NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1546-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SEAN LOWNEY, a/k/a SEAN LOWMEY and SHAWN COCHRAN,
Defendant-Appellant. _______________________
Submitted May 5, 2026 – Decided May 27, 2026
Before Judges Perez Friscia and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 22-01-0071.
Jennifer N. Sellitti, Public Defender, attorney for appellant (Laura B. Lasota, Deputy Public Defender II, of counsel and on the brief).
William E. Reynolds, Atlantic County Prosecutor, attorney for respondent (Kristen Pulkstenis, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Sean Lowney appeals from a judgment of conviction entered
on January 17, 2024, after he was found guilty by a jury of second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), and second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1). We affirm.
I.
The State alleged that in the early morning hours of May 17, 2021,
defendant went to the home of his ex-girlfriend, T.S., at 716 North Ohio Avenue
in Atlantic City, with his then current girlfriend, Samantha Johnson. Defendant
began arguing with T.S., pulled a handgun from his waistband, fired a shot
through the back door, kicked in the door, and entered the home where he
continued arguing with T.S. 1 Defendant then gave the handgun to Johnson, who
concealed it in her purse.
At approximately 1:30 a.m., Atlantic City Police Department (ACPD)
Officer Robert Reynolds received a ShotSpotter activation report for the 700
block of North Ohio Avenue and responded. Nearby officers also reported
hearing the gunshot. While enroute, Officer Reynolds learned a 9-1-1 call was
received from 716 North Ohio Avenue reporting a shot fired at that residence
and a person with a gun was inside the home. Officer Reynolds and other ACPD
1 We utilize initials to protect the victim's privacy. R. 1:38-1. A-1546-23 2 officers detained defendant and Johnson near the residence and seized a handgun
from Johnson's purse.
On January 18, 2022, defendant was indicted by an Atlantic County grand
jury and charged with: (1) second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b)(1); (2) second-degree possession of a firearm for an
unlawful purpose, N.J.S.A. 2C:39-4(a)(1); and (3) second-degree certain
persons not to have weapons, N.J.S.A. 2C:39-7(b)(1).
II.
Prior to trial, defendant moved to preclude the admission of statements he
made while he was detained at the scene on May 17, 2021, which were recorded
by Officer Reynolds's body worn camera (BWC). Shortly after arriving at the
scene and before they found the handgun in Johnson's purse, Officer Reynolds
and other ACPD officers located defendant behind T.S.'s residence and detained
him. Immediately after defendant was handcuffed and before he was advised of
his Miranda2 rights, the following exchange occurred:
Officer Reynolds: You[ are] being detained right now . . . [until] we figure out what is going on.
Defendant: That[ is ] fine.
Officer Reynolds: Okay, [w]here is the gun at? . . .
2 Miranda v. Arizona, 384 U.S. 436 (1966). A-1546-23 3 [Officer Reynolds then walked away to search the area behind 716 North Ohio Avenue. He returned to the spot where defendant was being detained approximately fifty-five seconds later.]
Defendant: So, I . . . kick[ed] the door, so I kicked the window in. Boom.
Officer Reynolds: You kicked it?
Defendant: I kicked it in.
Officer Reynolds: Alright. Nobody had a gun? Nobody was shooting?
Defendant: Nobody had no gun.
Officer Reynolds: Okay.
Defendant: No, I kicked the window. That[ is] it.
Officer Reynolds: Cause we got a call saying someone was back here with a gun and they fired a shot.
Defendant: Nah, hell no.
Officer Reynolds: Alright.
Defendant: I kicked the window in.
Defendant moved to preclude his statements contending they were the
product of unwarned custodial interrogation. The State argued defendant's
statements were admissible pursuant to the "safety" exception to Miranda
adopted by our Supreme Court in State v. O'Neal, 190 N.J. 601 (2007). On
A-1546-23 4 August 4, 2023, following oral argument, the court entered an order denying
defendant's motion supported by a written opinion. It found, after defendant
was detained:
[O]fficer [Reynolds] immediately asked . . . [d]efendant, "[w]here is the gun at?" . . . Defendant responded by stating that he kicked in the window of the door. The officer responded, "Alright. Nobody had a gun? Nobody was shooting?" The officer did not ask . . . [d]efendant any further questions.
The court determined the safety exception applied because
[T]here was an objectively reasonable need to protect the police and the public from an immediate danger involving an unlocated handgun and . . . the only questions posed to . . . [d]efendant directly related to the danger of the unlocated handgun, which was reasonably necessary to secure public safety.
III.
The court conducted a four-day jury trial in August 2023. We summarize
the relevant facts developed at trial. Relevant to the issues raised on appeal, the
State called as witnesses: (1) T.S.; (2) Johnson; (3) Officer Reynolds; (4) ACPD
Detective Juanita Harris; and (5) Kimberly Michalik, a forensic scientist
employed by the New Jersey State Police Office of Forensic Science. Defendant
did not testify or present any witnesses.
A-1546-23 5 T.S. testified that on May 17, 2021, she was living at her sister's residence
at 716 North Ohio Avenue. In the early morning hours, T.S. was "sitting in [her]
room" when she "heard somebody calling [her] name . . . out the window." She
went "to the door" where she saw defendant, her "ex-boyfriend," with "another
woman" who she did not know, who was later identified as Johnson. T.S.
testified that she and defendant were "supposed to be" dating, but he had
disappeared for about "two weeks." T.S. "felt comfortable to open [her] back
door" because defendant "lived with [her]." Defendant was there to "get his
things . . . [h]is clothes, his jewelry."
T.S. and Johnson "got into a[n] argument, like, who are you, and what are
you doing at my house?" T.S. testified she saw defendant "standing there with
a gun." After T.S. "s[aw] the gun in [defendant's] hand," she "shut th[e] door"
and "ran up the steps" when a "[gun]shot went through the door." T.S. "c[ould
not] say that [defendant] shot the gun" because she did not "stick around to see
[any]body shoot" a gun.
After the shot was fired, defendant "kicked in the door," entered the home,
and "ran up the stairs" after T.S. T.S. testified defendant was "not holding a
gun" when he was inside the home. Defendant exited the home after T.S. "told
A-1546-23 6 him to go outside and [she would] bring [him] the clothes and stuff." T.S.
testified that after the incident, there was "a bullet hole in [her] back door ."
She told the officers who arrived that the female had "red braids" and
defendant "was wearing a ski mask" that did not cover his face. T.S. testified
she "knew of" Johnson, but "did[ not] know her" personally. Although T.S. did
not identify anyone by name in her written statement to police, she testified she
"of course" knew who defendant was but knew him only as "Slice." T.S.
acknowledged that on the night of the incident, "[she] told police [she] only met
[defendant] one time," but that was not "credible" "[b]ecause [she] was still
protecting him." T.S. denied placing the call to 9-1-1. She testified she
attempted to call 9-1-1, but "[her] phone was dead."
Johnson testified that on May 17, she was staying at a hotel in Atlantic
City with defendant, who was her "boyfriend at the time." Around 1:00 a.m.,
Johnson and defendant "were supposed to go out to eat" because they "just got
back together." They got into "a cab" at the hotel but Johnson did not "know
where [they] were going." "The first stop [they] made" was to "somebody's
house" on "Ohio Avenue." She "d[id not] know the person's house."
Johnson testified that when she and defendant arrived at the house,
defendant "told [her] to wait at the corner." While waiting at the corner, she
A-1546-23 7 "heard commotion[]." She "walked around the building," and saw defendant
and T.S. arguing. Johnson had "met [T.S.] before," but only "in passing."
"As they w[ere] arguing, [defendant] kept saying . . . [he] need[ed his]
stuff back." Johnson testified defendant "pulled out the gun and shot at the door,
went in the house, and [they] continued arguing." He "pulled the gun out of his
waistband to get into the house and shot at the screen door. And then after he
shot at the screen door, he kicked the door in and followed whoever into the
house." Johnson testified she did not know defendant had the gun.
After defendant was inside the house, there was "[a] lot of screaming
and . . . yelling." Johnson "followed after him . . . [and he] passed [the gun] off
to [her], [she] put [the gun] in [her] purse, and [she] walk[ed] off." She "t[ook]
possession of the gun" because she "did[ not] want [defendant] getting in
trouble." Johnson was "stopped by police" as she "was leaving out the
alleyway." Police "search[ed]" her and found "[a] revolver in [her] bag."
Johnson was arrested and charged with unlawful possession of a handgun.
Three days later, on May 20, Johnson "ma[d]e a statement to defendant's
investigator[] . . . on . . . a phone call basically telling him that [she] was going
to take the charge." She "offered to take the charge." She told the investigator
A-1546-23 8 the gun found in her purse belonged to her, she was the person who fired it, and
defendant was never in possession of a gun.
Johnson did not dispute she made the statement to the investigator but
testified she was not telling "the truth." At the time Johnson gave her statement,
she was "in contact with . . . defendant" and was "still dating" him. She was
also contacted by "Taylor Murray" who she knew as defendant's "ex-girlfriend"
after the incident. They "were both coming together to see what [they could] do
to get [defendant] out of this situation." They were "both . . . coming up with
ideas of how to get [defendant] out of the situation and that[ is] when" she said
she would "take everything."
On August 3, 2023, Johnson agreed to plead guilty to second-degree
unlawful possession of a handgun in exchange for a probationary sentence. As
part of the plea agreement, she agreed "to be called as a witness . . . during trial"
and "provide truthful testimony." Johnson also agreed "to give another
statement to the prosecutor's office." She was cross-examined extensively
regarding that statement.
In that statement, Johnson said that "a person named Flo was paying for
the room" at the hotel where she and defendant were staying. Johnson claimed
that she called Flo "Slice . . . [b]ecause he has a slice mark down his face." She
A-1546-23 9 "never called [defendant] Slice," and only call[ed] him "either Sean or [b]abe."
She claimed "the gun belonged to Flo." Johnson stated that when she heard the
commotion and walked to the rear of the residence on May 17, 2021, T.S. was
"hanging out the . . . [s]econd floor window, yelling at [defendant]." Defendant
was yelling and "he was getting irritated and that[ is] when he turned around and
pulled [the gun] out [of] his waistband and shot at the door." "After that
happened [defendant] went inside the house." Johnson "followed him" and
defendant "passed the gun to" her and she "put the gun in [her] purse."
Officer Reynolds testified that when he arrived on the scene T.S. and her
sister provided descriptions of the suspects and directed him to the rear of the
home because "the suspects were back there." He encountered "a black female
with red hair," later identified as Johnson, "walking on Magellan Avenue
towards Ohio Avenue." Officer Reynolds "continued to the rear, where [he] saw
[defendant] in[]between two parked cars, walking out." Defendant "matched the
description provided by" T.S. and her sister. Defendant was wearing "a black
hoodie . . . and . . . a black ski mask." He was detained without incident.
Officer Reynolds observed "the rear door" of the home "had been broken out
and there appeared to be one bullet hole through the . . . glass window in the
A-1546-23 10 door." A redacted portion of the recording from Officer Reynolds's BWC was
played for the jury.
Detective Harris testified that on the night of the incident, she encountered
Johnson when she "saw the female fitting th[e] description" she received on the
9-1-1 call. After Johnson was detained, Detective Harris searched Johnson's
purse, where she discovered a handgun loaded with four rounds and one empty
shell.
Michalik testified as an expert in forensic DNA analysis. Her office
received DNA samples from defendant and Johnson, along with samples taken
from swabs of the trigger and grip of the handgun recovered from Johnson's
purse, for analysis. The DNA profile of the samples taken from the gun showed
"a mixture, meaning that there was more than one person there." She determined
"there was male DNA present" in the mixture, but she "could[ not] compare it"
to the DNA samples collected from defendant and Johnson.
On August 10, 2023, defendant was found guilty of unlawful possession
of a handgun. He was found not guilty of possession of a weapon for an unlawful
purpose. The following day, he was tried separately by the same jury on the
charge of certain persons not to have weapons and found guilty. After trial, the
A-1546-23 11 State moved for the imposition of a discretionary extended term of imprisonment
as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).
On October 26, 2023, the court heard oral argument and granted the State's
extended term motion in an oral decision. It found defendant had prior criminal
convictions for: (1) third-degree possession of a controlled dangerous substance
(CDS) with the intent to distribute, N.J.S.A. 2C:35-7, in 2011; (2) second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), in 2012; (3) third-
degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), in
2016; and (4) third-degree distribution of CDS, N.J.S.A. 2C:35-5(a)(1), and
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1), in
2019. The court found defendant also had an extensive juvenile history,
including "violent offenses and weapons." It concluded "defendant's criminal
conduct has continued unabated except while serving periods of imposed
probation or incarceration" and he "is a persistent offender."
On November 16, 2023, the court sentenced defendant to an extended term
of imprisonment of sixteen years with an eight-year period of parole ineligibility
for second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1),
and a concurrent term of five years with a forty-two-month period of parole
eligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), for unlawful
A-1546-23 12 possession of a handgun, N.J.S.A. 2C:39-5(b)(1). On January 17, 2024, the
court entered a conforming judgment of conviction. This appeal followed.
IV.
On appeal, defendant raises the following points for our consideration:
POINT I
THE TRIAL COURT FAILED TO PROPERLY ADDRESS [DEFENDANT]'S REQUEST TO WAIVE HIS RIGHT TO COUNSEL AND PROCEED [SELF- REPRESENTED] BEFORE REJECTING IT.
A. [Defendant]'s Requests To Proceed [Self- Represented] And By Bench Trial.
B. [Defendant]'s Convictions Must Be Reversed Because The Trial Court Failed To Conduct The Proper Legal Colloquy And Analysis In Response To His Request To Proceed [Self- Represented].
POINT II
THE TRIAL COURT ERRED IN RULING THAT [DEFENDANT]'S UNWARNED CUSTODIAL STATEMENT TO POLICE WAS ADMISSIBLE PURSUANT TO THE PUBLIC SAFETY EXCEPTION.
POINT III
THE PROSECUTOR'S COMMENTS DURING HER OPENING STATEMENT AND SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL.
A-1546-23 13 POINT IV
THE EXTENDED TERM SENTENCE MUST BE REMANDED FOR RESENTENCING BECAUSE IT IS UNCONSTITUTIONAL. ALTERNATIVELY, A REMAND FOR RESENTENCING IS REQUIRED BECAUSE THE EXTENDED TERM IMPOSED IS EXCESSIVE.
A. The Matter Must Be Remanded Pursuant To State v. Carlton.3
B. Resentencing Is Also Required Because The Extended Term Imposed Is Excessive.
We are unpersuaded by defendant's contention that the court failed to
properly address his purported request to waive his right to counsel and proceed
self-represented. Defendant did not clearly and unequivocally make such a
request and, even if he did, his request would not have been timely.
Our Supreme Court has held "the United States Constitution and our New
Jersey Constitution grant defendants charged with a criminal offense the right
to have the assistance of counsel." State v. King, 210 N.J. 2, 16 (2012) (citing
U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10). "The corollary to the right of a
3 480 N.J. Super 311 (App. Div. 2024), rev'd, 262 N.J. 629 (2026). A-1546-23 14 criminal defendant to be represented by an attorney is the defendant's right to
represent himself." Ibid. (citing Faretta v. California, 422 U.S. 806, 814 (1975)).
"[A] defendant must assert the right of self-representation 'in a timely
fashion' so as not to 'disrupt the criminal calendar, or a trial in progress.'" State
v. Rose, 458 N.J. Super. 610, 626 (App. Div. 2019) (quoting State v. Buhl, 269
N.J. Super. 344, 362 (App. Div. 1994)). See State v. Thomas, 362 N.J. Super.
229, 240 (App. Div. 2003) (finding that the "[d]efendant's assertion of his right
to self-representation was timely made, about six weeks prior to trial"). The
request must be made "clearly and unequivocally," Faretta, 422 U.S. at 835, and
"unambiguously . . . so that no reasonable person can say that the request was
not made." Rose, 458 N.J. Super. at 627 (quoting Dorman v. Wainwright, 598
F.2d 1358, 1366 (11th Cir. 1986)).
Addressing a defendant's request to proceed self-represented is a two-step
process. First, the court must determine whether the defendant clearly and
unequivocally made a request to waive the right to counsel in a timely manner.
Id. at 626. Second, the court must ascertain "whether the waiver is indeed
knowing, voluntary, and intelligent after a searching inquiry that involves
advising the defendant of the risks and pitfalls of self-representation." Id. at
A-1546-23 15 627.4 Even when properly asserted, "the right of self-representation is not
'absolute.'" Id. at 628 (quoting Reddish, 181 N.J. at 587).
We review a trial court's denial of a defendant's motion to represent
himself under an abuse of discretion standard. State v. Outland, 245 N.J. 494,
507 (2021). The question of whether a defendant made a timely, clear, and
unequivocal application to proceed self-represented constitutes a question of law
4 The relevant factors include:
(1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself or herself; (5) the impact that the dual role of counsel and defendant may have; (6) the reality that it would be unwise not to accept the assistance of counsel; (7) the need for an open-ended discussion so that the defendant may express an understanding in his or her own words; (8) the fact that, if defendant proceeds [self-represented], he or she will be unable to assert an ineffective assistance of counsel claim; and (9) the ramifications that self-representation will have on the right to remain silent and the privilege against self-incrimination.
[State v. DuBois, 189 N.J. 454, 468-69 (2007) (citing State v. Crisafi, 128 N.J. 499, 511-12 (1992) and State v. Reddish, 181 N.J. 553, 594-95 (2004)).]
A-1546-23 16 we review de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,
140 N.J. 366, 378 (1995) (stating "[a] trial court's interpretation of the law and
the legal consequences that flow from established facts are not entitled to any
special deference").
At approximately 3:00 p.m. on Friday, August 4, 2023, the court heard
oral argument on defendant's motion to preclude his statements to law
enforcement and other motions unrelated to this appeal. Jury selection was
scheduled to begin on Tuesday, August 8.
Before oral argument began, the court addressed pretrial matters,
including defendant's attire at trial. Defendant had recently learned that Johnson
pleaded guilty the day before and would testify at his trial. He advised the court
he "would like a bench trial" and became disruptive. Defendant accused the
court of "violating [his] amendments," "violating [his] rights," and alleged he
did not "even have [any] discovery." He alleged "[t]hese cops are giving the
girl . . . K2 to testify against [him]" and "[t]he inmates [were] giving the girl K2
to testify against [him]." "They [were] giving her . . . K2 through the toilet bowl
to testify against [him]."
He claimed it was "illegal what [they all were] doing" because his "clothes
did[ not] have possession of the gun." Defense counsel pleaded with him to
A-1546-23 17 "stop . . . talking about the case." He repeated that he wanted "a bench trial, not
a jury" and continued to assert he did not "have the discovery." Defense counsel
advised the court she provided defendant "with all written and electronic
discovery" and "actually provided two copies of the paper discovery
previously." Defendant then claimed "somebody stole it from" him "like her
family [has] been doing since."
At that point, the following exchange occurred:
THE COURT: Please have a seat. Please have a seat. Mr. Lowney, I[ am] going to tell you something. Anything you say in this courtroom can be used against you. I am going to make–
DEFENDANT: Yeah, use it.
THE COURT: I am going to make some suggestions for you. Everything you[ are] telling me is exactly what [defense counsel] is going present to the jury. [She] is representing you in a very effective manner, because I have heard these arguments.
DEFENDANT: I can go pro se. I do[ not] need no lawyer.
THE COURT: Let me . . . finish.
DEFENDANT: I can go pro se.
THE COURT: You[ are] not going pro se.
DEFENDANT: I can go pro se. It[ is] my right to do that.
A-1546-23 18 THE COURT: Would you listen to me for a moment? . . . I[ am] going to treat you with respect, but you have to treat me with respect.
DEFENDANT: Respect me in my discovery and my [flash] drive then. . . . So I can go study my own case. She[ is] not doing her job.
Defendant then claimed he is "schizophrenic on papers. Down syndrome
on papers" and had "been Down syndrome since [he] was a little boy." He had
"been to speech class," "was[ not] allowed around other kids," and his
"mother . . . told the school that she did[ not] want [him] taking medicine." The
court advised defendant he was "obstructing [the] court proceedings."
Defense counsel asked to speak to the court at sidebar and said she was
"wondering if it[ was] necessary to go through a colloquy" on "the pro se,
not . . . competence." The court advised defense counsel it would "let [her] put
on whatever [she] would like" and suggested they "move to motions." Defense
counsel responded that she "kind of [thought] so too."
After the court addressed the pending motions, defendant repeated his
demand for a bench trial. Defense counsel "ask[ed] that [the court] keep things
as is" and "bring the jury in on Tuesday" and give defendant "the weekend to
think about what [the court] told him" and "what [she had] told him." Defense
counsel did not want to cancel jury selection "and then have [defendant] change
A-1546-23 19 [his] mind at the last minute." The court advised defendant it was "going to
bring the jury in" and give him time to consider his demand for a bench trial.
When the parties returned for jury selection on August 8, defense counsel
advised the court "[she] did have further opportunity to speak with [defendant]"
because "on Friday, there were some indications that he perhaps wanted to
consider a bench trial in lieu of a jury trial." Defense counsel "did speak with
[defendant] further [that] morning" and they were "prepared to . . . proceed with
a jury."
The court then questioned defendant as follows:
THE COURT: Mr. Lowney, you[ are] ready to proceed with a jury and select a jury today and proceed to trial?
[DEFENDANT]: Yes. I am.
THE COURT: . . . [T]he other day, you had mentioned a bench trial, but . . . after speaking with your attorney and reviewing the [motion] decisions from Friday and . . . thinking about it over the weekend, you[ have] decided that a jury trial[ is] best. Is that correct?
[DEFENDANT]: Yes.
Having reviewed the record and defendant's statements in context, we are
convinced he did not make a clear and unequivocal request to waive his right to
counsel and proceed self-represented. Indeed, during the entire exchange he
never once expressed a desire to waive his right to counsel. Rather, he asserted
A-1546-23 20 that he "[could] go pro se" and it was his "right to do that." When viewed along
with the other statements defendant made at or around the same time, his
assertion that he "[could] go pro se" was not a genuine assertion of a desire to
waive his right to counsel. Rather, it was an indication to the court that he could
further obstruct the proceedings if he chose to do so.
Moreover, after discussing his request for a bench trial with counsel, he
returned to court on August 8 and advised the court he was ready to proceed
with a jury trial. Defendant had numerous opportunities to clearly and
unequivocally assert his desire to proceed self-represented if he genuinely
sought to do that.
Defendant's claim that defense counsel "acknowledged . . . the . . . court
was obliged to address the concerns outlined in Crisafi and Reddish" is not
supported by the record. After defendant's outburst, defense counsel asked to
speak with the court outside the presence of defendant and said she was
"wondering if it[ was] necessary to go through a colloquy." Read in context,
defense counsel was questioning whether the court should have prophylactically
considered defendant's comment as if it had been a legitimate request. She did
not advise the court that defendant was making a genuine request to waive his
right to counsel, nor did she assert such a request on his behalf.
A-1546-23 21 Even if defendant did clearly and unequivocally make a request to waive
his right to counsel, it would have been untimely. Defendant asserted he
"[could] go pro se" after 3:00 p.m. on Friday afternoon, less than two business
days before jury selection was scheduled to begin. When viewed in the context
of defendant's conduct and attempts to disrupt the court's calendar and scheduled
jury selection, defendant's request, if clearly asserted, would not have been
timely. Considering the totality of the facts and circumstances surrounding
defendant's statements to the court, we are convinced he did not make a timely,
clear and unequivocal request to waive his right to counsel and proceed self -
represented.
VI.
We are unconvinced by defendant's contention that the court erred in
ruling his unwarned statements to law enforcement on May 17, 2021, were
admissible. The Fifth Amendment of the United States Constitution guarantees
all persons the privilege against self-incrimination. U.S. Const. amend. V. That
privilege applies to the states through the Fourteenth Amendment. U.S. Const.
amend. XIV, § 1; Griffin v. California, 380 U.S. 609, 615 (1965). In addition,
in New Jersey, there is a common law right against self-incrimination, which
has been codified in a statute and a rule of evidence. State v. Reed, 133 N.J.
A-1546-23 22 237, 250 (1993); N.J.S.A. 2A:84A-19; N.J.R.E. 503. Accordingly, it has long
been established that when a person "is taken into custody or otherwise deprived
of his [or her] freedom," that person is entitled to certain warnings before he or
she can be questioned. Miranda, 384 U.S. at 479.
"The Miranda rule does not come into play unless a statement is the
product of custodial interrogation." State v. Elysee, 159 N.J. Super. 380, 387
(App. Div. 1978). "Custodial interrogation is defined as 'questioning initiated
by law enforcement officers after a person has been taken into custody or
otherwise deprived of his [or her] freedom of action in any significant way.'"
State v. Tiwana, 256 N.J. 33, 41 (2023) (quoting Miranda, 384 U.S. at 444). "In
resolving whether police conduct constitutes interrogation or its functional
equivalent, [courts] consider whether, under the circumstances, a police officer's
questioning or the functional equivalent was 'particularly "evocative"' or
'reasonably likely to elicit an incriminating response.'" Id. at 42 (quoting Rhode
Island v. Innis, 446 U.S. 291, 303 (1980)).
Courts examine whether the police asked "targeted questions," which
demonstrate an attempt to cause the suspect to incriminate himself or herself.
See id. at 43-44; State v. Hubbard, 222 N.J. 249, 271-72 (2015); see also State
in the Int. of A.A., 240 N.J. 341, 357-58 (2020). "In the absence of interrogation,
A-1546-23 23 a volunteered or spontaneous remark by a suspect is admissible in evidence
regardless of the absence of Miranda warnings." Elysee, 159 N.J. Super. at 387.
See also State v. Beckler, 366 N.J. Super. 16, 22-23 (App. Div. 2004) (holding
statements were admissible because, although they were "made while [the]
defendant was in custody, [the statements] were unsolicited, spontaneous, and
not made in response to 'questioning or its functional equivalent'").
Having reviewed the BWC video in conjunction with the transcript of the
video, we are convinced defendant's statement to Officer Reynolds that he
"kick[ed] the door, so [he] kicked the window in" was not the product of
custodial interrogation. 5 The BWC video makes clear defendant did not respond
when Officer Reynolds asked him "[w]here is the gun at?" After asking that
question, Officer Reynolds walked away from the spot where defendant was
detained and conducted a search of the area behind T.S.'s residence. He returned
to the spot where defendant was detained approximately fifty-five seconds later
and before he said anything further, defendant stated he kicked the door in.
5 Because "an appeal is taken from a trial court's ruling rather than reasons for the ruling, we may rely on grounds other than those upon which the trial court relied." State v. Adubato, 420 N.J. Super. 167, 176 (App. Div. 2011). "A trial court judgment that reaches the proper conclusion must be affirmed even if it is based on the wrong reasoning." Hayes v. Delamotte, 231 N.J. 373, 387 (2018).
A-1546-23 24 Unlike the transcript, in which it appears defendant was responding to the
officer's question, the BWC video shows his statement was a voluntary and
spontaneous remark, not the product of custodial interrogation. Not only was
the statement unresponsive to the question asked by Officer Reynolds, it was
made nearly one minute later, after Officer Reynolds returned to the spot where
defendant was being detained and before he said anything else to defendant.
Because defendant did not make the statement in response to questioning by law
enforcement or its functional equivalent, we conclude it was not the product of
custodial interrogation subject to Miranda.
We are also persuaded, however, if the statement was the product of
custodial interrogation, the court properly determined it was admissible pursuant
to the safety exception to Miranda. We review a judge's evidentiary decisions
for an abuse of discretion. Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202
N.J. 369, 383-84 (2010).
The "safety" exception applies in "limited circumstances" and allows law
enforcement personnel not to give warnings when there is an "objectively
reasonable need to protect the police or the public from any immediate danger
associated with [a] weapon." O'Neal, 190 N.J. at 617 (quoting New York v.
Quarles, 467 U.S. 649, 659 n.8 (1984)).
A-1546-23 25 To establish that the exception applies, the "State must generally
demonstrate (1) there was an objectively reasonable need to protect the police
or the public; (2) from an immediate danger; (3) associated with a weapon; and
that (4) the questions asked were related to that danger and reasonably necessary
to secure public safety." State v. Stephenson, 350 N.J. Super. 517, 525 (App.
Div. 2002) (citation omitted). Application of the safety exception is particularly
appropriate where there exists a "concern for the protection of the public at large,
or an extended group of individuals, such as children." State v. Melendez, 423
N.J. Super. 1, 24 (App. Div. 2011) (citing United States v. Lawrence, 952 F.2d
1034, 1036 (8th Cir. 1992)).
The safety exception does not nullify a person's Fifth Amendment rights.
Id. at 26. Instead, it allows a narrow exception when police are trying to locate
a gun, but the questioning must be focused on finding the gun and cannot be
designed to elicit self-incriminating statements. See id. at 26-27.
In this case, law enforcement was investigating numerous reports of a shot
fired in the area of T.S.'s residence, including the ShotSpotter activation, the 9-
1-1 call, and the reports of other officers in the area. When they detained
defendant behind T.S.'s residence, he did not have a gun, and they had not yet
recovered the handgun from Johnson's purse.
A-1546-23 26 Considering all the facts and circumstances of the case, we are satisfied
the court did not misapply its discretion by finding the safety exception applied.
At the time Officer Reynolds asked defendant about the gun, he had an
objectively reasonable basis to believe there was a gun that had been discarded
or hidden nearby and his single question related to the danger posed by an
unsecured firearm was reasonably necessary to protect the officers and the
public from immediate danger. Application of the safety exception recognized
by our Supreme Court in O'Neal was warranted in this case and the court
properly admitted defendant's statement on that basis.
Finally, even if admission of defendant's statement was error, the error
was harmless. Constitutional errors are subject to harmless error review. See
State v. Carlton, 262 N.J. 629, 643 (2026) (quoting Neder v. United States, 527
U.S. 1, 8 (1999)) ("[T]here is a strong presumption that . . . [constitutional]
errors . . . are subject to harmless[]error analysis"). "Under that standard, there
must be some degree of possibility that [the error] led to an unjust result. The
possibility must be real, one sufficient to raise a reasonable doubt as to whether
[it] led the jury to a verdict it otherwise might not have reached." State v. Baum,
224 N.J. 147, 159 (2016) (alterations in original) (citation and internal quotation
marks omitted).
A-1546-23 27 Here, defendant only admitted to kicking in the back door of T.S.'s
residence. Importantly, defendant never admitted he possessed the handgun,
which was the basis for his convictions. Moreover, there was ample evidence
in the record for the jury to believe he did, in fact, kick the door in based on the
eyewitness testimony of T.S. and Johnson, who both testified defendant kicked
the door in and entered the residence. Considering the evidence presented and
the substance of defendant's admission, we discern no basis to conclude the jury
was led to a verdict on the charges presented they otherwise might not have
reached. We are persuaded any error, if there was one, was harmless.
VII.
We are unconvinced by defendant's claim that the prosecutor's comments
during her opening statement and summation deprived defendant of a fair trial.
Defendant challenges various comments made during the prosecutor's opening
statement and summation. He argues, for the first time on appeal: (1) during
her opening statement, the prosecutor improperly stated that defendant
"grabb[ed] a loaded .38 Special revolver and shove[d] it in his waistband"
because "no witness testified at trial about having seen [defendant] arm himself
with a revolver before arriving at [T.S.'s] house"; and (2) in her summation, the
prosecutor improperly referred to defendant's defense as "illogical." Defense
A-1546-23 28 counsel did not object to those comments.
Defendant also contends the prosecutor, in her summation, improperly:
(1) referred to T.S. as a victim of domestic violence; and (2) argued to the jury
"there was male DNA on the gun" and they should use "deductive reasoning" to
conclude "[t]hat was defendant's male DNA." These comments were the subject
of objections at trial.
We review a claim of prosecutorial misconduct where defense counsel
raised a timely objection for harmless error. State v. R.B., 183 N.J. 308, 330
(2005). "Generally, if no objection was made to the improper remarks, the
remarks will not be deemed prejudicial." Id. at 333 (quoting State v. Frost, 158
N.J. 76, 83 (1999)). When a defendant does not raise a claim at trial, we analyze
the belated objection under the plain error standard. R. 2:10-2. To determine
whether a prosecutor's improper comments in summation warrant reversal, we
assess whether the impropriety was "so egregious that it deprived the defendant
of a fair trial." State v. Jackson, 211 N.J. 394, 409 (2012) (quoting Frost, 158
N.J. at 83).
"Prosecutors are afforded considerable leeway in closing arguments as
long as their comments are reasonably related to the scope of the evidence
presented." State v. Williams, 471 N.J. Super. 34, 43 (App. Div. 2022) (quoting
A-1546-23 29 Frost, 158 N.J. at 82). "A prosecutor must 'conscientiously and ethically
undertak[e] the difficult task of maintaining the precarious balance between
promoting justice and achieving a conviction,' ensuring that at all times [their]
'remarks and actions [are] consistent with [their] duty to ensure that justice is
achieved.'" Jackson, 211 N.J. at 408 (first and third alterations in original)
(quoting State v. Williams, 113 N.J. 393, 447-48 (1988)).
It is well-recognized that "[p]rosecutors may not make inaccurate factual
or legal assertions during summation, and they must confine their remarks to
evidence revealed during trial, and reasonable inferences to be drawn from the
evidence." State v. Rodriguez, 365 N.J. Super. 38, 48 (App. Div. 2003).
"'[R]eferences to matters extraneous to the evidence' may constitute
prosecutorial misconduct." State v. Williams, 244 N.J. 592, 607 (2021) (quoting
Jackson, 211 N.J. at 408).
Nevertheless, not every prosecutorial misstep requires a new trial. State
v. Garcia, 245 N.J. 412, 436 (2021). "[P]rosecutors are expected to make
'"vigorous and forceful" presentations during opening statements and
summations.'" State v. Butler, ___ N.J. ___, ___ (2026) (slip op. at 18) (quoting
Williams, 244 N.J. at 607). "Only when the prosecutor's conduct in summation
so 'substantially prejudice[s] the defendant's fundamental right to have the jury
A-1546-23 30 fairly evaluate the merits of his defense' must a court reverse a conviction and
grant a new trial." Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56 (1958)).
"In deciding whether prosecutorial conduct deprived a defendant of a fair
trial, 'an appellate court must take into account the tenor of the trial and the
degree of responsiveness of both counsel and the court to improprieties when
they occurred.'" State v. Supreme Life, 473 N.J. Super. 165, 172 (App. Div.
2022) (quoting Williams, 244 N.J. at 608). Overall, a court "must assess the
prosecutor's comments in the context of the entire trial record," State v. Nelson,
173 N.J. 417, 472 (2002), including whether the trial was lengthy, and the
prosecutor's remarks were short or "errant." State v. Engel, 249 N.J. Super. 336,
382 (App. Div. 1991).
Defendant's claim that the prosecutor, in her opening statement,
improperly told the jury defendant armed himself at the hotel before going to
T.S.'s house lacks merit. "A prosecutor's opening statement 'should provide an
outline or roadmap of the State's case' and 'should be limited to a general recital
of what the State expects, in good faith, to prove by competent evidence.'" State
v. Land, 435 N.J. Super. 249, 269 (App. Div. 2014) (emphasis removed)
(quoting State v. Walden, 370 N.J. Super. 549, 558 (App. Div. 2004), certif.
denied, 182 N.J. 148 (2004)). Here, Johnson testified she and defendant drove
A-1546-23 31 from the hotel to T.S.'s house where he pulled the handgun from his waistband.
The prosecutor's statement that she expected the evidence to show defendant
armed himself at the hotel before driving to T.S.'s house was supported by
Johnson's testimony at trial and was not improper.
We are similarly unpersuaded by defendant's claim that the prosecutor
improperly referred to his defense as "illogical." Specifically, she argued
defendant's claim that Johnson "armed herself, got with her
boyfriend . . . [defendant] and then [went] to a stranger's house to shoot them"
was not "logical," and his claim that "if no officer saw [him] with the gun that
it[ is] impossible to have happened . . . [wa]s simply illogical."
We are convinced these statements were not improper. "A prosecutor is
not forced to idly sit as a defense attorney attacks the credibility of the State's
witnesses" and "is permitted" to respond. State v. Hawk, 327 N.J. Super. 276,
284 (App. Div. 2000) (citing State v. C.H., 264 N.J. Super. 112, 135 (App. Div.
1993)). Here, the prosecutor fairly commented on defense counsel's arguments,
which she contended were illogical based on the evidence presented at trial.
We are also persuaded the prosecutor's reference to T.S. as a victim of
domestic violence was not improper. The State alleged defendant fired a gun
through the window of T.S.'s home, kicked her door in, and entered her home
A-1546-23 32 during a heated argument. Additionally, T.S. testified she and defendant had a
dating relationship. The characterization of T.S. as a victim of a "domestic
violence shooting[] in her home" was a fair comment on the evidence presented
at trial. Even if the statement was improper, we are convinced it was harmless
because there is no basis to conclude it led the jury to a verdict it otherwise
might not have reached. Baum, 224 N.J. at 159.
The prosecutor's comments regarding the DNA evidence skirted the line
between fair comment and misconduct. Michalik testified there was male DNA
found on the gun, but she was unable to determine the number of contributors
and could not match the DNA on the gun to defendant. Although the prosecutor
did not misrepresent Michalik's testimony, she argued to the jury "[u]sing
deductive reasoning, we know whose male DNA was on the gun. That was
defendant's male DNA." The prosecutor's claim that "deductive reasoning"
showed it was defendant's DNA on the gun stretched the considerable leeway
prosecutors are afforded in making closing arguments to the breaking point.
Even so, having reviewed the statement in the context of the entire trial
record, we are satisfied it did not substantially prejudice his "fundamental right
to have the jury fairly evaluate the merits of his defense." Butler, ___ N.J. at
___ (slip op. at 18). The State presented two eyewitnesses who testified
A-1546-23 33 defendant pulled the gun from his waistband and fired it through the back door
of T.S.'s home. Defendant was detained at the scene and there were no issues
relating to the eyewitness' identification of defendant. Based on the trial record
as a whole, there is no basis to find the prosecutor's statement regarding DNA
evidence led the jury to a verdict it otherwise might not have reached and was,
therefore, not harmful. Baum, 224 N.J. at 159.
VIII.
Defendant's contention that his extended-term sentence for second-degree
certain persons not to have weapons must be remanded based on the United
States Supreme Court's decision in Erlinger v. United States, 602 U.S. 821, 835
(2024), is not convincing.
In Erlinger, the Court held that a defendant is entitled under the Fifth and
Sixth Amendments to have a jury unanimously determine, beyond a reasonable
doubt, whether the defendant's past offenses were "committed on occasions
different from one another" under the federal Armed Career Criminal Act, 18
U.S.C. § 924(e). 602 U.S. at 835. Applying principles first announced in
Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court reiterated "there is no
doubt what the Constitution requires in these circumstances: Virtually 'any fact'
that 'increase[s] the prescribed range of penalties to which a criminal defendant
A-1546-23 34 is exposed' must be resolved by a unanimous jury beyond a reasonable doubt (or
freely admitted in a guilty plea)." Erlinger, 602 U.S. at 834 (alteration in
original) (quoting Apprendi, 530 U.S. at 490).
It is not disputed that Erlinger abrogated New Jersey's persistent offender
statute to the extent N.J.S.A. 2C:44-3(a), as presently drafted, provides that
certain predicate facts are to be found by a court rather than a jury. However,
our Supreme Court in Carlton, 262 N.J. at 629, concluded that "errors in failing
to submit sentencing factors or elements to a jury, as in Apprendi and its
progeny, are presumptively subject to harmless error analysis, not automatic
reversal." Carlton, 262 N.J. at 643. The Court thus held that the harmless
constitutional error doctrine applies to Erlinger violations provided that "the
relevant facts are undisputed, the sentencing court's reasoning fully articulated,
and the record demonstrates, beyond any reasonable doubt, the sole conclusion
a jury could have reached had Erlinger been in place at the time of sentencing."
Id. at 644. Stated another way, the record must demonstrate that only one
outcome would have been possible at trial. Id. at 645.
Pursuant to N.J.S.A. 2C:44-3, a defendant "convicted of a crime of the
first, second, or third degree" may, "upon application of the" prosecutor, be
A-1546-23 35 sentenced to an extended term of imprisonment if the defendant is found to be a
"persistent offender."
A persistent offender is a person who at the time of the commission of the crime is [twenty-one] years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least [eighteen] years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within [ten] years of the date of the crime for which the defendant is being sentenced.
[N.J.S.A. 2C:44-3(a).]
In this case, the relevant facts are undisputed, the sentencing court's
reasoning was fully articulated, and the record demonstrates, beyond any
reasonable doubt, the sole conclusion a jury could have reached had Erlinger
been in place at the time of sentencing is that defendant was a persistent
offender. In its October 26, 2023 oral opinion granting the State's motion for an
extended term, the court found defendant, who was over twenty-one years of
age when the offenses at issue in this case were committed, had previously been
convicted of at least four second- and third-degree crimes committed at different
times on at least four separate occasions between 2011 and 2019, when he was
at least eighteen years of age. In addition, the latest of these prior crimes was
A-1546-23 36 committed on March 23, 2017, which was well within ten years of the date of
the crime for which defendant was being sentenced, May 17, 2021.
The court's findings are amply supported by defendant's undisputed adult
presentence report and defendant does not contend otherwise. Pursuant to
Carlton, we are satisfied the Erlinger violation in this case was harmless and
remand is unnecessary.
Defendant's claim that the sentence imposed in this case is excessive lacks
merit. Our "standard of review of a sentencing decision is well-established and
deferential." State v. Vanderee, 476 N.J. Super. 214, 235 (App. Div. 2023),
certif. denied, 255 N.J. 506 (2023). We review a trial court's sentencing decision
under an abuse of discretion standard. State v. Konecny, 250 N.J. 321, 334
(2022). "We 'must not substitute [our] judgment for that of the sentencing
court.'" Vanderee, 476 N.J. Super. at 235 (alteration in original) (quoting State
v. Liepe, 239 N.J. 359, 370 (2019)).
In determining a sentence for imprisonment, the sentencing judge must
consider the aggravating factors delineated in N.J.S.A. 2C:44-1(a)(1)-(15) and
the mitigating factors set forth in N.J.S.A. 2C:44-1(b)(1)-(14). "[A] trial court
should identify the relevant aggravating and mitigating factors, determine which
factors are supported by a preponderance of evidence, balance the relevant
A-1546-23 37 factors, and explain how it arrives at the appropriate sentence." State v.
O'Donnell, 117 N.J. 210, 215 (1989). "[A]n appellate court should not second-
guess a trial court's finding of sufficient facts to support an aggravating or
mitigating factor if that finding is supported by substantial evidence in the
record." Id. at 216.
In this case, the court found aggravating factors three, N.J.S.A. 2C:44-
1(a)(3) (the risk defendant will commit another offense); six, N.J.S.A. 2C:44-
1(a)(6) (the extent of defendant's prior criminal record); and nine, N.J.S.A.
2C:44-1(a)(9) (the need to deter defendant and others from violating the law),
applied. The court did not find any applicable mitigating factors applied and
determined the "[a]ggravating [f]actors preponderate[d] over the lack of
[m]itigating [f]actors."
The court's findings regarding the aggravating and mitigating factors are
supported by substantial evidence in the record, and the court appropriately
applied and balanced those factors in imposing its sentence. Defendant's claim
that the court double counted the aggravating factors because it sentenced
defendant to an extended term is incorrect. The aggravating factors the court
applied were not duplicative of any elements of the offenses for which defendant
was sentenced. In addition, the persistent offender statute requires only two
A-1546-23 38 prior adult convictions to render defendant eligible for an extended-term
sentence, whereas defendant had four prior adult convictions and an extensive
juvenile record. In these circumstances, the sentencing court was free to
consider the other two convictions and his juvenile record for the purpose of
finding aggravating factors without even potentially running afoul of the double-
counting prohibition. The court properly applied the aggravating factors in
imposing the extended-term sentence. There is no reason for us to conclude the
court misapplied its discretion in doing so.
Affirmed.
A-1546-23 39