STATE OF NEW JERSEY v. H.C.L..

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Although it is posted on the internet, this opinion is binding only 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-1797-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

H.C.L.,

Defendant-Appellant.

Submitted December 20, 2017 – Decided May 11, 2018

Before Judges Alvarez and Geiger.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
13-01-0074.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michael Confusione, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Monica do
Outeiro, Assistant Prosecutor, of counsel and
on the brief).

PER CURIAM
Tried by a jury, defendant H.C.L. was convicted of the lesser-

included offense1 of second-degree aggravated assault,
N.J.S.A.

2C:12-1(b)(1) (count one); second-degree unlawful possession of a

handgun,
N.J.S.A. 2C:39-5(b) (count two); third-degree possession

of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4A (count

three); second-degree endangering the welfare of a child,
N.J.S.A.

2C:24-4(a) (count four); and third-degree endangering the welfare

of a child (count five). The verdict was reached at defendant's

second trial, the trial judge having declared a mistrial of the

first because of jury misconduct. Defendant testified at the

first trial.

After merging count three into count one, the aggravated

assault count, on November 20, 2015, the trial judge sentenced

defendant to an eight-year term of imprisonment subject to the No

Early Release Act (NERA),
N.J.S.A. 2C:43-7.2, concurrent to five

years imprisonment on counts two and four, and four years

imprisonment on count five. Defendant appeals and we affirm.

We glean the following circumstances from the trial record.

On May 31, 2012, Tom2 went to the gym with his son Ben around 4:00

p.m. Tom and Ben's mother, Mary, were divorced. Ben, then

1
Defendant was originally charged in that count with first-degree
attempted murder,
N.J.S.A. 2C:5-1 and 2C:11-3.
2
We use fictitious names throughout.

2 A-1797-15T3
seventeen years old, lived with his mother, two younger sisters,

and defendant, who was the father of Ben's youngest sister. Tom

dropped Ben off, but returned almost immediately because he was

concerned about his son's uneasy state of mind. As he drove back,

he saw Ben run across the street while defendant gave chase. Tom

could hear "yelling and screaming," heard the sound of a shot, did

not see a weapon, but saw a flash of light. Defendant ran back

into the house as Tom headed towards Ben.

When Tom reached his son, Ben said "Dad, Dad, he's shooting

at me. He's shooting at me." Tom called 911 as defendant drove

past them.

Tom also testified that a year or two before this incident,

he contacted police about defendant on Ben's behalf. His son had

shown him a substance that Ben had found in the home, which

appeared to be marijuana. Ben told him that defendant had a lot

of visitors and that he feared defendant was selling marijuana.

Following this testimony, the trial judge instructed the jury as

follows:

In this case the State has introduced
some evidence that the defendant learned that
[Tom and Ben] reported to the Neptune police
that the defendant was selling marijuana from
the home . . . .

Normally such evidence is not permitted
under our Rules of Evidence. Our rules
specifically exclude evidence that a defendant

3 A-1797-15T3
has committed other crimes, wrongs, or acts
when it is offered only to show that he has a
disposition or tendency to do wrong and,
therefore, must be guilty of the charged
offenses; however, our Rules of Evidence do
permit evidence of other crimes, wrongs, or
acts when the evidence is used for certain
specific narrow purposes.

Here, it is not being offered to prove
that the defendant did sell marijuana but
rather to show the defendant's state of mind
or motive or intent for his actions on May
31st, 2012; that is, that the defendant knew
that [Tom and Ben] were making a claim that
the defendant was selling marijuana from the
home . . . .

Whether this evidence does, in fact,
demonstrate the defendant's state of mind,
motive, or intent is for you to decide. You
may decide that the evidence does not
demonstrate the defendant's state of mind,
motive, or intent, and it is . . . not helpful
to you at all. In that case you must disregard
this evidence.

On the other hand, you may decide that
the evidence does demonstrate the defendant's
state of mind, motive, or intent and use it
for that specific purpose. However, you may
not use this evidence to decide that the
defendant has a tendency to commit crimes or
that he is a bad person; that is, you may not
decide that just because the defendant has
committed other crimes, wrongs, or acts that
he must be guilty of the present crime.

I have admitted this evidence only to
help you to decide the specific question of
motive, intent, state of mind. You may not
consider it for any other purpose and may not
find the defendant guilty now simply because
the State has offered evidence that he may
have committed other wrongs or acts.

4 A-1797-15T3
When asked, Tom acknowledged that Ben's conflicts with defendant

included more than the teenager's suspicion that defendant was

selling marijuana from the house.

Ben testified that on the date in question he had found "weed,

a weed smell in [his] grandfather's room, on a scale in his room."

His grandfather had been recently hospitalized with a stroke, so

the room was empty. The scale had never been in his grandfather's

room before that date, and Ben knew it belonged to defendant. Ben

threw the scale outside. He had previously spoken to defendant

about marijuana in the home because of the presence of his younger

sisters. The house smelled of marijuana, and strangers often came

looking for defendant. Ben acknowledged that he and defendant had

other conflicts, and that the relationship worsened after his

father called the police.

When defendant arrived at the house, Ben and defendant argued.

Ben yelled at defendant, at which point defendant drove off. A

few minutes later, when defendant returned, Ben was still standing

outside the front door. Defendant approached, and the two "began

tussling" in the middle of the street.

Mary broke up the fight, and defendant went in the house.

Mary stood inside the front screen door to block Ben. Defendant

approached the screen door, calling out that he was going to kill

Ben and that the home was his. Ben threw a punch at defendant

5 A-1797-15T3
through the screen door, saw something black in defendant's hand

and a "flash." He immediately ran away, but could not remember

hearing anything with the first flash. As Ben ran down the street,

he heard a "second shot" and "started jetting it because [he

thought defendant was] really trying to get [him] now." Once he

reached his father and a neighbor, he saw defendant speed by.

Both of Ben's sisters were in the house when the incident

occurred. Susan was thirteen at the time, and Janet, defendant's

daughter, was seven. Mary testified that she first became aware

of the confrontation when Susan asked her to go outside because

Ben looked upset. She saw defendant pull in, and he and Ben began

to fight. Mary could not stop them, but eventually defendant went

into the house while she stood behind the door. After Ben punched

it, she heard a gunshot, and Ben ran.

Defendant pushed Mary out of the way and chased after Ben.

Mary turned to Susan, who was "in shock or something so she came

down the steps and then I made sure she got to the couch." Janet

was also there, although she seemed not to understand what was

taking place. Everything happened very fast; Mary did not see a

gun in defendant's hands. Mary was cross-examined about her

continued contacts with defendant, once he was arrested and housed

in the jail. She visited him, called him, and was initially

willing to help him raise money for bail. The State introduced

6 A-1797-15T3
photographs showing a bullet strike through a window, broken glass,

and shell casings around the front door.

Neptune Township Detective Jason Petillo responded to the

scene and days later interviewed defendant in Maryland, once he

was taken into custody. The recorded interview took place in

police barracks.

Petillo testified that before the interview with defendant

began, he explained to defendant that charges had been filed

against him, and he read defendant his Miranda3 rights from the

warning and waiver form card. Defendant agreed to waive his right

to remain silent, and the approximately one-hour-long recording

of the interview was played to the jury. Halfway through it,

defendant asked Petillo his name. Petillo said that he did not

recall if he had told defendant his name initially, but that

defendant absolutely knew they were police detectives from New

Jersey.

During the interview, defendant asked about bail, and refused

to disclose the whereabouts of the weapon. The gun, which had an

eight-bullet capacity, was eventually recovered. When recovered,

it held six bullets.

3
Miranda v. Arizona,
384 U.S. 436 (1966).

7 A-1797-15T3
Petillo testified initially that he promised defendant that

the woman friend with whom he was staying in Maryland would not

be charged. He then said that although he did not know if that

was conveyed by way of promise, it was not his intent "to prosecute

anyone; just try to recover the weapon."

At the Miranda hearing, defendant argued that the detectives'

failure to introduce themselves meant he did not knowingly and

intelligently waive his Miranda rights. He also claimed that the

statement was coerced because he believed he needed to talk to the

detectives to be allowed bail and protect the woman with whom he

stayed in Maryland.

The trial judge denied the Miranda motion. He observed that

the interview was relaxed, and that the officers did not threaten

or intimidate defendant. The judge found Petillo's testimony

credible in that he read defendant his Miranda rights from a card,

that defendant knew about the charges from the outset, knew he was

speaking to police officers, and "that whatever he said could and

would be used against him." Defendant's questions regarding bail,

and efforts at convincing the officers to release him, did not in

any way invalidate his knowing and voluntary waiver of his rights.

The judge also denied defendant's application to redact the

recorded interview to exclude his discussion of the marijuana

scale, and Ben's prior call to police about defendant selling

8 A-1797-15T3
marijuana. In doing so, the judge applied the test formulated in

State v. Rose,
206 N.J. 141 (2011). He concluded the evidence was

admissible because defendant's defense theory was that he and Ben

had significant conflicts because of Ben's suspicion that

defendant was selling drugs. Accordingly, the State wanted to

present the evidence to the jury to establish defendant's state

of mind. The potential prejudice was outweighed by the evidence's

probative value.

Over defendant's objection, the trial judge permitted the

State to introduce defendant's testimony from the first trial as

a statement of a party opponent. See N.J.R.E. 803(b)(1). He left

to the parties to decide how it would be presented.

When the transcript was read to the jury, Petillo played the

role of defendant, and the prosecutor of defense counsel. Once

read, but prior to Petillo's cross-examination, defense counsel

objected to Petillo's reading, arguing that it did not adequately

reflect some of defendant's inflections, and that it diminished

the exculpatory effect of his actual testimony. Defense counsel

further argued that the State should have applied for the audio

backup recording and played that, as opposed to having Petillo

read the testimony into the record. The State responded that

Petillo's inflections made defendant seem more, rather than less,

9 A-1797-15T3
sympathetic. The jury followed along with their copies of the

transcripts during the reading.

The judge overruled the objection, finding that the statement

was admissible as the statement of a party opponent simply by the

production of the transcript. He agreed with the State that

Petillo's reading made defendant "sound more human rather than

dehumanizing [him]."

During the testimony he gave at his first trial, defendant

repeated some of the narrative of events he gave to the officers

when interviewed in Maryland. He said that Ben initiated the

confrontation, cursed at him, accused him of selling drugs out of

his grandfather's room, and threatened to "shoot" him. After

hearing this, defendant left for about twenty minutes.

When defendant returned, Ben was blocking the front door, and

as he approached, Ben punched him. On the date of the incident,

Ben weighed around 230 pounds and was five foot nine inches.

Defendant fell on his back, trying to keep Ben at a distance. Ben

then dragged him by the legs, at which point defendant said he

became angry and started fighting back. After he kicked Ben under

the chin, the fight stopped. His daughter was crying in the house,

and when defendant went inside, he tried to comfort her. He heard

Ben say he was going to "F him up," and tell his mother to move

out of the way. Defendant saw Mary blocking the door, and he just

10 A-1797-15T3
got "tired of this" and started looking for something with which

to hit Ben. Then he realized he would get into trouble for that,

and thought it would be better if he could just frighten Ben away.

Defendant grabbed the gun, approached the door, and "wanted

to time it perfect so I didn't have to really do nothing with the

gun." When Ben saw him, Ben punched the door, at which point

defendant approached and displayed the gun. Ben began backing

away, and defendant reached for the door since he just wanted Ben

to keep moving. As he reached forward, however, Mary backed into

him, and the gun accidentally fired. Ben began to run, but stopped

at the corner.

Defendant said he chased Ben because he wanted him further

away from the house. He denied firing a second shot, and explained

that he fled because he knew it was going to be a long battle and

he wanted to "try to set up all [his] eggs."

During summation, the prosecutor referred to defendant's

"attempt[] to take the Fifth at the time in the testimony." The

prosecutor was referring to defendant's refusal on cross-

examination while testifying at the first trial to answer questions

about his acquisition of the gun.

The prosecutor also told the jury that the defense theory "is

nonsense. It is absolutely nonsense." The trial court sustained

trial counsel's objection to the comment and instructed the

11 A-1797-15T3
prosecutor to continue, which he did. The prosecutor added only

that the claim of self-defense "should [not] carry the day."

When the prosecutor told the jury that defendant was "setting

up" his defense for trial, counsel objected. The judge did not

sustain that objection.

After the trial, defendant filed a motion before the

assignment judge seeking to obtain the audio from the backup

recorder server, commonly known as Courtsmart, of his prior trial

testimony as well as Petillo's read-back. Counsel argued that it

was necessary to a fair decision on defendant's motion for a new

trial as well as his appeal. The assignment judge denied the

motion without prejudice, noting that Administrative Directive 07-

10 limits access to Courtsmart audio only to cases where the

official trial record is lost. Since that was not defendant's

situation, she denied the application.

In his motion for a new trial, defendant argued that Petillo's

read-back was unduly prejudicial, his convictions for endangering

the welfare of a child were against the weight of the evidence,

and that references to marijuana, and the prosecutor's description

of the self-defense theory as nonsense, deprived him of a fair

trial.

When the trial judge denied defendant's motion for a new

trial, he said:

12 A-1797-15T3
At the time the [c]ourt felt, listening
to the read back, that the officer read the
testimony in a way that did not denigrate the
defendant or change the meaning of the words
and so ruled at the time listening to it
contemporaneously.

It's worth noting that the prosecutor in
this case today, who did not hear the
testimony, hearing the officer read back, felt
that it was overly sympathetic to the
defendant. But in either event the ruling
made at the time listening to the transcript
read is not a basis for a new trial or in any
way sufficient to overturn the jury verdict.

Furthermore, the judge considered the references to marijuana

to be necessary because they elucidated the ongoing conflict

between defendant and Ben. Additionally, he had instructed the

jury that pursuant to N.J.R.E. 404(b), they were not to use the

information to find defendant had the propensity to commit a crime,

but only to explain the genesis of the dispute. The judge opined

that defendant's use of a fully-loaded semi-automatic handgun,

safety off, during a confrontation clearly endangered all three

children.

With regard to the summation, the judge said the "nonsense"

comment was no different than saying that the theory of self-

defense made "no sense."

The judge further observed that during his interview with

police, defendant clearly tried to assess the information the

officers possessed about the incident in order to "suffer less

13 A-1797-15T3
responsibility." Defendant admitted leaving New Jersey in order

to set up his defense, and therefore, the State's comment on the

evidence was not prejudicial.

Defendant had at least five felony convictions, served time

in state prison and been sentenced to probation, albeit he was

last convicted in 1986. Since then, he had been convicted of

three disorderly persons offenses and petty disorderly persons

offenses, the last of which took place in 2005. During his

allocution at the sentence hearing, defendant expressed no

remorse.

The judge found aggravating factor three, the risk defendant

would commit another offense,
N.J.S.A. 2C:44-1(a)(3), aggravating

factor six, the extent of defendant's prior criminal history,

N.J.S.A. 2C:44-1(a)(6), and aggravating factor nine, since there

was "a need to deter the defendant and others from violating the

law under these circumstances."
N.J.S.A. 2C:44-1(a)(9).

The judge did not find any mitigating factors. He rejected

mitigating factor three since "[t]here was no strong provocation."

N.J.S.A. 2C:44-1(b)(3). Mitigating factor four did not apply

because the circumstances of the dispute did not warrant the use

of lethal force.
N.J.S.A. 2C:44-1(b)(4). In light of defendant's

criminal history, mitigating factor seven was inapplicable.

N.J.S.A. 2C:44-1(b)(7). The judge did not find mitigating factor

14 A-1797-15T3
eight because defendant "to this day has no comprehension of the

seriousness of his actions."
N.J.S.A. 2C:44-1(b)(8). The judge

also rejected mitigating factor eleven, despite the argument that

defendant was responsible for the care of his aging mother and

that his incarceration would otherwise present unusual

difficulties.
N.J.S.A. 2C:44-1(b)(11).

On appeal, defendant raises the following points:

Point 1 The admission of defendant's prior
trial testimony through Officer
Petillo unduly prejudiced the
defendant and denied him a fair
trial.

Point 2 The trial court erred in denying
defendant's motion for the audio
back up recording.

Point 3 The admission of references to
marijuana and to other bad acts of
defendant deprived defendant of a
fair trial on the charges at issue
below.

Point 4 The trial court erred in denying
defendant's motion to suppress his
statements to police.

Point 5 The prosecutor's references in
summation that the defense theory of
self-defense was nonsense, that the
defendant began setting up his
defense during his statement to
police, and that the defense was
attacking the victim, collectively
deprived the defendant of a fair
trial.

15 A-1797-15T3
Point 6 Reference to defendant being in
custody unfairly prejudiced
defendant before the jury.

Point 7 The trial court erred in denying
defendant's motion for a new trial
on the endangering convictions.

Point 8 Defendant's sentence is improper
and excessive.

Because "the admissibility of evidence is fact sensitive,"

this court's review of a trial court's evidence determinations is

deferential and governed by the abuse of discretion standard.

State v. Fortin,
178 N.J. 540, 591 (2004) (citation omitted).

"[U]nless clear error and prejudice are shown," this court will

not interfere with the trial court's evidentiary determinations.

State v. Wakefield,
190 N.J. 397, 452 (2007) (quoting State v.

Murray,
240 N.J. Super. 378, 394 (App. Div. 1990)).

Defendant contends that Petillo's reading of his trial

testimony was unfair and prejudiced the outcome. He alleges

Petillo "used inflections in his voice" that should not have been

heard by the jury, the jury should have heard the testimony

directly from the Courtsmart audio, and that the reading alone

warrants a new trial.

"Courts have broad discretion as to whether and how to conduct

read-backs and playbacks." State v. Miller,
205 N.J. 109, 122

16 A-1797-15T3
(2011) (citation omitted). "Traditionally, [for read backs,]

court reporters read without inflection from their notes or

transcripts . . . ." Id. at 120. However, as our Supreme Court

in Miller noted, over the years, as "court reporters have become

increasingly less common in the trial courts," more courtrooms

have begun using "digital recording equipment to create the

record." Ibid. This was precisely the case in Miller, as the

record had been created by a digital recording. Id. at 121. When

the jury requested to hear the testimony again, instead of having

the jury wait until the recording was transcribed, the trial judge

permitted a playback of the video. Ibid.

The Court held that the judge properly exercised his

discretion, noting that:

We trust juries with the critically important
task of determining facts and making
credibility assessments to reach a fair
verdict. To fulfill that responsibility,
juries should be provided with the best
available form of evidence, upon request,
unless there is a sufficiently strong,
countervailing reason not to proceed in that
way. In the digital age, that means
presumptively providing video playbacks in
favor of read-backs, if the jury so requests.

[Ibid.]

Here, during the pre-trial conference, the State indicated

its intention to utilize defendant's prior trial testimony. The

judge properly found that the testimony was admissible, which

17 A-1797-15T3
defendant does not dispute on appeal. The State also indicated

that it was open to working with defense counsel as to the manner

in which the testimony was to be presented, whether through the

court reporter or through one of the State's witnesses, and the

judge left that determination up to the parties. Defendant did

not object until after the process had begun.

During the read back, each juror had a copy of the transcript.

Moreover, the trial judge, who presided over both trials, stated

that the inflections in the reading did not prejudice defendant.

He said that he "felt, listening to the read back, that the officer

read the testimony in a way that did not denigrate the defendant

or change the meaning of the words and so ruled at the time

listening to it contemporaneously."

It would have been proper for the jury to have been presented

with a transcript of the testimony. See N.J.R.E. 803(b)(1). Role-

playing by a detective and a prosecutor is not optimal, however,

no alternative was agreed upon. The judge, who presided over the

first trial and heard the read back during the second trial,

thought the inflections, if anything, favored defendant.

Therefore, we are satisfied that no error, harmless or otherwise,

occurred.

18 A-1797-15T3
II.

Defendant also contends it was error for the assignment judge

to deny his motion for the audio back-up recording. Access to

Courtsmart materials is governed by rule and directive. Rule

1:2-2 and Directive 07-10 only allow access to the extent necessary

to reconstruct transcripts when the original audios or

transcriptions are lost. Because that was not the case here, the

exception did not apply. We see no error in the denial of the

motion based on the rule and directive.

III.

In his third point, defendant asserts that the judge erred

by allowing references to marijuana to be admitted. N.J.R.E.

404(b) governs the admission of evidence of "other crimes, wrongs,

or acts," as follows:

Except as otherwise provided by [N.J.R.E.]
608(b), evidence of other crimes, wrongs, or
acts is not admissible to prove the
disposition of a person in order to show that
such person acted in conformity therewith.
Such evidence may be admitted for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or
accident when such matters are relevant to a
material issue in dispute.

[(Emphasis added).]

"The underlying danger of admitting other-crime evidence is that

the jury may convict the defendant because he is a bad person in

19 A-1797-15T3
general." State v. Rose,
206 N.J. 141, 159 (2011) (quoting State

v. Cofield,
127 N.J. 328, 336 (1992)). "Thus, evidence of

uncharged misconduct would be inadmissible if offered solely to

prove the defendant's criminal disposition, but if that misconduct

evidence is material to a non-propensity purpose such as those

listed in Rule 404(b), it may be admissible if its probative value

is not outweighed by the risk of prejudice." Ibid. (citation

omitted).

Here, the trial court correctly relied upon N.J.R.E. 404(b)

and the four-part test outlined in Cofield,
127 N.J. at 338:

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

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

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

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

[Rose,
206 N.J. at 160 (citing Cofield, 127
N.J. at 338).]

Defendant contends that the introduction of the marijuana-

related evidence was highly prejudicial. However, the two cases

defendant relies upon in support of the argument, State v.

Hernandez,
170 N.J. 106 (2001), and State v. Darby,
174 N.J. 509

(2002), are inappropriate because they involved evidence of prior

20 A-1797-15T3
bad acts similar to the crimes with which the defendants were

charged.

In Hernandez, the defendant was charged with various drug-

related offenses.
170 N.J. at 113. Our Supreme Court remanded

the matter for a new trial after finding the admission of a

witnesses' testimony that he and defendant sold drugs in a similar

manner twenty times during the two months prior to their arrest,

"extremely prejudicial." Id. at 130. Similarly, in Darby, the

defendant was charged with robbery, and the Court remanded for a

new trial finding that an accomplice's testimony that he and the

defendant committed a similar robbery only days earlier was

prejudicial, in addition to failing to meet the other three prongs

of the Cofield test. Darby,
174 N.J. at 513, 516, 521.

In this case, the prior conduct was relevant. It explained

an important aspect of the ongoing conflict between Ben and

defendant, the reason Ben's discovery of a scale in his

grandfather's bedroom would have enraged him, and the reason his

act of throwing it out enraged defendant. Evidence of a

defendant's state of mind and motive are particularly relevant.

State v. Calleia,
206 N.J. 274, 293 (2011). It has the "unique

capacity to provide a jury with an overarching narrative,

permitting inferences for why a defendant might have engaged in

the alleged criminal conduct." Ibid. (citation omitted). In this

21 A-1797-15T3
case, it was important to explain the ongoing dispute between Ben

and defendant.

The second Cofield factor has not been universally required.

See Rose,
206 N.J. at 160. "Temporality and similarity of conduct

is not always applicable, and thus not required in all cases."

Ibid.

The evidence was clear and convincing. The probative value

was not outweighed by the apparent prejudice——the probative value

was great as it was the context for the confrontation.

Furthermore, the judge warned the jury following the

testimony:

The admission of the references to marijuana was not an abuse of

discretion.

IV.

When reviewing a motion to suppress, we uphold the factual

findings of the trial court when they are based upon "sufficient

credible evidence in the record." State v. Elders,
192 N.J. 224,

243 (2007) (quoting State v. Locurto,
157 N.J. 463, 474 (1999)).

Deference is given to the trial court's factual findings because

22 A-1797-15T3
of the trial court's ability to observe the witnesses firsthand.

Id. at 244 (citing State v. Johnson,
42 N.J. 146, 161 (1964)). A

trial court's factual findings will not be disturbed merely because

an appellate court would have reached a different conclusion.

Ibid. (citing Johnson,
42 N.J. at 161). However, the trial court's

factual findings will be disturbed if justice so demands. Ibid.

(citing Johnson,
42 N.J. at 161).

Defendant asserts that the court erred in denying his motion

to suppress his statement because his waiver of his right to remain

silent was not knowing and voluntary. He reiterates the same

arguments made before the trial judge——that the police officers

did not specifically identify themselves, threatened to charge his

girlfriend, and promised that his bail would be reduced. After

viewing the taped interview, we do not agree that the record

supports these claims.

Defendant was interviewed in a police barrack in Maryland

after being taken into custody on a New Jersey warrant. He knew

he was being interviewed by New Jersey police officers, and when

pressed for the whereabouts of the gun he had used in the incident

and the identity of the person with whom he stayed, he simply

refused to answer. The officers made clear to him that no promises

could be made with regard to bail. In fact, Petillo told defendant

that until an extradition hearing was conducted, the issue could

23 A-1797-15T3
not even be addressed. These points are so lacking in merit as

to not warrant further discussion in a written opinion. R.

2:11-3(e)(2).

Defendant also asserts that the prosecutor made comments

during summation that prejudiced his right to a fair trial. This

includes the prosecutor's description of defendant's self-defense

theory as "nonsense," his references to defendant "setting up" his

defense during his initial police interview, his comment that

defendant attacked the victim on cross-examination, and mention

of the fact that he was in custody before the trial.

"[P]rosecutorial misconduct can be a ground for reversal

where the prosecutor's misconduct was so egregious that it deprived

the defendant of a fair trial." State v. Frost,
158 N.J. 76, 83

(1999) (citing State v. Siciliano,
21 N.J. 249, 262 (1956)). In

determining whether a prosecutor's remarks warrant reversal of a

verdict, this court must consider "(1) whether defense counsel

made timely and proper objections to the improper remarks; (2)

whether the remarks were withdrawn promptly; and (3) whether the

court ordered the remarks stricken from the record and instructed

the jury to disregard them." Ibid. (citations omitted).

Defendant draws a parallel between the prosecutor's comments

in his case and those of the prosecutor in State v. Munoz, 340

24 A-1797-15T
3 N.J. Super. 204 (App. Div. 2001). In that case, the prosecutor

said that defendant and his attorney "concocted" an alibi. Munoz,

340 N.J. Super. at 217. We held that a prosecutor may not "demean

the role of defense counsel or cast unjust aspersions upon a

lawyer's motives." Id. at 218 (citations omitted). That, however,

is different from the comments in this case.

After the incident, defendant went from New Jersey to

Maryland, and readily acknowledged doing so in his recorded

interview. He told the officers that he did so because he needed

time to "set up all [his] eggs." Thus, the record itself directly

supported the prosecutor's words that defendant was setting up his

defense. Given defendant's own words, which were heard by the

jury, the comment was not improper.

Defendant's assertion of self-defense, when it is undisputed

that he chased an unarmed teenager while holding a loaded handgun,

safety disengaged, certainly makes, as the trial judge commented,

"no sense." Nonetheless, the judge sustained the objection at

trial to the prosecutor's "nonsense" statement. It certainly did

not prejudice defendant's right to a fair trial.

That the prosecutor said defendant attacked Ben during cross-

examination was not prejudicial either. The prosecutor was merely

responding to defendant's attempt to discredit the victim. Defense

counsel focused on Ben's credibility during cross-examination and

25 A-1797-15T3
in summation. In fact, in his closing statement, counsel argued

that if "[Tom and Ben] are willing to lie about small details such

as where [Ben] ran that day, about what [Tom's] purpose was for

coming to the house that day was, maybe they're also willing to

lie about the big things like whether there was a second shot or

not." Thus, the prosecutor's words were merely a response to the

defense theory that the victim was incredible. See State v.

McGuire,
419 N.J. Super. 88, 145 (App. Div. 2011).

Defendant's contention that the jurors would have been

prejudiced by knowledge of his incarceration also lacks merit.

During the State's presentation, the judge instructed the jury to

disregard the fact defendant may have been in custody. In the

final charge, he added that defendant being "in custody at some

point has no bearing whatsoever on whether he is guilty of the

crimes for which he is on trial." Additionally, it was defense

counsel, in order to discredit Mary, who asked about her contacts

with defendant while he was in jail, including visiting and calling

him there, and being willing to contribute towards his bail. It

was defense counsel who wanted the references to bail to remain

in defendant's statement. We find no error in the jury learning

that defendant was in custody.

Furthermore, if error, it was invited error. Defendant cannot

request a court follow a course of conduct, and then if the outcome

26 A-1797-15T3
is not favorable, claim it was error and prejudicial. State v.

Young,
448 N.J. Super. 206, 225 (App. Div. 2017). "[W]hen a

defendant ask[ed] the court to take his proffered approach and the

court does so . . . relief will not be forthcoming on a claim of

error by that defendant." State v. Jenkins,
178 N.J. 347, 358

(2004). Having developed a theory of the case upon which the

trial judge relied in making his rulings, defendant cannot be

heard now to repudiate it.

VI.

Defendant asserts that his convictions for endangering the

welfare of children should be vacated because the State's proofs

were insufficient to establish that the shooting occurred in the

presence of the two young girls in the home, and that his

application for a new trial should have been granted. The trial

court's ruling on a motion for a new trial "shall not be reversed

unless it clearly appears that there was a miscarriage of justice

under the law." R. 2:10-1. "That inquiry requires employing a

standard of review substantially similar to that used at the trial

level, except that the appellate court must afford 'due deference'

to the trial court's 'feel of the case,' with regard to the

assessment of intangibles, such as witness credibility." Jastram

v. Kruse,
197 N.J. 216, 230 (2008) (quoting Feldman v. Lederle

Labs.,
97 N.J. 429, 463 (1984)).

27 A-1797-15T3
The court considered defendant to have placed all the children

in the home at risk. The girls were upset about what had occurred

and were present when defendant shot at Ben. The State was not

obligated to prove more. The trial judge properly exercised his

discretion in denying the motion. See State v. Russo,
333 N.J.

Super. 119, 137 (App. Div. 2000).

VII.

The standard of review of a trial court's sentence is "one

of great deference and judges who exercise discretion and comply

with the principles of sentencing remain free from the fear of

second guessing." State v. McGuire,
419 N.J. Super. 88, 160 (App.

Div. 2011) (quoting State v. Dalziel,
182 N.J. 494, 501, (2005)).

We review sentences deferentially. State v. Lawless,
214 N.J. 594, 606 (2013). We ask only if legislative guidelines have

been followed, if competent credible evidence supports each

finding of fact upon which the sentence was based, and, whether

application of the facts to the law is such a clear error of

judgment as to shock the judicial conscience. State v. Roth,
95 N.J. 334, 364-65 (1984). Aggravating and mitigating factors must

be fully supported by the evidence. State v. Blackmon,
202 N.J.
283, 297 (2010). Appellate review of the length of a sentence is

limited. State v. Miller,
205 N.J. 109, 127 (2011).

28 A-1797-15T3
The trial judge had ample support in the record for his

conclusions. Defendant's criminal history and statements at

sentencing established that he was at risk to reoffend.

Defendant's prior criminal history was significant, albeit from

years prior. Chasing and shooting at an unarmed child with a

loaded semi-automatic handgun is conduct that requires deterrence.

We also agree that none of the mitigating factors applied.

Accordingly, this mid-range sentence was entirely appropriate

given the presence of aggravating factors and absence of any

mitigating considerations. The judge more than adequately stated

his reasons. The competent, credible evidence supported the

judge's findings of fact, and his conclusions of law based on

those facts were reasonable. The sentence does not shock our

conscience.

Affirmed.

29 A-1797-15T3

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