SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1648-18

STATE OF NEW JERSEY, 

Plaintiff-Respondent,

v.

RODNEY SMILEY, a/k/a

FOO SMILEY,

Defendant-Appellant.

________________________

Argued October 18, 2021 – Decided December 22, 2021

Before Judges Sumners and Vernoia.

On appeal from the Superior Court of New Jersey, Law 

Division, Atlantic County, Indictment No. 15-10-2434.

Michael Confusione argued the cause for appellant 

(Hegge & Confusione, LLC, attorneys; Michael 

Confusione, of counsel and on the brief).

Daniel Finkelstein, Deputy Attorney General, argued 

the cause for respondent (Andrew J. Bruck, Acting 

Attorney General, attorney; Daniel Finkelstein, of 

counsel and on the brief).

Appellant filed a pro se supplemental brief. 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

On October 7, 2015, an Atlantic County grand jury indicted defendant 

Rodney Smiley for first-degree murder, N.J.S.A. 2C:11-3(a)(1) or (2) (count 

one); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and N.J.S.A. 

2C:11-3 (count two); second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a) (count three); second-degree unlawful possession 

of a weapon, N.J.S.A. 2C:39-5(b) (counts four and five); second-degree witness 

tampering, N.J.S.A. 2C:28-5(a)(1) (count six); and second-degree certain 

persons not to possess a weapon, N.J.S.A. 2C:39-7 (counts seven and eight). 

Following a jury trial, defendant was convicted of first-degree witness 

tampering, one count of second-degree unlawful possession of a weapon, and

one count of second-degree certain persons not to possess a weapon. The jury 

was deadlocked on first-degree conspiracy to commit murder, but found 

defendant not guilty of first-degree murder, one count of second-degree 

unlawful possession of a weapon, and one count of second-degree possession of 

a weapon for an unlawful purpose. He was sentenced to an aggregate thirtyfive-year prison term with an eighteen-year parole disqualifier.

Defendant appeals arguing:
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POINT I 

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION TO SUPPRESS 

EVIDENCE SEIZED BY POLICE. 

POINT II

THE TRIAL COURT ERRED IN PERMITTING INTO 

EVIDENCE PRIOR INCONSISTENT 

STATEMENTS. 

POINT III

REFERENCE TO DEFENDANT'S VEHICLE AS 

BEING "FAMILIAR" TO THE TESTIFYING 

DETECTIVE BELOW UNFAIRLY PREJUDICED 

DEFENDANT BEFORE THE JURY. 

POINT IV

THE TRIAL COURT ERRED IN DENYING 

DEFENDANT'S MOTION FOR MISTRIAL DURING 

JURY DELIBERATIONS. 

POINT V

THE SENTENCING COURT ERRED IN NOT 

GRANTING AN EVIDENTIARY HEARING IN 

LIGHT OF THE AT LEAST APPARENT CONFLICT 

OF INTEREST OF THE TRIAL JUDGE AT THE 

TIME OF DEFENDANT'S TRIAL. 

POINT VI

DEFENDANT'S SENTENCE IS IMPROPER AND 

EXCESSIVE. 
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In a pro se supplemental brief, defendant argues:

1

POINT I

ENHANCING APPELLANT['S] SENTENCE 

CONTRARY TO APPRENDI V. NEW JERSEY2[] 

ARBITRARILY ALLOW[ED] THE SENTENCING 

[BY] THE TRIAL JUDGE TO PERSONALLY 

IMPLEMENT PREJUDICIAL COMMENTS AND 

BIAS INFLUENCE BEFORE THE JURY [AND] 

DENIED A FUNDAMENTAL FAIR DUE 

PROCESS/EQUAL PROTECTION RIGHTS JURY 

TR[IA]L AND FAIR SENTENCING PHASE [] 

CONTRARY TO THE U.S CONST. 14TH AND 6TH 

AMEND. [], N.J. CONST. ART. 1, PARA. 10. 

POINT II

THE PROSECUTOR COMMITTED 

PROSECUTORIAL MISCONDUCT IN GRAVE 

VIOLATION TO THE EVIDENCE ACT PURSUANT 

TO N.J.S.A. 2A:84A-33 ET SEQ. IN SECURING THE 

ALLEGED WITNESS INTO CUSTODY FOR 

TESTIMONY APPEARANCE IN APPELLANT'S 

TRIAL AND US[ING] [THE] SAME TO CREATE 

TAMPERING WITH WITNESS CHARGES 

AGAINST APPELLANT DESPITE THE INITIAL 

COERCI[VE] STATEMENT VASTLY DIFFER[ING]

FROM HER SENTENCING PHASE STATEMENT. 

1

 We note that defendant's pro se arguments are indecipherable as they contain 

many grammatical errors and lack citations to the record.

2 530 U.S. 466 (2000).
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POINT III

APPELLANT WAS DENIED HIS STATE AND 

FEDERAL CONSTITUTIONAL RIGHTS TO 

EXHIBIT CONFRONTATION AND CROSS 

EXAMINATION RIGHTS, PURSUANT TO THE U.S. 

CONST. 6TH AMEND.[,] 14TH AMEND.[,] AND 

N.J. CONST. ART. 1, PARA. 10 WHEN THE TRIAL 

COURT AND THE PROSECUTOR KEPT 

PIECE-MEALING PREJUDICIAL COMMENTS/

LANGUAGE OF ORGANIZED CRIME THAT WAS 

GRAVELY CONTRARY TO ANY GRAND JURY 

FINDINGS, AS USED DURING SENTENCING. 

POINT IV

THE CUMULATIVE ERRORS WARRANT A 

REVERSAL OF THE CURRENT CONVICTION 

AND SENTENCE BECAUSE THEY DENIED 

APPELLANT HIS STATE AND FEDERAL 

CONSITUTIONAL RIGHTS TO A FAIR JURY 

TRIAL WITH DUE PROCESS AND EQUAL 

PROTECTION CONTRARY TO HIS U.S. CONST.

14TH AND 6TH AMEND[S]. AND N.J. CONST.

ART. 1[,] PARA 10. 

We reject the entirety of defendant's arguments and affirm.

I

On September 6, 2012, Jose Ortiz was shot and killed in Atlantic City.

Three or four people wearing black clothes and masks were observed in a black 

vehicle and they fired at least ten shots before driving away. 
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The ensuing Atlantic City police investigation located twenty-nine shell 

casings at the shooting scene; a ballistics expert later determined they were fired 

from three guns. A surveillance camera video depicted a black vehicle, later 

identified as owned by defendant's then-girlfriend, Mercedes Camarota, leaving 

the scene of the shooting. According to cell phone records, defendant, who had 

borrowed the vehicle that day, was within a mile of the shooting. Police located 

the vehicle, in which defendant's fingerprints were found, approximately a mile 

from the shooting. 

On September 7, police searched the vehicle after obtaining a search 

warrant. No contraband was found in the vehicle before the warrant's ten-day 

expiration date. See R. 3:5-5. The police did not return the vehicle to Camarota. 

While the vehicle was being detained, the police communicated with Camarota, 

who did not demand its return and revealed that a handgun was concealed in the 

vehicle. The police kept the vehicle for forty days before obtaining a second 

search warrant on October 18. During the second warrant's execution, a .32 

caliber handgun containing defendant's DNA and a .32 caliber cartridge were 

found in the concealed area. 

Prior to trial, the motion judge, who was not the trial judge or sentencing 

judge, denied defendant's motion to suppress the handgun. Defendant claimed 
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the decision by police to retain Camarota's vehicle thirty days after the first 

warrant had expired on September 17, and before obtaining the second warrant, 

was a violation of the Fourth Amendment. The motion judge disagreed, ruling 

[T]here's no direct case law that says . . . after you get 

a search warrant, you seize a vehicle, the vehicle has to 

be returned within x number of days, and then if you 

want to go search it again, you go get a new search 

warrant, find the vehicle[,] and search it again. 

The judge found there was probable cause for the issuance of the second warrant. 

During the December 2016 trial, the prosecutor asked Atlantic City 

Detective James Brennan on direct examination about attempts to locate the 

vehicle. When the detective stated, "I was familiar with a vehicle from previous 

police contact," the defense objected. The trial judge overruled the objection 

but advised the jury that the comment was in reference to a prior "motor vehicle 

summons" involving defendant's use of the vehicle. 

Also, during the trial, Camarota testified that defendant did not threaten 

her. Prior to her testimony, the trial judge conducted a Rule 104 hearing under 

State v. Gross, 121 NJ 1 (1990), to determine if the State could introduce 

Camarota's prior inconsistent statements asserting defendant threatened to kill 

her if she testified, slapped her, accused her of being a confidential informant, 

and told her to "be careful." The judge found "by a preponderance of the 
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credible evidence that the [prior recorded] statements are sufficiently reliable 

and[,] provided Camarota testifies to the contrary, the State would be permitted 

to play the recordings in open court for the jury." The State was also allowed 

to inform the jury of Camarota's prior inconsistent statements indicating that 

defendant was one of the shooters at Ortiz and that the shooting involved trying 

to kill someone named "Moo Moo." To rebut the statements, the defense pointed 

out on Camarota's cross-examination that she had spoken to police "several 

times prior" and never said anything about defendant having been involved in 

the shooting. 

During the jury charge regarding the prior inconsistent statements, the 

judge stated:

Evidence has been presented showing that at a prior 

time a witness, Mercede[s] Camarota, has said 

something or has failed to say something which is 

inconsistent with the witness's testimony at the trial. 

You may consider this evidence along with all the other 

evidence in the case. In deciding whether any such 

statement, if made, is credible, you should consider any 

relevant factors including [her] connection to and 

interest in the matter reported in her prior statement, the 

person or persons to whom she gave the statement, the 

place and occasion for giving the statement, whether 

[she] was then in custody or otherwise the target of an 

investigation, [her] physical and mental condition . . .

at the time, the presence or absence of any other 

persons, whether [she] incriminated herself or sought to 

exculpate herself by the statement, the presence or 
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absence and the nature of any interrogation, whether the 

sound recording contains all or only a portion or a 

summary of what [she] said, the presence or absence 

of any motive to fabricate, the presence or absence of 

any explicit or implicit pressures, inducement or 

coercion for making the statement, whether the use to 

which the authorities would put the statement was 

apparent or made to [her], the inherent believability or 

lack of believability of the statement, the presence or 

absence of corroborating evidence. 

I further instruct you that a witness's prior 

inconsistent statement under police interrogation must 

be carefully examined and assessed in light of all the 

surrounding circumstances, including her interest in 

giving the statement at that time[.] If you decide that 

the statement is reliable, then you may consider it for 

its truth and weight along with . . . all the other evidence 

in this case. However, if you decide that the statement 

is not reliable, then you may not consider it for any 

purpose at all. 

On December 12, the jury found defendant guilty of first-degree witness 

tampering and one count of second-degree unlawful possession of a weapon. 

On the murder charge, the jury was confused about whether they had reached a 

unanimous verdict, so the judge directed the jurors to return to the jury room to 

determine whether their respective votes on each count were unanimous. The 

jury subsequently announced it was deadlocked on the lesser-included charge of 

aggravated manslaughter and the conspiracy charge, but acquitted defendant of 

the remaining charges. Because defendant was found guilty of one count of 

second-degree unlawful possession of a weapon, he stipulated he was a "certain 
10 A-1648-18

person" under N.J.S.A. 2C:39-7, and consented to having the court determine 

his guilt on one count of certain persons not to possess a weapon. The judge 

found him guilty of the offense under that count, and not guilty of the other 

count charging certain persons not to possess a weapon. 

Defendant moved for a mistrial based on the jury's initial confusion 

regarding unanimity on the murder count. The trial judge denied the motion, 

finding:

The [c]ourt has considered that [because of the 

confusion, no verdict rendered by the jury should be 

entered and it should be a mistrial as to all counts], 

however, although there may have been some confusion 

on the jury's understanding . . . they have, in fact, 

reached unanimity on four of the six counts. That has 

been confirmed. They indicated that there is no amount 

of time that would allow them to deliberate that could 

lead them to unanimity on [first-degree murder or firstdegree conspiracy to commit murder]. As a result, 

since they cannot reach unanimity on [those charges], 

then they cannot proceed to the lesser included 

charges. . . .

So, as a result, the [c]ourt is inclined to accept a 

partial verdict . . . .

On June 16, 2017, a different judge (the sentencing judge), sentenced 

defendant because the trial judge was nominated to be Atlantic County 

Prosecutor on February 28. Defendant argued that because he was indicted for 

second-degree witness tampering, his conviction for first-degree witness 
11 A-1648-18

tampering should be downgraded to the second degree. The sentencing judge 

denied the application and sentenced defendant as follows:

The [c]ourt concludes that a mandatory extended 

term is required on [second-degree unlawful possession 

of a weapon] pursuant to the Graves Act, N.J.S.A. 

2C:43-6(c). Further, the chronological sequencing of 

the defendant's firearms convictions are not 

determinative of the requirement to impose a 

mandatory extended term on this count. See State v. 

Hawks, 114 N.J. 359, [1989] and State v. Halisky, 140 

N.J. 1, a 1995 case.

 . . . .

[T]he [c]ourt will consider whether to impose a 

consecutive sentence under an analysis of the [State v.] 

Yarbough[, 100 N.J. 627 (1985)] factors.

 . . . .

[Defendant] is [twenty-seven] years old. His 

criminal history is extensive[,] with ten arrests resulting 

in six convictions, two indictable[,] and four [in] 

municipal [court].

His previous convictions involve[d] [possession 

of controlled dangerous substances] with intent to 

distribute, assault, disorderly conduct, possession of 

marijuana[,] and obstruction. He's been to prison 

before. When afforded probation in the past, he 

violated. He was last released from State Prison on 

August 25th of 2015[,] where he was serving a prison 

sentence from a handgun charge.

Defendant has a domestic record without final 

restraints. Defendant has an extensive juvenile record 
12 A-1648-18

with eight arrests and six adjudications for aggravated 

assault, possession with intent, conspiracy to commit 

robbery and resisting, possession of marijuana, 

receiving[,] and trespass.

He has served a term of juvenile probation and 

detention. When afforded probation and [Intensive 

Supervision Program,] he violated. [D]efendant reports 

no serious substance issues. He is unemployed owing 

to his incarceration. He has completed his high school 

education. He is unmarried and has one child to whom 

he is in arrears in child support.

Based on all these facts and circumstances, the 

[c]ourt finds and concludes that the following 

aggravating factors apply to this sentence.

Aggravating factor [three, N.J.S.A. 2C:44-

1(a)(3)] applies and has great weight. There is more 

than a risk that this defendant will commit another 

offense. If left to his own devices, it is a virtual 

certainty that he will offend again and violently.

[D]efendant's criminality has been escalating 

dangerously and sharply since his teen years. There is 

little doubt that . . . defendant will offend again. 

Aggravating factor [five, N.J.S.A. 2C:44-1(a)(5)] 

applies and has significant weight. There is a 

substantial likelihood that the defendant is involved . . . 

in organized criminal activity. Defendant has been 

involved with street crime and gang criminality since 

his teen years.

The incident during which . . . defendant 

intimidated a witness stems from violent street gang 

behavior to frustrate the course of criminal justice by 

promoting and violently enforcing the ["]no[-]snitch["]
13 A-1648-18

mentality. This aggravating factor has great weight and 

is applied to [c]ount [six], witness tampering.

Aggravating factor [six, N.J.S.A. 2C:44-1(a)(6)] 

applies and has great weight. The extent of . . .

defendant's prior criminal record and the seriousness of 

the offense of which he's been convicted is apparent. 

[D]efendant has been in and out of incarceration and 

has been racking up offenses for most of his life.

 

 . . . .

Aggravating factor [nine, N.J.S.A. 2C:44-

1(a)(9)] applies and has the greatest weight. There is a 

very strong need to deter this defendant from violating 

the law. Prior sanctions[,] including probationary and 

prison sentences[,] have not adequately deterred his 

criminality. A very substantial commitment to State 

Prison is now required to specifically deter . . . 

defendant from future criminality. 

 . . . .

The [c]ourt has carefully considered the entirety 

of the record in this case and can find no mitigating 

factors that apply.

. . . The aggravating factors clearly and 

substantially in quality and quantity outweigh the 

absence of mitigating factors or any other factor.

Given the great weight of the aggravating 

factors[,] a sentence well-above the mid[-]range is 

required on each count. 

Defendant was sentenced to an aggregate prison term of thirty-five years

with eighteen years of parole ineligibility based on: a mandatory extended term 
14 A-1648-18

of seventeen years for second-degree unlawful possession of a weapon, with 

eight-and-a-half years of parole ineligibility; consecutive to a mandatory 

extended term of eighteen years for first-degree witness-tampering, with nineand-a-half years of parole ineligibility; and a concurrent ten-year term for the

second-degree certain persons conviction. The State dismissed the deadlocked 

conspiracy charge. 

II

Defendant argues the motion judge erred in denying his motion to 

suppress the search and seizure of the handgun pursuant to the second search 

warrant. There is no merit to this argument. He cites no legal support for his 

argument that the search was unreasonable under our federal and state 

constitutions because the first search warrant was executed without discovering 

the handgun and the police continued to hold the vehicle for forty days before 

obtaining the second warrant. 

Defendant's challenge to the denial of his motion to suppress is strictly a 

legal one, as there are no factual disputes regarding the issuance of the two 

search warrants and their execution. Thus, we owe no deference to the motion

judge's order. State v. Gamble, 218 N.J. 412, 425 (2014).
15 A-1648-18

Our Supreme Court has held that "[l]egally-seized property may be 

retained as long as the retention is reasonably related to the government's 

legitimate need for it." State v. One 1986 Subaru, 120 N.J. 310, 317 (1990)

(citing United States v. Premises known as 608 Taylor Ave., 584 F.2d 1297, 

1302-04 (3d Cir. 1978)); see also Lavezzi v. State, 219 N.J. 163, 178-79 (2014) 

("The retention of evidence during a criminal investigation, like the seizure of 

that evidence, is a law enforcement activity."). As the State correctly notes, it 

"[has the right] to retain evidence pending a criminal prosecution." N.J.S.A. 

2C:64-4(a).

Camarota's vehicle was legally seized as evidence of a murder and held 

by the police. Given there is no dispute the vehicle was legally in police custody, 

defendant does not have a Fourth Amendment claim. His argument that the 

vehicle had to be returned to Camarota after the first warrant had expired is not 

supported by statute, court rule, or case law. In fact, Camarota, the vehicle's 

owner, maintained communication with the police regarding the retention of 

vehicle and never asked for her car back. In short, there was nothing 

unreasonable about the police's decision to retain the vehicle and obtain a second 

search warrant upon obtaining new information because the first search had 
16 A-1648-18

expired. Thus, denial of defendant's motion to suppress was not a manifest 

denial of justice, nor an abuse of discretion.

III

Defendant argues the trial judge erred in his application of Gross to allow 

the State to admit Camarota's prior inconsistent statements as substantive 

evidence because the State did not prove that they met the special reliability 

requirements. He maintains Camarota did not initially implicate him in the 

shooting or identify him in any of the surveillance video that was shown to her. 

He argues that she only gave her alleged prior inconsistent statements after she 

was placed in a holding cell and charged with second-degree unlawful 

possession of the handgun found in her vehicle. Her incarceration, according to 

defendant, made the statements unreliable. Thus, the admissibility of her prior 

statements violated his state and federal constitutional rights, including those 

under the Confrontation Clause of the Sixth Amendment. In his pro se brief, 

defendant argues he never waived federal or state constitutional rights of 

confrontation and cross-examination. We do not agree. 

When a witness's testimony differs from his or her own prior statement, 

our evidentiary rules permit prior statements to be admitted as substantive 

evidence. N.J.R.E. 803(a)(1) is designed "to limit substantive admissibility of 
17 A-1648-18

prior inconsistent statements . . . to those statements given in a form and under 

circumstances importing special reliability." Gross, 121 N.J. at 9 (citations 

omitted). Further, "when the statement is offered by the party calling the 

declarant-witness, it is admissible only if . . . [it] is contained in a sound 

recording or in a writing made or signed by the declarant-witness in 

circumstances establishing its reliability." N.J.R.E. 803(a)(1)(A). And "when 

a witness testifies at trial inconsistent with a signed or sound-recorded statement 

admissible under N.J.R.E. 803(a)(1), the Confrontation Clause is not offended 

by the reading or playing of the out-of-court statement to the jury provided that 

the defendant has the opportunity to cross-examine the witness." State v. 

Cabbell, 207 N.J. 311, 336 (2011).

The prior inconsistent "statement[] must pass the double hurdle of a . . . 

hearing on admissibility and in-court cross-examination prior to a finding on 

sufficiency." State v. Mancine, 124 N.J. 232, 248, 590 A.2d 1107 (1991). At a 

reliability hearing, "the court should be convinced by a preponderance of the 

evidence that the evidence is sufficiently reliable for presentation to the 

jury . . . ." State v. Brown, 138 N.J. 481, 539 (1994). The burden is on the party 

offering the statement to show its reliability by a "fair preponderance of the 

evidence." Gross, 121 N.J. at 15. "The determination of the reliability of 
18 A-1648-18

pretrial statements must take into account all relevant circumstances." State v. 

Michaels, 136 N.J. 299, 317 (1994). The Gross Court "detailed the range of 

factors that might bear on the reliability of a pretrial statement[,]" including "the 

person or persons to whom the statement was made; the manner and form of 

interrogation; the physical and mental condition of the declarant[;] the use of 

inducements, threats or bribes; and the inherent believability of the statement."

Ibid. 

If a statement is admitted under N.J.R.E. 803(a), the jury should be 

instructed to consider the same kinds of factors as enumerated above when 

"assessing its credibility and probative worth." Gross, 121 N.J. at 16-17. For 

example, a jury "could be instructed that the witness'[s] prior inconsistent 

statement under police interrogation must be carefully scrutinized and assessed 

in light of all the surrounding circumstances, including [the witness's] interest 

in giving the statement at that time." Id. at 17.

We discern no abuse of discretion in allowing the admission of Camarota's 

prior inconsistent statements. After conducting a Rule 104 hearing, the trial 

judge thoroughly analyzed all relevant Gross factors before concluding that the 

statements possessed sufficient reliability to permit admission. And as the State 

correctly notes, defendant was charged with witness tampering, thus, Camarota's
19 A-1648-18

statements were admissible as a hearsay exception because they were "offered 

against a party who has engaged, directly or indirectly, in wrongdoing that was 

intended to, and did, procure the unavailability of the declarant as a witness." 

N.J.R.E. 804(b)(9). The statements were properly presented to establish that 

defendant threatened Camarota so that she would not testify against him. 

IV

Defendant argues Brennan's testimony that he was "familiar" with the 

vehicle attributed to defendant and involved in the shooting was prejudicial,

which the trial judge failed to remedy with a curative instruction to the jury to 

disregard the statement. He claims a new trial is warranted because evidence of 

his prior involvement with the police predisposed the jury to think he was a bad 

person. In support, defendant points to case law stating that it is prejudicial to 

a defendant if the jury is aware that a defendant is in pretrial custody or was 

imprisoned. See State v. Harris, 156 N.J. 122 (1998) (reference to mug shot

photo arrays); State v. Porambo, 226 N.J. Super. 416 (App. Div. 1988) (evidence 

that officer had previously weighed and measured the defendant). There is no 

merit to the argument. 

Defendant stipulated to the fact that on both August 26 and September 3, 

2012, ten and three days, respectively, before the September 6 shooting, he was 
20 A-1648-18

pulled over by police while driving Camarota's vehicle and was issued a motor 

vehicle summons. It was perfectly appropriate for the trial judge to explain this 

to the jury when the defense objected to Brennan's statement. Thus, there is no 

reasonable basis to conclude that the detective's reference to his familiarity with 

the vehicle produced an unjust result. See State v. Williams, 404 N.J. Super. 

147, 169 (App. Div. 2008) ("[T]he factual assertions by the court constituted 

stipulated facts. N.J.R.E. 101(a)(4). Furthermore, we find no basis for 

defendant's contention that the responses were capable of producing an unjust 

result."). Moreover, there was no intimation that defendant was held in custody 

or incarcerated based on the motor vehicle summons. 

Besides, defendant is barred by the doctrine of invited error from arguing 

before us that the judge erred in revealing the stipulated fact to the jury. "A 

party who consents to, acquiesces in, or encourages an error cannot use that error 

as the basis for an objection on appeal." Spedick v. Murphy, 266 N.J. Super. 

573, 593 (App. Div. 1993) (holding the plaintiff was barred from challenging 

the admission of the testimony on appeal where it appeared from the colloquy 

between the trial judge and the attorneys, that the plaintiff "essentially agreed" 

to permit certain testimony); see also N.J. Div. of Youth and Fam. Servs. v. 

M.C., III, 201 N.J. 328, 340 (2010) (holding invited error bars "a disappointed 
21 A-1648-18

litigant from arguing on appeal that an adverse decision below was the product 

of error, when that party urged the lower court to adopt the proposition now 

alleged to be error") (internal quotation marks and citation omitted).

In sum, the trial judge did not abuse his discretion by not telling the jury 

to disregard Brennan's testimony that he was familiar with the vehicle associated 

with defendant. 

V

Defendant argues the trial judge erred in denying his motions for mistrial

that was based on the fragmented jury verdict announcements. He asserts the 

judge failed to ensure that the jury understood its verdict was final when they 

announced it, then discovered that there was no unanimity. He maintains that 

the judge should have ensured that the jury understood its verdict was final 

before it accepted the verdict. See State v. Shomo, 129 N.J. 248, 258 (1992) 

("When the jury returns an interim partial verdict, the court must ensure that the 

jury intended its partial verdict to be final by specifically instructing the jury 

regarding the verdict's finality."). 

Rule 4:49-1(a) provides that a trial judge shall grant a new trial if, "having 

given due regard to the opportunity of the jury to pass upon the credibility of the 

witnesses, it clearly and convincingly appears that there was a miscarriage of 
22 A-1648-18

justice under the law." Mistrials should only be granted "with the greatest 

caution, under urgent circumstances, and for very plain and obvious causes." 

State v. Loyal, 164 N.J. 418, 436 (2000) (citation omitted). Accordingly, trial 

judges should exercise their discretion to grant a mistrial "with great reluctance, 

and only in cases of clear injustice. . . . Neither trial nor appellate courts may 

grant a new trial unless it clearly appears there was a miscarriage of justice."

Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005). "Whether 

an event at trial justifies a mistrial is a decision 'entrusted to the sound discretion 

of the trial [judge].'" State v. Smith, 224 N.J. 36, 47 (2016) (quoting State v. 

Harvey, 151 N.J. 117, 205 (1997)). We will not disturb the denial of a mistrial 

"unless there is a clear showing of mistaken use of discretion by the trial court," 

Greenberg v. Stanley, 30 N.J. 485, 503 (1959) (citations omitted), or a manifest 

injustice would result, State v. LaBrutto, 114 N.J. 187, 207 (1989). 

We discern no abuse of discretion by the trial judge. A jury's initial 

expression of its verdict is not binding, and further deliberation is permissible, 

until the judge accepts the verdict. See Shomo, 129 N.J. at 256 ("In certain 

circumstances, an interim partial verdict may assist a trial court in making 

orderly and expeditious progress in adjudicating a case."); United States v. 

Clainos, 163 F.2d 593, 596 (D.C.Cir.1947) (permitting partial verdicts can aid a 
23 A-1648-18

jury in proceeding methodically from count to count). The jury's confusion as 

to the murder charge––of which defendant was acquitted––does not invalidate 

its verdict for the remaining counts. We favor the State's contention that the 

jury's confusion was limited to the murder counts, which is irrelevant to its

unanimity on the other counts, considering the trial judge's instructions were 

proper. The judge here correctly allowed the jury to deliberate further after it 

expressed its confusion about the murder charge. There is no reason to reverse 

the jury verdicts, as defendant suggests, because the judge's supplemental charge 

to resolve the deadlocked jury was not coercive. Accordingly, the judge was 

correct in not granting a mistrial for every count when the jury was only initially 

unclear on its unanimity on a particular count. 

VI

Defendant contends the sentencing judge erred in not granting his request 

for an evidentiary hearing to determine whether his convictions should be 

reversed because the trial judge was under consideration to be appointed the 

Atlantic County Prosecutor at the time of the trial and, thus, should have recused 

himself from presiding over the trial. He maintains that under the Code of 

Judicial Conduct, Canon 2, Rule 2.1 "[a] judge shall avoid impropriety and the 

appearance of impropriety" and "[a] judge shall act at all times in a manner that 
24 A-1648-18

promotes public confidence in the independence, integrity[,] and impartiality of 

the judiciary and shall avoid impropriety and the appearance of impropriety." 

Based upon our review of the trial record, defendant failed to present any 

evidence of a conflict of interest. We therefore see no error in the sentencing 

judge's decision not to grant an evidentiary hearing. Nonetheless, our ruling is 

without prejudice to defendant seeking relief through a petition for postconviction (PCR) relief. See generally State v. Preciose, 129 N.J. 451, 459-60 

(1992) (indicating that PCR is for claims beyond trial record).

VII

Last, defendant raises several challenges to his sentence. He contends his 

aggregate thirty-five sentence with an eighteen-year parole disqualifier is 

excessive given that he was found not guilty of first-degree murder, first-degree 

conspiracy to commit murder, and possession of the alleged murder weapon. He 

contends it was error to sentence him to first-degree witness tampering given 

that he was charged with second-degree witness tampering in the indictment, 

and there was no application by the State to sentence him one degree higher or 

to amend the witness tampering charge to a first-degree crime. Defendant also 

contends that the judge erred in imposing consecutive sentences for the weapon 

and witness tampering crimes, particularly in light of the length of the aggregate 
25 A-1648-18

sentence imposed on him. He notes that to determine whether to impose a 

concurrent or consecutive sentence, a judge should consider that "there can be 

no free crimes in a system for which the punishment shall fit the crime." 

Yarbough, 100 N.J. at 643. 

As the State correctly points out, because defendant declined to object to 

the jury instructions directing the jury to consider whether he was guilty of firstdegree witness tampering and not second-degree witness tampering as charged, 

or to the jury's verdict for first-degree witness tampering, he has waived the 

argument that he should have been convicted and sentenced for second-degree 

witness tampering. See State v. Del Fino, 100 N.J. 154, 160 (1985) ("[A]ll 

defenses and objections based on defects in the institution of the proceedings or 

in the indictment must be raised before trial. Except for good cause shown, 

failure to present any such defense constitutes a waiver."); see also State v. 

Laws, 262 N.J. Super. 551, 562 (1993) (providing that arguments about the 

grand jury must be raised at trial). Moreover, the first-degree witness tampering 

conviction was justified given the facts of the case. N.J.S.A. 2C:28-5 states, in 

relevant part: 

Witness tampering is a crime of the first degree if the 

conduct occurs in connection with an official 

proceeding or investigation involving any crime 

enumerated in subsection d. of section 2 of P.L.1997,
26 A-1648-18

c.117 (C.2C:43-7.2) [including murder under N.J.S.A. 

2C:11-3] and the actor employs force or threat of force. 

Witness tampering is a crime of the second degree if the 

actor employs force or threat of force. Otherwise[,] it 

is a crime of the third degree. 

There is no question that defendant's alleged threats to Camarota occurred in 

connection with her cooperation with a murder investigation. Based on the 

evidence presented and its credibility findings, the jury had a basis to find 

defendant guilty of first-degree witness tampering. See State v. Warmbrun, 277 

N.J. Super. 51, 60 (App. Div. 1994) (holding that once the jury convicts, its

verdict establishes probable cause to indict, and a purported error in the 

indictment is rendered harmless.). 

A mandatory extended term was required because defendant was 

convicted of unlawful possession of a weapon and certain persons charges under 

the Graves Act, N.J.S.A. 2C:43-6(c), which reads as follows:

A person who has been convicted under subsection b. 

or d. of N.J.S.[A.] 2C:39-3 [(Prohibited weapons and 

devices)], subsection a. of N.J.S.[A.] 2C:39-4

[(Possession of weapons for unlawful purposes)], 

subsection a. of section 1 of . . . [N.J.S.A. 2C:39-4.1] 

[(Possession of weapons during commission of certain 

crimes; penalties)], subsection a., b., c., or f. of

N.J.S.[A.] 2C:39-5 [(Unlawful possession of 

weapons)], subsection a. or paragraph (2) or (3) of 

subsection b. of section 6 of . . . [N.J.S.A. 2C:39-7] 

[(Certain persons not to have weapons or ammunition)]

. . . who, while in the course of committing or 
27 A-1648-18

attempting to commit the crime, including the 

immediate flight therefrom, used or was in possession 

of a firearm as defined in [N.J.S.A.] 2C:39-1[(f)], shall 

be sentenced to a term of imprisonment by the court. 

The term of imprisonment shall include the imposition 

of a minimum term. The minimum term shall be fixed 

at one-half of the sentence imposed by the court or

forty-two months, whichever is greater, or eighteen

months in the case of a fourth[-]degree crime, during 

which the defendant shall be ineligible for parole.

The minimum terms established by this section shall 

not prevent the court from imposing presumptive terms 

of imprisonment pursuant to [N.J.S.A.] 2C:44-1[(f)](1) 

except in cases of crimes of the fourth degree.

A person who has been convicted of an offense 

enumerated by this subsection and who used or 

possessed a firearm during its commission, attempted 

commission or flight therefrom and who has been 

previously convicted of an offense involving the use or 

possession of a firearm as defined in 2C:44-3[(d)], shall 

be sentenced by the court to an extended term as 

authorized by 2C:43-7[(c)], notwithstanding that 

extended terms are ordinarily discretionary with the 

court.

Pursuant to N.J.S.A. 2C:44-5(a), when a defendant receives multiple 

sentences of imprisonment "for more than one offense, . . . such multiple 

sentences shall run concurrently or consecutively as the court determines at the 

time of sentence." N.J.S.A. 2C:44-5(a) does not state when consecutive or 

concurrent sentences are appropriate. In Yarbough, the Court set forth the 

following guidelines:
28 A-1648-18

(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 should 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 

predominantly 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;

(5) successive terms for the same offense should not 

ordinarily be equal to the punishment for the first 

offense[.]

[100 N.J. at 643-44 (footnote omitted).]
29 A-1648-18

What had been guideline six was superseded by a 1993 amendment to N.J.S.A. 

2C:44-5(a), which provides "[t]here shall be no overall outer limit on the 

cumulation of consecutive sentences for multiple offenses." 3 

The Yarbough guidelines leave a "fair degree of discretion in the 

sentencing courts." State v. Carey, 168 N.J. 413, 427 (2001). "[A] sentencing 

court may impose consecutive sentences even though a majority of the Yarbough

factors support concurrent sentences," id. at 427-28, but the court must state its 

reasons for imposing consecutive sentences, and when a court fails to do so, a

remand is needed in order for the court to place its reasoning on the record, State 

v. Miller, 205 N.J. 109, 129 (2011). When a trial court imposes a consecutive 

sentence, "[t]he focus should be on the fairness of the overall sentence." State 

v. Abdullah, 184 N.J. 497, 515 (2005) (alteration in original). 

Here, the multiple convictions support consecutive sentences based on the 

sentencing judge's reasoning. The judge did not abuse his discretion, as the 

sentences imposed were consistent with our sentencing guidelines and do not 

shock the conscience. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State 

v. O'Donnell, 117 N.J. 210, 215-16 (1989). Hence, we will not disturb

defendant's sentences. 

3

 L. 1993, c. 223, § 1.
30 A-1648-18

Any arguments not specifically addressed are without sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.