State of New Jersey v. Ashley Gardener

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NOT FOR PUBLICATION WITHOUT THE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-0806-21

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ASHLEY GARDENER,

Defendant-Appellant.

________________________

Submitted May 20, 2024 – Decided August 5, 2024

Before Judges Gilson, Berdote Byrne, and Bishop-

Thompson.

On appeal from the Superior Court of New Jersey, Law

Division, Mercer County, Indictment No. 18-04-0058.

Jennifer Nicole Sellitti, Public Defender, attorney for

appellant (Stefan Van Jura, Assistant Deputy Public

Defender, of counsel and on the brief).

Matthew J. Platkin, Attorney General, attorney for

respondent (Mercedes Robertson, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Ashley Gardener of first-degree human

trafficking, N.J.S.A. 2C:13-8(a)(3) and N.J.S.A. 2C:2-6; first-degree promotion

of organized street crime, N.J.S.A. 2C:34-1(b)(3), N.J.S.A. 2C:33-30, and

N.J.S.A. 2C:2-6; and other crimes related to her conduct in forcing B.H.

(Barbara), a then-seventeen-year-old girl, to engage in prostitution. 1 Defendant

was sentenced to consecutive terms of twenty-five years in prison for the

convictions of human trafficking and promotion of organized street crime,

resulting in an aggregate prison term of fifty years, with twenty years of parole

ineligibility.

Defendant appeals arguing that the trial court erred in (1) allowing the

State to conduct a second trial after a mistrial; (2) barring her from using

evidence that Barbara had been charged with unrelated crimes prior to the start

of the second trial; (3) refusing to instruct the jury on alleged affirmative

defenses that defendant herself had been a victim of human trafficking; and (4)

running her sentences for human trafficking and promotion of organized street

crime consecutively. We reject defendant's first three arguments because they

are not supported by the record or the governing law. So, we affirm defendant's

1

To protect the confidentiality of the victim, we use initials and a pseudonym.

See R. 1:38-3(c)(12).

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convictions. We reverse the sentences and remand for a resentencing so that the

sentencing court can correct the sentences that will run consecutively.

I.

We discern the facts from the record, focusing on the evidence presented

at trial.

In January 2018, Barbara reported that she had been held against her will

and compelled by defendant to engage in prostitution on numerous occasions.

Following an investigation, a grand jury indicted defendant for seven crimes:

first-degree conspiracy, N.J.S.A. 2C:5-2; first-degree human trafficking,

N.J.S.A. 2C:13-8(a)(3) and N.J.S.A. 2C:2-6; second-degree facilitating human

trafficking, N.J.S.A. 2C:13-8, N.J.S.A. 2C:13-9(a)(1), and N.J.S.A. 2C:2-6;

first-degree promoting prostitution, N.J.S.A. 2C:34-1(b)(3) and N.J.S.A. 2C:2-

6; first-degree promotion of organized street crime, N.J.S.A. 2C:34-1(b)(3),

N.J.S.A. 2C:33-30, and N.J.S.A. 2C:2-6; first-degree advertising commercial

sexual abuse of a minor, N.J.S.A. 2C:13-10(b)(1); and second-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(b)(5)(a)(i).

In that same indictment, co-defendant Breon Mickens was charged with

four crimes, including first-degree conspiracy and first-degree human

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trafficking. Mickens pled guilty to conspiracy and agreed to testify against

defendant.

A jury was originally selected on June 18, 19, and 20, 2019. Before

opening statements, the State learned of the identification of Jerry Brown, who

was allegedly one of the men who had paid for sex with Barbara. A detective

then video-recorded an interview of Brown on July 8, 2019.

The next day, opening statements were made in the trial. The following

day, on July 10, 2019, as the trial continued, the State notified defendant and the

trial court that the detective had located and interviewed Brown. Shortly

thereafter, the State provided copies of the video-recorded interview of Brown.

Defendant immediately moved for a mistrial and to dismiss all the charges

against her with prejudice. Defendant argued that the State had violated the rule

laid down in Brady v. Maryland, 373 U.S. 83 (1963), by failing to inform the

defense about the interview of Brown in a timely manner. In support of that

position, defendant argued that some of Brown's statements were exculpatory.

The trial court conducted a Rule 104 evidentiary hearing outside the

presence of the jury. At that hearing, the detective testified concerning how he

located and interviewed Brown. In that regard, he explained that on July 1,

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2019, he had been asked to interview Brown and that he had conducted the

interview on July 8, 2019.

Based on the detective's testimony, the court found that the State had

directed the detective to interview Brown before trial began, but it had failed to

inform the defense of Brown's existence and that he might be a potential witness

until July 10, 2019, after the jury heard opening statements and some testimony

from witnesses. The trial court also found that Brown's statements were

potentially favorable to the defense because Brown had stated that defendant

had not been involved in his dealings with Barbara. The trial court then found

that defendant had been prejudiced by the State's action because her counsel

might have presented a different opening statement and might have engaged in

different cross-examination tactics had counsel known of Brown. Ultimately,

the trial court held that the State violated the Brady rule and that the appropriate

remedy was a mistrial followed by a new trial. In making that ruling, the court

rejected defendant's argument that dismissal of the charges with prejudice was

warranted because the court found that there was no evidence that the State

intentionally "goad[ed] the defendant into moving for a mistrial." Defendant

filed a motion for leave to appeal the trial court's decision not to dismiss the

indictment with prejudice, but we denied that motion.

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A second trial was conducted in September and October 2019. The State

called twelve witnesses, including Barbara and Brown. The State also presented

numerous exhibits, including text messages, photographs, and videos.

Barbara testified that she met defendant in 2017, when Barbara was

seventeen years old. Defendant was then twenty-nine years old. According to

Barbara, defendant asked her if she "wanted to make money" and promised to

pay her if she worked as a prostitute. When Barbara agreed, defendant took her

to her bedroom, gave her revealing clothing to wear, and took photographs of

her in provocative poses.

The State presented evidence that defendant used the photographs to make

advertisements offering sex with Barbara in exchange for money. In that regard,

the State called a New Jersey State Police detective who testified that ads were

posted on a website called BackPage.com (BackPage). The detective explained

that the website was used to sell and solicit sex. The State also presented copies

of the ads, which referred to Barbara as "Mottie the Redhead Hottie" and stated

that Barbara was available to "book for adult exclusives." The ads included

phone numbers that the State linked to defendant. The detective had subpoenaed

the website and obtained ads of both Barbara and defendant. Invoices revealed

the same user account uploaded and paid for all those ads and that the ads used

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the same phone numbers. The detective also explained that ads featuring

Barbara were posted on December 24, 2017, and January 9, 2018.

In her testimony at trial, Barbara explained that she had never seen the ads

and had not disseminated them. She also testified that defendant had come up

with the nickname "Mottie the Redhead Hottie."

Barbara testified that from late December 2017 to early January 2018,

defendant took her to various hotels, including a Courtyard, a Red Roof Inn, and

an Element, where defendant "had [Barbara] selling [her] body." Barbara

explained that defendant booked the rooms, and Mickens, whom she referred to

as defendant's "baby dad," drove the two of them to the hotels. Barbara also

testified that defendant had promised her money for her work as a prostitute but

never gave her any.

Barbara testified that on December 28, 2017, she left the Courtyard hotel

in Ewing, taking money that she felt was rightfully hers. Thereafter, she

contacted her parents to pick her up. Barbara went on to explain that on January

9, 2018, she had accepted Mickens' offer to drive her to her boyfriend's house.

Mickens instead took her to Trenton to meet defendant, and defendant then beat

her up on the side of the road. Barbara recounted that defendant threatened to

harm her on multiple occasions if she tried to stop working as a prostitute for

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defendant's financial gain. She also detailed how defendant had hit her and

thrown her cell phone out a window.

Barbara testified that from January 9 through January 11, 2018, defendant

took her to the Red Roof Inn in Lawrence Township and forced her to have sex

with numerous men. She explained that defendant made the appointments with

the men. She also testified that defendant would then tell her what services to

perform and how long to perform the services. Defendant also told Barbara to

lie to the men about her age and if a client asked about her age, to tell them that

she was nineteen or twenty years old instead of seventeen years old.

During her testimony, Barbara explained that although she knew

defendant had been a prostitute in the past, she never saw defendant sell her own

body while she was forcing Barbara to be a prostitute. In that regard, she

explained that when men arrived at the hotel rooms, defendant was usually

present to collect the payment. When Barbara collected the payment, she would

give the money to defendant. When asked if she and defendant were "just

sharing a hotel room," Barbara testified: "No, we [were] not." Barbara

explained that she did not want to have sex with any of the men who came to

the hotels, but that defendant "told [her] if [she] didn't make [defendant] money,

[defendant] was going to hurt [her]."

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Finally, Barbara testified that she escaped the Red Roof Inn on the night

of January 11, 2018. She explained that she began walking along the shoulder

of I-295.

The State called several witnesses who corroborated various parts of

Barbara's testimony. One of those witnesses was an inspector with the

Department of Transportation, who had been working an evening shift on

January 11, 2018. The inspector explained that he had been sitting in his service

vehicle around 9:00 p.m. when he saw Barbara walking southbound on I-295

before crossing six lanes to approach his driver's side window and ask him for

help. The inspector then called the police.

Approximately twenty minutes later, a state trooper arrived and spoke to

Barbara. Barbara informed the trooper that she was seventeen years old and had

been held at a nearby hotel. Barbara was then taken to a police station where

she gave a more detailed report about how she had been forced to perform sexual

acts with various men. She named defendant and Mickens and explained that

one of the rooms she had been held in was number 273 at the Red Roof Inn.

In the early hours of January 12, 2018, several detectives went to the Red

Roof Inn and learned that defendant and Mickens were staying in room 273 and

that they had also recently stayed in room 271. The detectives then went to room

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273, and when defendant answered the door, a detective arrested her. At the

time of her arrest, defendant was holding a purple LG cell phone, which was

seized. The police later learned that the phone number associated with that

phone was listed on the ads on BackPage.

A search of the phone recovered data, including text messages and

pictures. Those text messages were presented to the jury and showed that

defendant had engaged in negotiations with various men seeking sex with

Barbara.

A search of room 273 also revealed gift cards, debit cards, credit cards,

and a second cell phone. The number associated with the second cell phone was

also listed on the BackPage ads.

Surveillance footage from the Red Roof Inn showed that on January 9,

2018, Barbara, defendant, Mickens, and another man arrived late in the evening

and went to room 271. The surveillance also showed that after midnight on

January 10 and through the morning of January 11, 2018, nine men came in and

went to the area near rooms 271 and 273. There was also surveillance video of

Barbara leaving room 273 at 8:53 p.m. on January 11, 2018, carrying a

backpack.

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The jury was also shown messages from a Facebook account bearing the

name "Jihadah Mohammed" with a photo of defendant (the Jihadah Facebook

account). The State presented evidence that law enforcement personnel had

linked the account to defendant based on the photograph, statements from

Barbara that the account belonged to defendant, and registration records

subpoenaed from Facebook indicating that the numbers of the cell phones taken

from defendant were also associated with the account.

The State then presented various messages from the Jihadah Facebook

account. Those messages showed that defendant had sent out photographs of

Barbara and that the photographs were the same as those used in the BackPage

ads. In some of the Facebook messages, defendant stated that she was

prostituting Barbara to make money. In a conversation on January 10, 2018,

defendant sent a photograph of Barbara to another user, stating that she was

"making a killing off her ass." Defendant also wrote that she was "a pimp" and

had "that bitch [performing sexual acts] right now as we speak."

Defendant also told Facebook users that she had hurt Barbara, saying she

"beat her ass just enough so she can work," and "beat the shit out of the white

bitch." On December 28, 2017, the date of Barbara's attempted escape,

defendant, through the Jihadah Facebook account, messaged Barbara's Facebook

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account and said: "You [would] be about the most idiot ass bitch if you ran off

with my bread." Defendant went on to tell Barbara: "You're dead."

On January 10, 2018, defendant sent a Facebook message that appeared

to corroborate Barbara's account of her violent recapture. Defendant messaged

someone that she had "snatch[ed] [Barbara] right out [of] my man['s] car and

durfed her, lol," and that she had then "[t]old that bitch[] [to] get up and get my

money." That same day, when someone sent defendant a message asking her if

Barbara was "black and blue from last night," defendant responded: "She made

me [$1,400] already, lol."

During her defense, defendant did not dispute that Barbara had engaged

in prostitution. Instead, she argued that both she and Barbara were prostitutes

and had worked together out of the same hotel rooms. In support of that theory,

defense counsel highlighted for the jury times when videos from the Red Roof

Inn showed Barbara outside in the parking lot and her laughing and conversing

with a man outside the door of room 271.

After all the evidence had been presented, a charge conference was held.

Defendant requested that the jury be instructed that she was contending she was

a victim of human trafficking as affirmative defenses to the charges of human

trafficking and promoting prostitution. The trial court rejected that request,

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reasoning that there was no evidence presented to support those defenses and, if

given, those defenses would require the jury to speculate.

After considering all the evidence presented, the jury found defendant

guilty of all charges except for first-degree advertising commercial sexual abuse

of a minor. Thereafter, defendant moved for a new trial, but the trial court

denied that motion.

Defendant was sentenced on March 4, 2021. The sentencing court merged

the conspiracy conviction with the human trafficking conviction. On the human

trafficking conviction, the court sentenced defendant to twenty-five years in

prison, with twenty years of parole ineligibility. On the conviction of first-

degree promotion of organized street crime, the court granted the State's motion

for an extended term and sentenced defendant to twenty-five years in prison to

run consecutively to the sentence for human trafficking. On the conviction of

second-degree facilitating human trafficking, defendant was sentenced to eight

years in prison. On the conviction of first-degree promoting prostitution,

defendant was sentenced to fifteen years in prison. On the conviction of second-

degree endangering the welfare of a child, defendant was sentenced to eight

years in prison. Those three sentences were all run concurrent to the sentence

for human trafficking. Defendant was also sentenced to registrations under

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Megan's Law. N.J.S.A. 2C:7-1 to -23, and parole supervision for life. So, in

aggregate, defendant was sentenced to fifty years in prison, with twenty years

of parole ineligibility.

Defendant now appeals from her convictions and sentences.

II.

On appeal, defendant presents the following four arguments for our

consideration:

POINT I – THE CONVICTIONS SHOULD BE

REVERSED BECAUSE DEFENDANT WAS

IMPROPERLY PRECLUDED FROM CROSS-

EXAMINING BARBARA ON HER CRIMINAL

CHARGES—MOST OF WHICH WERE FILED

AFTER DEFENDANT'S ARREST AND SOME OF

WHICH WERE RESOLVED THREE DAYS BEFORE

SHE WAS SCHEDULED TO TESTIFY AGAINST

DEFENDANT—AND WHICH WOULD HAVE

REVEALED HER INTEREST IN CURRYING

FAVOR WITH THE STATE.

POINT II – DEFENDANT WAS DENIED HER

RIGHTS TO DUE PROCESS AND A FAIR TRIAL

BY THE TRIAL COURT'S REFUSAL TO CHARGE

THE JURY ON THE STATUTORY AFFIRMATIVE

DEFENSES TO HUMAN TRAFFICKING AND

PROMOTING PROSTITUTION.

POINT III – THE SECOND PROSECUTION SHOUD

HAVE BEEN BARRED FOLLOWING THE

MISTRIAL BECAUSE THE STATE

INTENTIONALLY SUPPRESSED EXCULPATORY

MATERIAL.

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POINT IV – THE MATTER MUST BE REMANDED

FOR RESENTENCING BECAUSE THE

SENTENCING COURT MISTAKENLY BELIEVED

THAT IT WAS STATUTORILY REQUIRED TO

RUN THE SENTENCE FOR PROMOTING

ORGANIZED STREET CRIME CONSECUTIVE TO

THE SENTENCE FOR HUMAN TRAFFICKING,

RESULTING IN A FIFTY-YEAR SENTENCE.

A. The Mistrial Followed by a Second Trial.

In her third argument, defendant contends that the trial court erred by not

dismissing all the charges against her with prejudice after it granted her motion

for a mistrial. She asserts that the State violated the rule set forth in Brady by

failing to disclose the interview of Brown until after the trial began and that the

State's conduct was "so outrageous" that the double jeopardy clauses of both the

United States and New Jersey Constitutions should have barred a second trial.

In Brady, the United States Supreme Court held that "the suppression by

the prosecution of evidence favorable to an accused upon request violates due

process where [it] is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the [State]." 373 U.S. at 87. That rule has been

expanded and applies even if a defendant did not specifically request the

exculpatory evidence. United States v. Bagley, 473 U.S. 667, 681-82 (1985);

see also State v. Martini, 160 N.J. 248, 268 (1999). To establish a Brady

violation, the defense must demonstrate: (1) the prosecutor failed to disclose the

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evidence; (2) the evidence was of a favorable character to the defendant; and (3)

the evidence was material. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); State

v. Brown, 236 N.J. 497, 518 (2019).

In this case, the trial court found that all three Brady prongs had been met.

Defendant, for obvious reasons, does not challenge that finding, and we discern

no basis for reviewing that issue. Nevertheless, we do note that was sufficient

evidence to support the trial court's finding concerning a Brady violation.

Accordingly, we turn our focus to the question of whether the trial court erred

in denying defendant's motion to dismiss the indictment with prejudice.

Appellate courts review a trial court's decision concerning the dismissal

of an indictment for an abuse of discretion. State v. Saavedra, 222 N.J. 39, 55

(2015). We will only disturb a trial court's decision if the trial court "clearly

abused" its discretion. Id. at 55-56 (quoting State v. Warmbrun, 277 N.J. Super.

51, 60 (App. Div. 1994)).

The principle of double jeopardy under both the United States and New

Jersey Constitutions ensures that no person will be placed in jeopardy "more

than once for the same offense." State v. Allah, 170 N.J. 269, 278-79 (2002)

(quoting United States v. Wilson, 420 U.S. 332, 340 (1975)). "In a jury trial,

jeopardy attaches after the jury is impaneled and sworn." Id. at 279.

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Accordingly, once the trial begins, the defendant "is generally entitled to . . . be

free from the harassment of successive prosecutions." State v. Lynch, 79 N.J.

327, 340-41 (1979). In other words, the State "should not be allowed to make

repeated attempts to convict an individual." State v. Torres, 328 N.J. Super. 77,

85 (App. Div. 2000).

Nevertheless, termination of a trial after jeopardy attaches does not always

prohibit a second trial. Allah, 170 N.J. at 280. If a mistrial is declared "at the

behest of the defendant," and the defendant is the one who has "elected to

terminate the proceedings," the government is ordinarily permitted to pursue a

second trial. Oregon v. Kennedy, 456 U.S. 667, 672-73 (1982); see also State

v. Wolak, 33 N.J. 399, 401 (1960) (explaining that an assertion of double

jeopardy "will not prevail where the jury was discharged on [a] defendant's

motion").

In determining whether to permit a retrial, the focus is on whether the

error that caused the mistrial was intended by the State "to provoke a mistrial or

[was] 'motivated by bad faith or undertaken to harass or prejudice' the

defendant." Kennedy, 456 U.S. at 670 (quoting United States v. Dinitz, 424

U.S. 600, 611 (1976)). Accordingly, "in the context of a Brady violation, the

remedy of dismissal of an indictment with prejudice is utilized when 'the conduct

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of law enforcement agents is so outrageous that due process principles would

absolutely bar the government from invoking judicial processes to obtain a

conviction.'" Brown, 236 N.J. at 528 (quoting United States v. Russell, 411 U.S.

423, 431-32 (1973)). In other words, the bar attaches "[o]nly where the

governmental conduct in question is intended to 'goad' the defendant into

moving for a mistrial." Kennedy, 456 U.S. at 676; see also Brown, 236 N.J. at

527-28 (quoting and applying the rule laid down in Kennedy).

We discern no abuse of discretion in the trial court's decision to permit a

second trial of defendant. There is no evidence in the record that the prosecutor

intended to provoke a mistrial by failing to disclose information about Brown in

a timelier fashion. While the State could have been more diligent in locating

and interviewing Brown, he was first interviewed on July 8, 2019. It was only

at that point that the State learned that Brown might support defendant's

contention that she had not controlled Barbara or forced her into prostitution.

Moreover, the record establishes that Brown testified at the second trial and that

defendant used his testimony to support her contention. In other words, there is

no evidence that defendant was prejudiced by the delay in the State's disclosure

of Brown as a potential witness.

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B. The Other Criminal Charges Against Barbara.

After Barbara presented her direct testimony, defense counsel informed

the trial court and the prosecutors that she intended to cross-examine Barbara on

various unrelated criminal offenses that had recently been resolved in municipal

court. The prosecution objected, and the trial court ruled that those offenses,

none of which were criminal convictions, could not be used to cross-examine

Barbara.

Defendant argues that the trial court erred by preventing her from using

the charges to challenge Barbara's credibility. In that regard, defendant contends

that her Sixth Amendment right to confront Barbara was violated because

Barbara may have had a motive to cooperate with the State to receive favorable

treatment in her separate criminal matters. In making that argument, defendant

points out that Barbara was the State's "central witness," and that Barbara's

credibility was critical to proving the charges against defendant.

Appellate courts review a trial court's evidentiary rulings for an abuse of

discretion. State v. Jackson, 243 N.J. 52, 64 (2020). A trial court is given

"[c]onsiderable latitude . . . in determining whether to admit evidence." State v.

Feaster, 156 N.J. 1, 82 (1998). Nevertheless, appellate courts give no deference

to a trial court's legal conclusions. Jackson, 243 N.J. at 65.

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Under N.J.R.E. 609(a)(1), evidence of a witness's conviction of a crime

generally "shall be admitted" for the purpose of attacking the witness's

credibility. Nevertheless, admission of a criminal conviction is still subject to

N.J.R.E. 403, and evidence of a conviction can be excluded if the probative

value is outweighed by the prejudicial effect. State v. Balthrop, 92 N.J. 542,

544-45 (1983).

N.J.R.E. 609 does not include convictions of disorderly persons offenses,

which under the criminal code are "not crimes within the meaning of the

Constitution of this State." State v. Harris, 209 N.J. 431, 446 (2012) (Long, J.,

dissenting) (emphasis omitted) (quoting N.J.S.A. 2C:1-4(b)(1)) (explaining that

disorderly persons convictions are not admissible under N.J.R.E. 609).

Even when convictions are not admissible under N.J.R.E. 609, however,

a witness's credibility may also be attacked "by means of cross-examination

directed toward revealing possible biases, prejudices, or ulterior motives."

Davis v. Alaska, 415 U.S. 308, 316 (1974). The Sixth Amendment to the United

States Constitution and Article I, Paragraph 10 of the New Jersey Constitution

guarantee a defendant's right to confront witnesses, including through cross -

examination of "a witness's motivation in testifying." Jackson, 243 N.J. at 65.

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All that said, a defendant does not have "a license to roam at will under

the guise of impeaching the witness." State v. Pontery, 19 N.J. 457, 473 (1955).

A trial court "may bar inquiry into a witness's potential bias, without offending

the Confrontation Clause, because of concerns about 'harassment, prejudice,

confusion of the issues, the [witness's] safety, or interrogation that is repetitive

or only marginally relevant.'" State v. Bass, 224 N.J. 285, 303 (2016) (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). So, "the competing interest

proffered" by the State "to limit a defendant's confrontation right must 'be

closely examined.'" Jackson, 243 N.J. at 66 (quoting State v. Budis, 125 N.J.

519, 532 (1991)). Accordingly, the trial court must determine "'whether the

circumstances fairly support an inference of bias' or whether the proposed

examination raises any concerns." Ibid. (quoting Bass, 224 N.J. at 303).

A defendant has the "right to explore evidence tending to show that the

State may have a 'hold' of some kind over a witness, the mere existence of which

might prompt the individual to color his [or her] testimony in favor of the

prosecution." State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001)

(quoting State v. Holmes, 290 N.J. Super. 302, 312 (App. Div. 1996)). A claim

of potential bias "is particularly compelling when the witness is under

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investigation, or charges are pending against the witness," at the time that the

witness's testimony is proffered against the defendant. Bass, 224 N.J. at 303.

Moreover, criminal charges against a prosecution witness need not be

related to the current charges against the defendant to be admissible for

impeachment purposes. Id. at 304. The relevant inquiry is whether the charges

may "give rise to a motive to cooperate" with the State. Id. at 305. Furthermore,

"[i]n a given case, a charge against a witness that has been resolved by dismissal

or sentencing before the witness testifies" may also be "an appropriate subject

for cross-examination." Id. at 304. So, a trial court must "undertake a careful

evaluation" of a claim of bias based on a witness's criminal charges in which

"[t]he nature of the witness's alleged offense, and the sentencing exposure that

he or she confronts by virtue of that offense," are "significant factor[s]." Id. at

305.

After defendant's arrest and indictment, Barbara was criminally charged

in three unrelated matters. On November 30, 2018, Barbara was charged with

theft by unlawful taking and credit card theft. Those charges were later

downgraded to disorderly persons offenses, and Barbara pled guilty to those

offenses in municipal court in July 2019. Second, on April 19, 2019, Barbara

was charged with third-degree possession of a knife for an unlawful purpose and

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fourth-degree aggravated assault. Those charges were downgraded to disorderly

persons offenses of simple assault and harassment in August 2019, and Barbara

pled guilty in municipal court on September 23, 2019. Third, on June 22, 2019,

Barbara was charged with third-degree possession of a controlled dangerous

substance. That charge was downgraded to a disorderly persons offense of

failure to make a lawful disposition to police, and Barbara pled guilty to the

offense on September 23, 2019. Accordingly, by the time that Barbara was

finished with her direct testimony, all the charges against her had been resolved

with disorderly persons convictions.

The trial court ruled that only criminal convictions could be introduced to

impeach Barbara's credibility under N.J.R.E. 609. The trial court also found that

there was no evidence that Barbara had cut any deal with the State to resolve her

charges. In that regard, the court found that allowing the cross-examination on

the charges would be too "tenuous." Accordingly, the court precluded cross-

examination on the charges. Instead, the court ruled that defense counsel could

ask Barbara if the State had made her any promises or given her anything in

exchange for her testimony.

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We hold there was no error under N.J.R.E. 609. The trial court correctly

reasoned that a disorderly persons conviction was not a criminal conviction for

purposes of N.J.R.E. 609. See Harris, 209 N.J. at 446 (Long, J., dissenting).

We also discern no abuse of discretion in the trial court's decision to

preclude defense counsel from cross-examining Barbara on the unrelated

charges. There is no indication that the State had a deal with Barbara concerning

her other charges. The case against defendant was handled by the State 's

Division of Criminal Justice, which is part of the Attorney General's Office. In

contrast, Barbara's criminal charges were handled by the Burlington County

Prosecutor's Office and, after they were downgraded, they were handled by a

municipal prosecutor. Additionally, Barbara was initially charged with third-

and fourth-degree crimes, which were not at a level to indicate that Barbara

would have had an incentive to assist the prosecution to resolve those charges.

Moreover, even if the trial court's limitation on defendant's cross-

examination of Barbara had been an error, we must also decide whether the error

was "harmless beyond a reasonable doubt." Bass, 224 N.J. at 307 (quoting Van

Arsdall, 475 U.S. at 684). In that regard, courts "will disregard '[a]ny error or

omission [by the trial court] . . . unless it is of such a nature as to have been

clearly capable of producing an unjust result.'" Id. at 308 (alterations and

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omission in original) (quoting State v. Castagna, 187 N.J. 293, 312 (2006)).

"The possibility that the error led to an unjust result 'must be real, one sufficient

to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached.'" Ibid. (alteration in original) (quoting State v. Lazo,

209 N.J. 9, 26 (2012)).

The evidence at defendant's trial does not support a conclusion that

precluding cross-examination of Barbara on the unrelated criminal offenses led

to an unjust result. While Barbara was the State's key witness, her testimony

was corroborated by other witnesses and evidence, including defendant's text

messages and Facebook records. In short, the evidence against defendant was

overwhelming and compelling, and it is hard to conceive that a jury would have

disregarded that evidence even if Barbara had been cross-examined about her

unrelated criminal offenses.

C. The Failure to Give Jury Instructions on Defendant's Affirmative

Defenses that She Was a Victim of Human Trafficking.

"[A]ppropriate jury instructions are essential for a fair trial." State v. Ball,

268 N.J. Super. 72, 112 (App. Div. 1993). "A trial court must charge the jury

on an affirmative defense if there is a rational basis in the evidence for the

charge." Bass, 224 N.J. at 320. In deciding whether the rational basis test has

been met, a trial court "must view the evidence in the light most favorable to the

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defendant." State v. A.L.A., 251 N.J. 580, 595 (2022). The defendant has "the

burden to produce some evidence in support of" an affirmative defense. State

v. Walker, 203 N.J. 73, 87 (2010). If there is "some" evidence, "whether

produced in the State's case or in [the] defendant's case, the instruction on the

affirmative defense . . . should be given to the jury." Id. at 89.

At the charge conference, defense counsel requested affirmative defense

charges for both the human trafficking offense and the promoting prostitution

offense. Under the human trafficking statute, N.J.S.A. 2C:13-8(c), "[i]t is an

affirmative defense to prosecution for a violation of this section that, during the

time of the alleged commission of the offense of human trafficking[,] . . . the

defendant was a victim of human trafficking." Likewise, under the promoting

prostitution statute, N.J.S.A. 2C:34-1(e), "[i]t is an affirmative defense to

prosecution for a violation of this section that, during the time of the alleged

commission of the offense, the defendant was a victim of human trafficking . . .

or compelled by another to engage in sexual activity, regardless of the

defendant's age."

In arguing for the affirmative defenses, defendant pointed to Barbara's

testimony that Mickens was "the muscle man," that he would drive defendant

and Barbara to the hotels where they met the men who wanted sex, and that

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Mickens also sold them drugs. Defendant also pointed to the BackPage ads for

defendant's sexual services. So, defense counsel contended that the jury could

infer that Mickens was prostituting both defendant and Barbara.

The trial court found that while there was some evidence to support that

defendant had been a prostitute at some prior time, there was no evidence she

was trafficked by Mickens or another other person while Barbara had been

prostituted. Moreover, the court found that the evidence at trial showed that

Mickens provided rides to defendant and Barbara when defendant requested

those rides.

We discern no reversible error in the trial court's decision not to charge

the jury with the affirmative defenses. Both Barbara and Mickens testified that

he drove defendant and Barbara to hotels at defendant's request and was paid by

defendant for that service. While Mickens may have also sold drugs to

defendant and Barbara, that was not evidence that he was forcing defendant into

prostitution. Barbara consistently testified that Mickens was not involved with

actually setting up or carrying out any sexual services. Indeed, Mickens stayed

outside the hotel while defendant negotiated with Barbara's clients.

The text messages and Facebook messages admitted into evidence also

showed that defendant was prostituting Barbara and not herself. In those

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messages, defendant bragged about prostituting Barbara and taking the money

for Barbara's prostitution. She described herself as a "professional" and a

"business woman," and her messages implied that to the extent that she had been

involved in prostitution, she had done so voluntarily. In short, we agree with

the trial court that giving the affirmative defense instructions would have been

asking the jury to speculate because there was not sufficient evidence to satisfy

the rational basis standard.

D. The Sentences.

In her final argument, defendant contends that the sentencing court erred

in directing that her sentence for the promotion of organized street crime run

consecutively to her sentence for human trafficking. This issue requires an

analysis of both the indictment that charged defendant with the promotion of

organized street crime and the underlying crime the jury found defendant

committed to be guilty of the promotion of organized street crime. Ultimately,

the issue involves an interpretation of the sentencing provisions of the statute

governing the crime of promotion of organized street crime.

N.J.S.A. 2C:33-30(a) provides that a person "promotes organized street

crime" if that individual "conspires with others as an organizer, supervisor,

financier[,] or manager to commit any crime specified in chapters 11 through

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18, 20, 33, 35, or 37 of Title 2C of the New Jersey Statutes; N.J.S.A. 2C:34-1;

N.J.S.A. 2C:39-3; N.J.S.A. 2C:39-4; [N.J.S.A. 2C:39-4.1]; N.J.S.A. 2C:39-5; or

N.J.S.A. 2C:39-9." (Citations reformatted). Accordingly, both promoting

prostitution under N.J.S.A. 2C:34-1(b)(3), and human trafficking under N.J.S.A.

2C:13-8(a)(3), are underlying offenses that can constitute the crime of

promotion of organized street crime.

N.J.S.A. 2C:33-30(b) states that for grading purposes, promotion of

organized street crime "is a crime of one degree higher than the most serious

underlying crime referred to in subsection a." If, however, the "most serious

underlying crime" is a crime of the first-degree, then promotion of organized

street crime "is a first[-]degree crime" that carries a sentencing exposure of

between fifteen and thirty years, rather than the typical ten-to-twenty-year range

for a first-degree crime under N.J.S.A. 2C:43-6(a)(1). N.J.S.A. 2C:33-30(b).

The grading provision goes on to state that a sentence imposed for promotion of

organized street crime "shall be ordered to be served consecutively to the

sentence imposed upon conviction of any underlying offense referred to in

subsection a." Ibid.

The question of statutory interpretation presented on this appeal is

whether the grading provision for the promotion of organized street crime would

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apply to a crime that was not included in the indictment that charged defendant

with the promotion of organized street crime. We hold that the grading

provision for the promotion of organized street crime can only be applied to an

underlying crime that a defendant was charged with and convicted of promoting.

In this case, in count five, defendant was indicted based on the allegation

that she "did conspire with others as an organizer, supervisor, financier[,] or

manager to promote prostitution, in violation of N.J.S.A. 2C:34-1(b)(3),

contrary to the provisions of N.J.S.A. 2C:33-30, N.J.S.A. 2C:2-6, and against

the peace of this State, the government and dignity of the same." (Citations

reformatted). In other words, the State indicted defendant for the promotion of

organized street crime based on the underlying offense of promoting

prostitution.

Moreover, in convicting defendant of the promotion of organized street

crime, the jury was asked to consider only the underlying offense of promoting

prostitution. The verdict sheet asked the jury whether defendant "did conspire

with others as an organizer, supervisor, financier, or manager to promote

prostitution" in considering the charge of the promotion of organized street

crime.

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The jury separately found that defendant committed the crime of human

trafficking. The jury did not, however, find that human trafficking was the

underlying offense giving rise to the conviction of promotion of organized street

crime.

At sentencing, the State argued that because defendant had been convicted

of human trafficking and because human trafficking was one of the underlying

offenses for promotion of organized street crime, the court was required to run

the sentence for the promotion of organized street conviction consecutively to

the sentence for the human trafficking conviction. The court agreed and

accordingly ran the sentence for the conviction of promotion of organized street

crime consecutively to the sentence for the conviction of human trafficking.

That was a legal error.

Consistent with the plain language of the statutes, we hold that a defendant

can be sentenced based only on the underlying crime that the jury found was

committed in finding that a defendant promoted organized street crime. In short,

here, defendant was indicted for and convicted of the promotion of organized

street crime based on the underlying crime of promoting prostitution. Defendant

was neither charged with nor convicted of promotion of organized street crime

based on human trafficking. While the jury separately found that defendant was

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guilty of human trafficking, human trafficking was not a crime that could have

been used for grading defendant's promotion of organized street crime

conviction. Instead, the sentencing court was required to run defendant's

sentence for the promotion of organized street crime consecutively to the

sentence for her conviction of promoting prostitution.

Here, on the conviction of human trafficking, defendant was sentenced to

twenty-five years in prison, with twenty years of parole ineligibility. Defendant

has not challenged that sentence, and the sentence was lawful. See N.J.S.A.

2C:13-8(d) (providing that a sentence for human trafficking shall be either a

term of twenty years without parole or a specific term between twenty years and

life imprisonment, of which the defendant must serve twenty years before being

eligible for parole). On the conviction of promotion of organized street crime,

defendant was sentenced to twenty-five years in prison. That sentence was also

lawful because under N.J.S.A. 2C:33-30(b), a sentence for promotion of

organized street crime shall be between fifteen and thirty years.

On the conviction of promoting prostitution, defendant was sentenced to

fifteen years, and that sentence was lawful because it was within the statutory

range for a first-degree offense. See N.J.S.A. 2C:43-6(a)(1) (explaining that the

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sentencing range for a first-degree offense shall be between ten and twenty

years).

The only error in sentencing defendant was running the sentence for the

conviction of promotion of organized street crime consecutively to the sentence

for the conviction of human trafficking. We, therefore, vacate the sentence and

remand for resentencing. On remand, the court is to run the sentence for the

promotion of organized street crime consecutively to the sentence for promoting

prostitution. So, defendant's aggregate sentence will be forty years in prison,

with twenty years of parole ineligibility.

Defendant's convictions are affirmed. The sentences are vacated, and we

remand for a resentencing consistent with this opinion. We do not retain

jurisdiction.

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