affirming conviction given strength of evidence against defendant despite admission of improper expert testimony
How later courts described this case
- affirming conviction given strength of evidence against defendant despite admission of improper expert testimony
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION WITHOUT THE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-1284-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSE L. NEGRETE, a/k/a
BOOM BAP,
Defendant-Appellant.
_____________________________
Submitted May 7, 2018 – Decided April 22, 2019
Before Judges Accurso, O'Connor and Vernoia.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 06-01-0121.
Joseph E. Krakora, Public Defender, attorney for
appellant (Frank M. Gennaro, Designated Counsel;
Alison S. Perrone, on the brief).
Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Randolph E. Mershon, III, Assistant
Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
O'Connor, J.A.D.
In 2015, a jury convicted defendant Jose L. Negrete of first-degree
murder, N.J.S.A. 2C:11-3(a)(2); first-degree attempted murder, N.J.S.A.
2C:11-3 and N.J.S.A. 2C:5:1; and first-degree conspiracy to commit murder,
N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-2. He was sentenced to life in prison for
murder and to a consecutive twenty-year term for attempted murder.
Defendant appeals from his convictions and sentence. We affirm.
I
Defendant was initially tried on these three and other charges in 2008,
but the jury was unable to reach a verdict and a mistrial was declared. In
2009, a second jury found defendant guilty of murder, attempted murder, and
conspiracy to commit murder, but acquitted him of second-degree possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:2-
6, and third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) and
N.J.S.A. 2C:2-6. Defendant was sentenced to life in prison for murder and a
consecutive twenty-year term for attempted murder.
Defendant appealed and, because we discerned juror misconduct during
the course of that trial, we reversed the convictions and sentence and remanded
A-1284-15T4
2
the matter for further proceedings. State v. Negrete, 432 N.J. Super. 23 (App.
Div. 2013). The Supreme Court denied certification. State v. Negrete, 217
N.J. 294 (2014). In 2015, defendant was tried a third time, resulting in the
convictions and sentence noted above.
The pertinent evidence, predominately derived from the testimony of
members of the Almighty Latin King and Queen Nation (Latin Kings), was as
follows. In 2004, defendant was the leader of the Latin Kings in the Trenton
area. Jonathan Rodriguez (Jonathan),1 a member of the Latin Kings, testified
that members of this gang were required to follow defendant's orders or they
risked punishment in the form of physical violence. Defendant decided who
was to be punished and the form of punishment to be inflicted.
In 2004, there was an ongoing dispute between the members of the Latin
Kings in Trenton and a rival gang, the Ñetas On one particular evening in
2004, members from each gang gathered at a park in order to "fight out" their
differences. The anticipated fight between the two gangs did not materialize
because the police arrived and the gang members dispersed. However, because
it is relevant to one of the issues on appeal, we note that, just before the
1
Three witnesses share the surname Rodriguez; therefore, for clarity, we refer
to these witnesses by their forenames.
A-1284-15T4
3
planned confrontation, Jonathan saw defendant pass a revolver to another
member of the Latin Kings.
Jonathan also testified that defendant suspected A.R.,2 a new member of
the Latin Kings, and J.D., a member of the Latin Queens, had been disloyal to
the Latin Kings. Jonathan heard defendant say that A.R. was a "goner" and
J.D. a "snitch." Later, defendant asked Jonathan to kill A.R., but he refused.
Fernando Maestro testified he was the leader of the Ñetas gang in
Trenton in 2004. At that time, he was also romantically involved with J.D. At
one point, Maestro and defendant met to negotiate an end to the hostilities
between the Latin Kings and the Ñetas. Defendant proposed "taking care" of
A.R. if Maestro agreed to "take care" of J.D. Maestro testified that, among
gang members, the term "to take care of" means "to kill." Maestro refused to
agree to those terms because he did not want to hurt J.D.
Maestro testified that, at a subsequent meeting between defendant and
Maestro, defendant stated he would "give up" A.R. to Maestro if Maestro
agreed to "take care of" him; Maestro consented to this arrangement. Later
that day, members of the Ñetas gang beat, but did not kill, A.R. Maestro
testified he did not want A.R. killed because A.R.'s brother was a member of
2
We use initials to protect the identity of the victims and their families.
A-1284-15T4
4
the Ñetas. That evening, defendant called Maestro and confronted him about
why he did not "take care of" A.R. Defendant then stated he would "take care
of" A.R. in his own way.
Roberto Rodriguez (Roberto), a member of the Latin Kings, testified
defendant was troubled by the fact Maestro and J.D. were involved in a
romantic relationship, and that defendant had ordered J.D. to "stop messing
with" Maestro. On the day A.R. was beaten up by Ñetas gang members,
defendant called a meeting of the local Latin Kings. Roberto testified that, at
that meeting, Esmeraldo Rodriguez (Esmeraldo) ordered Roberto to "get" A.R.
and to "hurt him." Roberto retorted he wanted to do the job alone, but
defendant then ordered that Roberto be accompanied by other members of the
Latin Kings, specifically, Esmeraldo, Joey Martinez and Rhadames Acosta.
Roberto acquiesced because defendant was the leader.
Roberto stated that he, Martinez, Esmeraldo, and Acosta then drove to
A.R.'s home. Roberto overheard Esmeraldo talk to defendant on a cellphone.
Roberto heard defendant tell Esmeraldo to instruct Roberto to "take out" A.R.
After the call, Esmeraldo instructed Roberto to "take out" A.R. Roberto and
Esmeraldo then entered J.D.'s home and convinced A.R. to get into the car.
While there, Roberto took a piece of ribbon from the house to use to strangle
A-1284-15T4
5
A.R. At that time, A.R. was living in J.D.'s house; J.D. was present when A.R.
left the premises.
Roberto testified that after A.R. was placed in the car, Martinez drove
the car around while Roberto strangled A.R. with the ribbon. A.R. fell
unconscious and Martinez stopped the car. After pulling him from the car,
Martinez determined A.R. was not breathing. Esmeraldo, Martinez and
Rhadames "stomped" on A.R.'s face to make sure he was dead and then threw
his body in a dumpster. When they got back into the car, Esmeraldo called
defendant and informed him "the job was done."
Remarkably, A.R. survived the attack, and was spotted by the police
walking on the exit ramp of a nearby highway later that evening. The day after
the attack, defendant informed Roberto that A.R. was still alive. Defendant
also advised that J.D. had been killed, but defendant did not know who had
killed her.
Acosta did not testify at trial but his testimony from the second trial was
read to the jury. His testimony of significance was that, as the local leader of
the Latin Kings, only defendant had the authority to order a person killed.
Esmeraldo's testimony from the second trial was also read to the jury.
He testified he heard defendant order certain members of the Latin Kings to
A-1284-15T4
6
slash J.D. across her face, due to her perceived infidelity to the Latin Kings.
As for A.R., Esmeraldo's testimony about the attempted murder was materially
consistent with Roberto's. Esmeraldo added that he spoke with defendant right
after what he believed was the successful murder of A.R. During that
conversation, defendant learned J.D. was present when A.R. got into the car
with Martinez, Roberto, Esmeraldo and Acosta, to which defendant responded,
"We can't have nobody snitching on us."
Joey Martinez's testimony from the second trial was read to the jury.
His testimony about A.R.'s attempted murder was essentially consistent with
Esmeraldo's, Roberto's, and Acosta's. Martinez added that after A.R.'s body
was thrown in the dumpster, Martinez and Esmeraldo met with defendant, who
asked, "Did everything go right with [A.R.], was it done?" Esmeraldo replied
in the affirmative. Later that evening, Martinez met with defendant, Josue
Maldonado, George Gomez, Angel Hernandez, and Maurice Young. At that
time, defendant ordered them to kill J.D., and Hernandez and Maldonado were
provided with guns.
Martinez, Hernandez, Maldonado, Young, and Gomez then went to
J.D.'s house. Young, Hernandez, and Maldonado entered her home and,
approximately ten minutes later, Maldonado came out and told Gomez the gun
A-1284-15T4
7
did not work. Gomez "messed with [the gun] a little," and handed it back to
Maldonado, telling him the gun was working. Maldonado went back inside
with the gun and, a few minutes later, the three men emerged from J.D.'s house
and the five men then left the area.
II
On appeal, defendant asserts the following points for our consideration:
POINT I: THE COURT'S DECISION TO ADMIT
THE PRIOR TRIAL TESTIMONY OF ESMERALDO
RODRIGUEZ AND JOEY MARTINEZ WITHOUT
FIRST ORDERING THESE WITNESSES TO
TESTIFY VIOLATED DEFENDANT'S RIGHT TO
CONFRONTATION. (NOT RAISED BELOW).
POINT II: DEFENDANT'S RIGHT TO
CONFRONTATION WAS VIOLATED WHEN THE
TRIAL COURT ADMITTED THE PRIOR TRIAL
TESTIMONY OF ESMERALDO RODRIGUEZ
WITHOUT REQUIRING THIS WITNESS TO
APPEAR IN FRONT OF THE JURY. (NOT RAISED
BELOW).
POINT III: THE ADMISSION OF TESTIMONY
INDICATING THAT THE DEFENDANT HAD
POSSESSED A GUN, AFTER DEFENDANT HAD
BEEN ACQUITTED OF POSSESSING A GUN IN
THIS CASE, REQUIRED A MISTRIAL BECAUSE
THE PREJUDICE TO THE DEFENDANT COULD
NOT BE UNDONE BY A CURATIVE
INSTRUCTION, PARTICULARLY SINCE THE
CURATIVE INSTRUCTION WAS INADEQUATE.
A-1284-15T4
8
POINT IV: THE TRIAL COURT ABUSED ITS
DISCRETION IN SENTENCING DEFENDANT TO
A LIFE TERM WITH AN 85% PERIOD OF PAROLE
INELIGIBILITY AND A TWENTY-YEAR TERM
WITH AN 85% PERIOD OF PAROLE
INELIGIBILITY BECAUSE A PROPER ANAYLSIS
OF THE AGGRAVATING FACTORS DOES NOT
SUPPORT SUCH A SENTENCE.
POINT V: UNDER STATE V. YARBOUGH, THE
DEFENDANT SHOULD NOT HAVE RECEIVED
FOUR CONSECUTIVE SENTENCES.
A
We turn first to the contention the court erred when it permitted Joey
Martinez's testimony from the second trial to be read to the jury. Some
background is in order. Before his testimony from the second trial was read
into the record, the State called Martinez as a witness, who briefly testified in
the presence of the jury. He stated he was a member of the Latin Kings in
2004, and that he pled guilty to conspiracy to commit murder in this matter,
for which he received a twelve-year sentence. He recalled testifying in a
"previous proceeding" but, because of the passage of time, did not remember
"much about the situation."
The prosecutor showed Martinez a page from the transcript of the second
trial and inquired whether it refreshed his recollection. Martinez replied, "I
A-1284-15T4
9
don't remember any of this, Sir." When asked if he remembered giving "any of
this prior testimony," Martinez stated, "I don't remember any of that."
The prosecutor requested and was granted a 104 hearing, see N.J.R.E.
104(a), and the jury was excused. Before the hearing started, the prosecutor
argued Martinez's assertion he could not recall the events surrounding
defendant's conviction was insincere, a contention the State wished "to clarify"
during the 104 hearing. The prosecutor requested that Martinez's testimony
from the second trial be read to the jury in the event he continued to "feign
recollection to the point where he becomes an absent witness or at least a
witness that does not answer questions as directed by the court."
At the outset of his testimony at the 104 hearing, Martinez
acknowledged testifying at the second trial, and even commented his testimony
at that trial was truthful because he never commits perjury. Most of the
hearing was comprised of the prosecutor showing Martinez certain questions
he had asked Martinez during the second trial, and inquiring whether Martinez
recalled such questions and the specific responses he provided. Martinez was
unable to recall any specific question posed or the particular answer he gave to
any particular question.
A-1284-15T4
10
It is not clear how Martinez's inability to recall a specific question and
answer was probative, given Martinez's recollection of the subject matter of
his prior testimony was what was relevant. In any event, when pressed by
defense counsel whether Martinez met with the prosecutor to prepare for
testifying at trial, Martinez stated he did not meet with the prosecutor because:
[I]t was a long time ago, I don't remember. I don't
want to waste my time or the State's time . . . .
[I]t was a long time ago, you know, through
everything that happened while I was in prison and
everything like that. I just blocked it out, it's my past.
I don't remember[.] I'm not going to sit here and say
that I remember things that I don't. I don't remember.
At the conclusion of the 104 hearing, the State requested Martinez's
testimony from the second trial be read to the jury, on the ground it was prior
testimony and Martinez was an unavailable witness. Defendant opposed the
admission of such testimony, arguing to do so would violate his rights under
the Confrontation Clause of both the federal and state constitutions, see U.S.
CONST. amend. VI, N.J. Const. art. I, ¶ 10, because he would be precluded
from cross-examining Martinez. Defendant conceded Martinez was cross-
examined by his previous attorney during the second trial.
The trial court initially found Martinez did not have a recollection of the
subject matter of his prior testimony and, therefore, was an unavailable witness
A-1284-15T4
11
pursuant to N.J.R.E. 804(a)(3). This Rule provides that a witness is
"unavailable" if he "testifies to a lack of memory of the subject matter of the
statement." N.J.R.E. 804(b)(1)(A) states, in pertinent part, that if a declarant is
unavailable, the testimony he gave at a prior trial is not hearsay and is
admissible if the party against whom the testimony was offered had the
opportunity and a similar motive in the prior trial to cross-examine the witness.
Despite finding Martinez was unable to recall the subject matter of his
prior testimony, the court then determined it implausible Martinez could not
recall the facts of this case, and concluded Martinez feigned his lack of
recollection. However, the court did not change its prior ruling that Martinez
was unavailable as a witness pursuant to N.J.R.E. 804(a)(3).
After issuing its ruling, the trial court stated Martinez would be recalled
to the witness stand after the jury returned to the courtroom, so that the State
could conclude its direct examination or, if it had no questions, defendant
could cross-examine Martinez. Defendant objected to that procedure, arguing
there was no point in cross-examining Martinez, given the court had ruled he
was unavailable as a witness and that his prior testimony would be read to the
jury.
A-1284-15T4
12
The court reiterated defendant had the right to cross-examine the witness
at that time. Defendant declined and requested the witness not be recalled to
the stand. Ultimately, both parties agreed that Martinez would not be recalled.
When the jury returned to the court room, the court advised it the State had
withdrawn Martinez as a witness and the jury was not to consider any of the
testimony he had provided to that point. Martinez's prior testimony was
subsequently read to the jury.
As stated, the court found defendant an unavailable witness pursuant to
N.J.R.E. 804(a)(3). On appeal, defendant does not expressly challenge the
court's finding Martinez was unavailable pursuant to the latter subsection, but
does so implicitly. He argues Martinez's feigned loss of memory was
tantamount to refusing to testify, triggering the application of N.J.R.E.
804(a)(2). The latter subsection provides that a declarant is unavailable if he
"persists in refusing to testify concerning the subject matter of the statement
despite an order of the court to do so[.]" Ibid. Defendant maintains the court
should have ordered Martinez to testify pursuant to N.J.R.E. 804(a)(2) and
found him unavailable as a witness only if he still refused to testify. Because
the court did not follow the strictures of N.J.R.E. 804(a)(2), it is defendant's
A-1284-15T4
13
position the admission of Martinez's prior testimony violated his rights under
the Confrontation Clause.
Defendant does not dispute the conditions of N.J.R.E. 804(b)(1)(A) were
met. As stated, this subsection states that testimony in a prior trial is not
excluded by the hearsay rule if the declarant is unavailable as a witness, and
the party against whom the testimony is offered had an opportunity and similar
motive in the prior trial to develop the testimony by examination or cross -
examination.
The Sixth Amendment to the United States Constitution and Article I,
paragraph 10 of the New Jersey Constitution guarantee that the accused in a
criminal case has the right to confront the witnesses against him. The right to
confrontation applies to out-of-court statements that are "testimonial." There
is no question prior trial testimony is testimonial. Crawford v. Washington,
541 U.S. 36, 68 (2004).
In Crawford, the United States Supreme Court held the admission of
out-of-court testimonial statements is unconstitutional, "unless the person who
made the statement is unavailable to testify at trial and the defendant had a
prior opportunity to cross-examine that person." State ex rel. J.A., 195 N.J.
324, 328 (2008) (emphasis supplied). "Our decisions have followed [the
A-1284-15T4
14
Crawford] analysis in confrontation cases arising post-Crawford." State v.
Roach, 219 N.J. 58, 74 (2014).
As stated, in relevant part N.J.R.E. 804(a)(3) provides:
(a) [A] declarant is "unavailable" as a witness if
declarant:
....
(3) testifies to a lack of memory of the subject matter
of the statement[.]
The "statement" at issue is Martinez's testimony from the second trial.
"We interpret an evidence rule, as we would a statute, by first looking at
its plain language." J.A., 195 at 338 (citing United States v. Am. Tel. & Tel.
Co., 498 F.Supp. 353, 356-58 (D.D.C. 1980)). We give "the terms used . . .
their ordinary and accepted meaning." State v. Shelley, 205 N.J. 320, 323
(2011). Here, the language in N.J.R.E. 804(a)(3) is clear on its face and we
need not look any further to ascertain its meaning. This provision states that if
a declarant testifies to a lack of memory of the subject matter of the statement,
he is an unavailable witness.
Although the trial court in this matter opted to do so, N.J.R.E. 804(a)(3)
does not require a court to make a factual determination whether a witness in
fact recalls his prior statement or testimony. The subject language does not
A-1284-15T4
15
state or imply in any way that the veracity of a declarant's claim he lacks
memory of the subject matter of a statement must be established as genuine
before he can be deemed unavailable as a witness. Further, defendant did not
cite and we were unable to find any authority for such a premise.
Therefore, we reject the contention Martinez's feigned memory loss
implicated and compelled the court to utilize N.J.R.E. 804(a)(2) when
determining if Martinez was an unavailable witness. There was no violation of
the Confrontation Clause because, before the prior testimony was admitted, the
trial court properly determined Martinez was an unavailable witness pursuant
to N.J.R.E. 804(a)(3), and it is not disputed defendant had an opportunity to
cross-examine Martinez when he testified at the second trial. See N.J.R.E.
804(b)(1)(A); J.A., 195 N.J. at 328 (2008).
B
During trial, the prosecutor advised the court that "[w]e were hopeful
that [Esmeraldo] would testify but apparently he will not testify, at least that 's
what he says at this point." The prosecutor subsequently clarified that
Esmeraldo did not "unequivocally" say he would not testify and, in fact, stated
he would testify to what he remembered.
A-1284-15T4
16
In any event, the prosecutor requested a 104 hearing to determine
Esmeraldo's availability pursuant to N.J.R.E. 804(a). The State did not call
Esmeraldo as a witness before the jury, merely as a witness at the 104 hearing.
During that hearing, Esmeraldo stated he did not remember what happened to
either J.D. or to A.R., and did not recall ever having a conversation with
defendant about A.R. Esmeraldo did not dispute he was convicted of
attempted murder, but he did not remember pleading guilty to this crime or
why he was even charged and convicted of this particular offense.
At the conclusion of the hearing, the State requested that Esmeraldo's
prior testimony be admitted "under 804 . . . as unavailable." The court did not
refer to any specific provision in N.J.R.E. 804(a), but it is implicit the court
determined Esmeraldo was an unavailable witness pursuant to N.J.R.E.
804(a)(3). The court stated Esmeraldo was "unavailable simply because he's
testified that he has no recall." However, the court did add that "his lack of
memory was invented for purposes of this hearing." Defendant did not
question Esmeraldo at the hearing or call him as a witness at trial.
As he did with respect to the admission of Martinez's prior testimony, on
appeal defendant argues the court should have evaluated Esmeraldo's
unavailability as a witness through the lens of N.J.R.E. 804(a)(2), not N.J.R.E.
A-1284-15T4
17
804(a)(3). For the reasons we rejected such argument when considering
whether the court erred by finding Martinez unavailable pursuant to N.J.R.E.
804(a)(3), we similarly conclude the court did not err when it found Esmeraldo
unavailable for the same reason. Esmeraldo testified to a lack of memory
concerning the subject matter of his prior statement. Therefore, he was an
unavailable witness pursuant to N.J.R.E. 804(a)(3). Whether Esmeraldo could
in fact recall the subject events is irrelevant for the purpose of deter mining his
unavailability as a witness under N.J.R.E. 804(a)(3). Esmeraldo's prior
testimony was not excluded by the hearsay rule because it met the conditions
set forth in N.J.R.E. 804(b)(1)(A).
For the first time on appeal, defendant contends the trial court erred
because it, as opposed to the jury, determined Esmeraldo was feigning memory
loss. Defendant argues the jury should have decided whether this witness's
memory loss was genuine. We reject this argument as wholly without merit.
First, the court, not the jury, determines the admissibility of evidence .
See N.J.R.E. 104(a). The court determines whether a witness is unavailable
pursuant to N.J.S.A. 804(a). Second, as previously discussed, the language in
N.J.R.E. 804(a)(3) does not mandate that a court, let alone a jury, make a
factual determination whether a witness's claim he lacks memory of the subject
A-1284-15T4
18
matter of a statement is valid. The fact the trial court did so in this in stance is
beside the point. The cases defendant cites in his brief are inapposite and thus
do not support his position. Further discussion on this particular contention is
not warranted. R. 2:11-3(e)(2).
C
As previously noted, there was testimony that, just before members of
the Latin Kings and Ñetas arrived at the park for the planned confrontation,
defendant gave a revolver to a member of the Latin Kings. Immediately after
that testimony was rendered, defendant objected and moved for a mistrial.
Defendant argued the testimony was prejudicial in light of the fact that, at the
conclusion of the second trial, he had been acquitted of possession of a weapon
for an unlawful purpose and unlawful possession of a handgun. 3 Defendant
stated he had "no objection to at least a qualified objection referencing the
guns that were used to kill [J.D][,]" but objected to any reference defendant
possessed guns. The court denied the motion and immediately gave the jury
the following instruction:
3
The indictment alleged defendant possessed handguns for the purpose of
unlawfully using them against J.D., and that he was in unlawful possession of
those weapons because he did not have a permit.
A-1284-15T4
19
Ladies and gentlemen, just to be clear, Mr. Negrete is
not charged with any weapons related offenses. So
any testimony that you hear during the course of this
trial if there's any to be heard, I don't know what's
going to be said, okay, with regards to anybody – with
regards to any weapons, their use, their possession,
none of it should be considered with regards to Mr.
Negrete at least when you're determining whether or
not – what your verdict should be with regards to the
conspiracy, attempted murder and the murder charge.
He's not charged with weapons offenses. Any
references to weapons are not to be considered to him.
And you have to follow that instruction from now
until the end of this trial and even during your
deliberations.
On appeal, defendant argues evidence of an offense for which a
defendant has been acquitted cannot be admitted at trial and, if it is, the only
remedy is to declare a mistrial. At the least, he contends, the testimony
referencing the revolver, which he claims tainted the jury against him, shou ld
have been stricken. If not stricken, he claims the instruction to the jury should
have explained the evidence was admissible for only a specific purpose.
Finally, he contends N.J.R.E. 404(b) precluded the admission of the subject
testimony.
We address the denial of defendant's motion for a mistrial. "The grant of
a mistrial is an extraordinary remedy to be exercised only when necessary 'to
prevent an obvious failure of justice.'" State v. Yough, 208 N.J. 385, 397,
A-1284-15T4
20
(2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). Thus, an appellate
court should not reverse a denial of a mistrial motion without a clear showing
of actual harm or abuse of discretion. Ibid. (citing State v. Labrutto, 114 N.J.
187, 207 (1989)). In particular, "when inadmissible evidence erroneously
comes before the jury, an appellate court should not order a new trial unless
the error was clearly capable of producing an unjust result." Ibid. (citing R.
2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002)) (internal quotation marks
omitted).
Here, we reject the contention the trial court erred when it denied
defendant's motion for a mistrial, or otherwise permitted the admission of this
evidence. Even if the admission of this testimony were erroneous and
constituted improper "other crimes" evidence inadmissible under N.J.R.E.
404(b), State v. Cofield, 127 N.J. 328, 336 (1992), we are satisfied the error
was harmless. Evidence defendant held a gun in his hand and turned it over to
another was, under these specific facts, utterly innocuous, given the
overwhelming evidence defendant was guilty of murder and attempted murder.
See, e.g., State v. Sowell, 213 N.J. 89, 107-08 (2013) (affirming conviction
given strength of evidence against defendant despite admission of improper
expert testimony).
A-1284-15T4
21
D
Defendant argues his sentence is unjustified because the court placed too
much weight on aggravating factors three, six and nine, and used "as a basis
for all three of them the disturbing circumstances of the offenses for which
defendant was convicted." He also complains the court "should have provided
a more precise, more detailed statement of reasons" to justify its imposition of
a life sentence. Finally, he contends the court did not properly consider the
factors in State v. Yarbough, 100 N.J. 627, 643-44 (1985), when it ordered the
sentence for attempted murder be served consecutively to the sentence for
murder.
The court found the following aggravating factors: three, N.J.S.A.
2C:44-1(a)(3) (the risk the defendant will reoffend); five, N.J.S.A. 2C:44-
1(a)(5) (there is a substantial likelihood the defendant was involved in
organized criminal activity); six, N.J.S.A. 2C:44-1(a)(6) (the defendant's prior
criminal record); and nine, N.J.S.A. 2C:44-1(a)(9) (the need to deter). The
court did not find any mitigating factors. See N.J.S.A. 2C:44-1(b)(1) to (13).
Specifically, the court found defendant, who was thirty-three years of
age at the time of sentencing, was at risk of reoffending because of his
criminal history. According to the pre-sentence report, before committing the
A-1284-15T4
22
instant offenses, defendant had been adjudicated a delinquent six times and
convicted as an adult of third-degree unlawful possession of a weapon. The
court found aggravating factor five applied because there was undisputed
testimony defendant was not only a member of the Latin Kings, but also the
leader of its Trenton "Chapter." The court determined aggravating factor six
applied based on defendant's juvenile adjudications and prior criminal
conviction. Finally, the court found aggravating factor nine because of the
need to deter.
As for imposing a consecutive sentence, the court stated:
Should the defendant be released on parole, the
sentence[] imposed [for attempted murder] is to be
served consecutively to the sentence imposed [for
murder,] [f]or the mere reason that two lives [were]
destroyed, two families [were] destroyed, [and the]
destruction is permanent without any hope of repair.
We note that "[a]ppellate review of the length of a sentence is limited."
State v. Miller, 205 N.J. 109, 127 (2011). As the Court has reiterated:
The appellate 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."
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23
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
Here, although its comments were brief, the court adequately explained its
findings regarding the aggravating sentencing factors, and we find no basis to
disturb them.
As for the court's imposition of a consecutive sentence, our Supreme
Court has made clear that when imposing consecutive sentences, a court must
carefully weigh the Yarbough factors. See State v. Miller, 108 N.J. 112, 122
(1987). Those factors are:
(1) there can be no free crimes in a system for which
the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or
concurrent sentence should be separately stated in the
sentencing decision;
(3) some reasons to be considered by the sentencing
court should include facts relating to the crimes,
including whether or not:
(a) the crimes and their objectives were
predominantly independent of each other;
(b) the crimes involved separate acts of
violence or threats of violence;
(c) the crimes were committed at
different times or separate places, rather
than being committed so closely in time
A-1284-15T4
24
and place as to indicate a single period of
aberrant behavior;
(d) any of the crimes involved multiple
victims;
(e) the convictions for which the
sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating
factors;
(5) successive terms for the same offense should not
ordinarily be equal to the punishment for the first
offense; and
(6) there should be an overall outer limit on the
cumulation of consecutive sentences for multiple
offenses not to exceed the sum of the longest terms
(including an extended term, if eligible) that could be
imposed for the two most serious offenses. [4]
[State v. Yarbough, 100 N.J. 643-44 (1985) (footnotes
omitted).]
We are satisfied that the record fully supports the court's imposition of
consecutive sentences. Although the court did not expressly articulate its
4
In 1993, the Legislature amended N.J.S.A. 2C:44-5(a) to provide that
"[t]here shall be no overall outer limit on the cumulation of consecutive
sentences," thereby eliminating guideline number six. L. 1993, c. 223, § 1; see
also State v. Eisenman, 153 N.J. 462, 478 (1998) (recognizing supersedence).
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25
reasons for imposing consecutive sentences, they are consistent with the
Yarbough factors. Ibid. "There can be no free crimes, and separate crimes
ordinarily deserve separate punishment." State v. Johnson, 309 N.J. Super.
237, 271 (App. Div. 1998). Here, the murder and attempted murder were
separate and distinct crimes, committed at different times and in different
places, and their objectives were predominately independent of each other.
Yarbough, 100 N.J. at 643-44.
Affirmed.
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