SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4791-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUSTIN C. ANGELINO,

Defendant-Appellant.

___________________________

Submitted September 14, 2017 – Decided

Before Judges Simonelli and Gooden Brown. 

On appeal from the Superior Court of New 

Jersey, Law Division, Camden County, 

Indictment No. 13-06-1855.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Michele E. Friedman, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Mary Eva Colalillo, Camden County Prosecutor, 

attorney for respondent (Patrick D. Isbill, 

Assistant Prosecutor, of counsel and on the 

brief).

Appellant filed a pro se supplemental brief.

NOT FOR PUBLICATION WITHOUT THE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.

October 18, 2017
2 A-4791-14T4

PER CURIAM 

A grand jury indicted defendant for first-degree attempted 

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); firstdegree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); second-degree 

conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(2) and N.J.S.A.

2C:15-1(a)(1) (count three); second-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated 

assault, N.J.S.A. 2C:12-1(b)(2) (count five); third-degree 

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(d) (count six); fourth-degree unlawful possession of a weapon, 

N.J.S.A. 2C:39-5(d) (count seven); and fourth-degree unlawful 

possession of an imitation firearm, N.J.S.A. 2C:39-4(e) (count 

eight). The charges stemmed from defendant's involvement in the 

armed robbery and brutal attack of his biological father, with 

whom he had recently reconnected.

The jury found defendant guilty of robbery (count two); 

conspiracy to commit robbery (count three); aggravated assault 

(counts four and five); and unlawful possession of a weapon (count 

eight). The jury found defendant not guilty on the remaining 

counts. The trial judge merged count four with count two and 

sentenced defendant on count two to a fifteen-year term of 

imprisonment subject to an eighty-five percent period of parole 

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.
3 A-4791-14T4

2C:43-7.2, concurrent to a five-year sentence on count three. The 

judge sentenced defendant on count five to a four-year term of 

imprisonment, consecutive to counts two and three. Lastly, the 

judge sentenced defendant on count eight to a fifteen-month term 

of imprisonment, concurrent to counts two, three, and five. 

The judge later modified defendant's sentence under count 

five to a three-year term of imprisonment, consecutive to counts 

two and three; and further modified the sentence whereby count 

five merged with count four. Defendant's aggregate sentence is

fifteen years subject to NERA.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT'S FAILURE TO DECLARE A 

MISTRIAL, OR AT A MINIMUM TO VOIR DIRE THE 

JURORS TO DETERMINE IF THEY WERE REASONABLY 

CERTAIN THAT FURTHER DELIBERATIONS WOULD BE 

UNPRODUCTIVE, DENIED THE DEFENDANT DUE PROCESS 

OF LAW AND A FAIR TRIAL. (Not Raised Below.) 

POINT II

THE DEFENDANT IS ENTITLED TO A NEW SENTENCING 

HEARING BECAUSE THE SENTENCE IS MANIFESTLY 

EXCESSIVE AND UNDULY PUNITIVE, AND THE 

SENTENCING COURT FAILED TO PROPERLY MERGE THE 

CONSPIRACY WITH THE UNDERLYING ROBBERY 

CONVICTION.

A. The Sentencing Court Erred in 

Failing to Find Mitigating 

Factor Four Based On 

[Defendant's] Disadvantaged 

Upbringing.
4 A-4791-14T4

B. The Conspiracy Conviction 

Must Be Merged With the 

Underlying Robbery.

In a pro se supplemental brief, defendant adds that the judge 

erred at sentencing by failing to find a certain mitigating factor. 

For the following reasons, we affirm defendant's conviction, but 

remand for resentencing.

I.

Because defendant does not challenge the evidence adduced at 

the trial, we need not recite the underlying facts in detail. We 

limit our review to the discrete issues raised in this appeal.

The trial spanned two weeks, involved eight charges, and 

eleven witnesses testified, including the State's expert witness. 

Jury deliberations commenced at 3:03 p.m. on October 7, 2014. At 

4:01 p.m., the jury sent a note requesting "a TV and DVD for the 

review of testimony." At 4:17 p.m., the jury specified they wanted 

a replay of part of defendant's recorded statement. The judge 

determined the entire statement had to be replayed, and adjourned 

to the next day. 

Defendant's entire statement was replayed to the jury when 

the trial resumed the next morning. Deliberations continued at 

11:06 a.m. At 12:57 p.m., the jury sent a note asking: "What is 

the definition of accomplice liability? Can accomplice liability 
5 A-4791-14T4

be applied to each count in this case?" In response, the judge 

re-read the accomplice liability charge to the jury, and then 

adjourned to the next day.

The jury had only deliberated for approximately four hours 

when, at 9:59 the next morning, it sent a note stating: "Even 

after hearing the definition of accomplice liability yesterday,

the jury is at an impasse and it does not appear that there is any 

possibility of coming to a unanimous decision." (Emphasis added).

In response, and without objection, the judge charged the jury in 

accordance with Model Jury Charge (Criminal), "Judge's Instruction 

on Further Jury Deliberations" (2013) as follows:

It is your duty, as jurors, to consult 

with one another to deliberate with a view to 

reaching an agreement if you can do so without 

violence to individual judgment. Each of you 

must decide the case for yourself, but do so 

only after an impartial consideration of the 

evidence with your fellow jurors. 

In the course of your deliberations do 

not hesitate to re-examine your own views and 

change your opinion if convinced it is 

erroneous, but do not surrender your honest 

conviction as to the weight or effect of the 

evidence solely because of the opinion of your 

fellow jurors or for the mere purpose of 

returning a verdict. You are not partisans. 

You are judges, judges of the facts.

The judge added:

With that, each juror is directed to go 

back to the jury room. You will start your 

deliberations – continue with your 
6 A-4791-14T4

deliberations. You have charges to be 

considered. You have not deliberated that 

long.

You have taken an oath and a duty to serve 

as this jury. Therefore, with the 

instructions that I have given you, I instruct 

you to go back to the jury room and to continue 

with your deliberations with the instructions 

I've given you. 

The jury returned to deliberate at 10:03 a.m., and reached a 

verdict nearly two hours later at 11:54 a.m. 

For the first time on appeal, defendant argues the judge 

should have declared a mistrial or, at a minimum, read Model Jury 

Charge (Criminal), "Judge's Inquiry When Jury Reports Inability 

To Reach Verdict" (2013):

You have indicated that your 

deliberations have reached an impasse. Do you 

feel that further deliberations will be 

beneficial or do you feel that you have 

reached a point at which further deliberations 

would be futile? Please return to the jury 

room to confer, and advise me of your decision 

in another note.

Defendant posits that failure to voir dire the jurors in open 

court as to whether or not it was reasonably certain that further 

deliberations would be unproductive served to effectively coerce 

them into returning a hasty verdict. We disagree.

A trial court has discretion to order a jury to continue 

deliberating after they have announced a deadlock, but cannot 

coerce a jury into reaching a verdict. State v. Figueroa, 190 
7 A-4791-14T4

N.J. 219, 240 (2007). When a defendant fails to object to an 

error regarding a jury charge, we review for plain error. 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.'" Ibid.

(quoting R. 2:10-2). "The mere possibility of an unjust result 

is not enough. To warrant reversal by this Court, 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.'" Ibid. (quoting State v. Jenkins, 178 N.J. 347, 

361, (2004)). We discern no abuse of discretion or plain error

here.

In State v. Czachor, 82 N.J. 392 (1980), our Supreme Court 

disapproved of the "Allen charge"

1 which was previously used with 

a deadlocked jury. The Court held the Allen charge was unduly 

coercive and did not "permit jurors to deliberate objectively, 

freely, and with an untrammeled mind." Id. at 402. Instead, the 

Court approved the recommendations of the American Bar Association

(ABA) on the issue and directed trial courts to "instruct jurors 

in accordance with the ABA Standards [Section] 5.4" in the initial 

general charge and repeat the instructions at the judge's 

 

1 Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.

528 (1896). 
8 A-4791-14T4

discretion when faced with a jury that has been unable to reach 

unanimous verdicts. Id. at 407. Accordingly, New Jersey's Model 

Criminal Charges now include the Czachor charge -- Model Jury 

Charge (Criminal), "Judge's Instruction on Further Jury 

Deliberations." State v. Ross, 218 N.J. 130, 144 (2014).

"The trial court's determination as to whether a Czachor

charge is warranted requires a careful analysis of the 

circumstances." Ibid. "When a jury communicates a deadlock, 

trial courts 'should be guided in the exercise of sound discretion 

by such factors as the length and complexity of trial and the 

quality and duration of the jury's deliberations.'" Ibid.

(quoting Czachor, supra, 82 N.J. at 407). "Consistent with the 

principle that a jury verdict must not be the product of coercion, 

appellate review of a trial court's supplemental instruction is 

'guided by a concern for the weighty role that the judge plays in 

the dynamics of the courtroom.'" Ibid. (quoting Figueroa, supra,

190 N.J. at 238). "The trial judge's discretion must be exercised 

in a manner that ensures 'a jury verdict free from untoward 

interference from any source, including the court.'" Id. at 145 

(quoting State v. Shomo, 129 N.J. 248, 257 (1992)). "When the 

'difference of opinion between members of the jury is clearly 

intractable . . . then the jury is deadlocked and a mistrial should 

be declared.'" Ibid. (quoting Figueroa, supra, 190 N.J. at 237).
9 A-4791-14T4

Here, the judge properly applied the principles articulated 

in Czachor. The jury did not state it was hopelessly deadlocked 

that would warrant declaring a mistrial. Instead, the jury

communicated it was at an impasse and that it did not "appear" 

there was any possibility of reaching a unanimous verdict. The 

jury did not indicate it was hopelessly deadlocked with "no 

reasonable probability of agreement." Czachor, supra, 82 N.J. at 

407. 

Further, this was a two-week trial with eleven witnesses, and 

the jury had only deliberated for approximately four hours at the 

time it announced its impasse. Our Supreme Court determined that 

reading the Czachor charge was appropriate where the jury had 

deliberated for over twice that amount of time after a trial of 

similar length. See Ross, supra, 218 N.J. at 138 (upholding the 

reading of a Czachor charge when the jury indicated a deadlock 

after deliberating approximately thirteen hours after a two-week 

trial). We are satisfied that the judge properly exercised her

discretion in response to the jury's communication of an impasse 

by providing a Czachor charge and directing the jury to resume 

deliberations.

II.

Defendant challenges his sentence as excessive. He argues

the judge erred in failing to find mitigating factor N.J.S.A.
10 A-4791-14T4

2C:44-1(b)(4) ("substantial grounds tending to excuse or justify 

the defendant's conduct, though failing to establish a defense")

based on his troubled upbringing in foster care as the result of 

his father "signing away" his parental rights. 

Our review of a sentence is limited. State v. Miller, 205 

N.J. 109, 127 (2011). We review a judge's sentencing decision 

under an abuse of discretion standard. State v. Fuentes, 217 N.J.

57, 70 (2014). As directed by the Court, we must determine 

whether: 

(1) the sentencing guidelines were violated;

(2) the aggravating and mitigating factors 

found by the sentencing court were not based 

upon competent and credible evidence in the 

record; or (3) 'the application of the 

guidelines to the facts of [the] case makes 

the sentence clearly unreasonable so as to 

shock the judicial conscience.' 

[Ibid. (alteration in original) (quoting 

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

We have considered defendant's argument in light of the record 

and applicable legal principles and conclude it is without 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2). We are satisfied the record amply supports the 

judge's findings on aggravating and mitigating factors. 

Defendant also argues, and the State concedes, that the judge 

should have merged the conspiracy conviction (count three) with 

the robbery conviction (count two). Because the conspiracy 
11 A-4791-14T4

conviction should have merged with the robbery conviction under 

N.J.S.A. 2C:1-8(a)(2), we remand for resentencing.

Defendant's conviction is affirmed and the matter is remanded 

for resentencing.