STATE OF NEW JERSEY VS. KASHIF PARVAIZ (12-06-0665, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-5029-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KASHIF PARVAIZ,
Defendant-Appellant.
______________________________________________
Submitted February 12, 2018 – Decided June 18, 2018
Before Judges Messano, Vernoia, and DeAlmeida.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
12-06-0665.
Ferro and Ferro, attorneys for appellant
(Nancy C. Ferro, on the briefs).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor and Paula C.
Jordao, Assistant Prosecutor, on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
A Morris County grand jury indicted defendant Kashif Parvaiz
and his paramour, Antoinette Stephen, for the murder of defendant's
wife, Nazish Noorani. Stephen pled guilty to murder and related
charges pursuant to a plea agreement with the State and testified
against defendant at trial. A jury convicted defendant of: first-
degree murder as an accomplice, N.J.S.A. 2C:11-3(a)(1) and (2);
first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2(a)(2)
and N.J.S.A. 2C:11-3(a)(1); two counts of second-degree possession
of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); two
counts of second degree unlawful possession of a handgun, N.J.S.A.
2C:39-5(b); fourth-degree possession of hollow-nosed bullets,
N.J.S.A. 2C:39-3(f)(1); second-degree endangering the welfare of
a child, N.J.S.A. 2C:24-4(a); fourth-degree child abuse, N.J.S.A.
9:6-1 and N.J.S.A. 9:6-3; and third-degree hindering apprehension
or prosecution, N.J.S.A. 39-3(b)(4).
After appropriate mergers, Judge Robert J. Gilson sentenced
defendant on the murder conviction to life imprisonment with sixty-
three years and nine months of parole ineligibility under the No
Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed
concurrent sentences on the remaining weapons offenses, a
consecutive seven-year term with two years of parole ineligibility
on the endangering conviction, and a consecutive three-year term
on the hindering conviction.1
1
The judge dismissed the child abuse conviction, reasoning it was
a lesser-included offense of the endangering conviction.
2 A-5029-14T4
Before us, defendant raises the following points on appeal:
POINT ONE
THE TRIAL COURT ERRED IN REFUSING TO DISMISS
THE INDICTMENT.
POINT TWO
THE TRIAL COURT ERRED IN GRANTING THE STATE'S
MOTION PURSUANT TO N.J.R.E. 104 TO ADMIT
DEFENDANT'S ALLEGED STATEMENTS MADE TO MEMBERS
OF LAW ENFORCEMENT.
POINT THREE
THE COURT'S PRE-TRIAL RULING ON SEPTEMBER
[30], 2014[,] ALLOWED THE POSSIBILITY OF THE
STATE INTRODUCING PREJUDICIAL POST-INCIDENT
LETTERS WHICH HAD A CHILLING EFFECT.
POINT FOUR
THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL
EVIDENCE BY THE RULING ON THE N.J.R.E. 404(B)
MOTION ON APRIL 30, 2014.
POINT FIVE
THE STATE IMPROPERLY ATTACKED DEFENSE EXPERT
DR. [STUART] ON HIS FEES EARNED IN UNRELATED
CASES.
POINT SIX
THE DEFENDANT'S SENTENCE WAS EXCESSIVE AND DID
NOT MEET UNIFORMITY GUIDELINES.
In a supplemental pro se brief, defendant argues:
POINT I
THE TRIAL COURT ERRED IN REFUSING TO DISMISS
THE INDICTMENT.
3 A-5029-14T4
A) PREJUDICIAL MEDIA COVERAGE
B) LACK OF TESTIMONIAL EVIDENCE
C) EXCULPATORY EVIDENCE NOT
PRESENTED
D) DISMISSAL OF WEAPONS CHARGES
POINT II
THE TRIAL COURT ERRED IN GRANTING THE STATE'S
MOTION PURSUANT TO RULE 104 TO ADMIT
DEFENDANT'S ALLEGED STATEMENTS TO LAW
ENFORCEMENT.
POINT III
THE TRIAL COURT'S PRE-TRIAL RULING ON
SEPTEMBER 30, 2014[,] ALLOWED THE POSSIBILITY
OF THE STATE INTRODUCING PREJUDICIAL, POST-
INCIDENT LETTERS WHICH HAD A CHILLING EFFECT.
POINT IV
THE TRIAL COURT ERRED IN ALLOWING PREJUDICIAL
EVIDENCE BY THE RULING ON THE 404(B) MOTION
ON APRIL 30, 2014.
POINT V
THE STATE IMPROPERLY ATTACKED A DEFENSE EXPERT
DR. STEWART [SIC] ON THE AMOUNT OF FEES EARNED
IN UNRELATED CASES.
POINT VI
DEFENDANT'S SENTENCE WAS EXCESSIVE AND DID NOT
MEET UNIFORMITY GUIDELINES.
We have considered these arguments in light of the record and
applicable legal standards. We affirm.
4 A-5029-14T4
I.
On August 16, 2011, defendant, Noorani and their two young
sons were visiting Noorani's family in Boonton to celebrate the
end of Ramadan. After sunset, defendant and Noorani went for a
walk, with defendant pushing their youngest son in a stroller.
Pursuant to an elaborate scheme hatched months earlier, Stephen
lay in wait, armed with two different handguns. She approached,
shot and killed Noorani, then shot and wounded defendant to make
it appear as if the assault were a robbery.
Law enforcement officers and emergency medical technicians
arrived and rendered assistance to defendant, who was screaming
in pain, having been shot in the wrist, leg, shoulder, and
buttocks. Defendant gave conflicting descriptions of his
assailants, their number and what they said during the attack to
Sergeant Richard Vnencak of the Boonton Police Department and
Detective Sergeant Thomas Lesiak of the Parsippany-Troy Hills
Police Department. At the hospital, defendant provided two
recorded statements to Detective Matthew Potter of the Morris
County Prosecutor's Office, consented to Potter's search of his
cellphone, and admitted to having an extramarital affair for six
years with a woman other than Stephen.
Captain Jeffrey Paul of the Prosecutor's Office arrived at
the hospital and questioned defendant further. When defendant
5 A-5029-14T4
told Paul that what had occurred was "an accident," and he never
intended the result, Paul stopped the interview and administered
Miranda2 rights to defendant. Defendant was admitted to the
hospital, and Paul took nine additional recorded statements from
him, some initiated by defendant's request to continue speaking
with Paul. Before some, defendant spoke to family members. In
each instance, defendant either acknowledged that he had received
Miranda rights earlier and waived his right to remain silent, or
waived his Miranda rights after they were re-administered.
Defendant admitted that he had a long-standing affair with an
unnamed woman and that he planned his wife's murder with a male
friend.
Judge Gilson conducted a pretrial hearing regarding the
admissibility of defendant's statements pursuant to N.J.R.E.
104(c). Vnencak, Lesiak, Potter, Paul, and Morris County
Prosecutor's Office Detective Harrison Dillard testified.
Defendant called two witnesses. Officer Brian Ahern of the Morris
County Sheriff's Department testified regarding the gunshot
residue test he performed on defendant's hands in the early morning
of August 17. Lieutenant Stephen Wilson of the Morris County
2
Miranda v. Arizona, 384 U.S. 436 (1966).
6 A-5029-14T4
Prosecutor's Office testified that he had directed Potter to obtain
defendant's consent to search his cell phone.
As explained in his comprehensive written decision, Judge
Gilson found the officers who had initially spoken to defendant
at the scene and in the hospital "credibly testified that they
viewed [him] as a victim" and were attempting to gather information
about "the alleged shooters." After considering the totality of
the circumstances, the judge found that defendant "was not in
custody or subject to custodial interrogation at the shooting
scene, or while he was transported to the hospital, or for several
hours at the hospital." Judge Gilson determined that defendant
was in custody when Paul administered Miranda rights "some time
after 3:30 a.m. on August 17, 2011."
Judge Gilson also found that despite having been shot four
times, defendant's wounds were not life threatening and he remained
alert during all interviews. The judge listened to the audio
recordings and concluded defendant understood and answered the
officers' questions "with clear comprehension." The judge
concluded
all statements made by [d]efendant to law
enforcement officers up to and including the
first interview conducted by [Captain] Paul,
were made at a time when [d]efendant was not
in custody. Towards the end of [Captain]
Paul's first interview, [Captain] Paul advised
[d]efendant of his Miranda rights and
7 A-5029-14T4
[d]efendant freely and knowingly waived those
rights. Thereafter, when [d]efendant twice
invoked his rights, the interviews . . .
ended, but later [d]efendant reinitiated the
communications.
Judge Gilson entered an order permitting the State to introduce
evidence of defendant's statements to Vnencak, Lesiak, Potter and
Paul, and to play the audio recordings for the jury, subject to
appropriate edits and redactions.
Defendant argues the State failed to prove beyond a reasonable
doubt that he knowingly and voluntarily waived his right to remain
silent. He contends that he was in custody before Paul
administered Miranda rights for the first time, and that the
officers failed to stop questioning him when he invoked his right
to remain silent and failed to re-administer Miranda warnings as
necessary.
"Appellate courts reviewing a grant or denial of a motion to
suppress must defer to the factual findings of the trial court so
long as those findings are supported by sufficient evidence in the
record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citing State
v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J.
224, 243 (2007)). "Because legal issues do not implicate the
fact-finding expertise of the trial courts, appellate courts
construe the Constitution, statutes, and common law 'de novo --
with fresh eyes -- owing no deference to the interpretive
8 A-5029-14T4
conclusions' of trial courts, 'unless persuaded by their
reasoning.'" State v. S.S., 229 N.J. 360, 380 (2017) (quoting
State v. Morrison, 227 N.J. 295, 308 (2016) (citations omitted)).
"[T]he protections provided by Miranda are only invoked when
a person is both in custody and subjected to police interrogation."
Hubbard, 222 N.J. at 266 (citing State v. P.Z., 152 N.J. 86, 102
(1997)). "The critical determinant of custody is whether there
has been a significant deprivation of the suspect's freedom of
action based on the objective circumstances, including the time
and place of the interrogation, the status of the interrogator,
the status of the suspect, and other such factors." P.Z., 152
N.J. at 103 (emphasis added). "If the questioning is simply part
of an investigation and is not targeted at the individual because
she or he is a suspect, the rights provided by Miranda are not
implicated." State v. Timmendequas, 161 N.J. 515, 614-15 (1999).
See also State v. Melendez, 423 N.J. Super. 1, 24 (App. Div. 2011)
(quoting State v. O'Neal, 190 N.J. 601, 618 (2007)) (Miranda
warnings are not required prior to questioning if there is "an
objectively reasonable need to protect the police or public from
any immediate danger associated with a weapon.").
When a suspect unambiguously asserts his right to remain
silent, all questioning must stop. S.S., 229 N.J. at 382. Our
jurisprudence, however, has extended greater protection. "[U]nder
9 A-5029-14T4
our state law privilege against self-incrimination, 'a request,
however ambiguous, to terminate questioning . . . must be
diligently honored.'" Ibid. (quoting State v. Bey (Bey II), 112
N.J. 123, 142 (1988)). Once a suspect has asserted his right to
remain silent, "[i]n the absence of . . . renewed warnings any
inculpatory statement given in response to police-initiated
custodial interrogation . . . is inadmissible." State v. Hartley,
103 N.J. 252, 256 (1986) (emphasis added). "That rule, however,
does not apply if the defendant initiates a dialogue about the
crime." State v. Harvey, 151 N.J. 117, 222 (1997).
In this case, Judge Gilson concluded the initial questions
posed to defendant by Vnencak, Lesiak, Potter and Paul were
attempts to investigate the shooting in which defendant was himself
a victim. Only when defendant intimated his involvement was more
nefarious did his status change to that of suspect. At that point,
police administered Miranda warnings before asking further
questions.
Judge Gilson carefully reviewed the events that transpired
before each recorded statement. He essentially concluded, and we
concur, that police stopped questioning defendant whenever he
invoked his right to remain silent, began questioning him again
when he indicated a desire to continue speaking, and re-
administered Miranda rights to defendant as necessary.
10 A-5029-14T4
Defendant notes that the officers who testified admittedly
never spoke to any medical personnel before interrogating him. He
contends the judge failed to consider the effects of defendant's
physical injuries and the medical treatment he was receiving at
the time in deciding whether his statements were voluntary. We
again disagree.
Even when Miranda warnings are properly administered, "the
State bears the burden of proving beyond a reasonable doubt that
a defendant's confession is voluntary and not resultant from
actions by law enforcement officers that overbore the will of a
defendant." Hubbard, 222 N.J. at 267 (citing State v. Hreha, 217
N.J. 368, 383 (2014); State v. Galloway, 133 N.J. 631, 654 (1993)).
"Determining whether the State has met that burden requires a
court to assess 'the totality of the circumstances, including both
the characteristics of the defendant and the nature of the
interrogation.'" Hreha, 217 N.J. at 383 (quoting Galloway, 133
N.J. at 654).
Here, Judge Gilson listened to the audio recordings. He
credited the officers' testimony that defendant was not confused
and remained calm and cooperative. We disagree with the implicit
assertion that the judge was unable to assess the voluntariness
of defendant's statements without expert medical testimony. We
11 A-5029-14T4
affirm the judge's order admitting defendant's statements as
evidence at trial.3
II.
A.
We turn to asserted trial errors. The State moved pretrial
to introduce evidence of uncharged "bad acts" committed by
defendant, see N.J.R.E. 404(b); State v. Foglia, 415 N.J. Super.
106, 122-23 (App. Div. 2010) (N.J.R.E. 404(b) applies to "bad
conduct" evidence, even if not criminal), arguing the evidence was
probative of defendant's motive and intent to conspire with Stephen
to murder Noorani. Judge Gilson conducted a Rule 104 hearing at
which the State called numerous witnesses, and entered an order
granting in part and denying in part the State's application. In
particular, the judge permitted the State to introduce:
(1) certain internet messages between defendant and Stephen's
sister in which he asked her to purchase poison for him while she
was visiting India; and (2) twenty-five emails recovered from
3
In his pro se brief, defendant asserts trial counsel provided
ineffective assistance by failing to present any expert medical
testimony at the N.J.R.E. 104 hearing. We choose not to address
the issue, leaving it for defendant to assert if he seeks post-
conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).
12 A-5029-14T4
defendant's computer, in which he asked avowed practitioners of
voodoo or black magic to cast spells on his wife.4
In his written decision that followed the hearing, the judge
applied the four-prong Cofield test used to determine
admissibility of bad conduct evidence under Rule 404(b):
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)
(citation omitted).]
The judge allowed the State to introduce "the retrieved internet
communications [with Stephen's sister]," but limited the sister's
testimony to "[d]efendant's statement as opposed to
characterization of the communications."
Additionally, the judge found the emails recovered from
defendant's computer sent to voodoo and black magic websites were
both relevant and reliable. The judge explained:
Those e-mails, which are in [d]efendant's own
words, show his desire to be rid of his wife
through any means, including her death.
4
The appeal challenges only the 404(b) evidence admitted by these
two rulings.
13 A-5029-14T4
Accordingly, the e-mails are highly relevant.
The e-mails are also sufficiently reliable to
be presented to a jury. Defendant has not
disputed that these e-mails are authentic e-
mails that he sent. Moreover, the e-mails
were all recovered from Defendant's computer.
Judge Gilson reasoned the "key issue" was "whether the e-mails
[were] more prejudicial than probative." After carefully
considering the fourth prong of the Cofield test, the judge
concluded:
On balance, . . . the e-mails are not more
prejudicial than probative. Defendant has
denied he conspired to kill his wife, and his
motive and intent are critical issues in the
case. These emails [sic] go directly to
[d]efendant's motive and intent.
Significantly, they are [d]efendant's own
communications, in his own words. While
[d]efendant has argued that the emails are
prejudicial, given that they are [d]efendant's
own emails, they are not more prejudicial than
probative. Moreover, the jury will be given
instructions to only consider the e-mails as
they go to motive and intent.
Before us, defendant tersely argues Judge Gilson erred in
admitting this evidence, which was "extremely prejudicial" and
"unrelated to the crime."5 The argument lacks sufficient merit to
5
In his pro se supplemental brief, defendant argues the emails he
sent to the websites were privileged pursuant to N.J.R.E. 511, the
cleric-penitent privilege, and protected by the First Amendment.
Defendant never raised this argument in the trial court, and so
it is not properly before us on appeal. State v. Witt, 223 N.J.
409, 419 (2015). Nevertheless, the argument lacks any merit.
(footnote continued next page)
14 A-5029-14T4
warrant discussion in a written opinion. R. 2:10-2(e)(2). We
note only that the decision to admit or exclude evidence under
Rule 404(b) rests in the sound discretion of the trial court, to
which we accord "great deference" and reverse "only in light of a
clear error of judgment." State v. Gillispie, 208 N.J. 59, 84
(2011) (citation omitted). Judge Gilson did not mistakenly
exercise his discretion, and we affirm for the reasons stated in
his written opinion.
B.
While in jail awaiting trial, defendant wrote nineteen
letters to Stephen, who was also in custody. Based upon that
correspondence and communications defendant had with another
inmate, Michael Brown, a grand jury returned two indictments
(footnote continued)
Because testimonial privileges 'undermine the search for
truth in the administration of justice,'" we construe them
narrowly, State v. J.G., 201 N.J. 369, 383 (2010) (quoting State
v. Williams, 184 N.J. 432, 444 (2005)), and the party asserting
the privilege has the burden of demonstrating it applies. Horon
Holding Corp. v. McKenzie, 341 N.J. Super. 117, 125 (App. Div.
2001). For the privilege to apply, the communication must be
made: "(1) in confidence; (2) to a cleric; and (3) to the cleric
in his or her professional character or role as a spiritual
advisor." J.G., 201 N.J. at 383-84 (quoting State v. Cary, 331
N.J. Super. 236, 244 (App. Div. 2000)). Having never made the
argument before Judge Gilson, defendant certainly failed to carry
his burden. Moreover, there is no support for the claim that
defendant's emails to a public website were made with any
expectation of confidentiality.
15 A-5029-14T4
against defendant alleging witness tampering, N.J.S.A. 2C:28-5(a),
and the attempted murder of Noorani's family members and
defendant's former paramour. The State sought to join these
indictments with the indictment charging defendant with Noorani's
murder.
Judge Gilson denied the joinder motion, concluding "the
prejudicial impact of the State's evidence would outweigh its
probative value" and confuse the jury. He explained that the
jailhouse letters would be prejudicially cumulative, because there
was "adequate alternative evidence" of defendant's involvement in
Noorani's murder, particularly in light of Stephen's agreement to
testify against him.
However, in his written decision, the judge specifically
declined to address whether the State could introduce the evidence
under N.J.R.E. 404(b). Noting there was no motion before the
court, Judge Gilson stated:
One of the principal concerns regarding
joinder of the Indictments is the high degree
of confusion in using the letters for
different purposes in a joint trial. That
confusion would not be present if some of the
letters were used to show consciousness of
guilt or intent to conspire to commit murder.
Moreover, under Rule 404(b), those letters
could be "sanitized" and more narrowly
tailored and thereby avoid the possibility of
confusion and prejudice to the Defendant.
16 A-5029-14T4
It should be further noticed that the
Court may need to wait until the trial of this
matter has begun before it can appropriately
determine the use of the alleged witness
tampering letters under Rule 404(b). . . .
Finally, nothing in this opinion or the
accompanying Order should be read to preclude
the State from making an appropriate motion
at trial to use the letters in redirect or
rebuttal if Defense counsel opens such a door
in the questioning of Antoinette Stephen.
The State never moved before trial to admit the evidence under
N.J.R.E. 404(b). Nonetheless, defendant argues the judge's
opinion "acted as a 'sword of Damocles,'" chilling defense
counsel's cross-examination and summation. The argument not only
ignores the trial record but also rests upon a faulty legal
premise.
The prosecutor attempted on several occasions to admit the
letters into evidence, arguing that defense counsel had opened the
door during his cross-examination of Stephen and her sister. Judge
Gilson denied those requests. Nothing Judge Gilson said in
colloquy with counsel about the possible re-opening of the case
if defense counsel strayed in summation from prior rulings was
prejudicial, and, indeed, the prosecutor did not object during
defense counsel's summation.
Moreover, the premise of defendant's entire argument is that
admitting the letters into evidence under any circumstances would
17 A-5029-14T4
have been reversible error. We disagree with that assumption as
a matter of law. As Judge Gilson noted, the letters were highly
probative and, had the State moved pretrial, some of them likely
and properly would have been admitted to prove motive and intent.
Defendant can hardly claim reversible error when this very damning
evidence was kept entirely from the jury.
C.
Defendant called Dr. William Allen Stuart as an expert in
emergency medicine. Dr. Stuart had reviewed defendant's hospital
records and police reports, but he never interviewed defendant.
It was the doctor's opinion that given the medication administered
at the hospital, defendant would have been asleep when Captain
Paul interviewed defendant in an unrecorded conversation. Dr.
Stuart also opined that other medication given to defendant makes
patients susceptible to suggestion and unable to exercise critical
judgment. During cross-examination, Dr. Stuart acknowledged that
he testified predominantly for defense counsel, had collected tens
of thousands of dollars in fees every year from 2011 through 2014,
and was charging defendant $2000 for the time spent testifying in
this case.
Defendant argues the judge erred by permitting the prosecutor
to cross-examine the doctor about the fees he earned in unrelated
cases. We find no reversible error.
18 A-5029-14T4
"[O]rdinarily, the scope of cross-examination of a witness
rests in the discretion of the trial judge. An appellate court
will not interfere with the exercise of such discretion unless
clear error and prejudice are shown." State v. Adames, 409 N.J.
Super. 40, 61 (App. Div. 2009) (quoting Glenpointe Assocs. v. Twp.
of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990)).
"The bases on which an expert relies when rendering an opinion
are a valid subject of cross-examination." State v. Jenewicz, 193
N.J. 440, 466 (2008). Moreover, historically, the jury may
consider the expert's fee as a factor possibly affecting
credibility. State v. Smith, 167 N.J. 158, 189 (2001); see also
Model Jury Charges (Criminal), "Optional Charge Concerning
Compensation of Experts" (approved Oct. 1, 2001) (adopted to
address the Court's concern in Smith, 167 N.J. at 189, that the
then-current jury charge was inadequate). However, the prosecutor
may not denigrate the expert or imply the fees tainted his
testimony or that the expert offered testimony contrived with
defense counsel's assistance. Smith, 167 N.J. at 184-85; see also
State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002)
(prosecutor's summation made "evidentially unsupported assertions
that the experts had sold their integrity for their witness fees").
Here, defense counsel first introduced the subject of Dr.
Stuart's fee on direct examination. The prosecutor's summation
19 A-5029-14T4
criticized the doctor's opinions based upon his failure to
interview defendant or listen to the audio recordings. He made
one fleeting comment regarding the doctor's fees, calling him "a
professional witness." Additionally, Judge Gilson provided the
Model Jury Charge at the end of the case, which focused the jurors'
attention on the proper import of this evidence. Under these
circumstances, the prosecutor's cross-examination and summation
comments were not reversible error.
III.
At sentencing, Judge Gilson found aggravating factors three
and nine applied to all counts for which defendant was convicted.
See N.J.S.A. 2C:44-1(a)(3) (the risk defendant will re-offend);
N.J.S.A. 2C:44-1(a)(9) (the need to deter defendant and others).
He also found aggravating factor two, N.J.S.A. 2C:44-1(a)(2) (the
gravity and seriousness of harm to the victim), only as to the
child endangerment conviction, rejecting its application and
application of aggravating factor one, N.J.S.A. 2C:44-1(a)(1) (the
nature and circumstances of the offenses and defendant's role),
to all other counts to avoid "double counting." See State v.
Fuentes, 217 N.J. 57, 74-75 (2014) (an element of the offense may
not be used as an aggravating sentencing factor to increase
punishment).
20 A-5029-14T4
The judge applied mitigating factor seven. N.J.S.A. 2C:44-
1(b)(7) (defendant's lack of criminal history). He fully explained
why he rejected other mitigating factors urged by defense counsel.
Judge Gilson considered the factors cited by the Court in State
v. Yarbough, 100 N.J. 627, 643-44 (1985), in deciding to impose
certain consecutive sentences.
Defendant argues the sentence was excessive. He claims that
the judge mistakenly considered and weighed the aggravating and
mitigating factors, and that the sentence was impermissibly
disparate to the one imposed on Stephen. We reject these
arguments.6
"Appellate review of sentencing is deferential, and
appellate courts are cautioned not to substitute their judgment
for those of our sentencing courts." State v. Case, 220 N.J.
49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606
(2013)). Generally, we only determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
6
Defendant also argues the Pre-Sentence Investigation (PSI) report
contained objectionable opinions of the probation officer who
interviewed defendant regarding defendant's lack of remorse. The
argument lacks sufficient merit to warrant discussion. R. 2:11-
3(e)(2). It suffices to say that Judge Gilson's thorough oral
opinion demonstrates a considered evaluation of the evidence, as
well as the judge's own independently reached conclusions
regarding the level of defendant's remorse.
21 A-5029-14T4
record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[Fuentes, 217 N.J. at 70 (alteration in
original) (quoting State v. Roth, 95 N.J. 334,
364-65, (1984)).]
Defendant specifically argues the judge erred in finding
aggravating factor three, and in failing to find mitigating factors
eight, (the defendant's conduct was the result of circumstances
unlikely to recur); nine (the defendant's character and attitude
indicate unlikeliness to commit another offense); and twelve (the
defendant was willing to cooperate with law enforcement
authorities). See N.J.S.A. 2C:44-1(b)(8), (9), and (12).
As to aggravating factor three, Judge Gilson recognized
defendant had no prior involvement with the criminal justice
system, however, he noted defendant would rather kill his wife
than go through divorce proceedings. The judge found defendant's
disregard for the law made it likely he would re-offend if
necessary to avoid a difficult situation. As to the mitigating
factors, it suffices to say that Judge Gilson addressed each one,
and we find no reason to disturb his findings as to any. See
Case, 220 N.J. at 66 (explaining "the need for the sentencing
court to explain clearly why an aggravating or mitigating factor
22 A-5029-14T4
presented by the parties was found or rejected and how the factors
were balanced to arrive at the sentence").
Turning to the disparity argument, pursuant to the plea
bargain, in return for her cooperation, Stephen was to receive a
recommended sentence of thirty years imprisonment with thirty
years of parole ineligibility, the minimum sentence for murder. 7
See N.J.S.A. 2C:11-3(b)(1). Defendant contends that because
Stephen was the actual shooter, the life sentence imposed by Judge
Gilson should be set aside, and we should remand for resentencing.
We again disagree.
Even though "[d]isparity may invalidate an otherwise sound
and lawful sentence, . . . [a] sentence of one defendant not
otherwise excessive is not erroneous merely because a
co-defendant's sentence is lighter." State v. Roach, 146 N.J.
208, 232 (1996) (quoting State v. Hicks, 54 N.J. 390, 391 (1969)).
The trial court must determine whether the
co-defendant is identical or substantially
similar to the defendant regarding all
relevant sentencing criteria. The court
should then inquire into the basis of the
sentences imposed on the other defendant. It
should further consider the length, terms, and
conditions of the sentence imposed on the
co-defendant. If the co-defendant is
sufficiently similar, the court must give the
sentence imposed on the co-defendant
substantive weight when sentencing the
7
Defendant's appellate brief actually misstates Stephen's
exposure as "thirty years flat."
23 A-5029-14T4
defendant in order to avoid excessive
disparity.
[Id. at 233.]
Here, Stephen was not sentenced at the time of defendant's
sentencing hearing. Trial counsel's argument was not that any
sentence greater than that anticipated for Stephen was per se
disparate; rather, he argued that since Stephen fired the fatal
shots, defendant should receive no greater sentence than Stephen.
Under the circumstances, Judge Gilson's failure to specifically
address the issue is understandable. The appellate record contains
neither Stephens' judgment of conviction nor the PSI report
prepared in that case.
Although all these circumstances limit our review in the
fashion outlined by the Court in Roach, we assume arguendo that
Stephen received the sentence anticipated by the plea bargain and
conclude defendant's sentence was not impermissibly disparate.
Initially, we have repeatedly recognized that a
co-defendant's cooperation with law enforcement may justify
ostensible sentence disparity. State v. Williams, 317 N.J. Super.
149, 159 (App. Div. 1998); State v. Gonzalez, 223 N.J. Super. 377,
393 (App. Div. 1988). Additionally, our review of the trial
evidence makes it abundantly clear that defendant, not Stephen,
was the "mastermind" and intended beneficiary of the plot. The
24 A-5029-14T4
evidence also revealed that defendant repeatedly lied to and misled
Stephen about his family situation. Finally, Judge Gilson found
that defendant had consciously decided to place his own child's
life at risk and lacked remorse for his wife's brutal murder.
While sentence disparity exists in this case, the
circumstances and conduct of Stephens were not "identical or
substantially similar to [that of] defendant." Roach, 146 N.J.
at 233. The sentence imposed on defendant was lawful and
justified, and we affirm.
IV.
Defendant argues it was error to deny his pre-trial motion
to dismiss the indictment. He argues that the crimes garnered
extensive media coverage, and the prosecutor failed to adequately
ensure the grand jurors were free of taint and able to fairly
consider the evidence. He also contends the presentation lacked
sufficient "testimonial evidence" and consisted largely of
hearsay. Lastly, defendant claims the prosecutor failed to present
exculpatory evidence. None of these arguments is availing.
"The trial court's decision denying defendant's motion to
dismiss h[is] indictment is reviewed for abuse of discretion."
State v. Saavedra, 222 N.J. 39, 55 (2015) (citing State v. Hogan,
144 N.J. 216, 229 (1996)). "[B]ecause grand jury proceedings are
entitled to a presumption of validity," defendant bears the burden
25 A-5029-14T4
of demonstrating the prosecutor's conduct requires dismissal of
the indictment. State v. Francis, 191 N.J. 571, 587 (2007) (citing
State v. Engel, 249 N.J. Super. 336, 359 (App. Div. 1991)).
Undoubtedly, the prosecutor has an absolute duty to bring
potential bias or partiality on the part of a grand juror to the
attention of the assignment judge. State v. Murphy, 110 N.J. 20,
33 (1988). Before doing so, "the prosecutor may make a threshold
finding to determine if the facts as presented by the grand juror
have the potential for bias or interest." State v. Brown, 289
N.J. Super. 285, 291 (App. Div. 1996).
Judge Gilson carefully reviewed the prosecutor's inquiry of
the grand jurors before presenting any evidence on the first day
of the proceedings, as well as the additional questions and
cautionary instructions the prosecutor provided later that day and
on the second day of the presentation. The judge concluded the
prosecutor's conduct was more than adequate and "there was no
showing of even a possibility of bias or partiality." We agree.
Defendant next contends the evidence actually adduced before
the grand jury was largely hearsay elicited through leading
questions posed by the prosecutor. This is clearly so. However,
a grand jury may return an indictment based primarily upon hearsay
testimony or other evidence that would be inadmissible at trial.
See, e.g., State v. Tringali, 451 N.J. Super. 18, 26 (App. Div.
26 A-5029-14T4
2017). Moreover, "procedural irregularities in a grand jury
proceeding are rendered harmless where defendant is ultimately
found guilty by petit jury." State v. Warmbrun, 277 N.J. Super.
51, 60 (App. Div. 1994) (quoting State v. Ball, 268 N.J. Super.
72, 120 (App. Div. 1993)). Defendant's argument requires no
further discussion.
Lastly, defendant argues the prosecutor failed to present
exculpatory evidence to the grand jury, namely, the negative
results of a gunpowder residue test performed on defendant shortly
after the shooting, and documentary evidence that Stephen sent
money to defendant on multiple occasions. He argues this latter
evidence served to rebut the State's contention that defendant
sent money to Stephen shortly before the murder to facilitate the
crime.
In Hogan, 144 N.J. at 235, the Court held that prosecutors
generally have no duty to provide the grand jury with evidence
beneficial to a defendant. However, "in the rare case" when the
prosecutor's file contains "credible" evidence "that both directly
negates the guilt of the accused and is clearly exculpatory," the
evidence must be provided to the grand jury. Id. at 237.
Here, Judge Gilson concluded, and we agree, this evidence did
not directly negate defendant's guilt nor was it clearly
exculpatory. Moreover, a finding of guilt by a petit jury renders
27 A-5029-14T4
harmless any failure to present exculpatory evidence to the grand
jury. State v. Cook, 330 N.J. Super. 395, 411 (App. Div. 2000).
Affirmed.8
8
To the extent we have not otherwise addressed assertions made in
defendant's pro se filing, they lack sufficient merit to warrant
discussion, Rule 2:11-3(e)(2), or otherwise were never advanced
in the trial court. Witt, 223 N.J. at 419.
28 A-5029-14T4