State of New Jersey v. Farrakhan Howard

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1606-23

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FARRAKHAN HOWARD, a/k/a FARRAKHAN S. HOWARD, HOWARD FARRAKHAN, and HOWARD S. FARRAKHAN,

Defendant-Appellant. ___________________________

Submitted April 28, 2026 – Decided July 23, 2026

Before Judges Susswein and Chase.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 19-07-0435.

Jennifer N. Sellitti, Public Defender, attorney for appellant (David A. Gies, Designated Counsel, on the briefs).

William A. Daniel, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Defendant Farrakhan Howard appeals his November 2022 jury trial

convictions for carjacking, attempted murder, aggravated assault with serious

bodily injury, and other offenses stemming from an April 24, 2019 incident in

which he stabbed his then-girlfriend and the driver of a Lyft vehicle with a

screwdriver while riding as a passenger. Defendant fled the scene in the driver's

vehicle. He contends the pretrial motion court erred in denying his motion to

suppress evidence found in a search incident to his arrest. Defendant also

contends that the motion court should have granted an evidentiary hearing

regarding the identification procedure police used when they showed one of the

victims, his girlfriend, a single photograph rather than an array.

With respect to trial errors, defendant contends that the State failed to

prove the elements of carjacking. He also contends that the trial court erred by

reading back only a portion of the DNA expert's testimony in response to a jury

request, and further erred by not instructing the jurors that they were not to give

undue weight to the testimony that was read back to them. Defendant also

challenges his sentence, claiming that the trial court erred by imposing what

defendant characterizes as the presumptive term for the carjacking offense in

violation of his Sixth Amendment rights, and impermissibly double-counted

A-1606-23 2 facts related to the elements of the carjacking offense in finding an aggravating

factor. After reviewing the record in light of the governing legal principles, we

affirm.

I.

We discern the following pertinent facts and procedural history from the

record.

Carjacking Incident

In the early morning hours of April 24, 2019, Lyft driver C.F.N. 1 picked

up a male and female passenger. When he heard the female passenger scream,

C.F.N. stopped the vehicle, believing the male passenger was attacking her. The

male passenger then attacked C.F.N. with a heavy object, causing him to bleed.

C.F.N. and the female passenger were able to escape from the vehicle and

run from the scene. As he fled from the vehicle, C.F.N. turned around and saw

that the male passenger, later identified as defendant, was still inside the vehicle.

C.F.N. kept running until he saw a Clark Township marked police vehicle.

C.F.N. testified that he believed defendant took the vehicle, since there were no

other people at the scene.

1 We use initials to protect the privacy of the victims. R. 1:38(3)(c).

A-1606-23 3 Police Response

At approximately 12:49 a.m., a Clark Township police officer observed

C.F.N. walking in the middle of the street holding his bleeding neck. C.F.N.

told the officer that he was a Lyft driver and that he had been repeatedly struck

with an unknown object by a male passenger.

Medics arrived and treated C.F.N. for stab wounds to his head and neck.

After he was stabilized, C.F.N. was transported to University Hospital in

Newark where medical staff determined that one of the stab wounds had

punctured his carotid artery, causing permanent damage. He received seven or

eight staples to close his head wounds. He also suffered puncture wounds to the

right side of his waist. C.F.N. remained hospitalized for two days.

Minutes before the Clark Township police officers encountered C.F.N.,

Rahway police responded to a report of a female with multiple injuries. The

individual who made the 9-1-1 call reported that he was awoken by banging on

his door. He answered the door to a woman bleeding from her head, asking for

help. The victim was later identified as the female Lyft passenger, A.S. She

reported that she was physically beaten during a Lyft ride to Woodbridge. A.S.

was treated for her injuries at Robert Wood Johnson Hospital in Rahway.

A-1606-23 4 Woodbridge Township police began receiving information about an

armed carjacking of a 2010 Honda Odyssey, including a "be on the lookout"

(BOLO) describing the possible suspect as a "black male . . . in a gray shirt."

Woodbridge police continued to receive information about the incident from

Clark police, including that the suspect was armed with a screwdriver or blunt

object.

Clark police searched the area for C.F.N.'s vehicle. It was eventually

located off the roadway near an exit ramp for the Garden State Parkway. After

the unoccupied vehicle was found, Woodbridge police and State police officers

canvassed the area.

Arrest and Search Incident

Woodbridge police officers Matthew Dougherty and Khari Manzini were

on patrol in an unmarked police vehicle. Officer Dougherty received the

following descriptions of the suspect from dispatcher: "a black male in a gray

shirt;" "a Hispanic male . . . with a beard, also possibly wearing a black and

white shirt;" and "a Hispanic or a black male."

Dougherty testified that he responded to Route 27, driving up and down

the highway "three to four times" in search of the suspect. As he drove past a

convenience store, Dougherty observed a man inside but noted that there were

A-1606-23 5 no cars in the parking lot or other people present. Dougherty testified that the

store was about a quarter mile from the exit ramp where the hijacked vehicle

was recovered. Dougherty drove a short distance then made a U-turn to return

to the store. After performing the U-turn, he observed that the same man inside

the store "had darted out across the street into traffic without utilizing a

crosswalk." Dougherty saw that the man was carrying "a large, black-colored

tote bag that was full of items."

Dougherty testified that he believed he had observed the man commit a

violation of N.J.S.A. 39:4-34, jaywalking. Dougherty made another U-turn and

approached the man, yelling, "Police, stop," multiple times. Dougherty testified

that his intention was to "make enforcement action," "whether it be to write a

summons," ask for identification, "or let him go on his way." Dougherty further

testified that after the officers issued the command to stop, the man looked back

at the officers, was "clearly aware of [their] presence," and began to increase his

walking speed. The man then moved the large tote bag from one side of his

body to the other. Perceiving that the man was refusing to stop, Dougherty

activated the patrol car's emergency lights and exited the patrol car with his

partner.

A-1606-23 6 Dougherty approached the man, later identified as defendant. Dougherty

was approximately five to eight feet away from defendant when he observed

defendant reach into the black tote bag. Dougherty yelled at him multiple times

to stop and show his hands. Defendant ultimately dropped the bag, stopped, and

turned towards Officer Dougherty. Dougherty approached defendant and patted

him down, believing "he was possibly carrying a weapon" based upon: (1) the

description provided by dispatch, (2) defendant's ignoring the officers'

commands, and (3) defendant's reaching into the black tote bag. Dougherty

placed defendant in handcuffs and searched his person. Dougherty testified that

defendant was under arrest at this point for obstructing the administration of the

law. Dougherty further testified that he observed blood on defendant's hands or

wrists.

After defendant was handcuffed, Dougherty conducted a search of the

black tote bag which was "next to [defendant's] feet." Dougherty emptied the

contents of the bag onto the sidewalk and recovered a black-and-white striped

T-shirt, a dark colored wallet with a woman's ID in it, a screwdriver, a bloody

rag, a small amount of marijuana, and an electronic tablet that was smashed.

The ID and several credit cards found in the wallet belonged to A.S.

A-1606-23 7 Subsequent investigation revealed that defendant's DNA was found to be

a contributor to the mixture of DNA found on the stolen vehicle's steering wheel

and gear shift selector. The bloody rag recovered from the black tote bag was

tested for DNA. The DNA results identified the Lyft driver, C.F.N., as the

source of the DNA on the rag.

Identification of Defendant by the Victim/Girlfriend

After being released from the hospital, A.S. appeared at the Clark Police

Department on April 24, 2019, at 3:33 a.m. to give a statement to Officer Daniel

Joy. A.S. told Joy that on April 23rd she worked at a fast-food restaurant from

3:00 p.m. to 11:00 p.m., then went to her parents' house to pick her daughter up

and drop her off at her mother-in-law's house. She told Officer Joy that from

there, she went to meet defendant at his home on Little Street in Belleville.

A.S. described defendant as her boyfriend and explained to Officer Joy

that they were going to a hotel party in Woodbridge. A.S. told Joy that her

friend Sharieffa ordered a Lyft to take A.S. and defendant to the party. A.S. told

the officer that she and defendant entered the vehicle when the Lyft driver

arrived. She stated that she sat in the rear passenger seat, while defendant sat

behind the driver, whom she described as "[m]ale, skinny, and Hispanic" with a

"short beard." A.S. told Joy that while en route to their destination, upon exiting

A-1606-23 8 the highway, defendant began attacking her. She explained that he first hit her

in the neck with his hands, then proceeded to stab her in the head. A.S. explained

that defendant then started stabbing the driver, who stopped the vehicle and

opened his door. A.S. stated that she jumped into the front passenger seat and

she and the driver fled out of the driver's side door. After escaping from the

minivan, she began knocking on doors until someone called 9-1-1.

Officer Joy asked A.S. if she "would know [defendant] by face," to which

she responded, "Yes." The officer then showed her a picture and A.S. identified

the individual in the photo as her boyfriend. Officer Joy had A.S. sign the

photograph indicating that she knew the man in the photograph to be her

boyfriend, defendant.

Indictment and Motion to Suppress Physical Evidence

In July 2019, defendant was charged by indictment with first-degree

carjacking, N.J.S.A. 2C:15 (count one); first-degree attempted murder, N.J.S.A.

2C:5-1 (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); two

counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (counts four

and five); third-degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(d) (count six); fourth-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(d) (count seven); fourth-degree obstructing administration of law,

A-1606-23 9 N.J.S.A. 2C:29-1 (count eight); and fourth-degree receiving stolen property,

N.J.S.A. 2C:20-7(a) (count nine).

Defendant moved to suppress physical evidence found in the black tote

bag seized after he was stopped on foot by Officer Dougherty. The suppression

motion was heard on October 25, 2019, and November 1, 2019.

The State presented testimony from Officer Dougherty. The prosecutor

argued that police had reasonable suspicion to stop the defendant not only

because he was near the scene of the car crash and matched the description of

the carjacking suspect, but also because police observed defendant commit a

traffic violation when he failed to use a pedestrian crosswalk to cross Route 27.

The State further argued that the search of the tote bag was permissible under

the search-incident-to-arrest exception to the warrant requirement. The State

maintained that the police had probable cause to arrest defendant, and while he

was no longer holding the bag when it was searched, it was still within his

immediate control.

Defendant argued that the stop was unlawful because police lacked the

requisite reasonable suspicion to justify the stop.

Defendant also argued that police lacked the legal authority to make an

arrest. First, defendant argued that the obstruction statute under which he was

A-1606-23 10 charged was not violated because defendant merely continued to peaceably

walk, rather than flee from police. Defendant further argued that he did not

obstruct the administration of law because he did not know that Officers Manzini

and Dougherty were police officers, considering they were in an unmarked

police car. Moreover, defendant claimed that because he was a pedestrian, not

a motor vehicle operator, at the time of his arrest, he could not be charged with

obstruction, arguing that N.J.S.A. 39:4-34 does not apply to pedestrians.

On December 9, 2019, the motion court issued a written order and opinion

denying defendant's motion to suppress the physical evidence. The court

determined that police had reasonable suspicion to stop defendant for violating

N.J.S.A. 39:4-34, which prohibits crossing a road outside a crosswalk. The court

found Officer Dougherty's testimony that he saw defendant cross Route 27

without using a crosswalk credible. Although surveillance footage presented by

the State did not definitively show defendant jaywalking, it corroborated

defendant's presence at the location.

The court acknowledged that Officer Dougherty may also have been

motivated by the BOLO alert for a suspect matching defendant's description but

determined that this did not invalidate the stop. Citing State v. Kennedy, 247

N.J. Super. 21, 28 (App. Div. 1991), the court found that the officer's decision

A-1606-23 11 to stop the defendant was objectively supported by the observed traffic violation

and thus was justified. The court further concluded that "[w]hile it is an

admittedly close case . . . Officer Dougherty had probable cause to arrest

[defendant] for Obstruction (N.J.S.A. 2C:29-l) based on his refusal to comply

with the Officer's commands after observing him jaywalk across Route 27." The

motion court rejected defendant's argument that the offense requires the

operation of a motor vehicle.

The motion court also rejected defendant's contention that he did not

intend to obstruct the administration of law because he did not recognize the

officers in the unmarked police car. The court found Officer Dougherty's

testimony credible that defendant repeatedly refused to obey police commands

when the officers were feet away from defendant. The court reasoned that these

refusals constituted unlawful interference under N.J.S.A. 2C:29-1, providing

probable cause for the arrest. The court also determined that the subsequent

search of defendant and his bag was lawful, as it was incident to a valid arrest

and the bag was within defendant's immediate reach.

Motion to Suppress Identification

Defendant subsequently filed a motion to suppress the out-of-court photo

identification made by A.S. Defendant argued that the photo identification

A-1606-23 12 procedure was inherently suggestive and did not comply with Attorney General

guidelines or the standards set forth in State v. Henderson, 208 N.J. 208 (2011).

Specifically, defendant objected to the use of a single photo, rather than a photo

array, administered by a detective involved in the investigation. Defendant

argued that the identification was not merely confirmatory but went to the heart

of identifying the perpetrator. Defendant requested a Wade2 hearing to

challenge the reliability of the identification.

The State responded that the identification procedure was not

impermissibly suggestive because A.S. already knew defendant and the photo

procedure was solely confirmatory. The State emphasized that A.S. had a prior

relationship with the defendant, had identified him by name before being shown

the photo, and that her identification was reliable based on her familiarity and

opportunity to observe him.

On July 20, 2020, the same judge who heard the Fourth Amendment

suppression motion issued a written order and opinion denying defendant's

motion with respect to the out-of-court identification procedure. The motion

court found that A.S.'s identification was confirmatory, as she knew defendant

2 United States v. Wade, 388 U.S. 218 (1967).

A-1606-23 13 well and had already identified him by name prior to being shown his photo.

The court further concluded there was no evidence of suggestiveness that could

lead to a mistaken identification; on that basis, it denied defendant's motion to

suppress the identification without holding an evidentiary hearing.

Trial

Defendant was tried before a jury over the course of ten nonconsecutive

days in late October/early November 2022. At the close of the State's case,

defendant moved to dismiss the carjacking charge pursuant to Rule 3:18-1,

arguing that "at the time the motor vehicle was removed from the scene . . . there

was nobody in the car and nobody around the car and [the Lyft driver] had

abandoned the car at that point in time." The trial court—a different judge from

the one who heard the pretrial suppression motions—denied the motion to

dismiss the carjacking charge, finding that there was sufficient evidence to

warrant a conviction for that crime and that the issue needed to be resolved by

a jury.

Almost two hours into jury deliberations, the trial court received a jury

note asking for the testimony of the DNA expert. Over defense counsel's

objection, the trial court asked the jury to identify the particular portion of the

expert's testimony needed, rather than read back the entire testimony, which

A-1606-23 14 would have taken an hour and a half. The jury, by way of another note,

responded, "[t]he evidence [regarding] the serology and DNA analysis reports

for the steering wheel and gear selector." Upon reviewing the pertinent

transcript, the trial court identified the portion of the expert's testimony it

determined to be relevant to the jury's specification, whereupon the court

reporter read those portions to the jury. After that portion of the testimony was

read to the jury, no further objections were raised.

The jury ultimately found defendant guilty of carjacking (count one);

attempted murder (count two); aggravated assault with serious bodily injury

(count four); aggravated assault with significant bodily injury, a lesser -included

offense (count five); possession of a weapon for an unlawful purpose (count

six); and unlawful possession of a weapon (count seven). The jury found

defendant not guilty of obstructing (count eight) and receiving stolen property

(count nine).

Sentencing Hearing

The trial court sentenced defendant on March 3, 2023. The court

determined that aggravating factors one, three, six and nine applied to all counts,

and that aggravating factor thirteen applied only to count two, the attempted

murder offense. See N.J.S.A. 2C:44-1(a) (1), (3), (6), (9), (13). The court noted

A-1606-23 15 that defendant was thirty-one years of age, with a prior indictable crime for theft-

by-deception in 2012, a simple assault in 2011, and several juvenile

adjudications including simple assault, resisting arrest, and receiving stolen

property. The court acknowledged that defendant had not had any encounters

with law enforcement since 2011.

As to aggravating factor one—the nature and circumstances of the

offense—the trial judge found that that defendant's actions were "completely

unprovoked" and resulted in the "life-long" physical, emotional, mental, and

financial impairment of the victim Lyft driver. The court explained that

aggravating factor one did not involve improper double-counting of the elements

for carjacking and attempted murder. The court found that the harm to the victim

was so severe that the attempted murder was nearly completed, and the actions

taken to commit the murder were sufficiently distinct enough from the

carjacking to justify separate charges and sentences.

Regarding aggravating factor three—the risk that the defendant will

commit another offense—the court found that defendant's criminal history and

lack of remorse expressed during sentencing evinced a risk that defendant would

commit further offenses. The court also found that aggravating factor six

applied—the extent of the defendant's prior criminal record and the seriousness

A-1606-23 16 of the offenses of which the defendant has been convicted—based on defendant's

prior criminal history.

With respect to aggravating factor nine—the need for deterrence—the

court found "a need to deter [defendant] specifically and very much a need . . .

for general deterrence . . . on matters of this nature." Regarding aggravating

factor thirteen—use or possession of a stolen vehicle in the commission of a

crime—the judge found that factor applicable to the attempted murder

conviction but that it could not be "double counted" towards the carjacking

conviction.

The trial court determined that the aggravating factors outweighed the

mitigating factors and imposed an aggregate twenty-four-year prison term

subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court

noted that while it was starting at the "mid[-]range" of the presumptive term, 3

since the aggravating factors prevailed, a "significant increase [was] warranted

in this particular case." The court also determined that the prison term for count

five (aggravated assault with significant bodily injury) should be served

consecutively to counts one (first-degree carjacking) and two (first-degree

3 Pursuant to N.J.S.A. 2C:15-2, carjacking is a first-degree crime punishable by a term of imprisonment ranging from ten to thirty years, with a mandatory minimum five-year parole ineligibility. A-1606-23 17 attempted murder) based on the factors set forth in State v. Yarbough, 100 N.J.

627, 643-44 (1985), and because the crimes were committed against separate

victims.

This appeal follows. Defendant raises the following contentions for our

consideration:

POINT I

DEFENDANT DID NOT INFLICT THE LYFT DRIVER WITH HARM IN THE COURSE OF COMMITTING THE THEFT OF THE HONDA ODYSSEY.

POINT II

THE TRIAL COURT'S READBACK OF PART OF ITS CHARGE TO THE JURY FAILED TO CAUTION AGAINST OVEREMPHASIZING THE TESTIMONY REPEATED.

POINT III

THE MOTION COURT ERRED IN DENYING DEFENDANT'S APPLICATION TO SUPPRESS THE ITEMS FOUND IN THE BLACK TOTE BAG.

POINT IV

THE PRETRIAL IDENTIFICATION PROCEDURE WAS NOT IMPERVIOUS TO POLICE SUGGESTIVENESS.

A-1606-23 18 POINT V

THE TRIAL COURT IMPROPERLY SENTENCED DEFENDANT WHERE IT NOT ONLY RELIED ON A PRESUMPTIVE TERM, BUT DOUBLE- COUNTED FACTS THAT ESTABLISHED ELEMENTS OF THE CARJACKING OFFENSE TO FIND AGGRAVATING FACTOR ONE APPLIED.

Defendant raises the following contentions in his reply brief:

APPELLATE REVIEW OF THE DENIAL OF A MOTION FOR A JUDGMENT OF AQUITTAL UNDER RULE 3:18-1 IS DE NOVO.

A MOTION JUDGE'S LEGAL CONCLUSION AND THE CONSEQUEN[C]ES FLOWING FROM THE ESTABLISHED FACTS ARE REVIEWED DE NOVO.

DUE PROCESS RIGHTS COMPEL MODIFICATION OF THE HENDERSON TEST FOR RELIABILITY OF AN OUT-OF-COURT IDENTIFICATION WHERE THE STATE MAINTAINS THE IDENTIFICATION WAS THE PRODUCT OF PRIOR FAMILIARITY.

II.

We first address defendant's contention that the State failed to prove the

elements of carjacking pursuant to N.J.S.A. 2C:15-2(a)(1) because the Honda

A-1606-23 19 Odyssey was abandoned, and because the taking of the vehicle arose from an

altercation between defendant and the passenger, not the Lyft driver. More

specifically, defendant contends that the State failed to prove that the object of

the infliction of harm was to gain control of the vehicle. 4

We begin our analysis by acknowledging the governing legal principles.

A reviewing court applies "the same standard as the trial court to decide if the

trial judge should have granted a judgment of acquittal." State v. Sugar, 240

N.J. Super. 148, 153 (App. Div. 1990). A motion for judgment of acquittal will

not be granted if:

[T]he evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt.

[State v. Fuqua, 234 N.J. 583, 591 (2018) (quoting State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974)).]

See also State v. Trinidad, 241 N.J. 425, 457-58 (2020) (applying the above test

and concluding "that a reasonable jury could find the defendant guilty of each

4 We are unpersuaded by the State's assertion that this issue was not raised below and thus must be reviewed for plain error. The record shows that at the close of the State's case, defendant filed a motion for judgment of acquittal to dismiss the carjacking charge, which was denied by the trial court. A-1606-23 20 charge"). Conversely, the motion must be granted if the State has failed to prove

any one of the elements of the crime. See, e.g., State v. Cuccio, 350 N.J. Super.

248, 257 (App. Div. 2002) (holding that the trial court erred in denying

defendant's motion for judgment of acquittal in prosecution for possession of a

handgun, where the State "failed to present evidence from which any jury could

have found" that the handguns were purchased, acquired, or received in New

Jersey).

The carjacking statute provides:

A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle . . . or in an attempt to commit an unlawful taking of a motor vehicle he:

(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle.

[N.J.S.A 2C:15-2(a)(1).]

The Model Jury Instructions on carjacking explain that for a jury to find

a defendant guilty of carjacking,

the State is required to prove each of the following elements beyond a reasonable doubt:

1. that the defendant was in the course of committing an unlawful taking of a motor vehicle;

AND

A-1606-23 21 2. that while in the course of committing an unlawful taking of a motor vehicle the defendant

a. knowingly inflicted bodily injury or used force upon an occupant or person in possession or control of a motor vehicle.

[Model Jury Charges (Criminal), "Carjacking (N.J.S.A. 2C:15-2)" (rev. June 13, 2005).]

The Model Jury Charge further provides that "an act is considered to be

'in the course of committing an unlawful taking of a motor vehicle' if it occurs

during an attempt to commit the unlawful taking, during the commission of the

unlawful taking, or during an immediate flight after the attempt or commission."

Ibid. Additionally, "[a]n unlawful taking of a motor vehicle is defined as the

taking, operation or exercise of control over the motor vehicle, without consent

of the owner . . . with the purpose of either permanently depriving the owner of

the motor vehicle or temporarily withholding the motor vehicle." Ibid.

Here, viewing the State's evidence in its entirety and giving the State the

benefit of all favorable evidence as well as the inferences that could reasonably

be drawn from that evidence, we hold that a jury could reasonably find defendant

guilty of carjacking beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454,

458-59 (1967). Accordingly, the trial court's decision to deny defendant's

motion for acquittal was not error.

A-1606-23 22 Specifically, the jury heard A.S.'s testimony that while she and defendant

were in the back passenger seats of C.F.N.'s vehicle, defendant hit A.S. under

her neck with his fist and then stabbed her. The jury also heard C.F.N.'s

testimony that, upon hearing the altercation occurring behind him, he stopped

his vehicle, and defendant then hit the back of his head and stabbed him with a

screwdriver. When C.F.N. fled from the vehicle, he turned around and

defendant was still inside the vehicle. He testified that he believed defendant

took the minivan, since there were no other people at the scene. The vehicle

was ultimately recovered unoccupied on the Woodbridge exit ramp, which

according to Officer Dougherty's testimony, was a quarter mile from the area

where defendant was later observed.

The State also presented evidence that defendant's DNA was found to be

a contributor to the mixture of DNA found on the Honda Odyssey's steering

wheel and gear selector. The DNA results presented also determined that

C.F.N.'s DNA was found on the bloody rag recovered from defendant's tote bag.

Based on the testimony from the witnesses, the DNA evidence found on

the steering wheel and gear selector, and the bloody rag, the jury could

reasonably conclude that defendant committed a carjacking when he inflicted

bodily injury on C.F.N. in the course of unlawfully taking his vehicle. After

A-1606-23 23 defendant stabbed A.S. and the vehicle was put into park gear, instead of running

from the scene, defendant decided to stab the driver. A jury could reasonably

draw the conclusion from this evidence that defendant stabbed C.F.N. so that he

could take the minivan to facilitate his escape from the crime scene. In sum, the

State successfully proved all elements of N.J.S.A 2C:15-2(1)(a) and a jury could

reasonably find defendant guilty of carjacking beyond a reasonable doubt. See

Reyes, 50 N.J. at 458–59.

III.

We next address defendant's contentions regarding the readback of the

DNA expert's testimony. The jury had sent a note requesting to hear a readback

of the testimony and defense counsel had requested that they hear the witness's

entire testimony. Defendant on appeal contends that besides providing only a

truncated readback, the trial court erred by not giving a cautionary instruction

for the jurors not to give undue weight to the testimony that was read back to

them.

A.

We first address defendant's contention that the court erred by providing

only a limited readback. Following the jury's initial inquiry, the trial court

expressly told them that it was "more than willing" to have the court reporter

A-1606-23 24 read back the entire testimony, including "direct examination and cross

examination." The trial court further instructed the jury that alternatively, the

court reporter could read back "a specific area" if the jury could sufficiently

identify it, and that "the breadth or scope of the readback" sought was solely for

the jury to decide.

In response, the jury's second note specified that they wanted to hear "[t]he

evidence [regarding] the serology and DNA analysis reports for the steering

wheel and gear selector." The trial court thereupon reviewed the transcript and

selected the passages from the expert's testimony it determined to be relevant to

the jury's request.

"It is well-established that 'the reading of all or part of the testimony of

one or more of the witnesses at a trial, criminal or civil, at the specific request

of the jury during their deliberations is discretionary with the trial court.'" State

v. Wilson, 165 N.J. 657, 660 (2000) (quoting State v. Wolf, 44 N.J. 176, 185

(1965)). "[A]s a general rule, if a jury requests a readback of the testimony of a

witness, the readback should include both direct and cross-examination." Ibid.

However, "[t]hat is not to suggest that a witness's entire testimony is required to

be read back in every single case." Id. at 661. Our Supreme Court explicitly

stated that "[t]rial judges nonetheless retain discretionary authority to try to

A-1606-23 25 narrow a jury's request if it calls for the playback of extensive testimony." State

v. Miller, 205 N.J. 109, 122-23 (2011).

Here, although the portions of the expert's testimony read back for the jury

did not include cross-examination pursuant to the general rule set forth in

Wilson, 165 N.J. at 660, the trial court "nonetheless retain[ed its] discretionary

authority" to limit the DNA expert's testimony to the relevant portions requested

by the jury, particularly considering that the entire testimony was over an hour

and a half long. See Miller, 205 N.J. at 122-23.

Review of the portions of testimony read back to the jury shows that the

trial court's ruling was responsive to the jury's request as clarified in their second

note. Notably, moreover, the jury did not send a subsequent note requesting

additional readback testimony, despite being expressly told by the trial court

that they had the authority to dictate what was read back. We add that if the

entire testimony had been read back as defense counsel requested, the jury would

have once again heard that the DNA found on the bloody rag contained C.F.N.'s

DNA, further incriminating defendant.

In sum, we see no error in the trial court's decision to ask the jury to be

more specific in its request for a readback. Nor do we see any basis for appellate

intervention with respect to the manner in which the trial court carefully

A-1606-23 26 reviewed the expert's testimony to determine what portions were relevant to the

jury's request.

B.

We turn to whether the court erred by not sua sponte issuing a specific

instruction cautioning the jury not to give undue weight to the read back

testimony. Defendant argues on appeal that "[w]ithout reminding the jurors not

to overemphasize the scientific analysis regarding what constitutes contact

DNA, the expert testimony read back had a clear capacity to produce an unjust

result." We review defendant's contention regarding the cautionary instruction

for plain error because defendant did not ask for that instruction and did not

object when the court did not sua sponte provide one.

We are unpersuaded by defendant's contention that the issue regarding the

cautionary instruction was "partially" raised below because defense counsel

requested that the entire testimony be read. We are satisfied that there was no

specific objection regarding the need for a cautionary jury instruction, either

before or after the testimony was read back to the jury. See R. 1:7-2 (the

contemporaneous objection rule). Accordingly, defendant's contention should

be reviewed under a plain error standard. See State v. Gonzalez, 249 N.J. 612,

633 (2022) ("When a defendant does not object to an alleged error at trial, such

A-1606-23 27 error is reviewed under the plain error standard." (quoting State v. Singh, 245

N.J. 1, 13 (2021))). The plain error standard "requires reversal only for errors

'of such a nature as to have been clearly capable of producing an unjust result.'"

State v. Cotto, 471 N.J. Super. 489, 544 (App. Div. 2022) (quoting Trinidad,

241 N.J.at 451; R. 2:10-2). But regardless of whether the standard of review is

plain error or harmless error, we conclude that the expert readback provides no

basis to reverse the jury verdict, especially considering that the culprit's identity

was established by the identification made by the victim—defendant's girlfriend.

We note that "an 'alleged error is viewed in the totality of the entire charge,

not in isolation,' and 'any finding of plain error depends on an evaluation of the

overall strength of the State's case.'" Ibid. (quoting State v. Nero, 195 N.J. 397,

407 (2008)). "The mere possibility of an unjust result is not enough." Ibid.

(quoting State v. Alexander, 233 N.J. 132, 142 (2018)). "Rather, '[t]he

possibility must be real, one sufficient to raise a reasonable doubt as to whether

the error led the jury to a result it otherwise might not have reached.'"

Alexander, 233 N.J. at 142 (alteration in original) (quoting State v. Macon, 57

N.J. 325, 336 (1971)). See also State v. Butler, 263 N.J. 2, 22 (2026) (explaining

that reversal is warranted under the plain error standard where "an error [is]

sufficient to raise a reasonable doubt as to whether the error led the jury to a

A-1606-23 28 result it otherwise might not have reached" (emphasis added) (quoting State v.

Funderburg, 225 N.J. 66, 79 (2016))).

We are aware of no case establishing a categorical rule that requires a

court to give a supplemental cautionary instruction regarding readback

testimony in the absence of a defense request. Defendant relies on Miller for

the proposition that trial judges are required to instruct the jurors at the time the

testimony is repeated "to consider all of the evidence and not give undue weight

to the testimony played back." 205 N.J. at 123. However, Miller is

distinguishable from the case before us. In Miller, the Court was concerned with

video playbacks of witness testimony in light of the increased use of digital

recording equipment in trial courts. Id. at 120-22. Thus, the Court offered

"certain guidelines for the playback of video testimony." Id. at 122. Here,

however, the testimony was merely read back by the court reporter, and the

specific concerns related to video playbacks do not apply. See id. at 121 ("To

be sure, playing back recorded testimony reveals more than a sterile read -back

does. A video playback enables jurors not only to recall specific testimony but

also to assess a witness' credibility . . . .").

Here, defendant cannot demonstrate that failing to instruct the jury not to

give undue weight to the readback testimony led to a result that it otherwise

A-1606-23 29 might not have reached. See Gonzalez, 249 N.J. at 633 (2022) (quoting Singh

245 N.J. at 13). The State at trial presented overwhelming proof that defendant

was the person who stabbed the two victims, including testimony from both A.S.

and C.F.N. that defendant attacked them while in the Honda Odyssey, along with

testimony from Officer Dougherty that the vehicle was recovered a quarter mile

from where he encountered defendant. Although the very fact that the jury asked

to hear a readback of the DNA expert's testimony shows that evidence was

important to their deliberations—and while the preferred practice is to provide

a cautionary instruction whenever testimony is read back—we believe issuing

such an instruction in these circumstances would not have changed the result.

We therefore decline to overturn the verdict on these grounds based on the

record before us.

IV.

Defendant next contends that the motion court erred in denying his motion

to suppress the physical evidence found in the black tote bag because (1) the

investigatory stop was unconstitutional, and (2) police did not have probable

cause to arrest him, eliminating the required predicate for the search of the bag

under the search-incident-to-arrest exception to the warrant requirement.

A-1606-23 30 "Appellate courts reviewing a grant or denial of a motion to suppress must

uphold the factual findings underlying the trial court's decision so long as those

findings are supported by sufficient credible evidence in the record." State v.

Lamb, 218 N.J. 300, 313 (2014) (citing State v. Elders, 192 N.J. 224, 243

(2007)). Deference is accorded to those factual findings because they "are

substantially influenced by [an] opportunity to hear and see the witnesses and to

have the 'feel' of the case, which a reviewing court cannot enjoy." Elders, 192

N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "Thus, appellate

courts should reverse only when the trial court's determination is 'so clearly

mistaken that the interests of justice demand intervention and correction.'"

Lamb, 218 N.J. at 313 (quoting Elders, 192 N.J. at 244).

Turning to substantive search and seizure principles, "[t]he Fourth

Amendment of the United States Constitution and Article I, Paragraph 7 of the

New Jersey Constitution protect against 'unreasonable searches and seizures' by

government officials." State v. Watts, 223 N.J. 503, 513 (2015). "[T]he proper

inquiry for determining the constitutionality of a search-and-seizure is whether

the conduct of the law enforcement officer who undertook the search was

objectively reasonable." Id. at 514 (quoting State v. Bruzzese, 94 N.J. 210, 219

(1983)). The reasonableness of police conduct is assessed based upon an

A-1606-23 31 objective viewing of the officer's actions "considering the circumstances

confronting [the officer] at that time." State v. Barrow, 408 N.J. Super. 509,

518 (App. Div. 2009). Importantly for the purposes of this appeal, the State

bears the burden of proving by a preponderance of the evidence that a

warrantless search or seizure falls within one of the recognized exceptions to the

warrant requirement. State v. Amang, 481 N.J. Super. 355, 375-76 (App. Div.

2025). We proceed to dissect the sequence of events leading to the seizure of

the evidence found in the tote bag, proceeding one step at a time, starting with

the initial stop, the escalation to an arrest, and the ensuing search of the bag

incident to that arrest.

"It is undisputed that a police officer may conduct an investigatory stop

of a person if that officer has 'particularized suspicion based upon an objective

observation that the person stopped has been or is about to engage in criminal

wrongdoing.'" State v. Coles, 218 N.J. 322, 343 (2014) (quoting State v. Davis,

104 N.J. 490, 504 (1986)). "'Reasonable suspicion' means that 'the police officer

must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion.'"

Barrow, 408 N.J. Super. at 517 (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).

A-1606-23 32 See also Coles, 218 N.J. at 343 ("The stop must be reasonable and justified by

articulable facts; it may not be based on arbitrary police practices, the officer's

subjective good faith, or a mere hunch.").

"Determining whether reasonable and articulable suspicion exists for an

investigatory stop is a highly fact-intensive inquiry. . . ." State v. Nyema, 249

N.J. 509, 528 (2022). It requires evaluation of the totality of circumstances

surrounding the police encounter, weighing the government's need to enforce

the law against the person's right to be free from unwarranted police intrusion.

Ibid.

"Investigatory stops are valid in situations where the objective basis for

the stop was a minor traffic infraction." Barrow, 408 N.J. Super. at 518. "The

State need not prove that the suspected motor vehicle violation has in fact

occurred, only that the officer had a reasonable, articulable and objective basis

for justifying the stop." Ibid. Furthermore, "[t]he fact that the justification for

the stop was pretextual . . . [is] irrelevant." Ibid. (second alteration in original)

(quoting State v. Kennedy, 247 N.J. Super. 21, 29 (App. Div. 1991)).

Here, the motion court made the following findings in its written

suppression decision:

[T]he police had reasonable suspicion to stop the [d]efendant for a violation of N.J.S.A. 39:4-34, which

A-1606-23 33 makes it unlawful for an individual to cross in the middle of a road where a crosswalk is provided. Officer Dougherty testified credibly that he personally observed the [d]efendant cross Route 27 without utilizing a crosswalk. This testimony is bolstered by the surveillance footage from 7/11 on that night, as the [d]efendant can be seen entering the road just before patrol vehicles 22 and 103 enter camera view. While it is not entirely clear from the footage that the [d]efendant did not utilize the crosswalk, the footage does corroborate the officer's testimony by placing the [d]efendant at the location where the officer claimed to have seen him cross Route 27. This, on its own, justifies the investigatory stop, or attempted investigatory stop, of the [d]efendant.

The motion court further recognized that the officer "may have decided to

stop the [d]efendant in part, or even primarily because he suspected that the

[d]efendant was the subject of the recently issued BOLO." However, the court,

citing Kennedy, 247 N.J. Super. at 28, recognized that pretextual stops are

lawful as long as the facts, viewed objectively, justify the officer's actions.

The motion court found that, viewed objectively, the facts known to

Officer Dougherty at the time justified the stop. After observing a violation of

N.J.S.A. 39:4-34, jaywalking, in his presence, Dougherty conducted the stop to

identify the defendant and determine whether to issue a warning or a summons,

ultimately choosing the latter. There is sufficient, indeed ample credible

evidence in the record to support the motion court's factual findings, and its

A-1606-23 34 conclusion that the stop was lawful should not be disturbed. See Lamb, 218 N.J.

at 313 (explaining that an appellate court must defer to a trial court's factual

findings on a motion to suppress and uphold them so long as they are supported

by sufficient credible evidence in the record).

We turn next to defendant's contention that there was no probable cause

to arrest him, and therefore no lawful basis to conduct a search incident to the

arrest. We again begin by acknowledging the governing legal principles. A

search that is conducted incident to a lawful arrest is a well-established

exception to the warrant requirement. See State v. Torres, 253 N.J. 485, 503

(2023) (citing Chimel v. California, 395 U.S. 752, 762-63 (1969)); State v.

Dangerfield, 171 N.J. 446, 461 (2002). The search-incident-to-arrest exception

"requires that there be probable cause to arrest." Dangerfield, 171 N.J. at 456.

"Probable cause exists if at the time of the police action there is 'a well grounded

suspicion that a crime has been or is being committed.'" Ibid. (quoting State v.

Sullivan, 169 N.J. 204, 211 (2001)).

With respect to the scope of a search incident to arrest, "the exception

allows 'the arresting officer to search' both 'the arrestee's person and the area

"within [their] immediate control"' in order to prevent the arrestee from

A-1606-23 35 obtaining a weapon or destroying evidence." State v. Lentz, 463 N.J. Super. 54,

69 (App. Div. 2020) (quoting Chimel, 395 U.S. at 763). The authority to search

a person incident to a lawful arrest—although grounded in the need to disarm

the suspect and prevent the destruction of evidence—does not depend on a

court's later assessment of the likelihood that weapons or evidence would

actually be found. Id. at 70. Rather, because a custodial arrest based on probable

cause is itself a reasonable intrusion under the Fourth Amendment, a search

incident to that arrest requires no additional justification; the lawful arrest alone

establishes the authority to conduct a full search of the person. Ibid.

Furthermore, "[t]he authority to search an arrestee and the area within

[their] immediate control includes the authority to search a container found in

the arrestee's possession." State v. Oyenusi, 387 N.J. Super. 146, 154 (App.

Div. 2006). Even when a suspect is handcuffed, the search of a container in

their possession at the time of the arrest is still permissible. See id. at 155

("[T]he fact that the police seize a container in the possession of an arrestee at

the time of the arrest, thereby depriving the arrestee of access, does not mean

that a warrant must be obtained before the container can be opened and

examined.").

Here, the motion court found that "[w]hile . . . an admittedly close case

A-1606-23 36 . . . Officer Dougherty had probable cause to arrest the [d]efendant for

Obstruction (N.J.S.A. 2C:29-1) based on his refusal to comply with the Officer's

commands after observing him jaywalk across Route 27."

The motion court—responding to defendant's argument that the police did

not have legal authority to arrest him for obstructing the issuance of a Title 39,

jaywalking ticket because he was a pedestrian, not operating a vehicle—found

that N.J.S.A. 39:4-34, failure to use a crosswalk, does not require that the

offender be operating a motor vehicle. The motion court also rejected

defendant's argument that he was not obstructing because he did not know

Dougherty and Manzini were police officers given that they were in an

unmarked police car. The motion court gave "great weight to Officer

Dougherty's testimonial illustration of the event." Specifically, the court found:

[Officer Dougherty] explained with confidence that he was only [fifteen] feet from the [d]efendant when he and Officer Manzini yelled "stop" and identified themselves as police officers several times, until eventually Officer Dougherty stopped his vehicle, activated his emergency lights, then he and Officer Manzini continued to approach the [d]efendant while still shouting commands at him to stop. At this point, the [d]efendant is now looking at two Officers; at least one of whom was in full uniform, as they yell for him to stop. According to Officer Dougherty, the [d]efendant turned away from him and began to rifle through his bag. The [d]efendant continued to do this

A-1606-23 37 while ignoring the Officers' numerous commands to stop and show them his hands.

The court, relying on State v. Lashinsky, 81 N.J. 1, 11 (1979), determined that

defendant's refusal to obey the officers' orders constituted "interference" within

the meaning of N.J.S.A. 2C:29-1, obstructing the administration of law. The

motion court concluded that probable cause existed justifying defendant's arrest.

Turning to the scope of the search, the motion court found that "the bag

was certainly within [d]efendant's immediate reach at the time he was arrested,

as it was at his feet." Further, the court noted that the search occurred

contemporaneous to the arrest, and the fact that defendant was already

handcuffed before the bag was searched did not invalidate the search.

We agree with the motion court's careful and methodical reasoning and

affirm substantially for the reasons expressed in the court's written decision.

The officer conducted a lawful investigatory stop after observing defendant

commit a Title 39 offense. Probable cause ripened when defendant refused to

obey the officer's lawful command to stop, providing a lawful basis to believe

defendant was committing the offense of obstruction of administration of law.

That probable cause justified the arrest, thereby entitling the officers to conduct

a warrantless search of defendant's person and containers within defendant's

wingspan, including the tote bag at defendant's feet. Proceeding step-by-step

A-1606-23 38 through the sequence of police actions and decisions, as the motion court

correctly ruled, police at all times complied with defendant's Fourth Amendment

rights.

Defendant next argues that the motion court should have granted an

evidentiary hearing regarding the identification procedure used by Detective Joy

when he showed A.S. a single photograph of defendant. First, defendant argues

that this identification was inherently suggestive because a single photo, rather

than an array, was used. Defendant further argues that this procedure did not

conform with any of the "system variables" announced in Henderson, 208 N.J.

at 208. Finally, defendant asserts that in denying an evidentiary hearing on this

issue, the trial court deprived defendant of an opportunity to fully explore the

familiarity of the relationship between himself and A.S., which he argues could

have aided his defense. None of these contentions have merit.

Deference is accorded to a trial court's determination that photographic

identification procedures were reliable. See State v. Adams, 194 N.J. 186, 203

(2008) ("[T]he trial court's findings that photographic identification procedures

were reliable should not be disturbed if there is sufficient credible evidence in

the record to support the findings."). Furthermore, "to obtain a pretrial hearing,

A-1606-23 39 a defendant has the initial burden of showing some evidence of suggestiveness

that could lead to a mistaken identification." Henderson, 208 N.J. at 288. The

Court in Henderson set forth a list of non-exhaustive "system variables" that

should be considered in evaluating whether evidence of suggestiveness exists as

to warrant a hearing. Id. at 289-90. System variables are relevant circumstances

within the State's control, including: (1) Blind Administration; (2) Pre-

identification Instructions; (3) Lineup Construction; (4) Feedback; (5)

Recording Confidence; (6) Multiple Viewings; (7) Showups; (8) Private Actors;

and (9) Other Identifications Made. Ibid. While a court may consider "estimator

variables"—factors beyond the control of the criminal justice system—at a

pretrial hearing, only system variables can trigger a pretrial hearing. Id. at 293.

The Court in Henderson emphasized that "enhanced hearings are not meant to

be the norm in every case," and that "[t]hey will only be held when defendants

allege some evidence of suggestiveness." Id. at 303.

We first consider defendant's contention that that the detective improperly

displayed a single photograph to A.S., rather than array. Our Supreme Court

has acknowledged that "[p]olice will, on occasion, display a single photograph

to a witness in an effort to confirm the identity of a perpetrator. Police typically

limit this method to situations in which the perpetrator is previously known to

A-1606-23 40 or acquainted with the witness." State v. Pressley, 232 N.J. 587, 593 (2018)

(quoting National Research Council, Identifying the Culprit: Assessing

Eyewitness Identification 28 (2014)). So-called "confirmatory" identifications

are "not considered suggestive." Id. at 592.

Here, the motion court determined that A.S.'s identification of defendant

was a reliable confirmatory identification. We agree. Specifically, the motion

court found that defendant and A.S. had been dating for three months and may

have known each other for "much longer," based on her statements to Detective

Joy. The motion court further highlighted that A.S. referred to her attacker as

"Farrakhan" or "Farrakhan Howard" several times throughout her police

interview, prior to being shown defendant's photograph. Further, the motion

court noted that the friend A.S. referred to as having occasionally ordered her

Lyft rides—Shareiffa—was defendant's mother, Shareiffa Howard, who A.S.

referred to as her "mother-in-law" in her statement to Detective Joy. In sum, the

motion court correctly determined that defendant's photo served only to confirm

her verbal identification of him.

The motion court further concluded that defendant had failed to

demonstrate "some evidence of suggestiveness that could lead to a mistaken

identification." As our Supreme Court stressed, "reliability is the linchpin in

A-1606-23 41 determining the admissibility of identification testimony." Henderson, 208 N.J.

at 238 (quoting Manson v. Brathwaite, 432 U.S. 98, 114 (1977)). We affirm the

motion court's decision to deny defendant's motion without an evidentiary

hearing because the court's determination that the procedure was reliable is

supported by sufficient credible evidence in the record. See Adams, 194 N.J. at

203 ("[T]he trial court's findings that photographic identification procedures

were reliable should not be disturbed if there is sufficient credible evidence in

the record to support the findings.").

Here, considering the totality of relevant circumstances, we do not hesitate

to conclude that the out-of-court identification of defendant by his girlfriend was

reliable and properly admitted. Indeed, this case falls squarely in the heartland

of cases where an evidentiary Wade/Henderson hearing is not needed and would

be a waste of time.

VI.

Finally, we address defendant's sentencing arguments. Defendant

contends that the trial judge (1) improperly sentenced him to what once was

known as the "presumptive" term related to the carjacking offense and (2)

impermissibly double-counted facts related to the elements of the carjacking

A-1606-23 42 offense to find aggravating factor one, N.J.S.A. 2C:44-1(a)(1), the nature and

circumstances of the offense, applied. We address each contention in turn.

It is axiomatic that appellate courts apply a deferential standard of review

to sentencing determinations and "must not substitute [their] judgment for that

of the sentencing court." State v. Fuentes, 217 N.J. 57, 70 (2014). The sentence

must be affirmed unless:

(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]

In State v. Natale, our Supreme Court, relying on Sixth Amendment

principles announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely

v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220

(2005), eliminated the presumptive terms codified in the penal code. 184 N.J.

458, 487-88 (2005). The Court further held that "[a]lthough judges will continue

to balance the aggravating and mitigating factors, they will no longer be required

to do so from the fixed point of a statutory presumptive [term]." Id. at 488. The

Court stressed, however, that a reasonable approach would be for judges to "pick

A-1606-23 43 the middle of the sentencing range as a logical starting point for the balancing

process." Ibid. The Court anticipated that when the aggravating factors

outweigh the mitigating factors, sentences would lean towards the higher end of

the sentencing range. See ibid. ("[R]eason suggests that when the mitigating

factors preponderate, sentences will tend toward the lower end of the range, and

when the aggravating factors preponderate, sentences will tend toward the

higher end of the range.").

Here, the trial court determined that the aggravating factors outweighed

the mitigating factors and imposed an aggregate twenty-four-year prison term

subject to NERA. The court noted that while the sentence started at the "mid

range"—the former presumptive term for carjacking—the aggravating factors

prevailed, warranting a "significant increase . . . in this particular case." We

conclude the sentence imposed was entirely appropriate in light of the Court's

instructions in Natale, 184 N.J. at 488. Indeed, the trial court followed precisely

the decision-making framework deemed to be reasonable in Natale.

Turning to defendant's second sentencing argument, we address whether

the trial court impermissibly double-counted the elements of the carjacking

offense in finding that aggravating factor one applied. Aggravating factor one

addresses "the nature and circumstances of the offense, and the role of the actor

A-1606-23 44 in committing the offense, including whether or not it was committed in an

especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1).

The law is well-settled that "a court may identify competent, reasonably

credible evidence that the defendant's offense was 'committed in an especially

heinous, cruel, or depraved manner,' or that the evidence otherwise justifies

application of aggravating factor one, without double-counting the elements of

the offense." Fuentes, 217 N.J. at 77 (quoting N.J.S.A. 2C:44–1(a)(1)). Such a

determination "must be fully grounded in the record before the sentencing

court," and the court must "adequately explain its application of aggravating

factor one." Ibid.

Here, the trial court found that the nature and circumstances of the case

demonstrated that defendant's actions were "completely unprovoked" and

resulted in the life-long physical, emotional, mental, and financial impairment

of the Lyft driver, the victim of the carjacking crime. The trial court expressly

recognized the rule against double-counting, explicitly stating that its

consideration of aggravating factor one did not involve double-counting of the

elements for carjacking and attempted murder, reasoning the harm to the victim

was so severe that the attempted murder was nearly completed. We agree that

the severity of defendant's unprovoked attack far exceeded the level of force and

A-1606-23 45 harm required to support a carjacking conviction and an attempted murder

conviction. The trial court's application of aggravating factor one was thus

"fully grounded in the record" and "adequately explain[ed]." Ibid.

To the extent we have not specifically addressed them, any remaining

arguments raised by defendant lack sufficient merit to warrant discussion. R.

2:11-3(e)(2).

Affirmed.

A-1606-23 46