NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1252-17T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMAR T. JENKINS, a/k/a JAMAR JENKINS, ROCK, JAY ROCK, TURELL BLANDING, and JAMES JENKINS,
Defendant-Appellant. _____________________________
Submitted February 6, 2019 – Decided September 26, 2019
Before Judges Ostrer and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 15-10-3023.
Joseph E. Krakora, Public Defender, attorney for appellant (Laura B. Lasota, Assistant Deputy Public Defender, of counsel and on the brief).
Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Maura Murphy Sullivan, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
OSTRER, J.A.D.
A jury found defendant Jamar Jenkins guilty of third-degree terroristic
threats, N.J.S.A. 2C:12-3(a); third-degree stalking in violation of a court order,
N.J.S.A. 2C:12-10(c); fourth-degree stalking, N.J.S.A. 2C:12-10(b); fourth-
degree domestic violence contempt, N.J.S.A. 2C:29-9(b); and petty disorderly
persons harassment, N.J.S.A. 2C:33-4(a), as a lesser-included offense of a
separate terroristic threat charge. The victim was defendant's former girlfriend,
M.P., with whom he had a young child. As a persistent offender, he received an
aggregate sentence of thirteen years, including an eight-year extended term for
third-degree stalking, consecutive to a five-year term for making a terroristic
threat.
On appeal, defendant contends in his counseled brief that the trial judge
wrongly admitted Rule 404(b) evidence that defendant engaged in prior alleged
acts of domestic violence, and that he carried a handgun. He also challenges his
sentence as excessive, and argues the court abused its discretion in imposing
consecutive terms.
A-1252-17T4 2 We find merit in the first argument, but not the second. We agree that the
State did not present clear and convincing evidence of the prior bad acts, as
required by the test for admissibility in State v. Cofield, 127 N.J. 328, 338
(1992). The State relied on the alleged victim's hearsay, conveyed by a police
officer who lacked personal knowledge of the alleged acts. Under the
circumstances, this did not satisfy the rigorous standard of proof that Cofield
established.
As for the sentencing, we recognize that the terroristic threat was
consistent with, and related to the course of conduct that gave rise to the stalking
conviction. But, it was a distinct and exacerbating offense. The trial judge
appropriately exercised his discretion under State v. Yarbough, 100 N.J. 627
(1985), in imposing consecutive sentences.
In a pro se supplemental brief, defendant raises four additional arguments.
They either have no merit, or should be raised first before the trial court.
I.
Defendant's relationship with M.P. ended around the beginning of 2015.
He was disturbed that M.P. had begun seeing another man. According to M.P.'s
testimony at trial, defendant engaged in a course of conduct and made threats in
2015 that formed the basis of the legal charges against him. Third-party
A-1252-17T4 3 witnesses attested to some of defendant's actions, but not the most egregious
ones. The State bolstered its case with testimony of defendant's prior bad acts.
A.
At a pre-trial hearing, the State sought approval to introduce at trial
evidence about four alleged prior bad acts: in November 2014, defendant kicked
and damaged M.P.'s front door; in December 2014, defendant threw a rock
through M.P.'s window; at an unspecified time and place, defendant choked her;
and defendant carried a silver handgun, which he once displayed to M.P. 1
The State's sole witness at the hearing was a police officer, who recounted
what M.P. told him on two separate occasions in 2015 about the alleged earlier
incidents. He referred to a written complaint that M.P. filed in November 2014,
reporting that someone – she did not name defendant – had damaged her front
door while she was not home. The officer testified that M.P. alleged that
defendant later admitted in a phone call that he damaged the door. According
to the officer, M.P. asserted that defendant said he would do it again if M.P. had
another man in her house.
1 The State unsuccessfully sought permission to introduce evidence of a fifth incident in October 2014, involving defendant's alleged taking of M.P.'s property. Defendant apparently visited the home, in the company of a police officer and apartment manager, to retrieve his own property. That incident is not before us. A-1252-17T4 4 The officer also said that M.P. told him about the December 2014 rock-
throwing incident. Again, M.P. was not at home. In her report to police
immediately following the incident, M.P. did not accuse defendant. The officer
testified that M.P.'s neighbor witnessed the event, although the neighbor actually
spoke to a different officer.
The officer also testified that in his second interview with M.P., she
disclosed defendant's handgun possession, stating "she had known him to have
a handgun" and she saw him with it "at one point." She said he carried the
handgun if he was in a bar, or with friends, but not if he was "just selling drugs"
near his residence. The officer also stated that M.P. asserted that defendant had
choked her in the past, but did not say when or where.
Defense counsel contended that the prior bad act evidence was
inadmissible. Counsel argued that the State was relying on hearsay, in some
cases double and triple hearsay. The prosecutor responded that hearsay was
admissible at the hearing, and the officer was permitted to "testify as to what
[M.P.] said. So, it's as if she was testifying."
Applying Cofield, the court rejected the defense arguments and found that
the evidence of the four incidents was relevant to material issues at trial, similar
in kind or reasonably close in time to the charged offenses, the proof of the act s
A-1252-17T4 5 was clear and convincing, and the apparent prejudice did not outweigh the
probative value of the evidence.
With respect to the standard of proof, the trial judge credited M.P. as if
she had testified at the hearing. Referring to the door incident, the judge stated,
"The testimony by [M.P.] . . . the victim, herself, is adequate to establish by
clear and convincing evidence that the defendant committed that act . . . ."
Regarding gun possession, the judge also appeared to shift the burden to
defendant, stating, "The testimony of the victim is more than sufficient to
establish the fact [of gun possession] by clear and convincing evidence,
particularly where there's no other factors or evidence placing those
observations into question." As for the rock-throwing incident, the court found
the evidence clear and convincing based on the neighbor's anticipated testimony.
Regarding evidence of the alleged choking, the court found it admissible based
on a "similar analysis to that of the gun."
B.
At trial, M.P. described a course of conduct in 2015 that included threats,
interference with her employment, disclosure of an intimate recording, and new
incidents of damage to her property. M.P. testified that one day in February
2015, while M.P. was at her sister's home, defendant parked his car nearby and
A-1252-17T4 6 called M.P. on the phone. Upset that M.P. had recently moved in with another
man, defendant told M.P. that he was going to kill her and her whole family. He
said he had nothing to lose and he did not want his son around another man.
Consistent with the court's pre-trial ruling, M.P. said that defendant had a silver
handgun at the time, because she "saw it before."
M.P. testified defendant also posted on social media a video of M.P. that
he had taken when they were together. The video showed M.P. naked, getting
dressed in a bedroom, in the presence of the couple's baby. The dissemination
of the video led to the temporary removal of M.P.'s four children by the Division
of Child Protection and Permanency. 2 The video was also a source of
embarrassment to M.P. and her older children.
Defendant tried to get M.P. fired from her job as a home health aide. M.P.
had recorded one of her clients being verbally abusive to her. Defendant
believed that recording a client violated M.P.'s conditions of her employment.
Having access to the cell phone containing the recording, defendant presented
the recording to M.P.'s supervisor, and urged her to take action against M.P.
The supervisor testified at trial that she was already aware of the recording; and
2 The record before us does not explain the grounds for the removal, but we do not presume that a mother dressing in the presence of an infant was grounds by itself to remove children from the home. A-1252-17T4 7 under the circumstances, she had no intention of disciplining M.P. According
to the supervisor, defendant had said that M.P. was "messing up his life, so he
wanted to mess up hers."
Around April 28, 2015, defendant called M.P. numerous times from
anonymous numbers. Most times, she refused to answer. When she did, the two
would argue. Once, defendant called M.P. while she was in a courthouse. He
told her to drop the charges or there would be an issue. During a call to M.P.
while she was visiting her sister, defendant threatened to damage her house and
kill her and her family. M.P. later found her home vandalized. M.P. claimed
that defendant admitted responsibility, but later recanted.
On May 23, 2015, defendant went to M.P.'s home and started kicking the
door. M.P. testified that she was at home but chose to remain inside until
defendant left. Later that day, M.P.'s neighbor told her that she saw defendant
kick the door. The neighbor testified to the incident at trial, as well as the prior
rock-throwing incident. The neighbor testified that M.P. was not at home when
defendant kicked the door.
M.P. testified that these incidents were very upsetting and made her afraid.
She said, "I mean, you don’t know what this man is going to do. There's multiple
threats. There's home visits." M.P. did not testify to a choking incident,
A-1252-17T4 8 notwithstanding the officer's testimony at the pre-trial hearing. Rather, she
stated, "There’s beating me up, and ambulance [sic]. There's a lot going on at
the time." She said it was going to continue until "someone put a stop to it."
C.
The jury acquitted defendant of a terroristic threat to kill, N.J.S.A. 2C:12-
3(b), arising out of the February 2015 incident; and found defendant guilty
instead of harassment. However, the jury convicted defendant of a terroristic
threat of violence, N.J.S.A. 2C:12-3(a), arising out of the April 2015 incident.
The jury also found defendant guilty of fourth-degree stalking, N.J.S.A. 2C:12-
10(b), for the course of conduct between February 13 and May 23, 2015. After
the verdict on those charges, the State introduced evidence that a restraining
order was in place between February 13 and March 2, 2015. The jury then found
defendant guilty of third-degree stalking in violation of a restraining order,
N.J.S.A. 2C:12-10(c); and fourth-degree contempt, N.J.S.A. 2C:29-9.
D.
At the sentencing hearing, M.P. partially recanted her trial testimony. She
stated she was compelled to testify. She alleged that the prosecutor urged her
to say defendant had a gun, and if she did not comply, it would affect her ability
to see her children. "I lost my kids before, Your Honor. I did not want to lose
A-1252-17T4 9 them again." She said, "Him having a gun is a lie." She also said, "He did not
threaten to kill me." She confirmed her testimony about going to her workplace.
She added, "Did he break the windows, the doors? As I stated before, I did not
see him. The witness stated that she did." As for the social media posting, she
said, "Everything else that he did, naked pictures on the internet, that is the truth.
But, him having a weapon, on my god, on my kids, he did not."
She said she did not want her son to suffer the hardship of his father's
incarceration. She said she had forgiven defendant. "Everything he did, I
forgave him for it. He did do it. But, with the gun and threatening me, Your
Honor, he did not."
The judge acknowledged that M.P. testified pursuant to a material witness
subpoena, and he had issued a warrant for her arrest because she had failed to
comply. After hearing M.P.'s statement, the judge stated he would move
forward with sentencing, stating "the convictions were not based on possession
or a lack of a possession of a gun." The judge stated, "[E]verything [M.P.] said,
quite frankly, supports the crimes for which this defendant has been convicted."
Defense counsel disputed the point but did not move for a new trial. The judge
did not directly address M.P.'s plea for leniency.
A-1252-17T4 10 The court granted the State's motion for a persistent-offender extended
term, N.J.S.A. 2C:44-3(a), based on defendant's 2011 and 2006 convictions for
possession of a firearm while committing a CDS offense and aggravated arson.
The court found aggravating factors three (risk of reoffending); six (extent of
prior record and offense seriousness); nine (need to deter); and fifteen (involved
act of domestic violence). N.J.S.A. 2C:44-1(a)(3), (6), (9), and (15). The court
noted that defendant also had prior convictions for burglary, in 1998, and
weapons violations, in 2002; a juvenile adjudication for terroristic threats; and
numerous municipal court encounters. The court rejected the defense suggestion
of various mitigating factors, except factor eleven, hardship on his child,
N.J.S.A. 2C:44-1(b)(11). The court observed that defendant was a violent man
and a lengthy sentence was justified to protect the victim and the public. The
court concluded the aggravating factors substantially outweighed the mitigating
factors.
The court imposed an extended term of eight years on the third-degree
stalking count. With the State's urging, the court merged the fourth -degree
stalking count into the third-degree count, notwithstanding that the former
covered a longer period of time than the latter. The prison terms on the
remaining counts – five years on terroristic threats, eighteen months on
A-1252-17T4 11 contempt, and thirty days on harassment – were to be served concurrently with
each other, but consecutively to the eight-year term. In support of the
consecutive terms, the court noted that the terroristic threat occurred in April
2015, after the February-to-March course of conduct that formed the basis of the
third-degree stalking charge. Although the harassment – as a lesser included
offense – occurred within the February-to-March range, the court noted it was
"separate and distinct" from the fear caused by the stalking course of conduct.
E.
On appeal, defendant raises the following arguments in his counseled
brief:
POINT I
THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ADMIT SEVERAL PRIOR UNCHARGED BAD ACTS ALLEGEDLY COMMITTED BY DEFENDANT. BECAUSE THE EVIDENCE WAS NOT PROPERLY ADMISSIBLE FOR ANY ENUMERATED PURPOSE UNDER N.J.R.E. 404(B), IT SHOULD NOT HAVE BEEN ADMITTED.
A. THE NOVEMBER AND DECEMBER 2014 INCIDENTS.
B. DEFENDANT'S ALLEGED PRIOR POSSESSION OF A HANDGUN AND THE CHOKING INCIDENT.
A-1252-17T4 12 POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REDUCED.
We discern four additional issues from defendant's supplementary pro se
brief. He argues: his right to be present at trial was violated; he was denied a
fair trial and due process because M.P. partially recanted her testimony; his
defense counsel had a conflict of interest because he was in a relationship with
the case's initial prosecutor; and his counsel was ineffective because defendant
was not properly advised regarding his extended term exposure during the plea
negotiations.
II.
We start with the admissibility of the prior-bad-act evidence. We review
the trial court's decision to admit N.J.R.E. 404(b) evidence under the abuse of
discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). If the evidence
was improperly admitted, it must still survive harmless error analysis. There
must be "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).
Rule 404(b) is a rule of exclusion. State v. Green, 236 N.J. 71, 84 (2018).
To be admissible, other-crimes-or-wrongs evidence must satisfy four prongs:
A-1252-17T4 13 (1) The evidence of the other crime must be admissible as relevant to a material issue;
(2) It must be similar in kind and reasonably close in time to the offense charged;
(3) The evidence of the other crime must be clear and convincing; and
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, 127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions of Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L. J. 135, 160 (1989)).]
Although defendant challenges the court's findings as to all four prongs,
we find merit only in his contention that the State failed to present clear and
convincing evidence of the prior incidents involving rock throwing and door
damage; gun possession; and choking. In particular, the facts that defendant
possessed and displayed a gun and previously assaulted M.P. were relevant to
material issues, including (1) whether defendant's later actions occurred "under
circumstances reasonably causing the victim to believe the immediacy of the
threat and the likelihood that it will be carried out," N.J.S.A. 2C:12-3(b)
(terroristic threats), and (2) whether his course of conduct would "cause a
reasonable person to fear for his [or her] safety . . . or suffer other emotional
distress," N.J.S.A. 2C:12-10(b) (stalking). The prior rock throwing and door
A-1252-17T4 14 damage incidents were also relevant to the issue whether defendant engaged in
the later behavior with the purpose or knowledge it would cause fear or
emotional distress.
Because of the prejudicial nature of other crimes and wrongs evidence,
our Court has adopted the "clear and convincing" standard of proof, to assure
that such evidence is admitted only upon firm proof that the party actually
committed the other crime or wrong. "'Because of the high probability of
prejudice from the admission of prior bad acts, the court must ensure that the
evidence against the defendant directly establishes "that the defendant took part
in the collateral act . . . ."'" State v. Hernandez, 170 N.J. 106, 123 (2001)
(quoting State v. Terrazas, 944 P.2d 1194, 1198 (Ariz. 1997) (citation omitted)).
The standard of proof is closely related to the balance between the probative
value of the evidence and its prejudicial nature. "[T]he evidence has low
probative value if the clear and convincing proof standard is not satisfied."
Ordover, 38 Emory L. J. at 164.
"[T]he third prong of our Cofield test requires that the judge serve as a
gatekeeper to the admission of other-crime evidence." Hernandez, 170 N.J. at
123. A judge may not abdicate that gatekeeping role by leaving to the jury the
A-1252-17T4 15 threshold determination whether the prior crime or wrong actually occurred.
State v. Sheppard, 437 N.J. Super. 171, 201 (App. Div. 2014).
The standard of proof is demanding. Clear and convincing evidence
"produce[s] in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established, evidence so clear, direct and
weighty and convincing as to enable (the factfinder) to come to a clear
conviction, without hesitancy, of the truth of the precise facts in issue." In re
Samay, 166 N.J. 25, 30 (2001) (quoting In re Boardwalk Regency Corp., 180
N.J. Super. 324, 339 (App. Div. 1981) (internal quotation marks and citation
omitted)). We recognize that the standard may be "satisfied by uncorroborated
testimonial evidence." In re Samay, 166 N.J. at 30. We also recognize that
hearsay is admissible in a pretrial hearing to determine the admissibility of
other-crimes evidence. See N.J.R.E. 104(a). However, the issue before us is
not the admissibility of M.P.'s hearsay statements – conveyed by the officer and
memorialized in various reports. The issue is the persuasiveness of such
hearsay, which is uncorroborated by any other evidence except – to a limited
extent – the double hearsay of a neighbor to another officer, untested by cross-
examination or the court's assessment of the speaker's demeanor.
A-1252-17T4 16 Hearsay is generally considered "untrustworthy and unreliable" if it does
not satisfy one of the exceptions which are "created out of necessity and . . .
justified on the ground that 'the circumstances under which the statements were
made provide strong indicia of reliability.'" State v. White, 158 N.J. 230, 238
(1999) (quoting State v. Phelps, 96 N.J. 500, 508 (1984)). Hearsay is generally
barred "to ensure the accuracy of the factfinding process by excluding
untrustworthy statements, such as those made without the solemnity of the oath,
and not subject to cross-examination by the accused or the [fact-finder's] critical
observation of the declarant's demeanor and tone." State v. Engel, 99 N.J. 453,
465 (1985). Hearsay may suffer from failures of perception, memory, and
narration. See Neno v. Clinton, 167 N.J. 573, 579 (2001) (citing McCormick on
Evidence § 245 (5th ed. 1999)). Hearsay's inherent limitations are not
transformed simply because it is admissible in a pre-trial hearing under N.J.R.E.
104(a).
Inadmissible hearsay does not suffice to prove other crimes or wrongs at
trial. See State v. Ingenito, 87 N.J. 204, 224 (1981) (Schreiber, J., concurring)
(stating that "proof of the other crime should be direct evidence of that crime,
not hearsay"); see also Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, cmt. 8(c) on N.J.R.E. 404 (2019). In State v. Carlucci, 217 N.J. 129
A-1252-17T4 17 (2014), the Court reversed a trial court's determination, in a prosecution for
simple cocaine possession, to admit evidence that the defendant previously used
the drug. The only evidence of the defendant's prior use was an officer's
testimony that defendant admitted such use. The Court noted, "Here, there is no
evidence, other than Patrolman Buss's testimony about defendant's statement,
that she last used crack cocaine two days before her arrest." Id. at 143. The
Court concluded that the "clear and convincing" prong was not met. Ibid.
Other jurisdictions that have adopted the "clear and convincing" standard
have likewise questioned whether proof of other crimes or wrongs may consist
solely of hearsay. The Tennessee Supreme Court, for example, recognized "that
inadmissible hearsay is insufficient to establish a prior bad act under Rule
404(b)." State v. Sexton, 368 S.W.3d 371, 405 (Tenn. 2012); see also State v.
Pullens, 800 N.W.2d 202, 222 (Neb. 2011).
In this case, the trial court credited M.P.'s statements, and those of a
neighbor, without the opportunity to assess the witness's demeanor, and without
the benefit of cross-examination. The most damning prior acts – the gun
possession and prior choking – were also the most questionable. They lacked
detail as to time and place. M.P. alleged in 2015, upon police questioning, that
defendant possessed a weapon and once displayed it to her; yet, she apparently
A-1252-17T4 18 never mentioned that in connection with her 2014 reports. Likewise, she
apparently never reported the choking incident, although she reported damage
to her front door and window.
The trial court erred in treating M.P.'s hearsay statements as the equivalent
of in-court testimony, as the statements were stripped of the basic in-court tests
of reliability – assessment of demeanor and cross-examination. M.P.'s
recantation at sentencing about defendant's gun possession only heightens
doubts that the State would have been able to meet the third Cofield prong, had
defense counsel had the opportunity to challenge her assertions outside the jury's
presence.
In sum, the record lacked sufficient credible evidence for the court to
conclude, by clear and convincing evidence, that defendant committed the prior
crimes or wrongs alleged.
We also reject the State's argument that any error in admitting the 404(b)
evidence was harmless. An error is harmless if "any prejudice to defendant was
not such that created a real possibility that the jury arrived at a result it otherwise
might not have reached." State v. Marrero, 148 N.J. 469, 492-93 (1997). "[W]e
focus on 'whether in all the circumstances there was a reasonable doubt as to
A-1252-17T4 19 whether the error denied a fair trial and a fair decision on the merits.'" State v.
Kemp, 195 N.J. 136, 149 (2008) (quoting Macon, 57 N.J. at 338)).
Noting the inherently prejudicial nature of other-crimes-and-wrongs
evidence, the Supreme Court has cautioned against overuse of the harmless error
doctrine involving the wrongful admission of such evidence:
This Court has sought to prevent overuse of the "harmless error" doctrine . . . . For this reason, the rule of harmless error should be summoned only with great caution in dealing with the breach of fundamental procedural safeguards "designed to assure a fair trial." "There is widespread agreement that other-crime evidence has a unique tendency to turn a jury against the defendant. The likelihood of prejudice is acute when the proffered evidence is proof of a defendant's uncharged misconduct."
[State v. G.V., 162 N.J. 252, 262 (2000) (first citation omitted; second citation quoting State v. Stevens, 115 N.J. 289, 302 (1989)).]
Rejecting a claim of harmless error, the Court in G.V. stated, "Nothing could be
more prejudicial than the erroneous admission of such testimony." G.V., 162
N.J. at 261. "The erroneous admission of evidence of other crimes . . . carries
such a high risk of prejudice as ordinarily to call for reversal." Id. at 262
(quoting State v. Atkins, 151 N.J. Super. 555, 570 (App. Div. 1977), rev'd on
other grounds, 78 N.J. 454 (1979)).
A-1252-17T4 20 Given the highly prejudicial nature of the other-crimes-and-wrongs
evidence in this case, we cannot find, beyond a reasonable doubt, that the jury's
verdict was unaffected – particularly by the evidence of defendant's alleged gun
possession and his alleged prior assault. Both incidents tarred defendant as a
violent man, prepared to engage in violence. The evidence lent credence to
M.P.'s fear of defendant and its objective reasonableness. It also supported the
State's contention that defendant acted purposefully or knowingly in causing
fear. Notably, the prosecutor highlighted the gun possession and prior assault
in her closing, arguing that those facts made reasonable M.P.'s fear and
emotional distress and strengthened the proofs that defendant acted purposefully
and knowingly.3
Although we conclude that the other-crimes-and-wrongs evidence was
admitted in error, reversal of the conviction and a new trial are not necessarily
required. At a new trial, the State would have a second opportunity to seek
admission of the 404(b) evidence. However, if the evidence were again deemed
admissible, there would be no justification for a new trial.
3 The prosecutor argued, "[T]his man beat her before, broke her windows, following through on every threat he made, carried a weapon. Again, that would put a person in reasonable fear of imminent death." She added, "When you've seen him with a weapon, when he's beaten you before, and he threatens to kill you, that is terrorizing." A-1252-17T4 21 Therefore, we remand initially only for a new N.J.R.E. 104(a) hearing,
consistent with the guidance in this opinion, to determine the admissibility of
the Rule 404(b) evidence. We presume that at such a hearing, the State will
attempt to marshal proofs more persuasive than the hearsay statements conveyed
by an officer, but will instead call upon the alleged victim, or other persons with
personal knowledge of the other crimes or wrongs.
If the trial court, exercising its gatekeeping role, determines that the State
has proved all four prior crimes or wrongs by clear and convincing evidence,
then its admission at trial would not have been error, and the jury's verdict, and
the court's sentence, which we discuss below, shall not be disturbed. However,
if the State fails to make the requisite showing as to one or more of the four prior
alleged acts, then, consistent with our rejection of the State's harmless error
argument, the conviction must be reversed and a new trial had. See State v.
Stubbs, 433 N.J. Super. 273, 289 (App. Div. 2013).
Without intending any criticism of the trial judge's diligence and
impartiality, we also order that the hearing be conducted before a different
judge, inasmuch as the trial judge has made credibility determinations based on
the officer's hearsay testimony. See J.L. v. J.F., 317 N.J. Super. 418, 438 (App.
Div. 1999).
A-1252-17T4 22 III.
We are unpersuaded by defendant's challenge to his sentence. Exercising
our deferential standard of review, State v. Fuentes, 217 N.J. 57, 70 (2014), we
are satisfied that the court adhered to sentencing guidelines and relied upon
competent and credible evidence, and the sentence was not "clearly
unreasonable so as to shock the judicial conscience." Ibid. (quoting State v.
Roth, 95 N.J. 334, 365 (1984)).
We recognize that a thirteen-year aggregate sentence for the third- and
fourth-degree offenses committed here is at the high end of those typically
imposed. But, the trial judge explained in detail his reasoning, in support of his
finding of the applicable sentencing factors. In particular, the judge noted
defendant's extensive criminal record, which was marked by numerous prior acts
of violence, and the failure of previous terms of incarceration to deter
defendant's continuing criminal conduct.
Particularly with respect to the imposition of consecutive terms, we
discern no abuse of discretion. There is no presumption favoring concurrent
sentences. State v. Abdullah, 184 N.J. 497, 513 (2005). And, "there can be no
free crimes in a system for which the punishment shall fit the crime." Yarbough,
A-1252-17T4 23 100 N.J. at 643. The trial judge carefully considered the five factors identified
in Yarbough to guide the decision whether to impose a consecutive term:
(1) whether "the crimes and their objectives were predominately independent of each other"; (2) whether they "involved separate acts of violence or threats of violence"; (3) whether they "were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior"; (4) whether they "involved multiple victims"; and (5) whether "the convictions for which the sentences are to be imposed are numerous."
[State v. Spivey, 179 N.J. 229, 244 n.4 (2004) (quoting Yarbough, 100 N.J. at 633-34).]
The Yarbough factors must be applied "qualitatively, not quantitatively."
State v. Carey, 168 N.J. 413, 427 (2001). Consequently, "a sentencing court
may impose consecutive sentences even though a majority of the Yarbough
factors support concurrent sentences." Id. at 427-28.
The February-to-March course of conduct constituting the third-degree
stalking offense ended before defendant committed the terroristic threat in April
2015. Thus, the two offenses were committed at different times and were
independent of each other. However, even if one concluded that the two
offenses had a common objective – to terrorize and disturb defendant – and even
if one treated the terroristic threat as part of the course of conduct – as it fell
A-1252-17T4 24 within the time-frame of the fourth-degree stalking charge – the trial judge did
not err in treating the stalking and terroristic threat offenses as distinct and
separate offenses. By its nature, stalking need not rise to the level of a terroristic
threat. See Cannel, N.J. Criminal Code Annotated, cmt. 1 on N.J.S.A. 2C:12-
10 (2019) (noting that New Jersey "enacted stalking legislation in response to a
type of persistent, distressing or threatening behavior generally perceived as
more serious than harassment, at least in its persistence, but not yet ripened into
terroristic threats or assault"). Here, it did. The court was not obliged to impose
concurrent terms, which would depreciate the seriousness of defendant's
conduct.
IV.
Finally, we turn to defendant's pro-se arguments. He argues that his due
process and fair trial rights were violated because the court compelled M.P. to
testify against him when she was unwilling. He contends that on the last day of
trial, M.P. appeared in the courthouse, prepared to testify on defendant's behalf,
but was unable to enter the courtroom. He highlights M.P.'s partial recantation
at sentencing.
We discern no error in the State compelling M.P. to testify. See R. 3:26-
3 (authorizing the arrest and compelled testimony of a material witness). We
A-1252-17T4 25 also find no evidence in the record that M.P. was prepared to testify on
defendant's behalf during the trial. Defendant failed to appear in court on June
21, 2017 until late in the day's proceedings. By that time, the State already
rested; defense counsel unsuccessfully moved for acquittal and then rested as
well. There was some discussion at that late stage that defendant had an
unnamed witness he wanted to present. The judge did not preclude the
possibility of reopening the trial the next day to afford defendant that
opportunity. However, the next day, defendant again failed to appear until after
closing arguments were heard. Defendant then complained that M.P. was forced
to testify, but he did not assert that she was ready and willing to testify on his
behalf. Therefore, we discern no basis for defendant's claim that he was
deprived a fair trial because he was denied the right to present M.P.'s testimony.
We recognize that M.P.'s post-verdict, partial recantation at sentencing, in
September 2017, may have formed the basis of a motion for a new trial , or a
petition for post-conviction relief. However, no such motion or petition was
made, and we shall not reach the merits of such a motion or petition in the first
instance.
Defendant's argument that his right to be present at trial was violated lacks
sufficient merit to warrant extended discussion. A defendant may waive his
A-1252-17T4 26 right to be present by, among other ways, failing to appear after actual notice of
the trial date, as occurred here. See State v. Finklea, 147 N.J. 211, 218-19
(1996). Defendant blamed his late arrival one day on his mother, who usually
handled his paperwork, and his late arrival another day, based on the claim that
the courtroom door was locked. The court properly rejected the first excuse as
unacceptable. The court rejected the second as factually baseless, noting that
numerous persons freely entered the courtroom when defendant claimed it was
closed.
Defendant also contends his defense attorney had a conflict of interest
because he dated the assistant prosecutor who was initially assigned the case,
but later replaced. He also contends that his attorney was ineffective because
he allegedly failed to inform defendant that he was exposed to an extended term;
and he would have taken a plea offer of non-custodial probation had he not been
misinformed. Both these claims are more suitable to a petition for post -
conviction relief, as they rely on evidence outside the trial record. See State v.
Preciose, 129 N.J. 451, 459-60 (1992).
In sum, we remand for a new hearing on the admissibility of the other -
crimes-or-wrongs evidence before a new judge. If the trial court finds, by clear
A-1252-17T4 27 and convincing evidence, that the prior acts occurred, then the conviction and
sentence shall not be disturbed. If the trial court is not so persuaded, then the
conviction and sentence shall be reversed, and defendant granted a new trial.
Affirmed in part and remanded in part. We do not retain jurisdiction.
A-1252-17T4 28