STATE OF NEW JERSEY v. JAMES SGAMBATI

NOT FOR PUBLICATION WITHOUT THE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.

JAMES SGAMBATI, a/k/a JAMES

SCAMBATTI, a/k/a JAMES SGAMBATTI,

Defendant-Appellant.

___________________________________

August 29, 2014

 

Submitted September 10, 2013 Decided

 

Before Judges Reisner, Ostrer and Carroll.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-09-0976.

 

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

 

Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Tried before a jury in April and May 2011, defendant James Sgambati was convicted of, most significantly, third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count seven); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count eight); and third-degree tampering with a witness, N.J.S.A. 2C:28-5(a)(1) (count eleven). He also appeals from his aggregate ten-year term, with a three-year parole bar, which included an extended term. Defendant argues that the court erred in denying his motion to sever trial of the witness tampering charge from trial of the remaining counts. He also argues, as plain error, that the court should have deemed the evidence of witness tampering as other crimes and wrongs evidence, and the court should have delivered the model instruction on such evidence. After reviewing defendant's arguments in light of the record and applicable legal principles, we affirm.

I.

Defendant's conviction arises out of his assault of his former girlfriend T.S. in the early morning hours of Saturday, September 15, 2007; and his subsequent effort between June and September 2008 to tamper with her testimony against him.

A.

On the Friday evening preceding the assault, T.S., then twenty-eight years old, joined two female friends, T.A. and L.C., for dinner at a restaurant and bar in Parsippany. T.S.'s dating relationship with defendant had recently ended. However, defendant and T.S. were still on speaking terms. When T.S. told defendant that she intended to go out with her friends, and not him, he became angry and threatened that he would be waiting for her outside her house when she returned and would hurt her. While T.S. was at the restaurant, and later while the women chatted in the parking lot after dinner, defendant repeatedly tried to communicate with T.S. by calling and texting her.

It was well after midnight when T.S. began to head home. Fearful of what defendant might do, she alerted her mother that she was on her way. As T.S. pulled out of the restaurant parking lot in her black Honda, defendant, who apparently had been waiting in the parking lot, followed in his white Nissan Maxima. Concerned about T.S.'s welfare, T.A. and L.C. also followed in L.C.'s car.

As T.S. tried to make her way home along Route 46, defendant pursued her. As they drove down the two east-bound lanes of the highway, defendant pulled to T.S.'s right. Through his open window, he yelled at her to pull over. He repeatedly called her on her cell phone. T.S. answered one call, and told defendant to leave her alone. At various points, in order to get T.S. to stop, he tried repeatedly to swerve into T.S.'s car. He also threw small objects T.S. believed they were coins at T.S.'s car.

Defendant tried, but failed to block her exit to Cherry Hill Road. He then pursued her as she entered Route 80, and continued onto Route 280. He succeeded in blocking her attempt to take the exit off Route 280 to her home. Both vehicles were travelling significantly below the speed limit. He then collided with T.S.'s vehicle. His Nissan struck the front passenger side of T.S.'s Honda. The two cars came to rest on the shoulder alongside the left lane.

During defendant's pursuit, T.S. spoke to T.A. twice. T.S. also spoke to her mother, to ask for help. After defendant failed to relent, T.S. called 911. T.A. independently called 911, as well. T.S. told the 911 operator that defendant was "acting crazy," "trying to hit into my car," and "[h]e's gonna kill me." T.A. reported that T.S.'s "ex-boyfriend is trying to run her off the road in his car."

T.S. remained on the line with 911 after impact. She frantically screamed after defendant exited his vehicle and approached hers. She told the operator that defendant was kicking the driver's door of her car. She testified that he also punched and then kicked the window. T.S.'s last recorded words on the 911 tape were her screams to defendant to stop.

T.S. testified that she lowered her window slightly to try to calm defendant. He then reached in, and pulled down on the window, breaking it and an aftermarket plastic rain shield on the top of the window frame. Glass pebbles showered T.S. and landed outside the car. He grabbed her cell-phone and tossed it to the back of the car, ending the 911 call. Defendant accused T.S. of promiscuity in coarse and insulting terms.

Defendant then picked up a sharp object and slashed T.S.'s face, as well as her arm as she tried to protect herself. T.S. believed the sharp object was a piece of glass, although it may have been a piece of the rain guard.1 Meanwhile, T.A. and L.C. had pulled over on the right shoulder. L.C. testified that she saw defendant kicking T.S.'s car. T.A. also saw defendant moving his arms and legs to the side of T.S.'s door. T.S.'s mother also testified about her daughter's frantic calls to her from the road.

T.S. testified that defendant's demeanor suddenly changed after he saw her bleeding profusely. "[H]e's like, 'Oh, my God, look at your face.'" T.S. testified that defendant kneeled down next to the driver's door, imploring T.S., "'Please don't get me in trouble, just say it was an accident.'"

Defendant himself called 911 and reported the collision as an accident "and the glass broke in her window and cut her face." He was still on the line with 911 when the first of several police officers approached the two vehicles. The officer eventually separated T.S. and defendant. Defendant told police at the scene that it was an accident, and suggested that T.S. would support that view.2 T.A. and L.C. shouted to the officer from the other side of the roadway and he also received information about the incident from his radio. The officer placed defendant in custody in his vehicle. Another officer who interviewed defendant at the police station later that morning noticed that his hands were red and irritated and had small cuts. However, a registered nurse at the county jail did not record any injuries during defendant's intake.

Fearful of defendant, T.S. initially told the first responding officer that her injuries resulted from an accident. After defendant was securely in custody, another officer asked T.S. again what had happened. She then "told him everything," including that defendant cut her with a piece of glass. She asserted that defendant tried to kill her. T.S. was soon transported to a nearby hospital where she received sutures on her arm, and was later treated by a plastic surgeon for her facial wound, which was about seven centimeters long from her ear toward her cheekbone. She displayed the scars from both injuries at trial. She also dictated a brief statement to her mother for the police summarizing that defendant had forced her off the road, broke the driver's window and cut her with a piece of glass.3

A State accident reconstruction expert opined that the collision was not accidental, and defendant forced or pushed T.S.'s Honda off the road. He also opined that the driver's side window did not break as a result of the collision. He noted that although the passenger side airbag deployed, all the Honda's glass was intact including near the point of impact on the passenger side except for the driver's side window. He noted that white paint from defendant's vehicle was found on the dented passenger side of the Honda. He asserted that the dents in the driver's door were caused by a person's hands or feet, and not the collision. A collision estimator testified that the cost to repair T.S.'s vehicle exceeded $9000.

 

B.

T.S. testified that she had no contact with defendant for a long time after the September 15, 2007, incident. She stated that defendant often called her, but she refused to speak to him. However, she eventually relented in May or June 2008. She testified that he initially was "the nicest person in the world." They began to spend time together, and resumed intimate relations on occasion. He occupied a room in a home in Parsippany, and she would often spend time with him there. Meanwhile, on June 11, 2008, a Morris County grand jury returned an indictment charging defendant with multiple aggravated assault counts, weapons offenses, criminal mischief and related offenses.

T.S. testified that during the summer months, defendant told her that he did not want her to cooperate with the prosecution or testify. She asserted that he told her not to appear at trial, and to say it was an accident. She claimed he threatened to kill her, or hurt her family if she did not comply. She continued to see defendant, despite his threats, because she was afraid of him.

Eventually, in late August or early September, T.S. wrote and signed a letter recanting her prior assertions. T.S. alleged that defendant met with her in her car, outside a bar, and presented her with a draft letter. He asked her to rewrite it in her own handwriting and sign it. She did so. He then took the draft and T.S.'s version and returned to the bar. The statement read:

To Whom It May Concern:

 

I, [T.S.], am writing this letter to inform the State that I wish not to pursue the charges held against James Sgambati. The allegations pending against him are false. I will not testify against him, or participate in anything having to do with the case. He did not commit the charges of Aggravated Assault With a Deadly Weapon. I ask that the State not penalize him in this matter, and the charge be dropped. The charges brought against him are false. I also ask that I be left alone and not harassed anymore by the Prosecutor's Office. Thank you. [T.S.].4

 

T.S. testified that her signature was not witnessed by a notary. She insisted that a notarization of the letter was completed outside her presence. She testified that the notary who purported to witness her signature was the mother of a woman, J.R., with whom defendant had an intimate relationship. T.S. also testified that she was unaware of who sent the letter to the prosecutor's office. After defendant obtained the letter, his relationship with T.S. cooled again. Yet, T.S. admitted seeing or speaking to defendant in the months that followed, giving contradictory answers about when they actually stopped communicating.

In May 2009, T.S. told a prosecutor that defendant threatened her in order to obtain the letter. She gave a video-recorded statement under oath.5 Shortly after that, she notified the prosecutor that she recalled that a friend, D.C., was present in the car when she penned the exonerating statement. D.C. did not testify at trial. The grand jury returned a superseding indictment in June 2009 adding second-degree witness tampering, N.J.S.A. 2C:28-5(a)(1), to defendant's charges.6

Defendant did not testify in his own defense.7 However, the defense called several witnesses friends of defendant to dispute T.S.'s characterization of the relationship between T.S. and defendant during the summer of 2008. None observed defendant threaten T.S. and several asserted that T.S. voluntarily wrote the exculpatory letter to the prosecutor.

A male friend of defendant, J.T., who subleased a room to defendant, testified that T.S. and defendant were a happy, mutually affectionate couple. He asserted that T.S. shared defendant's bedroom during the summer months. He also testified that on one occasion, in the kitchen of the house, T.S. confided in him "that she didn't think James should get in trouble for this, it was an accident, and she wanted to write a letter saying such," and he then encouraged her to do so. J.T. also testified that he ultimately asked T.S. to leave his home after an altercation with J.R.

J.R. admitted that she had an ongoing intimate relationship with defendant since January 2009. J.R. asserted that T.S. told her during the summer of 2008 that the prosecutor's office was harassing her. J.R. testified that T.S. told her that D.W., a mutual friend of defendant and T.S., suggested to T.S. that she write a letter to the prosecutor. T.S. allegedly told J.R. that she wrote the letter with D.W. J.R. also testified that she observed T.S. sign the letter in her mother's home, in her mother's presence, and her mother then notarized T.S.'s signature.

D.W. testified that T.S. and defendant lived together for the summer of 2008 and the atmosphere was warm and hospitable "80 percent of the time." D.W. asserted that he suggested to T.S. that she write the letter to the prosecutor after she allegedly complained that a prosecutor and a detective were pressuring her. D.W. asserted that he did not write the letter, but assisted T.S. in composing it. Defendant's sister was also present, making suggestions. D.W. claimed that T.S. wrote several versions of the letter. She allegedly told him that defendant did not cut her face, and she made the allegation because she was extremely angry at him.

The final charges presented to the jury included five separate aggravated assault counts: second-degree aggravated assault by purposely or knowingly causing serious bodily injury with a sharp object (count one); third-degree aggravated assault by purposely or knowingly causing significant bodily injury with a sharp object (count two); fourth-degree aggravated assault by purposely or knowingly causing bodily injury with a deadly weapon, a sharp object (count three); second-degree aggravated assault by attempting to cause serious bodily injury with a motor vehicle (count four); and third-degree aggravated assault by attempting to cause significant bodily injury with a motor vehicle (count five).8 Each count included a lesser included offense of simple assault. The jury also considered the charges of third-degree terroristic threats (count seven); third degree possession of a weapon, a sharp object, for an unlawful purpose (count eight); and fourth-degree unlawful possession of a weapon (count nine). The jury was asked to determine whether defendant committed criminal mischief by purposely or knowingly damaging T.S's property, and then to assign the value of pecuniary loss (count ten). Lastly, the jury was asked to decide whether defendant tampered with a witness by knowingly causing T.S. to testify or inform falsely and/or withhold any testimony or information, and to determine whether he used force or the threat of force in doing so (count eleven).

The jury convicted defendant of counts two and three, third- and fourth-degree aggravated assault; count seven, terroristic threats; counts eight and nine, the weapons offenses; count ten, criminal mischief with a value of greater than $500 and less than $2000 the fourth-degree range; and count eleven, witness tampering, without the use or threat of force. The jury acquitted defendant of the initially charged offenses in counts one, four and five, finding him guilty instead of lesser included simple assault.

The court granted the State's motion to impose an extended term as a persistent offender, N.J.S.A. 2C:44-3(a). Defendant was convicted in March 1998 of second-degree robbery and third-degree arson, charged in separate indictments. He was also convicted in June 2010 of a second-degree drug offense; and on August 4, 2010, of third-degree insurance fraud.

The court found aggravating factors three, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); six, the extent of his prior record and the seriousness of the offense committed, N.J.S.A. 2C:44-1(a)(6); and nine, the need to deter, N.J.S.A. 2C:44-1(a)(9). The court found mitigating factor six, that defendant would compensate the victim, N.J.S.A. 2C:44-1(b)(6), and ordered he pay $500 in restitution. The court expressly rejected defendant's argument that T.S. facilitated defendant's conduct with regard to the witness tampering count, mitigating factor five, N.J.S.A. 2C:44-1(b)(5). The court was clearly convinced the aggravating factors substantially outweighed the mitigating factors.

After merger, the court imposed an extended seven-year term on count two, third-degree aggravated assault, with a three-year parole bar, based on the court's clear and convincing finding that the aggravating factors substantially outweighed the mitigating. The court imposed concurrent terms of three years on count seven, and eighteen months on count ten. The court imposed a consecutive term of three years on the witness tampering count, applying N.J.S.A. 2C:44-5(h), which provides a presumption in favor of consecutive sentences for offenses committed while on release pending disposition of the previous offense. The court found no "serious injustice" barring consecutive sentences under the provision.

On appeal, defendant raises the following points and subpoints for our consideration:

POINT I

 

AS A RESULT OF A MOTION FOR RECONSIDERATION BROUGHT BY THE STATE, THE COURT ERRONEOUSLY REVERSED ITS EARLIER DECISION IN WHICH THE OFFENSE OF WITNESS TAMPERING HAD BEEN SEVERED FOR A SEPARATE TRIAL TO AVOID UNDUE PREJUDICE.

 

A. The Motion For Reconsideration Was An Improper Request By The State To Re-argue The Issue.

 

B. Severance Of The Witness Tampering Charge Should Have Been Granted.

 

 

 

POINT II

 

THE COURT FAILED TO CHARGE THE JURY ON THE LIMITED USE OF THE EVIDENCE OF WITNESS TAMPERING IN REGARD TO THE SUBSTANTIVE OFFENSES OF ASSAULT AND WEAPON POSSESSION. (Not Raised Below).

 

POINT III

 

THE DEFENDANT RECEIVED AN AGGREGATE EXTENDED TERM SENTENCE OF 10 YEARS WITH A THREE YEAR PAROLE DISQUALIFER FOR THIRD-DEGREE OFFENSES, A CLEARLY EXCESSIVE SENTENCE.

 

II.

A.

Before trial, the court initially granted in March 2010, but then, upon reconsideration, denied in June 2010, defendant's motion to sever the witness tampering count from the remaining charges in the indictment. In both instances, to determine whether joining the offenses would be unduly prejudicial, the court deemed the critical inquiry to be whether, assuming the charges were tried separately, the evidence of one charge would be admissible in the trial of the other charges. If the evidence would be admissible, then the charges may be joined because the defendant would suffer no greater prejudice by joinder. The court cited State v. Pitts, 116 N.J. 580, 602 (1989), and State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Consequently, the court identified the four factors defined in State v. Cofield, 127 N.J. 328, 338 (1992), for determining whether to admit other crimes or wrongs evidence pursuant to N.J.R.E. 404(b):

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 
4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[Ibid. (citation omitted).]

 

In his initial decision, the trial judge expressly found that evidence of witness tampering was material to a fact in issue, but did not expressly address factor three, the evidential support for the witness tampering charge. The judge granted the motion based largely on his finding with respect to factor four, that the prejudice of presenting witness tampering outweighed its probative value. The court also noted that the witness tampering was not particularly close in time to the alleged assault.

Upon the State's motion for reconsideration, the court again found that witness tampering evidence was material as evidence of consciousness of guilt. Although the witness tampering was not close in time, the court nonetheless found that it was intertwined with the evidence of the assault, citing State v. Urcinoli, 321 N.J. Super. 519, 542 (App. Div.), certif. denied, 162 N.J. 132 (1999). The court also noted that factor two need not receive great weight, citing State v. Williams, 190 N.J. 114, 131 (2007).

The court expressly addressed factor three, regarding the evidential support for the witness tampering charge. The court concluded that defendant did not contest the State's proffered evidence in his moving papers.

In regard to the tampering charge, the State submits that the victim will testify regarding the Defendant's intimidating conduct, as well as to the letter Defendant allegedly had the victim scribe. Additionally, the State contends that it will call an eyewitness who was present when the Defendant had the victim copy the letter. At oral argument, the State represented that it disclosed a report regarding same to defense counsel. Defendant's moving papers do not contest whether this evidence rises to the level of clear and convincing, and although the issue was raised at oral argument, defense counsel did not set forth specific details to support the contention the evidence fails to satisfy this standard. Based upon the State's representations, the third prong is satisfied.

 

Finally, the court reversed its prior view of the balance between the probative value and prejudice of the witness tampering evidence, relying on Williams, supra, and other authority:

The Court finds particular guidance in the case of State v. Williams, supra, 190 N.J. at 131, where, as is the case here, the "key issue in respect of this evidence is clearly the weighing of the evidence's prejudicial effect as against its probative value." As enunciated in [State v. Hill, 47 N.J. 490, 500 (1966)] (citations omitted), wherein the Court admitted a defendant's threat to prevent a state witness from testifying ("I already killed one and would kill another"), the "weight of authority supports the contention that threats made to a witness with the intent to induce him to stay away from a trial or not to appear to testify against the accused are admissible in evidence under a theory that any conduct of the accused inconsistent with his claim of innocence is admissible in evidence." The Supreme Court echoed this principle in State v. Rechtschaffer, 70 N.J. 395, 413 (1976), where the Court held "the defendant's response that if he discovered the identity of his informer he would kill him was admissible. . . ." Similarly, in State v. Urcinoli, supra, 321 N.J. Super. at 542, the Court found that defendant's "attempt and plot to kill the witness or his family would also be admissible on the" underlying charge of murder "since it would illuminate defendant's consciousness of guilt."

 

In State v. Williams, supra, 190 N.J. at 132, the Supreme Court found evidence of defendant's witness tampering and evidence tampering immediately following the shooting to be admissible when "employed for the limited and permitted purpose of shedding light on a defendant's state of mind during the . . . preceding criminal event." The Court stated that the "consciousness of guilt evidence's probative value on state of mind is weighty in that setting, notwithstanding that the evidence carries with it a prejudicial effect." Id. at 132-33. The Court acknowledged the prejudicial impact of consciousness of guilt evidence, stating, it "is not neutral to begin with. Indeed, it is difficult to conjure a description of evidence that a jury might find to demonstrate consciousness of guilt that did not have a prejudicial effect." Id. at 133. Notwithstanding the prejudice this evidence could potentially engender in the mind of the jury, the Court concluded, the "evidence's use for state of mind purposes is permitted under Rule 404(b) and any prejudicial concern about predisposition is outweighed by the probative value of the evidence. The fact that the evidence casts defendant in an unflattering position is not reason enough to exclude it." Id. Thus, finding the consciousness of guilt evidence relevant and proffered for a permitted purpose, the Court concluded the "evidence's probative value is not outweighed by undue prejudice. The evidence of defendant's post-shooting words and conduct is admissible under Rule 404(b) for purposes of assessing defendant's state of mind, which will be the disputed issue at the retrial. . . ." Id.

 

In light of the Supreme Court's reasoning, the Court finds evidence of Defendant's alleged witness tampering to be proffered for the permitted purpose of consciousness of guilt, to be relevant to the determination of Defendant's state of mind at the time of the alleged assault, and thus, to be probative of same. The Court does not retreat from its initial determination that this other-crimes evidence is prejudicial, but "any prejudicial concern about predisposition is outweighed by the probative value of the evidence." Williams, supra, 190 N.J. at 133.

 

[Footnote omitted.]

 

Defendant's argument that the court was not empowered to reconsider its prior ruling requires little discussion. See R. 2:11-3(e)(2). "It is well established that 'the trial court has the inherent power to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment.'" Lombardi v. Masso, 207 N.J. 517, 534 (2011) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). The principle applies to criminal cases. State v. Timmendequas, 161 N.J. 515, 554 (1999) ("This Court has never questioned the appropriateness of interlocutory motions to reconsider in criminal matters.").

In challenging the court's denial of severance, defendant focuses on the court's application of the fourth Cofield factor, requiring a balance between probative value and prejudice.9 In reviewing the trial court's decision to deny severance, we extend "great deference" to its exercise of discretion. See State v. Brown, 118 N.J. 595, 603 (1990) (severance of defendants); State v. Lado, 275 N.J. Super. 140, 149 (App. Div. 1994), certif. denied, 138 N.J. 271 (1995). We shall not reverse a decision denying severance "in the absence of a clear showing of a mistaken exercise of discretion." State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002). Defendant bears the burden to show prejudice. Lado, supra, 275 N.J. Super. at 149.

As a threshold matter, the "challenged counts could properly be joined in the same indictment . . . under Rule 3:7-6," State v. Long, 119 N.J. 439, 514 (1990), because they were "connected together or constitut[ed] parts of a common scheme or plan." R. 3:7-6. In deciding whether to grant defendant relief from joinder under Rule 3:15-2(b), the trial court properly applied the Cofield test to determine whether defendant would even enjoy any benefit from severance. See, e.g., Chenique-Puey, supra, 145 N.J. at 341. The court concluded that the witness tampering evidence was relevant to show defendant's consciousness of guilt; the lack of temporal proximity was not significant; the evidence of witness tampering was clear and convincing, based on the State's proffer and defendant's failure to dispute it; and the probative value of the evidence was not outweighed by its prejudice. We discern no basis to disturb the trial court's decision, and affirm substantially for the reasons set forth in its written opinion.10

B.

We also reject defendant's argument that the trial court was obliged, sua sponte, to deliver the model instruction on the use of other crimes and wrongs evidence under N.J.R.E. 404(b), in connection with the witness tampering evidence. See Model Jury Charge (Criminal), "Proof of Other Crimes, Wrongs or Acts (N.J.R.E. 404(b))" (2007).11 Defendant's argument is grounded in a fundamental confusion between evidence of other crimes under N.J.R.E. 404(b), and evidence of crimes charged in the indictment and presented to the jury for its decision.

To address the potential risk of prejudice arising from multiple counts, the court delivered the model charge directing the jury to consider each of the multiple charges separately:

Now, there are 10 offenses charged in the indictment. They are separate offenses by separate counts in the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence, which is relevant and material to that particular charge, based on the law as I will give it to you.

 

The court also directed the jury that it could consider the proof of alleged witness tampering as evidence of consciousness of guilt only if it concluded that defendant sought to cover up the crimes charged.

Now, there is for your consideration in this case recorded and oral statements allegedly made by the Defendant Mr. Sgambati. It is your function to determine whether or not the statements were actually made by the defendant, and if made, whether the statements or any portion of it is credible, and whether the statements constitute a consciousness of guilt.

 

Here evidence has been offered to attempt to convince you that the alleged witness tampering by the defendant is evidence of consciousness of guilt on the defendant's part, regarding the charges stemming from September 15, 2007.

You may not draw this inference unless you conclude that the acts alleged were an attempt by the defendant to cover up the crimes being alleged.12

 

The court continued with an instruction on considering evidence of oral statements. The court was not required to deliver the model charge on Rule404(b) evidence.

Rule404(b) addresses "uncharged" crimes, wrongs, or acts. SeeState v. Rose, 206 N.J.141, 179-80 (2011). "The threshold determination under Rule404(b) is whether the evidence relates to 'other crimes,' and thus is subject to continued analysis under Rule404(b), or whether it is evidence intrinsic to the charged crime . . . ." Id.at 179. Evidence which directly proves a charged offense is "intrinsic" and not subject to Rule404(b). Id.at 180-81. In most cases, "the prosecutor can charge the defendant with the acts of uncharged misconduct that the prosecutor wishes to have admitted into evidence" and thus avoid the strictures of Rule404(b). Id.at 162, n.11. Further, Rule404(b) "limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's unchargedmisconduct." Id.at 161 (emphasis added).

Rule404(b) is not designed to preclude the admission of evidence of charged crimes. Were that so, in every criminal trial in which two or more charges are joined, a Rule404(b) limiting instruction would be required. Instead, in the case of multiple charges, the court is required to deliver the model charge regarding separate consideration of each count which the trial court did here. SeePitts, supra, 116 N.J.at 603 (stating it was adequate for trial court to combat prejudice created by joinder of multiple counts by "caution[ing] the jurors to deliberate separately on each of the twelve counts, and to return a judgment of conviction only if convinced that each element of the individual counts had been proved beyond a reasonable doubt").13

The fact that a Rule404(b) admissibility analysis is conducted to determine whether there would be any gain to a defendant from severance does not convert charged crimes to uncharged "other crimes" requiring a model instruction on Rule404(b) evidence.

Williams, supra, does not compel a different result. Williams was convicted of witness tampering, and related offenses, and acquitted of aggravated manslaughter, weapons offenses, and aggravated assault. 190 N.J.at 117. The jury deadlocked on a lesser included offense of reckless manslaughter. The Court determined, applying the Cofieldtest, that the witness tampering evidence would be admissible in the retrial of the sole remaining count of reckless manslaughter. The Court directed that the trial court instruct the jury regarding the permitted and prohibited use of witness tampering evidence in connection with the jury's determination of a reckless manslaughter charge. Williams, supra, 190 N.J.at 133-34. However, in the proposed retrial, the witness tampering evidence would constitute evidence of "other crimes," and not a charged offense for the jury's determination.

C.

Finally, we discern no merit in defendant's challenge to his sentence. The imposition of a consecutive sentence was compelled by N.J.S.A.2C:44-5(h), in the absence of a finding of a serious injustice. Defendant's prior record warranted sentencing within the extended term range of three to ten years for a third-degree conviction, and we discern no error in a seven-year sentence, which was slightly above the middle of that range. The judge's findings regarding aggravating and mitigating factors were based upon competent and credible evidence in the record; the court correctly applied the sentencing guidelines; and the sentence imposed was not manifestly excessive, unduly punitive, or a mistaken exercise of discretion. SeeState v. Pierce, 188 N.J.155, 169 (2006); State v. O'Donnell, 117 N.J.210, 215-16 (1989); State v. Roth, 95 N.J.334, 363-65 (1984).

Affirmed.

 

 

1 Her front side windows were tinted and she asserted that a sizable piece of glass adhered to the tinting material, even though tempered glass generally breaks into small nuggets. Whether tempered glass would adhere to tinted materials was disputed by a defense expert.

2 Defendant's statement was apparently recorded by the mobile video recorder of the responding officer's vehicle. The recording was played at trial, but is not included in the record before us.

3 The statement was read and admitted into evidence, but the document is not included in the record before us.

4 The letter was admitted into evidence, but not included in the record before us. However, defense counsel recited the above-quoted texts as a series of separate sentences, in the course of confirming that T.S. authored each sentence. We presume counsel read the sentences in the order in which they appeared in the statement.

5 Although the video was played for the jury, it is not included in the record before us.

6 The superseding indictment also added a charge of fourth-degree assault by auto, N.J.S.A. 2C:12-1(c), and revised other counts. A second and final superseding indictment was returned in September 2009, reducing the various aggravated assault charges from six counts to five, and converting the assault by auto into an attempted offense.

7 Defendant had multiple Superior Court convictions.

8 Count six of the indictment, fourth-degree attempt to commit assault by auto, was dismissed at the State's request.

9 Defendant notes the court's finding of clear and convincing proof of witness tampering, but does not challenge it. Indeed, defendant has not supplied this court with the evidence presented to the trial court in connection with the motion. Consequently, we are in no position to determine whether there was sufficient undisputed proof before the court for it to determine, without an evidentiary hearing under N.J.R.E. 104, that prong three was met. See R. 2:6-1(a)(1) (requiring appellant's appendix to include parts of record essential to consideration of issues); State v. Moorman, 286 N.J. Super. 648, 661 (App. Div. 1996) (stating that a court should conduct a plenary evidentiary hearing "[i]f the parties dispute the occurrence of a prior bad act").

10 We also find it hard to imagine that defendant would have, in a severed trial, declined to use T.S.'s exculpatory letter in defense of the assault and related charges. But, if defendant did use the letter, then the State would necessarily have been permitted to present evidence that T.S. recanted because she was threatened. Under such circumstances, there would have been no dissipation of prejudice from a severed trial.

11 The model charge first informs the jury that evidence of other crimes is usually inadmissible, and specifically inadmissible when used to show a disposition to do wrong. The charge then discusses the permissible use of such evidence. In particular, as it relates to other crimes evidence used to show consciousness of guilt, the charge reads:

 

Here the evidence has been offered to attempt to convince you that [describe the alleged post-crime conduct] is evidence of a consciousness of guilt on the defendant's part regarding the [particular crime(s) at issue]. You may not draw this inference unless you conclude that the acts alleged were an attempt by the defendant to cover up the crime(s) being alleged[.]

12 The judge's instruction was consistent with what he proposed in the charge conference in chambers. Neither party objected.

13 The Court stated "it would have been preferable . . . for the trial court to have emphasized to the jury its duty to avoid any negative or prejudicial impressions that might otherwise be created by the joinder of several criminal charges in a single indictment." Pitts, supra, 116 N.J. at 603. However, the Court has not mandated such an instruction in all multi-count cases; such an instruction is not found in the model charges; and we decline to find plain error from its absence in this case.