STATE OF NEW JERSEY VS. BASIM HENRY (14-09-2285, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4619-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
BASIM HENRY, a/k/a
HENRY BASIN, BASIM
A. HENRY, SALAAL
PACKER, EASIM PARKER,
BASIR WKITE, BASIM AMIN
HENRY, and BOZ,
Defendant-Appellant.
_____________________________
Argued March 10, 2020 – Decided April 21, 2020
Before Judges Yannotti, Hoffman and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 14-09-2285.
Glenn D. Kassman, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Glenn D. Kassman, on the briefs).
Frank J. Ducoat, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
respondent (Theodore N. Stephens II, Acting Essex
County Prosecutor, attorney; Frank J. Ducoat, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Tried by a jury, defendant Basim Henry appeals from his conviction and
sentence. We affirm.
In September 2014, an Essex County grand jury returned Indictment Number
14-09-2285, charging Karif Ford, Kevin Roberts, Hanif Thompson, and defendant
with second-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2, 2C:15-2(a)
(count one); first-degree carjacking, N.J.S.A. 2C:15-2(a)(2) (count two); first-degree
felony murder, N.J.S.A. 2C:11-3(a)(3) (count three); first-degree murder, N.J.S.A.
2C:11-3(a)(1) (count four); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b) (count five); and, second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count six). On the same day, an Essex
County grand jury returned Indictment Number 14-09-2289, charging defendant
with one count of second-degree certain persons not to possess weapons, N.J.S.A.
2C:39-7(b).
Prior to trial, all four defendants unsuccessfully moved to suppress evidence.
Pursuant to N.J.R.E. 404(b), the State moved to admit evidence of defendants'
A-4619-16T3
2
conduct three days before the day of the crimes charged. Judge Michael L. Ravin
granted the State's 404(b) motion.
In May 2017, a jury found defendant guilty of all charges in Indictment No. 14-
09-2285. In a separate trial that followed before the same jury, defendant was
found guilty of the certain persons offense charged in Indictment No. 14-09-2287.
On June 26, 2017, Judge Ravin sentenced defendant to life imprisonment.1
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL COURT'S REPEATED USE OF THE
PHRASE 'AND/OR' DURING ITS JURY
INSTRUCTION ON CONSPIRACY CREATED THE
PRECISE AMBIGUITY DISAPPROVED OF BY THE
SUPREME COURT IN STATE V. GONZALEZ[2] AND
THEREBY DENIED DEFENDANT A FAIR TRIAL.
(Not Raised Below)
POINT II
BECAUSE OF THE MISREPRESENTATIONS
CONTAINED IN DETECTIVE MATHIS'
AFFIDAVITS, THE COURT ABUSED ITS
DISCRETION BY REFUSING TO CONDUCT A
1
Less than four months following defendant's sentencing, Ford, Roberts, and
Thompson all entered guilty pleas, after accepting plea offers from the State.
2
444 N.J. Super. 62, 130 (App. Div. 2016), certif. denied, 226 N.J. 209 (2016).
A-4619-16T3
3
FRANKS[3] HEARING OR EVEN TO PERMIT ORAL
ARGUMENT BY DEFENSE COUNSEL.
(Raised Below)
POINT III
THE COURT'S ADMISSION OF EVIDENCE
SUGGESTED THAT DEFENDANT MAY HAVE
TRIED TO STEAL A RANGE ROVER ON A PRIOR
OCCASION DEPRIVED DEFENDANT OF A FAIR
TRIAL.
(Partially Raised Below)
POINT IV
GIVEN DEFENDANT'S CULPABILITY RELATIVE
TO THE CO-DEFENDANTS, THE IMPOSITION OF A
SENTENCE OF LIFE PLUS TEN YEARS WAS
EXCESSIVE.
(Not Raised Below)
Defendant filed a pro se supplemental brief, in which he argues:
POINT I
NUMEROUS CHARGE ERRORS DEPRIVED HENRY
OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL.
(Not raised below)
A. The jury instructions Erroneously Indicated that
Henry Could be Found Guilty of All of the Offenses
Committed by Thompson and Roberts but not Ford, if
Henry was a Co-Conspirator "and/or" an Accomplice to
Carjacking, and Murder Under the Theory of Vicarious
Liability for Carjacking and Murder.
3
Franks v. Delaware, 438 U.S. 154 (1978).
A-4619-16T3
4
B. Evidence was insufficient to establish knowing and
purposeful murder under N.J.[S.A.] 2C:11-3(a)(1) and (2),
the trial court erred by not adequately instructing the jury
on causation under N.J.[S.A.] 2C:2-3.
POINT II
NUMEROUS CONFRONTATION RIGHT
VIOLATION[S] DEPRIVED HENRY OF HIS
FUNDAMENTAL RIGHT TO A FAIR TRIAL.
(Not raised below)
POINT III
THE PRE-TRIAL AND DURING THE TRIAL
EXTENSIVE PUBLICITY AND DISSEMINATION OF
PERTINENT DETAILS OF THE PROCEEDINGS
THROUGH THE RELEASE OF THE COMPUTER
DISK CONTAINING ALL IN-COURT WITNESSES'
TESTIMONY AND COLLOQUY HAD A
SUBSTANTIAL AND PREJUDICIAL EFFECT ON
THE JURY DEPRIVING DEFENDANT OF HIS RIGHT
TO A FAIR TRIAL. (Not raised below)
POINT IV
TO ENSURE THAT DEFENDANT RECEIVES FAIR
AND UNBIASED TREATMENT AND TO AVOID THE
APPEARANCE OF IMPROPRIETY, JUDGE RAVIN
SHOULD HAVE RECUSED HIMSELF FROM
PRESIDING OVER PROCEEDINGS AS WAS
ADDRESSED IN THE PRE-TRIAL MOTION
PURSUANT [TO] RULE 1:12-1(g) SUBMITTED BY
DENNIS S. CLEARY, ESQ., ON JUNE 24, 2015, ON
BEHALF OF DEFENDANT HENRY. (Raised pretrial)
A-4619-16T3
5
Point V
CUMULATIVE EFFECT OF ALL TRIAL ERRORS
DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR
TRIAL. (Not raised below)
Having considered these arguments in light of the applicable law and facts, we
perceive no basis to disturb defendant's conviction or sentence.
I
We discern the following facts from the record. In the late afternoon of
December 15, 2013, Jaime and Dustin Friedland4 drove their 2012 silver Range
Rover to the The Mall at Short Hills (the mall) in Millburn and parked on the
third-floor parking deck. Several hours later, defendant drove Thompson, Roberts
and Ford in a 1996 green and beige two-tone GMC Suburban to the same parking
deck.
Shortly after 9:00 p.m., surveillance footage from the mall captured the couple
returning to their Range Rover. Dustin opened the car door for Jamie and then
walked around to the back of the car. At this point, Thompson and Roberts
approached Dustin; following a struggle, Thompson shot Dustin in the head,
inflicting a fatal wound. After pointing a gun at Jaime's head and ordering her to get
4
For clarity, and intending no disrespect, we refer to Jaime and Dustin Friedland
by their first names.
A-4619-16T3
6
out of the car, Thompson and Roberts fled in the Range Rover, following defendant
and Ford in the Suburban. Thompson, Roberts, Ford, and defendant then returned
to Newark.
Within an hour of the shooting, Lieutenant Luigi Corino of the Essex County
Prosecutor's Office (ECPO) began reviewing mall surveillance footage, resulting in
the issuance of a "be on the lookout" alert for both the Range Rover and the
Suburban. Police recovered the Range Rover the following morning in Newark.
Investigators later learned that on December 12, 2013, Sergeant Jamal Poyner of
the Millburn Police Department ran the license plate number of a GMC Suburban
driving suspiciously up and down the aisles of the mall parking lot. Lieutenant
Corino requested surveillance from that date, which revealed the Suburban
following a 2013 white Range Rover out of the parking lot.
The police identified G.S.5 as the owner of the white Range Rover. According
to E-Zpass records from December 12, 2013, the Suburban passed through a New
Jersey Turnpike toll booth immediately behind the Range Rover. Lieutenant Corino
interviewed G.S.'s daughter, who confirmed she drove the Range Rover to the mall
on December 12, 2013.
5
To protect their privacy, we use initials to refer to G.S. and her daughter.
A-4619-16T3
7
On December 17, 2013, the court granted the State's application to install and
monitor a mobile tracking device on the 1996 GMC Suburban registered to a person
believed to be defendant's mother.6 In support of the application, the State provided
an affidavit from Detective Miranda Mathis that stated, "During the course of the
investigation, a review of the surveillance footage from the [mall] captured a 1996
GMC Suburban, New Jersey license plate [] leaving the mall parking deck at a high
rate of speed followed by the carjacked Range Rover Wagon." Mathis identified
defendant's mother as the registered owner of the Suburban and stated the current
location of the vehicle was at her address in South Orange.
On December 19, 2013, Ford met with ECPO detectives; after waiving his Miranda7
rights, he agreed to submit to an interview, which the detectives recorded. Ford provided
a detailed account of the carjacking and admitted his involvement. He informed the
detectives he was staying at his mother's house, and that the clothes he wore during the
carjacking, including a burgundy vest, remained at that location.
6
The record indicates it was later determined the actual owner of the vehicle
was the "significant other" of defendant's mother, who resided at the same
address as defendant and his mother.
7
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4619-16T3
8
In addition, Ford voluntarily turned over his cell phone to the detectives; a search
of the phone revealed text messages from Thompson's phone, telling Ford that he should
not give anyone the phone number, and that he should "stop running" his "mouth." On
December 20, 2013, police obtained arrest warrants for Ford, Roberts, Thompson, and
defendant.
On December 21, 2013, police executed a search warrant of the home of
defendant's mother in South Orange. Later that day, police arrested defendant at a
motel in Easton, Pennsylvania. After waiving his Miranda rights, defendant
provided a statement, recounting the events leading up to the murder, the murder
itself, and his efforts to evade detection.
During the statement, defendant confirmed that, days prior to the murder, he and
Thompson arrived at the mall in the GMC Suburban, looking for a Jeep Cherokee to
steal. He confirmed that he picked up Roberts, Thompson and Ford in the Suburban
on the night of the murder and went to the mall to steal a Range Rover. He admitted
he saw a gun in Thompson's coat before the four men went to the mall.
In September 2015, defendants all filed or joined in motions to suppress evidence
of the cell phone records of all four defendants obtained with communication data
warrants (CDWs). The cell phone records showed that all four defendants were
together before the murder, that several of their phones pinged off of towers
A-4619-16T3
9
servicing the mall just before the murder, that their phones were not in use at the
time of the murder, that the four men were in contact with one another shortly after
the murder, and that all four defendants returned to the Newark area after the murder.
In an affidavit submitted by the State in opposition to the motion, Detective
Mathis explained:
I believed then, as I do now, that every factual assertion in
that paragraph was and is accurate. . . . With regard to the
language in question . . . "[t]he vehicle is currently located
at [a specific address in] South Orange, New Jersey."
While the language could lead [one] to conclude that the
license plate was observed on the video, and it was not, the
fact is our investigation led us to believe the car in the
video had that plate number, that the plate number
matched the car, that the last address for the car was [the
South Orange address], and most importantly that the car
was currently at that address.
The judge denied defendants' motions to suppress evidence obtained with
CDWs, rejecting their arguments as lacking in merit. The judge further concluded
that defendants were not entitled to a Franks hearing "because they failed to provide
an offer of proof, such as witness affidavits, to support" their claims that "the
affidavits were deliberately false or contained falsities made with reckless disregard
for the truth."
Judge Ravin further explained:
A literal reading of the statement . . . in support of the
CDWs, that the Suburban captured on the surveillance had
A-4619-16T3
10
a license plate number . . . does not imply that the license
plate number was visible in the surveillance video; rather,
it is consistent with the implication that the license plate
number could have been discovered from other sources,
which is the State's claim, and that the license plate
number was included in the affidavits for descriptive
purposes.
Judge Ravin reasoned probable cause existed for the CDWs "because the totality
of the circumstances described in the affidavit . . . supported the belief that tracking
the [1996 two toned-green and beige GMC Suburban] would provide evidence" of
the murder. The judge further explained that the mistaken identification of
defendant's mother as the owner of the vehicle, rather than defendant's mother's
partner, "does not change the analysis."
On October 26, 2016, Judge Ravin granted the State's motion to admit
defendant's statement at trial. On November 28, 2016, the judge granted the State's
motion to prove defendant's prior bad acts – that defendant drove around the mall
three days prior with a plan and motive to steal a specific type of vehicle – for the
purpose of establishing motive and common scheme or plan, pursuant to N.J.R.E.
404(b).
The judge analyzed the admissibility of the prior bad acts under Cofield.8
Addressing the first prong, the judge found the evidence relevant because it was
8
State v. Cofield, 127 N.J. 328 (1992).
A-4619-16T3
11
probative of defendant's motive to steal a specific type of vehicle and part of an
ongoing plan. Under the second prong, the judge found defendant's prior conduct
similar in kind and reasonably close in time to the incident because it occurred three
days prior to the event. Addressing the third prong, the judge found the evidence of
defendant's prior conduct clear and convincing based on Millburn Police records,
surveillance camera recordings from the mall, and E-ZPass records. Under the
fourth prong, the judge found the probative value of defendant's prior conduct
outweighed the prejudice to defendant.
Judge Ravin limited the evidence presented by the State to defendant leaving the
mall and following a Range Rover on to the highway three days prior to the murder.
The judge also limited the testimony of G.S.'s daughter to "where she drove on
December 12."
In pertinent part, Judge Ravin provided the jury the following charge regarding
conspiracy and vicarious liability, in relationship to the crimes of carjacking and
murder:
Now, we're going to talk about conspiracy and vicarious
liability. Counts [Two] and [Four] of the indictment
charge the defendant with crimes of carjacking and
murder. The State does not allege that the defendant
committed the crimes of carjacking and/or murder
personally, but rather that he is legally accountable for
those crimes even though they were committed by another.
More specifically, the State alleges that the crimes of
A-4619-16T3
12
carjacking and/or murder were committed by Hanif
Thompson and Kevin Roberts and that the defendant is
legally accountable for the crimes of carjacking and
murder committed by Hanif Thompson and Kevin Roberts
because the defendant and Hanif Thompson and Kevin
Roberts allegedly conspired together to commit those
crimes. It is, therefore, necessary that I instruct you as to
both crimes of carjacking and murder and the law of
conspiracy.
I have already instructed you as to the offenses of
carjacking, murder and conspiracy in connection with
instructions on Count [Two], Count [Four] and Count
One].
....
[D]uring this charge, when I make reference to the charges
of carjacking and murder you are to consider each charge
individually.
Judge Ravin charged the jury with the elements of conspiracy to commit
carjacking and then charged the jury with the elements necessary for conspiracy to
commit murder. Thereafter the judge explained, in pertinent part:
If you're satisfied beyond a reasonable doubt that the State
has proven all these essential elements and that Hanif
Thompson and Kevin Roberts committed the crimes of
carjacking and/or murder then you must go on to
determine the guilt or innocence of the defendant for those
same crimes. However, if you're not satisfied beyond a
reasonable doubt that Hanif Thompson and Kevin Roberts
committed the crimes of carjacking and/or murder then
your inquiry ends here and you must return a verdict of not
guilty as to the defendant. Therefore, the following
instructions on conspiracy are only for your use if you find
A-4619-16T3
13
beyond a reasonable doubt that Hanif Thompson and
Kevin Roberts committed the crimes of carjacking and/or
murder.
If you're satisfied beyond a reasonable doubt that the State
has proven all these essential elements and that Hanif
Thompson and Kevin Roberts committed the crimes of
carjacking and/or murder then you must go on to
determine the guilt or innocence of the defendant for those
same crimes.
....
Thus, for the purposes of this case, to find the defendant
engaged in a conspiracy with Hanif Thompson and Kevin
Roberts you must be satisfied beyond a reasonable doubt
of the following elements:
1. That defendant agreed with Hanif Thompson and Kevin
Roberts to commit carjacking and/or murder, and;
2. That when defendant so agreed with Hanif Thompson
and Kevin Roberts, the defendant's purpose, that is his
conscious object, was to promote or to make it easier for
Hanif Thompson and Kevin Roberts to commit the crimes
of carjacking and/or murder.
In this case, after consideration of all the evidence, if you
find beyond a reasonable doubt that Hanif Thompson and
Kevin Roberts committed the crimes of carjacking and/or
murder, and also that the defendant conspired with Hanif
Thompson and Kevin Roberts to commit those crimes,
then you must find the defendant [sic] guilty of the crimes
of carjacking and/or murder. On the other hand, if you
have a reasonable doubt that Hanif Thompson and Kevin
Roberts committed the crimes of carjacking and/or
murder, that the defendant conspired with Hanif
A-4619-16T3
14
Thompson and Kevin Roberts to commit either crimes, or
both, then you must find the defendant not guilty.
Defense counsel did not object to any portion of the instructions the judge
provided. The jury found defendant guilty of all charges in Indictment No.14-09-
2285. A separate trial on Indictment No. 14-09-2287 followed, and the jury returned
another guilty verdict.
On June 26, 2017, Judge Ravin held defendant's sentencing hearing. Defense
counsel conceded no mitigating factors applied, and defendant showed no remorse
for his crimes, either personally or through his attorney. After finding no mitigating
factors, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk
that defendant will commit another offense) and nine, N.J.S.A. 2C:44-1(a)(9)
(need to deter defendant and others from violating the law). He gave significant
weight to aggravating factor three because defendant had been arrested seven times
as a juvenile, fourteen times as an adult, convicted of unlawful possession of an
assault firearm, and convicted of bank robbery. Additionally, the judge noted that
defendant was released from prison in October of 2012 and committed the subject
crimes just over one year later. The judge gave significant weight to aggravating
factor nine, emphasizing defendant's recent release from prison and his escalating
criminal behavior, from weapons offenses to robbery to murder. After mergers,
defendant received a life sentence for first-degree murder, lesser concurrent
A-4619-16T3
15
sentences for first-degree carjacking and second-degree unlawful possession of
a weapon, and a consecutive ten-year sentence on the certain persons conviction.
II
A. Jury Charge Challenge
Relying on Gonzalez, 444 N.J. Super. 62, defendant contends for the first time
on appeal the judge erred by providing ambiguous and erroneous jury instructions.
Specifically, defendant alleges the judge used the phrase "carjacking and/or murder"
and therefore some jurors could have concluded defendant "was an accomplice or
co-conspirator in the carjacking but not the murder, while others may have found
that he was an accomplice or co-conspirator in the murder but not the carjacking."
When a defendant fails to object to a jury charge at trial, we review for plain
error, and "disregard any alleged error 'unless it is of such a nature as to have been
clearly capable of producing an unjust result.'" State v. Funderburg, 225 N.J. 66, 79
(2016) (quoting R. 2:10-2). Plain error, in the context of a jury charge, is "[l]egal
impropriety in the charge prejudicially affecting the substantial rights of the
defendant and sufficiently grievous to justify notice by the reviewing court and to
convince the court that of itself the error possessed a clear capacity to bring about
an unjust result." State v. Camacho, 218 N.J. 533, 554 (2014) (alteration in original)
(quoting State v. Adams, 194 N.J. 186, 207 (2008)).
A-4619-16T3
16
When reviewing any claim of error relating to a jury charge, "[t]he charge must
be read as a whole in determining whether there was any error[,]" State v. Torres,
183 N.J. 554, 564 (2005), and the effect of any error must be considered "in light 'of
the overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)
(quoting State v. Chapland, 187 N.J. 275, 289 (2006)). However, a defendant's
attorney's failure to object to jury instructions not only "gives rise to a presumption
that he did not view [the charge] as prejudicial to his client's case[,]" State v.
McGraw, 129 N.J. 68, 80 (1992), but is also "considered a waiver to object to the
instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013).
In Gonzalez, defendant allegedly conspired with two co-defendants – Aponte
and Zayas – to rob a drug dealer. 444 N.J. Super. at 66-67. Aponte and defendant
pretended that they wanted to buy drugs from the dealer. Ibid. During the
transaction, Zayas emerged from behind a dumpster, and robbed and shot the dealer.
There was no dispute that the defendant was present at the crime scene. Ibid. The
issue was whether the defendant shared the co-defendants' intent to commit the
crimes or whether his participation was the product of duress. The State's case was
essentially a credibility contest between Zayas, who claimed the crime was the
defendant's and Aponte's idea, and defendant, who claimed that Aponte coerced him
into participating.
A-4619-16T3
17
The panel criticized the use of the phrase "and/or." Id. at 71. It found error in
the jury charge on conspiracy and accomplice liability because the charge referred
to "robbery 'and/or' aggravated assault" when referring to the substantive crimes the
co-defendants were alleged to have committed for which the defendant was to be
considered accountable. Id. at 73-75. The panel explained the critical flaw in the
charge as follows:
[T]he nature of the indictment required that the jury decide
whether defendant conspired in or was an accomplice in
the commission of a robbery, or an aggravated assault, or
both. By joining (or disjoining) those considerations with
"and/or" the judge conveyed to the jury that it could find
defendant guilty of either substantive offense — which is
accurate — but left open the possibility that some jurors
could have found defendant conspired in or was an
accomplice in the robbery but not the assault, while other
jurors could have found he conspired in or was an
accomplice in the assault but not the robbery. In short,
these instructions did not necessarily require that the jury
unanimously conclude that defendant conspired to commit
or was an accomplice in the same crime. Such a verdict
cannot stand.
The jury was also told that "to find the defendant guilty of
committing the crimes of robbery and/or aggravated
assault charges, the State must prove [among other things]
that [the co-defendant] committed the crimes of robbery
and/or aggravated assault." Assuming the "and/or" in this
instruction was interpreted as being a disjunctive, it is
entirely possible the jury could have convicted defendant
of both robbery and aggravated assault even if it found [the
co-defendant] committed only one of those offenses, i.e.,
the jury was authorized, if it interpreted "and/or" in this
A-4619-16T3
18
instance as "or," to find defendant guilty of robbery
because it was satisfied the State proved that [the co-
defendant] committed an aggravated assault.
[Id. at 75-77 (citations omitted).]
In denying certification, the Supreme Court expressly limited the panel's holding
"to the circumstances in which it was used in this case." Gonzalez, 226 N.J. at 209.
While the jury charge here is similar to Gonzalez, the context of the cases are
different. Unlike Gonzalez, the State's case did not turn on the testimony of one co-
conspirator. Rather, here, the record contains considerable evidence of defendant
conspiring with his co-defendants. Specifically, the surveillance footage and
defendant's own admissible statements of guilt placed him at the mall three days
before the murder and at the murder scene in the Suburban. Therefore, the State's
case against defendant is overwhelming. Walker, 203 N.J. at 90.
Judge Ravin here repeatedly told the jury to separately consider the crimes of
murder and carjacking. Thereafter, the judge charged the jury on murder, carjacking
and conspiracy separately, without using the disjunctive. In Gonzalez, the judge
mistakenly combined the crimes of robbery and aggravated assault together when
the judge stated the "State does not allege that the defendant committed the crimes
of robbery and/or aggravated assault personally, but legally accountable for that
crime even though it was committed by another." 444 N.J. Super. at 73 (emphasis
A-4619-16T3
19
added). Thus, we find Gonzalez is distinguishable, and viewing the jury charge as
a whole, the charge did not rise to the level of plain error. R. 2:10-2.
B. Denial of Franks Hearing
We next turn to whether the judge abused his discretion when denying defendant
a Franks hearing.
Defendant argues Detective Mathis' affidavit in support of an application to
install a GPS tracking devise on the Suburban incorrectly asserted that the license
plate number of the Suburban was obtained from the mall's surveillance footage.
Defendant further argues that, without the license plate number, the affidavit lacked
probable cause. Defendant contests that police obtaining the information from other
sources is immaterial because that source was not identified in the affidavit.
When reviewing a trial court's denial of a motion to suppress, we will "uphold
the factual findings underlying the trial court's decision so long as those findings are
'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J.
224, 243 (2007) (citation omitted). We will only disturb the trial court's decision "if
[it is] so clearly mistaken 'that the interests of justice demand intervention and
correction.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We must
focus on "whether the motion to suppress was properly decided based on the
A-4619-16T3
20
evidence presented at that time." State v. Gibson, 318 N.J. Super. 1, 9 (App. Div.
1999).
Where, as here, a defendant challenges the veracity of a search warrant affidavit,
a Franks hearing is required only "where the defendant makes a substantial
preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to the finding of probable cause . . . ."
Franks, 438 U.S. at 155-56. The defendant "must allege [a] 'deliberate falsehood or
reckless disregard for the truth,' pointing out with specificity the portions of the
warrant that are claimed to be untrue." State v. Howery, 80 N.J. 563, 567 (1979)
(quoting Franks, 438 U.S. at 171).
To obtain a Franks hearing, a defendant's allegations should be supported by
affidavits or other reliable statements; "[a]llegations of negligence or innocent
mistake are insufficient." State v. Broom-Smith, 406 N.J. Super. 228, 241 (App.
Div. 2009) (quoting Franks, 438 U.S. at 171). The allegations "must be proved by
a preponderance of the evidence." Howery, 80 N.J. at 568. A defendant must also
demonstrate that absent the alleged false statements, the search warrant lacks
sufficient facts to establish probable cause. Ibid. If a search warrant affidavit
contains sufficient facts establishing probable cause even when the alleged false
A-4619-16T3
21
statements are excised, a Franks hearing is not required. Franks, 438 U.S. at 171-
72.
Here, Judge Ravin correctly denied defendant's request for a Franks hearing.
Defendant failed to provide an affidavit or any other reliable statements constituting
a substantial showing that Detective Mathis' affidavit contained deliberate
falsehoods or statements made in reckless disregard for the truth. Defendant initially
challenged the CDW, arguing there was no probable cause to issue the CDW for
phone numbers for defendants and co-defendants because the license plate number
of the Suburban was not visible in the surveillance footage from the mall. On appeal,
defendant does not challenge the CDW but rather the warrant that permitted the
police to place a GPS tracker on the Suburban.
"The limitations imposed by Franks are not insignificant." Howery, 80 N.J. at
567. A defendant's burden is substantial because "a Franks hearing is not directed
at picking apart minor technical problems with a warrant application[,]" but rather,
"it is aimed at warrants obtained through intentional wrongdoing by law enforcement
agents[.]" Broom-Smith, 406 N.J. Super. at 240. Defendant's failure to present any
evidence other than an undisputed fact – that the license plate number did not come
from the surveillance video – resulted in a record devoid of evidence satisfying his
burden for a Franks hearing. See id. at 240-41.
A-4619-16T3
22
Defendant also contends the affidavit did not establish probable cause because
absent the fact of the license plate number, there "was no legitimate basis by which
to connect the Suburban to its registered owner or to the address where it was
parked."
We agree with Judge Ravin's finding of probable cause and that the license plate
number could have been discovered from other sources. The record supports those
determinations. The judge additionally relied on defendant's mother owning the
Suburban and the police corroborating the license plate number when it located the
vehicle at Hallman's address, which gave additional support that tracking the vehicle
would provide evidence of the murder.
C. N.J.R.E. 404(b) Evidence
Defendant further argues, for the first time on appeal, that Judge Ravin erred by
admitting evidence suggesting he may have attempted to steal a vehicle on a prior
occasion.
We give "great deference" to a trial court's determination on the admissibility of
"other bad conduct" evidence. State v. Goodman, 415 N.J. Super. 210, 228 (App.
Div. 2010) (citing State v. Foglia, 415 N.J. Super. 106, 122 (App. Div. 2010)). This
court applies an abuse of discretion standard; therefore, there must be a "clear error
A-4619-16T3
23
of judgment" to overturn the trial court's determination. State v. Castagna, 400 N.J.
Super. 164, 182-83 (App. Div. 2008).
N.J.R.E. 404(b) provides that evidence of other crimes or bad acts is generally
not admissible, unless used for "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."
The concern in admitting evidence of other crimes or bad acts is "the jury may
convict the defendant because he is a bad person in general." Cofield, 127 N.J. at
336 (internal quotation marks omitted). However, "other crimes evidence may be
admissible if offered for any non-propensity purpose, including the need to provide
necessary background information about the relationships among the players"
involved. State v. Rose, 206 N.J. 141, 180-81 (2011) (emphasis, internal quotation
marks, and citations omitted). The evidence is not required to prove or disprove a
fact at issue but need only support a desired inference. State v. Swint, 328 N.J.
Super. 236, 252-53 (App. Div. 2000).
In Cofield, our Supreme Court set forth a four-pronged test to govern the
admission of such evidence:
1. The evidence of the other crime must be admissible as
relevant to a material issue;
A-4619-16T3
24
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.
[Cofield, 127 N.J. at 338; see also State v. Carlucci, 217
N.J. 129, 140-41 (2014) (reaffirming the Cofield test).]
Generally, all four Cofield factors must support the admission of the evidence in
question. State v. P.S., 202 N.J. 232, 255 (2010). However, our Supreme Court has
clarified the second Cofield prong "need not receive universal application in
[N.J.R.E.] 404(b) disputes." State v. Williams, 190 N.J. 114, 131 (2007).
The Cofield analysis presumes that other-crimes evidence is to be excluded,
rather than admitted, as the burden falls on the moving party seeking to admit such
evidence. State v. Reddish, 181 N.J. 553, 608-09 (2005). The risk of prejudice from
such evidence only has to "outweigh" its probative value in order to compel its
exclusion; i.e., the risk does not have to "substantially outweigh" the probative value,
as is required under the general standard of N.J.R.E. 403 for excluding relevant
evidence. Id. at 608. "An important factor in weighing the probative value of other-
crime evidence is whether other, less inflammatory evidence can prove the same fact
in issue." State v. Oliver, 133 N.J. 141, 151 (1993). If less inflammatory evidence
A-4619-16T3
25
is as "equally probative" as the other-crimes evidence proffered, while being "less
prejudicial," that makes the other-crime evidence inadmissible. Castagna, 400 N.J.
Super. at 181.
We "generally admit a wider range of evidence when the motive or intent of the
accused is material." State v. Covell, 157 N.J. 554, 565 (2010). "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." Ibid. (quoting State v. Rogers, 19 N.J. 218,
228 (1955)). Accordingly, we "require a very strong showing of prejudice to justify
exclusion" of evidence of motive or intent. Covell, 157 N.J. at 570.
Here, Judge Ravin determined the State could admit evidence that defendant and
Thompson drove around the mall three days prior to the murder with a plan and
motive to steal a specific type of vehicle. Before he deemed this evidence
admissible, the judge carefully considered the fourth Cofield prong, and determined
the probative value of this act was strong and not outweighed by prejudice to
defendant.
Further, the record shows there was no less inflammatory evidence available to
the State to inform the jury about defendant's plan to steal a vehicle. Accordingly,
we see no reason to disturb the judge's decision to admit this evidence. Additionally,
A-4619-16T3
26
even without this evidence, there is overwhelming proof of defendant's guilt, given
the surveillance footage on the day of the murder and defendant's voluntary
admissions of the crime itself.
If 404(b) evidence is found to be admissible, "the court must instruct the jury on
the limited use of the evidence." Cofield, 127 N.J. at 340-41 (internal citation
omitted). "[T]he court's instruction 'should be formulated carefully to explain
precisely the permitted and prohibited purposes of the evidence, with sufficient
reference to the factual context of the case to enable the jury to comprehend and
appreciate the fine distinction to which it is required to adhere.'" Id. at 341 (quoting
Stevens, 115 N.J. at 304).
Here, Judge Ravin provided an appropriate limiting instruction, both after
Sergeant Poyner testified and again during the final charge. Moreover, defense
counsel drafted the charge and did not object to it. Thus, it is likely "the jury
faithfully followed [the] instruction[s]" it received. State v. Miller, 205 N.J. 109,
126 (2011).
D. Excessive Sentence Claim
Lastly, defendant argues he received an excessive sentence, when his culpability
is compared with that of his co-defendants.
A-4619-16T3
27
We review sentencing determinations with a deferential standard, see State v.
Fuentes, 217 N.J. 57, 70 (2014), and will disturb a trial court's sentence only in
instances where the sentencing guidelines were not followed, the aggravating and
mitigating factors found by the trial judge were unsupported by the evidence, or the
judge's application of the sentencing guidelines rendered the sentence clearly
unreasonable, State v. Roth, 95 N.J. 334, 364-65 (1984). Under that deferential
standard, only when the facts and law show "such a clear error of judgment that it
shocks the judicial conscience" should we modify a sentence on appeal. Id. at 363-
64.
Our Supreme Court has "consistently stressed uniformity as one of the major
sentencing goals in the administration of criminal justice." State v. Roach, 146 N.J.
208, 231 (1996). Unwarranted "[d]isparity [with the sentence of a co-defendant]
may invalidate an otherwise sound and lawful sentence." Id. at 232 (citing, e.g.,
State v. Hubbard, 176 N.J. Super. 174, 175 (Resent. Panel 1980)). However, "'[a]
sentence of one defendant not otherwise excessive is not erroneous merely because
a co-defendant's sentence is lighter.'" Ibid. (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." Id.
at 233.
A-4619-16T3
28
Defendant relies on Roach, 146 N.J. at 216, where the Court considered disparate
sentences imposed by different judges on co-defendants convicted of identical
crimes. Roach was sentenced to two consecutive life terms with sixty years' parole
ineligibility, while his co-defendant was sentenced to two consecutive life terms with
thirty years' parole ineligibility. Ibid. The Court determined that although "there
was nothing intrinsically wrong with [the defendant's] sentence," State v. Roach,
167 N.J. 565, 567 (2001), there was no "acceptable justification of [the] defendant's
sentence in light of the sentence imposed on his co-defendant," Roach, 146 N.J. at
233.
Defendant's reliance on Roach is misplaced. Defendant and his co-defendants
were not convicted of identical offenses with the same degrees of culpability.
Roberts pled guilty to first-degree carjacking, pursuant to a plea agreement. Judge
Ravin sentenced him to a twenty-year prison term, with an eighty-five percent
period of parole ineligibility pursuant to NERA. The judge found mitigating
factor twelve because Roberts agreed to testify against his co-defendants. Ford also
pled guilty to second-degree carjacking, pursuant to a plea agreement. Judge Ravin
sentenced him to a twenty-year prison term, with an eighty-five percent period of
parole ineligibility pursuant to NERA. Thompson, the person who shot Dustin,
pled guilty to first-degree felony murder and second-degree unlawful possession
A-4619-16T3
29
of a weapon, also pursuant to a plea agreement. Judge Ravin sentenced him to a
thirty-year prison term, with thirty years of parole ineligibility, in accordance
with his plea agreement.
Defendant exercised his right to proceed to trial and the jury found him guilty of
all charges under both indictments. Judge Ravin found aggravating factors three and
six applied. The judge emphasized defendant's repeated criminal behavior.
Although defendant's sentence differs from his co-defendant's, defendant's disparate
sentencing argument is fundamentally flawed under Roach.
Judge Ravin addressed the possibility of disparate sentencing at defendant's
sentencing, anticipating that the issue might arise in a case with four co-defendants.
He explained,
A defendant's sentence does not need to be identical to
the sentences of his co-defendants. It is said that it just
cannot be a deviation from what is normal or expected.
In deciding whether a [c]ourt should sentence co-
defendants similarly, the [c]ourt must determine
whether the co-defendants are identical or
substantial[ly] similar to the defendant regarding all
relevant sentencing criteria.
A [c]ourt cannot consider the fact that a defendant
decided to go to trial, while his co-defendants accepted
a plea agreement when making a sentencing
determination for that defendant. But while due
process would undoubtedly be denied if further
punishment were inflicted on a defendant for choosing
to exercise his right to trial, it would be grossly unfair
A-4619-16T3
30
to the co-defendants if all had to be sentenced without
regard to their candid acknowledgment of guilt.
We discern no sentencing error. As noted, defense counsel conceded no
mitigating factors applied, and defendant showed no remorse for his crimes.
Defendant's sentence was within the sentencing guidelines and does not shock the
judicial conscience as unfair.
E. Defendant's Pro Se Supplemental Brief
In his pro se supplemental brief, defendant argues that Judge Ravin "should
have recused himself from presiding over proceedings," in order to insure "fair
and unbiased treatment and to avoid the appearance of impropriety." The
asserted basis for the recusal motion was that Judge Ravin was the judge who
issued the search warrants during the investigative stage of the case.
Motions for recusal "are entrusted to the sound discretion of the judge and
are subject to review for abuse of discretion." State v. McCabe, 201 N.J. 34, 45
(2010). "[T]he mere appearance of bias may require disqualification. However,
before the court may be disqualified on the ground of an appearance of bias, the
belief that the proceedings were unfair must be objectively reasonable." State v.
Marshall, 148 N.J. 89, 279, (1997) (citation omitted); see R. 1.12-1(g); Code of
Judicial Conduct, Canons 2, 3.17, Pressler & Verniero, Current N.J. Court
Rules, App. to Pt. I (2020). "The proper standard to assess defendant's request
A-4619-16T3
31
for recusal is set forth in DeNike v. Cupo, 196 N.J. 502, 517 (2008): 'Would a
reasonable, fully informed person have doubts about the judge's impartiality?'"
State v. Dalal, 221 N.J. 601, 606 (2015).
Defendant's recusal argument lacks merit. Even "[a]n adverse ruling in prior
proceedings does not warrant disqualification." Marshall, 148 N.J. at 276; see
Strahan v. Strahan, 402 N.J. Super. 298, 318 (App. Div. 2008) ("Bias cannot be
inferred from adverse rulings against a party.").
To the extent not already addressed in this opinion, the remaining arguments
raised in defendant's supplemental pro se brief lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-4619-16T3
32