SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3706-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v. 

JOHN N. MAHONEY,

Defendant-Appellant.

__________________________________

Submitted May 8, 2018 – Decided

Before Judges Reisner, Hoffman and Gilson.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment No. 

08-06-0996.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Frank M. Gennaro, Designated 

Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor, 

attorney for respondent (Nancy A. Hulett, 

Assistant Prosecutor, of counsel and on the 

brief).

PER CURIAM

Defendant John N. Mahoney appeals from a March 15, 2016

judgment of conviction, after a jury found defendant guilty of

NOT FOR PUBLICATION WITHOUT THE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.

July 19, 2018
2 A-3706-15T3

aggravated manslaughter, N.J.S.A. 2C:11-4(a), possession of 

weapons for unlawful purposes, N.J.S.A. 2C:39-4(a), and hindering 

apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4). At 

sentencing, the trial judge imposed the following prison terms:

twenty-years, with an eighty-five percent period of parole 

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-

7.2, for aggravated manslaughter; a concurrent five years with 

three-years parole ineligibility for possession of a weapon; and 

a consecutive four years for hindering. 

Defendant presents the following arguments for our review:

POINT ONE

THE TRIAL COURT'S REPEATED ADMISSION OF OTHER 

CRIMES EVIDENCE WITHOUT CONDUCTING A HEARING 

PURSUANT TO N.J.R.E. 104 AND WITHOUT THE 

NECESSARY LIMITING INSTRUCTION DENIED 

DEFENDANT A FAIR TRIAL.

POINT TWO

THE JURY INSTRUCTION ON SELF-DEFENSE WAS 

PLAINLY ERRONEOUS AS IT LIMITED THE DEFENSE 

TO THE MURDER AND WEAPONS OFFENSES AND BECAUSE 

IT WRONGFULLY INSTRUCTED ON THE DUTY TO 

RETREAT. (PARTIALLY RAISED BELOW)

POINT THREE

EVIDENCE OF STATEMENTS FROM NON-WITNESSES WAS 

IMPROPERLY ADMITTED.
3 A-3706-15T3

POINT FOUR

DEFENDANT WAS PREJUDICED BY THE ADMISSION OF 

TESTIMONY BY THE STATE'S EXPERT WHICH WAS NOT 

CONTAINED IN HIS REPORT.

POINT FIVE

THE PROSECUTOR'S SUMMATION IMPROPERLY 

DENIGRATED THE DEFENSE EXPERT. (Not Raised 

Below)

POINT SIX

DEFENDANT'S TWENTY YEAR NO EARLY RELEASE 

SENTENCE WITH A CONSECUTIVE FOUR YEAR TERM FOR 

HINDERING CONSTITUTED AN EXCESSIVE SENTENCE.

We affirm defendant's conviction and sentence on the 

aggravated manslaughter and hindering counts, but remand for the 

trial court to vacate the sentence imposed on the unlawful 

possession of a weapon count, which the court merged. We first 

generally describe the facts surrounding the crimes, then address 

each of defendant's specific arguments, and their attendant facts, 

in turn.

I

On the morning of December 27, 2007, defendant called police 

and reported that an intruder shot him and his father in their 

home. When police arrived, they found defendant's father lying 

dead in a reclining chair in the living room, with his feet up and 

a blanket over him, and three gunshot wounds to the right side of 
4 A-3706-15T3

his head. While defendant sustained a gun-shot wound in the left 

arm, police observed a "muzzle-burn" on his skin.

After receiving medical treatment at a nearby hospital, 

defendant spoke to police, who described him as calm and relaxed. 

Notably, defendant never asked about his father. 

Police took defendant back to the police station to take a 

recorded statement. Defendant told police he went to dinner with 

a friend the previous evening, then played computer games and 

instant messaged another friend until about 7:00 a.m. At 

approximately 7:30 a.m., defendant heard gunshots, ran into the 

living room, struggled with the intruder, who shot him in the arm, 

then disarmed the intruder and fired at him as the intruder fled 

out the back door. 

While taking defendant's statement, the police learned of 

conflicting crime scene evidence and that defendant's gunshot 

wound appeared self-inflicted. They immediately read him his 

Miranda1 rights and began interrogating him. Defendant adhered to 

his story for more than three hours and told officers he and his 

father had a good relationship and his father never abused him. 

He denied accidentally shooting his father, as police suggested. 

Eventually, defendant admitted to having some problems with his 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
5 A-3706-15T3

father over football and school. He stated he had been thinking 

about killing his father for some time, but had abandoned the 

idea. 

As the interrogation continued, defendant told police he had 

gone into the kitchen while his father slept, picked up a gun he 

knew was loaded, and without realizing the safety was off, pulled 

the trigger, causing the gun to discharge into the hallway. His 

father woke up and defendant pointed the gun at him and shot him 

for "no reason." Then defendant said he shot his father because 

he yelled and it startled him. Defendant claimed he fired so 

quickly his father had no time to move after he opened his eyes 

and yelled out. Thereafter, he shot himself in an effort to cover 

up what he had done. 

Defendant then told police his father abused him and it was 

more than he "could live with." He claimed his father "went 

beserk" after the gun went off, and he thought, "I've got to get 

rid of him." The police arrested defendant and charged him with 

murder. After indictment and trial, the jury found him guilty of 

the lesser-included offense of aggravated manslaughter, along with 

illegal possession of a weapon and hindering. 

II

Defendant first contends he did not receive a fair trial 

because the trial court erred by allowing the State to admit prior 
6 A-3706-15T3

bad acts evidence on multiple occasions, without holding a hearing 

or providing the jury with a limiting instruction. We disagree.

"Appellate courts generally defer to trial court rulings on 

the admissibility of evidence of other crimes, unless those rulings 

constitute an abuse of discretion." State v. Erazo, 126 N.J. 112, 

131 (1991) (citation omitted). Where there has been no objection 

to the admission of inadmissible hearsay testimony, an appellate 

court must consider whether the error was "clearly capable of 

producing an unjust result." R. 2:10-2; State v. Branch, 182 N.J. 

338, 353 (2005).

Pursuant to N.J.R.E. 404(b), "[e]xcept as otherwise provided 

by [N.J.R.E.] 608(b), evidence of other crimes, wrongs, or acts 

is not admissible to prove the disposition of a person in order 

to show that such person acted in conformity therewith." However, 

"[s]uch evidence may be admitted for other purposes, such as proof 

of motive, opportunity, intent, preparation, plan, knowledge, 

identity or absence of mistake or accident when such matters are 

relevant to a material issue in dispute." N.J.R.E. 404(b). "The 

underlying danger of admitting other-crime evidence is that the 

jury may convict the defendant because he is 'a "bad" person in 

general.'" State v. Cofield, 127 N.J. 328, 336 (1992) (quoting 

State v. Gibbons, 105 N.J. 67, 77 (1987)).
7 A-3706-15T3

A four-prong test guides the admissibility of evidence of 

other crimes or wrongs:

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

4. The probative value of the evidence must 

not be outweighed by its apparent prejudice.

[Id. at 338 (citation omitted).]

Here, the trial court allowed testimony regarding several 

prior bad acts including testimony about defendant being lazy, 

going to a strip club, soliciting the housekeeper and his father's 

girlfriend for sex, selling alcohol in high school, and breaking 

into an ATM. The court also permitted the State to cross-examine 

defendant regarding a statement that he kept a short list of people

he knew that he was not planning to murder. Finally, the court 

allowed a conversation between defendant and a friend, who was 

accused of theft, in which defendant told the friend he should 

plan ahead when committing theft so as not to get caught.

Defense counsel objected to some of that testimony, but not 

all. The State argued the testimony was admissible to rebut the 

claim that defendant was afraid of his father, that he did not 

have the characteristics of a battered child, that he was 
8 A-3706-15T3

financially-motivated to murder his father, or his willingness to 

devise a plan. In many of the objections, the court considered 

the relevancy, the probative versus prejudicial impact, and when 

the bad acts occurred. Defense counsel did not request any 

limiting instructions. 

We find the testimony regarding selling alcohol at school and 

planning to break into an ATM admissible under N.J.R.E. 404(b) as 

proof that defendant had a financial motive to kill his father. 

The testimony regarding the list of people and the conversation 

with the friend concerning how to plan a theft are also admissible 

under N.J.R.E. 404(b) as proof that defendant was planning his 

father's murder. 

The State contends it offered the testimony regarding 

defendant's laziness, going to a strip club, and solicitation of 

sex to rebut defendant's argument that he was afraid of his father. 

Although rebuttal of self-defense evidence is not explicitly 

listed in N.J.R.E. 404(b), the statute uses the language "such 

as," indicating evidence can be admitted for purposes other than 

those listed "when such matters are relevant to a material issue 

in dispute." Here, defendant argues he killed his father in selfdefense because he was afraid of him. Therefore, the State is 

entitled to admit evidence of specific acts showing defendant was 

not afraid of his father.
9 A-3706-15T3

Consideration of the Cofield factors supports admissibility 

as well. All of the acts are relevant to material issues, as 

previously noted. The evidence is clear and convincing as there 

are documented conversations and credible witnesses. All of the 

acts occurred not long before the killing; however, the acts are 

not particularly similar to the crime committed. Although the 

testimony likely had some prejudicial effect, the trial court did 

not clearly abuse its discretion in allowing the testimony.

Furthermore, defendant received a rather favorable verdict

considering defendant shot his father while he sat in a recliner 

with a blanket around him, strongly suggesting any error did not

produce an unjust result. Accordingly, we conclude the trial 

court did not abuse its discretion in admitting the evidence to 

rebut various aspects of the defense, and any error was harmless.

III

Defendant next contends the trial court committed plain error 

in its charge on self-defense. Specifically, defendant argues the 

jury charge should have explicitly stated self-defense was 

available for both murder and all lesser-included offenses. We 

disagree that these circumstances required such explicit 

instruction.

When a defendant fails to object to a jury charge, we review 

for plain error, and "disregard any alleged error 'unless it is 
10 A-3706-15T3

of such a nature as to have been clearly capable of producing an 

unjust result.'" State v. Funderburg, 225 N.J. 66, 79 (2016) 

(quoting R. 2:10-2). Plain error in jury charges is "[l]egal 

impropriety in the charge prejudicially affecting the substantial 

rights of 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. Camacho, 218 N.J. 533, 554 (2014) (alteration 

in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).

In reviewing any claim of error relating to a jury charge, 

"[t]he charge must be read as a whole in determining whether there 

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

State v. Jordan, 147 N.J. 409, 422 (1997)). In addition, "[t]he 

error must be considered in light of the entire charge and must 

be evaluated in light 'of the overall strength of the State's 

case.'" State v. Walker, 203 N.J. 73, 90 (2010) (quoting State 

v. Chapland, 187 N.J. 275, 289 (2006)). Furthermore, counsel's 

failure to object to jury instructions "gives rise to a presumption 

that he did not view [the charge] as prejudicial to his client's 

case." State v. McGraw, 129 N.J. 68, 80 (1992). 

Our Supreme Court "held that a person who acts in self-defense 

and 'kills in the honest and reasonable belief that the protection 
11 A-3706-15T3

of his [or her] own life requires the use of deadly force' cannot 

be convicted of murder, aggravated manslaughter, or manslaughter." 

State v. O'Neil, 219 N.J. 598, 601 (2014) (quoting State v. 

Rodriguez, 195 N.J. 165, 172 (2008)). "Where the evidence could 

support self-defense as the justification for a homicide, the 

trial court must tell the jury that self-defense is a complete 

defense to aggravated and reckless manslaughter as well as to 

murder." State v. Gentry, 439 N.J. Super. 57, 67 (App. Div. 2015) 

(citing Rodriguez, 195 N.J. at 174-75).

Here, defense counsel did not formally object to the jury 

instructions; however, he did raise a concern during a preliminary

charge conference that the jury may not understand that selfdefense applies to all charges except hindering. The trial court 

generally advised the jury that it had to acquit defendant if it 

found he acted in self-defense. Additionally, defense counsel 

made it clear in his summation that self-defense applied equally 

to the lesser-included offenses to murder. Furthermore, defendant 

did not have a viable self-defense claim as his father was unarmed 

and sitting in a recliner with a blanket tucked around him; 

therefore, Rodriguez did not require the trial court to inform the 

jury explicitly that self-defense applies to manslaughter as well 

as murder. Accordingly, we find no error in the jury instructions 

regarding self-defense.
12 A-3706-15T3

Defendant also argues the trial court erroneously instructed 

the jury on the requirement to retreat. Specifically, defendant 

claims the court incorrectly instructed the jury that defendant 

had a duty to retreat in his own home. We disagree.

According to N.J.S.A. 2C:3-4(b)(2), "[t]he use of deadly 

force is not justifiable . . . unless the actor reasonably believes 

that such force is necessary to protect himself [or herself]

against death or serious bodily harm . . . ." Furthermore, the 

use of deadly force is not justifiable if "[t]he actor knows that 

he [or she] can avoid the necessity of using such force with 

complete safety by retreating," except "[t]he actor is not obliged 

to retreat from his [or her] dwelling, unless he [or she] was the 

initial aggressor . . . ." N.J.S.A. 2C:3-4(b)(2)(b)(i).

Here, the court omitted from its charge the exception to the 

duty to retreat that defendant was "not obliged to retreat from 

his dwelling." Defense counsel failed to object. We find no 

plain error because defendant was the aggressor here, and 

therefore, had a duty to retreat even though he was in his own 

home. See N.J.S.A. 2C:3-4(b)(2)(b)(i). Again, defendant's father 

was unarmed and sitting in a recliner with a blanket around him 

at the time of the shooting, indicating he was not the aggressor. 

There was no threat of death or serious bodily injury at that 

moment, and therefore no need for defendant to protect himself 
13 A-3706-15T3

with deadly force. Accordingly, we reject defendant's argument 

that the trial court committed plain error in its jury charge 

regarding the duty to retreat.

IV

Defendant contends the trial court committed reversible error 

in admitting testimony from the investigator that he spoke to 

several unnamed persons during the investigation, all of whom told 

him they had no knowledge of defendant's father abusing him. 

Again, we disagree.

Our standard of review on evidentiary rulings is abuse of 

discretion. State v. Weaver, 219 N.J. 131, 149 (2014). We only 

reverse those "rulings that undermine confidence in the validity 

of the conviction or misapply the law . . . ." Ibid.

Consequently, we do "not substitute [our] own judgment for that 

of the trial court, unless 'the trial court's ruling is so wide 

of the mark that a manifest denial of justice resulted.'" State 

v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170 

N.J. 138, 147 (2001)).

First, defendant argues the investigator's testimony was 

inadmissible hearsay. N.J.R.E. 801(c) defines hearsay as "a 

statement, other than one made by the declarant while testifying 

at the trial or hearing, offered in evidence to prove the truth 

of the matter asserted." "[W]here statements are offered, not for 
14 A-3706-15T3

the truthfulness of their contents, but only to show that they 

were in fact made and that the listener took certain action as a 

result thereof, the statements are not deemed inadmissible 

hearsay." Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376 

(2007) (citation omitted). However, when the court admits such 

evidence, it should provide the jury with a limiting instruction 

regarding the proper use of the evidence. State v. Maristany, 133 

N.J. 299, 309-10 (1993). 

Second, defendant argues he was denied a fair trial because

he was denied the right to confront the witnesses against him. 

The Sixth Amendment to the United States Constitution provides 

that "[i]n all criminal prosecutions, the accused shall enjoy the 

right . . . to be confronted with the witnesses against 

him . . . ." U.S. Const. amend. VI. The text of our state 

constitution contains the same language. N.J. Const. art. I, ¶ 

10.

Here, the trial court allowed the investigator to testify as 

to what witnesses told him regarding whether defendant's father 

abused defendant. Defense counsel objected on hearsay grounds, 

and the State argued it elicited the testimony not for its truth, 

but rather to show why the investigation proceeded the way it did. 

Furthermore, the State later called several witnesses who 

testified they never saw defendant's father abuse defendant. The 
15 A-3706-15T3

trial court allowed the testimony; however, it failed to provide 

a limiting instruction to the jury. 

Although the investigator's statements may have been 

inadmissible and the court did not provide a limiting instruction, 

we find no prejudice to defendant in allowing them. The State 

later elicited the same testimony from witnesses, who defendant 

had the opportunity to confront. Accordingly, we find any error 

harmless.

V

Defendant contends he was denied a fair trial when the trial 

court permitted the State's expert to offer testimony on matters 

not addressed in his report. We are not persuaded.

"The admission or exclusion of expert testimony is committed 

to the sound discretion of the trial court." Townsend v. Pierre, 

221 N.J. 36, 52 (2015) (citing State v. Berry, 140 N.J. 280, 293 

(1995)). Specifically, "[t]rial judges have discretion to 

preclude an expert from testifying to opinions not contained in 

his or her report or in any other discovery material." Anderson 

v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 72 (App. Div. 

2010) (citing Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 

202 (App. Div. 1990)). We will only reverse the decision of the 

trial court for an abuse of that discretion. Townsend, 221 N.J.

at 53.
16 A-3706-15T3

Here, the testimony in question deals with a tape recording 

of an argument between defendant and his father allegedly showing 

abuse. Neither the defense expert nor the State's expert included 

the recording in their reports because a clear version of the 

recording was not initially available. First, the defense expert 

attempted to testify regarding the recording and the State 

objected. The court allowed the defense expert to testify that 

he listened to the tape, it assisted him in assessing defendant's 

credibility, and the content supported the defense's abuse theory.

Next, the State's expert began to testify regarding the 

recording. Defense counsel objected on the same grounds that he 

did not include the recording in his report. The court ruled the 

State could ask the expert about what he heard, but not ask him 

how the enhanced tape affected his opinion. The court then 

instructed the jury to strike the expert's prior testimony 

regarding the recording and not use it in deliberations. 

Subsequently, the State only asked the expert if he listened to 

the recording, and did not elicit any testimony regarding his 

opinion of the recording. 

The trial court precluded the State's expert from offering 

an opinion regarding the recording. Furthermore, the court allowed 

the defense expert to offer his opinion on the recording despite 
17 A-3706-15T3

not including it in his report. Accordingly, we reject defendant's 

contention he was denied a fair trial.

VI

Defendant contends he was denied a fair trial when the 

prosecutor improperly denigrated the defense expert. We disagree.

"[P]rosecutors in criminal cases are expected to make 

vigorous and forceful closing arguments to juries." State v. 

Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J. 

525, 559 (1995)). They are "afforded considerable leeway in 

closing arguments as long as their comments are reasonably related 

to the scope of the evidence presented." Ibid. (citations 

omitted). Prosecutors "may comment on facts in the record and 

draw reasonable inferences from them . . . ." State v. Lazo, 209 

N.J. 9, 29 (2012) (citing State v. Smith, 167 N.J. 158, 178

(2001)). However, "prosecutors should not make inaccurate legal 

or factual assertions during a trial . . . ." State v. Reddish, 

181 N.J. 553, 641 (2004) (quoting Smith, 167 N.J. at 178). Nor 

may prosecutors denigrate the defense. Lazo, 209 N.J. at 29 

(citing Frost, 158 N.J. at 86).

Here, in her summation, the prosecutor: (1) argued the defense 

expert was not qualified to give opinions on post-traumatic stress 

disorder because his background was largely in education; (2) 

repeated several times that the expert's opinions could not be 
18 A-3706-15T3

trusted because he was on a "mission" to make a finding consistent 

with the defense, and ignored all contradictory evidence; and (3) 

argued the evidence did not support the expert's conclusion that 

defendant suffered from post-traumatic stress disorder. Defense 

counsel made no objection to the prosecutor's summation. 

Defense counsel also made questionable remarks during his 

summation: (1) he mocked the State's expert's statement that he 

failed to see how a well-trained police officer would point a gun 

at anyone let alone his son, asking "[does] he read the papers?"; 

(2) he described as "ridiculous" and "preposterous" the expert's 

opinion that defendant's father had good intentions for defendant 

in pushing him to play football; (3) he asserted that, unlike the 

State's expert who was simply an "advocate" for the State, the 

defense expert was "painfully" honest and answered questions 

truthfully; (4) he disparaged as "ridiculous" the State's expert's 

statement that defendant had many friends; (5) he claimed the 

expert did not want to talk to defendant's mother because she 

might have said something that "wouldn't fit" with his theory that 

defendant had carried out a long-term plan; (6) he asserted the 

expert distorted the facts surrounding defendant's childhood; (7) 

he stated the expert argued with defense counsel; and (8) he asked 

"what planet does [the expert] live on?" 
19 A-3706-15T3

When viewed side-by-side, defense counsel delivered a far 

more inflammatory closing argument attacking the State's expert 

than the prosecutor's comments regarding the defense expert. 

Furthermore, the trial judge repeatedly instructed the jury that 

the attorney's remarks made in their summations were argument and 

not evidence. We trust the jury followed the court's instruction. 

See State v. Smith, 212 N.J. 365, 409 (2012). Accordingly, we 

reject defendant's contention he was denied a fair trial because 

of prosecutorial misconduct during the summation.

VII

Finally, defendant contends the trial court erred in imposing 

an excessively long sentence. We disagree. 

In reviewing a sentence on appeal, we assess the trial court's 

"sentencing determination under a deferential standard of review." 

State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 

214 N.J. 594, 606 (2013)). "We are 'bound to affirm a sentence, 

even if [we] would have arrived at a different result, as long as 

the trial court properly identifies and balances aggravating and 

mitigating factors that are supported by competent credible 

evidence in the record.'" Ibid. (alteration in original) (quoting 

Lawless, 214 N.J. at 606).

"In determining the appropriate sentence to impose within the 

range, judges first must identify any relevant aggravating and 
20 A-3706-15T3

mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that 

apply to the case." State v. Case, 220 N.J. 49, 64 (2014) (citing 

State v. Fuentes, 217 N.J. 57, 72 (2014)). "The finding of any 

factor must be supported by competent, credible evidence in the 

record." Ibid. (citing State v. Roth, 95 N.J. 334, 363 (1984)). 

Because "a defendant should be assessed as he stands before the 

court on the day of sentencing, . . . the sentencing court must 

consider a defendant's relevant post-offense conduct in weighing 

aggravating and mitigating factors." State v. Jaffe, 220 N.J. 

114, 116 (2014) (citing State v. Randolph, 210 N.J. 330 (2012)).

First, defendant contends the trial court improperly relied 

on recordings of conversations between defendant and his mother 

while defendant was in jail. The trial court permitted the 

prosecutor, over a defense objection, to play excerpts from those 

recordings, which the State alleged supported aggravating factor 

three (the risk of re-offense). In the recordings, defendant made 

various statements regarding gun violence, physical violence, and 

his disdain for rules. The State also submitted a "hit list" 

allegedly maintained by defendant and obtained from a prison 

informant. 

At sentencing the court found aggravating factor three (the 

risk of re-offense) applied. The court found the recordings 

supported aggravating factor three. However, the court also 
21 A-3706-15T3

considered "evidence that the defendant denied responsibility for 

the crime, has shown a lack of remorse until today . . . [and

has] issues with respect to his ability to control his anger [and] 

lying to protect himself." 

We find the trial court properly relied on the post-offense 

recordings in analyzing aggravating and mitigating factors. See

Jaffe, 220 N.J. at 116. The court also relied on other competent 

credible evidence; therefore, we affirm the finding of aggravating 

factor three.

Second, defendant contends the twenty-year sentence for 

manslaughter was excessive. The court went through each of the 

aggravating factors the State requested the court consider. The 

court then went through all of the mitigating factors defendant 

requested the court consider. In the end, the court found 

aggravating factors three and nine, and mitigating factors four 

and seven, and that the factors were in balance. Because the 

factors were in balance, the court imposed a mid-point sentence 

of twenty years. See Fuentes, 217 N.J. at 73 (quoting State v. 

Natale, 184 N.J. 458, 488 (2005)) ("[I]f the aggravating and 

mitigating factors are in equipoise, the midpoint will be an 

appropriate sentence."). Because "the trial court properly 

identifie[d] and balance[d] aggravating and mitigating factors 
22 A-3706-15T3

. . . supported by competent credible evidence," we affirm the 

twenty-year sentence for aggravated manslaughter. See Grate, 220 

N.J. at 337.

Third, defendant contends the hindering sentence should have 

run concurrent to the sentence for manslaughter. Our Supreme 

Court adopted the following "criteria as general sentencing 

guidelines for concurrent or consecutive-sentencing decisions":

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

for which the punishment shall fit the crime;

(2) the reasons for imposing either a 

consecutive or concurrent sentence shall 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 

predominately independent of each other;

(b) the crimes involved separate acts of 

violence or threats of violence;

(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;
23 A-3706-15T3

(5) successive terms for the same offense 

should not ordinarily be equal to the 

punishment for the first offense . . . .

[2]

[State v. Yarbough, 100 N.J. 627, 643-44 

(1985) (footnote omitted).]

Concurrent or consecutive sentences are at the discretion of 

the sentencing judge. Carey, 168 N.J. at 422 (citing N.J.S.A.

2C:44-5(a)). "When a sentencing court properly evaluates the 

Yarbough factors in light of the record, the court's decision will 

not normally be disturbed on appeal." State v. Miller, 205 N.J. 

109, 129 (2011).

Here, the trial court went through the factors listed under 

item three of the Yarbough factors. The court found the crimes 

of manslaughter and hindering had independent objectives, involved 

separate acts, and involved different victims, supporting a 

consecutive sentence; however, the fact that the crimes were 

committed at the same time and place supported a concurrent 

sentence. The court also considered the "principal that there 

should be no free crimes," and concluded the hindering sentence 

will run consecutive to the manslaughter. Because the trial court 

"evaluate[d] the Yarbough factors in light of the record," we will 

not disturb its ruling. See Miller, 205 N.J. at 129.

 

2 An amendment to the statute later superseded a sixth guideline.

State v. Carey, 168 N.J. 413, 423 n.1 (2001).
24 A-3706-15T3

We therefore affirm defendant's convictions and the sentences 

imposed, but remand for the trial court to vacate the sentence on 

the merged unlawful possession of a weapon count. We do not retain 

jurisdiction.

Affirmed in part, remanded in part.