instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record."
How later courts described this case
- instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record."
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NOT FOR PUBLICATION WITHOUT THE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-0201-17
A-0518-17
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREA K. DUNBRACK,
Defendant-Appellant.
_______________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GABRIEL RODRIGUEZ,
Defendant-Appellant.
________________________
Argued April 10, 2019 – Decided May 1, 2019
Remanded by the Supreme Court March 22, 2021
Reargued June 8, 2021 – Decided June 25, 2021
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey, Law
Division, Mercer County, Indictment No. 15-01-0058.
Robin Kay Lord argued the cause for appellant Andrea
Dunbrack.
Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant Gabriel Rodriguez
(Joseph E. Krakora, Public Defender, attorney; Peter T.
Blum, of counsel and on the brief).
Narline Casimir, Assistant Prosecutor, argued the cause
for respondent in A-0201-17 (Angelo J. Onofri, Mercer
County Prosecutor, attorney; Randolph E. Mershon, III,
Assistant Prosecutor, of counsel and on the brief).
Narline Casimir, Assistant Prosecutor, argued the cause
for respondent in A-0518-17 (Angelo J. Onofri, Mercer
County Prosecutor, attorney; Narline Casimir, of
counsel and on the brief).
PER CURIAM
In a prior decision, we addressed the back-to-back appeals of defendants
Gabriel Rodriguez and Andrea Dunbrack challenging their convictions for:
first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b); second-degree possession of a
weapon for an unlawful purposes, N.J.S.A. 2C:39-4(a); second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (Dunbrack only); and fourth-
degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (Rodriguez only). State v.
Dunbrack, Nos. A-0201-17, A-0518-17 (App. Div. May 1, 2019) (slip op. at 1-
A-0201-17
2
4). We reversed defendants' convictions and remanded for new trials because
we concluded the trial judge should have sua sponte charged the jury with the
lesser-included offense of theft as an alternative to the robbery offenses. Id. at
4. In light of our decision requiring a new trial, we declined to reach the other
arguments raised by defendants on the appeals. Id. at 3.
The Supreme Court reversed and reinstated defendants' convictions,
concluding the trial court did not err in failing to issue the lesser-included charge
and remanded the remaining issues defendants raised on the initial appeals for
us to resolve. State v. Dunbrack, 245 N.J. 531, 552 (2021). The remaining
arguments raised by Dunbrack are as follows:
POINT ONE — THE TRIAL COURT ERRED IN
RULING THAT DEFENDANT'S MOTION FOR A
NEW TRIAL BASED ON NEWLY DISCOVERED
EVIDENCE WAS TIME BARRED BECAUSE A
MOTION FOR A NEW TRIAL BASED ON NEWLY
DISCOVERED EVIDENCE MAY BE MADE AT
ANY TIME.
POINT TWO — THE TRIAL COURT'S DECISION
DENYING DEFENDANT'S MOTION FOR A NEW
TRIAL BASED ON NEWLY DISCOVERED
EVIDENCE MUST BE REVERSED BECAUSE THE
CO-DEFENDANT'S LETTER EXONERATING
DEFENDANT IS MATERIAL, NEWLY
DISCOVERED, AND WOULD PROBABLY
CHANGE THE JURY'S VERDICT.
A-0201-17
3
POINT THREE — A QUALITATIVE WEIGHING OF
THE AGGRAVATING AND MITIGATING
FACTORS DOES NOT SUPPORT THE IMPOSITION
OF AN AGGREGATE SENTENCE OF [THIRTEEN]
YEARS WITH AN [EIGHTY-FIVE PERCENT]
PERIOD OF PAROLE INELIGIBILITY.
Rodriguez's remaining argument is as follows:
POINT II — A RESENTENCING SHOULD OCCUR
BECAUSE THE COURT DID NOT EXPLAIN WHY
IT FOUND AGGRAVATING FACTORS THREE,
SIX, AND NINE, AND THE APPARENT REASON
WAS A SERIES OF PRIOR ARRESTS FOR WHICH
NO DISPOSITION WAS KNOWN. U.S. CONST.
AMEND. XIV; N.J. CONST. ART. I, PARA. 1.
The Supreme Court summarized the underlying facts as follows:
On June 16, 2014, Hamilton Police Officer
Robert Whartenby was on patrol in the area of South
Olden and Toronita Avenues with his partner, Officer
David Walls. At approximately 1:45 a.m., the officers
turned onto Toronita Avenue and noticed a vehicle in
the parking lot of an abandoned building. The vehicle's
headlights were on and the driver's door was open.
Officer Whartenby pulled into the parking lot next to
the vehicle and noticed there were no occupants inside,
but there was a male standing on the passenger's side of
the vehicle and a female standing near the rear.
The officers exited their vehicle to investigate
further. Upon exiting, the officers asked the man and
the woman, later identified as defendants Rodriguez
and Dunbrack, to stop. At that time, Officer Walls
walked to the rear of the vehicle and observed a small
fire the size of a coffee can on the ground. Near the fire
was a naked male lying on the ground in the fetal
A-0201-17
4
position. According to the officers, the man was
breathing heavily, his face and head were covered in
blood, and he was not verbally responsive. Upon
observing the male on the ground, the officers
attempted to secure Rodriguez, but he ran. The officers
placed Dunbrack, whose feet had blood on them, in
handcuffs and secured her in the back of the patrol car.
After securing Dunbrack, the officers turned their
attention to putting out the small fire and obtaining
medical assistance for the victim, N.R. N.R. was taken
to a nearby hospital where he received sutures above
his left eye and staples on his head.
Inside the vehicle, Officer Whartenby observed a
purse and a blood-stained handgun on the driver's seat.
Officers found the victim's underwear and socks on the
ground near the rear passenger-side tire, and his t-shirt
was near the edge of the woods where the vehicle was
parked. Foliage near the victim appeared to contain
blood. The victim's pants, passport, and his wallet,
which contained money, were on the front passenger
seat. A subsequent search of the car revealed business
cards in the trunk, including one with the name
"Carlos," the words "Cheap Cab/Taxi Baroda," and a
phone number. The same phone number appeared on
another business card found in the trunk bearing
Gabriel Rodriguez's name.
After officers transported Dunbrack to the police
station, a female officer [Eirnvn Papafilipakis]
conducted a full pat down that revealed a handgun
hidden in Dunbrack's bra.[1] Officers subsequently
arrested Rodriguez at a nearby diner. In his possession
1
Detective James Orzechowski of the New Jersey State Police, Ballistics Unit,
testified he examined and test-fired both firearms in this case. He determined
the semi-automatic handgun found in Dunbrack's bra was operable, but the
revolver found in the front driver's seat was inoperable due to internal corrosion.
A-0201-17
5
were four cellphones, including one belonging to the
victim.
Subsequent testing of the blood on the firearm
and Dunbrack's feet confirmed that the blood matched
the victim's DNA profile.
[Id. at 535-36.]
The Court recounted the victim's testimony as follows:
At trial, N.R. testified that around 7:30 p.m. the
evening before, he went to a bar in Trenton, ate dinner,
drank approximately seven beers, and then left to go to
another Trenton bar, Antigua. N.R. arrived at Antigua
around 10:00 p.m. and, while there, drank
approximately three more beers. At some point around
midnight or 1:00 a.m., a man, later identified as
defendant Rodriguez, approached N.R. and asked him
if he wanted a cheap taxi ride home. Although N.R.
was not sure he could trust someone offering a cheap
taxi ride, he decided to take Rodriguez up on his offer.
Rodriguez told N.R. to wait outside and that the cheap
taxi would be a gray vehicle. N.R. did as Rodriguez
instructed and waited for the car outside the bar.
When the gray car pulled up, Dunbrack was
driving and Rodriguez was seated in the front passenger
seat. N.R. entered the vehicle and sat behind Rodriguez
in the rear passenger seat. N.R. advised them of his
address, but he soon realized that Dunbrack was not
driving towards his home. When N.R. protested,
Dunbrack stopped the car. Rodriguez then exited,
opened the rear passenger door, pointed a gun at N.R.,
and told N.R. to hand over his money or N.R. would be
killed. N.R. testified that as he began giving Rodriguez
his wallet and cell phone, Rodriguez hit N.R[.] in the
face with the gun. After being hit, N.R. blacked out and
A-0201-17
6
the next thing he remembered was waking up in the
hospital. At some point prior to blacking out, N.R.
recalled being told to take off his clothes, but he did not
have the best recollection regarding whether he took his
clothes off or defendants did so. N.R. testified that he
thought he was going to die when Rodriguez pointed
the gun at him.
[Id. at 536-37.]
Rodriguez did not testify at trial. However, the Court recounted
Dunbrack's testimony. Id. at 537-39. She admitted having a relationship with
Rodriguez, but claimed she had traveled to New Jersey from Massachusetts as
part of her job as an exotic dancer. Id. at 537-38. Her version of the events
leading to her arrest was as follows:
Dunbrack testified that on June 15, 2014,
Rodriguez drove her to Atlantic City to meet with an
individual she had met at a club two nights prior.
According to Dunbrack, the gentleman was on a
business trip and he wanted company while he
gambled. Dunbrack met him in Atlantic City and went
to several establishments with him. The man paid
Dunbrack for her time, but there was no sexual activity
involved. When Dunbrack was ready to leave Atlantic
City at approximately 9:00 p.m., she called Rodriguez
and he picked her up. Dunbrack stated that she wanted
to go home, meaning back to the motel where they were
staying, but Rodriguez wanted to go out. The pair
eventually arrived at a bar in Trenton.
Rodriguez went into the bar, but Dunbrack, upset
that Rodriguez did not drive her back to the motel,
stayed in the car. At one point, Dunbrack decided to
A-0201-17
7
leave Rodriguez at the bar and drove off, but she
returned soon thereafter because she felt bad about
leaving. After she returned to the bar, Rodriguez
emerged with . . . N.R. Dunbrack said she had never
seen N.R. before and figured Rodriguez and N.R. were
going to head to more bars. Upset because she still
wanted to go home and because Rodriguez told her to
get out of the driver's seat, Dunbrack got into the back
seat of the car behind the driver's seat. N.R. was seated
in the rear passenger seat.
Dunbrack testified that Rodriguez drove off and
N.R. tried to talk to her, but she could not understand
what he was saying because he was speaking Spanish.
Dunbrack claimed that N.R. then touched her leg but
she removed his hand and told him "no." Dunbrack
testified that thereafter, N.R. started unbuttoning and
pulling off his pants and tried to get on top of her.
Dunbrack stated that she tried to push N.R. off of her
and asked Rodriguez, who was still driving, for help.
In response, Rodriguez reached over and hit N.R. in the
head with something. N.R. began bleeding as a result
of the blow to the head by Rodriguez.[2] Dunbrack
sprayed N.R. in the face with mace and then pushed and
kicked him off of her.[3]
After Rodriguez hit N.R., he pulled the car over,
got out of the car, and attempted to drag N.R. out of the
vehicle as the two men began fighting. Dunbrack
testified that as soon as Rodriguez and N.R. began
fighting, she threw her purse on the front passenger
seat, got out of the car, and walked around to the other
2
Detective Matthew Bagley was responsible for conducting DNA testing of the
evidence in the case and testified there was no blood or blood stains inside the
vehicle.
3
Whartenby testified he did not smell mace in the car or on the victim.
A-0201-17
8
side of the car where the men were fighting. Dunbrack
stated that N.R. was completely naked at that point, but
she did not know where his clothes were or how he got
undressed in such a short timeframe. Dunbrack also
could not explain how N.R.'s pants, passport, wallet,
and cash all ended up in the front passenger seat of her
car. Dunbrack further testified that she did not know
how the small fire was started. According to Dunbrack,
at one point when N.R. was lying on the ground,
Rodriguez retrieved some items from the back seat of
the car, including a gun. Rodriguez handed Dunbrack
the gun and she hid it in her bra. When the police
arrived, Rodriguez ran and the officers placed
Dunbrack under arrest.
[Id. at 538-39.]
We now turn to the facts underlying defendants' remaining claims.
Following defendants' convictions, Dunbrack filed a motion for a judgment of
acquittal, pursuant to Rule 3:18-2, and a motion for a new trial, pursuant to Rule
3:20-1. She attached a handwritten letter written by Rodriguez purporting to
exonerate her. In his letter, Rodriguez wrote "it is unjust that [Dunbrack] is
being punished for the alleged crimes that she was charged with and convicted
[of]." He stated he was "the only one who deserve[d] to be punished" and "the
evidence in the case [did not] point towards [Dunbrack]" because "[t]he victim
himself testified that [Dunbrack] never did anything."
The trial judge denied both motions and after addressing the applicable
legal standards found as follows:
A-0201-17
9
In this case, the defendant's requesting a new trial
in light of a letter written by her co-defendant, . . .
Rodriguez, after the trial had ended. . . .
The [c]ourt finds that this piece of evidence is not
material and is merely cumulative of . . . Dunbrack's
testimony during which she states she had nothing to do
with the attack on [the victim]. She was rather in the
wrong place at the wrong time. Additionally, pursuant
to the standards set forth in [State v. Carter, 85 N.J. 300,
314 (1981)], the co-defendant's letter is only slightly
contradictory of the evidence that was offered by the
State during trial and thus cannot be deemed material.
Under the second element, the letter from . . .
Rodriguez was discoverable before or during trial with
reasonable diligence. . . . Rodriguez exercised his right
not to testify at trial. However, he could have written
this letter addressing . . . Dunbrack's innocence without
making any harmful admissions for himself.
Finally, this letter also is unlikely to change the
jury's verdict if a new trial was granted. . . . Dunbrack
testified during the trial that she was not involved in the
crimes committed against [the victim], thus the degree
of her involvement was addressed with and evaluated
by the jury.
Therefore, the letter by . . . Rodriguez provided
after the trial does not meet the standard for new
evidence warranting a new trial.
Further, as it relates to the robbery charge, the
elements of which are that the defendant was in the
course of committing a theft and that while in the
course of committing a theft knowingly inflicted bodily
injury or used force upon another, this [c]ourt is
satisfied that a reasonable jury could have found . . .
A-0201-17
10
Dunbrack guilty based on the testimony of the victim
alone . . . .
As it relates to the unlawful possession of the
weapon charge, the elements of which that there was a
weapon used, that the defendant knowingly possessed
the weapon, and that the defendant did not have a
permit to have such weapon. Again, this [c]ourt is
satisfied that a reasonable jury could have found . . .
Dunbrack guilty based upon the testimony not only of
[N.R.] but also Detective Orzechowski, Officer
Papafilipakis . . . Officer Fiasco[4], Officer Whartenby
and Officer Bagley.
Now as it relates to the possession of a weapon
for unlawful purpose, the elements of which are that a
weapon was used, that the defendant possessed the
weapon, that the defendant possessed the weapon with
a purpose to use it against the person or property of the
victim, and was the purpose to use the firearm
unlawful? Again, this [c]ourt is satisfied that a
reasonable jury could have found . . . Dunbrack guilty
based on the testimony both of [N.R.] and Detective
Orzechowski.
Finally, as it relates to the second unlawful
possession of the weapon, the same issues arise[,] and
the same testimony had been adduced. Accordingly,
the [c]ourt is satisfied that a reasonable jury could have
found her guilty based again on the testimony of Officer
Papafilipakis and Detective Orzechowski.
Furthermore, this [c]ourt finds that having given
due regard to the opportunity of the jury to pass upon
4
Sergeant Ralph Fiasco testified he took photographs of these items while on
scene, secured the revolver, and went to a hospital to document N.R.'s injuries,
which he described for the jury.
A-0201-17
11
the credibility of the witnesses including but not limited
to the victim, . . . Officers Whartenby and
Papafilipakis[,] and . . . Dunbrack that it does not
clearly and convincingly appear that there was a
manifest denial of justice under the law.
The judge also found as follows:
While this motion only moves for a new trial
under [Rule] 3:20-1, it's worth addressing [Rule] 3:20-
2 as well. Pursuant to [Rule] 3:20-2, a motion for a new
trial based on the ground of newly discovered evidence
may be made at any time. However, under any other
ground for a new trial, it must be made within [ten] days
after the verdict or an extension must be fixed by the
[c]ourt within that [ten] days after that verdict.
Although this permits a party to make a motion for a
new trial at any time, the motion is based on newly
discovered evidence. As addressed previously, based
upon the evidence proffered by . . . Dunbrack, it does
not constitute newly discovered evidence. Again, that's
the letter from [Rodriguez].
....
. . . This motion was filed on March 12[], 2017,
nearly three months after the date of the conviction.
Therefore, this motion must fail under [Rule] 3:20-2 as
well [be]cause the evidence is not newly discovered and
under any other ground for a new trial the motion is
untimely.
. . . Dunbrack initially motions for a[n]
adjustment of acquittal notwithstanding the verdict
pursuant to [Rule] 3:18-2. However, motions filed
under that rule also must be made within [ten] days
after the jury is discharged or within such further time
as the [c]ourt fixes during the [ten] day period. The
A-0201-17
12
jury entered the verdict in this case on December 15[],
2016. Thus, the time frame for this motion
extinguished on December 27[], 2016, factoring in the
[c]ourt-recognized holiday. This motion was not filed
until March 12[], 2017, and no extension for this
motion was addressed with the [c]ourt between
December 15[] and December 27[] of 2016. Moreover,
[Rule] 1:3-4(c) prohibits the parties and the [c]ourt
from enlarging the time frame specified by [Rule] 3:18-
2 and [Rule] 3:20-2. Thus, the [c]ourt has no discretion
to allow this motion under these rules as well given its
untimeliness. Accordingly, the defense motion for a
judgment of acquittal and for a new trial on the
conviction is denied.
As to Dunbrack's sentencing, the judge stated:
[T]he [c]ourt finds the following aggravating factors to
be applicable: Number nine, the need for [deterring]
the defendant and others from violating the law. The
[c]ourt gives great weight to that aggravating factor.
As it relates to mitigating factors, the [c]ourt
finds mitigating factor number seven to be applicable,
that is, that the defendant has no history of prior
delinquency or criminal activity or has led a law-
abiding life for a substantial period of time before the
commission of the present offense[, N.J.S.A. 2C:44–
1(b)(7)]. The [c]ourt also finds mitigating factor
number nine to be applicable, that is, the character and
attitude of the defendant indicate she's unlikely to
commit another offense[, N.J.S.A. 2C:44–1(b)(9),]
based upon the fact that this is her first conviction as
well as the remorse that she's shown to the [c]ourt
today. The [c]ourt also finds mitigating factor number
[eleven] to be partially applicable, that is, that the
extended imprisonment of the defendant would entail
A-0201-17
13
excessive hardship to her or her dependents as she has
a daughter[, N.J.S.A. 2C:44–1(b)(11)].
On an overall balancing of aggravating and
mitigating factors, the [c]ourt finds the mitigating
factors outweigh the aggravating factors which weighs
in favor of a custodial term less than mid[-]range.
Accordingly, the [c]ourt will impose the
following sentence: As relates to count one[,] . . .
[Dunbrack] is committed to the custody of the
Commissioner of the Department of Correction for a
term of [thirteen] years, subject to the No Early Release
Act [(NERA), N.J.S.A. 2C:43-7.2.] Upon completion
of her custodial term, there will be a five year period of
parole supervision. As it relates to count two of that
same indictment, defendant is committed to the custody
of the Commissioner of the Department of Corrections
for a term of seven years with a three and a half period
of parole ineligibility term. Count three merges into
count one, that is, the possession of a weapon for
unlawful purpose. As it relates to count four, defendant
is committed to the custody of the Commissioner of the
Department of Corrections for a term of seven years,
again with a three and a half period of parole
ineligibility term. Sentences imposed will be
[con]current.
The judge sentenced Rodriguez the same day as Dunbrack and found the
following:
With respect to [Rodriguez], he has no juvenile
petitions here in New Jersey. He has[,] I believe[,]
three juvenile petitions in I think Massachusetts. He
also has a number of contacts in Massachusetts, most
appearing to be at the municipal court level. The
A-0201-17
14
convictions here today are as a result of an incident that
occurred in 2014 resulting in four convictions.
....
. . . Again, the instant offenses represent[] the
defendant's first upper court convictions. There are no
known sentences as an adult in this state or out of state
other than the parole violation for which he was
incarcerated.
Taking it all into consideration, the [c]ourt finds
the following aggravating factors to be applicable:
Number three, the risk that the defendant would commit
another offense, [N.J.S.A. 2C:44–1(a)(3);] number six,
the extent of defendant's prior criminal record and the
seriousness of the offenses of which he's been
convicted[, N.J.S.A. 2C:44–1(a)(6)]; number nine, the
need for deterring the defendant and others from
violating the law[, N.J.S.A. 2C:44–1(a)(9)]. The
[c]ourt gives great weight to aggravating factor number
nine. The [c]ourt finds no mitigating factors applicable.
An overall balancing of aggravating and
mitigating factors, the [c]ourt finds that the aggravating
factors outweigh the mitigating factors. There being no
mitigating factors weighs in favor of a custodial
sentence higher than mid-range.
Accordingly, the [c]ourt will impose the
following sentences: As it relates to count one[,] . . .
[Rodriguez] is committed to the custody of the
Commissioner of the Department of Corrections for a
term of [sixteen] years, subject to the [NERA]. Upon
being released, he would then have another five year
period of parole supervision.
A-0201-17
15
With respect to count two, the defendant is
committed to the custody of the Commissioner of the
Department of Corrections for a term of eight years
with a four year period of parole ineligibility.
As to count three, count three merges into count
one.
As to count six, defendant is committed to the
custody of the Commissioner of the Department of
Corrections for a term of one year. The sentences
imposed are to run concurrently.
I.
"A trial court's ruling on a motion for a new trial 'shall not be reverse d
unless it clearly appears that there was a miscarriage of justice under the law.'"
State v. Armour, 446 N.J. Super. 295, 305 (App. Div.) (quoting R. 2:10-1),
certif. denied, 228 N.J. 239 (2016). "[A] motion for a new trial is addressed to
the sound discretion of the trial judge, and the exercise of that discretion will
not be interfered with on appeal unless a clear abuse [of discretion] has been
shown." Id. at 306 (first alteration in original) (quoting State v. Russo, 333 N.J.
Super. 119, 137 (App. Div. 2000)).
Rule 3:20-1 states: "The trial judge on defendant's motion may grant the
defendant a new trial if required in the interest of justice." "[P]ursuant to Rule
3:20-1, the trial judge shall not set aside a jury verdict unless 'it clearly and
A-0201-17
16
convincingly appears that there was a manifest denial of justice under the law.'"
Armour, 446 N.J. Super. at 305-06.
The Supreme Court has stated:
[T]o qualify as newly discovered evidence entitling a
party to a new trial, the new evidence must be[:] (1)
material to the issue and not merely cumulative or
impeaching or contradictory; (2) discovered since the
trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably
change the jury's verdict if a new trial were granted.
[Carter, 85 N.J. at 314.]
"To sustain a motion for a new trial the proffered evidence must meet all three
aspects of the test." State v. Artis, 36 N.J. 538, 541 (1962) (citing State v.
Johnson, 34 N.J. 212, 223 (1961)).
We have stated "post[-]conviction statements of persons who did not
testify at trial, particularly when serving time at the same institution as the
defendant, are 'inherently suspect.'" State v. Allen, 398 N.J. Super. 247, 258
(App. Div. 2008) (quoting State v. Robinson, 253 N.J. Super. 346, 367 (App.
Div. 1992)). "However, [these] post-judgment exculpatory statements to third
parties . . . must be tested for credibility and cannot be summarily rejected." Id.
at 258.
A-0201-17
17
In State v. Ways, the Supreme Court defined "material" evidence under
the Carter test, stating: "Material evidence is any evidence that would 'have
some bearing on the claims being advanced'" by the defense. 180 N.J. 171, 188
(2004) (quoting State v. Henries, 306 N.J. Super. 512, 531 (App. Div. 1991)).
Any evidence tending to support a defense clearly constitutes "material"
evidence, including third-party guilt or a general denial of guilt because it
"relates 'directly to the focal issue at trial.'" Ibid. (quoting Robinson, 253 N.J.
Super. at 362). Furthermore,
[t]he characterization of evidence as "merely
cumulative, or impeaching, or contradictory" is a
judgment that such evidence is not of great significance
and would probably not alter the outcome of a verdict.
However, evidence that would have the probable effect
of raising a reasonable doubt as to the defendant's guilt
would not be considered merely cumulative,
impeaching, or contradictory.
[Id. at 189 (quoting Henries, 306 N.J. Super. at 535).]
Dunbrack argues the trial judge "erred in concluding that [her] new trial
motion was time barred" pursuant to Rule 3:20-2 because a "motion for a new
trial based on newly discovered evidence may be filed at any time" and the trial
court's "circular reasoning conflates the timeliness of the motion . . . ." She also
argues Rodriguez's letter exonerating her is material, newly discovered, and
would probably change the jury's verdict. She asserts the trial judge should have
A-0201-17
18
held a hearing before deciding the probity of Rodriguez's letter. We are
unconvinced.
As the trial judge noted, Rodriguez's letter did not differ from the
testimony and evidence adduced at trial. Neither Dunbrack nor N.R. denied the
fact Rodriguez was the only person who attacked N.R. after the vehicle pulled
into the abandoned parking lot, yet the jury convicted both defendants on all
counts. Moreover, the jury convicted both defendants despite hearing evidence
that Dunbrack and Rodriguez were allegedly fending off a sexual assault by N.R.
on Dunbrack. The letter exonerating Dunbrack was cumulative of the evidence
presented at trial and unlikely to change the outcome. Therefore, a hearing was
not required to adjudicate her motion.
Furthermore, the motion was clearly time barred for the reasons expressed
by the trial judge and Dunbrack's argument to the contrary lacks sufficient merit
to warrant further discussion in a written opinion. R. 2:11-3(e)(2). Therefore,
the trial judge did not abuse his discretion.
II.
We afford a high degree of deference to sentencing determinations. State
v. Fuentes, 217 N.J. 57, 70 (2014).
The appellate court must affirm the sentence unless (1)
the sentencing guidelines were violated; (2) the
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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."
[Ibid. (alteration in original) (quoting State v. Roth, 95
N.J. 334, 364-65 (1984)).]
Once the trial court has balanced the aggravating and mitigating factors
set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the
permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010);
see also State v. Case, 220 N.J. 49, 64-65 (2014) (instructing that appellate
courts may not substitute their judgment for that of the sentencing court,
provided the "aggravating and mitigating factors are identified [and] supported
by competent, credible evidence in the record.").
Dunbrack argues the qualitative weighing of the aggravating and
mitigating factors does not support the imposition of an aggregate sentence of
thirteen years. Rodriguez argues he should be resentenced because the judge
did not explain why he found aggravating factors three, six, and nine, and
erroneously considered a series of prior out-of-state arrests in fixing the
sentence.
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20
Pursuant to N.J.S.A. 2C:43-6, Dunbrack was eligible to serve a sentence
between ten and twenty years for the first-degree robbery. As the trial judge
noted, the thirteen years she received was less than the mid-range. Considering
the substantial evidence of Dunbrack's guilt adduced by the State at trial and the
nature of her offenses, her sentence does not shock the judicial conscience. The
judge's balancing of the aggravating and mitigating factors was supported by the
record.
Notwithstanding the judge's sentencing findings, while this matter was
pending before the Supreme Court, in a different case we retroactively applied
new mitigating factor N.J.S.A. 2C:44-1(b)(14) ("The defendant was under
[twenty-six] years of age at the time of the commission of the offense") where a
defendant's challenge to his sentence was pending appeal and not adjudicated
with finality. State v. Bellamy, ___ N.J. Super. ___ (App. Div. 2021) (slip op.
at 8). During re-argument before us, Dunbrack's counsel raised Bellamy and
asserted her client's sentence should likewise be remanded because Dunbrack
was younger than twenty-six years of age when she committed the underlying
offenses.
Our review of Dunbrack's judgment of conviction reveals she was twenty-
three years of age when she committed her offenses. As we noted in Bellamy,
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21
"[u]nquestionably, the Legislature wanted to fill a void in N.J.S.A. 2C:44-1(b)
by making a convicted person's youth a standalone factor in the court's
sentencing calculus. . . . This draws the new mitigating factor in line with other
statutes deemed to satisfy the ameliorative exception and justifies 'retroactive'
applicability." Ibid. For these reasons, we remand Dunbrack's sentence for
reconsideration in light of the enactment of N.J.S.A. 2C:44-1(b)(14) pending her
appeal.
We remand Rodriguez's sentence as well, but for different reasons.
Aggravating factor six, N.J.S.A. 2C:44-1(a)(6), requires the court to consider
"the extent of the defendant's prior criminal record and the seriousness of the
offenses of which the defendant has been convicted . . . ." As we noted, the
judge found Rodriguez had no prior adult criminal record implicating
aggravating factor six. The seriousness of the offenses for which Rodriguez was
convicted here would not be a relevant consideration under this factor. For these
reasons, we remand Rodriguez's sentence for reconsideration.
However, we reject Rodriguez's other challenges to the sentencing
findings. It is apparent aggravating factors three, the risk that the defendant
would commit another offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need for
deterring the defendant and others from violating the law, N.J.S.A. 2C:44-
A-0201-17
22
1(a)(9), were readily applicable to Rodriguez. Indeed, the record was replete
with evidence describing the serious nature of the offenses and the injuries
inflicted by Rodriguez on N.R.
In our review of a sentencing determination, if it is "possible in the context
of [the] record to extrapolate without great difficulty the court's reasoning," the
sentence should be upheld. State v. Pillot, 115 N.J. 558, 566 (1989). The nature
of the crimes Rodriguez committed, including luring N.R. into the vehicle and
beating and then isolating him in an inhumane manner, reflect the inherently
harmful behavior to be deterred which is addressed in aggravating factor nine.
Beyond the conduct itself, the weapons discovered and Rodriguez's attempt to
escape police supported the judge's finding of aggravating factor three that
Rodriguez was at risk to commit another crime. However, because the findings
regarding aggravating factor six were unclear, we remand Rodriguez's sentence
for reconsideration.
Affirmed in A-0201-17 as to the convictions and reversed and remanded
in part for resentencing. Affirmed in A-0518-17 as to the convictions and
reversed and remanded in part for resentencing. We do not retain jurisdiction.
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23