STATE OF NEW JERSEY v. ORLANDO TRINIDAD

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                               APPROVAL OF THE APPELLATE DIVISION
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3029-15T3


STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ORLANDO TRINIDAD,

     Defendant-Appellant.
_________________________

                    Submitted January 18, 2018 – Decided September 17, 2018

                    Before Judges Simonelli, Rothstadt and Gooden
                    Brown.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 14-01-0314.

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

                    Robert D. Laurino, Acting Essex County Prosecutor,
                    attorney for respondent (Kayla E. Rowe, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).
PER CURIAM

      Following a jury trial, defendant Orlando Trinidad, a former police

officer, was convicted of second-degree conspiracy to commit official

misconduct,  N.J.S.A. 2C:5-2 and  N.J.S.A. 2C:30-2 (count one); second-degree

official misconduct,  N.J.S.A. 2C:30-2 (count two); third-degree tampering with

public records,  N.J.S.A. 2C:28-7(a)(2) (count three); fourth-degree falsifying or

tampering with records,  N.J.S.A. 2C:21-4(a) (count four); fourth-degree false

swearing,  N.J.S.A. 2C:28-2 (count five); and fourth-degree simple assault,

 N.J.S.A. 2C:12-1(a), amended from third-degree aggravated assault,  N.J.S.A.

2C:12-1(b)(7) (count six). The charges stemmed from an incident on the Garden

State Parkway on June 7, 2012.

      Judge Michael L. Ravin merged count one with count two and sentenced

Trinidad on count two to a five-year term of imprisonment with five years of

parole ineligibility, concurrent to a three-year term on count three, nine-month

terms on both counts four and five, and a six-month term on count six..

      On appeal, Trinidad raises the following contentions:

            POINT I – DEFENDANT WAS DENIED THE RIGHT
            TO A FAIR TRIAL DUE TO HIGHLY PREJUDICIAL
            COMMENTS MADE BY THE ALLEGED VICTIM
            THAT WERE SOLELY DESIGNED TO INFLAME
            THE PASSION OF THE JURY. (Not Raised Below).


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                                       2
            POINT II – DEFENDANT WAS DENIED THE
            RIGHT TO A FAIR TRIAL DUE [TO THE]
            ADMISSION    OF     INTERNAL        AFFAIRS
            LIEUTENANT'S  LAY     OPINION      ON  THE
            DEFENDANT'S GUILT. (Not Raised Below).

            POINT III – THE DEFENDANT'S SENTENCE WAS
            EXCESSIVE.

                  (A) THE COURT ERRED IN FAILING
                  TO SENTENCE THE DEFENDANT TO
                  ONE-DEGREE LOWER.

                  (B) IMPOSITION OF THE PAROLE
                  INELIGIBILITY   TERM     WAS
                  UNWARRANTED.

            POINT IV – THE DEFENDANT'S MOTION FOR A
            JUDGMENT OF ACQUITTAL N.O.V. BASED UPON
            INSUFFICIENCY OF THE EVIDENCE SHOULD
            HAVE BEEN GRANTED.

                  (A) THERE WAS INSUFFICIENT
                  EVIDENCE TO SUPPORT THE GUILTY
                  VERDICT ON THE CHARGE OF
                  CONSPIRACY.

                  (B) THERE WAS INSUFFICIENT
                  EVIDENCE TO SUPPORT THE GUILTY
                  VERDICT ON THE CHARGE OF
                  OFFICIAL MISCONDUCT.

                  (C) THERE WAS INSUFFICIENT
                  EVIDENCE TO SUPPORT THE GUILTY
                  VERDICTS ON COUNTS THREE, FOUR
                  OR FIVE.

We reject these contentions and affirm.

                                                          A-3029-15T3
                                      3
                            The Underlying Incident

      On June 7, 2012, Police Officers Sean Courter and Albert Sutterlin from

the Township of Bloomfield Police Department (BPD) responded to a home on

West Passaic Avenue on a report of a domestic violence incident between

Marcus Jeter and his girlfriend, Ms. T. Killian. In his incident report, Courter

gave the following version of what happened:

            Responded to . . . West Passaic Ave. on a report of a
            Domestic. Upon arrival Officer Sutterlin and I rang the
            doorbell to the residence. While ringing the doorbell a
            black male, later identified as Mr. Marcus Jeter, stuck
            his head out the second floor window and stated, "Come
            and get me". A female, later identified as Ms. [T.]
            Killian, then opened the front. While speaking with
            Ms. Killian, the girlfriend, she stated that her boyfriend,
            Mr. Jeter, just jumped out the back window. Officer
            Sutterlin and I heard an engine starting from the rear of
            the residence. A vehicle . . . came up the driveway at a
            high rate of speed. I stated to the driver, Mr. Jeter, to
            put the vehicle in park and give me his identification.
            Mr. Jeter ignored my order to put the vehicle in park
            and stated, "I did not do anything wrong". I spoke to
            Mr. Jeter through the front passenger side window,
            which was rolled down. As Mr. Jeter was speaking, I
            smelled a strong odor of an alcoholic beverage
            emanating from his breath and his eyes being
            bloodshot. In further observing the vehicle I observed
            the rear driver tire to be flat. I asked Mr. Jeter again to
            put the vehicle in park and give me his identification.
            Mr. Jeter refused and drove off at a high rate of speed,
            making a left onto West Passaic Ave. I ran to my
            vehicle and advised Central Communications and
            [Lieutenant Sean] Schwindt that I was pursuing this

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                                        4
vehicle. I activated my emergency lights and sirens and
was able to view Mr. Jeter's vehicle make a right onto
Broad St. from West Passaic Ave. Upon reaching
Broad St., I observed Mr. Jeter's vehicle make a right
onto Parkway South. I was able to catch up to Mr.
Jeter's vehicle on the Parkway South. I pulled behind
Mr. Jeter's vehicle, who continued to drive on the
Parkway South. At this time, I observed the driver-side
rear tire to be sparking, due to that Mr. Jeter was driving
on the rim. After approximately 1,000 feet, Mr. Jeter's
vehicle became disabled, due to that the driver-side rear
rim was on its side. Mr. Jeter's vehicle came to rest at
mile marker 154.1 on the Parkway South. I exited my
vehicle with my handgun drawn on Mr. Jeter, who was
still in the vehicle with the engine running. I gave Mr.
Jeter multiple commands to shut off the vehicle and
show me his hands. Mr. Jeter refused and stated "Fuck
You, I did not do anything". Officer Sutterlin then
arrived on scene. At this time I proceeded to the drivers
side door and attempted to open it. The door was
locked. I again gave Mr. Jeter verbal commands to
open the door. Mr. Jeter refused and stated "Fuck You"
and then rolled up his driver side window. I advised
Central Communications that Mr. Jeter was refusing to
exit the vehicle. Officer Trinidad arrived on scene and
blocked Mr. Jeter's vehicle in from the front, due to that
Mr. Jeter refused to turn off his vehicle. I again gave
Mr. Jeter verbal commands to unlock the driver side
door and exit the vehicle. Mr. Jeter refused. I then used
my ASP, which is an expandable baton, to break Mr.
Jeter's driver side window. When the window was
broke, I gave Mr. Jeter verbal commands to open the
door. Mr. Jeter refused. While Officer Sutterlin and
Officer Trinidad stood by, I reached into the driver side
window and opened the door. While reaching into the
broken window, my left forearm was scraped by the
broken glass. I was able to open the door. I advised
Mr. Jeter to take off his seatbelt. Mr. Jeter refused. I

                                                              A-3029-15T3
                            5
            reached over Mr. Jeter and attempted to take off Mr.
            Jeter's seatbelt. While attempting to take off Mr. Jeter's
            seatbelt, Mr. Jeter began grabbing onto my holster in an
            attempt to get my handgun. I advised Mr. Jeter multiple
            times to stop resisting. Officer Trinidad, Officer
            Sutterlin and I then attempted to take Mr. Jeter to the
            ground, at which time Mr. Jeter struck Officer Trinidad
            in the face with his fist. We were then able to take Mr.
            Jeter to the ground. While on the ground Mr. Jeter put
            his hands underneath his body in an attempt not to be
            handcuffed. I advised Mr. Jeter multiple times to stop
            resisting and give me his hands. Officer Trinidad and I
            were able to handcuff Mr. Jeter. Mr. Jeter was then
            placed into patrol vehicle 4.

            [(Emphasis added).]

Courter also filled out a "Bloomfield Police Department DVD Discovery Form,"

which indicated that both his and Trinidad's patrol vehicles were equipped with

video cameras, the cameras were on during the incident, and the hard drives

were removed from the patrol vehicles after the incident and placed into

evidence.

      In his incident report, Sutterlin gave the following version of the incident:

            Responded to . . . West Passaic Avenue on a report of a
            [d]omestic. Upon arrival, Mr. Jeter opened an upstairs
            window and yelled: "Come and get me!" This officer
            then rang the doorbell until Ms. Killian responded. Ms.
            Killian stated that she just wanted Mr. Jeter to leave for
            the evening and that when she had gone to the door, Mr.
            Jeter jumped out the back window. Mr. Jeter was
            stopped at the end of the driveway as he was trying to
            leave. Officer Courter requested Mr. Jeter's license and

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                                        6
            at this time, Mr. Jeter sped off, south on West Passaic
            Avenue. Mr. Jeter turned right onto Broad Street into
            the McDonald's [p]arking lot and then onto Garden
            State Parkway South. At mile marker 154.1, Mr. Jeter
            pulled over because his left rear tire had gone flat and
            the rim had broken. Mr. Jeter was ordered out of his
            vehicle and at this time, Mr. Jeter locked all the doors
            and rolled up all windows, refusing to come out. At
            this time, Lieutenant Schwindt acknowledged to use all
            necessary force to effect an arrest. At this time, the
            driver's window was broken. Mr. Jeter refused to take
            off his seat belt and while Officer Courter was reaching
            over him, Mr. Jeter attempted to gain control of Officer
            Courter's firearm. Mr. Jeter was then extricated from
            the vehicle and ordered to the ground. At this time, Mr.
            Jeter refused to submit to arrest and necessary force was
            used to effect an arrest.

            [(Emphasis added).]

                     Criminal Charges Filed Against Jeter

      On June 7, 2012, Courter signed complaint warrants against Jeter charging

him with second-degree eluding,  N.J.S.A. 2C:20-2B; third-degree resisting

arrest,  N.J.S.A. 2C:29-2(a)(3)(a); second-degree attempting to disarm a police

officer,  N.J.S.A. 2C:12-11(a); and obstructing administration of law or other

governmental function, a disorderly persons offence,  N.J.S.A. 2C:29-1(a).1


1
  Courter also issued motor vehicle summonses to Jeter for driving while license
suspended,  N.J.S.A. 39:3-40; reckless driving,  N.J.S.A. 39:4-96; refusal to
submit to an alcohol test,  N.J.S.A. 39:4-50.2; driving while intoxicated,  N.J.S.A.
39:4-50; failure to comply with directions of officers,  N.J.S.A. 39:4-57; driving


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                                        7
      On September 19, 2012, a grand jury indicted Jeter for second-degree

eluding,  N.J.S.A. 2C:29-2(b); second-degree attempting to disarm a police

officer,  N.J.S.A. 2C:12-11(a); third-degree aggravated assault on a law

enforcement officer acting in the performance of his duties,  N.J.S.A. 2C:12- -

1(b)(5)(a); and third-degree resisting arrest,  N.J.S.A. 2C:29-2(a)(3)(a).

                       The Internal Affairs Investigation

      Prior to his indictment, on June 12, 2012, Jeter filed a complaint against

Trinidad and Courter with the Essex County Prosecutor's Office (ECPO),

alleging they physically assaulted him. Jeter asserted that the officers turned on

their police lights indicating for him to pull over, he pulled over, and "the cops

approached [his] vehicle . . . beat him up and arrested him, never informing him

why he was pulled over." He also alleged that a police vehicle crashed into the

front of his vehicle. In response to Jeter's complaint, the ECPO contacted the

BPD's Internal Affairs Division (IAD), which began an investigation.

      In an interview with Lieutenant Michael J. Cofone of the IAD, Jeter said

that he stopped his vehicle on the Garden State Parkway South after he saw the

police lights and his tire started smoking. Once he stopped, he saw police




while intoxicated 1000 feet from a school,  N.J.S.A. 39:4-50.6; and creating risk
of an accident,  N.J.S.A. 39:4-56.
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                                        8
officers on both sides of his vehicle pointing their guns at him saying "get the

fuck out of the car." As soon as he saw their weapons, he put his hands up and

complied with their instructions to turn off his vehicle. At that point, a police

vehicle (driven by Trinidad) came from Garden State Parkway North and

crashed into the front of his vehicle. After the officer on the left side of his

vehicle broke his window, the officers "opened his door and punched him in the

face, he was caught off guard, the [o]fficers . . . tried to take off his seatbelt and

'elbowed [him] in the face two times.'" After the officers removed his seatbelt,

"they slammed [him] to the ground . . . handcuffed [him,] . . . patted [him] down

and put [him] in the police car." During the encounter he asked to call his

lawyer. As a result of the incident, he suffered a sprained wrist and cuts and

bruises on his left arm, right arm, wrist, chest, and face.

      Cofone obtained Courter's and Sutterlin's incident reports, the video

recording from only Courter's patrol vehicle, and radio and telephone

recordings. He consulted with Detective Andrew Zachares and was told the

video recording from Trinidad's patrol vehicle was not available.

      Cofone     instructed   Trinidad,    Courter,    and    Sutterlin   to   submit

administrative reports of the incident. In his administrative report, Trinidad

stated:


                                                                               A-3029-15T3
                                           9 On Thursday June 07, 2012[,] at approximately 00[:]14
hours[,] I was in marked unit #4 patrolling in my zone.
Officer Sutterlin and Officer Courter received a call . .
. that there was a domestic [violence incident] in
progress at . . . West Passaic Avenue. I was originally
dispatched by [C]ommunications[,] then I was told to
disregard and resume patrol in my zone. Several
minutes       later    Officer     Courter     relayed     to
Communications that [Jeter] . . . had fled the scene at a
high rate of speed. . . . At this time I advised Central
that I would be making my way to the scene. I activated
my emergency over head lights and sirens and began
making my way to the scene when I heard Officer
Courter's next transmission that [Jeter] . . . had gotten
onto Parkway South and [Courter] continued the
pursuit until [Jeter] finally pulled over at mile marker
154.1. I asked Central for authorization to go onto
Parkway North so that I could expedite my arrival to
assist Officer[s] Courter and . . . Sutterlin. Lieutenant
Schwindt gave the approval and I took Parkway North
to the motor vehicle stop. When I reached their
location[,] I carefully crossed the black top median
yielding to traffic. When I saw that no traffic was
coming[,] I drove across [with the] lights and sirens still
activated and parked my vehicle . . . bumper to bumper
with . . . [Jeter's] vehicle so that he would not attempt
to flee or use his vehicle as [a] weapon . . . . When I
exited my vehicle[,] I observed Officer[s] Courter and
. . . Sutterlin giving multiple commands . . . to [Jeter]
to "[e]xit the vehicle . . . ." I immediately began giving
verbal commands to . . . [Jeter] to "[e]xit the vehicle . .
. [as he was] under arrest[.]" [Jeter]. . . refused multiple
verbal commands from Officer Courter and myself. At
this time I verbally advised . . . [Jeter] that if he did not
exit the vehicle we were going to breach the window to
effect the arrest. [Jeter] . . . ignored my commands
again stating[,] . . . "Fuck off![] I didn't do shit man[.]"
Officer Courter then attempted to open the driver side

                                                                A-3029-15T3
                            10
      door but the door was locked. Officer Courter then
      used his asp (expandable baton) and successfully
      breached the window. Multiple verbal commands were
      given to . . . [Jeter] to unlock the door and exit his
      vehicle, [but] he refused. Officer Courter reached into
      the driver side window and opened the door. Officer
      Courter ordered . . . [Jeter] to take off his seat belt and
      exit the vehicle. [Jeter] . . . refused to comply. Officer
      Courter reached over . . . [Jeter] to take off his seat belt,
      at which time I observed          . . . [Jeter] grabbing Officer
      Courter[']s service weapon which he had holstered on
      his right hip. Officer Courter yelled[,] . . . "He's
      grabbing my gun . . . [.]" Officer Courter gave . . .
      [Jeter] multiple[] commands to let go of his gun and
      stop resisting. At that moment I was in fear for my
      partner[']s life and[] my own. Officer Sutterlin and I
      proceeded to grab . . . Jeter's hands off [of] Officer
      Courter's gun. Officer Courter was able to remove
      [Jeter's] seatbelt . . . . [When] attempting to extradite .
      . . [Jeter] from the vehicle, [Jeter] struck me in the face
      with a closed fist. After struggling with [Jeter,] we
      finally managed to take him to the ground. On the
      ground . . . [Jeter] continued flailing his arms and then
      plac[ed] his hands underneath his body. I ordered him
      to . . . [s]top resisting . . . [and g]ive me [his] hands[.]"
      And he refused. After struggling with . . . Jeter we
      finally were able to grab his hands and place him under
      arrest.

      [(Emphasis added).]

Courter's administrative report mirrored his incident report, and he added:

      I had to reach over Mr. Jeter[] to remove his seatbelt,
      but as I was reaching over Mr. Jeter began grabbing
      onto my holster attempting to remove my handgun. I
      was scared from my life. I stated he is going for my
      gun.      Officer Trinidad and Officer Sutterlin

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                                    11
            immediately came to my aid and restrained Mr. Jeter's
            hands from removing my handgun. Mr. Jeter continued
            to resist our efforts to arrest him. We stated multiple
            times to stop resisting. Mr. Jeter continued to flail his
            arms and body in an attempt not to be removed from the
            vehicle.

            [(Emphasis added).]

      Sutterlin provided more details of the incident in his administrative report,

and added the following:

            At this time, Officer Courter stated that Mr. Jeter was
            attempting to take Officer Courter's weapon. At this
            time, this officer and Officer Trinidad reached in to
            assist Officer Courter and extricate Mr. Jeter during
            which time Mr. Jeter struck Officer Trinidad in the face.
            Mr. Jeter was ordered several times to stop resisting,
            but Mr. Jeter continued to fight with the officers. Mr.
            Jeter was brought to the ground and continued to resist
            by putting his hands underneath his body.

            [(Emphasis added).]

      Cofone found that Jeter's conduct and behavior precipitated the event, he

lacked credibility, was uncooperative, actively resisted the officers' attempt to

arrest him, attempted to grab Courter's weapon, and punched Trinidad in the

face. Cofone exonerated the officers, concluding the incident occurred, but the

officers' actions were justified, legal, and proper. On August 1, 2012, Cofone

notified Jeter that the investigation indicate[d] that the officers followed the

appropriate department policies and procedures.

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                                       12
      On April 3, 2013, the case was reopened after Michael Morris of the ECPO

notified Cofone of the existence of the video recording from Trinidad's patrol

vehicle, which showed a very different account of the incident than what

Trinidad, Courter and Sutterlin had reported. In his investigation report, Cofone

stated:

                   Chief Goul, Sgt. Sierchio and I reviewed the
            recording; the recording provides an almost
            unobstructed view of the passenger compartment of Mr.
            Jeter's vehicle. Trinidad responds from the GSP north
            bound side, crosses the grass median and the south
            bound lanes of traffic and strikes Mr. Jeter's vehicle at
            appx. 10-12 mph, Jeter immediately raises his hands;
            Trinidad exits his vehicle and runs around the
            passenger side of Jeter's vehicle. P.O. Courter can be
            seen at the driver side of [Jeter's] vehicle striking his
            window with an object, the window appears to then
            explode, and Courter then clears the broken glass from
            the window area. Courter then leans into the passenger
            compartment and opens the driver side door. As this
            occurs Jeter's hands remain up, Courter then appears to
            grab Jeter's left hand/arm as Jeter's right arm is still
            raised and remains [raised]. Jeter then leans toward the
            passenger side and his left arm becomes free and he
            raises his left arm along with his right arm; both of his
            hands remain raised the entire time. Courter is in the
            passenger compartment of [Jeter's] vehicle. Even when
            Courter appears to grab Jeter in a bear hug both of
            [Jeter's] hands remain raised; at no time can Jeter be
            seen grabbing in any area of Courter[']s body as his
            hands remain raised at the vehicle[']s passenger
            compartment roof. At no time does either P.O. Trinidad
            or P.O. Sutterlin enter the passenger compartment;
            additionally Trinidad does not appear on camera after

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                                      13
            he runs from his vehicle to Jeter's [vehicle] subsequent
            to his arrival at the scene. While Courter was leaning
            in the passenger compartment Sutterlin appears at the
            passenger side window and appears to strike the
            passenger side window but it does not break, he then
            walks to the rear of Jeter's vehicle and is not seen again.
            At no time does Jeter appear to punch Trinidad in the
            face.

                  Chief Goul, Sgt. Sierchio and I viewed the
            recording several more times and did not view any
            attempt by Jeter to grab Courter in any way and at no
            time can Jeter be seen punching Trinidad. At no time
            do Sutterlin and Trinidad appear in the passenger
            compartment of Jeter's vehicle. There is no struggle by
            Trinidad or Sutterlin to remove Jeter's "hands" from
            Courter's weapon. At no time during the recorded
            events of this incident does a Supervisor respond to the
            scene of Jeter's arrest.

            [(Emphasis added).]

      Cofone concluded from his review of the video that Courter lied in his two

reports by falsely reporting: Jeter grabbed his gun; Trinidad and Sutterlin came

to his aid and restrained Jeter's hands from removing the gun; Jeter flailed his

arms and body "when in reality Jeter ha[d] his hands up in a gesture of surrender

the entire time[;]" and Jeter struck Trinidad in the face with a closed fist. Cofone

noted the video showed that Jeter's hands remained up as Courter pulled him

from his vehicle, and Courter pulled him from the vehicle and threw him to the

ground in one motion.


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                                        14
      Cofone concluded that Trinidad lied in his administrative report about

Jeter's actions and that Jeter physically assaulted him. Cofone noted the video

showed that after Jeter was handcuffed and secured, Trinidad picked him up and

threw him onto the front passenger hood of Trinidad's patrol vehicle so hard that

Jeter's feet came off the ground. The video also showed that Trinidad punched

Jeter so hard in the head that his punch careened off Jeter and struck Courter in

the face. Cofone also concluded that Sutterlin lied in his two reports that: Jeter

tried to take Courter's gun; he and Trinidad assisted Courter; Jeter punched

Trinidad in the face; and Jeter struggled.

      Following an investigation by the ECPO, all charges against Jeter were

dismissed. Specifically, the ECPO found from its review of the video recording

from Trinidad's patrol vehicle "that [Jeter's] car was not in [the] sight line [of

Courter's patrol vehicle] until shortly before [Jeter's] car was disabled and pulled

to the shoulder of the [Garden State Parkway]. Therefore it would be impossible

to impute to [Jeter] the knowledge that he was being pursued by police. For this

reason the charge of [e]luding should be dismissed."

                               The State's Evidence




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                                        15
      Trinidad, Courter and Sutterlin were criminally charged. Sutterlin pled

guilty to fourth-degree falsifying or tampering with records and agreed to testify

against Trinidad and Courter.

      Sutterlin testified that Trinidad and Courter were waiting for him at police

headquarters when he returned there one or two hours after the incident. He

asked them what happened in order to provide a correct sequence of events, they

told him what happened and what to write, and he wrote what they said in his

report.   Courter told Sutterlin that Jeter grabbed for his gun, but Sutterlin

admitted he did not see this or see Jeter strike Trinidad. He admitted that he

spoke to Trinidad and Courter several times about the incident before writing

his administrative report to make sure he had the correct sequence of events. He

also admitted his two reports were false, he knew they were false, he did not

write them himself, and he was aided or helped by Trinidad and Courter.

      Jeter testified that he did not elude the police, resist arrest, attempt to

disarm Courter, or hit Trinidad. The video recording from Trinidad's patrol

vehicle, which was played several times to the jury, corroborated Jeter's

testimony and showed his hands were raised in a surrender gesture, and Trinidad

assaulted him.

                                        I.


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                                       16
      At trial, Jeter referenced the high profile police brutality cases involving

Amadou Diallo, Rodney King, and Sean Bell to explain why he did not exit his

vehicle when commanded to exit and kept his hands raised. Trinidad's counsel

requested, and Judge Ravin gave, a limiting instruction that the jury could only

use this testimony if it found it was relevant to Jeter's state of mind in acting the

way he acted. Courter's counsel cross-examined Jeter on this testimony.

      Trinidad does not argue on appeal that the testimony was not relevant

under N.J.R.E. 401. Rather, he argues for the first time in Point I that the

testimony should have been barred under N.J.R.E. 403 because it was highly

prejudicial and served no purpose other than to inflame the passions of the jury.

      Because defendant did not raise this argument below, we review this issue

for plain error. State v. Ross,  229 N.J. 389, 407 (2017) (citing R. 2:10-2). Under

this standard, we will only reverse the error if "there is a real possibility that the

error led to an unjust result, that is, 'one sufficient to raise a reasonable doubt as

to whether the error led the jury to a result it otherwise might not have reached.'"

State v. Whitaker,  420 N.J. Super. 495, 512 (App. Div. 2008) (quoting State v.

Macon,  57 N.J. 325, 336 (1971)). We discern no error, let alone plain error, in

the admission of this testimony.




                                                                               A-3029-15T3
                                         17
      "[T]he inquiry under . . . N.J.R.E. 403 is whether the probative value of

the evidence 'is so significantly outweighed by [its] inherently inflammatory

potential as to have a probable capacity to divert the minds of the jurors from a

reasonable and fair evaluation of the' issues." State v. Cole,  229 N.J. 430, 448

(2017) (alteration in original) (quoting State v. Thompson,  59 N.J. 396, 421

(1971)). "It is not enough for the opposing party to show that the evidence could

be prejudicial; '[d]amaging evidence usually is very prejudicial but the question

here is whether the risk of undue prejudice was too high.'" Ibid. (alteration in

original) (quoting State v. Morton,  155 N.J. 383, 453-54 (1998)). "To determine

the admissibility of evidence under N.J.R.E. 401 and 403, the trial court

conducts a fact-specific evaluation of the evidence in the setting of the

individual case." Ibid. (citations omitted).

      "In light of the broad discretion afforded to trial judges, an appellate court

evaluates a trial court's evidentiary determinations with substantial deference."

Id. at 449 (citing State v. Kuropchak,  221 N.J. 368, 385 (2015)). "On appellate

review, '[c]onsiderable latitude is afforded' to the court's ruling, which is

reversed 'only if it constitutes an abuse of discretion.'"     Ibid. (alteration in

original) (quoting Kuropchak,  221 N.J. at 385). "When a trial court weighs the

probative value of evidence against its prejudicial effect pursuant to N.J.R.E.


                                                                             A-3029-15T3
                                        18
403, its ruling should be overturned only if it constitutes 'a clear error of

judgment.'" Ibid. (quoting State v. Koedatich,  112 N.J. 225, 313 (1988)). "As

[the] Court observed, applying the predecessor rule to N.J.R.E. 403, a trial

court's weighing of probative value against prejudicial effect "must stand unless

it can be shown that the trial court palpably abused its discretion, that is, that its

finding was so wide of the mark that a manifest denial of justice resulted.'" Ibid.

(quoting State v. Carter,  91 N.J. 86, 106 (1982)).

      Judge Ravin did not abuse his discretion in permitting Jeter's testimony.

The probative value of Jeter's testimony was not substantially outweighed by

any undue prejudice, as it did not distract jurors from reasonably and fairly

evaluating Trinidad's and Courter's version of events. Rather, Jeter's testimony

informed the jury's credibility assessment of the different versions of events

advanced by Jeter and the officers. The references to the other high profile cases

were used only to explain Jeter's own actions at the time of the incident, not to

analogize the present case to those prior cases. Looking at his testimony on this

issue as a whole, his references to other cases were not the focus, and were made

only in relation to his own conduct and what motivated his behavior to help the

jury determine which version of events was more likely.




                                                                               A-3029-15T3
                                         19
      Moreover, Judge Ravin mitigated any prejudicial effect by issuing

limiting instructions. During Jeter's direct examination, Judge Ravin advised

jurors that any references Jeter made to other cases should only be relied upon

"insofar as . . . [they] find it is relevant to . . . [Jeter's] state of mind, why he did

what it is that he said that he did or [did not] do." The judge again noted, prior

to summations, that both parties have:

             agreed, based on . . . Jeter's testimony, that, if either
             side wants to talk about his testimony [during
             summations] concerning Rodney King, or Mr. Diallo,
             or any of those cases, that each side may comment on it
             only insofar as his testimony went to his state of mind
             at the time in question, should the jury find that that is
             material, and all parties find that his state of mind is
             material.

Jurors are presumed to have followed the court's instructions in the absence of

evidence demonstrating otherwise. State v. Martini,  187 N.J. 469, 477 (2006).

There is no such evidence here. Furthermore, defense counsel mitigated any

prejudicial effect by cross-examining Jeter regarding the differences between

those high profile cases and this case.

      Thus, given the limited purpose for which it was introduced, the brie f

mention of those cases in relation to Jeter's entire testimony, Judge Ravin's two

limiting instructions, and defense counsel's cross-examination of Jeter on these

references, the probative value of Jeter's testimony was not substantially

                                                                                  A-3029-15T3
                                          20
outweighed by undue prejudice and, in turn, capable of resulting in a manifest

denial of justice.

                                        II.

      At trial, Cofone testified as a lay witness as follows:

             Q.    And had you requested, from Detective Zachares,
             the second video; in other words, the video recording
             from [Trinidad's patrol vehicle].

             A.    When I first conducted my investigation, I
             requested from him all available evidence. That would
             have encompassed anything there may have been.
             Some things, he was aware of, as the evidence video
             tech.

             Q.    After the investigation, did you change your
             findings or have any other findings as to the conduct of
             these officers at the time?

             A.    Not immediately. I did a review of that second
             piece of evidence[, the dash cam video from Trinidad's
             patrol car] with the assistance of Sergeant Sierchio and
             Chief Gould.

             Q.      Did you then make any findings?

             A.      Yes, ma'am.

             Q.      What were those?

             A.    I changed the disposition from exonerated to
             sustained.

                     ....


                                                                        A-3029-15T3
                                        21
             Q     Sir, after watching this second video, the video
             from car number 4, did you -- did you conduct any
             further investigation?

             A      Yes, ma'am.

             Q      What did you do?

             A      Uh, well, I informed the chief -- we saw the video
             -- that it appeared that, based on the new evidence, the
             actions of the officers, umm, appeared to have been
             criminal, and we forwarded the case to the Essex
             County Prosecutor's Office for a criminal review.

      In Point II, Trinidad argues for the first time on appeal that this testimony

was inadmissible lay opinion on his guilt under N.J.R.E. 701. We disagree.

      "Lay witnesses may present relevant opinion testimony in accordance

with [N.J.R.E.] 701, which permits 'testimony in the form of opinions or

inferences . . . if it . . . is rationally based' on the witness' 'perception' and 'will

assist in understanding the witness' testimony or in determining a fact in issue.'"

State v. Lazo,  209 N.J. 9, 22 (2012) (alterations in original) (quoting N.J.R.E.

701). In State v. McLean,  205 N.J. 438 (2011), the Court described the boundary

line that separates factual testimony by police officers from permissible expert

opinion testimony as follows:

             On one side of that line is fact testimony, through which
             an officer is permitted to set forth what he or she
             perceived through one or more of the senses. Fact
             testimony has always consisted of a description of what

                                                                                 A-3029-15T3
                                          22
            the officer did and saw, including, for example, that
            defendant stood on a corner, engaged in a brief
            conversation, looked around, reached into a bag,
            handed another person an item, accepted paper
            currency in exchange, threw the bag aside as the officer
            approached, and that the officer found drugs in the bag.
            Testimony of that type includes no opinion, lay or
            expert, and does not convey information about what the
            officer "believed," "thought" or "suspected," but
            instead is an ordinary fact-based recitation by a witness
            with first-hand knowledge.

            [Id. at 460 (citations omitted).]

      The Court explicitly rejected the argument "that there is a category of

testimony that lies between [expert and lay opinions] . . . that authorizes a police

officer, after giving a factual recitation, to testify about a belief that the

transaction he or she saw was a narcotics sale." Id. at 461. The Court reasoned

that such an approach would "transform[] testimony about an individual's

observations of a series of events . . . into an opportunity for police officers to

offer opinions on defendants' guilt." Ibid.

      The Court's explanation of why the testimony in McLean was

impermissible has no resonance here. Cofone's testimony was not dispositive

of whether Trinidad was guilty of the charges, and he did not testify as to the

ultimate issue of whether Trinidad committed the offenses. Unlike the police

officer in McLean, Cofone was not asked for his conclusion or observation about


                                                                             A-3029-15T3
                                        23
the nature of Trinidad's conduct, and he did not express a belief regarding his

guilt. Rather, his testimony only discussed whether Jeter's claim that the officers

assaulted him was "sustained," not whether the officers committed the offenses.

More importantly, Cofone's testimony did not lead the jury to reach a result it

would not have otherwise reached when considering the overwhelming proofs

that Trinidad assaulted Jeter.

      Cofone's testimony relating what he told the Chief of Police regarding his

review of the video and its depiction of Trinidad's and Courter's behavior did

not exceed the bounds of permissible lay opinions. The testimony was rationally

based on Cofone's perception and served to inform the jury how IAD conducted

its internal investigation. The testimony consisted of what he saw on the video

and what he did during a further investigation into the officers' behavior.

Moreover, the testimony was the "product of reasoning processes" familiar to

the jury, as they were later able to view the video several times, which

highlighted the discrepancies between Trinidad's and Courter's behavior and

what they said in their police reports. United States v. Garcia,  413 F.3d 210,

215 (2d Cir. 2005). While Cofone testified that based on the video, Trinidad's

and Courter's conduct appeared criminal, his testimony was not offered to

provide an opinion on their guilt, but to explain the steps he took when


                                                                            A-3029-15T3
                                       24
conducting the investigation.

      Nonetheless, even if Cofone's testimony constituted inadmissible lay

opinion, its admission was not capable of causing an unjust result. The jury was

able to see and evaluate the video numerous times during the trial. Moreover,

the prosecutor did not only rely upon Cofone's lay testimony, but relied upon

Sutterlin's testimony and played the video to demonstrate that the officers

conspired to falsify their police reports and falsely swore that Jeter attempted to

grab Courter's weapon and assaulted Trinidad.

      Sufficient credible evidence was presented to prove Trinidad's guilt

beyond a reasonable doubt that was untainted by Cofone's lay opinion and did

not exacerbate any potential prejudice from its admission. Cofone's testimony

was based on his perception of the video and served to advise the jury of the

context in which he performed a further investigation.          Even if Cofone's

testimony included an inadmissible opinion regarding what he suspected, it was

not capable of leading the jury to either an unjust result or one it otherwise would

not have reached, as there was other sufficient evidence showing Trinidad

assaulted Jeter without provocation and falsified his report.

                                        III.




                                                                             A-3029-15T3
                                        25
      Judge Ravin sentenced Trinidad on count two (second-degree official

misconduct) to a five-year term of imprisonment with five years of parole

ineligibility. Trinidad contends in Point III that Judge Ravin erred in failing to

sentence him one-degree lower to third-degree official misconduct and imposing

a period of parole ineligibility.

      We review a judge's sentencing decision under an abuse of discretion

standard. State v. Fuentes,  217 N.J. 57, 70 (2014). As directed by the Court, we

must determine whether:

             (1) the sentencing guidelines were violated; (2) the
             aggravating and mitigating factors found by the
             sentencing court were not based upon competent and
             credible evidence in the record; or (3) "the application
             of the guidelines to the facts of [the] case makes the
             sentence clearly unreasonable so as to shock the
             judicial conscience."

             [Ibid. (alteration in original) (quoting State v. Roth, 95
             N.J. 334, 364-65 (1984)).]

We discern no abuse of discretion in Trinidad's sentence.

                                        A.

      Trinidad first argues that Judge Ravin erred by not sentencing him one -

degree lower to third-degree official misconduct because the mitigating factors

substantially outweighed the aggravating factors, he acted under provocation

and stress and out of character, and he reasonably believed his life was in danger.

                                                                            A-3029-15T3
                                        26
      Sentencing a first- or second-degree offender to a sentence one degree

lower is governed by  N.J.S.A. 2C:44-1(f)(2), which provides:

                   In cases of convictions for crimes of the first or
            second degree where the court is clearly convinced that
            the mitigating factors substantially outweigh the
            aggravating factors and where the interest of justice
            demands, the court may sentence the defendant to a
            term appropriate to a crime of one degree lower than
            that of the crime for which he was convicted.

The statute thus establishes a two-prong test. State v. Megargel,  143 N.J. 484,

496 (1996). "The court must be 'clearly convinced that the mitigating factors

substantially outweigh the aggravating ones and that the interest of justice

demands a downgraded sentence.'" Ibid. (quoting  N.J.S.A. 2C:44-1(f)(2)).

      "[T]he standard governing downgrading is high." Id. at 500. First, "a

court must apply the basic [sentencing] principles that are applicable to all

sentencing decisions under the Code." Ibid. Paramount is the requirement that

the severity of the crime is "the most single important factor in the sentencing

process." Ibid. (citing State v. Hodge,  95 N.J. 369, 379 (1984)). As the Court

stated:

                   In evaluating the severity of the crime, the trial
            court must consider the nature of and the relevant
            circumstances pertaining to the offense. . . . The
            surrounding circumstances of an offense may make it
            very similar to a lower degree offense, thus suggesting
            that a downgraded sentence may be appropriate.

                                                                         A-3029-15T3
                                      27
            [Id. at 500.]

      Nonetheless, "facts personal to the defendant may be considered in the

sentencing process." Id. at 501 (citation omitted). Deterrence is "one of the most

important factors in sentencing." Ibid.

            Courts should consider a defendant's role in the incident
            to determine the need to deter him from further crimes
            and the corresponding need to protect the public from
            him. Was the defendant the mastermind, a loyal
            follower, an accomplice whose shared intent is
            problematic, or an individual who is mentally incapable
            of forming the necessary criminal intent?

            [Ibid.]

      Second, a sentencing judge must consider the interest of justice.           A

decision to downgrade "should be limited to those circumstances in which

defendant can provide 'compelling' reasons for the downgrade."          Id. at 502

(citation omitted). Such "reasons must be in addition to, and separate from, the

'mitigating factors which substantially outweigh the aggravating factors" as

found "under the first prong." Ibid. Because the "interest of justice" focuses on

the offense and not the offender, the "circumstances used as compelling reasons

for a downgrade should arise from within the context of the offense itself." State

v. Lake,  408 N.J. Super. 313, 326 (App. Div. 2009).



                                                                            A-3029-15T3
                                       28
      For example, in Lake, we reversed the judge's decision to impose a third-

degree sentence on a defendant convicted of second-degree official misconduct.

 408 N.J. Super. at 330. We noted that in justifying the downgrade, the trial

judge improperly relied upon "circumstances such as a defendant's overall

character or contributions to the community [which] should not be considered

under the interest of justice prong in the determination of whether or not to

downgrade a sentence pursuant to N.J.S.A. 2C:44-1f(2)." Id. at 328.

      Finally, after identifying the sentencing factors, the sentencing judge must

describe how, in the exercise of discretion, he balanced those factors. Megargel,

 143 N.J. at 501-02.

      Judge Ravin found that mitigating factor  N.J.S.A. 2C:44-1(b)(7), "[t]he

defendant has no history of prior delinquency or criminal activity or has led a

law-abiding life for a substantial period of time before the commission of the

present offense[,]" applied "based on [Trinidad's] lack of criminal history and

on the letters submitted on his behalf demonstrating he has led an exemplary

and law-abiding life up until the date of this offense." The judge found that

mitigating factor  N.J.S.A. 2C:44-1(b)(8), "[t]he defendant's conduct was the

result of circumstances unlikely to recur[,]" applied because Trinidad was




                                                                           A-3029-15T3
                                       29
required to forfeit his position as a police officer as a result of the official

misconduct conviction.

      The judge applied mitigating factor N.J.S.A. 2C:44-1(b)(9),"[t]he

character and attitude of the defendant indicate that he is unlikely to commit

another offense[,]" based upon numerous letters of support which suggested that

Trinidad was dedicated to his family, friends and community and extremely

remorseful. The judge's findings on this mitigating factor is supported by

sufficient credible evidence, consisting of twenty-eight character letters

submitted by Trinidad's family members, friends, and employers, which the

judge summarized on the record during the sentencing hearing.

      Contrary to Trinidad's argument, Judge Ravin properly rejected mitigating

factors  N.J.S.A. 2C:44-1(b)(1), "[t]he defendant's conduct neither caused nor

threatened serious harm[,] and  N.J.S.A. 2C:44-1(b)(2), "[t]he defendant did not

contemplate that his conduct would cause or threaten serious harm[,]" because

Trinidad's conduct of punching Jeter and throwing him against his patrol vehicle

threatened serious harm.

      Judge Ravin also properly rejected mitigating factors  N.J.S.A. 2C:44-

1(b)(3), "[t]he defendant acted under a strong provocation[,]" and  N.J.S.A.

2C:44-1(b)(5), "[t]he victim of the defendant's conduct induced or facilitated its


                                                                           A-3029-15T3
                                       30
commission."    In finding Trinidad guilty on all counts, the jury evidently

credited Jeter's version of events, that there was no provocation, over Trinidad's

version.

      Judge Ravin applied aggravating factor  N.J.S.A. 2C:44-1(a)(9), "[t]he

need for deterring the defendant and others from violating the law[,]" finding

"imprisonment would further the goals of general deterrence for the serious

crime of official misconduct." The Legislature's imposition of an enhanced

penalty for the offense of second-degree official misconduct suggests it is a

serious crime requiring general deterrence.  N.J.S.A. 2C:43-6.5. Accordingly,

the judge found three mitigating factors and only one aggravating factor,

warranting the imposition of a custodial term at the low end of the sentencing

range for a second-degree crime. See  N.J.S.A. 2C:43-6(a) (stating "[i]n the case

of a crime of the second degree, for a specific term of years which shall be fixed

by the court and shall be between five years and [ten] years").

      However, "[t]he factors are not interchangeable on a one-to-one basis,"

thereby, "[t]he proper weight to be given to each is a function of its gravity in

relation to the severity of the offense." State v. Roth,  95 N.J. 334, 368 (1984).

"The sentencing court does more than quantitatively compare the number of

pertinent aggravating factors with the number of applicable mitigating factors;


                                                                           A-3029-15T3
                                       31
the relevant factors are qualitatively assessed and assigned appropriate weight

in a case-specific balancing process." Fuentes,  217 N.J. at 72-73 (citations

omitted). Thus, Judge Ravin's finding of three mitigating factors and only one

aggravating factor does not necessarily constitute a finding that mitigating

factors substantially outweighed the aggravating factors; a review of the

sentencing transcript reveals that he made no such finding.

       Moreover, Judge Ravin properly found Trinidad was not entitled to a

downgraded sentence because he failed to satisfy the interests of justice

standard. The judge recognized the severity of the offense and the need for

deterrence given the mandatory minimum prison term and mandatory five-year

parole disqualifier for second-degree official misconduct under  N.J.S.A. 2C:43-

6.5.

       The judge also compared the second-degree official misconduct

conviction to the elements of a third-degree official misconduct and properly

found there was no similarity between Trinidad's conduct and third-degree

official misconduct warranting a downgrade. A third-degree official misconduct

offense occurs when "the benefit obtained or sought to be obtained, or of which

another is deprived or sought to be deprived, is of a value of $200.00 or less[.]"

 N.J.S.A. 2C:30-2. Sufficient credible evidence in the record demonstrated that


                                                                           A-3029-15T3
                                       32
the harm or benefit arising from the official misconduct was nonpecuniary. Jeter

sustained various injuries, and he was indicted for various crimes he did not

commit, including aggravated assault on a law enforcement officer, based on

Trinidad's false report of the incident. Trinidad benefited by initially receiving

an exoneration by IAD and retaining his employment with the BPD.

      Judge Ravin properly found that Trinidad's role and the surrounding

circumstances did not constitute compelling reasons to downgrade the sentence.

The judge noted that Trinidad "smashed the front of Jeter's car, punched Jeter

twice when he was outside the car on the ground, and then hit him again when

he was up against the car, resulting in injuries to Jeter's arms, wrist, face[,] and

ear." The judge also found that Trinidad "filled out his own report and swore

under oath regarding the circumstances," which the jury found was untruthful

when it convicted him of false swearing.

      Lastly, contrary to Trinidad's contention that he was acting under immense

stress and provocation due to which the interests of justice warrant a downgrade,

Judge Ravin found that in finding him guilty on all counts, the jury evidently

found there was no provocation, and the video recording from Trinidad's patrol

vehicle and Jeter's and Sutterlin's testimony supported these findings. Thus,




                                                                             A-3029-15T3
                                        33
sufficient credible evidence supported Judge Ravin's finding that the interests of

justice did not warrant a downgrade.

                                        B.

      Judge Ravin found that because Trinidad did not satisfy the severe

hardship standard, he must serve both a prison sentence and parole ineligibility

term. Trinidad argues that Judge Ravin erred by imposing a period of parole

ineligibility because the mitigating factors substantially outweighed the

aggravating factors, his character warranted waiver of the mandatory minimum

sentence, and he acted on knowledge he gained from the other officers. He

further argues that Judge Ravin erred by not considering Jeter's conduct and the

need for general deterrence was low because he suffered sufficient repercussions

to specifically deter him from committing an offense.

       N.J.S.A. 2C:43-6.5(a) requires the imposition of a mandatory five-year

term of imprisonment without eligibility for parole for second-degree official

misconduct. The court may waive or reduce the mandatory minimum term "[i]f

the court finds by clear and convincing evidence that extraordinary

circumstances exist such that imposition of a mandatory minimum term would

be a serious injustice which overrides the need to deter such conduct in others[.]"




                                                                            A-3029-15T3
                                        34 N.J.S.A. 2C:43-6.5(c)(2). When the court waives or reduces the mandatory

minimum sentence, it "must state with specificity its reasons" for doing so. Ibid.

      In considering whether to waive or reduce a mandatory term under

 N.J.S.A. 2C:43-6.5(a), a court should engage in an analysis similar to the one

required by  N.J.S.A. 2C:44-1(d), which allows the court to waive a mandatory

term for a first- or second-degree offender if it finds that in light of defendant's

"character and condition," imprisonment would result in a serious injustice

overriding the need of general deterrence. State v. Rice,  425 N.J. Super. 375,

386-87 (App. Div. 2012). The "serious injustice" standard contained in both

statutes requires a showing of extraordinary and unanticipated circumstances.

Id. at 386. "[Th]e reasons offered to dispel the presumption of imprisonment

must be even more compelling than those that might warrant downgrading an

offense." State v. Evers,  175 N.J. 355, 389 (2003).

      In interpreting the "serious injustice" standard in  N.J.S.A. 2C:44-1(d), the

Court has advised that "a trial court should determine whether there is clear and

convincing evidence that there are relevant mitigating factors present to an

extraordinary degree and, if so, whether cumulatively, they so greatly exceed

any aggravating factors that imprisonment would constitute a serious injustice

overriding the need for deterrence." Id. at 393-94. The Court warned that "it is


                                                                             A-3029-15T3
                                        35
the quality of the factor or factors and their uniqueness in the particular setting

that matters." Ibid. With respect to deterrence, the trial court should consider

the severity of the offense, along with the circumstances of the case, defendant's

role in the offense, and any presumption of imprisonment. Id. at 394-95.

      We have found that to apply the "serious injustice" standard in  N.J.S.A.

2C:43-6.5(c)(2), the trial court should similarly determine "whether the

'extraordinary circumstances' presented by an individual defendant outweigh the

legislative determination that the need to deter others from committing certain

crimes 'involv[ing] or touch[ing] . . . [public] office or employment' requires

imposition of the statutory mandatory minimum." Rice,  425 N.J. Super. at 389

(alterations in the original) (quoting  N.J.S.A. 2C:43-6.5). It will be "justified

only in 'the extraordinary or extremely unusual case where the human cost of

imprisoning a defendant [for the statutory mandatory minimum and] for the sake

of deterrence constitutes a serious injustice.'" Ibid. (alteration in the original)

(quoting Evers,  175 N.J. at 392).

      Judge Ravin did not abuse his discretion in imposing the five-year prison

term and five-year period of parole ineligibility. His decision did not violate the

sentencing guidelines or shock the judicial conscience and was based on

findings of aggravating and mitigating factors that were supported by sufficient


                                                                            A-3029-15T3
                                       36
credible evidence in the record. The judge properly found that Jeter's conduct,

the consequences Trinidad faced as a result of his conviction, and Trinidad's

character did not constitute "extraordinary circumstances" sufficient to

overcome the need to deter others from committing the same offenses. Trinidad

fails to provide any extraordinary and unanticipated circumstances that would

result in a serious injustice if the court imposed a lesser sentence that would

outweigh the need to deter others.

      As previously stated, Judge Ravin found mitigating factors seven, eight,

and nine, and aggravating factor nine, and made no finding that the mitigating

factors substantially outweighed the aggravating factor. While Trinidad posed

a low risk of re-offending because he is no longer a police officer, a risk that

other police officers will commit the same offense still exists.       Moreover,

Trinidad played an active role in the incident, as Jeter's testimony and the video

recording from Trinidad's patrol vehicle revealed that Trinidad rammed his

patrol vehicle into the front of Jeter's vehicle, assaulted Jeter, and then later

falsified his report by stating Jeter assaulted him, attempted to grab Courter's

gun, and resisted arrest. Lastly, the Legislature's imposition of a mandatory

minimum five-year term of imprisonment for a second-degree official

misconduct conviction suggests it is a severe crime with a high need for


                                                                           A-3029-15T3
                                       37
deterrence. See  N.J.S.A. 2C:43-6.5; Megargel,  143 N.J. at 502; State v. Mirakaj,

 268 N.J. Super. 48, 50-51 (App. Div. 1993).

      The fact that Trinidad obtained knowledge of what occurred at Jeter's

residence from other officers, that Sutterlin testified he did not pressure or direct

him to include false information in his report, and there is a low need to deter

him because he lost his job, do not amount to extraordinary circumstances

resulting in serious injustice sufficient to outweigh the need to deter others from

committing the same offense. Even if Trinidad learned of what transpired at

Jeter's residence from other officers, a jury convicted him of falsely swearing to

the events that occurred while Jeter was stopped on the Garden State Parkway

South, not to what occurred at Jeter's residence. Even if Trinidad did not direct

or pressure Sutterlin to falsify his report, he falsified his own report.

      The fact that as a result of his arrest and conviction, Trinidad lost his job,

incurred substantial debt, and lost his car and apartment also do not constitute

extraordinary and unanticipated circumstances. A conviction for second-degree

official misconduct carries a presumption of imprisonment.  N.J.S.A. 2C:43-6.5.

Moreover,  N.J.S.A. 2C:51-2(a)(2) provides that

             [a] person holding any public office, position, or
             employment . . . under the government of this State or
             any agency . . . thereof, who is convicted of an offense
             shall forfeit such office, position or employment if . . .

                                                                              A-3029-15T3
                                        38
             [h]e is convicted of an offense involving or touching
             such office, position or employment[.]

As such, these are all natural, reasonable consequences of a conviction for

second-degree official misconduct, not extraordinary or unanticipated

circumstances.

      Because Trinidad failed to show extraordinary or unanticipated

circumstances more compelling than those warranting a downgrade and

sufficient to overcome the need to deter others, Judge Ravin properly imposed

the mandatory minimum term of imprisonment and the five-year period of parole

ineligibility.

      Accordingly, we affirm Trinidad's sentence on count two. However,

because we find the conviction on the underlying offenses should have merged

with the official misconduct conviction, we remand for resentencing to merge

counts one, three, four, and five with count two.

                                      IV.

      In Point IV, Trinidad contends Judge Ravin erred in denying his motion

for judgment of acquittal notwithstanding the verdict (n.o.v.). He argues there

was insufficient evidence to support the guilty verdicts on the underlying

charges of tampering with public records, falsifying or tampering with records,



                                                                         A-3029-15T3
                                      39
false swearing, conspiracy to commit official misconduct, and official

misconduct.

      We use the same standard as the trial judge in reviewing a motion for

judgment of acquittal at the close of the State's case. State v. Bunch,  180 N.J.
 534, 548-49 (2004). We must determine

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

              [State v. Reyes,  50 N.J. 454, 459 (1967).]

      Under Rule 3:18-1, the court "is not concerned with the worth, nature or

extent (beyond a scintilla) of the evidence, but only with its existence, vie wed

most favorably to the State." State v. Muniz,  150 N.J. Super. 436, 440 (App.

Div. 1977). "If the evidence satisfies that standard, the motion must be denied."

State v. Spivey,  179 N.J. 229, 236 (2004).

      The standard for deciding a Rule 3:18-2 motion for judgment of acquittal

n.o.v. is the same as that used to decide a motion for acquittal made at the end

of the State's case. See State v. Brooks,  366 N.J. Super. 447, 453 (App. Div.

2004). On appeal, we apply the same standard. State v. Kittrell,  145 N.J. 112,



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130 (1996). Applying these standards, we discern no reason to reverse the denial

of Trinidad's motion for judgment of acquittal n.o.v.

                Tampering With Public Records or Information

       N.J.S.A. 2C:28-7(a), provides in pertinent part:

            A person commits an offense if he:

            (1) Knowingly makes a false entry in, or false
            alteration of, any record, document or thing belonging
            to, or received or kept by, the government for
            information or record, or required by law to be kept by
            others for information of the government;

            (2) Makes, presents, offers for filing, or uses any
            record, document or thing knowing it to be false, and
            with purpose that it be taken as a genuine part of
            information or records referred to in paragraph (1); or

            (3) Purposely and unlawfully destroys, conceals,
            removes, mutilates, or otherwise impairs the verity or
            availability of any such record, document or thing.

      Judge Ravin held the State presented sufficient evidence to enable a

rational jury to find Trinidad and Courter guilty of this charge beyond a

reasonable doubt. The judge found the third element was met because it was

undisputed that the police reports and complaint warrants were public records

required to be kept by the BPD. As to the first and second elements, the ju dge

found it was within the jury's exclusive province to determine witness credibility

and how much weight to give to the evidence. The judge pointed to Jeter's

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testimony denying he eluded Courter, resisted arrest, attempted to disarm

Courter, or assaulted Trinidad. The judge found the video recording from

Courter's patrol vehicle corroborated Jeter's denial he eluded Courter, and based

on the jury's viewing of this video recording, it could find Jeter's vehicle was

not in Courter's line of vision, and therefore, Jeter was not aware he was being

pursued until Courter activated his lights and sirens and Jeter immediately pulled

over. The judge also found this video recording provided a basis for the jury to

rationally find Jeter did not assault Trinidad in the manner Trinidad reported

because neither Trinidad nor Sutterlin were seen entering the driver's

compartment of Jeter's vehicle at the point where Jeter was being removed from

the vehicle.

      Judge Ravin found the video recording from Trinidad's patrol vehicle

further corroborated Jeter's denials. The judge determined the jury could have

found based on this video recording that Jeter's posture was submissive and his

hands were up during the point when Courter was attempting to remove his

seatbelt, despite the split second when one of Jeter's hands was down.

      Judge Ravin also pointed to Sutterlin's testimony that: Trinidad and

Courter together helped him write his incident report; his report was false; he

did not see Jeter grab Courter's gun; he, Trinidad and Courter did not struggle


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to remove Jeter's hands from Courter's gun; he did not see Jeter strike Trinidad;

and he and Trinidad never entered the passenger compartment of Jeter's vehicle.

      Judge Ravin concluded a rational jury could have found Jeter's testimony

credible and interpreted the two video recordings as corroborating his testimony.

The judge determined based on this evidence, a rational jury could find Trinidad

and Courter knowingly submitted false reports and complaint warrants regarding

Jeter's actions during the incident giving rise to the criminal charges. The judge

noted that Courter's false entries included that: Jeter eluded him, refused to show

his hands and grabbed his holster to get his handgun; Trinidad and Sutterlin

came to his aid by entering the driver's compartment of Jeter's vehicle and

restraining Jeter's hands from removing his handgun; Jeter punched Trinidad in

the face as they attempted to take Jeter to the ground; and Jeter committed the

criminal offenses for which he was charged.

      Judge Ravin noted that Trinidad's false entries included that: he saw Jeter

grabbing Courter's handgun; he and Sutterlin grabbed Jeter's hands off Courter's

gun; Jeter struck him with a closed fist while attempting to extract Jeter from

his vehicle; and Jeter committed the offenses charged in the complaint warrants.

                     Falsifying or Tampering with Records




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                                       43
       N.J.S.A. 2C:21-4(a), provides in pertinent part, that "a person commits a

crime of the fourth degree if he falsifies, destroys, removes, conceals any writing

or record, or utters any writing or record knowing that it contains a false

statement or information, with purpose to deceive or injure anyone or to conceal

any wrongdoing."

      For the same reasons Judge Ravin expressed for the tampering with public

records or information charge, he held that the State presented sufficient

evidence to allow a rational jury to conclude Trinidad and Courter submitted

false statements in their documents pertaining to Jeter's arrest. As for the second

element, the judge found that Jeter's and Sutterlin's testimony and the two video

recordings were sufficient to allow a rational jury to infer Trinidad and Courter

wanted to injure Jeter out of anger and deceive the BPD, or alternatively, sought

to conceal their own wrongdoings in connection with Jeter's arrest.

                                 False Swearing

       N.J.S.A. 2C:28-2(a) provides, in pertinent part, that "[a] person who

makes a false statement under oath or equivalent affirmation, or swears or

affirms the truth of such a statement previously made, when he does not believe

the statement to be true, is guilty of a crime of the fourth degree." "To establish

a defendant's guilt under  N.J.S.A. 2C:28-2a, the State must prove that a


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                                       44
particular statement was false and not believed by the defendant to be true."

State v. Bzura,  261 N.J. Super. 602, 610 (App. Div. 1993). To be convicted

under  N.J.S.A. 2C:28-2(a), "the false swearing [must be] willful and

intentional." State v. Angelo's Motor Sales, Inc.,  125 N.J. Super. 200, 206 (App.

Div. 1973) (holding that to be convicted under  N.J.S.A. 2C:28-2(a), "the false

swearing [must be] willful and intentional").

      Judge Ravin found the State presented sufficient evidence to enable a

rational jury to find Trinidad and Courter knowingly committed the act of false

swearing. The judge found it was undisputed that they certified under oath that

the charges against Jeter were true. The judge also found that a rational jury

could have inferred from Jeter's testimony that he did not commit the offenses,

from Sutterlin's testimony that Trinidad and Courter told him what to write in

his reports, and that Trinidad and Courter knowingly made false statements

under oath.

                               Official Misconduct

       N.J.S.A. 2C:30-2 provides, in pertinent part:

              A public servant is guilty of official misconduct when,
              with purpose to obtain a benefit for himself or another
              or to injure or to deprive another of a benefit:

                    a.    He commits an act relating to his office but
                    constituting an unauthorized exercise of his

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                   official functions, knowing that such act is
                   unauthorized or he is committing such act in an
                   unauthorized manner[.]

      "Benefit means a gain or advantage, or anything regarded by the

beneficiary as a gain or advantage, including a pecuniary benefit or a benefit to

any other person or entity in whose welfare he/she is interested." Model Jury

Charges (Criminal), "Official Misconduct (N.J.S.A. 2C:30-2)" (2006); see also

 N.J.S.A. 2C:27-1; State v. Quezada,  402 N.J. Super. 277, 285 (App. Div. 2008).

The benefit does not have to be pecuniary, but could amount to enjoyment or

self-gratification. Quezada,  402 N.J. Super. at 285.

      Judge Ravin found it was undisputed Trinidad and Courter were public

servants who were acting in their official capacity as police officers at the time

of the incident. The judge found based on his analysis regarding the tampering

with public records or information, falsifying or tampering with records and

false swearing counts, each of which constituted the predicate unauthorized

official act for official misconduct, that a rational jury could infer Trinidad and

Courter knowingly committed a violation of official duty.

      Judge Ravin also found the State presented sufficient evidence that Jeter

was injured and Trinidad's and Courter's reports were inconsistent with the two

video recordings from which a rational jury could conclude Trinidad and Courter


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                                       46
sought the benefit of concealing their actions during the incident from

departmental review in order to make their actions appear correct.

                  Conspiracy to Commit Official Misconduct

       N.J.S.A. 2C:5-2 provides, in pertinent part:

            A person is guilty of conspiracy with another person or
            persons to commit a crime if with the purpose of
            promoting or facilitating its commission he:

            (1) Agrees with such other person or persons that
            they or one or more of them will engage in conduct
            which constitutes such crime or an attempt or
            solicitation to commit such crime; or

            (2) Agrees to aid such other person or persons in the
            planning or commission of such crime or of an attempt
            or solicitation to commit such crime.

"[T]he agreement to commit a specific crime is at the heart of a conspiracy

charge." State v. Samuels,  189 N.J. 236, 245 (2007). "It is the agreement that is

pivotal." Id. at 246.

      "A conspiracy conviction does not turn on 'doing the act, nor effecting the

purpose for which the conspiracy is formed, nor in attempting to do them, nor

in inciting others to do them, but in the forming of the scheme or agreement [.]"

State v. Ball,  141 N.J. 142, 178 (1995) (alteration in original) (quoting State v.

Carbone,  10 N.J. 329, 337 (1952)). Likewise, "mere knowledge, acquiescence,

or approval of the substantive offense without an agreement to cooperate, is not

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                                       47
enough to establish one as a participant in a conspiracy." State v. Abrams,  256 N.J. Super. 390, 410 (App. Div. 1992). "It is the agreement that is pivotal."

Samuels,  189 N.J. at 246.

      In determining whether the scheme or agreement was formed, "[j]uries are

routinely instructed that they may draw logical inferences from the evidence

presented to them and that circumstantial evidence is of as equal weight as direct

evidence. Courts have regularly held that conspiracy may be proven through

circumstantial evidence." State v. Cagno,  211 N.J. 488, 512 (2012). However,

"[t]here must be intentional participation with the purpose of furthering the goal

of committing the crime." Cannel, New Jersey Criminal Code Annotated, cmt.

5 on  N.J.S.A. 2C:5-2 (2010). Further, the essential elements of conspiracy must

be evaluated in terms of the underlying offense. Samuels,  189 N.J. at 246-47.

      Judge Ravin found the evidence established that Trinidad, Courter and

Sutterlin were working together in close proximity to each other and Jeter at the

scene of the incident, and the officers got together and spoke about what

information to include in their reports. The judge noted the striking similarity

of the facts in the officers' reports and the video recordings that contradicted the

contents of those reports. The judge also noted that while Sutterlin testified that

Trinidad and Courter did not orchestrate his report, he also testified t hey


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                                        48
refreshed his recollection as to the incident. The judge concluded that based on

Trinidad's and Courter's communications with Sutterlin, the similarity of their

reports, and the video evidence contradicting the reports, a rational jury co uld

infer Trinidad and Courter knowingly prepared false reports and helped Sutterlin

prepare a false report for the purpose of committing official misconduct.

      We are satisfied that the overwhelming evidence in this case, viewed in

its entirety and giving the State all favorable inferences therefrom, was more

than sufficient to allow a reasonable jury to find Trinidad guilty of tampering

with public records, falsifying or tampering with records, false swearing, official

misconduct, and conspiracy to commit official misconduct beyond a reasonable.

We have considered Trinidad's arguments to the contrary in light of the record

and applicable legal principles and conclude they are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We affirm the denial

of Trinidad's motion for judgment of acquittal n.o.v. substantially for the reasons

Judge Ravin expressed in his comprehensive and cogent written opinion.

      Trinidad's conviction and sentence on count two are affirmed. This matter

is remanded for resentencing to merge counts one, three, four, and five with

count two.




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