STATE OF NEW JERSEY v. ANDREW W. PENA
Annotate this CaseRECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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 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-2098-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANDREW W. PENA,
Defendant-Appellant.
Submitted March 20, 2018 - Decided April 24, 2018
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Morris County, Indictment No.
08-01-0010.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michael Confusione, Designated
Counsel, on the brief).
Fredric M. Knapp, Morris County Prosecutor,
attorney for respondent (Erin Smith Wisloff,
Supervising Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant Andrew Pena was tried before a jury and found guilty
of aggravated sexual assault, burglary, and criminal sexual
contact. He appeals from the judgment of conviction entered on
December 24, 2015. For the reasons that follow, we affirm
defendant's convictions but remand for resentencing.
I.
Defendant was charged with various offenses arising out of
the assault of E.D., specifically first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree
burglary,
N.J.S.A. 2C:18-2(b) (count two); second-degree sexual
assault, N.J.S.A. 2C:14-2(c)(1) (count three); fourth-degree
criminal sexual contact,
N.J.S.A. 2C:14-3(b) (count four); and
third-degree criminal restraint,
N.J.S.A. 2C:13-2(b) (count five).
At defendant's first trial in 2009, a jury found him guilty
of all charges. On December 14, 2009, defendant was sentenced to
an aggregate prison term of twenty-seven years, nine months, with
a period of parole ineligibility as prescribed by the No Early
Release Act (NERA),
N.J.S.A. 2C:43-7.2.
Defendant appealed, and in an unpublished opinion we reversed
defendant's convictions and remanded for entry of an order
dismissing count five, and for a new trial on counts one through
four. State v. Pena, No. A-2335-09 (App. Div. Dec. 18, 2013)
(slip op. at 39). The panel found that evidence of a prior offense
involving another alleged victim was improperly admitted pursuant
to N.J.R.E. 404(b). Id. at 22-26. The panel also determined that
the conduct charged in count five did not fall within the concept
2 A-2098-15T4
of involuntary servitude as proscribed by
N.J.S.A. 2C:13-2(b).
Id. at 36.
On March 26, 2015, the court granted defendant's motion to
represent himself at his second trial, during which he was assisted
by stand-by counsel. Defendant thereafter filed numerous pre-
trial motions. Pertinent to this appeal, the court denied
defendant's motions to dismiss the indictment and to suppress his
testimony from the first trial.
Defendant's second trial spanned twelve non-consecutive days
between October 19, 2015, and November 10, 2015. We recount only
those facts presented at the trial that are most relevant to the
issues raised by defendant on appeal.
On the evening of January 27, 2007, E.D. and her friend C.C.
went to a party in Butler. After socializing for several hours,
E.D., C.C., and a new acquaintance, L.D., decided to pick up food
at a nearby bagel store. Because C.C. and L.D. had been drinking
but E.D. had not, E.D. drove the three of them in C.C.'s car. The
weather was cold and it was snowing lightly.
The women arrived at G & A Bagel around 3:15 a.m. The
parking lot was full, so E.D. pulled to the entrance of an alley
on the left side of the building. C.C. and L.D. went into the
store to order bagels while E.D. waited in the car.
3 A-2098-15T4
E.D. then saw a man with a broom in his hands, sweeping the
snow. The man walked up to the driver's side window and told E.D.
to pull forward into the alley. Believing the man worked at the
store, E.D. did as he asked. In her rear view mirror she saw him
motioning for her to keep going. She continued to drive forward,
thinking the alley would lead her around the store, but instead
it dead-ended at the back of the building. E.D. realized she
would need to back up, but as she started to turn, the man came
to the window and asked her to shut her headlights off so as not
to disturb neighboring homes. She shut her headlights off, but
left the car running.
When E.D. next saw the man he was walking toward the car from
behind the building. His pants were down, "his private part was
out," and "he had a disgusting like grin on his face." As he
approached the driver's side door, E.D. panicked and tried to
start the car but was unable to because it was in drive. Because
she was not familiar with the controls in C.C.'s car, the man was
able to open the door before E.D. could lock it.
The man shoved his whole body inside the car, wrapped his
hand around E.D.'s hair, and forced her to touch his penis, while
at the same time taking the keys out of the ignition and tossing
them to the ground. During the struggle, he also managed to grab
her cell phone and throw it over the car. The man then dragged
4 A-2098-15T4
E.D. out of the car onto the pavement, pulled down her pants, and
jammed his fingers inside of her.
At that point C.C. and L.D. came out of the store and called
E.D.'s name. The man paused long enough for E.D. to break free
and run toward her friends. He then ran away around the back of
the building.
E.D. went inside the bagel shop and asked the clerk to call
9-1-1. The police arrived, and E.D. was taken to the hospital by
ambulance.
Barbara Ackerson, a registered nurse with forensic sexual
assault certification, examined E.D. in the emergency room. She
described E.D. as upset, crying, and afraid, but cooperative.
Ackerson observed multiple scrapes on E.D.'s buttocks and back,
abrasions on her knees and hands, and a bruise on her buttocks.
She also found dried secretions on the left side of E.D.'s face
and on her buttocks. A genital exam revealed a great deal of
redness, and a tiny nick and spot of dried blood on the cervix.
Ackerson reported her diagnosis that E.D. had been raped.
Ackerson collected specimens, placing them in sample
containers to be sent for analysis. She also put E.D.'s clothing
in a paper bag. She noted E.D.'s underpants had been ripped, with
one side "hanging by a single string."
5 A-2098-15T4
E.D. was discharged from the hospital a few hours later and
proceeded to the Butler police station. There, she described her
assailant as having tan skin, brown eyes, and a very big smile
with large teeth. She stated the man had a twelve-inch penis that
she could not wrap her hand around.
C.C. and L.D. also went to the police station the next day.
C.C. did not get a good look at the man and could not describe his
appearance. L.D., on the other hand, got a brief glimpse of him
and told officers that he was not Caucasian and not black, but had
"darker skin" and could have been Cuban or Filipino. She said
that when she was looking for E.D. in the parking lot, she noticed
a silver truck parked in the back of the right side of the building.
After the incident, three men gave her a partial license plate
number for the truck, which they saw fleeing the scene. That
license plate number was SKJ-54_.1
Officers from the Butler Police Department and the Morris
County Sheriff's Office processed the scene at G & A Bagel. The
dusting of snow that covered the ground near the driver's side
door of the car E.D. was driving was disturbed, and the pavement
underneath the door was bare. Shoe impressions, which had a
distinctive triangular boot-lug pattern, were visible in the snow
1
The men did not get the last digit of the license plate.
6 A-2098-15T4
behind the trunk of the car. Impressions with a similar triangular
boot-lug pattern could be seen going back and forth behind the
building, and near a dumpster in the right-side parking lot. Tire
tracks were also visible near the dumpster, next to the shoe
impressions.
The officers further observed what appeared to be
fingerprints on the driver's side window. Corporal Brian Ahern
lifted latent fingerprints from the window, which were then
compared against a database that contained fingerprints from a
variety of sources. Based on information gleaned from that
database, officers obtained a known inked impression belonging to
defendant for comparison purposes.
Sergeant Kelly Zienowicz examined the latent prints and the
inked impressions, and concluded three of the four latent prints
were identical to defendant's known impressions. Officers then
obtained a photograph of defendant for use in a photo array.
On January 31, 2007, E.D. went to the Morris County
Prosecutor's Office to view a photographic line-up. E.D.
identified the photograph of defendant as the man who assaulted
her. She stated it "looks just like him" and she was "110% sure"
it was him. At trial, E.D. identified defendant as the man who
sexually assaulted her.
7 A-2098-15T4
A search warrant was issued for defendant's residence and a
pair of brown Nike boots were seized. Ahern compared photographs
of the boot prints that had been preserved in the snow with the
pattern found on defendant's boots. He concluded the pattern on
the boots was identical to the pattern of the boot prints found
near the dumpster. The prints found near the car's trunk were
less distinct, however, and Ahern could only determine they were
similar in size, shape and design to the pattern on the boots.
Ahern also examined a silver 2
004 Dodge Ram 1500 pickup truck,
New Jersey license plate number SXJ-52J, which was registered to
defendant. He compared the tread pattern on the truck's tires
with the tire tracks found near the dumpster. He determined the
tread patterns were similar in shape, size, and design, but because
the tires were in very good condition with few distinctive marks,
he could not conclude the patterns were identical.
Defendant presented several witnesses, including Chief Ciro
Chimento, dispatcher Joyce Opperlee, and Detective Colleen Pascal
of the Butler Police Department, and K.C., the manager of G & A
Bagel. For their part, these witnesses were only marginally
connected with the investigation, had limited knowledge of the
incident, or offered testimony directly contrary to defendant's
interests.
8 A-2098-15T4
Defendant did not testify or offer any explanation as to how
his fingerprints and boot prints were found at the scene. The
theory of his defense was that the State failed to conduct DNA
tests on important pieces of evidence, such as the cell phone and
the broom, and failed to preserve video footage from surveillance
cameras at the store. To rebut the description E.D. gave to
police, defendant introduced in evidence photographs of his penis.
The attorney who represented defendant at his first trial testified
as to the authenticity of the photographs, but stated he had no
opinion as to whether they depicted defendant in a fully erect
state.
The jury found defendant guilty of the remaining four counts
of the indictment. On December 18, 2015, defendant was sentenced
to a twenty-year prison term on count one, with an eighty-five
percent parole disqualifier pursuant to NERA; eight years on count
two, also with a NERA parole disqualifier, consecutive to count
one; and sixteen months on count four, consecutive to count one.
Count three was merged with count one. Appropriate fines and
penalties were also imposed.
Defendant appeals and raises the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO PRECLUDE THE STATE FROM INTRODUCING
BEFORE THE JURY AT THE SECOND TRIAL BELOW,
9 A-2098-15T4
DEFENDANT'S TRIAL TESTIMONY FROM THE FIRST
TRIAL.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION TO DISMISS THE INDICTMENT.
POINT III
THE TRIAL COURT ERRED IN PERMITTING LAY
OPINION TESTIMONY ABOUT TIRE TREAD
IMPRESSION[S].
POINT IV
THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO
CONFRONT THE WITNESSES AGAINST HIM.
POINT V
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR A MISTRIAL.
POINT VI
DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.
We address each of these arguments in turn.
II.
We turn first to defendant's argument that the court erred
by denying his motion to suppress his testimony from the first
trial. He contends he "chose to testify before the jury in the
first trial, in part to explain the details of the prior lewdness
charge that the prosecution had placed before the jury," and that
our reversal of his first conviction demonstrates that his decision
10 A-2098-15T4
to testify was not voluntary. He asks that we extend the ruling
in Harrison v. United States,
392 U.S. 219 (1968), which barred
the use of prior testimony upon retrial where that testimony was
induced by a constitutional violation, to situations where a
defendant testifies in order to refute evidence that was improperly
admitted.
The State responds that defendant cannot show prejudice
because none of his prior testimony was introduced at the second
trial. While the prospect of being impeached by his prior
testimony had the potential to affect his decision whether to
testify at the second trial, the State points out that defendant
repeatedly stated the reason he decided not to testify was that
he was unable to locate some of his witnesses. Finally, the State
argues that a review of the transcript from the first trial makes
clear that defendant did not testify to explain his prior lewdness
charge.
At pre-trial hearings on the motion, defendant asserted he
had undergone surgery for injuries he suffered while at the
correctional facility and was taking a lot of medication at the
time of the first trial. He later clarified that when he testified
at the first trial he was under the influence of morphine and
Percocet. The court reserved on the motion in order to view the
11 A-2098-15T4
video of defendant's first-trial testimony and allow defendant
time to obtain and produce his medical records.
In the court's written statement of reasons for denying
defendant's motion, it relied on State v. Wilson,
57 N.J. 39, 47
(1970), for the proposition that a defendant's testimony at a
prior trial can be introduced at a subsequent trial if the
testimony was given voluntarily and the defendant was not deprived
of the constitutional right against self-incrimination. The court
explained that its review of the transcript and audiotape of
defendant's testimony at his first trial did not reveal any
significant evidence of impairment or lack of capacity. It also
noted defendant failed to produce any medical records to support
his claim.
Initially, we note that defendant's entire argument before
the trial court rested on his claim that his decision to testify
at the first trial was not voluntary because he was under the
influence of Percocet and morphine. Consequently, because
defendant did not contend he was coerced to testify by the improper
admission of the State's other-crime evidence, we decline to
address this argument for the first time on appeal. "We generally
'decline to consider questions or issues not properly raised to
the trial court . . . unless the questions so raised on appeal go
to the jurisdiction of the trial court or concern matters of great
12 A-2098-15T4
public interest.'" State v. Marroccelli,
448 N.J. Super. 349, 373
(App. Div. 2017) (quoting State v. Robinson,
200 N.J. 1, 20
(2009)).
In any event, defendant's argument lacks merit. Defendant's
repeated assertions that his decision not to testify at the second
trial hinged on the availability of witnesses he could not locate
clearly belie his present claim that such decision was grounded
on the court's denial of his motion to suppress his first-trial
testimony.
Moreover, contrary to defendant's argument, Harrison does not
compel a different result. There, the United States Supreme Court
held that the retrial court erred by admitting the defendant's
first-trial testimony, which he had offered to rebut confessions
that were later held to be illegally obtained. Harrison,
392 U.S.
at 220. In so doing, the Court made clear that it was not
questioning "the general evidentiary rule that a defendant's
testimony at a former trial is admissible in evidence against him
in later proceedings." Id. at 222. It explained:
A defendant who chooses to testify waives his
privilege against compulsory self-
incrimination with respect to the testimony
he gives, and that waiver is no less effective
or complete because the defendant may have
been motivated to take the witness stand in
the first place only by reason of the strength
of the lawful evidence adduced against him.
13 A-2098-15T4
[Ibid. (emphasis added).]
The Court held that when a defendant testifies in response
to evidence that was obtained in violation of constitutional
rights, however, that testimony is inadmissible in a subsequent
proceeding as "the fruit of the poisonous tree." Ibid. Thus,
where such constitutional violations are involved, the government
bears the burden of demonstrating that the defendant's testimony
"was obtained 'by means sufficiently distinguishable' from the
underlying illegality 'to be purged of the primary taint.'" Id.
at 226 (quoting Wong Sun v. United States,
371 U.S. 471, 488
(1963)).
Here, defendant's first conviction was reversed not because
of a constitutional violation but because the admission of evidence
concerning his prior offense violated N.J.R.E. 404(b). Pena, slip
op. at 22-25. Violation of a rule of evidence, however, does not
necessarily rise to the level of a constitutional violation. See
State v. Bunyan,
154 N.J. 261, 266 (1998) (observing that "rules
of evidence may not conform with constitutional requirements");
State v. Ingenito,
87 N.J. 204, 225 (1981) (J. Schreiber,
concurring) (cautioning against confusing rules of evidence and
constitutional right to trial by jury); State v. Terry,
430 N.J.
Super. 587, 605 (App. Div. 2013) (discussing statutory authority
for rules of evidence and fact that drafters of New Jersey
14 A-2098-15T4
Constitution deleted references to rules of evidence), aff’d,
218 N.J. 224 (2014).
In any event, the circumstances of defendant's first-trial
testimony are quite different from those of the defendant in
Harrison. There, the defendant testified only after the illegally-
obtained confessions were introduced. Harrison,
392 U.S. at 220.
Here, defendant testified before evidence of his prior lewdness
conviction was presented. Pena, slip op. at 13-18. His direct
testimony was confined to addressing why his fingerprints and boot
prints were found at the scene, he made no mention of the prior
offense. The first mention of his having exposed himself to a
young woman in a CVS parking lot occurred during his cross-
examination. It was only after defendant's testimony concluded
that the prosecution presented rebuttal testimony from the victim
of that crime. Id. at 16-17. Thus, defendant was not coerced to
testify by the State's impermissible evidence. Rather, it was
defendant's testimony that offered the opportunity for that
evidence to be proffered. Thus, even were we to consider
broadening the holding in Harrison to encompass situations where
the rules of evidence are violated, there is nothing in the record
to suggest that the error here induced defendant to testify. See
generally State v. Bontempo,
170 N.J. Super. 220, 246-47 (App.
15 A-2098-15T
4 Div. 1979) (discussing factors influencing a defendant's decision
to testify).
Finally, even if the court erred in denying defendant's motion
to suppress his testimony from the first trial, that error was
clearly harmless. None of defendant's prior testimony was admitted
at trial. His decision not to testify was based on his
dissatisfaction at being unable to locate all of his witnesses,
not on the prospect of being impeached by his prior testimony.
III.
Next, defendant argues that the court erred by denying his
motion to dismiss the indictment. He contends the prosecutor
failed to present the following exculpatory material to the grand
jury: 1) an eyewitness told authorities that the assailant was a
black male; 2) an eyewitness identified the fleeing vehicle as a
Ford F-150, license place SKJ54; and 3) defendant's boot prints
were not found near the victim's vehicle.
Defendant raised these arguments at the motion hearing. He
also claimed the indictment should be dismissed because the
assistant prosecutor who presented the case to the grand jury was
his lover, and that the charges against him were manufactured by
the offices of the prosecutor and public defender. The court
rejected these arguments and ruled the indictment was valid.
16 A-2098-15T4
In its written statement of reasons, the court found there
was no credible evidence that defendant knew the assistant
prosecutor prior to his arrest, and defendant's allegation of a
romantic relationship with her "is a sordid, deluded, bare
assertion that lacks all credibility." The court rejected
defendant's argument that the prosecution failed to submit
exculpatory evidence to the grand jury, explaining:
Defendant alleges that the [p]rosecution
failed to submit clearly exculpatory evidence
to the grand jury that an eye witness told
authorities that a black male had committed
the crime. While the [p]rosecution was aware
of the evidence, the evidence . . . was not
clearly exculpatory. The evidence was not
clearly exculpatory because the eye witness
report does not meet the test put forth by the
New Jersey Supreme Court in [State v. Hogan,
144 N.J. 216 (1996)] because taken in light
of all the other evidence supporting
[d]efendant's indictment, the eyewitness
report, if introduced would most likely not
sway an individual to decide that the State
had not met their burden of proof in securing
an indictment. While the description may be
inconsistent with other evidence, in light of
other identifying information linking
[d]efendant to the crime, the description
would not have induced a juror to conclude
that a prima facie case had not been
established.
A decision to dismiss an indictment is left to the sound
discretion of the trial judge and will be reversed only for an
abuse of discretion. State v. Warmbrun,
277 N.J. Super. 51, 59
(App. Div. 1994). An indictment should be dismissed "only on the
17 A-2098-15T4
'clearest and plainest ground' . . . when it is manifestly
deficient or palpably defective." Hogan,
144 N.J. at 228-29 (1996)
(internal citations omitted).
"[O]nly in the exceptional case will a prosecutor's failure
to present exculpatory evidence to a grand jury constitute grounds
for challenging an indictment." Id. at 239. "[A]n indictment
should not be dismissed unless the prosecutor's error was clearly
capable of producing an unjust result. This standard can be
satisfied by showing that the grand jury would have reached a
different result but for the prosecutor's error." State v. Hogan,
336 N.J. Super. 319, 344 (App. Div. 2001). The role of a grand
jury is "not to weigh evidence presented by each party, but rather
to investigate potential defendants and decide whether a criminal
proceeding should be commenced." Hogan,
144 N.J. at 235.
"Credibility determinations and resolution of factual disputes are
reserved almost exclusively for the petit jury." Ibid.
The State, however, "may not deceive the grand jury or present
its evidence in a way that is tantamount to telling the grand jury
a 'half-truth.'" Id. at 236. The prosecutor's limited duty to
present exculpatory evidence is "triggered only in the rare case
in which the prosecutor is informed of evidence that both directly
negates the guilt of the accused and is clearly exculpatory." Id.
at 237.
18 A-2098-15T4
Applying these principles, we conclude the judge did not
abuse his discretion in denying defendant's motion to dismiss the
indictment. It is clear from the record that the evidence
defendant cites is not clearly exculpatory, and that the prosecutor
did not withhold clearly exculpatory evidence from the grand jury.
The court's decision denying defendant's motion rationally
explained the facts and properly applied the analysis established
by Hogan.
Furthermore, even assuming some error occurred at the
indictment stage, as a matter of law, such error is "harmless
given the subsequent conviction of defendant by the petit jury."
Warmbrun, 277 N.J. Super. at 60; see also United States v.
Mechanik,
475 U.S. 66, 70 (1986) (holding that "supervening jury
verdict made reversal of the conviction and dismissal of the
indictment inappropriate[,]" despite error during grand jury
proceedings); State v. Cook,
330 N.J. Super. 395, 411 (App. Div.
2000) (holding that finding of guilty beyond reasonable doubt by
petit jury renders harmless any failure by prosecutor to present
allegedly exculpatory evidence to grand jury).
IV.
Defendant argues that the court erred by allowing Corporal
Ahern to testify about the tire tread impressions found at the
crime scene. He contends Ahern was not qualified as an expert,
19 A-2098-15T4
yet offered an opinion as to whether the impressions found in the
snow matched known impressions from defendant's truck. He further
maintains this was not proper lay opinion testimony because it
invaded the province of the jury. Finally, he asserts the court
should have instructed the jury on the limits of Ahern's expert
testimony. We find these arguments unpersuasive.
When the prosecutor first proposed to question Ahern about
the tire tracks, defendant objected on the basis that Ahern was
not an expert. The court ruled that Ahern would be allowed to
testify as a lay witness under N.J.R.E. 701 because his testimony
was rationally based on his perceptions from the investigation and
would assist the jury in determining a fact in issue. The court
reasoned that tire tread identification is no different from shoe
print identification, which the Supreme Court found to be a proper
subject of lay testimony in State v. Johnson,
120 N.J. 263, 293-
95 (1990).
The court did, however, caution the prosecutor that the jury
must not be lead to believe Ahern was providing expert testimony.
Also, prior to Ahern's testimony, the court instructed the jury:
I'm going to allow this witness to
testify with regard to both the boot print
comparison as well as the tire track
comparison. But bear in mind, he is not an
expert in that area. There are particular
rules of evidence where individuals are
specifically qualified as an expert, but Rule
20 A-2098-15T4
701 allows opinion testimony of lay witnesses
in certain circumstances. If a witness is not
testifying as an expert, and this witness is
not in those two areas, the witness'[s]
testimony in the form of opinions or
inferences may be admitted if it is rationally
based on the perception of the witness, and
will assist in understanding the witness'
testimony or in determining the fact in issue.
We begin by noting that "'[a] trial court's evidentiary
rulings are entitled to deference absent a showing of an abuse of
discretion, i.e., there has been a clear error of judgment.'"
State v. Nantambu,
221 N.J. 390, 402 (2015) (quoting State v.
Harris,
209 N.J. 431, 439 (2012)). We only reverse those that
"undermine confidence in the validity of the conviction or misapply
the law." State v. Weaver,
219 N.J. 131, 149 (2014); State v.
J.A.C.,
210 N.J. 281, 295 (2012). Simply stated, we do "not
substitute [our] own judgment for that of the trial court, unless
'the trial court's ruling is so wide of the mark that a manifest
denial of justice resulted.'" J.A.C.,
210 N.J. at 295 (quoting
State v. Marrero,
148 N.J. 469, 484 (1997)).
Here, Ahern did not need to be an expert in order to testify
about the comparison between the tire treads on defendant's truck
and the tire tracks found at the crime scene. See State v. Harvey,
121 N.J. 407, 427 (1999) ("Comparison between a shoe print and the
shoe alleged to have made that print does not require expert
testimony."). Ahern's testimony plainly satisfied the
21 A-2098-15T4
requirements of N.J.R.E. 701 in that his opinion was rationally
based on his first-hand perceptions and was helpful to the jury
in determining a fact at issue. Like lay testimony about shoe
prints that has been found to be admissible, his comparison of the
tire prints was well within a layman's ability to observe. For
those reasons, the court did not abuse its discretion in allowing
Ahern to testify about the tire treads.
Finally, because Ahern did not testify as an expert witness,
the court did not err by failing to give the jury an expert-witness
instruction.
V.
Defendant next contends the court erred by barring him from
cross-examining E.D. about whether she was at the bagel store to
buy drugs or was in possession of heroin at the time of the
assault. He claims he had the right to probe whether E.D.'s trial
testimony was influenced by her desire to curry favor with the
police or prosecution. This argument does not warrant extensive
discussion.
"Both the federal and New Jersey constitutions guarantee
criminal defendants the right 'to be confronted with the witnesses
against them.'" State v. Budis,
125 N.J. 519, 530 (1991) (quoting
U.S. Const. amend VI; N.J. Const. art. I, ¶ 10). The right of
confrontation affords defendants the opportunity to cross-examine
22 A-2098-15T4
the state's witnesses, and protects against improper restrictions
on questions that may be asked during such cross-examination. Id.
at 530-31. Nevertheless, "[s]tates may exclude evidence helpful
to the defense if exclusion serves the interests of fairness and
reliability." Id. at 531-32. "Thus, a defendant's constitutional
right to confrontation does not guarantee unlimited cross-
examination of a witness." State v. Harvey,
151 N.J. 117, 188
(1997).
"[T]rial courts 'retain wide latitude to impose reasonable
limits on cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the
witness' safety, or interrogation that is repetitive or only
marginally relevant.'" Budis,
125 N.J. at 532 (alteration
omitted)(citation omitted). "[A] cross-examiner does not have a
license to roam at will under the guise of impeaching credibility."
State v. Engel,
249 N.J. Super. 336, 375 (App. Div. 1991).
For example, the cross-examiner may not ask a
potentially inflammatory question without a
good faith basis to support the question. The
question must be based upon facts in evidence
or based upon a proffer by the cross-examiner
indicating his ability to prove the facts
contained in the question. The reason for
this rule is that the question of the cross-
examiner is not evidence and yet suggests the
existence of evidence tending to show bias
which is not properly before the jury.
23 A-2098-15T4
[State v. Spencer,
319 N.J. Super. 284, 305
(App. Div. 1999) (citation omitted).]
"The scope of cross-examination . . . rests within the sound
discretion of the trial court." Harvey,
151 N.J. at 188; see also
N.J.R.E. 611(a)(3) and (b) (allowing court to exercise reasonable
control over cross-examination to protect witnesses from
harassment or undue embarrassment). We will not interfere with
the trial court's control of cross-examination unless clear error
and prejudice are shown. State v. Gaikwad,
349 N.J. Super. 62,
86 (App. Div. 2002).
Here, there was no evidence that E.D. went to the bagel store
to buy drugs. The question posed to E.D. was inflammatory,
harassing, and irrelevant. It suggested to the jury that E.D. was
a drug user or perhaps even a drug dealer. Defendant had no good
faith basis in the record to make such a suggestion. Indeed, the
court had warned defendant before trial began that he could not
raise unfounded allegations against the victim. Defendant's right
to confront E.D. did not give him "a license to roam at will under
the guise of impeaching credibility." Engel,
249 N.J. Super. at
375. Accordingly, the court did not abuse its discretion by
limiting defendant's cross-examination and instructing the jury
to disregard the question.
24 A-2098-15T4
VI.
Defendant additionally argues the court erred by denying his
motion for a mistrial, which he predicated on his inability to
locate some of his proposed witnesses. He contends the court
should have at least granted him an adjournment to allow more time
to locate these witnesses.
In denying defendant's motion for a mistrial, the court found
that the witnesses who could not be located were "of exceedingly
limited utility" to defendant's case. It observed that the fact
that defendant subpoenaed "anybody whose name was mentioned
anywhere in any report" did not make them critical witnesses. The
court ultimately concluded that the inability of the defense to
locate witnesses did not provide a legal basis for a mistrial.
"The decision to grant or deny a mistrial is entrusted to the
sound discretion of the trial court, which should grant a mistrial
only to prevent an obvious failure of justice." Harvey,
151 N.J.
at 205 (citation omitted). "An appellate court should defer to
the decision of the trial court . . . . Thus, an appellate court
will not disturb a trial court's ruling on a motion for a mistrial,
absent an abuse of discretion that results in a manifest injustice.
Ibid. (citations omitted).
"The Federal and State Constitutions 'guarantee criminal
defendants a meaningful opportunity to present a complete
25 A-2098-15T4
defense.'" State v. Smith,
224 N.J. 36, 48 (2016) (citations
omitted); see U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. To
that end, a defendant has the right to have compulsory process for
obtaining witnesses in his favor. Smith,
224 N.J. at 48. "Indeed,
the right of an accused to present witnesses in his own defense
'is a fundamental element of due process of law.'" State v.
Garcia,
195 N.J. 192, 202 (2008) (quoting Taylor v. Illinois,
484 U.S. 400, 409 (1988)). "Criminal defendants possess not only the
right to call witnesses, but also 'the right to the government's
assistance in compelling the attendance of favorable witnesses at
trial.'" Ibid. (quoting Taylor,
484 U.S. at 408). "[W]here the
circumstances entitle a defendant to the issuance of process
requiring the attendance of an absent witness the defendant should
be allowed a reasonable time for making process effectual;
otherwise his constitutional right would be of little value to
him." State v. Smith,
66 N.J. Super. 465, 468 (App. Div. 1961).
The constitutional right to compulsory service is not
absolute, however, and may be limited by other legitimate
interests, including the efficient administration of justice.
Smith,
224 N.J. at 48; Garcia,
195 N.J. at 202-03. "Certainly, a
defendant does not have a right to call a witness who will offer
irrelevant testimony." Garcia,
195 N.J. at 203.
26 A-2098-15T4
Having reviewed the record, we conclude defendant's argument
on this point fails in several respects. First, some of the
witnesses defendant identifies as "missing" did in fact testify
at trial.2 Second, many witnesses subpoenaed by defendant appeared
in court or testified, but had no relevant information to offer.3
Third, the court adjourned the matter more than once to give
defendant an opportunity to locate witnesses.
Moreover, the prosecutor and stand-by counsel went to great
lengths to find the witnesses that defendant claimed were
2
K.P., owner of G & A Bagel, testified. Contrary to defendant's
assertion that K.P. would testify "that Mr. Thomas was in fact a
black male employee," K.P. stated she did not remember Thomas and
did not have any black employees. Other "missing" witnesses who
testified were Colleen Pascal, the lead investigator for the Butler
Police Department; Cristina Somolinos, a forensic scientist with
the New Jersey State Police Laboratory; and Allison Lane, a
scientist from the State Police Laboratory.
3
Ciro Chimento, the Butler Police Chief, testified he never
responded to the scene, never collected evidence, and had extremely
limited involvement in the investigation. K.C., manager of the
bagel store, had no direct knowledge of the incident. Anthony
Peter Lotz, a corrections officer, could not authenticate the
photographs of defendant's penis. Sean Talt, a detective with the
Vernon Township Police Department, testified he went to
defendant's residence on February 1, 2007, and sat in his car at
the foot of the driveway to make sure no one left the premises
while a search warrant was being obtained. Lisa Reed, a private
investigator employed by defense counsel at the first trial,
testified she interviewed store employees but she did not remember
what they said. The tow truck driver who towed the car E.D. was
driving from the bagel store to the police garage was called to
court, but stand-by counsel spoke to him in the hallway and
convinced defendant he had no relevant information to offer.
27 A-2098-15T4
"critical" to his case. The prosecutor assisted in getting all
active, named law enforcement officers to court. The public
defender's office assigned an investigator to attempt to locate
and subpoena several witnesses. It is clear that defendant's
problem in locating witnesses was not lack of time; it was that
some of the witnesses died, relocated, or actively avoided service.
Additional time would not have changed that situation.
Further, many, if not most, of the unavailable witnesses
would have offered testimony that was either irrelevant or
cumulative. For these reasons, the court did not abuse its
discretion in concluding defendant's inability to locate the
missing witnesses did not warrant a mistrial.
VII.
Finally, we address defendant's sentencing arguments.
Specifically, defendant contends the trial court erred in: (1)
failing to merge his convictions for criminal sexual contact and
burglary with his conviction for aggravated sexual assault; (2)
imposing consecutive sentences; (3) finding that aggravating
factors one and two applied; and (4) imposing a greater sentence
than was imposed following his first trial.
Our analysis of these arguments is framed by well-settled
principles. Our review of sentencing determinations is limited.
State v. Roth,
95 N.J. 334, 364-65 (1984). We will not ordinarily
28 A-2098-15T4
disturb a sentence that 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,
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.
(i) Merger
In imposing sentence, the court merged count three, second-
degree sexual assault, into count one, first-degree aggravated
sexual assault, but did not merge the second-degree burglary or
the fourth-degree criminal sexual contact counts. Defendant
contends the court's failure to do so was error because the crimes
are based on the same evidence and arise from the same criminal
transaction.
29 A-2098-15T4
"Merger stems from the well-settled principle that 'an
accused [who] has committed only one offense . . . cannot be
punished as if for two.'" State v. Cole,
120 N.J. 321, 326 (1990)
(quoting State v. Miller,
108 N.J. 112, 116 (1987) (alteration in
original)). Merger of convictions ensures that a defendant will
avoid "double punishment for a single wrongdoing." State v. Diaz,
144 N.J. 628, 637 (1996).
New Jersey courts eschew "technisms and inflexibility" when
resolving merger issues. Cole,
120 N.J. at 326. Rather, merger
analysis focuses on the elements of the crime and the Legislature's
intent in creating them, and the facts of each case. Id. at 327.
The specific elements of the offenses must be considered in light
of
N.J.S.A. 2C:1-8.4 Cole,
120 N.J. at 327-28. Thus, courts
consider
the time and place of each purported
violation; whether the proof submitted as to
one count of the indictment would be a
necessary ingredient to a conviction under
another count; whether one act was an integral
part of a larger scheme or episode; the intent
of the accused; and the consequences of the
criminal standards transgressed.
4 N.J.S.A. 2C:1-8(a) prohibits prosecution for multiple offenses,
and
N.J.S.A. 2C:1-8(d) defines an offense as included when "[i]it
is established by proof of the same or less than all the facts
required to establish the commission of the offense charged," or
"[i]t differs from the offense charged only in the respect that a
less serious injury or risk of injury to the same person, property
or public interest or a lesser kind of culpability suffices to
establish its commission."
30 A-2098-15T4
[State v. Davis,
68 N.J. 69, 81 (1975).]
Here, the court did not abuse its discretion by failing to
merge counts two and four with count one. It is well established
that a conviction for burglary, which is complete upon entering,
typically should not merge with a conviction for a separate offense
the actor intended to commit when entering. State v. Pyron,
202 N.J. Super. 502, 504-05 (App. Div. 1985); see also State v.
Vassalluzzo,
113 N.J. Super. 140, 141-42 (App. Div. 1971)
(conviction for breaking and entering with intent to rob did not
merge with conviction for robbery). In State v. Adams,
227 N.J.
Super. 51, 66-67 (App. Div. 1988), we held:
Burglary is a statutory element of
attempted aggravated sexual assault. However,
to strictly construe it as a lesser included
offense or as merely an element of attempted
aggravated sexual assault would not only be
contrary to the intent of the Legislature, but
would allow a free crime in this case, and
potentially other cases.
. . . .
The harm from the attempted aggravated
sexual assault is of a different nature from
that involved in the burglary. It is one of
the most vicious insults that can be made
against a person, with devastating physical
and emotional effects. The fact that it is
committed during the course of one of the
crimes enumerated in
N.J.S.A. 2C:14-2a(3) only
enhances the potential risk of harm to the
victim.
31 A-2098-15T4
The circumstances in the present case are nearly identical
to Adams. Even though burglary is a statutory element of
aggravated sexual assault, the two counts should not be merged.
The crimes are of entirely different natures and represent distinct
harms to the victim.
Likewise, fourth-degree criminal sexual contact should not
merge with aggravated sexual assault. An actor is guilty of
fourth-degree criminal sexual contact if he commits an act of
sexual contact with the victim through use of physical force or
coercion, but the victim does not sustain severe personal injury.
N.J.S.A. 2C:14-2(c)(1);
N.J.S.A. 2C:14-3(b). The act giving rise
to the criminal sexual contact charge here was defendant's forcing
E.D. to touch his penis while inside the car, and occurred prior
to the aggravated sexual assault. Under the factors set forth in
Davis,
68 N.J. at 81, the time and place of the two violations
differed; proof of digital penetration, which was necessary to
support a conviction of aggravated sexual assault,
N.J.S.A. 2C:14-
2(a)(3), was not necessary to prove criminal sexual contact; and
the violations had significantly different consequences for the
victim. As the court reasoned in Adams, defendant should not be
allowed the free crime of criminal sexual contact simply because
his attack escalated to aggravated sexual assault.
32 A-2098-15T4
(ii) Consecutive Sentences
In imposing consecutive sentences, the court recognized State
v. Yarbough,
100 N.J. 627 (1985), as controlling precedent. The
judge stated: "I do think that consecutive sentences are warranted
in this case against Mr. Pena. As said earlier, the statutes in
this case protect different interests of the victim. And in this
case Mr. Pena inflicted separate harms, threatened different acts,
and committed different acts of violence against the victim."
The court reasoned that there were two victims of the
burglary: the owner of the vehicle who had not given defendant
permission to enter it, and E.D. who was attacked after defendant
forced his way into the car. Further, criminal sexual contact,
arising from defendant's forcing E.D. to touch his penis, was
distinct from aggravated sexual assault, which involved digital
penetration.
In Yarbough,
100 N.J. at 643-44, our Supreme Court adopted
the following "criteria as general sentencing guidelines for
concurrent or consecutive-sentencing decisions (including any
parole ineligibility feature)":
(1) there can be no free crimes in a system
for which the punishment shall fit the crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;
33 A-2098-15T4
(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:
(a) the crimes and their objectives
were predominantly independent of
each other;
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate places,
rather than being committed so
closely in time and place as to
indicate a single period of aberrant
behavior;
(d) any of the crimes involved
multiple victims;
(e) the convictions for which the
sentences are to be imposed are
numerous;
(4) there should be no double counting of
aggravating factors;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense . . . .5
[(footnote omitted).]
The Yarbough factors essentially focus upon "the nature and
number of offenses for which the defendant is being sentenced,
whether the offenses occurred at different times or places, and
5
A sixth guideline was later superseded by statute. State v.
Carey,
168 N.J. 413, 423 n.1 (2001).
34 A-2098-15T4
whether they involve numerous or separate victims." Carey,
168 N.J. at 423 (quoting State v. Baylass,
114 N.J. 169, 180 (1989)).
They should be applied qualitatively, not quantitatively. Id. at
427. A court may impose consecutive sentences even though a
majority of the Yarbough factors support concurrent sentences.
Id. at 427-28; see also State v. Swint,
328 N.J. Super. 236, 264
(App. Div. 2000) (even when "offenses [are] connected by a 'unity
of specific purpose,'" "somewhat interdependent of one another,"
and "committed within a short period of time," concurrent sentences
need not be imposed) (citation omitted).
Concurrent or consecutive sentences are at the discretion of
the sentencing judge. See Carey,
168 N.J. at 422 (citing
N.J.S.A.
2C:44-5(a)). "When a sentencing court properly evaluates the
Yarbough factors in light of the record, the court's decision will
not normally be disturbed on appeal." State v. Miller,
205 N.J.
109, 129 (2011).
Applying the Yarbough factors here, the crimes and their
objectives were not predominantly independent of one another.
Defendant's forcing E.D. to touch his penis, dragging her out of
the car, and digitally penetrating her were all part of his overall
objective. The crimes were committed in close proximity to one
another, and with the exception of the burglary, there was only
one victim. Nonetheless, as the trial court recognized, the three
35 A-2098-15T4
crimes represented distinct acts of violence. Although these
crimes could be viewed as part of a continuous episode of aberrant
conduct, there is no question they represented separate violations
of the victim. Defendant's entering the vehicle and pulling E.D.
out of it, was different from his forcing her to touch his penis,
which in turn was distinct from his inserting his fingers into her
vagina. Accordingly, we discern no abuse of discretion in the
court's imposition of consecutive sentences consistent with the
Yarbough guidelines.
(iii) Aggravating Factors
At sentencing, the court found aggravating factors one, the
nature and circumstances of the offense (
N.J.S.A. 2C:44-1(a)(1));
two, the gravity of harm to the victim (
N.J.S.A. 2C:44-1(a)(2));
three, the risk defendant will commit another offense (
N.J.S.A.
2C:44-1(a)(3)); six, the extent of defendant's prior criminal
record, (
N.J.S.A. 2C:44-1(a)(6)); and nine, the need for
deterrence (
N.J.S.A. 2C:44-1(a)(9)). The court found no
mitigating factors, and concluded the aggravating factors
substantially and significantly outweighed the non-existing
mitigating factors.6
6
Defendant does not dispute the absence of mitigating factors.
36 A-2098-15T4
Aggravating factor one requires consideration of "[t]he
nature and circumstances of the offense, and the role of the actor
therein, including whether or not it was committed in an especially
heinous, cruel, or depraved manner[.]"
N.J.S.A. 2C:44-1(a)(1).
When assessing whether this factor applies, "the sentencing court
reviews the severity of the defendant's crime, 'the single most
important factor in the sentencing process,' assessing the degree
to which defendant's conduct has threatened the safety of its
direct victims and the public." State v. Lawless,
214 N.J. 594,
609 (2013) (quoting State v. Hodge,
95 N.J. 369, 378-79 (1984)).
The court may also "consider 'aggravating facts showing that [a]
defendant's behavior extended to the extreme reaches of the
prohibited behavior.'" State v. Fuentes,
217 N.J. 57, 75 (2014)
(quoting State v. Henry,
418 N.J. Super. 481, 493 (Mercer Cty. Ct.
2010)). In determining whether a defendant's conduct was
"'especially heinous, cruel, or depraved,' a sentencing court must
scrupulously avoid 'double-counting' facts that establish the
elements of the relevant offense." Id. at 74-75; see also
Yarbough,
100 N.J. at 645.
Here, the court noted that defendant laid in wait for a
victim, and then lured E.D. to a secluded part of the building in
order to isolate her from anyone who could help her. Thus, it
concluded this was an intentional and calculated crime. However,
37 A-2098-15T4
while the court's observations are true, they fail to establish
that defendant's attack on E.D. was extraordinarily brutal or
cruel aside from the obvious harm intrinsic in an aggravated sexual
assault.
Defendant also challenges the court's finding that
aggravating factor two applied.
N.J.S.A. 2C:44-1(a)(2) takes into
account "[t]he gravity and seriousness of harm inflicted on the
victim, including whether or not the defendant knew or reasonably
should have known that the victim of the offense was particularly
vulnerable or incapable of resistance . . . ." "It focuses on the
setting of the offense itself with particular attention to any
factors that rendered the victim vulnerable or incapable of
resistance at the time of the crime." Lawless,
214 N.J. at 611
(emphasis added).
In finding that grave harm was inflicted on the victim, the
court observed that E.D. had been re-victimized by defendant during
trial and at sentencing, where defendant disparaged and debased
her in front of members of the public and the press. The court
characterized defendant's misogynistic attacks on E.D. as "beyond
all of the bounds of human decency" and as constituting continuing
harms to E.D.'s mental and emotional health that would take a long
time to heal.
38 A-2098-15T4
The record supports these observations. However, we
interpret aggravating factor two as focusing on the victim's
vulnerability and the harm visited on the victim at the time of
the offense, rather than on a defendant's conduct at an ensuing
trial, where a court is empowered to take appropriate steps to
control the proceedings. Since we conclude the court erred in
finding aggravating factors one and two, we remand for
reconsideration of defendant's sentence in the absence of those
aggravating factors.
(iv) More Severe Sentence on Retrial
At his first trial, defendant was sentenced to an aggregate
prison term of twenty-seven years and nine months. Pena, slip op.
at 2. After his second trial, defendant was sentenced to twenty-
nine years and four months, an increase of one year, seven months.
Relying on State v. Pindale,
279 N.J. Super. 123 (App. Div.
1995), defendant argues this increased sentence "violates the rule
that a defendant should not be punished for exercising his
appellate rights."
At the conclusion of the sentencing hearing, the prosecutor
and stand-by counsel pointed out that the court was imposing a
greater sentence than that imposed after the first trial. The
court responded that defendant's actions at trial warranted the
39 A-2098-15T4
increase. In the judgment of conviction entered on December 24,
2015, the court wrote:
In imposing this sentence, the [c]ourt
was mindful of the fact that this sentence is
more severe than the sentence previously
imposed upon defendant. The Court has
reviewed . . . Pindale . . . and imposes this
more severe sentence based on [d]efendant's
conduct that occurred subsequent to the first
trial. In particular, . . . [d]efendant has
made repeated baseless and sordid allegations
against an Assistant Prosecutor who was part
of the trial team that initially prosecuted
[d]efendant. These allegations were raised
pre-trial and addressed by the [c]ourt, but
then repeated by [d]efendant during trial and
sentencing.
More disturbingly, [d]efendant also
verbally attacked the victim of the sexual
assault during trial, by accusing her, without
any reasonable basis, of purchasing heroin at
the time of the assault. This offensive and
demeaning allegation was repeated multiple
times during the sentencing, thereby re-
victimizing the victim.
Further, [d]efendant verbally attacked
the [c]ourt's staff during the sentencing,
accusing the Court Clerk of official
misconduct by purposely selecting alternate
jurors that appeared to [d]efendant to be
sympathetic to . . . [d]efendant's case. Once
again, [d]efendant has launched a vicious,
baseless and unwarranted attack on a female.
There was absolutely no basis for any of . . .
[d]efendant's verbal assault[s] on these three
individuals.
These noxious attacks have shed new light
upon . . . [d]efendant's conduct, and mental
and moral propensities, and disclosed a
depraved, cavalier and misogynistic attitude
40 A-2098-15T4
toward the victim and others. For these
reasons, as well as others more fully
developed on the record, the [c]ourt has
imposed this more severe sentence upon . . .
[d]efendant. It bears further noting, that
despite approximately seven years
incarcerated for this offense, [d]efendant has
not accepted any responsibility for his
actions, or displayed any remorse for his
crimes. Rather, he has continued to lash out
at the victim, accuses others of crimes and
concoct[s] baseless stories and allegations to
avoid accepting responsibility for his crimes.
In Pindale,
279 N.J. Super. at 129-30, we addressed the
"presumption of vindictiveness" that attaches to an increased
sentence imposed on retrial following a successful appeal. We
vacated the sentence at issue because the trial judge failed to
state specific reasons justifying the increase. Id. at 128. In
so doing, we quoted the holding in North Carolina v. Pearce,
395 U.S. 711, 723-25 (1969)
that neither the double jeopardy provision nor
the Equal Protection Clause imposes an
absolute bar to a more severe sentence upon
reconviction. A trial judge is not
constitutionally precluded, in other words,
from imposing a new sentence, whether greater
or less than the original sentence, in the
light of events subsequent to the first trial
that may have thrown new light upon the
defendant's "life, health, habits, conduct,
and mental and moral propensities." Williams
v. New York,
337 U.S. 241, 245 (1949). Such
information may come to the judge's attention
from evidence adduced at the second trial
itself, from a new presentence investigation,
from the defendant's prison record, or
possibly from other sources. The freedom of
41 A-2098-15T4
a sentencing judge to consider the defendant's
conduct subsequent to the first conviction in
imposing a new sentence is no more consonant
with the principle, fully approved in
[Williams], that a State may adopt the
"prevalent modern philosophy of penology that
the punishment should fit the offender and not
merely the crime." Id. at 247.
To say that there exists no absolute bar
to the imposition of a more severe sentence
upon retrial is not, however, to end the
inquiry. There remains for consideration the
impact of the Due Process Clause of the
Fourteenth Amendment.
. . . .
Due process of law, . . . requires that
vindictiveness against a defendant for having
successfully attacked his first conviction
must play no part in the sentence he receives
after a new trial. And since the fear of such
vindictiveness may unconstitutionally deter a
defendant's exercise of the right to appeal
or collaterally attack his first conviction,
due process also requires that a defendant be
freed of apprehension of such a retaliatory
motivation on the part of the sentencing
judge.
. . . .
In order to assure the absence of such
motivation, we have concluded that whenever a
judge imposes a more severe sentence upon a
defendant after a new trial, the reasons for
his doing so must affirmatively appear. Those
reasons must be based upon objective
information concerning identifiable conduct
on the part of the defendant occurring after
the time of the original sentencing
proceeding. And the factual data upon which
the increased sentence is based must be made
part of the record, so that the constitutional
42 A-2098-15T4
legitimacy of the increased sentence may be
fully reviewed on appeal."
[Pindale, 279 N.J. Super. at 129-30
(alteration in original) (emphasis added).]
Here, there is no indication that defendant's success in his
first appeal played any role in the court's imposition of a more
severe sentence. Rather, the court made clear it was defendant's
conduct at the second trial that warranted the increase. It cited
defendant's actions at trial during the oral pronouncement of
sentence, and identified the specific conduct at issue in the
judgment of conviction.
The court thus satisfied Pindale, which requires that the
information constituting the basis for the increased sentence come
to the judge's attention from "'evidence adduced at the second
trial itself, from a new presentence investigation, from the
defendant's prison record, or possibly from other sources.'"
Pindale,
279 N.J. Super. at 129 (quoting Pearce,
395 U.S. at 723).
The conduct at issue was adduced at the second trial and, in any
event, would certainly qualify as an "other source" of information.
It was therefore properly considered by the court.
Nonetheless, defendant's increased sentence was grounded, at
least in part, on the court's application of aggravating factors
one and two, which we have determined to be erroneous.
Accordingly, as noted, we are constrained to vacate the increased
43 A-2098-15T4
sentence and remand for resentencing absent consideration of
aggravating factors one and two.
We affirm defendant's convictions, vacate the sentence
imposed, and remand for resentencing. We do not retain
jurisdiction.
44 A-2098-15T4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
