SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 4791
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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 Super ior 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 D efender, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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, 20172 A - 4791
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PER CURIAM A grand jur y indicted defendant for first
- degree attempted murder, N.J.S.A. 2C:5
- 1 and N.J.S.A. 2C:11
- 3 (count one); first
degree 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) ; fourt h
- 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) (co unt eight) . The charges stemmed from defendant's involvement in the armed robbery an d brutal attack of his biological father, with
who m 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. T he 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 pa role ineligibility pursuant to the No Early Release Act (NERA) , N.J.S.A.3 A - 4791
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2C:43
- 7.2 , concurrent to a five
- year sentence on count three . Th e 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. D efendant's aggregate sentence is fiftee n 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 WOU LD 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
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erred at sentencing by failing to find a certain mitigating factor. For the following reasons, we affirm defendant's conviction, but

reman d 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 w itnesses testified , including the State's expert witness . Jury d eliberation s 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 revi ew 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 adjourn ed to the next day.
Defendant's entire statement was replayed to the jury when
the trial resumed the next morning . Deliberations co ntinued 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 liability5 A - 4791
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be applied to each count in this case ?" In response, t he judge

r e - 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 li ability yesterday , the jury is at an impasse and it does not appea r 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 ev idence 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 n ot partisans. You are judges, judges of the fac ts. The judge added:

With that, each juror is directed to go back to the jury room. You will start your deliberations

– continue with your6 A - 4791
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You have taken an oath an d 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 decla red a mis trial 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 d eliberations 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 serve d t o effectively coerce
them into returning a hasty verdict. We disagree. A trial court has discreti on 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 , 1907 A - 4791
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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
h ave 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 tri al must be sufficient to raise ' a reasonable doubt . . . as t o 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. T he 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 inst ructions 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
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discretion when faced with a jury that has been unab le 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 wh ether 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 ins truction 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 exer cised 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 'dif ference 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
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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 reachi ng a unanimous verdict. T he jury di d 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 ti me it announced its impasse . Our Supreme Court determined that reading the Czachor charge wa s 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
afte r deliberating approximately thirteen hours after a two
- week trial). We are satisfied that t he judge properly exercised her discretion in response to the jury's communicati on of a n 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
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2C:44
- 1(b) (4) (" substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense " )
ba sed 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 evi dence 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 conspiracy11 A - 4791
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conviction should h ave merged with the robbery conviction under
N.J.S.A. 2C:1
- 8(a)(2), we remand for resentencing.
Def endant's conviction is affirmed and the matter is remanded for resentencing.