SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2396-15T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELLI D. HENNESSEY,

Defendant-Appellant.

_________________________________

Argued September 12, 2018 – Decided

Before Judges Messano and Rose.

On appeal from Superior Court of New Jersey, Law 

Division, Gloucester County, Indictment Nos. 07-10-

1023 and 12-10-1034.

John Douard, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; John Douard, of counsel and 

on the brief).

Douglas B. Pagenkopf, Assistant Prosecutor, argued 

the cause for respondent (Charles A. Fiore, Gloucester 

County Prosecutor, attorney; Douglas B. Pagenkopf, of 

counsel and on the 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NOT FOR PUBLICATION WITHOUT THE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.

September 26, 2018
2

A-2396-15T3

PER CURIAM

A jury convicted defendant Kelli D. Hennessey of second-degree assault 

by auto, N.J.S.A. 2C:12-1(c)(3)(a) (recklessly causing serious bodily injury 

while operating a vehicle in violation of N.J.S.A. 39:4-50 within 1000 feet of 

school property) (count one), and two counts of third-degree assault by auto, 

N.J.S.A. 2C:12-1(c)(3)(a) (recklessly causing bodily injury under the same 

circumstances) (counts two and three). On the same evidence, the judge found 

defendant guilty of driving while intoxicated (DWI) within 1000 feet of school 

property, N.J.S.A. 39:4-50(g)(1). The judge imposed a seven-year term of 

imprisonment on count one, concurrent four-year terms of imprisonment on 

counts two and three, and a consecutive sentence of 180 days in the county jail, 

plus additional mandatory penalties, on the motor vehicle violation.

Defendant raises the following points on appeal:

POINT I

AN EMPTY ALCOHOL CONTAINER FOUND IN 

MS. HENNESSEY'S CAR CONSTITUTED 

INADMISSIBLE PROPENSITY EVIDENCE, IN 

VIOLATION OF N.J.R.E. 404B. MOREOVER, NO 

LIMITING INSTRUCTION WAS PROVIDED WITH 

RESPECT TO THE EMPTY CONTAINER.
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POINT II

OVER VEHEMENT OBJECTION, THE 

PROSECUTOR CROSS-EXAMINED DEFENDANT 

ON HER FAILURE TO TELL OFFICER JONES MR. 

LAWRENCE'S LAST NAME AFTER SHE WAS 

ARRESTED, AND HER REFUSAL TO TALK AFTER 

BEING ARRESTED, PREJUDICING DEFENDANT'S 

RIGHT TO A FAIR TRIAL. U.S. CONST. AMENDS 

V, XIV. 

POINT III

THE JUDGE'S INSTRUCTION FOR THE JURORS 

TO CONTINUE DELIBERATIONS, AFTER THEIR 

REPRESENTATION THAT THEY WERE UNABLE 

TO REACH A UNANIMOUS VERDICT BUT 

WITHOUT FURTHER INQUIRY ABOUT THE 

DEADLOCK, DEPRIVED DEFENDANT OF THE 

RIGHT TO DUE PROCESS OF LAW AND A FAIR 

TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. 

(1947) ART. 1, PARS. 1, 9, 10. 

POINT IV

THE TRIAL COURT ERRED BY NOT ISSUING A 

CLAWANS INSTRUCTION, AS REQUESTED BY 

DEFENSE COUNSEL, AFTER THE STATE FAILED 

TO CALL A CRUCIAL WITNESS, POLICE 

DETECTIVE MOAN, TO TESTIFY AT TRIAL. 

POINT V

THE TRIAL WAS SO INFECTED WITH ERROR 

THAT EVEN IF EACH INDIVIDUAL ERROR DOES 

NOT REQUIRE REVERSAL, THE AGGREGATE OF 

THE ERRORS DENIED DEFENDANT A FAIR 

TRIAL. (Not Raised Below).
4

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POINT VI

THE SEVEN-YEAR SENTENCE FOR THREE 

COUNTS OF ASSAULT BY AUTO, AND A 

CONSECUTIVE 180-DAY SENTENCE FOR 

DRIVING UNDER THE INFLUENCE IN A SCHOOL 

ZONE WAS MANIFESTLY EXCESSIVE.

Having considered these arguments in light of the record and applicable 

legal standards, we affirm.

I

We summarize some of the trial evidence to place defendant's arguments 

in some context. 

In the early morning hours of November 6, 2011, Glassboro Police Officer 

Mindy Knight responded to the scene of a car accident near a local WaWa 

convenience store. She saw a woman, J.H.,

1

covered in blood and lying on the 

ground in the middle of the road. Two other women, R.S. and J.R., were sitting 

on a nearby curb. Knight saw a white Taurus near the scene with damage to its 

hood, a large hole in the passenger-side windshield and a side-view mirror 

stripped off.

 

1

 We use initials to maintain the confidentiality of the victims. 
5

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All three women were sorority sisters at nearby Rowan University and had 

walked from the school to buy some food at a restaurant near the WaWa. As 

they walked along the side of the road, a car struck them from the rear. J.H. 

was the most seriously injured, suffering a broken collarbone, tibia, fibula, facial 

lacerations and a permanent injury to her hip. 

Emergency medical technicians and other police officers arrived at the 

scene, including Police Officer James Jones. Jones canvassed the area for 

witnesses, and saw defendant and one of the victims standing by the side of the 

road "hugging" and "crying." Both women said they did not see who was 

driving the car. Jones then located a New Jersey temporary registration tag in 

defendant's name in the Taurus. He also found a purse in the car with two 

driver's licenses in defendant's name.

As Jones spoke to other officers near the damaged car, defendant 

approached and admitted that she had been driving the vehicle. Defendant's 

eyes were bloodshot, her speech was slurred and Jones detected the odor of 

alcohol. Defendant confusedly claimed another car struck her car from behind 

and a third car might have been involved. Jones saw no evidence of damage to 

the rear of defendant's car, and no other vehicle at the scene. After defendant 

failed a series of field sobriety tests, Jones arrested her and transported her to 
6

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the police station. Defendant's blood alcohol content registered 0.13 on an 

Alcotest machine, well above the legal limit.

Defendant testified on her behalf and denied she was driving the car at the 

time of the accident, claiming a friend of her ex-husband, Robert "Robbie" 

Lawrence, was driving. Defendant admitted Lawrence was driving because she 

had been drinking. At some point in the evening, defendant called her exboyfriend and father of one of her children, Frankie Reim, and arranged to meet 

Reim at the WaWa to borrow some money. However, when Reim arrived, he 

and Lawrence began to argue and fight. Reim grabbed the keys to defendant's 

car, went inside the WaWa and gave the keys to a police officer in the store. 

According to defendant, the officer gave her a ride to the police station and 

another officer gave her a ride back to her ex-husband's home. 

Her ex-husband and Lawrence drove to the police station to retrieve her 

keys and returned. She let Lawrence drive her home in her car. Defendant fell 

asleep, only to be awoken by a loud bang. Lawrence pulled the car over into a 

parking lot and ran off, leaving defendant, the injured women and the damaged 

car behind. Defendant admitted telling police her name and that she owned the 

car, but not that she was driving.
7

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Reim testified that he saw defendant earlier in the evening when she 

borrowed money from him. Defendant was intoxicated and with another man 

who was driving defendant's car. Defendant left after a short visit and called 

Reim a bit later, around 8:30 or 9 p.m., and asked if Reim could pick her up at 

the WaWa. Reim said he drove there with a friend and observed defendant and 

this other man drive into the parking lot and almost strike a pole. According to 

Reim, both defendant and the driver were "trashed." Reim saw a police officer 

inside the WaWa, and, after getting into an argument with defendant and the 

driver, took the keys to defendant's car and gave them to the officer, telling him 

neither defendant nor her male friend should be driving.

Sergeant Gordon Muller of the Franklin Township Police Department also 

testified on defendant's behalf. He acknowledged giving defendant rides in the 

past but could not recall if he gave her one on the evening of November 5-6, 

2011.

II

We first deal with the alleged trial errors defendant raises in Points I, II, 

and IV.

Glassboro Police Detective Jack Manning, who was trained in accident 

investigation and reconstruction, testified that he visited the scene later in the 
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morning and examined defendant's Taurus at the police impound lot where it 

had been towed. The detective found three plastic "Appletini" 2containers, one 

in the rear of the passenger compartment on the driver's side, and two in a bag 

in the trunk. 

Defendant objected as the detective started to identify the containers, 

contending the evidence was irrelevant because there was no proof that 

defendant had recently consumed what was in the containers. The prosecutor 

noted that defendant was charged with crimes and motor vehicle offenses, 

including having an open alcoholic beverage container in the vehicle, N.J.S.A. 

39:4-51(b), which required proof of intoxication or proof the container was in 

the car. The judge overruled the objection.

At the end of its case, the State sought to introduce the containers into 

evidence. Defendant again objected, claiming there was no evidence that the 

containers actually contained alcohol. The judge agreed, ruling the detective

provided "no clear indication that [the containers] did contain alcohol," and 

ruled them inadmissible.

 

2

 Detective Manning identified this as "an alcoholic beverage."
9

A-2396-15T3

Before us, defendant argues Manning's testimony was inadmissible 

"propensity evidence," in violation of N.J.R.E. 404(b), and even if it were 

admissible, the judge failed to give any limiting instruction. We disagree.

Despite Manning's testimony that the Appletini containers contained 

alcoholic beverages and that one of them at least had some residue in it when 

found, the judge seemingly accepted that the State had to elicit more explicit 

testimony from Manning, e.g., he smelled the odor of alcohol, or tested the 

contents. However, evidence is relevant if it has "a tendency in reason to prove 

or disprove any fact of consequence to the determination of the action." N.J.R.E. 

401 (emphasis added). A person's consumption of alcohol while driving is itself 

a separate offense. N.J.S.A. 39:4-51(a). We have said, "[o]pen alcohol 

containers in the vehicle would have a tendency in reason to prove recent alcohol 

consumption . . . ." State v. Irelan, 375 N.J. Super. 100, 117 (App. Div. 2005). 

In our minds, Manning's testimony was clearly sufficient to permit the jury to 

infer that defendant had recently consumed alcohol.

"The threshold determination under Rule 404(b) is whether the evidence 

relates to 'other crimes,' and thus is subject to continued analysis under Rule

404(b), or whether it is evidence intrinsic to the charged crime, and thus need 

only satisfy the evidence rules relating to relevancy, most importantly Rule
10 A-2396-15T3

403." State v. Rose, 206 N.J. 141, 179 (2011). Evidence may be intrinsic to the 

charged crime in two ways. First, "evidence is intrinsic if it 'directly proves' the 

charged offense. . . . Second, 'uncharged acts performed contemporaneously 

with the charged crime may be termed intrinsic if they facilitate the commission 

of the charged crime.'" Id. at 180 (quoting United States v. Green, 617 F.3d 233, 

249 (3d Cir. 2010)). Here, the evidence that defendant had Appletini containers 

in her car, including one in the rear, driver's side of the passenger compartment, 

led to the permissible inference that she had recently consumed alcohol and, 

therefore, was evidence intrinsic to the charged crimes and offenses.

Defendant testified that she told a police officer at the scene of the 

accident "Robbie was driving," but never provided his last name. According to 

defendant, the officer and she argued because he did not believe her. She 

"stopped talking" when it appeared she was going to be arrested. Defendant 

testified that back at the station, the officer asked her no further questions about 

who was driving nor did he seek further information about "Robbie." On direct 

examination, defense counsel asked: 

Q. Since the time that this event happened back in 

November of 2011, has anyone from the 

Glassboro Police Department come back to you 

to try to get you to talk to them about what 

happened?
11 A-2396-15T3

A. No.

Q. Has any investigator from the County 

Prosecutor's Office ever contracted you to try to 

get information from you about the manner in 

which the [accident] happened or whether or not 

there was information you could provide about 

the person who was actually the driver?

A. No. 

On cross-examination, the prosecutor posed a series of questions, which 

we quote at length:

Q. Now, when the police arrived, I guess you told 

them that, hey, he got away? He's fleeing the 

scene? I guess that's what you said first thing, 

right?

A. I walked back over to my car, and that's when I 

saw the officer . . . .

Q. And the first thing you said to him was, hey, 

Robbie Lawrence was driving my car, go get him. 

He just ran toward [a nearby business]?3

A. That's not the first thing I said, no.

Q. When did you say that?

A. After I said my name, and that that was my 

vehicle.

 

3 There is an obvious error in the transcript that conflates the prosecutor's next 

question with defendant's previous answer.
12 A-2396-15T3

Q. And then you said to him, hey, Robbie Lawrence 

just went flying across the street? 

A. Well, I said . . . Robbie was driving.

. . . .

Q. And you gave the police an accurate description 

of what Robbie Lawrence looked like?

A. They didn't ask.

Q. And you didn't offer that?

A. I didn't.

Q. And you gave them -- I guess you told them what 

kind of clothing he was wearing?

A. They didn't ask, so --

Q. And you didn't tell them that, huh?

A. No.

Q. And you didn't tell them what kind of hair he had, 

what color it was, if he was bald, if he had a 

tattoo. . . .

A. They didn't ask.

Q. So you say, Robbie Lawrence was driving my 

car?

A. I said Robbie was driving my car.

Q. Oh, you didn't give them a last name?

A. No.
13 A-2396-15T3

. . . .

Q. And now, when you were doing the [field]

sobriety test, I guess at that point you were really 

clear in saying, Patrolman Jones, I wasn't driving. 

It was Robert Lawrence.

A. Well, I told him . . . I wasn't driving, and he said 

he was going to put me under arrest so I didn't 

say anything else.

Q. So you didn't even tell him the name of the person 

who was driving at that point?

A. He didn't believe me.

Q. Because you said, several times. Robert 

Lawrence, Robert Lawrence, Robbie Lawrence.

A. I said Robbie, not Robbie Lawrence.

Q. So you never gave him the name of the person 

who was driving, correct?

A. Correct.

Q. So I guess by the time you got back to the police 

station and were getting ready to do that 

Breathalyzer test, correct, you had to blow 

several times into that machine. And there was 

that whole [twenty-]minute period that Patrolman 

Jones was just sitting there observing you, 

correct?

A. Yes.

. . . .
14 A-2396-15T3

Q. And you were the only person in the room with 

Patrolman Jones at that time. And in that 

[twenty] minutes, you said to him, Patrolman 

Jones . . . it was Robbie Lawrence?

A. No, I didn't say anything.

Q. So you didn't tell him then either?

A. No.

Q. Now, once you get the handcuffs on, and you've 

been bail set [sic], at that point you said it, right?

A. I didn't say anything.

Defense counsel objected for the first time at this point. At sidebar, he 

asked for a curative instruction "that the jury cannot draw any negative inference 

from the fact that a defendant doesn't make a statement to a police officer." 

Although he reasoned there was "really nothing violative at this point," the judge 

decided to give the jury the following instructions:

[I]t should be clear . . . to all of you that the defendant's 

silence on an issue can never be held against them in 

regard to guilty or innocence. In other words, because 

a defendant chooses not to talk to the police . . . or 

disclose certain things . . . cannot be used as guilt or 

innocence in your determination.

. . . .

. . . to the extent questions went to, why didn't 

you tell the police after you were under arrest and 

sitting there that there was somebody else driving, you 
15 A-2396-15T3

need not take that into consideration. What happened 

before that is appropriate. It's your credibility 

determination whether [defendant] disclosed it or not 

disclosed it and . . . whether her not saying it was 

somebody else[] is even evidence of her guilt.

When the prosecutor started to cross-examine defendant about whether she ever 

told her father or friends that Robbie Lawrence was driving at the time of the 

accident, the judge sustained defendant's objection and forbade that line of 

questioning.

In Point II, defendant argues the prosecutor's cross-examination about 

defendant's pre- and post-arrest failure to provide more information about 

"Robbie" violated her constitutional right to remain silent. The State contends 

that this was proper cross-examination designed to impeach defendant's 

testimony on direct examination, and the judge sustained defendant's objections 

when the questions ventured astray and provided an appropriate curative 

instruction. We find no basis to reverse.

It is axiomatic that the State may not "impeach a defendant's exculpatory 

story, told for the first time at trial, by cross-examining the defendant about his 

failure to have told the story after receiving Miranda4 warnings at the time of 

his arrest." Doyle v. Ohio, 426 U.S. 610, 611 (1976). In State v. Muhammad, 

 

4

 Miranda v. Arizona, 384 U.S. 436 (1966).
16 A-2396-15T3

182 N.J. 551, 569 (2005), the Court held that "[o]ur state law privilege does not 

allow a prosecutor to use at trial a defendant's silence when that silence arises 

'at or near' the time of arrest, during official interrogation, or while in police 

custody." 

However, the Court has recognized that the prosecutor may highlight for 

the jury, through cross-examination or in summation, actual inconsistencies 

between pre-trial statements made to law enforcement and the defendant's trial 

testimony, State v. Tucker, 190 N.J. 183, 185 (2007), as well as trial testimony 

that is inconsistent with, or provides more information than, the defendant's 

prior statements to law enforcement after a waiver of rights. State v. Kucinski, 

227 N.J. 603, 623-24 (2017). 

Here, the prosecutor's cross-examination regarding defendant's statements 

to Officer Jones at the scene of the accident was proper. Id. at 621 (citing 

Tucker, 190 N.J. at 190). We agree that questions regarding defendant's postarrest failure to provide further information were improper. Muhammad, 182 

N.J. at 568. Under the peculiar facts of this case, however, the crossexamination does not require reversal. 

In State v. Jenkins, 299 N.J. Super. 61, 65 (App. Div. 1997), the defendant 

gave an exculpatory version of events during his direct examination at trial, 
17 A-2396-15T3

claiming responding officers never gave him a chance to explain, even though 

he tried. He testified that after his arrest, no member of the police department 

ever spoke to him or took a statement from him. Id. at 66. 

In summation, defense counsel argued that police never gave his client the 

opportunity to explain. Ibid. In his summation, the prosecutor argued that the 

defendant's testimony was incredible, because at no time after his arrest eight 

months earlier did he ever speak to the prosecutor's office or offer an exculpatory 

explanation for his conduct. Ibid. 

We concluded that the prosecutor's comments "ordinarily would be 

improper." Id. at 68. However, in "explaining his post-arrest silence," the 

"defendant necessarily raised the issue . . . ." Ibid. As a result, "the prosecutor 

had a right, if not a duty, in the presentation of the State's case to comment on 

defendant's post-arrest silence and to offer the State's version as to why 

defendant was silent." Id. at 69.5

Here, defendant testified specifically about the failure on the part of police 

to question her further about "Robbie" after her arrest, implying police could 

have sought additional information but chose not to do so. In summation, 

 

5 We nevertheless reversed the defendant's conviction based upon other 

misconduct by the prosecutor. Id. at 69-71.
18 A-2396-15T3

defense counsel told the jury that defendant's prosecution was the result of 

"sloppy police work." In short, defendant "opened the door" with this line of 

questioning, id. at 68, and the limited questions the prosecutor posed prior to 

defendant's objection did not bring about an unjust result. R. 2:10-2. Moreover, 

although the judge's curative instruction was not the model of clarity, it served 

to limit whatever improper taint arose from this cross-examination.

In Point IV, defendant argues the judge erred by refusing to give an 

adverse inference charge pursuant to State v. Clawans, 38 N.J. 162, 170 (1962). 

The issue arose in the following context.

Before trial, in a written inquiry to the prosecutor, defendant sought the 

identity of officers other than Officer Jones who were at the scene, and which 

officers may have spoken to defendant at that time. The prosecutor's paralegal 

responded with the name "Officer Moan."6 Moan was on the State's list of 

potential witnesses but was not called to testify. During cross-examination, 

Jones said he spoke to Moan at the scene, but he never said Moan or any other 

officer was with him when defendant admitted she was driving. Indeed, Jones 

said no one else heard defendant's admission. 

 

6 The record does not disclose his first name, and at some points in the record

the spelling is "Moen."
19 A-2396-15T3

Defendant requested a Clawans charge at the conclusion of the evidence. 

In a comprehensive oral opinion, the judge denied the request but permitted 

defendant to comment during summation on the State's failure to call the officer. 

Defense counsel took advantage of this opportunity at length.

Defendant now argues the failure to give a Clawans charge was reversible 

error. We again disagree.

In State v. Hill, the Court explained a trial judge may provide an adverse 

inference charge after considering and making findings based on the following 

circumstances:

(1) that the uncalled witness is peculiarly within the 

control or power of only the one party, or that there is 

a special relationship between the party and the witness 

or the party has superior knowledge of the identity of 

the witness or of the testimony the witness might be 

expected to give; (2) that the witness is available to that 

party both practically and physically; (3) that the 

testimony of the uncalled witness will elucidate 

relevant and critical facts in issue[;] and (4) that such 

testimony appears to be superior to that already utilized 

in respect to the fact to be proven.

[199 N.J. 545, 561 (2009) (quoting State v. Hickman, 

204 N.J. Super. 409, 414 (App. Div. 1985).]

An adverse inference charge is not "invariably available whenever a party does 

not call a witness who has knowledge of relevant facts." Washington v. Perez, 

430 N.J. Super. 121, 128, (App. Div. 2013) (quoting Hill, 199 N.J. at 561). In 
20 A-2396-15T3

many cases the only rational inference to be drawn is the witness's testimony 

would not have been helpful to the trier of fact. State v. Velasquez, 391 N.J. 

Super. 291, 308 (App. Div. 2007) (citation omitted). Where the witness's 

testimony is unimportant, cumulative, or inferior to testimony already presented 

on the issue, it is reasonable to infer that non-production is explained by the fact 

that the testimony is unnecessary. Id. at 308-09 (citing Clawans, 38 N.J. at 171).

The judge carefully considered the Hill factors, and we find no reason to 

disturb the well-reasoned exercise of his discretion in this regard.

III

After the court replayed Jones's testimony at the jury's request, the jurors 

deliberated for approximately an hour before sending a note to the judge asking, 

"What happens if it's not unanimous?" After advising the attorneys, and without 

objection, the judge explained the verdict had to be unanimous and instructed 

the jurors to continue deliberations. Shortly thereafter, the jurors requested 

playback of defendant's testimony. 

After rehearing defendant's testimony at the start of the next trial day, the 

jury deliberated for less than thirty minutes and sent out a note that said, "[W]e 

are not unanimous and we believe there'll be no change to our decisions." The 

judge excused the jurors for lunch, and then, without objection, read the model 
21 A-2396-15T3

jury charge again and told the jury to continue deliberating. Immediately 

thereafter and outside the presence of the jury, defense counsel noted " [his]

position would have been that it's probably appropriate to [declare a mistrial 

and] excuse them." The judge responded, "I figured you're going to bring it up 

at some point but it wasn't time for that yet so I wasn't even considering it." It 

is unclear from the record how long the jury deliberated thereafter, but the jurors 

returned guilty verdicts later that day. 

Defendant argues that "[u]nder the circumstances, before instructing the 

jurors to continue deliberations, the judge should have made further inquiry to 

determine if the jurors were indeed deadlocked or if further deliberations could 

be productive." Defendant submits the trial court should have given the model 

instruction approved by the Court in State v. Czachor, 82 N.J. 392 (1980). We 

disagree.

The "determination as to whether a Czachor charge is warranted" is left to 

the "sound discretion" of the trial court, and will be reversed only for an abuse 

of discretion. State v. Ross, 218 N.J. 130, 144 (2014) (quoting Czachor, 82 N.J. 

at 407). "[T]rial 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, 82 N.J. at 407).
22 A-2396-15T3

Here, there was six days of trial testimony, but, according to the court's 

estimate, the jury had deliberated only ninety minutes before sending out the 

second note, which indicated for the first time the possibility of a deadlock. 

Further, defense counsel never specifically requested that the judge give the 

Czachor charge. We find the argument entirely unpersuasive.7

IV

At sentencing, the judge found aggravating factors two, three, six and 

nine. N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of the harm inflicted 

on the victim); (a)(3) (the risk of re-offense); (a)(6) (the extent of defendant's 

prior criminal record); and (a)(9) (the need to deter defendant and others). He 

considered all mitigating sentencing factors, and gave slight weight to factors 

six and eleven. N.J.S.A. 2C:44-1(b)(6) (defendant will compensate the victims, 

in this case, through restitution); and (b)(11) (imprisonment will work a hardship 

on defendant's family). The judge weighed these factors and imposed the 

sentences on the indictable offenses we referenced earlier. On the DWI 

 

7

It follows that none of the complained of errors cumulatively "rendered the 

trial unfair," as defendant contends in Point V of his brief. State v. Orecchio, 

16 N.J. 125, 129 (1954); see also State v. Rambo, 401 N.J. Super. 506, 527 (App. 

Div. 2008) (noting that where an appellate court finds no errors at trial, a 

defendant's invocation of the cumulative error doctrine is to no avail). 
23 A-2396-15T3

conviction, the judge noted, among other things, that this was defendant's fourth 

DWI conviction and imposed a consecutive 180-day sentence.

Before us, defendant argues the judge "double-counted" in finding 

aggravating factor two, because the serious harm suffered by one of the victims 

was inherent in second-degree assaults that cause "serious bodily injury." She 

also argues the judge inappropriately weighed the aggravating and mitigating 

factors, thereby rendering the seven-year term "excessive." We find no merit to 

these arguments. R. 2:11-3(e)(2). We add only the following.

The Legislature did not necessarily equate the harm contemplated in 

aggravating factor two with "serious bodily injury" as defined in N.J.S.A. 

2C:11-1(b). State v. Kromphold, 162 N.J. 345, 358 (2000). In that regard, the 

Court in Kromphold explained aggravating factor two is "broader and less 

precise" than serious bodily injury. Ibid. The judge here did not find 

aggravating factor two by simply equating it with the serious bodily injury 

suffered by J.H.

"Appellate review of sentencing is deferential, and appellate courts are 

cautioned not to substitute their judgment for those of our sentencing courts." 

State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 

(2013)). Generally, we only determine whether:
24 A-2396-15T3

(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."

[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in 

original) (quoting State v. Roth, 95 N.J. 334, 364-65, 

(1984)).]

We find no mistaken exercise of the judge's broad discretion in this case.

Affirmed.