RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3484-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.F.,

1

Defendant-Appellant.

Submitted February 3, 2021 – Decided July 23, 2021

Before Judges Whipple, Rose, and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment Nos. 18-02-0682 

and 18-11-3569.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Stefan Van Jura, Assistant Deputy Public 

Defender, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (Regina M. Oberholzer, Deputy Attorney 

General, of counsel and on the briefs).

1

 We use initials and pseudonyms to identify the parties and to protect the 

confidentiality the victims. See R. 1:38-3 (c)(9) and (d)(10).

NOT FOR PUBLICATION WITHOUT THE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.
2

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Appellant filed a pro se supplemental brief.

PER CURIAM

Following a bifurcated jury trial, defendant T.F. was convicted of 

burglary, aggravated assault, terroristic threats, child endangerment, and 

weapons offenses for kicking in the door of his children's home in the pre-dawn 

hours of Christmas Day and threatening to kill their mother, A.E. (Amy), at 

gunpoint. During the multiple-day trial, the State presented the testimony of six 

witnesses including Amy, who vacillated in her account of the events and Amy's 

twenty-year-old sister, D.E. (Dina), who steadfastly inculpated defendant. The 

State also moved into evidence various exhibits, including a letter and a CD 

containing four telephone calls from defendant to Amy while he was in jail 

awaiting trial, attempting to convince her to drop the charges against him. 

Thereafter, the same jury convicted defendant of certain persons not to possess 

weapons. After denying defendant's motion for a new trial and the State's 

motion for a discretionary extended term, the trial judge sentenced defendant to 

an aggregate forty-one-year prison term, with a fifteen-year parole disqualifier. 

This appeal followed.

In his counseled brief, defendant raises the following points for our 

consideration:
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POINT I

THE BURGLARY CONVICTION SHOULD BE 

REVERSED BECAUSE DEFENDANT WAS 

DENIED DUE PROCESS AND A FAIR TRIAL BY 

THE TRIAL COURT'S FAILURE TO DEFINE "A 

CRIME OF DOMESTIC VIOLENCE," WHICH WAS 

THE OFFENSE THE STATE ALLEGED THAT 

DEFENDANT INTENDED TO COMMIT WHEN HE 

ENTERED THE APARTMENT WITHOUT 

PERMISSION. U.S. Const. amend. XIV; N.J. Const.

art. I, ¶¶ 1, 9, & 10.

(Not raised below)

POINT II

THE CONVICTION FOR UNLAWFUL 

POSSESSION OF A HANDGUN SHOULD BE 

REVERSED BECAUSE DEFENDANT WAS 

DENIED DUE PROCESS AND A FAIR TRIAL BY 

THE TRIAL COURT'S ERRONEOUS JURY 

CHARGE OMITTING INSTRUCTION ON "MERE 

PRESENCE," WHERE THAT WAS PRECISELY 

DEFENDANT'S DEFENSE TO THE CHARGE. U.S. 

Const. amend. XIV; N.J. Const. art. I, ¶¶ 1, 9, & 10. 

(Not raised below)

POINT III

THE CONVICTIONS SHOULD BE REVERSED DUE 

TO PROSECUTORIAL ERROR IN SUMMATION 

WHERE THE STATE MISREPRESENTED 

DEFENDANT'S STATEMENTS AS ADMISSIONS 

OF GUILT. U.S. Const. amend. XIV; N.J. Const. art. 

I, ¶¶. 1, 9, & 10.
4

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POINT IV

[DEFENDANT'S] THIRTY-FOUR-AND-A-HALFYEAR [SIC] SENTENCE CANNOT BE JUSTIFIED 

FOR THE CONVICTED CRIMES AND MUST BE 

REDUCED. 

In his pro se brief, defendant raises the following additional arguments, 

which we renumber for the reader's convenience:

POINT [V]

THE STATE'S ARGUMENT DOES NOT RISE TO 

THE STANDARD LEVEL OF PLAUSIBILITY AS 

REFLECTED IN THE STATE'S COERCIVE 

FEARMONGERING TACTICS TO GET A[MY] TO 

TESTIFY AGAINST HER WILL TANTAMOUNT TO 

PREJUDICIAL MISCONDUCT, NECESSITATING 

REVERSAL[.] U.S. Const. amend. XIV; N.J. Const.

art. I, 9, 10. 

(Not raised below)

POINT [VI]

THE STATE SUBSTANTIALLY PREJUDICED 

DEFENDANT'S FUNDAMENT[AL] RIGHT TO 

HAVE A FAIR TRIAL BY PRESENTING THE 

TESTIMONIES OF A[MY] AND D[INA] WHICH 

SHOULD HAVE BEEN IMPEACHED FOR THE 

NUMEROUS INCONSISTENTICES [IN] THE 

RECORD.

(Not raised below)

POINT [VII]

DEFENDANT RECEIVED AN EXCESSIVE 

SENTENCE WHERE THE COURT FAILED TO 
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A-3484-18

FIND ANY MITIGATING FACTORS AND THAT 

FAILED TO EQUATE THE INCONSISTENT 

TESTIMONY/EVIDENCE ALONG WITH THE 

CONTEXT OF THE CRIMES ALLEGED AND IT 

MUST [BE] REDUCED IN LIGHT OF THE NEW 

JERSEY CRIMINAL SENTENCING &

DISPOSITION COMMISSION'S BILL FOR 

YOUTHFUL OFFENDERS DURING SENTENCING.

(Not raised below)

For the reasons that follow, we affirm defendant's convictions and remand 

for resentencing.

I.

By all accounts, defendant and Amy had been in an on-again, off-again 

relationship for a few years. Two children were born of the union; they were 

one year old and five months old at the time of the incident. According to Amy, 

on Christmas Eve 2017, defendant and Amy were no longer living together in 

her Newark apartment, but went shopping for the children's presents. An 

argument ensued on their drive back to Amy's home after defendant looked at 

Amy's cellphone to see whether she "were seeing any other guys." Amy denied 

defendant's request to return later to visit with her and their daughters. 

Nonetheless, around 10:30 or 11:00 p.m., defendant knocked on Amy's 

door. Amy told Dina, who was visiting, to be quiet but Dina eventually told 

Amy "to let him in." Defendant entered the apartment, "got comfortable and 
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turned on the T.V." Dina testified that "it wasn't a good vibe that [Amy] was 

getting so she wanted him to leave" but "he didn't want to." Dina then called 

the police who escorted defendant out of the apartment. According to Amy, 

however, defendant left the apartment at her request without protesting or police 

intervention. 

In any event, it is undisputed that defendant returned to Amy's home 

around midnight. According to Amy and Dina, defendant knocked on the door 

and texted the sisters to open it. When they refused, defendant kicked in the 

door and entered the rear bedroom where the sisters and children were located. 

Defendant appeared "high"; his eyes were red, and he was angry. He pointed a 

handgun at Amy, who was holding the baby. Defendant threatened to kill Amy 

and himself. Dina, who was on the phone with her boyfriend at the time, "got 

scared" and hid in the closet. Dina asked her boyfriend to call the police, but he 

did not know Amy's address. Defendant then entered the closet, took Dina's 

cellphone, and demanded Amy's cellphone. Amy refused but eventually 

acquiesced in defendant's demands. Dina remained in the closet for hours with 

the older child.

In the meantime, defendant closed the door to the bedroom and would not 

let Amy and the baby leave the room. Defendant "just kept screaming and 
7

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[Amy] tried to talk to him" to calm him down but he was in a "state of anger." 

About an hour later, defendant opened the door but continued to hold the gun. 

In an effort to defuse the situation, Amy convinced defendant to give her the 

gun in return for the baby. Amy tried for hours to convince defendant to leave 

the apartment to no avail. Eventually, defendant fell asleep on the living room 

couch, and Amy placed the gun on the fire escape. 

Dina called the police around 6:00 a.m.; defendant was arrested; and the 

gun was retrieved from the fire escape. While incarcerated, defendant called 

Amy at least four times, attempting to convince her not to cooperate with the 

State. He also sent Amy a letter, directing her to change her telephone number 

so the prosecutor could not call her.

After the State rested, defendant testified to a vastly different version of 

the events. Defendant contended he was living with Amy in December 2017. 

He claimed the door to the apartment had been broken in November when Amy 

forgot her key and "pushed a little too hard" as she tried to open the door with 

her shoulder. Defendant acknowledged he argued with Amy and refused to 

leave when she told him to "get out." He said he went to sleep and when he 

awoke, he was handcuffed. Defendant denied all charges and claimed he did 

not see the gun until the police recovered it. 
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A-3484-18

Defendant acknowledged he made several calls to Amy from the jail, "just 

to talk to [his] kids, speak to [Amy], see what's going on with their living 

arrangements . . . ." When his attorney asked whether defendant ever told Amy 

not to cooperate with the State, defendant responded: "Not exactly in that 

context" but he told Amy the State could not remove the children from her home 

if she declined to testify before the grand jury as "they" had threatened. 

Defendant said dropping charges "was already her mindset" when they spoke. 

On cross-examination, however, defendant acknowledged that during his 

arraignment, the judge ordered defendant not to have any contact with Amy, 

which included telephone calls and letters. 

Defendant was charged in a twenty-count Essex County indictment with: 

second-degree burglary, N.J.S.A. 2C:18-2, "and a crime of [d]omestic 

[v]iolence," N.J.S.A. 2C:25-19 (count one); second-degree unlawful possession 

of a handgun, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a 

firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); fourthdegree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4) (count 

four); third-degree terroristic threats, N.J.S.A. 2C:12-3(b), "and a crime of 

[d]omestic [v]iolence," N.J.S.A. 2C:25-19 (counts five and twenty); fourthdegree theft, N.J.S.A. 2C:20-3(a) (count six); third-degree theft, N.J.S.A. 2C:20-
9

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3(a) (count seven); third-degree criminal restraint, N.J.S.A. 2C:13-2(b) (counts 

eight, nine, ten, and eleven); second-degree endangering the welfare of a child, 

N.J.S.A. 2C:24-4(a) (counts twelve and thirteen); fourth-degree possession of a 

defaced firearm, N.J.S.A. 2C:39-3(d) (count fourteen); third-degree witness 

tampering by engaging in conduct to cause the witness to withhold testimony, 

N.J.S.A. 2C:28-5(a)(3) (counts fifteen and seventeen); and third-degree witness 

tampering by engaging in conduct to obstruct an official proceeding, N.J.S.A. 

2C:28-5(a)(5) (counts sixteen, eighteen, and nineteen). After counts six, eight 

through eleven, and twenty were dismissed, defendant was found guilty as 

charged of the remaining counts, except seven and eighteen. The same jury 

thereafter found defendant guilty of certain persons not to possess weapons, 

N.J.S.A. 2C:39-7(b), as charged in a separate indictment. 

II.

For the first time on appeal, defendant contends the trial judge incorrectly 

instructed the jury that the predicate offense for the burglary charge was "a crime 

of domestic violence" but failed to define that term. Defendant's argument 

mischaracterizes the record. 

At or before the charge conference on January 15, 2019, the judge 

provided counsel with a copy of the written draft jury charge and reviewed the 
10 A-3484-18

charges with counsel. Following summations, the judge provided counsel with 

the revised jury charge and verdict sheet and reviewed the revisions with 

counsel. The judge also sua sponte indicated he would strike the "domestic 

violence" language from the indictment when reading the burglary charge to the 

jurors. 

In that regard, the judge stated: "I've been seeing these indictments from 

the prosecutor's office, and this has actually been a recent thing. Essentially 

. . . the State is asking . . . for an extra element that [it] must prove beyond a 

reasonable doubt. Domestic violence is not mentioned in [N.J.S.A.] 2C:18-2." 

The prosecutor agreed with the judge's suggestion; defense counsel refrained 

from comment.

Nonetheless, during the final jury instructions, the judge included the 

domestic violence language when reading the indictment as to the burglary 

charge:

Count one, burglary. The first count in the 

indictment charges . . . defendant with committing the 

crime of burglary. It reads as follows. . . . [Defendant] 

on the 25th of December 2017, in the City of Newark 

. . . entered the premises . . . which was not at the time 

open to the public and which he was not . . . licensed or 

privileged to enter. And in the course of committing 

the offense was armed with, or displayed what appeared 

to be a deadly weapon against A[my], the defendant's 
11 A-3484-18

children's mother, contrary to New Jersey Statute 

2C:18-2 and a crime of domestic violence.

[(Emphasis added).]

The trial judge then read the pertinent portion of the burglary statute. 

Relevant to defendant's argument on appeal, the judge stated:

A . . . person is guilty of burglary if for the purpose to 

commit an offense therein the person enters a structure 

or separately secured or occupied [a] portion thereof 

unless the structure was at the time open to the public, 

. . . or the person is licensed or privileged to enter. 

In order for you to find . . . defendant guilty of 

the crime of burglary the State must prove beyond a 

reasonable doubt the following elements. One, . . . 

defendant entered the structure . . . without permission. 

Two, that defendant did so with the purpose to commit

an offense therein.

. . . . 

Purpose to commit an offense, means that a 

defendant intended to commit an unlawful act inside the

structure. The unlawful acts alleged intended are set 

forth in the counts in the indictment.

[(Emphasis added).]

The judge went on to read the remaining counts in the indictment, which 

included possession of a weapon for an unlawful purpose. In that context, the 

judge instructed the jury that "the State contends . . . defendant's unlawful 

purpose [in] possessing the firearm was to threaten or harm A[my]." 
12 A-3484-18

We begin our consideration of defendant's contention by acknowledging 

"[a]ppropriate and proper charges are essential for a fair trial." State v. Baum, 

224 N.J. 147, 158-59 (2016) (alteration in original) (quoting State v. Reddish, 

181 N.J. 553, 613 (2004)). "The trial court must give 'a comprehensible 

explanation of the questions that the jury must determine, including the law of 

the case applicable to the facts that the jury may find.'" Id. at 159 (quoting State 

v. Green, 86 N.J. 281, 287-88 (1981)). "Thus, the court has an 'independent 

duty . . . to ensure that the jurors receive accurate instructions on the law as it 

pertains to the facts and issues of each case, irrespective of the particular 

language suggested by either party.'" Ibid. (alteration in original) (quoting 

Reddish, 181 N.J. at 613). "A proper explanation of the elements of a crime is 

especially crucial to the satisfaction of a criminal defendant's due process 

rights." State v. Ambroselli, 356 N.J. Super. 377, 386 (App. Div. 2003); see 

also State v. Burgess, 154 N.J. 181, 185 (1998). 

However, a jury charge "must be read as a whole in determining whether 

there was any error." State v. Torres, 183 N.J. 554, 564 (2005). The appropriate 

test to apply "is whether the charge as a whole is misleading, or sets forth 

accurately and fairly the controlling principles of law." State v. McKinney, 223 

N.J. 475, 496 (2015) (quoting State v. Jackmon, 305 N.J. Super. 274, 299 (App. 
13 A-3484-18

Div. 1997)). "Because proper jury instructions are essential to a fair trial, 

'erroneous instructions on material points are presumed to' possess the capacity 

to unfairly prejudice the defendant." Id. at 495 (quoting State v. Bunch, 180 

N.J. 534, 541-42 (2004)). 

When a defendant fails to object to an error regarding jury charges, we 

review for plain error. R. 1:7-2; see also State v. Funderburg, 225 N.J. 66, 79 

(2016). "Under that standard, we disregard any alleged error 'unless it is of such 

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

Funderburg, 225 N.J. at 79 (quoting R. 2:10-2). "The mere possibility of an 

unjust result is not enough." Ibid. We will only reverse, if the error is "sufficient 

to raise 'a reasonable doubt . . . as to whether the error led the jury to a result it 

otherwise might not have reached.'" Ibid. (alteration in original) (quoting State 

v. Jenkins, 178 N.J. 347, 361 (2004)). "[P]lain error requires demonstration of 

'[l]egal impropriety in the charge prejudicially affecting the substantial rights of 

the defendant sufficiently grievous to justify notice by the reviewing court and 

to convince the court that of itself the error possessed a clear capacity to bring 

about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (second 

alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).
14 A-3484-18

Applying these guiding principles to defendant's belated argument, we 

agree that the trial judge erred by including "a crime of domestic violence" in

the burglary charge, when reading the indictment. Nonetheless, we discern the 

judge's oversight was not capable of producing an unjust result here, where the 

charge was otherwise accurate and fairly stated the elements of the offense that 

the State was required to prove beyond a reasonable doubt. 

Contrary to defendant's contention, the judge never "advised the jury that 

it had to determine whether defendant intended to commit 'a crime of domestic 

violence'" when he entered Amy's apartment. Instead, the judge instructed the 

jury that the unlawful acts alleged by the State were "set forth in the counts in 

the indictment." Accordingly, when read as a whole, the judge's error was not 

"clearly capable of producing an unjust result." R. 2:10-2. 

III.

We turn next to defendant's argument that the judge erroneously omitted 

the mere presence section of the unlawful possession of a handgun jury charge, 

thereby requiring reversal of his conviction for that offense and possession of a 

defaced firearm. Because defendant did not object to the jury instruction at trial, 

we again review his newly-minted challenges through the prism of the plain 

error standard. Ibid. 
15 A-3484-18

During the initial charge conference, the judge inquired as to whether it 

was necessary to charge constructive possession and agreed to do so following 

defense counsel's comment, "there's been some testimony from A[my] and 

D[ina] that the firearm was found on the fire escape during the time that . . . 

defendant was sleeping." Defense counsel did not, however, request that the 

judge include the mere presence section of the jury charge. Although given 

another opportunity to object to any of the judge's instructions before he released 

the jury to begin its deliberations, defendant raised no objection to the judge's 

instructions. 

Nonetheless, the judge twice issued the constructive possession charge: 

initially when instructing the jury that burglary was "elevated" if during 

commission of the offense "the person is armed with or displays what appears 

to be a deadly weapon"; and again when instructing the jury on unlawful 

possession of the handgun. In so doing, the judge twice informed the jury the 

State was required to prove defendant was "aware of" the handgun's presence 

and had the "intent to exercise control over it." State v. Randolph, 228 N.J. 566, 

592 (2017).

In Randolph, our Supreme Court held the trial court erred in a drug 

possession prosecution by denying defendant's request to issue a mere presence 
16 A-3484-18

instruction. Id. at 590-93. Unlike the present matter, the State's theory was that 

the defendant constructively possessed narcotics in an apartment from which he 

had fled. Id. at 590. The defendant in that case was charged with drug 

possession and distribution offenses. Id. at 573. 

The Court stated that while the mere presence instruction was not included 

in the model jury charge on possession, "[n]o constraint barred the trial court 

from giving the 'mere presence' charge, and the better course would have been 

to give the charge to disabuse the jury of any possible notion that a conviction 

could be based solely on defendant's presence in the building." Id. at 592. 

However, the Court concluded "[t]he charge, as a whole, sufficiently informed 

the jury — without using the words 'mere presence' — that defendant's presence 

. . . standing alone, would be insufficient to establish guilt." Ibid. 

In the present matter, the handgun was recovered by police after Dina 

reported defendant had threatened Amy with the gun. Both Amy and Dina 

testified that defendant entered the apartment armed with the handgun. This was 

not a scenario in which police responded to the apartment on a general report of 

a gun found on the bedroom fire escape and observed three people seated on the 

living room couch upon their arrival. Instead, both sisters advised police that 

the handgun belonged to defendant – and he unlawfully used that weapon by 
17 A-3484-18

breaking in the door to the apartment and pointing the gun at Amy. Accordingly, 

in addition to gun possession charges, defendant also was charged with nonpossessory charges of burglary and aggravated assault.

Nonetheless, we recognize defendant denied all charges, including 

possession of the handgun. Further, seven months before the present trial, the 

Supreme Court Model Criminal Jury Charge Committee tailored the charge on 

unlawful possession of a handgun to include mere presence, "if [a]ppropriate," 

following the definition of constructive possession. Model Jury Charges 

(Criminal), "Unlawful Possession of a Handgun (Second Degree)" (rev. June 11, 

2018). As such, "the better course would have been to give the charge to 

disabuse the jury of any possible notion that a conviction could be based solely 

on defendant's presence in" Amy's apartment. Randolph, 228 N.J. at 592. 

We therefore conclude the trial judge mistakenly failed to issue the 

complete charge. However, that mistake did not constitute plain error under the 

circumstances presented here, where the judge twice included in his final 

instructions the definition of constructive possession. See State v. Hyman, 451 

N.J. Super. 429, 455-57 (App. Div. 2017). When viewed in its entirety, the 

court's charge on possession did not permit the jury to find defendant guilty 

based on his mere presence in the apartment. As the Court concluded in 
18 A-3484-18

Randolph, "giving the charge would have done no harm and possibly would have 

been of some benefit," but the absence of the mere presence charge did not deny 

the defendant a fair trial under the facts presented. 228 N.J. at 593. 

IV. 

Defendant also challenges two comments made during the prosecutor's 

summation. Following the jury's guilty verdict, defendant ordered transcripts of 

the jail calls, which differed in some respects from the transcripts produced by 

the State. Prior to sentencing, defendant moved for a new trial, arguing the 

prosecutor misrepresented the statements defendant made during his phone calls 

to Amy. Defendant contended the post-trial transcripts were newly-discovered 

evidence that demonstrated the prosecutor mischaracterized his statements 

thereby entitling him to a new trial. Notably, before the prosecutor had replayed 

the calls during her summation, defense counsel objected only because he was 

"concerned" she intended to read the transcripts; and not because the defense 

claimed the transcripts were erroneous. 

Emphasizing the calls and not the transcripts were admitted in evidence –

nor shown to the jury as demonstrative aids when they listened to the calls – the 

trial judge orally denied defendant's motion, issuing a decision from the bench. 

In doing so, the judge reasoned the prosecutor's argument was fair comment on 
19 A-3484-18

the evidence. The judge also noted that the audio tapes had been provided in 

discovery and the court conducted a pretrial Driver hearing,2 wherein the 

recordings were authenticated. According to the judge: "The jury heard . . . the 

audio tapes, and it was up to the jury to give that evidence the weight that [it] 

felt it deserved, and accept it or reject it or accept it in part." 

On appeal, defendant renews his argument that the prosecutor's comments 

were out of bounds. Defendant's first claim of alleged misconduct pertains to 

his January 24, 2018 call to Amy, which the prosecutor replayed for the jury 

during her summation: 

DEFENDANT: Don't tell them you've been talking to 

me.

AMY: Well, they know.

DEFENDANT: But as far as like, . . . I'll let you know 

what the motion [is] and the correct way how to go 

about it, and . . . the only thing you be having to do is 

like they might [ask you]: "You not going to pursue 

nothing, right?" They going to be . . . they can't do shit. 

They can't do nothing without you. The only thing is I 

just had a hammer . . . .

[(Emphasis added).]

2

 State v. Driver, 38 N.J. 255 (1962). Following a Driver hearing, the court 

determines the admissibility of a sound recording, considering several factors 

including whether any changes, additions, or deletions have been made to the 

recording. Id. at 287.
20 A-3484-18

After an exchange in which Amy indicated she feared the State would 

incarcerate her if she did not testify, the prosecutor paused the CD containing the 

call, stating to the jury:

I want to draw your attention to a couple of things you 

just heard. [D]efendant just said at the beginning: 

"Okay, don't tell the prosecutor you're talking to me. 

You know, the only problem here is I had the hammer." 

That's the gun. Detective Ferrer tested that hammer. 

It's just the slang term for gun. You heard testimony 

from A[my] and D[ina], they never talked to 

[defendant] about him having a tool, a hammer. They 

talked about him having a gun, and he's just talked 

about him having a gun. Unlawful possession of a 

weapon. Guilty.

Referencing the post-trial transcript of the call,3 defendant contends he 

merely stated: "I only think I just ha[d] a hammer." Acknowledging "[t]his 

interpretation might be confusing," defendant nonetheless contends it is 

consistent with Amy's testimony that defendant was intoxicated at the time of 

the offense. 

Secondly, he argues the post-trial transcription of a portion of the January 

25, 2018 phone call differed significantly from the prosecutor's interpretation. 

According to the trial transcript of the call, defendant stated: "(Indiscernible) 

like the violent . . . you made it violent is that I pointed [the gun] at you, so they 

3

 The post-trial transcripts were not provided on appeal. 
21 A-3484-18

gave it an aggravated assault, so that made it violent. That's basically what's 

holding me [in jail]." Accordingly, the prosecutor commented:

Oh, and then he also says what made it violent was I 

pointed it at you. "Yeah, yeah, don't worry about that, 

I pointed a gun at you as you held our baby, but you 

know, it's all good." Why doesn't he say to her: "Why 

don't you tell them that I didn't point it?" Why doesn't 

he say, "Why [sic] don't testify at grand jury" that it 

didn't happen? Because it did.

Defendant instead claims the post-trial transcription states: "It ain't 

nothing to worry about on your end. I just was like the violent . . . what made 

it violent you said I pointed it at you, so they gave me the aggravated assault, so 

that made it violent." (Emphasis added). Defendant argues he did not admit 

pointing the gun at Amy but rather "he was only saying that A[my]'s allegation 

that he pointed the gun was the reason the offense was regarded as violent, which 

prevented his release pre-trial." 

New Jersey courts have long recognized prosecutors "are afforded 

considerable leeway in making opening statements and summations." State v. 

Williams, 113 N.J. 393, 447 (1988). They may even do so "graphically and 

forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988).

Nonetheless, "the primary duty of a prosecutor is not to obtain convictions 

but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012). "A 
22 A-3484-18

prosecutor must 'conscientiously and ethically undertak[e] the difficult task of 

maintaining the precarious balance between promoting justice and achieving a 

conviction,' ensuring that at all times his or her 'remarks and actions [are] 

consistent with his or her duty to ensure that justice is achieved.'" State v. 

Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (quoting Williams, 

113 N.J. at 447-48). 

Even if the prosecutor exceeds the bounds of proper conduct, that finding 

does not end our inquiry "because, in order to justify reversal, the misconduct 

must have been 'so egregious that it deprived the defendant of a fair trial.'" State 

v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 

(1999)). "To justify reversal, the prosecutor's conduct must have been clearly 

and unmistakably improper, and must have substantially prejudiced defendant's 

fundamental right to have a jury fairly evaluate the merits of his defense." State 

v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted); 

see also State v. Nelson, 173 N.J. 417, 460 (2002). 

Having considered defendant's contentions in view of these principles, we 

conclude they lack sufficient merit to warrant discussion in a written opinion. 

R. 2:11-3(e)(2). We affirm substantially for the reasons set forth by the trial 
23 A-3484-18

judge in his well-reasoned oral decision denying defendant's motion for a new 

trial. 

V.

Defendant argues his sentence is excessive. In his counseled brief, he 

contends the trial judge improperly imposed consecutive sentences here, where 

most of the offenses constituted "a single, continuous episode." For the first 

time on appeal, defendant in his pro se brief argues the judge failed to: consider 

the impact of his "immaturity and youthful ignorance"; find mitigating factor 

eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would entail excessive hardship 

to defendant or his dependents); and sentence defendant one degree lower, 

ostensibly on the second-degree charges. For the reasons that follow, we remand 

for resentencing.

Citing defendant's criminal and juvenile record, the trial judge found 

aggravating factors three (the risk that defendant will commit another offense), 

six (the extent of defendant's prior criminal record and the seriousness of the 

offenses for which he has been convicted), and nine (the need for deterring 

defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3), (6), (9). 

The judge found no mitigating factors and that the "preponderance of 
24 A-3484-18

aggravating factors weigh[e]d in favor of a custodial term toward the higher end 

of the [sentencing] range."

The judge then ordered the appropriate merger on count two of Indictment 

No. 18-11-3569, and imposed sentence as follows:

• Burglary (count one): ten years' imprisonment, with an 

eight-year-and-six-month period of parole ineligibility 

under the No Early Release Act, N.J.S.A. 2C:43-7.2; 

• Unlawful possession of a weapon (count two): eight 

years' imprisonment, with a forty-two-month period of 

parole ineligibility under the Graves Act, N.J.S.A. 

2C:43-6(c), concurrently to count one; 

• Aggravated assault (count four): eighteen months' 

imprisonment, with an eighteen-month parole 

disqualifier under the Graves Act, consecutively to 

count one;

• Terroristic threats (count five): five years' 

imprisonment, consecutively to count four;

• Endangering the welfare of a child (count twelve): 

eight years' imprisonment, consecutively to count five;

• Endangering the welfare of a child (count thirteen): 

eight years' imprisonment, concurrently to count 

twelve; 

• Possession of a defaced weapon (count fourteen): 

eighteen months' imprisonment, consecutively to count 

twelve. 
25 A-3484-18

• Witness tampering (count fifteen): five years' 

imprisonment, consecutively to count fourteen; 

• Witness tampering (count sixteen): five years' 

imprisonment, consecutively to count fifteen; 

• Witness tampering (count seventeen): five years 

imprisonment, concurrently to count sixteen; and 

• Witness tampering (count nineteen): five years' 

imprisonment, concurrently to count sixteen. 

The judge also imposed a five-year term of imprisonment, with a five-year 

period of parole ineligibility on the sole count of Indictment No. 18-02-0682, 

consecutively to Indictment No. 18-11-3569, for an aggregate sentence of fortyone years with a fifteen-year period of parole ineligibility. 

We apply "a deferential standard" in reviewing a trial court's sentencing 

determination. State v. Fuentes, 217 N.J. 57, 70 (2014); see also State v. 

Trindad, 241 N.J. 425, 453 (2020). We do not "substitute [our] judgment" for 

that of the sentencing court. State v. Case, 220 N.J. 49, 65 (2014). Ordinarily, 

we will not disturb a sentence that is not manifestly excessive or unduly 

punitive, does not constitute an abuse of discretion, and does not shock the 

judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989). However, 

our deference "applies only if the trial judge follows the Code and the basic 

precepts that channel sentencing discretion." Case, 220 N.J. at 65. 
26 A-3484-18

As a general matter, absent exceptions that do not apply here "[w]hen 

multiple sentences of imprisonment are imposed on a defendant for more than 

one offense . . . such multiple sentences shall run concurrently or consecutively 

as the court determines at the time of sentence." N.J.S.A. 2C:44-5. "A 

sentencing court must explain its decision to impose concurrent or consecutive 

sentences in a given case." State v. Cuff, 239 N.J. 321, 348 (2019). 

Because the statute does not include specific criteria for determining 

whether concurrent or consecutive sentences are warranted, in State v. 

Yarbough, 100 N.J. 627, 643-44 (1985), our Supreme Court set forth standards 

to govern sentencing courts discretion, directing:

(1) there can be no free crimes in a system for 

which the punishment shall fit the crime;

(2) reasons for imposing either a consecutive or 

concurrent sentence should be separately stated in the 

sentencing decision;

(3) some reasons to be considered by the 

sentencing court should include facts relating to the 

crimes, including whether or not:

(a) the crimes and their objectives were 

predominantly independent of each other;

(b) the crimes involved separate acts of 

violence or threats of violence;
27 A-3484-18

(c) the crimes were committed at different 

times or separate places, rather than being 

committed so closely in time and place as to 

indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple 

victims;

(e) the convictions for which the sentences 

are to be imposed are numerous;

(4) there should be no double counting of 

aggravating factors; [and]

(5) successive terms for the same offense should 

not ordinarily be equal to the punishment for the first 

offense.

[Ibid.]

The Yarbough Court also had added a sixth factor, that "there should be 

an overall outer limit on the cumulation of consecutive sentences for multiple 

offenses," id. at 644, but the Legislature abrogated that aspect of Yarbough by 

amending N.J.S.A. 2C:44-5(a) to specifically provide "[t]here shall be no overall 

outer limit on the cumulation of consecutive sentences for multiple offenses." 

L. 1993, c. 223, § 1.

Like the statutory aggravating and mitigating factors, "[t]he Yarbough

factors are qualitative, not quantitative," and "applying them involves more than 

merely counting the factors favoring each alternative outcome." Cuff, 239 N.J. 
28 A-3484-18

at 348. Instead, the sentencing court must consider all the Yarbough guidelines, 

with emphasis on the five subparts of the third guideline. State v. Rogers, 124 

N.J. 113, 121 (1991). In applying the factors, "[t]he focus should be on the 

fairness of the overall sentence, and the sentencing court should set forth in 

detail its reasons for concluding that a particular sentence is warranted." State 

v. Miller, 108 N.J. 112, 122 (1987). 

Indeed, while this appeal was pending, our Supreme Court issued its 

opinion in State v. Torres, 246 N.J. 246 (2021), and again addressed the 

standards for imposing consecutive sentences. The Court stated that Yarbough

requires the trial court to place on the record a statement of reasons for imposing 

consecutive sentences, which should address the overall fairness of the sentence. 

Id. at 267-68 (citing Miller, 108 N.J. at 122). The Court held that "[a]n explicit 

statement, explaining the overall fairness of a sentence imposed on a defendant 

for multiple offenses in a single proceeding or in multiple sentencing 

proceedings, is essential to a proper Yarbough sentencing assessment." Id. at

268 (citing Miller, 108 N.J. at 122). 

A sentencing court must explain its decision to impose concurrent or 

consecutive sentences "for adequate appellate review." Miller, 108 N.J. at 122. 

If the court "fails to give proper reasons for imposing consecutive sentences at 
29 A-3484-18

a single sentencing proceeding, ordinarily a remand should be required for 

resentencing." State v. Carey, 168 N.J. 413, 424 (2001).

Here, the trial judge imposed seven consecutive sentences. Defendant 

challenges all but the consecutive sentence imposed on his certain persons 

conviction. He also concedes N.J.S.A. 2C:28-5(e) required the witness 

tampering sentence to run consecutively to the robbery sentence, but argues 

there was no basis to run both witness tampering sentences consecutive to each 

other.

In imposing consecutive sentences, the judge generally recited the 

Yarbough factors, but summarily found: aggravated assault was "a separate and 

distinct act by this defendant against the victim"; terroristic threats was a 

"separate act" and a concurrent term would otherwise reward defendant with "a 

free crime"; and possession of a defaced firearm was "a separate and distinct 

crime from . . . all the others." Turning to the consecutive sentence imposed on 

the child endangerment conviction in count twelve, the judge alluded to 

Yarbough factors (3)(b) and (d), finding: 

Here it was (indiscernible) victim. While the defendant 

says he would not harm his children, he waved around 

a handgun. He has threatened, he pointed a handgun at 

A[my] and D[ina]. He had threatened to kill her [sic] 

and he did this in front of the child. A consecutive term 

is appropriate here.
30 A-3484-18

With regard to the witness tampering convictions, the judge found 

defendant's letter to Amy referenced in count fifteen, was sent "on a different 

day, a different time. It was a different objective, that is to try to persuade the 

main victim not to proceed in this case." Conversely, count sixteen pertained to 

"one of the phone calls that . . . defendant made to the primary victim in this 

case." The judge found this offense was "separate and distinct [from] the other 

counts. It was on a different time and different day. And there is a strong public 

interest . . . to deter witness tampering." 

We are not convinced the trial judge conducted the proper analysis 

required under Yarbough for all but the witness tampering sentences. Absent

from the judge's analysis on the other consecutive sentences is a consideration 

of all the Yarbough guidelines, including the five subparts of the third guideline. 

Rogers, 124 N.J. at 121. On remand, the trial judge shall undertake the requisite 

analysis and provide a statement of reasons "explaining the overall fairness of 

[the] sentence imposed" as required by Torres. 246 N.J. at 268. This is 

especially significant here because in his oral pronouncement at sentencing, the 

judge stated he was imposing a cumulative sentence of thirty-four and one-half 

years with fifteen years of parole ineligibility, when our independent review of 

the prison terms imposed on the various counts in contrast reveals that the judge 
31 A-3484-18

sentenced defendant to an aggregate sentence of forty-one years with fifteen 

years of parole ineligibility. 

Accordingly, it is unclear from the record whether the judge misspoke or 

whether he intended to cap defendant's "total sentence" at thirty-four and onehalf years with a fifteen-year parole disqualifier. See State v. Abril, 444 N.J. 

Super. 553, 564 (App. Div. 2016) (holding that "[i]n the event of a discrepancy 

between the court's oral pronouncement of sentence and the sentence described 

in the judgment of conviction, the sentencing transcript controls and a corrective 

judgment is to be entered"). On remand, the judge's total sentence shall 

accurately reflect the aggregate sentence imposed.

We turn briefly to defendant's pro se argument that the court did not give 

sufficient weight to his young age. At the time of defendant's sentencing on 

March 29, 2019, defendant's youth was not among the mitigating factors that the 

court was required by statute to consider. Effective, October 19, 2020, the 

Legislature enacted mitigating factor fourteen, N.J.S.A. 2C:44-1(b)(14) ("[t]he 

defendant was under 26 years of age at the time of the commission of the 

offense"). L. 2020, c. 110, § 1. Nonetheless, the judge acknowledged 

defendant's age, noting he was "a very young man." 
32 A-3484-18

We have considered the additional arguments presented by defendant in 

his pro se supplemental brief. We are convinced these arguments lack sufficient 

merit to warrant discussion. R. 2:11-3(e)(2).

Affirmed in part; reversed and remanded for resentencing in conformity 

with this opinion. We do not retain jurisdiction.