STATE OF NEW JERSEY v. WOODROW MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0124-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WOODROW MILLER,

Defendant-Appellant.

_______________________________

October 4, 2016

Argued September 13, 2016 Decided

Before Judges Yannotti, Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-06-1174.

Susan Brody, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, of counsel and on the brief).

Claudia Joy Demitro, Deputy Attorney General, argued the cause for respondent (Christoper S. Porrino, Attorney General, attorney; Ms. Demitro, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (a)(2) (Count One); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (Count Two); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (Count Three); fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d) (Count Four); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (Count Six); and fourth-degree obstruction of justice, N.J.S.A. 2C:29-1 (Count Seven).1 We affirm.

Defendant, nineteen years old at the time, shot and killed his seventeen-year-old girlfriend (the victim) between 3:00 p.m. and 5:00 p.m. on December 15, 2009. The shooting occurred in a first-floor apartment during an argument about whether he had cheated on her. In addition to the gunshot wound to her head, the victim sustained multiple bruises to both sides of her neck and below her left jaw. She also had a bullet-graze wound on the base of her left index finger. Defendant attempted to cover up the murder by using bleach to wipe off blood from a wall, bringing a blood-stained bedsheet to the laundry facilities in the basement, stuffing other blood-soaked bedding into a laundry bag, and disposing of a shell casing in a toilet bowl.

Defendant called 9-1-1 and notified the police about the shooting. In the 9-1-1 call, defendant referred to the victim first by saying "[m]y friend just shot herself." During the call, he clarified that statement by stating "[m]y girlfriend just shot herself," and then by saying "[m]y ex-girlfriend just shot herself."

The police responded to the 9-1-1 call, arrived at the apartment at approximately 5:10 p.m., and banged on the front door and windows without a response. A police dispatcher called defendant while the police waited and, five minutes later, defendant opened the door, allowed the police in, and led them to the victim's body, which was located in a bedroom towards the rear of the apartment. As defendant led the police to the body, he was not crying, sweating, shaking, or screaming, and he otherwise was calm and showed no emotion.

The police noticed defendant had a gunshot wound to his left forearm. As a result, the police called an ambulance for defendant. While standing in the apartment, defendant told the police that he and the victim arrived at the apartment after school at approximately 3:30 p.m. According to a sergeant who testified at trial, defendant further stated to him that "[t]hey got into an argument about [defendant] being involved with another girl[, the victim] pulled out the firearm from her pocketbook[,] and they struggled over the firearm with her shooting herself." Aside from this one reference, there was no other evidence that defendant and the victim may have physically struggled together.

In the bedroom, the police found the victim's body; a loaded semi-automatic Colt .45 pistol with a scratched off serial number; a .45-caliber bullet lodged in the blood-smeared wall; a blood-stained bottle of bleach on the bed; a bloody carpet; a .45-caliber shell casing on the floor near the bed; and a laundry bag containing items covered in blood, including bedding, a T-shirt, towel, and washcloth. The bullet and shell casing matched the loaded pistol.

The police made other observations in the apartment and front yard. In the apartment hallway, the police spotted a trail of blood leading to basement stairs towards a laundry facility. In the basement, they found a blood-stained sheet in a laundry basket. They also found bedding with blood on it in another first-floor bedroom in the apartment. Two days after the shooting, the police located six rounds of .45 caliber ammunition in the apartment, consistent with the same ammunition used in the crime. In the front yard, the police found a .40 caliber bullet unrelated to the murder.

At trial, the State produced testimony from several witnesses. The State introduced testimony from the sergeant; numerous detectives; Dr. Junaid Shaikh, a forensic medical examiner; and a ballistics expert. Defendant did not testify. After the appropriate mergers, the court imposed a concurrent prison term of fifty-five years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to five years in prison with two and one-half years of parole ineligibility.2

On appeal, defendant raises the following arguments

POINT I

THE TRIAL COURT'S FAILURE TO PROVIDE THE JURY WITH AN INSTRUCTION AS TO PASSION/PROVOCATION MANSLAUGHTER DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not Raised Below).

POINT II

THE TRIAL WAS TAINTED WHEN THE PROSECUTOR DELIBERATELY ELICITED TESTIMONY ABOUT A PROJECTILE FOUND IN THE FRONT YARD WHICH SHE KNEW WAS ENTIRELY UNRELATED TO THIS CASE, AND THE COURT ERRED IN FAILING TO STRIKE THAT TESTIMONY FROM THE RECORD. (Not Raised Below).

POINT III

THE MEDICAL EXAMINER'S CONCLUSION THAT THE CAUSE OF [THE VICTIM'S] DEATH HAD BEEN [A] HOMICIDE WAS NOTHING MORE THAN NET OPINION, AND THE COURT ERRED IN NOT EXCLUDING IT FROM TRIAL. (Partially Raised Below).

POINT IV

THE TRIAL COURT ERRED IN RULING THAT THE CONTENTS OF [THE VICTIM'S] MYSPACE ACCOUNT, AS WELL AS EVIDENCE OF HER PHYSICAL FIGHT WITH ANOTHER GIRL OVER [DEFENDANT'S] UNFAITHFULNESS, WERE INADMISSIBLE.

A. The MySpace Account.

B. Evidence of the Fight.

POINT V

DEFENDANT'S RIGHT TO A FAIR TRIAL WAS SEVERELY COMPROMISED WHEN THE TRIAL JUDGE SIMPLY DISMISSED HIS EXPRESSION OF DIS-SATISFACTION WITH HIS TRIAL ATTORNEY WITHOUT CONDUCTING ANY INQUIRY AS TO THEIR BASIS. (Not Raised Below).3

POINT VI

THE AGGREGATE [SIXTY]-YEAR TERM IMPOSED ON DEFENDANT WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.

I.

We begin by addressing defendant's contention as to the jury charge.

Defendant contends the judge erred by failing to give a passion/provocation manslaughter charge to the jury. Because defendant did not request the charge at trial, or object to the court's instructions, we review defendant's arguments for plain error, that is, error "clearly capable of producing an unjust result." R. 2:10-2. A conviction will be reversed under this standard only if the error is "'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" State v. Daniels, 182 N.J. 80, 95 (2004) (alteration in original) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). "The mere possibility of an unjust result is not enough." State v. Funderburg, 225 N.J. 66, 79 (2016).

In addition to not requesting the charge at trial, defendant did not object to its omission from the court's jury instructions. "The appropriate time to object to a jury charge is 'before the jury retires to consider its verdict.'" Funderburg, supra, 225 N.J. at 79 (quoting R. 1:7-2). "Pursuant to Rule 1:7-2, a defendant is required to challenge instructions at the time of trial or else waives the right to contest the instructions on appeal." State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) (citing State v. Adams, 194 N.J. 186, 206-07 (2008)), certif. denied, 205 N.J. 81 (2011). "Where there is a failure to object, it may be presumed that the instructions were adequate." Belliard, supra, 415 N.J. Super. at 66 (quoting State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div.), certif. denied, 177 N.J. 572 (2003)). However, because "[a]ppropriate and proper charges to a jury are essential for a fair trial," State v. Daniels, 224 N.J. 168, 180 (2016), and "are especially critical . . . in criminal matters, improper instructions on material issues are presumed to constitute reversible error." State v. Jenkins, 178 N.J. 347, 361 (2004).

As to unrequested charges, a trial judge "has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." Ibid. On the other hand, the judge "has no duty to instruct the jury sua sponte on an included offense charge if the evidence does not clearly indicate or warrant such a charge." State v. Rivera, 205 N.J. 472, 489 (2011) (quoting State v. Thomas, 187 N.J. 119, 132 (2006)). "[A] trial court does 'not . . . have the obligation on its own meticulously to sift through the entire record in every murder trial to see if some combination of facts and inferences might rationally sustain a [lesser-included] charge.'" Funderburg, supra, 225 N.J. at 70 (second alteration in original) (quoting State v. Choice, 98 N.J. 295, 299 (1985)). "[T]he need for the charge must 'jump off' the proverbial page." State v. R.T., 205 N.J. 493, 510 (2011) (quoting State v. Denofa, 187 N.J. 24, 42 (2006)).

"[T]he charging of lesser-included offenses [is] governed by statute. N.J.S.A. 2C:1-8 provides that a trial court 'shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.'" Funderburg, supra, 225 N.J. at 81 (quoting N.J.S.A. 2C:1-8(e)). "Thus, 'to justify a lesser-included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense as well as to convict the defendant of the lesser, unindicted offense.'" Ibid. (quoting State v. Savage, 172 N.J. 374, 396 (2002)). The evidence must clearly indicate that there is a rational basis to acquit the defendant of the greater offense, and to convict the defendant of the lesser offense.

Passion/provocation manslaughter is a murder committed in the heat of passion in response to provocation, N.J.S.A. 2C:11-4(b)(2), and "is comprised of four elements: '[1] the provocation must be adequate; [2] the defendant must not have had time to cool off between the provocation and the slaying; [3] the provocation must have actually impassioned the defendant; and [4] the defendant must not have actually cooled off before the slaying.'" Funderburg, supra, 225 N.J. at 80 (alterations in original) (quoting State v. Mauricio, 117 N.J. 402, 411 (1990)).

The first two elements of passion/provocation manslaughter are measured by a "purely objective" standard. State v. Foglia, 415 N.J. Super. 106, 126 (App. Div.) (quoting Mauricio, supra, 117 N.J. at 412), certif. denied, 205 N.J. 15 (2010)). The provocation must be "sufficient[] to 'arouse the passions of an ordinary man beyond the power of his control.'" Funderburg, supra, 225 N.J. at 80 (quoting State v. King, 37 N.J. 285, 301-02 (1962)). In deciding whether an instruction on passion/provocation manslaughter is warranted, the judge should view the evidence "in the light most favorable to the defendant," and should withhold the charge only when "no jury could rationally conclude that the State had not proven beyond a reasonable doubt that the asserted provocation was insufficient to inflame the passions of a reasonable person. . . ." Mauricio, supra, 117 N.J. at 412.

Applying the heightened standard applicable to an unrequested charge, we conclude that the evidence does not clearly indicate or warrant a passion/provocation charge. At the charge conference on January 30, 2014, the judge addressed whether to include the lesser-included offenses of aggravated manslaughter and reckless manslaughter. Focusing primarily on recklessness, the judge stated

My inclination would have been to charge [reckless manslaughter] . . . you have some statements here about there being a struggle and . . . a jury [may want] to somehow infer something as to there being a struggle, and whether the gun discharged . . . during the course of the struggle.

Defense counsel responded by stating he could not remember "any testimony with regard to a struggle."4

Defense counsel's inability to remember any testimony about a struggle, and defendant's statement to the judge that he did not say anything about a struggle, demonstrate that the passion/provocation charge was not clearly indicated by the evidence, and these comments are consistent with the defense trial strategy that the victim killed herself because she was unable to cope with defendant cheating on her. At the charge conference, the assistant prosecutor commented on the evidence adduced at trial and noted that a struggle would have been completely inconsistent with defendant's defense, which was that the victim committed suicide, rather than that he recklessly killed the victim himself. The judge charged the jury on the lesser-included offenses of aggravated manslaughter and reckless manslaughter, which the jury unanimously rejected.

Appellate counsel argues for the first time that the charge is clearly indicated based on the passing reference to a struggle in the sergeant's testimony. On appeal, defense counsel suggests that defendant shot the victim in an imperfect self-defense. But defense counsel acknowledged before us that defendant abandoned the idea of using the defense of self-defense approximately one year before the trial commenced. And defendant did not use at trial the defense of imperfect self-defense, which is not a recognized defense, but is described as "an honest subjective belief on the part of the killer that his or her actions were necessary for his or her safety, even though an objective appraisal by reasonable people would have revealed not only that the actions were unnecessary, but also that the belief was unreasonable." State v. Bowens, 108 N.J. 622, 628 (1987); see also State v. Bass, 224 N.J. 285, 309 n.6 (2016).

Instead, the evidence at trial about how the victim was killed focused on whether defendant murdered the victim or whether she committed suicide, which defense counsel emphasized in his opening and closing statements to the jury. There was no evidence that defendant shot the victim in the heat of passion in response to provocation. In his opening statement, defense counsel pointed to the victim's diary entries to show she wanted to kill herself. Referring to her diary, defense counsel stated

We have an opportunity here to understand what [the victim] was going through . . . she says, I want to kill myself. [She said] I want to do it in front of [defendant] so he can feel the pain that . . . I'm feeling.

. . . .

The State didn't tell you that she had . . . [defendant's] name tattooed on her [and] that she tried to commit suicide before.

. . . .

[I]n this diary[,] she does not say anything about [defendant] being violent towards her.

. . . .

And here is the culmination of . . . a young girl who could not cope with love.

. . . .

[Defendant] called [9-1-1] . . . [and] [f]rom the inception said that [the victim] committed suicide.

Defense counsel did not mention defendant and the victim had struggled or defendant's actions were necessary for his or her safety. That is so because there was no evidence to support such a contention.

There is no rational basis for a jury to come to a different result. Not only is the objective provocation missing, the third element that the provocation must have actually impassioned defendant is missing. There was no evidence that defendant was impassioned. Instead, all evidence shows defendant remained calm as evidenced by the 9-1-1 call, taking five minutes to open the front door to responding officers, and the officers' descriptions of his demeanor at the scene.

None of this supports defense counsel's new theory that defendant killed the victim in the heat of passion. And in his closing statement, defense counsel again asserted that the victim killed herself. He stated

[Y]ou are going to read the diary. You won't hear any violence in the relationship of [defendant and the victim].

. . . .

Now, let's . . . consider how this started. It starts with [defendant] calling [9-1-1] himself.

. . . .

He says "[m]y friend just shot herself." Then he says, "[m]y girlfriend just shot herself." And then he says, "[m]y ex-girlfriend just shot [herself]."

Defense counsel then proceeded to demonstrate in his summation how the evidence of the shooting itself supports defendant's defense that the victim committed suicide. Consistent with the evidence adduced at trial, he did not assert that defendant killed the victim in the heat of passion in response to provocation. There is no evidence to support such an assertion.

As a result, and given the weakness of the evidence of passion/provocation manslaughter, we have determined that the evidence did not clearly indicate the jury could convict on a passion/provocation charge and that the failure to instruct the jury sua sponte could not have "led the jury to a result it otherwise might not have reached." See Macon, supra, 57 N.J. at 336.

II.

Defendant contends the judge erred by failing to exclude Dr. Shaikh's testimony on the cause of death because it constituted a net opinion. Dr. Shaikh opined at trial that the cause of death was a gunshot wound to the head, and that the manner of death was consistent with a homicide.

Prior to trial, defense counsel moved to exclude Dr. Shaikh's anticipated testimony arguing that the opinion in the doctor's report on the cause of death constituted a net opinion. The judge denied that motion stating that

[there is] significant factual information contained in the report that I think includes facts and data which the case law requires for an opinion not to be a net opinion.

. . . .

Therefore, I [am] going to allow [Dr. Shaikh] to testify as to his opinion that the manner of death was a homicide, provided of course, during the testimony there is a sufficient foundation laid for that opinion.

. . . .

To me, it appears there's sufficient facts and data contained [in the report] for [the jury] to draw that conclusion. And ultimately it's [a] jury question, and [they will] be instructed appropriately.

Defense counsel did not object to Dr. Shaikh's trial testimony. As defendant did not object to the admission of the testimony at trial, we will not reverse on this ground unless any error was clearly capable of producing an unjust result. Macon, supra, 57 N.J. at 337. We see no error, let alone plain error.

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). "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 the 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)).

The medical examiner's testimony did not constitute a net opinion. "[T]he net opinion rule . . . forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006). "Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" Ibid. (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

Here, Dr. Shaikh, who relied on the autopsy that he performed, explained that his determination concerning the manner of death was also "[b]ased on the . . . investigation that is provided to me by the law enforcement agents[.]" He reviewed the investigation notes containing information about the crime, such as defendant's injury, the bullet lodged in the wall, defendant's "bizarre" statements, and later review of the victim's diary. He stated that he made his own determination "based on the circumstances, the evidence, my examination," and he testified further that "there's two individuals involved, it's a and I looked at the examined the body, it's a contact gunshot wound, and the circumstance that were described . . . [and] I made this determination that the manner of death is a homicide." Defense counsel extensively cross-examined Dr. Shaikh on the basis for his opinion testimony on such things as the victim's weight, psychological state, medical treatment, the journal, the gun, whether he examined defendant, and whether the victim's hands were tested for gunshot residue.

In rendering his opinion testimony, Dr. Shaikh made no determination that defendant was guilty of any crime. He simply testified as to the physical properties that caused the victim's death, which is consistent with N.J.R.E. 704 (stating that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact"). Based on his review of the body, he opined the death was consistent with a homicide essentially ruling out a self-inflicted injury. See State v. Jamerson, 153 N.J. 318, 337 (1998) (permitting a forensic pathologist to rule out the "possibility that the injuries were self-inflicted").

Finally, the judge carefully instructed the jury on how to weigh Dr. Shaikh's testimony. The judge followed the model jury charge and instructed the jury that it was not bound by the testimony and may reject it in part or in whole. He explained the jurors were the sole judges of the facts. He followed the model jury charge before the doctor testified, and then did so in the final jury charge. The jury simply rejected the points defense counsel made during his rigorous cross-examination of the doctor.

Here, the medical examiner enumerated the facts and data he relied upon in formulating his opinion. His testimony explained in detail the basis for his conclusion that the victim's death was caused by a gunshot wound to the head, in a manner consistent with a homicide. We therefore reject defendant's argument that the doctor rendered a net opinion.

III.

We have considered defendant's remaining contentions in light of the record and applicable legal principles and conclude they are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.

As to the argument contained in Point II raised for the first time, that the trial was tainted by the admissibility of an unrelated projectile found in the front yard, we conclude there was no plain error. Here, defense counsel repeatedly argued to the jury that the police investigation was incomplete. Without objection, the State introduced evidence of the .40 caliber bullet, as well as dozens of photographs from the crime scene, to show the completeness of the investigation. Defense counsel also cross-examined a witness about the bullet. The testimony concerning the bullet was elicited in the context of other bullets found at the crime scene, which demonstrated how the police analyzed each item and compared it to the murder weapon.

We reject defendant's argument in Point IV, that the judge erred by excluding (a) postings on the victim's MySpace account to show she was jealous, obsessive, and had suicidal ideations, and (b) evidence of a previous fight between the victim and another woman. We accord "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). "[T]he decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Goodman, 415 N.J. Super. 210, 224-25 (App. Div. 2010) (quoting State v. Carter, 91 N.J. 86, 106 (1982)), certif. denied, 205 N.J. 78 (2011). The MySpace postings had no reference to suicide and did not express any present intention or plan by the victim to kill herself. The judge concluded that the previous fight was "not sufficiently probative of suicidal intent." Furthermore, the purported evidence was cumulative of the inferences to be drawn from the victim's journal. We see no abuse of discretion.

As to defendant's contentions in Point V, that the judge dismissed defendant's dissatisfaction with his trial counsel, we note that after defendant spit on his first public defender, the judge adjourned the trial for six weeks for a new public defender to represent defendant. Defendant then kicked the second public defender, outside the presence of the jury. A court cannot require that the Public Defender's Office "assign new counsel to a defendant who [is] dissatisfied with the attorney assigned to represent him, absent a showing of 'substantial cause.'" State v. Coon, 314 N.J. Super. 426, 438 (App. Div.) (quoting State v. Lowery, 49 N.J. 476, 489-90 (1967) and State v. Wiggins, 158 N.J. Super. 27, 34 (App. Div. 1978)), certif. denied, 157 N.J. 543 (1998). "The constitutional right to the assistance of counsel provides a fair opportunity to secure and consult counsel of a defendant's own choice, but there is no absolute right to a particular counsel." Ibid. (citing State v. Reddy, 137 N.J. Super. 32, 35 (App. Div. 1975)). On this record, we are convinced defendant failed to demonstrate "substantial cause" entitling him to new assigned counsel.

Finally, we reject defendant's contention in Point VI, that the sentence was excessive. Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed which is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215.

We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

Here, the judge did not abuse his discretion by sentencing defendant. He found aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk of reoffending), N.J.S.A. 2C:44-1(a)(6) (extent of defendant's criminal record), and N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The judge also made the requisite factual findings to reject mitigating factors. See State v. Bieniek, 200 N.J. 601, 609 (2010) (noting that while a judge does not need to "explicitly reject each and every mitigating factor argued by a defendant," there must be "reasons for imposing [the] sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision").

There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also Bieniek, supra, 200 N.J. at 612 (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

Affirmed.

1 The court dismissed Count Five of the indictment charging defendant with third-degree endangering the welfare of an injured victim, N.J.S.A. 2C:12-1.2.

2 The judge merged the conviction for possession of a weapon for an unlawful purpose (Count Two) into the murder conviction (Count One), and merged the conviction for obstruction of justice (Count Seven) into the conviction for hindering apprehension (Count Six). The judge sentenced defendant to fifty-five years in prison subject to NERA on Count One; a concurrent nine-year prison term with four and one-half years of parole ineligibility on Count Three; a concurrent eighteen months in prison on Count Four; and the consecutive five-year prison term with two and one-half years of parole ineligibility on Count Six.

3 To the extent that defendant claims he received ineffective assistance of trial counsel, we note "[o]ur courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence [16] that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Ordinarily, a "defendant must develop a record at a hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice." State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We therefore conclude that any ineffective assistance of counsel contentions should be raised in a post-conviction relief petition.

4 We note that defendant himself remarked at the charge conference "I didn't say that," which indicates he believed there was no struggle and that the sergeant's testimony must have mischaracterized defendant's statement on the night of the shooting. Such a comment, however, is of no import because it does not constitute evidence adduced at the trial.