RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1672-16T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN L. SHERIDAN,

Defendant-Appellant.

_______________________________

Submitted November 18, 2019 – Decided

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Indictment No. 16-02-

0130.

Joseph E. Krakora, Public Defender, attorney for 

appellant (James K. Smith, Jr., Assistant Deputy Public 

Defender, of counsel and on the briefs).

Scott A. Cofina, Burlington County Prosecutor, 

attorney for respondent (Jennifer Bentzel Paszkiewicz, 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

April 15, 2020
2

A-1672-16

Defendant Kevin L. Sheridan appeals from the Law Division's October 

28, 2016 judgment of conviction that was entered after a jury found him guilty 

of the third-degree offense of violating the conditions of Community 

Supervision for Life (CSL), N.J.S.A. 2C:43-6.4(d), and the trial court imposed 

a three-year sentence.1 On appeal, although not raised before the trial court, he 

challenges the court's jury instructions relating to the jury's obligation to return 

a unanimous verdict.2 We affirm.

Defendant was sentenced to CSL on October 25, 2000, after being 

convicted of Endangering the Welfare of a Child, N.J.S.A. 2C:24-4(a). On 

February 25, 2016, after defendant had relocated to the State of Maryland where 

he was being supervised under an inter-state compact, a New Jersey grand jury 

returned an indictment charging defendant with violating the conditions of his 

 

1 Originally, a violation was punishable as a fourth-degree crime. State v. Perez, 

220 N.J. 423, 441 (2015). The statute was later amended to increase the penalty 

by elevating it to a third-degree offense. State v. Hester, 233 N.J. 381, 388-89

(2018), reconsideration denied, 234 N.J. 109 (2018). However, the Court later 

concluded that the "enhanced . . . penal exposure [for] those [already] convicted 

of crimes" "violated . . . [the] Federal and State Constitutions." Id. at 388. 

2

 Defendant asserted a second argument directed toward his being charged with 

a third-degree offense in contravention of Perez and Hester. However, the trial 

court already resentenced defendant in the fourth-degree, removed him from 

PSL, and ordered him to continue with his CSL. His resentencing renders his

second contention on appeal moot and therefore, we need not consider that 

argument. See State v. Davila, 443 N.J. Super. 577, 584 (App. Div. 2016).
3

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CSL "on diverse [dates] between . . . February 27, 2013 through October 5, 

2015." According to the indictment, defendant violated the conditions of his 

CSL

[b]y failing to comp[l]y with pol[y]graph testing on 

several occasions[,] [b]y failing to report to the 

assigned parole officer as instructed[,] [b]y failing to 

obey all laws and ordinances[, and] [b]y failing to 

refrain from using any computer or device to create any 

social networking profile or to access any social 

networking service or chatroom. 

Defendant was tried before a jury in July 2016. Two New Jersey Parole 

Officers and a Maryland Probation Agent testified to defendant's violations of 

CSL. In addition, the trial court, by order dated July 20, 2016, took judicial

notice of and admitted into evidence defendant's 2014 and 2015 Maryland 

convictions for failure to register as a sex offender. Defendant also testified in 

an attempt to explain his alleged violations and his lack of understanding as to 

the conditions of his CSL.

After the parties' rested, the trial court conducted a charge hearing at 

which neither party asserted any objection to the court's proposed instructions. 

However, defendant later inquired of the trial court whether "all jurors have to 

vote the same or is it a balanced scale type [of] thing?" The trial court responded

by stating that the jurors must be unanimous. 
4

A-1672-16

Turning to the verdict sheet, the court noted that it had two versions, one 

with "an itemized list of each alleged violation" and another one without the list 

that was more of a "narrative." The court indicated it had decided to use the 

latter version because "it mirror[ed] the indictment exactly." 

In response, the prosecutor indicated she had no objection as "the State 

[could] prove any one of those violations in order to find [defendant] guilty. " 

Defense counsel took the position that the verdict sheet selected by the trial court 

would mislead the jurors into thinking they had to find that defendant committed 

any of the alleged violations instead of unanimously finding he committed all of 

the violations as charged in the indictment, which used "violations" instead of 

the singular of that word. 

When the trial court would not change the verdict sheet, defense counsel 

asked "in our closing argument if I wanted to address this, how would I address

this or am I forced to just leave it out?" The trial court responded by stating the 

following:

If the jury comes back and asks, do we have to find a 

violation or do we have to return a guilty verdict on all 

of the alleged violations or what if we find that he only 

violated one, is that still a guilty verdict? I can't tell 

you exactly what they're going to ask but if they ask 

something similar to that or something close to that, I'm 

going to answer them that they need only find that there 
5

A-1672-16

was a violation of one allegation for there to be a guilty 

verdict.

The trial court concluded the discussion by stating it would follow the model 

jury charge, which "contemplates that a violation of one condition is subject to 

indictment and, therefore, subject to a finding of guilty or not guilty." 

Following the parties' closing arguments, the trial court instructed the jury 

with the contents of the indictment and added the following:

3

The statute on which this charge is based provides that 

an actor is guilty of the offense of violation of a 

condition of [CSL] if without good cause he knowingly 

violates a condition of a special sentence of [CSL]

which had been imposed on him.

In order for you to find the defendant guilty of violating 

a condition of a special sentence of [CSL], you must 

find that the State has proven beyond a reasonable 

doubt the following elements:

One, that the defendant was subject to conditions 

imposed upon him by a special sentence of [CSL] as 

imposed by law.

Two, that the defendant knowingly violated a condition 

imposed on him as a result of a special sentence of 

[CSL].

And, three, that the defendant did not have good cause 

to violate the alleged condition.

 

3 The verdict sheet presented to the jury mirrored the four alleged violations. 
6

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The first element that the State must prove beyond a 

reasonable doubt is that the defendant was subject to 

conditions imposed upon him by a special sentence of 

[CSL] as imposed by law. 

The second element that the State must prove beyond a 

reasonable doubt is that the defendant knowingly 

violated a condition imposed on him as a result of a 

special sentence as imposed by law. 

A person acts knowingly with respect to the nature of 

his conduct or the attendant circumstances if he is 

aware that the conduct is of that nature or that such 

circumstances exist or the person is aware of a high 

probability of their existence. A person acts knowingly 

with respect to a result of the conduct if he is aware that 

it is practically certain that the conduct will cause a 

result. Knowing, with knowledge, or equivalent terms 

have the same meaning. 

Knowledge is a condition of the mind. It cannot be 

seen. It can only be determined by inference from 

defendant's conduct, words, or acts. A state of mind is 

rarely susceptible of direct proof but must ordinarily be 

inferred from the facts. Therefore, it is not necessary 

that the State produce witnesses to testify that an 

accused said that he had a certain state of mind when 

he did a particular thing. It is within your power to find 

that such proof has been furnished beyond a reasonable 

doubt by inferences which may arise from the nature of 

his acts and conduct and from all he said and did at the 

particular time and place and from all surrounding 

circumstances established by the evidence. 

A condition imposed on a defendant by the special 

sentence of community supervision for life include a 

requirement that the defendant obey all laws and 

ordinances and any other requirement imposed by the 
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A-1672-16

Division of Parole of the State Parole Board appropriate 

to protect the public and to foster rehabilitation which 

may include the following conditions that the defendant 

report to the assigned parole officer as instructed, 

submit to a polygraph examination ordered to be 

administered pursuant to [N.J.S.A.] 30:4-123.88, 

refrain from using any computer or device to create any 

social networking profile or to access any social 

networking service or chat room in the defendant's 

name or any other name for any reason unless expressly 

authorized by the district community supervisor. 

The third element the State must prove beyond a 

reasonable doubt is that the defendant did not have 

good cause for the violation. Good cause is defined as 

a substantial reason that affords a legal excuse for the 

failure to abide by the condition. If you find that the 

State has failed to prove any of these elements of the 

offense beyond a reasonable doubt, then you must find 

the defendant not guilty. 

If you find that the State has proved each and every 

element of the offense beyond a reasonable doubt, then 

you must find the defendant guilty.4

[(Emphasis added).]

In discussing the elements of the crime, the trial court also indicated that 

the State was only required to prove that defendant violated one of his CSL 

conditions. In the concluding portion of its instructions, the trial court stated 

 

4

 The instruction followed the Model Jury Charges (Criminal), "Violation of a 

Condition of Parole Supervision for Life Fourth Degree (N.J.S.A. 2C:43-6.4(d)) 

(For offenses occurring on or after January 14, 2004)" (approved Jan. 13, 2014).
8

A-1672-16

"[t]he verdict must represent the considered judgment of each juror and must be 

unanimous. This means all of you must agree if defendant is guilty or not guilty 

on the charge." The court then reiterated the need for a unanimous verdict by 

stating the following:

You may return on the crime charged a verdict of either 

not guilty or guilty. Your verdict, whatever it may be 

as to the crime charged, must be unanimous. Each of 

the [twelve] members of the deliberating jury must 

agree as to the verdict.

At the conclusion of the court's charge, neither party raised any objection to the 

court's instructions.

After deliberations began, the jury sent out a note asking "[a]re we ruling 

on all four provisions on the verdict sheet or just one." The trial court answered

the question by telling the jurors they were "to consider all four. To return a 

guilty verdict, it need not be on all four, it may be on just one, two, three, or all 

four." Afterward, the foreperson responded that the judge's clarification was 

helpful, the jurors resumed their deliberations, and on the next day, July 28, 

2016, they found defendant guilty. The court polled the jurors and each 

confirmed that "the verdict reported by [the] foreperson [was their] verdict." 

The trial court later sentenced defendant. This appeal followed. 

On appeal, defendant presents us with the following argument:
9

A-1672-16

POINT I

THE DEFENDANT WAS DEPRIVED OF HIS 

CONSTITUTIONAL RIGHT TO A UNANIMOUS 

JURY VERDICT WHEN THE COURT ALLOWED 

THE JURORS TO FIND HIM GUILTY ON ONE OF 

FOUR POSSIBLE THEORIES, BUT FAILED TO 

INSTRUCT THE JURORS THAT THEY HAD TO BE 

UNANIMOUS ON AT LEAST ONE OF THOSE 

THEORIES. (NOT RAISED BELOW).

. . . .

B. THE JUDGE'S INSTRUCTIONS ALLOWED 

THE JURY TO RETURN A GUILTY VERDICT 

EVEN IF THE JURORS COULD NOT RETURN A 

UNANIMOUS VERDICT ON ANY OF THE FOUR 

ALLEGED VIOLATIONS.

. . . . 

Where, as here, defendant did not raise a challenge to the trial court's jury 

charge at trial, we review his claim on appeal for plain error. R. 2:10-2. To 

warrant reversal under the plain error standard, "an error at trial must be 

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

a result it otherwise might not have reached.'" State v. Funderburg, 225 N.J. 66, 

79 (2016) (alteration in original) (quoting State v. Jenkins, 178 N.J. 347, 361 

(2004)). 

When analyzing a jury instruction, "plain error requires demonstration of 

'legal impropriety in the charge prejudicially affecting the substantial rights of 
10 A-1672-16

the defendant and 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. Chapland, 187 N.J. 275, 289 (2006)

(quoting State v. Hock, 54 N.J. 526, 538 (1969)). We "must not look at portions 

of the charge alleged to be erroneous in isolation; rather, 'the charge should be 

examined as a whole to determine its overall effect,' and 'whether the challenged 

language was misleading or ambiguous.'" State v. McKinney, 223 N.J. 475, 494 

(2015) (first quoting State v. Jordan, 147 N.J. 409, 422 (1997); and then quoting 

State v. Nelson, 173 N.J. 417, 447 (2002)).

With those guiding principles in mind, we turn to defendant's contention

that the trial court committed plain error by failing to properly instruct the jurors 

that they were required to come to a unanimous decision as to at least one of the 

violations of defendant's CSL. According to defendant, given the trial court's 

unanimity instruction, there was no way to determine whether the jury was 

unanimous on any one of the alleged violations. We disagree. 

"Ordinarily, a general instruction on the requirement of unanimity suffices 

to instruct the jury that it must be unanimous on whatever specifications it finds 

to be the predicate of a guilty verdict." State v. Parker, 124 N.J. 628, 641 (1991). 

"The fundamental issue is whether a more specific instruction [is] required in 
11 A-1672-16

order to avert the possibility of a fragmented verdict." State v. Frisby, 174 N.J. 

583, 598 (2002). 

A fragmented verdict typically results when "it appears that a genuine 

possibility of jury confusion exists or that a conviction may occur as a result of 

different jurors concluding that a defendant committed conceptually distinct 

acts." Parker, 124 N.J. at 641. Moreover, we consider "whether the allegations 

in the [charge] were contradictory or only marginally related to each other and 

whether there was any tangible indication of jury confusion." Id. at 639; see 

also State v. Gandhi, 201 N.J. 161, 193 (2010) (stating that "[t]he core question 

is, in light of the allegations made and the statute charged, whether the 

instructions as a whole [posed] a genuine risk that the jury [would be] confused"

(alterations in original) (quoting Parker, 124 N.J. at 638)). Allegations based on 

"different acts and entirely different evidence" warrant a specific unanimity 

charge. Frisby, 174 N.J. at 599. A "reviewing court should examine two factors: 

whether the acts alleged are conceptually similar or are 'contradictory or only 

marginally related to each other,' and whether there is a 'tangible indication of 

jury confusion.'" Gandhi, 201 N.J. at 193 (quoting Parker, 124 N.J. at 639).

"[I]n cases where there is a danger of a fragmented verdict the trial court 

must upon request offer a specific unanimity instruction." Frisby, 174 N.J. at 
12 A-1672-16

597-98 (emphasis added) (quoting Parker, 124 N.J. at 637). In the absence of 

such a request, we "must determine whether the absence of a specific unanimity 

charge 'was clearly capable of producing an unjust result.'" State v. Kane, 449 

N.J. Super. 119, 141 (App. Div. 2017) (quoting Frisby, 174 N.J. at 598).

We conclude that the trial court did not commit any error, let alone plain 

error, in its charge to the jury. Defendant never requested a specific unanimity 

charge and we find that the trial court's charge, taken as a whole, was not capable 

of allowing an injustice. First, the violations charged in the indictment and 

recited in the trial court's charge were conceptually similar. Defendant failed to 

abide by the conditions of CSL by failing to perform any one of the activities 

charged. Although they technically were "different acts," proof of defendant's 

violations did not require "entirely different evidence." Frisby, 174 N.J. at 599. 

All of these violations stemmed from defendant's inability to follow instructions, 

even though he acknowledged his conditions of CSL in 2004 and was reminded 

of those conditions on a regular monthly basis, as testified to by both the State's 

witnesses as well as defendant. The trial court correctly charged the jury that it 

must be unanimous as to defendant's violating any one condition.

Second, and contrary to defendant's contention that the jury's note 

demonstrated its confusion, we are satisfied that any initial confusion the jury 
13 A-1672-16

may have had about whether it had to reach a unanimous verdict on all four CSL

violations was remedied by the trial court's answer to the jury stating they had 

to consider all four, but they only needed to reach a unanimous verdict on at 

least one. While it is firmly established that "[w]hen a jury requests a 

clarification," the trial court "is obligated to clear the confusion," State v. 

Conway, 193 N.J. Super. 133, 157 (App. Div. 1984), and if the jury's question 

is ambiguous, the trial court must clarify the jury's inquiry by ascertaining the 

meaning of its request, State v. Graham, 285 N.J. Super. 337, 342 (App. Div.

1995), we conclude the trial court here satisfied its obligation to respond to the 

jury, as confirmed by the jury's foreperson and by the fact that no further 

clarification was requested.

The trial court delivered to the jury the model jury instructions as to the 

offense and the need for unanimity. "We presume the jury followed the court's 

instructions." State v. Patterson, 435 N.J. Super. 498, 511 (App. Div. 2014) 

(quoting State v. Smith, 212 N.J. 365, 409 (2012)). The jury charge and the 

court's response to the jury's question, taken as a whole, did not prejudice 

defendant or confuse the jury. State v. Savage, 172 N.J. 374, 387 (2002).

Affirmed.