STATE OF NEW JERSEY v. ALPHONSO BRUNSON

NOT FOR PUBLICATION WITHOUT THE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.

ALPHONSO BRUNSON,

Defendant-Appellant.

______________________________

May 26, 2016

Submitted December 14, 2015 Decided

Before Judges Simonelli and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 88-06-1035.

Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Alphonso Brunson appeals from the January 2, 2013 orders of the Law Division denying his motion for new discovery and his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

I.

We set forth the procedural history in detail because it has importance to defendant's arguments and our decision. Following a thirteen-day jury trial in May 1990, defendant was convicted of purposeful and knowing murder, N.J.S.A. 2C:11-3a(1) and (2); felony murder, N.J.S.A. 2C:11-3a(3); first-degree robbery, N.J.S.A. 2C:15-1; eight counts of second-degree burglary, N.J.S.A. 2C:18-2; four counts of third-degree theft, N.J.S.A. 2C:20-3; and second-degree attempted burglary, N.J.S.A. 2C:5-1 and 2C:18-2. At sentencing, the judge found the existence of three aggravating factors1 but no mitigating factor, and imposed an aggregate sentence of life imprisonment, plus fifty years, with a fifty-one-year parole disqualifier. We affirmed on direct appeal, State v. Brunson, No. A-0278-90 (App. Div. Nov. 29, 1994), and the Supreme Court denied defendant's petition for certification, 140 N.J. 327 (1995).

Thereafter, in 1996, defendant, represented by counsel, filed his first PCR petition, arguing: (1) the trial court failed to sua sponte conduct a hearing on defendant's competence to stand trial, and (2) ineffective assistance of counsel (IAC) for failure to call psychiatrist Robert T. Latimer and re-call witness Fanuel Quezada for cross-examination concerning his contact with the murder victim.

On April 23, 1996, the trial court issued an order denying the PCR petition. Following this denial, defendant appealed pro se, questioning his own competency to stand trial and asserting ineffective assistance of trial counsel due to her failure to re-call Quezada. Defendant also claimed that his appellate counsel was ineffective for failing to argue these points. We affirmed the denial of defendant's PCR petition, State v. Brunson, No. A-3000-96 (App. Div. May 6, 1998), and the Supreme Court denied certification, 156 N.J. 406 (1998).

Next, on October 4, 1999, defendant filed a petition for writ of habeas corpus with the United States District Court of New Jersey. The petition was denied sometime in 2000.

In September 2011, defendant filed a pro se motion, and for reasons that are unclear from the record it was re-filed by designated counsel on January 18, 2012, seeking to compel discovery of any of the State's investigation reports, statements, notes, audio, video, and transcribed tapes pertaining to his arrest and during his time at the Edison Police Department (EPOD) interrogation room from January 21 to 24, 1988. Defendant alleged that he was placed in a freezing room, almost naked, without a blanket or mattress for three days; coercive tactics were used to obtain a confession in violation of his Miranda2 rights; and, recordings of his interrogations were improperly withheld. Furthermore, he argued that the audio and video recordings were exculpatory because they would prove that coercive conditions of his interrogation led to his false confession.

On June 8, 2012, Judge Michael A. Toto ordered the State to provide defendant all audio and video recordings obtained by the EPOD in connection with defendant's indictment. If no recordings were available, the State was ordered to provide an affidavit or certification indicating these facts.

Almost a month later, defendant submitted a letter to the court enclosing the following materials in support of his discovery motion: a hand-drawn diagram of the holding cell and hallway area of the EPOD; the EPOD's prisoner records indicating what clothes were taken from defendant; the Federal Bureau of Investigation's (FBI) forensic analysis of defendant's clothes; and detainee logs reflecting when defendant slept and when he left his cell for interrogation. The letter also requested that the court consider defendant's argument raised at oral argument in 1989 that, eleven items, including a list of coins and a cash box material to his defense, were seized during the police department's investigation and destroyed before they could be examined by the defense.

In compliance with the court's order, the State provided two videotape recordings which existed related to defendant's arrest while in the custody of the EPOD: (1) a recording of an interview with defendant and his physician and (2) a recording of an interview with defendant's mother. An affidavit by the Edison Chief of Police and two memorandums from the Middlesex County Prosecutor's Office, maintained that in 1988, the time in question, the video cameras in the holding cells and in the immediate area outside the cells were for observation purposes only and did not record. The Chief also asserted that he had reviewed defendant's investigative file kept by the police department, and there were no audio or video recordings of any statements made by defendant to the police during that time.

Despite the State's compliance with Judge Toto's order, defendant filed another pro se motion on September 30, 2012, to expand discovery concerning video surveillance by the Edison police department, and a letter in October, alleging "newly discovered evidence" regarding former Edison Municipal Court Judge Robert B. Blackman and the EPOD.

With regard to Judge Blackman, who presided over defendant's arraignment in 1988, defendant alleged that he was prejudiced against defendant for several reasons. Judge Blackman had a real estate license and previous real estate dealings in Edison, where defendant's burglaries occurred. Judge Blackman also had a business relationship with a former Edison Chief of Police,3 and was disciplined in 1991 for attending a social event hosted by a convicted felon. Defendant further cited disciplinary admonitions against the judge between 2006 and 2009, resulting in the judge being administratively ineligible to practice law due to his failure to file the annual Interest on Lawyers Trust Accounts registration statement.

With respect to the police department, defendant submitted a newspaper article concerning a pattern of misconduct in the department. Though the article addressed incidents subsequent to defendant's arrest, defendant alleged that the behavior was pervasive at the time of his arrest. In particular, defendant cited misconduct by Charles Fekete, defendant's arresting officer, in a cover-up of a 1977 brutal beating of two men and Fekete's 1991 conviction and ten-year imprisonment for raping a woman while on duty.

To further support his effort to expand discovery, defendant's investigator produced reports dated September 10 and 11, 2012, concerning his conversations with Edison Police Sergeant Michael Simmino and Laura Popick from the Edison Township Purchasing Department. Simmino stated that there were no taped recordings by the cameras that were mounted in the cells from 1979 through 1988, and new cameras that were mounted outside the cells did not have the capacity to record. He also stated that the system again began to "burnout" in 1990, and a new recording installation was currently pending. As for Popick, she alleged that the archived purchase records for the cameras were destroyed after seven years. Consequently, defendant requested that the court direct the State to produce the name of the contractor or technician who replaced the Edison surveillance system in 1990 and again in June 2012, copies of any related paperwork, and the model or serial number of the police surveillance system utilized in 1988.

On December 20, 2012, defendant filed another motion for new discovery again alleging that newly discovered disciplinary actions taken against Judge Blackman and Fekete warranted him a new trial. Defendant also filed a second pro se PCR petition on January 19, 2012. Although the second PCR petition was not included with the record on appeal, we are informed by the trial court's decision on January 2, 2013, as to the basis of defendant's petition

[Defendant] submits that he was denied effective assistance of counsel. Specifically, [defendant] contends that his trial counsel was ineffective because 1) the jury pool during trial was racially disproportionate; 2) he was not informed of the [j]udge's in camera meeting with one of the jurors; 3) the court did not provide the Hampton[4] charge during deliberations; 4) testimonial evidence was admitted into evidence that was destroyed prior to trial; 5) [defendant] did not have the requisite mens rea to commit capital murder; and 6) counsel failed to present mitigating testimony during the penalty phase of the trial. Additionally, [defendant] submits that his appellate counsel was ineffective for failing to address all [] claims [defendant] wanted counsel to address.

After reviewing the parties' submissions, and considering oral argument on October 19, 2012, and December 21, 2012, Judge Toto issued a comprehensive twenty-three page written decision on January 2, 2013, rejecting all of defendant's claims. On the same date, he also issued two orders denying defendant's second PCR petition and his motion for new discovery.

With respect to defendant's second PCR petition alleging IAC, the court held that it was procedurally barred since it was not filed in a timely manner. It was filed in January 2012, more than one year following the denial of his first PCR petition. Moreover, the court found that defendant failed to establish good cause, under Rule 3:22-(6)(b), to warrant the appointment of counsel for his second PCR petition. Though Judge Toto rejected defendant's PCR petition as untimely, he still considered defendant's arguments, finding

Under R. 3:22-5, prior adjudication of an issue, including a decision on direct appeal, will bar a subsequent post-conviction hearing on the same basis. State v. Afanador, 151 N.J. 41, 51 (1998). Here, defendant attempts to relitigate the ineffective assistance of counsel, even though these claims were denied on direct appeal and [on] his first post[-]conviction relief motions.

In addition, when evaluating the merits of defendant's PCR claims, Judge Toto found that defendant failed to present a prima facie case under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), of ineffective assistance of trial or appellate counsel, and therefore, no evidentiary hearing was granted. The judge determined that counsel at both the trial and appellate levels "were well prepared and vigorously advocated" on behalf of defendant. With regard to defendant's trial counsel, the court emphasized that counsel successfully avoided a death sentence for defendant "in the face of an overwhelming case" against defendant, and secured a life sentence.

In addressing defendant's other IAC arguments concerning trial counsel, Judge Toto found that 1) the jury was carefully selected over an eight-day period; 2) an in-camera meeting between a juror and the trial judge appeared harmless, and a more detailed consideration of this claim could not be made given that defendant did not provide a transcript of the conversation; 3) the failure to request a Hampton charge was not an error clearly capable of producing an unjust result; and 4) trial counsel did not err in failing to present all available mitigating evidence at sentencing. Ultimately, the judge found that defendant "failed to establish that trial counsel's performance was deficient or that there was a reasonable probability that but for the counsel's errors[,] the result of the proceeding would have been different."

With respect to defendant's argument concerning ineffective assistance of appellate counsel, the court found that, pursuant to Rule 3:22-6(d), appellate counsel was not obligated to advance all of defendant's claims. Rather, appellate counsel could strategically choose to address only the most meritorious claims, as the court found appellate counsel did. Furthermore, the court emphasized how our court commended appellate counsel's "quality and thoroughness" and further noted appellate counsel's comprehensive ninety-five page brief coupled with a one hundred and twenty-one page appendix.

Judge Toto also addressed defendant's claim that he lacked the mens rea to be convicted of capital murder. Citing Rule 3:22-4, the judge found that defendant's mens rea claim did not satisfy any of the three categories of issues the court could consider on a second PCR petition. Nevertheless, the judge determined that the State did not need to prove a mens rea because defendant acted in the course of committing a burglary, which elevated the charge to capital murder with no mens rea requirement.

Judge Toto furthered rejected defendant's contention that defendant was prejudiced when the State introduced testimonial evidence about a destroyed diagram of the murder victim's home that defendant allegedly drew. The judge found that defendant failed to prove he was prejudiced by the testimony since he did not assert a claim of bad faith, such as, that the evidence was purposefully destroyed. The judge also found that the State did not err in eliciting testimony from police officers about the contents of the destroyed diagram as the evidence was unable to be produced. Moreover, the judge found that the claim could have been more appropriately made in an earlier proceeding.

In regards to defendant's request for new discovery, Judge Toto held that defendant had failed to meet the applicable standard for a new trial based on newly discovered evidence, as provided by State v. Ways, 180 N.J. 171 (2004). The judge acknowledged Judge Blackman's ethical breaches and disciplinary admonishment, and Fekete's sexual assault conviction in 1991, but determined that this information was not "material" to defendant's murder conviction and would not have changed the outcome of his trial. Likewise, the judge found that Judge Blackman's real estate transactions with the chief of police in the 1980s bore no relevance to the charges against defendant.

As for defendant's request to expand the video surveillance investigation, the judge ruled that it was "not 'newly discovered evidence', but rather a request for additional discovery and does not justify a new trial." The judge specifically noted that defendant failed to show that the video surveillance equipment and its installer could not have been discovered earlier. This appeal followed.

Counsel for defendant contends

POINT I

THE PCR COURT'S DENIAL OF DEFENDANT'S REQUEST FOR NEW DISCOVERY WAS AN ABUSE OF JUDICIAL DISCRETION AND THE CASE SHOULD BE REMANDED WITH AN ORDER TO ALLOW SUCH FURTHER DISCOVERY.

In his pro sesupplementalbrief, defendant contends:
 

POINT I

[DEFENDANT'S] APPLICATION FOR POST-CONVICTION RELIEF IS NOT PROCEDURALLY BARRED.

POINT II

THE NEWLY DISCOVERED EVIDENCE MATERIALLY UNDERMINES THE INTEGRITY OF [THE] STATE'S TRIAL CONVICTION.

A. The New[LY] Discover[ED] Evidence is Material.

B. The Newly Discovered Evidence was Discovered After [defendant's] Trial.

C. The Newly Discovered Evidence Would Probably Change the Jury'S Verdict.

POINT III

PROSECUTOR WILLIAM F. LAMB COMMITTED A BRADY VIOLATION BY FAILING TO DISCLOSE HIS KNOWLEDGE AND INFORMATION CONCERNING THE INVESTIGATION OR WRONGDOINGS OF OFFICER CHARLES FEKETE THAT RESULTED IN A 1977-DISCIPLINARY ACTION AGAINST HIM AND OTHER OFFICERS FOR BRUTALLY BEATING TWO MEN AND THEN TRIED TO COVER-UP THE ASSAULT, IN WHICH[] HE RECEIVED A 45-DAY SUSPENSION AND A CIVIL COMPLAINT SETTLEMENT RENDERED AGAINST HIM.

A. The Evidence is Favorable to [defendant].

B. Evidence was Suppressed by the Prosecution.

C. The Suppressed Evidence is Material.

POINT IV

[DEFENDANT'S] TRIAL ATTORNEY HAD RENDERED INEFFECTIVE ASSISTANCE BY HIS SPECIFIC REQUEST FOR THE PROSECUTOR TO EXCLUDE ALL LAW ENFORCEMENT OFFICIALS['] RECORD[S] BECAUSE OFFICER CHARLES FEKETE HAD A 1977-DISCIPLINARY ACTION AGAINST HIM FOR BRUTALLY BEATING TWO MEN, THEN TRIED TO COVER-UP THE INCIDENT, WHICH HE WAS SUSPENDED FOR 45 DAYS AND A CIVIL LAWSUIT SETTLEMENT REACHED AGAINST HIM.

POINT V

PROSECUTOR WILLIAM F. LAMB['S] INTERPRETATION OF HIS DISCOVERY OBLIGATIONS CONCERNING PRETRIAL DISCLOSURE OF THE 1977-RECORD OF OFFICER CHARLES FEKETE DENIED [DEFENDANT] A FAIR TRIAL.

POINT VI

THE NEW DISCOVERY MOTION COURT JUDGE['S] FAILURE TO ADDRESS CERTAIN ISSUES PRESENTED IN [DEFENDANT'S] PRO SE PAPERS DEPRIVED HIM OF HIS RIGHT TO DUE PROCESS OF LAW.

POINT VII

[DEFENDANT] IS ENTITLE[D] TO NEW 2014 DNA-TESTING-TECHNIQUE ON THE SPECIMENS LODGED IN [THE] FBI REPORT AS INCONCLUSIVE AND/OR PRECLUDED TESTING RESULTS, DUE TO LIMITED AMOUNT OF SAMPLE-TESTING-CAPABILITY FOR HUMAN BLOOD IN 1988, WHICH WAS CATALOGUED UNDER Q11, Q22, AND Q23, AS SUBMITTED TO FBI LABORATORY, THUS PROVING HIS INNOCENCE OF THE CRIMES.

A. [DEFENDANT'S] COUNSEL['S] FAILURE TO ADVOCATE HIS POSITION ON THE NEW DISCOVERY MOTION HEARING VIOLATED HIS RIGHT TO DUE PROCESS OF LAW.

B. [DEFENDANT'S] MOTION COURT JUDGE'S FAILURE TO CONDUCT A GOOD-CAUSE-SHOWING HEARING ON THE RECORD CONCERNING HIS REQUESTS FOR THE ASSIGNMENT OF COUNSEL PRIOR TO DENYING HIS APPLICATION, DEPRIVED HIM OF DUE PROCESS OF LAW.

C. [DEFENDANT'S]APPELLATE ATTORNEY['S] [FAILURE] ON THE NEW DISCOVERY MOTION DENIAL-APPEAL [] TO RAISE HIS MERITORIOUS PRO SE ISSUES AS SUBMITTED TO PCR COURT JUDGE VIOLATE HIS RIGHT TO DUE PROCESS OF LAW.

POINT VIII

THE LOWER COURT SHOULD HAVE ORDERED A FULL EVIDENTIARY HEARING IN CONNECTION WITH [DEFENDANT'S] PCR PETITION TO FURTHER DEVELOP HIS APPEARANCE OF IMPROPRIETY CLAIM BETWEEN ARRAIGNMENT HEARING JUDGE ROBERT B. BLACKMAN AND 1988-EDISON TOWNSHIP POLICE CHIEF RICHARD KERMES.

POINT IX

[DEFENDANT'S] REQUESTS THAT THIS APPELLATE COURT GRANT A LIMITED REMAND TO ALLOW HIM TO CONDUCT AN IN[-]CAMERA REVIEW OF CERTAIN POLICE OFFICERS AND/OR A SPECIFIC NAMED JUDGE['S] PERSONNEL FILES AS A RESULT OF NEWLY DISCOVERED EVIDENCE FOR EITHER OFFICIAL MISCONDUCT, WRONGDOINGS, ADMINISTRATIVE INVESTIGATION, OR ANY CONVICTIONS OCCURRING PRIOR TO, DURING AND AFTER HIS TRIAL.

POINT X

[DEFENDANT'S] SENTENCE IS ILLEGAL AND MANIFESTLY EXCESSIVE.

A. THE HONORABLE JUDGE BARNETT E. HOFFMAN IMPOSED A SENTENCE OF LIFE IMPRISONMENT PLUS FIFTY-YEARS, WITH A FIFTY-ONE YEAR PERIOD OF PAROLE INELIGIBILITY BEFORE HE ACTUALLY ANALYZED [DEFENDANT'S] MITIGATING AND AGGRAVATING FACTORS.

B. [DEFENDANT'S] SENTENCE VIOLATE[S] THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES AND NEW JERSEY CONSTITUTION[S].

We have considered these arguments in light of the record and applicable legal standards. We affirm.

II.

Initially, we address the argument raised by defense counsel and defendant's pro se submission that Judge Toto abused his discretion in denying his request for further discovery which would produce evidence that warrants a new trial. We conclude there was no abuse of discretion.

In accordance with Rule 3:20-1, a defendant may be entitled to a new trial, and is permitted to make a request at any time if the relief is premised upon newly-discovered evidence. R. 3:20-2. Newly discovered evidence is sufficient to warrant a new trial "when it is '(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.'" State v. Nash, 212 N.J. 518, 549 (2013) (quoting State v. Carter, 85 N.J. 300, 314 (1981)). Notably, "evidence that would have the probable effect of raising a reasonable doubt as to the defendant's guilt would not be considered merely cumulative, impeaching, or contradictory." State v. Ways, 180 N.J. 171, 189 (2004).

A PCR court has the inherent power to order discovery. State v. Marshall, 148 N.J. 89, 270, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). However, "[t]he filing of a petition for PCR is not a license to obtain unlimited information from the State, but a means through which a defendant may demonstrate to a reviewing court that he was convicted or sentenced in violation of his rights." State v. Herrerra, 211 N.J. 308, 328 (2012) (quoting Marshall, supra, 148 N.J. at 270); see also R. 3:22-2. Moreover, a trial court's decision on discovery matters is generally not to be disturbed on appeal, absent a clear abuse of discretion or basis in a mistaken understanding of the law. In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 163 (2013) (citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)).

Applying these standards to defendant's claim that he is entitled to further discovery, we affirm substantially for the reasons set forth by Judge Toto that defendant's proposed new evidence was either immaterial to his conviction or had been discoverable at the time of trial. We add only the following comments.

Defendant has no right to a fishing expedition through the State's records for "belated grounds of attack on the judgment, or to confirm mere speculation or hope that a basis for collateral relief may exist." Marshall, supra, 148 N.J. at 270 (quoting People v. Gonzalez, 800 P.2d 1159, 1205 (1990), cert. denied, 502 U.S. 835, 112 S. Ct. 117, 116 L. Ed. 2d 85 (1991)). After Judge Toto granted limited discovery, the State properly responded, resulting in defendant's request for more discovery. Yet, the initial grant of discovery, does not infer that defendant's claim had merit.

We see no reason to disturb Judge Toto's finding that, based upon the State's discovery responses, there did not exist any recording of defendant's confinement at the Edison Police station that was not released to defendant. In addition, the misfortunes of Judge Blackman and Fekete are not material to the crimes of which defendant was convicted. Their misconduct occurred after defendant's conviction, and defendant provides no indication how they are relevant to any defenses that were raised or could have been raised at his trial. Also, defendant presents no evidence on how Judge Blackman's role in presiding over his arraignment or Fekete's involvement with his arrest prejudiced him at trial.

Next, we briefly address the arguments raised in defendant's pro se supplemental brief regarding the denial of his second PCR. It is well-established "that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008); 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). "Consequently, if the notice designates only the order entered on a motion for reconsideration, it is only that proceeding and not the order that generated the reconsideration motion that may be reviewed." Pressler & Verniero, Current N.J. Court Rules, comment 6.1 on R. 2:5-1 (2016) (citing W.H. Indus., Inc., supra, 397 N.J. Super. at 458-59).

Here, defendant's notice of appeal does not specify that the denial of the second PCR was being appealed. He only stated that the motion for new discovery was being appealed. Thus, defendant is not entitled to review of the denial of his second PCR claims. Nevertheless, in addressing Judge Toto's denial of such claims, we affirm substantially for the reasons set forth by Judge Toto that defendant's PCR is procedurally barred, and substantively the claims are without merit. We only add the following.

This is defendant's second PCR, and since it alleges IAC, he had one year in which to file the petition. R. 3:22-4(b); R. 3:22-12(a)(2). It was filed in 2012, over sixteen years after the denial of his first PCR in 1996. Thus, it was not timely filed.

Defendant's assertion that the second PCR was filed within one year after reading a newspaper article on Edison police misconduct is unavailing. Had he exercised "reasonable diligence" in investigating the backgrounds of those ostensibly important to his conviction, he would have learned of their misdeeds long before the window expired for timely filing of his PCR petition. See R. 3:22-4(b)(2)(B) ("[T]he factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, and the facts underlying the ground for relief, if proven and viewed in light of the evidence as a whole, would raise a reasonable probability that the relief sought would be granted[.]"). Fekete's conviction, as well as Judge Blackman's misconduct, took place after defendant's conviction. More importantly, these facts do not "raise a reasonable probability that [a new trial] would be granted" because, as noted, neither of them was substantively involved in defendant's trial and conviction. R. 3:22-4(b)(2)(B). Simply put, the facts asserted by defendant are irrelevant to his conviction.

Lastly, to the extent we have not specifically addressed the other arguments raised by defendant in his pro se supplemental brief, they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 The judge found aggravating factors one, two, and nine. N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the offense); 1(a)(2) (the gravity and seriousness of harm inflicted on the victim); and -1(a)(9) (the need for deterrence).

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 This is not the Chief of Police who prepared the affidavit in response to the discovery order.

4 State v. Hampton, 61 N.J. 250 (1972).