NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3362-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANDRA ABRIL, a/k/a SANDRA JASMINE

ABRIL, SANDRA BURGOS and SANDRA BURGESS,

Defendant-Appellant.

__________________________________________

Submitted February 1, 2016 – Decided

Before Judges Sabatino, Accurso and 

O'Connor.

On appeal from Superior Court of New Jersey, 

Law Division, Middlesex County, Indictment 

Nos. 12-05-0816 and 12-05-0826.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Mark H. Friedman, Assistant 

Deputy Public Defender, of counsel and on 

the brief).

Andrew C. Carey, Middlesex County 

Prosecutor, attorney for respondent (Brian 

Shevlin, Assistant Prosecutor, of counsel 

and on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.

March 17, 2016

APPROVED FOR PUBLICATION

March 17, 2016

APPELLATE DIVISION
2 A-3362-13T3

Tried for attempted murder, defendant Sandra Abril was 

convicted by a jury of the lesser-included charge of seconddegree aggravated assault, N.J.S.A. 2C:12-1b(1), and possession 

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. 

Following the verdict, she pled guilty pursuant to a negotiated 

agreement to a certain persons offense, N.J.S.A. 2C:39-7b. The 

judge granted the State's motion for a mandatory extended term 

and sentenced defendant to sixteen years in State prison for 

aggravated assault subject to the periods of parole 

ineligibility and supervision required by the No Early Release 

Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eight-year 

term on the weapon conviction. The judge sentenced defendant to 

a concurrent five-year term on the certain persons offense, with 

five years of parole ineligibility, in accordance with the plea 

agreement.

She raises the following arguments on appeal: 

POINT I

THE TRIAL COURT ERRED PREJUDICIALLY BY 

FAILING TO BAR THE STATE FROM CROSSEXAMINING DEFENDANT'S PROPOSED CHARACTER 

WITNESSES BY THE USE OF DEFENDANT'S PRIOR 

CONVICTION FOR MURDER. AT THE VERY LEAST, 

THE CONVICTION SHOULD HAVE BEEN SANITIZED TO 

PREVENT MENTION OF ANY FACTS OTHER THAN THE 

DEGREE OF THE PRIOR OFFENSES. (Partially 

Raised Below).
3 A-3362-13T3

POINT II

DEFENDANT'S CONVICTION AND SENTENCE ON COUNT 

FIVE OF THE INDICTMENT MUST BE MERGED INTO 

THE CONVICTION AND SENTENCE ON COUNT ONE. 

(Not Raised Below).

POINT III

DEFENDANT'S SENTENCES MUST BE VACATED AND 

THE CASE REMANDED FOR RESENTENCING.

A. The Imposition Of A Fifteen Year Parole 

Ineligibility Term On Count One Is Illegal 

Because N.J.S.A. 2C:43-7d Clearly Does Not 

Apply In This Case.

B. Defendant's Aggregate Sentence Is 

Manifestly Excessive and Unduly Punitive.

Having considered these arguments in light of the record 

and existing law, we conclude the single alleged trial error, if 

indeed it was error, was not clearly capable of producing an 

unjust result. We agree with defendant, however, as does the 

State, that her conviction on the weapon charge, for which she 

received a concurrent eight-year term, should have been merged 

into her conviction for second-degree aggravated assault. We 

also agree the judgment of conviction must be corrected to 

reflect the judge's imposition of a NERA term on the aggravated 

assault conviction. Accordingly, we vacate the sentence and 

remand for merger of those convictions for sentencing purposes

and correction of the judgment of conviction to reflect the 

sentence imposed. We affirm in all other respects.
4 A-3362-13T3

The State presented the victim to explain his relationship 

with defendant and the events leading up to her shooting him in 

their apartment on the day after Christmas in 2011. According 

to the victim, he and defendant were in a long-term romantic 

relationship that had gone stale. They had lived together in 

her apartment for four years. He had a long criminal record, 

and although he worked as a forklift driver, he described 

himself as a "functioning addict," regularly using both cocaine 

and heroin. Defendant supported him. Although he claimed they 

had "grown apart," he described himself as "stuck" in their 

relationship because he had "burnt a lot of bridges" with his 

family and was not able to live on his own financially.

The victim had started to secretly see another woman 

several months before Christmas. It was not his first affair. 

Defendant found out about the relationship when she found a 

receipt in the pocket of his pants. Although they afterward 

went through the motions of attempting to rekindle their 

relationship, the victim did not stop seeing the other woman. 

On the day after Christmas, the victim took defendant's 

car, saying he had to go to work. He instead spent the day with 

his paramour. When he returned home, the couple argued. 

Defendant accused him of being "with that bitch" and demanded he 

take off the chain defendant had given him for Christmas. The 
5 A-3362-13T3

victim denied everything, walking away from defendant to go sit 

on the couch and watch television. 

According to the victim, defendant stood between him and 

the television and pointed a gun at him while continuing to 

harangue him about the other woman. At some point, defendant 

"clicked the gun" and a bullet fell out. He said, "you clicking 

guns on me now? I'm outta here. I'm gone," and walked toward 

the bedroom to get his coat. He claimed defendant then shot him 

in the back, refused to call him an ambulance and instead put

her hand over his mouth, saying "no ambulance." The victim 

claimed he pulled himself to the door and as he struggled with 

the locks, defendant stabbed him and snatched the chain from his 

neck.

The victim managed to get himself down the three flights of 

stairs, where he collapsed in front of the building. When 

police arrived and asked him what happened, he only got out his 

apartment number. When police went to the apartment, they found 

defendant and her niece, who lived on another floor of the 

building. The women were carrying luggage and a cat carrier and 

appeared to be in the process of leaving. Police detained both 

women and took them in for questioning. Defendant gave consent 

to search her apartment, where police found blood, a spent .38 

shell casing, as well as a black bag with several .38 rounds,
6 A-3362-13T3

but no gun and no knife. They also found a .38 caliber 

cartridge in the rear of the apartment building near a dumpster. 

A shirt defendant was wearing had the victim's blood on a 

sleeve. Police seized the shirt but released defendant without 

charging her. 

At the scene, two women came forward to report seeing two 

Hispanic males get into a taxi and take off as the victim lay

bleeding on the sidewalk. The police did not pursue this lead 

because the next day, the victim identified defendant as the 

person who shot him.

Defendant did not testify. She maintained she did not 

shoot the victim. Her theory at trial was that police had not 

undertaken a thorough investigation and had failed to pursue 

viable leads, most notably the two Hispanic men seen fleeing the 

area, after the victim accused defendant of the crime. She 

contended the victim's story made almost no sense and contained

significant factual errors, chief among them his continued 

insistence that he was shot in the back, although all medical 

evidence confirmed a gunshot wound to his chest. Defendant also 

emphasized the failure of investigators to locate the gun or a 

knife, and the improbability of her being able to dispose of 

those weapons in the few minutes between the shooting and 

officers arriving in her apartment. She maintained the victim's 
7 A-3362-13T3

story was incomprehensible because he was likely too "high" to 

know what had happened to him or to be able to report it 

accurately.

In the only issue defendant raises regarding her 

conviction, she claims the trial court erred in a mid-trial 

ruling relating to character witnesses she wished to call. 

Defendant's counsel sought to call character witnesses who would 

testify defendant was "a hard-working person that is responsible 

and dependable" and trustworthy. When the court asked whether 

those traits were in issue in the trial, counsel expressed the 

view that "when you're . . . on trial for attempted murder . . . 

everything is at issue." The assistant prosecutor, although 

expressing the view that none of those traits was at issue, 

asserted he should be allowed to ask any character witnesses 

whether they knew defendant had been convicted of murdering her 

husband, for which she received a thirty-year prison term in 

1982. 

When the judge prodded defense counsel again about the 

purpose of the proffered testimony, counsel replied she wanted 

the jury to see "there are people that think well of 

[defendant], and that are rooting for her." The judge, although 

stating it is "not the purpose of [a] character witness to show 

that she's got people on her side," did not exclude the 
8 A-3362-13T3

evidence. He instead ruled defendant would not be barred from 

calling character witnesses, but advised, "if you introduce the 

testimony . . . , I think it would be permissible for the State 

to make inquiries [of] those witnesses as to their knowledge of 

your client's conviction for murder." In light of the court's 

ruling, defendant did not call any character witnesses.

Defendant now argues that ruling was in error, and it 

deprived her of a fair trial. We disagree.1

Although N.J.R.E. 404(a)(1) allows a defendant in a 

criminal trial to offer evidence of her good character to show 

she was unlikely to have committed the crimes charged, the Rule 

requires that the character trait evinced by the evidence must 

be one "pertinent" to the issues in the case. See State v. 

Baluch, 341 N.J. Super. 141, 164-68, 194 (App. Div.) (holding

trial court correctly refused to instruct the jury to consider 

testimony of defendant's friends and co-workers that she was a 

hard-working nurse, devoted wife and good mother, when such 

traits were "wholly irrelevant to any pertinent character trait

 

1 We note the State has not argued this decision is not 

reviewable because defendant chose not to call the character 

witnesses. Cf. State v. Whitehead, 104 N.J. 353, 361-62 (1986) 

(holding a defendant need not testify at trial to preserve his 

right to appeal the trial court's determination that the 

defendant's prior convictions could be used to impeach him if he 

testified, declining to follow Luce v. United States, 469 U.S.

38, 42, 105 S. Ct. 460, 464, 83 L. Ed. 2d 443, 448 (1984)). We 

thus assume, without deciding, that the issue was preserved. 
9 A-3362-13T3

tending to show that she had no propensity to abuse household 

help"), certif. denied, 170 N.J. 89 (2001). Defendant's 

character for being hard-working, responsible, dependable and 

trustworthy revealed nothing about whether she was capable of

shooting a cheating boyfriend and thus was likely inadmissible. 

See State v. Mahoney, 188 N.J. 359, 373, cert. denied, 549 U.S.

995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006). 

Assuming for purposes of the analysis that the testimony of 

the proposed character witnesses related to a pertinent trait of 

defendant's character, thus making it admissible, we see no 

reason to have barred the prosecution from cross-examining the 

witnesses regarding the basis for their opinions as to 

defendant's character. The law is well settled that a criminal 

defendant putting in evidence of a pertinent trait of good

character allows the prosecution to counter with evidence of her 

bad character as to the same trait. N.J.R.E. 404(a)(1); State 

v. Hunt, 115 N.J. 330, 369 (1989) (noting the general rule "that 

the prosecutor may not offer evidence of the defendant's 

character to support an inference about the defendant's conduct 

on a specific occasion unless the defendant has first produced 

evidence of good character"). 

Although the adoption of former Evidence Rule 47 ended the 

ability of a prosecutor to impeach the credibility of a 
10 A-3362-13T3

defendant's character witness by inquiring into the witness's 

knowledge of alleged criminal misconduct not evidenced by a 

criminal conviction, neither its successor, N.J.R.E. 405, nor 

N.J.R.E. 607, prohibits such impeachment when the inquiry is 

limited to the witness's knowledge of a defendant's criminal 

convictions. See State v. LaPorte, 62 N.J. 312, 319-20 (1973); 

see also Biunno, Weissbard & Zegas, Current N.J. Rules of 

Evidence, comment 5 on N.J.R.E. 607 (2015) ("N.J.R.E. 608 places 

limitations on impairment of the credibility of a defendant's 

character witness in a criminal proceeding. Inquiry may not be 

made into the witness's knowledge of the defendant's alleged 

criminal conduct which is not evidenced by a criminal 

conviction."). We thus reject defendant's argument that her 

proposed character witnesses could not have been impeached by 

the prosecutor inquiring into their knowledge of defendant's 

prior criminal conviction, subject, of course, to the trial 

judge's determination that its probative value was not 

substantially outweighed by the risk of undue prejudice or any 

of the other N.J.R.E. 403 factors. See State v. Steensen, 35 

N.J. Super. 103, 106-09 (App. Div. 1955).

Defendant did not raise to the trial court her alternate 

argument that the judge should have sanitized her prior murder 

conviction if it was to be used in cross-examining her character 
11 A-3362-13T3

witnesses. See State v. Brunson, 132 N.J. 377, 391-92 (1993); 

cf. State v. Balthrop, 92 N.J. 542, 544-46 (1983) (addressing

sanitization of prior convictions of witnesses for the 

prosecution); see also N.J.R.E. 404(b), 609. Accordingly, we 

review her claim under a plain error standard. See R. 2:10-2;

State v. Angoy, 329 N.J. Super. 79, 88 (App. Div.), certif. 

denied, 165 N.J. 138 (2000).

First, we note the prosecutor stated on the record that he 

would treat the murder conviction on cross-examination of the 

character witnesses "as if we had a Sands[2] hearing, and . . . 

not specify the charge." Second, in subsequently considering 

whether the conviction could be used against defendant if she 

elected to testify, the court determined the murder conviction 

was not so remote as to be excluded under a Sands analysis. It 

did, however, sanitize the conviction in accordance with 

Brunson, by limiting the prosecution to eliciting only the 

degree of the crime and prohibiting questions as to the nature

of the crime or the length of her sentence. Accordingly, we are 

not convinced that had defendant expressed a desire to have the 

conviction sanitized for purposes of the cross-examination, the 

trial court would not have obliged her by entering a similar 

ruling. 

 

2 State v. Sands, 76 N.J. 127, 144 (1978).
12 A-3362-13T3

Although no published appellate decision has addressed 

sanitization in this circumstance,3 we are mindful that "[t]he 

Sands holding reflects [the Supreme] Court's concern about 

severe and unfair prejudice to a defendant from prior-conviction 

evidence," and the discretion the Court has reposed in the trial 

court to ameliorate undue prejudice by resort to a sanitization

remedy. State v. Hamilton, 193 N.J. 255, 264-68 (2008); see 

also N.J.R.E. 403, 404(b) and 609; State v. Gillispie, 208 N.J.

59, 92 (2011). Accordingly, we hold sanitization of defendant's 

prior murder conviction would have been appropriate before the 

prosecutor was allowed to ask defendant's character witnesses 

about their knowledge of the conviction. Because, however, a 

defendant may waive the protection afforded by sanitization,

Brunson, supra, 132 N.J. at 392, we decline to find the trial 

court's failure to sua sponte suggest sanitization in the 

context of impeachment of a character witness automatically 

constitutes reversible error. See State v. Whittle, 52 N.J.

407, 410-11 (1968); cf. State v. Williams, 219 N.J. 89, 98-99 

(2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed.

2d 565 (2015) (discussing difficulty of considering 

 

3 But see State v. Campbell, 212 N.J. Super. 322 (Law Div. 1986), 

for a trial court undertaking a Sands analysis in the context of 

reputation testimony offered by a character witness for the

defendant.
13 A-3362-13T3

Confrontation Clause claim, which a defendant may choose to 

waive for strategic purposes, under plain error standard). In 

no event could we find the failure to have done so here clearly 

capable of producing an unjust result given this record. See

State v. Macon, 57 N.J. 325, 335 (1971).

We turn next to defendant's claims regarding her sentence. 

We agree with defendant, as does the State, that her conviction 

for unlawful possession of a weapon should have been merged with 

her conviction for aggravated assault. See State v. Diaz, 144 

N.J. 628, 636 (1996) ("When the only unlawful purpose in 

possessing the gun is to use it to commit the substantive 

offense, merger is required."). A remand is in order to correct 

that error. 

We reject her claim that her sentence is excessive and the 

parole disqualifier illegal. Because defendant had a prior 

conviction for murder using a firearm, she was subject to a 

mandatory extended term upon her conviction for second-degree 

aggravated assault while using a firearm. See N.J.S.A. 2C:44-

3d. Accordingly, defendant could lawfully be sentenced within a 

range of between five and twenty years. See N.J.S.A. 2C:43-

7a(3); State v. Pierce, 188 N.J. 155, 169 (2006) ("the range of 

sentences, available for imposition, starts at the minimum of 

the ordinary-term range and ends at the maximum of the extended-
14 A-3362-13T3

term range"). Defendant's sixteen-year term plainly falls 

within the statutory range. 

Although defendant maintains the court imposed an illegal 

minimum term of fifteen years, the sentencing transcript belies 

her claim. The court stated clearly on the record that 

defendant's sixteen-year term was subject to NERA, and thus that 

she must serve eighty-five percent before becoming eligible for 

parole. The judgment of conviction, however, states defendant 

is to serve a minimum term of fifteen years during which she is 

ineligible for parole pursuant to N.J.S.A. 2C:43-7d. That 

statute addresses minimum terms for crimes committed with a 

machine gun or assault firearm pursuant to N.J.S.A. 2C:43-6g,

and thus the reference is clearly an error. 

In the event of a discrepancy between the court's oral 

pronouncement of sentence and the sentence described in the

judgment of conviction, the sentencing transcript controls and a 

corrective judgment is to be entered. State v. Rivers, 252 N.J. 

Super. 142, 147 n.1 (App. Div. 1991). Accordingly, a remand is 

also required to conform the judgment of conviction to the 

minimum term sentence the court imposed. As the judgment of 

conviction likewise erroneously notes a finding of aggravating 

factor one, which the sentencing transcript confirms the court 
15 A-3362-13T3

explicitly did not find, the judgment must be corrected for that 

error as well.

We reject defendant's claim that her sentence is excessive. 

Defendant was convicted of murdering her husband in 1982 and 

sentenced to a maximum term of thirty years. Within three years 

of her release from State prison, she was convicted of stabbing 

her then boyfriend with a knife, for which she received a fiveyear probationary term.4 The shooting resulting in this

conviction followed within six years. We are satisfied the 

judge's findings and balancing of the aggravating and mitigating 

factors are supported by adequate evidence in the record, and 

the sentence is neither inconsistent with sentencing provisions 

of the Code of Criminal Justice nor shocking to the judicial 

conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State 

v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J.

165, 180-81 (2009).

We affirm defendant's conviction and remand her sentence 

for merger of her conviction for unlawful possession of a weapon 

with her conviction for aggravated assault and correction of the 

 

4 This conviction was not included in the Sands analysis at trial 

because of some confusion surrounding its disposition. The 

prosecutor mistakenly believed it had been downgraded to a 

disorderly persons offense. See State v. Parker, 216 N.J. 408, 

423 (2014) (noting only indictable offenses which are the 

subject of valid convictions may be used for purposes of 

impeachment).
16 A-3362-13T3

judgment of conviction to reflect the sentence imposed in 

accordance with this opinion. We affirm the sentence in all 

other respects. We do not retain jurisdiction.

Affirmed, and remanded for entry of an amended judgment.