lead Investigator Kenneth Poggi returned
to the station where he spoke with Nicolas. Nicolas described one of the boys
from the November 29 robbery as seventeen or eighteen years old, tall, Haitian,
black and named "Josh" or "Joshua." He said the second boy was shorter, had a
lighter complexion, and was approximately fourteen years old. Subsequently,
after looking at a photo array, Nicolas selected a photo of J.N. as the boy who
gave him the counterfeit fifty-dollar bill on November 29 and pulled a gun on
him and his son.
Poggi searched a police database for "Josh" and found sixteen-year-old
J.N., who had recently been charged in Berkeley Heights with burglary. There
was also an open warrant for J.N.'s arrest.
Poggi reached out to the Berkeley Heights Police Department (BHPD)
and, after reviewing reports regarding the burglary, noted that another individual
arrested in connection with that crime was a juvenile who called himself Z.W.
Both J.N. and Z.W. had provided police with a home address of 400 Highland
Terrace in Orange.
The Police Investigation at 400 Highland Terrace
On December 2, 2016, Poggi and Detectives Carlos Olmo and Hervey
Cherilien proceeded to 400 Highland Terrace to determine whether J.N. or Z.W.
A-1686-18
8
resided there. According to their reports, they met with building superintendent
Rick Williams in a vacant first floor apartment and showed him pictures of J.N.
and Z.W. According to the officers, Williams told police he saw these boys
coming in and out of the building.
After returning to the lobby, Poggi believed he saw J.N. and three or four
other individuals enter the building. Olmo and Cherilien also saw kids running
into the building and down a hallway. Poggi called out "Josh" but J.N. did not
stop. The officers followed these individuals to Apartment 1B, the apartment it
appeared the kids entered, and knocked on the door but no one answered.
Later, after obtaining a key from Williams, the detectives entered the
apartment which was leased by Estilia Elysee as a home for her and her son
Gary, who was paralyzed. In a bedroom behind a closed door, they found Gary
and J.N., who gave officers a fake name, as well as the other individuals they
saw in the lobby and who were initially identified as Z.W., who called himself
J.A., Wayne Grant, Albert Nyewah and Jaylan Dawkins. J.N. and Z.W. were
the only juveniles.
While in Apartment 1B, the police observed several cell phones in the
bedroom and a fan running with what appeared to be counterfeit money laid out
in front of it. Poggi called his superior Lieutenant Thomas Kelly for assistance
A-1686-18
9
and other officers, including Detective Wilfredo Perez, drove to the scene.
Police placed J.N. under arrest, pursuant to the open warrant, and transported
him and all the others to the ECPO for questioning, except Gary who remained
in the apartment.
Poggi advised Kelly they should apply for a search warrant based on the
counterfeit money and cell phones in Apartment 1B. Cherilien and Perez
remained at the apartment pending receipt of the warrant. Kelly appeared before
a judge to request the warrant, relying upon an affidavit prepared by a prosecutor
utilizing information provided by Poggi and Kelly.
At approximately 4:00 p.m., after receiving the warrant, Cherilien and
Perez began their search of Apartment 1B. They discovered four cell phones
and one counterfeit fifty-dollar bill in the bedroom, and two counterfeit fifty-
dollar bills and twelve or thirteen one-dollar bills in the kitchen.
Statements from Occupants of 400 Highland Ave
Back at the station, Poggi took a statement from J.N., who was
subsequently charged with the November 29 armed robbery of Nicolas.2 After
Z.W. revealed that his real name was J.A.W., and not Z.W. or J.A., police
discovered that there was an outstanding warrant for his arrest. They arrested
2
Police learned that J.N.'s father lived at 649 Scotland Road, in Orange.
A-1686-18
10
him and seized his clothes, cell phone, and what appeared to be counterfeit bills,
two $50's and two $20's. 3 They also photographed both J.N. and J.A.W., who
was wearing an orange sweatshirt. 4
Police also took statements from Dawkins, Grant, and Nyewah. Dawkins
and Grant made reference to J.A.W. telling them that LaRose's death was the
result of a gun firing accidently during a "tussle." Dawkins saw a gun matching
Nicholas' description sticking out of J.A.W.'s pants and Grant saw J.A.W. hiding
the gun behind what he described as a video cassette recorder.
Second Search of 400 Highland Avenue
After taking the statements, Poggi called Cherilien, who was walking back
to his car after completing the search of Apartment 1B, and instructed him and
Perez to go back to the apartment and look for an additional item. The officers
returned and were re-admitted by Gary, who had been alone in the apartment for
five or six minutes. After police obtained a second search warrant based upon
an affidavit prepared by a prosecutor and signed by Detective John Manago,
Cherilien proceeded to the bedroom and retrieved a large silver revolver with a
3
Police discovered during trial preparation that the money seized from J.A.W.
had been lost.
4
J.N. later pled guilty to his involvement in the November 29 robbery.
A-1686-18
11
brown handle from within a Playstation console stand cabinet. Notably, Perez
looked inside the cabinet during the first search, but the gun was not there at that
time. Police subsequently found no fingerprints on the fully-operational gun,
and could not confirm that the bullet fragments found in connection with the
LaRose homicide came from this gun.
J.A.W.'s Charges
Police charged J.A.W. with the LaRose homicide that same night. Nicolas
returned to the station three days later, and, after looking at a photo array,
identified J.A.W. as the shorter boy who stole the counterfeit fifty-dollar bill
and the twelve singles from him on November 29. Nicolas also identified a
generic photo of a silver revolver as the type of gun used by J.N. and J.A.W.
that night.
On December 3, 2016, J.A.W. was charged in a Juvenile Complaint
(Docket No. FJ-07-920-17) with offenses arising from the November 30 killing
of LaRose, which, if committed by an adult, would constitute: (1) first-degree
murder, contrary to N.J.S.A. 2C:11-3(a) (charge one); (2) third-degree forgery,
contrary to N.J.S.A. 2C:21-1(a) (charge two); (3) first-degree robbery, contrary
to N.J.S.A. 2C:15-1(a)(1) (charge three); (4) second-degree unlawful possession
of a handgun, contrary to N.J.S.A. 2C:39-5(b) (charge four); (5) second-degree
A-1686-18
12
possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39 -
4(a) (charge five); and (6) first-degree felony murder, contrary to N.J.S.A.
2C:11-3(a)(3) (charge six).5
On December 7, 2016, J.A.W. was charged in a Juvenile Complaint
(Docket No. FJ-07-962-17) with offenses arising from the robbery of Nicolas
which, if committed by an adult, would constitute: (1) first-degree robbery,
contrary to N.J.S.A. 2C:15-1 (charge one); (2) second-degree unlawful
possession of a handgun, contrary to N.J.S.A. 2C:39-5(b) (charge two); (3)
second-degree conspiracy to commit robbery, contrary to N.J.S.A. 2C:5-2
(charge three); (4) second-degree possession of a weapon for an unlawful
purpose, contrary to N.J.S.A. 2C:39-4(a) (charge four); and (5) third-degree
endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4 (charge five).
5
Also, on December 5, 2016, Poggi and Cherilien recanvassed the area of the
homicide and spoke with Sheedley Pierre, who became a suspect in the LaRose
homicide. On December 8, Pierre was charged with felony murder and other
related offenses. Police collected Pierre's Samsung cell phone, as well as
ammunition and a blue jacket with reddish stains from Pierre's apartment. DNA
testing confirmed that Pierre's and LaRose's blood were on the jacket in different
spots and that LaRose's blood was on the revolver. J.A.W.'s blood was not found
on anything.
A-1686-18
13
On October 17, 2017, the court granted the State's motion to consolidate
the two complaints only for trial purposes.6 On January 11, 2018, the trial court
denied J.A.W.'s motion to suppress evidence, without an evidentiary hearing.
The trial court held a bench trial on various dates between March and June
2018. During the court's deliberations, it granted the State's motion waiving
J.A.W. to adult criminal court in an unrelated matter.
The trial court rendered its verdict on August 30, 2018. The court set forth
its findings of facts and conclusions of law addressing the two complaints
separately in two comprehensive written decisions, one dated July 19, 2018, and
the other, August 31, 2018. As to Docket No. FJ-07-920-17, the trial court found
J.A.W. guilty of charges three through six, but acquitted him as to charges one
and two. As to Docket No. FJ-07-962-17, the trial court found J.A.W. guilty of
charges one through four, but acquitted him as to charge five.
At an October 26, 2018 disposition hearing, the trial court merged charges
three and five into charge six under Docket No. FJ-07-920-17, and charge three
and four into charge one under Docket No. FJ-07-962-17, and sentenced J.A.W.
to: (1) an indeterminate custodial sentence of nine years at the Training School
6
The judge who decided the consolidation motion was different than the one
who decided the suppression motion and presided over the bench trial.
A-1686-18
14
for Boys on charge six (felony murder) of Docket No. FJ-07-920-17; (2) a
concurrent two-year term on charge four (unlawful possession of a weapon) of
Docket No. FJ-07-920-17; (3) a consecutive two-year term on charge one (first-
degree robbery) of Docket No. FJ-07-962-17; and (4) a concurrent two-year term
on charge two (unlawful possession of a weapon) of Docket No. FJ-07-962-17.
J.A.W.'s sentence was thus eleven years. This appeal followed.
II.
We begin our review by addressing J.A.W.'s appeal from the denial of his
motion to suppress. On appeal, J.A.W. contends the trial court erred in denying
his suppression motion, which was premised upon the alleged unlawfulness of
the detectives' execution of J.N.'s arrest warrant inside the Elysees' apartment
without a search warrant. J.A.W. argues that by focusing on the subsequently
obtained search warrants, the trial court improperly shifted the burden of proof
to him on the issue of whether the police reasonably entered Apartment 1B in
the first instance without a warrant. He also contends the trial court erred in
failing to hold a hearing to resolve material issues of fact as to the lawfulness of
the detectives' initial entry into Apartment 1B. As already noted, we agree that
a hearing should have been conducted by the trial court before deciding the
suppression motion.
A-1686-18
15
A.
Prior to trial, J.A.W. moved to suppress the evidence recovered from
Apartment 1B. In his brief, which was not accompanied by any supporting
affidavits, he argued that the December 2, 2016 search warrants were the fruit
of a poisonous tree because police unlawfully entered apartment 1B, the home
of a third-party, to execute the warrant for J.N.'s arrest. According to J.A.W:
(1) it was unreasonable for the police to have concluded that J.N. resided in
Apartment 1B; and (2) the State failed to prove the existence of exigent
circumstances, especially considering Williams contradicted the State's
assertion that J.N. entered the lobby and entered Apartment 1B while the police
were present.
In a responding brief, to which it attached the search warrants and
supporting affidavits setting forth the detectives' version of events leading up to
their entry into Apartment 1B, the State insisted that: (1) the search warrants
were not the fruit of a poisonous tree because the detectives reasonably believed
J.N. lived in Apartment 1B and spotted J.N. in the lobby heading to that
apartment; and (2) even if J.N. was not a resident of Apartment 1B, the
detectives were justified in entering that apartment due to exigent circumstances
upon spotting J.N. in the lobby.
A-1686-18
16
The trial court determined that because there were search warrants that
were presumed to be valid, J.A.W. had to do more than make bald assertions in
support of his position. At the very least, J.A.W. should have obtained a sworn
statement from Williams asserting that the detectives were lying, in order to
support J.A.W.'s position that there was a material issue of fact as to whether
J.N. was seen in the lobby. The court directed J.A.W.'s counsel to supplement
his filings.
Thereafter, J.A.W.'s counsel submitted a reply brief reiterating his
arguments and maintaining that an evidentiary hearing was needed because of
material issues of fact. Counsel provided the court with certifications from
Williams, Elysee, and Sunny Liberoi of 400 Realty Management, the company
that managed 400 Highland Ave, as well as a copy of the lease for Apartment
1B.
In his certification, Williams stated that: (1) he spoke to the police in his
office; (2) this conversation was not interrupted by anyone running through the
lobby; (3) no one entered the building as he escorted the officers out; (4) the
officers did not shout at anyone to stop and there was no subsequent chase; and
(5) the officers departed without following anyone to Apartment 1B and then
returned ninety minutes later with a warrant, at which time he gave them the
A-1686-18
17
keys to Apartment 1B. Gary certified that he resided in Apartment 1B and that
J.N. and the others were his invited guests on December 2, 2016. Liberoi
certified that Apartment 1B was leased by Gary's mother, Estilia.
In its January 11, 2018 written decision denying J.A.W.'s motion to
suppress, the trial court first acknowledged the applicability of the two-prong
test stated in State v. Miller, 342 N.J. Super. 474, 500 (App. Div. 2001), for
determining whether an arrest warrant was properly executed inside a dwel ling.
The court was satisfied that, as set forth in the police affidavits, after discovering
two viable possible addresses for J.N. in police records, Poggi had reasonably
gone to 400 Highland Terrace to confirm J.N.'s residency, and possibly execute
the active bench warrant for J.N.'s arrest in a separate matter. The court
emphasized that the detectives were acting in furtherance of the investigation
into both the Nicolas robbery, for which J.N. was a named suspect, and the
LaRose homicide, for which he was a person of interest.
Moreover, the trial court was satisfied, based upon the representations in
the officers' affidavits, that: (1) Williams confirmed that J.N. had been staying
at 400 Highland Terrace for approximately a month; (2) Poggi spotted J.N.
entering the building and proceeding to Apartment 1B; and (3) the detectives
were in pursuit of J.N. when they entered Apartment 1B to effectuate his arrest.
A-1686-18
18
Based on these facts, the trial court concluded as follows:
The court finds that exigent circumstances indeed
existed for the detectives to follow J.N. into Unit 1B.
Once the detectives lawfully entered Apt. 1B and
secured J.N. and observed in plain view what they
believed was possible contraband and what might
constitute evidence in both a first[-]degree robbery and
murder; the detectives secured the location and
followed all appropriate procedures to secure judicially
approved warrants.
The [c]ourt is satisfied and finds that the items
seized in the search and seizure of Unit 1B were seized
pursuant to lawfully issued warrants. The [c]ourt
further finds that the defense, who bears the burden of
proof, has failed to prove that probable cause did not
exist to support the issuance of the warrants. . . .
. . . The court is satisfied that adequate probable
cause existed to support the affidavits filed by . . . Kelly
and . . . Man[ag]o in support of a search warrant issued
for Unit 1B on December 2, 2016.
[(Emphasis added).]
The court continued:
Having reviewed all of the defense's submissions
and after hearing oral argument, the court is not
persuaded that the third[-]party guest argument
pursuant to Steagald v. United States, 451 U.S. 204,
205-06 (1981), is controlling. The court finds that this
was not an invalid warrantless search. The court, taking
into consideration all of the facts and circumstances
presented finds that the burden of proof rests on the
[d]efense to prove that probable cause did not exist in
support of the issuance of the search warrants . . . .
A-1686-18
19
The [c]ourt is further satisfied that the defense
who bears the burden of proof has not established a
willful, intentional misrepresentation of facts in the
affidavits submitted which would necessitate an
evidentiary hearing requiring testimony. The [c]ourt is
not satisfied that [the] twenty-two one sentence
paragraph[s] [in the] certification of . . . Williams, or
the certifications of Gary . . . , or . . . Liberoi meet the
defense's burden of proof and as such the motion to
suppress evidence recovered on December 2,
2016[,] . . . is denied.
In a footnote, the court also stated that although J.A.W. did not seek a
hearing under Franks v. Delaware, 438 U.S. 15[4] (1978), to challenge the
truthfulness of factual statements made in the officers' affidavits supporting the
warrants, it was evident from his "counsel's brief and his arguments . . . that
defense counsel is alleging that . . . Poggi and the officers did not see J.N. and
the other juveniles enter the building and that the officers 'lied'[.]" The court
concluded "that there [was] no preliminary showing by the defense that a false
statement was made knowingly and intentionally, and with reckless disregard
for the truth by either . . . Kelly or . . . Manago in their affidavits in support of
search warrants issued by [another judge] and as such, no hearing pursuant to
the Frank[s'] standard is warranted, even if it were defense['s] contention."
A-1686-18
20
B.
In our review of a denial of a suppression motion, we must uphold the trial
court's findings if they are supported by "sufficient credible evidence in the
record." State v. Lamb, 218 N.J. 300, 313 (2014). This deference is applicable
regardless of whether there was a testimonial hearing, or whether the court based
its findings solely on its review of documentary evidence. State v. S.S., 229
N.J. 360, 381 (2017). If, however, the trial court's factual findings are clearly
mistaken, the interests of justice require intervention. Ibid.Here, we conclude there was a material issue of fact as to whether the
officers' initial entry into Apartment 1B was a lawful warrantless entry for
purposes of arresting J.N. on the outstanding arrest warrant. A warrantless
search is presumed invalid unless it falls within one of the recognized exceptions
to the warrant requirement, which the State has the burden of demonstrating.
State v. Williams, 461 N.J. Super. 1, 10 (App. Div. 2019). When an entry is
invalid, what proceeds thereafter is tainted and the trial court must suppress any
evidence seized as a result of the unlawful entry. Miller, 342 N.J. Super. at 500.
A later-obtained search warrant does not retroactively validate preceding
warrantless conduct by the State that is later challenged by a defendant in a
suppression motion. Atwood, 232 N.J. at 448.
A-1686-18
21
Ordinarily, absent consent or exigency, the police may not enter a third-
party's residence without a search warrant for the purpose of searching for a
suspect for whom they have an arrest warrant. Miller, 342 N.J. Super. at 495;
accord Steagald, 451 U.S. at 205-06. Whether exigent circumstances justify
dispensing with the need for a search warrant must be determined "on a case-
by-case basis with the focus on police safety and preservation of evidence."
State v. Craft, 425 N.J. Super. 546, 554 (App. Div. 2012) (quoting State v. Pena-
Flores, 198 N.J. 6, 11 (2009)).
A court must consider the totality of the circumstances to determine
whether it was "impracticable to secure a warrant" prior to the search. State v.
Johnson, 193 N.J. 528, 553 (2008) (noting that exigency will be found "when
inaction due to the time needed to obtain a warrant will create a substantial
likelihood that the police or members of the public will be exposed to physical
danger or that evidence will be destroyed or removed from the scene"). Police
officers acting pursuant to a valid arrest warrant have the right to follow a fleeing
suspect into a private residence. State v. Jones, 143 N.J. 4, 19 (1995).
However, even where there is no exigency, an arrest warrant still may be
lawfully executed in a third-party's residence if the officers executing the
warrant have "objectively reasonable bases for believing that the person named
A-1686-18
22
in the warrant both resides in the dwelling and is within the dwelling at the
time." Miller, 342 N.J. Super. at 495. Objective reasonableness is assessed in
light of the facts known to the officers at the time. State v. Bruzzese, 94 N.J.
210, 221 (1983). This reasonableness test may be satisfied even though the
police have made a mistake in executing a warrant. State v. Handy, 412 N.J.
Super. 492, 499 (App. Div. 2010).
On a defendant's motion to suppress evidence seized in a warrantless
search, he or she need just file a notice of motion making some showing of
illegality. R. 3:5-7(b). The State, which bears the burden of proof, State v.
Brown, 216 N.J. 508, 527 (2014), must then submit a brief and affidavit in
support of the search, which the defendant can then counter with a brief and
statement of facts, with or without an affidavit. State v. Torres, 154 N.J. Super.
169, 172-73 (App. Div. 1977). In the case of a warranted search, the burden of
proof is on the defendant to demonstrate that the warrant was issued without
probable cause or that the search was otherwise unreasonable and, as such, his
or her notice of motion must be accompanied by a brief as well as an af fidavit
setting forth the facts relied on. State v. Chippero, 201 N.J. 14, 26 (2009).
Where there is a material dispute as to the facts surrounding a warrantless
entry, an evidentiary must be held to resolve the conflict. Under Rule 3:5-7,
A-1686-18
23
"the existence of a factual dispute may be ascertained from an examination of
the factual assertions contained in the briefs of the parties." Torres, 154 N.J.
Super. at 172. If material facts are disputed, testimony must be taken in open
court. R. 3:5-7(c); Atwood, 232 N.J. at 445. A trial court's determination of
whether disputed facts are material is a matter of law, not entitled to particular
deference on review because it involves assessing the legal consequences that
would flow from facts if established. See Lamb, 218 N.J. at 313.
Here, at the very least, the Williams affidavit established a question of
fact as to whether the police witnessed J.N. enter Apartment 1B before entering
without a search warrant. There were three searches here, one warrantless and
two warranted. Because the warrantless search occurred first and allegedly
justified the subsequent warranted searches, contrary to the trial court's view,
the State initially bore the burden of proof as to whether the police reasonably
entered the Elysees' apartment to execute the warrant for J.N.'s arrest. J.A.W.'s
initial brief, alone, was sufficient to open the matter before the court. A plain
reading of the parties' later submissions reveals issues of fact raised by the
Williams affidavit regarding J.N.'s presence and the officers' claimed sighting
of J.N. in the lobby that were material to the outcome here.
A-1686-18
24
For that reason, we are constrained to remand this matter for the purpose
of holding an evidentiary hearing as to the lawfulness of the officers' initial entry
into Apartment 1B. If the trial court concludes after the hearing that the entry
was lawful, J.A.W.'s adjudication shall remain undisturbed. If the court holds
otherwise, the trial court shall vacate the adjudication, suppress the evidence
secured through all three searches and hold a new trial.
III.
Next, we address J.A.W.'s challenge to the trial court consolidating the
two complaints for trial. He contends that joinder was improper because: (1)
while the crimes were similar, they were not components of an integrated plan;
(2) the notion that the two incidents were an integrated plan was irrelevant to
any material issue in either case and could not be used to bolster witness
credibility; (3) the trial court relied upon the Rule 403 standard for undue
prejudice whereby exclusion is warranted only if the risk of undue prejudice
"substantially" outweighs the "probative value" of the evidence, rather than the
Cofield prong four standard which requires exclusion where the potential for
undue prejudice simply outweighs the probative value; and (4) it improperly
shifted the burden of proof as to prong four to J.A.W. N.J.R.E. 403. We
A-1686-18
25
conclude that, although there were flaws in the trial court's analysis, the flaws
did not result in a manifest denial of justice requiring reversal.
A.
Prior to trial, the State applied to join the two juvenile complaints for trial.
For purposes of this determination, the parties agreed to the following three
stipulations: (1) notwithstanding that Nicolas reported a silver handgun was
used by the perpetrators on November 29 and that a silver handgun was later
found at Apartment 1B, there were no ballistics indicating that the same gun was
used on both November 29 and November 30; (2) the phone numbers
corresponding to the relevant calls made to Nicolas on the two nights were not
the same; and (3) there was no indication that the voice Nicolas heard on
November 29 was the same as the voice he heard on November 30, during the
relevant calls.
In response, the trial court granted the State's motion. At the outset of its
decision, the court found that the charges under both indictments were similar
and that the murder and felony murder charges arguably flowed from the prior
evening's robbery. The court stated as follows:
Regarding the factual allegations under each
docket, both . . . allege phone calls to a taxi service . . .
between 10 and 11 o'clock at night. Both . . . allege a
call to the same taxi service, although the parties have
A-1686-18
26
stipulated that the calls came from different phone
numbers and eventually the November 30th call was
transferred to another company. Both . . . have the
caller requesting to be picked up from 236 Snyder
Street in the City of Orange, notwithstanding the fact
that the pickup location on November 29th eventually
changed. Both . . . allege two passengers were picked
up, . . . [J.A.W.] as well as a second individual.
Based upon the foregoing, the [c]ourt finds that
the offenses the State seeks to join are of . . . similar
character both in the charges against the juvenile and
the factual allegations . . . underlying those charges.
Therefore, the . . . State has satisfied the requirements
of Rule 3:7-6.
Turning its attention to Rule 404(b), the court further ruled:
Counsel for the juvenile avers that the joinder of
the [dockets] would be unduly prejudicial . . . [as it
would] improperly put the allegations of the juvenile's
disposition at the forefront of the fact-finder's analysis
rather than the State's . . . proofs and burden of proof.
[Defense counsel] also asserts that there was not a
common plan, . . . because on November 29th the intent
of the actors, according to the co-juvenile's guilty plea,
was to use counterfeit money. However, the
preparation and/or plan in both incidents was to
financially victimize a taxi driver whether through
deceit, using counterfeit bills, or through force, using
armed robbery. Based upon the foregoing, I find that
the other crimes . . . evidence would be admissible
under 404(b).
Last, the trial court considered the four-prong Cofield analysis and found
that the first prong was satisfied because:
A-1686-18
27
[E]vidence from the November 29th, 201[6] offense
would be and is admissible as relevant to material
issues in the November 30th offense. The victim of the
November 29th robbery, . . . Nicolas, arrived in the
area of 236 Snyder Street on November 30th and
observed two people exit a black Lincoln Town Car,
which sped off and crashed into a tree. . . .
[Nicolas] told the police, at the time, . . . that the
two incidents might be related. [Nicolas] is . . . a fact
witness . . . to the events on November 30th. The
reason he suspected the incidents were related is
because he was a victim of a robbery in the same area
the day before. [Nicolas] knew J.N. prior to the robbery
and identified J.N. as one of the people who robbed him
on November 29th. The police investigation of J.N.,
[led them] to [J.A.W.], one of J.N.'s known associates.
One way to gauge a witness' credibility is to
assess how and why the witness came to know what
they are testifying about. Without the ability to discuss
how and why [Nicolas] thought that the two incidents
were related, his credibility would be undermined. This
is true not only for [Nicolas's] testimony, but the
testimony of the investigating officers as well. Again,
when the question becomes why were you looking at
[J.A.W.], the answer to that question relates to the
investigation that started on the 29th. Again, the . . .
investigation focused on [J.A.W.] began because of
information derived directly from the investigation of
the November 29th, robbery.
The trial court was also persuaded that the second prong was satisfied
because, as noted above, the incidents occurred within twenty-four hours of each
other and followed a similar pattern. As to the third prong, the court found that
A-1686-18
28
the evidence of the November 29 robbery was clear and convincing,
emphasizing that J.N. had already pled guilty in that case, and that Nicolas had
been an active participant in both investigations. As to prong four, the court
found as follows:
Finally, prong four, the probative value of the
evidence must not be outweighed by its apparent
prejudice. Pursuant to Rule of Evidence 403, relevant
evidence may be excluded if its probative value is
substantially outweighed by the risk of . . . undue
prejudice, confusion of issues or misleading the jury.
The burden is on the party urging exclusion of the
evidence to convince the court that the Rule 403
consideration should control. That's in Rosenblit v.
Zimmerman, a State Supreme Court case, 166 N.J. 391.
Under Rule 403 the question is not whether the child's
testimony will be prejudicial, but whether it will be
unfairly so. That's from Griffin v. City of East Orange,
another State Supreme Court case at 225 N.J. 400.
"Evidence claiming to be unduly prejudicial can
only be excluded where its probative value is so
significantly outweighed by its inherently
inflammatory potential as to show a probable capacity
to divert the minds of the jurors or the fact-finder from
a reasonable and fair evaluation of the basic issues of
the case." That's from State v. Thompson, 59 N.J. 396,
a 1971 State Supreme Court case.
The Court holds that the probative value of the
other crimes evidence in this matter is . . . not
outweighed by its apparent prejudice. The probative
value of the . . . fact that the investigation of the
November 29th robbery led directly to the investigation
of [J.A.W.] outweighs potential prejudice. The
A-1686-18
29
allegation that the juvenile committed an armed
robbery the night before it[']s alleged he committed a
murder is not so inherently inflammatory that [it] would
divert that finder of fact from a reasonable and fair
evaluation of the basic of the case.
B.
The decision to admit or exclude other crimes or wrongs evidence rests
within the trial court's sound discretion and will only be set aside where there
has been a clear error judgment resulting in a manifest denial of justice. State
v. Gillispie, 208 N.J. 59, 84 (2011). Where, however, a trial court has
improperly applied or failed to apply the Cofield analysis, our review is de novo.
State v. Rose, 206 N.J. 141, 157-58 (2011). Even where there has been an abuse
of discretion by the trial court, we must determine whether the error is harmless
or requires reversal. State v. Prall, 231 N.J. 567, 583 (2018).
A trial court may order that multiple indictments or juvenile complaints
be tried together if the offenses charged therein could have been joined in a
single indictment or complaint. R. 3:15-1(a). Under Rule 3:7-6, two or more
offenses may be charged in the same indictment or juvenile complaint if the
offenses are of the same or similar character, are based on the same act or
transaction or constitute parts of a common scheme or plan. In assessing the
A-1686-18
30
propriety of a trial court's decision to join crimes for trial, we consider whether
any error led to an unjust result. State v. Sterling, 215 N.J. 65, 101 (2013).
Although joinder is favored, economy and efficiency interests do not
override a defendant's right to a fair trial. Id. at 72. As such, Rule 3:7-6 also
provides for relief from prejudicial joinder, referencing Rule 3:15-2(b), which
vests a court with discretion to sever charges "[i]f for any other reason it appears
that a defendant or the State is prejudiced by a permissible or mandatory joinder
of offenses or of defendants in an indictment or accusation."
The relief afforded by Rule 3:15-2(b) addresses the inherent danger when
several crimes are tried together, that the finder of fact may use the evidence
cumulatively to reach a verdict it would not otherwise have reached. Sterling,
215 N.J. at 73. The critical inquiry for a court deciding whether to grant relief
from joinder of offenses because of potential prejudice is "whether, assuming
the charges were tried separately, evidence of the offenses sought to be severe d
would be admissible under [Rule 404(b)] in the trial of the remaining charges."
Ibid. (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).
Pursuant to Rule 404(b):
[E]vidence of other crimes, wrongs, or acts is not
admissible to prove a person's disposition in order to
show that on a particular occasion the person acted in
conformity with such disposition.
A-1686-18
31
. . . [Such] evidence may be admitted for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.
Our Supreme Court has clarified that such evidence may be admitted
provided it meets the following test:
1. The evidence of the other crime must be
admissible as relevant to a material issue;
2. [i]t must be similar in kind and reasonably close
in time to the offense charged;
3. [t]he evidence of the other crime must be clear
and convincing; and
4. [t]he probative value of the evidence must not
be outweighed by its apparent prejudice.
[Cofield, 127 N.J at 338 (citation omitted).]
This analysis is intended to reduce the underlying danger that the
factfinder may convict a defendant because he or she is a "bad person" "in
general." State v. Castagna, 400 N.J. Super. 164, 175 (App. Div. 2008) (citing
State v. Reddish, 181 N.J. 553, 608 (2004)). The party seeking to admit other
crime evidence bears the burden of establishing that the probative value of the
evidence is not outweighed by its apparent prejudice. Reddish, 181 N.J. at 608-
09.
A-1686-18
32
Notably, "[t]emporality and similarity of conduct is not always applicable,
and thus not required in all cases." Rose, 206 N.J. at 160. And, prong four does
not require, as does Rule 403, that the prejudice substantially outweigh the
probative value of the evidence before it is excluded. Id. at 161. But, other
crime evidence should not be admitted merely to bolster the credibility of a
witness against the defendant. Prall, 231 N.J. at 583. Moreover, the trial court
must ensure that there is no less inflammatory evidence available regarding the
disputed issue. State v. Darby, 174 N.J. 509, 518 (2002).
With these guiding principles in mind, we first address whether there was
a plan or overriding scheme here and conclude the trial court correctly
determined the repeated attempts to pass counterfeit bills by J.A.W. and J.N.,
per Nicolas in the same section of Orange during a short period of time, and the
discovery of counterfeit bills at Apartment 1B, where both juveniles had been
staying, indicated an orchestrated plan to defraud taxi drivers and perhaps
others. The investigation that followed the November 29 robbery revealed this
plan and enabled police to identify the suspects in the homicide.
Also, given that J.A.W. disputed that he was present the night of
November 30, identity was a material issue in the LaRose homicide. Although
the trial court improperly brought up the issue of witness credibility in its prong
A-1686-18
33
one analysis, we read its finding to mean that the circumstances of the November
29 robbery were necessary to the State being able to demonstrate the validity
and strength of the investigation which resulted in the identification of J.A.W.
However, as to prong four of the Cofield analysis, we agree with
defendant that the trial court improperly referenced Rule 403 as to both the need
for "significant" prejudice to overcome probative value and the matter of who
bore the burden of proof. However, since the court also mentioned the proper
prong four weighing analysis, and the probative value of the November 29
robbery was so great, we conclude that reversal is not warranted on this basis.
Moreover, because the court and not a jury was the factfinder here, and
the circumstances of the November 29 robbery helped convince the court that
there was no intentional murder, which supported J.A.W.'s acquittal on the most
serious charge, we reject J.A.W.'s contention that the trial court erred in granting
the State's joinder motion.
IV.
We turn our attention to J.A.W.'s contention about the trial court erring
by granting the State's motion to waive J.A.W. to adult criminal court in an
unrelated matter while deliberating on the verdict in this case. We find no merit
to his argument.
A-1686-18
34
At the June 26, 2018 post-trial probable cause hearing on the State's
motion to waive J.A.W. to adult court in an unrelated matter, counsel for J.A.W.
objected to the trial court hearing the motion because it was still deliberating on
its decision in the present robbery and homicide cases. Counsel expressed
particular concern about the court watching the video in the unrelated matter
that arose from a violent altercation involving J.A.W., which took place at the
Essex County Detention Center on November 27, 2017. In this video, J.A.W. is
seen approaching another boy and striking him in the head with a closed fist .
Two other boys join J.A.W. and the three force the victim to the ground and
continue kicking and stomping on his body and head until staff break up the
fight. The victim, who did not fight back, allegedly suffered a broken jaw, a
concussion, and a loss of consciousness.
The trial court responded to counsel's concerns as follows:
Yeah, the [c]ourt notes counsel's objection and
does understand the reasons for the argument that this
matter should wait until the [c]ourt has made a final
decision as to the young man's guilt or innocence with
respect to the other two dockets. It is this [c]ourt's
belief that it certainly has the power to not allow taint
to go from one proceeding to the other. It is part of the
necessity of this process where there is no jury
empaneled, that the [c]ourt has to be the trier of fact.
The [c]ourt often considers other issues, facts and
circumstances as it is the trier of fact with respect to
one matter, but potentially able to accept a plea in
A-1686-18
35
another matter, handle other matters that come before
the [c]ourt as they relate to the juvenile.
This [c]ourt has certainly been aware that this
proceeding, which the State filed in about January 24th
of 2018 has been pending for a significant period of
time. It was pending at the time that the [c]ourt began
to take testimony in the other two matters. One matter
will not affect the [c]ourt's ability to make an
independent decision on the separate matter. And the
[c]ourt will proceed today over [d]efense's objections
for these reasons.
At the conclusion of the hearing, the trial court granted the State's motion .
On appeal, J.A.W. contends that the trial court's exposure to proof of an
unrelated violent act committed by J.A.W. while deliberating its decisions in
this case violated Rule 404(b) and deprived him of a fair trial. In J.A.W.'s view,
the notion that judges, as factfinders, can compartmentalize inadmissible
prejudicial information far better than jurors "has its limits," and what occurred
here "effectively amounted to the admission of other-crimes evidence in this
matter." J.A.W. notes that the trial court elected not to hear the State's joinder
motion in this case so as to avoid any interference with its ability to try the case
in an unbiased manner.7
7
A different judge decided that motion.
A-1686-18
36
We conclude that J.A.W.'s contentions are without sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say,
"[t]rained judges have the ability 'to exclude from their consideration irrelevant
or improper evidence and materials which have come to their attention.'" State
v. Medina, 349 N.J. Super. 108, 130 (App. Div. 2002) (quoting State v. Kunz,
55 N.J. 128, 145 (1969)). Here, J.A.W. offers nothing but speculation in support
of his contention that, in adjudicating these matters, the trial court was
improperly swayed by the evidence presented at the waiver hearing.
Also, and significantly, there is nothing in the record to support a
contention that the trial court was biased against J.A.W. in this case because of
the waiver motion in the later matter. In its decision regarding the LaRose
homicide, the trial court gave extensive reasons for its conclusion that J.A.W.
was involved in that crime. Moreover, again, it cannot be ignored that the trial
court acquitted J.A.W. of first-degree purposeful murder, finding that the State
had not proven that J.A.W. intended to commit murder or cause serious bodily
injury to LaRose. In so doing, it accepted the testimony of both Dawkins and
Grant that J.A.W. claimed the shooting was an accident. We have no reason to
disturb J.A.W.'s adjudication because of the waiver.
A-1686-18
37
V.
Last, J.A.W. contends the trial court abused its discretion in imposing
consecutive sentences. He argues the trial court erred by finding the crimes
were predominantly independent of each other, when it previously found the
cases should be joined for trial because they were part of a single plan. We
disagree.
A.
At J.A.W.'s disposition hearing, the trial court deemed applicable the
following five aggravating factors: (1) "[t]he character and attitude of the
juvenile indicate that the juvenile is likely to commit another delinquent or
criminal act," N.J.S.A. 2A:4A-44(a)(1)(c); (2) "[t]he need for deterring the
juvenile and others from violating the law," N.J.S.A. 2A:4A-44(a)(1)(g); (3)
"[t]he impact of the offense on the victim or victims," N.J.S.A. 2A:4A-
44(a)(1)(j); (4) "[t]he impact of the offense on the community," N.J.S.A. 2A:4A-
44(a)(1)(k); and (5) "[t]he threat to the safety of the public or any individual
posed by the child," N.J.S.A. 2A:4A-44(a)(1)(l).
The trial court also found four mitigating factors: (1) "[t]he juvenile has
no history of prior delinquency or criminal activity or has led a law -abiding life
for a substantial period of time before the commission of the present act ,"
A-1686-18
38
N.J.S.A. 2A:4A-44(a)(2)(h); (2) "[t]he separation of the juvenile from the
juvenile's family by incarceration of the juvenile would entail excessive
hardship to the juvenile or the juvenile's family," N.J.S.A. 2A:4A-44(a)(2)(l);
(3) "[t]he willingness of the juvenile to cooperate with law enforcement
authorities," N.J.S.A. 2A:4A-44(a)(2)(m); and (4) "[t]he conduct of the juvenile
was substantially influenced by another person more mature than the juvenile,"
N.J.S.A. 2A:4A-44(a)(2)(n). The court was satisfied that, on both a qualitative
and quantitative basis, the aggravating factors outweighed the mitigating
factors.
As already noted, the trial court merged various counts and sentenced
J.A.W. to an indeterminate custodial sentence of nine years under one complaint
and a consecutive two-year term under the other. The court explained its
decision to impose consecutive sentences as follow:
Now, as to the [c]ourt's findings that a
consecutive sentence was appropriate with respect to
the first-degree robbery, the [c]ourt has considered the
factors outlined in State v. Yarbough, 100 N.J. 627,
6[43]-44 (1985), and State v. Miller, 10[8] N.J. 112
(1987). And the [c]ourt has considered that: One, there
could be no free crimes in the system for which the
punishment is designed to fit the crime. Two, the
reasons for imposing the consecutive sentence are as
follows: The crimes involved separate acts of violence,
separate threats of violence committed upon separate
persons. The crimes were committed at different times
A-1686-18
39
and in separate places. They are linked closely in time,
the [c]ourt recognizes, and it is arguable that they are a
single period of that apparent behavior. But even if the
[c]ourt found that to be, the [c]ourt is required to
balance these Yarbough factors in a qualitative manner
as opposed to a quantitative manner. The [c]ourt does
find that the crimes involved separate, distinct and
multiple victims.
The [c]ourt has considered the convictions for
which the sentences are to be imposed as numerous.
There should be, and the [c]ourt has considered, and
there should be no double counting of the aggravating
factors. The [c]ourt does not believe it has done that.
The [c]ourt has set an overall out[er] limit on
accumulation of consecutive sentences having imposed
only one consecutive sentence for the robbery. The
[c]ourt does impose that consecutive sentence because
it finds that the crime[s] and their objectives . . . [were]
predominantly independent of each other, though the
victims were similarly situated and the motive – the
intended result may have been the same.
B.
In reviewing a juvenile disposition, we must determine whether the
findings of fact regarding aggravating and mitigating factors were based on
competent and reasonably credible evidence in the record, whether the court
applied the correct sentencing guidelines enunciated in the New Jersey Criminal
Code, and whether the application of the factors to the law constituted such clear
error of judgment as to shock the judicial conscience. State ex rel. K.O., 424
N.J. Super. 555, 564-55 (App. Div. 2012); State v. Fuentes, 217 N.J. 57, 70
A-1686-18
40
(2014). In performing our review, we will not substitute our judgment for the
judgment of the trial court. State v. Cassady, 198 N.J. 165, 180 (2009).
N.J.S.A. 2C:44-5(a) provides in general terms for consecutive and
concurrent sentences of imprisonment for offenders convicted of more than one
offense. In Yarbough, the Court provided additional guidance for the exercise
of sentencing discretion in imposing consecutive terms. See 100 N.J. at 643-44.
The Yarbough Court prefaced its guidelines by emphasizing that
sentencing courts "should be guided by the Code's paramount sentencing goals
that punishment fit the crime, not the criminal, and that there be a predictable
degree of uniformity in sentencing." Id. at 630. The consecutive sentencing
guidelines to be applied when "an offender . . . has engaged in a pattern of
behavior constituting a series of separate offenses or committed multiple
offenses in separate, unrelated episodes" are:
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
A-1686-18
41
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of violence
or threats of violence;
(c) the crimes were committed at different times
or separate places, rather than being committed so
closely in time and place as to indicate a single period
of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to
be imposed are numerous;
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense . . .
[Id. at 643-44 (footnote omitted).]
Sentencing courts are required to identify and weigh the appropriate
mitigating and aggravating factors in determining whether sentences should run
concurrently or consecutively in order to facilitate appellate review. Miller, 108
N.J. at 122. Significantly, "[t]he 'no free crimes' guideline does not require the
court automatically to impose consecutive sentences for multiple offenses."
State v. Rogers, 124 N.J. 113, 121 (1991). Rather, all of the Yarbough
guidelines must be considered, with special emphasis placed on the five subparts
A-1686-18
42
to the third guideline. Ibid. These subparts should be applied qualitatively, and
consecutive sentences may be imposed even though a majority of the subparts
support concurrent sentences. State v. Carey, 168 N.J. 413, 427-28 (2001).
Here, the trial court found that there were numerous convictions involving
separate acts of violence and threats of violence against three different people
on two different days, all legitimate bases for consecutive sentencing.
Moreover, the court noted that, even if it viewed the offenses as part of one
period of aberrant behavior, a qualitative analysis still supported consecutive
sentences.
We conclude the trial court performed the required Yarbough analysis and
did not seek only to impose the longest sentence possible. Moreover, contrary
to J.A.W.'s assertion, the analysis for joinder that is premised upon evidentiary
issues and efficiency, is entirely different than the analysis for consecutive
sentencing that is based upon the notion that there should be no free crimes and
the other Yarbough factors. The trial court sentenced J.A.W. in accordance with
sentencing guidelines, and there is nothing about the sentence that shocks our
judicial conscience.
A-1686-18
43
Affirmed in part, remanded in part for further proceedings consistent with
our opinion. Pending the outcome of the remand, J.A.W.'s adjudication and
sentence shall remain in force. We do not retain jurisdiction.
A-1686-18
44