JERSEY STATE OF NEW JERSEY v. SHAMSIDDIN ABDUR-RAHEEM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 
 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAMSIDDIN ABDUR-RAHEEM,

Defendant-Appellant.

__________________________________________________

April 25, 2017

 

Argued January 24, 2017 Decided

Before Judges Messano, Espinosa and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-08-0102.

John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the briefs).

Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Ms. Kmieciak, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury, defendant Shamsiddin Abdur-Raheem was found guilty of the first-degree murder of his infant daughter Z.A., N.J.S.A. 2C:11-3(a)(1) and (2); first-degree kidnapping of Z.A., N.J.S.A. 2C:13-1(b); second-degree endangering the welfare of Z.A., N.J.S.A. 2C:24-4(a); and the lesser-included disorderly persons offenses of simple assault, N.J.S.A. 2C:12-1(a)(1), and assault with a motor vehicle, N.J.S.A. 2C:12-1(c)(1), of the child's grandmother, L.B.1 The judge denied defendant's post-trial motion for judgment of acquittal or for a new trial and sentenced defendant to life imprisonment on the murder conviction, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a consecutive thirty-year term on the kidnapping conviction, subject to NERA; a concurrent ten-year term on the endangering conviction; and two consecutive six-month terms on the assaults.

Before us, defendant raises the following arguments

POINT I2

THE POLICE VIOLATED DEFENDANT'S FIFTH AMENDMENT AND STATE COMMON LAW RIGHTS AGAINST SELF-INCRIMINATION BY QUESTIONING HIM IN EGREGIOUSLY COERCIVE CIRCUMSTANCES AT HIS PARENTS' HOME, BY FAILING TO SCRUPULOUSLY HONOR HIS RIGHT TO REMAIN SILENT IN THE WINSLOW TOWNSHIP POLICE STATION, AND BY INITIATING A THIRD INTERROGATION AT THE WINSLOW TOWNSHIP POLICE STATION AFTER THE TWO IMPROPER PRIOR INTERROGATIONS. SINCE DEFENDANT'S RIGHTS WERE NOT SCRUPULOUSLY HONORED, ALL THREE STATEMENTS TO THE POLICE MUST BE SUPPRESSED. U.S. Const. Amends. V, VI, XIV; N.J. Const. Art. I, para. 1.

POINT II

THE JUDGE IMPROPERLY RULED THAT [DEFENDANT'S] CONFIDENTIAL STATEMENT TO HIS IMAM WAS NOT PROTECTED BY THE CLERIC-PENITENT PRIVILEGE, THEREBY VIOLATING HIS STATE AND FEDERAL RIGHTS TO DUE PROCESS. U.S. Const. Amend. XIV; N.J. Const. Art. I, para. 1.

POINT III

THE ASSISTANT PROSECUTOR IMPROPERLY CROSS-EXAMINED [DEFENDANT] ON HIS SILENCE AND IMPROPERLY COMMENTED ON HIS SILENCE AGAIN IN SUMMATION. [DEFENDANT] WAS THEREBY DENIED DUE PROCESS AND A FAIR TRIAL. U.S. Const. Amend. V, XIV; N.J. Const. Art. I, para. 1.

POINT IV

[DEFENDANT], AS [Z.A.'S] LEGAL PARENT, SHOULD NOT HAVE BEEN CHARGED WITH KIDNAPPING, AND HIS MOTION TO DISMISS THE CHARGE SHOULD HAVE BEEN GRANTED, PURSUANT TO STATE V. FROLAND.3

POINT V

JUST AS A JURY INSTRUCTION ON POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST SPECIFY THE UNLAWFUL PURPOSE, A KIDNAPPING INSTRUCTION SHOULD SPECIFY THE UNLAWFUL PURPOSE OF THE CONFINEMENT OR REMOVAL. MOREOVER, THE JUDGE READ THE INCORRECT DEFINITION OF "UNLAWFUL" IN THE KIDNAPPING CHARGE. THESE ERRORS REQUIRE REVERSAL OF THE CONVICTION FOR KIDNAPPING.

POINT VI

EVEN WHEN VIEWED IN THE LIGHT MOST FAVORABLE TO THE STATE, THE EVIDENCE DID NOT ESTABLISH BEYOND A REASONABLE DOUBT THAT [DEFENDANT] COMMITTED ANY OF THE OFFENSES FOR WHICH HE WAS CHARGED, AND HIS MOTION FOR A NEW TRIAL OR ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT VII

BECAUSE THE JUDGE IMPROPERLY FOUND AN AGGRAVATING FACTOR AND DECLINED TO FIND MITIGATING FACTORS, THE AGGREGATE SENTENCE OF LIFE PLUS THIRTY YEARS WITH AN 85% PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE. U.S. Const. Amend. VIII, XIV; N.J. Const. Art. I, paras. 1, 12.

In a pro se supplemental brief, defendant raises the following points

POINT I

THE TRIAL COURT ERRED IN ISSUING ERRONEOUS AND INADEQUATE JURY INSTRUCTIONS ON KIDNAPPING CHARGE AND COUNSEL WAS INEFFECTIVE WHERE HE FAILED TO OBJECT TO THESE ERROENOUS AND INADEQUATE INSTRUCTIONS AND OMISSIONS AND BY FAILING TO COMPREHEND THE LAW AND FACTS OF THIS CASE AMOUNTING TO PLAIN ERROR, R. 2:10-2, WHICH THEREBY DENIED DEFENDANT HIS STATE AND FEDERAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL, VIOLATING U.S. Const. Amend. V, VI XIV, AND N.J. Const. Art. I, paras. 1, 8, 9, 10.

POINT II

THE STATE PROSECUTOR VIOLATED DEFENDANT'S BASIC RIGHTS TO A FAIR TRIAL AND DUE PROCESS BY COMMITTING THE MOST PREJUDICIAL, EGREGIOUS AND VIRTUALLY EVERY FORM OF BLATANT CLASSICAL MISCONDUCT KNOWN WITHIN THE JUDICIAL SYSTEM THROUGHOUT DEFENDANT'S TRIAL TO INFLAME THE JURY'S PASSIONS AND OBTAIN A SYMPATHETIC OR OTHERWISE UNJUST VERDICT, AND THE TRIAL COURT ERRED IN TOLERATING SUCH OUTRAGEOUS MISCONDUCT, AND COUNSEL WAS INEFFECTIVE WHERE HE FAILED TO OBJECT IN VIOLATIONS OF U.S. Const. Amend. V, VI XIV, AND N.J. Const. Art. I, paras. 1, 8, 9, 10.

POINT III

THE TRIAL COURT ERRED BY ISSUING AN INADEQUATE JURY CHARGE ON CAUSATION WHILE ISSUING ITS CHARGE ON MURDER AND COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT TO THIS INADEQUATE CHARGE, INFRINGING UPON HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS, VIOLATING U.S. Const. Amend. V, VI XIV, AND N.J. Const. Art. I, paras. 1, 8, 9, 10.

POINT IV

COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST A LIMITING-USE JURY INSTRUCTION ON THE USE OF DEFENDANT'S POST-ARREST SILENCE, INFRINGING UPON DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS, VIOLATING U.S. Const. Amend. V, VI XIV, AND N.J. Const. Art. I, paras. 1, 8, 9, 10.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

The evidence at trial revealed that defendant and V.B. met while both were students at Stockton College and became involved in a romantic relationship, leading to Z.A.'s birth in November 2009. After the birth, V.B. stayed with her mother, L.B., in East Orange and, in January 2010, left with the baby and moved into an apartment with defendant in Galloway Township. Two weeks later, however, V.B. moved back to her mother's home with the baby and resisted defendant's requests to return to the couple's apartment. Although V.B. agreed that defendant could visit their daughter, she feared for her and Z.A.'s safety and imposed certain ground rules. Defendant could only visit Z.A. at L.B.'s apartment and only with someone else present. These restrictions angered defendant.

On February 14 and 15, 2010, defendant repeatedly called L.B.'s apartment and sent text messages to V.B.'s phone, expressing his anger over not being able to see Z.A. as he pleased. Defendant's cell phone records revealed that in the morning of February 16, he made thirty-six calls to L.B.'s apartment and 116 calls to V.B.'s cell phone, all of which went unanswered. He also tried calling V.B.'s former boyfriend sixteen times, and her sister six times. Defendant continued to send increasingly profane text messages to V.B., who was not at home at the time. At approximately 3:44 p.m., he sent a message to V.B. saying he was at her mother's apartment building. The jury saw surveillance footage showing defendant at the building's entrance and in its foyer.

When another person entered the building, defendant followed and arrived at L.B.'s fourth-floor door. Defendant knocked and, finding the door unlocked, entered the apartment. L.B., who was holding Z.A. at the time, told him to leave, but defendant forcibly took hold of Z.A. He struck L.B. in the head, choked her and slammed her head on the floor, before fleeing with the baby. L.B. followed and confronted defendant outside at his van, in which defendant had placed Z.A. in the back seat without restraints. L.B. stood in front of the vehicle to block defendant's path, but he drove the car forward, striking L.B. and carrying her for a short distance before she fell off.

Defendant arrived alone at the Masjid Mohammad mosque in Atlantic City between 6:00 and 6:20 p.m. He approached Imam Terrence Bethea, who had known defendant since he was in high school. Upon entering Bethea's office, defendant began crying and told the imam that he "did something bad with his hands," and said, "I put my baby in the water." After unsuccessfully trying to elicit more information, Bethea drove defendant to his parents' house in Winslow Township, arriving around 7:20 p.m.

Once there, Bethea told defendant's mother and father that defendant "said he hurt the baby and threw the baby in the water." Defendant told his parents that he had thrown Z.A. "in the water" and mentioned the Driscoll Bridge, but did not provide specific details. Defendant's father called police who arrived in force shortly thereafter. The statements defendant made to law enforcement, both at his parents' house and at Winslow Police Department headquarters, are discussed in greater detail below. These statements are the subjects of Point I of defendant's brief.

In the interim, police responded to L.B.'s home in East Orange and investigated what had occurred, taking photographs of her injuries and reviewing surveillance footage that showed defendant's car striking L.B. as he fled. The next day, a witness contacted New Jersey State Police describing an encounter he had the day before while driving home from work.

The witness saw a maroon van pull over on the shoulder of the southbound lane of the Garden State Parkway (GSP) near the apex of the Driscoll Bridge. As his car approached the van, the witness saw a man sitting inside with the passenger side window open and holding "what seemed to be a bag or garbage bag . . . resting on the top of the bridge abutment." Within seconds, the witness saw the bag "pushed off the bridge." Surveillance photos taken at the Raritan Toll Plaza showed defendant's van and the witness's vehicle passing through the plaza at 4:29 p.m. on February 16, 2010.

After defendant made his statements to police, law enforcement agencies conducted an intensive effort to find Z.A.'s body. On April 24, 2010, the remains of a deceased infant were discovered in a marshy area on the banks of the Raritan River near Sayreville. DNA testing confirmed this was Z.A.

Dr. Lyla Perez, a forensic pathologist, examined the body where it was discovered, and thereafter she also performed an autopsy. The body was badly decomposed when found, but Dr. Perez determined Z.A. had suffered "multiple injuries of the head and the skull." She concluded that the causes of Z.A.'s death were "drowning and blunt force trauma to the head." Dr. Perez testified that the injuries to Z.A.'s head were consistent with a fall into water from the height of the Driscoll Bridge. She also explained that a fall from that height into water would cause death both from the trauma of impact and from "the shock of going into very cold water and going under the water." Dr. Perez classified Z.A.'s death "a homicide," admitting at trial she was unable to conduct many of the usual tests for death by drowning because of decomposition.

Gina Hart, a forensic anthropologist with the Newark Regional Medical Examiner's Office, examined Z.A's skeleton, with a particular focus on whether it exhibited cranial trauma. Hart testified that Z.A. had two disarticulated fractures in the rear of her skull, meaning the bones had "separated from where they normally [were] in the body." Hart concluded that these injuries indicated "perimortem blunt force trauma," or trauma occurring "at or around the time of death." Hart also opined that such injuries could result from a fall from a significant height, but rarely, if ever, occurred while a child was being carried by someone or fell off a bed.

While incarcerated awaiting trial, defendant sent V.B. a letter that was read to the jury. Defendant claimed that he "wanted to get help" when he first spoke to police, and "those people could've found [his] daughter the first day and perhaps saved her but they stopped looking." Defendant blamed V.B. for what happened, because she lied to defendant and resumed a sexual relationship with an ex-boyfriend while pregnant. Defendant accused V.B. of setting a bad example for his daughter and prayed V.B. would forgive him. Defendant believed that "death could've been better for [Z.A.] than life," because the child would have "lived the life of sin" had she remained in V.B.'s care.

Defendant testified on his own behalf. He said that he struggled with L.B. in the East Orange apartment, and L.B. fell to the ground on top of Z.A., causing the back of the child's head to strike the floor. On cross-examination, however, defendant said that L.B. lost her grip on the baby and dropped her during the struggle. Defendant picked Z.A. up from the floor and left the apartment.

According to defendant, the baby looked "stunned and shocked." Although he intended to drive to his parents' home, defendant checked on Z.A. as he drove south on the GSP and noticed the child's eyes were wide open and she was not moving, and concluded that she "was obviously dead." When he reached the Driscoll Bridge, defendant pulled over and stopped, rolled down the window and admittedly "tossed [his] daughter off the bridge." When asked, defendant answered, "I don't know why."

II.

The judge conducted a pre-trial hearing pursuant to N.J.R.E. 104(c) to determine the admissibility of defendant's statements to law enforcement. Detective Christopher Romeo of the Winslow Township Police testified he was dispatched to defendant's parents' home shortly after 8:00 p.m. on February 16, 2010. Ten other officers also arrived around that time. Romeo, Detective Eric Del Fava and two other officers entered the house, while the rest remained outside. Imam Bethea greeted the four officers at the door, and told Romeo that defendant had thrown his child off a bridge on the Garden State Parkway. Romeo entered the living room, where defendant was sitting with his parents and brother.

Although Romeo advised defendant that he was not under arrest, he nonetheless read defendant his Miranda4 rights, patted him down for weapons, and had another officer handcuff defendant. Defendant said that he understood his rights and agreed to speak to Romeo. He never refused to answer any questions, never invoked his right to remain silent and never asked to consult an attorney.

Romeo asked defendant if he was sure he threw Z.A. off a bridge, and defendant said he had dropped the baby from the middle of the Driscoll Bridge approximately five hours earlier. When Romeo asked defendant why he had done this, defendant did not respond verbally, but cried.

Officers took defendant to the police station and escorted him to an interview room, where Del Fava questioned him. Another detective and Bethea were present during this interrogation. Del Fava testified that he could not remember whether defendant asked for Bethea to accompany him, but said that he typically would not bring a third party into the interview room unless requested by a defendant.

Del Fava read defendant his Miranda rights using a form, upon which defendant initialed each statement read to him, indicating he understood. Defendant also verbally responded that he understood each of the statements as they were read.

When completed, Del Fava asked if defendant wanted "to waive those rights and answer questions or give a statement." Defendant replied, "I don't want to waive my rights." He then said, "I just want to give details . . . about where the baby is at and that's it." Del Fava explained that for him to discuss that subject with defendant, they would "have to deal with it the legal way." When defendant again stated he did not want to waive his rights, Del Fava asked him to write the answer "no" on the form and sign it. Defendant then said, "I wanted to talk. I just didn't want to go through . . . I didn't want to talk about all of the things." Del Fava replied that he wanted to "find the baby," but that he could not speak to defendant unless defendant agreed to waive his rights. Defendant replied, "I want to, I wanted to give a statement about where the baby is." Del Fava said that defendant could do so, and that once he gave that statement he could "stop anytime."

He asked defendant once more if he wanted to talk about "where the baby is," and defendant asked what the police were "doing with the information that we gave them at the house." Del Fava replied, "[t]hey are looking right now," and said "[e]verybody just wants to know where the baby is." Defendant said, "[s]he's in the water and I put her there around three, four o'clock." Del Fava again said he could not talk to defendant about this if defendant did not "make a conscious decision whether [he was] waiving his rights." Defendant said "no," and Del Fava said that if he would not waive his rights, he was "not going to ask [him] any more questions." Defendant then stated, "[t]he information that I gave you at the house was correct." There was no further interrogation.

About three and one-half hours later, Detective Glenn Garrels of the New Jersey State Police Major Crimes Unit and Detective Kevin Coleman of the East Orange Police Department commenced another interview of defendant. Garrels again read defendant his Miranda rights and defendant verbally stated that he understood each of his rights. Garrels asked defendant to provide more detail about where he had dropped Z.A. Defendant stated he pulled over near the middle of the bridge, reached behind him to pick the baby up, wrapped a blue blanket around her, lowered the van's window and threw Z.A. off the bridge. Garrels asked if defendant could explain "what precipitated this, . . . what happened prior"; defendant responded, "I don't want to talk about it." Garrels immediately concluded the interrogation.

The judge determined Romeo appropriately advised defendant of his rights, defendant fully understood and waived those rights. The judge concluded the presence and number of police officers at defendant's parents' home did not intimidate defendant. The judge also found that Del Fava continuously advised defendant that he would not take a statement unless defendant affirmatively waived his rights, and, in light of defendant's refusal to do so, Del Fava "scrupulously honored" defendant's choice. Finally, the judge concluded defendant knowingly and voluntarily waived his rights before speaking to Garrels, and there was no evidence that defendant had been "deprived of facilities, threatened, coerced . . . [or] intimidated in any way, shape or form." Garrels immediately concluded the interrogation when defendant indicated he no longer wanted to speak. The judge denied defendant's motion to suppress the three statements made to police. At trial, Del Fava and Garrels testified essentially as they did at the hearing.5

Defendant contends the statements he made to police while at his parents' house were the product of an "oppressively coercive environment," with his imam and several police officers present. He also argues Del Fava did not scrupulously honor his right to remain silent at police headquarters, and the presence of Imam Bethea during the interview exerted a "coercive power" upon him. Lastly, defendant contends the third statement to Garrels was the "fruit of the poisonous tree." We reject these arguments without extensive discussion.

"Appellate courts reviewing a grant or denial of a motion to suppress must defer to the factual findings of the trial court so long as those findings are supported by sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262, (2015) (citing State v. Gamble, 218 N.J. 412, 424 (2014); State v. Elders, 192 N.J. 224, 243 (2007)). However, we do not defer to the trial court's legal conclusions, which we review de novo. Id. at 263

Custodial interrogation triggers the obligation to provide Miranda warnings, and custodial interrogation "may occur in a suspect's home or a public place other than a police station." Id. at 266 (quoting State v. P.Z., 152 N.J. 86, 103 (1997)). Even when Miranda warnings are properly administered, "the State bears the burden of proving beyond a reasonable doubt that a defendant's confession is voluntary and not resultant from actions by law enforcement officers that overbore the will of a defendant." Id. at 267 (citing State v. Hreha, 217 N.J. 368, 383 (2014); State v. Galloway, 133 N.J. 631, 654 (1993)). "Determining whether the State has met that burden requires a court to assess 'the totality of the circumstances, including both the characteristics of the defendant and the nature of the interrogation.'" Hreha, supra, 217 N.J. at 383 (quoting Galloway, supra, 133 N.J. at 654).

We find no reason to upset the judge's factual findings following the N.J.R.E. 104(c) hearing. There was no evidence that the presence of Imam Bethea or several police officers overbore defendant's free will while at his parents' home. The record clearly reveals defendant exercised his right to remain silent during Del Fava's interview, and the detective scrupulously honored defendant's choice. There was no evidence that Imam Bethea's presence at police headquarters inhibited defendant's ability to understand his rights. It follows that the statement defendant made to Garrels was admissible, having been made after defendant voluntarily waived his Miranda rights.

III.

Defendant moved pre-trial to suppress statements he made to Bethea, arguing they were privileged pursuant to N.J.R.E. 511, the cleric-penitent privilege. Defense counsel indicated that, after consultation with defendant, he wished to proceed without calling Imam Bethea as a witness at the hearing. As a result, the judge made his ruling based upon proffers.6

The judge concluded neither Bethea nor defendant expected their conversation would remain confidential, since both soon repeated the content of their discussion to outside parties. The judge also found defendant had not spoken to Bethea as a spiritual advisor, but rather had sought "secular guidance." As a result, the judge ruled the State could introduce defendant's statements to Bethea at trial.

"As a general rule, we construe testimonial privileges narrowly because they prevent the trier of fact from hearing relevant evidence and thereby 'undermine the search for truth in the administration of justice.'" State v. J.G., 201 N.J. 369, 383 (2010) (quoting State v. Williams, 184 N.J. 432, 444 (2005)). The party asserting a privilege has the burden of demonstrating it applies. Horon Holding Corp. v. McKenzie, 341 N.J. Super. 117, 125 (App. Div. 2001).

N.J.R.E. 511 provides: "Any communication made in confidence to a cleric in the cleric's professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged." The privilege extends to "communications made in confidence between and among the cleric and individuals . . . families or groups in the exercise of the cleric's professional or spiritual counseling role." Ibid.

"[T]hree elements must be present for the privilege to apply; a person's communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor." State v. Cary, 331 N.J. Super. 236, 241 (App. Div. 2000). There is no debate that Imam Bethea was a cleric, as defined by N.J.R.E. 511. As to the first prong, the test is whether "an objective penitent in [defendant's] position could reasonably have thought that the communication would remain confidential." J.G., supra, 201 N.J. at 388.

We agree with the judge that defendant had no expectation that his communication to Bethea would remain "secret." Id. at 385. Rather, Bethea immediately conveyed the gist of the conversation to defendant's parents and drove defendant to their home, where defendant's father called the police. There is no evidence that defendant resisted any of these actions. Even if disclosures made to defendant's mother and father as family members might fall within the ambit of N.J.R.E. 511, defendant repeated the disclosure he made to Bethea to Detective Romeo, and did so with the intention that Romeo act on the information he provided.

We also agree with the judge that defendant was not seeking professional, spiritual advice from Bethea. Unlike the defendants in Cary and J.G., defendant did not seek absolution from the imam or engage in prayer. He went to Bethea "for support and help in a time of great trouble," rather than to seek spiritual guidance. In re Murtha, 115 N.J. Super. 380, 388 (App. Div.), certif. denied, 59 N.J. 239 (1971). We find no reason to reverse defendant's convictions on this ground.

IV.

Defendant next contends the prosecutor's cross-examination and summation infringed upon defendant's exercise of his right to remain silent. The issue arose as follows.

While cross-examining defendant, the prosecutor highlighted that, prior to testifying at trial, defendant never told anyone that his daughter was injured in a fall at L.B.'s apartment and was already dead when he threw her from the Driscoll Bridge. Defense counsel did not object when the cross-examination focused on defendant's statements to Bethea and his parents, or those made to V.B.

However, counsel objected when the prosecutor asked about defendant's failure to disclose this version of events to police during any of the three interviews. The judge overruled any objection, noting differences between defendant's trial testimony and his statements to police were "fair fodder for cross-examination."

During summation, the prosecutor commented that when defendant spoke to police, he "at no time [said] that the baby was dead." Defense counsel objected, but the judge deferred ruling. The prosecutor continued by saying "common sense" suggested defendant would have told his imam, parents or police "if there was something that happened" before defendant threw Z.A. from the bridge. The prosecutor repeated that defendant never told the story he told at trial to anyone else, despite being given "every opportunity."

Following the summation, the judge ruled on defendant's objection. He concluded the prosecutor had not commented on defendant's exercise of his right to remain silent, but rather suggested only that defendant's trial testimony was "recently created." Defendant renewed the argument when he moved post-verdict for a judgment of acquittal or for a new trial. In denying the motion, the judge concluded "it's not infringement on the defendant's right to remain silent for the State to point out" differences between statements made to police and defendant's trial testimony.

Before us, defendant acknowledges that the State may highlight for the jury, through cross-examination or in summation, actual inconsistencies between pre-trial statements made to law enforcement and defendant's trial testimony. State v. Tucker, 190 N.J. 183, 185 (2007). However, defendant argues that although he provided certain information to police, he exercised his rights and refused to provide other information. Therefore, the prosecutor's comments on what defendant failed to say were comments on his silence. See, e.g., State v. Muhammad, 182 N.J. 551, 569 (2005) ("Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody.").

Since argument before us, the Court decided State v. Kucinski, ___ N.J. ___ (2017), which we think wholly disposes of defendant's argument. In Kucinski, police arrested the defendant in connection with the death of his brother. Id. at ___ (slip op. at 5). The defendant waived his Miranda rights and agreed to speak with police. Id. at ___ (slip op. at 6). The defendant's answers were evasive, and he ultimately indicated a desire to speak to an attorney, at which point the interrogation stopped. Id. at ___ (slip op at 6-9).

During his trial testimony, the defendant claimed he acted in self-defense. Id. at ___ (slip op. at 10-11). The prosecutor's cross-examination focused on the defendant's failure to provide any details about his claim of self-defense to police. Id. at ___ (slip op. at 12-14). The trial court gave a limiting instruction to the jury, and the defendant was convicted of the lesser-included charge of passion/provocation manslaughter. Id. at ___ (slip op. at 14-15).

We reversed the defendant's conviction, concluding the "defendant invoked his right to remain silent by telling the police that he did not want to talk about certain subjects and answer certain questions." Id. at ___ (slip op. at 16). The Court disagreed, and initially concluded that the defendant had waived his right to remain silent before providing police with his statement. Id. at ___ (slip op. at 27). The Court then held "[b]ecause . . . [the] defendant waived his right to remain silent, cross-examination regarding facts to which he testified at trial, but omitted in his statement to police, was proper." Id. at ___ (slip op. at 29) (citing United States v. Fambro, 526 F.3d 836, 842 (5th Cir.), cert. denied, 555 U.S. 1050, 129 S. Ct. 625, 172 L. Ed. 2d 617 (2008)).

In this case, defendant voluntarily waived his rights and spoke to police on three occasions, albeit in each instance, he evaded answering certain questions and ultimately exercised his right to remain silent. Police stopped interrogating defendant whenever he invoked his right to remain silent. However, as the Court made clear in Kucinski, the State may highlight inconsistencies between defendant's trial testimony and what he "omitted in his statement to police." Id. at ___ (slip op. at 29). We find no basis to reverse defendant's conviction.

V.

In Points IV and V, defendant challenges his conviction for kidnapping. N.J.S.A. 2C:13-1(b) provides that a person is guilty of kidnapping

if he unlawfully removes another from his place of residence . . . with any of the following purposes

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on or to terrorize the victim or another;

(3) To interfere with the performance of any governmental or political function; or

(4) To permanently deprive a parent, guardian or other lawful custodian of custody of the victim.

N.J.S.A. 2C:13-1(d) states that a removal of a person is "unlawful" within the meaning of the statute

if it is accomplished by force, threat, or deception, or, in the case of a person who is under the age of 14 or is incompetent, if it is accomplished without the consent of a parent, guardian, or other person responsible for general supervision of his welfare.

Relying on State v. Froland, 193 N.J. 186 (2007), defendant first argues his pre-trial motion to dismiss the kidnapping count should have been granted because he was Z.A.'s parent. The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). In Froland, the court clearly stated that removal of a child from his or her home is unlawful "in two instances if it is effectuated by 'force, threat or deception' or if it is done without the 'consent of a parent, guardian or other person responsible for general supervision of [the child's] welfare.'" Id. at 195 (alteration in original) (quoting N.J.S.A. 2C:13-1(d)). Before the grand jury, the State established defendant removed Z.A. from L.B.'s home by force.

Defendant also argues we should reverse the kidnapping conviction because of errors in the judge's charge. During the charge conference, defense counsel urged the judge not to provide that portion of the model jury charge that defines the unlawful removal of a child under the age of fourteen, because defendant was Z.A.'s parent. The judge agreed.

He told the jury that in order to find defendant guilty of kidnapping, it must find

First, the defendant unlawfully removed [Z.A.] from her place of residence and the removal or confinement was for the purpose to aid, facilitate the commission of any crime or flight thereafter. Or B, to inflict bodily injury on or terrorize the victim or another. Or C, to permanently deprive a parent or guardian or other lawful custodian of custody of the victim.

The judge failed to provide that portion of the model charge defining "unlawful removal," but told the jury it must find the removal was for a "specific purpose," before defining purposeful conduct.

Because the judge did not complete the charge in one day, he provided further instructions on the next day of trial. The judge again defined kidnapping but this time included the definition of unlawful removal as one "accomplished by force, threat or deception." The judge also told the jury that it was alleged defendant removed Z.A. "to cause the death, the murder."

Defendant contends the judge should have informed the jury of the "specific contemporaneous purpose" for Z.A.'s removal. Because there was no objection to the charge, we review for plain error. The Court has said that

[i]n the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result."

[State v. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491 (1994)). We find no error. The evidence fully supported a conclusion that shortly after defendant forcibly took the child from her grandmother, he threw her from the Driscoll Bridge, i.e., that his purpose was to "facilitate" a homicide or "inflict bodily injury." N.J.S.A. 2C:13-1(b).

Defendant also argues that despite defense counsel's urging, the judge should not have omitted that portion of the model jury charge defining "unlawful removal" of a child under the age of fourteen. Any error now claimed was invited. State v. A.R., 213 N.J. 542, 561-62 (2013). Moreover, we agree with the judge that the instruction was inappropriate.

VI.

In Point VI, defendant argues the State failed to prove his guilt beyond a reasonable doubt, and the judge should have granted his motion for judgment of acquittal or a new trial. This, and the substantive arguments defendant raises in his pro se supplemental brief, lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). To the extent defendant raises arguments of trial counsel's ineffective assistance in his pro se submission, they are preserved pending a request for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992).

Finally, we consider defendant's argument that his sentence is excessive. The judge found aggravating factors one (the offenses were committed in "an especially heinous, cruel, or depraved manner"); two (the gravity and seriousness of harm including that the victim was "particularly vulnerable or incapable of resistance due to . . . extreme youth"); three (defendant was at risk to reoffend); six ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and nine (the need for deterrence). N.J.S.A. 2C:44-1(a)(1), (2), (3), (6) and (9). The judge also found aggravating factor twelve, the offense was committed "against a person the defendant knew or should have known was 60 years of age or older," as to the two assaults against L.B. N.J.S.A. 2C:44-1(a)(12).

At defendant's request, the judge considered mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (the lack of prior delinquency or criminal activity), even though defendant had prior juvenile adjudications of delinquency. He rejected consideration of other mitigating factors urged by defense counsel.

Before us, defendant contends the judge's finding of both aggravating factor six and mitigating factor seven was contradictory, and the judge should have found the mitigating factors urged at sentencing.

"Appellate review of sentencing is deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). We assess whether the aggravating and mitigating factors "were based upon competent credible evidence in the record." State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting Bienek, supra, 200 N.J. at 608). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).

In this case, we find no basis to disturb the judge's exercise of his broad discretion.

Affirmed.

1 The jury acquitted defendant of the attempted murder of L.B.

2 We have not included the sub-points in defendant's brief and pro se supplemental brief.

3 193 N.J. 186 (2007).

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

5 Romeo had suffered a heart attack in the interim and did not testify at trial.

6 We therefore reject any argument advanced in defendant's brief that Bethea's trial testimony has relevance to the decision made by the judge in advance of trial. Although both the cleric and the penitent possess the privilege, N.J.R.E. 511, the record fails to reveal that Bethea ever asserted the privilege.