SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4134-17T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUDSON PORTER,

Defendant-Appellant.

Submitted February 4, 2020 – Decided

Before Judges Fisher, Accurso and Rose.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 17-05-1155.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Al Glimis, Designated Counsel, on the 

brief).

Theodore N. Stephens II, Acting Essex County 

Prosecutor, attorney for respondent (Caroline C. Galda, 

Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE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.

February 28, 2020
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A-4134-17T4

Tried to a jury, defendant Judson Porter was convicted of ten charges in 

an eleven-count Essex County indictment, including first-degree carjacking and 

first-degree robbery.

1

 During the four-day trial, the State presented the 

testimony of seven law enforcement witnesses and the driver of the vehicle, M.S. 

(Mary).2 The passenger of the vehicle, T.K. (Tom), did not testify. Defendant 

was sentenced to an aggregate twenty-two-year prison term, with an eighty-five 

percent period of parole ineligibility pursuant to the No Early Release Act, 

N.J.S.A. 2C:43-7.2.

On appeal, defendant raises the following arguments for our 

consideration:

POINT I

THE FAILURE TO GIVE THE CLAWANS[3]

CHARGE REQUESTED BY DEFENDANT AND TO 

ALLOW DEFENDANT TO ARGUE TO THE JURY 

THAT THE STATE FAILED TO PRESENT AN 

IMPORTANT WITNESS WAS HARMFUL ERROR. 

(U.S. Const. [a]mend[s]. VI, XIV; N.J. Const. [a]rt. I, 

[¶¶] 1, 10).

1

 During the charge conference, the State dismissed one of the two counts 

charging aggravated assault against a law enforcement officer. 

2

 We use initials to identify the victims and an uncharged suspect, and 

pseudonyms for ease of reference. 

3

 State v. Clawans, 38 N.J. 162 (1962). 
3

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POINT II

THE TRIAL COURT ERRED BY DENYING 

DEFENDANT'S REQUEST FOR A THIRD-PARTY 

GUILT JURY INSTRUCTION. (U.S. Const.

[a]mends. V, VI, . . . XIV; N.J. Const. [a]rt. I, [¶¶] 1, 

10).

POINT III

COUNTS TWO AND THREE, THE ROBBERY AND 

CARJACKING CONVICTIONS RELATING TO 

[MARY], ARE PART OF THE SAME OFFENSE AND 

MUST MERGE. 

POINT IV

DEFENDANT SHOULD BE RESENTENCED 

BECAUSE THE SENTENCING COURT 

CONSIDERED HIS POST-CONVICTION 

ASSERTION OF INNOCENCE AT SENTENCING. 

(Not Raised Below)

We reject the contentions raised in points I, II and IV and affirm 

defendant's convictions and sentence. But, we remand to the trial court for entry 

of an amended judgment of conviction merging the robbery conviction 

pertaining to Mary with the carjacking conviction.
4

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I. 

A.

We first summarize the facts underpinning defendant's challenges to the 

jury instructions, recognizing we must examine the charge as a whole to 

determine its overall effect. State v. McKinney, 223 N.J. 475, 494 (2015).

Late on a winter's night in 2017, Mary parked her Nissan Murano in front 

of her friend's apartment building in Irvington. Another friend, Tom, was seated 

next to Mary. Moments later, defendant approached the driver's side, pointed a 

silver handgun at Mary's head through the closed window, and ordered her out 

of the car. Defendant searched Mary's pockets with one hand while holding the 

gun in the other. After finding nothing in Mary's pockets, defendant ordered 

Tom to approach. After searching Tom's pockets and recovering nothing, 

defendant jumped in Mary's car and drove away. Various personal items, 

including her purse, wallet, cellphone and a small amount of cash were 

contained in the vehicle.

After defendant left the scene, Tom immediately called the police. Mary 

described the suspect as "a tall, slim. dark skin, black male wearing a black and 

gray Northface jacket, ski mask underneath his chin with gloves on." At trial, 

Mary said the suspect's eyes and mouth were visible through the mask. Mary 
5

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"got a good look at him especially when he was going through [Tom]'s pockets." 

Police located Mary's Nissan later that evening. The vehicle was unoccupied 

and parked fewer than two miles away in Newark.

Retracing what police believed would have been the suspect's likely route 

from the carjacking scene to the vehicle's resting place in Newark, officers 

noticed "a tall, slim, dark[-]skinned male wearing a black and gray Northface 

[jacket] with a ski mask underneath his chin with black gloves on." Officers 

called defendant to their car, but he "began taking off." During the ensuing 

chase, defendant "reach[ed] into his waist and . . . dropped a silver and black 

handgun." After a brief struggle, police arrested defendant. A search incident 

to his arrest revealed Mary's keys and cellphone. Mary told the jury the ski mask 

and handgun seized by police looked similar to the ski mask and handgun used 

by the suspect. 

Also that night, police stopped D.H. (Daniel), a few blocks from the 

carjacking scene because he matched the general description of the suspect. 

Daniel had dark skin, "was around six feet" tall, and wore "blue jeans and [a]

black coat." After the stop and frisk failed to reveal any weapons, the officers 

recorded Daniel's personal information and "sent him on his way."
6

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Before the parties formally rested their cases, the trial court conducted a 

charge conference. Relevant here, defendant unsuccessfully sought a Clawans

adverse-inference charge, and a third-party guilt instruction. We consider each 

jury charge in turn.

B.

At the conclusion of the evidence, defendant requested a Clawans charge 

based upon the State's failure to call Tom as a witness. The State asserted that 

Tom was unavailable, having "never responded to a single subpoena." 

According to the prosecutor, Tom "was never even served in this case despite 

weeks upon weeks of effort." The State also argued Tom did not possess 

"superior knowledge," as required under the governing law, because Tom's 

description of defendant did "not vary all that much" from Mary's description. 

Further, as disclosed in discovery, Tom was unable to identify defendant in a 

photo array. Accordingly, the State claimed Tom "would not have provided 

anything that was not already part of the record."

In a cogent oral opinion, the court carefully applied the factors set forth 

by our Supreme Court in State v. Hill, 199 N.J. 545, 561 (2009), and denied 

defendant's request. In Hill, the Court explained a trial judge may provide an 
7

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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. at 561 (alteration in original) (quoting State 

v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 

1985)).]

With respect to the first Hill factor, the trial court found Tom was "a 

civilian witness" who was "not under the wide umbrella of the State." Citing 

the State's efforts to find and subpoena Tom, the court was persuaded that Tom 

was unavailable. Recognizing there were no identifications of defendant made 

in this case, the court concluded the third factor was unknown, and whether Tom 

possessed any "superior knowledge" about the matter under factor four was 

"speculation." 
8

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Defendant now argues the court's refusal to give a Clawans charge was 

reversible error.4 For the first time on appeal, defendant claims the State failed 

to detail the "specific efforts it made to serve [Tom]." Defendant's argument is 

unavailing.

After reviewing the record in light of the applicable legal standards, we 

conclude the trial court's ruling was not an abuse of discretion. The court made 

careful findings on the record as required by Hill. 199 N.J. at 561. We note, 

defendant neither disputed the State's efforts before the trial court, nor sought 

additional details regarding the efforts police made to locate Tom. We therefore 

affirm the trial court's denial of defendant's request for a Clawans charge.

C.

Defendant sought a third-party guilt charge simply because police stopped 

and frisked Daniel shortly after the carjacking. The trial court denied 

4

 Defendant's point heading claims the court failed to permit defendant "to argue 

to the jury that the State failed to present an important witness . . . ." But 

defendant did not brief that issue. An issue not briefed is deemed waived. See

Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); see also Pressler & Verniero, 

Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020). We nonetheless observe 

defendant's argument is inaccurate. Indeed, quoting Hill, the trial court observed 

"it is one thing for counsel in summation to point to the absence of particular 

witnesses; it is quite another when the court puts the weight of its authority 

behind such a summation by telling the jury it may draw an adverse inference 

from their absence." The trial court did not prohibit defense counsel from 

arguing about Tom's absence at trial, yet counsel did not do so.
9

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defendant's application, concluding "[t]he fact that a patrol officer stopped 

someone matching the description with nothing more does not mandate a third 

[-]party guilt charge." As the court observed, Daniel "had no contraband in his 

possession or anything indicative of involvement in any criminal activity let 

alone this incident." 

On appeal, defendant does not contend he was deprived of the opportunity 

to offer evidence of third-party guilt. Cf. State v. Cotto, 182 N.J. 316, 333 

(2006). Indeed, defense counsel argued in summation that Daniel matched the 

suspect's description. Citing no authority for his argument, defendant instead 

contends the trial court's refusal to give the third-party guilt charge was 

reversible error. We disagree. 

A third-party guilt instruction essentially reinforces the more general 

instruction to the jurors, which was repeatedly delivered by the trial court here. 

The charge as a whole, McKinney, 223 N.J. at 494, underscored that the State 

always maintained the burden of proof for the substantive charges and "the 

identity of the person who committed the crime." The trial court also instructed 

the jury that the defense had no obligation to prove anything or present any 

evidence, including the identity of the person who committed the crime. We 

discern no error in the court's refusal to give a third-party guilt charge in this 
10 A-4134-17T4

case, where Daniel had no connection to the crime other than his presence in the 

general vicinity of the crime and similarity to the victim's vague description of 

the suspect. Police did not find a weapon or proceeds of the robbery on Daniel's 

person as they did with defendant. Having considered the charge as a whole, 

we discern no error in the court's refusal to give a third-party guilt instruction.

II.

We next address defendant's claim that the court erred by failing to merge 

his convictions for carjacking and robbing Mary. Before the trial court, the State 

conceded merger, noting "the carjacking and the robbery were of the same 

course of conduct and the same event. [Mary] was robbed of some belongings 

during the course of the carjacking." Notably, the trial court merged defendant's 

conviction for possession of a weapon for an unlawful purpose with his 

conviction for robbing Mary, but the court did not address merger of that robbery 

with carjacking. 

Before us, the State changes its tune, contending "the robbery and 

carjacking of [Mary] were two different courses of conduct." Accordingly, the 

State argues merger is inappropriate because defendant's commission of the 

robbery was not limited to the theft of Mary's motor vehicle, but also included 

the rifling of her pockets at gunpoint. 
11 A-4134-17T4

It is well-settled that "merger implicates a defendant's substantive 

constitutional rights." State v. Cole, 120 N.J. 321, 326 (1990). Merger seeks to 

avoid multiple punishment for the same offense. State v. Miller, 108 N.J. 112, 

116 (1987). "[I]f an accused has committed only one offense, he cannot be 

punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). "Not only does 

merger have sentencing ramifications, it also has a measurable impact on the 

criminal stigma that attaches to a convicted defendant." State v. Rodriguez, 97 

N.J. 263, 271 (1984); see also State v. Tate, 216 N.J. 300, 302-03 (2013). 

N.J.S.A. 2C:1-8(a) sets forth the "legislative parameters for merger of 

offenses," State v. Diaz, 144 N.J. 628, 637-38 (1996), and provides in pertinent 

part: 

When the same conduct of a defendant may establish 

the commission of more than one offense, the defendant 

may be prosecuted for each such offense. He may not, 

however, be convicted of more than one offense if:

(1) One offense is included in the other, as defined in 

subsection d. of this section;

. . . . 

(3) Inconsistent findings of fact are required to 

establish the commission of the offenses; or

(4) The offenses differ only in that one is defined to 

prohibit a designated kind of conduct generally and the 

other to prohibit a specific instance of such conduct. 
12 A-4134-17T4

. . . . 

d. Conviction of included offense permitted. A 

defendant may be convicted of an offense included in 

an offense charged whether or not the included offense 

is an indictable offense. An offense is so included 

when:

(1) It is established by proof of the same or less than all 

the facts required to establish the commission of the 

offense charged . . . .

[N.J.S.A. 2C:1-8.]

Notwithstanding those statutory requirements, our jurisprudence has longrecognized a "flexible approach" to merger. State v. Miller, 237 N.J. 15, 32 

(2019) (quoting State v. Brown, 138 N.J. 481, 561 (1994)). Under that approach, 

courts must analyze the evidence

in terms of, among other things, the time and place of 

each purported violation; whether the proof submitted 

as to one count of the indictment would be a necessary 

ingredient to a conviction under another count; whether 

one act was an integral part of a larger scheme or 

episode; the intent of the accused; and the 

consequences of the criminal standards transgressed.

[Miller, 237 N.J. at 33 (quoting Davis, 68 N.J. at 81).]

We are satisfied that application of the flexible approach here requires 

merger of defendant's robbery and carjacking convictions. Defendant's theft by 

threat of force of Mary's vehicle, and searching of her pockets outside the 
13 A-4134-17T4

vehicle took place during a single criminal episode at the same place and time. 

Both offenses were the product of the same criminal intent and the same 

threatened use of force. Based upon the trial evidence, we do not discern any 

"clear statutory differences illustrating legislative intent to fractionalize 

[defendant's] course of conduct." Tate, 216 N.J. at 312. Importantly, the 

carjacking statute does not contain an anti-merger provision. Cf. N.J.S.A. 

2C:13-6(f) (prohibiting merger of a luring of child conviction "with a conviction 

of any other criminal offense"); N.J.S.A. 2C:35-7.1(c) (prohibiting merger of a 

distribution of controlled dangerous substances (CDS) within 500 feet of public 

property conviction with a conviction for distributing CDS or employing a 

juvenile in a drug distribution scheme). 

Moreover, defendant was charged with carjacking under subsection (a)(2) 

of N.J.S.A. 2C:15-2 and robbery under subsection (a)(2) of N.J.S.A. 2C:15-1. 

The evidence showed defendant committed the theft of Mary's motor vehicle at 

gunpoint, under "fear of[] immediate bodily injury" and rifled through her 

pockets at gunpoint under the same "fear of[] immediate bodily injury." State 

v. Garretson, 313 N.J. Super. 348, 355 (App. Div. 1998) (recognizing the 

carjacking statute "mirrors" the robbery statute, "evinc[ing] a clear legislative 

intent to elevate a second-degree robbery into a first-degree offense and 
14 A-4134-17T4

provid[ing] for enhanced punishment if the object of the robbery was to 

unlawfully take a motor vehicle"). We therefore conclude the court erred by 

failing to merge defendant's robbery and carjacking convictions.

III.

Finally, defendant seeks resentencing based upon the trial court's remarks 

that he lacked remorse and "denied involvement in the incident." Although the 

court's remarks were made in partial support of aggravating factor nine, N.J.S.A. 

2C:44-1(a)(9) (specific and general deterrence), and in partial rejection of 

mitigating factor nine N.J.S.A. 2C:44-1(b)(9) ("[t]he character and attitude of 

defendant indicate that he is unlikely to commit another offense"), defendant 

only seeks resentencing without consideration of his "assertions of innocence in 

aggravation." Defendant does not contend his twenty-two-year sentence was 

excessive. 

We have previously warned against the use of a defendant's refusal to 

admit guilt to increase a sentence. See State v. Marks, 201 N.J. Super. 514, 540 

(App. Div. 1985) (noting our "view that a defendant's refusal to acknowledge 

guilt following a conviction is generally not a germane factor in the sentencing 

decision"). We have, however, found a "[d]efendant's consistent denial of 

involvement and . . . lack of remorse" supported a finding of aggravating factor 
15 A-4134-17T4

nine, N.J.S.A. 2C:44-1(a)(9), and "indicate[d] that a prison sentence [wa]s 

necessary to deter [the] defendant from similar conduct in the future . . . ." State 

v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). And, in State v. Carey, 

our Supreme Court recognized a sentencing court may consider the defendant's 

failure to take responsibility in support of aggravating factor three, N.J.S.A. 

2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"). 168 

N.J. 413, 426-27 (2001) (upholding the court's finding of aggravating factor 

three where the defendant "expresse[d] remorse, but [did] not directly accept 

responsibility for the crash or admit that he ha[d] a problem of drinking and 

driving").

We discern no error in the trial court's consideration of defendant's "denial 

of wrongdoing" when applying aggravating factor nine (and rejecting mitigating 

factor nine). Those fleeting remarks were not the sole bases for the court's 

application of those factors. The court also considered defendant's criminal 

record, noting: "A prior state prison sentence, probation and ISP[5] have not 

served to deter the defendant." According to the court, defendant "committed a 

previous felony while on probation supervision. He committed the violent 

offense presently before the court while his ISP was still active, in fact, less than 

5

Intensive Supervision Program.
16 A-4134-17T4

three months after being released from state prison." Those considerations 

provided ample support for the trial court's finding that there was a "serious need 

to deter this defendant and others from violating the law . . . ." In a similar vein, 

the court properly considered defendant's prior record of recidivism in rejecting 

mitigating factor nine.

Affirmed in part; remanded in part.