STATE OF NEW JERSEY v. ROBERT SABATINI

 

NOT FOR PUBLICATION WITHOUT THE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.

ROBERT SABATINI,

Defendant-Appellant.

February 11, 2016

 

Argued November 17, 2015 - Decided

Before Judges Reisner, Hoffman and Whipple.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 10-04-00223.

Frank M. Gennaro, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Gennaro, on the brief).

Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Ms. Schuster, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Robert Sabatini appeals from his first-degree murder conviction, N.J.S.A. 2C:11-3(a)(1) and (2), and from the sentence of fifty years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On this appeal, defendant raises the following issues

POINT ONE

THE ADMISSION OF IMPROPER "OTHER CRIMES" EVIDENCE UNDULY PREJUDICED DEFENDANT AND DENIED HIM A FAIR TRIAL.

POINT TWO

THE TRIAL COURT ERRED BY ADMITTING EVIDENCE OF THE HABIT OR ROUTINE OF DEFENDANT.

POINT THREE

THE TRIAL COURT ADMITTED EXPERT TESTIMONY ON BLOOD SPATTER ANALYSIS WITHOUT A PROPER FINDING THAT SUCH SCIENTIFIC EVIDENCE WAS SUFFICIENTLY RELIABLE.

POINT FOUR

THE TESTIMONY GIVEN AND PHYSICAL DEMONSTRATIONS PERFORMED BY BLOOD SPATTER ANALYSIS EXPERT ROD ENGLERT WERE ADMITTED WITHOUT A PROPER FOUNDATION AND UNDULY PREJUDICED DEFENDANT.

POINT FIVE

THE TRIAL COURT'S FAILURE TO ADEQUATELY INVESTIGATE THE EXPOSURE OF THE JURY TO EXTRANEOUS MATERIAL WHICH HAD THE CAPACITY TO TAINT THE JURY DENIED DEFENDANT A FAIR TRIAL.

POINT SIX

THE PROSECUTOR'S IMPROPER COMMENTS DURING SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT.

POINT SEVEN

THE TRIAL COURT SHOULD HAVE EXCLUDED OR SANITIZED EVIDENCE OF PRIOR STATEMENTS OF THE DEFENDANT.

POINT EIGHT

THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT NINE

DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.

In a supplemental pro se brief submitted without the required point headings, defendant argues that he was denied a fair trial. Having reviewed the record we find no merit in any of defendant's appellate arguments, and we affirm the conviction and the sentence.1

I

A.

The trial concerned the murder of Charles Ray on Back Neck Road, an isolated country road in Cumberland County, in the late evening of September 13, 2008 or the early morning of September 14. The murder occurred within a few hundred feet of defendant's house, which was the only house on that part of Back Neck Road. Apart from expert testimony, which will be discussed in detail later, the State's case was fairly straightforward albeit not airtight. Defendant lived not far from the murder scene. An impartial witness encountered defendant and pointed out Ray's body lying in the road. Defendant claimed to be shocked at hearing this news. Defendant was wearing a gray tank top and pants which, on later analysis, proved to be stained with Ray's blood. Defendant knew Ray's habits, knew Ray would be driving down the darkened back road that night, and knew Ray would pull over if flagged down by someone he knew. Defendant had flagged down Ray on prior occasions to ask for money. Defendant needed money to buy crack cocaine that night, and made multiple phone calls to two different drug dealers. According to two witnesses, defendant had previously expressed disdain for Ray and said he should be killed for encouraging the drug trade on Back Neck Road.

The defense case was that there were a number of other individuals living on or near Back Neck Road who had personal or financial motives to kill Ray, and that the police had focused too quickly on defendant as a suspect and ignored other possible suspects. The defense also contended that defendant had approached Ray's body after the murder and could have gotten a bit of Ray's blood on his clothing at that time. The defense also contended to the jury that, given the extent of Ray's wounds and the amount of blood they produced, his attacker would have been drenched in blood, as compared to the few drops on defendant's clothing.

Much of the State's lengthy trial presentation was devoted to responding to those aspects of the defense, by showing that the police investigated every possible suspect, and that defendant did not approach Ray's body after the murder. The State also presented expert testimony designed to show that the drops of Ray's blood on defendant's clothing were similar in shape and pattern of distribution to those on Ray's clothing. According to the expert, the blood drops on defendant's shirt were typical of the spatter pattern caused by blows with a blunt object, rather than a swipe pattern caused by accidentally touching Ray's bloody clothing or the blood near his body. The expert also explained to the jury how, during an attack with a blunt object, an attacker might get very little blood on his own clothing.

B.

To put the legal issues in context, we provide a more detailed discussion of the trial evidence, as follows. At some point shortly before 12:15 a.m. on September 14, James Dean, a motorist who had just driven past defendant's house, saw a man's body lying in the road several yards ahead of Dean's car. The man, later identified as Ray, was lying just in front of the driver's side rear wheel of a red van. Ray was bleeding profusely from a head wound and Dean, who worked as a prison guard, believed he was dead. Dean initially stopped about twenty-five to thirty-five feet behind the van, then backed up several yards farther away, to a point near defendant's house, and called 9-1-1.

As Dean was calling 9-1-1, a tall thin man wearing a gray t-shirt and jeans came up to Dean's driver's side window and asked if Dean had hit a deer. When Dean replied that he had not, but that there was a body lying in the road ahead, the man turned to look and immediately exclaimed that he knew the man and that it was his friend Charles Ray. Dean testified that the tall man identified himself at the scene as "Michael" Sabatini. The man left the scene before the ambulance squad and police arrived, but returned later.

According to Dean, he had a clear view of the red van at all times, and he saw no one go near the van from the time he first spotted it until the emergency squad arrived. On cross-examination, Dean admitted that the tall man had walked toward the van, but had stopped twenty-five to thirty feet away. On defendant's case, Dean's passenger Joan Bussey2 agreed, in response to a leading question, that the man, later identified as defendant, "ran up to the [van]." Bussey then stated that the man got close enough to see that the body lying there was his friend. Bussey did not say whether defendant was close enough to touch the body or the car.

According to Stephen Bateman, EMS director of the local ambulance squad, he arrived within a few minutes of the 9-1-1 call, and immediately ascertained that Ray was dead. Bateman cordoned off the van with yellow tape, placed so as to keep people at least seventy-five feet away from the scene. Although the dispatcher had initially reported the call as an auto accident, Bateman suspected "foul play" after observing the scene. Bateman testified that, other than the ambulance squad and the police, no one approached the red van after he arrived on the scene.

Bateman recalled speaking to defendant that night, after cordoning off the scene. Bateman testified that, during the course of his many years on the local ambulance squad, he was familiar with defendant and knew he lived nearby. That night, defendant was "a little loud speaking, like hyped up, revved," and he demanded to know why the ambulance squad was not "doing anything." Bateman testified that his conversation with defendant occurred at least 150 feet from the red van, and at no time did defendant approach Ray's body.

Bateman testified that he also spoke with Dean and with a motorcyclist who drove up to Dean's car after Bateman arrived. Bateman testified that as he was driving to the scene, about a mile before he reached the van, he saw two men walking down Back Neck Road, headed away from the location of the van. According to the next witness, Detective Coia of the State Police, a K-9 squad attempted to track the two men from the scene, in case they had been there, but they found nothing. The police later discovered that the two men lived in the area, and they were unable to find any evidence connecting either of them to the murder.

Detective Coia corroborated Bateman's testimony that no one approached the van or the body after it was cordoned off. Bateman also described in detail his observation of what he concluded was a crime scene. He saw small blood drops on the inside of the driver's side door, which was open, very little blood on the rear tire, but a huge pool of blood around Ray's head. He also observed a large, jagged hole in the back of Ray's skull.3 Police testimony established that Ray's pockets were turned out and his wallet was missing.

Detective Coia testified that he interviewed both defendant and his brother Jules Sabatini that night. Neither man was permitted to approach the van. Defendant told him that he had not seen Ray earlier that night. Due to concern about contamination of the crime scene, Coia asked defendant if he had approached the scene and if so how close he had gotten. Defendant stated that he had not gotten closer to the van than "approximately fifty feet away." During the conversation, defendant told Coia that people in the area were in the habit of stopping Ray's van and asking Ray for money. Defendant told Coia that a man named Billy Quenzel had probably killed Ray because Quenzel needed money to buy drugs. Billy Quenzel was defendant's nephew. The police later ruled out Quenzel as a suspect after casino security videos showed that he was in Atlantic City at the time of the murder.

On the morning of September 14, with defendant's consent, the police obtained defendant's cell phone and retrieved its call log. They also obtained defendant's clothing from the previous day, consisting of a gray tank top, jeans and shoes. Defendant gave two audio recorded statements to the police, both of which were played for the jury at the trial. Contrary to what he told the police on the night of the murder, in his recorded statements defendant claimed that right after Dean pointed out Ray's body lying in the road, defendant went up to the van and lay down near Ray to ascertain his condition.

At the same time that the police were investigating defendant, they were also investigating Ray's other neighbors on Back Neck Road, as well as his tenants and close friends. Many of those investigated were crack cocaine addicts and drug dealers residing in the Back Neck Road area or selling drugs there. Defendant was charged with Ray's murder on October 30, 2008, when a laboratory report came back showing that Ray's blood was on defendant's clothing.

Jules Sabatini, a close friend of Ray, testified that he and Ray habitually played bingo at various local churches on Saturday nights. They would meet at a local tavern, and Ray would drive them both to the bingo games. They followed that pattern on the evening of Saturday, September 13. Around 11:15 p.m. that night, Ray dropped Jules off at the tavern after bingo, and that was the last time Jules saw him alive. Jules testified that, later that night, defendant called Jules and, referring to Ray, told Jules, "the motherfucker's dead." However, on cross-examination, Jules admitted that he did not tell the police that defendant referred to Ray in a derogatory manner.

Jules testified that after receiving defendant's phone call, he raced to the scene. When he arrived, he encountered defendant, who was only wearing shorts and socks and appeared to have just showered.4 Jules stated that was unusual, because defendant was "always a mess." Jules asked defendant what happened to Ray. Defendant told him that the police would not let Jules near Ray's body, and that defendant had tried to approach the body but the police would not allow it. Later, defendant changed his story, according to Jules, and told him he had leaned down to look at the body. A couple of days later, defendant told Jules that he "may have rubbed [Ray's clothes] with [his own]" at the scene.

The State presented evidence that Ray was more affluent than many of his neighbors on Back Neck Road, and his neighbors sometimes looked to him for financial assistance. Jules testified, without objection, that from time to time, defendant would stop Ray's van on the road and ask Ray to give him money, food, or cigarettes. He also testified that several other residents of the area were in the habit of stopping Ray's vehicle and asking him for money. Jules admitted that various people in the area knew Ray's bingo schedule and hence would know that Ray would be driving on Back Neck Road late that night. The defense elicited similar testimony from other witnesses, concerning various people flagging down Ray's van on Back Neck road to borrow or repay money.

Two of defendant's sisters, Dorothy Sabatini and Linda Quenzel, testified that within a year prior to the murder, defendant had expressed his hatred and resentment of Ray. According to Linda, who was Billy Quenzel's mother, defendant told her that Ray was "the Antichrist" and Back Neck Road would be a better place without him. Linda was hardly a neutral witness, since immediately after the murder defendant told the police and other family members that her son Billy had committed the murder. However, her testimony was corroborated by Dorothy, who testified that defendant told her that Ray sold drugs to the area residents and supplied them with money to buy drugs. According to Dorothy, defendant also told her that he "would have to" kill and dismember Ray, and "bury him back in the meadow [behind defendant's home] so far that nobody will ever find him."

In support of its theory that defendant despised Ray and killed him in order to get money to buy crack cocaine, the State also presented evidence that defendant made multiple calls to two drug dealers on the night of the murder. In addition to cell phone records, the State presented testimony from Ralph Bunton, who in the 2008 time frame was a local drug dealer. Bunton testified that he received two phone calls from defendant on the late evening of September 13 and the early morning of September 14, asking Bunton to bring him some cocaine. According to Bunton, when he delivered the cocaine to defendant's home on Back Neck Road at about 2:00 a.m., he saw lights from the crime scene down the road, and defendant told him that Ray had been found dead. Bunton gave defendant the cocaine, for which defendant paid him about a hundred dollars.

Ms. Crispo, who lived in a trailer behind Ray's house and served as his housekeeper, testified that, earlier on the evening of September 13, defendant called Ray's house several times, trying to find out whether Ray had cashed a $50 check defendant had given him. Defendant told Crispo that he was concerned because he wanted to buy drugs from Bunton and needed money.

The State produced testimony from scientists at the State Police lab confirming that in 2008, several stains on the jeans and the gray tank top tested positive for blood and the blood was positive for Ray's DNA. The clothing was tested again in 2011 at the request of the State's blood spatter expert, Rod Englert. Two additional spots of Ray's blood were found on the jeans, and four additional spots of Ray's blood were found on the tank top. The lab did not DNA-test many of the spots that Englert suggested be tested, because those spots did not test positive for blood.

II

We begin by addressing defendant's challenges to Englert's testimony concerning blood spatter analysis. In a criminal case, we review a trial judge's decision after a Frye5 hearing de novo. See State v. Harvey, 151 N.J. 117, 167 (1997); State v. McGuire, 419 N.J. Super. 88, 123-24 (App. Div.), certif. denied, 208 N.J. 335 (2011). In contexts other than a Frye determination, a trial court's evidentiary rulings will not be disturbed on appeal absent a clear abuse of discretion. See State v. J.A.C., 210 N.J. 281, 295 (2012); McGuire, supra, 419 N.J. Super. at 135; see also Townsend v. Pierre, 221 N.J. 36, 52-53 (2015). In applying the abuse of discretion standard, we will not substitute our judgment for that of the trial court, unless the trial court's ruling is so wide of the mark that a manifest denial of justice resulted. State v. Fulston, 325 N.J. Super. 184, 192-93 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).

A trial judge has broad discretion in determining the relevance of evidence and whether its probative value is substantially outweighed by its prejudicial nature. Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). The trial court has discretion in determining the sufficiency of an expert's qualifications "and [its decision] will be reviewed only for manifest error and injustice." State v. Ravenell, 43 N.J. 171, 182 (1964) (citations omitted), cert. denied, 379 U.S. 982, 85 S. Ct. 690, 13 L. Ed. 2d 572 (1965).

Applying those standards, we find no merit in defendant's point III concerning the reliability of blood spatter analysis. Englert's testimony established that blood spatter analysis is accepted nationwide as scientifically reliable and is widely taught as a subject in colleges and police academies. See Frye, supra, 293 F. at 1014; State v. Harvey, 151 N.J. 117, 169 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Defendant presented no contrary evidence.

Moreover, Englert, a nationally and internationally known expert in the field of crime scene reconstruction and blood spatter analysis, had over forty years of experience and had testified as an expert in more than 400 trials. We agree with the trial judge's reasoning as set forth in his oral opinion after the N.J.R.E. 104 hearing on May 10, 2012. We find no abuse of discretion or other error in permitting Englert to testify on this subject.

Defendant's additional arguments concerning the N.J.R.E. 104 hearing do not require extended discussion. It is unclear from the transcript of the N.J.R.E. 104 hearing whether Englert was sworn before giving his testimony, as required by N.J.R.E. 603. However, the record does not reflect that defendant made any objection that he was not sworn, and on this appeal, defendant does not claim that an objection was made. We conclude that the issue was not preserved for appeal. See State v. Robinson, 200 N.J. 1, 19 (2009).6

We agree with defendant that the trial court permitted Englert to testify at the N.J.R.E. 104 hearing by telephone without conducting the analysis required by Aqua Marine Products, Inc. v. Pathe Computer Control Systems Corp., 229 N.J. Super. 264 (App Div. 1988). See State v. Santos, 210 N.J. 129, 140-41 (2012). However, after reviewing the record we find that the Frye issue (whether blood spatter analysis was generally accepted as reliable in the scientific community) was essentially uncontested in this case, and we conclude any error was harmless under the circumstances. R. 2:10-2.

Englert was located in Oregon. His identity as a witness was not in issue, nor was his credibility an issue at the Frye hearing. See Santos, supra, 210 N.J. at 141. It is clear from the hearing record that the defense had no reasonable grounds to challenge blood spatter analysis as a recognized science; in fact the judge repeatedly admonished defense counsel to stick to the Frye issue rather than exploring the substance of Englert's proposed trial testimony.7 We are satisfied that there is no possibility that an in-person hearing would have produced a different result.

Next, we address defendant's objections to the substance of Englert's trial testimony, and the admission in evidence of defendant's gray tank top with various marks that Englert placed on the shirt. This was the context. In accordance with its standard protocol, the State testing laboratory did not test every stain on defendant's shirt and pants to see if each stain was Ray's blood. Instead, the lab stopped after finding that one spot on each garment was Ray's blood. In an effort to strengthen the State's case, the State sent the shirt and pants to Englert to see if he could locate additional possible blood stains on the garments, and if he could analyze the blood spatter patterns on them.

After examining the shirt and pants, Englert made marks and placed round white binder reinforcements on the shirt wherever he thought there might be additional blood stains.8 The marks and reinforcement stickers were intended to show the State testing laboratory where to perform additional tests on the shirt to determine whether in fact any of the marks were blood and, if so, whether they were positive for Ray's DNA.

There was no dispute that a few of the marks turned out to be blood, but most of them did not. Defense counsel objected to the shirt being shown to the jury with Englert's markings on it, due to a concern that the jury would believe that each marking was the site of a blood stain. The judge overruled the objection, on the grounds that the jury needed to see the marks in order to understand Englert's methodology, and the jury was unlikely to be confused into thinking that each mark was an actual blood stain. In fact, the judge reasoned that once the jury knew how few of Englert's marks corresponded to blood stains, they might give less weight to his testimony.

At the beginning of his testimony, Englert put on a tutorial for the jurors to explain to them, in general, the different types of blood spatters and how each is created. He explained that drops of blood created by a medium velocity impact, such as an attack with a blunt instrument, had a distinctly different shape than blood stains caused by a high impact such as a gunshot. He also explained the difference between a blood stain caused by impact and a stain caused by swiping of an object across a bloody surface.

In that context, Englert used what he told the jurors was stage blood to demonstrate the creation of medium velocity blood spatters. Contrary to defendant's argument, we perceive nothing shocking or prejudicial in that demonstration. Defendant's reliance on State v. Johnson, 120 N.J. 263, 296-99 (1990), is misplaced. In that case, blood spatter testimony was found to be of little probative value and involved the gratuitous introduction of numerous gruesome death scene photos. Here, the testimony was probative as to disputed issues in the case.

The point of Englert's demonstration and his preliminary testimony was to demonstrate that medium velocity blood spatter had a characteristic, reproducible pattern, and to establish that it was possible for an attacker to strike a victim with a blunt instrument without getting large amounts of blood spattered on his clothing. That testimony was designed to convince the jury that although Ray was beaten badly enough to cave in the back of his skull and cause massive bleeding, the attacker would not necessarily have been soaked with blood as a result. Hence, according to Englert, the fact that defendant only had a few spots of Ray's blood on his clothing, instead of massive amounts, was not necessarily exculpatory.

During his testimony, Englert clearly explained that when he identified possible blood spatter patterns on the gray tank top, those would be meaningless unless the State laboratory actually analyzed the stains and determined that they were blood and whose blood it was. That was why he directed that the shirt be returned to the State lab for further testing. Englert testified that he did not render his final opinion until the lab reported back to him that some of the spots were Ray's blood and some were defendant's blood.

The next portion of Englert's testimony was designed to rebut the defense's second theory, that Ray's blood got on defendant's shirt when defendant allegedly approached the body after Ray was dead. According to Englert, the person who wore the gray tank top was "in close proximity to the event when it happened . . . within two to three feet when that occurred, when [Ray] was being struck." On cross-examination, defense counsel elicited admissions from Englert that many of the stains he asked the lab to test came back negative for blood. Defense counsel did not ask Englert to admit that there were an insufficient number of actual, documented blood stains to support his underlying theory that the gray shirt contained medium velocity blood spatter. Counsel avoided that issue, presumably for tactical reasons.

Further, the significance of Englert's testimony was not how much of Ray's blood was on the shirt, but rather the fact that what drops there were of Ray's blood had the characteristic shape and pattern of spatter caused by a medium velocity impact. It was undisputed that there were five areas on the shirt that tested positive for both blood and Ray's DNA. If there were other areas that turned out not to be blood, or not to contain Ray's DNA, that went to the weight to be given Englert's opinions.

Defendant argues, as he did in the trial court, that leaving Englert's marks and tags on the clothing would have confused the jury into believing that each of those marks corresponded to a blood stain. We cannot agree. Based on our reading of the transcript, there is no likelihood that the jury would have been confused into thinking that all of the marks Englert initially placed on the clothing turned out to be the locations of blood stains. Englert told the jury on direct examination that they were not, and the subject was extensively covered on cross-examination and in defense counsel's summation.9

Contrary to defendant's argument on this appeal, Englert did not render a net opinion, because there was legally competent evidence to support the factual assumptions on which he based his opinion. See Townsend v. Pierre, supra, 221 N.J. at 52-53; State v. Townsend, 186 N.J. 473, 494 (2006); State v. Papasavvas, 163 N.J. 565, 607 (2000). Accordingly, we find no abuse of the trial judge's discretion in permitting Englert to testify and in denying the defense motion to strike Englert's testimony.

III

Next we address defendant's additional claims of error in the trial judge's evidentiary rulings. Defendant contends that the trial judge erred: in allowing the State to present evidence that he purchased crack cocaine from Bunton on the night of the murder; in allowing the State to present evidence that defendant was aware of Ray's bingo schedule and sometimes stopped Ray's vehicle to ask for money; and in failing to exclude or "sanitize[]" evidence of defendant's prior derogatory statements about Ray. We find no abuse of the trial judge's discretion in admitting any of that evidence.

Defendant first argues that evidence concerning his need for money to buy drugs should have been excluded as prohibited "other crimes evidence" under N.J.R.E. 404(b).10 The State responds that the evidence was intrinsic to the murder and hence need only be analyzed under N.J.R.E. 403, not under N.J.R.E. 404(b). See State v. Rose, 206 N.J. 141, 177-78 (2011). Alternatively the State argues that the evidence was admissible under N.J.R.E. 404(b) as proof of defendant's motive for the murder.

We cannot find that the drug evidence was intrinsic, as our Court has defined it

[W]e . . . reserve the "intrinsic" label for two narrow categories of evidence. First, evidence is intrinsic if it "directly proves" the charged offense. This gives effect to Rule 404(b)'s applicability only to evidence of "other crimes, wrongs, or acts." If uncharged misconduct directly proves the charged offense, it is not evidence of some "other" crime. Second, "uncharged acts performed contemporaneously with the charged crime may be termed intrinsic if they facilitate the commission of the charged crime." But all else must be analyzed under Rule 404(b).

[Rose, supra, 206 N.J. at 180 (quoting United States v. Green, 617 F.3d 233 (3d Cir. 2010)).]

Defendant's search for drugs, and the money to purchase them, did not directly prove that he murdered Ray. Nor did it facilitate the commission of the murder. Ibid. By contrast, if Ray had been shot, evidence that defendant was holding the murder weapon at the time would be intrinsic to the crime, even though possessing the gun could also constitute a separate crime.

On the other hand, as the trial judge correctly ruled, defendant's interest in buying drugs on the night of the murder, and his lack of funds for the purchase, were highly relevant to show his motive for the murder. See N.J.R.E. 404(b). Defendant's many calls to local drug dealers, his call to Crispo expressing concern about getting money to buy drugs, and his later purchase from Bunton, occurred in close proximity to the murder. The other crimes evidence was clear and convincing, in the form of witness testimony and contemporaneous cell phone records, and the probative value of the evidence clearly outweighed its prejudicial impact. See Rose, supra, 206 N.J. at 162-65; State v. Cofield, 127 N.J. 328, 338 (1992). Contrary to defendant's argument, the State's evidence that defendant hated Ray did not obviate the need to also introduce evidence of his more immediate motive on the night of the murder.

Defendant correctly argues that evidence of a defendant's drug addiction cannot be admitted to show his propensity to commit crimes in order to get money to buy drugs. See State v. Mazowski, 337 N.J. Super. 275, 282-85 (App. Div. 2001). However, in this case, the trial judge specifically barred the State from presenting such evidence, and limited the State to presenting evidence of defendant's efforts to buy drugs only on the night of the murder. During jury selection, the court also specifically questioned the prospective jurors to be sure they could judge the case fairly even if they heard information that defendant used illegal drugs.

We find no merit in defendant's related argument, that the trial court should have excluded or "sanitized" evidence of his statements to his sisters about hating Ray and wanting to kill him. We find no abuse of the trial judge's discretion in admitting the statements. They were clearly admissible under N.J.R.E. 803(b)(1), because they were made by defendant. According to the witnesses, defendant made the statements several months prior to the murder, and they were highly relevant to show motive. See State v. Covell, 157 N.J. 554, 572 (1999). The trial judge limited the number of such statements that were admitted, and thoroughly instructed the jury concerning those statements. Defendant's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

We likewise find no merit in defendant's argument, raised for the first time on appeal, that the trial court erred in allegedly admitting evidence of defendant's "habit or routine." See N.J.R.E. 406.11 Both sides introduced testimony that Ray would stop his van on Back Neck Road in response to neighbors flagging him down to ask for favors. This was relevant to explain why Ray would have stopped his van on a dark road in the middle of the night. That defendant knew Ray would stop, had flagged Ray down himself in the past, and knew Ray's bingo schedule, were all relevant to explain how defendant could have committed the murder. The evidence was not admitted pursuant to N.J.R.E. 406, and defendant did not object to it on that basis. His argument warrants no further discussion. R. 2:11-3(e)(2).

IV

Defendant's remaining challenges to his conviction are without merit and, except as discussed here, they warrant no discussion. R. 2:11-(e)(2).

In the middle of the trial, the prosecution brought to the court's attention that Englert had appeared on a television program called Dateline the previous evening, and he asked the judge to question the jurors in case any of them had seen the show. Accordingly, the judge asked all of the jurors if they had seen Dateline the night before. Two of the jurors (juror one and juror ten) stated that they had, and the court then questioned each of them separately.

Juror ten told the judge that he had watched the entire show, which concerned a trial in which Englert had appeared as an expert witness. When asked if he had spoken to any other jurors about the show, juror ten responded that he asked other jurors if anyone had seen Dateline the night before, without giving any details, and except for juror one, they all said no. Juror one said she had seen the show. He and juror one then had a brief private conversation in which juror ten mentioned that Englert had been on the show as a witness. The judge excused juror ten and then interviewed juror one.

Juror one stated that she slept through most of the show and did not see anyone she knew on the small segment she saw. However, juror one told the judge that in the jury room, juror ten had briefly mentioned to her that he saw Englert on a television show. She was not sure that any of the other jurors heard what juror ten said. According to juror one, juror ten "said I noticed [Englert's] beard . . . and then I noticed who he was. And then we were talking about other stuff. We did not get into what [Englert] said and what he did."

After allowing juror one to leave the room, the judge stated to counsel that he saw no reason to question any of the other jurors about the matter. The prosecutor agreed, and defense counsel responded, "Right." However, defense counsel then requested a mistrial on the grounds that any jurors who heard juror ten's statement would give Englert's testimony more weight because he had been on television. The judge disagreed, reasoning that the jurors already knew that Englert was a nationally recognized expert who had testified in 400 other trials, and the mere fact that he had appeared on a television program, or even that he had testified in another case, was unlikely to influence them. However, the judge immediately gave the jury a general instruction reminding them that they were to decide the case based only on "what you hear . . . on the witness stand and the evidence and you can't be influenced by anything outside of the courtroom." Neither side asked the judge to remove juror one from the jury, and the judge did not excuse her.

We review the judge's decision for abuse of discretion, and we find none. See State v. R.D., 169 N.J. 551, 559 (2001). The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to trial by an impartial jury. Id. at 557. A criminal defendant "is entitled to a jury that is free of outside influences and [that] will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." Ibid.

"[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." R.D., supra, 169 N.J. at 557-58. Accordingly, the court must "investigate and . . . determine whether the jurors are capable of fulfilling their duty in an impartial and unbiased manner." McGuire, supra, 419 N.J. Super. at 153.

However, our Court has recognized that "the trial court is in the best position to determine whether the jury has been tainted." R.D., supra, 169 N.J. at 559. In making that determination, the trial court must "consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." Ibid. The decision to grant a new trial based on jury taint resides in the discretion of the trial court. Id. at 558.

In this case, we find no basis to second-guess the trial court's handling of the jury issue. Juror one slept through the Dateline show and did not see Englert on the show. Both jurors one and ten told the court that juror ten did not discuss the substance of Englert's appearance on the show with juror one or with any other juror. It seemed unlikely that any juror other than juror one even heard that Englert appeared on a television show. Moreover, the jurors already knew, from Englert's testimony, about his extensive experience as an expert witness and lecturer in his field, including the 400 trials in which he had testified. Even if they overheard juror ten telling juror one that Englert had appeared on Dateline, the mere fact that he had appeared on a television show, without more, was unlikely to influence the jurors to credit Englert's testimony when they otherwise would not have done so. We find no abuse of the trial court's discretion in denying defendant's mistrial motion and in refraining from further questioning the remaining jurors.

Defendant next contends that the prosecutor made improper comments in summation. Contrary to defendant's assertion, the prosecutor's summation provides no basis to reverse the verdict. The prosecutor's comments, most of which drew no objection from the defense, constituted fair comment on the evidence. Likewise, defendant was not entitled to a new trial on that basis or on any other grounds. His arguments on those points are without sufficient merit to warrant additional discussion. R. 2:11-3(e)(2).

V

Lastly, we find no basis to depart from our usual deference to the trial court's sentencing decision. See State v. Grate, 220 N.J. 317, 337 (2015). Defendant had several prior criminal convictions, and we find no error in the trial court's determination that mitigating factor seven (defendant has led a law abiding life) was not applicable. See N.J.S.A. 2C:44-1(b)(7). We affirm the sentence for the reasons stated by the trial judge in his thorough and thoughtful statement of reasons issued at the sentencing hearing.

Affirmed.

1 Defendant's supplemental pro se arguments largely track those presented by his attorney. Except as addressed herein, they do not warrant discussion in a written opinion. See R. 2:11-3(e)(2).

2 Bussey stated that she had previously used the name "Angel."

3 The medical examiner (ME) later testified that Ray had died due to "multiple sharp and blunt force injuries to his head." Ray had defensive wounds on his left hand. The ME could not tell from the injuries whether there had been more than one attacker.

4 Defendant's nephew John Sabatini, who arrived at the murder scene at about 2:00 a.m., corroborated Jules' observation that defendant was wearing only shorts and socks. Defendant's brother Michael Sabatini made a similar observation when he arrived at the scene. There appears to be no dispute that defendant changed his clothing at some point after he approached Dean's truck and spoke to Dean.

5 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

6 Englert was sworn before he testified at the trial.

7 We do not intend this as criticism of defense counsel, who zealously represented her client.

8 Englert used round binder reinforcements to avoid confusion with the differently-shaped tags that the State laboratory had already placed on the shirt. The purposes of all of those markings was thoroughly explained to the jury.

9 Defendant did not provide us with any of the trial evidence pertaining to Englert's testimony, either the exhibits Englert created or the exhibits created by the experts at the State laboratory, which showed all of the locations where Ray's blood was found on defendant's clothing. We infer that those documents were not provided because they would not be helpful to defendant's case.

10 "[E]vidence of other crimes . . . is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive . . . when . . . relevant to a material issue in dispute." N.J.R.E. 404(b).

11 "Evidence . . . of habit or routine practice is admissible to prove that on a specific occasion a person . . . acted in conformity with the habit or routine practice." N.J.R.E. 406(a).