STATE OF NEW JERSEY VS. CARL J. HOLDREN STATE OF NEW JERSEY VS. VALDO THOMPSON (07-09-0125, MONMOUTH COUNTY AND STATEWIDE)(CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 1, 2017
• Docket: A-5071-13T1/A-1056-14T1
• Status: Unpublished

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5071-13T1 A-1056-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARL J. HOLDREN,

Defendant-Appellant.

____________________________

VALDO THOMPSON,

_________________________________

Submitted April 4, 2017 – Decided September 1, 2017

Before Judges Messano, Espinosa and Suter.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-09-0125. Joseph E. Krakora, Public Defender, attorney for appellant Carl Holdren (Michele A. Adubato, Designated Counsel, on the brief).

Joseph E. Krakora, Public Defender, attorney for appellant Valdo Thompson (Suzannah Brown, Designated Counsel, on the brief).

Christopher S. Porrino, Attorney General, attorney for respondents (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendants appeal from their convictions and sentences for

murder, attempted murder and other offenses arising from gang-

related shootings. The charges were the culmination of an

investigation by the New Jersey State Police (NJSP) into gang

activity named Operation Dawg Pound. The evidence of defendants'

guilt, which included telephone conversations intercepted pursuant

to court order that dovetailed with surveillance and the seizure

of evidence, was compelling. We have consolidated their appeals

and now affirm.

I.

In November and December 2006, Detective Sergeant Jeffrey

Burke of the NJSP was the lead detective in Operation Dawg Pound.

NJSP's Street Gang Unit North had been conducting electronic

surveillance for several months of Anthony Carter a/k/a Born, the

OG, or "Original Gangster," of the Sex Money Murder (SMM) set of

2 A-5071-13T1 the United Bloods Nation (Bloods) in New Jersey. Burke, who was

qualified as an expert in gang terminology, gang culture and gang

dynamics, explained that a set is "a subgroup that falls underneath

the Bloods" street gang. The two other top sets under the Bloods

umbrella were: G-Shine and the Brims. In the end of 2006, SMM

"was at war or beefing with G-Shine and Brims."

Burke explained the hierarchy of the Bloods street gang. The

highest ranking member of a Bloods set is an "OG." Below that,

there are generals ranking from five star to one star, captain,

lieutenant, sergeant and the lowest rank, "foot soldiers."

During the course of the investigation, a person known as

"SB" showed up on a number of Carter's calls. Following his review

of those calls, Burke surmised that SB, or "Soldier Boy," had a

leadership role with SMM in Monmouth and Ocean Counties. SB was

identified as defendant Valdo Thompson. An order was obtained

that authorized electronic surveillance of Thompson's phone on

November 22, 2006. Burke was able to determine that Thompson was

a four star general, and defendant Carl Holdren, also known as

"Killa," was a lieutenant or LT.

At approximately midnight on November 22, 2006, Long Branch

Police Department (LBPD) dispatched officers to investigate 911

reports that two men had been shot inside a residence on

Hendrickson Avenue. Two victims, Michael Montgomery, a member of

3 A-5071-13T1 the Brims, and Keith Logan, a member of G-Shine, were found at the

scene. Logan survived the shooting; Montgomery did not.

The NJSP identified defendants as suspects in the

Montgomery/Logan shooting from calls intercepted before and after

the shooting. Two days before the shooting, Quemere McClendon,

an SMM member known as "Tragedy" or "Trag," called Carter to tell

him that G-Shine members "tried to sleepwalk" him, which, Burke

explained, meant they were trying to kill or seriously hurt him.

McClendon asked for Carter's permission to retaliate and Carter

gave him the go ahead. On November 22, 2006, the day of the

shooting, Thompson called Carter to report the wrong person was

killed and the Brims knew that SMM was responsible.

On December 28, 2006, Michael Stallworth, a Brims member

known as "Lock," kidnapped and assaulted an SMM member named

"Slash" in retaliation for Montgomery's murder. Stallworth called

Thompson, admitted he kidnapped Slash and threatened additional

violence.

As documented in the intercepted calls, Thompson directed

that Stallworth be shot, and Holdren agreed to shoot him. Thompson

laid out a plan for the killing. He ordered Zachery Butts, another

SMM member, to obtain a rental car and deliver a gun to Holdren

for the purpose of killing Stallworth. Butts obtained a rental

car, a 2006 silver Mitsubishi Galant, and the gun. The plan was

4 A-5071-13T1 foiled when the rental car was stopped for speeding by Lakewood

Police and, acting on information received from the NJSP, officers

searched the car and recovered the gun.

Holdren and Thompson (collectively, defendants) were charged

along with four other defendants1 in a twenty-four count

indictment. Both were charged with first-degree racketeering,

N.J.S.A. 2C:41-2(c)-(d) (count one); first-degree conspiracy to

murder Logan, N.J.S.A. 2C:5-2 (count two); three counts of second-

degree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a) and N.J.S.A. 2C:2-6 (counts three, five and twenty);

first-degree attempted murder of Logan, N.J.S.A. 2C:11-3(a),

N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6 (count four); first-degree

purposeful or knowing murder of Montgomery, N.J.S.A. 2C:11-

3(a)(1)-(2) and N.J.S.A. 2C:2-6 (count six); first-degree

conspiracy to murder Stallworth, N.J.S.A. 2C:5-2 (count nineteen);

and first-degree attempted murder of Stallworth, N.J.S.A. 2C:11-

3(a), N.J.S.A. 2C:5-1, and N.J.S.A. 2C:2-6 (count twenty-one).

Neither Thompson nor Holdren were charged in counts ten through

seventeen.

In addition, Holdren was charged with second-degree

conspiracy to commit armed robbery of J.H., N.J.S.A. 2C:5-2 (count

1 The other four defendants are: Butts, McClendon, Paul Lewis, and Darnell Stovall, all of whom were members of SMM.

5 A-5071-13T1 seven), an additional count of second-degree possession of a weapon

for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight) and

first-degree armed robbery of J.H., N.J.S.A. 2C:15-1(a)(2) and

N.J.S.A. 2C:2-6 (count nine). Holdren was convicted by a jury on

counts one through six, nineteen, twenty and twenty-one). He was

found not guilty on counts seven, eight, and nine.

Thompson was also charged with third-degree possession with

intent to distribute cocaine to a juvenile, N.J.S.A. 2C:35-

5(a)(1), (b)(3), N.J.S.A. 2C:35-8, and N.J.S.A. 2C:2-6 (count

eighteen); third-degree possession of a controlled substance with

intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) and N.J.S.A.

2C:2-6 (count twenty-two); and third-degree possession of a sawed-

off shotgun, N.J.S.A. 2C:39-3(b) (count twenty-three). He entered

a guilty plea pursuant to a plea agreement to counts one, two,

four, six, nineteen and twenty-one.

In his appeal, Holdren presents the following arguments for

our consideration:

POINT I

DENIAL OF THE DEFENDANT'S APPLICATION FOR SEVERANCE OF COUNTS 19 AND 21 FROM THE OTHER COUNTS IN THE INDICTMENT WAS ERROR.

POINT II

THE WARRANTLESS SEARCH OF THE MITSUBISHI GALANT VIOLATED THE

6 A-5071-13T1 DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL SEARCH AND SEIZURE GUARANTEED BY THE NEW JERSEY AND FEDERAL CONSTITUTION.

POINT III

THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.

POINT IV

DETECTIVE VIRGILIS [SIC] GANG TESTIMONY SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE BECAUSE IT WAS AN IMPROPER "NET OPINION" AND OPINED ABOUT THE ULTIMATE ISSUE TO BE DECIDED BY THE JURY.

POINT V

THE STATE FAILED TO PROVE THAT DEFENDANT'S ACTIONS AFFECTED TRADE AND COMMERCE TO SUPPORT THE RACKETEERING CONVICTION.

POINT VI

ADMISSION OF IRRELEVANT AND IMMATERIAL EVIDENCE REGARDING POSSESSION OF A WEAPON BY SOPHIA JOHNSON DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT VII

DENIAL OF THE DEFENDANT'S MOTION FOR NEW TRIAL WAS ERROR.

POINT VIII

THE AGGREGATE SENTENCE IMPOSED UPON MR. HOLDREN OF LIFE PLUS 40 YEARS WITH 92 1/2 YEARS OF PAROLE

7 A-5071-13T1 INELIGIBILE [SIC] WAS MANIFESTLY EXCESSIVE AND MUST BE MODIFIED AND REDUCED. (NOT RAISED BELOW).

POINT IX

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (NOT RAISED BELOW).

Thompson argues his conviction and sentence should be set

aside based on the following arguments:

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE RECOVERED FROM THE RENTAL CAR.

THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS EVIDENCE RECOVERED FROM CARL HOLDREN'S BEDROOM.

THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT FAILED TO STATE REASONS FOR IMPOSING A CONSECUTIVE SENTENCE ON COUNT ONE.

After reviewing these arguments in light of the record and

applicable principles of law, we conclude that none of them have

merit. We further conclude that the arguments raised in Points

I, III, V, VI, VII and IX of Holdren's appeal merit limited or no

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

8 A-5071-13T1 II.

We first address Holdren's challenges to the trial court's

denial of his pretrial motions for severance and the dismissal of

the indictment. These arguments lack merit and warrant only

limited discussion.

A.

Holdren filed a motion to sever counts nineteen through

twenty-one, which charged him with conspiracy to murder

Stallworth, attempted murder of Stallworth and possession of a

handgun for an unlawful purpose to use against Stallworth. The

State opposed the motion, arguing that each of these offenses were

alleged as predicate acts for the racketeering offense charged in

count one.

As the trial court noted, all the charges were properly joined

under Rule 3:7-6. The trial court reviewed the potential for

prejudice that would justify severance, see R. 3:15-2(b), noted

Holdren failed to identify any undue prejudice beyond the mere

"danger of association," and determined the State's interest and

judicial efficiency outweighed any prejudice Holdren would suffer.

We agree.

B.

In Point III, Holdren argues the trial court erred in denying

his motion to dismiss the indictment based upon the State's alleged

9 A-5071-13T1 failure to present exculpatory evidence to the grand jury.

During a grand jury proceeding, the prosecutor must present

any evidence that "both directly negates the guilt of the accused

and is clearly exculpatory." State v. Saavedra, 222 N.J. 39, 63

(2015) (quoting State v. Hogan, 144 N.J. 216, 237 (1996)). To be

clearly exculpatory, "the evidence must 'squarely refute[] an

element of the crime.'" Ibid. (alteration in original) (quoting

Hogan, supra, 144 N.J. at 237). A prosecutor's failure to do so

warrants dismissal of the indictment but courts are directed to

"act with substantial caution before concluding that a

prosecutor's decision in that regard was erroneous"; such relief

is appropriately granted in an "exceptional case." Ibid. (quoting

Hogan, supra, 144 N.J. at 238-39). We review the trial court's

decision for abuse of discretion. Id. at 55.

The State presented testimony from Detective Michael

Verdadeiro about conversations he had with two women, B.R. and

N.D. The women told Verdadeiro they knew Holdren well, saw him

at the scene of the shooting, standing beside a masked man and

that, after Montgomery and Logan pulled up to the house, "[Holdren]

and the second man began shooting at them and everybody fled the

scene." The alleged exculpatory information was that, in their

formal statements, B.R. and N.D. stated they did not observe

Holdren with a gun. B.R. stated she saw the masked man shooting

10 A-5071-13T1 a gun; N.D. stated she did not see either man with a gun but heard

the gunshots.

The trial court denied defendant's motion, finding the

statements did not meet the standard for exculpatory information

that required its presentation to the grand jury. The trial court

noted that, although the witnesses were unable to state they saw

a gun in Holdren's hands, they did not state affirmatively that

Holdren did not have a gun. We note further that Holdren was

charged both as a principal and an accomplice in the murder, and

that, even when the formal statements are considered, they do not

"directly negate[]" his guilt. Id. at 63 (quoting Hogan, supra,

144 N.J. at 237). The motion to dismiss the indictment was,

therefore, properly denied.

III.

Both defendants argue the trial court erred in denying their

motions to suppress the gun seized from the 2006 Mitsubishi Galant

rental car.

The parties stipulated to a statement of facts for the

suppression hearing, which we summarize. The stipulation

acknowledged the ongoing investigation, Burke's training and

experience regarding street gangs and his understanding of calls

11 A-5071-13T1 intercepted on December 28, 2006. Burke advised the officer

conducting surveillance of SMM of the following:

One of Thompson's SMM members had been attacked by members

of the Brims in retaliation for the Montgomery's death. Montgomery

was shot and killed when Thompson, along with Holdren and

McClendon, allegedly attempted to murder another gang member,

Logan. Unlike Montgomery, Logan was only injured and survived the

shooting. Thompson ordered Holdren to shoot Stallworth and

arranged for Butts to give Holdren a gun.

As a result of this information, surveillance was initiated

by Detective Kevin Plumaker, Detective Lieutenant Michael Sovey,

Detective Michael Smith, and State Trooper David Tabon, and others

of the residence of C.P., Butts's girlfriend, in Freehold.

At approximately 4:15 p.m. on December 28, 2006, Tabon

followed Butts and C.P. to a car rental agency where Butts obtained

a 2006 silver Mitsubishi Galant. Tabon then followed Butts back

to C.P.'s residence, arriving at approximately 5:15 p.m.

In a conversation between Butts and Thompson intercepted at

approximately the same time, Butts told Thompson he had obtained

a rental car and that he suspected law enforcement officers were

following him. A few minutes later, Sovey observed Butts enter

the rental car and leave C.P.'s residence, wearing a "Lakers"

12 A-5071-13T1 jacket. Sovey followed Butts to A.W.'s residence, where A.W.

joined Butts in the rental car. Sovey and Plumaker followed them.

At approximately 5:50 p.m., Sovey pulled into a retail parking

lot and parked because he perceived Butts and A.W. might again

suspect they were being followed. However, A.W. drove into the

same parking lot. There were also three other cars present: C.P.'s

vehicle, a black Dodge Charger with a New York license plate, and

a green Ford Expedition bearing a New Jersey license plate. A

number of people stood around outside the vehicles.

Sovey noted the trunks of the rental car and the black Dodge

Charger were open. Two unknown men stood in front of the trunks

as if they were standing guard or trying to block the view of the

trunks. A third unknown person handed a white plastic bag to

Butts, who was wearing the same Lakers jacket observed earlier.

Butts placed the white plastic bag in the trunk of the rental car.

Sovey transmitted his observations to the other officers. The men

then closed both trunks and everyone left in their respective

vehicles.

Plumaker followed Butts back to C.P.'s residence, arriving

at approximately 6:50 p.m. In a conversation intercepted during

the drive, Butts told Thompson he was being followed by law

enforcement officers. Butts left C.P.'s residence at

approximately 7:15 p.m., minutes before Thompson arrived, and

13 A-5071-13T1 returned at approximately 7:25 p.m. Other known SMM members were

observed leaving and returning to the residence.

At approximately 10:10 p.m., Plumaker observed Butts placing

a white item in the trunk of the rental car. He did not observe

whether the item was brought from elsewhere or simply removed from

the trunk and then replaced inside it. Approximately ten minutes

later, Butts entered the rental car with A.W. and two others and

A.W. drove away.

Sovey followed the rental car along local roads but lost

track of it when it turned sharply into a retail parking lot on

Route 9 in Howell. Sovey informed the Ocean County Prosecutor's

Office that he had lost track of the rental car. NJSP issued a

"be on the look out" (BOLO) bulletin for the make, model and

registration number of the rental car.

Sometime thereafter, Sergeant Maureen McGilloway of the

Lakewood Police Department received the BOLO information from a

state trooper, who told her "troopers conducting surveillance had

lost sight of the suspect vehicle and had requested assistance."

The trooper also said there was a safety concern because there was

a gun in the rental car. Sergeant McGilloway reported this

information to the Lakewood Police Department.

14 A-5071-13T1 Officer David Silberstein of the Lakewood Police

Department observed the rental car speeding and initiated a stop.

Another Lakewood police officer, Christopher Matlosz, joined him.

Silberstein confirmed the rental car's registration number

was for a vehicle sought by the NJSP. Silberstein told Matlosz

to stay back, as the BOLO bulletin stated "the suspects had a

weapon and were considered dangerous."2 The officers were advised

to hold the occupants and wait for members of the Prosecutor's

Office, NJSP and U.S. Marshals. Dispatch called for additional

Lakewood Police officers to respond to the scene.

Silberstein ordered A.W. "to turn the car off and drop the

keys from the window" and he complied. Using the loudspeaker,

Silberstein then ordered the occupants of the rental car "to keep

their hands in view outside of the windows of the vehicle."

Significant time passed and multiple Lakewood Police Officers

arrived at the scene.

Because he knew there was a weapon in the rental car,

Silberstein began to remove the occupants from the vehicle. Each

2 Although Silberstein correctly identified the registration number as that in the BOLO bulletin, he mistakenly believed he had stopped a vehicle that was the subject of a different BOLO bulletin related to the shooting of a gang member that had occurred earlier that day.

15 A-5071-13T1 occupant was removed individually, checked for weapons, handcuffed

and placed in a patrol vehicle.

Several officers then searched the rental car for the weapon.

Flashlights were used to look into the passenger compartment of

the vehicle. A bag found in the passenger compartment was

searched; it did not contain a weapon. An access door to the

trunk was set in the middle seat armrest of the rear passenger

seat. An officer pushed a button that opened the trunk.

Smith used a flashlight to look into the open trunk of the

rental car and observed a false floor panel covering the spare

tire was partially open. Without moving the floor panel or

anything else inside the trunk, Smith "observed the handle of a

firearm exposed from within a white plastic bag that was underneath

that opening in the floor panel." He seized the weapon, "a black

.45 caliber H-1 [sic] Point firearm, Serial Number 338969," which

"was loaded with six hollow-point rounds; one in the chamber and

five in the magazine." The officers turned the weapon over to the

Lakewood Police Department and called dispatch to impound the

In a conversation intercepted between Thompson and Holdren

soon after the rental car was stopped, they stated they suspected

Butts had been detained by the police, because he never arrived

to deliver the weapon to Holdren.

16 A-5071-13T1 B.

The constitutional standard applicable at the time of the

warrantless search of the rental car3 was set forth in State v.

Pena-Flores, 198 N.J. 6 (2009). For a warrantless search of an

automobile to fall within the automobile exception to the warrant

requirement, the State was required to prove: "(1) the stop is

unexpected; (2) the police have probable cause to believe that the

vehicle contains contraband or evidence of a crime; and (3) exigent

circumstances exist under which it is impracticable to obtain a

warrant." Id. at 28.

Defendants do not challenge the first two of these criteria.

They argue the circumstances did not present any exigency to

justify a warrantless search. Thompson argues "exigency only

3 In State v. Witt, 223 N.J. 409 (2015), the Supreme Court abandoned the "pure exigent-circumstances requirement" it had added to the constitutional standard to justify an automobile search and returned to the standard set forth in State v. Alston, 88 N.J. 211 (1981), "that a warrantless search of an automobile was constitutionally permissible, provided that the police had probable cause to search the vehicle and that the police action was prompted by the 'unforeseeability and spontaneity of the circumstances giving rise to probable cause,'" Witt, supra, 223 N.J. at 414 (quoting Alston, supra, 88 N.J. at 233. The Court observed "[t]he Alston standard was seemingly consistent with the federal exception to the warrant requirement." Ibid. The Court made clear this standard was to be given prospective application. Id. at 449. Therefore, as the State concedes, it was required to prove the existence of exigent circumstances to justify a warrantless search of the rental car under the automobile exception.

17 A-5071-13T1 exists where the concern is the destruction or loss of evidence."

Holdren argues there was no exigency here because the occupants

of the vehicle were removed and secured before the warrantless

search was conducted. Neither argument has merit.

"[E]xigency in the constitutional context amounts to

'circumstances that make it impracticable to obtain a warrant when

the police have probable cause to search the car.'" State v.

Cooke, 163 N.J. 657, 676 (2000) (quoting State v. Colvin, 123 N.J.

428, 437 (1991)). We determine the existence of exigency "on a

case-by-case basis" under "the totality of the circumstances,"

Pena-Flores, supra, 198 N.J. at 28, employing "a fact-sensitive,

objective analysis," State v. Walker, 213 N.J. 281, 292 (2013)

(quoting State v. DeLuca, 168 N.J. 626, 632 (2001)).

Most commonly, exigency within the context of an automobile

search is presented because police officers believe contraband is

located within the car and the danger exists that the suspect or

an associate can destroy or conceal the contraband if police do

not intervene. See, e.g., Cooke, supra, 163 N.J. at 673 ("There

is an urgent, immediate need to search a vehicle when there is a

realistic possibility that someone may remove the vehicle or its

contents."). Under such circumstances, the exigency may be

diminished by factors that reduce that probability, such as the

arrival of other police officers to secure the scene. See, e.g.,

18 A-5071-13T1 State v. Dunlap, 185 N.J. 543, 551 (2006) (noting that "the

presence of ten officers" at the scene of an automobile search

particularly justified the "conclusion that exigency was absent").

This case presented a different type of exigency that was

more threatening. Based on the intercepted calls, the officers

had probable cause to believe Thompson had ordered the killing of

Stallworth and articulated a plan for carrying it out that called

for Butts to acquire the gun and use a rental car to deliver the

gun to Holdren. Surveillance established the plan was in progress

when the rental car was stopped by police. The exigency arose out

of the need to locate that gun and thwart the murder plot. While

it is undisputed the officers had probable cause to believe a

firearm was in the rental car, the facts also supported a

reasonable belief that the defendants, who suspected they were

under police surveillance, disposed of the gun during the periods

when police officers lost sight of them. As the trial court noted

here, the situation demanded the police ascertain expeditiously

whether the gun was in the car or not for if it was not, the police

would have to redouble their efforts to locate it elsewhere.

In State v. Alvarez, 238 N.J. Super. 560, 567-68 (App. Div.

1990), we listed some of the factors the Supreme Court had

recognized in State v. Hutchins, 116 N.J. 457 (1989), and State

v. Lewis, 116 N.J. 477 (1989), as contributing to a finding that

19 A-5071-13T1 an exigency existed. A number of those factors are present here:

"the degree of urgency involved and the amount of time necessary

to obtain a warrant"; "reasonable belief that the contraband is

about to be removed"; "information indicating the possessors of

the contraband are aware that the police are on their trail"; "the

gravity of the offense involved"; "the possibility that the suspect

is armed"; and "the strength or weakness of the facts establishing

probable cause." Alvarez, supra, 238 N.J. Super. at 568.

The confluence of these factors here resulted in "a public

emergency and a law enforcement nightmare" that was not dissipated

when the occupants of the rental car were removed and secured.

State v. Wilson, 362 N.J. Super. 319, 333 (App. Div.), certif.

denied, 178 N.J. 250 (2003) (holding exigency continued after six

shots were fired on public street one block from Atlantic City

boardwalk and no gun was found on the suspect because there was

"real danger" the gun was hidden or discarded in a public place

and would be lost as evidence or "fall into malevolent, untrained

or immature hands").

We therefore conclude the officers were presented with

exigent circumstances that justified the warrantless search of the

IV.

A warrantless search of Holdren's bedroom resulted in the

20 A-5071-13T1 seizure of various items: a black North Face jacket with the words

"Dark City" written on the back, a red bandana, a red do-rag, a

cell phone, four photographs, an electronic scale, and

"miscellaneous papers related to [SMM] of the Bloods." The State

contended the search was conducted pursuant to a valid consent to

search given by Holdren's foster mother, Michelle Dalton. On

appeal, Thompson challenges the search and seizure; Holdren does

not.

Sergeant Brian Veprek of the Monmouth County Prosecutor's

Office (MCPO) and Dalton testified at the suppression hearing,

providing different accounts.

According to Veprek, he first went to Dalton's residence

after Holdren was identified as a suspect in the shootings to

confirm Holdren lived there and to see if Holdren would voluntarily

go to the MCPO to talk about the investigation. Dalton answered

the door and brought Holdren to the door. Holdren agreed to

accompany the officers to the MCPO. No request was made for any

consent to search the residence at this time.

On December 30, 2006, Veprek returned to the residence with

two other officers in unmarked police cars. As before, Dalton

answered the door and brought Holdren to the door at Veprek's

request. Holdren agreed to accompany the officers to the LBPD to

21 A-5071-13T1 be interviewed. The police did not have an arrest warrant for

Holdren and, according to Veprek, no one said he was under arrest

and Holdren was not placed in handcuffs. Both Holdren and Dalton

were calm and cooperative as they had been during the prior visit.

Detective Sergeant Fernando Sanders advised Veprek that

Dalton stated she had been a probation officer or a corrections

officer. Veprek conceded he lacked probable cause to obtain a

search warrant at that time but decided to "give it a shot in the

dark" and ask for consent to search Holdren's bedroom. When he

asked, Dalton agreed to provide her consent to the search.

Veprek testified he read the consent form to Dalton. He said

the form states the signatory has been advised of: the right to

refuse the search, to revoke consent, to be present during the

search, and to authorize police to remove items of evidential

value; and that the signatory gives police "this permission

voluntarily, of [his or her] own free will, without coercion,

fear, or threat." Dalton read the form aloud and signed the form.

Veprek and Sanders signed the form as witnesses. During this

process, Dalton appeared "calm and cooperative," just as she was

during her conversation with Sanders and during the prior visit.

Dalton brought the officers to Holdren's bedroom. The door

was open and unlocked; no padlock was on the door. Veprek saw the

items that were seized in plain view. Dalton was in the room

22 A-5071-13T1 during the entire search, which lasted about ten minutes. When

Veprek found the SMM paperwork, he told Dalton that Holdren was a

member of a Bloods street gang. Dalton's demeanor changed and she

became visibly upset.

Veprek testified no officer ever threatened Dalton. They did

not tell her they would "tear her house apart"; they did not draw

their weapons at any point during either visit; and there was no

weapon pointed on the house on a tripod. He testified Dalton did

not express fear or reluctance during the search and did not appear

coerced.

Dalton testified she had worked as a corrections officer for

Monmouth County Correctional Facility for six years until 1996.

As a corrections officer, she attended the police academy and took

a course dealing with search and seizure issues.

She explained Holdren began living in her house when he was

fifteen years old, and she gave him his own bedroom. She became

Holdren's foster mother through the Division of Youth and Family

Services (DYFS) when Holdren was seventeen years old. DYFS sent

Dalton a monthly check to pay for Holdren's expenses until he

turned eighteen in July 2006, at which point DYFS began sending

the checks directly to Holdren. Dalton testified Holdren cashed

his checks and gave all the money to her to pay for his rent,

food, utilities, and clothes, and Dalton gave some money back to

23 A-5071-13T1 him as "[s]pending money." She testified Holdren kept his bedroom

door closed, but she sometimes did his laundry and had access to

his room to put clean clothes or linens on his bed.

Dalton testified that when she answered the door on December

30, 2006, she saw three police officers in plain clothes, one of

whom was pointing a gun on a tripod at the door. She explained

she was "petrified" and "startled," and her first words to the

officers were, "what do you want to do, shoot me?" She confirmed

she called Holdren outside on the officers' request, but stated

they handcuffed Holdren as he was walking to the unmarked police

car. She also testified there were two marked police cars from

the Lakewood Police Department with uniformed officers.

She testified that, when the officers asked her for permission

to search, "I felt like I had to let them search. If not, they

would tear up the house. I had no choice in the matter." She

confirmed she remained calm, and signed the form because there was

"a cop in front of the house with a gun, and [she] felt like [she]

had no choice, but to let them search." She stated the police did

not go over the form with her, that she signed it "because [she]

did not want [her] . . . home to be destroyed." Dalton stated

further she did not sign the form until she and the officers were

already inside Holdren's bedroom.

Dalton testified Holdren usually kept his bedroom door

24 A-5071-13T1 closed, but she confirmed there was no lock on the door and the

door was open before the police entered to search. She explained

the search lasted about twenty or twenty-five minutes and she was

very upset, though she maintained her composure and did not cry

while the officers were there.

The trial court found Veprek "highly credible" and found

portions of Dalton's testimony not credible. Dalton appeared

evasive during cross-examination and generally inconsistent and

unreliable. The court specifically rejected Dalton's testimony

that the police arrived on December 30 with a gun on a tripod

pointed at the house and her testimony that the officers asked her

to sign the consent form after they were already inside the house.

Noting Dalton was a former corrections officer and a "strong

woman," the court found she knew her rights, could not be forced

to do something she did not want to do, and would have complained

if she could not stop the search. The court also reasoned that,

if the officers were going to coerce Dalton, it was more likely

they would have completed the search before seeking her written

consent to search. The court concluded Dalton's consent was free,

voluntary, and not the result of coercion.

The trial court also determined Dalton's consent was valid

because she had "common authority" over the searched area. The

court found the relationship between Dalton and Holdren was more

25 A-5071-13T1 like a foster parent or guardian to a child than like a landlord

to a tenant. The court noted Dalton repeatedly referred to Holdren

as her son during her testimony and that Holdren gave all his DFYS

money to Dalton, who then gave him an allowance. The court also

noted Dalton had "complete access to that room, to change the bed,

to do his clothes, to go into his hamper," and it was an "open

room." The court noted Holdren took no "special steps to protect

his personal effects from the scrutiny of the other residents,"

he did not use a lock on his door or any containers in his room,

and he left the door open when he left to go with the police.

Thompson argues the trial court erred in denying the motion

to suppress evidence recovered in Holdren's bedroom because Dalton

did not have authority to consent to the search, and, even if she

did, her consent was not voluntary. For support, he relies on

Dalton's testimony that Holdren paid her rent, Holdren kept his

door closed, and she only had access to place clean clothes or

linens on his bed. Thompson also cites her testimony, rejected

by the trial court, that she felt she had "no choice" after being

threatened by the police.

In reviewing a trial court's decision in a suppression motion,

we defer to its factual findings that are "supported by sufficient

credible evidence," disturbing only those findings that "are so

26 A-5071-13T1 clearly mistaken 'that the interests of justice demand

intervention and correction.'" State v. Scriven, 226 N.J. 20, 32-

33 (2016) (quoting State v. Elders, 192 N.J. 224, 243-44 (2007)).

Our review of the legal conclusions based on those findings is de

novo. Ibid.

To withstand the suppression motion, the State was required

to show proper consent was given freely and voluntarily. State

v. Coles, 218 N.J. 322, 338 (2014). This requires proof that

Dalton "knowingly waived [her] right to refuse to consent to the

search." State v. Lamb, 218 N.J. 300, 315 (2014) (quoting State

v. Domicz, 188 N.J. 285, 308 (2006)). Any consent must not be

"the result of duress or coercion, express or implied." Ibid.

The State must "show that the individual giving consent knew . . .

she 'had a choice in the matter.'" State v. Carty, 170 N.J. 632,

639 (quoting State v. Johnson, 68 N.J. 349, 354 (1975)), modified

174 N.J. 351 (2002).

Giving appropriate deference to the trial court's opportunity

to weigh the credibility of the witnesses, the record provides

ample support for the trial court's finding that Dalton voluntarily

gave her consent to the warrantless search of Holdren's bedroom.

She signed a consent to search form that advised her of her rights

to refuse the search. Moreover, as a former corrections officer,

she had attended the police academy and was familiar with her

27 A-5071-13T1 rights. In addition to finding Dalton's testimony regarding

coercive behavior by the police was not credible, the trial court

reasoned that, after finding both Dalton and Holdren "calm and

cooperative," in their first visit to the residence, the officers

would have no reason to change their tactics to adopt a threatening

approach.

We therefore turn to the legal question, whether Dalton had

the authority to consent to the search.

A third party can provide valid consent to a search of the

defendant's home if that person has "joint occupation" of and

"common authority" over the premises. State v. Cushing, 226 N.J.

187, 199-200 (2016) (quoting Fernandez v. California, __ U.S. __,

__ , 134 S. Ct. 1126, 1132-33, 188 L. Ed. 2d 25, 32-33 (2014); see

also State v. Suazo, 133 N.J. 315, 319-20 (1993)). Although a

landlord generally lacks such authority regarding a tenant's

premises, a parent generally can authorize a search of the room

of an adult child. Cushing, supra, 226 N.J. at 200-01; State v.

Coles, 218 N.J. 322, 340-41 (2014). The payment of rent does not

necessarily result in the application of a landlord-tenant

relationship to the equation. Coles, supra, 218 N.J. at 341 n.5.

In assessing the consent given by Dalton, the "question is

'whether the officer's belief that the third party had the

authority to consent was objectively reasonable in view of the

28 A-5071-13T1 facts and circumstances known at the time of the search.'" Id.

at 340 (quoting Suazo, supra, 133 N.J. at 320). The "officers

need not ultimately be factually correct about a party's ability

to consent to a search." Ibid.

In Coles, the Court stated the ultimate question "remains one

of objective reasonableness based on an assessment of the totality

of the circumstances." Id. at 341. When an adult child is living

with parents, determining whether a child has exclusive possession

of his room, appropriate factors to consider include "whether the

child pays rent; whether the parent has access to the child's room

for cleaning or other such general access purposes; and whether

the child has the right to lock the door to deny access." Id. at

340 (footnote omitted) (citing State v. Crumb, 307 N.J. Super.

204, 245 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998)).

Dalton testified that Holdren had no lock on his door and the

door was open at the time she consented to the search. Dalton had

access to Holdren's room to do his laundry and return it to his

bed. Although Holdren gave Dalton money purportedly for "rent,"

the trial court viewed this less as a business transaction and

more of a familial contribution because Holdren merely gave Dalton

his monthly DYFS check, which had been going directly to Dalton

before he turned eighteen, and she gave him spending money from

that sum. These findings are supported by credible evidence and

29 A-5071-13T1 provide sufficient support for the conclusion that Dalton had

common possession of Holdren's bedroom. We therefore agree with

the trial court that Dalton was authorized to provide consent for

the search of Holdren's bedroom. The motions to suppress the

evidence seized from that search were properly denied.

In Points IV and VI, Holdren challenges the admission of

evidence, specifically, opinion testimony from NJSP Sergeant

Thomas J. DeVirgiliis regarding the effects of gang activity on

trade and commerce in Monmouth and Ocean Counties, and testimony

that S.J. possessed a gun near the shooting scene.

We grant substantial deference to the trial court's

discretion on evidentiary rulings unless it is a clear error of

judgment or so wide of the mark that a manifest denial of justice

results. See, e.g., State v. Koedatich, 112 N.J. 225, 313 (1988),

cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803

(1989); State v. Carter, 91 N.J. 86, 106 (1982); State v. E.B.,

348 N.J. Super. 336, 344-345 (App. Div. 2002). Moreover, because

there was no objection to the testimony now challenged on appeal,

our review is limited to a search for plain error, State v. Gore,

205 N.J. 363, 383 (2011), that is, an error "clearly capable of

producing an unjust result," State v. Reeds, 197 N.J. 280, 298

(2009) (quoting R. 2:10-2). Reversal of a "conviction is required

30 A-5071-13T1 only if there was error 'sufficient to raise a reasonable doubt

as to whether [it] led the jury to a result it otherwise might not

have reached.'" State v. Atwater, 400 N.J. Super. 319, 336 (App.

Div. 2008) (alteration in original) (quoting State v. Daniels, 182

N.J. 80, 95 (2004)).

Holdren was charged with conspiracy to commit racketeering,

N.J.S.A. 2C:41-2(c) and (d). To convict him under this statute,

the State had to show Holdren was employed by or associated with

a racketeering enterprise that "affect[ed] trade or commerce" in

New Jersey. State v. Casilla, 362 N.J. Super. 554, 565 (App.

Div.), certif. denied, 178 N.J. 251 (2003); N.J.S.A. 2C:41-2(c).

DeVirgiliis was qualified as an expert specifically "in the

history, structure, rules, regulations, practices, terminology and

dynamics of the Bloods street gang." In Point IV, Holdren argues

that DeVirgiliis's testimony regarding the effects of gang

activity on trade and commerce in Monmouth and Ocean counties in

November and December 2006 was an impermissible net opinion because

it was rendered "without any factual or scientific basis" and "was

nothing more than a hypothesis as to what occurred." He further

argues "[i]t was grossly improper for [DeVirgiliis] to opine on

that element of the [racketeering] offense that needed to be proven

by the State." He also contends the jury charge that they could

31 A-5071-13T1 either accept or reject expert opinions "did not dissipate the

prejudice from the testimony."

Because our New Jersey RICO statute is modeled upon its

federal counterpart, it is appropriate to look to federal RICO

cases for guidance. State v. Cagno, 211 N.J. 488, 508 (2012).

Like our statute, the federal statute requires proof of an effect

on commerce, the difference being that, under 18 U.S.C.A. §

1962(c), the racketeering activity must affect interstate

commerce, and under our statute, the activity must only affect

trade or commerce. Casilla, supra, 362 N.J. Super. at 564-65. In

assessing the sufficiency of proof to satisfy this element under

the federal statute, "[a] minor or minimal influence on interstate

commerce is sufficient." United States v. Farmer, 924 F.2d 647,

651 (7th Cir. 1991). The "required nexus between the activities

of the enterprise and interstate commerce need not be great," and

will be satisfied, "for example, where the enterprise obtains

'supplies from companies located outside' the state." Ibid. The

expansive definition of "trade or commerce" included in our statute

similarly suggests that a minor influence is sufficient to satisfy

this element of the RICO offense. N.J.S.A. 2C:41-1(h) states,

"'Trade or commerce' shall include all economic activity involving

or relating to any commodity or service." (Emphasis added).

At trial, DeVirgiliis testified, without objection, that the

32 A-5071-13T1 Bloods make money "primarily . . . through selling drugs, . . .

guns . . . and through extortion, robbery, and even prostitution."

Asked specifically how the various sets of the Bloods had an effect

on trade and commerce in Monmouth and Ocean Counties, DeVirgiliis

stated:

[T]hat would be tied into the propensity toward violence that the Bloods street gang has always demonstrated. Particularly in this investigation with them talking about the war . . . with the Brims, getting guns, handguns, trips, they want a chopper, that affects trade and commerce, because that instills fear in citizens who don’t want to leave their homes, who don’t want to travel to the store and down the street from their residence.

It also is a trickle-down effect, because those individuals or community members are living in a fear in a gang-infested area. They fear for their safety. They may leave the area. They may just go to the store. And in turn . . . [there is] a trickle-down effect towards the stores because they are not receiving the business. And then those businesses either are terminated, they go out of business or they may leave the area and try a new area to set up shop.

[(Emphasis added).]

In light of the minimal impact required to satisfy the "trade

or commerce" element, DeVirgiliis's testimony that the Bloods were

getting guns during the course of this investigation was sufficient

to prove the requisite effect. That testimony also fell within

the scope of his qualifications as an expert. But, DeVirgiliis

33 A-5071-13T1 went on, without objection, to provide not only the gratuitous

opinions cited above but also to opine about the reactions of

residents to gang presence.

Holdren does not challenge the trial court's decision to

qualify DeVirgiliis as an expert "in the history, structure, rules,

regulations, practices, terminology and dynamics of the Bloods

street gang." The thrust of his argument is that DeVirgiliis

lacked an adequate basis to provide an opinion on the specific

effects of gang activity on the local economy and housing market

and that his opinion impermissibly trod upon the ultimate issue

the jury had to decide – whether the activity affected trade or

commerce. There is merit to this criticism.

N.J.R.E. 702 permits qualified expert witnesses to testify

"in the form of an opinion or otherwise," and N.J.R.E. 703 governs

the information "upon which an expert bases an opinion or

inference." Under N.J.R.E. 703, an expert opinion may be based

on "facts or data derived from (1) the expert's personal

observations, or (2) evidence admitted at the trial, or (3) data

relied upon by the expert which is not necessarily admissible in

evidence but which is the type of data normally relied upon by

experts in forming opinions on the same subject." State v.

Townsend, 186 N.J. 473, 494 (2006) (citation omitted); Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on

34 A-5071-13T1 N.J.R.E. 703 (2017). "The corollary of that rule is the net

opinion rule, which forbids the admission into evidence of an

expert's conclusions that are not supported by factual evidence

or other data." Townsend, supra, 186 N.J. at 494. An expert's

conclusion is inadmissible if it is "based merely on unfounded

speculation and unquantified possibilities." Townsend v. Pierre,

221 N.J. 36, 55 (2015) (quoting Grzanka v. Pfeifer, 301 N.J. Super.

563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)).

"[W]hen an expert speculates, 'he ceases to be an aid to the trier

of fact and becomes nothing more than an additional juror.'" Ibid.

(quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App.

Div.), certif. denied, 145 N.J. 374 (1996)).

DeVirgiliis admitted his opinion was based solely on "what

[he had] seen . . . being a street gang investigator." He lacked

any factual evidence or data to provide a basis for an opinion

about the specific nexus he described between gang activity and

an alleged, generalized decline in business.

Moreover, an expert may not "usurp the jury's function

by . . . opining . . . in a manner that . . . invades the province

of the jury to decide the ultimate question." State v. McLean,

205 N.J. 438, 453 (2011). When DeVirgiliis's opinion extended

beyond the testimony that the gang was involved in procuring guns

during the time of the investigation to include a conclusion that

35 A-5071-13T1 the activity affected trade or commerce, his testimony invaded the

jury's province.

We conclude, however, that this testimony did not have the

clear capacity to produce an unjust result. Within the context

of the evidence that defendants readily resorted to violence to

settle scores, DeVirgiliis's unsupported theory had little

potential to prejudice Holdren. The speculative basis for his

opinion was revealed through cross-examination when DeVirgiliis

admitted he had not done any research on SMM's effect on trade and

commerce in Monmouth and Ocean counties and had not personally

spoken to anyone in those communities who felt the effects of gang

activity. Furthermore, the trial court's jury instructions

clearly specified the jury was free to accept or reject expert

testimony.

More important, when the challenged testimony is set aside,

there was more than ample evidence to prove the requisite element

that SMM's activities, which included transactions in guns,

affected trade or commerce. Therefore, the inclusion of this

testimony did not amount to plain error. See R. 2:10-2.

In Point VI, Holdren argues the admission of testimony that

S.J. possessed a gun shortly after the shooting warrants a new

trial because (1) it was "irrelevant and immaterial" under N.J.R.E.

36 A-5071-13T1 401; and (2) it was "misleading," "confusing," and "prejudicial"

under N.J.R.E. 403.

The testimony challenged on appeal came from two officers who

responded to the shooting scene. S.J., a known member of G-Shine,

who had been seen with Logan in the past, was observed near the

crime scene. She was detained at the scene and a loaded black

Glock 22 .40 caliber gun was recovered from a car she had been

observed entering. This gun was not used in the Montgomery/Logan

shooting.

The State contends this evidence was relevant because it

showed the thoroughness of its investigation. We disagree. The

evidence regarding S.J.'s possession of a gun that was unconnected

to the shooting had no probative value as to any of the essential

elements of the offenses charged against Holdren. See State v.

Buckley, 216 N.J. 249, 262 (2013). The evidence therefore did not

meet the standard for relevance as defined in N.J.R.E. 401

(evidence is relevant if it has "a tendency in reason to prove or

disprove any fact of consequence to the determination of the

action.").

But, in the absence of any objection to the testimony from

two separate witnesses, there was nothing inherently prejudicial

about the evidence to alert the trial court of any need to act,

sua sponte, to exclude the testimony. Further, in considering

37 A-5071-13T1 whether the admission of this evidence had the clear capacity to

produce an unjust result, we note Holdren admits "Johnson was not

a co-conspirator of [his] and was in fact identified as a G-Shine

member, a supposed enemy." There was, then, little danger the

jury would infer Holdren's guilt from S.J.'s possession of a gun

near the shooting. We are satisfied this testimony lacked any

capacity to produce an unjust result and, therefore, there was no

abuse of discretion in the trial court's tacit admission of this

VI.

We next turn to Holdren's arguments that the trial court

erred in denying his motions for a judgment of acquittal and for

a new trial. These arguments merit only limited discussion.

In Point V, Holdren argues the trial court erred in denying

the motion he made at the conclusion of the State's case, and

renewed following the verdict, for a judgment of acquittal on

count one, the racketeering charge. At the conclusion of the

State's case, Holdren moved for a judgment of acquittal on the

racketeering count for failure to prove his actions affected trade

or commerce. The trial court denied the motion because it believed

the State made out "a prima facie case that he may have been

engaged in trade or commerce" by either "the selling and buying

38 A-5071-13T1 of guns" or "[t]he selling or buying of drugs." After the jury

did not find the State had proven the predicate acts of drug

distribution and possession of drugs with intent to distribute,

defendant renewed his motion.

The indictment alleged thirteen predicate acts for the

racketeering charge. The jury found the State had proven beyond

a reasonable doubt: conspiracy to murder Logan, possession of a

weapon for an unlawful purpose (Logan), attempted murder of Logan,

possession of a weapon for an unlawful purpose (Montgomery), murder

of Montgomery, conspiracy to murder Stallworth, possession of a

weapon for an unlawful purpose (Stallworth) and attempted murder

of Stallworth. In denying Holdren's motion for the second time,

the court found there was "more than enough" evidence for the jury

to conclude SMM "was involved in activity which amounted to

racketeering activity . . . [a]nd that it did in fact affect trade

or commerce."4 We agree.

In Point VII, Holdren argues the trial court erred in denying

his motion for a new trial. He identifies four grounds for

granting his motion: (1) the court erred in preventing the defense

4 We note the similarity between the court's finding as to the strength of evidence on this count and the argument Holdren made to support his claim that the trial court erred in denying his motion for severance.

39 A-5071-13T1 from questioning a prosecution witness, T.A., regarding an

admission by a co-defendant; (2) the verdict was against the weight

of the evidence; (3) there was insufficient evidence to support

defendant's conviction for the attempted murder of Stallworth; and

(4) the racketeering charge should have been dismissed. The first

of these arguments requires only limited discussion and the

remaining arguments lack sufficient merit to warrant discussion.

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

At trial, defendant sought to question T.A., Montgomery's

girlfriend, about a statement she made to Montgomery's mother

regarding an alleged admission by McClendon. The proposed

testimony was that McClendon bragged about shooting Montgomery and

Logan and "was holding his waist like he had a piece" during this

statement. The State objected. At the hearing conducted out of

the presence of the jury, T.A. admitted she did not hear McClendon

make the statement and got this information "[j]ust out on the

street." The trial court ruled this testimony was double hearsay

and sustained the objection.

Holdren argues the excluded testimony should have been

admitted as a declaration against interest, pursuant to N.J.R.E.

803(b)(25), and as a statement by a co-conspirator, pursuant to

N.J.R.E. 803(b)(5). We disagree.

We review a trial court's evidentiary rulings for abuse of

40 A-5071-13T1 discretion. State v. Scharf, 225 N.J. 547, 572 (2016), and find

none here. For a double hearsay statement "[t]o be admitted into

evidence, each component of the statement must separately be

admissible under an enumerated exception to the hearsay rule."

Beasley v. Passaic Cty., 377 N.J. Super. 585, 602 (App. Div. 2005).

Neither N.J.R.E. 803(b)(5) nor (25) provide an exception for

statements by anonymous strangers to a testifying witness. The

trial court therefore correctly excluded the proposed testimony.

VII.

Finally, we turn to defendants' challenges to their

sentences.

"Appellate review of sentencing decisions is relatively

narrow and is governed by an abuse of discretion standard." State

v. Blackmon, 202 N.J. 283, 297 (2010). The Supreme Court directs

appellate courts to determine whether:

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

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)) (internal quotations marks omitted).]

Upon completion of review, appellate courts are "bound to

41 A-5071-13T1 affirm a sentence, even if it would have arrived at a different

result, as long as the trial court properly identifies and balances

aggravating and mitigating factors that are supported by competent

credible evidence in the record." State v. O'Donnell, 117 N.J.

210, 215 (1989). An appellate court should modify a sentence

"only when the trial court's determination was 'clearly

mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State

v. Jarbath, 114 N.J. 394, 401 (1989)).

VIII.

Before imposing sentence on Thompson, the trial court stated

it considered State v. Yarbough, 100 N.J. 627 (1985), cert. denied,

475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and

authorities cited by the State regarding the imposition of a

consecutive sentence for the racketeering charge. Thompson argues

this explanation was inadequate for the imposition of a consecutive

sentence on count one, the racketeering count.

At sentencing, however, his counsel did not ask the court to

impose concurrent sentences; he asked the court to sentence

Thompson in accordance with the plea agreement. The sentence

imposed on Thompson was consistent with the recommendation made

by the State as part of the plea agreement: (1) a thirty-year

sentence with no parole on count six; (2) a concurrent twenty-year

sentence, subject to NERA, on counts two, four, nineteen, and

42 A-5071-13T1 twenty-one; and (3) a consecutive ten-year sentence on count one.

Count two merged with count four, and count nineteen merged with

count twenty-one. Counts three, five, eighteen, twenty, twenty-

two, and twenty-three were dismissed.

In Yarbough, supra, 100 N.J. at 643-44, the Supreme Court set

forth factors relevant to the determination whether a consecutive

sentence is appropriate. Ordinarily, an appellate court must

remand for resentencing "[w]hen a trial court fails to give proper

reasons for imposing consecutive sentences at a single sentencing

proceeding." State v. Randolph, 210 N.J. 330, 353 (2012)

(alteration in original) (citation omitted). However, appellate

courts may "affirm[] a consecutive sentence where the facts and

circumstances leave little doubt as to the propriety of the

sentence imposed." State v. Jang, 359 N.J. Super. 85, 98 (App.

Div.), certif. denied, 177 N.J. 492 (2003). When a defendant is

sentenced according to a plea agreement and the reasons for the

imposition of a consecutive sentence are self-evident, an explicit

assessment of the Yarbough factors is unnecessary. State v. Soto,

385 N.J. Super. 247, 257 (App. Div. 2006); see also State v. S.C.,

289 N.J. Super. 61, 70-71 (App. Div. 1996).

Moreover, although the trial court did not expound upon its

analysis of the Yarbough factors, its failure to do so will not

require re-sentencing because the consecutive sentence is

43 A-5071-13T1 consistent with those guidelines. See Soto, supra, 385 N.J. Super.

at 257. The imposition of a consecutive sentence was supported

by a number of Yarbough factors: Thompson entered guilty pleas to

racketeering, conspiracy to commit murder, attempted murder of

Logan, murder of Montgomery, conspiracy to commit murder of

Stallworth and attempted murder of Stallworth. The racketeering

charge was therefore an offense separate from the other offenses,

which involved separate acts of violence or threats of violence,

that were committed at different times and places, and the

convictions for which the sentences are to be imposed are numerous.

See Yarbough, supra, 100 N.J. at 644.

Finally, the imposition of a consecutive sentence on the

racketeering conviction was consistent with the legislative intent

to "punish separately and by consecutive sentences a defendant

convicted of both a RICO conspiracy and a predicate offense."

State v. Taccetta, 301 N.J. Super. 227, 259 (App. Div.), certif.

denied, 152 N.J. 187 and 152 N.J. 188 (1997).

IX.

The trial court sentenced Holdren to life in prison, subject

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

Graves Act, N.J.S.A. 2C:43-6, for the murder of Montgomery (count

six). The trial court imposed consecutive terms on the following

counts: fifteen years, subject to a parole disqualifier of seven-

44 A-5071-13T1 and-one-half years, for racketeering (count one) and twenty-five

years, subject to NERA and the Graves Act, for the attempted murder

of Stallworth (count twenty-one). A concurrent term of twenty-five

years, subject to NERA and the Graves Act, was imposed for the

attempt to murder Logan (count four). The remaining counts merged.

The resulting aggregate sentence was life in prison plus forty

years, subject to a ninety-two-and-one-half-year period of parole

ineligibility.

Holdren acknowledges "a substantial sentence was warranted"

for his convictions, but argues the aggregate sentence of life

imprisonment plus forty years, with a parole-ineligibility period

of ninety-two-and-one-half years was "unduly punitive, grossly

excessive and should be reduced." He has not argued that the

trial court erred in finding aggravating factors three, six and

nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), or in failing to find

any mitigating factor. He faults the trial court for imposing

three consecutive sentences, for imposing a sentence

disproportionately harsher than the sentences imposed on Thompson

and another co-defendant, McClendon, and for violating the tenets

of Miller v. Alabama, 567 U.S. 460, 489, 132 S. Ct. 2455, 2475,

183 L.Ed. 2d 407, 430 (2012), when it failed to give weight to his

young age at the time he committed the crime.

45 A-5071-13T1 A.

We note that Holdren's convictions for the murder of

Montgomery and attempted murders of Logan and Stallworth meet five

Yarbough factors: (1) the crimes were clearly independent and had

as objectives the murders of three different people; (2) the crimes

involved separate acts of violence – one murder and two attempted

murders; (3) the crimes were committed nearly a month apart in two

different counties – the Montgomery/Logan shooting occurred in

Monmouth County on November 22, 2006, and the attempted murder of

Stallworth occurred in Ocean County on December 28, 2006; (4) the

crimes involved three victims – Montgomery, Logan, and Stallworth;

and (5) Holdren was sentenced on nine separate convictions. See

Yarbough, supra, 100 N.J. at 643-44.

The trial court explicitly addressed the justifications of

imposing consecutive versus concurrent sentences, ultimately

finding "consecutive sentences [were] appropriate" because

Holdren's "crimes and their objectives were predominantly

independent of each other," his acts "were separate acts against

separate victims" committed at different times and places, he had

"three individual victims," he was convicted of "nine separate

counts," and he exhibited a "history of antisocial behavior since

the age of 12." This analysis represented a fair consideration

of the factors set forth in Yarbough, supra, 100 N.J. at 643-44,

46 A-5071-13T1 for determining whether a consecutive sentence is appropriate as

well as a cogent statement of reasons for the imposition of

consecutive sentences. See State v. Miller, 108 N.J. 112, 122

(1987).

Furthermore, the imposition of a consecutive sentence on

count one, the racketeering conviction, was consistent with the

legislative intent underlying New Jersey's RICO statute, N.J.S.A.

2C:41-1 to -6.2, to "punish separately and by consecutive sentences

a defendant convicted of both a RICO conspiracy and a predicate

offense." Taccetta, supra, 301 N.J. Super. at 259 (citing State

v. Ball, 268 N.J. Super. 72, 145-46 (App. Div. 1993), aff'd, 141

N.J. 142 (1995), cert. denied sub nom. Mocco v. New Jersey, 516

U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996)).

Holdren next argues the disparity between his sentence and

the one imposed on co-defendant McClendon requires a more lenient

sentence. We disagree.

A principal goal in reviewing sentences "is the elimination

of disparity in order to ensure uniformity and predictability."

State v. Palma, 219 N.J. 584, 592 (2014). Although "[d]isparity

may invalidate an otherwise sound and lawful sentence, . . . '[a]

sentence of one defendant not otherwise excessive is not erroneous

merely because a co-defendant's sentence is lighter.'" State v.

47 A-5071-13T1 Roach, 146 N.J. 208, 232 (alteration in original) (quoting State

v. Hicks, 54 N.J. 390, 391 (1969)), 519 U.S. 1021, 117 S. Ct. 540,

136 L. Ed. 2d 424 (1996).

In performing a disparate sentencing analysis, the trial

court must first "determine whether the co-defendant is identical

or substantially similar to the defendant regarding all relevant

sentencing criteria" and "then inquire into the basis of the

sentences imposed on the other defendant." Id. at 233.

Consideration should be given to "the length, terms, and conditions

of the sentence imposed on the co-defendant." Ibid. If the trial

court finds the co-defendant to be "sufficiently similar, the

court must give the sentence imposed on the co-defendant

substantive weight when sentencing the defendant in order to avoid

excessive disparity." Ibid.

Holdren contends his culpability is comparable to that of

McClendon, who entered a guilty plea to one count of conspiracy

to murder Logan and stood trial on unrelated crimes. McClendon

received a fifty-five-year sentence subject to NERA; two

consecutive sentences, for ten and five years; and a concurrent

twenty-year sentence as part of a negotiated plea deal.

The trial court rejected Holdren's argument. It found Holdren

and McClendon were "not identical or substantially similar to each

other regarding all relevant sentencing criteria" because, unlike

48 A-5071-13T1 Holdren, McClendon pled guilty to conspiracy to commit murder, was

a lower-ranked member of SMM whose subservience to Holdren was

demonstrated by his request for help from Holdren and Thompson in

retaliating against G-Shine. The court also found it unlikely that

McClendon had shot Montgomery or Logan.

These findings, which are supported by the record, show

Holdren and McClendon had different levels of culpability in the

crimes committed. Further, the fact that McClendon's sentence

involved a negotiated plea while Holdren refused the State's plea

offer further relieves the trial court of its obligation to treat

the two co-defendants uniformly in sentencing. See State v.

Gonzalez, 223 N.J. Super. 377, 393 (App. Div.), certif. denied,

111 N.J. 589 (1988) (justifying disparate sentences where one co-

defendant cooperated with law enforcement authorities).

Therefore, this was not a case in which the disparity between

Holdren's and McClendon's sentences was cause to "invalidate an

otherwise sound and lawful sentence." Roach, supra, 146 N.J. at

232.

C.

Finally, we turn to Holdren's argument that the sentence

violated principles articulated by the United States Supreme

Court. In Miller, supra, 567 U.S. at 489, 132 S. Ct. at 2475, 183

L. Ed. 2d at 430, the Supreme Court held sentencing schemes that

49 A-5071-13T1 imposed mandatory sentences of life without parole on juveniles

convicted of homicide offenses violated the Eighth Amendment's

proscription of cruel and unusual punishment. Miller has no impact

on our review of Holdren's sentence because, at eighteen, he was

not a juvenile offender, and the sentence imposed was not a

mandatory life sentence without the possibility of parole.

Moreover, the trial court did take Holdren's youth into

consideration. Although it found no "viable mitigating factors,"

the court acknowledged Holdren's young age, his "lack of prior

indictable criminal activity," and the "excessive hardship" he

would experience as a result of "extensive imprisonment." The

trial court gave this factor "very little weight," however, "in

light of the crimes committed," finding the need for the protection

of the public was a significant factor in imposing sentence.

Following our review of all the arguments advanced in light

of the record and applicable principles of law, we conclude

Holdren's argument that his convictions must be reversed on the

basis of cumulative error lacks any merit. R. 2:11-3(e)(2).

Affirmed.

50 A-5071-13T1