A-0STATE OF NEW JERSEY v. KIMBERLY GREEN November 12, 2013

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KIMBERLY GREEN,

Defendant-Appellant.

______________________________

November 12, 2013

 

Submitted October 7, 2013 Decided

 

Before Judges Parrillo, Harris and Kennedy.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-04-0537.

 

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

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant was convicted of second-degree vehicular homicide arising from the death of Kylie Pinheiro in a motor vehicle collision in South Brunswick, and two counts of third-degree assault by auto arising from injuries to two other occupants in Pinheiro's vehicle. The judge sentenced defendant to an aggregate prison term of twelve years, with the first eight years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

Defendant appeals both her conviction and sentence and raises the following arguments:

POINT I

 

THE COURT ERRED IN PRECLUDING THE DEFENDANT FROM PRESENTING A DEFENSE EXPERT ON ACCIDENT RECONSTRUCTION OR, ALTERNATIVELY, CALLING HIM AS A REBUTTAL WITNESS TO TESTIFY SOLELY TO THE FACT THAT VEHICLE SPEED WAS DETERMINABLE, CONRARY TO THE OPINION OF THE STATE'S EXPERT.

 

Point II

 

AS A RESULT OF A MOTION FOR RECONSIDERATION BROUGHT BY THE STATE, THE COURT ERRONEOUSLY REVERSED ITS EARLIER RULING THAT HAD EXCLUDED AS NOT PROBATIVE AND HIGHLY PREJUDICIAL A AUDIO/VIDEO RECORDING OF THE DEFENDANT'S CELL PHONE CONVERSATION MADE WHILE THE DEFENDANT WAS SEATED IN A PATROL CAR.

 

POINT III

 

IN SUMMATION, THE PROSECUTOR EXCEEDED THE BOUNDS OF PROPRIETY BY APPEALING TO THE JURY'S SYMPATHY, BOLSTERING WITNESS CREDIBILITY, AND INFERRING THAT THE DEFENDANT WAS INDIFFERENT TO THE INJURED VICTIMS.

 

POINT IV

 

THE COURT FAILED TO PROPERLY ASSESS THE AGGRAVATING AND MITIGATING FACTORS WHICH RESULTED IN A MANIFESTLY EXCESSIVE AND PUNITIVE SENTENCE.

Defendant, in a pro se supplemental brief, also argues that juror misconduct denied her a fair trial. We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

A grand jury returned a six-count indictment charging defendant with first-degree aggravated manslaughter arising from the death of Kylie Pinheiro, N.J.S.A. 2C:11-4(a) (count one); second-degree vehicular homicide arising from the death of Kylie Pinheiro, N.J.S.A. 2C:11-5 (count two); second-degree aggravated assault arising from the injuries sustained by Heather Pinheiro and Melissa Pinheiro, N.J.S.A. 2C:12-1(b)(1) (counts three and four, respectively); and third-degree assault by auto arising from the injuries sustained by Heather Pinheiro and Melissa Pinheiro, N.J.S.A. 2C:12-1(c) (counts five and six, respectively). Defendant was also issued summonses for six motor vehicle offenses, including driving while intoxicated, running a red light, reckless driving, obstructing the passage of vehicles, failure to maintain her car in a lane, and speeding.

The jury returned its verdict after eighteen days of trial, finding defendant not guilty under counts one, three, and four, but guilty of vehicular homicide under count two and of assault by auto under counts five and six. Defendant appeared before the judge for sentencing on November 9, 2010. After noting the presumption of imprisonment for the second degree vehicular homicide conviction, and finding that two applicable aggravating factors outweighed seven mitigating factors, the judge sentenced defendant to an eight-year term of imprisonment on the conviction of vehicular homicide, subject to the eighty-five percent parole disqualifier under the NERA. The judge also sentenced defendant to a consecutive four-year term of imprisonment on count five, and a concurrent four-year term of imprisonment on count six. The judge imposed appropriate monetary assessments and penalties.

Thereafter, the judge adjudicated the six motor vehicle offenses against defendant. Defendant was found guilty of driving while intoxicated, running a red light, reckless driving, obstructing a roadway, and failure to maintain her car in a lane, but was found not guilty of speeding. The judge imposed appropriate fines and penalties.

Defendant moved for a judgment of acquittal or, alternatively, for a new trial. The motion was argued before the judge on November 19, 2010, and denied that same day.

This appeal followed.

II.

We discern the facts from the trial record.1

On December 27, 2007, defendant left her home at about 9:30 p.m. and drove her burgundy-colored Mitsubishi to the home of her friend, Janeen McLendon, in South Brunswick. Defendant and McLendon then went to a restaurant, arriving at about 10:30 p.m.

The restaurant's kitchen had closed for the evening, but the two women stayed and drank some alcoholic beverages. According to McLendon and defendant, defendant drank two mixed drinks, while McLendon drank two Hennessey cognacs and two beers. Both defendant and McLendon stated that no one else bought them a drink.

The two women left the restaurant at around 1:30 a.m. on December 28, 2007, and drove back to McLendon's condominium. McLendon's boyfriend, Tracy Gayden, was in a bedroom asleep. Defendant stayed about fifteen to twenty minutes at the residence, had something to eat and then left to drive home at about 2:40 a.m.

At this time, Hardeo Persad was driving a van north on Route One with his nephew, Sanjeev Maraj, in the front passenger seat. The van was in the right lane as it approached the intersection of Wynnwood Drive and Route One. The light was green for the traffic on Route One. Persad and Maraj saw a red Mitsubishi enter the intersection from Wynnwood Drive, run the red light, and turn left into the northbound lanes, almost hitting their van. Persad estimated the car's speed to be sixty to sixty-five miles per hour as it entered the intersection. To avoid a collision, Persad turned the van sharply onto the right shoulder of the roadway. Persad thereafter turned the van back onto the road and proceeded to follow the car as it traveled northward, weaving erratically from lane to lane. Persad opined that the car was traveling between eighty and eighty-five miles per hour.

Persad and Maraj observed the Mitsubishi approach and almost hit a white car in the right lane. The Mitsubishi swerved into the left lane and twice scraped the concrete median barrier. The Mitsubishi then entered the intersection of Black Horse Lane and Route One, where it struck a silver Honda broadside, as the Honda entered the intersection from the left along Black Horse Lane.

According to Persad and Maraj, at the time of the collision, the stoplight facing them was red, thus requiring traffic on Route One to stop, while the stoplight facing the Honda was green. At no point that morning did Persad or Maraj observe the Mitsubishi slow down or apply its brakes as it traveled north on Route One.

Around this same time, shortly before 3:00 a.m., Robert Scea was traveling north on Route One in his light-gray-colored car when he noticed another car approaching his car rapidly from behind. Scea observed the car come to within thirty feet of his rear bumper in the right lane and then swerve into the left lane, scraping the median barrier and producing sparks. The car passed Scea's car and then swerved to the right, moving within fifteen feet of Scea's car and going onto the shoulder of the road. The car was "starting to fishtail" when it recovered and reentered the roadway, traveling toward the intersection of Black Horse Lane and Route One.

According to Scea, all of this occurred while his car and the other vehicle were more than five hundred feet away from the intersection. At that point, Scea observed that the stoplight had already turned red, requiring that traffic on Route One stop. Scea testified that the other vehicle did not slow down or apply its brakes, but instead continued "hauling," traveling between sixty and eighty miles per hour as it entered the intersection. Scea testified that, at that point, a compact silver car crossed Route One from the left along Black Horse Lane at the intersection. Scea then saw the other vehicle strike the silver car broadside.

The gray Honda Civic defendant struck was being driven by Heather Pinheiro, with Kylie Pinheiro in the front passenger seat and Melissa Pinheiro in the rear seat. Heather testified that she was driving on Black Horse Lane and stopped at the red light at its intersection with Route One. When the light turned green, Heather looked both ways and then entered the intersection, traveling across Route One at about fifteen miles per hour. Her view of traffic in the northbound lanes was obscured by the median barrier.

Following the collision, Scea, Persad, and Maraj stopped their vehicles and rendered aid. The men removed Heather and Melissa from the Honda, but were unable to remove Kylie, who was pinned under crushed metal. Kylie died shortly thereafter, still pinned in the car.

According to Scea, Persad, and Maraj, defendant had exited the heavily damaged red Mitsubishi, was swaying as she walked, had slurred speech, and had the odor of alcohol on her breath.

Defendant asked Scea to get her cell phone from the car, which he did.

Police and emergency medical personnel soon arrived at the collision scene. Officer Sean Roberts spoke with defendant at that time, observing that she had the odor of alcohol on her breath, had an "abnormal gait," spoke with a "muddled" voice, and had a "dazed and confused" demeanor. According to Roberts, defendant denied having any memory of the collision. She complained of pain in her chest and knee and stated she was cold.

Roberts placed defendant in the back seat of a patrol car; she was not under arrest at that time. Pursuant to a police department protocol, a video and voice recording device is activated whenever a person is placed in the back seat of a police car. The device was therefore activated while defendant was in the police car.

While there, defendant telephoned McLendon. During the recorded conversation, defendant repeatedly told McLendon that the other car had struck her car, that the other car had run a red light, and that the collision was the fault of the other driver. She also spoke disparagingly about the other driver.

McLendon testified that defendant called her at about 3:00 a.m., which was about fifteen minutes after she had left her home. Defendant was speaking in a "panicking" voice, but, when defendant said that she did not want McLendon or Gayden to come to her aid, McLendon surmised that the accident was not serious.

Gayden testified that he was awakened at 3:05 a.m., when McLendon was talking very loudly on the telephone, telling defendant, "minor fender bender. Kim, girl, I told you you should have stayed here and slept on the sofa."

Defendant was taken by ambulance to a hospital, where she voluntarily consented to have her blood drawn to test for alcohol. Her blood was drawn at 4:50 a.m., and later testing revealed that defendant had a blood-alcohol concentration of .159% at that time. At trial, the State presented expert testimony that, after extrapolation, defendant would have had a blood-alcohol concentration between .18% and .20% at the time of the collision. The State produced expert testimony that a driver's performance would be impaired to the point of intoxication when the blood-alcohol concentration reached that level.

Gayden testified that the next day he asked McLendon where she and defendant had been the prior evening and what they were drinking. Gayden stated that McLendon told him that "she had bought several rounds of drinks. [Defendant] had bought several rounds of drinks. Somebody bought some Apple Martinis that Janeen [McLendon] didn't like so [defendant] drank her Apple Martinis and there were some guys that bought them shots."

McLendon denied telling Gayden that she and defendant were drinking shots or any alcoholic beverages other than the drinks she had testified about earlier.

During the trial, the State called, among other witnesses, South Brunswick Police Officer Michael Rogers, who had responded to the crash site that evening. Rogers examined the vehicles and the road surfaces, but found no skid or yaw marks. He also observed that, after colliding, the vehicles hit other obstructions such as curbing and a light pole. These factors, together with the absence of skid or yaw marks, made a speed analysis impossible. Rogers' investigative report was provided to defendant's counsel in April 2008.

Three weeks prior to trial, the State notified the defense that it would seek to qualify Rogers at trial as an accident reconstruction expert. Rogers was permitted to testify as an accident reconstruction expert based on his experience and training, and testified as to the movement of the vehicles at and after collision. He also stated that there was insufficient evidence at the scene to permit a dependable estimate of the speed of the cars at impact.

III.

We shall address defendant's arguments in the order she has

raised them in her brief. We shall also address an additional argument raised by defendant in a supplemental pro se brief.

A.

Defendant argues that the trial judge erred in precluding her from calling at trial an expert witness on the speed of her vehicle at the time of the collision. Defendant's expert issued a report, after the State had rested its case, indicating that her vehicle was traveling at between sixty-five and seventy-four miles per hour when it struck the Pinheiro vehicle. The report also indicated that Pinheiro was traveling between eighteen and twenty-nine miles per hour. Defendant asserts that "vehicle speed" was clearly an issue in the case, and that the expert's testimony would rebut the opinion of the State's expert that the speeds of the vehicles could not be determined due to conditions at the crash site.

After the State rested its case on September 16, 2010, defense counsel advised the trial judge and the assistant prosecutor that she wanted to discuss the "use of an expert." The next day, defense counsel stated she had received permission to hire an expert to examine evidence from the scene and prepare a report on the estimated speeds of the two cars at the time of the collision. The State objected to any expert testimony on the issue of speed, and argued that it would be prejudiced by defendant's late proffer of an expert. The trial judge explained he could not address the issue until defendant had actually provided an expert report.

A week after the State rested, defendant first provided the trial judge and the State with her expert report estimating the speeds of the two vehicles based on the police reports provided in discovery. The State objected, arguing that it was prejudiced by such evidence because it had already rested, after presenting its case on the basis that there was not enough evidence to support a reliable speed analysis.

The trial judge denied defendant's request to present expert testimony on the issue of vehicle speed. In doing so, the court explained that defendant had not adhered to Rule 3:13-3(d)(5)2 by designating a defense expert at least thirty days prior to trial. Further, the material relied upon by the defense expert had been provided by the State at defendant's arraignment in April 2008, and the State had already rested its case. Accordingly, the judge determined that the State would be unduly prejudiced if the expert were permitted to testify. The judge added that he did not view a continuance as a viable option because the State had already rested.

Subsequently, defense counsel asked whether the expert could testify that, contrary to Rogers's opinion, it was possible to perform a speed analysis, even though the cars had struck curbs and poles after colliding. The trial judge declined this request for the same reasons that he refused to allow the expert to testify as to the vehicles' estimated speeds. The next day, the trial judge refused to reconsider his earlier ruling, adding that the expert's estimates of vehicle speed did not differ greatly from the estimates given by Persad, Maraj, and Scea, in any event.

Defendant sought a new trial based, in part, on the trial judge's denial of defendant's proposed expert testimony. The trial judge denied the motion, again stating that the issue of speed had been in the case from the date of arraignment, and that defendant could have decided to present expert testimony much sooner. Significantly, because the expert's speed estimates did not differ greatly from those of the eyewitnesses, the judge did not view defendant as being prejudiced by not having the expert testify. In contrast, the State would have suffered prejudice because it had already rested its case.

On appeal, defendant argues that the "value to the defense of [the expert's] testimony was not in establishing the vehicle speed" but rather, in challenging the competence and credibility of Rogers, who testified that a speed analysis could not be performed based on the evidence before him. Such a challenge "would have been significant because the jury could accept or reject Rogers' conclusions and his version of how the accident occurred."

We begin our analysis of this claim by noting that "the decision to allow or exclude testimony based upon a discovery violation is ordinarily within the judge's discretion." State v. Williams, 214 N.J. Super. 12, 22 (App. Div. 1986), certif. denied, 107 N.J. 629 (1987); State v. Volpone, 150 N.J. Super. 524, 529-30 (App. Div. 1977), aff'd, 75 N.J. 543 (1977). Accordingly, the question is whether the trial judge abused his discretion by denying defendant's application to admit expert testimony based upon a report first submitted by the expert after the State had rested its case.

In State v. Marshall, 123 N.J. 1, 129-30, (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993), the Supreme Court upheld the trial judge's exclusion of a witness the defendant sought to add after the State rested. The trial judge barred the testimony because it was unfair to the State, which might have had difficulty "effectively cross-examin[ing]" the witness or been unable to "locate and prepare" a rebuttal witness, and because the exclusion of the testimony "did not preclude defendant from offering comparable evidence or from arguing" his alternate theory. Ibid. Similar considerations apply here.

As we noted earlier, the admissibility of evidence, including that of expert testimony, is a matter within the sound discretion of the trial court. State v. McGuire, 419 N.J. Super. 88, 123 (App. Div.), certif. denied, 208 N.J. 335 (2011). See also State v. Summers, 176 N.J. 306, 312 (2003); State v. Fortin, 189 N.J. 579, 597 (2007). Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless 'the trial court's ruling was so wide of that mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997) (internal quotation marks and citation omitted)).

"In exercising its discretion, the court may consider (1) whether the party who failed to disclose intended to mislead; and (2) whether the aggrieved party was surprised and would be prejudiced by the admission of expert testimony." State v. Heisler, 422 N.J. Super. 399, 415 (App. Div. 2011) (citations omitted). "'Prejudice' in this context refers not to the impact of the testimony itself, but the aggrieved party's inability to contest the testimony because of late notice." Ibid.

Defendant's expert report on the speeds of the two vehicles was received and served upon the State a week after the State had rested its case, and over three weeks after the trial had commenced. The discovery materials provided to defendant's earlier counsel at arraignment contained the investigation reports of Officer Rogers, as well as other reports upon which defendant's expert relied in reaching his conclusions. Under these circumstances, we perceive no abuse of discretion in the trial judge's ruling.

B.

Defendant argues that the trial judge erred in reconsidering an earlier order granting defendant's motion to exclude at trial the recorded statements she made during the phone conversation while seated in the police car. At the time of her original motion, the State had not yet secured the report of its psychopharmacology expert, Robert Pandina, and the judge determined that the recording did not have "significant probative value" as to the offenses charged. He added that the recording was also "more prejudicial than probative" in view of defendant's recorded references to the other driver as "the bitch."

After receiving Pandina's report, the State sought reconsideration, and cited the expert's conclusion that defendant was "intoxicated" and "seriously impaired" at the time of the collision. Further, Pandina's report stated,

Review of transcripts of the subject's phone conversation shortly after the collision and recording of the subject at the scene indicate that the subject did not recognize the fact that she ran through the red light striking the vehicle of the victims. The subject's behavior at the scene also indicates that she was disoriented as regards the nature of events occurring at and around the time of the collision. Her behavior during this time frame is consistent with behavior displayed by an individual who is intoxicated as a result of her alcohol consumption. Behavior documented by recordings and transcripts of her conversation at the scene are indicators of her intoxication and impairment and [are] consistent with the demeanor of an intoxicated individual.

 

Defendant opposed the motion, and the trial judge ordered an evidentiary hearing on Pandina's reliance on the statements.

Pandina testified at the hearing that the recording was relevant to show defendant's impairment by alcohol, her emotional state at the time of the crash, her lack of comprehension of the circumstances and seriousness of the collision, and her lack of concern for the persons in the other car.

On June 22, 2010, the trial judge entered an order, granting the State's reconsideration motion "in part to admit a portion of the defendant's statements made in the police vehicle, but specifically excluding any derogatory comments pertaining to the operator and/or victim."

In an accompanying written decision, the judge explained that the basis for his reconsideration and reversal of the previous decision was his examination of "Dr. Pandina's report of February 22, 2010, which was not considered in the previous motion, as it was only supplied to defense counsel and the Court several days before the hearing." The judge further determined that defendant's mistaken statements on the recording concerning the location of the crash scene and the circumstances leading up to the collision "may be probative and are not substantially outweighed by undue prejudice." The judge added that, according to Pandina, the recording showed defendant's "lack of emotional appreciation for the gravity of the situation" and her "diminished cognitive ability as a result of alcohol intoxication."

Defendant argues that the trial judge erred in allowing the redacted recording to be played at trial because the recording "was not an accurate gauge of her intoxication" and was unduly prejudicial. Defendant claims this error warrants a new trial.

We earlier noted that a trial judge's decision to admit or exclude evidence is committed to the judge's discretion, and will not be disturbed unless the judge has abused his or her discretion. See State v. Scherzer, 301 N.J. Super. 363, 414 (App. Div.), certif. denied, 151 N.J. 466 (1997). We see no abuse of discretion here and thus we reject defendant's arguments.

Initially, the State may generally admit out-of-court statements of a defendant as a statement of a party opponent, N.J.R.E. 803(b)(1); State v. Covell, 157 N.J. 554, 572 (1999). The statements here are relevant in that they bear upon the collision that gave rise to the indictment. While the statements are subject to the balancing test under N.J.R.E. 403, a trial judge's conclusions pertaining to their probative value and prejudicial effect should not be disturbed absent a clear error of judgment. Id. at 564.

Here, defendant's statements showed her disorientation and impairment shortly after the collision. The State argued that the statements show a person who was under the influence of alcohol. Defendant was free to argue, as she did, that the statements were the product of her shock upon being involved in a collision, and did not fairly depict her condition prior to the collision. Merely because the State and defendant offered differing views of the statements does not require their exclusion. The N.J.R.E. 403 balancing test mandates that relevant evidence be excluded "when its 'probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (quoting State v. Thompson, 59 N.J. 396, 421 (1971), addition made by Koskovich Court). Such is not the case here.

C.

Next, defendant challenges statements made by the prosecutor in summation. Defendant argues that the prosecutor improperly evoked sympathy for Kylie Pinheiro by telling the jury that she "will forever be 18 years old" because of the "reckless and irresponsible behavior" of defendant, "an adult, who knew better." She further claims that the prosecutor improperly inferred that defendant was "callous" and "remorseless" by emphasizing defendant's recorded statements while seated in the police car about Heather Pinheiro that "she hit me and she's just laying there like oh, I can't breathe." Defendant adds that the prosecutor improperly bolstered the credibility of the other driver witnesses by asking the jury, "[W]hy they would come in here and lie?"

Prosecutorial misconduct, such as improper remarks in summation, can be a ground for reversal only if the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Loftin, 146 N.J. 295, 386 (1996); State v. Ramseur, 106 N.J. 123, 322 (1987). In order to justify a reversal on appeal, the prosecutor's comments "must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted) (citing State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996)). See also State v. Smith, 167 N.J. 158, 181-82 (2001) (internal quotation marks omitted).

In reviewing allegedly improper remarks by the prosecutor, we must consider: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Smith, supra, 167 N.J. at 182; Timmendequas, supra, 161 N.J. at 575; Marshall, supra, 123 N.J. at, 153.

Guided by these principles, we conclude that defendant's arguments are without merit. Respecting the first comment, the trial judge offered to give the jury an instruction that while Kylie Pinheiro was eighteen at the time of the collision, the "balance of the comment should be disregarded" because the jury must weigh the evidence without passion or sympathy. Defendant declined the instruction. With respect to the last comment about the other witnesses, the judge gave an instruction reminding the jurors that counsel's comments on a witness's honesty are not evidence. The balance of the remarks of the prosecutor on summation were neither improper nor so egregious that they deprived defendant of a fair trial. Frost, supra, 158 N.J. at 83.

D.

Defendant asserts that she received an excessive sentence because the trial judge failed to properly assess the aggravating and mitigating factors and failed to consider the effect of the NERA on her overall sentence. She contends that the judge erred by overvaluing one of two aggravating factors and by undervaluing the seven mitigating factors, and she asks that her sentence be reduced or that the matter be remanded for resentencing. We disagree.

"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (quotations and citation omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).

At the time of sentencing, the judge found aggravating factors nine, N.J.S.A. 2C:44-1a(9) (need for deterrence), and two, N.J.S.A. 2C:44-1a(2) (gravity and seriousness of harm), applied. He also found the following mitigating factors applied: two, N.J.S.A. 2C:44-1b(2) (defendant did not contemplate her conduct would cause harm); six, N.J.S.A. 2C:44-1b(6) (compensation); seven, N.J.S.A. 2C:44-1b(7) (no prior criminal history); eight, N.J.S.A. 2C:44-1b(8) (circumstances unlikely to recur); nine, N.J.S.A. 2C:44-1b(9) (defendant unlikely to commit another offense); ten, N.J.S.A. 2C:44-1b(10) (likely to respond to probation); and eleven, N.J.S.A. 2C:44-1b(11) (incarceration likely to impose hardship).

The judge accorded aggravating factor nine "significant and substantial weight" based upon concern for public safety. Aggravating factor two was accorded "moderate to significant weight" based upon the very severe injuries sustained by Heather and Melissa Pinheiro, which "far exceeded the requirements of serious bodily injury."

The judge accorded mitigating factors two and nine "slight" weight; mitigating factors six and eight "slight to moderate" weight; mitigating factor seven "significant" weight; and mitigating factor eleven "moderate" weight. Further, the judge stated that, with respect to mitigating factor ten, he would "imagine that [defendant] would respond to [probation]."

Under the applicable standard of appellate review, where the sentencing court has followed the sentencing guidelines and has made factual findings concerning the aggravating and mitigating factors that are grounded in competent credible evidence in the record, an appellate court will not modify the sentence unless the application of the guidelines to the facts of the case make the sentence so clearly unreasonable "'as to shock the judicial conscience.'" State v. Dalziel, 182 N.J 494, 501 (2005) (quoting State v. Roth, 95 N.J. 334, 363-65 (1984)). This is not such a case.

The record reveals that the judge thoughtfully and thoroughly considered each aggravating and mitigating factor, set forth the basis for his findings, and then appropriately weighed each applicable factor. Guided by our deferential standard of appellate review, we find no basis to disturb the sentence.

E.

In a pro se brief, defendant contends that there was juror misconduct that denied her a fair trial. We perceive no misconduct nor reversible error by the trial judge.

During jury selection, the trial judge told prospective jurors that his "best guesstimate" was that the "trial time" would end on Friday, September 17, 2010. The judge's estimate proved to be incorrect. The State rested its case on September 16, 2010, and the defense shortly thereafter presented its first witness. At the close of the court day, the judge advised the jury that the trial would require more time than was estimated.

The next day the judge advised the jury that the trial would extend through the following week, and he asked whether any jurors would be unavailable for that extension. The judge then addressed the concerns of the one juror who objected.

On Thursday, September 23, 2010, the jury sent a typewritten note to the judge, in which the jurors stated that they had postponed vacations at great financial expense and delayed job responsibilities and family commitments in order to meet the burden of the extended trial. The jurors expressed their opinion that the trial was taking longer than necessary and asked that it conclude by the next day, September 24, 2010.

The judge discussed the note with the jurors, stating that the case had been unexpectedly lengthy and asking the jurors about their availability through Friday of the following week, that is, through October 1, 2010. The judge then addressed the concerns of three jurors who raised, respectively, a vacation conflict, a job interview, and a work schedule problem. The next day, the judge sought more information about the jurors' note, and questioned the juror who prepared it. The juror explained that the other jurors had been discussing their "scheduling problems" with each other, and she also noted that the jurors' complaint about the length of the trial concerned "the day that we were here early and we had to sit for three hours, that was very frustrating". The juror typed the note at home, and the other jurors knew that she did so and "the consensus was we would share it with you." The juror explicitly denied that the jurors discussed any aspect of the case except scheduling, and she stated that the jurors had not discussed any matters over the telephone.

At that juncture, defense counsel asked that the jurors be individually questioned regarding the note and asked what their concern was about the trial "taking too long". The judge agreed to question the jurors individually, but would only ask whether a juror was aware of the note and whether anything other than scheduling matters was discussed among the jurors. Defense counsel agreed with this course of action.

The judge then questioned the jurors, asking each whether he or she was aware of the note, whether anything about the case other than scheduling matters had been discussed among the jurors, and whether the juror had any objection to proceeding with the trial until the end of the next week. Most of the jurors were aware of the note and its contents, and all stated that nothing about the case other than scheduling was discussed among them. The jurors voiced no objection to the trial ending on the following Friday. Defense counsel did not object to this procedure or to the result, but only asked that the note be marked and made part of the record.

The presentation of evidence ended on Tuesday, September 28, 2010. Following summations, defense counsel stated that she was still concerned about the circumstance that one juror "took it upon herself to go home and prepare a letter," and she requested that that juror be designated as an alternate juror. The prosecutor objected and the judge refused the request. The juror who prepared the note thereafter became a deliberating juror. The jury returned its verdict on Friday, October 1, 2010.

At the hearing on defendant's motion for a new trial, defense counsel argued that the note showed juror misconduct in that it suggested that some jurors were dissatisfied with the judicial process and thought that "pressure should be placed on the Court to rapidly bring the trial to conclusion." Counsel also argued that the juror who wrote the note should have been excluded from the jury because she had taken on a leadership role. The judge denied the motion, reasoning that his inquiry on the record had established that no matter other than scheduling had been discussed among the jurors, and that all of the jurors, including the juror who wrote the note, were willing to adhere to the extended trial dates.

On appeal, defendant argues that the trial judge's inquiry of the jurors was deficient in that it failed to uncover juror misconduct in the form of discussion about details of the case that defendant speculates must have occurred. This argument is without merit.

The Sixth Amendment to the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to trial by an impartial jury. State v. R.D., 169 N.J. 551, 557 (2001). "The securing and preservation of an impartial jury goes to the very essence of a fair trial." State v. Williams, 93 N.J. 39, 60 (1983). Where the impartiality of a jury is alleged to have been compromised by juror misconduct sufficient to taint a jury,

[t]he thrust of the New Jersey and federal cases on mid-trial allegations of jury misconduct is that the trial judge must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality. Although the trial judge has discretion in the way to investigate allegations of jury misconduct, an adequate inquiry on the record is necessary for the purposes of appellate review.

[Scherzer, supra, 301 N.J. Super. at 487-488 (citation omitted)].

 

Here, the judge conducted a brief but pointed inquiry of all jurors, determining that only scheduling matters had been discussed among them and that all jurors, including the juror who wrote the note, were willing to extend their jury service until the end of the following week. This inquiry, which met the requirements set out in Scherzer, did not reveal any partiality on the part of any juror. Moreover, defendant points to nothing in the record to support her assertion that the jurors must have discussed other aspects of the case. Consequently, her argument is without merit.

Affirmed.

1 We shall set forth additional facts, pertaining mainly to trial issues, in addressing defendant's arguments on appeal.

2 Now, Rule 3:13-3(b)(2)(E), as amended effective January 1, 2013.