State of New Jersey v. Jerome Davis
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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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5554-18 A-3894-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEROME DAVIS, a/k/a JEROME R. DAVIS, and JEROME GLOVER,
Defendant-Appellant. ________________________
Argued (A-5554-18) and Submitted (A-3894-19) October 30, 2023 – Decided November 20, 2023
Before Judges Mawla, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 17-07- 0856, 17-07-0857, 18-07-1109, and 18-08-1225.
Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robert Carter Pierce, on the briefs).
Erin M. Campbell, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
These are back-to-back appeals. In A-5554-18, defendant Jerome Davis
appeals from his convictions for: first-degree murder, N.J.S.A. 2C:11-3(a)(1),
(count one); second-degree burglary, N.J.S.A. 2C:18-2, (count two); second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), (count three);
and second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a)(1), (count four). He also challenges his sentence. In A-3894-19,
defendant appeals from his conviction following a guilty plea to a certain
persons offense, N.J.S.A. 2C:39-7(b)(1). We affirm.
Defendant's trial lasted twelve days. In addition to audio, video, and
documentary evidence, the State adduced testimony of eighteen witnesses,
including: defendant's ex-girlfriend Shaddia Booker; Middlesex County
Prosecutor's Office lead detective David Abromaitis; Booker's friend Princetta
Jarrett; an employee of Spy Shop, a retail company specializing in the sale of
security equipment; an employee of a gas station; a manager of a carwash; and
Booker's uncle, Curtis Booker, Sr.
A-5554-18 2 Booker dated defendant for approximately seven years, between 2008 and
2015, and lived with him for three or four of those years. She testified the
relationship was abusive, however, she remained with defendant.
When the relationship ended in 2015, Booker began dating other people,
including the victim, Patrick Olarerin. Booker's relationship with Olarerin was
not exclusive. She enjoyed socializing. Olarerin was much older, retired, and
receiving disability. He was content spending time at home. Although this
caused some friction in their relationship, as of 2017, Booker was living with
Olarerin in his North Brunswick apartment. She planned to terminate the lease
on a home she rented in Plainfield, which she once shared with defendant, and
move in with Olarerin.
In February 2017, defendant began contacting Booker again. He sent her
multiple text messages and called her multiple times per day, using different
phone numbers. The messages, which were sometimes sexual in nature or
referred to marriage, indicated defendant was back in town, wanted to resume
his relationship with Booker, and wanted her to end the relationship with
Olarerin. Booker would occasionally speak with defendant or respond to his
messages, but she mostly ignored him.
A-5554-18 3 Defendant sent flowers to Booker's workplace and her sister's home,
believing Booker lived there. Defendant contacted one of Booker's friends
through Facebook. Booker testified she was "agitated" by defendant's phone
calls and text messages. Although she loved him, she "didn't want to be in a
relationship with him anymore." She spoke with and texted with him because
she felt "sorry for him," "wanted him to get himself together," and encouraged
him to "stay on his path."
In early March 2017, Booker and defendant met at her stepmother's house
so he could obtain a key from her to retrieve his belongings from the Plainfield
home. On another occasion in March, defendant stopped by Booker's sister's
house, uninvited, and argued with Booker's mother, who was there visiting.
Booker was also present on that date. She told defendant he "can't pop up at
someone else's house," and she would "talk to him later." She kept putting him
off because they "had a[n] abusive relationship so [she] was scared of him."
On April 3, 2017, Booker met defendant at a motor vehicle agency, so he
could obtain a copy of the title to his truck, which had been in her name. They
had dinner afterwards. On April 29, 2017, Booker met defendant at his
apartment in Piscataway and they had sex. She testified that afterward she "felt
like crap" and this was the last time they met. When she spoke with him later,
A-5554-18 4 she told him that she "needed space," and to "[g]ive it time," "[g]ive it a year,"
and if he changed "[m]aybe we can see if maybe we can get back together."
However, defendant continued to text and call Booker. On May 4, 2017,
he visited Spy Shop and purchased a GPS tracking device to track Booker's
vehicle. Defendant told the salesperson "he had just gotten engaged or given
his fiancé a large diamond ring," and he "wanted some reassurance about this
investment that he made . . . ." Defendant stated he first had to "find his fiancé's
car because he hadn't seen it in a while," and "he didn't know . . . what she was
up to."
The salesperson installed the necessary software on defendant's phone,
and explained how to use the GPS device, including how to access the tracking
data on the company's website. Later that night, defendant communicated with
the salesperson to troubleshoot the device. Defendant stated he had attached the
GPS tracker to the vehicle but could not pinpoint the vehicle's current location.
The salesperson testified the GPS tracking data showed the tracker was attached
when it was parked at Booker's workplace in Somerset.
The following morning, defendant told the salesperson he had located the
vehicle at an apartment complex nearby. The corresponding GPS data indicated
the vehicle was parked in North Brunswick.
A-5554-18 5 The next day, Booker received a text message from defendant, apparently
intended for someone named "John," in which he recited the license plate
number of a vehicle belonging to Olarerin, which Booker had been driving on
May 4. That day, Booker drove to lunch with Olarerin to celebrate his birthday
and then drove to work, where she had parked near Jarrett's vehicle.
On May 6, defendant texted Booker, saying he had run into Jarrett. Jarrett
also called Booker about the same encounter. Jarrett testified that on one
occasion in May 2017 she observed defendant driving near her home . She
thought it was "strange and weird," and wondered what he was doing in her
neighborhood. A few days later, defendant cut her off while she was driving
with her son and forced her to stop. She asked defendant what he was doing and
why he was following her.
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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-5554-18 A-3894-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEROME DAVIS, a/k/a JEROME R. DAVIS, and JEROME GLOVER,
Defendant-Appellant. ________________________
Argued (A-5554-18) and Submitted (A-3894-19) October 30, 2023 – Decided November 20, 2023
Before Judges Mawla, Marczyk, and Chase.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 17-07- 0856, 17-07-0857, 18-07-1109, and 18-08-1225.
Robert Carter Pierce, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Robert Carter Pierce, on the briefs).
Erin M. Campbell, Assistant Prosecutor, argued the cause for respondent (Yolanda Ciccone, Middlesex County Prosecutor, attorney; Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
These are back-to-back appeals. In A-5554-18, defendant Jerome Davis
appeals from his convictions for: first-degree murder, N.J.S.A. 2C:11-3(a)(1),
(count one); second-degree burglary, N.J.S.A. 2C:18-2, (count two); second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), (count three);
and second-degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(a)(1), (count four). He also challenges his sentence. In A-3894-19,
defendant appeals from his conviction following a guilty plea to a certain
persons offense, N.J.S.A. 2C:39-7(b)(1). We affirm.
Defendant's trial lasted twelve days. In addition to audio, video, and
documentary evidence, the State adduced testimony of eighteen witnesses,
including: defendant's ex-girlfriend Shaddia Booker; Middlesex County
Prosecutor's Office lead detective David Abromaitis; Booker's friend Princetta
Jarrett; an employee of Spy Shop, a retail company specializing in the sale of
security equipment; an employee of a gas station; a manager of a carwash; and
Booker's uncle, Curtis Booker, Sr.
A-5554-18 2 Booker dated defendant for approximately seven years, between 2008 and
2015, and lived with him for three or four of those years. She testified the
relationship was abusive, however, she remained with defendant.
When the relationship ended in 2015, Booker began dating other people,
including the victim, Patrick Olarerin. Booker's relationship with Olarerin was
not exclusive. She enjoyed socializing. Olarerin was much older, retired, and
receiving disability. He was content spending time at home. Although this
caused some friction in their relationship, as of 2017, Booker was living with
Olarerin in his North Brunswick apartment. She planned to terminate the lease
on a home she rented in Plainfield, which she once shared with defendant, and
move in with Olarerin.
In February 2017, defendant began contacting Booker again. He sent her
multiple text messages and called her multiple times per day, using different
phone numbers. The messages, which were sometimes sexual in nature or
referred to marriage, indicated defendant was back in town, wanted to resume
his relationship with Booker, and wanted her to end the relationship with
Olarerin. Booker would occasionally speak with defendant or respond to his
messages, but she mostly ignored him.
A-5554-18 3 Defendant sent flowers to Booker's workplace and her sister's home,
believing Booker lived there. Defendant contacted one of Booker's friends
through Facebook. Booker testified she was "agitated" by defendant's phone
calls and text messages. Although she loved him, she "didn't want to be in a
relationship with him anymore." She spoke with and texted with him because
she felt "sorry for him," "wanted him to get himself together," and encouraged
him to "stay on his path."
In early March 2017, Booker and defendant met at her stepmother's house
so he could obtain a key from her to retrieve his belongings from the Plainfield
home. On another occasion in March, defendant stopped by Booker's sister's
house, uninvited, and argued with Booker's mother, who was there visiting.
Booker was also present on that date. She told defendant he "can't pop up at
someone else's house," and she would "talk to him later." She kept putting him
off because they "had a[n] abusive relationship so [she] was scared of him."
On April 3, 2017, Booker met defendant at a motor vehicle agency, so he
could obtain a copy of the title to his truck, which had been in her name. They
had dinner afterwards. On April 29, 2017, Booker met defendant at his
apartment in Piscataway and they had sex. She testified that afterward she "felt
like crap" and this was the last time they met. When she spoke with him later,
A-5554-18 4 she told him that she "needed space," and to "[g]ive it time," "[g]ive it a year,"
and if he changed "[m]aybe we can see if maybe we can get back together."
However, defendant continued to text and call Booker. On May 4, 2017,
he visited Spy Shop and purchased a GPS tracking device to track Booker's
vehicle. Defendant told the salesperson "he had just gotten engaged or given
his fiancé a large diamond ring," and he "wanted some reassurance about this
investment that he made . . . ." Defendant stated he first had to "find his fiancé's
car because he hadn't seen it in a while," and "he didn't know . . . what she was
up to."
The salesperson installed the necessary software on defendant's phone,
and explained how to use the GPS device, including how to access the tracking
data on the company's website. Later that night, defendant communicated with
the salesperson to troubleshoot the device. Defendant stated he had attached the
GPS tracker to the vehicle but could not pinpoint the vehicle's current location.
The salesperson testified the GPS tracking data showed the tracker was attached
when it was parked at Booker's workplace in Somerset.
The following morning, defendant told the salesperson he had located the
vehicle at an apartment complex nearby. The corresponding GPS data indicated
the vehicle was parked in North Brunswick.
A-5554-18 5 The next day, Booker received a text message from defendant, apparently
intended for someone named "John," in which he recited the license plate
number of a vehicle belonging to Olarerin, which Booker had been driving on
May 4. That day, Booker drove to lunch with Olarerin to celebrate his birthday
and then drove to work, where she had parked near Jarrett's vehicle.
On May 6, defendant texted Booker, saying he had run into Jarrett. Jarrett
also called Booker about the same encounter. Jarrett testified that on one
occasion in May 2017 she observed defendant driving near her home . She
thought it was "strange and weird," and wondered what he was doing in her
neighborhood. A few days later, defendant cut her off while she was driving
with her son and forced her to stop. She asked defendant what he was doing and
why he was following her. He looked surprised to see her and said something
like "oh, I got the wrong person." Jarrett understood this to mean defendant
thought he had intercepted Booker and Olarerin.
Booker informed Olarerin defendant was back in town and texting her,
including the text she received bearing Olarerin's license plate number. Olarerin
contacted a friend who worked as a North Brunswick police officer because she
was concerned whether someone could obtain his address using a license plate
number. The friend told Olarerin only a law enforcement officer, and the court
A-5554-18 6 could obtain this information and he "didn't think civilians could get that
information just by having his license plate number."
The State presented evidence showing defendant continued to track
Booker by checking the tracking website multiple times per day between May 4
and May 14, 2017. The tracker data showed the tracker traveled from North
Brunswick to Piscataway on May 9 and made a return trip on May 12,
evidencing defendant removed the tracker to re-charge it and replaced it on the
vehicle. Booker testified she saw defendant as she walked out of Olarerin's
apartment the morning of May 9. Defendant exited his vehicle and walked
towards her. As she walked toward her car, she went "back and forth" with
defendant, asking him why he was there. When she got into her car, she called
Olarerin to let him know defendant was outside. She also answered her phone
when defendant called her, to tell him she did not want him coming to her home.
After Booker left, defendant went to Olarerin's front door. The jury heard
Olarerin's 9-1-1 call, during which he noted with alarm defendant had somehow
entered the apartment. Defendant also called 9-1-1 and was heard telling
Olarerin to "[l]eave my wife alone" and that he wanted Olarerin to "stop what
he's doing."
A-5554-18 7 That evening, Booker and Olarerin went to the North Brunswick Police
Department and Booker obtained a temporary restraining order (TRO) against
defendant, which listed Olarerin as a protected party. According to the officer
who met with the couple, Booker seemed "upset," "nervous," and "afraid ."
Olarerin seemed even "more scared than" Booker and appeared "nervous" and
"shaken up about the entire incident."
Booker's uncle came to the police station that night. As he was leaving
with Olarerin, he saw defendant in the parking lot. Their interaction was
captured on surveillance video. He flagged down defendant and briefly met with
him in a nearby Krauszer's parking lot. The uncle told defendant Booker had
"moved on, . . . [and] didn't want to be bothered no more." He informed
defendant Booker obtained a TRO. After the uncle told defendant he did not
want to see him get into trouble and to "leave it alone[,]" defendant responded
he still loved Booker and that Olarerin made her obtain the TRO.
The following day, Olarerin installed a camera inside his apartment facing
the front door. When the camera detected motion, it sent alerts to Booker's
phone.
Police served the TRO on defendant on May 12, 2017. However,
defendant continued to call and text Booker notwithstanding the TRO.
A-5554-18 8 On May 13, 2017, Booker went shopping and to a hair salon with Jarrett
in preparation for a night out in Elizabeth. Defendant continued calling Booker.
She answered a few of his calls, but only to tell him to stop contacting her. In
the early morning hours of May 14, Jarrett picked up Booker at Olarerin's
apartment, and they headed out. The home surveillance camera recorded
Booker's departure, including her asking Olarerin not to chain the door because
she intended to return. Olarerin locked the door after Booker left.
Defendant continued to call and text Booker. According to Jarrett, at some
point, Booker spoke with defendant and appeared nervous and agitated. She
advised him she was out. Defendant called Booker at 3:21 a.m., and did not call
her again until 4:38 a.m. Defendant also checked the GPS tracker website at
3:26 a.m., but did not check it again until 8:51 a.m. In between that time,
defendant's phone recorded the use of its flashlight for approximately seven
minutes beginning at 3:36 a.m.
At 4:11 a.m., 4:12 a.m., and 4:13 a.m., Booker received notifications on
her phone, indicating that the camera had detected movement inside Olarerin's
apartment. She assumed Olarerin was leaving to walk his dog, which he did
every day around 4:30 a.m. She tried to FaceTime him, but he did not answer,
A-5554-18 9 so she assumed he had left his phone in the house. She did not check the
surveillance video.
When Booker arrived home at approximately 5:14 a.m., she found
Olarerin lying on the floor. He was cold, non-responsive, and bleeding from the
head, and the dog was locked in its crate. His phone and wallet were five to ten
feet away from his body. She could not recall whether the front door had been
locked when she got home. She called 9-1-1 at 5:16 a.m. and stated the top lock
to the front door was unlocked when she returned home.
When the police arrived, they observed no evidence of forced entry into
the home and found no fingerprints on the front or back doors. However, they
noted that the front door was "old" and "weathered" and "not very sturdy or
stable." Olarerin was lying on his back, with his head touching the patio door,
which was locked. He was pronounced dead at 6:04 a.m. The State's forensic
pathologist testified the cause of death was an injury to the brain, caused by a
gunshot to the left side of his head, which had no exit wound.
Booker showed police a videoclip from the security camera, which
showed an unidentified man quietly walk into the apartment, wearing gloves, a
mask, and a hoodie with the hood up, carrying a handgun between 4:11 and 4:13
a.m. Booker believed the man was defendant based on the fact he discovered
A-5554-18 10 where she was living, the TRO, and subsequent text messages and phone calls.
The police also spoke to Olarerin's police officer friend, who confirmed Olarerin
was concerned defendant was attempting to locate his residence.
Police searched defendant's home and vehicle but did not find any clothing
matching what the suspect wore in the surveillance video. Defendant's vehicle
was a silver-grey Ford Explorer. Inside police found mail addressed to Booker;
photographs of defendant and Booker; a post-it note with the GPS tracker
website written on it; a business card for Spy Shop; receipts from businesses in
North Brunswick, near Olarerin's apartment, with license plate numbers written
on their backs; a copy of the TRO; and multiple pairs of gloves.
Police conducted a forensic search of two phones seized from defendant's
person. They discovered the text messages between defendant and Booker; the
messages and phone calls defendant made to Booker from other numbers;
messages from defendant to Booker asking her to unblock his phone number;
call forwarding applications, which allowed defendant to disguise his phone
number and make calls from different numbers on the same phone; evidence
defendant was blocking his number so his messages could go through to
Booker's phone; images of Booker's vehicle and license plates, which were taken
when he met her at the motor vehicle agency; a photo of Booker's sister's
A-5554-18 11 residence; photos of vehicles parked near Booker's workplace; internet searches
attempting to locate Booker, including multiple license plate searches of
vehicles associated with Booker, Olarerin, Booker's friends, and vehicles parked
near Booker's workplace; text messages indicating defendant's attempts to locate
and track Booker; and the tracker application and evidence of defendant's use of
the GPS tracker, including his messages to the Spy Shop salesperson.
After discovering the tracker application on defendant's phone, police
searched Booker's vehicle and found the tracker under the back bumper. They
also interviewed the Spy Shop salesperson about defendant's purchase and use
of the tracker.
Police obtained surveillance videos from two businesses located at the
interchange of Routes 1 and 18 for the early morning hours of May 14, 2017.
The videos showed a light-colored truck, like defendant's, traveling in the
direction of defendant's home and away from Olarerin's at 4:23 a.m.,
approximately ten minutes after Olarerin was killed.
On July 5, 2017, Detective Abromaitis received a handwritten letter, dated
June 27, 2017, which was sent from the Middlesex County Adult Correctional
Center (MCACC) bearing an inmate number "one number off" from defendant's
A-5554-18 12 number. Defendant's DNA was found on the envelope, and Booker testified she
recognized the handwriting in the letter as belonging to defendant.
Detective Abromaitis testified the letter contained information that only
the killer would know. The letter suggested the murder had happened quickly,
with no noise, and that Olarerin had been shot in the left side of the head. The
location of Olarerin's wound was not public knowledge at the time the detective
received the letter, because police would not receive the medical examiner's
report until July 19, 2017.
According to Detective Abromaitis, there was other evidence defendant
wrote the letter. The letter attempted to point police away from defendant by
providing the names of two men who were listed as contacts in defendant's
phone. The writer misspelled the word cousin as "couison," which was the same
way defendant misspelled the word in his phone contacts. The letter referenced
car auctions, an industry in which defendant had worked. And the writer
referenced one of the other men driving a black Mercedes-Benz like Booker's,
and defendant's phone contained a photo of such a vehicle.
The jury convicted defendant on all charges. The trial judge sentenced
defendant to: sixty-five years on count one, subject to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2; and concurrent terms of ten years each on counts
A-5554-18 13 two, three, and four. Count two was subject to NERA, and count three was
subject to a five-year parole disqualifier pursuant to the Graves Act, N.J.S.A.
2C:43-6(c).
Separately, defendant was indicted on one charge of second-degree certain
persons not to possess a firearm, N.J.S.A. 2C:39-7(b)(1), because he had
previously been convicted of escape and robbery. Following defendant's
conviction and sentencing on the offenses in A-5554-18, he pled guilty to the
certain persons offense and to another offense in a third indictment, which is not
a part of these appeals. Prior to entering the plea, defendant moved to dismiss
the indictment. The motion was denied.
During the plea colloquy, defendant admitted that on May 14, 2017, he
had constructive possession of the firearm found by the police during their
search of defendant's home in Piscataway. Although defendant denied
ownership of the firearm or having touched it, he testified he was keeping it for
a friend who had been accused of domestic violence. Defendant admitted he
knew he had prior convictions which precluded him from possessing a firearm.
Defendant's plea reserved his right to appeal from the trial court's denial of his
motion to dismiss.
A-5554-18 14 The court sentenced defendant on the certain persons offense in
accordance with the plea agreement to five years imprisonment with five years
of parole ineligibility. The sentences ran concurrently with the murder sentence
and the sentence on the third indictment.
In A-5554-18, defendant raises the following points:
POINT I THE CONTENT OF [DEFENDANT'S] CONVERSATIONS WITH OTHER WOMEN WAS NOT OFFERED TO PROVE THE TRUTH OF THE MATTERS ASSERTED; THE TRIAL COURT'S EVIDENTIAL RULING THAT EXCLUDED THIS EVIDENCE DEPRIVED [DEFENDANT] OF A FAIR TRIAL. . . .
POINT II THE ALLUSIONS TO [DEFENDANT] "GOING AWAY" AND "COMING BACK" INVITED PREJUDICIAL SPECULATION THAT [HE] WAS IN PRISON FOR THE DOMESTIC ABUSE OF BOOKER. . . .
POINT III THE REFERENCES TO DOMESTIC VIOLENCE AND THE RESTRAINING ORDER WERE PREJUDICIAL, AND THE JUDICIAL RESPONSE IN THE FORM OF JURY INSTRUCTIONS WERE INADEQUATE. . . .
POINT IV THE SURVEILLANCE VIDEOS WERE NOT PROPERLY ADMITTED INTO EVIDENCE AND IT WAS IMPROPER FOR DETECTIVE ABROMAITIS TO TELL THE JURORS WHAT THEY WERE VIEWING. . . .
POINT V DETECTIVE ABROMAITIS OPINED WHO COULD OR COULD NOT BE THE KILLER,
A-5554-18 15 WHICH DEPRIVED [DEFENDANT] OF A FAIR TRIAL BECAUSE THE TESTIMONY INFRINGED UPON THE ULTIMATE QUESTION FOR THE JURY. (Not [r]aised [b]elow)[.]
POINT VI WITHOUT COMPETENT EVIDENCE THAT [DEFENDANT] WROTE THE LETTER AND/OR ADDRESSED THE ENVELOPE, THE EVIDENCE WAS NOT PROBATIVE AND IF ANYTHING SERVED ONLY TO CONFUSE THE JURORS. . . .
POINT VII THE TRIAL COURT'S REVERSAL ON ITS EARLIER DISCOVERY RULINGS IMPAIRED [DEFENDANT'S] ABILITY TO DEFEND HIMSELF. . . .
POINT VIII THE STATE FAILED TO PRESENT EVIDENCE THAT [DEFENDANT] DID NOT HAVE A PERMIT TO POSSESS A FIREARM, THEREFORE THE CONVICTION MUST BE VACATED. (Not raised below).
POINT IX THIS COURT SHOULD CONSIDER ACQUITTING [DEFENDANT], OR GRANTING HIM A NEW TRIAL. (Not raised below).
....
POINT X THE INDICTMENT WAS IMPROPERLY PROCURED AND SHOULD HAVE BEEN DISMISSED. . . . (Sub-Point A was not raised below.)
A. THE GRAND JURY WAS PERMITTED TO BASE THE CHARGES ON A FIREARM WHICH THE PROSECUTION DELIBERATELY
A-5554-18 16 SHIELDED FROM THE PETIT JURY. (Not raised below)[.]
B. THE PROSECUTION MISREPRESENTED TO THE GRAND JURY THAT [DEFENDANT'S] CELL PHONES WERE EQUIPPED WITH AN APP THAT TRANSFERRED HIS PHONE CALLS FROM ONE DEVICE TO THE OTHER.
POINT XI [DEFENDANT'S] SENTENCE WAS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT BASED THE SENTENCE ON PENDING CRIMINAL CHARGES AS WELL AS DOUBLE- COUNTING AGGRAVATING FACTORS. . . .
In his pro se brief, defendant raises the following points:
POINT I [DEFENDANT] WAS DEPRIVED [OF] HIS RIGHT TO A JURY TRIAL BECAUSE THE TRIAL COURT SHOULD HAVE ADDRESSED THE ISSUE WITH JUROR NUMBER ELEVEN INSTEAD OF TRICKING HIM (AS WELL AS THE REST OF THE JURORS) INTO BELIEVING THE JUROR/ALTERNATE SELECTION WAS RANDOM. (Not raised below)[.]
POINT II THE INDICTMENT SHOULD HAVE BEEN DISMISSED FOR FAILURE OF THE PROSECUTOR TO PRESENT EXCULPATORY EVIDENCE TO THE GRAND JURY WHICH DIRECTLY NEGATES GUILT OF THE ACCUSED IN VIOLATION OF [THE] 5TH AND 14TH [AMENDMENTS] TO THE U[.]S[.] CONSTITUTION[.] (N[ot raised below])[.] . . .
In A-3894-19, defendant raises the following points:
A-5554-18 17 POINT I THE INDICTMENT WAS IMPROPERLY PROCURED AND SHOULD HAVE BEEN DISMISSED. ( . . . Sub-Points A and B were not raised below)[.]
A. THE GRAND JURY WAS PERMITTED TO BASE THE CHARGE ON A NON-SPECIFIC FIREARM. (Not [r]aised [b]elow)[.]
B. THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE CHARGE OF CERTAIN PERSONS NOT TO POSSESS FIREARMS. (Not [r]aised [b]elow)[.]
I.
In both appeals, defendant challenges the grand jury proceedings leading
to his indictments. In A-5554-18, he asserts the State presented evidence of the
handgun seized from his home to substantiate the firearms charges, even though
the handgun could not be tied to the murder, and the gun was not presented at
trial. Defendant argues the State incorrectly claimed he used an application to
forward calls from the phones at his home to a phone found in his vehicle. He
contends the surveillance footage from the carwash was exculpatory and
wrongfully withheld from the grand jury, because it captured a vehicle like his
at 4:10 a.m., which given the distance and direction of travel, made it impossible
for him to have committed the murder between 4:11 and 4:13 a.m.
A-5554-18 18 In A-3894-19, defendant contends his certain persons conviction should
be reversed because: (1) the grand jury indicted him for possessing the firearm
used to murder Olarerin in North Brunswick, yet he pled guilty to possessing
the firearm at his home in Piscataway; and (2) there was insufficient evidence
presented to the grand jury to support the certain persons charge with respect to
the firearm because the evidence did not show he had constructive possession.
Detective Abromaitis testified before the grand jury. He explained
Booker's relationship with defendant, and defendant's conduct after she began
seeing Olarerin. He also testified about the May 9, 2017 confrontation with
Olarerin resulting in the TRO, service of the TRO on defendant two days before
the murder, Olarerin's installation of a security camera, and Olarerin contacting
his police officer friend.
Detective Abromaitis testified about Booker's communications with
defendant the night of the murder, the discovery of Olarerin's body, the autopsy,
and his review of the security camera footage. He told the grand jury about the
police investigation, including an interview of defendant during which he
claimed he was home alone the night of the murder. The detective testified
about the search of defendant's home and discovery of a handgun underneath a
deck, which did not belong to the owner of the home. He told the jury the gun
A-5554-18 19 could not be tied to the murder of Olarerin because the bullet recovered from his
body was damaged.
The detective's testimony also covered the search of defendant's vehicle,
which produced two phones separate from the two phones seized from
defendant's person. One of the phones found in the vehicle was an iPhone that
had a forwarding application enabling calls coming into or from the phones
taken from defendant's person to be forwarded to the iPhone. He explained the
search of the phones taken from defendant's person showed one phone was being
used to monitor a tracking device defendant had recently purchased from Spy
Shop and attached to Booker's vehicle.
Detective Abromaitis testified the surveillance footage from the
interchange showed a vehicle resembling defendant's traveling northbound on
Route 1, turning onto the ramp of Route 18 North, towards defendant's home,
within eight to ten minutes of the homicide. Police also interviewed defendant's
friend and housemate, who said defendant always talked about Booker. The
friend said defendant professed his love for Booker and wanted to marry her and
be with her.
A-5554-18 20 Detective Abromaitis testified about the letter received from the MCACC.
He explained police investigated the other men mentioned in the letter, but the
investigation yielded no leads.
Defendant moved to dismiss the indictment prior to trial. He claimed the
State related incorrect testimony about the iPhone found in his vehicle because
further investigation after the grand jury presentation showed the iPhone
belonged to someone other than defendant, had no cellular service and could not
accept calls forwarded from defendant's other phones. The other arguments
defendant now raises regarding the gun and surveillance video were not made
in the trial court.
The trial judge denied the motion, finding the information regarding the
application on the iPhone did not unduly prejudice the grand jury because it was
not "the main thrust of the State's case in terms of its proofs. It seemed to be
more of a . . . side issue." The judge found the evidence part and parcel of the
State's efforts "to present a complete picture of everything the State had."
At trial, the State did not introduce any evidence about the gun because it
could not prove it was the murder weapon. With respect to the iPhone, counsel
argued about the extent of permissible testimony on this issue and whether
defense questioning of a State's witness about the phone would open the door to
A-5554-18 21 questioning by the State as to the iPhone's owner, namely, a neighbor of Jarrett's,
and how defendant acquired it. However, ultimately the State's questioning of
Detective Abromaitis focused on the State's changing understanding of the role
the phone played after the case had been presented to the grand jury.
A "grand jury must be presented with sufficient evidence to justify the
issuance of an indictment." State v. Morrison, 188 N.J. 2, 12 (2006). However,
"[a]t the grand jury stage, the State is not required to present enough evidence
to sustain a conviction." State v. Feliciano, 224 N.J. 351, 380 (2016). The grand
jury is an accusatory rather than an adjudicative body, and it determines only
whether probable cause exists to believe that a crime has been committed. State
v. Bell, 241 N.J. 552, 559 (2020). All that is required is for the prosecutor to
present "some evidence establishing each element of the crime to make out a
prima facie case." Morrison, 188 N.J. at 12. "The quantum of this evidence . . .
need not be great." State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.
1997).
"[I]n reviewing the grand jury record on a motion to dismiss an
indictment, the trial court should use a standard similar to that applicable in a
motion for a judgment of acquittal at trial" under Rule 3:18-1. Morrison, 188
N.J. at 13. "The court should evaluate whether, viewing the evidence and the
A-5554-18 22 rational inferences drawn from that evidence in the light most favorable to the
State, a grand jury could reasonably believe that a crime occurred and that the
defendant committed it." Ibid. Accord Feliciano, 224 N.J. at 380-81.
"An indictment is presumed valid and should only be dismissed if it is
'manifestly deficient or palpably defective.'" Feliciano, 224 N.J. at 380 (quoting
State v. Hogan, 144 N.J. 216, 228-29 (1996)). For example, dismissal may be
appropriate where a "deficiency in the proceedings affect[ed] the grand jurors'
ability to make an informed decision whether to indict." Hogan, 144 N.J. at 229.
Ultimately, however, "the decision whether to dismiss an indictment lies within
the discretion of the trial court, . . . and that exercise of discretionary authority
ordinarily will not be disturbed on appeal unless it has been clearly abused."
Ibid. (citations omitted). Accord State v. Derry, 250 N.J. 611, 626 (2022); Bell,
241 N.J. at 561; State v. Saavedra, 222 N.J. 39, 55-56 (2015).
Pursuant to these principles, we conclude defendant's motion to dismiss
the indictment was correctly decided. The evidence presented to the grand jury
supported the charges on which defendant was indicted. As the trial judge
found, Detective Abromaitis's incorrect testimony about the iPhone was not
significant to those charges and did not undermine the validity of the indictment.
A-5554-18 23 The other arguments defendant asserts warrant dismissal of the indictment
were not raised before the trial court. Regardless, we address them for the sake
of completeness.
Detective Abromaitis's grand jury testimony about the gun was accurate
and not misleading. His testimony about the surveillance video was not
exculpatory. To the contrary, the surveillance video supported a conclusion that
defendant committed the murder because it suggested that defendant was driving
away from the murder scene, in the direction of his home, shortly after the
murder was committed. More importantly, Detective Abromaitis was
questioned about the video at trial. Therefore, the issues defendant raises about
the evidence presented to the grand jury are not grounds to reverse, given
defendant's subsequent conviction on the far greater evidence presented to the
jury at trial. State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994).
Neither the certain persons indictment nor the grand jury proceedings
preceding it were defective to warrant reversal of defendant's conviction. At the
outset, we note defendant never moved to dismiss the certain persons
indictment.
Regardless, the grand jury that considered the murder charge heard
evidence defendant possessed a handgun, which he took to Olarerin's home and
A-5554-18 24 used to kill him. Although the grand jury learned police found a gun in
defendant's home, and the homeowner said it did not belong to him, it also knew
police could not establish the gun found was the murder weapon.
With respect to the certain persons indictment, the same grand jury heard
evidence that defendant was convicted of escape in 1999, and armed robbery in
2017. As a result of these convictions, it learned he was a person prohibited
from having a firearm, yet he possessed a firearm to kill Olarerin on May 14,
2017.
This evidence was sufficient to support defendant's indictment on the
certain persons charge. Indeed, "[t]he elements of the certain persons offense
are straightforward: conviction of a predicate offense and possession of a
firearm." State v. Bailey, 231 N.J. 474, 488 (2018) (citing N.J.S.A. 2C:39-
7(b)(1)). It did not matter whether defendant possessed the gun in North
Brunswick or whether it was the murder weapon; possession in Piscataway was
enough to indict.
Defendant's argument the indictment was improperly amended prior to his
guilty plea lacks merit. The record shows defendant consented to the amended
indictment to alter the location of defendant's certain persons offense from North
Brunswick to Piscataway, where the gun was found. This was consistent with
A-5554-18 25 Rule 3:7-4, which permits the court to amend an indictment "to correct an error
in . . . the description of the crime intended to be charged . . . provided that the
amendment does not charge another or different offense from that alleged[,] and
the defendant will not be prejudiced thereby in [their] defense on the merits."
The amendment merely revised the description of the crime and did not
substantively alter the offense with which defendant was charged, nor did it
prejudice the ability to mount a defense in any way.
The plea colloquy also confirms defendant was not prejudiced by the
amendment because he clearly understood the nature of the certain persons
charge, including possession. Defendant gave detailed testimony recounting the
gun belonged to a corrections officer friend who had been involved in a domestic
violence incident. The friend left the gun in defendant's possession for a period
of years. While defendant was incarcerated, he arranged for a different friend
to hold the gun. When defendant was released, the gun's owner asked for the
gun back, and defendant arranged for the gun to be left at his home in
Piscataway, where it was found by the police before defendant had an
opportunity to return it to the owner. Although defendant denied touching the
gun, he admitted constructive possession by having it in his home and further
stated he knew he was not legally permitted to possess the weapon.
A-5554-18 26 II.
Defendant contends the trial judge initially allowed him to review
discovery during his pre-trial detention, but then reversed herself, which
deprived him of the ability to aid his attorney in preparing a defense and of a
fair trial. We are unpersuaded.
On September 19, 2017, approximately eighteen months before trial, the
court entered an order permitting defendant to view thirty-two discs of
discovery. In December 2017 and January 2018, the court held pre-trial hearings
to address, among other things, defendant's complaints about access to
discovery. At the time, defendant was housed in South Woods State Prison.
There were technical difficulties in accessing the discovery due to the format in
which it had been produced by the State.
As of March 2018, defendant was moved to the MCACC. On July 26,
2018, the court ordered the MCACC permit defendant "additional time
throughout the week to view his digital discovery." In September 2018, defense
counsel moved to enforce the July order. Middlesex County opposed the motion
arguing the court lacked jurisdiction to order the MCACC to let defendant
review the electronic discovery. Substantively, the county argued: there was a
program available to inmates to review electronic discovery; defendant had
A-5554-18 27 declined numerous opportunities to participate in the program; when defendant
participated in the program, he had not utilized all the time available to him; and
the program was intended to supplement, rather than replace, defendant's
meetings with defense counsel. The court denied defendant's motion on
jurisdictional grounds.
During the pretrial conference, defendant refused to sign the pretrial
memorandum because he had not had an opportunity to review all the discovery.
The pretrial memorandum noted discovery was complete, and the trial judge
noted that pretrial motions regarding discovery had been made, discovery issues
had been reviewed on the record, and multiple opportunities had been provided
to defendant to review discovery. Defense counsel agreed with the court's
assessment and stated he would "spend the entire . . . next week at the jail with
[defendant] making sure he . . . reviews everything."
"In New Jersey, an accused has a right to broad discovery after the return
of an indictment in a criminal case." State v. Hernandez, 225 N.J. 451, 461
(2016). The trial court's "power to order discovery is not limited to the express
terms of the automatic discovery provisions of Rule 3:13-3(b)." State v.
Richardson, 452 N.J. Super. 124, 132 (App. Div. 2017). "[C]ourts have 'the
inherent power to order discovery when justice so requires.'" Ibid. (quoting
A-5554-18 28 State in Int. of A.B., 219 N.J. 542, 555 (2014)). However, the right to discovery
"is not unlimited." Hernandez, 225 N.J. at 463.
We are unconvinced there was a discovery violation here. The record
shows defendant had ample access to the discovery and the opportunity to
review it with his attorney. The trial judge correctly found she could not compel
the MCACC to grant defendant access to the discovery in the manner he wished.
Moreover, he did not take full advantage of the MCACC's process enabling him
to review the discovery. These facts do not establish defendant was prejudiced
or had an unfair trial warranting a reversal of his convictions.
III.
Defendant raises several evidentiary arguments on appeal. We afford
substantial deference to a trial court's evidentiary rulings. State v. Morton, 155
N.J. 383, 453 (1998). As a result, we review evidentiary rulings for an abuse of
discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72
(2011). The trial court's evidentiary rulings must be upheld, "unless it can be
shown . . . that its finding was so wide of the mark that a manifest denial of
justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).
A-5554-18 29 A.
Defendant sought to admit text messages from his phone, showing he had
romantic relationships with women other than Booker as proof he was not
obsessed with her and lacked a motive to kill Olarerin. He did not intend to call
any of these women as witnesses, but instead intended to introduce the messages
into evidence through the State's witness who extracted the data from his phones.
The State objected on hearsay grounds.
The trial judge ruled the texts were inadmissible hearsay because they
were being used to prove the truth of their contents, namely, that defendant had
romantic relationships with other women. Further, a State's witness was not the
means by which to admit the evidence, because they extracted the messages but
did not send or receive them. The judge ruled to be admissible, the evidence
would require testimony from the individuals who sent or received the text
messages, who could testify from their personal knowledge about their
relationships with defendant and their communications with him. Defendant
never produced these witnesses.
The court's ruling that defendant's text messages with other women
constituted hearsay under N.J.R.E. 801(c) was sound, and we reject defendant's
arguments to the contrary. As required by N.J.R.E. 602, defendant had to
A-5554-18 30 present testimony from someone with personal knowledge of these
relationships; a police witness who extracted the messages or reviewed them did
not suffice.1
B.
Before trial, the State moved to admit evidence of a threat defendant made
to Olarerin on May 9, 2017, and the TRO issued on that date. The trial judge
issued a written opinion analyzing the evidence under N.J.R.E. 404(b) and State
v. Cofield, 127 N.J. 328 (1992), and granted the State's motion in part.
The judge found the threat to kill Olarerin was admissible intrinsic
evidence under N.J.R.E. 401, 402, and 403. She also ruled the evidence of the
May 9, 2017 threat was admissible under N.J.R.E. 404(b), subject to a limiting
instruction. However, the State could not refer to the TRO. The judge
concluded the "court will sanitize any and all reference to the issuing and
violation of the victims' restraining order against . . . defendant as it is unduly
prejudicial."
During a later pretrial hearing, the State sought additional guidance from
the court as to how the TRO could be sanitized. It asked the court to revisit the
1 Notwithstanding the evidentiary ruling, the jury learned during the defense cross-examination of Detective Abromaitis that defendant had a relationship with another woman. A-5554-18 31 issue because defendant was served with the TRO approximately thirty hours
before the murder, the TRO was found in defendant's vehicle, along with
engagement and wedding rings, and the State intended to tell the jury the TRO
was "the final straw" leading defendant to murder Olarerin.
At a later pretrial hearing the judge stated she realized the "heightened
relevance" of the TRO, given defendant's knowledge of the TRO, and the timing
of its service on defendant. Over defense counsel's objection, the judge stated
she would "be taking a look at that and how these issues interplay" and whether
it could "disturb [her] initial ruling."
On the first day of trial, the judge ruled the parties would be permitted to
use the phrase "restraining order." She noted defense counsel agreed. The judge
concluded the TRO was "highly probative and relevant to the issues of motive
and plan and identification and so intertwined with the . . . facts of the case and
intrinsic to the facts of the case that it is important that it be able to be brought
up." Rather than instructing the jury during opening statements, she would
instead give the limiting "instruction when the evidence comes in through
testimony."
Although the defense consented to the State using the term restraining
order, defense counsel objected during the State's opening when it mentioned
A-5554-18 32 the May 9, 2017 incident and Booker obtaining a restraining order against
defendant. The issue arose again with the State's first witness, a North
Brunswick Police patrolman who spoke with Booker at the crime scene and
asked whether she could identify the man in the home surveillance video. He
testified Booker mentioned defendant, and "a few incidents between him and the
deceased" and "two prior reports [of] harassment" at which point defense
counsel objected. The judge instructed the jury to disregard the witness's
statement and permitted the State to lead the witness to avoid further problems.
After the witness concluded his testimony, defense counsel moved for a
mistrial. The judge denied the motion, noting the court and counsel would be
"revisiting the issue of the prior domestic violence and the restraining order,"
the jury would hear testimony about the May 9, 2017 incident, and the court
would be issuing a limiting instruction.
Before Booker testified, the trial judge discussed use of the phrase
"restraining order." The parties agreed the phrase would be used in the context
of what occurred on May 9, 2017, and Booker would be permitted to generally
reference an "abusive relationship." However, she could not go into details
about any allegations of past abuse, and the TRO would not be admitted into
evidence.
A-5554-18 33 Booker testified her relationship with defendant was abusive, and the jury
heard about the May 9, 2017 incident and the TRO. After the first mention of
the restraining order, the judge issued the following instruction:
Ladies and gentlemen, the State has introduced evidence of a [TRO] barring defendant from having contact with . . . Booker. A [TRO] as opposed to a final restraining order [(FRO)] can be obtained with a one- sided complaint in summary fashion.
Our rules of evidence specifically exclude evidence that . . . if a defendant has committed any other crimes, wrongs, or acts when it is offered to show only that he has a disposition or a tendency to do wrong and therefore must be guilty of the charged offenses.
Before you can give any weight to this evidence, you must be satisfied that the defendant committed . . . this other act. If you are not so satisfied, you may not consider it for any purpose.
However, our rules do permit evidence of other crimes, wrongs, or acts when the evidence is used for . . . [a] certain specific, narrow purpose.
In this case, the evidence is only to be considered by you, members of the jury, to prove . . . defendant's motive, intent, plan, or identification. The State has introduced evidence of the [TRO] to show that it was this defendant's motive, intent, or plan to commit the crimes charged.
Whether this evidence does, in fact, demonstrate motive, intent, or plan is for you to decide. You may decide that this evidence does not demonstrate motive, intent, or plan and is not helpful to you at all. In that
A-5554-18 34 case, you just disregard this evidence. On the other hand, you may decide that this evidence does demonstrate motive, intent, or plan and use it for one or more of those specific purposes.
However, you may not use this evidence to decide that . . . defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that just because . . . defendant may have committed another crime, wrong, or bad act, he must be guilty of the present crimes.
I have admitted this evidence only to help you to decide this specific question of whether the issuance of the [TRO] motivated . . . defendant to commit the crimes alleged. You may not consider it for any other purpose and may not find . . . defendant guilty now simply because the State offered evidence that he committed other crimes, wrongs, or acts.
During summations, the State referenced the restraining order in the
context of defendant's unrestrained obsession with Booker, evidenced by
following Booker and Olarerin to the police station and then returning to
Olarerin's home and photographing his vehicle notwithstanding the TRO.
Defense counsel objected to the State's use of the phrase "restraining order"
because he thought the parties "had come to terms that we were calling it a
TRO," but counsel did not ask the court for a curative or limiting instruction.
A-5554-18 35 Following summations, the court's final jury charge instructed the jury
that counsel's statements did not constitute evidence. The judge also reiterated
the limiting instruction about the restraining order.
The admissibility of evidence under N.J.R.E. 404(b) is viewed
restrictively, as a rule of exclusion rather than inclusion. State v. Willis, 225
N.J. 85, 100 (2016). The trial court determines whether the evidence concerns
prior bad acts, under N.J.R.E. 404(b), or is intrinsic to the charged offense, and
therefore relevant under the N.J.R.E. 403 balancing test. State v. Rose, 206 N.J.
141, 179 (2011). It is "more likely that evidence of uncharged misconduct will
be admitted . . . if it is considered intrinsic to the charged crime and subject only
to [N.J.R.E.] 403 than if it is not considered intrinsic evidence and subject to
both [N.J.R.E.] 404(b) and [N.J.R.E.] 403." Id. at 178. Intrinsic evidence
"directly proves" the crime charged or if the other wrongs or bad acts in question
were performed contemporaneously with, and facilitated, the commission of the
charged crime. Id. at 180 (quoting U.S. v. Green, 617 F.3d 233, 248-49 (3d Cir.
2010)).
The trial court must consider whether the evidence is: "relevant to a
material issue; . . . similar in kind and reasonably close in time to the offense
charged; . . . clear and convincing;" and if "[t]he probative value . . . outweigh[s
A-5554-18 36 the] . . . prejudice." Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover,
Balancing the Presumption of Guilt & Innocence: Rules 404(b), 608(b), &
609(a), 38 Emory L.J. 135, 160 (1989) (footnote omitted)).
In performing its analysis under prong four, the court must consider
whether the other-crimes evidence is necessary to prove the fact in dispute or
whether other, less prejudicial evidence could be used to prove the same fact.
State v. Stevens, 115 N.J. 289, 303 (1989). "Nevertheless, some types of
evidence, such as evidence of motive or intent, 'require a very strong showing
of prejudice to justify exclusion.'" State v. Green, 236 N.J. 71, 84 (2018)
(quoting State v. Garrison, 228 N.J. 182, 197 (2017)). Accord State v. Castagna,
400 N.J. Super. 164, 180 (App. Div. 2008) ("greater leeway is given when the
evidence is proffered on the issue of motive").
Where other bad acts evidence is deemed admissible, the trial court should
sanitize the evidence if appropriate, and issue a limiting instruction to the jury,
both when the evidence is admitted and in the final charge. Green, 236 N.J. at
84. "[T]he court must not only caution against a consideration of [N.J.R.E.
404(b)] evidence for improper purposes, it must through specific instruction
direct and focus the jury's attention on the permissible purposes for which the
evidence is to be considered." State v. G.S., 145 N.J. 460, 472 (1996).
A-5554-18 37 The trial judge carefully considered the N.J.R.E. 404(b) evidence and
concluded the State met the Cofield factors for admissibility. The TRO was
clearly intrinsic to the crimes charged, and it was impossible for the State to
present its case without referencing the May 9, 2017 incident and the fact Booker
obtained a restraining order against defendant.
The probative value outweighed the prejudice to defendant because this
evidence helped prove defendant's motive and intent. We have upheld the
admission of restraining order and domestic violence evidence in similar
circumstances. See Castagna, 400 N.J. Super. at 178-86 (holding that restraining
order evidence was admissible as to the defendant's motive to kill victim); State
v. Amodio, 390 N.J. Super. 313, 329-31 (App. Div. 2007) (finding restraining
order evidence admissible as to motive, and no error in court's limiting
instruction). Cf. State v. Nance, 148 N.J. 376, 387-90 (1997) (holding that
evidence of the defendant's jealousy was relevant and admissible to prove
motive for murder); State v. Vargas, 463 N.J. Super. 598, 604, 607-18 (App.
Div. 2020) (holding that the defendant's prior threat that "if you can't be with
me, then you can't be with anyone," was admissible under N.J.R.E. 404(b) as
relevant to his state of mind, motive and intent to kill victim); State v. Baluch,
341 N.J. Super. 141, 191-93 (App. Div. 2001) (finding evidence of past domestic
A-5554-18 38 abuse of victim was relevant to establish motive, intent, and state of mind to
harm victim and negate defense theory); State v. Angoy, 329 N.J. Super. 79, 85-
88 (App. Div. 2000) (finding no error in admitting evidence of the defendant's
prior assault of victim/girlfriend, in trial for her murder); State v. Engel, 249
N.J. Super. 336, 372-74 (App. Div. 1991) (holding that evidence of the
defendant's prior acts of violence and threats against victim was properly
admitted on issue of motive).
The restraining order evidence was "prejudicial in the way that all highly
probative evidence is prejudicial: because it tends to prove a material issue in
dispute." Rose, 206 N.J. at 164. However, it was not "unfairly prejudicial,"
because it did not "create[] a significant likelihood that the jury would convict
defendant on the basis of the uncharged misconduct because he was a bad
person, and not on the basis of the actual evidence adduced against him." Ibid.
The trial judge's limiting instruction was timely, correct, and adequately
instructed the jury on the limited use of the restraining order evidence. "[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.
A-5554-18 39 C.
Defendant argues the trial judge committed reversible error by permitting
the State to introduce the surveillance videos into evidence without proper
authentication. He argues Detective Abromaitis could not authenticate the
videos. Furthermore, the detective was allowed to narrate the videos for the
jury. Regardless, he asserts the videos were exculpatory because the time
stamps on the clips shown to the jury prove he could not have committed the
murder and be on the surveillance videos at the same time.
During a pre-trial hearing, the judge ruled videos from the businesses near
the Routes 1 and 18 interchange were "highly relevant" because they showed a
vehicle fitting the description of defendant's traveling what "would be a direct
route between the" murder scene and defendant's home. At trial, the State
presented testimony from the gas station employee whose station was at the
interchange. He testified the gas station had cameras recording twenty-four
hours per day, and the footage was from his station's cameras. He explained the
time stamp on the video was off by one hour because of daylight savings time.
Over defense counsel's objection, the trial judge found the employee had
authenticated the video.
A-5554-18 40 The State further adduced testimony from the manager of a carwash also
located in the interchange. He likewise explained the business's practice of
operating cameras and authenticated the video, also explaining a time stamp
discrepancy due to daylight savings. Notably, he was shown a clip bearing a
time stamp of 4:10 a.m. The trial judge ruled the witness authenticated the video
over the defense's objection.
The State offered Detective Abromaitis's testimony after the videos were
authenticated. He told the jury police identified a vehicle fitting the description
of defendant's driving past the businesses toward defendant's home, "which is
right off of Route 18 . . . in Piscataway about ten minutes after the suspect is
seen leaving" Olarerin's home. The defense did not object to this testimony. An
objection only came when the detective began to describe the car, and the judge
sustained the objection mid-sentence before the detective could articulate an
opinion regarding what the video depicted.
Under N.J.R.E. 901, to satisfy "the requirement of authenticating or
identifying an item of evidence, the proponent must present evidence sufficient
to support a finding that the item is what its proponent claims." This rule does
not require "absolute certainty or conclusive proof." State v. Mays, 321 N.J.
Super. 619, 628 (App. Div. 1999). Courts generally play the role of screener,
A-5554-18 41 leaving to the jury a more intense review of the evidence. Konop v. Rosen, 425
N.J. Super. 391, 411 (App. Div. 2012).
Pursuant to these principles, we have no difficulty concluding the videos
were properly authenticated by the gas station employee and the carwash
manager. Defendant's arguments to the contrary lack merit.
Further, the evidence showed the murder was committed between 4:11
and 4:13 a.m. The carwash manager was shown a clip from 4:10 a.m., but not
for purposes of explaining that defendant's car was depicted in frame. That task
was left to Detective Abromaitis, who testified the vehicle appeared in the frame
at 4:23 a.m., which made it entirely feasible for defendant to commit the murder
and later be seen driving by the interchange.
Defendant's argument Detective Abromaitis was permitted to narrate the
video lacks merit. Our Supreme Court recently stated "an investigator who has
carefully reviewed a video recording can . . . offer lay witness testimony. By
drawing attention to key details that a jury might otherwise overlook—as is the
case, for example, with a potentially confusing, complex, or unclear recording—
such evidence can be particularly helpful." State v. Watson, 254 N.J. 558, 569
(2023). However, "the rules of evidence do not allow for continuous, running
commentary on video evidence by someone who has merely studied a
A-5554-18 42 recording." Ibid. As we noted, there was no such improper narration here. The
detective's testimony was cut short, and there was no "continuous, running
commentary" of the sort disapproved in Watson.
D.
Defendant asserts Detective Abromaitis offered an improper opinion
about who the killer was, which usurped the jury's factfinding role and deprived
him of a fair trial. He claims the inadmissible opinion testimony came in the
form of the detective's statements regarding the suspects who were ruled out,
and that all evidence pointed to defendant.
Defendant's assertion the State elicited testimony regarding the ruling out
of other suspects is unsupported by the record. Booker identified defendant as
a suspect in Olarerin's murder from the start of the investigation, and the police
investigation uncovered evidence supporting defendant's guilt. The evidence of
other possible suspects was adduced during the defense's cross-examination of
Detective Abromaitis to raise doubt about the thoroughness of the police
investigation. Indeed, the defense asked the detective whether a third party
might have been responsible for Olarerin's death, noting Booker's relationships
with men other than Olarerin, as well as Olarerin's business dealings. This
prompted the State to rebut those defense theories by questioning Detective
A-5554-18 43 Abromaitis about the extent of the police investigation, including Booker's other
relationships and Olarerin's business and finances. Detective Abromaitis then
told the jury the other men were ruled out because: Booker and one of her male
friends were in Elizabeth at the time of the murder; another of Booker's male
friends had been involved with her in 2015/2016, when she was living in
Plainfield, and had not been in contact with her in 2017; and the police found a
third male friend's communications with Booker failed to show he had any issue
with Olarerin.
Notably, the defense did not object to this testimony. We decline to find
it was reversible error considering it was invited by the defense. See State v.
Kemp, 195 N.J. 136, 155-56 (2008) (finding the doctrine of invited error barred
the defendant from contesting on appeal testimony he agreed to at trial) .
Defendant argues the following colloquy between the State and Detective
Abromaitis during the redirect testimony constituted reversible error:
"[Prosecutor]: Okay. And when you continue[d] with your investigation what
did you find when you continued to look into [defendant]'s phone? [Detective
Abromaitis]: Again, all signs and facts pointed toward [defendant] committing
this murder."
A-5554-18 44 For strategic reasons, defense counsel waited until the detective was off
the witness stand to object, because the defense did not believe the prosecutor
intentionally elicited the testimony, and the defense did not want to highlight it.
The judge responded she would have sustained the objection if it was timely
made and instructed the jury that it, not the detective, was to decide guilt. The
judge and counsel agreed she would instruct the jury accordingly, and after a
brief charge conference and before the jury left for the day, the judge gave the
following instruction:
One other instruction I need to give you is, that the decision . . . of whether the State has proven . . . defendant guilty beyond a reasonable doubt is your decision. And the opinions that may have been given by any particular witness in this case as to whether the State and whether the evidence points in a particular direction is not something that you would consider. It is your decision as to whether . . . defendant has [been] proven guilt[y] beyond a reasonable doubt.
In the final charge, the judge repeated this instruction and instructed the jury on
third-party guilt.
There is no doubt police are not permitted to opine on a defendant's guilt,
which is the ultimate question for the jury to decide. State v. Frisby, 174 N.J.
583, 593-94 (2002). However, we are unconvinced the detective's testimony
here constituted reversible error. At the outset, we note the problematic
A-5554-18 45 testimony came in on re-direct and followed testimony the defense elicited
regarding why the State ruled out certain individuals. Moreover, the judge
instructed the jury following the detective's testimony and again at the end of
the case about its factfinding role, which cured any prejudice created by the
redirect testimony.
E.
Defendant contends the trial judge erred by admitting the letter Detective
Abromaitis received from the MCACC, because the State presented no
competent evidence defendant wrote the letter or addressed the envelope. The
judge also erred in permitting Booker to testify she recognized defendant's
handwriting.
Prior to trial the judge ordered defendant to provide a buccal swab and a
handwriting exemplar. When defendant objected to the State's attempt to admit
the letter, the judge held an N.J.R.E. 104 hearing. At the hearing, Detective
Abromaitis explained the letter was signed by a "D. Smith," yet there was no
inmate by that name at the MCACC. Further, the inmate number on the letter
was one off from defendant's; the envelope contained defendant's DNA; the
letter's contents were consistent with information found on defendant's
cellphone, namely, misspelling "cousin" the same way and bearing names also
A-5554-18 46 saved to the phone's contacts; the letter-writer appeared to have knowledge of
the crime that was not publicly known; the zip code on the letter was not the zip
code of the jail, but a zip code defendant used on other letters; and the
handwriting appeared consistent with the handwriting on letters found in
defendant's vehicle.
At trial, the State established Booker was familiar with defendant's
handwriting. She testified she observed his handwriting on documents when
they lived together, and she was able to identify the handwriting from the
jailhouse letter as defendant's.
A handwriting expert was not necessary because a jury can compare a
sample of a defendant's handwriting with a document purporting to be written
by the defendant, without the necessity of expert testimony. State v. Carroll,
256 N.J. Super. 575, 593-98 (App. Div. 1992). Witnesses familiar with the
defendant's handwriting may authenticate it. State v. Marroccelli, 448 N.J.
Super. 349, 365 (App. Div. 2017). For these reasons, Detective Abromaitis
could testify the handwriting on the letter resembled items found in defendant's
car, and Booker could authenticate defendant's handwriting given her lengthy
relationship with him.
A-5554-18 47 Given the totality of the circumstances, we discern no abuse of discretion
in the trial judge's decision to admit the letter into evidence. The State adduced
sufficient direct and circumstantial evidence to prove defendant wrote the letter.
The probative value of the letter outweighed any prejudice to defendant.
IV.
An issue raised prior to trial involved how best to sanitize the fact
defendant was in jail between 2015 and 2017 to prevent the jury from holding
defendant's criminality against him. The trial judge's solution was to advise the
jury defendant had relocated during this time and returned.
On appeal, defendant argues the sanitization failed. He asserts "the
allusions to [defendant] 'going away' and 'coming back' invited prejudicial
speculation that [he] was in prison for the domestic abuse of Booker." He asserts
the two-year gap between the break-up with Booker in 2015 and his return into
her life in 2017 was irrelevant.
This issue was the subject of substantial discussion between the court and
counsel. The State sought the judge's guidance on the issue because it was
concerned about explaining to the jury why the parties' separation in 2015 was
so abrupt. Although the defense disagreed the separation was abrupt, it
suggested the judge instruct the jury defendant had moved or was not in the area.
A-5554-18 48 The trial judge suggested defendant's absence be sanitized by stating he
had "relocated," which "sounds like he moved for business or work as opposed
to . . . being forc[ibly] relocated." After some debate between counsel whether
the jury should know that defendant was unable to communicate with Booker
during his absence, the judge suggested that reference only be made to defendant
having temporarily relocated, which could be for many reasons. Both parties
accepted the compromise suggested by the judge. Defense counsel commented
the compromise was "vague" enough not to draw the jury's suspicions about
defendant's absence. The defense requested there be no limiting instruction that
could "draw attention" to the issue.
At trial, the reference to defendant's absence by the State was fleeting.
Defense counsel objected when the State's questioning of Booker suggested
defendant had been involuntarily relocated. The trial judge reminded the State
about the discussions surrounding the compromise, and the prosecutor moved
on. Defense counsel also objected to a reference during the State's summation
that defendant was "coming home" to the extent it suggested "he does not have
a home." However, the court overruled the objection, finding that the State's
reference was consistent with the pretrial rulings and the testimony about
defendant's relocation.
A-5554-18 49 We are unpersuaded there was an abuse of discretion or any prejudice to
defendant. The State never referred to defendant's incarceration, and its fleeting
references to his relocation and return did not imply he was incarcerated. The
relocation compromise suggested by the trial judge was neutral. Defendant
could have relocated and returned for personal, family, or work reasons.
Further, the judge instructed the jury the comments made by counsel were
not evidential and the case had to be decided based on the evidence presented.
She charged the jury that "speculation, conjecture and other forms of guessing
play no role in the performance of [their] duty." The record does not convince
us the jury did not follow these instructions.
On the fourth day of trial, the judge informed counsel "someone from the
prosecutor's office observed [juror eleven] consuming a flight of whiskey during
the lunch hour one of the days during the trial last week, which is concerning ."
The judge questioned court officers, but none of them observed any indications
the juror was intoxicated.
The judge intended to speak with the juror and advise him not to consume
alcohol during the trial, but the prosecutor and defense counsel agreed the better
course would be to address the jurors together, rather than single out the juror.
A-5554-18 50 Defense counsel suggested the judge tell the jurors "there was an issue in another
courtroom, so we're generally advising everybody" not to consume alcohol
during lunch. The defense reasoned this would not leave the jurors to wonder
which one of them was drinking at lunch.
The judge agreed to proceed in the manner suggested by defense counsel.
Prior to the lunch break the judge advised the jury as follows:
One of my colleagues reported that a juror involved in one of their cases was consuming alcohol during the lunch hour. And so we're all reminding everyone that that's inappropriate to do during the course of a trial. I presume that no one here would imbibe in that way during the course of the trial, because it could create some challenges with regard to your focus.
Before summations the judge told counsel that at one point during the trial,
juror eleven had not looked at evidence as it was passed around. The day before,
the juror appeared to have his eyes closed, but the judge did not know if he had
fallen asleep. Defense counsel responded: "We're fine if you want to make him
an alternate." The State agreed that "if it's between excising and alternate, let's
go with an alternate."
Consistent with this plan, juror eleven was made an alternate. Neither he
nor the other alternate participated in the deliberations or the verdict.
A-5554-18 51 A trial judge has discretion whether to interview a juror whose conduct is
problematic. State v. Mohammed, 226 N.J. 71, 89-90 (2016); State v. Reevey,
159 N.J. Super. 130, 133-34 (App. Div. 1978). Here, the trial judge went beyond
questioning the juror and took corrective action by issuing a jury instruction
regarding the consumption of alcohol and removing the juror from the
deliberations in a non-prejudicial manner.
We discern no error in the way the trial judge handled the problems with
juror eleven. Moreover, defendant cannot argue error on appeal when he invited
the solutions employed by the judge to deal with the juror at trial. Regardless
of whether we consider this to be invited error, there simply was no miscarriage
of justice.
VI.
Defendant argues his conviction for unlawful possession of a handgun
should be vacated because the State failed to present evidence he did not have a
permit to possess a firearm. He asserts the trial judge erred when she failed to
grant his motion for acquittal on this charge. Defendant claims we should acquit
him on the other convictions as well and grant him a new trial because the verdict
was against the weight of the evidence.
A-5554-18 52 The test on a motion for judgment of acquittal is "whether the evidence
viewed in its entirety, and giving the State the benefit of all of its favorable
testimony and all of the favorable inferences which can reasonably be drawn
therefrom, is such that a jury could properly find beyond a reasonable doubt that
the defendant was guilty . . . ." State v. D.A., 191 N.J. 158, 163 (2007). This
standard "gives full play to the responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts." Jackson v. Virginia, 443 U.S. 307,
319 (1979), superseded by statute, Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. "Once a defendant has been
found guilty of the crime charged, the factfinder's role as weigher of the
evidence is preserved through a legal conclusion that upon judicial review all of
the evidence is to be considered in the light most favorable to the prosecution."
Ibid.
In reviewing the record, "[n]o distinction is made between direct and
circumstantial evidence." State v. Tindell, 417 N.J. Super. 530, 549 (App. Div.
2011). Moreover, "[i]nferences need not be established beyond a reasonable
doubt." Ibid. Instead, "a jury may draw an inference from a fact whenever it is
more probable than not that the inference is true . . . ." State v. Brown, 80 N.J.
A-5554-18 53 587, 592 (1979). "Nevertheless, the State's right to the benefit of reasonable
inferences should not be used to shift or lighten the burden of proof , or become
a bootstrap to reduce the State's burden of establishing the essential elements of
the offense charged beyond a reasonable doubt." Ibid. On appeal, we apply the
same legal standard as the trial court, performing a de novo review of the
evidence. State v. Fuqua, 234 N.J. 583, 590 (2018).
Pursuant to these principles, we discern no error in the denial of
defendant's motion to acquit on the unlawful possession charge. The trial judge
correctly found the State presented enough evidence to allow the jury to infer
defendant lacked a gun permit. Likewise, the judge charged the jury it could
infer from the facts presented defendant did not have a permit. The record
supports defendant's conviction because there was no evidence presented
defendant had a permit, thereby allowing an inference that he lacked one.
Although defendant's motion for acquittal focused on the gun charge, the
trial judge denied it as to all charges. She found "with regards to the balance of
the charges, I think assuming all inferences [in] favor of the State, which is a
standard that the [c]ourt has to apply at this point, there is sufficient evidence to
give the case to the [j]ury."
A-5554-18 54 The record supports the judge's decision. There was ample evidence to
show defendant purposely murdered Olarerin, in violation of N.J.S.A. 2C:11-
3(a)(1). The second-degree burglary offense was proved because there was
evidence defendant surreptitiously entered Olarerin's home and purposely shot
him, in violation of N.J.S.A. 2C:18-2(a)(2) and (b)(1). The second-degree
possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-
4(a)(1), was likewise established by the facts presented.
Based on the substantial evidence presented by the State and according it
all favorable inferences, it is clear the jury could find beyond a reasonable doubt
that defendant was guilty of the offenses charged. For these reasons, the trial
judge properly denied a judgment of acquittal.
Defendant did not move for a new trial. Regardless, a new trial may be
granted where "it clearly appears that there was a miscarriage of justice under
the law." State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1993) (internal
quotation marks omitted). A new trial should not be granted "unless, having
given due regard to the opportunity of the jury to pass upon the credibility of the
witnesses, it clearly and convincingly appears that there was a manifest denial
of justice under the law." R. 3:20-1. Our review of the record does not convince
A-5554-18 55 us there was either a miscarriage of justice or a manifest denial of justice
warranting a new trial.
VII.
Finally, defendant argues his "sentence was manifestly excessive because
the trial court based the sentence on pending criminal charges as well as double-
counting aggravating factors." He asserts he was punished with a sentence that
is tantamount to life imprisonment because he declined to plead guilty and
instead proceeded to trial.
The trial judge found the following aggravating factors: three, the risk
defendant would commit another crime, N.J.S.A. 2C:44-1(a)(3); six, defendant's
prior criminal record, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter
defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). She
concluded the aggravating factors substantially outweighed the non-existent
mitigating factors.
The trial judge noted this was defendant's sixth conviction, and recited his
prior convictions, which included aggravated assault on a law enforcement
officer, escape, and armed robbery. Defendant had three pending charges—
including certain persons, stalking, and filing a false report offenses—all of
which arose from the investigation and prosecution of the present charges. The
A-5554-18 56 judge also recounted defendant's municipal convictions, a domestic violence
FRO issued against him, and his juvenile adjudications.
The judge gave all the aggravating factors "great weight." As to
aggravating factor three, she found "there is a very strong risk that this defendant
will commit another crime." She noted: defendant had "led a life of crime . . .
first as a juvenile offender, and continuing throughout his adult life"; he showed
"no signs of remorse," and "[o]nly an attitude of someone who fails to accept
the fault for taking another human life"; he "acted with clear premeditation
demonstrating that he is a cold[-]blooded killer and has complete disregard for
the value of another human life"; and "committed this crime in violation of a
domestic violence [TRO], demonstrating once again that he has absolutely no
respect for the law . . . ."
The judge found aggravating factor six applied "not only due to the extent
of his prior criminal history," but because defendant committed the murder and
other offenses while on bail, awaiting sentencing for second-degree robbery.
She noted defendant was charged with a new offense, the false reporting of a
crime, while incarcerated in advance of trial, but did not consider it as part of
the sentencing because defendant enjoyed the presumption of innocence.
A-5554-18 57 The judge found aggravating factor nine because "[i]t seems that the only
way to deter . . . defendant from committing crimes is to keep him in jail." She
noted defendant was undeterred by Booker's attempts to dissociate from him,
the TRO she obtained, or his prior convictions. The judge concluded "the kind
of ethical consci[ence] that pr[e]vents good and law[-]abiding people from
committing the irreparable and dreadful act of killing another human being does
not exist in [defendant]." And "[a]s for general deterrence, the public needs to
know that there are consequences for taking another life, and those
consequences are substantial."
The judge rejected defendant's argument for mitigating factor eight, that
the circumstances of his offense were unique and unlikely to recur, N.J.S.A.
2C:44-1(b)(8). She found "the severe nature of this crime, and . . . defendant's
complete and utter disregard for the law and the value of a human life,
[convinced her] the obsessive and evil nature of his behavior still lurks beneath
the surface based upon his outward demeanor and his continued denials."
Defendant argued for mitigating factor eleven, that imprisonment would
entail excessive hardship, N.J.S.A. 2C:44-1(b)(11), because he was in a
wheelchair and "[b]eing medically fragile in the prison system . . . put him at
higher risk than other people who are incarcerated." The State argued defendant
A-5554-18 58 was attempting to manipulate the system by claiming he had back problems,
even though in the presentence report, defendant reported good physical and
mental health. The judge rejected this mitigating factor because defendant
reported good health and could receive medical treatment, including back
surgery, in prison.
Defendant also argued for mitigating factor twelve, defendant's
willingness to cooperate with law enforcement authorities, N.J.S.A. 2C:44-
1(b)(12). Apparently, defendant had offered to cooperate in a separate matter
in Essex County. The judge stated: "I think that the [c]ourt is aware of those
facts, to the extent that they are applicable here," and offered to hear them at
sidebar. Although the sentencing transcript notes the discussion was
indiscernible, the record shows defense counsel conceded the applicability of
mitigating factor twelve was questionable. The State noted it had spoken to its
counterpart in Essex County, and defendant's information had not been of use.
The judge rejected mitigating factor twelve.
Defendant argued the court should impose a thirty-year sentence in
accordance with the State's pretrial offer. The judge declined, noting she was
not bound by the offer and had to sentence defendant in accordance with the
law. She concluded "it is clear that the minimum sentence of [thirty] years is
A-5554-18 59 completely inappropriate, because of the substantial outweighing of the
aggravating factors."
Sentencing decisions are discretionary in nature. State v. Cuff, 239 N.J.
321, 347 (2019). Therefore, we review them for an abuse of discretion. State
v. Jones, 232 N.J. 308, 318 (2018). We defer to the sentencing court's factual
findings and should not "second-guess" them. State v. Case, 220 N.J. 49, 65
(2014).
"To facilitate meaningful appellate review, trial judges must explain how
they arrived at a particular sentence." Id. at 65. We will reverse a sentence
where: the findings of fact on the aggravating and mitigating factors were not
based on competent and credible evidence in the record; the court incorrectly
applied the sentencing guidelines enunciated in the criminal code; and the
application of the facts to the law constituted such an error of judgment as to
shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (1984).
Pursuant to these principles, we discern no error in the trial judge's
consideration of the aggravating factors and mitigating factors. The judge did
not double-count the elements of the murder offense by noting that defendant's
crimes were premeditated when she was considering aggravating factor three.
An "emotional murder" and a "cold[-]blooded killing," constitute purposeful
A-5554-18 60 murder under the statute. See N.J.S.A. 2C:11-3(a)(1). See also State v. Gerald,
113 N.J. 40, 149 (1988) (rejecting "homogeniz[ing] distinctly different states of
criminal culpability"). Defendant's conduct was clearly purposeful. The trial
judge appropriately considered defendant's risk of committing another offense
when she noted the distinction between "emotional murder" and a "cold[-]
blooded killing." His remaining arguments concerning the aggravating and
mitigating factors, and the sentencing in general, lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed in A-5554-18 and in A-3894-19.
A-5554-18 61
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