STATE OF NEW JERSEY v. N.K.

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5163-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

N.K.,

Defendant-Appellant.
____________________________

Argued September 18, 2017 – Decided February 5, 2018

Before Judges Messano, Accurso and Vernoia.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 13-
02-0159.

Alan L. Zegas argued the cause for appellant
(Law Offices of Alan L. Zegas, attorneys; Alan
L. Zegas and Cissy M. Rebich, on the briefs).

Meredith L. Balo, Special Deputy Attorney
General/Acting Assistant Prosecutor argued
the cause for respondent (Thomas K. Isenhour,
Acting Union County Prosecutor, attorney;
Meredith L. Balo, of counsel and on the
brief).

PER CURIAM

Defendant N.K. appeals his conviction and sentence for sexual

assault, endangering the welfare of a child and lewdness. Based
on our review of the record in light of the applicable legal

principles, we affirm defendant's conviction and sentence but

remand for an amendment of the judgment of conviction to accurately

reflect his entitlement to jail credits.

Defendant was charged in an indictment with second-degree

sexual assault,
N.J.S.A. 2C:14-2(b) (count one), third-degree

endangering the welfare of a child,
N.J.S.A. 2C:24-4(a) (count

two), and fourth-degree lewdness,
N.J.S.A. 2C:14-4(b)(1) (count

three). The charges were based on allegations defendant exposed

and touched his penis in the presence of a twelve-year-old boy,

R.O.

At defendant's jury trial, R.O. testified that while taking

a shower in the bathroom at a community pool, he saw defendant

taking a shower at the showerhead next to his. R.O. and defendant

each wore swim trunks.

R.O. saw defendant pull down his swim trunks and pull on his

exposed penis. Defendant twice asked R.O. to take out his penis,

and told R.O. not to be afraid and that no one was watching. R.O.

said "No."

R.O. left the bathroom and sat outside. Defendant exited the

bathroom and laid on a towel on the grass. R.O. returned to the

shower and defendant did as well. According to R.O., defendant

2 A-5163-14T4
took his penis out again and did not touch it, but R.O. observed

it "start[] to get bigger" and "more stiff."

Defendant again told R.O. to take out his penis and that

nobody was watching. Defendant asked R.O. if he could take out

R.O.'s penis for him. R.O. said "No." Defendant told R.O. to

"just try it," and asked if he could suck on R.O.'s penis. R.O.

testified his penis was never out of his swim trunks and he was

never touched by defendant.

Following the second encounter, R.O. left the shower and told

his aunt, E.M., who was with him at the pool, about what occurred.

R.O. saw defendant and pointed him out to E.M. She walked up to

defendant and slapped him. Defendant said, "Why did you slap me,"

and E.M. responded, "You know what you did." Defendant replied,

"I didn't touch him," and told R.O. to "[t]ell her I didn't touch

you."

E.M. told someone to call the police. She testified she saw

defendant walk down a pathway and believed he was attempting to

leave. She followed him and saw a woman stop defendant near a

gate and say, "Stop, you're not going anywhere." The police

arrived and arrested defendant.

Defendant testified at trial, and acknowledged being at the

pool, going into the shower and seeing R.O. standing under a

showerhead without the water running. According to defendant, he

3 A-5163-14T4
went to the showerhead farthest from R.O., turned on the water,

and saw R.O. with his penis exposed, masturbating. Defendant told

R.O., "This is a public shower, it's not a place to be playing

with yourself." R.O. said he was washing his privates. Defendant

told R.O. it was not possible to wash privates with no water

running. R.O. told defendant "to go 'F' [himself]," and defendant

told R.O. "to get lost." According to defendant, R.O. reached

into his pants, exposed his penis, and said, "Suck my dick."

Defendant said, "Okay," because he "had enough of the

conversation."

At some point, R.O. screeched and defendant realized R.O. had

turned on the water. Defendant asked R.O. if he was okay, and

R.O. said the water was too hot. Defendant told R.O. to use a

different showerhead. After R.O. began showering, defendant put

his hand out towards R.O. and said "My name is [N]," and "Are we

okay?" R.O responded, "Yeah" and "My name is [R.]"

Defendant testified that after he and R.O. left the bathroom,

R.O. went to defendant and said "the reason . . . he was doing

what he was doing in the bathroom was because his mom [would] not

let him have any girlfriends." Defendant told R.O. he should

listen to his mom, and that "this is not the proper place to be

doing what he was doing." Defendant testified R.O. walked away.

4 A-5163-14T4
Defendant explained that as he later walked towards the

concession stand, E.M. punched him in the face. Defendant asked

her "why she punched [him]." E.M. said defendant disrespected

R.O. in the shower. Defendant walked toward the manager's office,

which was located near the exit, to request a call to the police

because he "had just gotten assaulted and wanted the police to get

there." Defendant denied attempting to leave the scene. He told

the manager he had been assaulted and was told the police were

called.

Defendant testified he never touched or exposed himself in

the shower for his own sexual gratification or to demoralize or

insult R.O. Defendant opined that R.O. fabricated the story

because R.O. must have assumed defendant was going to report what

R.O. was doing in the shower.

The original jury deliberated for about one hour on the first

day, and about two and one-half hours the second day. At the

conclusion of the second day, the court excused a deliberating

juror due to a scheduled surgery the following day. An alternate

juror was substituted, and the following day the reconstituted

jury was instructed to begin its deliberations anew. During

deliberations, the reconstituted jury made two requests for read-

backs of testimony. After more than three hours of deliberation,

the jury found defendant guilty on all three counts.

5 A-5163-14T4
Defendant moved for a new trial claiming he was under the

influence of drugs and alcohol during the trial, the court erred

by substituting the juror, and the sexual assault charge should

have been dismissed. The court found the motion was untimely, see

Rule 3:20-2, but addressed the merits in a written opinion and

denied the motion.

At sentencing, the court imposed an aggregate six-year

custodial term subject to the requirements of the No Early Release

Act,
N.J.S.A. 2C:43-7.2. This appeal followed.

On appeal, defendant makes the following arguments:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT A
HEARING TO DETERMINE WHETHER THERE WAS A
REASONABLE CAUSE TO BELIEVE DEFENDANT WAS
INCOMPETENT TO TESTIFY DURING TRIAL DUE TO HIS
ONGOING DRUG AND ALCOHOL ABUSE, RESULTING IN
A DENIAL OF HIS CONFRONTATION AND DUE PROCESS
RIGHT.

POINT TWO

DEFENDANT'S CONVICTION MUST BE REVERSED
BECAUSE OF THE TRIAL COURT'S ERROR IN DENYING
DEFENDANT A JUDGMENT OF ACQUITTAL BASED ON
INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION
BEYOND A REASONABLE DOUBT AS TO COUNT ONE
(SEXUAL ASSAULT)[.]

POINT THREE

THE ADMISSION OF BOTH INADMISSIBLE HEARSAY AND
HIGHLY PREJUDICIAL TESTIMONY BY THE TRIAL
COURT WAS CLEARLY ERRONEOUS AS TO HAVE HAD THE
CAPACITY TO BRING ABOUT AN UNJUST RESULT AND

6 A-5163-14T4
THEREFORE DEFENDANT'S CONVICTION MUST BE
VACATED.

POINT FOUR

THE FEDERAL AND STATE CONSTITUTIONAL RIGHTS
OF THE DEFENDANT TO DUE PROCESS AND TO A FAIR
TRIAL WERE VIOLATED BECAUSE THE COURT
SUBSTITUTED A JUROR AFTER THE JURY CLEARLY
DEMONSTRATED IT WAS DEADLOCKED WHICH RESULTED
IN AN UNJUST VERDICT.

POINT FIVE

THE TRIAL COURT ERRED IN FAILING TO PROPERLY
APPLY THE AGGRAVATING AND MITIGATING FACTORS
DURING SENTENCING AND IN DISREGARDING THE FACT
THAT DEFENDANT HAD NOT BEEN GIVEN HIS
PRESCRIBED MEDICATIIONS; THEREFORE HIS
CONVICTION MUST BE VACATED.

II.

Defendant first argues the court erred by failing to grant

an evidentiary hearing on his new trial motion. More particularly,

he claims the court should have held a hearing to determine if he

was entitled to a new trial based on his claimed incompetency. We

disagree.

"[A] motion for a new trial is addressed to the sound

discretion of the trial judge, and the exercise of that discretion

will not be interfered with on appeal unless a clear abuse has

been shown." State v. Armour,
446 N.J. Super. 295, 306 (App.

Div.) (alteration in original) (quoting State v. Russo, 333 N.J.

7 A-5163-14T
4 Super. 119, 137 (App. Div. 2000), certif. denied,
228 N.J. 239

(2016). "A trial court's ruling on a motion for a new trial 'shall

not be reversed unless it clearly appears that there was a

miscarriage of justice under the law.'" Id. at 305 (quoting R.

2:10-1).

"No person who lacks capacity to understand the proceedings

against him or to assist in his own defense shall be tried,

convicted or sentenced for the commission of an offense so long

as such incapacity endures."
N.J.S.A. 2C:4-4(a). "The test for

competency to stand trial arises from basic concepts of due

process." State v. Purnell,
394 N.J. Super. 28, 47 (App. Div.

2007). "A defendant tried or convicted while incompetent to stand

trial has been deprived of his or her due process right to a fair

trial." Ibid. A person is considered mentally competent to stand

trial on criminal charges if the proofs satisfy the requirements

of
N.J.S.A. 2C:4-4(b). See State v. Gorthy,
226 N.J. 516, 531-33

(2016).

There is a "strict" standard of review of a court's decision

not to hold a competency hearing. State v. Harris,
181 N.J. 391,

458 (2004). A court's decision "will not be reviewed on appeal,

unless it clearly and convincingly appears that defendant was

incapable of standing trial." Ibid. (quoting State v. Lucas,
30 N.J. 37, 73-74 (1959)). In order to satisfy "the clear and

8 A-5163-14T4
convincing standard on appeal, a defendant must show a 'bona fide

doubt as to [his] competence to stand trial.'" Ibid. (alteration

in original) (quoting Spivey,
65 N.J. at 37).

"The evidence necessary to establish the requisite bona fide

doubt as to a defendant's competence is difficult to articulate

. . . ." State v. Lambert,
275 N.J. Super. 125, 129 (App. Div.

1994). "[T]here are 'no fixed or immutable signs which invariably

indicate the need for further inquiry to determine fitness to

proceed.'" Gorthy,
226 N.J. at 530 (2016) (quoting Drope v.

Missouri,
420 U.S. 162, 180 (1975)). In Drope, the United States

Supreme Court explained, for example, that "evidence of a

defendant's irrational behavior, his demeanor at trial, and any

prior medical opinion on competence to stand trial are all relevant

in determining whether further inquiry is required, but that even

one of these factors standing alone may, in some circumstances,

be sufficient."
420 U.S. at 180. However, "'[m]ere suggestion'

of incapacity is not sufficient." Spivey,
65 N.J. at 36. The

court is not required to conduct a competency hearing "in the

absence of . . . substantial evidence of the existence of a degree

of mental disorder which would unfit the defendant from conducting

his cause or instructing his counsel." Id. at 36-37 (citations

omitted).

9 A-5163-14T4
The clear and convincing standard of review of a court's

decision not to hold a competency hearing "is consistent with the

view that defense attorneys are in a better position to assess a

defendant's competency . . . ." Harris,
181 N.J. at 458. Counsel's

failure to raise the issue of competency weighs against a finding

there was clear and convincing evidence a defendant is incompetent

because "judges must depend to some extent on counsel to bring

[these] issues into focus." Ibid. (alteration in original)

(quoting Drope,
420 U.S. at 176-77). "[B]ecause defense attorneys

are in a better position than the trial court to question a

defendant's competency, the fact that [counsel finds] no reason

to question [a defendant's] competency must be given substantial

weight" in determining if a hearing was required. Ibid.

Although the foregoing principles were developed in cases

considering whether a competency hearing was required before or

during a criminal trial, we discern no basis for applying a

different standard here. Defendant's new trial motion required

the court to decide the identical issue: whether a hearing was

required to determine if defendant was competent to stand trial.

Applying these principles, we are convinced the court

correctly determined a hearing on defendant's competency was not

necessary. In support of his motion, defendant presented only a

self-serving certification stating he used heroin during the trial

10 A-5163-14T4
and expressing a self-diagnosis that his alleged intoxication

caused sleepiness. According to defendant, he was sleepy and

unaware of what was happening during some undefined periods of the

trial.

Defendant's certification does not directly address any of

the issues a court must consider under
N.J.S.A. 2C:4-4 to determine

competency, and is untethered to any medical support. Cf. State

v. Kahn,
175 N.J. Super. 72, 77-78 (App. Div. 1980) (finding

competency hearing was required in part because several

psychiatrists disagreed as to the defendant's competence to stand

trial). Moreover, his assertions are directly contradicted by the

court's observations and findings. As the judge explained, after

seeing defendant momentarily close his eyes during the early stages

of jury selection, she not only mentioned her observations to

defense counsel, she thereafter purposely paid very close

attention to defendant during trial. The judge affirmatively

found she never saw defendant appear sleepy again and never saw

him asleep.

The judge also observed, and the record shows, that defendant

was alert and responsive during his direct testimony and the

State's vigorous cross-examination. As found by the judge, there

was no indication during the trial that defendant was intoxicated

or that he slept during any portion of the trial. Cf. Purnell,

11 A-5163-14T4

394 N.J. Super. at 49 (finding judge's assessment of defendant

supported a determination there was a bona fide doubt about the

defendant's competency).

Moreover, after advising defense counsel of her observation

during jury selection, defense counsel never raised any issue as

to defendant's competence. Defense counsel's certification in

support of defendant's new trial motion does not assert any facts

supporting defendant's claimed incompetence, does not state

counsel observed that defendant was intoxicated during trial, and

does not cite to any examples of defendant's lack of understanding

of the proceedings or inability to assist in his own defense. To

the contrary, counsel's certification cites to, and relies solely

upon, defendant's conclusory assertion that "intoxication

prevented him from assisting in his own defense."1 In addition,

defense counsel's certification offers no explanation for his

failure to raise defendant's competence as an issue with the court

during trial.

In denying defendant's request for a hearing on the new trial

motion, the court was entitled to give great weight to counsel's

1
Defense counsel asserts defendant's "conduct was also noted and
reported by sheriff's officers who told defendant to wake up and
asked him if he was ok." The court could not consider counsel's
assertion because the officer's purported observations were not
within counsel's personal knowledge. See R. 1:6-6.

12 A-5163-14T4
failure to raise the competency issue and provide any facts

supporting the incompetency claim in his certification. Defense

counsel was in the best position to assess defendant's competency,

yet provided no evidence supporting defendant's claim. See Harris,

181 N.J. at 458.

When considered in the totality of the circumstances

presented to the trial court, defendant failed to "provide 'clear

and convincing evidence' that raise[d] a 'bona fide doubt' that

he failed to meet the competency standards set forth in N.J.S.A.

2C:4-4(a)."
2 Id. at 459. The court therefore correctly denied

his new trial motion based on his claim of incompetency without

an evidentiary hearing. See Spivey,
65 N.J. at 38 n.7 (noting

that in State v. Hale,
116 N.J. Super. 106 (Law Div. 1971), aff'd,

120 N.J. Super. 469 (App. Div. 1972), the defendant's "background

revealed disturbed behavior due primarily to excessive drinking,"

2
We reject defendant's claim that his incompetency was
established because he allegedly used heroin following the court
proceeding on the day he testified, and made arrangements to leave
the United States. Defendant's self-serving, unsupported and
uncorroborated claim is contradicted by his actions. As the court
correctly observed, although defendant claimed his use of heroin
following the court session rendered him incompetent, during that
time he quickly made arrangements to fly to a foreign country,
arranged for timely transportation to the airport, contacted his
attorney to advise he would not be in court for the trial, took
all of the necessary steps to arrive at the airport and made
arrangements for accommodations upon his arrival at this
destination.

13 A-5163-14T4
but "[c]ompetence to stand trial was never brought into question,"

he "conducted himself normally and cooperated fully at trial," and

"[n]othing in the record gave rise to a bona fide doubt of

defendant's capacity to stand trial").

We next consider defendant's argument the court erred by

denying his motion for acquittal on the sexual assault charge. In

our review of a trial court's denial of a motion for a judgment

of acquittal, we consider the evidence in its entirety and give

the State the benefit of all favorable inferences that may be

drawn from the evidence to determine if a jury could find defendant

guilty of the offense beyond a reasonable doubt. State v. Spivey,

179 N.J. 229, 236 (2004).

"An actor is guilty of sexual assault if he commits an act

of sexual contact with a victim who is less than 13 years old and

the actor is at least four years older than the victim."
N.J.S.A.

2C:14-2(b). To support a conviction for the offense, the State

must prove the following elements beyond a reasonable doubt: "(1)

a victim who is less than thirteen years old, (2) a defendant-

actor who is at least four years older than the victim, and (3) a

sexual contact with a victim under the critical age." State v.

Zeidell,
154 N.J. 417, 428 (1998). Defendant claims the State

failed to prove the third element of the offense.

14 A-5163-14T4
In pertinent part, "sexual contact" is defined as "an

intentional touching by the . . . actor, either directly or through

clothing, of the . . . actor's intimate parts for the purpose of

degrading or humiliating the victim or sexually arousing or

sexually gratifying the actor."
N.J.S.A. 2C:14-1(d); see also

Zeidell,
154 N.J. at 428. "Sexual contact of the actor with

himself must be in view of the victim whom the actor knows to be

present."
N.J.S.A. 2C:14-1(d); see also Zeidell,
154 N.J. at 428.

Defendant argues there is insufficient evidence that he

touched his penis for his own sexual gratification or to degrade

or humiliate R.O. He argues R.O. testified defendant was not

masturbating, and therefore he could not have been sexually

arousing himself. He ignores R.O.'s testimony that, in addition

to pulling on his own penis, defendant asked R.O. to expose his

penis, followed R.O. into the shower a second time and exposed his

penis again, asked R.O. to expose his penis and asked if he could

suck on R.O.'s penis. Defendant's argument there was insufficient

evidence to support his conviction lacks sufficient merit to

warrant any further discussion in a written opinion. R. 2:11-

3(e)(2).

Defendant contends the court erred by permitting R.O. to

testify that he "felt like he was about to be raped" by defendant.

15 A-5163-14T4
Defendant also challenges the court's decision permitting E.M. to

testify she heard an unidentified woman say to defendant, "stop,

you're not going anywhere," as he moved toward the exit of the

pool. Based on our review of the record, we find that any errors

related to the admission of the testimony were not clearly capable

of producing an unjust result. R. 2:10-2.

"A trial court's ruling on the admissibility of evidence is

reviewed on appeal for abuse of discretion." State v. Rose,
206 N.J. 141, 157 (2011). Under this standard, the trial court's

decision to allow evidence should not be overturned "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." State v. Lykes,
192 N.J. 519, 534

(2007) (alteration in original) (quoting Verdicchio v. Ricca,
179 N.J. 1, 34 (2004)). If the trial court does not determine the

admissibility of evidence under the correct legal standard,

however, its decision is not afforded any deference and we review

the issue de novo. State v. Reddish,
181 N.J. 553, 609 (2004).

The court overruled defendant's objection to E.M.'s testimony

about the woman's statement, finding it was not introduced to

prove the truth of the implicit assertion defendant was attempting

to flee. See State v. Coder,
198 N.J. 451, 464 (2009) (finding a

statement is hearsay only if it is introduced to prove the truth

16 A-5163-14T4
of the matter asserted). The court determined the testimony about

the statement was admissible to show defendant stopped when he was

told to do so.

Independent of the testimony about the woman's statement, the

undisputed evidence showed defendant did not leave the premises

prior to the arrival of the police. Thus, as defendant correctly

argues, the statement was probative only as an affirmative

assertion that defendant attempted to flee. When viewed in that

manner, the statement constituted inadmissible hearsay. The court

therefore erred in overruling defendant's objection and allowing

the testimony.

Nonetheless, we are satisfied admission of the testimony

constituted harmless error because it was not "of such a nature

as to have been clearly capable of producing an unjust result."

R. 2:10-2. The State never argued the statement demonstrated that

defendant attempted to flee. Moreover, defendant's actions and

movements following R.O.'s report were otherwise detailed in the

testimony. Thus, any suggestion defendant attempted to flee was

of no moment. In addition, there was evidence undermining the

notion that defendant tried to flee, including the actions he took

to report that he had been assaulted by E.M. When considered in

the context of the other trial evidence, the testimony concerning

the statement is "[in]sufficient to raise a reasonable doubt as

17 A-5163-14T4
to whether [it] led the jury to a result it otherwise might not

have reached." State v. Scott,
229 N.J. 469, 484 (2017) (second

alteration in original) (quoting State v. Bankston,
63 N.J. 263,

273 (1973)).

We also consider defendant's claim the court erred by

permitting R.O. to testify that when he was in the shower, he felt

he was about to be raped by defendant. The court allowed the

testimony over defendant's objection, finding it showed R.O.'s

state of mind and reason for reporting defendant's conduct.

Defendant does not challenge the relevancy of the testimony, and

instead contends its probative value was substantially outweighed

by its risk of undue prejudice. See N.J.R.E. 403.

R.O.'s reference to his belief he might be raped had a

potential for prejudice and was unnecessarily cumulative because

his testimony concerning his interactions with defendant provided

ample evidence explaining his motivation to report defendant. The

court, however, promptly instructed the jury there was no evidence

defendant had physical contact with R.O. and immediately following

the instruction, the prosecutor questioned R.O. and confirmed

defendant never touched him.

The testimony represented a twelve-year-old boy's

characterization of his fears when confronted with defendant's

criminal sexual conduct. His use of the term "rape" in that

18 A-5163-14T4
context and for that purpose, when considered in the absence of

any evidence of physical contact by defendant, did not "have a

probable capacity to divert the minds of the jurors from a

reasonable and fair evaluation of the basic issues of the case."

State v. Covell,
157 N.J. 554, 568 (1999) (quoting State v.

Thompson,
59 N.J. 396, 421 (1971)). We therefore discern no basis

to conclude the court's finding that the risk of undue prejudice

in admitting the testimony did not substantially outweigh its

probative value, N.J.R.E. 403; see State v. Morton,
155 N.J. 383,

453 (1998), was "so wide of the mark that a manifest denial of

justice resulted," State v. Marrero,
148 N.J. 469, 484 (1997)

(quoting State v. Kelly,
97 N.J. 178, 216 (1984)).

Moreover, and for the same reasons, even if the court erred

in admitting R.O.'s testimony, it was not clearly capable of

producing an unjust result under the harmless error standard. R.

2:10-2. Admission of the testimony does not "raise a reasonable

doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached.'" State v. R.B.,
183 N.J. 308, 330 (2005)

(alteration in original) (quoting State v. Bankston,
63 N.J. 263,

273 (1973)).

Defendant argues the court erred in substituting a juror and

further erred by denying his motion for a mistrial based on the

19 A-5163-14T4
substitution. "Our review of a trial court's decision to remove

and substitute a deliberating juror because of an 'inability to

continue,' pursuant to Rule 1:8-2(d)(1), is deferential. We will

not reverse a conviction [on that basis] unless the court has

abused its discretion." State v. Musa,
222 N.J. 554, 564-65

(2015).

Rule 1:8-2(d)(1) provides, if a juror is discharged because

of an inability to continue, "the court may direct the clerk to

draw the name of an alternate juror to take the place of the juror

who is deceased or discharged." When there is a substitution of

a juror, the court must "instruct the jury to recommence

deliberations and shall give the jury such other supplemental

instructions as may be appropriate." Ibid.

"Rule 1:8-2(d)(1) delicately balances two important goals:

judicial economy and the right to a fair jury trial." State v.

Ross,
218 N.J. 130, 146 (2014) (quoting State v. Jenkins,
182 N.J.
112, 124 (2004)). "Declaring a mistrial imposes enormous costs

on our judicial system, from the expenditure of precious resources

in a retrial to the continued disruption in the lives of witnesses

and parties seeking closure." Jenkins,
182 N.J. at 124.

The juror substitution procedure does not "offend our

constitutional guaranty of trial by jury." Ross,
218 N.J. at 146

(quoting State v. Miller,
76 N.J. 392, 406 (1978)). "Such a

20 A-5163-14T4
substitution, however, contravenes constitutional norms if it

impairs the mutuality of deliberations — the 'joint or collective

exchange of views among individual jurors.'" Id. at 146-47

(quoting State v. Williams,
171 N.J. 151, 162 (2002)). "Given the

competing interests at stake . . . the trial court must determine

the cause of the juror's concern and assess the impact of the

juror's departure on the deliberative process . . . [and] must

ascertain whether a reconstituted jury will be in a position to

conduct open-minded and fair deliberations." Id. at 147.

In Ross, the Court declared four principles "to guide a trial

court's determination as to whether a reconstituted jury will

meaningfully deliberate." Id. at 151.

First, the trial judge should conduct any
inquiry of the juror seeking to be excused
with caution, and should direct the juror not
to reveal confidential jury communications.
Second, the trial court may consider the
duration of the jury's deliberations prior to
the departure of the juror. Without applying
an inflexible rule that would preclude
substitution after a specific amount of time
has elapsed, the trial court should determine
whether the jury appears to have progressed
to a stage at which issues have been decided
and deliberations cannot commence anew. Third,
if a partial verdict has been rendered, or the
circumstances otherwise suggest that jurors
have decided one or more issues in the case,
the trial court should not authorize a juror
substitution, but should declare a
mistrial. Finally, if the trial court permits
the substitution of an alternate juror for an
excused juror, it must instruct the newly

21 A-5163-14T4
composed jury before its
deliberations . . . .

[Id. at 151-52 (internal citations omitted).]

"[W]hen the circumstances suggest a strong inference that the

jury has affirmatively reached a determination on one or more

factual or legal issues, the trial court should not substitute an

alternate for an excused juror." Id. at 151; see also State v.

Corsaro,
107 N.J. 339, 344-45 (1987) (finding a mistrial was

necessary where a partial verdict was rendered); Jenkins,
182 N.J.

at 132-33 (finding a lengthy colloquy with the juror suggested the

other jurors had made up their minds and that but for the juror's

holdout position, the case would have been resolved, and the

alternate juror would have "felt pressured to fall in line with

the already committed eleven jurors").

Defendant contends the court erred by substituting a juror

because the jury progressed to a stage at which deliberations

could not commence anew. Defendant argues the jurors reached a

partial verdict or decided one or more issues prior to the

substitution of the juror, and thus, the court should have granted

his mistrial motion. The record does not support defendant's

contentions.

As the court found in its well-reasoned written decision

denying defendant's new trial motion, the jury deliberated for

22 A-5163-14T4
about one hour on the first day and for about two and one-half

hours on the second day prior to the juror substitution. Shortly

after the commencement of deliberations on the second day, the

jury asked what would happened if they did not agree on all

charges, "i.e., guilty on only two out of the three? Does the

verdict have to be consistent across the board?" The judge

interpreted the note as an inquiry "about what would happen since

they had not yet reached a conclusion," and instructed them to

continue deliberations. Defendant did not object to the court's

interpretation of the note or the instructions.

Defendant argues on appeal that the inquiry suggested the

jury had reached a partial verdict. Subsequent events showed

otherwise. Later on the second day of deliberations, the jury

sent a note stating, "We cannot come to a conclusion. Some people

have to leave at 4:30 p.m."

The court understood the note as an expression that the jury

would be unable to reach a verdict before some members of the jury

had to leave for the day. The judge inquired if the jury had

reached a verdict on "any of the questions," and the jury

foreperson said "No," and explained the jury needed more time to

deliberate. Thus, there was "[n]othing in the original jury's

communications with the trial court suggest[ing] that any juror

had reached a determination on a factual or legal issue," Ross,

23 A-5163-14T4

218 N.J. at 152; see also id. at 154 (holding that a trial court

may substitute an alternate for an excused juror after an initial

declaration of a deadlock and a Czachor3 charge), and the court's

inquiry to the foreperson confirmed the jury had not "reached a

determination of guilt or innocence," id. at 150 (quoting Williams,

171 N.J. at 169).

It was only after the foreperson confirmed the jury had not

reached a decision on any of the questions on the verdict sheet

that the court dismissed the jury for the day, with the exception

of a juror who requested to be excused because she had surgery

scheduled for the following day. The court questioned the juror

about her surgery and excused her without objection from the State

or defendant. The juror was excused for personal reasons and not

as a result of "issues derived from [her] interaction with the

other jurors or with the case itself.'" Id. at 147 (quoting

Williams,
171 N.J. at 163); cf. Jenkins,
182 N.J. at 132-33

(alteration in original) (finding proceeding with reconstituted

jury was improper where substituted juror stated she was the sole

juror voting for an acquittal and she could not agree with what

the other jurors "want[ed]").

3
See State v. Czachor,
82 N.J. 392 (1980).

24 A-5163-14T4
In sum, the court was not presented with any "circumstances

suggest[ing] a strong inference that the jury has affirmatively

reached a decision on one or more factual or legal

issues . . . ." Ross,
218 N.J. at 151. The court therefore

correctly substituted the juror. Ibid.

Jury deliberations resumed the following day. The trial

court instructed the jury to commence deliberations anew, and "we

presume that its instructions were followed." Ross,
218 N.J. at
152. Over the following three and one-half hours, the jury

deliberated, requested two read-backs of trial testimony and

announced its verdict.

The requests for read-backs suggest the jury had not reached

a determination before the juror substitution. See id. at 151.

In addition, defendant's failure to object to the substitution of

the juror signifies that "in the context of the trial[,] the

[alleged] error was actually of no moment." State v. Ingram,
196 N.J. 23, 42 (2008) (quoting State v. Nelson,
173 N.J. 417, 471

(2002)).

We are convinced the court did not abuse its discretion by

substituting the juror or by subsequently denying defendant's new

trial motion. The record simply does not permit a strong inference

the original jury had reached a determination of any of the issues,

and the judge scrupulously followed the procedure prescribed by

25 A-5163-14T4
the Court in Ross for the substitution of a juror. See Ross,
218 N.J. at 151-52.

Defendant argues his sentence should be vacated because the

court incorrectly found aggravating factors, failed to find

applicable mitigating factors, and erred in its award of jail

credits. We review a "trial court's 'sentencing determination

under a deferential [abuse of discretion] standard of review.'"

State v. Grate,
220 N.J. 317, 337 (2014) (quoting State v. Lawless,

214 N.J. 594, 606 (2013)). We affirm a sentence if: (1) the trial

court followed the sentencing guidelines; (2) its findings of fact

and application of aggravating and mitigating factors were based

on competent, credible evidence in the record; and (3) the

application of the law to the facts does not "shock[] the judicial

conscience." State v. Bolvito,
217 N.J. 221, 228 (2014) (quoting

State v. Roth,
95 N.J. 334, 364-65 (1984)).

Defendant claims the court erred by finding aggravating

factor six, the extent and seriousness of his prior record,

N.J.S.A. 2C:44-1(a)(6). He argues the court's finding is

inconsistent with its finding of mitigating factor seven, that he

led a law abiding life for a substantial period of time prior to

commission of the offense,
N.J.S.A. 2C:44-1(b)(7). We disagree.

26 A-5163-14T4
The court's findings are supported by the record and are not

inconsistent. The court's finding of aggravating factor seven was

based on defendant's convictions for four prior disorderly persons

offenses. See State v. Ross,
335 N.J. Super. 536, 543 (App. Div.

2000) (finding the defendant's four prior disorderly persons

convictions support in part a finding of aggravating factor six).

The court's finding of aggravating factor six is consistent with

its finding of mitigating factor seven because the last of

defendant's disorderly persons convictions was eight years prior

to the commission of the current offenses. A finding of

aggravating factor seven does not require that the court ignore a

defendant's convictions for offenses occurring immediately prior

to a substantial period of law-abiding activity.

We also reject defendant's assertion that the court erred by

failing to find mitigating factors eight, his conduct was the

result of circumstances unlikely to recur,
N.J.S.A. 2C:44-1(b)(8),

and nine, his character and attitude indicate he is unlikely to

reoffend,
N.J.S.A. 2C:44-1(b)(9). The court considered

defendant's supporters' attestations to his character, but

reasoned that the nature of defendant's offenses, the manner in

which defendant committed them, and his misrepresentations to the

police at the time of his arrest were inconsistent with findings

he has the character indicating he is unlikely to reoffend and his

27 A-5163-14T4
conduct was the result of circumstances unlikely to recur. The

court's determination is supported by the record.

The court also correctly rejected defendant's request that

it find mitigating factor twelve, the willingness of defendant to

cooperate with law enforcement,
N.J.S.A. 2C:44-1(b)(12).

Defendant asserts he cooperated with the police when they arrived

at the scene, but the court found that based on the jury's

rejection of defendant's trial testimony, he lied when he spoke

to the police. The record is devoid of any evidence that his

purported cooperation by defendant provided any benefit to the

State. See State v. Read,
397 N.J. Super. 598, 613 (App. Div.

2008) (questioning whether defendant's confession constituted

"cooperation" under mitigating factor twelve in the absence of any

showing he "identified other perpetrators or assisted in solving

other crimes").

We are satisfied the trial court followed the sentencing

guidelines, and its findings of fact and application of the

statutory sentencing factors were based on competent credible

evidence in the record. The custodial term imposed does not shock

the judicial conscience. See Bolvito,
217 N.J. at 228.

Defendant last argues, and the State agrees, defendant's

judgment of conviction contains an error in the award of jail

credits. Defendant is entitled to ten days of jail credit for

28 A-5163-14T4
time spent in the custody of the U.S. Marshals that are not

reflected in the judgment of conviction. The court awarded 264

days of jail credit during the sentencing proceeding, but the

judgment of conviction awards only 254 days. We therefore remand

for entry of an amended judgment of conviction awarding a total

264 days of jail credit.

Affirmed. Remanded for entry of an amended judgment of

conviction. We do not retain jurisdiction.

29 A-5163-14T4

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