STATE OF NEW JERSEY v. ALVIN ADAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0196-02T40196-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALVIN ADAMS,

Defendant-Appellant.

_________________________________

 

Submitted: April 26, 2005 - Decided:

Before Judges Kestin, Lefelt and Fuentes.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 96-04-1130.

Yvonne Smith Segars, Public Defender, attorney for appellant (Patricia Nichols, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A 1996 indictment charged defendant with: (1) second degree conspiracy to commit burglary, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count one); (2) second degree conspiracy to commit theft or robbery, contrary to N.J.S.A. 2C:5-2, N.J.S.A. 2C:20-3, and N.J.S.A. 2C:15-1 (count two); (3) second degree burglary, contrary to N.J.S.A. 2C:18-2 (count three); (4) first degree robbery, contrary to N.J.S.A. 2C:15-1 (count four); (5) purposeful or knowing murder, contrary to N.J.S.A. 2C:11-3a(1) or (2) (count five); and (6) felony murder, contrary to N.J.S.A. 2C:11-3a(3) (count six).

In 1997, defendant was tried and convicted on all counts. In 1999, we reversed the convictions for jury improprieties in an opinion published at 320 N.J. Super. 360, and remanded for retrial. The Supreme Court denied certification in an order reported at 161 N.J. 333.

The retrial occurred in February and March 2002. The jury acquitted defendant of purposeful or knowing murder, and convicted him on all other counts.

On May 17, 2002, the trial court, after granting the State's motion to sentence defendant as a persistent offender, merged the convictions for conspiracy, burglary, and robbery into the conviction for felony murder and imposed a sentence of life imprisonment with thirty-five years of parole ineligibility.

On appeal, defendant raises the following issues:

POINT I THE FAILURE OF THE TRIAL COURT TO CONDUCT A NEW TRIAL, AT LEAST STARTING WITH THE MIRANDA HEARING, DENIED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL[.] U.S. CONST. AMEND. 5, 6, 14; N.J. CONST. ART. 1 PARA. 10

POINT II THE TRIAL JUDGE ERRED IN DECIDING THE SANDS MOTION, RELYING ON INCORRECT INFORMATION OR INFORMATION OUTSIDE THE RECORD IN THIS CASE, PERMITTING REMOTE CONVICTIONS TO BE PRESENTED TO THE JURY FOR IMPEACHMENT OF DEFENDANT, IN VIOLATION OF HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL[.] U.S. CONST. AMEND. 5, 6, 14; N.J. CONST. ART. 1 PAR. 10.

POINT III THE STATE FAILED TO PRESENT EVIDENCE OF TIME OF OFFENSE FOR WHICH DEFENDANT COULD BE REQUIRED TO PRESENT A NOTICE OF ALIBI AND THEREFORE THE TRIAL JUDGE ERRED IN REFUSING TO PERMIT TESTIMONY AS TO DEFENDANT'S ACTIVITIES FOLLOWING WORK ON JUNE 1, 1990, VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL[.] U.S. CONST. AMEND. 5, 6, 14; N.J. CONST. ART. 1 PAR. 10.

POINT IV NUMEROUS INSTANCES OF JUDICIAL ERROR AND/OR MISCONDUCT PREJUDICED DEFENDANT AND VIOLATED HIS RIGHTS TO DUE PROCESS, EFFECTIVE REPRESENTATION AND A FAIR TRIAL[.] U.S. CONST. AMEND. 5, 6, 14; N.J. CONST. ART. 1 PAR. 10.

A. THE TRIAL JUDGE VIOLATED THE CODE OF JUDICIAL CONDUCT[.]

B. THE TRIAL JUDGE ERRED IN THE INSTRUCTIONS TO JURY[.]

POINT V PROSECUTORIAL MISCONDUCT COMPELS REVERSAL OF THE CONVICTION AS DEFENDANT WAS DENIED HIS RIGHTS TO DUE PROCESS, REPRESENTATION BY COUNSEL AND A FAIR TRIAL[.] U.S. CONST. AMEND. 5, 6, 14; N.J. CONST. ART. 1 PAR. 10.

POINT VI THE STATE'S LOSS OF THE BRACELET ALLEGEDLY BELONGING TO MS. PASCALE, AND THE TRIAL JUDGE'S ERROR IN PERMITTING THE STATE TO REPEATEDLY REFER TO TESTIMONY IN THE PRIOR TRIAL TO COMPENSATE FOR THAT MISSING EVIDENCE, VIOLATED DEFENDANT'S RIGHTS TO DUE PROCESS, CONFRONTATION, FAIR TRIAL AND REPRESENTATION[.] U.S. CONST. AMEND. 5, 6, 14; N.J. CONST. ART. 1 PAR. 10.

POINT VII DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND THE TRIAL COURT ALSO VIOLATED DEFENDANT'S RIGHT TO REPRESENTATION, DUE PROCESS AND A FAIR TRIAL BY ITS FAILURE TO INVESTIGATE DEFENDANT'S ALLEGATIONS AGAINST HIS TRIAL ATTORNEY PRIOR TO COMMENCEMENT OF THE SENTENCING HEARING[.] U.S. CONST. AMEND. 5, 6, 14; N.J. CONST. ART. 1 PAR. 10.

I

We are called upon in this appeal to review the merits of the convictions that resulted from the second trial. The following facts were developed in that trial.

At about 5:15 p.m. on Saturday, June 2, 1990, two sisters, Lucille Patuto and Theresa Fazzini, arrived at the Newark senior citizen complex where their eighty-one-year-old mother, Lucy Pasquale, resided. The sisters were concerned because they had not heard from their mother since 6:30 p.m. the night before. When there was no answer at the door, the sisters used a key to gain entry into the apartment.

Upon entering the warm apartment, the sisters saw their mother, who appeared lifeless and blue, lying on the living room floor covered with a light beige blanket. The door to the bedroom was closed and locked. Concerned that someone was hiding in the bedroom, Patuto immediately paged her brother, Joseph Pasquale, and requested that he come by. She also turned on an air conditioner and called a niece, who dialed 9-1-1.

Upon his arrival, Pasquale observed that his mother's face was swollen and blue, that her eyes were protruding from her head, and that she was obviously dead. Pasquale used his cane to punch a hole in the bedroom door so that he could reach through and unlock the door. Once the door was open, the siblings saw that the room had been ransacked.

Officer Angelo Zamora and Sergeant Carmine DeMaio of the Newark Police Department responded to the scene. They confirmed that Lucy was dead, that her bedroom had been ransacked, and that there was no sign of a forced entry. They also determined, with the assistance of Lucy's children, that a number of items were missing from the apartment, including a watch, a gold wedding band, a herringbone chain, a brushed gold rope chain bracelet, and certain bank books.

Dr. Rudolph Platt, a medical examiner, performed an autopsy on decedent's body on June 3, 1990. He concluded that she had died from manual strangulation sometime after she ate dinner on Friday, June 1, 1990. Platt estimated that Lucy had been dead at least fourteen hours by the time her daughters discovered her. He based this conclusion upon: (1) the temperature of the room in which she was found (80 degrees); (2) her body temperature upon discovery (84 degrees); (3) the fact that she was covered with a blanket; (4) the fact that her stomach was full; (5) the time she was last seen alive; (6) the extent to which her organs had decomposed; and (7) the degree of rigidity in her body.

Platt explained that, in normal room temperature, body rigidity increases during the first twelve hours after death, stays at a maximum level for another twelve hours, and then decreases over the course of the next twelve hours. In this instance, both the high room temperature and the blanket cover had accelerated the process, and decedent's body rigidity had already begun to lessen after having reached the maximum level. Platt noted that the blanket and room temperature had resulted in the body retaining much of its heat, rather than losing the typical one-degree-per-hour.

In the days that followed the discovery of the body, the police interviewed a number of individuals, including defendant and a co-worker, David Rodriguez, both of whom were employed by the Newark Housing Authority and worked as laborers/repairmen in the building. However, the police did not obtain any solid leads and the case remained dormant for nearly six years, until February 12, 1996, when Lieutenant David Wood of the Newark Police Department received an anonymous tip. Based upon the information received and further investigation, Wood arrested defendant at about 7:00 a.m. on February 23, 1996. At the time, defendant was wearing a tarnished or worn gold bracelet that he claimed had been given to him by his sister.

Wood advised defendant of his rights at the time of his arrest, and defendant indicated that he understood them. During a subsequent police station interview with Wood and his partner, Detective Jack Eutsey, defendant denied any involvement in the victim's murder.

Lieutenant Dennis Alamo of the Essex County Prosecutor's Office began his interview of defendant several hours later. According to Alamo, during the first two hours, defendant was cooperative, but continued to maintain his innocence. At the conclusion of the interview, Alamo told defendant that, as far as he was concerned, defendant was not telling the truth.

Thereafter, Wood and Investigator Kirk Schwindel of the Essex County Prosecutor's Office confronted defendant. Schwindel told defendant that he just wanted him to tell the truth. In response, defendant started to cry and finally admitted to involvement in the death. According to Schwindel, defendant became more relaxed as he revealed more details.

Defendant agreed to give a written statement after once again being advised of his rights and signing a waiver form. In his statement, defendant related that, a few days prior to June 1, 1990, he had been in decedent's apartment while a serviceman installed cable television. At that time, he failed in an attempt to take money out of a wallet on a dresser in the bedroom. Defendant explained that he needed the cash to buy alcohol.

Two or three days later, defendant and Rodriguez returned to the apartment with a key Rodriguez had procured. When decedent did not respond to their knock, defendant used the key to enter her apartment while Rodriguez waited outside. Defendant went into the bedroom and grabbed decedent's wallet, which contained only a few dollars. Defendant denied that he ransacked the bedroom, took any jewelry, or closed the bedroom door behind him.

As defendant was leaving with the money, decedent emerged from the bathroom and demanded to know what he was doing in her apartment. According to defendant, she was agitated and started to fall. He caught her around the neck in an attempt to prevent her from hitting the floor. She struck the floor, however, and was rendered unconscious. Defendant covered her with a light colored blanket and left her lying on the floor, still breathing, while he went to a liquor store and bought some vodka.

Based upon defendant's statement, Wood and Schwindel located Rodriguez and brought him to the police station. Rodriguez admitted that he had participated in the crime as a look-out, and he signed a photograph identifying defendant. Thereafter, defendant gave a second statement and signed a photograph identifying Rodriguez.

Police investigation confirmed that an on-site installation of cable had occurred in the apartment a few days before decedent's body was discovered.

At trial, John Freda, a supervisor for the Newark Housing Authority, reported that both defendant and Rodriguez had worked until 4:30 p.m. on June 1, 1990. He confirmed that a set of keys for each apartment was maintained in a locked box in the manager's office. These keys were available if a tenant was locked out or if a tenant could not be home to meet a serviceman for a scheduled appointment. In the latter instance, the tenant could authorize a building staff member to unlock the door for the serviceman and remain while the work was being completed.

Freda also testified that the decedent's bedroom door locked from the inside with a button. Defendant subsequently presented Donald Moore, the director of the Newark Housing Authority's Department of Modernization, who related that the lock to which Freda had referred would have popped open if someone had attempted to close the door from the outside when the button was pushed in. Freda testified again as part of the State's rebuttal case that he had been mistaken about the lock on the bedroom door, and that it had been changed to a sledge lock, which would have stayed locked even if the door had been closed from the outside.

Rodriguez, who had pled guilty to counts one and three of the indictment under the terms of a plea bargain with the State, testified at trial. He confirmed that sometime after 4:30 p.m. on June 1, 1990, he opened the door to the apparently unoccupied apartment using a key he had obtained from the building management office. Defendant went inside in the hope of stealing some money. According to Rodriguez, defendant remained inside decedent's apartment for fifteen to twenty minutes while Rodriguez remained outside as a look-out. Finally, concerned that defendant was taking so much time, Rodriguez knocked and opened the door. He saw defendant placing a blanket over decedent who was lying on the floor next to a couch. He told defendant to hurry, and thereafter, the two left to have a beer.

Defendant testified in his own defense. He stated that, on June 1, 1990, he punched out at 4:30 p.m. and went home. Defendant clarified that this was typically what he did after work and that he had no specific recollection of his post-work activities on June 1, 1990. Previously, though, he said that he had picked up his baby son at a day care center. He denied visiting decedent's apartment with a cableworker prior to June 1, 1990, asking Rodriguez to obtain a key to the apartment, or breaking into the apartment and causing decedent's death on June 1, 1990. Defendant noted that he did not work at the building on June 2, 1990.

During the course of his direct testimony, defendant confirmed that he had been convicted of various crimes on March 30, 1976, March 11, 1977, May 13, 1977, June 6, 1979, and September 26, 1985, and that he was sentenced for these crimes to prison terms ranging from eighteen months of probation to seven years of imprisonment, although he never served a full term.

Defendant related that, after he arrived at the police station on February 23, 1996, he was left in handcuffs in one small room and later handcuffed to a radiator in another small room. He claimed that Eutsey had screamed and cursed at him, and had hit him on the head with a book. Defendant recalled that DeMaio hurt him as well.

According to defendant, he ultimately decided to give a statement because he was tired and hungry and did not want to be threatened or beaten up any further. He maintained that he thought he was confessing to a burglary gone bad, not a murder. He insisted that the police provided him with the details contained in his statement.

In the State's rebuttal case, Eutsey testified that neither he nor anyone in his presence had struck or threatened defendant while he was at the police station in 1996. DeMaio, likewise, denied that he or anyone else had threatened or hit defendant, and he also maintained that defendant was not handcuffed at any time during his various interrogations. According to Schwindel, defendant was given food and cigarettes during the interrogation.

II

In a pre-trial proceeding before the first trial, the court had conducted a Miranda hearing. Based upon the testimony of investigators Wood, Alamo, and Schwindel, and defendant's own testimony, the judge held, in an oral decision, that defendant had understood his Miranda rights, had

voluntarily waived those rights and that this waiver was a knowing and intentional and intelligent waiver of his rights and that all of this has been proven beyond a reasonable doubt, at least to the satisfaction of this Court and, therefore, I will deny the defendant's motion to not admit the statements on the grounds that they violated his Miranda rights being perfectly satisfied that these statements should go into evidence.

Defendant now contends that he was entitled to a new Miranda hearing and a reconsideration, in the second trial, of the first trial court's ruling. We reject that argument.

We discern no misapplication of discretion in the second trial judge's choice to forego a new Miranda consideration, especially in the context of counsel's concession that the first judge's Miranda ruling "had become the law of the case[.]" We do not read the holding in State v. Hale, 127 N.J. Super. 407 (App. Div. 1974), as limiting the discretion of the second trial judge in deciding to be bound by a prior ruling that followed a full evidentiary proceeding and well-considered findings based on the evidence received, rather than to conduct a new hearing. See State v. Lopez, 166 N.J. Super. 301 (App. Div.), certif. denied, 81 N.J. 287 (1979). Neither before the second trial court, nor in this appeal, has defendant offered any specific grounds for determining that the hearing by the first trial court was deficient. He has not identified any other witness he would have called in a second hearing. He has not established that his own testimony at the instant trial regarding the voluntariness of his statement differed in any pivotal way from his testimony at the Miranda hearing before the first trial court. And, the testimony of Wood, Alamo, Schwindel and defendant in the Miranda hearing was substantially the same as that presented at the second trial.

The admissibility of defendant's statement had been reliably determined by the first trial court based on findings supported by the hearing testimony. Thus, we discern no flaw in the admission of defendant's statement at the second trial without a new Miranda hearing. There was no error in this regard, let alone plain error.

III

We, likewise, reject defendant's challenge to Judge Petrolle's discretionary ruling in the second trial that allowed defendant's credibility to be impeached with all five of his prior convictions, rather than only the two most recent ones, as in the first trial.

The decision to admit a prior conviction rests within the sound discretion of the trial judge. State v. Morris, 242 N.J. Super. 532, 543 (App. Div.), certif. denied, 122 N.J. 408 (1990); State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). "Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." State v. Sands, 76 N.J. 127, 144 (1978). A conviction may be excluded if it is deemed too remote after consideration of the lapse of time since the offense and the nature of the offense. Ibid. The trial judge must "balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45. A trial judge should admit a prior conviction "unless in his discretion he finds that its probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice." Id. at 147.

A defendant's burden in attempting to exclude evidence of prior convictions is particularly heavy where he or she has an extensive prior criminal record, indicating contempt for the bounds of behavior placed on all citizens. Id. at 145. "A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen." Ibid. If a person has been convicted of a series of crimes through the years, then the earliest convictions, although committed many years before, as well as intervening convictions, should be admissible. Ibid.

Before defendant took the stand, the trial court held a Sands hearing regarding the admissibility of defendant's five prior felony convictions. The prosecutor indicated that defendant's felony convictions included: (1) a conviction of fourth-degree carrying a weapon dating back to March 30, 1976, for which defendant was sentenced to three years of probation; (2) a conviction of armed robbery for which defendant was sentenced on March 11, 1977, to seven years in prison; (3) a conviction of receiving stolen property dating back to May 15, 1977; (4) a conviction of larceny for which he was sentenced on June 6, 1979, to three years of imprisonment; and (5) a conviction of burglary for which defendant was sentenced on September 26, 1985, to four years in prison. The prosecutor also mentioned that defendant had been convicted in Newark Municipal Court of larceny and unauthorized use of a vehicle on two separate occasions in September 1975, that he had been convicted of simple assault and larceny in Newark Municipal Court in October 1976, and that he had also been convicted of contempt and receiving stolen property in August 1981 in Livingston Municipal Court.

The prosecutor acknowledged that defendant's most recent felony conviction and sentence dated back to 1985, noting that this was within five years of the date of the instant charges. He maintained that the offenses disclosed were progressive, that they all occurred within a reasonable period, and that they all bore upon defendant's credibility. The prosecutor acknowledged that twenty-seven years had elapsed since the first conviction, but noted that defendant had been incarcerated since 1996 and was originally tried in 1997.

In response, defense counsel conceded that defendant's record reflected a pattern of criminal behavior, but emphasized the age of the convictions and urged the court to consider all of them to be time barred. In making his argument, counsel acknowledged that defendant's prior convictions were not exceptionally remote as to the dates of the subject offenses, but maintained that the court should assess the remoteness of the convictions relative to the date of the current trial.

After considering the arguments of both parties, Judge Petrolle ruled:

It does appear that there are five felony convictions as outlined by the Prosecutor, and . . . they did begin with commitments to periods of probation and graduate to periods of five years and seven years in State Prison. It is also true that there haven't been any convictions in the last . . . five years or so since 1997, when the defendant was incarcerated as a result of . . . [the instant offenses].

* * *

Now, in 1985, it appears that he was found guilty or pled guilty and was sentenced for a third-degree burglary charge, which is similar to . . . one of the charges that is made in this indictment, and is also a predicate alleged for the felony murder alleged in this indictment, and I don't know from what's been said how long he served on that 4 year sentence, but it's reasonable to believe that he served some time in State Prison on that sentence, which would have brought him significantly closer to the 1997 date. Especially, in light of his prior record in which he served 5 years in State Prison and 7 years in State Prison for the robbery while armed convictions imposed in March of . . . 1977.

So, in the circumstances, it does appear that there's a continuity of involvement with [the] criminal justice system and a series of five indictable convictions that bring him, if one considers the sentencing for the 1985 conviction, . . . within 10 years of the trial in 1997. And as I say, this is really an on-going proceeding from that time to the present time in terms of appellate process, and now a remand for additional trial process.

And I quite agree with the Prosecutor that while the defendant is entitled to assert his rights and have them vindicated in the courts, the defendant should not be in a different position . . . nor should the State vis- -vis the ability to cross-examine the witness at the subsequent trial on an issue such as this.

So, for those reasons, I will permit the State to examine the defendant with respect to the five prior indictable convictions, but I will prohibit the State, under State v. Brunson, [ 132 N.J. 377 (1993),] from any mention of the nature of the convictions in as much as at least two or three of them are so closely similar to the charges for which the defendant is on trial here. More specifically, the robbery, the larceny and the burglary convictions.

After defense counsel reiterated his remoteness argument, noting that one of the convictions dated back twenty-seven years, and that only two of the offenses had been admitted at the last trial, the judge offered the following additional comments:

I considered the remoteness argument and but for the fact that that conviction is rendered material by virtue of the continuing convictions over the time period[] spanning the 27 years, I might agree. But in the absence of . . . such a continuing series of convictions, the Court would exclude a 27-year-old conviction as remote. But when a person repeatedly commits . . . crimes so that there are over that 27 year period, four additional convictions for indictable crimes, and in addition, there are intervening disorderly persons offenses, I don't see that conviction as remote.

Now, I was not focused on what the ruling in the prior . . . trial was, and I certainly have the greatest respect for . . . my former colleague who made that decision. But I'm satisfied here as the argument has been made to me, and I don't know whether the same argument was made to him[,] . . . that though remote in and of itself before the only one, it's rendered material by the continuing nature of the unlawful conduct that has shown itself in the indictable convictions that were the four intervening indictable convictions since that 27-year-old conviction. So, for that reason, I'm satisfied that all the convictions that I've mentioned should be admitted here.

Defendant argues that Judge Petrolle erred in failing to assess the remoteness of his convictions relative to the date of his trial, as opposed to the date of the murder. It is clear, however, that the judge did take into account the fact that twenty-seven years had elapsed since defendant's first felony conviction and the instant trial. Judge Petrolle was, nevertheless, persuaded that defendant's record reflected a pattern of criminal behavior, and that this justified admitting what could otherwise be seen as excessively remote convictions. Especially in the light of a concession that such a pattern was evident from defendant's record, we discern no misapplication of discretion in this regard.

Notwithstanding the concession, defendant argues on appeal that Judge Petrolle erred in ruling that a pattern of criminal conduct had been established. According to defendant, his record does not reflect the progression of penalties found by the judge and which were key to the ruling. Rather, defendant insists that a review of the time he actually served indicates that his terms of incarceration were significantly shorter than the terms imposed and actually decreased over time with the exception of the two-and-one-half-year term he served on his larceny conviction. According to defendant, his offenses demonstrably "lessened in seriousness over time and were further apart in time." Additionally, defendant asserts that he was prejudiced by the difficulties the judge, counsel, and even he, himself, had keeping straight the dates of his offenses, convictions, and sentencings. We reject these related arguments.

Regardless of the minor predominately date- or parole-related inaccuracies recounted by defendant that found their way into the Sands hearing, it is undeniable that defendant committed five indictable offenses and at least six disorderly persons offenses over the course of the nine-and-one-half-year period spanning June 1975 through January 1985. There is, accordingly, ample basis for the assessment that his was an extensive criminal record indicating contempt for society's rules. The amount of time defendant actually served does not diminish the significance that the crimes he was convicted of, with the exception of the first, resulted in the imposition of multi-year terms of imprisonment. Therefore, we reject defendant's contention that the trial judge erred in finding that his record indicated a pattern of criminal behavior. We discern no error in the ruling admitting all five of defendant's felony convictions for impeachment purposes. Defendant was certainly in the best position to correct any inaccuracies as to his record that crept in during his own testimony.

IV

Defendant contends he was denied a fair trial because of the State's failure to present evidence regarding the time of the offense. According to defendant, because the time of the offense was never sufficiently specified, he was precluded from filing a notice of alibi, which, in turn, resulted in the exclusion of all testimony regarding his post-work activities on June 1, 1990.

In the indictment charging defendant with the subject offenses, the State alleged that defendant had committed the crimes "between on or about the 1st day of June, 1990 and the 2nd day of June, 1990." At trial, Patuto testified that family members had last heard from her mother at approximately 6:30 p.m. on Friday, June 1, 1990. Rodriguez related that he had helped defendant break into the apartment sometime after 4:30 p.m. on June 1, 1990. Medical examiner Platt estimated that decedent had been dead at least fourteen hours by the time she was discovered on June 2, 1990. Based upon his examination of the body, the contents of decedent's stomach, and the time her family last communicated with her, Platt opined that she had died from manual strangulation sometime after she ate dinner on June 1, 1990.

After the State completed the presentation of its case, defendant testified that, on June 1, 1990, he resided in Newark with Levin West and Patricia West. When asked what he did following work on June 1, 1990, he replied that he usually just went home to the West residence on Fridays, except on occasion, when he would go down to Atlantic City.

The prosecutor noted to the court at sidebar that the Wests had not previously been identified in any discovery and that he objected to defendant suggesting to the jury that he could not have committed the murder because he was at home with the Wests. The prosecutor asserted that the Wests were now alibi witnesses even though defendant had never filed an alibi notice.

The court asked defense counsel if he was intending a claim of alibi, and if so, what that claim was. Defense counsel replied that he had expected defendant merely to say that he had been living with unnamed friends, that he had no indication that the Wests knew of defendant's whereabouts on June 1, 1990, and that there was no claim of alibi. The prosecutor, however, pressed the point, arguing that defendant's testimony amounted to an alibi, whether it was anticipated or not. The prosecutor also noted that defendant's testimony was at variance with his prior trial testimony in 1997 that he had no recollection of June 1, 1990.

The trial court observed that, according to Rodriguez's testimony, the murder allegedly occurred late in the afternoon on June 1, 1990. The prosecutor agreed. The court then asked defense counsel whether defendant contended that he was somewhere else in that time frame. Defense counsel replied that he did not think the State had sufficiently identified the alleged time of the murder. When pressed by the court to answer the question posed, defense counsel replied that he had nothing that indicated defendant was not at the building. Defense counsel reported that defendant alleged he had left the building sometime between 4:30 p.m. and 5:00 p.m.

The prosecutor argued that all of the evidence indicated that the murder occurred late in the afternoon on June 1, 1990; and he reiterated the argument that defendant's testimony constituted an alibi. He insisted that defendant had changed his testimony from the prior trial. In response, defense counsel insisted there was no claim of alibi, that defendant had never previously identified the people with whom he lived, and that there was no way he could have prepared a notice of alibi without knowing the alleged time of the crime.

The trial judge directed defense counsel to provide pertinent information regarding the Wests to the prosecutor, and to prepare a notice of alibi unless it was clear that defendant did not actually see the Wests after he went home. Defense counsel was unwilling to prepare such a notice, explaining as follows:

[H]e can represent what time period he was with some people but if it doesn't affect the time period the State is alleging then forcing him to set forth an alibi, Judge, and then have that piece of paper now thrown in his face on cross-examination, saying he's using them as an alibi witness, I think hurts his case.

Notwithstanding counsel's argument, the trial court directed as follows:

If [defendant's] claiming that [the Wests] were with him and he wasn't at [the decedent's residence], then he should set forth the time that he was with them and not at the location, and the names of the people with whom he was and their addresses. That's what I require that he does. This is not a time for you to argue. I'm ordering you to do that.

Defense counsel agreed to comply once the State identified the time the crime was alleged to have occurred. The judge responded that the time period was between 5:00 p.m. and midnight on June 1, 1990.

Following a recess, the judge returned to the bench and made the following statement out of the presence of the jury:

Short of the period of 20 minutes that I indicated I would give [defense counsel] to prepare the notice of alibi that I ordered him to prepare, I asked him if he was preparing it off the record and he told me that he will not be preparing an alibi notice. I told him that if that's the case, he'd have to cancel his trip tickets to Africa, where I understand he's planning to travel. The reason for that is that this matter will proceed.

The State will be given an opportunity to investigate whatever claims are made by the defendant in his testimony. I will not preclude the defendant from testifying because counsel refuses to prepare the document. It's his obligation to prepare under the Court's order. But then . . . the State will be given the opportunity to investigate the matter for whatever time it needs and when I return, we will resume the trial.

This is a dilatory and defiant tactic on the part of the defense that will not go unaddressed, but I will not burden the defendant at this time with the consequences of his attorney's conduct in defiance of the Court order.

After further colloquy between the court and counsel, defense counsel represented that there was no alibi, that defendant had merely been testifying as to his usual habits, and that defendant had no specific recollection of who he was with after he left work on June 1, 1990. Based upon counsel's representation, the trial court decided that no notice of alibi was required.

After the jury returned to the courtroom, the trial judge confirmed that none of the jurors knew the Wests. On cross-examination, defendant acknowledged that he had no recollection of exactly what he did after work on June 1, 1990. Later, in denying defendant's motion for a judgment of acquittal, the trial court observed that, according to the evidence presented at trial, decedent was murdered late in the afternoon on June 1, 1990.

Defendant insists on appeal that the State failed to present evidence as to the time of the offense, and that, as a result, he was deprived of the opportunity to present testimony regarding his post-work activities on June 1, 1990. However, in the light of the foregoing, it is apparent that the State did indeed identify the alleged time of the offense through the testimony of Patuto, Rodriguez, and Platt. Defendant's attempt on appeal to discredit Platt's testimony through reliance upon the testimony of a different medical examiner presented in an entirely different case (State v. Dreher, 302 N.J. Super. 408, 429-32 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 524 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998)) is both inappropriate and unavailing. Platt had been subjected to cross-examination at the time he gave his testimony in the first trial; and defendant was in no way precluded from presenting countervailing expert testimony, either in the first trial or the second trial.

In any event, in the light of defendant's admission that he had no recollection of his activities after 4:30 p.m. on June 1, 1990, it is apparent that, because he had no alibi, he ultimately suffered no prejudice and, therefore, no violation of his due process rights, from the assertedly general time frame allegations made by the State. Defendant never proffered the testimony of the Wests or any other alibi witness. Accordingly, we reject defendant's contention that he was denied a fair trial as a result of the State's contentions and proofs regarding the time of the crime.

V

Defendant contends that he was denied a fair trial as a result of the trial judge's misconduct. Defendant argues that, throughout the trial, the trial judge repeatedly treated defense counsel with disrespect and intolerance, thereby depriving defendant of a fair trial. We reject the argument because its actual premises have not been made out. Virtually all of the twenty-seven incidents of alleged disrespect defendant cites occurred at sidebar or otherwise outside the presence of the jury. Thus, there was no substantial likelihood the jury was in any way influenced by those exchanges. Moreover, there is no validity to the assertion that the trial judge "personally attack[ed]" defense counsel in any way.

An analysis of the record indicates that most of the initially cited sidebar incidents involved the trial judge addressing defense counsel's attempts to continue arguments after the court had ruled; or controlling defense counsel's efforts to question witnesses on matters that were irrelevant, involved hearsay, were inconsistent with the record, or assumed knowledge the witness did not possess; or cautioning defense counsel against antagonizing witnesses. These are all proper judicial functions and do not bespeak any bias on the part of the judge. By way of particular example, it is entirely proper for a court to admonish counsel for arguing with the court after an objection has been overruled. State v. Knight, 63 N.J. 187, 192 (1973). Defendant has been unable to establish that any of the trial court's rulings with which counsel argued was incorrect.

Other cited sidebar incidents were entirely neutral and involved the judge simply ruling on an objection by the prosecutor; addressing both the prosecutor and defense counsel regarding the possible need for a curative instruction; clarifying that he was not criticizing the form of a question posed by defense counsel on cross-examination; disagreeing that the prosecutor was attempting to intimidate defendant on cross-examination; making an observation regarding defendant; and dealing with the notice-of-alibi issue we have already addressed. The judge's expressed impatience with defense counsel were due to that attorney's initial refusal to recognize the judge's rulings and orders. Counsel was, instead, disrespectful and obstreperous, baiting the judge on numerous occasions. The court's responses were nothing more than the expression of "an understandable irritation" at counsel's behavior." State v. Leverette, 64 N.J. 569, 571 (1974).

We also do not agree with defendant that two other remarks made by the trial judge in the presence of the jury disparaged defense counsel in any way. The first simply involved the trial court properly controlling the content of defense counsel's questions on cross-examination. When defense counsel responded that he was just trying to make sure he understood the witness's prior testimony, the judge cautioned him to avoid speech-making. The final incident also involved the court properly stepping in when defense counsel needlessly repeated a question. It was defense counsel who, after the court's ruling and instruction, insisted, pointlessly, on challenging the judge. This exchange ultimately resulted in a sidebar conference.

Defendant also contends that, on eight other occasions, the trial judge behaved in a "personal or petty" manner which revealed his "disdain for defense counsel, and thereby defendant," and undoubtedly influenced the jury. Defendant's count of eight instances is not borne out by the record. The excerpts from the record highlighted by defendant really comprise only three incidents; and, although not pointed out by defendant, the entirety of the first and second incidents, and nearly all of the third, occurred at sidebar.

The first cited incident, followed an argument at sidebar. The trial judge had overruled defense counsel's objection to a line of inquiry by the State which counsel maintained would elicit only hearsay. Following the judge's ruling, defense counsel attempted to renew his argument and identify what he believed would be the more appropriate course of action. Although the judge repeatedly stated that he had made his ruling and counsel was free to appeal, defense counsel persisted in his argument until the judge emphatically declared the matter concluded.

The second incident occurred shortly thereafter when, again at sidebar, the trial judge overruled another defense objection, noting that the issue had been addressed in the pretrial stage. During the sidebar argument, the judge cautioned the prosecutor about the manner in which he was to conduct his examination, thereby validating defense counsel's point to some extent. Nevertheless, defense counsel again persisted in arguing following the court's ruling. The judge interrupted counsel, reiterating that there was to be no more argument once a ruling had been made. Immediately thereafter, however, the judge did permit defense counsel to raise another matter and the sidebar concluded with the judge stating that he would be "happy to hear" anything counsel had to say prior to a ruling.

The last of these three incidents occurred during defense counsel's cross-examination of Detective Wood. The prosecutor had objected to certain factual misstatements made by defense counsel in conjunction with one of his questions. At sidebar, defense counsel offered to withdraw his question and asked for a minute to review the transcript, presumably to refresh himself on the facts. The judge directed him to proceed with his examination, relying upon his memory and notes. Defense counsel then stated that perhaps he should revoke his offer to withdraw his question, and was about to propose what he hoped the judge would "at least" let him do when the judge interrupted, stating that counsel could withdraw the question or not, as he chose, but that the judge did not appreciate the argumentative tone counsel was taking and which he had also taken with the witness. As the judge concluded speaking, defense counsel apparently began walking away without indicating whether he was in fact withdrawing his question. After the judge called him back and permitted him to review his notes, counsel finally indicated that he was withdrawing his question.

Shortly thereafter, the trial judge sustained another objection by the prosecutor and asked both attorneys to come to sidebar. The court cautioned defense counsel against his line of inquiry and also admonished him again for being argumentative with Wood.

Soon after defense counsel resumed his cross-examination, the court, without an objection from the prosecutor, interrupted defense counsel, asked why counsel's inquiry was relevant, and held another sidebar conference. At sidebar, defense counsel asserted that the trial judge was not familiar with the facts of the case and that he was making it very difficult for counsel to try the case. The trial judge instructed defense counsel to keep his voice down, noting he was sure the jury had heard every word defense counsel had said. The judge warned that defense counsel would be held in contempt if he did not modulate his voice. The judge denied defense counsel's request for a "brief break" and directed him to explain the relevancy of his question, whereupon counsel withdrew the question.

Before defense counsel resumed his cross-examination of Wood, the trial judge instructed the jurors to disregard anything they might have overheard at sidebar, noting that heated disagreements sometimes resulted when attorneys "believe vehemently in their side of the case." Defense counsel requested to be heard at sidebar, representing that he could not otherwise proceed with the case.

At sidebar, counsel took exception to the judge's instruction to the jury. As he was explaining his position, the judge interrupted him to again note that he was raising his voice to a level that was audible to the jury. The judge instructed counsel that he was not to do that again. The judge admonished counsel for insisting upon a sidebar on a specious basis, i.e., that he could not otherwise continue with the case, in order to have his way regarding the jury instruction. The judge instructed defense counsel to return to the defense table. Counsel, however, attempted to continue the argument with the court, accusing the judge of raising his voice, and then made a request for a "health" break which the judge granted. The judge then reinstructed the jury to disregard anything they might have overheard, and ordered the recess. After the jury had departed, the judge again admonished defense counsel for making a false representation in order to obtain a sidebar and warned that, if he did it again, the court would impose sanctions. Although defense counsel attempted to respond, the judge informed him that it was not a "response time" and left the bench.

We disagree with defendants' position that these episodes prejudiced his trial because they revealed the trial judge's disdain for defense counsel. We begin our analysis with some fundamental principles.

The conduct of a trial, including cross-examination and its appropriate limits, is within the discretion of the trial court. See Persley v. New Jersey Transit Bus, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003); Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 492 (App. Div.), certif. denied, 165 N.J. 607 (2000); see also N.J.R.E. 611(b). Exercise of that discretion is normally immune from invalidation on review, a step justified only where there has been "a clear abuse of discretion which has deprived [a party] of a fair trial." Daisey v. Keene Corp., 268 N.J. Super. 325, 334 (App. Div. 1993).

Although great latitude is given to a trial court in the conduct of a trial, there are bounds confining the judge's choices. See generally State v. Guido, 40 N.J. 191, 207-09 (1963); Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-316 (App. Div. 1999). A judge must "conduct the trial in a fair and impartial manner, without making remarks that might prejudice a party or which are calculated to influence the minds of the jury." Cestero v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971). A judge should never unfairly criticize or humiliate counsel, especially in front of the jury. See Mercer v. Weyerhaeuser Co., supra, 324 N.J. Super. at 298. A judge's failure to abide by these guidelines "can easily prejudice a jury since it conveys the opinion of the judge as to his belief or disbelief in one side of the case." State v. Zwillman, 112 N.J. Super. 6, 21 (App. Div. 1970), certif. denied, 57 N.J. 603 (1971). Alleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine its prejudicial impact. See Mercer v. Weyerhaeuser Co., supra, 324 N.J. Super. at 298.

Within the bounds of these principles, a trial judge may admonish counsel for arguing with the court after an objection has been overruled. See State v. Knight, supra, 63 N.J. at 192. Moreover, "[w]hen an attorney provokes a judge's rebuke by defying his authority to limit argument, he cannot complain of the judge's appearance of hostility while trying to control the proceedings." State v. Stewart, 162 N.J. Super. 96, 103 (App. Div. 1978).

In the instant matter we do not perceive that Judge Petrolle exceeded the bounds of propriety. He did his best to cope with a defiant and discourteous demeanor on the part of defense counsel, who seemed determined, regardless of the court's rulings, to do as he pleased and get what he wanted, even on distinctly trivial matters. Judge Petrolle's responses to that misbehavior were controlled and appropriate. He successfully resisted being goaded into action that could be seen as anything but balanced and appropriate in the circumstances. We see no real possibility that the judge's conduct, as distinguished from counsel's own behavior, redounded to defendant's detriment as the jury considered the case, or denied defendant a fair trial in any other way. Accordingly, we reject defendant's contention that, on the bases advanced, prejudice resulted requiring a reversal of the convictions.

VI

Defendant also contends that the trial judge erred in his instructions to the jury regarding Rodriguez's prison exposure, the concept of purposeful conduct, the elements of burglary, and the elements of felony murder. We reject those arguments, as well.

"[A]ppropriate and proper charges to a jury are essential to a fair trial." State v. Green, 86 N.J. 281, 287 (1981); accord State v. Martin, 119 N.J. 2, 15 (1990). Erroneous instructions on matters which are material to the jury's deliberations are presumed to be reversible error. See State v. Grunow, 102 N.J. 133, 148 (1986). When an error in instructions has occurred regarding an element of an offense, it is presumed to be prejudicial even when no objection was raised at trial. See State v. Federico, 103 N.J. 169, 176 (1986). However, "portions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973).

A.

Defendant argues, first, that the trial judge improperly instructed the jury regarding the possible jail time Rodriguez faced when he entered into a plea agreement with the State. We discern no error in this regard.

On his direct testimony, Rodriguez related that, as a result of plea negotiations with the State, he had pled guilty to burglary and received a seven-year prison sentence with three years of parole ineligibility. On cross-examination, defense counsel elicited testimony from Rodriguez clarifying that Rodriguez had actually pled guilty to one count of conspiracy and one count of burglary. Defense counsel then asked Rodriguez whether he understood that he had been facing "a total exposure of 10 years in prison on each [count], for a total of 20 years." The prosecutor objected and, at sidebar, related to the court that the State's recommendation had been for Rodriguez to receive a ten-year prison sentence with five years of parole ineligibility, and that that was his true exposure. The judge stated that, because the conspiracy count and the burglary count would have merged, the ten-year term was the maximum sentence Rodriguez could have received. He directed defense counsel to "clear up [his] error."

Defense counsel, however, insisted that Rodriguez's exposure had actually been twenty years of imprisonment and persisted in arguing with the court. Finally, the trial judge indicated that unless counsel corrected the misinformation conveyed, the court would. Thereafter, defense counsel elicited confirmation from Rodriguez that the State had recommended that he receive a ten-year prison sentence. Defense counsel, however, did not specifically correct the misimpression he had created earlier that Rodriguez had faced a maximum of twenty years in jail. Accordingly, as part of his final charge, Judge Petrolle informed the jury that the State's recommended ten-year sentence for Rodriguez was the maximum he faced.

At the conclusion of the charge, out of the presence of the jury, defense counsel expressed his objection to the court's instruction regarding Rodriguez's exposure. The judge noted that he had relied upon N.J.S.A. 2C:1-8, which addresses the prosecution of multiple offenses and directs that a defendant may not be convicted of more than one offense when conspiracy is charged along with the substantive offense.

The judge's instruction correctly clarified matters for the jury. Nothing that was said outside the presence of the jury could have affected jury deliberations. And, defendant was not limited in his endeavors to impeach Rodriguez's credibility, whether Rodriguez faced ten years in jail or twenty years.

B.

Defendant next contends that the trial judge erred during his charge, after delivering a substantially correct formal instruction on the definition of the term "purposely," in an effort to illustrate the concept of purposeful behavior to assist the jury's understanding. The portion of the charge defendant highlights was:

Let me offer you what I hope will be a helpful illustration. Perhaps from childhood, either you may remember from your own childhood or you may remember from someone else's childhood, someone saying: He didn't do it on purpose; or, he did do it on purpose. On purpose is an illustrative way of getting at the same concept that the legal terminology I've just read to you is addressing.

Defendant argues that the illustration used was "puerile," "trivialize[ed] . . . an important concept," and "diminished the seriousness with which all of the charges based on purposeful conduct would be taken by the jury and reduced the State's burden."

This portion of the charge, to which defense counsel did not object, was not incorrect, especially when measured by plain error standards. See R. 2:10-2. The charge on purposeful conduct, taken as a whole comported with the model charge. The addition of the illustration had no capacity to mislead or distract the jury. Defendant's contention regarding the effect this statement had on the State's burden of proof is belied by the jury's verdict acquitting defendant of purposeful and knowing murder.

C.

Next, defendant contends, also for the first time on appeal and therefore subject to plain error evaluation, that the trial judge "remov[ed] an element from the jury's deliberation" when, after defining the crime of burglary to include the element that a structure had been entered which was not open to the public or for which there was no license to enter, he delivered the following instruction: "In this case, you already have the testimony and I won't comment on it other than to say there does not appear to be a contention in the testimony that the structure was open to the public or that the actor was licensed or privileged to enter." Although it would have been better if this comment had not been made, it was undisputed that decedent's apartment was her own private residence and that defendant had no right to enter on the date in question. Thus, it appears that no error resulted, let alone plain error.

D.

In his last point impugning the jury instructions, defendant argues, also for the first time on appeal, that the trial judge committed reversible error in failing to define the concepts of concealment and flight in connection with his charge that the jury could find defendant guilty of felony murder if it determined that he had killed decedent while engaged in the commission or concealment of the crimes or robbery or burglary, or in flight thereafter. According to defendant, the trial judge left the jury with the incorrect impression that "the flight from and concealment of the offense began June 1, 1990 and would not have ended until either arrest or conviction." The argument, on its face, is meritless.

VII

Defendant contends that he was denied a fair trial when the trial judge permitted the prosecutor to present testimony linking the bracelet defendant was wearing at the time of his arrest to one missing from decedent's apartment after her murder.

During defendant's first trial, the State had produced the bracelet along with testimony identifying it as the bracelet stolen from decedent's apartment. Prior to the re-trial, the prosecutor revealed that the bracelet had mistakenly been auctioned off by the Newark Police Department. The prosecutor requested permission to refer to the recovery and prior in-court identification of the bracelet. Over defendant's objections, the trial judge granted the State's request. The judge opined that defendant had failed to demonstrate any material prejudice through the admission of the proposed testimony. He found that the police had not acted in bad faith.

Decedent's granddaughters testified that they had purchased a rope chain bracelet with a fourteen carat gold stamp on it and a large lobster clasp for decedent when they were in Italy in the early 1980s. They confirmed that they had previously been able to identify the bracelet recovered from defendant as the one they had purchased in Italy.

Three factors must be considered in determining whether a due process violation has occurred when there has been suppression, loss, or destruction of physical evidence: (1) the bad faith of or connivance by the government; (2) whether the evidence was sufficiently material to the defense; and (3) whether the defendant was prejudiced. See State v. Dreher, supra, 302 N.J. Super. at 483; State v. Hollander, 201 N.J. Super. 453, 479 (App. Div.), certif. denied, 101 N.J. 335 (1985). To be material, the "evidence must both possess an exculpatory value that was apparent before [it] was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." California v. Trombetta, 467 U.S. 479, 489, 104 S. Ct. 2528, 2534, 81 L. Ed. 2d 413, 422 (1984).

Defendant insists that he was prejudiced by the loss of the bracelet because it was the only piece of physical evidence connecting him to the murder. According to defendant, the loss of the bracelet precluded him from proving that the bracelet was not decedent's, a showing which, he contends, probably would have altered the outcome of the trial. Defendant suggests that the State deliberately lost the bracelet in order to prevent him from establishing this fact.

Contrary to defendant's representations and arguments, there is nothing that indicates the State deliberately lost the bracelet or acted with the intent of disadvantaging defendant. Even without the bracelet, defendant was able to cross-examine decedent's granddaughters effectively regarding the fact that the lobster clasp bracelet they had purchased had not been unique and was not necessarily the one found in defendant's possession. Also, Detective Wood's testimony revealed that defendant had identified the bracelet found in his possession as having been purchased for him by his sister. Defense counsel confronted Wood with a Sears receipt for the purchase of an eight-inch fourteen-carat gold bracelet.

There is no substance to defendant's argument that the presentation of the actual bracelet would have tended to exculpate him of the murder since he could have shown that it did not bear the word "Italy" which decedent's granddaughters had testified at the first trial was also stamped on the bracelet they had purchased. This assertion stands in stark contrast to the fact that the granddaughters had positively identified the recovered bracelet.

The factual issue was before the jury. Defense counsel argued in his summation that it was unlikely the recovered bracelet was decedent's. Given the other evidence against defendant, especially that of Rodriguez, there is no reasonable likelihood that further evidence bearing upon the provenance of the bracelet would have changed the verdict. Accordingly, we reject defendant's contention that he was denied a fair trial as a result of the trial judge's decision to permit testimony identifying the bracelet.

VII

Our review of the record in the light of prevailing principles of law discloses that the remaining arguments advanced by defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). There is no adequate foundation in the record for the arguments based on prosecutorial misconduct. Any argument defendant may have that he was denied the effective assistance of counsel requires further factual development. That issue is preserved for exploration on a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992). We discern no violation of defendant's due process rights in the trial court's declination to postpone sentencing until defendant's assertions of inadequate representation could be explored. We are unable to identify any prejudice to defendant in the sentencing phase of the case by reason of his expressed displeasure with the trial court's ruling to proceed. We note that defendant raises no issue on appeal regarding the legality or appropriateness of the sentence imposed.

Affirmed.

 

Platt had died by the time of the second trial. His testimony at the first trial was read into the record.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

This recitation differs in minor detail primarily as to dates from the presentence report of defendant's criminal record. The disparities are of no moment for the purposes of evaluating this issue.

(continued)

(continued)

47

A-0196-02T4

March 30, 2006