STATE OF NEW JERSEY v. ALKAREEM R. THOMAS

NOT FOR PUBLICATION WITHOUT THE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.

ALKAREEM R. THOMAS,

Defendant-Appellant.

________________________________________________________________

June 10, 2015

 

Submitted September 10, 2014 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-03-0620.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for conspiracy to commit carjacking, aggravated assault and terroristic threats, and his sentence. We affirm his conviction and remand for resentencing.

I.

At around 2:00 a.m. on August 21, 2009, M.C.1 parked her 2005 blue BMW sedan in front of the apartment building in Irvington where her sister lived. She opened her car door and began to step outside while she was talking on the phone with a friend and gathering her belongings. A black vehicle pulled up in front of her car, blocking her in. Both passenger doors opened and two males emerged. M.C. saw a tall male,2 whom she later identified as co-defendant Reginald Dawsey, leave the front passenger seat of the car with a shotgun. She said Dawsey was wearing a black hoodie or sweatshirt and black gloves. M.C. said the second male was short, light-skinned, with tattoos on his neck that appeared similar to cursive writing, and wore a white T-shirt and red gloves.

M.C. described what followed. When she saw the shotgun, she said to her friend on the phone, "Oh shit, he has a shotgun." Dawsey came to the driver's side of her vehicle and was joined by defendant. They both pulled open her door as she attempted to close it. Dawsey pointed the shotgun at her and said, "'Get the fuck out of the car'; 'Give me the car.'" Defendant said, "'[S]hoot the bitch'; 'Get the fuck out of the car before we kill you.'" M.C. pleaded,

If I get out of this car, you're going to kill me; you don't have on any mask. Please do not shoot me; I have kids; I have a husband; please do not kill me; I will give you this car; it's not that serious; just let me live, please.

M.C. pushed herself to the middle of the arm rest. She testified, "And I turned -- twisted my body, and I got a good look, and I looked and I looked and I kept looking at the people that was [sic] doing it to me, yes." Defendant attempted to grab her cellphone and then both men started to beat her. M.C. testified that defendant was upset because Dawsey, who had the shotgun in her face, would not pull the trigger. She was hit in her face with an object. She moved into the back seat of her car and tried to protect herself with an empty suitcase.

Two witnesses heard her screams for help. Looking from his bedroom window, C.C. saw three black males at M.C.'s vehicle. In addition to the two on either side of the parked BMW, he saw a third standing behind the car and later saw a fourth male exiting the passenger side of the vehicle that blocked the BMW. He described the male on the driver's side as 5'7" to 5'9" tall, of slim build and with "dreads," wearing a white T-shirt and black and white baseball gloves. He described the male with the shotgun as black, dark-skinned, about 5'7" tall, slim build, wearing a red T-shirt. C.C. observed the two males at the BMW appear to strike into the back seat of the car while M.C. begged them not to kill her.

Both M.C. and C.C. heard someone yell, "Hey, what's going on?" C.C. heard J.F., a resident from across the street, yell at the men to leave her alone and that the police were called and on their way. J.F. also observed a total of four men at the scene. He saw a fair-skinned black man in a white T-shirt holding a shotgun and another light-skinned man wearing a red T-shirt. After he told them to stop, the man in the red T-shirt turned to him and pointed what appeared to be another shotgun. C.C. also saw the man run up to J.F.'s window with a shotgun. M.C. testified she heard defendant say, "Go the fuck back in the house."

Both J.F. and C.C. called the police. After observing the four males get back into their vehicle and take off toward Stuyvesant Avenue, they went to M.C.'s vehicle, where she was lying on the back seat, moaning and crying, her face swollen and bleeding, and her eyes shut. M.C. testified she knew the attackers were gone when she heard sirens and saw flashing lights.

Irvington Police Detectives Jerry Ramos,3 Darryl Holmes and Jerry Alston responded to the scene. Ramos observed M.C. in the ambulance and said she had "a pretty severe swelling to her eye." M.C. was taken to the hospital and treated for facial injuries. She elected not to have eye surgery that was recommended to her. After she was discharged from the hospital, M.C. identified photographs of defendant and Dawsey from photo arrays. In addition, at trial, M.C. identified defendant and testified that his tattoos looked the same on the night of the incident.

C.C. also identified defendant's photograph from three photo arrays, and made an in-court identification of defendant as the carjacker with loose "dreads" who wore a white T-shirt and held a shotgun. He was unable to make an out-of court identification of Dawsey from a photo array4 but did identify him in court as the carjacker who stood by the driver's side door with a shotgun and hit M.C. in the face with the gun. J.F. was unable to identify any of the males who participated in the carjacking.

Dawsey and defendant were arrested on August 27, and 28, 2009, respectively. In addition to the Irvington carjacking, defendant was charged with a carjacking that occurred in Newark on the same day.

When police arrived at defendant's residence to arrest him, defendant was in his boxer shorts. Ramos went to defendant's bedroom to retrieve clothing for him. There were a number of photographs of defendant and Dawsey "posing together" that were hanging on the wall. There was a small plastic bag on top of the dresser with several small glassine envelopes containing what appeared to be heroin. A small red and black case labeled shotgun shells and containing several rounds was also on the dresser. A bulletproof vest was observed on the floor near the bed.

Defendant was indicted and charged with a number of offenses relating to the carjackings in Newark and Irvington (counts one through twelve) and drug offenses (counts thirteen and fourteen). Dawson was only charged with offenses relating to the Irvington carjacking (counts five through eleven). After the trial court severed the counts in which Dawson was not indicted, defendant and Dawsey proceeded to trial on the following charges: second-degree conspiracy, N.J.S.A. 2C:5-2 (count five); first-degree carjacking, N.J.S.A. 2C:15-2 (count six); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count seven); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count eight); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count nine); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(a) (count ten); and third-degree terroristic threat, N.J.S.A. 2C:12-3(a) (count eleven).

On December 12, 2011, the trial judge denied Dawsey's motion for a pretrial hearing to determine the admissibility of the out-of-court identifications that were made of both defendants. The record fails to reveal that a similar motion was made by defendant.

No motion was made to suppress the evidence seized from defendant's residence prior to trial.5 During the course of Ramos's direct examination, Dawsey's counsel objected to the introduction of the photographs seized. He contended the prosecutor had represented they would not be used at trial, a contention denied by the State. In addition, he objected to the introduction of the other items seized as relating to the Newark carjacking in which Dawsey had not been charged. Counsel for defendant objected to the introduction of the bulletproof vest and the shotgun shells, also alleging there had been no mention of these items in the police report relating to the Irvington carjacking. The seizures were, however, included in the incident report for the Newark carjacking, which was in the discovery provided to defendants.

Counsel for defendant explicitly limited her objection to the admission of the bulletproof vest and the shotgun shells, arguing they related to the Newark carjacking and the bulletproof vest, in particular, was highly prejudicial. However, she repeatedly said she had no objection to the introduction of the photographs, stating, "Clearly, the photographs connect a co-defendant, Mr. Dawsey, in the Irvington carjacking. And I am not objecting to those photos, which were seized in plain view." Counsel later reiterated, "Again, my argument is with respect to the prejudicial value of the bulletproof vest solely at this time."

The trial court agreed that the bulletproof vest should be excluded from evidence, and asked defendant's attorney if she wanted a suppression hearing as to the shotgun shells and photographs. Defendant's attorney replied, "I do not with respect to the photos. I would join if [counsel for Dawsey] moves for the shotgun shells."

Following further colloquy, the court conducted a hearing pursuant to N.J.R.E. 104 to determine the admissibility of the photos and shotgun shells. The court found the officers were effecting a lawful arrest of defendant who was dressed only in boxer shorts. They entered defendant's bedroom after he indicated his clothes were located there and observed the shotgun shells and photographs in plain view. The court cautioned the State to exclude all references to the Newark carjacking charge from its direct case.

In addition to M.C., the State presented testimony from C.C., J.F., M.C.'s sister, and Ramos. Ramos was vigorously and extensively cross-examined by both defendant's counsel and counsel for Dawsey. Among the topics pursued were his involvement in the investigation of a series of over thirty carjackings in Irvington from July through August 21, 2009, his development of suspects and how he had prepared the photo arrays shown to witnesses. Ramos explained he used the physical descriptions provided by witnesses and entered them into a system that generates photos of persons with similar characteristics gathered from various sources.

During his cross-examination of Ramos, Dawsey's counsel asked Ramos about a "highlight report" Ramos had sent to the police director regarding his investigation into the series of carjackings, and directed Ramos's attention to the names of suspects Ramos had included in the report: defendant, K.G.6 and A.J.D. Dawsey's counsel then questioned Ramos as to why A.J.D., who was a suspect in the carjackings, was not included in the photo array

Q. Now, please call my attention to any of the photo arrays that you put together that had the photograph of [A.J.D.].

A. I couldn't use him in any photos. It was not possible in any way for him to be there.

Q. Why did you list him in a report to your police director as a possible suspect?

A. May I read this?

Q. Yes.

A. Through intelligence -- this is Al Kareem Thomas -- through intelligence, he is a known carjacker and associate of [A.J.D.] --

Q. No, no, that's not what I'm asking you. I'm asking you about . . . I'm sorry, pardon me, go ahead.

A. Number 2, Al Kareem Thomas through intelligence, he is a known carjacker and associate of [A.J.D.] who was recently arrested in a carjacked vehicle with a handgun.

Q. So, --

A. So, he couldn't be there.

Q. Okay. So, he couldn't be there. So, you ruled him out even though you put him on the memo to your police director?

A. It's listed information.

Q. Okay.

A. According to the director, we're allowed to make assumptions and give information. I had been working on over 30 carjackings at the time.

Defendant's counsel did not object or move for mistrial. After a few more questions, Dawsey's counsel requested a sidebar conference, at which he complained about his treatment by the court. The judge excused the jury. Dawsey's counsel stated his position for the record and the trial was adjourned for the evening. Although the opportunity to object or request curative action was clearly present, defendant's counsel did not raise any issue regarding Ramos's testimony.

On the following morning, the trial judge raised the issue of Ramos's testimony and the potential prejudice to defendant sua sponte. The trial judge advised counsel he would not have allowed the question asked by Dawsey's counsel if he knew what was in the highlight report, which was not in evidence. He asked defendant's counsel why she did not object when Ramos read a statement referring to defendant as a known carjacker. She replied that she generally does not object when a co-counsel is conducting cross-examination.

To alleviate potential prejudice to defendant, the trial judge suggested three options: 1) a strong curative instruction; 2) a mistrial as to both defendants; 3) a mistrial as to defendant only. Defendant's counsel rejected all three options.

Defendant's attorney provided extensive reasoning for her decision to decline the court's offer. First, she minimized the potential prejudice from the remarks, stating the offensive terms were "just a few words" in his testimony and that the "tone and manner" in which Ramos read that portion of his report did not emphasize the phrase, "known carjacker." Next, she stated she "strongly believe[d]" a curative instruction would highlight what should be minimized. She further believed she would effectively negate the potential prejudice when defendant testified because she could ask him if he had ever been arrested for carjacking and his answer would be "no." Finally, she stated, unequivocally, "I am not requesting a mistrial."

The court nevertheless proposed a strong curative instruction. Noting her general objection to an exercise of any of the three options, defense counsel stated "that curative instruction is certainly satisfactory to" defendant. Then, the court issued the following curative instruction

[L]adies and gentlemen of the jury, yesterday testimony was elicited by Mr. Adetula, Mr. Dawsey's attorney, from Irvington Detective Jerry Ramos, words to the effect that "Al Kareem Thomas was a carjacker," okay? Mr. Adetula asked Detective Ramos to read a portion of an internal police memo required by the Irvington police director to be completed at the end of each of day's activities by his detective squad.

As indicated by earlier testimony by Detective Ramos himself, this memo, known as a highlight memo, requested the detective to make assumptions not based on fact. This highlight report is not evidence and must not be considered by you as evidence. In fact, it is an assumption only, not based on any evidence introduced by any witness in this trial. Therefore, I direct you to completely disregard any reference whatsoever to this highlight report. And, in fact, you may not consider it for any purpose or any manner in your deliberations.

It should not even be discussed because it is not relevant, not based on fact, not based on evidence, a complete assumption not supported by anything whatsoever. You must disregard it. It has no value to you whatsoever as you weigh the real evidence introduced at this trial to determine whether or not defendants on trial are guilty or not guilty of the charges contained in the indictment. Is that clear? They're all shaking their heads. Thank you very much.

In its final instructions to the jury, the court reiterated that any testimony that was stricken is not evidence and must be disregarded.

Defendant testified that, in the summer of 2009, he owned and drove a 1994 white BMW, which was registered in his sister's name. He found the box of shotgun shells one day in his car, which is frequently driven by others, and brought it to his house. He denied ever possessing a shotgun. He has known Dawsey as a good friend since 2004 or 2005 and was not with Dawsey on August 20 or 21, 2009. He did not remember where he was on August 21, 2009.

Dawsey did not testify at trial and was acquitted of all charges.

Defendant was found guilty of second-degree conspiracy to commit carjacking (count five), the lesser-included offense of third-degree aggravated assault (count seven), and third-degree terroristic threats (count eleven), and was acquitted on other counts.

Defendant's motion for a judgment notwithstanding the verdict was denied.

The sentencing judge merged the terroristic threats charge into the conspiracy charge and imposed a term of five years on the aggravated assault charge and a consecutive sentence of ten years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the conspiracy charge.

Defendant presents the following issues for our consideration

POINT I

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE PREJUDICE RESULTING FROM DETECTIVE RAMOS'S TESTIMONY THAT DEFENDANT WAS "A KNOWN CARJACKER" AND WAS AN "ASSOCIATE" OF ANOTHER KNOWN CARJACKER WAS NOT CAPABLE OF BEING CURED BY THE TRIAL COURT'S LIMITING INSTRUCTION (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S POST-VERDICT MOTION TO SET ASIDE THE GUILTY VERDICT.

POINT III

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS BECAUSE THE STATE FAILED TO ESTABLISH ALL THE PREDICATE CIRCUMSTANCES FOR A "PLAIN VIEW" SEIZURE.

POINT IV

THE TRIAL COURT MISAPPLIED ITS DISCRETION AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO BE PROTECTED AGAINST THE ADMISSION OF UNRELIABLE OUT-OF-COURT IDENTIFICATIONS BY DENYING DEFENDANT'S MOTION FOR A PRETRIAL WADE HEARING (NOT RAISED BELOW).

POINT V

DEFENDANT'S CONVICTION FOR TERRORISTIC THREAT ON COUNT ELEVEN SHOULD BE REVERSED BECAUSE THE TRIAL COURT FAILED TO SPECIFICALLY INSTRUCT THE JURY ON HOW IT WAS TO ASSESS THE OUT-OF-COURT ORAL STATEMENTS ALLEGEDLY MADE BY DEFENDANT (NOT RAISED BELOW).

POINT VI

THE AGGREGATE 15 YEAR BASE CUSTODIAL SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.

A. IMPOSITION OF THE MAXIMUM STATUTORILY AUTHORIZED 10 YEAR SENTENCE ON THE DEFENDANT'S CONVICTION FOR CONSIPIRACY ON COUNT FIVE, AND THE MAXIMUM STATUTORILY AUTHORIZED 5 YEAR SENTENCE ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT ON COUNT SEVEN, CANNOT BE SUPPORTED BY A QUALITATIVE ANALYSIS OF THE AGGRAVATING FACTORS PRESENT.

B. CONSECUTIVE TERMS ON THE DEFENDANT'S CONVICTIONS FOR CONSPIRACY AND AGGRAVATED ASSAULT SHOULD NOT HAVE BEEN IMPOSED.

C. THE TRIAL COURT FAILED TO TAKE INTO CONSIDERATION THE "REAL TIME" CONSEQUENCES OF THE MANDATORY NERA PERIOD OF PAROLE INELIGIBILITY.

II.

This court does not entertain exceptions raised for the first time on appeal, State v. Robinson, 200 N.J. 1, 19-20 (2009), "unless [the alleged error] is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2. The arguments presented in Points IV and V were not raised in the trial court and the challenge to the verdict sheet underlying defendant's argument in Point II is also raised for the first time on appeal. These arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following brief comments.

A.

In Point II, defendant argues the trial court erred in denying his motion following the verdict for an acquittal on the conspiracy count because "the verdict sheet was fatally flawed." However, the verdict sheet and jury charge were reviewed with counsel at trial. There was no objection and, indeed, defendant's attorney affirmatively agreed to the wording of the verdict sheet. Therefore, defendant's challenge to the verdict sheet is reviewed for plain error.

The verdict sheet states,

As to the First Count,[7] alleging that on August 21, 2009, that Alkareem Thomas, with the purpose of promoting or facilitating the commission of a Carjacking, did agree with another person or persons to commit the crime of carjacking.

(Emphasis added).

Defendant argues that, since his co-defendant was acquitted, the language "with another person or persons" invited the jurors to speculate about an unknown co-conspirator not named in the indictment, resulting in his conviction for a crime not alleged in the indictment. This argument is entirely lacking in merit.

In reviewing a post-trial motion for an acquittal notwithstanding the verdict, R. 3:18-2,8 we "determine whether a reasonable jury 'could have' made the findings at issue in light of the evidence presented." State v. Papasavvas, 170 N.J. 462, 479 (2002). We apply a de novo review to determine

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Bunch, 180 N.J. 534, 548-49 (2004) (citation and internal quotation marks omitted).]

Here, although the victim's testimony only implicated defendant and Dawsey, both C.C. and J.F. described four males participating in the attempted carjacking. Therefore, a rational jury could find defendant guilty of conspiring with at least one other person, whether Dawsey or an unknown conspirator, in a carjacking pursuant to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-2.

In sum, there was no error in the verdict sheet and the trial judge properly denied defendant's motion for an acquittal.

B.

In Point IV, defendant contends the trial court abused its discretion by denying defendant's motion for a pretrial Wade9 hearing. Defendant concedes he must make a threshold showing of an impermissibly suggestive identification to be entitled to a Wade hearing. He has not made such a showing and indeed, the record fails to show that a motion for a Wade hearing was ever made on his behalf.

C.

The victim testified that during the course of the car-jacking, defendant said, "'[S]hoot the bitch'; 'Get the fuck out of the car before we kill you.'" The prosecutor alluded to this testimony in his summation. In Point V, defendant argues the trial court committed reversible error in failing to sua sponte give the jury a Kociolek10 charge, instructing the jury it should disregard a statement the victim attributed to him if they found the statement not to be credible. Pursuant to Rule 1:7-2, defendant's failure to object constitutes a waiver of his right to challenge that instruction on appeal unless the alleged error in the charge meets the plain error standard. State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009).

Since the statement was the threat upon which the charge of terroristic threat was based, the jury's determination as to whether the threat was made was implicit in its deliberations. Moreover, the trial court instructed the jury on the criteria for judging the credibility of witnesses.

We are satisfied errors alleged in Points II, IV and V were not clearly capable of producing an unjust result.

III.

In Point I, defendant argues Ramos's testimony that defendant was "a known carjacker" and an "associate" of another known carjacker was so prejudicial that it deprived him of a fair trial. He further claims the court's curative instruction was untimely and incomplete. This argument is also subject to review for plain error. R. 2:10-2.

It is beyond cavil that the statements defendant was "a known carjacker" and an "associate" of someone who had been arrested for carjacking were inadmissible and prejudicial. However, we must determine whether this evidence was "clearly capable of producing an unjust result," R. 2:10-2, within the context of the trial. In addition to the fact that defendant's attorney did not object, ask for a mistrial or any curative instruction from the court contemporaneously, that context includes the trial judge's sua sponte effort to remediate the situation, defense counsel's resistance to the court's proposals, her own contemporaneous evaluation that the prejudice was not substantial and could be negated by testimony she would elicit from defendant, and, finally, her consent to the instruction given.

"Not every trial error in a criminal case requires a reversal of the conviction." State v. Burton, 309 N.J. Super. 280, 289 (App. Div.), certif. denied, 156 N.J. 407 (1998); accord R. 2:10-2. "The plain fact of the matter is that inadmissible evidence frequently, often unavoidably, comes to the attention of the jury, and the record cannot be purged of all extraneous influence." State v. Winter, 96 N.J. 640, 646 (1984). The test is whether the error was "'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2).

"Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted) (discussing failure to object to remarks in prosecutor's summation), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In this case, we need not rely upon an inference. Defense counsel did not merely fail to object or request a mistrial; she provided the following extensive explanation for why she rejected the trial judge's offers to remediate

I am not . . . asking for a cure -- I think it will only serve to highlight what I don't think . . . the jury would have emphasized the known carjacker as much as through intelligence. . . . [I]t was only just a few words in many, many that Detective Ramos testifying to, certainly while on cross examination with Mr. Adetula.

I believe the tone and manner in which he . . . read that section of . . . his highlight report emphasized intelligence and not known carjacker. . . . I don't think that was highlighted by the manner in which Detective Ramos read that part of S-42, his highlight report. And I strongly believe that a strong curative instruction will only serve to highlight what we want to minimize, the reference to my client as a known carjacker.

Your Honor, . . . as the court is aware, . . . there has been consideration of my client testifying. . . . [M]y client, of course, has no prior record. . . . [I]n a response to known carjacker, though I'm not going to emphasize it in any way, I am going to ask if he has ever been arrested for carjacking, and he's going to be able to answer no.

. . . .

[S]o, again, that effectively will serve as a -- I believe an effective curative to that. I don't want to emphasize the report or that aspect of the report. . . . I recognize the court's concern about the prejudicial impact on my client. I am not requesting a mistrial.

The record thus reflects defense counsel's contemporaneous appraisal that the statement had only a limited potential for prejudice and her evaluation as to how such prejudice might best be defused. She minimized the extent of the prejudicial remark, stating it was "just a few words" in Ramos's extensive testimony and delivered in a "tone and manner" that did not emphasize the prejudicial aspect. She stated her strong belief that a curative instruction would exacerbate the potential prejudice. She had in mind an alternative method of addressing the potential prejudice that she deemed "effective." And, finally, she unequivocally stated she was not requesting a mistrial despite the trial judge's offer to grant one.

We find defense counsel's contemporaneous appraisal to be compelling support for the conclusion that the statements elicited by co-defendant's counsel on cross-examination were not clearly capable of producing an unjust result. Moreover, we find no fault in the trial judge's proactive approach to the issue and acquiescence to the course of action elected by defense counsel.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Where defense counsel has expressly rejected the offer of a mistrial, the trial court cannot be seen to err in accepting the implicit conclusion that no obvious failure of justice will result.

Moreover, in the face of defense counsel's abject refusal of curative efforts, the trial judge did not wash his hands of the situation. Rather, while respecting defense counsel's decision to forego a mistrial, the trial judge pursued the option of a curative instruction. Although initially resistant, defense counsel ultimately stated her approval of the instruction given.

Courts are generally reluctant "to reverse on the grounds of plain error when no objection to a charge has been made," State v. Weeks, 107 N.J. 396, 410 (1987), because a party's failure to object to a jury instruction is presumed to reflect an assessment of the charge as unlikely to prejudice his or her case. See State v. Macon, 57 N.J. 325, 333-34 (1971). Again, we need not rely upon such an inference because defense counsel affirmatively declared the instruction was satisfactory.

Significantly, the trial judge delivered a comprehensive and forceful instruction in which he explained the statement read was not evidence and why it was not worthy of the jury's consideration. The effect of improperly admitted evidence can be eradicated by an immediate and strong curative instruction to the jury to disregard the evidence if the instruction is "firm, clear, and accomplished without delay." State v. Vallejo, 198 N.J. 122, 134 (2009); accord Winter, supra, 96 N.J. at 648. Here, the judge instructed the jury to disregard the statement entirely. The firmness and clarity of the instruction here is evident and, we note, was explicitly approved by defense counsel, who stated the "curative instruction is certainly satisfactory to the defense . . . ."11

Juries are presumed to understand and follow instructions. State v. Feaster, 156 N.J. 1, 65 (1998), cert. denied sub nom., Kenney v. N.J., 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Further, because "[t]he adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached," Winter, supra, 96 N.J. at 647, we give considerable weight to the contemporaneous assessments of the court and defendant's attorney that the curative instruction satisfactorily met the challenge posed.

Defendant's contention that the instruction was untimely is unpersuasive. The offending comment was made at the end of the trial day. Ramos's testimony was interrupted to address the complaint by co-defendant's counsel of the court's treatment of him. The trial day terminated immediately thereafter and the trial judge raised the issue sua sponte the following morning, while Ramos was still on the stand. As there was no objection or request coming from defense counsel to address the issue in the interim, an argument that the court's curative action was untimely rings hollow. We therefore conclude the curative instruction was "firm, clear, and accomplished without delay." Vallejo, supra, 198 N.J. at 134.

Defendant also contends the prejudice to him is manifested by the fact Dawsey was acquitted despite nearly identical evidence. We disagree and note the case against defendant was stronger. In addition to in-court and out-of-court identifications by both the victim and C.C., incriminating evidence was seized from defendant's bedroom. Defendant's claim of unremediated prejudice is also substantially undermined by the jury's decision to acquit him of the remaining charges, including first-degree carjacking and the weapons offenses, and to convict him on the lesser included offense of third-degree aggravated assault rather than the second-degree offense charged in the indictment. Under the circumstances, we conclude the trial court's instructions to the jury were sufficient to eradicate any prejudice and the alleged error was not clearly capable of producing an unjust result.

IV.

In Point III, defendant argues that the seizure of photographs and the shotgun shell case from his bedroom constituted an "unlawful, warrantless pretextual search." He contends the trial court erred in denying his suppression motion because the State failed to establish all the predicate circumstances for a plain view seizure. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following limited comments.

As a preliminary matter, defense counsel expressly waived any objection to the admissibility of the photographs, acknowledging they were observed in plain view. Our consideration is therefore limited to the seizure of the shotgun shells.

To satisfy the plain view exception to the search warrant requirement, the officers must be lawfully within the viewing area, the discovery of the evidence must be inadvertent, and the officers must have probable cause to associate the items with criminal activity. State v. Bruzzese, 94 N.J. 210, 235-38 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). Addressing defendant's motion to suppress, the court found,

He's indicated earlier he was wearing his boxers, so they, you know, offered to get him some clothes. . . . He indicated to them where his clothes were located. And while inside the room, the shotgun shells and the photographs were readily in plain -- apparent to the officer without further looking whatsoever or searching whatsoever. They're in plain view. And, therefore, their recovery was reasonable and there was no violation of defendant's constitution rights.

Because the trial court's factual findings are supported by sufficient credible evidence in the record, they are binding on this court. Robinson, supra, 200 N.J. at 15; State v. Johnson, 42 N.J. 146, 162 (1964). As the trial court observed, the officers entered defendant's apartment to execute a lawful arrest. It was undisputed that defendant allowed the officers to go to his bedroom to retrieve clothes for him. The box labeled shotgun shells was lying on the dresser, readily observable to the officers. The association to the carjacking was evident in light of the fact witnesses stated the assailants had one or more shotguns. Accordingly, the suppression motion was properly denied.

V.

Defendant was convicted on three counts: second-degree conspiracy to commit a carjacking, the lesser included offense of third-degree aggravated assault, and third-degree terroristic threats. The court merged the terroristic threat charge into the conspiracy count, imposed a ten-year sentence subject to NERA on the conspiracy count and a consecutive five-year sentence on the aggravated assault charge.

Defendant challenges his sentence as manifestly excessive, arguing the trial judge erred in his analysis of the aggravating and mitigating factors, in imposing consecutive sentences, and in failing to take into consideration the "real time" consequences of the mandatory period of parole ineligibility under NERA.

A.

The sentencing court found aggravating factors (1), (3) and (9), N.J.S.A. 2C:44-1(a)(1), (3) and (9), and no mitigating factors. Defendant does not challenge the court's findings regarding aggravating factors (3) and (9) or argue the court erred in finding no mitigating factors. He argues the court erred in finding aggravating factor (1) applied because the victim was assaulted and threatened, a finding that improperly double-counted elements of the offenses of aggravated assault and terroristic threats.

Aggravating factor one requires the trial court to consider "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner." N.J.S.A. 2C:44-1(a)(1). A sentencing court must avoid "double-counting" facts that establish the elements of the relevant offense in making that determination. State v. Fuentes, 217 N.J. 57, 74-75 (2014); State v. Kromphold, 162 N.J. 345, 353 (2000). However, "[i]n appropriate cases, a sentencing court may justify the application of aggravating factor one, without double-counting, by reference to the extraordinary brutality involved in an offense." Fuentes, supra, 217 N.J. at 75.

"The Legislature chose comprehensive language to define aggravating factor one." State v. Lawless, 214 N.J. 594, 609 (2013).

Under this factor, the sentencing court reviews the severity of the defendant's crime, "the single most important factor in the sentencing process," assessing the degree to which defendant's conduct has threatened the safety of its direct victims and the public. "The paramount reason we focus on the severity of the crime is to assure the protection of the public and the deterrence of others." "The higher the degree of the crime, the greater the public need for protection and the more need for deterrence."

In that inquiry focused on the magnitude of the offense as a measure of the need to shield the public and deter future crimes courts applying aggravating factor one focus on the gravity of the defendant's conduct, considering both its impact on its immediate victim and the overall circumstances surrounding the criminal event.

[Id. at 609-10 (citations omitted).]

In State v. O'Donnell, 117 N.J. 210 (1989), the Supreme Court held that "cruel" conduct may give rise to an aggravating factor in a manslaughter sentencing when the defendant intended "'to inflict pain, harm and suffering in addition to intending death.'" Id. at 217-18 (quoting State v. Ramseur, 106 N.J. 123, 208 (1987)); see also State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992) (affirming sentencing court's finding that aggravating factor one applied when, in aggravated assault case, "the serious injuries were far in excess of that required to satisfy" statutory elements). Accordingly, "[a] sentencing court may consider 'aggravating facts showing that [a] defendant's behavior extended to the extreme reaches of the prohibited behavior.'" Fuentes, supra, 217 N.J. at 75 (quoting State v. Henry, 418 N.J. Super. 481, 493 (Law Div. 2010)).

Here, in finding aggravating factor one, the court stated,

[T]his was a carjacking, and it was worse than a carjacking because there was no reason to beat her, to beat the victim. The victim was beaten, okay? She was threatened to be shot. Obviously, that's terroristic threats and that was part of the carjacking. But the beating of her, the smashing the butt of the rifle onto her face just wasn't necessary, okay? Absolutely not. And, therefore, it's not an element of the offense and I find aggravating factor-1 applies there. She didn't have to be beaten to take her car, alright?

Unlike the homicide cases in which the sentencing court improperly relied upon the death of a victim as supporting aggravating factor one, the sentencing judge's comments here related to the fact the brutal assault upon M.C. was unrelated to any of the elements of a conspiracy to commit a carjacking or a terroristic threat charge.

The aggravated assault charge required proof defendant knowingly and recklessly, under circumstances manifesting extreme indifference to the value of human life, caused or attempted to cause serious bodily injury to M.C. "Serious bodily injury" is defined as "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1. Arguably, this element overlaps with the trial judge's findings to support aggravating factor one.

The injury suffered by M.C. is consistent with the definition of a "serious bodily injury." However, the evidence here warrants consideration of defendant's violence against M.C. as extending to the "extreme reaches" of the behavior prohibited by a third-degree aggravated assault. See Fuentes, supra, 217 N.J. at 75. As the sentencing judge observed, the threat here was to shoot her to death. She was struck not once, but repeatedly, with the butt of the shotgun, and it is undoubtedly true her injuries would have been far worse if defendant was not interrupted by a witness who said he had called the police. Under these circumstances, we discern no abuse of discretion in the court's finding of aggravating factor one.

B.

Defendant next argues that consecutive sentences should not have been imposed. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), provided the following guidelines for determining whether concurrent or consecutive sentences should be imposed

(1) There can be no free crimes in a system for which the punishment shall fit the crime;

(2) The reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) Some reasons to be considered by the sentencing court should include facts relating to the crime, including whether or not

(a) the crimes and their objectives were independent of each other;

(b) the crimes involved separate acts or threats of violence;

(c) the crimes were committed at different times or separate places, rather being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous.

[Id. at 643-44.]

A sentencing court applies these factors qualitatively, not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may impose consecutive sentences "even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28; see State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (holding that concurrent sentences were not mandated even where the crimes were connected by a "unity of specific purpose," "were somewhat interdependent of one another," and were both committed in a short time frame), certif. denied, 165 N.J. 492 (2000). "'[I]n fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing.'" State v. Friedman, 209 N.J. 102, 122 (2012) (alteration in original) (quoting Yarbough, supra, 100 N.J. at 630). The trial court must expressly state the reasons for imposing consecutive sentences or risk remand for resentencing. State v. Miller, 108 N.J. 112, 122 (1987).

In this case, the sentencing court found,

With respect to count-11, the third-degree terroristic threat, I find the terroristic threat was part of the carjacking and that would merge into count-5. However, I don't find that the third-degree aggravated assault, count-7, merges. I find . . . the assault was a separate and distinct crime from the carjacking itself. Again, the woman was beaten for no reason whatsoever.

Defendant does not contend the sentencing court failed to properly evaluate the Yarbough factors or to explain why consecutive sentences are warranted. Cf. State v. Miller, 205 N.J. 109, 129-31 (2009). Instead, he makes a blanket argument that consecutive sentences should not have been imposed because the conspiracy and terroristic threats occurred in the same time period and involve the same conduct. Although we disagree with defendant's theory, we conclude a remand is required.

"When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal." Id. at 129. The trial judge's evaluation here was limited to findings that the assault was a separate and distinct crime and that the beating administered to M.C. was entirely unnecessary to effect the carjacking. These findings implicate the principle that there are no free crimes and the factor that applies when the objectives of the offenses are independent of each other.

We recognize that the analysis here is qualitative, rather than quantitative. However, the sole factor relied upon by the sentencing judge here was that the aggravated assault and the conspiracy to commit a carjacking were independent of each other. The evidence here does not support that conclusion. M.C. testified that her assailants repeatedly ordered her to get out of the car. Their threats of violence and the beating administered were clearly designed to effect her removal from the car so they could achieve their objective of stealing it. No other motive is evident.

When a trial court is faced with the decision whether to impose consecutive or concurrent sentences, the court must determine whether the Yarbough factor under consideration "'renders the collective group of offenses distinctively worse than the group of offenses would be were that circumstance not present.'" Carey, supra, 168 N.J. at 428 (quoting People v. Leung, 7 Cal. Rptr. 2d 290, 303 (1992)). Examples of "cases that are so extreme and so extraordinary" to warrant deviation from the guidelines include "[c]rimes involving multiple deaths or victims who have sustained serious bodily injuries," ibid., and offenses "committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior." Yarbough, supra, 100 N.J. at 644.

Because we find the trial judge failed to identify reasons supported by the evidence that warrant the imposition of consecutive sentences, we remand for resentencing and for the court to consider and evaluate the relevant factors in determining whether a consecutive sentence should be imposed. See Carey, supra, 168 N.J. at 424; Miller, supra, 108 N.J. at 122.

C.

Lastly, defendant asserts that the court failed to take into consideration the real-time consequences of the NERA periods of parole ineligibility. However, "the impact of the eighty-five percent period of parole ineligibility on the time defendant would spend in custody [is] not [a] statutory mitigating factor[] and thus [does] not need to be addressed by [the] [j]udge in sentencing." State v. Bieniek, 200 N.J. 601, 610 n.1 (2010). The judge's failure to consider the real-time consequences of imposing this sentence does not, therefore, provide an independent basis for reversing defendant's sentence.

Defendant's convictions are affirmed. We reverse and remand his sentence for the court to determine whether a consecutive sentence is appropriate here and to set forth the reasons for that determination.

1 We use initials to protect the privacy of the witnesses in this case.

2

However, in her written statement, M.C. described this male as 5'8" tall.

3 At trial, Ramos stated he was "currently" a patrolman.

4 During this procedure, C.C. initially selected a photograph of another person, who was not charged, as the carjacker he later identified as Dawsey. However, he told the officer he was not 100% certain, although it was close, he did not believe it was the assailant. On cross-examination, he admitted that another photograph in the arrays, not selected by C.C., was of Dawsey.

5 However, in response to the trial judge's inquiry, defendant's trial counsel stated that prior counsel had made "generalized suppression motions."

6 We use initials for the names of persons identified as suspects but not charged in this case.

7 Following the severance of counts relating only to Dawsey, the conspiracy charge, which was originally count five, was renumbered as count one for defendant's trial.

8 In his brief, defendant cites Rule 3:20-1, which governs a motion for a new trial, although he did not seek a new trial.

9 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

10 State v. Kociolek, 23 N.J. 400, 421-22 (1957).

11 Defendant also argues for the first time on appeal that the trial court failed to specifically mention that defendant was also called an "associate" of another known carjacker. This argument lacks merit in light of counsel's approval of the instruction at trial and the fact the instruction included a direction to "completely disregard any reference whatsoever to this highlight report." (emphasis added).