STATE OF NEW JERSEY v. ANTOINE DENNIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2956-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent/

Cross-Appellant,

v.

ANTOINE DENNIS,

Defendant-Appellant/

Cross-Respondent.

November 29, 2012

 

Submitted September 11, 2012 - Decided

 
Before Judges Fisher, Alvarez and Waugh.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2533.

 

Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Michele Adubato, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent/cross-appellant (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

 

PER CURIAM

Tried by a jury, defendant Antoine Dennis was convicted of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1 (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); first-degree murder, N.J.S.A. 2C:11-3(a)(1) and/or (2) (count three); first-degree felony murder, N.J.S.A. 2C:11-3(a)(3) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count five); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count six); and second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1) (count seven).

On August 27, 2010, the trial judge sentenced defendant to life imprisonment subject to the eighty-five percent parole ineligibility term required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a),1 on count three, murder. On count seven, the certain persons not to possess, defendant was sentenced to a consecutive ten years, subject to five years of parole ineligibility. The remaining counts were merged. Thus the aggregate sentence was life plus ten years. Finally, the judge made the sentence consecutive to the sentence on a negotiated plea agreement that defendant was then serving on a Hudson County charge of aggravated manslaughter, N.J.S.A. 2C:11-4(a). Defendant was assessed appropriate fines and penalties, and now appeals. We affirm, except for a remand to address improperly merged charges.

Saahron Jones' (Saahron) brother Jaashawn Jones (Jaashawn), while dressing for New Year's Eve, realized he left a medallion imprinted with a globe on a gold and white chain, which he wanted to wear, at Saahron's apartment. Jaashawn's cousin, Prince Young, waited in the car after driving him over. When Jaashawn knocked, the door was opened by a man dressed in black, later identified as defendant's brother and codefendant, Andre Dennis, who pointed a gun in Jaashawn's face. Another individual, also wearing black, came to the door carrying an automatic weapon. Jaashawn eventually identified this person as defendant. After the men pulled him into the apartment, Jaashawn saw his brother on the ground "laying face first with his hands tied behind his back" while a woman wearing a red coat, codefendant Angela Pizzarelli, stood over him.

Andre forced Jaashawn onto his knees, threw him onto the floor in the hallway, and straddled him, gun pointed at his head. Jaashawn kept looking towards the living room to see Saahron until Andre told him not to move or he would kill him. Andre removed Jaashawn's cufflinks from his shirt.

The men asked Jaashawn if he knew where his brother kept his money and whether his brother was a hustler; Jaashawn responded that he did not know. His Nextel direct-connect phone, which operates like a walkie-talkie, was taken from him, as was his cell phone.

Jaashawn overheard defendant in the living room, asking Saahron where his money was located, and demanding that he open his safe. When Saahron said he only had $400, defendant said to Pizzarelli, "I thought he had money[,]" to which she responded "I don't mess with no broke[] n------." (sic). Pizzarelli insisted that Saahron had $30,000 somewhere in the apartment although Saahron said that he had let his friend Preem hold his money, and that Nitty, Preem's cousin, had stolen it. Pizzarelli said she already knew about that.

Andre eventually put a coat over Jaashawn's head so he could not see. He heard the three assailants repeatedly pressing Saahron about the whereabouts of his money and his safe. Saahron told them the location of the key and combination, but when they opened the safe, it was empty. As a result, defendant struck Saahron with his gun.

Defendant directed someone to turn up the television, and Jaashawn heard a gunshot. He then heard a voice he believed to be defendant's telling the others to "get the bags." Jaashawn was told not to move for ten minutes, and he heard the doors close. He waited a few seconds, locked the door, and "ran in the living room because [he] heard Saahron gagging." Jaashawn tried to untie him and roll him over, but he was too heavy. He removed the pillow that was over Saahron's head and saw that he was throwing up. Jaashawn ran out of the house and told Young to drive home. By the time police and an EMT squad arrived, Saahron was already dead of a single gunshot wound to the back of the head.

Sheazel Collins, a family friend, upon learning the details of the incident, suspected the woman at the scene of the crime was a person known to him as Star, with whom Saahron had also been acquainted. About two weeks before the homicide, Collins had a conversation with her during which she asked for Saahron's phone number because she wanted to borrow money from him. At some point thereafter, the woman, Pizzarelli, phoned Collins from Saahron's apartment, and told him that Saahron had "left $16,000 in his house, could she take his money?" Collins told her not to take anything and just leave, and later reported the conversation to Saahron. The day of the murder, on December 31, 2005, Saahron had called Collins to tell him that Pizzarelli was coming over to pay him back his money. Because he knew the woman, Pizzarelli, had been "locked up," Collins located her photograph on a Department of Corrections website.

The day after the murder, Jaashawn's sister had Pizzarelli's picture, to which she had been directed by Collins, displayed on her computer screen as Jaashawn walked by. He immediately recognized her as the woman in the red coat and subsequently identified photographs of defendant and Andre.

At trial, while the State was engaging in redirect examination of Jaashawn, he referred to a January 12, 2006 statement not previously provided to defense counsel. As a result of the discovery omission, the trial judge granted defendant's request for an overnight postponement so that counsel could review the statement, portions of which had been read into the grand jury record, with his client. Counsel was permitted to resume cross-examination based on the statement before the State resumed its redirect.

Young testified that as he waited for Jaashawn in the car outside Saahron's apartment, he saw two men and a woman wearing a black North Face jacket come down the steps of the building, and walk across the street to their car. He too was able to identify Pizzarelli.

When officers searched Pizzarelli's residence, they found a red North Face jacket. David Gamble, a Monmouth County Prosecutor's Office detective, searched Pizzarelli's vehicle, locating a box containing a 9 mm semi-automatic handgun, two black knit gloves, a black ski mask, and a black head rag.

Gamble and other detectives, from the Monmouth County Prosecutor's Office and the Asbury Park Police Department, seized a blue shirt having "yellow metal cufflinks on" from the Dennis residence. They also found a black ski mask, a black knit glove, and a Sprint cell phone. Four fingerprints were lifted from items in the Dennis residence that matched Saahron's fingerprints.

In addition to testifying as to the cause of death, Dr. Frederick DiCarlo, an assistant medical examiner, agreed that it would have taken "a little bit of time before [Saahron] ultimately passed away . . . ."

The State's expert in DNA analysis was Robin Schwartz, a DNA unit supervisor at the state forensic lab. Mary Kite, a State forensic laboratory scientist who was not produced as a witness, actually conducted the testing and wrote the narrative reports while supervised by Schwartz. Defendant's DNA was found on the black glove and ski mask located in Pizzarelli's car. Defendant was not excluded as a contributor to the DNA on the head rag.

Detective Javier Toro of the Hudson County Prosecutor's Office, while conducting an unrelated taped interview of defendant on January 3, 2006, noticed defendant was wearing a gold globe medallion. When defendant was eventually asked about the item by the Monmouth County officers, he initially denied having the medallion in his possession but later directed them to it.

Monmouth County Prosecutor's Detective Michael Meany interviewed defendant about this incident, which videotaped interview was shown to the jury. In the interview, Meany deliberately presented defendant with false information, including that Pizzarelli had accused defendant of being the shooter.

During summation, the prosecutor twice referred to the incident as "an execution." He also said, mistakenly, that "Meany was told that . . . Pizzarelli did this with a guy named Ant from Jersey City. This [] [defendant]." In addition, when referring to a gun entered into evidence, the prosecutor said that although it was not the murder weapon itself, which was never recovered, it "is as much the murder weapon as the murder weapon itself. Because without [it] . . . that other gun, the murder weapon cannot do its job. Cannot subdue Jaashawn . . . . You saw how big he was. You saw Saahron . . . ."

On appeal, defendant raises the following claims:

 

 

POINT I

FAILURE OF THE COURT TO EXCLUDE PREJUDICIAL AND IRRELEVANT EVIDENCE PURSUANT TO N.J.R.E. 403 WAS ERROR.

 

POINT II

THE FAILURE OF THE STATE TO MAKE TIMELY DISCLOSURE OF THE JANUARY 12, 2006 STATEMENT OF JAASHAWN JONES VIOLATED THE RULES OF DISCOVERY AND DEFENDANT'S RIGHT TO A FAIR TRIAL.

 

POINT III

THE DENIAL OF DEFENDANT'S MOTION FOR CHANGE OF VENUE WAS ERROR.

 

POINT IV

THE TESTIMONY OF NEW JERSEY STATE POLICE DNA ANALYST, ROBIN SCHWARTZ, REGARDING THE WORK PERFORMED BY ANOTHER FORENSIC SCIENTIST VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHT OF CONFRONTATION. (Not raised below).

 

POINT V

CERTAIN COMMENTS MADE BY THE PROSECUTOR DURING SUMMATION WERE GROSSLY PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL. (Not raised below).

 

POINT VI

THE TRIAL COURT'S INADEQUATE AND ERRONEOUS RESPONSE TO A JURY QUESTION DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not raised below).

 

POINT VII

THE SENTENCE IMPOSED UPON MR. DENNIS CONSECUTIVE TO A HUDSON COUNTY SENTENCE WAS EXCESSIVE AND MUST BE MODIFIED AND REDUCED. (Not raised below).

 

POINT VIII

THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below).

 

The State cross-appeals, based on the following point:

POINT IX

THE SENTENCING COURT IMPROPERLY MERGED DEFENDANT'S CONVICTIONS FOR ROBBERY AND UNLAWFUL POSSESSION OF A WEAPON.

 

I

Defendant contends the court erred in admitting the following evidence: 1) the black ski masks found in Pizzarelli's car and in defendant's apartment; 2) the medical examiner's testimony that it "certainly took a little bit of time before [Saahron]" died; 3) the reference to defendant's January 3, 2006 interview and photo at the Hudson County Prosecutor's Office during which he wore the globe medallion; 4) references to prior trials and to Jaashawn's prior identification of the codefendants; 5) Collins' testimony that "he remembered . . . Pizzarelli had been locked up and pointed out her picture from the website[;]" and 6) testimony about defendant's interview with Meany, including Meany's statements to defendant that the evidence against him was overwhelming and that Jaashawn "picked out the right guys . . . ." Defendant argues that the evidence was admitted in violation of N.J.R.E. 401, 403, 404(b), and was "irrelevant and prejudicial[.]"

We accord substantial deference to the evidentiary rulings of the trial court. State v. Morton, 155 N.J. 383, 453 (1998); State v. Goodman, 415 N.J. Super. 210, 224 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). And a trial court's evidentiary decisions are reviewed under an abuse of discretion standard. State v. Burns, 192 N.J. 312, 332 (2007). "'[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was sowide of the mark that a manifest denial of justiceresulted.'" Goodman, supra, 415 N.J. Super. at 224-25 (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

Additionally, when a trial error is raised for the first time on appeal, it will not constitute grounds for reversal unless it was "plain error," "clearly capable of producing an unjust result." R. 2:10-2. The error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Evidence is not admissible unless it is relevant. State v. Darby, 174 N.J. 509, 519 (2002) ("Relevancy is the hallmark of admissibility of evidence."). Relevant evidence is defined as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Relevancy is determined "by the probative value the evidence has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). The rule favors admissibility of evidence, unless it is otherwise excluded by another rule. State v. Schnabel, 196 N.J. 116, 131 (2008) (citing State v. Deatore, 70 N.J. 100, 116 (1976)).

Relevant evidence may be excluded under N.J.R.E. 403 "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time or needless presentation of cumulative evidence." A trial court's discretion in assessing the admissibility of evidence under this rule is broad. State v. Sands, 76 N.J. 127, 144 (1978). Such decisions are overturned only where a "clear error of judgment" has been committed. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989).

We see no error in the trial judge's admission of the black ski masks. That defendant's DNA was found on a mask located in a vehicle identified as being at the crime scene has some probative value when joined with his possession of a second black ski mask found in his bedroom. Although the probative value may be slight, the admission was not plain error. See R. 2:10-2.

It is undisputed that the medical examiner testified that Saahron did not die immediately. Jaashawn, however, also described running over to his brother, once the assailants left the apartment, because he heard him gagging. Defendant does not explain the reason the medical examiner's testimony, corroborative of Jaashawn's description of his brother's condition, was improper. See State v. Biegenwald, 106 N.J. 13, 41 (1987). Simply asserting that it would inflame the jury and generate sympathy for the murder victim is not enough to explain the purported error.

Neither do we perceive any error in the State's proffer of Toro's description of the medallion defendant wore during the Hudson County interview. Obviously, the probative value of this testimony is great. That novel medallion necklace was the very item Jaashawn had gone to retrieve from his brother's apartment when he came upon the crime in progress, and defendant's possession of it is highly significant circumstantial evidence of his complicity in the crime.

Furthermore, defense counsel did not object to the introduction of a photograph of defendant wearing the medallion, and expressed satisfaction with the court's limiting instruction, before Toro testified, that the jurors were to neither speculate nor assume that Toro was meeting with defendant about anything criminal. We presume the jury followed the court's admonition. See State v. Manly, 54 N.J. 259, 271 (1969) ("[t]here can be no assumption that the jury did not faithfully follow the" judge's instruction). The court's limiting instruction was sufficient to address any prejudice flowing to defendant from the evidence, which in any event did not outweigh its substantial probative value.

Defendant also argues that the testimony regarding Jaashawn's prior identifications of the perpetrators, and of Andre and Pizzarelli's trials, should have been excluded under N.J.R.E. 403, which requires probative value to be offset against the potential for prejudice. Prior to trial, defense counsel asked the court to tell the jury that the codefendants' cases have "been concluded rather than disposed of." The court agreed, and used defendant's proposed language in the opening charge to the jury. Additionally, the court specifically instructed the jury to ignore "what if anything happened in those matters." The court's instruction adequately addressed the subject, which was unavoidable given that Jaashawn was the primary witness.

Defense counsel actually cross-examined Jaashawn based on not only his prior statements to police, but his testimony in prior trials. The court in closing instructed the jury that although they had heard references to transcripts of prior testimony, they were not to "speculate specifically what those hearings were other than what you may have heard in court." Additionally, the jury was told not to speculate as to the "status" of Dennis's and Pizzarelli's matters.

Having relied upon transcripts in cross-examining Jaashawn, defendant cannot now object to the information thereby disclosed to the jury. See State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974) ("Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal."). In light of the court's limiting instruction and defendant's own use of the information, we do not consider the trial judge's admission of the evidence to have resulted in error.

Defendant claims Collins's testimony that Pizzarelli had previously been "locked up[,]" testimony admitted without objection at trial, was prejudicial. Defendant does not explain how the State's use of this evidence constitutes plain error capable of producing an unjust result. "The appellate court is under no duty to search the record for error; it is the function of counsel by the brief to call the court's attention to the errors by which his client is aggrieved, to set forth specifically the judicial action complained of." Shade v. Colgate, 4 N.J. Super.356, 362 (App. Div.), appeal dismissed, 3 N.J.91 (1949). See alsoBiegenwald, supra, 106 N.J.at 41 (holding that the appellant is required to explain the nature of the alleged error); State v. Hild, 148 N.J. Super.294, 296 (App. Div. 1977) (a party is obligated to set forth the law and facts supporting its position). Since defendant does not explain the error, we do not discuss the point further.

Finally, defendant asserts that the State's use of Meany's interrogation of defendant, including the false information he conveyed during questioning, was prejudicial. The basis for this argument is that it "inferred independent and additional knowledge" and "posited an opinion about . . . defendant's guilt which was solely within the province of the jury." Not so. The judge instructed the jury that although they "need not draw a negative inference" from Meany's acknowledged use of trickery or deceit during the interview, they must not rely upon the information included in Meany's questions as evidence. And Meany unequivocally stated that he relayed false information to defendant, and did so purposefully in order to elicit inculpatory statements. Portions of the interview were redacted, but the jury heard some false information. Since Meany described it as false, however, and the court gave a curative instruction, no prejudice inured to defendant as a result.

 

II

Defendant contends that the State's failure to supply Jaashawn's January 12, 2006 statement in discovery deprived defendant of a fair trial. This contention lacks merit.

It is well-established that the choice of sanctions for discovery violations rests in the broad discretion of the trial judge. State v. Marshall, 123 N.J. 1, 134 (1991). Even a willful violation of the discovery rules will require reversal only if it deprives a defendant of a fair trial. State v. Blake, 234 N.J. Super. 166, 172-73 (App. Div. 1989). So long as a lesser penalty can protect a defendant's right to a fair trial, a willful violation does not require reversal. Marshall, supra, 123 N.J. at 134. It is equally clear that a defendant is entitled to know the State's case against him within sufficient time to allow for the preparation of a defense. State v. Bellamy, 329 N.J. Super. 371, 376 (App. Div. 2000) (citing R. 3:13-3).

The significant portions of the statement at issue were read to the grand jury during the presentment of the charges resulting in the indictment. Thus the information contained in that statement has been available to defendant, and no harm was visited upon him as a result of the omission. See Koedatich, supra, 112 N.J. at 319.

Moreover the trial judge found that the State's nondisclosure was inadvertent. In fact, the judge adjourned the trial overnight to enable counsel to review the statement with defendant, and allowed counsel to resume his cross-examination of Jaashawn before the prosecutor continued his redirect examination. This was an eminently reasonable solution. See State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2002) ("[a]n adjournment or continuance is a preferred remedy where circumstances permit."). In sum, defendant was not deprived of a fair trial by the State's reference to Jaashawn's prior statement because the omission was inadvertent, defendant was granted sufficient time to review the document and adjust any trial strategy to accommodate it, if necessary, and the information the report contained was not a surprise.

III

Trial courts have "the discretion to change venue where it is necessary to overcome the realistic likelihood of prejudice from pretrial publicity." Biegenwald, supra, 106 N.J. at 33 (quoting State v. Williams, 93 N.J. 39, 67-68 n. 13 (1983)). Defendant claims that the trial court in this case should have changed venue because of the extensive pretrial publicity surrounding the trials of his codefendants.

There are two kinds of pretrial prejudice which merit a change in venue: presumed and actual. See Koedatich, supra, 112 N.J. at 269 (quoting Biegenwald, supra, 106 N.J. at 33).

As the court noted at the motion hearing, cases of presumed prejudice are both rare and extreme. See ibid. Presumed prejudice arises from a "'torrent of publicity that creates a carnival-like setting' or 'a barrage of inflammatory reporting that may but need not include all of the following: evidence that would be inadmissible at the trial, editorial opinions on guilt or innocence, and media pronouncements on the death-worthiness of a defendant.'" State v. Nelson, 173 N.J. 417, 475 (2002) (quoting State v. Harris, 156 N.J. 122, 143, 147-48 (1998)).

During the hearing, the trial judge reviewed a non-exhaustive list of factors that are considered when weighing whether prejudice is to be presumed:

(1) evidence of extreme community hostility against defendant;

 
(2) prominence of either the victim or defendant within the community;

 
(3) the nature and extent of news coverage;

 
(4) the size of the community;

 
(5) the nature and gravity of the offense; and
 
 

 

(6) the temporal proximity of the news coverage to the trial.

 

[See id. at 476.]

 

After analyzing the relevant factors, the trial court held that "the publicity surrounding this trial has not reached the . . . saturation point, . . . which would generate presumed prejudice" and that the publicity had not created a carnival-like atmosphere. This conclusion appears unassailable.

Only one person at codefendant Andre's trial, out of the entire jury pool, was familiar with the case. The news reports included in defendant's appendix do not demonstrate extreme community hostility, but rather, the neutral reporting of current events; neither the victim nor defendant were prominent members of the community; and a year had passed between the news reports and this trial. Even the nature and gravity of the offense do not warrant a change in venue, because despite the fact that the charge was murder, there was nothing particularly sensational about the event.

"If prejudice is not presumed, a court must evaluate whether, under the totality of circumstances, 'the jury process resulted in a fair and impartial jury' to determine if a change of venue is necessary to overcome the realistic likelihood of prejudice." Nelson, supra, 173 N.J. at 476. In order to make the assessment, the court must measure the extent to which jurors may be biased due to pretrial publicity, preferably by the trial court's voir dire, which is granted significant deference. See Koedatich, supra, 112 N.J. at 274.

Before he questioned prospective jurors, the judge stated that defendant could renew his motion to change venue if he deemed it necessary at the conclusion of the voir dire. During voir dire, the court described the case, and asked jurors if they knew anything about it apart from what he had just told them. The judge also asked whether anyone was familiar with the area where the incident took place.

The court ultimately dismissed only four potential jurors: one who worked at the jail and knew all the parties, another whose daughter went to school with one of Saahron's brothers, and two individuals who had heard about the case. None of the remaining jurors reported that they knew anything about the case or had been exposed to pretrial publicity. The voir dire process therefore sufficiently protected defendant from adverse pretrial publicity. See Nelson, supra, 173 N.J. at 478 (noting that "the pool of eligible jurors was large enough to protect defendant's rights" where "the trial court allowed the excusal for cause of jurors who were aware of" relevant facts in the case). Defendant presumably agreed with this conclusion, as he did not renew his motion to change venue. Thus the trial judge did not err by denying defendant's motion to change venue.

IV

Defendant claims his right of confrontation was violated when Schwartz was permitted to testify about the results of the DNA analysis she did not perform herself. We analyze this claim pursuant to the plain error standard. See R. 2:10-2.

The United States Supreme Court has noted that "[t]he right to confrontation may, of course, be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections." Melendez-Diaz v. Massachusetts, 557 U.S. 305, 314, 129 S. Ct. 2527, 2534, 174 L. Ed. 2d 314, 323 n. 3 (2009). Further, the Court recently characterized violations of the confrontation clause as arising in only two instances, "out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and . . . formalized statements such as affidavits, depositions, prior testimony, or confessions[,]" and cautioned that "any further expansion would strain the constitutional text." Williams v. Illinois, __ U.S. __, 132 S. Ct. 2221, 2242, 183 L. Ed. 2d 89, 114 (2012).

Defendant does not dispute that Schwartz reviewed Kite's analysis at the time the tests were completed and that the testing was purely objective. In Williams, the Supreme Court held that a defendant's right of confrontation is not violated by the testimony of a forensic scientist who although she herself neither conducted nor observed any of the testing, relies upon the DNA profile found in a report written by another individual. Id. at __, 132 S. Ct. at 2240, 183 L. Ed. 2d at 111-12. That is precisely the factual situation in this case. Hence Schwartz's testimony did not violate defendant's right of confrontation, which in any event he did not assert at trial.

V

Defendant also contends that certain comments made by the prosecutor in summation were so prejudicial as to have denied him a fair trial. As he did not object when the statements were made, we also review this claim pursuant to the plain error standard. See State v. Daniels, 182 N.J. 80, 95, 96 (2004) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).

Defendant characterizes the prosecutor's reference to the murder as an execution as grossly prejudicial and intended to inflame the passions of the jury. He also points out that the prosecutor mistakenly summarized the evidence as including a report that Pizzarelli and "Ant did the crime," and referred to defendant's gun, although not the actual murder weapon, being "as much the murder weapon as the murder weapon itself."

The Supreme Court has ruled that references to homicides as execution-style are not improper where the facts warrant the characterization. State v. Loftin, 146 N.J. 295, 387 (1996). In light of Jaashawn's testimony that Saahron was tied up and lying on his stomach, and shot at point-blank range in the back of the head, there were adequate proofs which warranted the description of the murder as an execution-style killing. Accordingly, the prosecutor's choice of words did not create error.

Defendant also asserts that the prosecutor's mistaken reference to Meany being told that Pizzarelli "did this with a guy named Ant from Jersey City[,]" was also prejudicial. The statement was admittedly inaccurate. Meany only testified that he received information that Pizzarelli was involved in a romantic relationship with an individual "known as Ant who lived in Jersey City." That mistaken, passing reference alone, however, simply does not raise a reasonable doubt that the jury would have reached a different verdict in its absence. The court in this case, in accord with the Model Jury charges, advised the jury that statements made by the attorneys are not evidence, and that it is the jury's recollection of the evidence which controls. See Model Jury Charge (Criminal), "Instructions After Jury is Sworn" (2012); Model Jury Charge (Criminal), "Criminal Final Charge" (2002). The mistake was not an egregious error which denied defendant a fair trial. See Daniels, supra, 182 N.J. at 96.

The prosecutor's somewhat confusing statement regarding the weapons did nothing more than remind the jury that the gun which had actually been admitted into evidence was not the murder weapon, and that more than one handgun was possessed by the perpetrators of the crime. Again, the comment did not deprive defendant of a fair trial. See Daniels, supra, 182 N.J. at 96.

VI

During deliberations, the jury sent the judge a note asking for "clarification on guilty by his own conduct and guilty as an accomplice[,]" the court said:

A person, when we're talking about armed robbery, robbery, a person is guilty of an offense if it is committed by his own conduct or the conduct of another person for which he is legally accountable. And you have the jury charge on accomplice in that realm. When you look at the verdict sheet for purposes of guilty or not guilty, it doesn't matter if you find beyond a reasonable doubt that a first degree armed robbery occurred. It doesn't really matter if it was done by one's own conduct or as an accomplice to someone else.

 

In other words, I probably didn't need to put that "check one" in there because it's the same degree anyway. I put that in there because I followed a form that someone else had used one time. So if we're talking about . . . Count 2, if you find the defendant guilty of first degree robbery, you can stop there. If you are not unanimously in agreement that it was by defendant's conduct, or that it was because he was an accomplice to someone else, then just move on to Count 3.

 

If you found him not guilty, then you move on to 2A, to the next question. How do you find as to Count 2 of the indictment as to whether the defendant . . . committed the lesser included offense of robbery, robbery in the second degree as I defined for you in the jury charge, again guilty o[r] not guilty. If you find him not guilty, you move on to Count 3. If you found him guilty and you can unanimously say it was either by his own conduct, check that. If you can't say or unanimously agree it was guilty as an accomplice, you can check that. It doesn't matter for purposes of what that would result in my doing.

 

Defendant contends the response did not answer the jury's question because it failed to explain accomplice liability. In fact, the judge did reiterate that a person can be found guilty of an offense whether committed "by his own conduct or the conduct of another person for which he is legally accountable."

Furthermore, the judge understood the jury to be asking whether they had to agree about the mode of liability. The phrasing of their question matches the portion of the verdict sheet asking them whether defendant was guilty by his own conduct, or as an accomplice, if they found him guilty of a crime. After hearing the judge's response, the jury affirmed that the judge answered their question sufficiently for them to continue deliberations. Counsel did not object. See State v. Wilson, 362 N.J. Super. 319, 329 (App. Div.), certif. denied, 178 N.J. 250 (2003). Thus the judge's response adequately answered the jury's question.

The judge further clarified that the jury did not need to agree about whether defendant was guilty of the charges by his own conduct or as an accomplice, so long as they agreed about guilt. This comports with established law. See State v. Frisby, 174 N.J. 583, 596 (2002) ("it has been held that a jury does not have to agree unanimously on whether a defendant has acted as a principal or an accomplice."). The judge did not err in his reply.

VII

Defendant contends that the aggregate errors denied him a fair trial. Since we found no errors, and defendant does not in any event explain how the cumulative errors deprived him of a fair trial, this argument fails and does not warrant further discussion in a written opinion. See R. 2:11-3(e)(2).

VIII

Although defendant's point heading asserts that his consecutive sentence was excessive, in the body of the brief, he also argues that the court erred in finding the record justified the aggravating factor found in N.J.S.A. 2C:44-1(a)(1), the nature and circumstances of the offense. He argues that the aggravating circumstance the court relied upon in sentencing, the victim's helplessness, was "subsumed in the offense of knowing and purposeful murder." We do not agree. That the victim lay bound and immobile on the floor was an aggravating circumstance, not a statutory element of knowing and purposeful murder. Merely because it facilitated the killing does not make the judge's finding improper double-counting of a statutory element as an aggravating factor. See State v. Kromphold, 162 N.J. 345, 353 (2000) ("[F]acts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence.").

Additionally, the judge found that aggravating factor one, the nature and circumstances of the offense, was relevant because the victim, after being tied up, was "left to beg for his brother's life." This too falls outside the statutory elements of knowing and purposeful murder.

In any event, we see no error in the trial judge's decision to make defendant's sentence consecutive to the negotiated sentence on the Hudson County offense. Although the Hudson County plea bargain included a term making it concurrent to any sentence in Monmouth County, that agreement could not bind the Monmouth County Court. In fact, defendant was told twice at pretrial hearings, on April 7, 2008, and June 5, 2009, that he would likely receive consecutive sentences if convicted in Monmouth County after trial; the consecutive sentence was well within the judge's discretion. See State v. Cullars, 224 N.J. Super. 32, 41 (App. Div. 1998) (a defendant should be informed, when other charges result in a custodial sentence, that any future sentences may be run consecutively). This defendant was sentenced in Hudson County on July 22, 2008, over two years before his sentence on this indictment. He was warned that if convicted at trial in Monmouth he would likely receive a consecutive sentence, and elected to nonetheless exercise his right to a trial.

Defendant also claims his sentence was impermissibly disparate from that imposed on Pizzarelli, who received forty-five years of imprisonment, as opposed to a life sentence. It is undisputed that sentencing judges must "take into account and give substantive weight to the sentences imposed on similar codefendants." State v. Roach, 167 N.J. at 569 (quoting State v. Roach, 146 N.J. 208, 234, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). So long as a disparity in sentence is justifiable, it will be affirmed. Roach, supra, 146 N.J. at 232-33.

The trial judge in this case actually engaged in a disparity analysis, and noted that in contrast with Pizzarelli, who had been previously convicted of one indictable offense, defendant had six prior convictions, including the Hudson County homicide to which he had entered a guilty plea in 2008. Additionally, in Pizzarelli's case, the judge found mitigating factor eleven, that imprisonment would impose excessive hardship upon her or her family. See N.J.S.A. 2C:44-1(b)(11). No mitigating factors were found when defendant was sentenced. It is clear that these two defendants differed substantially in terms of the relevant sentencing criteria. Thus we find no error in the judge's Roach analysis.

We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 608 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid. The aggravating factors found by the sentencing judge in this case had ample support in the record. See N.J.S.A. 2C:44-1(b)(1), (3), (6), (9). The sentence complied with the Code. It does not shock our conscience.

IX

We now turn to the State's contention that the court improperly merged counts two and five. "In considering the question of merger the polestar is the constitutional principle that no person shall be punished twice for the same act." State v. Stenson, 174 N.J. Super. 402, 405 (Law Div. 1980), affirmed by 188 N.J. Super. 361 (App. Div. 1982), certif. denied, 93 N.J. 268 (1983). The court should not utilize a formula, but rather must make merger determinations based on the facts of the individual case. Id. at. 406.

The State first argues that the court improperly merged robbery into felony murder. The "nub of the problem . . . arises from the possibility that the felonies might as a matter of law merge into the felony murders," as occurred here. Ibid. We agree. The felony murder conviction merges with the murder conviction but the armed robbery survives as a separate offense.

The trial judge also merged the unlawful possession of a weapon, count five, into the certain persons not to possess offense, count seven. This merger was not appropriate. See State v. Lopez, 417 N.J. Super. 34, 37 n.2 (App. Div. 2010), certif. denied, 205 N.J. 520 (2011) ("[I]n the event [a] defendant is . . . convicted of [a] certain persons offense, that conviction will not merge with [a] weapons possession conviction.").

Accordingly, we remand the matter for a resentence on the unmerged charges but otherwise affirm. We do not retain jurisdiction.

1 On this count, in addition to the NERA parole ineligibility of sixty-three years, nine months, and three days, defendant was also sentenced as an extended-term offender to a thirty-five-year term of parole ineligibility, see N.J.S.A. 2C:43-7(a)(6) and 2C:44-3(a), and, pursuant to the Graves Act, to a twenty-five-year term of parole ineligibility. See N.J.S.A. 2C:43-6(c) and 2C:43-7(c).