STATE OF NEW JERSEY v. ALLEN HARBATUK (15-04-0679, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3743-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALLEN HARBATUK,
Defendant-Appellant.
_______________________
Submitted January 24, 2022 – Decided February 14, 2022
Before Judges Sumners and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Indictment No. 15-04-0679.
Joseph E. Krakora, Public Defender, attorney for
appellant (Christopher W. Hsieh, Designated Counsel,
on the brief).
Bradley D. Billhimer, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella, Chief
Appellate Attorney, of counsel; Shiraz Deen, Assistant
Prosecutor, on the brief).
PER CURIAM
Following a jury trial, defendant Allen Harbatuk was convicted of second-
degree sexual assault, in violation of N.J.S.A. 2C:14-2(c)(4), committed upon
the victim, D.U., 1 a minor. Defendant was sentenced to a seven-year term of
imprisonment; Megan's law registration, N.J.S.A. 2C:7-1 to -19; parole
supervision for life (PSL), N.J.S.A. 2C:43-6.4; and the requisite fines and
penalties were imposed.
The conviction stemmed from a sexual relationship defendant and his
husband, Raymond Waters, had with D.U. when he was between the ages of
fourteen to seventeen years old. The victim was a student of Waters. The State
arrested and charged Waters first with sexual assault. Defendant was later
charged following his inculpatory statement to the police after he waived his
Miranda2 rights and the execution of a search warrant, which uncovered
incriminating letters and photographs.
Defendant now appeals from his conviction and sentence, raising the
following points for our consideration:
1
We use initials to protect the identity of the victim and to preserve the
confidentiality of these proceedings. R. 1:38-3(c)(12).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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POINT I
DEFENDANT'S STATEMENT WAS TAKEN IN
VIOLATION OF HIS CONSTITUTIONAL RIGHT
TO SILENCE AND RIGHT TO COUNSEL, AS THE
POLICE UNLAWFULLY INTERROGATED
DEFENDANT AFTER HE HAD ADVISED THAT HE
DID NOT WANT TO SPEAK WITH THEM AND
WANTED HIS ATTORNEY.
POINT II
DEFENDANT'S STATEMENT WAS
INVOLUNTARY AND TAKEN IN VIOLATION OF
HIS DUE PROCESS RIGHTS, AS THE POLICE
MADE FALSE PROMISES OF LENIENCY THAT
OVERBORE DEFENDANT'S WILL AND
SUBVERTED HIS MIRANDA RIGHTS. (Not raised
below).
POINT III
THE PRIOR BAD ACT ALLEGATION REGARDING
STUDENT KNOWN AS C.J. LACKED PROBATIVE
VALUE, WAS UNDULY PREJUDICIAL, AND
SHOULD HAVE BEEN EXCLUDED FROM
EVIDENCE SUA SPONTE. THE ERRONEOUS
ADMISSION OF SUCH EVIDENCE AND THE
ABSENCE OF A LIMITING INSTRUCTION
VIOLATED DEFENDANT'S RIGHT TO A FAIR
TRIAL. (Not raised below).
POINT IV
THE PHOTOGRAPHS DEPICTING UNCLOTHED
MALE ALLEGED TO BE DEFENDANT LACKED
PROBATIVE VALUE UNDER [RULE] 401 AND
WERE UNDULY PREJUDICIAL UNDER [RULE]
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403. THE TRIAL COURT'S FAILURE TO SUA
SPONTE EXCLUDE THIS EVIDENCE VIOLATED
DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not
raised below).
POINT V
THE TRIAL COURT IMPOSED AN EXCESSIVE
SENTENCE. THE TRIAL COURT'S APPLICATION
OF AGGRAVATING FACTORS [THREE], RISK OF
REOFFENSE, AND [NINE], DETERRENCE, WAS
NOT SUPPORTED BY THE RECORD, AS
DEFENDANT WAS [SEVENTY-TWO] YEARS OF
AGE AT THE TIME OF SENTENCE AND THE
COURT ACKNOWLEDGED THAT HIS CONDUCT
WAS THE RESULT OF CIRCUMSTANCES
UNLIKELY TO RECUR.
After considering the arguments in light of the record and applicable law, we
affirm.
I.
We summarize the facts from the trial record to give context to the issues
raised on appeal. In 2000, defendant and Waters began dating. In September
2002, Waters and D.U. first met when Waters was employed as an art teacher at
Toms River High School North and D.U. was a student in Waters's freshman
year art class. D.U. was fourteen years old at the time. Soon thereafter, Waters
and D.U. developed a close relationship. Waters "played chess with D.U., ate
lunch with him, helped with his homework, gave him rides to school and to the
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gym, and bought him gifts." Eventually, Waters and D.U.'s relationship
"developed into a sexual one." 3
Defendant and D.U. first met in January 2003 after being introduced by
Waters. At the time, Waters told D.U. defendant was his "friend" whom he lived
with.4 In spring of 2003, Waters invited D.U. to the couple's home to spend the
weekend there and assist them with their landscaping. On D.U.'s first visit to
the couple's home, he had sexual relations with defendant for the first time.
Throughout the remainder of his freshman year of high school and the summer
of 2003, D.U. continued to visit defendant and Waters on weekends and "the
three of them would engage in sexual encounters." During the summer months
that year, D.U. assisted the couple at the Boy Scout camp where they were
3
The record does not reflect the date when Waters and D.U.'s relationship first
"developed into a sexual one." The record is unclear as to whether D.U. was
fourteen or fifteen years old when the relationship developed. However, D.U.
testified: (1) his birthday is in October; (2) he began his freshman year of high
school in September 2002; (3) he first met Waters in his freshman year art class;
and (4) D.U. did not spend time alone with Waters for "the first couple of
weeks." As such, although Waters and D.U. first met when D.U. was fourteen
years old, the record would suggest that Waters and D.U.'s relationship did not
"develop[] into a sexual one" until after D.U. turned fifteen.
4
Although defendant refers to Waters as his husband throughout his brief and
the record, defendant and Waters were not officially married until October 27,
2013.
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employed. Occasionally, D.U. slept in the couple's tent and engaged in oral sex
with them several times.
The parties' sexual encounters regularly continued on the weekends until
approximately the end of D.U.'s sophomore year. 5 D.U. testified towards the
end of his sophomore year, after he had teased Waters, defendant and Waters
"said let's show him what rape is." Defendant then restrained D.U. "on the bed
while Waters performed anal sex on him. Neither [defendant nor Waters] had
penetrated [D.U.] anally before." Thereafter, D.U. ceased visiting the couple,
and only visited them once during his junior year. D.U. never visited them again
after that.
In 2011, D.U. disclosed, for the first time, his sexual relationship with
defendant and Waters "to his drug rehabilitation counselor." But after
completing rehab therapy, D.U. continued to keep his sexual encounters with
the couple a secret because he "was embarrassed . . . [a]nd it really messed [him]
up." In 2013, D.U. told his mother-in-law about his abuse because he "wanted
to have some peace of mind." D.U.'s mother-in-law referred D.U. to an attorney
who in turn made an appointment for D.U. to speak with the prosecutor's office.
5
After D.U.'s freshman year of high school, Waters was "forced to retire."
Consequently, after D.U.'s freshman year, his relationship with the couple was
largely limited to his weekend visits.
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6
On January 15, 2014, D.U. met with Detective Jason Steele and informed
him of the "sustained period of sexual assault committed by" both defendant and
Waters "against D.U. when he was [fourteen to seventeen] years old." D.U.
provided Detective Steele with twenty-one "letters and envelopes addressed
from Waters and/or [d]efendant to D.U." One envelope, which had defendant's
name and address on it, contained a number of photograph prints and negatives
depicting "[d]efendant and/or Waters with D.U. in locations such as Waters's art
class, the . . . Boy Scout [c]amp, and" the couple's home. "Several of the photos
had written dates indicating that D.U. was under [sixteen] at the time they were
taken . . . ." Two of the photos depicted defendant nude. D.U. also provided
Detective Steele with thirty "postcards[;] various items of clothing[;] ceramic
clowns[;] and other such gifts."
On October 22, 2014, at or about 2:30 p.m., Detective Steele and other
detectives went to the couple's home to ask defendant "if he'd be willing to come
to the . . . [p]olice [d]epartment for an interview." Defendant claims he both
rejected the invitation for an interview and informed Detective Steele he wished
to speak with his attorney first. Detective Steele testified defendant rejected the
invitation but denied defendant requested to speak to his attorney first.
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At or about 3:00 p.m., Detective Steele, and other detectives, returned to
the couple's home and arrested Waters. Defendant was present and expressed
concern regarding Waters's cardiac issues and medications. Detective Steele
testified:
[Defendant] wanted to make sure that if [Waters] had
any kind of medical issues, that we would . . . properly
bring him to a hospital . . . .
....
. . . At that point[,] . . . [defendant] ask[ed] if he could
bring medications down for [Waters], because he . . .
was taking numerous medications for [his] medical
issues.
Defendant "was told that he could bring [Waters]'s medications to the police
station."
At around 3:30 p.m., defendant drove himself to the police station to
deliver Waters's medications. Defendant claimed he gave Waters's medications
to an officer at a window inside the station and asked why Waters was arrested,
but he did not receive an answer. "He was told to sit down and to wait."
Thereafter, defendant was escorted "to an interview room and read [his] Miranda
rights." At about 3:42 p.m., defendant signed a Miranda waiver form. The
police interrogated defendant for approximately two hours, which was
videorecorded.
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In defendant's recorded statement, he initially "did not acknowledge that
he or [Waters] had sex with D.U." However, defendant did confirm "substantial
portions of D.U.'s account of events, including: (1) [defendant] met D.U.
through Waters"; (2) D.U. helped with landscaping at the couple's home; (3)
D.U. and Waters would wrestle in bed at the couple's home; and (4) defendant,
Waters, and D.U. worked together at the Boy Scout camp. But after another
detective entered the interrogation room and informed defendant Waters "had
just given 'a full confession,'" defendant "admitted that he and D.U. engaged in
oral sex multiple times and anal sex 'maybe once.'" However, defendant claimed
he was uncertain of D.U.'s age when they first had sex. At trial, Detective Steele
admitted that the officers deceived defendant as Waters had not actually
confessed.
On October 24, 2014, a search warrant was executed at the couple's home.
The police uncovered photographs of defendant, Waters, and D.U., "as well as
a folder with the nickname [d]efendant and Waters used for D.U. written on it."
"In the folder, detectives uncovered a signed letter addressed to Auto Strauss
Center authorizing a payment of $220.01 from [d]efendant's credit card to D.U.,
with a note from [d]efendant thanking 'Nancy' for taking care of his 'nephew.'"
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In addition, the police also uncovered "financial documents reflecting joint
financial arrangement[s] between [d]efendant and D.U."
On April 2, 2015, an Ocean County grand jury charged defendant and
Waters. Defendant was charged with second-degree sexual assault, in violation
of N.J.S.A. 2C:14-2(c)(4). Waters was charged with first-degree aggravated
sexual assault, in violation of N.J.S.A. 2C:14-2(a)(2), and second-degree sexual
assault, in violation of N.J.S.A. 2C:14-2(c)(3).
At the pre-trial Miranda hearing, the State presented Detective Steele as
its sole witness, who testified consistent with his trial testimony. Defendant
testified on his own behalf and did not present any other witnesses. On June 16,
2016, the trial court denied defendant's motion to suppress his statements in a
written opinion. 6 The trial court held "[d]efendant was properly read his
Miranda rights and voluntarily and intelligently waived them." Furthermore,
defendant had "signed and initialed a wavier form . . . giving consent for the
detectives to interview him." The trial court noted:
[Defendant]'s recantation of the events that occurred on
the stand are not credible. . . .
6
Defendant claims the trial court conducted the Miranda hearing on June 2 and
August 4, 2016. As reflected in the record, however, the trial court's order
denying defendant's motion to suppress his recorded statements is dated June
16, 2016. The August 4, 2016 Miranda hearing relates to Waters's motion to
suppress his statements.
A-3743-18
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. . . . [Defendant]'s demeanor on the stand was
calm but point oriented. . . . Defendant was very
evasive on the stand and his testimony was self-serving.
When . . . [d]efendant testified on direct he immediately
stated what he wanted to say. When asked questions on
cross[-]examination, . . . [d]efendant often tried to
evade the question or reiterate what he had said on
direct. As the [p]rosecutor argued, [defendant] would
eventually concede points but it took getting through
minute details in order for him to do so. The testimony
that . . . [d]efendant offered is the basis to his entire
defense to try and exclude his statement. . . .
Defendant's statement is a detrimental piece of
evidence that if it were excluded, would be greatly
beneficial to . . .[d]efendant's case. This gives . . .
[d]efendant more of a reason to be less than truthful or
to try and evade the cross[-]examination the way he did.
. . . . If . . . [d]efendant truly did ask for an
attorney without being read his rights it is even more
likely he would have brought that up again when going
through the waiver form. The court also agrees with
the State that . . . [d]efendant was aware of many of his
rights. . . . Defendant knew he did not have to give the
detectives his telephone number and refused to do so.
[Defendant] is an intelligent man who knew his rights
so if he had originally asked for an attorney[,] it is very
likely he would have done so again or referenced the
initial asking at least once during the interview.
The court also agrees with the State in that even
had [defendant] asserted his right to counsel, . . .
[d]efendant initiated conversations with the police
which would disrupt his request for counsel. . . .
[Defendant] conceded after further inquiry on cross[-]
examination that he had asked the police where they
were taking . . . Waters thereby reinitiating
conversations.
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This initiation of contact is further developed by
[defendant] when he drives to the police station of his
own volition. [Defendant] could have simply dropped
the medication off to an officer there and left. Instead,
[defendant] waited several minutes in the waiting area
to speak with Detective[] Steele . . . . Because
[defendant] was the one who initiated further
communication to the police after asking for an
attorney, he was no longer protected under Miranda.
Lastly, this court agrees with the State that
[defendant] was never in a custodial interrogation to
trigger the requirements for Miranda. . . .
. . . . Defendant must be in a custodial
interrogation and feel he were not free to leave in order
for the requirements of Miranda, to apply. . . .
[Defendant] had voluntarily entered the police station
of his own accord to speak to the [d]etectives. He was
never told he was not free to leave. . . . Defendant was
never harassed to stay, he was never placed under arrest
before the statement, no weapon was ever drawn, and
at most there were only ever two officers in the
interrogation room with . . . [d]efendant at one
time. . . . Defendant was also never asked to relinquish
his cell phone. A few minutes into the interview . . .
[d]efendant in fact receives a telephone call and
answers it.
On June 12, 2018, defendant's jury trial commenced. At trial, the State
introduced into evidence the photographs of defendant, Waters, and D.U.,
including the two nude photographs of defendant. Additionally, the State
introduced "the videotaped statement of [defendant], [which] was played for the
jury." After the jury returned the guilty verdict, defendant was sentenced on
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November 2, 2018. A conforming judgment of conviction (JOC) was entered
that day. On January 4, 2019, an amended JOC was entered to: (1) remove the
order that defendant is subject to Nicole's Law, N.J.S.A. 2C:14-12 and 2C:44-
8;7 (2) indicate defendant was ordered to have no contact with the victim; and
(3) the "significant" weight given to aggravating factor nine was amended to
state "substantial" weight. This appeal followed.
II.
In Point I, defendant argues that the trial court erred in denying his motion
to suppress his statements to police after he advised he did not want to speak to
them. According to defendant, the court erred in finding: (1) defendant had not
invoked his right to counsel prior to Water's arrest; (2) in the alternativ e, had
defendant invoked his right to counsel, he waived his right by initiating further
communications with the police; and (3) defendant was never in custodial
interrogation as required to attach Miranda protections.
We begin our analysis with the governing principles. "The right against
self-incrimination is guaranteed by the Fifth Amendment to the United States
Constitution and this State's common law, now embodied in statute, N.J.S.A.
7
Enacted in 2007, Nicole's Law permits a victim of a sex offense to obtain a
restraining order against the offender. See N.J.S.A. 2C:14-12 and 2C:44-8.
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2A:84A-19, and evidence rule, [Rule] 503." State v. S.S., 229 N.J. 360, 381-82
(2017) (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)). "The
administration of Miranda warnings ensures that a defendant's right against self-
incrimination is protected in the inherently coercive atmosphere of custodial
interrogation." State v. A.M., 237 N.J. 384, 397 (2019). To that end, a person
subject to custodial interrogation "must be adequately and effectively apprised
of his [or her] rights." Nyhammer, 197 N.J. at 400 (quoting Miranda, 384 U.S.
at 467).
Before any evidence acquired through a custodial interrogation can be
used against a defendant, "[t]he burden is on the prosecution to demonstrate not
only that the individual was informed of [their] rights, but also that [they] . . .
knowingly, voluntarily, and intelligently waived those rights." Id. at 400-01.
Thus, "the State shoulders the burden of proving . . . that a defendant's
confession was actually volunteered and that the police did not overbear the will
of the defendant." State v. Hreha, 217 N.J. 368, 383 (2014). In turn, the trial
court must determine whether the State has satisfied its heavy burden by proof
"beyond a reasonable doubt[,]" State v. Yohnnson, 204 N.J. 43, 59 (2010)
(alteration in original) (quoting State v. Presha, 163 N.J. 304, 313 (2000)), based
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upon an evaluation of the "totality of the circumstances." Nyhammer, 197 N.J.
at 405.
A "totality-of-the-circumstances analysis" requires the court to "consider
such factors as defendant's 'age, education and intelligence, advice as to
constitutional rights, length of detention, whether the questioning was repeated
and prolonged in nature[,] and whether physical punishment or mental
exhaustion was involved.'" Id. at 402 (quoting Presha, 163 N.J. at 313).
Pertinent to this appeal, in evaluating the totality of the circumstances, "[a] court
may conclude that a defendant's confession was involuntary if interrogating
officers extended a promise so enticing as to induce that confession." Hreha,
217 N.J. at 383. "Factors relevant to that analysis include, but are not limited
to, 'the nature of the promise, the context in which the promise was made, the
characteristics of the individual defendant, whether the defendant was informed
of [his or her] rights, and whether counsel was present.'" Id. at 383-84 (quoting
State v. Pillar, 359 N.J. Super. 249, 271 (App. Div. 2003)).
Moreover, these factors "should be assessed qualitatively, not
quantitatively, and the presence of even one of those factors may permit the
conclusion that a confession was involuntary." Id. at 384. However, while an
investigator's "manipulative or coercive" statements may deprive a defendant
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"of his [or her] ability to make an unconstrained, autonomous decision to
confess[,]" State v. DiFrisco, 118 N.J. 253, 257 (1990) (quoting Miller v.
Fenton, 796 F.2d 598, 605 (3d Cir. 1986)), "[e]fforts by a law enforcement
officer to persuade a suspect to talk 'are proper as long as the will of the suspect
is not overborne.'" State v. Maltese, 222 N.J. 525, 544 (2015) (quoting State v.
Miller, 76 N.J. 392, 403 (1978)).
"Generally, on appellate review, a trial court's factual findings in support
of granting or denying a motion to suppress must be upheld when 'those findings
are supported by sufficient credible evidence in the record.'" S.S., 229 N.J. at
374 (quoting State v. Gamble, 218 N.J. 412, 424 (2014)); see, e.g., State v.
Dorff, 468 N.J. Super. 633, 643-44 (App. Div. 2021). This court must "accept
the trial court's factual findings unless they are not supported by sufficient
credible evidence in the record." Id. at 644. "In contrast, we review the trial
court's legal conclusions de novo." Ibid. "Accordingly, [this court] [is] not
bound by a trial court's interpretations of the legal consequences that flow from
established facts." Ibid.
Moreover, "a trial court's factual findings should not be overturned merely
because an appellate court disagrees with the inferences drawn and the evidence
accepted by the trial court or because it would have reached a different
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conclusion." S.S., 229 N.J. at 374. Indeed, "[a]n appellate court should not
disturb a trial court's factual findings unless those findings are 'so clearly
mistaken that the interests of justice demand intervention and correction.'" Ibid.
(quoting Gamble, 218 N.J. at 425). This deferential standard of appellate review
also applies to the trial court's "factual findings based on a video recording or
documentary evidence." Id. at 381.
Applying these principles, we are satisfied that the court's factual findings
are supported by sufficient credible evidence in the record and its legal
conclusions are sound. The court found Detective Steele to be "more truthful
and forthcoming," and defendant evasive and self-serving. The record shows
defendant never requested an attorney and did not testify that he asked for an
attorney at his police interview. Additionally, defendant was found to be an
"intelligent man" and would have ostensibly requested an attorney at least
initially or perhaps subsequently when he signed the Miranda waiver form.
Thus, based on the totality of the circumstances, defendant knowingly,
voluntarily, and intelligently waived his rights, and provided a voluntary
statement, confessing to the charges.
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III.
In Point II, for the first time on appeal, defendant argues the trial court
erred by finding he "was never in a custodial interrogation to trigger the
requirements for Miranda." We review an issue not preserved for appeal at the
trial court level for plain error. R. 2:10-2. This court "must disregard any
unchallenged errors or omissions unless they are 'clearly capable of producing
an unjust result.'" State v. Santamaria, 236 N.J. 390, 404 (2019) (quoting R.
2:10-2). "Plain error is a high bar and constitutes 'error not properly preserved
for appeal but of a magnitude dictating appellate consideration.'" Ibid. (quoting
State v. Bueso, 225 N.J. 193, 202 (2016)). The plain error's "high standard"
"provides a strong incentive for counsel to interpose a timely objection, enabling
the trial court to forestall or correct a potential error." Ibid. (quoting Bueso, 225
N.J. at 203).
The trial court found defendant "was by no means in a custodial setting"
when defendant spoke to the police: (1) at his home, at which time he "invoked"
his right to counsel; and (2) at the police station, at which time defendant was
interviewed by the detectives. 8
8
Defendant's interview at the police station was an interrogation. "[T]he term
'interrogation' under Miranda refers not only to express questioning, but also to
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Although defendant stresses the trial court erred in finding "there was no
custodial interrogation," his arguments are limited to his custody at the police
station interrogation and not when he "invoked" his right to counsel at his home.
"The protections provided by Miranda are only invoked when a person is both
in custody and subjected to police interrogation." Hubbard, 222 N.J. at 266
(emphasis added) (citing State v. P.Z., 152 N.J. 86, 102 (1997)). Therefore,
defendant has waived this issue. Sklodowsky v. Lushis, 417 N.J. Super. 648,
657 (App. Div. 2011) ("An issue not briefed on appeal is deemed waived."). We
add the following remarks.
Defendant has not argued the police erred in reading him his Miranda
rights prior to the interview at the station, or that his signed Miranda waiver was
not a knowing, intelligent, and voluntary waiver of his rights. The determination
of whether a person was in custody is an objective one, independent of "the
any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely
to elicit an incriminating response from the [defendant]." State v. Hubbard, 222
N.J. 249, 267 (2015) (first alteration in original) (quoting Rhode Island v. Innis,
446 U.S. 291, 300–01 (1980)). Here, the police should have known it was
"reasonably likely to elicit an incriminating response" from defendant via their
words and actions. Ibid. Thus, whether or not the defendant's Miranda
protections apply is dependent on whether defendant was ever in fact in custody.
Id. at 266.
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subjective views harbored by either the interrogating officers or the person being
questioned." Hubbard, 222 N.J. at 267 (quoting Stansbury v. California, 511
U.S. 318, 323 (1994)). The issue must be considered using "a case-by-case
approach in which the totality of the circumstances [are] examined." State v.
Stott, 171 N.J. 343, 364-65 (2002) (citation omitted) (quoting State v. Godfrey,
131 N.J. Super. 168, 175-77 (App. Div. 1974)).
Custody "does not necessitate a formal arrest, nor does it require physical
restraint in a police station, nor the application of handcuffs, and may occur in
a [defendant]'s home or a public place other than a police station." Id. at 364
(quoting Godfrey, 131 N.J. Super. at 175). "The critical determinant of custody
is whether there has been a significant deprivation of the [defendant]'s freedom
of action based on the objective circumstances, including the time and place of
the interrogation, the status of the interrogator, the . . . status of the [defendant,]"
and other such factors. Id. at 365.
Whether a defendant has been placed in custody is a fact-sensitive
question within the discretion of the trial court. See Hubbard, 222 N.J. at 270
(holding the issue of whether a defendant was in custody is for the trial court to
decide and is not subject to de novo review on appeal). We defer to the trial
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court's factual findings so long as the findings "are based on sufficient credible
evidence in the record." State v. L.H., 239 N.J. 22, 47 (2019).
Defendant's belated claim that he was in a custodial setting when at his
home speaking to the police is belied by the record. The court's finding that
defendant was not in custody is amply supported by sufficient credible evidence
in the record. Unlike in Hubbard, here the trial court aptly determined defendant
was not in custody because he: (1) "voluntarily entered the police station of his
own accord to speak to the [d]etectives;" (2) "was never told he was not free to
leave;" (3) "was never harassed to stay"; and (4) "never asked to relinquish his
cell phone." Additionally, the questioning was neither repeated nor prolonged
and did not involve physical punishment nor mental exhaustion.
We are also unpersuaded by defendant's contention that the trial court
erred by finding he waived his right to counsel by initiating conversations with
the police. A defendant who invokes his or her right to remain silent or to
counsel waives that right if the defendant "initiates further communication,
exchanges, or conversations with the police." State v. Wint, 236 N.J. 174, 194
(2018) (quoting Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)). "If an
accused does initiate a conversation after invoking his [or her] rights, that
conversation may be admissible if the initiation constitutes a knowing,
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intelligent, and voluntary waiver of the accused's rights." State v. Chew, 150
N.J. 30, 61 (1997).
A defendant is considered to have initiated further communication if he
or she invites "discussion of the crimes for which he [or she] was being held."
Id. at 64 (quoting State v. Fuller, 118 N.J. 75, 82 (1990)). The State must
establish it was the accused, rather than the police, who initiated any further
questioning after the accused has invoked his or her right to counsel. State v.
Wright, 97 N.J. 113, 122-23 (1984). In the matter under review, defendant does
not deny that he initiated the subsequent conversation with the police. But
defendant claims he did not initiate any discussion about the sexual assault
allegations made against him.
Asking what happened to a co-defendant invites "discussion of the crimes
for which he [or she] was being held." Chew, 150 N.J. at 64 (quoting Fuller,
118 N.J. at 82). In Fuller, the defendant invoked his right to remain silent, but
subsequently asked the officers, "How did you know where I would be?" and
"What happened to the other guy?" 118 N.J. at 82. Our Court held the
defendant's questions left "no doubt that [the defendant] was inviting discussion
of the crimes for which he was being held." Ibid. Here, defendant re-initiated
communication with the police by asking, "Where is Waters going?" leaving no
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22
doubt that he was inviting discussion of the crimes for which Waters was to be
held. See, e.g., Fuller, 118 N.J. at 82.
Moreover, defendant's decisions to drive to the police station and wait to
speak with Detective Steele indicate an intervening circumstance "to dissipate
the [constitutional] taint." State v. Hartley, 103 N.J. 252, 284 (1986). To
determine whether "the constitutional taint" is dissipated, courts consider:
the time between confessions, any intervening
circumstances, whether there was a change in place,
whether defendant received an adequate warning of his
[or her] rights, whether the defendant initiated the
second confession, the effect of his [or her] having
previously made a confession, and the purpose and
flagrancy of police misconduct.
Maltese, 222 N.J. at 548 (internal quotations omitted)
(quoting Hartley, 103 N.J. at 283).
Here, "the constitutional taint" of inquiring whether defendant would submit to
an interview is clearly dissipated.
First, although the time between conversations was brief, defendant's
interview was conducted in a separate location from where he claims the police
violated his constitutional rights. Second, defendant does not deny he received
an adequate Miranda warning prior to his interview, nor does he deny signing a
Miranda form. Third, defendant admits to initiating the interview at the police
station. "[Defendant] testified that he gave [Waters]'s medications to an officer
A-3743-18
23
at a window inside the station and asked why codefendant [Waters] was arrested
. . . . He was told to sit down and to wait. [Defendant] complied, as he wanted
to find out why [Waters] was arrested." Fourth, the only effect of defendant's
previous conversation with the police was the result of his voluntary decision to
speak with the police post delivering Waters's medications.
Defendant does not assert the police interviewed him or discussed
Waters's case with him prior to his signing of the Miranda waiver.
Consequently, even if the police's invitation to defendant violated his
constitutional rights, the trial court correctly held defendant knowingly,
intelligently, and voluntarily waived his constitutional rights by initiating
further communication with the police at the police station, which effectively
dissipated "the constitutional taint."
Next, defendant argues, again for the first time on his appeal, that his
recorded statement violated his due process rights because his confession was
not voluntary. Specifically, defendant claims the "detectives utilized various
ploys to overcome [his] reluctance to speak," including "false promises, threats,
and lies," which "overbore defendant's will[] and resulted in an involuntary
statement." In response, the State claims, "[w]ith respect to [d]efendant's age
A-3743-18
24
and intelligence, [he] was far from . . . naïve . . . and responded to the questioning
with careful deliberation." Again, we review for plain error.
Even if a defendant waives his or her Miranda protections, a defendant's
statement must still be voluntarily given pursuant to due process. Dorff, 468
N.J. Super. at 644 (quoting P.Z., 152 N.J. at 113). The State bears the burden
to "prove beyond a reasonable doubt that a defendant's confession was voluntary
and was not made because the defendant's will was overborne." L.H., 239 N.J.
at 42 (quoting State v. Knight, 183 N.J. 449, 462 (2005)).
A defendant's statement or concession is not voluntary if it "is the product
of physical or psychological coercion." Id. at 43 (quoting Miller, 76 N.J. at
405). "Unlike the use of physical coercion, however, use of a psychologically-
oriented technique during questioning is not inherently coercive." State v.
Galloway, 133 N.J. 631, 654 (1993). To determine whether an interrogating
officer's questioning was psychologically coercive, the court weighs the
defendant's coercive psychological pressures against the defendant's "power to
resist confessing." L.H., 239 N.J. at 43.
The factors relevant to this determination include: (1) the defendant's age;
(2) education; (3) intelligence; (4) previous encounters with the law; (5) "advice
concerning constitutional rights"; (6) length of detention; (7) "whether the
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25
questioning was repeated and prolonged in nature"; and (8) "whether physical
punishment or mental exhaustion was involved." Ibid. (quoting Hreha, 217 N.J.
at 383). Although each of these factors alone "may permit the conclusion that a
confession was involuntary," Hreha, 217 N.J. at 384, "[t]he ultimate
determination . . . will depend on the totality of the circumstances," L.H., 239
N.J. at 43 (citing Hreha, 217 N.J. at 383).
An interrogating officer is permitted to prevaricate during an interrogation
to persuade a defendant to talk. See id. at 43-44. However, the interrogating
officer may not tell a lie that creates coercive psychological pressures that
overbear a defendant's power to resist. See id. at 44 (noting an interrogating
officer may not tell a lie that has "the capacity to overbear a [defendant]'s will
and to render a confession involuntary"). Certain lies are considered inherently
coercive and, as such, impermissible. See, e.g., State in re A.S., 203 N.J. 131,
151 (2010) (holding an officer cannot directly or impliedly inform a defendant
his or her statements will not be used against him or her (quoting Pillar, 359 N.J.
Super. at 268)).
An officer's statement in conflict with a Miranda warning is inherently
coercive. L.H., 239 N.J. at 44. Therefore, an officer may not claim a defendant's
"statements will not be used against" the defendant. Ibid. (citing A.S., 203 N.J.
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26
at 151 ("Not only was the veracity of such advice dubious . . . it also contradicted
the Miranda warning provided to [the defendant] that anything she said in the
interview could be used against her in a court of law.")); see also State v.
Puryear, 441 N.J. Super. 280, 298 (App. Div. 2015) (finding impermissible an
interrogator's representation to the defendant that he "could not hurt himself and
could only help himself by providing a statement" because it "contradicted a key
Miranda warning").
A false promise of leniency is not an inherently coercive lie. See L.H.,
239 N.J. at 44 (noting a false promise of leniency may be coercive if the lie,
"under the totality of circumstances, ha[s] the capacity to overbear a
[defendant]'s will"). Therefore, a promise of leniency is but "one factor to be
considered in determining voluntariness," id. at 45, and the court must weigh
the enticement of the promise against the defendant's power to resist, id. at 43;
Hreha, 217 N.J. at 383.
Here, the interrogating officers' statements were not inherently coercive
because they did not represent defendant's statements would not be used against
him. Rather, the officers asserted defendant's cooperation would help mitigate
his charges and his potential sentence. Defendant's statements were not
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27
inherently coercive because they are not in direct conflict with the officer's
Miranda warning. L.H., 239 N.J. at 44 (citing A.S., 203 N.J. at 151).
Here, the record shows the interrogating officers never offered defendant
anything more than the opportunity to mitigate his charges and potential
sentence. In contrast, the record supports defendant's "power to resist." First,
the trial court found defendant's character to be "evasive," "self-serving,"
"calm," "point oriented," and strategic in his answers, only conceding points
after the prosecution led him through minute details first. See also State v.
Sheika, 337 N.J. Super. 228, 237-39 (App. Div. 2001) (noting the trial court's
"credibility determination . . . was grounded in the court's opportunity to observe
the character and demeanor of the witnesses").
Second, defendant was initially skeptical of the interrogating officers'
deceit, which supports an inference of intelligence, knowledge, and experience.
Third, defendant's decision to continue the interview after the interrogating
officers' claimed Waters confessed indicates a purposeful and strategic decision
on defendant's part to continue the interview for purposes of corroborating
Waters's confession.
Fourth, it would be incongruous for defendant to argue that he had the
intelligence and knowledge to invoke his constitutional rights of silence and
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28
counsel at his home, prior to the officers' reading of defendant's Miranda rights,
but became naïve to the effects of speaking with the police at the station merely
one-half-an-hour later, after the officers' reading and defendant's signed waiver.
Fifth, and most saliently, at the conclusion of the interview, the interrogating
officers specifically asked defendant if he ever felt coerced or threatened
throughout the interview and defendant repeatedly answered "no." In sum, the
trial court correctly concluded defendant's statements to the police were
voluntary and we discern no plain error in the denial of his motion to suppress
his statements to the police.
IV.
Next, in Point III, defendant argues, for the first time on appeal, the trial
court should have sua sponte excluded evidence regarding the "C.J. incident"9
or, in the alternative, admitted the evidence with a limiting instruction to the
jury pursuant to Rule 404(b). Defendant contends the evidence "was irrelevant
and unduly prejudicial." In response, the State asserts defendant's argument is
barred pursuant to the "invited error" doctrine because "defense counsel
9
The C.J. incident refers to a lawsuit, which alleged defendant had " made
sexually inappropriate remarks to [another] high school student[, C.J.,] on a
school class trip."
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29
conceded to leaving in all references to C.J. without limiting instruction" prior
to trial.
"We defer to a trial [judge]'s evidentiary ruling absent an abuse of
discretion." State v. Garcia, 245 N.J. 412, 430 (2021). "We will not substitute
our judgment unless the evidentiary ruling is 'so wide of the mark' that it
constitutes 'a clear error in judgment.'" Ibid. (quoting State v. Medina, 242 N.J.
397, 412 (2020)).
Evidence is relevant if it has "a tendency in reason to prove or disprove
any fact of consequence to the determination of the action." N.J.R.E. 401. In
making this determination, the trial judge "should focus on the 'logical
connection between the proffered evidence and a fact in issue[,]' and 'whether
the [evidence offered] "renders the desired inference more probable than it
would be without the evidence."'" State v. G.V., 162 N.J. 252, 263 (2000)
(second alteration in original) (citations omitted) (first quoting State v.
Hutchins, 241 N.J. 353, 358 (App. Div. 1990); and then quoting State v. Davis,
96 N.J. 611, 619 (1984)).
Even if evidence is deemed relevant, it may still be excluded. Rule 403
permits a trial judge to exclude evidence "if its probative value is substantially
outweighed by the risk of: (a) [u]ndue prejudice, confession of issues, or
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30
misleading the jury; or (b) [u]ndue delay, waste of time, or needless presentation
of cumulative evidence." N.J.R.E. 403. A trial judge "has broad discretion to
exclude evidence as unduly prejudicial pursuant to [Rule] 403." State v.
Jackson, 243 N.J. 52, 65 (2020) (quoting State v. Nantambu 221 N.J. 390, 402
(2015)).
Under Rule 404(b), bad act evidence, or evidence of "other crimes,
wrongs, or acts," is inadmissible as evidence of a person's bad character or
criminal predisposition; however, such evidence is admissible to prove "motive,
opportunity, intent, . . . or absence of mistake or accident when such matters are
relevant to a material issue in dispute." To determine whether to admit bad act
evidence under Rule 404(b), trial courts apply the four-part Cofield test. State
v. Krivacska, 341 N.J. Super. 1, 39 (App. Div. 2001) (citing State v. Cofield,
127 N.J. 328, 338 (1992)). The Cofield test requires the proffering party to
prove:
1. The evidence of the other crime must be admissible
as relevant to a material issue;
2. It must be similar in kind and reasonably close in
time to the offense charged;
3. The evidence of the other crime must be clear and
convincing; and
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31
4. The probative value of the evidence must not be
outweighed by its apparent prejudice.
[127 N.J. at 338 (quoting Abraham P. Ordover,
Balancing the Presumptions of Guilt and Innocence:
Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135,
160 (1989)).]
The admissibility of bad act "evidence is left to the [sound] discretion of
the trial court." State v. Covell, 157 N.J. 554, 564 (1999); State v. Marrero, 148
N.J. 469, 483 (1997). If a trial court admits bad act evidence under Rule 404(b),
it "must provide a limiting instruction that 'inform[s] the jury of the purposes
for which it may, and for which it may not, consider the evidence of defendant's
uncharged misconduct, both when the evidence is first presented and again as
part of the final jury charge.'" State v. Garrison, 228 N.J. 182, 200 (2017)
(alteration in original) (quoting State v. Rose, 206 N.J. 141, 161 (2011)). A trial
court's admittance of bad act evidence and subsequent failure to provide a
limiting instruction after the evidence was presented and as part of the final jury
charge constitutes error. However, not every error is plain error. See State v.
Funderburg, 225 N.J. 66, 79 (2016) (noting "we disregard any alleged error
'unless it is of such a nature as to have been clearly capable of producing an
unjust result'" (quoting R. 2:10-2)).
A-3743-18
32
An invited error is not a plain error. Under the "invited error" doctrine,
errors "that 'were induced, encouraged or acquiesced in or consented to by
defense counsel ordinarily are not a basis for reversal on appeal.'" State v. A.R.,
213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987)).
"[T]o rerun a trial when the mistake could easily have been cured on request,
would reward the litigant who suffers an error for tactical advantage either in
the trial or on appeal." Krivacska, 341 N.J. Super. at 43; see also Santamaria,
236 N.J. at 409 (holding "even if it were [an] error [to admit evidence], a party
cannot strategically withhold its objection to risky or unsavory evidence at trial
only to raise the issue on appeal when the tactic does not pan out"). Only an
invited error that "cut[s] mortally into the substantive rights of the defendant"
will be reviewed on appeal. A.R., 213 N.J. at 562 (quoting Corsaro, 107 N.J. at
345).
Here, we conclude the admittance of bad act evidence in relation to the
C.J. incident must be analyzed under the invited error doctrine. On June 5, 2018,
the parties raised the C.J. incident before the trial court:
[Prosecutor:] [T]he State did file a [Rule] 404[(b)]
motion. . . . It makes reference to a lawsuit incident
with an individual named C.J. . . . which is throughout
the defendant's statement. From the State's perspective,
it's really intrinsic to the statement. [The State]
discussed it with [defense] counsel, [and the parties]
A-3743-18
33
discussed [the motion] [in] chambers. It's [the State's]
understanding . . . defendant does not want . . . a
limiting instruction in that regard.
[Defense counsel:] That's correct. That lawsuit
actually was . . . filed . . . against . . . Waters.
[Defendant] do[es] [not] think it's significant enough to
even warrant a limiting instruction. [Defendant]
think[s] we just let the jury hear the statement when it's
played and with no comment.
....
[Prosecutor:] And, also, [Y]our Honor, [C.J.] is not on
the witness list. The State did not plan on bringing
anything up about him except what is in [defendant]'s
statement.
After consenting to the inclusion of the C.J. incident evidence, defendant was
left with the strategic options of: (1) "arguing for redaction of a significant
amount of the statement, thus leaving the jury to speculate as to what was
omitted"; or (2) "allowing the relatively harmless conduct involving C.J. in front
of the jury without calling attention to it with a limiting instruction. " "[T]he
failure to request a limiting instruction [i]s anything but a well[-]reasoned
strategic determination." Krivacska, 341 N.J. Super. at 43-44. Although the
trial court admitted the bad act evidence and did not provide a limiting
instruction after the evidence was presented and as part of the final jury charge,
we conclude the error is an invited error, not a basis for reversal on appeal. A.R.,
A-3743-18
34
213 N.J. at 561 (quoting Corsaro, 107 N.J. at 345). The court did not abuse its
discretion in admitting the C.J. information into evidence.
V.
In Point IV, defendant contends the trial court should have sua sponte
excluded the naked photographs of defendant pursuant to both Rule 402,
relevance or "probative value," and Rule 403, undue prejudice. Defendant
asserts even if the photographs depict him, "the photos were not probative of the
only contested issue—D.U.'s age when he had sex with defendant." (Emphasis
added). Again, we disagree.
A trial court is not required to sua sponte exclude photographs if the
photographs are admissible under Rule 403. Santamaria, 236 N.J. at 408.
"Relevant evidence" is defined as "evidence having a tendency in reason to
prove or disprove any fact of consequence to the determination of the action. "
N.J.R.E. 401. "Relevant evidence 'need not be dispositive or even strongly
probative in order to clear the relevancy bar.'" Santamaria, 236 N.J. at 405
(quoting State v. Cole, 229 N.J. 430, 447 (2017)). "Instead, the relevancy
threshold is met '[o]nce a logical relevancy can be found to bridge the evidence
offered and a consequential issue in the case.'" Ibid. (alteration in original)
(quoting Cole, 229 N.J. at 448).
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35
Photographs may be probative of a victim's age if they help establish a
pre-existing relationship between the parties. 10 In Santamaria, the trial court
admitted into evidence, without objection, sixty-five photographs of the victim
and the defendant nude, semi-nude, and in sexual acts. Id. at 407-08. The
defendant's face was not displayed in any of the photographs but was identified
by the victim. Id. at 407. The photographs were taken after the victim had
turned eighteen. Id. at 405. The Court held the photographs to be "relevant to
establishing a pre-existing relationship between defendant and [victim], which
in this case would mean a relationship while [victim] was underage. The photos
are therefore intrinsic to the prosecution's case." Id. at 405-06.
Here, the trial court correctly determined the photographs are intrinsic to
the prosecution's case. Like in Santamaria, where the Court held nude
photographs of the parties to be "relevant to establishing a pre -existing
relationship between defendant and [victim]," id. at 405-06, here, "[a]t a
minimum, the photographs provided evidence of a sexual relationship between"
the parties. Out of the twenty-four photograph negatives provided by D.U. to
Detective Steele, twenty-two depicted Waters, defendant, and D.U. in locations
10
Proof of penetration is required to satisfy the basic elements of sexual assault.
See N.J.S.A. 2C:14-2(c)(4).
A-3743-18
36
such as Waters's art class, the Boy Scout camp, and the couple's home. "Several
of the photos had written dates indicating that D.U. was under [sixteen] at the
time they were taken . . . ." "The sheer number of photographs . . . is relevant
to establishing a pre-existing relationship between defendant and [victim],
which in this case would mean a relationship while [victim] was underage."
Santamaria, 236 N.J. at 405-06.
We note that although defendant's point heading and conclusion claim the
photographs did not satisfy both Rules 401 and 403, he failed to present an
argument in his brief regarding his claim the photographs were prejudicial
pursuant to Rule 403. Therefore, this issue is waived. Sklodowsky, 417 N.J.
Super. at 657. Nonetheless, we add the following comments.
Probative evidence may "be excluded if its probative value is substantially
outweighed by the risk of . . . [u]ndue prejudice, confusion of issues, . . .
misleading the jury[,] or . . . needless presentation of cumulative evidence."
N.J.R.E. 403. Under Rule 403, "if 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," the evidence should be barred. Santamaria, 236 N.J.
at 406 (internal quotations omitted) (alteration in original) (quoting Cole, 229
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37
N.J. at 448). "The party urging the exclusion of evidence under [Rule] 403
retains the burden 'to convince the court that the [Rule] 403 considerations
should control.'" Id. at 406-07 (quoting Rosenblit v. Zimmerman, 166 N.J. 391,
410 (2001)).
Nudity alone will not substantially outweigh a photographs' probative
value. In State v. L.P., where photographs of the defendant's body provided
direct corroboration of the victim's testimony, we held:
It is not evident to us that any prejudice could have
resulted from the jury's observation of the nude
photographs of defendant's body, but even if some
jurors found the photographs offensive, there is no
basis for concluding that the court palpably abused its
discretion in ruling that the probative value of the
photographs was not substantially outweighed by the
risk of such prejudice. We also note that defendant
could have avoided any possible prejudicial impact of
the photographs by simply stipulating that [the
defendant's testimony] was accurate.
[352 N.J. Super. 369, 378 (App. Div. 2002) (citation
omitted) (citing State v. Thompson, 59 N.J. 396, 419–
21 (1971)).]
Here, defendant's nudity alone does not substantially outweigh the photographs'
probative value under Rule 403.
Saliently, the admittance of the nude photographs constituted an invited
error. And, defendant cross-examined Detective Steele about the photographs.
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38
Finally, defense counsel referenced the photographs and their evidential role in
summation:
We do have the pictures you've seen of a naked man,
one face up, one face down, they were in negative form.
So we don't know whether [D.U.] did or did not see
them. We're presuming that they would have been
developed on February I think it was 16th or 18th of
2004. If you remember, there were [twenty-four]
negatives which I think back then was kind of a normal
negative pack, and you had the naked pictures. So[,]
assuming it was [defendant], and we're not really sure,
we can't really tell, but that was from February of 2004
when they were developed. And again, that is well past
the key date here which is when [D.U.] turned [sixteen].
So those pictures were from when he was already
[sixteen].
Based upon the doctrine of invited error, admittance of the photographs is
not a basis for reversal. A.R., 213 N.J. at 561 (quoting Corsaro, 107 N.J. at
345). We are convinced the trial court did not err by admitting the photographs
under the plain error rule either. R. 2:10-2.
VI.
In Point V, defendant argues his sentence was excessive and the
sentencing court erred by applying aggravating factor three, the risk that the
defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), and aggravating
factor nine, the need for deterring the defendant and others from violating the
law, N.J.S.A. 2C:44-1(a)(9). Defendant contends the substantial weight the
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39
court assigned to aggravating factors three and nine "was incompatible" with the
court's application of mitigating factors seven, the defendant has no history of
prior delinquency or criminal history or has led a law abiding life for a
substantial period of time prior to the commission of the present offense,
N.J.S.A 2C:44-1(b)(7), and eight, the defendant's conduct was the result of
circumstances unlikely to recur, N.J.S.A. 2C:44-1(b)(8).
We review a trial judge's sentencing decision for an abuse of discretion.
State v. Jones, 232 N.J. 308, 318 (2018). This deferential standard applies only
when "the trial judge follows the [Criminal] Code and the basic precepts that
channel sentencing discretion." State v. Trinidad, 241 N.J. 425, 453 (2020)
(quoting State v. Case, 220 N.J. 49, 65 (2014)). We will "affirm the sentence of
a trial [judge] unless: (1) the sentencing guidelines were violated; (2) the
findings of aggravating and mitigating factors were not 'based upon competent
credible evidence in the record;' or (3) 'the application of the guidelines of the
facts' to the case 'shock[s] the judicial conscience.'" State v. Bolvito, 217 N.J.
221, 228 (2014) (second alteration in original) (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)).
A trial judge "must identify any relevant aggravating and mitigating
factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." Case,
A-3743-18
40
220 N.J. at 64 (citing State v. Fuentes, 217 N.J. 57, 72 (2014)). The judge must
then "determine which factors are supported by a preponderance of [the]
evidence, balance the relevant factors, and explain how it arrives at the
appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). The
judge's application of these factors "must be supported by competent, credible
evidence in the record." Case, 220 N.J. at 64.
The sentencing court noted defendant's age and his "minor prior history."
But the court also found defendant's conduct was "calculated," "predatory," and
"repeated." The court highlighted both defendant's invitation of D.U.'s parents
to his house and providing marijuana and mushrooms to D.U. indicated an effort
to isolate and use D.U. "for his own sexual gratification multiple times over." 11
Furthermore, defendant's complete lack of remorse and "repeated denials about
having sexual relationships with [D.U.] when he was" fifteen justified assigning
11
Defendant argues although D.U. testified defendant and he had "used drugs,
there was no evidence that [defendant] supplied or introduced drugs to D.U."
Furthermore, defendant argues "[t]here was also no evidence to support the
[trial] court's remark that [D.U.] used drugs to 'release some of his inhibitions.'"
See also Case, 220 N.J. at 64 ("Speculation and suspicion must not infect the
sentencing process; simply put, the finding of aggravating or mitigating factors
must be based on evidence."). The trial court, however, did not find defendant
"supplied or introduced drugs to D.U." but merely noted defendant "shared
marijuana and mushrooms with [D.U.]"
A-3743-18
41
substantial weight to this factor regardless of defendant's age or prior criminal
history.
In addition, the sentencing court gave considerable weight to mitigating
factor seven and noted this did not discount the court's "findings as to
aggravating [factors] [three] and [nine]." The court assigned "extremely light
weight" to mitigating factor eight and agreed with defendant that to the extent
Waters introduced him to D.U. and Waters is now retired, "those were
circumstances unlikely to recur."
In Fuentes, where the Court reviewed the application of aggravating factor
nine and mitigating factors seven and eight, the Court held "[b]ecause N.J.S.A.
2C:44–1's statutory language does not suggest . . . that aggravating factor[s] . . .
and mitigating factor[s] . . . are inherently incompatible, we do not adopt such
an inflexible rule." 217 N.J. at 79. The Court emphasized although certain
factors may "rarely apply in the same sentenc[e]," the Court could "not hold that
[such] factors are irreconcilable." Id. at 79-80. "Neither the statutory language
nor the case law suggest that a [trial] or sentencing court can find a need" for
one factor at the expense of another. See id. at 80.
The Court held where aggravating and mitigating factors appear
inconsistent to one another, a trial court "should explain how it reconciles those
A-3743-18
42
two findings." Id. at 81. Inconsistent aggravating and mitigating factors are not
inherently irreconcilable so long as the factors are independently supported by
substantial credible evidence. See Case, 220 N.J. at 67 (holding the sentencing
court's finding of mitigating factor seven to stand "as a counterpoise to the
finding of a risk that defendant was likely to commit another offense" where the
trial court's finding of aggravating factor three "was based not on credible
evidence in the record but [rather] on the unfounded assumption that defendant
had pursued minors . . . on previous occasions"). These considerations did not
result in the court abusing its discretion in finding aggravating factors three and
nine and mitigating factors seven and eight.
Finally, defendant argues the trial court failed to apply mitigating factor
nine, the character and attitude of the defendant indicate that the defendant is
unlikely to commit another offense. N.J.S.A. 2C:44-1(b)(9). "[R]emand may
be required when a reviewing court determines that a [trial] court failed to
[consider] mitigating factors that clearly were supported by the record." State
v. Bieniek, 200 N.J. 601, 608-09 (2010); see also State v. Dalziel, 182 N.J. 494,
506-07 (2005) (holding "the [trial] judge may determine . . . the weight to be
ascribed to [a] mitigating factor . . . . [but] [a] trial judge's failure to acknowledge
[a factor], which was fully supported by the record," is an error). As such,
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"[m]itigating factors that 'are called to the court's attention' should not be
ignored, and . . . [if] 'supported by credible evidence' are required to 'be part of
the deliberative process.'" Case, 220 N.J. at 64 (first quoting State v. Blackmon,
202 N.J. 283, 297 (2010); then quoting Dalziel, 182 N.J. at 504; and then quoting
id. at 505).
At the sentencing hearing, the court stated it rejected mitigating factor
nine:
[F]or the reasons . . . given as to aggravating factors
[three] and [nine]. This defendant has repeatedly
shown that his character and attitude are inconsistent
with this finding. . . . rooted in his complete lack of
remorse for this matter, his continual blame and
belittling of the victim in this matter throughout.
The court did not abuse its discretion in rejecting mitigating factor nine or by
imposing defendant's sentence, which was based upon substantial credible
evidence in the record.
Affirmed.
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