STATE OF NEW JERSEY v. LUIS A. LORA

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3472-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

LUIS A. LORA,

Defendant-Appellant.
_____________________________

Argued December 2, 2020 – Decided December 29, 2020

Before Judges Fuentes, Whipple and Firko.

On appeal from the Superior Court of New Jersey,
Law Division, Somerset County, Indictment No. 14-
07-0465.

David J. Reich, Designated Counsel, argued the cause
for appellant (Joseph E. Krakora, Public Defender,
attorney; David J. Reich, on the briefs).

Paul H. Heinzel, Assistant Prosecutor, argued the
cause for respondent (Michael H. Robertson, Somerset
County Prosecutor, attorney; Paul H. Heinzel, of
counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

FIRKO, J.A.D.
Defendant Luis Lora appeals from a March 1, 2018 judgment of

conviction following a jury trial. He was convicted of third-degree theft of a

Mercedes Benz luxury sedan from a dealership's parking lot, second-degree

eluding, second-degree aggravated assault while eluding, and third-degree

aggravated assault upon a law enforcement officer. The trial court sentenced

defendant to nine years' imprisonment, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2, and ordered restitution in the amount of

$77,382.87. Defendant contends the trial court erred by prohibiting

introduction into evidence of the Attorney General's Guidelines on Vehicular

Pursuit of a Fleeing Suspect (the Guidelines) and declining to consider the

Guidelines as a defense on the element of causation. We disagree, affirm the

conviction, but reverse and vacate the award of restitution and remand for an

ability to pay hearing.

The following facts are derived from the record. On June 25, 2013, at

approximately 7:00 p.m., defendant and co-defendant visited Open Road

Mercedes Benz, a car dealership located on Route 22 in Bridgewater. A

salesperson, Gregory Fiorino, prepared an intake form called an "upsheet"

regarding the customer's contact information and vehicle interest. According

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to the upsheet, one of the men's names was Jose Acevedo, and he was

interested in purchasing a car having a V-8 engine.

Fiorino showed the men a new "S class" luxury sedan and two pre-

owned vehicles—a silver 2012 S550 with a price range of $75,000 to $80,000,

and a blue 2010 E550 with a sales price of $42,000. The keys for the two

vehicles were kept in a closet out of sight of the customers. Each vehicle had a

"smart key," which allows drivers to touch the key fob to the lock and unlock

the car. The key fob also had a "valet key," which can unlock the door and

start the engine if the smart key battery died.

A surveillance video showed Fiorino and the two men, one wearing a

black shirt and the other wearing a white shirt, looking at the two pre-owned

cars, sitting in the driver's seats, and returning the vehicles to their parking

spaces. The two men left without purchasing either vehicle.

Several hours later on June 26, 2013 at 1:52 a.m., the dealership's

motion-sensitive surveillance system was activated, notifying police of a

potential vehicle theft. The system showed the blue Mercedes with its

headlights on at 1:53 a.m., and the men removing a flag from the window, used

by the dealership to identify pre-owned vehicles. At 1:54 a.m., the video

revealed the silver Mercedes with its headlights on. The man wearing the

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white shirt drove off with the blue Mercedes, and the man wearing the black

shirt drove off in the silver Mercedes.

The prior evening when the men were at the dealership, they performed

a "key swap," meaning they gave the dealership back "dummy keys," identical

to the actual set, and retained the real keys. The dealership had no way of

knowing the real keys were missing without attempting to start the vehicles

with the "dummy" pair. The dealership's general manager called the ploy

"unfortunately . . . very common."

At 1:54 a.m., Bridgewater Township Patrol Sergeant Michael Maxwell

responded to the dispatch call advising of the theft. He drove down Route 22,

passed the dealership, and proceeded to take the onramp for Route 287 South,

when he observed the two Mercedes vehicles matching the description.

Maxwell drove behind the blue Mercedes, activated his emergency lights, and

attempted to effectuate a motor vehicle stop. Almost immediately, the driver

of the blue Mercedes pulled over to the shoulder lane. The officer observed

the driver was dark-skinned, wearing a black baseball cap and a white shirt.

As Maxwell approached the driver's door, the driver shifted the car into drive

and sped away. Maxwell radioed other units to advise them of what had

occurred while quickly returning to his vehicle.

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Another Bridgewater Township patrol officer, Brian Schubert, received

the same dispatch call regarding the two stolen Mercedes and responded to the

incident simultaneously. Because Maxwell was pursuing the blue Mercedes,

Schubert radioed that he would drive ahead to track the silver one. Schubert

passed by Maxwell's vehicle on Route 298 South as he was pulling the blue

Mercedes over.

Schubert was only about a quarter mile past where Maxwell had pulled

the blue vehicle over when he was advised on his radio that the driver of the

blue Mercedes had fled. Schubert chose to abandon his pursuit of the silver

car and instead slowed down to wait for the blue Mercedes to effectuate a stop

of that vehicle instead. Schubert noticed the blue car approaching at a "high

rate of speed." He moved his car from the center of the highway to the left,

and observed the approaching car move in the same direction. Schubert

responded by moving his car to the right, which was also mirrored by the blue

Mercedes.

As the vehicle moved closer, Schubert moved to the right again and the

vehicle followed, this time making impact with the police car in front of it.

Schubert testified that he believed the Mercedes attempted to move to the left

either right before or simultaneously upon making impact with his vehicle. A

motor vehicle recording (MVR) on Schubert's police vehicle captured the

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accident. During summation, defense counsel characterized the same set of

facts as the officer's vehicle repeatedly moving in front of the blue Mercedes

to prevent it from passing. He then claimed the police car attempted to "hip

check" and stop the Mercedes, causing the car to hit him.

Another patrol officer, Joseph Greco, was following behind Schubert

when the collision occurred. Greco never lost sight of the blue Mercedes and

watched as it approached Schubert's police car. According to Greco's

testimony, the blue Mercedes was driving "recklessly" and had been

mimicking Schubert's movements before the collision.

The front of the Mercedes came into contact with the passenger side rear

bumper of Schubert's police car. The police car spun counterclockwise, slid

across three left lanes of the highway into the center median, and eventually

landed on the southside of the highway facing north. The Mercedes was also

stopped near the median, with heavy damage to the front-end of the vehicle.

Schubert was able to exit his vehicle and assist the other officers with

apprehending the driver of the Mercedes. This tactical procedure consisted of

Schubert and the other officers using Maxwell's police vehicle, which had

since arrived at the scene of the accident, as a shield to slowly approach the

stolen car with their weapons drawn while giving instructions to the driver to

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safely exit the vehicle. However, the Mercedes was unoccupied by the time

the officers approached it.

A few minutes later, Schubert advised Maxwell that he felt pain in his

lower back and neck. The rescue squad arrived shortly thereafter and

transported him to the hospital. While he was at the hospital, Schubert

experienced increased muscle spasms and tightness in his lower back, as well

as tightness and restricted movement in his neck.

At the scene of the collision, Maxwell instructed the other officers to

search the area for the driver of the Mercedes. Maxwell also requested a

helicopter, K9 units, and the county accident reconstruction team for

assistance. A canvass of the area was not fruitful, but the officers recovered

the driver's black baseball cap, towel, and cell phone that were left inside the

vehicle.

The cell phone was brought to the New Jersey Regional Computer

Forensics Lab and was searched pursuant to a communications data warrant.

A search of the cell phone revealed a Facebook page belonging to "Lenny"

Lora and his date of birth. Motor Vehicle Commission records contained a

photograph of an individual named Luis Lora with the same birthdate. A

buccal swab taken from defendant on February 28, 2014 matched the DNA on

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the air bag of the stolen vehicle, and the baseball cap found in the car.

Defendant was taken into custody on July 14, 2014.

Defendant was charged with third-degree theft of an automobile,

N.J.S.A. 2C:20-3(a) (count one); second-degree eluding, N.J.S.A. 2C:29-2(b)

(count two); second-degree aggravated assault while eluding, N.J.S.A. 2C:12-

1(b)(6) (count three); and third-degree aggravated assault upon a law

enforcement officer, N.J.S.A. 2C:12-1(b)(5) (count four).

On September 28, 2017, the State moved in limine to bar defense

counsel from introducing evidence regarding the Guidelines and any argument

that the officers contributed to the collision. The trial court heard oral

argument on the motion and issued a written opinion the following day. The

court ruled that the Guidelines would not be allowed into evidence and

precluded defense counsel from arguing that the officer's deviation from the

Guidelines impacted the causation element of N.J.S.A. 2C:12-1(b)(6), a strict

liability offense. However, the court permitted defense counsel to use the

Guidelines for impeachment purposes and to argue that the officers' conduct

and any deviation from the Guidelines impacted the State's ability to meet its

burden of proof on the mens rea element of N.J.S.A. 2C:12-1(b)(5)(a). A

memorializing order was entered.

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Trial was conducted before a jury in September and October 2017. The

jury found defendant guilty on all counts. On October 25, 2017, defendant

moved for a new trial. The court heard oral argument on the motion on

January 25, 2018, denied defendant's motion, and entered a memorializing

order that day.

On February 22, 2018, the court sentenced defendant to nine years'

imprisonment on count two; a concurrent nine-year prison term with an 85%

percent parole disqualifier and three years of parole supervision, pursuant to

NERA on count three; and concurrent five-year prison terms on counts one and

four. The court also ordered $77,382.87 in restitution and a one -year driver's

license suspension. A judgment of conviction was entered on March 1, 2018.

This appeal followed.

In his counseled brief, defendant presents the following arguments:

POINT I: [DEFENDANT] MUST BE GRANTED A
NEW TRIAL IN VIEW OF THE PREJUDICE HE
SUSTAINED AS A RESULT OF THE COURT'S
LEGALLY ERRONEOUS PROHIBITION OF THE
USE OF EVIDENCE CONCERNING OFFICER
SCHUBERT'S VIOLATION OF THE ATTORNEY
GENERAL'S GUIDELINES REGARDING MOTOR
VEHICLE PURSUIT.

POINT II: A NEW TRIAL IS REQUIRED IN VIEW
OF ERRONEOUS JURY INSTRUCTIONS
RELATING TO THE CAUSATION COMPONENT
OF THE AGGRAVATED ASSAULT WHILE

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ELUDING CHARGE AND THE ATTORNEY
GENERAL'S GUIDELINES.

POINT III: A REVERSAL IS WARRANTED IN
VIEW OF THE PROSECUTOR'S IMPROPER
REMARKS DURING HIS SUMMATION (Not raised
below).

POINT IV: THE TRIAL COURT ERRED IN
ORDERING RESTITUTION WITHOUT
CONDUCTING A HEARING CONCERNING
EITHER THE AMOUNT OF RESTITUTION
PROPERLY OWING OR [DEFENDANT'S]
ABILITY TO PAY.

In a supplemental pro se brief, defendant asserts the following

arguments:

POINT I: THE TRIAL COURT'S FAILURE TO
GIVE ADEQUATE JURY CHARGE(S)/
INSTRUCTIONS DEPRIVED APPELLANT DUE
PROCESS AND A FAIR TRIAL [U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10.]
(Not raised below).

(a) FAILURE TO GIVE NON-
PRODUCTION OF WITNESS/
ADVERSE INFERENCE
INSTRUCTION A/K/A CLAWANS
CHARGE.

(b) FAILURE TO GIVE ADEQUATE
"INTERESTED WITNESS"
CHARGE

(i) STATE'S [BOLSTERING]
POLICE CREDIBILITY

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(c) FAILURE TO CLARIFY
"CAUSATION" CHARGE

(d) FAILURE TO CHARGE ALIBI
AND MISIDENTIFICATION
DEFENSE CHARGE

POINT II: APPELLANT'S CONVICTIONS ARE
BASED ON INSUFFICIENT EVIDENCE AND
THEREFORE MUST BE REVERSED [U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10;
N.J.S.A. 2C:1-13.] (Partially Raised Below).

(A) THEFT OF MOVABLE
PROPERTY

(B) AGGRAVATED ASSAULT UPON
LAW ENFORCEMENT OFFICER
N.J.S.A. 2C:12-1(b)(6) 2C:12-
1(b)(5)

POINT III: TRIAL COURT UNDULY
ENCROACHED UPON APPELLANT'S EXERCISE
OF HIS RIGHT TO TESTIFY ON HIS OWN
BEHALF [U.S. CONST. AMENDS. V, VI, XIV; N.J.
CONST. ART. I, ¶¶ 1. 10.] (Not raised below).

POINT IV: THE TRIAL COURT UNDULY
INTERFERED WITH DEFENSE COUNSELOR'S
REPRESENTATION WHEN THE COURT
REFUSED TO ALLOW JURORS THE
OPPORTUNITY TO FULLY CONSIDER THE
ATTORNEY GENERAL'S GUIDELINES FOR
MOTOR VEHICLE PURSUITS [U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10.]
(Partially raised below).

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POINT V: THE SENTENCING COURT FAILED TO
FOLLOW AND APPLY THE APPROPRIATE
SENTENCING GUIDELINES WHEN ANALYZING,
APPLYING AND BALANCING AGGRAVATING
AND MITIGATING FACTORS, THUS VIOLATING
APPELLANT'S DUE PROCESS RIGHTS [U.S.
CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1.]
(Partially raised below).

(A) THE SENTENCING COURT
INFLATED DEFENDANT'S
CRIMINAL HISTORY WHEN
ASSESSING AGGRAVATING
AND MITIGATING FACTORS
PURSUANT TO [ N.J.S.A.] 2C:44-
1(a) [AND] (b) BY DOUBLE
COUNTING INDIVIDUAL
COUNTS OF THE INDICTMENT

(B) DEFENDANT DID NOT
CONTEMPLATE THAT HIS
CONDUCT WOULD CAUSE OR
THREATEN SERIOUS HARM
[ N.J.S.A.] 2C:44-1(b)(2)

(D) DEFENDANT HAS NO
CRIMINAL HISTORY OR
MINIMUM HISTORY OF
CRIMINAL ACTIVITY [N.J.S.A.]
2C:44-1(b)(7)

(E) DEFENDANT'S CONDUCT WAS
THE RESULT OF
CIRCUMSTANCES UNLIKELY

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TO REOCCUR [ N.J.S.A.] 2C:44-
1(b)(8)

(F) RISK DEFENDANT WILL
COMMIT ANOTHER OFFENSE
[ N.J.S.A.] 2C:44-1(A)(3)

POINT VI: THE SENTENCING COURT FAILED TO
MERGE AGGRAVATED ASSAULT
CONVICTIONS DENIED APPELLANT DUE
PROCESS [U.S. CONST. AMEND XIV; N.J.
CONST. ART. I, ¶ 1] (Not raised below).

POINT VII: CUMULATIVE EFFECT OF ALL
ERRORS DENIED APPELLANT HIS RIGHT TO A
FAIR TRIAL AND DUE PROCESS [U.S. CONST.
AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10]
(Not raised below).

II.

We note defendant raises several arguments in his counsel and pro se

briefs for the first time on appeal. As the Supreme Court explained,

"[a]ppellate review is not limitless." State v. Robinson, 200 N.J. 1, 19 (2009).

It is well-established that "our Rules envision the making of contemporaneous

objections as the principal and almost exclusive means of preserving an issue

for appeal." Id. at 20 (citing R. 1:7-2).

In addition, defendant did not object at trial to the prosecutor's alleged

improper remarks during his summation; the jury charge; or raise

constitutional challenges. Therefore, we consider these issues under the plain

error standard, that is whether the error was "of such a nature as to have been

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clearly capable of producing an unjust result . . . ." R. 2:10-2. Not any

possibility of an unjust result will suffice as plain error, only one "sufficient to

raise a reasonable doubt as to whether the error led the jury to a result it

otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

Applying these legal principles, none of the alleged errors not raised before the

trial court were clearly capable of producing an unjust result.

III.

We first consider whether the trial court erred in barring the use of the

Guidelines as evidence related to causation in the strict liability offense

codified in N.J.S.A. 2C:12-1(b)(6). Specifically, defendant claims Schubert's

purported violation of the Guidelines was a vital component to his defense in

support of his theory that the officer was out-of-control and was the cause in

fact of the collision. Defendant asserts that the court ignored the plain

language of N.J.S.A. 2C:12-1(b)(6); erroneously compared the analysis to the

eluding statute, N.J.S.A. 2C:29-2(b); erroneously predicated his ruling on

irrelevant case law; failed to consider the text of the model jury charges; and

incorrectly treated N.J.S.A. 2C:12-1(b)(6) and N.J.S.A. 2C:12-1(b)(5)(a) as

dissimilar.

Defendant contends there is a substantial likelihood the errors impacted

the ultimate outcome of the case. The trial court granted the State's motion in

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limine, in part, and prevented defendant from introducing the Guidelines into

evidence as a means of defense to the two aggravated assault charges and

precluded him from arguing that the officers contributed to the collision. The

court also denied the State's motion in limine, in part, focusing on the different

mens rea requirements of the respective statutes at issue.

The Guidelines authorize a pursuit if any officer reasonably believes a

suspect committed a second- or first-degree offense, or certain other specified

offenses, including automobile theft, or if the officer reasonably believed the

suspect posed an immediate threat to public safety. Before engaging in the

pursuit, the pursuing and supervising officers must also consider the risk to the

public, the danger, and the pursuing officer's characteristics.

Once the decision to pursue is made, the Guidelines require officers to

activate their emergency sirens and signals and continually apprise

communications officers of "pertinent information" including their speed. The

Guidelines require that supervising officers "ensure, for the duration of the

pursuit, that this policy and agency procedures are followed by all officers."

Revision to the New Jersey Police Vehicular Pursuit Policy issued by (former)

Attorney General Anne Milgram to the Superintendent of the New Jersey State

Police, All County Prosecutors, and All Law Enforcement Chief Executives on

Sept. 17, 2009, § V(E). The supervisor must "decide as quickly as possible

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whether or not the pursuit should continue." Id. at § V. The supervisor must

be satisfied that the suspect has committed an enumerated offense or

reasonably believes the violator poses an immediate threat to public or officer

safety. Id. at § V(A). The pursuit must be terminated if the supervisor

concludes "the danger to the pursuing officers or the public outweighs the

necessity for immediate apprehension of the violator." Id. at § V(B).

A trial court's evidential ruling is "subject to limited appellate scrutiny."

State v. Buckley, 216 N.J. 249, 260 (2013) (quoting State v. Buda, 195 N.J.
278, 294 (2008)) (internal quotation marks omitted). It should be upheld

"absent a showing of an abuse of discretion" or "a clear error of judgment."

State v. Perry, 225 N.J. 222, 233 (2016) (quoting State v. Brown, 170 N.J. 138,

147 (2001)) (internal quotation marks omitted). A reviewing court applying

this standard "should not substitute its own judgment for that of the trial court,

unless the trial court's ruling was so wide of the mark that a manifest denial of

justice resulted." Ibid. (citations and internal quotation marks omitted).

However, any "interpretation of the law and the legal consequences that flow

from established facts are not entitled to any special deference" and are

reviewed de novo. Buckley, 216 N.J. at 260-61 (citations omitted).

Under N.J.S.A. 2C:12-1(b)(6), a person is guilty of aggravated assault if

he "[c]auses bodily injury to another person while fleeing or attempting to

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elude a law enforcement officer . . . or while operating a motor vehicle . . . .

Notwithstanding any other provision to the contrary, a person shall be strictly

liable for a violation of this paragraph . . . ." In its motion, the State contended

that the aggravated assault while eluding charge is a strict liability crime, so

whether the officers deviated from the Guidelines or were otherwise

contributorily responsible was irrelevant to the trial court's analysis.

Alternatively, the defense argued N.J.S.A. 2C:12-1(b)(6) has a causation

element––whether defendant's actions in eluding arrest created the risk of

death or bodily injury––and that the Guidelines were relevant to whether the

officers were responsible for creating that risk and causing the injury.

In its statement of reasons, the trial court explained:

Regarding the issue of causation in the [a]ggravated
[a]ssault while eluding arrest charge under N.J.S.A.
[2C:12-1(b)(6)], the Guidelines['] probative value as
to whether [d]efendant's flight and attempts to elude
created a risk of death or bodily injury is limited and
the risk of confusing or misleading the jury outweighs
that probative value. A reasonable jury could confuse
deviation from the Guidelines with causation in
creating the risk outlined in the statute.

....

[T]he [c]ourt [finds] the probative value of the
Guidelines to be limited as it relates to the causation
element. The element of causation does not present
the issue of whether [d]efendant's conduct during the
flight and eluding created the risk of death or injury,
but rather whether the act of flight and eluding itself

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created a risk of the same. Whether or not the
officers' conduct in pursuing [d]efendant deviated
from the Guidelines does not aid the trier of fact in
reaching a conclusion on this causation element and
instead[,] presents a significant risk of confusing or
misleading the jury. The [c]ourt is precluding
[d]efendant from making the argument that deviation
from the Guidelines somehow impacts this element of
causation of [N.J.S.A. 2C:12-1(b)(6)], [d]efendant
may refer to the Guidelines during cross
[-]examination for the limited purpose of
impeachment.

Thus, the court granted the State's request as to N.J.S.A. 2C:12-1(b)(6) and

precluded defendant's use of the Guidelines or any argument in respect of the

officers' contributory conduct on the aggravated assault while eluding charge.

First, defendant argues the trial court ignored the plain language of the

statute, which requires a defendant cause bodily injury to another person in

order to be held responsible, and that the court mistakenly emphasized

N.J.S.A. 2C:12-1(b)(6) was a strict liability offense. Instead, defendant

contends Schubert's own actions cutting off the defendant while he was

driving, in violation of the Guidelines, resulted in a self-inflicted injury to the

officer and could not be attributed to the but-for actions of defendant,

regardless of the mens rea required. Had the Guidelines been admitted as

evidence, defendant claims the jury would have concluded Schubert's actions

while operating his police car clearly violated the Guidelines and induced his

own injury. Relatedly, defendant challenges the trial court's use of the

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language from the eluding statute, N.J.S.A. 2C:29-2(b), in its analysis granting

that portion of the State's motion.

The full text of N.J.S.A. 2C:12-1(b)(6), aggravated assault while

eluding, includes:

Aggravated assault. A person is guilty of aggravated
assault if the person:

Causes bodily injury to another person while fleeing
or attempting to elude a law enforcement officer in
violation of subsection b. of [ N.J.S.A] 2C:29-2 or
while operating a motor vehicle in violation of
subsection c. of [ N.J.S.A.] 2C:20-10.
Notwithstanding any other provision of law to the
contrary, a person shall be strictly liable for a
violation of this paragraph upon proof of a violation of
subsection b. of [ N.J.S.A.] 2C:29-2 or while operating
a motor vehicle in violation of subsection c. of
[ N.J.S.A.] 2C:20-10 which resulted in bodily injury to
another person . . . .

The eluding statute, N.J.S.A. 2C:29-2(b), incorporated by reference into

N.J.S.A. 2C:12-1(b)(6), mandates:

Any person, while operating a motor vehicle on any
street or highway in this State . . . who knowingly
flees or attempts to elude any police or law
enforcement officer after having received any signal
from such officer to bring the vehicle . . . to a full stop
commits a crime of the third degree; except that, a
person is guilty of a crime of the second degree if the
flight or attempt to elude creates a risk of death or
injury to any person.

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Considered together, an individual who eludes a law enforcement officer

in a way that creates a risk of injury or death, as described in the eluding

statute, who actually does cause an injury to another person, is guilty under the

aggravated assault while eluding statute. Having reviewed the record, to the

extent the trial court referred to the eluding statute analyzing the aggravated

assault while eluding statute, we discern no reversible error. As long as a

defendant knowingly flees or attempts to elude a law enforcement officer, and

the act of doing so "creates a risk of death or injury to any person," the

defendant is guilty of second-degree eluding. State v. Thomas, 187 N.J. 119,

137 (2006). There is no mens rea element attributable to the secondary portion

of that statute. Ibid. Moreover, if the defendant's act of eluding causes a

bodily injury to another, defendant is guilty of aggravated assault while

eluding. N.J.S.A. 2C:12-1(b)(6).

Likewise, there is no mens rea element in the aggravated assault while

eluding statute, and therefore, no requirement a defendant intend to cause

bodily injury to another. See N.J.S.A. 2C:12-1(b)(6). Therefore, a defendant

need not knowingly create a risk or purposely cause an injury to be found

guilty of aggravated assault while eluding if the defendant is found to have the

requisite culpability for fleeing or eluding the law enforcement officers under

the eluding statute. Thomas, 187 N.J. at 137.

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There can be no consideration of the aggravated assault while eluding

charge without an analysis of the eluding statute. To be found guilty of

aggravated assault while eluding, a defendant must: (1) knowingly flee or

attempt to elude a law enforcement officer after being signaled to stop; (2)

create a risk of bodily injury or death; and (3) cause bodily injury to another

while fleeing. See State v. Green, 318 N.J. Super. 361, 381 (App. Div. 1999)

(reversing the conviction for aggravated assault while eluding because the

judge failed to instruct on the charge entirely, or "at the very least, referr[ing]

to her prior instructions on eluding a police officer and bodily injury.").

Therefore, any reference the trial court made to N.J.S.A. 2C:29-2(b) or its

language was proper and necessary to its decision. We are satisfied the trial

court did not err in its approach to the N.J.S.A. 2C:12-1(b)(6) analysis.

Because it is enough for defendant to be found guilty of aggravated

assault while eluding if the State proves that he "knowingly fle[d] or

attempt[ed] to elude any police or law enforcement officer" and that an injury

to another occurred as a result, the trial court found the officer's actions would

not contribute to the statutory analysis and precluded defendant from using the

Guidelines to make the argument otherwise. The trial court did not abuse its

discretion in doing so.

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Aggravated assault while eluding is a strict liability offense. See

N.J.S.A. 2C:12-1(b)(6). To convict a defendant of this offense, the jury must

find the following two elements beyond a reasonable doubt: (1) defendant

caused bodily injury to another person; and (2) defendant did so while fleeing

or attempting to elude a law enforcement officer in violation of the statute

defining the eluding offense. According to the Criminal Code's section titled,

in part, Causal Relationship Between Conduct and Result, "[w]hen causing a

particular result is a material element of an offense for which absolute liability

is imposed by law, the element is not established unless the actual result is a

probable consequence of the actor's conduct." N.J.S.A. 2C:2-3(e). In the strict

liability offense codified in N.J.S.A. 2C:12-1(b)(6), whether the police officers

involved in the pursuit of an eluding individual adhere to the Attorney Ge neral

Guidelines is neither a relevant consideration nor an affirmative defense.

In the matter under review, the actual result––Schubert's injury––is not

"established" unless the injury was "the probable consequence" of defendant 's

actions. The trial court identified State v. Pantusco, 330 N.J. Super. 424 (App.

Div. 2000) as "analogous" to the case at hand. In Pantusco, the defendant was

charged with felony murder after killing an innocent motorist in an automobile

crash while fleeing from police. Id. at 428. In the context of felony murder,

also a strict liability crime, we articulated, "the fact that one or more police

A-3472-17T2
22
officers may have deviated from the Guidelines for a safe pursuit, or otherwise

proceeded unsafely through heavy traffic, cannot excuse defendant's conduct

or his statutory responsibility." Id. at 442. Because police deviation from

"preferred practice" is far from a "remote" possibility, we held that the

resulting fatal accident was not so unexpected or unusual as to make it unjust

to hold defendant responsible for the victim's death. Ibid.

The only actions able to break the causal link in strict liability crimes are

those that are so remote or unforeseeable as to forgive the defendant's

culpability. That a police officer would pursue a defendant recklessly driving

a stolen vehicle, in a manner that failed to comport with preferred police

behavior, is far from remote or unforeseeable. A police-related injury in the

pursuit of a criminal is a risk created by that criminal, and we should not allow

him to escape liability for his behavior. To hold otherwise would be

inconsistent with the statutory framework and sound case law.

Unquestionably, Schubert's injury was the direct consequence of defendant's

actions.

Because defendant eluded the police, creating a risk and resulting in

Schubert's injury, defendant violated the aggravated assault while eluding

statute, N.J.S.A. 2C:12-1(b)(6). Police deviation from preferred procedure or

mandated Guidelines is not a remote or unforeseeable intervening cause of the

A-3472-17T2
23
harm. Nothing Schubert did in his pursuit broke the chain of causation nor

provided defendant with a cognizable defense.

Given the trial court's weighing of the applicable statutes and case law, it

aptly concluded that "the probative value of the Guidelines [is] limited as it

relates to the causation element" because the issue of causation is not about

whether defendant created a risk of harm and caused an injury due to his own

conduct, but due to the act of fleeing itself. And, allowing the Guidelines in as

evidence would "not aid the trier of fact in reaching a conclusion on [the]

causation element and instead presents a significant risk of confusing or

misleading the jury." Under the circumstances, we agree with the trial court's

interpretation of the relevant statutes and case law in preemptively barring

defendant from introducing the Guidelines as evidence to the contrary.

Additionally, defendant claims the trial court ignored the language in the

model jury charge for N.J.S.A. 2C:12-1(b)(6), which includes language about

the statute's causation element. The causation language defendant refers to

mirrors the "probable consequence" language of N.J.S.A. 2C:2-3(e).

Defendant contends that if Schubert had not cut in front of the driver of the

Mercedes, the accident would not have occurred, making the incident too

remote or accidental hold defendant liable. Stated differently, defendant's

argument is predicated on the absurd proposition that the police officer, who

A-3472-17T2
24
was driving his marked police vehicle at a speed of less than fifty miles per

hour, should have yielded the right of way to defendant, who was attempting to

elude apprehension while driving a stolen car.

We are not persuaded by defendant's argument. As expressed above,

since a police-related injury in a pursuit that strays from preferred procedures

does not constitute unforeseeable conduct, the language contained in the model

jury instructions is not supportive of defendant's argument.

"Correct [jury] charges are essential for a fair trial," and therefore,

"erroneous instructions on material points are presumed to be reversible error."

State v. Martin, 119 N.J. at 15. A reviewing court "must evaluate a challenged

jury instruction in the context of the entire charge to determine whether the

challenged language was misleading or ambiguous . . . ." State v. Nelson, 173 N.J. 417, 447 (2002). Generally, an appellate court "will not reverse if an

erroneous jury instruction was incapable of producing an unjust result or

prejudicing substantial rights." Washington v. Perez, 219 N.J. 338, 351 (2014)

(citations and internal quotation marks omitted). However, the instruction will

constitute reversible error "where the jury outcome might have been different

had the jury been instructed correctly." Ibid. (citations omitted). We are

satisfied there was no error in the charge as given even though it did not use

the exact verbiage as the model jury charge.

A-3472-17T2
25
Lastly, defendant claims the court's refusal to allow the use of the

Guidelines as to the aggravated assault while eluding charge but allowing their

introduction on the other aggravated assault charge, underscores the error in

the trial court's analysis. Specifically, defendant challenges that the court

deemed the Guidelines "highly probative" in regard to N.J.S.A. 2C:12-

1(b)(5)(a), but not for N.J.S.A. 2C:12-1(b)(6). Defendant claims the

Guidelines are equally probative as to these related statutes.

N.J.S.A. 2C:12-1(b)(5)(a) charges that an individual is guilty of

aggravated assault if the person commits a simple assault as defined in

N.J.S.A. 2C:12-1(a) upon "[a]ny law enforcement officer acting in the

performance of the officer's duties while in uniform or exhibiting evidence of

authority or because of the officer's status as a law enforcement officer . . . ."

Under that statute, defendant must "knowingly" or "recklessly" cause bodily

injury to the law enforcement officer. See N.J.S.A. 2C:12-1(a).

According to the Code, "[w]hen the offense requires that the defendant

purposely or knowingly cause a particular result, the actual result must be

within the design or contemplation . . . of the actor, or, if not, the actual result

must involve the same kind of injury or harm as that designed or contemplated

and not be too remote, accidental . . . or dependent on another's volitio nal act

. . . ." N.J.S.A. 2C:2-3(b). Similarly, "[w]hen the offense requires that the

A-3472-17T2
26
defendant recklessly or criminally negligently cause a particular result, the

actual result must be within the risk of which the actor is aware, or, if not, the

actual result must involve the same kind of injury . . . as the probable result

and must not be too remote, accidental . . . or dependent on another's volitional

act . . . ." N.J.S.A. 2C:2-3(b).

Under this statute, as opposed to the aggravated assault while eluding

statute, the trial court found the Guidelines "highly probative as to the cause of

the bodily injuries resulting from the collision and [d]efendant's intent

regarding the same." In a Rule 403 analysis, which allows a court to exclude

relevant evidence "if its probative value is substantially outweighed" by the

risk of undue prejudice, confusion of the issues, or misleading the jury, the

trial court determined the officer's conduct before the collision causing the

bodily injury "[was] extremely relevant to whether [d]efendant acted

'knowingly', 'purposefully', or with 'reckless' intent or if [d]efendant's conduct

'caused' the resulting bodily injury" so as to contest the State's ability to prove

the mens rea element of N.J.S.A. 2C:12-1(b)(5)(a). However, the court found

the Guidelines would "not aid the trier of fact in reaching a conclusion on [the]

causation element [of N.J.S.A. 2C:12-1(b)(6)] and instead presents a

significant risk of confusing or misleading the jury."

A-3472-17T2
27
We are convinced the trial court did not abuse its discretion in

disallowing the Guidelines from being introduced into evidence as to the

aggravated assault while eluding charge, but not the aggravated assault of an

officer charge. Moreover, the court's decision was not "so wide of the mark

that a manifest denial of justice resulted." See Perry, 225 N.J. at 233. The

court based its ruling on the probative value of the evidence when compared to

its potential to confuse or mislead the jury.

Because defendant intended to use the Guidelines as evidence that

Schubert contributed to the cause of the accident, but the officer 's actions were

irrelevant to the statutory analysis of N.J.S.A. 2C:12-1(b)(6), the Guidelines

could not be probative of that issue and would only serve to confuse or mi slead

the jury. As long as the jury found that defendant knowingly eluded the

police, and that the eluding, regardless of defendant's intention or the officer's

actions, created a risk and caused an accident, no other foreseeable intervening

causes matter. Consequently, introducing the Guidelines into evidence to

speak to the officer's actions would serve no purpose.

However, because N.J.S.A. 2C:12-1(b)(5)(a) requires defendant

knowingly or recklessly cause bodily injury, defendant's actions are more

probative to that charge. If the jury considered the officer's actions in light of

the Guidelines and determined Schubert induced and caused the accident, the

A-3472-17T2
28
mens rea element of aggravated assault of a law enforcement officer would not

be met. Therefore, the trial court properly concluded that as to the aggravated

assault of an officer charge, the probative value outweighed any prejudice to

the introduction of the Guidelines as evidence.

We conclude the trial court was well within its discretion to allow the

Guidelines to be introduced as evidence as to the aggravated assault of a law

enforcement officer charge, which includes a mens rea element that makes

causation relevant, but not as to the aggravated assault while eluding charge, a

strict liability crime, not requiring a showing of criminal intent.

IV.

Next, defendant claims the trial court erred by failing to include portions

of the aggravated assault while eluding charge regarding causation in its jury

charge. Defendant also contends the court did not tailor the jury charge to

defendant's theory of the case and that the instructions as to the Guidelines

were confusing and unnecessary. In his pro se brief, defendant asserts that the

court failed to give other relevant charges, including those relating to the non -

production of a witness, interested witnesses, and a misidentification defense ,

warranting reversal and a new trial.

"Appropriate and proper charges to a jury are essential for a fair trial."

Green, 86 N.J. at 287. The court must "explain the controlling legal principles

A-3472-17T2
29
and the questions the jury is to decide." Martin, 119 N.J. at 15. Instructions

demand careful attention and "must provide a comprehensible explanation of

the questions that the jury must determine, including the law of the case

applicable to the facts that the jury may find." State v. Montalvo, 229 N.J.
300, 320 (2017) (citations and internal quotation marks omitted). Proper

instruction is so critical that "erroneous instructions on material points are

presumed to be reversible error." Martin, 119 N.J. at 15. Adequate charges

are particularly important where the State and the defendant offer contrast ing

theories of causation. Ibid.

Where a party requests a particular charge, "[t]he court should instruct

the jury with respect to [the request if it involves] essential and fundamental

issues and . . . deal[s] with substantially material points." Green, 86 N.J. at
290. Typically, a judge must "comply with requests for instructions that

correctly state the controlling legal principles in relation to the evidence, and

concern the material issues and points of the case." Ibid. (quoting State v.

Spruill, 16 N.J. 73, 81 (1954)). However, a court need not "utilize the

language of the request and none need be honored if the matter has otherwise

been covered . . . ." Ibid. (citing State v. Thompson, 59 N.J. 396, 411 (1971)).

Defendant first challenges the court's instructions as to the causation

element of the aggravated assault while eluding charge. Defendant claims that

A-3472-17T2
30
a pivotal issue in the case was the parties' competing causation claims. The

State claimed defendant caused the collision and resulting injury while

defendant argued Schubert caused the collision and injury. Defendant

contends that proper jury instructions would have given recognition and

context to both positions, but the charges in this case omitted elements

requiring the State to prove that Schubert's injury was a probable consequence

of defendant's actions. Because defendant requested a charge that would have

been proper and the trial court replaced it with an abbreviated version,

defendant demands a reversal. 1

The relevant portion of the model jury charge on N.J.S.A. 2C:12-1(b)(6)

reads:

In order for you to find the defendant guilty of this
crime the State must prove the following elements
beyond a reasonable doubt:

1. That defendant caused bodily injury to
another person; and

2. That defendant did so while fleeing or
attempting to elude a law enforcement
officer in violation of the statute defining
the eluding offense.

Bodily injury is defined as physical pain, illness or
any impairment of physical condition. In order to find

1
Defendant conceded that his proposed jury instruction was "virtually
identical" to the model jury charge for the statutory violation.

A-3472-17T2
31
that the defendant caused bodily injury to (victim),
you must find beyond a reasonable doubt, first, that
(victim) would not have been injured but for
defendant's conduct, and, second, that the bodily
injury was a probable consequence of the defendant’s
conduct. A probable consequence is one which is not
too remote, accidental in its occurrence or too
dependent on the conduct of another to have a just
bearing on defendant's liability or the gravity of his
offense.

I have already instructed you on the crime of eluding,
and you should apply those instructions here to
determine whether the State has proven beyond a
reasonable doubt that defendant was fleeing or
attempting to elude a law enforcement officer.

In conclusion, the two elements the State must prove
beyond a reasonable doubt are:

1. That defendant caused bodily injury to
another person; and

2. That defendant did so while fleeing or
attempting to elude a law enforcement
officer in violation of the statute defining
the eluding offense.

If you are satisfied that the State has proven both of
these elements beyond a reasonable doubt, then you
must find the defendant guilty of aggravated assault.
However, if you are not convinced that each of the
elements has been proven beyond a reasonable doubt,
then you must find the defendant not guilty.

[Model Jury Charges (Criminal), "Aggravated Assault
– While Fleeing Or Attempting To Elude A Law
Enforcement Officer (N.J.S.A. 2C:12-1b(6))"
(approved Dec. 13, 1999).]

A-3472-17T2
32
At the close of trial, the court charged:

In order for you to find the defendant guilty of this
crime, the State must prove the following elements
beyond a reasonable doubt:

1. The defendant caused bodily injury to
another person; and

2. The defendant did so by fleeing or
attempting to elude a law enforcement
officer in violation of the statute defining
the eluding offense.

Bodily injury is defined as a physical pain, illness or
impairment of physical condition.

I've already instructed you on the crime of eluding,
and you should apply those instructions here to
determine whether the State has proven beyond a
reasonable doubt that the defendant was fleeing or
attempting to elude a law enforcement officer.

Causation has a special meaning under the law. To
establish causation, the State must prove the following
beyond a reasonable doubt:

First, but for defendant's conduct, the result in
question would not have happened. In other words,
without defendant's actions, the result would not have
occurred.

Second, the actual result must have been a probable
consequence of the defendant's conduct. It must not
be too remote, too accidental in its occurrence or too
dependent . . . on another's volitional act to have a just
bearing on the defendant's liability or on the gravity of
his offense.

A-3472-17T2
33
As stated, the two elements the State must prove
beyond a reasonable doubt are:

1. The defendant caused bodily injury to
another person; and

2. The defendant did so while fleeing or
attempting to elude a law enforcement
officer in violation of the statute defining
the eluding offense, N.J.S.A. 2C:29-
2[(b)].

If you are satisfied that the State has proven both of
these elements beyond a reasonable doubt, then you
must find the defendant guilty of aggravated assault.
However, if you . . . are not convinced that each of the
elements has been proven beyond a reasonable doubt,
then you must find the defendant not guilty.

[(quotation marks omitted).]

We are satisfied there was no error with the charge as given. The charge

was essentially the same as the model charge, not a "truncated version" as

claimed by defendant. The court provided the jury with both the "but for" and

"probable consequence" components of causation on the aggravated assault

while eluding charge, which reflected both parties' arguments. The court's

later charge on aggravated assault on a law enforcement officer instructed the

jury on various causation requirements. In addition, the court explained

fundamental parts of the charge, including causation. The jury charge, taken

as a whole, was "incapable of producing an unjust result or prejudicing

substantial rights," let alone error. See Washington, 219 N.J. at 351.

A-3472-17T2
34
Moreover, the jury charge as to the Guidelines was appropriate, and we

discern no error in the court instructing the jury that the Guidelines "do not

have the force of law." We also consider defendant's claim that the court erred

by not instructing the jury on the non-production of witnesses, interested

witnesses, and a misidentification defense. Defendant contends the first

instruction was required because the State alleged Schubert sustained bodily

injury as a result of the accident without presenting medical witnesses or

documents to substantiate the claims. Defendant asserts the second instruction

was required because most of the State's witnesses were law enforcement and

have a propensity to embellish the truth to achieve a particular outcome.

Lastly, defendant contends the third instruction was required because he

continuously contested his involvement in the offense and was entitled to an

instruction addressing identification as an issue in the case. Defendant's

arguments are devoid of merit.

Defendant argues that the prosecutor improperly suggested during

summation that Schubert had no reason to contrive his version of events and

inappropriately asserted that defendant intentionally rammed Schubert's

vehicle because he was a police officer. Because of the prejudice resulting

A-3472-17T2
35
from the prosecutor's comments, defendant seeks reversal of his conviction and

a new trial.

A reviewing court should not reverse a conviction on the grounds of

prosecutorial error "unless the conduct was so egregious as to deprive

defendant of a fair trial." State v. Wakefield, 190 N.J. 397, 437-38 (2007)

(quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)). To warrant a new

trial, the prosecutor's misconduct must be "clearly and unmistakably improper"

and "substantially prejudice[] defendant's fundamental right to have a jury

fairly evaluate the merits of his defense." Id. at 438 (citing State v. Smith, 167 N.J. 158, 181-82 (2001)). "Factors to consider when analyzing prosecutorial

conduct include whether defense counsel made a timely and proper objection,

whether the remark was withdrawn promptly, and whether the court gave a

limiting instruction." State v. Chew, 150 N.J. 30, 84 (1997).

Here, defendant's counsel did not object to the prosecutor's remarks

when they were made. "[W]hen counsel does not make a timely objection at

trial, it is a sign 'that defense counsel did not believe the remarks were

prejudicial' when they were made." State v. Pressley, 232 N.J. 587, 594 (2018)

(quoting Echols, 199 N.J. at 360). A "[d]efendant's lack of objections . . .

weighs against [the] defendant's claim that errors were 'clear' or 'obvious.'

Indeed, '[i]t [is] fair to infer from the failure to object below that in the context

A-3472-17T2
36
of the trial the error was actually of no moment.'" Nelson, 173 N.J. at 471

(second and third alterations in original) (quoting Macon, 57 N.J. at 333).

Prosecutors have "considerable leeway in summing up the State's case."

State v. W.L., 292 N.J. Super. 100, 110 (App. Div. 1996) (citing State v.

Williams, 113 N.J. 393, 447 (1984)). Prosecutors' comments "must be

confined to the evidence and the reasonable inferences to be drawn from the

evidence." Id. at 111 (citations omitted). Remarks "plainly designed to

impassion the jury" are often grounds for reversal. Ibid. (quoting State v.

Gregg, 278 N.J. Super. 182, 191 (App. Div. 1994)).

Generally, it is inappropriate for a prosecutor to comment on the

credibility of the police officers who testify at trial. See State v. Frost, 158 N.J. 76, 85-86 (1999); State v. Hawk, 327 N.J. Super. 276, 284-85 (App. Div.

2000). However, a prosecutor's otherwise prejudicial arguments may be

harmless if made in response to defense counsel's arguments. See State v.

DiPaglia, 64 N.J. 288, 297 (1974); State v. Munoz, 340 N.J. Super. 204, 216

(App. Div. 2001).

The remarks defendant now objects to on appeal made by the prosecutor

were in response to arguments asserted in defense counsel's closing or were

based on the evidence in the record. During defense counsel's summat ion, he

posited that police witnesses have an "interest in the outcome of the case" and

A-3472-17T2
37
"Schubert, you heard, takes off a month. Do you think he filed any kind of

workman['s] compensation claim here? Do you think what he has to say in a

case like this will affect that?" The State objected because there was no

testimony regarding a workers' compensation claim during the trial. The trial

court agreed, but to avoid giving an instruction on the issue, the court allowed

the prosecutor to respond to the allegation in summation. The prosecutor

stated, "why does [Schubert] have any reason to make that up?"

In that context, the State's response was clearly proper. The prosecutor

was not "vouching" for the officer's testimony, but properly responding to a

direct attack on his credibility that was not permitted by the evidence. See

State v. Patterson, 435 N.J. Super. 498, 510-11 (App. Div. 2014) (citations

omitted) ("A prosecutor is permitted to respond to an argument raised by the

defense so long as it does not constitute a foray beyond the evidence adduced

at trial."); State v. McGuire, 419 N.J. Super. 88, 145 (App. Div. 2011)

(citations omitted) ("A prosecutor's otherwise prejudicial arguments may be

deemed harmless if made in response to defense arguments."). The comment

was neither unfair nor improper and was not so egregious as to deprive

defendant of a fair trial.

With regard to the State's recitation of its theory of the case that

defendant intentionally rammed Schubert's vehicle, during closing a rgument,

A-3472-17T2
38
prosecutors "are expected to make vigorous and forceful closing arguments to

juries." Frost, 158 N.J. at 82. While some remarks by the prosecutor during

summation may have been improper, they did not "substantially prejudice[]

defendant's fundamental right to have a jury fairly evaluate the merits of his

defense." Wakefield, 190 N.J. at 438 (quoting Papasavvas, 163 N.J. at 625).

After a careful review of the record, it is clear the prosecutor's

statements were either fair comments or harmless, and there is no indication

that the jury was led to a result it would not have otherwise reached. We

therefore reject defendant's contention that the prosecutor's conduct deprived

him of a fair trial.

VI.

Defendant also contends the trial court incorrectly ordered the amount of

restitution owed by defendant at sentencing without conducting a further

hearing, contrary to controlling statutes and case law. Defendant concedes that

the statute governing motor vehicle theft, N.J.S.A. 2C:43-2.1, imposes

mandatory restitution and does not require consideration of a defendant's

ability to pay; however, he contends he is not obligated to pay the full amount

of restitution claimed by the State without a hearing. The State agrees that

defendant is entitled to an ability to pay hearing related to the costs incurred

A-3472-17T2
39
by Schubert and perhaps his employer, and we therefore reverse and vacate the

award of restitution and remand for an ability to pay hearing.

VII.

Defendant also contends the court failed to apply appropriate sentencing

guidelines, denying him due process. We review the trial court's sentencing

decision under an abuse of discretion standard. State v. Jones, 232 N.J. 308,

318 (2018). In doing so, we consider whether: "(1) the sentencing guidelines

were violated; (2) the findings of aggravating and mitigating factors were . . .

'based upon competent credible evidence in the record'; and (3) 'the application

of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'"

State v. Bolvito, 217 N.J. 221, 228 (2014) (third alteration in the original)

(quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

Defendant challenges the legality of his sentence, arguing that the court

failed to properly apply the sentencing guidelines. First, defendant contends

that it was erroneous for the court to find no mitigating factors and sentence

defendant based only on aggravating factors. Specifically, defendant argues

the court erred by: (1) deeming each offense charged in this case as separate

indictable convictions and not a single criminal episode; (2) treating his plan to

steal a vehicle as one that involved contemplation of causing serious harm

under N.J.S.A. 2C:44-1(b)(2); (3) failing to find Schubert's actions induced or

A-3472-17T2
40
facilitated the commission of the crime under N.J.S.A. 2C:44-1(b)(5); (4)

inflating his criminal history under N.J.S.A. 2C:44-1(b)(7); (5) refusing to find

that defendant's conduct, given his character, minimal criminal history, work

history, and support, was unlikely to recur under N.J.S.A. 2C:44-1(b)(8); (6)

and finding defendant will likely commit another offense under N.J.S.A.

2C:44-1(a)(3).

Our review of a sentencing determination is "deferential." State v.

Fuentes, 217 N.J. 57, 70 (2014). A reviewing court must affirm the sentence

unless: (1) the guidelines were violated; (2) the court's findings of aggravating

and mitigating factors were not based upon competent and credible evidence in

the record; or (3) the application of the guidelines to the facts makes the

sentence clearly unreasonable so as to shock the judicial conscience. Ibid.

Here, the court properly considered the aggravating and mitigating factors and

placed its reasoning on the record. The court's decisions as to each of

defendant's challenges were supported by competent and credible evidence in

the record, and the resulting sentence was appropriate.

The sentencing court provided a statement of reasons supporting its

sentencing decision, the sentence is based on competent credible evidence in

the record, and the sentence does not shock the judicial conscience. The court

applied the aggravating factors, found no mitigating factors, and followed the

A-3472-17T2
41
appropriate sentencing guidelines. State v. Bieniek, 200 N.J. 601, 608 (2010)

(quoting Roth, 95 N.J. at 364-65).

Lastly, defendant contends cumulative error warrants a reversal of his

convictions and sentence. Aside from the necessity to hold a restitution

hearing on the non-theft-related amount owed, defendant has failed to assert

any errors, let alone multiple errors, requiring a reversal for their cumulative

impact.

We have considered defendant's other arguments in his pro se

supplemental brief and conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed in part, reversed in part, and remanded for an ability to pay

hearing on the question of restitution as explained herein. We do not retain

jurisdiction.

A-3472-17T2
42

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