STATE OF NEW JERSEY VS. ANTWON D. MCGRIFF (17-08-0789, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-2573-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTWON D. MCGRIFF,

a/k/a/ ANTWON MCGRIFF,

Defendant-Appellant.

________________________

Submitted February 8, 2021 – Decided April 27, 2021

Before Judges Sabatino and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law

Division, Cumberland County, Indictment No. 17-08-

0789.

Joseph E. Krakora, Public Defender, attorney for

appellant (Morgan A. Birck, Assistant Deputy Public

Defender, of counsel and on the briefs).

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent (Andre R. Araujo,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On August 30, 2017, defendant was charged in a seven-count indictment

with first-degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1)

(count one); second-, third-, and fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(1), (2), and (4) (counts two, three, and four, respectively); third-

degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a) (count five);

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count

six); and second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a) (count seven). The trial court dismissed counts three and

five on the State's motion prior to trial.

The charges stemmed from the non-fatal shooting of defendant's neighbor.

During the seven-day jury trial beginning on October 24, 2018, the parties

presented conflicting scenarios surrounding the circumstances of the shooting.

The neighbor testified that defendant intentionally shot him because he owed

defendant money for marijuana. In his statement to police, defendant admitted

threatening his neighbor with a gun to scare him but claimed the gun accidentally

discharged. According to defendant, his actions were prompted by the neighbor

pointing a gun at his home the night before, while defendant's children were

present, and running off before defendant could confront him.

A-2573-18

2

A jury convicted defendant of the weapon possession offenses (counts six

and seven), and simple assault as a lesser included offense of count two. He was

acquitted of the remaining charges. During the trial, both sides presented

evidence that defendant, the victim, and the victim's stepfather who witnessed

the shooting gave inconsistent statements. To that end, the State presented a

letter signed by the victim recanting his identification of defendant as the

shooter. Although the victim repudiated the content of the letter at trial, he

admitted signing the letter in exchange for money offered by defendant's friend.

At sentencing, defendant received an aggregate extended term of sixteen years'

imprisonment, with an eight-year period of parole ineligibility.

On appeal, defendant raises the following points for our consideration:

POINT I

DEFENDANT WAS DENIED DUE PROCESS AND

A FAIR TRIAL BY THE COURT'S ERRONEOUS

ADMISSION OF OTHER-CRIMES EVIDENCE,

INCLUDING A LETTER SIGNED BY THE VICTIM

IN EXCHANGE FOR MONEY FROM DEFENDANT

AND OF EVIDENCE THAT DEFENDANT WAS

DEALING MARIJUANA TO THE VICTIM. N.J.R.E.

404(B); U.S. CONST. AMEND VI, XIV; N.J. CONST.

ART. I, ¶ 1, 10. (NOT RAISED BELOW)

....

[A.] The Letter The Victim Signed

Saying Defendant Was Not The Shooter

A-2573-18

3

Was Inadmissible As N.J.R.E. 404(B)

Evidence And The Court's Failure To Give

A Limiting Instruction Was Highly

Prejudicial.

[B.] The Victim's Testimony About

Defendant Selling Him Drugs Was

Inadmissible As N.J.R.E. 404(B) Evidence

And The Court's Failure To Give A

Limiting Instruction Was Highly

Prejudicial.

[C.] The Failure To Give Any Limiting

Or Curative Instruction Necessitates

Reversal.

POINT II

THE PROSECUTOR COMMITTED REVERSIBLE

MISCONDUCT DURING SUMMATION BY

COMPARING THIS CASE TO THE INFAMOUS

TRAYVON MARTIN SLAYING BY GEORGE

ZIMMERMAN. U.S. CONST. AMEND V, XIV; N.J.

CONST. ART. I, ¶ 1, 9, 10.

POINT III

THE CUMULATIVE IMPACT OF THE OTHER-

CRIMES EVIDENCE AND THE PROSECUTORIAL

MISCONDUCT IN SUMMATION DEPRIVED

DEFENDANT OF DUE PROCESS AND A FAIR

TRIAL. U.S. CONST. AMEND V, VI, XIV; N.J.

CONST. ART. I, ¶ 1, 9, 10.

POINT IV

THIS COURT SHOULD REMAND FOR

RESENTENCING BECAUSE THE SENTENCING

A-2573-18

4

COURT ENGAGED IN IMPROPER DOUBLE

COUNTING AND IMPROPERLY FAILED TO

FOCUS ON THE OFFENSE WHEN SENTENCING

DEFENDANT TO THE UPPER END OF THE

DISCRETIONARY EXTENDED TERM RANGE.

A. The Sentencing Court Engaged In

Double-Counting When It Used

[Defendant's] Only Two Indictable

Convictions To Both Apply The Extended

Term And To Weigh Aggravating Factor

Six With "Substantial Weight."

B. The Sentencing Court Failed To

Consider The Offense Itself When

Deciding.

For the reasons that follow, we affirm.

I.

We glean these facts from the trial record. At approximately 10:00 a.m.

on January 25, 2016, defendant ran up to his neighbor, Victor Bernal, who was

seated in a car in front of Bernal's mobile home located in the Country Meadows

Trailer Park, pounded the butt of a handgun three times on the window of

Bernal's car, and then fired the gun into the vehicle, wounding Bernal.

Afterwards, defendant "took off running towards his trailer" across the street.

Police and emergency medical services (EMS) responded to the 911 calls.1

1

The 911 calls were played for the jury.

A-2573-18

5

Bernal was transported to Inspira emergency room where he was medivacked to

AtlantiCare Regional Medical Center for treatment of a "gunshot wound . . . in

his left back area." In the course of the investigation, police took statements

from Bernal and Bernal's stepfather, Arturo Diaz, who was outside cleaning out

his minivan at the time and witnessed the shooting. Police also located

defendant at the trailer park, placed him under arrest, and questioned him after

advising him of his rights.2

At trial, Bernal testified he was hospitalized "[f]or about two months" and

would "be in pain for the rest of [his] life" from the injury. He stressed that the

gun did not accidentally discharge because defendant "pointed [it] right at

[him]" before firing. Bernal denied trying to break into defendant's mobile home

the night before and testified that he had spent the night at his girlfriend's house.

However, contrary to his statement to police, during his trial testimony, Bernal

attributed defendant's motive for the shooting to the fact that he "owed

[defendant about $200 or $300] for some weed."3

2

At trial, the parties stipulated that defendant knowingly and voluntarily waived

his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and gave a

voluntary statement which was introduced at trial with redactions agreed to by

both parties. No issues related to defendant's statement are raised in this appeal.

A-2573-18

6

During direct examination, when shown a letter dated September 19,

2017,4 in which Bernal purportedly recanted his statement identifying defendant

as the shooter, Bernal testified that although he "signed" the letter, he "did[ not]

write it."5 Although the letter contained the jurat of a notary public, Bernal

denied appearing before the specified notary public and repudiated the content

of the letter. Instead, Bernal testified he signed the letter at the behest of an

unnamed friend of defendant "because [he] was supposed to get paid for [it]."

Bernal explained that at the time, "[he] was on drugs" and "needed money."

According to Bernal, he started using drugs after the shooting and was in jail at

the time of the trial because he had pleaded guilty to a drug related charge.

During his testimony, Diaz corroborated Bernal's account of the shooting.

However, on cross-examination, when confronted with his statement to police,

Diaz denied that he had told police that during the shooting, defendant had said

3

During his statement to police, Bernal had denied owing defendant money for

drugs and explained instead that he owed defendant money for "a loan."

4

The letter was moved into evidence.

5

To support his denial, Bernal pointed out that the letter incorrectly stated that

the shooting occurred on January 24, rather than January 25. Bernal said if he

had written the letter, he would not have made that mistake.

A-2573-18

7

to Bernal, "this is for last night." Diaz also testified that he had no problems

with defendant prior to the shooting.

In his statement to police, after initially denying any involvement in the

shooting, defendant ultimately admitted threatening Bernal with the gun in

retaliation for him and his brother "try[ing] to kick [his] door in" and "pointing"

"two" "sawed off" shotguns at his home the night before while defendant's

family was present.6 According to defendant, when he called out Bernal's name,

Bernal "just took off running." Defendant stated that when he confronted Bernal

in the car the following morning, he only intended to "scare[] him up."

However, the gun "went off by accident" when he "tried to . . . bust [t]he [car]

window out"7 by hitting the gun against the vehicle. Defendant claimed that

after the gun discharged, he "got scared," "dropped it right there," and ran off.

Police never recovered the weapon. However, a record check revealed

that defendant did not have a permit to carry a firearm in New Jersey.

6

Defendant explained that the disagreement between the two families began

about a month before when he refused to pay Diaz $500 for a botched repair of

defendant's car. In response, Diaz had allegedly threatened defendant that he

could "make a call" because "his sister [was] in the Cartel." During cross -

examination, Diaz acknowledged doing repairs on defendant's car but testified

that he was paid for the job and that defendant was satisfied with the work.

7

In his statement to police, Bernal confirmed that during the confrontation,

defendant had said "fuck that, I'm about to bust the windows."

A-2573-18

8

Defendant did not testify at trial. The jury returned its verdict on

November 8, 2018, and defendant was sentenced on January 4, 2019. The judge

entered a conforming judgment of conviction on January 8, 2019, and this appeal

followed.

II.

On appeal, defendant argues for the first time in Point I that "the court

erroneously admitted [the recantation] letter that Bernal said he signed in

exchange for [money]" and "allowed Bernal to testify that [defendant] sold drugs

to Bernal." Defendant asserts that the former "implied that [defendant] was

involved in witness tampering, or bribing a witness to cover up any involvement

in a crime" and the latter "painted [defendant] as a drug dealer." Defendant

argues that by "admit[ing] this evidence absent any analysis required under

N.J.R.E. 404(b) and State v. Cofield, 127 N.J. 328 (1992)," and "failing to give

the jury any limiting instruction," the court "deprived [defendant] of his right to

due process and a fair trial." According to defendant, in addition to the fact that

the State failed to give the requisite "notice as to what th[e] evidence would be

used for," had "the Cofield analysis . . . been done, the evidence should have

been excluded because in both cases the evidence was not proven by clear and

convincing evidence, and . . . the prejudice outweighed its probative nature."

A-2573-18

9

Because there was no objection at trial, we review this issue to determine

whether there was plain error, which is error that "is 'clearly capable of

producing an unjust result.'" State v. Singleton, 211 N.J. 157, 182-83 (2012)

(quoting R. 2:10-2). Under the plain error standard, "the possibility of injustice

[must be] 'sufficient to raise a reasonable doubt as to whether the error led the

jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J.

442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). When a

defendant does not object, our Supreme Court "has held [that] 'to rerun a trial

when the error could easily have been cured on request, would reward the

litigant who suffers an error for tactical advantage either in the trial or on

appeal.'" State v. Weston, 222 N.J. 277, 294-95 (2015) (quoting Macon, 57 N.J.

at 333). Thus, "[i]t is defendant's burden to demonstrate that the trial courts'

procedures constituted plain error." Id. at 295. In determining whether the

defendant has met his burden, "we assess the overall strength of the State's case."

Ibid. (citations and quotation marks omitted). See State v. Sowell, 213 N.J. 89,

107-08 (2013) (affirming conviction given strength of evidence against

defendant despite admission of improper expert testimony).

Generally, N.J.R.E. 404(b) precludes the admission of evidence pertaining

to other crimes or wrongs, except to show "proof of motive, opportunity, intent,

A-2573-18

10

preparation, plan, knowledge, identity, or absence of mistake or accident when

such matters are relevant to a material issue in dispute." Indeed, "N.J.R.E.

404(b) is a rule of exclusion rather than a rule of inclusion. . . ." State v.

Carlucci, 217 N.J. 129, 140 (2014) (quoting State v. P.S., 202 N.J. 232, 255

(2010)).

In Cofield, the Supreme Court articulated a four-pronged test to govern

the admissibility of such evidence for those permitted purposes. 127 N.J. at 338.

Specifically, the Cofield test requires that:

1. The evidence of the other crime must be admissible

as relevant to a material issue;

2. It must be similar in kind and reasonably close in

time to the offense charged;

3. The evidence of the other crime must be clear and

convincing; and

4. The probative value of the evidence must not be

outweighed by its apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007) (quoting

Cofield, 127 N.J. at 338).]

In Williams, however, the Court observed that because the second Cofield factor

was "not one that [could] be found in the language of . . . Rule 404(b)," it "need

not receive universal application in Rule 404(b) disputes." Id. at 131.

A-2573-18

11

Here, we agree with defendant that the evidence in question fell within

N.J.R.E. 404(b)'s parameters and should therefore have been subjected to a

Cofield analysis.8 However, because defense counsel never objected during the

trial, the judge was never asked to perform the requisite analysis or give the jury

a Cofield limiting instruction, either at the time the evidence was introduced or

during the final instructions to the jury. See State v. Marrero, 148 N.J. 469, 495

(1997) ("When other-crime evidence is admitted, 'the court must instruct the

jury on the limited use of the evidence.'" (quoting Cofield, 127 N.J. at 340-41)).

Regardless of whether an appropriate objection would have led to the exclusion

of the evidence or the giving of limiting instructions, we are satisfied that given

the strength of the evidence against defendant, any error was not of "sufficient

[magnitude] to raise a reasonable doubt as to whether [it] led the jury to a result

it otherwise might not have reached." Macon, 57 N.J. at 336.

To support our conclusion, we rely on the fact that defendant was

acquitted of the most serious charge and convicted of simple assault and two

8

We point out that, facially, the letter itself is exculpatory and referenced no

crimes or bad acts committed by defendant. Instead, it characterized defendant

as "an innocent man" who "was not the shooter!" However, we construe

defendant's argument on appeal as challenging the testimony elicited from

Bernal in connection with the letter rather than the letter itself, which content

defense counsel would have undoubtedly used to undermine Bernal's conflicting

trial testimony had it not been introduced by the State.

A-2573-18

12

weapon possession offenses which were established by defendant's

incriminating statement to police as well as the defense theory at trial. Indeed,

in his statement, defendant admitted that he attempted to scare Bernal with a

handgun in retaliation for Bernal threatening his family with a sawed-off

shotgun over an unpaid mechanic's bill. However, the gun discharged

accidentally, injuring Bernal. In summations, defense counsel reiterated that

Bernal instigated the confrontation and defendant was "protect[ing] himself"

and "his family" when he "rightly or wrongly had a handgun" that

"malfunction[ed]" and accidentally discharged when he "bang[ed] th[e] gun

against the [car] window." The verdict in this respect was consistent with

defendant's account rather than the State's version of an unprovoked, pre-

meditated intentional attempt to murder Bernal.

In Point II, defendant argues that during summations, the prosecutor's

"comparison" of his case to "the Trayvon Martin/George Zimmerman case," "a

notorious case" that "launched a movement for racial justice that continues

today," was "both unsupported by the record and entirely inflammatory."

Defendant asserts that the "prosecutor's use of Zimmerman . . . implie[d] that

this case [was] even worse than the Zimmerman case, and that the failure to

convict could appear widely as an injustice." Thus, the comments were "highly

A-2573-18

13

prejudicial, and violated [his] rights to due process and [a] fair trial." Moreover,

according to defendant, the prosecutor's "comparison between Florida and New

Jersey law could have confused the jury."

Although prosecutors have considerable latitude in presenting closing

arguments, they "may not exceed the parameters of 'permissibly forceful

advocacy' established by decisional law." State v. Munoz, 340 N.J. Super. 204,

217 (App. Div. 2001) (quoting State v. Marshall, 123 N.J. 1, 161 (1991)). In

that regard, courts have found prosecutorial comments to be improper in

instances where the remarks made "references to matters extraneous to the

evidence," State v. Jackson, 211 N.J. 394, 408 (2012), or "possess[ed] the

capacity to anger and arouse the jury and thereby divert them from their solemn

responsibility to render a verdict based on the evidence." Marshall, 123 N.J. at

161. "In other words, as long as the prosecutor 'stays within the evidence and

the legitimate inferences therefrom,'" State v. McNeil-Thomas, 238 N.J. 256,

275 (2019) (quoting State v. R.B., 183 N.J. 308, 330 (2005)), "[t]here is no

error." Ibid. (alteration in original) (quoting State v. Carter, 91 N.J. 86, 125

(1982)). However, deviation from this path is problematic.

"Notwithstanding the high standard to which a prosecutor is held . . . , 'not

every deviation from the legal prescriptions governing prosecutorial conduct'

A-2573-18

14

requires reversal." Jackson, 211 N.J. at 408-09 (2012) (quoting State v.

Williams, 113 N.J. 393, 452 (1988)). In fact, "[t]he misconduct does not warrant

reversal unless it is 'so egregious that it deprived the defendant of a fair trial.'"

Id. at 409 (quoting State v. Frost, 158 N.J. 76, 83 (1999)). In determining

whether a prosecutor's misconduct was sufficiently egregious to warrant

reversal, "an appellate court must consider (1) whether defense counsel made

timely and proper objections to the improper remarks; (2) whether the remarks

were withdrawn promptly; and (3) whether the court ordered the remarks

stricken from the record and instructed the jury to disregard them." Frost, 158

N.J. at 83. "Generally, if no objection was made to the improper remarks, the

remarks will not be deemed prejudicial." Ibid. "The failure to object suggests

that defense counsel did not believe the remarks were prejudicial at the time

they were made" and "also deprives the court of an opportunity to take curative

action." Id. at 84. "Notably, a determination as to whether a prosecutor's

comments had the capacity to deprive defendant of a fair trial must be made

'within the context of the trial as a whole.'" McNeil-Thomas, 238 N.J. at 276

(quoting State v. Feaster, 156 N.J. 1, 64 (1998)).

Here, during her summation, in responding to defendant's self-defense

claim, the prosecutor stated that "if [defendant] went and got his gun that night

A-2573-18

15

when he [was] faced with an immediate threat, which he felt was made to his

family or himself, then maybe we have a self-defense." However,

[y]ou can't just go in your house, [thirteen] hours later,

grab a deadly weapon, and confront someone. . . . And

you definitely can't shoot someone for something that

happened [thirteen] hours ago.

Even in Florida, when we all know Florida has

some crazy laws, because - - George Zimmerman,

everybody knows that case. Stand your ground. . . . In

Florida, if I perceive a threat, under their law, perceive

a threat, not even an actual threat, I just say, oh, you

know what, I felt threatened, like George Zimmerman

said. You know, well, I see Trayvon Martin and I

confront him, even though everybody said, don't walk

up to him if you feel threatened, he engages Mr. Martin.

They get into a physical scuffle, and Mr. Zimmerman

shoots him.

Well, in Florida, under their crazy system, that's

legal. And we all . . . heard of stand your ground . . . .

That's not what New Jersey says.

There was no objection when the comments were made. However, the

following day, prior to the final jury charge, defense counsel objected to the

prosecutor's "many references to stand your ground and Florida law" during

closing and requested that "the jury be instructed to disregard [the comments] in

[their] entirety." The judge denied defense counsel's request but stated that he

was "going to instruct [the jurors] as to the law" that was applicable to the case,

A-2573-18

16

and "remind them that any statements by any of the attorneys about what the law

is, or should be or might be is to . . . be disregarded if it interferes or contradicts

with the [judge's] charge." The judge determined "there [was] no reason . . . to

do anything more specific than that." The judge's final charge included the

explicit instructions he outlined in rejecting defense counsel's request.

On appeal, defendant essentially argues the denial of his request to strike

the comments deprived him of a fair trial because the "comparison between

Florida and New Jersey law could have confused the jury." We disagree. We

are satisfied that the judge's instruction on the applicable law and the import of

any contrary statements by the attorneys as to the applicable law sufficed to cure

the error. "The authority is abundant that courts presume juries follow

instructions." State v. Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019).

Turning to defendant's argument regarding the prosecutor's comparison of

his case to "the Trayvon Martin/George Zimmerman case," because defendant

did not object to those comments at trial, our review is subject to plain error

scrutiny. See R. 2:10-2. Recently, our Supreme Court "reemphasized that

prosecutorial misconduct warranting reversal of a defendant's conviction can be

based upon references to matters extraneous to the evidence." State v. Williams,

244 N.J. 592, 612 (2021). There, based on prosecutorial misconduct, the Court

A-2573-18

17

vacated the defendant's conviction for robbery, which stemmed from the

defendant "pass[ing] a note to a young female teller which said, 'Please, all the

money, 100, 50, 20, 10. Thank you.'" Id. at 599.

Noting that "[t]he central issue at trial" was whether defendant committed

robbery or theft, the Court "consider[ed] whether the jury might have reached"

its verdict

because the prosecutor showed the jury a PowerPoint

presentation in her closing that contained a still

photograph from the movie The Shining and

commented, "if you have ever seen the movie The

Shining, you know how his face gets through that

door." The PowerPoint slide depicted Jack Nicholson

in his role as a violent psychopath who used an ax to

break through a door while attempting to kill his family.

The photograph contained the words spoken by

Nicholson in the movie scene as he stuck his head

through the broken door --"Here's Johnny!" The slide

also bore the heading "ACTIONS SPEAK LOUDER

THAN WORDS," a theme used by the State throughout

the trial to suggest to the jury that defendant's conduct

in the moments leading up to and following defendant's

passing the note to the teller supported a finding of

robbery when viewed in context. The photograph was

not previously shown to the court or defense counsel

and had not been used at trial or offered or admitted into

evidence.

[Id. at 599-600.]

The Court held that by "improperly invit[ing] a comparison between

defendant and Jack Nicholson's psychotic, ax-wielding character in The

A-2573-18

18

Shining," id. at 614, none of which was in evidence, "the prosecutor's comments

and use of the PowerPoint slide amounted to prejudicial error." Id. at 600. The

Court explained "[t]he use of a sensational and provocative image in service of

such a comparison, even when purportedly metaphorical, heightens the risk of

an improper prejudicial effect on the jury." Id. at 617. "Weighing 'the severity

of the misconduct and its prejudicial effect on the defendant's right to a fair trial,'

[the Court] determine[d] the prosecutor's comments and the extra-evidentiary

movie photograph 'made it more likely that the jury would reject th e defense'

that only a theft occurred." Id. at 616. (quoting State v. Wakefield, 190 N.J.

397, 437 (2007)).

Here, given the absence of any objection, we conclude that any error

related to the prosecutor's comparison of defendant's case to the extra-

evidentiary "Trayvon Martin/George Zimmerman case" was not of "sufficient

[magnitude] to raise a reasonable doubt as to whether [it] led the jury to a result

it otherwise might not have reached." Macon, 57 N.J. at 336. We are satisfied

that in light of the evidence adduced at trial, particularly defendant's inculpatory

statements, the prosecutor's comments, while completely inappropriate, did not

deprive defendant of a fair trial. See Feaster, 156 N.J. at 63-64 ("We are fully

satisfied that it was the weight of the evidence, particularly the damning

A-2573-18

19

statements uttered by defendant himself, that led to this capital murder

conviction rather than the prosecutor's improper comments during

summation.").

"We also recognize that the prosecutor's summation is best reviewed

within the context of the trial as a whole." Id. at 64. "Of particular relevance is

the line of argument defense counsel pursued in summation," ibid., which harped

on a theme of "two different jurisdictions . . . at play," "the law of the land" and

"the law of the streets." Defense counsel implied that in order to survive at the

trailer park, defendant could not abide by "the law of the land." 9 See State v.

McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011) ("A prosecutor's otherwise

prejudicial arguments may be deemed harmless if made in response to defense

arguments."). Consistent with these principles, we conclude the objectionable

comments, when viewed in context, do not rise to the level of plain error.

9

Additionally, in explaining why defendant had not reported the attempted

break-in by Bernal at his home the night before, defense counsel commented in

summations that defendant would not "give anybody up," lest he suffer the same

fate as "Whitey Bulger, who escaped the law for . . . [sixteen] years" but

"[w]ithin [twelve] hours" of his transfer to a West Virginia prison, was "beaten

to an unrecognizable mass." This reference by defense counsel to a different

notorious case from another jurisdiction provides further context to the

prosecutor's own reference.

A-2573-18

20

In Point III, defendant argues that even if individually, "the other -crimes

evidence and the prosecutorial misconduct in summation do not warrant

reversal, in combination the errors 'cast sufficient doubt upon the verdict to

warrant reversal.'" See State v. Reddish, 181 N.J. 553, 615 (2004) ("[W]e cannot

excuse error on the basis of other overwhelming evidence of guilt when that

other evidence also possesses the taint of error."). "We have recognized in the

past that even when an individual error or series of errors does not rise to

reversible error, when considered in combination, their cumulative effect can

cast sufficient doubt on a verdict to require reversal." State v. Jenewicz, 193

N.J. 440, 473 (2008) (citing State v. Kosovich, 168 N.J. 448, 540 (2001)).

However, here, because we conclude there were no reversible errors, defendant's

cumulative error argument also fails.

Finally, in Point IV, defendant challenges his sentence as excessive.

Specifically, defendant argues the judge engaged in "impermissible double-

counting" by using his "only two prior indictable convictions to apply a

discretionary extended term" and then use one of those prior convictions to

enhance the weight of "aggravating factor six." Further, defendant asserts that

"after deciding to apply an extended term," the judge erred by failing to "focus[]

A-2573-18

21

upon the offenses for which [he] was being sentenced," thereby "ascrib[ing]

duplicative and excessive emphasis to his record."

"[We] review sentencing determinations in accordance with a deferential

standard," and "must not substitute [our] judgment for that of the sentencing

court." State v. Fuentes, 217 N.J. 57, 70 (2014). In our review, we determine

whether "sentencing guidelines were violated;" whether "the aggravating and

mitigating factors found" were "based upon competent and credible evidence in

the record;" and whether "'the application of the guidelines to the facts of [the]

case make[] the sentence clearly unreasonable so as to shock the judicial

conscience.'" Ibid. (first alteration in original) (quoting State v. Roth, 95 N.J.

334, 364-65 (1984)).

"The sentencing court must first, on application for discretionary

enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine

whether a defendant's criminal record of convictions renders him or her

statutorily eligible." State v. Pierce, 188 N.J. 155, 168 (2006). If so, then "the

range of sentences, available for imposition, starts at the minimum of the

ordinary-term range and ends at the maximum of the extended-term range." Id.

at 169. "Thereafter, whether the court chooses to use the full range of sentences

opened up to the court is a function of the court's assessment of the aggravating

A-2573-18

22

and mitigating factors, including the consideration of the deterrent need to

protect the public." Id. at 168.

Where, within that range of sentences, the court

chooses to sentence a defendant remains in the sound

judgment of the court--subject to reasonableness and

the existence of credible evidence in the record to

support the court's finding of aggravating and

mitigating factors and the court's weighing and

balancing of those factors found.

[Id. at 169.]

Here, the judge found defendant met "the minimum statutory requirements

as a persistent offender . . . under [N.J.S.A.] 2C:44-3(a) and an extended term

[of imprisonment was] applicable." The judge also noted that counts six and

seven were "subject to the mandatory sentencing provisions of the Graves Act,"

N.J.S.A. 2C:43-6(c). The judge found aggravating factors three, six, and nine,

as well as mitigating factor five. See N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the

defendant will commit another offense"); N.J.S.A. 2C:44-1(a)(6) ("[t]he extent

of the defendant's prior criminal record and the seriousness of the offenses of

which the defendant has been convicted"); N.J.S.A. 2C:44-1(a)(9) ("[t]he need

for deterring the defendant and others from violating the law"); N.J.S.A. 2C:44 -

1(b)(5) ("[t]he victim of the defendant’s conduct induced or facilitated its

commission").

A-2573-18

23

The judge recounted that defendant was "[thirty-seven] years old" and had

"a juvenile record consisting of one arrest, with one diversion," as well as an

adult record consisting of "[seventeen] arrests, six disorderly [persons]

convictions, three ordinance violations[,] and two indictable convictions ." The

two indictable convictions upon which his persistent offender status was

premised were both drug related, consisting of a second-degree offense for

which defendant received a five-year prison sentence, and a third-degree offense

for which he received a two-year probationary term.

Ascribing substantial weight to the aggravating factors, the judge pointed

out that defendant's criminal history showed "serious[]" and "consistent contact

with the criminal justice system" despite having served a prison term. Further,

the conduct for which defendant was convicted, which "centered around . . . the

use of [a] firearm outside the confines of . . . his house" with "children [living]

in the neighborhood," showed "a [strong] need for deterrence." On the other

hand, crediting "the defense version" of "what may . . . have precipitated . . .

defendant's conduct,"10 the judge found mitigating factor five, albeit attributing

10

Without speculating on the actual basis for the jury's verdict, the judge

recounted "the different scenarios" presented at trial under which the shooting

occurred.

A-2573-18

24

minimal weight, based on "the victim, in some way, shape or form expos[ing]

himself to this conduct."

Nonetheless, in balancing the factors, the judge found "that the

aggravating factors . . . preponderate[d] over the mitigating factor," and, "having

regard for the nature and circumstances of the offense[s]," determined that

"imprisonment [was] necessary for the protection of the public." Accordingly,

the judge sentenced defendant to an extended term of sixteen years'

imprisonment, with an eight-year period of parole ineligibility, on count seven,

a concurrent eight-year term of imprisonment, with a four-year period of parole

ineligibility, on count six, and a concurrent six-month county jail term on count

two. Defendant's sixteen-year extended-term sentence is within the range

between the five-year minimum of the ordinary-term range for a second-degree

offense, N.J.S.A. 2C:43-6(a)(2), and the twenty-year maximum of the extended-

term range for that offense, N.J.S.A. 2C:43-7(a)(3). See State v. Case, 220 N.J.

49, 64-65 (2014) ("[W]hen the aggravating factors preponderate, sentences will

tend toward the higher end of the range." (quoting State v. Natale, 184 N.J. 458,

488 (2005))).

Defendant does not dispute his eligibility for extended term sentencing as

a persistent offender or that his sentence falls within the permissible range.

A-2573-18

25

Instead, citing State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005),

defendant essentially argues that using the same convictions as both a basis for

finding a defendant should be sentenced to an extended term, as well as a basis

for finding an aggravating factor to increase the length of a defendant's sentence,

is prohibited "double-counting." In Vasquez, we determined the sentencing

judge erred in "rais[ing] the presumptive extended base term on account of

defendant's only prior conviction, the very conviction which both allowed and

required an extended term." Ibid. We concluded "[t]o do so was a form of

'double-counting.'" Ibid.

However, in State v. Tillery, 238 N.J. 293, 327 (2019), our Supreme Court

found "no error in the trial court's reliance on defendant's criminal record both

to determine defendant's 'persistent offender' status under N.J.S.A. 2C:44 -3(a)

and to support the court's finding of aggravating factors three, six, and nine."

Indeed, the Tillery Court confirmed that "the defendant's criminal record may

be relevant in both stages of the sentencing determination" as "defendant's prior

record is central to aggravating factor six, N.J.S.A. 2C:44-1(a)(6), and may be

relevant to other aggravating and mitigating factors as well." Id. at 327-28

(emphasis added). Likewise, in State v. McDuffie, 450 N.J. Super. 554, 576-77

(App. Div. 2017), we rejected, "as lacking merit," the defendant's claim that "the

A-2573-18

26

court impermissibly double-counted his criminal record, when granting the

State's motion for a discretionary extended term, and again, when imposing

aggravating factor six . . . ." We explained that defendant's "criminal history

was not a 'fact' that was a necessary element of an offense for which he was

being sentenced" and the sentencing judge was not "required to ignore the extent

of his criminal history when considering applicable aggravating factors" where

it was undisputed that defendant "had more than the requisite number of offenses

to qualify for an extended term." Ibid. (citing State v. Kromphold, 162 N.J.

345, 353 (2000)).

Here, the record reflects the judge did not "double-count" the offense that

triggered the extended term as an aggravating factor, but rather found the

aggravating factor based on the "competent credible" evidence of defendant's

"constant[]" contacts with the criminal justice system. As the judge stated,

"[d]efendant's prior record certainly establishes that he's been unable to remain

out of criminal trouble for any period of time." Therefore, we find no violation

of Vasquez and no abuse of discretion. We also reject defendant's contention

that the judge focused on defendant's "criminal history alone," instead of "the

offense itself" in violation of State v. Dunbar, 108 N.J. 80, 91-92 (1987).

A-2573-18

27

In Dunbar, our Supreme Court explained that "[o]nce the decision to

impose an extended term has been made, the court should then return its focus

primarily to the offense." Id. at 91. However, "other aspects of the defendant's

record, which are not among the minimal conditions for determining persistent

offender status, such as a juvenile record, parole or probation records, and

overall response to prior attempts at rehabilitation, will be relevant factors in

adjusting the base extended term." Id. at 92. Here, the judge's consideration of

other aspects of defendant's record as well as the different scenarios of the

offenses presented at trial clearly belie defendant's contention.

Affirmed.

A-2573-18

28