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NOT FOR PUBLICATION WITHOUT THE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-2068-21
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KURT V. SMITH,
a/k/a WILFREDO PEREZ,
KURT U. SMITH, and
KURT J. SMITH,
Defendant-Appellant.
___________________________
Argued December 4, 2023 – Decided December 14, 2023
Before Judges Mawla and Marczyk.
On appeal from the Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 19-01-
0059.
Austin J. Howard, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Austin J. Howard, of
counsel and on the briefs).
Nicole Handy, Assistant Prosecutor, argued the cause
for respondent (LaChia L. Bradshaw, Burlington
County Prosecutor, attorney; Nicole Handy, of counsel
and on the brief).
PER CURIAM
A jury found defendant Kurt V. Smith guilty of two counts of reckless
manslaughter, N.J.S.A. 2C:11-4(b)(1), for starting a fire, which resulted in the
death of his elderly mother and her companion. Defendant appeals from his
convictions on grounds the State failed to preserve exculpatory evidence,
challenges the admission of the State's fire expert's testimony, and contests his
sentence. We affirm in part and remand in part, for the reasons expressed herein.
Defendant resided with his mother and her companion at her home in
Pemberton Township. The State adduced testimony from defendant's friend,
Jerome Bland. He explained that on October 16, 2018, defendant and two
acquaintances were in the garage attached to the home "messing with
[defendant's] motorcycle." When Bland arrived at the home, he let himself in
the front door and called for defendant but did not get a response. While
searching for defendant, Bland saw defendant's mother and her companion
sleeping in bed. Bland eventually heard defendant's voice emanating from the
garage and went there.
Seconds after entering the garage, Bland smelled strong gasoline fumes.
He told defendant he could smell gasoline and asked, "What are you trying to
A-2068-21
2
do, start a fire?" Defendant responded, "Do you want to see a fire? I'll show
you a fire" and took a lighter out of his pocket, lit it, and dropped it to the ground.
A fire started and immediately spread to both side walls, running down to the
motorcycle, which also caught fire.
Defendant immediately asked one of his friends to hand him a fire
extinguisher and he attempted to put the fire out. Bland left the garage and tried
to awaken defendant's mother and her companion without success. He returned
to the garage and observed defendant open the garage door to drag the
motorcycle out, which caused "the whole house [to light] up like a Christmas
tree out of hell." Bland again tried, but failed, to awaken defendant's mother
and her companion. He then exited the home and tried to put out the fire with
the garden hose. Once he realized his efforts were futile, he tried again to rouse
defendant's mother and her companion. Bland emphasized, "the whole time,
[defendant] was still trying to put the fire out . . . ."
Bland called 9-1-1 but did not wait for police because he was afraid his
prior criminal record would lead police to believe he started the fire. Firefighters
removed the bodies of defendant's mother and her companion from the home.
The Burlington County Chief Medical Examiner testified both victims died of
smoke and soot inhalation, and thermal burns.
A-2068-21
3
The following day, Detective Brian Lloyd of the Burlington County
Prosecutor's Office and Captain Stephen Letts of the New Jersey State Fire
Marshal's Office investigated and documented the scene. Inside the garage, they
found a fire extinguisher and observed water on the garage floor with a "sheen"
or "rainbow color," which they each testified was "indicative" of an ignitable
liquid accelerant. They found the motorcycle inside the garage near the door
with debris on top of it and its rubber melted off. Melissa Balogh, a forensic
scientist employed by the New Jersey State Police Office of Forensics, testified
she examined defendant's right work boot, which he wore the night of the fire,
and testing revealed gasoline on the bottom of the boot.
A grand jury indicted defendant with two counts of first-degree
aggravated manslaughter, N.J.S.A. 2C:11-4(a)(1) (counts one and two); and one
count of third-degree arson, N.J.S.A. 2C:17-1(b)(1) (count three). Prior to trial,
defendant moved to suppress Captain Letts's expert report and testimony
regarding the origin and cause of the fire. The motion judge granted the motion
in part, ruling the portion of the opinion concluding the fire was deliberately set
by defendant would be inadmissible. Defendant also moved to dismiss the
indictment or, alternatively, for an adverse-inference jury instruction based on
the State's failure to preserve potentially exculpatory evidence after the
A-2068-21
4
Township demolished the property where the fire occurred without notice to the
defense. The judge denied the motion.
The jury trial and sentencing were handled by a different judge. The jury
acquitted defendant of the aggravated manslaughter charges but found him
guilty of the lesser-included offenses of reckless manslaughter. It deadlocked
on the arson charge.
The trial judge denied defendant's motion for a new trial, which claimed
Captain Letts improperly opined about the cause of the fire. The judge granted
the State's motion to sentence defendant to an extended term of imprisonment
as a persistent offender.
On February 10, 2022, the judge sentenced defendant on the reckless
manslaughter convictions to two concurrent eleven-year prison terms, with an
eighty-five percent parole bar pursuant to the No Early Release Act (NERA),
N.J.S.A. 2C:43-7.2. The judge found aggravating factors three, six, and nine
and mitigating factor two—concluding the aggravating factors substantially
outweighed the mitigating factors. The State dismissed the arson count.
Defendant raises the following arguments on appeal:
POINT I THE STATE DENIED DEFENDANT HIS
RIGHTS TO DUE PROCESS AND
CONFRONTATION BY DESTROYING
POTENTIALLY EXCULPATORY EVIDENCE
A-2068-21
5
WITHOUT NOTICE TO THE DEFENSE AND IN
DEFIANCE OF REPEATED PRESERVATION
REQUESTS. (Partially Raised Below).
A. The Untested Motorcycle Was Highly
Material Evidence Because the State's Expert
Admitted that It Remained a "Possible" Cause of
the Fire that He Never Ruled Out.
B. The State's Destruction of a "Possible"
Cause of the Fire Manifestly Prejudiced the
Defense Because It Prevented Defendant from
Investigating His Theory of the Fire's Cause and
from Adequately Confronting the State's Expert.
C. The Destruction of the Crime Scene
Without Notice to the Defense — Despite
Repeated Preservation Requests — Constitutes
Bad Faith.
1. Communications Show that the State
Had Actual Notice of the Defense's
Preservation Requests, but It Destroyed the
Evidence Anyway Without Notice to the
Defense.
2. The State's Destruction of
Potentially Exculpatory Evidence Was in
Bad Faith Because It Disregarded
Repeated Preservation Requests,
Selectively Preserved Other Evidence, and
Refused to Provide Notice of the
Demolition Date.
D. The Proper Relief Is Dismissal of the
Indictment with Prejudice. Alternatively, a New
Trial Is Required.
A-2068-21
6
POINT II THE ADMISSION OF THE STATE'S
FIRE EXPERT'S OPINIONS VIOLATED
NUMEROUS EVIDENTIARY PROHIBITIONS AND
DENIED DEFENDANT A FAIR TRIAL. (Partially
Raised Below).
A. The State's Fire Expert Should Have Been
Barred from Offering Any Expert Opinion
Because He Was Also the Lead Fact Investigator.
(Raised Below).
B. The State's Fire Expert's Causation
Opinion Violated N.J.R.E. 702 Because It Merely
Parroted the Claim of a Testifying Eyewitness,
Which Was Not Beyond the Ken of the Jury.
C. The State's Fire Expert's Causation
Opinion Violated N.J.R.E. 703 Because He
Relied on Double Hearsay Without Evaluating Its
Reliability in Violation of Professional Fire
Investigation Standards. (Not Raised Below).
D. The State's Fire Expert's Opinion that a
Visible "Sheen" Was "Indicative" of a Liquid
Accelerant — Without Any Testing — Was Not
a Generally Accepted Scientific Option. (Not
Raised Below).
E. Admitting the Opinions Was Not Harmless
and Was Plain Error Because They Bolstered the
Credibility of the State's Sole Eyewitness.
POINT III REVERSAL IS REQUIRED ON
FUNDAMENTAL-FAIRNESS AND CUMULATIVE-
ERROR GROUNDS. (NOT RAISED BELOW).
POINT IV ALTERNATIVELY, DEFENDANT'S
SENTENCE IS EXCESSIVE.
A-2068-21
7
I.
Defendant argues he was deprived of due process and the right of
confrontation because the State destroyed exculpatory evidence when it
demolished his mother's home and the motorcycle, despite repeated preservation
requests. He claims he should have been able to have an expert test the
motorcycle's electrical system and petcock valve 1 because the defense theory
was an electrical short ignited the fuel leaking from the valve. Defendant argues
access to this evidence was vital to rebut the State's case—which was predicated
on Bland's testimony that defendant ignited the fire—because Bland lacked
credibility. Defendant asserts Bland was an unruly witness, left the scene on the
day of the incident, and has a criminal record of his own, including an arson
conviction.
The evidence was also important because Captain Letts admitted the fire
could have been caused by an electrical short. Another investigator testified the
petcock valve was "barely attached to the threads of the gas tank," which he
believed would cause gas to leak out quickly. Additionally, Detective Lloyd
admitted the motorcycle's gas tank did not have a gas cap and the petcock valve
1
A petcock is "a small shut-off valve used to control the flow of liquid or gas."
Wikipedia, the Free Encyclopedia, Petcock, at
https://en.wikipedia.org/wiki/Petcock (last visited Dec. 6, 2023).
A-2068-21
8
was loose. Defendant argues, taken together, this evidence supports his theory
the fire was accidental.
Defendant argues the court should have granted his motion to dismiss the
indictment. Alternatively, we should remand for a new trial and suppress the
portions of Captain Letts's opinion that cannot be challenged due to the lost
evidence. Notwithstanding the spoliation, defendant contends the court should
have charged the jury that it could draw an adverse inference against the State,
given its destruction of the evidence.
To determine if a due process violation has occurred in the instance of
loss, destruction, or suppression of physical evidence in a criminal trial, courts
consider: (1) "whether there was bad faith . . . on the part of the government";
(2) "whether the evidence . . . was sufficiently material to the defense"; and (3)
"whether [the] defendant was prejudiced by the loss or destruction of the
evidence." State v. M.B., 471 N.J. Super. 376, 382-83 (App. Div. 2022)
(alteration in original) (quoting State v. Hollander, 201 N.J. Super. 453, 479
(App. Div. 1985)). Generally, if a defendant does not prove "bad faith on the
part of the State, 'failure to preserve potentially useful evidence does not
constitute a denial of due process of law.'" Id. at 382 (quoting George v. City
of Newark, 384 N.J. Super. 232, 243 (App. Div. 2006)).
A-2068-21
9
Bad faith has been found when destruction of evidence was "a conscious
effort to suppress exculpatory evidence." State v. Serret, 198 N.J. Super. 21, 26
(App. Div. 1984). Bad faith can also be the result of "egregious carelessness,"
which we have defined as "[conspicuously] bad, flagrant" conduct. State v.
Carter, 185 N.J. Super. 576, 580-81 (App. Div. 1982). Our Supreme Court
recently held bad faith does not require intentional misconduct. State v.
Zadroga, ____ N.J. ___ (2023) (slip op. at 19-33).
On December 3, 2018, the Pemberton Township construction official
emailed the director of the township's department of community development,
advising the property was "in danger of imminent collapse and failure" and a
mandatory demolition date was required by November 2018. However, no
demolition was set yet. On December 19, 2018, defense counsel left a voice
mail with the township asking officials to return his call and advise "what the
demolition plans are if any."
On December 22, 2018, defendant wrote to the township code
enforcement officer from jail and copied the prosecutor. His letter advised that
the township did not have his permission "to tamper with, destroy or trespass on
the . . . property" and warned against destroying evidence. On December 28,
2018, the township chief of police sent an email to the prosecutor attaching
A-2068-21
10
defendant's letter advising the township wished to demolish the home because
the "construction official . . . deemed it a public safety hazard." The chief asked
the prosecutor to advise what his office's position was on the demolition. On
January 2, 2019, the prosecutor responded he would contact defense counsel "to
tell him . . . the scene is extremely dangerous and needs to be demolished as
soon as possible and then give [the defense] a very brief timeline to get done
what he needs to do." The prosecutor, in turn, emailed defense counsel and
advised as follows: "The home is in horrible shape and is a public danger . If
you are retaining an expert[,] could you let me know so I can advise Pemberton
[Township] on how to proceed with regard to demolition." On January 4, 2019,
the prosecutor emailed the chief advising he had spoken with defense counsel
who
advised that he wants to retain an expert to look at the
property prior to it being demolished but he needs
approval from his supervisor who is currently out of the
office. (That being said he advised . . . that he does not
believe that he will be granted permission to retain an
expert). His supervisor will be in next week and he
should have a final answer at that time.
On January 10, 2019, the prosecutor emailed defense counsel and asked:
"Any word yet on whether you will be retaining an expert and the demolition of
the home?" On February 9, 2019, defense counsel wrote to the township's
A-2068-21
11
construction official inquiring whether the demolition had "occurred and, if not,
if [a] date has been set . . . ." Counsel requested "the house not be destroyed
until [the defense] . . . had an opportunity to have an arson expert examine the
property before any planned demolition."
On February 13, 2019, the prosecutor advised the chief defendant "has a
new attorney who is now renewing the request that the property not be
demolished until he has an expert look at the premises." The chief responded
"[t]he property has not been touched as per the request of [defense counsel]."
The prosecutor then emailed defense counsel inquiring if he had a time frame to
inspect the property. The prosecutor explained the reason for his question was
the township "is concerned with the hazard that the property poses given its
current condition and the potential liability that it poses." He explained he told
prior defense counsel the same thing and prior counsel "didn't feel as though the
[public defender's o]ffice would retain an expert." The prosecutor asked defense
counsel to let him know as soon as possible about the time frame to inspect the
property.
On April 18, 2019, the State provided the fire marshal's report to defense
counsel. Internal emails between township officials dated May 14, 2019,
showed a growing concern with the property because it had become a dumping
A-2068-21
12
ground for trash. The emails reflect the township had refrained from
demolishing the property at the defense's request. The home was ultimately
demolished on June 26, 2019.
Defendant moved to dismiss the indictment on grounds the State failed to
preserve the evidence by allowing the home to be demolished. The motion judge
issued a detailed written opinion, and concluded the State had not acted in bad
faith because it gave defendant "ample opportunity to retain an expert an d
investigate the scene prior to the home's destruction . . . ." The home was not
demolished until seven months after the fire. Moreover, the State was in regular
contact with the defense regarding the fact township officials wanted to
demolish the property because it was unsafe and had become a dumping ground.
The judge found "[e]ven if the State did act in bad faith, [d]efendant failed to
meet the remaining burden by showing the evidence had material exculpatory
value prior to its destruction, or that destruction of the home unduly prejudiced
[d]efendant." The judge noted defendant was not "denied the opportunity to do
independent research and investigation [and] . . . there was no way to know
whether the home had some exculpatory value prior to its destruction."
Defendant did not make "a showing that the evidence destroyed would have
played a significant role in his defense." Regardless, defendant could still retain
A-2068-21
13
an expert to examine the evidence and refute the State's expert report, including
cross-examination of the State's witnesses. However, the judge concluded
"[w]hether the home had fire detectors, whether building materials may have
accelerated the fire, or whether the petcock valve on the motorcycle was leaking
gas do not negate any of the elements of the crime and are thus not exculpatory."
Having thoroughly reviewed the record, we conclude the motion judge's
findings were sound and the State did not deprive defendant of due process
warranting either dismissal of the indictment or a new trial. The facts do not
support the conclusion the State either acted in bad faith or that its conduct was
egregious and flagrant. There were legitimate public safety concerns about the
home, and the record shows the State was in constant contact with defense
counsel inquiring about plans to inspect the property and kept the defense
apprised of the deteriorating nature of the home and delaying its demolition so
a defense expert could inspect it.
Defendant argues Detective Lloyd's testimony established the petcock
valve was loose and potentially leaking gas. He asserts Captain Letts's
conclusions on the source of the ignition were based solely on Bland's report
and inadmissible. Therefore, the motorcycle was critical evidence because its
electrical system had potential exculpatory value. We are unpersuaded.
A-2068-21
14
"Evidence is material 'if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have
been different.'" State v. Robertson, 438 N.J. Super. 47, 67 (App. Div. 2014)
(quoting State v. Knight, 145 N.J. 233, 246 (1996)). The record does not support
defendant's speculative theory of causation.
Captain Letts testified he did not rule out an electrical short as the cause
of the fire. However, he also stated "[he] had no evidence of the motorcycle
causing the fire." Although Captain Letts acknowledged a lab could have
analyzed the motorcycle's electrical system, the record does not demonstrate a
reasonable probability the electrical system was intact following the fire to
permit such an analysis.
Defendant has not convinced us the destruction of evidence manifestly
prejudiced his case. The destruction of the alleged exculpatory evidence ignores
Bland's unrebutted eyewitness testimony that defendant caused the fire by
tossing a lighter on the ground.
Nor are we persuaded defendant's confrontation rights were violated. As
the motion judge aptly noted, the destruction of evidence did not prevent
defendant from performing "independent research and investigation based upon
the State's [expert] report." Defendant's expert could have reviewed the State's
A-2068-21
15
evidence and refuted the State's theory of the case. The defense could also cross-
examine the State's witnesses regarding the cause of the fire. The trial transcript
reflects defense counsel did so by cross-examining Captain Letts about the fact
he inferred the source of ignition by relying on Bland's statement that he saw
defendant throw a lighter. Moreover, the defense also cross-examined Bland.
However, the jury clearly credited the State's evidence. Defendant received a
fair trial.
II.
Defendant contends the admission of Captain Letts's expert's opinion that
the cause of the fire was incendiary was prejudicial because he was both the
expert and the lead investigator, and the dual role improperly bolstered his
credibility. Defendant also argues Captain Letts's causation opinion violated
N.J.R.E. 702 because it was not beyond the ken of the jury. Defendant further
contends Captain Letts's opinion violated N.J.R.E. 703 because it relied on
double hearsay since he did not interview Bland or review his sworn testimony,
and instead derived what Bland saw from a detective's report. He claims Captain
Letts improperly bolstered Bland's testimony. Further, Captain Letts's opinion
that the sheen on the water in the property was evidence of an accelerant was
A-2068-21
16
improper under N.J.R.E. 703 because it did not rely upon facts or data
reasonably relied upon by experts in the field.
We review a trial court's evidentiary rulings under a deferential standard
and will "uphold [the trial court's] determinations 'absent a showing of an abuse
of discretion.'" State v. Scott, 229 N.J. 469, 479 (2017) (quoting State v. Perry,
225 N.J. 222, 233 (2016)). Under that standard, "[a] reviewing court must not
'substitute its own judgment for that of the trial court' unless there was a 'clear
error in judgment'—a ruling 'so wide of the mark that a manifest denial of justice
resulted.'" Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). We
disregard harmless errors, but errors capable of causing an unjust result the jury
"otherwise might not have reached" require reversal. State v. Prall, 231 N.J.
567, 581 (2018) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)). "When a
defendant fails to object to an error or raise an issue before the trial court, we
review for plain error." State v. Ross, 229 N.J. 389, 407 (2017) (citing R. 2:10-
2).
"The admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015).
"N.J.R.E. 703 addresses the foundation for expert testimony." Id. at 53. Expert
testimony is admissible if it "will assist the trier of fact to understand the
A-2068-21
17
evidence or to determine a fact in issue . . . ." N.J.R.E. 702. Expert testimony
must be based on "(1) the expert's personal observations, or (2) evidence
admitted at the trial, or (3) data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data normally relied upon by
experts." Townsend, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J.
569, 583 (2008)).
In State v. Torres, our Supreme Court cautioned that even when a witness
may be qualified to give an expert opinion, "the court should carefully weigh
whether the prejudicial effect of that evidence outweighs its probative value."
183 N.J. 554, 580 (2005) (citing State v. Harvey, 151 N.J. 117, 184 (1997)).
"[W]hen the expert witness is an investigating officer, the expert opinion may
present significant danger of undue prejudice because the qualification of the
officer as an expert may lend credibility to the officer's fact testimony regardin g
the investigation." Ibid. As a result, Torres requires trial courts exercise their
discretion to limit the scope of such testimony by giving a limiting instruction
to the jury "that conveys to the jury its absolute prerogative to reject both the
expert's opinion and the version of the facts consistent with that opinion." Ibid.
(quoting State v. Berry, 140 N.J. 280, 304 (1995)).
A-2068-21
18
After Captain Letts testified the fire "was intentionally set, [and was] an
incendiary fire[,]" defense counsel timely objected. Following a sidebar, the
trial judge gave the following limiting instruction:
I am going to instruct that you disregard and put no
weight to the last portion of the testimony of Captain
Letts with regard to the determination that the fire was
intentionally set. That will be within your purview as
the finders of fact in this matter.
At the end of case, I will provide additional
instructions touching on this exact issue, but I am
ordering you to disregard the testimony with regard to
that statement, the last statement by Captain Letts, the
witness indicating that it was his opinion based on his
analysis that the fire was intentionally set.
The trial judge's limiting instruction was timely, correct, and adequately
instructed the jury to ignore the prejudicial aspect of Captain Letts's testimony.
"[W]e trust juries to follow instructions." State v. Short, 131 N.J. 47, 65 (1993).
The record does not convince us the jury failed to follow the judge's instructions.
Captain Letts primarily testified on other matters beyond the ken of the
jury. He explained he ruled out other household items as potential causes of the
fire, his assessment of the fire's movement and intensity throughout the house,
and his assessment of the fire's origin. The State did not ask Captain Letts about
the lighter as the source of ignition during direct examination. This information
was adduced during the defense's cross-examination, which repeatedly asked
A-2068-21
19
whether the cause of the fire was a lighter, if he searched for a lighter on the
scene, and the likelihood of a lighter surviving a fire.
We reject the assertion Captain Letts's expert opinion did not meet the
standards of N.J.R.E. 703 regarding his reliance on Bland's statement. At trial,
Captain Letts was examined by the defense regarding the National Fire
Protection Association Guide for Fire and Explosion Investigations (NFPA 921)
standard, which are guidelines used in fire investigations. NFPA 921 states:
[A] fire explosion investigation may include all or some
of the following tasks: scene inspection or review of
previous scene documentation done by others; scene
documentation through photography and diagramming;
evidence recognition, documentation, and preservation;
witness interviews; review and analysis of the
investigation of others; and identification and
collection of data from other appropriate sources.
[NFPA 921 § 4.4.3.2]
NFPA 921 § 19.2.1 states that in some investigations, "a single item, such
as an irrefutable article of physical evidence or a credible eyewitness to the
ignition . . . may be the basis for a determination of cause." However, this
section also provides "no single item is sufficient in itself to allow determination
of the fire cause. The investigator should use all available resources to develop
fire cause hypotheses and to determine which hypotheses fit all of the credible
data available." Ibid.
A-2068-21
20
Having considered the record in light of these standards, we are convinced
Captain Letts's testimony met the requirements of N.J.R.E. 703. He did not rely
solely on Bland's statement, and instead testified that the eyewitness statements
were corroborated by the physical evidence, including his inspection of the
scene and the gasoline on defendant's boot. These elements, taken together, led
him to rule out other causes of the fire.
Captain Letts's and Detective Lloyd's testimony about the "sheen" only
stated it was indicative of an accelerant. This testimony was corroborated by
the fact defendant's shoe had gasoline on it and Bland's testimony pointing to
gasoline fumes in the garage. Regardless, the defense was able to cross-examine
the witnesses regarding the probity of the sheen. This testimony did not unduly
prejudice the jury's ability to draw its own conclusions.
III.
When multiple errors are alleged, "the predicate for relief for cumulative
error must be that the probable effect of the cumulative error was to render the
underlying trial unfair." State v. Wakefield, 190 N.J. 397, 538 (2007). Even
where a defendant alleges multiple errors, "the theory of cumulative error will
still not apply where no error was prejudicial and the trial was fair." State v.
A-2068-21
21
Weaver, 219 N.J. 131, 155 (2014). The errors alleged by defendant, individually
and taken together, do not convince us he received an unfair trial.
IV.
Defendant challenges his sentence, arguing the judge failed to adequately
explain his basis for finding the aggravating factors, and should have found
mitigating factor eight. He claims the judge failed to provide any explanation
for finding aggravating factors six and nine and found factor three solely based
on defendant's criminal history. Further, the judge did not "explain the weight
[he] assigned to the factors [he] found." Defendant notes factor three should
have been accorded little weight because his criminal history primarily
comprised municipal violations and third- and fourth-degree convictions. He
claims the judge enhanced his sentence based on his prior contacts with law
enforcement, which had resulted in dismissed or unindicted charges.
Defendant argues the court violated N.J.S.A. 2C:43-2(f)(1) and Rule 3:21-
4(k) because it did not explain on the record the real-time period of parole
ineligibility when it imposed the sentence pursuant to NERA. He asserts we
have previously ordered a resentencing when the court did not refer to the NERA
ineligibility term. State v. Ramsey, 415 N.J. Super. 257, 271-72 (App. Div.
2010).
A-2068-21
22
Sentencing decisions are discretionary in nature. State v. Cuff, 239 N.J.
321, 347 (2019). We review a sentence for an abuse of discretion, deferring to
the sentencing court's factual findings, and should not second-guess them. State
v. Jones, 232 N.J. 308, 318 (2018); State v. Case, 220 N.J. 49, 65 (2014). We
"must affirm the sentence of a trial court unless: (1) the sentencing guidelines
were violated; (2) the findings of aggravating and mitigating factors were not
'based upon competent credible evidence in the record;' or (3) 'the application
of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'"
State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State
v. Roth, 95 N.J. 334, 364-65 (1984)). "To facilitate meaningful appellate
review, trial judges must explain how they arrived at a particular sentence."
Case, 220 N.J. at 65.
Defendant was sentenced to an extended term as a persistent offender.
The judge imposed concurrent eleven-year prison terms on both counts of
second-degree reckless-manslaughter, with an eighty-five percent parole bar
pursuant to NERA. He found aggravating factors three (risk of re-offense),
N.J.S.A. 2C:44-1(a)(3); six (extent of prior criminal history), N.J.S.A. 2C:44-
1(a)(6); and nine (need for deterrence), N.J.S.A. 2C:44-1(a)(9). He also found
A-2068-21
23
mitigating factor two (defendant did not contemplate that his conduct would
cause serious harm), N.J.S.A. 2C:44-1(b)(2).
The judge qualitatively analyzed the aggravating and mitigating factors as
follows:
[I]n reviewing the presentence report and the
submissions of counsel [the court] does find clearly that
aggravating factor [three] exists, the risk that
[defendant] will commit another offense. There are
contacts with the court going back to 1977 and as
outlined in the presentence report the contacts with law
enforcement have been consistent, frequent, and
basically . . . since 1977.
The [c]ourt finds aggravating factor [six] could
be applicable here. And of course that is the extent of
. . . defendant's prior criminal record, and the
seriousness of the offenses for which he has been
convicted. And the [c]ourt also finds aggravating
factor [nine], the need to deter the defendant and others
from violating the law.
In this matter the [c]ourt could only find one lone
mitigating factor, and that is mitigating factor [two].
That [defendant] did not contemplate that his conduct
would cause, or threaten serious harm. And the [c]ourt
finds that here based upon the lengthy criminal history
and the application of the aggravating and mitigating
factors that the aggravating factors preponderate over
the lone mitigating factor. They substantially outweigh
the mitigating factors.
The judge declined to impose consecutive sentences and reasoned as
follows:
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[W]hile [defendant] has been convicted of these two
counts . . . the [c]ourt recognizes that [defendant] also
attempted to, at least from the [c]ourt's perspective,
attempted to put out the fire and attempt[ed] to rescue
the individuals who ultimately succumbed to the fire.
And so[,] the [c]ourt does weigh that and it does not
impose a significantly more severe sentence in
consideration of that. But [defendant's] criminal
history is abhorrent, but ultimately the [c]ourt's
determination for the extended term and the term of
imprisonment reflects the facts and circumstances as
the [c]ourt finds them to be.
We are satisfied the judge made adequate findings regarding the
aggravating and mitigating factors. The record supports the factors the judge
found, and he explained the weight given to them. Defendant's argument that
the court should have considered mitigating factor eight (defendant's conduct
was the result of circumstances unlikely to recur) is unsupported by the record.
N.J.S.A. 2C:43-2(f) states:
The court shall explain the parole laws as they apply to
the sentence and shall state:
(1) the approximate period of time in years and
months the defendant will serve in custody before
parole eligibility;
(2) the jail credits or the amount of time the
defendant has already served;
(3) that the defendant may be entitled to good
time and work credits; and
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(4) that the defendant may be eligible for
participation in the Intensive Supervision
Program.
The record lacks an explanation of the real-time parole consequences of
defendant's sentence. They are not mentioned in defendant's sentencing
memorandum. And the only mention of NERA at sentencing was the following
statement from the judge: "The [c]ourt will grant the application for an extended
term and sentence [defendant] to a term of imprisonment to the custody of the
Commissioner of the Department of Corrections for a term of [eleven] years to
which [NERA] shall be applicable." For these reasons, we remand the sentence
and direct the judge to explain the real time consequences of defendant's
sentence, pursuant to N.J.S.A. 2C:43-2(f).
Affirmed in part and remanded in part. We do not retain jurisdiction.
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