STATE OF NEW JERSEY v. ALLAN MATTOCKS
Annotate this CaseNOT 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-4341-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALLAN MATTOCKS, a/k/a ALLAN D.
MATTOCKS, ALLEN MATTOCK, and
ALLEN MATTOCKS,
Defendant-Appellant.
_______________________________
Submitted March 12, 2018 – Decided April 12, 2018
Before Judges Sabatino and Ostrer.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Indictment No.
15-06-1698.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
brief).
Mary Eva Colalillo, Camden County Prosecutor,
attorney for respondent (Patrick D. Isbill,
Assistant Prosecutor, of counsel and on the
briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
This prosecution arose out of two successive criminal
episodes involving the same victim. According to the State's
proofs, defendant Allan Mattocks attacked and repeatedly struck
the victim in a violent manner in April 2012, fracturing her nose.
The victim reported that initial assault to the police and
identified defendant as her assailant. About a year later, with
the assistance of accomplices named Jonathan Kearney and Joshua
Sloan, defendant kidnapped and shot the victim, attempting to kill
her in order to silence her.
The victim became severely and permanently disabled as a
consequence of the second attack, leaving her unable to speak.
Her statements to the police incriminating defendant were deemed
admissible by the court under the "forfeiture-by-wrongdoing"
hearsay exception, N.J.R.E. 804(b)(9).
Tried by a jury in 2016,1 defendant was found guilty of five
distinct first-degree crimes: attempted murder,
N.J.S.A. 2C:5-1
and 11-3(a)(1) (count six); tampering with a witness or informant,
N.J.S.A. 2C:28-5(a) (count seven); kidnapping,
N.J.S.A. 2C:13-
1(b)(2) (count five); conspiracy to commit kidnapping, N.J.S.A.
1
The superseding indictment also charged Kearney as a codefendant
for his participation in the second attack, but defendant was
tried alone.
2 A-4341-15T2
2C:5-1 and 13-1(b)(2) (count fifteen); and conspiracy to commit
murder,
N.J.S.A. 2C:5-2 and 11-3(a)(1) (count fourteen).
In addition, the jury found defendant guilty of second-degree
aggravated assault,
N.J.S.A. 2C:12-1(b)(1) (count nine); second-
degree retaliation against a witness or informant,
N.J.S.A. 2C:28-
5(b) (count eight); third-degree criminal restraint,
N.J.S.A.
2C:13-2(a) (count two); two charges of third-degree aggravated
assault,
N.J.S.A. 2C:12-1(b)(1) and (7) (counts ten and four); and
fourth-degree aggravated assault.
N.J.S.A. 2C:12-1(b)(4) (count
eleven).
Lastly, defendant was found guilty of two weapons charges,
consisting of second-degree possession of a weapon for an unlawful
purpose,
N.J.S.A. 2C:39-4(a) (count twelve); and, after an
additional trial phase, a second-degree "certain persons not to
have weapons" offense,
N.J.S.A. 2C:39-7(b) (count sixteen). The
jury found defendant not guilty of a separate kidnapping offense
charged in count one, as well as a separate aggravated assault
charged in count three.2
2
There is a discrepancy in the submissions as to whether defendant
was convicted or acquitted of count thirteen, charging him with
second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-
5(b). Although the State's brief states defendant was found not
guilty of count thirteen, defense counsel's brief states to the
contrary. The trial transcript reflects the jury foreperson
announced that the jury found defendant not guilty of count
3 A-4341-15T2
After orally announcing a sentence, the trial court
extemporaneously increased it, in response to a comment by the
prosecutor reminding the court of the legal need to make the term
for witness tampering consecutive to the other charges. Upon
making that adjustment, the court ultimately imposed upon
defendant five consecutive prison terms, plus various concurrent
sentences. The aggregate custodial sentence consists of seventy-
four years, with a parole ineligibility period of forty-one years,
six months, and eighteen days, as mandated by the No Early Release
Act ("NERA"),
N.J.S.A. 2C:43-7.2.
Defendant now appeals his convictions and sentence on
numerous grounds. In his counsel's brief, he raises the following
points for our consideration:
POINT I
THE TRIAL COURT ERRED IN FAILING TO INSTRUCT
THE JURORS ON AN ALIBI DEFENSE AND DEFENSE
COUNSEL WAS INEFFECTIVE IN FAILING TO REQUEST
AN ALIBI INSTRUCTION. (Not Raised Below).
POINT II
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY
TO LIMIT USE OF A CO-CONSPIRATOR'S GUILTY PLEA
TO ASSESSING CREDIBILITY AND TO BAR ITS USE
AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S
thirteen, but the appendix shows the jurors marked the verdict
sheet on that count as guilty. This discrepancy, which appellate
counsel have not identified as an issue for our consideration,
should be resolved by the trial court on remand.
4 A-4341-15T2
GUILT VIOLATED MATTOCKS'S RIGHTS TO A FAIR
TRIAL AND DUE PROCESS OF LAW. (Not Raised
Below).
POINT III
THE COURT ERRED IN FINDING [THE VICTIM]'S
UNSWORN STATEMENT TO THE POLICE ADMISSIBLE
UNDER THE FORFEITURE-BY-WRONGDOING EXCEPTION
TO THE HEARSAY RULE BECAUSE [THE VICTIM],
HAVING PREVIOUSLY BEEN CONVICTED OF PROVIDING
FALSE INFORMATION TO THE POLICE, WAS NOT A
SUFFICIENTLY RELIABLE WITNESS.
POINT IV
THE CASE MUST BE REMANDED FOR RESENTENCING
BECAUSE THE COURT ERRED IN: (1) FAILING TO
ADJUST THE AGGREGATE SENTENCE AFTER REALIZING
THAT ONE OF THE SENTENCES WAS REQUIRED TO RUN
CONSECUTIVE TO ANOTHER ONE; (2) FAILING TO
PROVIDE ADEQUATE REASONS FOR RUNNING THE LEAST
RESTRICTIVE SENTENCE FIRST; (3) FAILING TO
PROVIDE A STATEMENT OF REASONS FOR RUNNING THE
CERTAIN-PERSONS SENTENCE CONSECUTIVE TO THE
OTHERS; AND (4) IMPOSING MULTIPLE CONSECUTIVE
SENTENCES. (Not Raised Below).
A. Although the Prosecutor Was
Correct in Noting that the Sentence
for Witness Tampering had to Run
Consecutive with that for the
Aggravated Assault, the Court Erred
in Increasing the Aggregate
Sentence After It had Determined
that a 41.55 Year Parole-
Ineligibility Term Was Appropriate.
B. The Judge Failed to Provide
Adequate Reasons for Running the
Various Sentences with Parole-
Ineligibility Terms Consecutive to
the Least Restrictive Sentence.
5 A-4341-15T2
C. The Judge Failed to Provide a
Statement of Reasons for Running the
Sentence for the Certain-Persons
Offense Consecutive to Those
Imposed on Other Charges.
D. The Imposition of Five
Consecutive Sentences Resulted in
an Excessive Sentence.
Additionally, defendant advances the following points in a
pro se supplemental brief:
PRO SE POINT I
THE STATE FAILED TO PRESENT EXCULPATORY
EVIDENCE TO THE GRAND JURY BY WITHHOLDING
THREE WITNESS STATEMENTS, VIOLATING THE
DEFENDANT'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF THE LAW (U.S. CONST. AMENDS.VI,
XIV; N. J CONST. (1947) ART. I, PARAS.1, 10).
PRO SE POINT II
THE PROSECUTOR FAILED TO PROPERLY PRESENT
INFORMATION TO THE GRAND JURY, MISLEADING THE
MEMBERS WITH ALTERED STATEMENTS, VIOLATING THE
DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE
PROCESS OF THE LAW (U.S CONST. AMEND. XIV;
N.J. CONST. (1947 ART. I, PARAS. 1, 10).
PRO SE POINT III
THE LEAD DETECTIVE MISREPRESENTED SEVERAL
IMPORTANT STATEMENTS DURING THE
PRESENITATION [SIC] OR A SUPERSEDED
INDICTMENT BEFORE THE GRAND JURY, THE
MENDACITY OF THE DETECTIVE VIOLATED
DEFENDANT'S RIGHT TO DUE PROCESS CONTRARY TO
THE FOURTEENTH AMENDMENT OF THE UNITED
STATES CONSTITUTION (U.S. CONST.AMEND. XIV
N.J. CONST. (1947) [SIC].
6 A-4341-15T2
PRO SE POINT IV
THE TRIAL COURT ERRED BY DENYING THE
DEFENDANT'S MOTION TO DISMISS THE INDICTMENT,
CONOTRARY [SIC] TO THE FOURTEENTH AMENDMENT
OF THE UNITED STATES CONSTITUTION, AND NEW
JERSEY STATE CONSTITUTION (U.S. CONST. AMEND.
XIV; N.J. CONST. ART.1, 10 (1947) [SIC].
PRO SE POINT V
DURING THE PROSECUTOR'S SUMMATION THE
DEFENDANT WAS DEPRIVED OF HIS SIX [SIC]
AMENDEMENT [SIC] RIGHT TO A FAIR TRIAL AND
FOURTEENTH AMENDMENT DUE PROCESS RIGHT AND
STATE CONSTITUTIONAL RIGHT TO A FAIR TRIAL;
THE PROSECUTOR I) MISTATED THE EVIDENCE AND
ENGAGED IN IMPROPER SPECULATIONS; II)
IMPROPERLY INTERJECTED HER PERSONAL BELIEFS,
OTHER THAN ACTUAL FACTS OF [SIC] EVIDENCE.
I) THE PROSECUTOR IMPROPERLY MISSTATED
THE EVIDENCE AND ENGAGED IN IMPROPER
SPECULATIONS, DURING HER SUMMATION THAT
WAS NOT BASED ON THE EVIDENCE ADDUUCED
[SIC] AT TRIAL.
II) THE PROSECUTOR IMPROPERLY
INTERJECTED HER PERSONAL BELIEFS, BY
SUGGESTING A BAG WAS PLACED OVER THE
VICTEM'S [SIC] HEAD, AND THEN SHOT;
WITHOUT SUFFICIENT EVIDENCE TO TRULY AND
FULLY SUPPORT HER THERORY [SIC].
PRO SE POINT VI
THE TESTIMONOY [SIC] OF THE STATE'S EXPERT
WITNESS DETECTIVE RUMMEL, BASING THE HOLES IN
THE BAG WERE FROM A BULLET, WERE CONCLUDED BY
HIS PERSONAL OPINION AND NOT FORENSIC FACTS;
DEPRIVED THE DEFENDANT OF HIS DUE PROCESS
RIGHT TO A FAIR TRIAL PURSUANT TO THE SIX
[SIC], AND FOURTEENTH AMENDMENT, AND THE NEW
JERSEY STATE CONSTIYTUTION [SIC]. (U.S.
7 A-4341-15T2
CONST. AMENDS. IV, XIV; N.J. CONST ART. 1, 1,
10.) [SIC].
Having considered these arguments in light of the record and
the applicable law, we affirm defendant's convictions, but remand
for resentencing.
I.
On April 13, 2012, the victim, S.B.W.,3 reported to the Camden
County Police Department that defendant had assaulted and beaten
her three days earlier at approximately 10:00 p.m. Camden County
Police Detective John Waida interviewed S.B.W., and took a recorded
statement from her describing the attack. Detective Waida observed
bruises on the victim's face, which the police photographed.
S.B.W. told the police she had been at a residence on Boyd
Street in the City of Camden on April 10 visiting a friend. While
she was there, defendant's father-in-law walked by and accused her
of stealing defendant's trash cans. In response to that
accusation, S.B.W. walked down the street to defendant's
residence, and knocked on his door. Christina Rivera, who is the
mother of defendant's children, answered the door. Rivera told
S.B.W. she did not know anything about the trash can accusation.4
3
We refer to the victim by her initials in order to protect her
identity and her status as a disabled individual.
4
Defendant did admit at trial to having a previous disagreement
with S.B.W. regarding some work that he hired her to complete.
8 A-4341-15T2
According to S.B.W., defendant then approached her from
behind, grabbed her, and dragged her into his residence. He shoved
S.B.W. onto the couch and threatened to assault her unless she
told him the truth about the trash cans. After S.B.W. denied
stealing the cans, defendant accused her of lying and punched her
in the face multiple times.
As described by S.B.W., defendant then opened his basement
door and threw her down the stairs. After S.B.W. stood up,
defendant "beat [her] some more" and then threatened to "finish
the job" with a pipe. After S.B.W. got up again, defendant kicked
her in the face, and she lost consciousness. S.B.W. was unable
to say whether or not defendant actually hit her with a pipe.
According to S.B.W., she did not regain consciousness until
she found herself outside of defendant's residence with her bag.
A man named "John" then kicked her possessions down the street.
After defendant assaulted her, S.B.W. made her way to the
house of a friend, Jeremiah Davis. Davis encouraged her to go to
the hospital, and he photographed her injuries. According to
Davis, he first became aware that S.B.W. had been beaten when he
noticed her lying on his front steps around midnight. Davis had
been walking home and spotted a trail of blood on the sidewalk
near his residence. According to Davis, S.B.W. told him she had
been beaten up after being accused of stealing trash cans.
9 A-4341-15T2
Davis took S.B.W. to the hospital. She was diagnosed with
facial swelling and nasal bone fractures, which are documented in
her medical records. Davis thereafter took S.B.W. to the police
station, where, as we have already noted, she was interviewed and
identified defendant as her assailant.
About a year later, on April 12, 2013, at approximately 10:00
p.m., Sergeant Allen Williams of the Camden Metro Police Department
was sent to the area of Midvale Avenue and Rand Street in Camden
City because gunfire had been reported. When Sergeant Williams
arrived at the scene, he walked behind an abandoned house. He saw
S.B.W. sitting on the building's rear steps "bleeding profusely
from her face, [and] her head" leading him to believe she had been
the victim of a shooting. Williams perceived that S.B.W. had
sustained a gunshot wound to her head, because "her eyes were
swelled up" and "blood [was] coming down from her face, all over
her clothes." She appeared conscious and coherent to Williams,
but seemed to be suffering and in considerable pain.
Sergeant Williams saw tire marks in the area where he found
the victim, as well as a jacket next to the steps. Williams was
told by his supervisor to be on the look-out for a silver (or
similarly colored) minivan. After driving around the vicinity,
Williams noticed smoke emanating from a wooded area near the
10 A-4341-15T2
Centennial Village Apartments, where he discovered "car mats,
jeans[,] and some other clothing that was burning."
A civilian witness, Elmis Mateo, testified that he had been
walking his dog on the night of the shooting. According to Mateo,
he saw a light-colored van, which could have been silver or gray,
drive behind an abandoned house off of Midvale Avenue. As Mateo
approached the corner, he heard what sounded like a gunshot. Once
Mateo saw the van drive away, he walked to the back of the abandoned
house where he had heard the gunshot originate. There he saw a
woman on the ground. Mateo testified that, although it was dark,
he saw blood and what he thought was a piece of flesh hanging from
her face. Mateo called 9-1-1 and obtained assistance for the
victim. He provided a statement to the police.
Sharon Busan, codefendant Kearney's mother, also testified
as a fact witness for the State. Busan had observed S.B.W.'s
injuries from the 2012 initial assault. At the time of the 2013
shooting, Busan was living with her mother on Rand Street at the
intersection of Midvale Avenue. While sitting on the stairs of
her mother's house that night, Busan saw defendant parked outside
in a minivan with Sloan and Busan's son, Kearney. According to
Busan, the three men stayed there for about five minutes. Busan
remained outside for about two minutes more, before she went into
the house to lie down.
11 A-4341-15T2
According to Busan, she heard what she thought was a
"firecracker sound" going off in the backyard next to hers or in
another neighboring backyard, approximately fifteen minutes after
defendant had driven the van away from her mother's house. Busan
testified that at a wedding several days later on April 21, 2013,
defendant told her "to keep [her] mouth shut," and that "[she]
kn[e]w what [he was] talking about."
Pursuant to a cooperation agreement, codefendant Sloan
testified for the State at defendant's trial. Sloan had pled
guilty to conspiracy to commit aggravated assault in connection
with the shooting of S.B.W. He had been sentenced to an eight-
year prison term, eighty-five percent of which was to be served
without parole.
Sloan testified he had last seen the victim when she was
thrown into the minivan and shot in the head. Sloan recounted
that he had been in the van that day with Kearney and defendant,
with defendant acting as the driver. Sloan testified that
defendant pulled over and forced S.B.W. into the van. S.B.W. was
screaming and pleading for her life, while defendant demanded to
know why she had pressed charges against him and told her to shut
up.
According to Sloan, Kearney switched places with defendant
behind the wheel, and drove for about thirty seconds to Midvale
12 A-4341-15T2
Avenue, while defendant was in the van trying to choke S.B.W. with
both of his hands. Kearney stopped behind an abandoned house.
Defendant grabbed the victim by her legs and pulled her out of the
van. He then pointed a gun at her and shot her in the head.
As described by Sloan, defendant then drove the van to a
wooded area near an apartment building on East State Street. Once
there, defendant, Sloan, and Kearney removed the van's mats and
put them and defendant's clothing in trash bags before setting
them on fire in an attempt to destroy the evidence. Defendant
then drove the van close to his residence. Kearney got out of the
van and defendant threatened Sloan, demanding him to burn the van.
Thereafter, Sloan drove the van and picked up another
individual named Carie Curtis. Sloan told Curtis about the
shooting. Sloan and Curtis drove to Philadelphia in the van,
parked it in an alleyway, and set it on fire.
According to Sloan, he and Curtis returned to Camden City and
Sloan met defendant later that night. Defendant instructed Sloan
not to say anything about the shooting. Nevertheless, after Sloan
was arrested in August 2013 and charged, he told police detectives
about what had occurred the night of the shooting.
Defendant testified in his own defense. He claimed that on
April 10, 2012, he had been home with Rivera, their children, and
13 A-4341-15T2
some friends, with whom he had dinner. He denied assaulting S.B.W.
on that day or accusing her of stealing trash cans.
Defendant further denied kidnapping or shooting the victim.
He testified that on April 12, 2013, he dropped Sloan off in his
gray van around 6:30 p.m. He then continued to run errands for
his catering business until 8:00 p.m., when he arrived home,
allegedly remaining there for the rest of the night.
Rivera testified as a witness for the defense. She recounted
that on April 10, 2012, she had been home with defendant cooking,
and that their children and some friends were there. Rivera
asserted that defendant never left the house at any time that
evening. Rivera denied that S.B.W. had come into the home at
approximately 10:00 p.m. She further denied ever observing
defendant assault S.B.W.
With regard to the kidnapping and shooting incident, Rivera
testified that on April 12, 2013, she had been home all day
cooking. She stated that defendant came into the house at
approximately 8:00 p.m. Rivera testified on direct examination
that defendant was home with her at the time when S.B.W. was shot.
However, when pressed on cross examination, Rivera expressed
uncertainty about whether she actually knew of defendant's
whereabouts that night.
14 A-4341-15T2
II.
Defendant's first point in his counsel's brief alleges trial
error concerning what he characterizes as the "alibi" testimony
of Rivera. Specifically, he contends the trial court was obligated
to have issued to the jury the model charge concerning alibi proof,
a charge which his trial counsel did not request. We disagree.
We approach this issue, as well as the other jury charge
issue we address in Part III, infra, mindful of well-established
legal principles. In general, "[j]ury charges must provide a
comprehensible explanation of the questions that the jury must
determine, including the law of the case applicable to the facts
that the jury may find. The charge as a whole must be accurate."
State v. Singleton,
211 N.J. 157, 181-82 (2012) (citations
omitted).
That said, if a jury charge was not requested by trial
counsel, the "plain error" standard of appellate review under Rule
2:10-2 applies to a claim on appeal for a new trial arising from
the omission of that charge. "If the defendant does not object
to the charge at the time it is given, there is a presumption that
the charge was not error and was unlikely to prejudice the
defendant's case." Id. at 182 (citation omitted). We recognize
this presumption is not unassailable. "Because proper jury
instructions are essential to a fair trial," erroneous
15 A-4341-15T2
instructions on material points ordinarily are "poor candidates
for rehabilitation as harmless . . . ." State v. McKinney,
223 N.J. 475, 495-96 (2015) (citations omitted).
Defendant argues that the trial court, sua sponte, was
required in this case to issue Model Jury Charges (Criminal)
"Alibi" (rev. May 12, 2008). That model charge, in essence,
explains to the jurors the legal concept of an alibi, and further
clarifies that a defendant who presents alibi evidence does not
assume the burden of proof in the criminal prosecution. Ibid.
Although we recognize such an instruction might have been
appropriate solely with respect to Rivera's testimony about
defendant's whereabouts during the April 2013 shooting, that
unrequested charge was not essential in this case. Moreover, the
absence of the instruction was not clearly capable of producing
an unjust verdict, given the circumstances presented.
"Alibi deals with physical absence and involves the physical
impossibility of guilt." State v. Searles,
82 N.J. Super. 210,
213 (App. Div. 1964). An alibi is not equivalent to a defendant
offering an affirmative defense. Ibid. Rather, it is simply "a
showing of facts inconsistent with an essential element of the
criminal charge," which thus "break[s] the force of the State's
prima facie case by testimony that the accused was elsewhere [at
the time the offenses was committed]." Ibid. (citation omitted).
16 A-4341-15T2
"Since alibi is not strictly an affirmative defense, failure
to give the jury an alibi charge has been held not to constitute
plain error." Pressler & Verniero, Current N.J. Court Rules, cmt.
2.4 on R. 3:12-2 (2018) (citing State v. Swint,
364 N.J. Super.
236, 246 (App. Div. 2003) (in which a trial court's failure to
give an alibi instruction was held not reversible error); see also
State v. Echols,
199 N.J. 344, 363-65 (2009) (likewise finding no
reversible error stemming from the charge's omission).
Fundamentally, the concept of an alibi encompasses a
defendant's absence from a crime scene or the physical
impossibility of his commission of an offense. The testimony of
defendant and Rivera, asserting they were home together on the
night of the April 2012 assault upon S.B.W., even if believed by
a jury, does not amount to a true "alibi."
Defendant and Rivera did not testify that he was somewhere
other than at the scene of the assault that night. The difference
between their accounts of the evening and the victim's account was
their claim that nothing happened at the premises. Their evidence
did not show that it was physically impossible for defendant, as
S.B.W. told the police, to have beaten her up at his residence.
In sum, no jury charge for alibi was warranted with respect to the
April 2012 incident, even if such a charge had been requested.
17 A-4341-15T2
Nor do we detect any reversible error stemming from the
omission of an alibi instruction concerning the April 2013
kidnapping and shooting incident. We recognize this second brutal
episode occurred outdoors and inside of defendant's minivan, and
not at his home. Unfortunately for defendant, Rivera was equivocal
in her testimony about exactly where defendant had been that night.
Her testimony about his whereabouts was not flatly contrary to the
narratives of the victim and Sloan, who clearly identified
defendant not only as being present at the crime scene, but as the
person who orchestrated and led the vicious attack.
Viewing the trial record and the jury charge as a whole
objectively, we are unpersuaded that the jurors were likely to
have mistakenly thought that defendant bore the burden of proving
an alibi. The trial court repeatedly explained to the jurors,
albeit in more general terms, that the State, not defendant, bore
the burden of proof in the case, that he enjoyed the presumption
of innocence, and that his guilt must be established beyond a
reasonable doubt.
Defense counsel did not discuss alibi or defendant's
whereabouts in summation. In her own closing argument, the
prosecutor did not suggest that defendant had any burden to prove
where he was on the nights of the 2012 assault or the 2013
kidnapping and attempted murder. In fact, the prosecutor argued
18 A-4341-15T2
that Rivera did not lie to the police when they interviewed her
about defendant's whereabouts, and she told them he had been home
cooking dinner on the night of the shooting. Rather than
portraying Rivera's statement as a concocted false alibi, the
prosecutor suggested that Rivera likely was unaware of the precise
day on which the victim had been shot, and that her memory was
uncertain.
For these reasons, we are unpersuaded that the model charge
on alibi was essential at this trial, or that its omission was
sufficiently prejudicial to compel a new trial.
III.
Defendant next contends that the court erred by failing to
issue, again without a request, the model jury instruction for a
cooperating State's witness, specifically Sloan. See Model Jury
Charges (Criminal) "Testimony of a Cooperating Co-defendant or
Witness" n.1 (rev. Feb. 6, 2006). Defendant argues the instruction
was necessary so that the jurors would understand the biased
motivation of Sloan to shape his testimony so as to support the
State's theory of guilt. This unmeritorious claim requires little
discussion.
A footnote accompanying the model instruction on this subject
explicitly warns trial judges and lawyers "[t]his charge should
not be given except upon the request of defense counsel." In that
19 A-4341-15T2
vein, the footnote further explains, "While a defendant is
entitled to such a charge if requested and a judge may give it on
his own motion if he thinks it advisable under the circumstances,
it is generally not wise to do so absent a request, because of the
possible prejudice to the defendant." Id. at n.1 (citations
omitted) (emphasis added).
Here, defendant's trial counsel did not request the judge to
issue this model instruction. She clearly would have had solid
tactical grounds for withholding such a request. The charge could
have readily backfired by reminding the jurors that defendant was
associated with an admitted criminal. Moreover, the background
facts about Sloan's plea bargain and his cooperation with the
prosecution were disclosed to the jury during his examination.
The court had no sua sponte duty to give the optional cooperating
witness charge. Indeed, had it done so, and had defendant still
been found guilty, he no doubt would be claiming error on appeal
arising from the prejudice caused by such an instruction.
IV.
The last point in defendant's brief attacking his conviction
relates to the trial court's pretrial ruling to admit S.B.W.'s
hearsay statements incriminating him, under the forfeiture-by-
wrongdoing hearsay exception, N.J.R.E. 804(b)(9). This issue
likewise deserves little comment.
20 A-4341-15T2
Adopted as a result of the Supreme Court's seminal 2009
opinion in State v. Byrd,
198 N.J. 319 (2009), N.J.R.E. 804(b)(9)
establishes a special hearsay exception to admit a declarant's
statements against a party who has "forfeited" the right to object
to their admission, by wrongful conduct attempting to prevent that
declarant from testifying in court. The hearsay exception covers:
A statement offered against a party who has
engaged, directly or indirectly, in wrongdoing
that was intended to, and did, procure the
unavailability of the declarant as a witness.
[N.J.R.E. 804(b)(9).]
In order to be admitted under this pathway, the unavailable
declarant's statement must be found by the trial court to have
sufficient "indicia of reliability." Byrd,
198 N.J. at 352. For
instance, a statement given by a crime victim or eyewitness to
police in the manner described by N.J.R.E. 803(a)(1)(A) or (B) may
provide such indicia of reliability. Id. at 352-53. See also
State v. Gross,
121 N.J. 1, 10 (1990) (delineating such factors
of reliability for prior statements by a testifying witness).
In the present case, S.B.W. provided a detailed, recorded
narrative to the police about her April 2012 assault after it
occurred. She exhibited and was diagnosed with physical injuries
consistent with her narrative. The trial judge reasonably
determined her police statement was trustworthy and admissible
21 A-4341-15T2
after conducting a pretrial hearing and considering the pertinent
factors.
Defendant points out that S.B.W. had prior "disorderly person
type offenses" and had a past history of making false statements.
But that limited past involvement with the criminal justice system
and other background did not require the judge to find her police
statement inherently untrustworthy. Nor are we persuaded
defendant was prejudicially deprived of fair notice of the pretrial
hearing.
We note the application of the forfeiture-by-wrongdoing
exception was especially appropriate in this case, given the strong
evidence showing that defendant attempted to intimidate S.B.W. and
others to refrain from incriminating him. We affirm the court's
wise ruling under N.J.R.E. 804(b)(9).
V.
We turn to defendant's challenge to his very lengthy sentence,
which includes an aggregate parole ineligibility period of more
than forty-one years. In doing so, we are mindful that, in
general, a reviewing court should defer to a sentencing court's
factual findings, rather than "second-guess" them. State v. Case,
220 N.J. 49, 65 (2014). Thus, if a sentencing court is found to
have followed "the [Criminal] Code and the basic precepts that
channel sentencing discretion," this court should affirm the
22 A-4341-15T2
sentence, so long as the sentence fails to "shock the judicial
conscience." Ibid.; see also State v. Roth,
95 N.J. 334, 363-65
(1984).
We are generally satisfied that the trial court adhered to
the basic substantive precepts of the Code at the sentencing
proceeding, including its imposition of several consecutive
sentences that we agree are justified under State v. Yarbough,
100 N.J. 627 (1985), cert. denied,
475 U.S. 1014 (1986). We also find
no error in the court's sequencing of the terms. The problem
instead is a procedural one: how the ultimate sentence was
determined, i.e., after an initial shorter sentence was announced
and the reminder of an important statutory requirement was
interjected.
In its oral ruling, the trial court originally imposed a
sixteen-year sentence, with a corresponding eight-year parole
disqualifier, for witness tampering and ran this sentence
concurrent with those imposed on counts two, four, and five. After
the prosecutor alerted the court to the fact that the witness-
tampering charge was statutorily mandated by
N.J.S.A. 2C:28-5(e)
to be served consecutively to the sentence imposed for defendant's
conviction on the underlying assault, the court ran the witness-
tampering sentence consecutive to all other sentences imposed.
23 A-4341-15T2
The original aggregate sentence the court announced was
fifty-eight years of New Jersey State Prison, with a thirty-six-
year, six-month, and eighteen-day period of parole ineligibility
subject to NERA, followed by a five-year stipulated term imposed
under the certain-persons offense. The court changed this outcome
to an aggregate sentence of seventy-four years, with a thirty-six-
year, six-month, and eighteen-day period of parole ineligibility
under NERA, followed by the thirteen-year stipulated term.
(Emphasis added).
After the prosecutor brought to the judge's attention the
need to run the witness-tampering sentence consecutive to that for
the underlying assault, the judge stated at sidebar, "Okay. That's
fine, then I'll just make it consecutive." (Emphasis added). The
judge then explained that, "The State has pointed out that under
the tampering sentence, that is required to be served consecutive
to any other penalties. Accordingly, rather than imposing a
concurrent sentence . . . that will be a consecutive sentence."
(Emphasis added). The sentence for witness-tampering itself
remained the same, i.e., a sixteen-year term, with eight-year
period of parole ineligibility. However, this ad hoc change
increased defendant's overall aggregate sentence by sixteen years
and the stipulated term of parole ineligibility by eight years.
24 A-4341-15T2
We concur with defendant that the trial court did not provide
adequate reasons for the substantial increase in the aggregate
sentence and the related "real time" consequences of converting
the witness-tampering sentence from concurrent to consecutive.
The record does not explain why the original sentence announced
by the court was not sufficient punishment. The matter must be
remanded for resentencing for this purpose. On remand, the court
is free, as may be appropriate, to make other adjustments in the
components of the sentence to arrive at an overall fair and
adequately-supported disposition. We intimate no views on the
appropriate terms.
VI.
The arguments in defendant's pro se supplemental brief, which
were ably refuted by the State's responding supplemental brief,
lack sufficient merit to warrant discussion. R. 2:11-3(e)(2). We
simply add that defendant has not surmounted his heavy burden
under State v. Hogan,
144 N.J. 216, 228-29 (1996), to set aside
the indictment; has not shown the prosecutor's appropriate
summation deprived him of a fair trial; and has failed to prove
reversible error arising out of Detective Rummel's brief reference
to holes he observed in the bag he removed from the crime scene.
Affirmed as to the convictions; remanded for resentencing.
We do not retain jurisdiction.
25 A-4341-15T2
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