STATE OF NEW JERSEY v. KAREEM A. MCNEIL STATE OF NEW JERSEY v. TAHJ M. LAWS (17-05-0285, MERCER COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-4389-18
A-4959-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KAREEM A. MCNEIL,
a/k/a MCNEIL KAREEM,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
TAHJ M. LAWS,
Defendant-Appellant.
Submitted January 31, 2022 – Decided August 9, 2022
Before Judges Messano and Rose.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 17-05-0285.
Joseph E. Krakora, Public Defender, attorney for
appellant Kareem A. McNeil (Tamar Y. Lerer,
Assistant Deputy Public Defender, of counsel and on
the briefs).
Joseph E. Krakora, Public Defender, attorney for Tahj
M. Laws (Ruth E. Hunter, Designated Counsel, on the
brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent in A-4389-18 (Daniel Opatut, Assistant
Prosecutor, of counsel and on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent in A-4959-18 (Brittany Saxton,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Sometime before 5:00 p.m. on May 25, 2013, nineteen-year-old Devahje
Bing was shot and killed outside the Oakland Park Apartments in Trenton. The
shooting occurred on the heels of a fistfight between Bing and defendant Tahj
M. Laws, who tried to end the skirmish by firing a "hood gun"1 at Bing. That
gun was inoperable. Bing walked away; Laws walked over to defendant Kareem
1
According to the State, a "hood gun" is a "community gun." See N.J.S.A.
2C:39-4(a)(2) (defining a community gun as "a firearm that is transferred
among, between[,] or within any association of two or more persons who, while
possessing that firearm, engage in criminal activity or use it unlawfully against
the person or property of another").
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A. McNeil and exchanged the inoperable gun for a loaded silver .38 caliber
revolver. Within seconds, Laws fired multiple shots at Bing from fifteen feet
away. Bing later died at a local hospital, having succumbed to a bullet wound
to the chest. At the time of the homicide, Laws was fifteen years old; McNeil
was twenty-two years old.
Surveillance video from cameras located at the Oakland Park Apartments
and the nearby Martinez Deli and Grocery captured the weapons exchange.
According to the footage, the exchange was witnessed by Davion Fenderson and
Leigh Burnett, who later gave statements to police confirming the video depicted
them, Bing, and Laws. Fenderson and Burnett heard four gunshots right after
McNeil handed Laws the revolver. Fenderson also told police about
conversations he had separately with Bing and Laws a week or two before the
incident. Burnett disclosed he had seen McNeil carrying a small, grey gun.
Police charged Laws with acts of delinquency which, if committed by an
adult, would have constituted murder and weapons offenses. In June 2014, a
Family Part judge granted the State's motion for involuntary transfer of
jurisdiction to the adult court. In May 2017, Laws and McNeil were charged in
a Mercer County indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1)
and (a)(2) (count one); second-degree possession of a weapon for an unlawful
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purpose, N.J.S.A. 2C:39-4(a) (count two); and second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count three).
Pertinent to this appeal, the motion judge granted the State's ensuing
applications to admit surveillance video evidence from the Oakland Park
Apartments (the May 2, 2018 order), and the Big Oak Deli, formerly known as
the Martinez Deli and Grocery (the June 12, 2018 order). The judge also granted
the State's motion to admit prior bad acts evidence pursuant to N.J.R.E. 404(b)
or as intrinsic to the charged crimes (the June 27, 2018 order). All three orders
were accompanied by well-reasoned written decisions.
On September 11, 2018, defendants entered back-to-back contingent pleas
before another judge. Laws pled guilty to count one, as amended to first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1). In exchange, the State agreed
to recommend a twenty-year prison sentence, subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. The parties and the trial judge executed a
supplemental plea form for a non-negotiated plea based on the trial judge's
representation that he would sentence defendant to an eighteen-year prison term,
subject to NERA. Laws reserved the right to argue for less prison time at
sentencing. Assault charges filed against Laws, stemming from an incident that
occurred while he was in jail pending trial, were expressly excluded from the
A-4389-18
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plea agreement. Immediately thereafter, McNeil pled guilty to count one, as
amended to second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1).
Although designated as an "open plea" because the State did not recommend a
specific sentence, the State agreed to a concurrent, four-year "flat" sentence on
McNeil's violation of probation.
Defendants' plea agreements contained common exceptions and
conditions that are relevant to this appeal. Defendants reserved the right to
appeal the motion judge's orders pertaining to prior bad acts evidence; the
admissibility of the surveillance videos; and "any other motion before the court"
for which an order was entered. See R. 3:9-3(f). Defendants agreed to pay
restitution as determined by the judge at sentencing.
Prior to sentencing, Laws moved to withdraw his guilty plea, contending
the record only supported passion/provocation manslaughter because, having
been previously robbed by Bing, Laws feared for his life when they fought on
the day of the incident. Immediately following argument on April 5, 2019, the
trial judge issued a cogent oral decision, denying the motion. The judge issued
an accompanying order that same day.
The following month, Laws was sentenced to an eighteen-year prison
term, subject to NERA; McNeil was sentenced to an aggregate ten-year prison
A-4389-18
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term, subject to NERA on the manslaughter conviction. Based on the State's
itemized restitution submission, and with defendants' consent, the judge
imposed joint and several restitution in the amount of $18,637. Both defendants
appealed, and we consolidated the appeals for the purpose of issuing a single
opinion.
On appeal, defendants raise two overlapping points challenging the
motion judge's rulings admitting the surveillance video recordings and prior bad
acts evidence. Alternatively, defendants each seek a remand for resentencing,
asserting their sentences are excessive and the judge failed to conduct an ability -
to-pay hearing before imposing restitution. More particularly, McNeil argues:
POINT I
BECAUSE THE VIDEOS WERE NOT
APPROPRIATELY AUTHENTICATED, THE TRIAL
COURT ERRED IN RULING THAT THEY WERE
ADMISSIBLE.
POINT II
THE TRIAL COURT ERRED IN ADMITTING THE
OTHER-BAD-ACT EVIDENCE.
POINT III
THE MATTER MUST BE REMANDED FOR AN
ABILITY-TO-PAY HEARING AND
RESENTENCING.
A-4389-18
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In his brief, Laws raises similar arguments in points I and II, and raises
additional contentions in points III through VI:
POINT I
IT WAS AN ABUSE OF DISCRETION FOR THE
COURT TO FIND ADMISSIBLE [N.J.R.E.] 404(b)
EVIDENCE OF [LAWS'] ALLEGED PRIOR
REQUEST FOR A GUN BECAUSE THE EVIDENCE
WAS NOT CLEAR AND CONVINCING AND THE
PROBATIVE WORTH OF THE EVIDENCE WAS
OUTWEIGHED BY ITS POTENTIAL FOR UNDUE
PREJUDICE.
POINT II
THE COURT IMPROPERLY ADMITTED THE
VIDEO SURVEILLANCE TAPES BECAUSE THE
TESTIMONY DID NOT ESTABLISH THAT THEY
WERE "AN ACCURATE REPRODUCTION" OF
THE CRIME, AND THUS, THE TAPES WERE NOT
PROPERLY AUTHENTICATED.
POINT III
THE TRIAL COURT'S DENIAL OF [LAWS']
MOTION TO WITHDRAW HIS GUILTY PLEA WAS
"CLEARLY ERRONEOUS" BECAUSE THE COURT
IGNORED PLAUSIBLE FACTS SUPPORTING
PASSION/PROVOCATION MANSLAUGHTER
AND MADE CREDIBILITY DETERMINATIONS
WITHOUT HEARING TESTIMONY.
POINT IV
A REMAND FOR RESENTENCING PURSUANT TO
MILLER V. ALABAMA, 567 U.S. 460, 471 (2012), IS
REQUIRED BECAUSE THE TRIAL COURT DID
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NOT RECOGNIZE OR UNDERSTAND "HOW
CHILDREN ARE DIFFERENT," AND BECAUSE
THE SENTENCE WAS NOT BASED ON
"COMPETENT REASONABLE EVIDENCE."
STATE V. CASE, 220 N.J. 49, 64 (2014).
POINT V
ADDITIONALLY, THIS COURT SHOULD
REMAND FOR RESENTENCING BECAUSE THE
COURT IMPOSED AN EXCESSIVELY DISPARATE
SENTENCE AS COMPARED TO THE ADULT
CODEFENDANT, AND FOR THE TRIAL COURT
TO RECONSIDER [LAWS'] SENTENCE BASED ON
THE NEW MITIGATING FACTOR, "THE
DEFENDANT WAS UNDER [TWENTY-SIX]
YEARS OF AGE AT THE TIME OF THE
COMMISSION OF THE OFFENSE," N.J.S.A. 2C:44-
1(b)(14), AND CONDUCT AN ABILITY[-]TO[-]PAY
HEARING.
POINT VI
THIS COURT SHOULD REVERSE THE ORDER
WAIVING JURISDICTION TO ADULT COURT
AND REMAND THE MATTER FOR A NEW
WAIVER HEARING BECAUSE THE STATE
FAILED TO SET FORTH REASONS PURSUANT TO
THE FORMER WAIVER STATUTE, N.J.S.A. 2A:4A-
26, AND FAILED TO CONSIDER THE FACTORS
UNDER THE AMENDED WAIVER STATUTE,
N.J.S.A. 2A:4A-26.1[(c)](3), WHICH SHOULD
APPLY RETROACTIVELY TO [LAWS].
[(Not raised below).]
A-4389-18
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We affirm defendants' convictions and sentences, but vacate the restitution order
and remand solely for the court to reconsider and determine the restitution
amount, if any, based on defendants' ability to pay.
I.
In McNeil's point I and Laws' point II, defendants contend the motion
judge erroneously admitted the surveillance videos of the incident because the
State failed to properly authenticate the video. Laws further argues the State
failed to demonstrate an unbroken chain of custody. The judge rejected these
evidentiary assertions, as do we.
The motion judge conducted separate evidentiary hearings regarding the
video recordings recovered from the apartment complex and those recovered
from the deli. During the course of five days in April, May, and June 2018, the
State presented the testimony of three witnesses as to the video recordings from
the Oakland Park Apartments: Jason Snyder, a detective with the Trenton Police
Department's (TPD) Homicide Unit; Ralph Dowker, the owner of the company
that installed the thirty-two surveillance cameras at the complex; and William
Popovic, the equipment supervisor with MAGLOCLEN, a law enforcement
assistance company funded by the Department of Justice.
A-4389-18
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Snyder responded to the Oakland Park Apartments on the date of the
incident. He was well-familiar with the complex, having responded to calls at
the location between 500 and 1,000 times in his law enforcement career. Snyder
previously downloaded surveillance footage from the complex's cameras. On
the date of the incident, the video monitors in the complex's security office
displayed a live feed, which was consistent with Snyder's observations of the
area before he entered the office.
Snyder detailed the process he employed to obtain the footage for the
shooting in this case, limiting his request to those eight cameras that displayed
different angles of the events. When Snyder returned to police headquarters, he
reviewed the footage, which accurately depicted the areas and structures the
cameras faced. He noticed no additions, deletions, or modifications to the
camera angles. On cross-examination, Snyder acknowledged he maintained the
disk containing the footage with the case file in his desk drawer but did "not put
the original in evidence" in accordance with formal procedure.
Dowker testified to the installation, servicing, design, and security of the
complex's camera system. He explained the cameras were motion activated and
the recordings were not capable of manipulation. The camera system was
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monitored "remotely on a twenty-four-hour basis," and was functioning properly
on the date of the incident.
Popovic enhanced the surveillance footage following Snyder's request "to
shorten the video[s] and put [them] in chronological order." Snyder also sought
to "zoom in on sections; slow motion or pause a different section of the video."
Snyder requested a single video focusing on defendants, specifically showing
the gun exchange and shooting. Popovic compiled two DVDs pursuant to
Snyder's request.
The motion judge conducted a separate hearing on the deli's video
surveillance system, during which the State presented the testimony of Ronald
Kinnunen, a detective assigned to the TPD's Technical Services Unit, and
Snyder. Kinnunen explained the deli's surveillance system. The day after the
shooting, Kinnunen obtained footage from thirteen of the store's sixteen
cameras, spot checking the videos to verify their accuracy.
Snyder obtained the disk from Kinnunen, acknowledging he first watched
the surveillance footage in April 2018, after mistakenly placing the disks in
another homicide case file. The footage was about ten hours in duration and
ended after Bing was shot and emergency services personnel responded to the
scene. Because the time stamp on the videos was accelerated, Snyder ensured
A-4389-18
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their accuracy by comparing them with the time stamps of the complex's video
recordings. Snyder confirmed the deli's videos were in the same condition as
they were when he found them in his case file, without any deletions, additions,
or corrections. Noting the videos were "clear," Snyder identified defendants,
Fenderson, Burnett, and "people on the corner," who "all react[ed] at the same
time as if they're responding to gunfire."
In sum, the surveillance videos were admissible because they were
properly authenticated by the proffered testimony at both hearings. The motion
judge squarely addressed the issues raised in view of the governing law under
N.J.R.E. 901, and made credibility and factual findings that warrant our
deference. See, e.g., State v. Garcia, 245 N.J. 412, 430 (2021). The judge
credited the detectives' testimony, including Snyder's familiarity with the
complex's surveillance system and Kinnunen's knowledge of the deli's system.
The claimed gaps in the videos' chain of custody merely bear upon the weight
of the evidence, not its admissibility. State v. Morton, 155 N.J. 383, 446-47
(1998); see also State v. Mosner, 407 N.J. Super. 40, 62 (App. Div. 2009). We
therefore conclude the motion judge did not abuse his discretion in admitting
the videos. See State v. McLaughlin, 205 N.J. 185, 211 (2011) (applying an
abuse of discretion scope of review on the trial court's evidentiary rulings).
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II.
Nor are we persuaded by the arguments raised in McNeil's point II and
Laws' point I. To give context to defendants' claims, we summarize the
testimony adduced during the three-day testimonial hearing.
Fenderson testified about separate conversations he had with Bing and
Laws a week or two before the shooting. Bing said he had robbed Laws of fifty
dollars and asked Fenderson for a gun. The following day or so, Laws told
Fenderson that Bing had robbed him. Laws asked Fenderson for a gun "quite a
few times" in the days leading up to the shooting. Fenderson separately told
Bing and Laws he did not own a gun. Acknowledging he ran in "the same
circles" as McNeil, Fenderson testified he had seen McNeil carry a .38 revolver
sometime prior to the incident.
Burnett testified he knew McNeil carried a small, grey gun. After Bing
was killed, Burnett learned the gun was a .38 caliber revolver. Burnett saw
McNeil "days before" the shooting with the gun. McNeil was "flashing it,"
meaning he pulled out the gun and played with it.
Burnett also claimed in April 2016, while incarcerated on an assault
charge, he was lodged in the same jail as McNeil. Before Burnett was released
on bond, McNeil assaulted him, stating: "You gonna make it right." At some
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later point, Burnett was arrested on a robbery charge, again detained in the same
jail as McNeil, and placed in protective custody. Whenever Burnett left his cell,
McNeil made "little guns with his hands pointed at" him. McNeil also
threatened the mother of Burnett's child and his niece. Burnett said the threats
occurred daily.
The State presented testimony of the Mercer County Jail's former deputy
warden, Phyllis Oliver, and the jail's transportation sergeant, Shawn Palmer.
Oliver confirmed inmates placed in protective custody could see and hear the
inmates housed in the A-Pod, where McNeil was lodged. Palmer testified on
June 6, 2016, he responded to a "loud disturbance" in one of the holding cells
under his supervision. McNeil "threw a punch" at Burnett, who was on the floor
of the cell when Palmer entered.
The motion judge granted the State's motion, subject to exceptions that
are not at issue in this appeal. The judge admitted the testimony of Fenderson
and Burnett regarding McNeil's possession of the gun in the days leading to the
incident as intrinsic to the weapons offenses and "as appropriate background" to
the homicide incident. Similarly, the judge found evidence of the robbery
"[wa]s relevant to background as intrinsic evidence," and alternatively
admissible under N.J.R.E. 404(b). The judge seemingly found Laws' requests
A-4389-18
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for a gun were admissible to demonstrate his motive or intent. Turning to
Burnett's allegations that McNeil threatened and assaulted him in jail, the judge
was persuaded the testimony was admissible to demonstrate McNeil's
consciousness of guilt.
On appeal, defendants challenge the motion judge's decision. McNeil
maintains the judge erroneously admitted the testimony of: (1) Fenderson and
Burnett that McNeil possessed a gun prior to the shooting; (2) Burnett that
McNeil threatened and assaulted him in jail; and (3) Oliver and Palmer because
"it served only to bolster Burnett's inadmissible testimony." McNeil contends
the evidence either was not relevant or not clear and convincing. Laws
maintains the judge erred by admitting Fender's testimony that: (1) Laws
requested a gun from Fenderson; and (2) Bing robbed Laws. He contends
evidence of the robbery and his alleged request for a gun days before the incident
were not intrinsic evidence of the homicide. Laws also asserts Fenderson's
testimony fails prong three of the Cofield2 test because it was based on
unreliable hearsay.
2
State v. Cofield, 127 N.J. 328, 338 (1992).
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"Trial court decisions concerning the admission of other-crimes evidence
should be afforded 'great deference,' and will be reversed only in light of a 'clear
error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v.
Barden, 195 N.J. 375, 390-91 (2008)). At the time of the hearing in this matter,
N.J.R.E. 404(b) provided: 3
[E]vidence of other crimes, wrongs, or acts is not
admissible to prove the disposition of a person in order
to show that such person acted in conformity therewith.
Such evidence may be admitted for other purposes,
such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident when such matters are relevant to a
material issue in dispute.
In Cofield, our Supreme Court established a four-prong test to determine
the admissibility of other-crimes evidence under N.J.R.E. 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.
3
The Rule was amended, effective July 1, 2020, to reflect restyling revisions,
without altering its substance. See Biunno, Weissbard, & Zegas, Current N.J.
Rules of Evidence, foreword (2022-23).
A-4389-18
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[127 N.J. at 338.]
Whenever other-wrongs or bad-acts evidence is sought to be admitted, the
trial court must make a threshold determination "whether the evidence relates to
'other crimes,' and thus is subject to continued analysis under Rule 404(b), or
whether it is evidence intrinsic to the charged crime, and thus need only satisfy
the evidence rules relating to relevancy, most importantly Rule 403." State v.
Rose, 206 N.J. 141, 179 (2011); see also State v. Sheppard, 437 N.J. Super. 171,
193 (App. Div. 2014) (holding that if the evidence is intrinsic, "N.J.R.E. 404(b)
does not apply because the evidence does not involve some other crime, but
instead pertains to the charged crime"). To determine evidence that is "intrinsic"
to the crime, the Court in Rose adopted the test established in United States v.
Green, 617 F.3d 233, 248-49 (3d Cir. 2010), i.e., evidence is considered intrinsic
if it "directly proves" the crime charged or if the other wrongs or bad acts in
question were performed contemporaneously with, and facilitated, the
commission of the charged crime. Rose, 206 N.J. at 180 (quoting Green, 617
F.3d at 248-49).
Initially, we find no error in the judge's decision, admitting evidence of
McNeil's prior gun possession. As the motion judge recognized, McNeil was
charged with possession of a weapon for an unlawful purpose and unlawful
A-4389-18
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possession of a weapon. The State was required to present evidence that
McNeil, who was vicariously charged with Laws' actions, knowingly possessed
a handgun and possessed it with a purpose to use it against another's person or
property. Because the evidence of McNeil's prior gun possession directly
proved the charged offenses, it was intrinsic to the charged crimes, and thus,
exempt from the strictures of N.J.R.E. 404(b). Rose, 206 N.J. at 177, 180. For
similar reasons, we reach the same conclusion regarding Laws' request for a gun
from Fenderson in the days leading to the shooting.
Even if not intrinsic, the evidence was admissible under N.J.R.E. 404(b).
When motive or intent are at issue, New Jersey courts "'generally admit a wider
range of evidence.'" State v. Jenkins, 178 N.J. 347, 365 (2004) (quoting State
v. Covell, 157 N.J. 554, 565 (1999)). "That includes evidentiary circumstances
that 'tend to shed light' on a defendant's motive and intent or which 'tend fairly
to explain his actions,' even though they may have occurred before the
commission of the offense." Covell, 157 N.J. at 565 (quoting State v. Rogers,
19 N.J. 218, 228 (1955)).
We also agree with the judge that Burnett's testimony about McNeil's
threats and assault in jail were not subject to exclusion under N.J.R.E. 404(b).
See e.g., State v. Yough, 208 N.J. 385, 402 n.9 (2011) (recognizing threatening
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or intimidating a witness after the crime "would be admissible to demonstrate
consciousness of guilt under N.J.R.E. 404(b)"). Indeed, "[o]ur courts have long
held that evidence of threats made by a defendant to induce a witness not to
testify is admissible because it illuminates the declarant's consciousness of
guilt." State v. Buhl, 269 N.J. Super. 344, 364 (App. Div. 1994); see also State
v. Goodman, 415 N.J. Super. 210, 232 (App. Div. 2010). Evidence that a
defendant instructed a witness not to testify is similarly admissible as
inconsistent with innocence. See State v. Williams, 190 N.J. 114, 120, 129-30
(2007).
Lastly, we turn to the admissibility of the evidence of the robbery.
Fenderson's testimony that Laws said Bing had robbed him one week before the
shooting is admissible as a statement against interest, N.J.R.E. 803(c)(25).
Bing's commission of the robbery was not an "other crime" previously
committed by Laws and, as such, the statement was not subject to scrutiny under
N.J.R.E. 404(b). We also agree with the motion judge that the evidence bears
on Laws' motive. Accord Rose, 206 N.J. at 163 (finding that "why [the]
defendant wanted [the victim] killed" was "a crucial piece of evidence").
We part company, however, with the judge's decision to admit Fenderson's
testimony that Bing said he had robbed Laws. At issue is the following
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testimony: "One night, [Bing] came up to me and he told me that basically said
he just did some BS [sic]. And I asked him what happened, and he told me that
he robbed [Laws], and somebody that was with [Laws]. He robbed them for
their money." Unlike Laws' testimony, which was admissible under N.J.R.E.
803(c)(25), the statement of the decedent was inadmissible hearsay, for which
no exception applied. However, because the testimony was brief and
corroborated by Laws' testimony, which was admissible, we deem the error
harmless.
III.
In his point III, Laws argues the trial judge erroneously denied his motion
to withdraw his guilty plea. Quoting the Court's seminal decision in State v.
Slater, 198 N.J. 145, 159 (2009), Laws argues the trial judge ignored "particular,
plausible facts" in the record that supported passion/provocation manslaughter.
Laws further asserts he was entitled to an evidentiary hearing on his claims. We
are unpersuaded by any of his contentions.
Before the trial judge, Laws claimed "he [wa]s only guilty of manslaughter
under the passion/provocation theory," having been previously robbed by Bing,
and he feared for his life when they fought on the day of the incident. In a
detailed oral decision, the judge highlighted the plea proceedings – including
A-4389-18
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Laws' demeanor during the plea colloquy and his factual basis – and evaluated
defendant's application pursuant to the Slater factors. Notably, the judge found
Laws failed to submit a certification, delineating the facts supporting his
passion/provocation theory. Accordingly, the judge found defendant's "bare
assertion" did not support a colorable claim of innocence. See id. at 158. The
judge elaborated:
The defendant hasn't presented any kind of
specific or credible facts. He hasn't pointed to any facts
in the record that would buttress his claim. And this is
a case where there was extensive discovery, there was
video discovery that was referenced but not shown
during the course of the plea and my obligation during
a hearing of this nature is not to turn this matter into a
trial. I'm satisfied that the defendant's assertion of
innocence here is pretty much just a blanket statement
unsupported by evidence and it is not made in reliance
on any particular or plausible facts.
Although Laws initially equivocated during the plea hearing, claiming he
was "under the influence" at the time of the shooting, his ensuing factual basis
established the elements of aggravated manslaughter.
DEFENSE COUNSEL: Tahj, this incident happened
five years [a]go?
DEFENDANT: Yes.
DEFENSE COUNSEL: And it's fair to say that you've
had some difficulty remembering some of this, correct?
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DEFENDANT: Yes.
DEFENSE COUNSEL: However, we did review
multiple videos . . .
DEFENDANT: Yes.
DEFENSE COUNSEL: . . . and discovery?
DEFENDANT: Yes.
DEFENSE COUNSEL: And from that you did view an
altercation with Mr. Bing?
DEFENDANT: Yes.
DEFENSE COUNSEL: And then you ran after Mr.
Bing?
DEFENDANT: Yes.
DEFENSE COUNSEL: The first weapon did not
discharge, correct?
DEFENDANT: Yes.
DEFENSE COUNSEL: You received a second
weapon?
DEFENDANT: Yes.
DEFENSE COUNSEL: And shot it multiple times?
DEFENDANT: Yes.
DEFENSE COUNSEL: While Mr. Bing was running
away?
A-4389-18
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DEFENDANT: Yes.
DEFENSE COUNSEL: And you knew by firing
multiple shots that that would cause death?
DEFENDANT: Yes.
DEFENSE COUNSEL: Nothing further, Your Honor.
THE COURT: How close were you to him when you
were following and shooting?
DEFENDANT: About fifteen feet.
Defendant's sworn testimony established "defendant was aware of and
consciously disregarded a substantial risk of death, i.e., a probability that death
would result, and that the defendant manifested extreme indifference to human
life." State v. Cruz, 163 N.J. 403, 417 (2000). Those facts do not support
passion/provocation manslaughter, which occurs when a crime that "would
otherwise be murder . . . 'is committed in the heat of passion resulting from a
reasonable provocation.'" State v. Galicia, 210 N.J. 364, 368 (2012) (quoting
N.J.S.A. 2C:11-4(b)(2)). For passion/provocation manslaughter to apply, there
must be (1) reasonable and adequate provocation; (2) a lack of time for the
defendant to cool off between the provocation and the killing; (3) actual
provocation of the defendant; and (4) the defendant must not have cooled off
before committing the act. Id. at 379.
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Laws failed to demonstrate he was reasonably or adequately provoked.
An "adequate provocation" is one in which the "'loss of self-control is a
reasonable reaction' to the provocation." State v. Docaj, 407 N.J. Super. 352,
366 (App. Div. 2009) (quoting State v. Mauricio, 117 N.J. 402, 412 (2009)).
Mutual combat may constitute adequate provocation when (1) the "contest [is]
waged on equal terms and no unfair advantage is taken of the deceased"; (2) a
defendant formed the intent to cause serious harm "in the heat of the encounter";
and (3) if the fight reaches a level of "actual physical contact" or serious threat
"sufficient to arouse the passions" of a reasonable person. State v. Crisantos,
102 N.J. 265, 274-75, 275 n.8 (1986) (internal quotation marks omitted).
Here, mutual combat was not an adequate provocation because Laws was
the only person who was armed. Thus, the fight was not on equal terms. Even
if there were adequate provocation from the prior robbery, which there was not,
Laws had ample opportunity to "cool off." Galicia, 210 N.J. at 379. We
therefore discern no abuse of discretion in the trial judge's decision. See Slater,
198 N.J. at 156.
IV.
We also are unpersuaded by Laws' belated contention, raised in his point
VI, that he is entitled to a new waiver hearing because the State failed to provide
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the Family Part judge with a statement of reasons supporting its waiver motion
under N.J.S.A. 2A:4A-26.1, and its predecessor, N.J.S.A. 2A:4A-26. Before the
trial court, Laws never sought clarification of the prosecutor's reasons for
seeking a waiver. He also never claimed the prosecutor abused his discretion in
seeking the waiver. Laws' motion to withdraw his guilty plea did not include a
request for a new waiver hearing with a written statement of reasons submitted
by the prosecutor and reviewed by the Family Part judge. On appeal, Laws does
not expressly seek reversal of his convictions. Instead, he argues a remand is
necessary for a new waiver hearing. Laws' contentions are misplaced.
Laws was fifteen years old when he committed the homicide on May 25,
2013. At that time, N.J.S.A. 2A:4A-26(a) permitted, in pertinent part,
involuntary waiver of jurisdiction to the adult court if the juvenile was fourteen
years old or older when the acts of criminal homicide and possession of a firearm
for an unlawful purpose were committed. 4 The burden then shifted to the
4
The Family Part judge properly ordered waiver of all counts, including
unlawful possession of a weapon, recognizing "once probable cause is found as
to any Chart 1 offense, jurisdiction of all offenses arising out of the same
transaction will merge into the waived proceeding." See, e.g., State v. R.L.P.,
159 N.J. Super, 267, 271-72 (App. Div. 1978).
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juvenile to demonstrate "the probability of his rehabilitation" by age nineteen.
N.J.S.A. 2A:4A-26(e).
However, under the statutory amendments, effective March 14, 2000,
rehabilitation hearings were eliminated "for offenders, aged [sixteen] and over
who [we]re charged with the most serious offenses under the Act." John J.
Farmer, Jr. & Paul H. Zoubek, Off. of the Att'y Gen., Juvenile Waiver
Guidelines 2 (2000) (AG Guidelines) (emphasis added). 5 Pursuant to the AG
Guidelines, prosecutors were required to consider certain factors prior to seeking
involuntary waiver of this group of older juvenile offenders, id. at 5-6, and
"prepare a written statement of reasons for waiver," id. at 7.
Pertinent to this appeal, the AG "[G]uidelines appl[ied] only to those cases
in which the juvenile [wa]s not permitted to overcome the waiver application by
showing that the probability of rehabilitation by the use of the procedures,
services[,] and facilities available to the court prior to the juvenile reaching the
age of [nineteen] substantially outweighs the reasons for waiver." Id. at 3 (citing
N.J.S.A. 2A:4A-26(e)). In the present matter, after the State presented probable
cause that Laws committed the offenses charged in Phase I of the waiver
5
https://www.nj.gov/oag/dcj/agguide/pdfs/AGJuvenile-Waiver-Guidelines.pdf.
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hearing, fifteen-year-old Laws was afforded the opportunity to present evidence
in Phase II that he could be rehabilitated by age nineteen. In view of Laws' age,
the State was not required to file a statement of reasons with its waiver motion
under then-enacted N.J.S.A. 2A:4A-26.
We briefly address Laws' argument that the present waiver statute should
be applied retroactively. In August 2015, N.J.S.A. 2A:4A-26 was repealed and
replaced with N.J.S.A. 2A:4A-26.1, effective March 1, 2016. L. 2015, c. 89, §
6. Among other revisions, the new waiver statute increased the age of
involuntary waiver to fifteen and required the prosecutor to file "a written
statement of reasons clearly setting forth the facts used in assessing all factors
contained [elsewhere in the statute], together with an explanation as to how
evaluation of those facts support waiver for each particular juvenile." N.J.S.A.
2A:4A-26.1(a)
Stating the terms of N.J.S.A. 2A:4A-26.1 were "plain and unambiguous,"
the Court in State v. J.V., 242 N.J. 432 (2020) held, "the Legislature intended
the statute to apply prospectively to those juvenile waiver hearings conducted
after the statute became effective." Id. at 435; see also State in Int. of J.D., 467
N.J. Super. 345, 354 (App. Div. 2021) (comparing the former and revised
versions of the waiver statute and concluding "the Legislature[ made a]
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conscious choice to have the current version apply to all waiver hearings taking
place after March 1, 2016, the effective date of the new statute"). We therefore
reject Laws' retroactivity assertions.
V.
We turn to defendants' independent sentencing arguments before we
address their mutual request for a remand for the judge to conduct an ability -to-
pay hearing. We review the trial judge's sentencing determinations under a
highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
"Appellate review of the length of a sentence is limited." State v. Miller,
205 N.J. 109, 127 (2011). The reviewing court must affirm the sentence unless:
(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 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)).]
"While the sentence imposed must be a lawful one, the court's decision to
impose a sentence in accordance with the plea agreement should be given great
respect, since a 'presumption of reasonableness . . . attaches to criminal
sentences imposed on plea bargain defendants.'" State v. S.C., 289 N.J. Super.
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61, 71 (App. Div. 1996) (quoting State v. Sainz, 107 N.J. 283, 294 (1987)). An
appellate court may not substitute its judgment for that of the sentencing court,
provided the "aggravating and mitigating factors are identified [and] supported
by competent, credible evidence in the record." Case, 220 N.J. at 65.
A.
Laws primarily argues the trial judge failed to consider his youth at the
time he committed the offense. Laws also claims his sentence was "excessively
disparate" to the sentence imposed on McNeil. We are not convinced.
In sentencing Laws to an eighteen-year prison term, as permitted under
the plea agreement, the judge thoroughly considered the circumstances of the
offense and Laws' characteristics, including his juvenile record. The judge
found aggravating factors three (risk of re-offense) and nine (deterrence),
N.J.S.A. 2C:44-1(a)(3) and (a)(9), "very clearly" outweighed mitigating factor
six (defendant "will compensate the victim") and thirteen ("The conduct of a
youthful defendant was substantially influenced by another person more mature
than the defendant"), N.J.S.A. 2C:44-1(b)(6) and (b)(13). Because the present
offense constituted Laws' first indictable conviction, the judge expressly
declined to find aggravating factor six, N.J.S.A. 2C:44-1(a)(6) ("defendant's
prior criminal record").
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Initially, we reject Laws' argument that the judge improperly found
aggravating factor three based on his youth. This is not a case in which the
judge considered youth as an aggravating factor in contravention of the rule
recently announced by the Supreme Court in State v. Rivera, 249 N.J. 285(2021). In Rivera, the Court held a defendant's "youth may be considered only
as a mitigating factor in sentencing and cannot support an aggravating factor."
Id. at 303. In that case, the sentencing court speculated that the defendant would
have engaged in other criminal conduct but did not have the opportunity to do
so because of her youth. Id. at 302. Here, by contrast, the trial judge commented
on the number of Laws' "prior adjudications of delinquency," which were
actually committed in a short time span, and that his "prior custodial records
show[ed] aggressive behaviors."
Further, Laws' reliance on Miller v. Alabama is misplaced. In that case,
the United States Supreme Court recognized the differences between juvenile
and adult offenders. 567 U.S. at 471; see also State v. Zuber, 227 N.J. 422, 446-
47 (2017) (adopting the Miller standard in New Jersey). Importantly, however,
Miller, applies only to cases in which juvenile offenders are charged with life
sentences without parole. 567 U.S. at 470. Although our Supreme Court has
extended the holding in Miller to "a sentence that is the practical equivalent of
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life without parole," Zuber, 227 N.J. at 446-47, that is not the case here.
Defendant's eighteen-year NERA prison term is not the practical equivalent of
a life sentence. 6
Finally, Laws' disparate sentencing argument lacks sufficient merit to
merit discussion in a written opinion. R. 2:11-3(e)(2). We simply add, the
sentence imposed was commensurate with Laws' role in the offense. In sum,
the trial judge did not abuse his discretion in applying and weighing the
applicable aggravating and mitigating factors. Nor does the sentence shock the
judicial conscience. See Roth, 95 N.J. at 364-65.
B.
McNeil generally challenges the judge's assessment of aggravating and
mitigating factors, 7 emphasizing the judge erroneously placed great weight on
6
Nor does the Court's recent companion decision in State v. Comer, and State
v. Zarate, 249 N.J. 359 (2022), support Laws' argument. In those matters, the
Court created a procedure for juvenile offenders sentenced to the murder
statute's mandatory thirty-year parole bar to seek a hearing after serving at least
twenty years in prison for the sentencing court to assess the Miller factors,
including "whether the juvenile offender still fails to appreciate risks and
consequences, and whether he has matured or been rehabilitated," and "the
juvenile offender's behavior in prison since the time of the offense ." Id. at 370.
7
The judge found aggravating factors three and nine substantially outweighed
mitigating factor six. The judge considered but declined to find mitigating
factors eight, ("defendant's conduct was the result of circumstances unlikely to
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aggravating factor nine and failed to consider McNeil was only twenty-two years
old when he committed the offense. In a footnote of his brief, McNeil also
contends mitigating factor fourteen, (defendant was under the age of twenty -six
when he committed the offense) N.J.S.A. 2C:44-1(b)(14), should be applied
retroactively to his sentence. Further, while his appeal was pending, McNeil
filed a letter pursuant to Rule 2:6-11(d), after the Court decided Comer and
Zarate, to supplement his argument that youthful offenders are less likely to
reoffend as they age. We are unpersuaded.
The trial judge's findings were supported by the record. As to aggravating
factor nine, the judge explained the need for specific deterrence, stating "the
tragedy of this case is that it didn't have to happen." Noting the first gun did not
fire, and Laws "left the fight," the judge was persuaded the homicide occurred
because McNeil handed him an operable gun. The judge appropriately
considered the need for general deterrence, citing the "deep and profound effect"
gun violence is having "on the City of Trenton." Cf. State v. Jarbath, 114 N.J.
394, 405 (1989) (recognizing "general deterrence unrelated to specific
deterrence has relatively insignificant penal value").
recur"), and nine, (defendant's character and attitude indicate an unlikelihood of
reoffending), N.J.S.A. 2C:44-1(b)(8) and (b)(9).
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After McNeil's appeal was filed, the Court issued its decision in State v.
Lane, 251 N.J. 84, 96 (2022), which held "that mitigating factor fourteen
appl[ied] prospectively only." We thus reject defendant's argument to the
contrary. Nor are we persuaded by McNeil's supplemental argument under
Comer. As noted above, the Court's holding applies where the defendant was a
juvenile and has served at least twenty years in prison. 249 N.J. at 401. McNeil
fails to satisfy that criteria.
C.
Lastly, because the trial judge did not assess defendants' ability to jointly
and severally pay the $18,637 restitution amount ordered, we are compelled to
remand for an ability-to-pay hearing.
Because compensation to the victim is a relevant sentencing factor, the
parties may include a restitution award in a plea agreement. State v. Corpi, 297
N.J. Super. 86, 92-93 (App. Div. 1997). Generally, however, the sentencing
court should conduct a hearing to determine the defendant's ability to pay and
the value of the victim's loss. See State v. Newman, 132 N.J. 159, 169 (1993).
If "there is a good faith dispute over the amount of loss or [the] defendant's
ability to pay," the court is required to conduct a restitution hearing to resolve
those issues. State v. Jamiolkoski, 272 N.J. Super. 326, 329 (App. Div. 1994);
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see also N.J.S.A. 2C:44-2(c). A remand also may be required where the victim's
loss is uncontested, but the defendant's present or future ability to pay is unclear.
See State in Interest of R.V., 280 N.J. Super. 118, 122-24 (App. Div. 1995).
However, where there is no controversy as to the amount of the victim's loss and
the defendant's ability to pay, a hearing may not be required. See State v. Orji,
277 N.J. Super. 582, 589-90 (App. Div. 1994).
The record before us contains no evidence about defendants' ability to pay,
nor did defendants affirmatively concede the point. Unlike the defendant in
Orji, who was sentenced to a probationary term, "ha[d] a bachelor's degree in
marketing[,] and [wa]s gainfully employed as the owner operator of a limousine
taxi service," 277 N.J. Super. at 589, defendants in the present matters were
sentenced to lengthy prison terms, without gainful employment. Accordingly,
we remand these matters for a hearing limited to determining whether
defendants "presently or in the future will or should be able to pay the amount
ordered." R.V., 280 N.J. Super. at 124.
Affirmed, but remanded solely for an ability-to-pay hearing.
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