NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5128-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DASHON T. ROSS, a/k/a SAHEED MILFORD, DWIGHT SMITH, DASHONE THOMAS, and SAHEID MILLFORD,
Defendant-Appellant. ___________________________
Submitted March 22, 2021 – Decided June 21, 2021
Before Judges Fasciale and Susswein.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 16-06-1805 and 16-06-1808.
Joseph E. Krakora, Public Defender, attorney for appellant (Molly O'Donnell Meng, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Attorney General, attorney for respondent (Valeria Dominguez, Deputy Attorney General, of counsel and on the brief).
PER CURIAM
Defendant appeals from his jury trial convictions for drug and gun
offenses and resisting arrest. He contends the trial judge committed several
errors, all of which are raised for the first time on appeal. After carefully
reviewing the record in light of the arguments of the parties and the applicable
legal principles, we affirm.
We briefly summarize the procedural history and the relevant facts that
were adduced by the State at trial. In June 2016, a grand jury returned an
indictment charging defendant with third-degree simple possession of a
controlled dangerous substance (CDS), heroin, N.J.S.A. 2C:35-10(a); third-
degree possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and
(b)(3); third-degree possession of a CDS with intent to distribute while within
1,000 feet of a school, N.J.S.A. 2C:35-7(a); second-degree possession of a CDS
with intent to distribute while within 500 feet of certain public property,
N.J.S.A. 2C:35-7.1(a); second-degree unlawful possession of a handgun,
N.J.S.A. 2C:39-5(b); fourth-degree unlawful possession of hollow nose bullets,
N.J.S.A. 2C:39-3(f); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2); and
2 A-5128-18 fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1). The grand jury
returned a separate indictment also charging defendant with second-degree
certain persons not to have firearms or ammunition, N.J.S.A. 2C:39-7(b)(1).
On October 12, 2018, the trial judge denied defendant's motion to suppress
evidence. 1 On October 15, 2018, the judge granted the State's motion to dismiss
the three counts charging possession of a CDS with intent to distribute.
Defendant was initially tried by a jury over the course of five non-
consecutive days in October 2018. During this first trial, the State presented a
store security video recording of a man discarding a firearm on a store shelf. A
State Police witness referred to the man depicted in the video as "the defendant,"
prompting an objection from defense counsel. The trial judge sustained the
objection. The jury found defendant guilty of possessing heroin and resisting
arrest. The jury was unable to reach a verdict on the counts charging unlawful
possession of a handgun, unlawful possession of hollow nose bullets, and
tampering with evidence. Because the jury failed to reach a verdict on whether
defendant possessed the firearm, the jurors were not asked to consider the
bifurcated certain persons charge.
1 Defendant did not appeal the denial of the motion to suppress. Accordingly, the lawfulness of the actions taken by the state troopers is not before us in this appeal and we offer no opinion in this regard.
3 A-5128-18 A second jury trial convened over the course of five non-consecutive days
in March 2019. Unlike the first trial, defense counsel did not object when
troopers again referred to the man depicted in the security video as "the
defendant." The second jury found defendant guilty of unlawful possession of
a handgun and tampering with evidence. The jury acquitted defendant of
unlawful possession of hollow nose bullets. The trial judge then instructed the
jury to consider the bifurcated count charging defendant as a certain person
prohibited from possessing a firearm by reason of a prior conviction. The jury
convicted defendant on that charge.
At the sentencing hearing, the trial judge granted the State's motion for a
discretionary extended term of imprisonment as a persistent offender pursuant
to N.J.S.A. 2C:44-3(a). On the second-degree unlawful possession of a firearm
conviction, the judge imposed a ten-year prison term—the lowest possible term
in the extended-term range—with a five-year period of parole ineligibility
pursuant to the Graves Act, N.J.S.A. 2C:39-5(i). The sentences imposed on the
other convictions were ordered to run concurrently.
The following facts were elicited at the second trial. State Trooper
Michael Savnik was dispatched to investigate a report of a man fleeing the scene
of a car accident in the area of Elizabeth Avenue and Meeker Avenue in Newark.
4 A-5128-18 Trooper Savnik, Trooper Joshua Morrison, and two other troopers went to a
grocery store on Elizabeth Avenue to look for the fleeing suspect. Once inside
the store, Trooper Savnik "locked eyes" with a man who then turned away and
walked down the back aisle and out of the trooper's view. That man was wearing
"a black and gray jacket with [the word] 'Birds' written across the chest, . . . an
S on the right sleeve, a gray hooded sweatshirt underneath that jacket with the
hood up, blue jeans, black sneakers, and orange shoelaces." Troopers Savnik
and Morrison followed the individual's path toward the back of the store. They
eventually confronted him and initiated an investigative detention and protective
frisk for weapons. Both troopers testified that during this encounter, they were
standing approximately one to two feet away while facing the man and thus
could clearly see his face. The troopers released the man because they saw no
signs of injury that would link him to the reported car accident and found no
weapons on his person.
The troopers returned to the store approximately thirty minutes later in
response to a call by the owner, who reported that a gun had just been found on
a shelf. Trooper Savnik secured a handgun loaded with seven hollow nose
bullets and six metal jacket bullets. The weapon was hidden behind cans of dog
food.
5 A-5128-18 The store owner provided the troopers with a store surveillance video
recording that depicted how and when the gun was discarded on the shelf. The
video depicts a man walk towards the back of the store, turn the aisle, adjust his
waistband, produce a black handgun from his waistband, place the handgun on
the rear shelf by the dog food cans, and then turn back to the front of the store.
At that point, the man was stopped by Troopers Savnik and Morrison. The video
captures the investigative detention and shows that the man detained by the
troopers was the same person who placed the handgun on the back shelf behind
the dog food cans.
State police circulated a flyer depicting the suspect taken from a still
image from the surveillance video. On the day following the incident, Detective
Sergeant Thomas Kelshaw reported that he saw an individual matching the
picture in the flyer. Trooper Morrison responded to the scene and recognized
defendant as the individual who had been stopped the day before inside the store.
Defendant attempted to run away but was quickly apprehended. Trooper Savnik
arrived shortly thereafter. Both troopers testified that they recognized
defendant's face from their encounter inside the store the previous day. They
also testified that at the time of the arrest, defendant was wearing the same
6 A-5128-18 distinctive jacket that had been worn by the individual they briefly detained in
the store the day before.
Trooper Morrison administered Miranda 2 warnings and conducted a
search of defendant's person incident to his arrest. That search revealed twenty-
seven wax folds of heroin in his possession. Trooper Morrison testified that
when defendant was later taken to a holding cell, he stated, "[h]ow are you going
to get me on some shit I did yesterday?" No fingerprints or DNA were found
on the weapon recovered from the store.
Defendant raises the following contentions for our consideration:
POINT I THE PROSECUTOR ELICITED IMPROPER LAY- WITNESS OPINION TESTIMONY AS TO THE CONTENT OF THE SURVEILLANCE VIDEO AND THE IDENTITY OF THE MAN IN THE BODEGA. (Not raised below).
POINT II THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON HOW TO CONSIDER THE VIDEO PLAYED BACK DURING DELIBERATIONS, AS REQUIRED BY STATE V. MILLER. (Not raised below).
2 Miranda v. Arizona, 384 U.S. 436 (1966).
7 A-5128-18 POINT III
THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON THE STATEMENT ROSS ALLEGEDLY MADE TO TROOPER MORRISON, AS REQUIRED BY STATE V. KOCIOLEK. (Not raised below).
POINT IV
THE CUMULATIVE EFFECT OF THE AFOREMENTIONED ERRORS DENIED DEFENDANT OF A FAIR TRIAL. (Not raised below).
POINT V
IN THE ALTERNATIVE, THE MATTERS MUST BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT IMPROPERLY DOUBLE- COUNTED DEFENDANT'S PRIOR RECORD.
I.
We first address defendant's contention the trial judge committed plain
error by allowing Troopers Morrison and Savnik to refer to the man depicted in
the surveillance video as "the defendant," and by failing to sua sponte provide a
curative instruction to the jury. Defendant argues these references constitute
inappropriate lay opinion testimony as to the identity of the man depicted in the
video recording.
In State v. Singh, our Supreme Court recently addressed whether the trial
court committed plain error by allowing a police witness to make references to
8 A-5128-18 "the defendant" while narrating the surveillance video recording of a robbery for
the jury. 245 N.J. 1 (2021). The Court in Singh held that the police witness's
references to the defendant as the man depicted in the surveillance video were
improper but did not amount to plain error capable of producing an unjust result
in light of the other evidence adduced by the State. Id. at 18.
The Court began its analysis by examining the purpose and boundaries of
N.J.R.E. 701, which provides:
If a witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences may be admitted if it:
(a) is rationally based on the witness's perception; and
(b) will assist in understanding the witness's testimony or determining a fact in issue.
The Court in Singh stressed, "[w]e have made clear that '[t]he purpose of
N.J.R.E. 701 is to ensure that lay opinion is based on an adequate foundation.'"
Id. at 14 (alteration in original) (quoting State v. Bealor, 187 N.J. 574 (2006)).
"Accordingly, lay opinion testimony can be admitted only 'if it falls within the
narrow bounds of testimony that is based on the perception of the witness and
that will assist the jury in performing its function.'" Ibid. (quoting State v.
McLean, 205 N.J. 438, 456 (2011)).
9 A-5128-18 The first prong of N.J.R.E. 701 requires the witness's opinion testimony
to be based "on the witness's 'perception,' which rests on the acquisition of
knowledge through use of one's sense of touch, taste, sight, smell or hearing."
245 N.J. at 14. "[U]nlike expert opinions, lay opinion testimony is limited to
what was directly perceived by the witness and may not rest on otherwise
inadmissible hearsay." Id. at 14–15 (quoting McLean, 205 N.J. at 460).
The second prong of N.J.R.E. 701 requires that the witness's opinion
testimony be "limited to testimony that will assist the trier of fact either by
helping to explain the witness's testimony or by shedding light on the
determination of a disputed factual issue." Id. at 15 (quoting McLean, 205 N.J.
at 458).
In State v. Lazo, the Court held that "lay witness testimony is permissible
where the witness has had 'sufficient contact with the defendant to achieve a
level of familiarity that renders the lay opinion helpful.'" 209 N.J. 9, 22 (2012)
(quoting United States v. Beck, 418 F.3d 1008, 1015 (9th Cir. 2005)). The Court
in Singh again embraced Beck's reasoning, noting that
Whether that opinion is "helpful[]" . . . depends on various factors including the witness's familiarity with the defendant's appearance when the crime was committed, or with the defendant's manner of dress, if relevant, whether the defendant disguised [his or her] appearance during the offense or altered [his or her]
10 A-5128-18 looks before trial, and "whether the witness knew the defendant over time and in a variety of circumstances."
[Singh, 245 N.J. at 16 (quoting Lazo, 209 N.J. at 12, and Beck, 418 F.3d at 1015).]
In Lazo, the Court further noted that when evaluating whether a law
enforcement officer can provide a lay opinion on identification, a reviewing
court may also consider whether there are additional witnesses available to
identify the defendant at trial. Lazo, 209 N.J. at 23 (citing United States v.
Butcher, 557 F.2d 666, 670 (9th Cir. 1977) (allowing testimony but noting that
"use of lay opinion identification by policemen or parole officers is not to be
encouraged, and should be used only if no other adequate identification
testimony is available to the prosecution") and State v. Carbone, 180 N.J. Super.
95, 97–100 (Law Div. 1981) (allowing lay witness testimony and noting lack of
available eyewitness identification, change of defendant's appearance, and
familiarity with his appearance at time of crime)).
We next summarize the facts in Singh to highlight the similarities to and
differences from the situation that developed in the case now before us. In
Singh, a man wearing dark clothing and white-soled shoes "with three stripes
going down the side" robbed a gas station with a machete. 245 N.J. at 6, 8. The
robbery was captured on the store's video surveillance system. Id. at 6. Officers
11 A-5128-18 dispatched to the scene canvassed the neighborhood and encountered a man
wearing dark clothing who turned and ran at the sight of police. Ibid. When
they lost sight of that man, the pursuing officers called for backup as they
continued their search. Ibid. Eventually one of the original pursuing officers
confronted a man in a nearby backyard who was wearing dark clothing and was
sweating and panting heavily. Ibid. A detective responding to the request for
backup heard the arresting officer shouting commands at the suspect and
assisted in making the arrest. Ibid. Police searched the vicinity after the arrest
and found a machete and a plastic bag containing the proceeds of the robbery.
Id. at 7.
The State's case in Singh rested primarily on the testimony of the gas
station clerk, the arresting officer, and the detective who assisted with the arrest.
Id. at 7–10. At trial, the detective testified that the video depicted the robber
wearing distinctive shoes with "white soles at the bottom, with three stripes
going down the side." He also testified that the defendant was wearing similar
shoes at the time of his arrest. Id. at 8. On appeal, the defendant claimed that
permitting the detective's testimony as to the content of the surveillance video
and the identity of the depicted robber was plain error. The Supreme Court
affirmed the conviction, concluding that,
12 A-5128-18 although it was error for [the detective] to refer to an individual depicted in the surveillance video as "the defendant" in his narration of that video, that error was harmless given the fleeting nature of the comment and the fact that the detective referenced defendant as "the suspect" for the majority of his testimony. Moreover, we conclude that [the detective's] testimony that the sneakers he saw in the video were similar to those he saw defendant wearing the night he was arrested was proper lay opinion testimony under N.J.R.E. 701.
[Id. at 17–18.]
In reaching this conclusion, the Court reaffirmed the well-established
principle that an error not challenged at trial will be disregarded "unless a
reasonable doubt has been raised whether the jury came to a result that it
otherwise might not have reached." Id. at 13. "Plain error is a high bar and
constitutes error not properly preserved for appeal but of a magnitude dictating
appellate consideration." Ibid. The Court nonetheless stressed that the
detective's references to the defendant when narrating the video were
inappropriate. Id. at 18. The Court admonished that such references, "even
when, as here, they are used fleetingly and appear to have resulted from a slip
of the tongue—should be avoided in favor of neutral, purely descriptive
terminology such as 'the suspect' or 'a person.'" Ibid.
We believe the circumstances in the present case are distinguishable from
Singh in an important respect. Notably, in this case, the troopers themselves
13 A-5128-18 appeared in the surveillance video they narrated. They both made in-court
identifications of defendant as the man they detained in the grocery store the day
before defendant was arrested. Both troopers also testified that the man they
detained in the store was wearing the same distinctive clothing that the
defendant was wearing at the time of his arrest the following day. Accordingly,
even if the troopers had not referred to the person depicted in the video as "the
defendant," the jury would have been aware that the troopers believed that
defendant was the person who appeared with them in the surveillance video
recording.
In this instance, moreover, the State Police witnesses were familiar with
defendant from two separate encounters: the initial investigative detention
recorded on the surveillance video, and the arrest made the next day. Thus, at
the time they testified at trial, both witnesses had greater contact and familiarity
with defendant than the detective who narrated the video recording in Singh.
See Lazo, 209 N.J at 22 ("Lay witness testimony is permissible where the
witness has had 'sufficient contact with the defendant to achieve a level of
familiarity that renders the lay opinion helpful.'"). We further note that in this
14 A-5128-18 case, unlike in Singh, no other witnesses were available to identify the person
shown in the video recording. 3 See id., 209 N.J. at 23.
We acknowledge that in the case before us, the troopers' references to the
defendant while narrating the store security video were neither fleeting nor a
slip of the tongue as in Singh. Rather, these references were repeated on
multiple occasions. We emphasize, however, that defense counsel at the second
trial made a conscious decision to not object to the trooper's references to the
man depicted in the surveillance video as the defendant. 4 In Singh, the Court
3 Law enforcement was unable to contact or locate the grocery store owner to testify, as he had since closed his business by the time defendant was tried. 4 During a sidebar conference, defense counsel told the trial judge:
First of all, I haven't objected to [Trooper Savnik] characterizing the person in those photographs as the defendant but I believe that's for the jury to decide and I would like to have an instruction to them as some point but he didn't actually see anybody take a handgun out of their waist and put it on the shelf and he's testified to that and I don't believe that you can discern what's in that person’s hand in that photograph. So, he's making an assumption that, first of all, because he believes it's Mr. Ross and, second of all, that because a handgun was found there by the owner at some later point that that's Mr. Ross doing it. I don't think he has sufficient knowledge to say that that's Mr. Ross putting that handgun on the shelf. He doesn't really know how that got there at all, he's making
15 A-5128-18 "cautioned that rerunning a trial when the error could easily have been cured on
request would reward the litigant who suffers an error for tactical advantage
either in the trial or on appeal." 245 N.J. at 13. It also is well-settled that trial
errors that "were induced, encouraged, or acquiesced in or consented to by
defense counsel ordinarily are not a basis for reversal on appeal . . . ." State v.
Corsaro, 107 N.J. 339, 345 (1987); see also State v. A.R., 213 N.J. 542, 561
(2013) ("Mistakes at trial are subject to the invited-error doctrine.").
We believe the judge at the second trial allowed the troopers to make
repeated references to the person depicted in the video as "the defendant"
because defense counsel expressly told the judge that he was refraining from
making an objection. In these circumstances, defendant is now hard-pressed to
rely on the number of references that were made as a basis for distinguishing
Singh and finding reversible error. We are satisfied that the troopers' references
to the defendant while narrating the surveillance video were not capable of
producing an unjust result. R. 2:10-2.
an assumption based on what he learned later, that there was, in fact, a handgun there.
16 A-5128-18 II.
We turn next to defendant's contention the trial judge erred by failing to
sua sponte issue a limiting instruction to the jury when the jury requested a
playback of the store surveillance video. This contention lacks sufficient merit
to warrant extensive discussion. R. 2:11-3(e)(2). The trial judge properly
complied with the jury's request and played back the surveillance video
recording in open court with both counsel present. Defense counsel did not
object to the playback and did not request any special jury instructions.
In State v. Miller, our Supreme Court remarked,
Judges should take precautions to prevent juries from placing undue emphasis on the particular [audio/video] testimony that is replayed. . . . To that end, at the time the testimony is repeated, judges should instruct jurors to consider all of the evidence presented and not give undue weight to the testimony played back.
[205 N.J. 109, 123 (2011) (citing State v. Michaels, 264 N.J. Super. 579, 644–45 (App. Div. 1993)).]
Although a supplemental instruction would have been appropriate had it
been requested, we do not believe that the failure to issue special instructions
constitutes plain error. See State v. Wakefield, 190 N.J. 397, 473 (2007)
(holding that under Rules 1:7-2 and 2:10-2, "the failure to object to a jury
instruction requires review under the plain error standard"); see also State v.
17 A-5128-18 Montalvo, 229 N.J. 300, 320 (2017); State v. Singleton, 211 N.J. 157, 182 (2012)
(holding where a defendant does not object to the jury charge, "there is a
presumption that the charge was not error and was unlikely to prejudice the
defendant's case").
We stress that the playback did not involve a witness's testimony or a
recording of a witness' statement. Cf. State v. Burr, 195 N.J. 119, 134 (2008)
("The videotaped pretrial statement at issue [is] significantly different from a
demonstrative exhibit. Although it is evidence, it is also testimony. It is, in
effect, a hybrid of the two. Unlike a demonstrative exhibit, the videotape
contains hearsay statements offered for the truth of the matter asserted.").
Rather, the video recording in this instance was essentially a demonstrative
exhibit. The jury was properly instructed, moreover, that it should consider all
relevant evidence and that it was for it to decide the weight to give to evidence.
In these circumstances, the failure to provide the jury additional instruction on
how to consider the unnarrated surveillance video was not capable of producing
an unjust result. R. 2:10-2.
III.
As we have noted, Trooper Morrison testified that as he was taking
defendant to a holding cell, defendant remarked, "[h]ow are you going to get me
18 A-5128-18 on some shit I did yesterday?" Defendant contends for the first time on appeal
that the trial court erred in failing to instruct the jury to exercise caution with
respect to defendant's statement in accordance with State v. Hampton and State
v. Kociolek. 5
5 State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957). The Model Jury Charge for statements attributed to a defendant provides in relevant part: In considering whether or not an oral statement was actually made by the defendant, and, if made, whether it is credible, you should receive, weigh[,] and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer, or the ability of the hearer to recall accurately the words used by the defendant. The specific words used and the ability to remember them are important to the correct understanding of any oral communication because the presence, or absence, or change of a single word may substantially change the true meaning of even the shortest sentence.
....
In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to this issue.
If, after consideration of all these factors, you determine that the statement was not actually made, or that the statement is not credible, then you must
19 A-5128-18 In State v. Baldwin, we explained that Hampton "require[s] the trial court
to instruct the jury to decide whether a defendant's out-of-court statement is
credible only in a case where there has been a pretrial hearing involving the
admissibility of the statement on the grounds of an alleged violation of the
defendant's Miranda rights or involuntariness." 296 N.J. Super. 391, 397 (App.
Div. 1997). We concluded in Baldwin that when "an alleged oral inculpatory
statement was not made in response to police questioning, and there is no
genuine issue regarding its contents," the court is not required to give special
cautionary instructions "because the only question the jury must determine is
whether the defendant actually made the alleged inculpatory statement." Id. at
401–02.
disregard the statement completely.
If you find that the statement was made and that part or all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.
[Model Jury Charges (Criminal), "Statements of Defendant" (rev. June 14, 2010).]
20 A-5128-18 In this instance, defendant never moved to suppress the rhetorical question
he posed to Trooper Morrison. Furthermore, although defendant was clearly in
custody, his inculpatory utterance was not in response to police questioning.
We thus turn our attention to whether the trial judge was obligated to give
a special cautionary instruction pursuant to the rationale undergirding Kociolek.
The Court in Kociolek, quoting Wigmore on Evidence, §§ 1056, 2094 (3d ed.
1940), acknowledged:
there is a general distrust of testimony reporting any extra-judicial oral statements alleged to have been made, including a party's admissions; the great possibilities of error in trusting to recollection- testimony of oral utterances, supposed to have been heard, have never been ignored; but an antidote is constantly given by an instruction to the jury against trusting overmuch the accuracy of such testimony.
[23 N.J. at 421 (internal quotation marks omitted).]
Our Supreme Court recognized that an out-of-court inculpatory statement
purportedly made by a defendant can be "dangerous" evidence, "first, because it
may be misapprehended by the person who hears it; secondly, it may not be
well-remembered; thirdly, it may not be correctly repeated." Id. at 422 (citations
omitted).
Our decision in Baldwin addressed when a cautionary jury instruction
must be given under the Kociolek doctrine and our analysis in that case is
21 A-5128-18 instructive for purposes of the present appeal. The State in Baldwin presented
evidence in a murder trial supporting the identification of the defendant as the
assailant, including testimony from three eyewitnesses and three inculpatory
out-of-court statements purportedly made by the defendant. Baldwin, 296 N.J.
Super. at 395. Baldwin argued that a trial court is obligated to provide
cautionary instructions whenever evidence of a defendant's allegedly
inculpatory out-of-court statement is proffered. Ibid. We rejected any such per
se rule. We concluded "the need for the kind of special cautionary instruction
suggested in Kociolek may turn on whether there is any genuine dispute as to
the precise contents of an alleged oral statement." Id. at 400–01.
We have carefully reviewed the trial record in this case, including the
opening and closing statements by defense counsel. Our review confirms that
defendant did not contest the content or accuracy of the remark he made to
Trooper Morrison. 6 Accordingly, the trial judge was not obligated to sua sponte
issue a Kociolek instruction.
Finally, we emphasized in Baldwin that there was no precedential
authority for the proposition that the failure to give an unrequested Kociolek
6 The record shows that the prosecutor referred to defendant's remark in his summation.
22 A-5128-18 instruction constitutes plain error. Id. at 400. Defendant cites no case decided
after Baldwin holding that the failure to sua sponte provide a Kociolek
instruction rises to the level of plain error. Thus, even assuming for the sake of
argument that it was error to fail to provide a cautionary instruction with respect
to defendant's rhetorical remark, that failure does not rise to the level of plain
error. See State v. Jordan, 147 N.J. 409, 430 (1997) (neither the failure to
provide a Hampton or a Kociolek charge, whether "individually or in
combination" constitutes plain error per se). The possibility of injustice must
be "sufficient to raise a reasonable doubt as to whether the error led the jury to
a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336
(1971). After carefully reviewing the entire record, we believe the trial judge's
failure to give the unrequested instruction was not capable of producing an
unjust result. See R. 2:10-2; Montalvo, 229 N.J. at 320.
IV.
We need only briefly address defendant's contention that his claimed trial
errors collectively created such severe prejudice as to warrant a new trial. See
State v. Jenewicz, 193 N.J. 440, 473 (2008) ("Even when an individual error or
series of errors does not rise to reversible error, when considered in combination,
their cumulative effect can cast sufficient doubt on a verdict to require
23 A-5128-18 reversal."). The fact that defense counsel made no contemporaneous objections
to the errors now alleged on appeal "reveals that 'in the atmosphere of the trial
the defense did not believe that the [alleged errors] were prejudicial.'" State v.
Marks, 201 N.J. Super. 514, 534 (App. Div. 1985) (quoting State v. Wilson, 57
N.J. 39, 51 (1970)); see also State v. Nelson, 173 N.J. 417, 471 (2002) (quoting
Macon, 57 N.J. at 333) ("[I]t [is] fair to infer from the failure to object below
that in the context of the trial the error was actually of no moment.") (second
alteration in original).
The State's case hinged on the surveillance video that showed the culprit
discarding the handgun on the store shelf. We are satisfied that none of the
alleged trial errors prevented the jury from justly concluding that defendant was
the person shown in that video.
Finally, defendant contends the trial judge at sentencing impermissibly
"double counted" his criminal history by using his prior convictions to invoke
an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) and also as
the basis for finding aggravating factors three, N.J.S.A. 2C:44-1(a)(3) ("The risk
that the defendant will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6)
("The extent of the defendant's prior criminal record and the seriousness of the
24 A-5128-18 offenses of which [the defendant] has been convicted"); and nine, N.J.S.A.
2C:44-1(a)(9) ("The need for deterring the defendant and others from violating
the law").
We begin our analysis by acknowledging that "[o]ur role in reviewing a
sentence imposed by a trial judge is limited." State v. L.V., 410 N.J. Super. 90,
107 (App. Div. 2009). We review only
(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.
[State v. Megargel, 143 N.J. 484, 493 (1996) (citing State v. Roth, 95 N.J. 334, 363–65 (1984)).]
To be eligible for a discretionary extended term as a persistent offender,
a defendant must be:
a person who at the time of the commission of the crime is [twenty-one] years of age or over, who has been previously been 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).]
25 A-5128-18 In State v. Tillery, our Supreme Court recently considered the double-
counting argument that defendant now raises. 238 N.J. 293, 325–26 (2019).
The defendant in that case "object[ed] to the court's 'duplicative' reliance on his
criminal record both to deem him statutorily eligible for an extended term and
to find aggravating factors six and nine." Ibid. The Supreme Court resolutely
rejected that argument:
We find no error in the trial court's reliance on defendant's criminal record both to determine defendant's "persistent offender" status under N.J.S.A. 2C:44-3(a) and to support the court's finding of aggravating factors three, six, and nine. Indeed, in our decision in [State v. Pierce, 188 N.J. 155, 168 (2006)], we envisioned that the defendant's criminal record may be relevant in both stages of the sentencing determination. We held that "[a] sentencing court must first, on application for discretionary enhanced-term sentencing under N.J.S.A. 2C:44-3(a), review and determine whether a defendant's criminal record of convictions renders him or her statutorily eligible." If so, "whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public." In that crucial inquiry, defendant's prior record is central to aggravating factor six, N.J.S.A. 2C:44-1(a)(6), and may be relevant to other aggravating and mitigating factors as well.
Accordingly, the trial court properly considered defendant's criminal record in deciding defendant's statutory eligibility for an extended term, and in
26 A-5128-18 weighing aggravating and mitigating factors to determine that such a term was warranted.
[Id. at 327–28 (internal citations omitted).]
We add that in the present case, defendant has previously been convicted
of four qualifying convictions, any two of which would satisfy the prerequisite
for imposing an extended term as a persistent offender. Furthermore, the trial
judge did not commit error by considering defendant's criminal history in the
context of multiple aggravating factors. As the Court expressly recognized in
Tillery, a defendant's criminal history is not only relevant to the application of
aggravating factor six, but also "may be relevant to other aggravating and
mitigating factors as well." Id. at 328. Indeed, the Court in Tillery upheld the
trial court's application of the defendant's criminal history in finding the very
same aggravating factors in the present appeal. We note, finally, the judge
imposed a prison term at the bottom of the second-degree extended term range.
In these circumstances, defendant has not shown that the trial judge abused her
discretion in applying and weighing the aggravating factors. Nor does the
sentence in this case shock the judicial conscience. Roth, 95 N.J. at 365.
To the extent we have not addressed them, any remaining arguments
raised by defendant lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
27 A-5128-18 Affirmed.
28 A-5128-18