NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1404-23
STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
MICHAEL ROGERS, a/k/a MICHEAL ROGERS and MICHAEL RODGERS,
Defendant-Appellant.
_______________________
Submitted March 3, 2026 – Decided September 3, 2026
Before Judges Gooden Brown and Torregrossa-
O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 21-08-0534.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the briefs).
William A. Daniel, Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Following a jury trial, defendant Michael Rogers was convicted of murder and weapons offenses and sentenced to an aggregate term of sixty years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The charges stemmed from the fatal shooting of Antwoine Thompson while he was seated in the driver's seat of a parked car. The State's primary evidence was surveillance footage capturing the incident, an undated photo posted on defendant's girlfriend's Facebook page depicting defendant wearing a sweatshirt resembling the one worn by the suspect on the surveillance video, and cell phone data. Fingerprint and DNA evidence adduced at trial either excluded defendant or was inconclusive. Defendant was arrested seven weeks after the homicide.
On appeal, defendant raises the following Points for our consideration:
POINT I
THE COURT ERRED IN ADMITTING AN UNDATED PHOTOGRAPH DEPICTING DEFENDANT IN A SWEATSHIRT RESEMBLING THE ONE WORN BY THE SUSPECT.
POINT II
THE COURT ERRED IN FAILING TO FIND THAT THE STATE VIOLATED THE SEQUESTRATION ORDER, AND CONSEQUENTLY, IN FAILING TO GRANT A MISTRIAL OR ANY OTHER REMEDY.
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POINT III
THE MATTER MUST BE REMANDED FOR A NEW SENTENCING HEARING BECAUSE DEFENDANT WAS DENIED HIS RIGHT OF ALLOCUTION.
POINT IV
THE MATTER MUST BE REMANDED FOR A NEW SENTENCING HEARING BECAUSE THE COURT MISUNDERSTOOD THE SENTENCE FOR MURDER, FAILED TO GIVE WEIGHT TO DEFENDANT'S YOUTH UNDER MITIGATING FACTOR [FOURTEEN] OR HIS MENTAL HEALTH UNDER MITIGATING FACTOR [FOUR], AND IS EXCESSIVE.
A. The Court Erred In Assigning A Presumptive Term For Murder.
B. The Court Failed To Give Any Weight To [Defendant's] Youth Under Mitigating Factor [Fourteen].
C. The Court Failed To Find Mitigating Factor [Four].
D. Individually And Cumulatively, The Sentencing Errors Warrant A Remand For Resentencing.
POINT V
THE RESENTENCING HEARING SHOULD BE HELD BEFORE A DIFFERENT JUDGE BECAUSE THE TRIAL JUDGE DID NOT FIND DEFENDANT'S YOUTH UNDER MITIGATING FACTOR [FOURTEEN] OR HIS MENTAL IMPAIRMENTS
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UNDER MITIGATING FACTOR [FOUR] DESPITE COMPETENT, CREDIBLE EVIDENCE IN THE RECORD SUPPORTING BOTH FACTORS.
Based on our review of the record and the applicable legal principles, we affirm the convictions, but agree the matter must be remanded for resentencing because defendant was not afforded his right of allocution.
I.
Defendant was charged in a three-count Union County indictment with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count one); second- degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count three). We summarize the facts from the evidence presented at the nine-day trial that occurred between April 26 and May 16, 2023, during which the State presented eight civilian and ten law enforcement witnesses. Defendant elected not to testify and produced no witnesses.
Elizabeth Police Officer Daniel Mooney testified that at approximately 2:18 p.m. on April 26, 2021, he was dispatched to Second Street in downtown Elizabeth on a report of a shooting. Upon arrival, he discovered the victim, later identified as Antwoine Thompson, "laying on the ground" just outside an open door of "a red Ford" vehicle. Mooney testified Thompson had been shot
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multiple times.
In a subsequent autopsy, forensic pathologist Junaid Shaikh determined Thompson sustained "six" gunshot wounds to "the chest," "left hand," "right lower extremity," "right thigh," and "left upper chest." According to Shaikh, there was "no evidence of close range firing" in any of the gunshot wounds and "two projectiles" were recovered during the autopsy. Union County Police Sergeant Matthew Schaible testified the two projectiles removed during the autopsy and the four found in Thompson's car came from the same gun.
Surveillance footage recovered from the scene followed a masked suspect wearing a black sweatshirt with Calvin Klein insignia and grey pants with a light-colored strip going down the legs. The suspect first entered a convenience store where he engaged in a transaction with the cashier and then left. As the suspect walked along the sidewalk, he approached a red sedan parallel parked on the street, pulled out a handgun, and shot through the passenger side window at Thompson, who was sitting in the driver's seat. Thompson exited the car and attempted to run away.
The shooter fled in a different direction, and surveillance footage tracked his path until he entered a house located on Pine Street. A different man dressed in a light-colored sweatsuit was depicted briefly exiting and then re-entering the
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same house. Several minutes later, a dark gray SUV pulled up in front of the house. A man dressed in the same clothing as the suspect but without the mask exited the house and entered the SUV.
Several occupants of the Pine Street residence testified for the State, including Paulette Jones and her son Raquan Moore. 1 Moore confirmed defendant, whom he considered "a little brother," had been at the house on April 26. He recounted calling defendant a Lyft 2 so defendant could get to "his father['s] house." Moore wore "gray sweatpants and [a] hoodie" that day, and remembered defendant was wearing "a mask."
The Lyft driver, Paul Matthew Piquero, "remember[ed] picking up a Lyft passenger" on Pine Street in Elizabeth on April 26. He recalled receiving a "ride request" at 2:25 p.m. and picking up the passenger "[t]en minutes after" in a 2019 grey Toyota Rav4. Piquero testified when he arrived at Pine Street, he was waived down by a "[d]ark skinned . . .[, p]retty tall . . . heavyset" man wearing "gray sweatpants and a gray sweater," who told Piquero, "[W]ait here, I will go
1 The police searched the house within hours of the shooting. They found a loaded gun in the possession of one of Moore's friends, but later released him upon determining the gun was not the murder weapon. 2 Moore referred to calling defendant an Uber. It was later revealed it was, in fact, a Lyft.
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get the actual guy that was going to go."
The man then "went inside the house" and "another gentleman" came out and got inside his car. The passenger, who was "dark skinned . . . [with] short hair . . . [and] was wearing . . . dark clothes" but "not wearing a mask," confirmed they were going to Newark, but then asked Piquero to make a "quick pit stop" "to grab clothes from his grandma's house." Piquero identified the passenger and the man who called the Lyft as the two men depicted in the Pine Street surveillance footage.
Piquero testified the passenger gave him directions to the first stop, which was a "partially brick house with a white door," located "around the corner" from the pick-up location. During the ride, the passenger "made a phone call" asking the person on the call to "come down, bring my clothes." When they arrived, a tall lady wearing "a wife beater" with "dre[a]ds" and "tattoos on her face" came up to the car and gave the passenger a "dark color" backpack and white "basketball shoes" through the passenger side window.
Defendant's sister, Jasmine Rogers, corroborated Piquero's testimony.
Although Jasmine,3 who has face tattoos, was not certain about the exact date,
3 We utilize first names to avoid confusion caused by the shared surname and intend no disrespect.
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she remembered defendant calling her on the "house number," telling her he was "staying outside for the night," and asking her to bring him clothes. She recalled defendant arriving at her grandmother's house in a "black" car and hand ing him a backpack with clothes and a pair of sneakers. She recalled her brother was not driving the car.
After the stop, Piquero put the passenger's original destination into his GPS, but the passenger asked Piquero to follow his directions because he could "get [Piquero] out the area faster." Piquero complied. Piquero testified he chatted with the passenger during the ride, who told him "he live[d] in Elizabeth" and was "going to his father's house."
During the ride, the passenger made several phone calls, which Piquero overheard because he spoke on speakerphone. In one conversation, Piquero heard the passenger tell a female he addressed as "Bey" to "come pick me up at my father's house. I don't care if you're at work. Come pick me up."
Piquero also heard the passenger tell a male that "he gave someone an M"
with a "demeanor . . . that said he was proud of it." He told someone else "the hood is going to be the hood and that people are not, people are always going to act, like people in the hood, and that they are not going to snitch on him ." Piquero also heard the passenger say "they are not going to . . . know it's him"
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and "he can't talk about something and . . . he will text him because [his Lyft] driver is here."
Eventually, Piquero dropped the passenger off on Grand Avenue in Newark. The passenger exited the vehicle with the backpack and shoes. Surveillance footage played at trial tracked the Lyft car until it ultimately arrived on Grand Avenue in Newark. Defendant's aunt, Cynthia Henderson, who lived at defendant's father's house on Grand Avenue recalled "r[unning] into" defendant at his father's house around the evening of April 26.
During the investigation, Piquero was shown a six-photo array that included a photograph of defendant. He identified his passenger as someone other than defendant, adding that the other five photos did not resemble his passenger.
The State also presented phone records as part of its case through a PowerPoint presentation shown to the jury. The evidence purported to show that the phone number for the landline where Jasmine resided received a phone call from a phone number that was registered to defendant's girlfriend's mother in Wilkes-Barres, Pennsylvania, at around 2:32 p.m., shortly before the Lyft ride. Cell site location information also showed the phone was utilizing cell towers near Wilkes-Barre the morning before the homicide, near Neffs,
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Pennsylvania and Allentown, Pennsylvania, the afternoon before the homicide, near Dunellen, New Jersey, the evening before the homicide, and near Patterson, New Jersey, and then Elizabeth, New Jersey, the night before the homicide. At the time of the homicide, the phone was utilizing a tower in Elizabeth, near the crime scene, and after the homicide, the phone was connecting with cellphone towers near Grand Street in Newark.
In addition, the State produced an undated photo of defendant from a Facebook profile which was admitted into evidence over defendant's objection. The photo purported to show defendant and his girlfriend, Lisette Torres. In the photo, defendant was wearing a sweatshirt similar to the one worn by the suspect in the surveillance footage. Torres testified the photo was of "[her] and [her] boyfriend." She did not recall when or what year the photo was taken. Torres' s mother, Nilsa Meletiche, also identified the photo as showing "Lisette and Michael," but was unsure when or where the picture was taken.
Michael Tambini, the detective who retrieved the photo off the Facebook account, testified he found the photograph by looking "throughout" the "Facebook profile" of "Lisette Torres" and that the Facebook URL included the name of Torres's son. Tambini testified he "took a screenshot" of the photo "on June 13, 2021." On cross-examination, Tambini admitted the profile was not
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"verified" and that "there [was] absolutely no way on the face of it to tell if the account is, in fact, what it purports to be." Further, he admitted there was no "subpoena" or "court order," nor did he "actually talk to any representative from Facebook." He also admitted there was no metadata on the photo because it was a screenshot.
The jury returned a verdict of guilty on all charges. After sentencing, the judge entered a conforming judgment of conviction on November 14, 2023, and this appeal followed.
II.
In Point I, defendant challenges the admission of the photo that purported to show defendant wearing a sweatshirt similar to the sweatshirt worn by the suspect in the surveillance footage. Defendant argues the photograph was not properly authenticated because there was no testimony as to when the photograph was taken. Defendant asserts the photograph was inadmissible and its introduction was not harmless error because there was no eyewitness testimony identifying him as the shooter.
"We defer to a trial court's evidentiary ruling absent an abuse of discretion." State v. Garcia, 245 N.J. 412, 430 (2021). "We will not substitute our judgment unless the evidentiary ruling is 'so wide of the mark' that it
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constitutes 'a clear error in judgment.'" Ibid. (quoting State v. Medina, 242 N.J. 397, 412 (2020)). "Every mistaken evidentiary ruling, however, will not lead to a reversal of a conviction. Only those that have the clear capacity to cause an unjust result will do so." Ibid.; see also R. 2:10-2.
To be admissible, photographs must be both relevant and authenticated.
See N.J.R.E. 401, 402, 801(e), and 901; see also State v. Hannah, 448 N.J. Super. 78, 88-89 (App. Div. 2016) (noting the standard does not change for social media posts). To be relevant, the photograph must "hav[e] a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401.
Under N.J.R.E. 901, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." The authentication rule "does not require absolute certainty or conclusive proof." State v. Mays, 321 N.J. Super. 619, 628 (App. Div. 1999). "The proponent of the evidence is only required to make a prima facie showing of authenticity." Ibid. (citations omitted). "Once a prima facie showing is made, the [item] is admissible, and the ultimate question of authenticity of the evidence is left to the jury." Ibid.
(citations omitted).
[State v. Brown, 463 N.J. Super. 33, 51-52 (App. Div.
2020).]
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The authentication requirement embodied in N.J.R.E. 901 is "not designed to be onerous." State v. Hockett, 443 N.J. Super. 605, 613 (App. Div. 2016). Indeed, "any person with the requisite knowledge of the facts represented in the photograph . . . may authenticate it." Brown, 463 N.J. Super. at 52 (quoting State v. Wilson, 135 N.J. 4, 14 (1994)). Thus, an authenticator must be able to "verify that the photograph accurately represents its subject." Wilson, 135 N.J. at 14. However, "[t]he person testifying need not be the photographer," nor "even have been present at the time the photograph was taken." Id. at 14-15. Nevertheless, even if a photograph is relevant and authenticated, like any evidence, it can be excluded under N.J.R.E. 403. N.J.R.E. 403(a) permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury."
After Torres and Meletiche testified before the jury that they did not know when the photo was taken, defendant challenged the introduction of the photo arguing their testimony was insufficient to authenticate the photo. The judge determined the photo was relevant under N.J.R.E. 401 but agreed Torres's and Meletiche's testimony, standing alone, was "inadequate" to authenticate it. Therefore, the judge conducted a N.J.R.E. 104 hearing during which Tambini, the detective who retrieved the photo off the Facebook account, testified.
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At the hearing, Tambini testified after "a warrant was secured" to ascertain defendant's whereabouts, he "identified" and "monitor[ed]" Torres's "Facebook account" when he "noticed th[e] photograph posted on the account." Tambini retrieved the photo from Torres's Facebook page on June 13, 2021. According to Tambini, he "scroll[ed] through[] the page," which was "a public account," and saw "various photographs of . . . Torres," "of . . . defendant," of "Torres'[s] children," and of "her birthday." He testified "the URL of the account" included Torres's son's name and "[a]ll the photographs [he] saw" depicted Torres, whom he had met in person in connection with the case. To retrieve the photo, he took "a screenshot from [his] work-issued cell phone." Tambini further testified the Facebook account was still "active" and he had "looked at it" as recently as the day he was testifying.
During cross-examination, Tambini admitted he had "no idea . . . who uploaded th[e] photographs," "if the account [was] actually Lisette Torres['s]" or if "somebody else . . . [was] maintaining her account." He further admitted "[t]here was nothing on that profile that . . . only . . . Torres would know." He acknowledged he did not "submit a subpoena to Facebook" or "have a forensic examination of . . . Torres's phone" and did not have "access to metadata on th[e] photograph" that would tell him "the location," "when a photo was taken," or
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"by what kind of camera." However, on redirect examination, Tambini testified just "[b]efore the trial began," there was a posting telling people the trial was commencing and asking them "to come out and support [defendant]."
In his decision admitting the photo, the judge reasoned:
[T]he testimony from Detective Tambini crosses a threshold for the [c]ourt. The fact that he testified that it was downloaded from her account, that he screenshotted it . . . June 13th[.] . . . As I say, no different than if . . . [a] warrant had been executed and [the sweatshirt itself had been] found. [Then] [t]here's no question that it's properly authenticated. . . . The detective testified he's been tracking that account and it bears the witness's name, the witness who's identified as Ms. Lisette Torres, who identified that as a photograph of her and her boyfriend. He indicated that he has been tracking her account since he became involved in this case.
I think the most significant thing about that coming from her Facebook account, and the key piece of evidence here is that, you know, the State intends to show that that was screenshotted from her Facebook account, her photograph, her and her boyfriend, with her boyfriend wearing a [sweatshirt] that matches or is extremely close to the [sweat]shirt that was worn by the shooter in this case.
When it comes to . . . Detective Tambini's testimony, as to the following of her account, the identifiers on the account, and most particularly, her posting on the day that she was testifying, which is kind of a realtime authentication is what convinces this [c]ourt that the State has met its threshold for just authentication.
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Thus, the judge held Tambini's testimony in conjunction with Torres's and Meletiche's was sufficient to authenticate the photograph.
We discern no abuse of discretion in the judge's admission of the photograph as properly authenticated. "[T]he ultimate object of an authentication is to establish its accuracy or correctness." Wilson, 135 N.J. at 14. Here, the photo purported to show defendant wearing a certain sweatshirt. Torres's and Meletiche's testimony identified the individuals in the photo. Tambini's testimony further established how the photo was retrieved, and provided circumstantial evidence suggesting the photo was posted to defendant's girlfriend's Facebook page, demonstrating "the photograph is an accurate reproduction of what it purports to represent." Ibid. Any further questions as to the photo's authenticity is for the jury to decide. See Konop v. Rosen, 425 N.J. Super. 391, 411 (App. Div. 2012) ("Courts are inclined to assess their role in authentication as that of a screening process[,]" and "will admit as genuine [items] which have been proved prima facie genuine . . . leaving to the jury more intense review of the documents.").
Contrary to defendant's contention, authentication of a photo does not always require testimony identifying when the photograph was taken. In Brown, 463 N.J. Super. at 53, authentication of a video of an alleged arson at a bus stop
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required testimony indicating when the video was taken as the video purported to accurately depict the incident on the day in question. Similarly, in Hockett, 443 N.J. Super. at 614-16, authentication of a photo of a witness allegedly using drugs required testimony indicating when the photo was taken as the photo purported to show the witness using drugs shortly before her testimony and was introduced with the purpose of impeaching her statement that she had been clean.
In contrast, here, the photo purported to show defendant owned a similar sweatshirt. Whether the sweatshirt was owned before or after the shooting may have been an issue for cross-examination but was not relevant for authenticity purposes. Therefore, we discern no basis to intervene.
III.
In Point II, defendant argues the State violated the sequestration order entered in the case at its request by "directing two of [its] witnesses to discuss the case during trial in order to gather more information and then recalling one of the witnesses to testify about the newly developed evidence." Defendant contends once the witnesses initiated a conversation, "they were unlikely to have limited themselves to the issue that prompted the conversation," leading to "a broader discussion of the case." Thus, according to defendant, the judge's failure
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to find a sequestration order violation and grant a mistrial or other remedy constituted reversible error. We are unpersuaded.
Trial courts have discretion to order the sequestration of witnesses. State v. Miller, 299 N.J. Super. 387, 399 (App. Div. 1997). Under N.J.R.E. 615, "[a]t the request of a party or on the court's own motion, the court may, in accordance with law, enter an order sequestering witnesses." The purpose of sequestration is to prevent prospective witnesses from hearing other witnesses testify so that a witness's testimony is not shaped or tailored by another witness's testimony. State v. Williams, 404 N.J. Super. 147, 160 (App. Div. 2008). A witness who violates a sequestration order may be barred from giving testimony at trial. State v. Dayton, 292 N.J. Super. 76, 89 (App. Div. 1996). Still, "[a]bsent a clear showing of prejudice[,] an inadvertent violation of a sequestration order does not trigger automatic exclusion of the witness'[s] testimony." Williams, 404 N.J. Super. at 160.
When it appears that a violation of a sequestration order has occurred, a trial judge should promptly conduct a voir dire out of the presence of the jury in order to ascertain the nature and extent of [the] violation. State v. Tillman, 122 N.J. Super. 137, 143 (App. Div. 1973). In the extraordinary case where the violation has resulted in actual prejudice to the defendant, and the prejudice
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cannot be dissipated by other remedial action, the trial court, in its discretion, may grant a mistrial or exclude the testimony of the offending witness. Ibid. Where, however, it does not clearly appear that the violation of the sequestration order possesses a potential for prejudice, no such drastic remedial action is required. Id. at 144.
Here, defendant moved for a mistrial arguing the prosecutor violated the sequestration order by requesting Tambini to communicate with Mooney about his availability to testify and his height. Because Mooney appeared on the surveillance footage presented to the jury, and the individuals on the footage were distorted, the State sought Mooney's height so the jury could compare it to defendant's. In rejecting defendant's request for a mistrial, the judge determined the sequestration order was not violated and Tambini, as "the case detective," was "simply conducting another investigative step."
When defendant later renewed his request for remedial action in connection with the purported sequestration order violation, including a jury charge that would allow the jury to consider the alleged violation in assessing Tambini's credibility, the judge denied the request, prohibited defendant from questioning Tambini about the alleged violation, and referred back to his earlier
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decision determining there was no sequestration order violation. We find no fault with the judge's ruling.
The purpose of sequestration is to ensure that each prospective witness's testimony is based only upon the witness's own knowledge. Miller, 299 N.J. Super. at 399. For example, in Tillman, we held that when "the prosecutor[] had gone over the facts of the case and the police report with [a witness] in the presence of [witnesses, including] the arresting officer, his investigator, his assistant, and another witness who was to testify the next day," "[t]here was a real potential of prejudice to defendant" as it was clear that the "[w]itnesses . . . could well be influenced by what they had heard concerning the earlier testimony." 122 N.J. Super. at 142-43. This was especially concerning because their testimony pertained to a "sharp[ly] dispute[d] . . . issue." Ibid.
Here, the extent of the conversation was the height and availability of a witness. Neither Mooney nor Tambini relayed fact testimony about issues that were sharply disputed. Accordingly, we are satisfied the judge did not abuse his discretion in finding no violation and declining to fashion a remedy.
IV.
In Point III, defendant argues he was denied his right to allocution. The State agrees and concedes a remand for resentencing is necessary.
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Rule 3:21-4(b) provides:
Sentence shall not be imposed unless the defendant is present or has filed a written waiver of the right to be present. Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment. The defendant may answer personally or by his or her attorney.
"The right of allocution allows a criminal defendant 'to present to the [sentencer] his plea in mitigation' because, as courts have recognized, '[t]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.'" State v. Jones, 232 N.J. 308, 319 (2018) (alterations in original) (quoting State v. Zola, 112 N.J. 384, 428 (1988)). "Thus, when a trial court fails to afford a defendant the opportunity to make an allocution, in violation of Rule 3:21-4(b), the error is structural and the matter must be remanded for resentencing without regard to whether there has been a showing of prejudice." Jones, 232 N.J. at 319.
Because defendant was not afforded his right of allocution, we reverse the sentence and remand for resentencing. Inasmuch as the resentencing hearing requires a reweighing of the aggravating and mitigating factors, see State v. Randolph, 210 N.J. 330, 349-50 (2012), we need not address defendant's other sentencing arguments raised in Points IV and V.
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We affirm the convictions, reverse the sentence, and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
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