STATE OF NEW JERSEY v. ROY CARTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROY CARTER, a/k/a SILVER,

Defendant-Appellant.

____________________________________

August 29, 2014

 

Submitted January 15, 2014 Decided

 

Before Judges Grall, Nugent and Accurso.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment

No. 09-12-02357.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the brief).

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Paul Salvatoriello, Deputy Attorney General, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

PER CURIAM

Defendant Roy Carter, a/k/a "Silver," appeals his conviction and sentence for crimes arising out of the shooting of his former girlfriend, Johnson, and his menacing of her cousin, Dupree, with a handgun. For his crimes against Dupree, defendant was convicted by a jury of simple assault, N.J.S.A. 2C:12-1a(3), as a lesser included offense of aggravated assault (count two); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and second degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four). The jury acquitted defendant of first degree armed robbery, N.J.S.A. 2C:15-1 (count one).

For the crimes against Johnson, the jury convicted defendant of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count six); third degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2) (count seven); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count eight); and second degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count nine). The jury was unable to reach a verdict as to first degree attempted murder, N.J.S.A. 2C:5-1 and 11-3 (count five).1

The jury also convicted defendant of two instances of second degree certain persons not to have weapons, N.J.S.A. 2C:39-7(1) (counts eleven and twelve) in a separate proceeding.

The judge found defendant subject to extended terms as a repeat offender on counts three, six, seven and eight under the Three Strikes Law, N.J.S.A. 2C:43-7.1, and on counts three, six and eight under the Graves Act, N.J.S.A. 2C:43-6c.

For his crimes against Dupree, the judge sentenced defendant to concurrent terms of six months on count two, twelve years on count three with six years of parole ineligibility, twelve years on count four with six years of parole ineligibility, and ten years on count eleven with five years of parole ineligibility.

For his crimes against Johnson, the judge sentenced defendant to concurrent terms of twenty years on count six (which merged with count seven) with a seventeen-year period of parole ineligibility, twenty years on count eight with a ten-year period of parole ineligibility, twenty years on count nine with a ten-year period of parole ineligibility and ten years on count twelve with five years of parole ineligibility.

Finding that the crimes were not the result of a single period of aberrant behavior but involved separate acts of violence against separate victims, the judge ruled that the sentence on the counts arising out of the crimes against Dupree (counts two, three, four, and eleven) would run consecutive to the sentence on the counts arising out of the crimes against Johnson (counts six, seven, eight, nine, and twelve). Accordingly, the judge sentenced defendant to an aggregate thirty-two year prison term with a twenty-three year period of parole ineligibility and the periods of parole supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, along with all applicable fines and penalties. Defendant appeals his conviction and sentence. We affirm.

Defendant's crimes arose out of a tumultuous eighteen-month relationship he had with Johnson. Johnson had broken off the relationship during the first week of March 2009, after she learned that defendant had been seeing other women. On the evening of March 12, Johnson was at home in the apartment she shared with her cousin Dupree in Asbury Park. She was with another man when defendant apparently walked in on them. Defendant pointed a gun at Johnson, expressed his love for her, then screamed that he hated her before storming out of the apartment. Defendant's statements to Johnson were loud enough to have been overheard by Dupree, who was in another room.

Later that evening, Dupree was at a party next door when she caught sight of defendant. Determining to avoid him, Dupree retreated to the kitchen to take a phone call. Dupree testified that defendant entered the kitchen, snatched away her cell phone when she wouldn't speak with him and made various vulgar remarks to her. Dupree later told the police that defendant pushed her and pointed a gun at her torso. Dupree testified at trial that defendant had a gun tucked into his waistband, which he gripped menacingly after shoving her. The jury heard both versions.

Upset by the encounter, Dupree left the party and returned home to call her family. Still uneasy, she called her boyfriend, a man named Fenter, to come stay the night. When Fenter arrived, Dupree locked the door behind him and they went into her bedroom, which she also locked. At about 5 a.m., they were awakened to the sounds of an argument coming from Johnson's room and then a gunshot. Dupree testified that next she heard someone rattling the doorknob of her bedroom and then defendant's voice demanding that she "open the door, bitch."

Venturing out after hearing defendant leave the apartment, Dupree and Fenter locked the apartment door and went in search of Johnson. They found her in her bedroom, on the floor and bleeding from a head wound. Dupree called 9-1-1, reporting the gunshot and that Johnson was bleeding profusely. An ambulance was dispatched, and Johnson was taken to the hospital for treatment.

Some four hours after the shooting, the police interviewed Dupree. Dupree identified the shooter as "Silver." Dupree also told police that Silver had been the man who menaced her with a gun at the party, as well as the man she and Fenter had heard arguing with Johnson just before she was shot. Dupree told police she had "no doubt" that the voice she heard that night belonged to "Silver." Presented with a photo array, Dupree identified defendant as the man she knew as "Silver." Dupree's boyfriend, Fenter, separately identified defendant as "Silver."

After speaking with Dupree and Fenter, as well as other members of Johnson's family, police detectives went to the hospital to interview Johnson. The gunshot to Johnson's head had only grazed her skull, causing a long laceration of her scalp and allowing detectives to interview her free of narcotics or other prescription pain-killers. Detective Ricciardi interviewed Johnson.

Although initially hesitant to discuss the attack, Johnson loosened up after learning that Ricciardi had already spoken to members of Johnson's family. Ricciardi learned from Johnson that defendant had walked in on her with another man and later returned to her apartment before dawn. Defendant argued with Johnson and punched her repeatedly in the ribs. Johnson eventually collapsed and fell to the floor, where she curled up in a ball with her back to defendant. Defendant stood over and shot her. Although sharing these details with Ricciardi, Johnson refused to give the detective a formal statement as she said she was still in love with defendant and did not wish to make trouble for him.

Because Johnson refused to give a statement and as she was the only eyewitness to the crime, Ricciardi obtained permission to re-interview her while secretly recording their conversation. The recorded conversation makes clear that the two have discussed these same issues before. Johnson remains reticent, although attentive and obviously able to comprehend the questions put to her and to respond appropriately. Indeed, her doctor testified at trial that throughout her stay at the hospital (including during the time period of the two interviews) Johnson remained completely alert and oriented, with no signs of neurological impairment. While many of the detective's questions were long and "leading," Johnson affirmatively stated several key facts, namely that defendant had been her paramour, that he had discovered her with another man, that he later returned to her home that morning, drew a gun, beat and shot her.

Weeks after those conversations, Johnson recanted. She called the prosecutor's office to say that her statements to Ricciardi were false. Johnson subsequently signed a statement prepared by the Public Defender's office stating that the police had arrested the wrong man, that she had not known defendant, and that she was attacked by some other, unknown man.

At trial, Johnson continued to deny knowing defendant. She denied her statements to Ricciardi, going so far as to deny recollecting ever having given any statement whatsoever to the detective. The State introduced Johnson's cell phone records to establish that it was Johnson's statement to the Public Defender and her trial testimony that were untrue. The phone records detailed numerous phone calls and text messages between defendant and Johnson, including nearly one hundred such contacts between midnight March 12 and defendant's attack on Johnson at 5 a.m. on March 13.

Because Johnson's trial testimony was at odds with her statements to Ricciardi, the State sought to introduce their recorded conversation as a prior inconsistent statement, prompting a Gross2 hearing. After hearing testimony from the detective and Johnson, the judge examined the fifteen Gross factors and determined that the recorded statement was admissible with redactions to remove some questions posed by the detective.

Specifically, the Judge characterized Johnson's claims that she could not remember her statements to Ricciardi as "absolutely incredible." Finding her lack of memory to be feigned, the judge deemed it an effective denial of her earlier statements under State v. Brown, 138 N.J. 481, 542 (1994). The judge found Johnson's testimony about not knowing defendant as unbelievable, in light of the other evidence.

Turning to the Gross factors, the judge found that the circumstances surrounding the statement supported its credibility, that the statement was given to Ricciardi who had testified forthrightly regarding it, that the hospital setting and investigative purpose both supported its credibility, that Johnson was not in custody or a target of investigation, that Johnson was fully alert and cognizant of events during the conversation, that Johnson's upset state at the time supported the credibility of the statements, as did her reluctance to answer, that only Ricciardi and Johnson were present at the time, that self-incrimination was not at issue, that the recording was an accurate reflection of the conversation, that Ricciardi did not interrogate Johnson but put questions to her in an non-intrusive manner, that the entirety of the conversation was recorded, that Johnson had no motive to fabricate her statement, that there were no express or implied coercive pressures or influences, that Johnson's unawareness of the recording increased the statement's reliability as she had no understanding that it could be used against defendant, that Johnson's responses to Ricciardi's questions provided an "inherently believable story," and finally that sufficient corroborating evidence existed to support the statement. After both counsel agreed to certain redactions, and the judge ruled on the sections in dispute, the State was permitted to play the recording for the jury.

During deliberations, the jury asked that they be allowed to again hear Ricciardi's recorded interview of Johnson. Both counsel agreed that a play-back of the court's recording of the tape was acceptable, and the judge determined that fairness to defendant required the play-back to be accompanied by the direct and cross-examination of Ricciardi, who had authenticated the tape. The courtroom recording of the interview, however, proved inaudible. Defense counsel objected to the playing of the original audio CD on the ground that the State had not moved the CD into evidence. The judge permitted the audio CD to be played to the jury in lieu of the inaudible courtroom recording of that CD. The judge reasoned that

In this case, [Johnson's] statement was admitted into [e]vidence. I made that ruling. The only issue before me really, as I view it, is an issue of technology, what I'll call an issue of technology. That is, the [p]rosecutor didn't need to move really the 911 tape, at least in theory, and didn't need to move in [Johnson's] statement because the [p]rosecutor had the right, if I can call it that, to rely upon the recording equipment within this courtroom.

 

That is, [Johnson's] statement was I made a ruling that it was admissible in [e]vidence so whether or not her statement comes in is an issue that has already been decided. The only issue is an issue of technology here; and that is, the jury has asked to listen to [Johnson's] statement, and we have a and there's no dispute as to this, we have a much better copy and the identical copy as to what was supposed to have been recorded by the tape-recording equipment here in the court but was not recorded in as good a fashion as possible.

 

That is, if it was crystal clear on the recording, there would be no problem playing it. But because the tape machine in the court happened either not to record it as well as it could or should have or that in playing it back the recording equipment won't play it back, to me seems to focus on form over substance.

 

Defendant raises the following issues:

POINT I

 

THE DEFENDANT WAS GREATLY PREJUDICED BY ADMISSION OF A SURREPTITIOUSLY-RECORDED PURPORTED STATEMENT THAT WAS THE RESULT OF EXCESSIVELY SUGGESTIVE QUESTIONING.

 

A. Redactions.

 

B. Nature and Circumstances of the

Statement.

 

POINT II

 

THE TRIAL COURT ABUSED ITS DISCRETION, TO THE DEFENDANT'S PREJUDICE, IN PERMITTING THE STATE, DURING JURY DELIBERATIONS, TO INTRODUCE EVIDENCE WHICH IT HAD PREVIOUSLY DECLINED TO OFFER.

 

POINT III

 

THE STATE COMMITTED PREJUDICIAL MISCONDUCT, NECESSITATING REVERSAL. U.S. CONST., AMEND. V; XIV; N.J. CONST. (1947), ART. 1, PARS. 9,

10. (Not Raised Below).

 

A. State's Opening Statement.

 

POINT IV

 

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

 

A. The Court Erred in Ordering Consecutive

Sentences.

 

B. The Length of the Sentences Is

Excessive.

 

Defendant raises the following additional issues in his pro se supplemental brief:

POINT I

 

THE TRIAL COURT ERRED WHEN IT DID NOT DISMISS THE INDICTMENT WHEN THE PRESENTATION OF THE CHARGE OF WITNESS TAMPERING WAS UNSUPPORTED BY CREDIBLE EVIDENCE; AND WAS PREJUDICIAL DEMANDING THE INDICTMENT BE DISMISSED.

 

A. Witness Tampering.

 

B. Third Party Hearsay.

 

POINT II

 

THE TRIAL COURT ERRED BY NOT DISMISSING THE INDICTMENT BECAUSE THE PROSECUTOR FAILED TO PRODUCE THE IDENTIFYING WITNESSES BEFORE THE GRAND JURY AND ALL EVIDENCE PRESENTED WAS HEARSAY IN VIOLATION OF ARTICLE I, PARAGRAPH 8 OF THE NEW JERSEY STATE CONSTITUTION OF 1947.

 

POINT III

 

THE TRIAL COURT ERRED BY NOT DISMISSING THE LACK OF CREDIBLE EVIDENCE SUBMITTED TO THE GRAND JURY TO SUPPORT THE CHARGE OF ATTEMPTED MURDER.

 

POINT IV

 

THE COURT ERRED BY ALLOWING THE SOLICITED TESTIMONY UNKNOWN AND UNKNOWN RECORDING OF [THE VICTIM] WHILE SHE WAS UNDER THE INFLUENCE OF NARCOTICS AND SHOULD NOT HAVE BEEN ADMITTED FOR THE JURY'S DETERMINATION IN VIOLATION OF THE DEFENDANT'S RIGHT TO DUE PROCESS UNDER BOTH THE FOURTEENTH AND FIFTH AMENDMENT TO [THE] NEW JERSEY AND THE UNITED STATES CONSTITUTION.

 

POINT V

 

THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE PETIT JURY OF SIMULATED POSSESSION.

 

POINT VI

 

THE EVIDENCE AT TRIAL WAS INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND THEREFORE THE TRIAL COURT ERRED BY NOT DISMISSING COUNT THREE OF THE INDICTMENT. (The trial court's failure to give a curable instruction to the jury to disregard the prosecution['s] misleading comment on evidence which was not in the evidence prejudice[d] the [defendant's] defense). Also raised below.

 

POINT VII

 

THE COURT ERRED BY ALLOWING TESTIMONY OF THE DEFENDANT'S CAPTURE IN MONTGOMERY[,] ALABAMA[,] BECAUSE IT GAVE THE JURY THE IMPRESSION THAT THE DEFENDANT RAN FROM THE CRIME SCENE FROM NEW JERSEY AND EVEN IF THIS EVIDENCE SHOULD HAVE BEEN ALLOWED, A FLIGHT CHARGE WAS APPROPRIATE. (The [Defendant] further argues "other crime evidence of the Alabama incident" should not have been allowed in court as the prejudicial effect outweighed the defendant['s] right to a fair trial). Also raised below. (Sub-Point I) [Witness'] statement saying [defendant] was the person who shot her cousin was other crime evidence, and should not have been allowed into evidence. (Also raised below).

 

POINT VIII

 

THE RIGHT TO DUE PROCESS AND A FAIR TRIAL WAS VIOLATED UNDER BOTH THE FOURTEENTH AND FIFTH AMENDMENT OF [THE] NEW JERSEY AND THE UNITED STATES CONSTITUTION WHEN A DISTORTED TAPE WAS ADMITTED INTO EVIDENCE AND NOT A PART OF THE CD EARLIER DECIDED AS THE STATE'S EXHIBIT WHICH WAS ULTIMATELY REDACTED AND LATER PERMITTED INTO THE JURY ROOM RATHER THAN IN OPEN COURT FOR VIEWING.

 

A. CD ENTERED INTO THE JURY ROOM.

 

POINT IX

 

THE FALSE STATEMENT OF [THE WITNESS] DURING THE PHOTO ARRAY TO POLICE OFFICERS THAT [DEFENDANT] SHOT MY SISTER IN THE FACE AND POINTED A GUN AT ME MADE THE PHOTO ARRAY PROCESS PALPABLY DEFICIENT IN VIOLATING THE [DEFENDANT'S] DUE PROCESS RIGHT AS A CRITICAL STAGE OF THE PROCEEDINGS AGAINST THE ACCUSED IN VIOLATION OF HIS FIFTH AND FOURTEENTH AMENDMENTS AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL.

 

POINT X

 

THE TRIAL COURT ERRED BY ALLOWING THE TESTIMONY OF [] AN EXPERT IN THE FIELD OF FORENSIC PATHOLOGY WAS PLAIN ERROR IN VIOLATION OF THE DEFENDANT'S RIGHT TO DUE PROCESS UNDER BOTH THE FOURTEENTH AND FIFTH AMENDMENT TO [THE] NEW JERSEY AND UNITED STATES CONSTITUTION AND FIFTH AMENDMENT RIGHT TO CONFRONTATION.

 

POINT XI

 

TO ALLOW THE TESTIMONY OF [A DECTECTIVE] AS AN EXPERT IN THE FIELD OF PATHOLOGY WAS PLAIN ERROR AND IN VIOLATION OF THE [DEFENDANT'S] RIGHT TO CONFRONTATION. (The Trial Court Erred By Allowing Testimony to Video And Photo Slides Without Implicating [a] 104 Hearing to Determine Admissibility of Videotape Simulation). (Also Raised Below).

 

POINT XII

 

THE COURT ERRED BY NOT GRANTING THE WADE HEARING BY MOTION OF THE DEFENSE AS IT VIOLATED THE [DEFENDANT'S] RIGHT TO DUE PROCESS.

 

Defendant first contends that the trial court erred in its determination that Johnson's prior inconsistent statement possessed sufficient indicia of reliability to be admissible. He claims that the detective's "highly suggestive" questioning combined with Johnson's physical condition rendered the statement unreliable. He also contends that the court's redactions were insufficient, that portions of the statement the jury heard can not be considered as statements of the witness and were highly prejudicial. We disagree.

We review a trial court's evidentiary rulings only for abuse of discretion, meaning that we do not set such rulings aside unless it appears that "there has been a clear error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012). We must be convinced that "the trial court's ruling is so wide of the mark that a manifest denial of justice resulted." Ibid.

The admission of a prior inconsistent statement of a witness at trial is governed by N.J.R.E. 803(a)(1). State v. Johnson, 421 N.J. Super. 511, 516 (App. Div. 2011). A prior inconsistent statement is admissible as substantive evidence when offered by the party who called the witness if it is "contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability." Ibid. In order to determine whether the circumstances provide sufficient indicia of reliability, a trial court holds a hearing outside of the presence of the jury to determine, by a fair preponderance of the evidence, whether the circumstances surrounding the prior statement indicate the statement's reliability. Id. at 517. In making that determination, the trial court must consider a number of factors:

(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given,

(3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time,

(6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement was apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence.

 

[Gross, supra, 121 N.J. at 10.]

 

Having reviewed the redacted and unredacted versions of the recorded statement, we find no error of judgment here. The judge examined the fifteen Gross factors in considerable detail and found that all supported the reliability and credibility of the prior statement. Defendant's contention that three of those factors, factors five, the physical and mental state of the declarant; nine, the presence or absence of interrogation; and twelve, the presence or absence of implicit pressures or coercion; cut against the statement's reliability, is not supported by the record.

Johnson's treating physician testified that she suffered no neurological impairment and was alert and aware throughout the entirety of her hospital stay, including the hours after the incident when she was interviewed by Ricciardi. She received only non-prescription doses of over-the-counter pain medication while in the hospital and there is no indication in the record that she was incapable of understanding the detective's questions or that her responses were anything other than voluntary, albeit offered reluctantly. Having listened to the audiotape and observed the witnesses testify, the judge found Johnson's claimed memory loss to be feigned. The tape and the doctor's testimony completely undermine defendant's claim that Johnson's status at the time of the recorded statement rendered it unreliable.

We also reject defendant's claim that the trial judge erred in concluding that Ricciardi did not apply any coercive pressure in obtaining the statement from Johnson. Defendant is correct that Ricciardi's questions to Johnson were compound and leading and would not be allowed were the witness in a courtroom testifying on direct examination. Ricciardi was obviously coaxing a reluctant young woman to give evidence against a man with whom she had been romantically involved and still had feelings for, notwithstanding that he had just beaten her severely and fired a gun at her head. But we cannot find the detective's technique, in which she interspersed her questions with comments such as "I know this is hard, I know you've told me that you care about him, but it's not ok that he did this to you," coercive. Moreover, the judge's extensive redactions to the detective's comments and questions alleviated any legitimate argument that the statement was not Johnson's own.

Defendant's claims regarding the playback of the statement for the jury and his objections to the prosecutor's opening statement and summation require only brief comment. R. 2:11-3(e)(2).

Although decided after this trial, the Supreme Court in State v. W.B., 205 N.J. 588, 622-23 (2011), held that a videotaped prior statement played for the jury during the State's case in chief, could be replayed for the jury during deliberations despite the State's failure to move the videotape itself into evidence. Although this case involves an audiotape and not a videotape, W.B. controls.3

Here, both counsel agreed that a replay of the court's audio recording of the statement was permissible. Unfortunately, the court's audio recording was inaudible and no read-back was possible as that portion of the trial had not been transcribed. Defense counsel conceded that, but for audio quality, the audio CD of the statement and the court recording were identical. This case is thus remarkably similar to the facts of W.B.. Here the audio CD of Johnson's statement was played for the jury as part of the State's case but the CD itself was not moved into evidence. Because the audio recording was not transcribed, the court reporter could not read back what was played to the jury. Under these circumstances, W.B. is controlling and we thus find no fault with the judge's decision to allow the audio CD to be replayed to the jury in open court during its deliberations.4

Although not objected to at trial, defendant now contends that several comments made by the prosecutor in opening and summation amount to prosecutorial misconduct warranting reversal. We disagree.

Regarding the opening statement, defendant objects to the prosecutor's statement, "Anger and pride. That's what this case is about." He also contends that the prosecutor's characterization of the beating and shooting as "merciless" constitutes misconduct. With regard to the closing, defendant claims that the State shifted the burden of proof to him and improperly commented on his decision not to testify with the following remarks:

There was no question from the minute these crimes were reported to the police, no piece of credible evidence that anyone other than the defendant . . . was responsible for the crimes that occurred that night. Nothing except the words of [the victim], which are supported by no credible evidence, which she uttered in those statement[s] she sent in and [made] on the witness stand.

 

"The scope of the [prosecutor's] opening statement is limited to the 'facts he intends in good faith to prove by competent evidence.'" State v. Wakefield, 190 N.J. 397, 442 (2007) (quoting State v. Hipplewith, 33 N.J. 300, 309 (1960)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Reviewing courts generally "'afford counsel on both sides latitude for forceful and graphic advocacy.'" Id. at 437 (quoting State v. Reddish, 181 N.J. 553, 640-41 (2004)). Here, the State did no more in its opening than put forth its view that defendant's actions were a result of his finding his former girlfriend "cheating" on him with another man. Although the prosecutor's use of the word "merciless" to describe defendant's crimes against Johnson, was harsh, it was likely fair comment given the evidence and harmless in any event. See State v. Roman, 382 N.J. Super. 44, 61-62 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), dismissed as improvidently granted, 189 N.J. 420 (2007).

As for the prosecutor's closing remarks, defendant mischaracterizes them by taking them out of context. Read in the context in which they were made, the comments suggest no more than fair response to defense counsel's argument that the case was a "whodunit" and that the police had unfairly jumped to conclude that defendant shot Johnson without performing a full and proper investigation of the facts. See State v. Perry, 65 N.J. 45, 48 (1974).

We have considered the arguments defendant has offered to establish that his aggregate thirty-two-year extended term sentence is excessive and determined that they present no basis for reversal. Defendant concedes that he was subject to mandatory extended terms for counts three, six, seven and eight under the "Three Strikes Law," N.J.S.A. 2C:43-7.1b, and for counts three, six and eight under the Graves Act, N.J.S.A. 2C:43-6c, and that the sentences imposed were within the ranges provided.

The judge carefully explained his reasons for finding aggravating factors three, the risk that the defendant will commit another offense, N.J.S.A.2C:44-1a(3); six, the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A.2C:44-1a(6); and nine, the need for deterring the defendant and others from violating the law, N.J.S.A.2C:44-1a(9), and no mitigating factors.

Defendant does not dispute the applicability of those aggravating factors, although he contends the court erred in basing its finding that he was likely to re-offend in part on defendant's refusal to take responsibility for his actions in this matter. We reject defendant's claim that the judge's finding in this context penalized defendant for defending against criminal charges. SeeState v. Poteet, 61 N.J.493, 495-96 (1972). Moreover, the judge's other reasons for finding defendant likely to re-offend, his drug history, his having committed crimes while on probation or parole, and his lack of success in prior rehabilitative programs, amply support the judge's application of that aggravating factor.

Defendant also contends that the judge should have found two mitigating factors, that defendant acted under strong provocation, and that he had been diagnosed with schizophrenia. Provocation was not argued to the trial court and likely would not have been accepted in light of the five to ten-hour lapse of time between defendant finding Johnson with another man and the shooting. Although defendant's mental condition was argued, there were no facts in the record to support the alleged diagnosis.

Defendant also argues that the trial judge erred in assessing the Yarbough5factors in imposing consecutive sentences. Specifically, defendant contests the court's finding that he engaged in two separate criminal activities, in two different locations, at two different times some five hours apart, against two separate victims, rather than having engaged in a single period of aberrant behavior. Conceding that "the court's analysis was painstaking," defendant contends that "it was ultimately wrong, in that it resulted in an excessive sentence." Because our review of sentencing decisions is narrow and the judge's findings as to the Yarbough factors are grounded in competent, reasonably credible evidence, we disagree. Miller, supra, 205 N.J. at 128.

We conclude that the judge's careful findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the consecutive sentences imposed are neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. SeeState v. Fuentes, 217 N.J.57, 70-71 (2014); State v. Bieniek, 200 N.J.601, 608 (2010); State v. Cassady, 198 N.J.165, 180-81 (2009). Defendant's remaining arguments as to his conviction and sentence are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

 

 

 

1 The trial court dismissed count ten, third degree tampering with a witness, N.J.S.A. 2C:28-5a, prior to trial.

2 State v. Gross, 121 N.J. 1 (1990).

3 Although the issues regarding audio and videotaped statements are similar, the uniquely persuasive power of a videotape distinguishes it from testimony recorded by other means. See State v. A.R., 213 N.J. 542, 552-56, 560-61 (2013) (discussing the Court's several cases treating this issue).

4 Also after the trial in this case, the Supreme Court decided State v. Miller, 205 N.J. 109, 122-24 (2011), in which it set forth seven "guidelines" for replayed testimony. With the exception of instructing the jury that it should consider all the evidence and not give undue weight to the replayed testimony, a step not previously required, the decision here appears to meet all the requirements laid down in Miller. Ibid.

5 State v. Yarbough, 100 N.J. 627, 630, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).