SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1650-21 

STATE OF NEW JERSEY, 

 Plaintiff-Respondent, 

v.

ROBERT W. SMITH, a/k/a 

MOOK SMITH, and KEVIN 

WILLIAMS, 

 Defendant-Appellant. 

_________________________

Submitted February 5, 2024 – Decided May 7, 2024 

Before Judges Gilson and Berdote Byrne. 

On appeal from the Superior Court of New Jersey, Law 

Division, Somerset County, Indictment Nos. 18-06-

0380 and 18-06-0381. 

Jennifer Nicole Sellitti, Public Defender, attorney for 

appellant (Monique D. Moyse, Designated Counsel, on

the brief). 

John P. McDonald, Somerset County Prosecutor, 

attorney for respondent (Gerard J. Tyrrell, Assistant 

Prosecutor, 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NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1650-21

PER CURIAM 

 On the evening of May 4, 2018, C.V.N. (Cathy) and R.P. (Randy) were 

driving in Cathy's Mazda.1 A black Nissan SUV driven by defendant Robert 

Smith pulled alongside the Mazda, and Smith fired three shots at the Mazda. 

Both vehicles then crashed. Fortunately, Cathy and Randy were not hit by the 

bullets and sustained only relatively minor injuries, although Randy later 

testified he suffered a head injury. 

 A jury convicted defendant of two counts of first-degree attempted 

murder, N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:11-3(a)(1); second-degree 

unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); fourth-degree 

possession of a defaced handgun, N.J.S.A. 2C:39-3(d); fourth-degree possession 

of hollow nose bullets, N.J.S.A. 2C:39-3(f)(1); and second-degree possession of 

a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1). The same jury, in 

a separate trial, also convicted defendant of second-degree possession of a 

weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1). Defendant was 

sentenced to an aggregate term of twenty years in prison with periods of parole 

ineligibility and supervision as prescribed by the No Early Release Act (NERA), 

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

1

 We use initials and pseudonyms to protect the victims' privacy interests. 
3 A-1650-21

 Defendant appeals from his convictions and sentence. Discerning no 

reversible error, we affirm. 

I.

 Cathy, Randy, and defendant knew each other. Cathy had lived with 

defendant, and they had two children together. Cathy and Randy had one child 

together. 

 In the afternoon of May 4, 2018, Cathy had driven home in her Mazda 

with Randy. As she and Randy pulled into the parking lot of Cathy's apartment 

building, defendant arrived in a separate car. Defendant and Cathy exchanged 

some words. Cathy later testified that the interaction was "tens[e]," but that 

there was no "major argument." Several hours later, defendant came to Cathy's 

apartment, and he and Cathy had an argument. Defendant gathered some of his 

belongings and told Cathy that he would not be back until the next day. 

 At approximately 9:30 p.m. that same evening, Randy drove Cathy to pick 

up food for the children. Cathy testified that as she and Randy were driving in 

the Mazda, she noticed a black Nissan SUV tailgating the Mazda. Cathy then 

described a chaotic situation during which the Nissan pulled alongside the 

Mazda and she heard gunshots. The Mazda flipped over, rolled several times, 
4 A-1650-21

and came to a stop upside down off the road. Cathy was not seriously hurt, and 

she called 911 to report the incident. 

 The Nissan also went off the road and hit a pole. Two neighbors witnessed 

the Mazda and Nissan drive by, heard three gunshots, and then heard crashing 

metal. The neighbors went to investigate and found defendant lying outside the 

Nissan screaming about an injury to his leg. They also saw another car in the 

bushes and saw Cathy standing nearby screaming about shots being fired at her. 

One of the neighbors called 911. 

 Several police officers responded to the scene, including Officer David 

Giraldo. Giraldo testified that when he arrived shortly after 10:00 p.m., he saw 

defendant lying on the grass two or three feet from a heavily damaged black 

Nissan. A bystander pointed out that there was another car in the bushes. 

Giraldo saw Cathy and Randy standing by the overturned Mazda, and Cathy told 

the officer that someone in the Nissan had fired shots at them. Cathy then 

recognized defendant and told the officer that she had an argument with him 

before the shooting. 

 The police questioned defendant, but he denied having a gun. The police 

later found a handgun under the passenger seat in the Nissan. There were three 

hollow nose bullets in the barrel of the gun, and the gun was in a cocked, ready-
5 A-1650-21

to-fire position. Three spent shell casings were also recovered. The serial 

number on the gun had been scratched off. 

 Defendant, Cathy, and Randy were all taken to a hospital. Several hours 

after the incident, police interviewed Randy at the hospital. Randy told the 

police that he had been driving with Cathy when another car had pulled up 

behind and then alongside them. Randy then saw a gun through the passengerside window of the other car and a muzzle flash. Randy stated he heard the first 

bullet "whiz" past him. Randy then accelerated the Mazda, and it crashed. 

 Following the incident, law enforcement personnel examined both the 

Nissan and the Mazda. The passenger-side mirror on the Nissan had been bent 

forward, and it had a hole consistent with a bullet passing through the mirror. 

The driver's side of the Mazda was also damaged. Law enforcement personnel 

also learned that the Nissan belonged to defendant's cousin. 

 Investigators found two bullet holes in the Mazda: one in the driver's door 

and one in the rear driver's side passenger door. They also recovered two bullets 

from the Mazda: one from the floor and the other from inside the rear passenger 

door. 

 Cathy and Randy both testified at trial. Randy testified that he could not 

recall most of the incident, and he explained he had suffered a head injury that 
6 A-1650-21

affected his memory. He claimed that he had never met defendant and could 

only recall driving Cathy, seeing a flash of light, and then rolling over in the 

Mazda. Randy did remember that he had given a statement to the police while 

at the hospital following the incident, but he could not recall what he had said 

in that statement. 

 The trial court conducted a Gross2 hearing to determine if the State could 

use Randy's statement. Detective Stephen Zeichner testified that he interviewed 

Randy at the hospital several hours after the crash. Zeichner stated that Randy 

had seemed fine, had no visible injuries, and never indicated that he did not wish 

to give a statement. After hearing Zeichner's testimony and listening to Randy's 

recorded statement, the trial court found that the statement was reliable and that 

it was inconsistent with Randy's trial testimony. The trial court, therefore, 

allowed the State to play Randy's recorded statement to the jury. 

 The State also called defendant's cousin to testify at trial. The cousin 

explained that on May 5, 2018, she noted her Nissan SUV was missing and 

defendant's car was in the space where she had left her car. 

2

 State v. Gross, 121 N.J. 1 (1990). 
7 A-1650-21

 Defendant elected to testify at trial. In a prior proceeding, the trial court 

had ruled that if defendant testified, the State could challenge his veracity by 

confronting him with his 2009 criminal convictions.

 Defendant testified that he had an argument with Cathy on the evening of 

May 4, 2018. He explained that he decided to leave the apartment and spend 

the night with some relatives who lived in Carteret. Thereafter, he learned of an 

opportunity to work as a bouncer at a party in Newark that same night. He 

testified that he took his cousin's Nissan because he did not want to drive his 

Cadillac. He also stated that he retrieved a firearm from a storage unit to use 

for his safety. He admitted he did not have a permit for the firearm. 

 Defendant went on to testify that he parked outside Cathy's apartment 

building in the Nissan. As he was sitting there, he saw Cathy's Mazda drive out 

of the apartment complex and believed the Mazda had been stolen. Accordingly, 

defendant followed the Mazda and pulled out his gun, planning to shoot at the 

Mazda's tires. Defendant explained that when he tried to contact the Mazda, the 

Mazda rammed his car and his gun discharged accidentally. Defendant stated 

that the Mazda rammed him at least twice and he fired a shot at the Mazda's 

tires. Defendant also stated that the Mazda rammed him again, and he crashed. 
8 A-1650-21

Defendant told the jury that he was not trying to kill Cathy or Randy, and he 

denied being jealous of the relationship between Cathy and Randy. 

 After hearing all the testimony at the trial, the jury convicted defendant of 

two counts of first-degree attempted murder and related weapons offenses. 

Almost immediately after the end of the first trial, the same jury was presented 

with additional evidence and instructions in a new trial. Thereafter, the jury 

convicted defendant of second-degree possession of a weapon by a previously 

convicted person. 

 Approximately two months later, defendant was sentenced. On the two 

convictions for attempted murder, defendant was sentenced to concurrent terms 

of twenty years in prison, subject to NERA. On the convictions for unlawful 

possession of a weapon and certain persons not to have a weapon, defendant was 

sentenced to eight years in prison on each conviction, and both those sentences 

were run concurrent to his other sentences. All of defendant's other convictions 

were merged. Accordingly, in aggregate, defendant was sentenced to twenty 

years in prison, subject to NERA. 

II. 

 Defendant now appeals from his convictions and sentence. He presents 

five arguments for our consideration, which he articulates as follows: 
9 A-1650-21

POINT ONE: THE PROSECUTOR VIOLATED 

[DEFENDANT'S] RIGHT TO A FAIR TRIAL WHEN 

HE REPEATEDLY TOLD THE JURORS THAT 

[DEFENDANT] LIED TO THEM UNDER OATH IN 

HIS OPENING AND SUMMATION. 

POINT TWO: THE TRIAL COURT'S ORDER 

ADMITTING . . . DEFENDANT'S 2009 

CONVICTION[S] IMPROPERLY UNDERMINED 

[DEFENDANT'S] CREDIBILITY. 

POINT THREE: THE TRIAL COURT'S ORDER 

ADMITTING THE PRIOR INCONSISTENT 

STATEMENT OF A STATE'S WITNESS WITHOUT 

SATISFYING THE REQUIREMENTS OF N.J.R.E. 

803(A)(1) DEPRIVED [DEFENDANT] OF HIS 

RIGHT TO DUE PROCESS AND A FAIR TRIAL. 

POINT FOUR: THE TRIAL COURT FAILED TO 

CHARGE THE JURY BEFORE [DEFENDANT'S] 

CERTAIN [PERSONS] TRIAL AND THEREFORE 

DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL. 

POINT FIVE: THE TRIAL COURT ABUSED ITS 

DISCRETION BY IMPOSING A MANIFESTLY 

EXCESSIVE SENTENCE. 

A. The Prosecutor's Comments. 

 Prosecutors in criminal cases are expected to make "vigorous and 

forceful" arguments to juries. State v. Frost, 158 N.J. 76, 82 (1999); see also 

State v. Garcia, 245 N.J. 412, 435 (2021). Nevertheless, a prosecutor's opening 

statement to the jury "'should provide an outline or roadmap of the State's case' 

and 'should be limited to a general recital of what the State expects, in good 
10 A-1650-21

faith, to prove by competent evidence.'" State v. Land, 435 N.J. Super. 249, 269 

(App. Div. 2014) (emphasis omitted) (quoting State v. Walden, 370 N.J. Super. 

549, 558 (App. Div. 2004)). Likewise, prosecutors are "obliged to confine 

summation remarks to the evidence in the case and only those reasonable 

inferences that may be drawn from that evidence." State v. McNeil-Thomas, 

238 N.J. 256, 283 (2019) (LaVecchia, J., dissenting). 

 Accordingly, a prosecutor's comments concerning the credibility of 

witnesses must be supported by the record. See State v. Smith, 167 N.J. 158, 

179-82 (2001). The prosecutor should not express his or her personal opinion 

on a witness's credibility, but "may attempt to persuade the jury that a witness 

is not credible and in doing so, 'may point out discrepancies in a witness's 

testimony or a witness's interests in presenting a particular version of events.'" 

State v. Supreme Life, 473 N.J. Super. 165, 174 (App. Div. 2022) (quoting State 

v. Johnson, 287 N.J. Super. 247, 267 (App. Div. 1996)). 

 When a defendant testifies, a prosecutor may comment on inconsistencies 

in the defendant's trial testimony or prior statements, provided that the 

prosecutor does not attempt to characterize the entirety of the defendant's 

testimony as false. See id. at 175. In that regard, we have explained: 

[W]hile the prosecutor was entitled to draw the jury's 

attention to [the] defendant's false statements . . . when 
11 A-1650-21

assessing the credibility of [the] defendant's trial 

testimony, he was not permitted to tip the scale in the 

State's favor by repeatedly telling jurors that [the] 

defendant's trial testimony was not worthy of belief 

because [the] defendant lied before, was lying again 

and was, simply put, therefore a liar. 

[Ibid.] 

In short, a prosecutor should not call a defendant a "liar." See State v. 

Wakefield, 190 N.J. 397, 466 (2007); Supreme Life, 473 N.J. Super. at 174. 

 Defendant argues that his right to a fair trial was violated when the 

prosecutors repeatedly told the jury that defendant was a liar.3 Defendant points 

to comments in the State's opening and closing statements to the jury. In the 

State's opening statement, the prosecutor made the following two comments: 

1. "One of the officers asks [defendant] immediately [if there is] 

anything in the car that [the officer] needs to know about. The defendant says 

no, help me with my leg. He lies." 

2. "Again, the officer asks[,] anything in the car that I need to know 

about[?] The defendant says there's nothing in the car. He lied." 

 During the closing arguments, the prosecutor made the following eight 

additional statements to the jury: 

3

 Two assistant prosecutors represented the State at trial. One gave the opening 

and the other the closing. 
12 A-1650-21

3. "The defendant lied to you multiple times in his testimony under 

oath. Multiple times." 

4. "That gun is an illegal gun for multiple reasons. It is clearly 

defaced. Another lie to you: 'Oh, I don't know what defaced means.'" 

5. "The bizarre nature of the defendant's version is so inconsistent with 

objective evidence in this case that you know he lied to you under oath." 

6. "How do you know he lied to you under oath? What was the word 

he used . . . . Something like . . . he was jolted or something . . . . Oh, maybe 

this is an accidental shooting." 

7. "During his testimony, he lied to you multiple times." 

8. "He lied to [an officer] at the scene." 

9. "That source of testimony that comes from the defendant and a lot 

of the testimony that he gave to you is a source that you should be reticent [sic] 

to believe because it's (a) inconsistent with the facts, it's inconsistent with human 

beings. He's motivated to lie or mislead you. He's charged with very serious 

offenses." 

10. "He testified that they were like six inches apart of [inaudible] 

connected or you are nowhere near tires. That's a lie." 
13 A-1650-21

 All those statements by the prosecution were improper. Nevertheless, 

defense counsel did not object to any of those statements at trial. Accordingly, 

we review the statements for plain error. See R. 2:10-2; State v. Singh, 245 N.J. 

1, 13 (2021) (explaining that "[w]hen a defendant does not object to an alleged 

error at trial, such error is reviewed under the plain error standard"). "[A]n 

unchallenged error constitutes plain error if it was 'clearly capable of producing 

an unjust result,'" Singh, 245 N.J. at 13 (quoting R. 2:10-2), and "raise[s] 'a 

reasonable doubt . . . as to whether the error led the jury to a result it otherwise 

might not have reached,'" State v. Funderburg, 225 N.J. 66, 79 (2016) (omission 

in original) (quoting State v. Jenkins, 178 N.J. 347, 361 (2004)). When applying 

the plain error standard, courts must evaluate the error "in light of the overall 

strength of the State's case." State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) 

(quoting State v. Galicia, 210 N.J. 364, 388 (2012)). 

 Here, we discern no plain error. The State's evidence against defendant 

was very strong. Defendant did not deny that he was driving the Nissan. He 

also admitted that he had a weapon with him and that at least two bullets were 

discharged towards the Mazda. Defendant's contention was that he initially 

discharged the gun accidentally. There was strong circumstantial evidence that 

the gun did not discharge accidentally. In that regard, the jury heard Randy's 
14 A-1650-21

statement that a bullet "whizzed" by him. The State also found two bullet holes 

in the Mazda and recovered two bullets from the Mazda, one from the floor and 

the second from the rear passenger door. That evidence does not suggest an 

accidental firing and is inconsistent with defendant's contentions that he only 

fired one bullet intentionally and aimed for the tire, and that any other bullets 

discharged were done so accidentally. The jury also heard Cathy's testimony 

that she and defendant had some kind of exchange earlier in the evening, that 

bullets had been fired at her while she was in her Mazda, and that just after the 

accident, she saw defendant at the scene of the crash. 

 Defendant correctly points out that his credibility was a critical issue at 

trial. He also correctly points out that it was improper for the prosecutors to call 

him a liar ten times. Nevertheless, when evaluated in full context, the 

prosecutors' comments were not clearly capable of producing an unjust result 

nor do they raise a reasonable doubt as to whether those comments led the jury 

to a result it otherwise might not have reached. Because the evidence against 

defendant was substantial and came from various witnesses, we discern no plain 

error in the prosecutors' improper comments. 
15 A-1650-21

B. The Admission of Defendant's 2009 Convictions. 

 N.J.R.E. 609 governs the admissibility of a prior conviction for the 

purpose of impeaching a witness. If more than ten years "have passed since the 

conviction or the witness's release from confinement for that conviction, 

whichever is later, the conviction 'is admissible only if the court determines that 

its probative value outweighs its prejudicial effect.'" State v. Higgs, 253 N.J. 

333, 368 (2023) (quoting N.J.R.E. 609(b)(1)). The party seeking to introduce 

the conviction must show that the probative value outweighs its prejudicial 

effect. Ibid. In making the admissibility determination, the trial court can 

consider (1) "whether there are intervening convictions for crimes or offenses, 

and if so, the number, nature, and seriousness of those crimes or offenses," (2) 

"whether the conviction involved a crime of dishonesty, lack of veracity or 

fraud," (3) "how remote the conviction is in time," and (4) "the seriousness of 

the crime." State v. R.J.M., 453 N.J. Super. 261, 269 (App. Div. 2018) (quoting 

N.J.R.E. 609(b)(2)).

 "The key to exclusion is remoteness," which "cannot ordinarily be 

determined by the passage of time alone." State v. Murphy, 412 N.J. Super. 553, 

564 (App. Div. 2010) (quoting State v. Sands, 76 N.J. 127, 144 (1978)). An 
16 A-1650-21

appellate court reviews a trial court's admission of a defendant's prior conviction 

for an abuse of discretion. Higgs, 253 N.J. at 367. 

 Before trial, the trial court conducted a hearing on which convictions, if 

any, would be admitted if defendant testified. The State sought to introduce four 

prior convictions: a 2001 conviction for third-degree possession of drugs on or 

near school property; a 2003 conviction for third-degree possession of drugs 

with intent to distribute; and two 2009 convictions for third-degree terroristic 

threats and third-degree receiving stolen property. The trial court correctly 

recognized that all those convictions were beyond the ten-year period and, 

therefore, the court balanced probative value versus prejudicial effect. The court 

excluded the 2001 and 2003 convictions. 

 In contrast, the court allowed the 2009 convictions because they were just 

beyond the ten-year period. Just as importantly, the court considered the nature 

of the crimes and found that they went to defendant's veracity. The court then 

appropriately sanitized what the jury would hear concerning the 2009 

convictions. We discern no abuse of discretion in that decision. 

 Defendant also argues that the court did not give a limiting instruction 

immediately after the jury heard about defendant's 2009 convictions. That is 

accurate. The trial court did, however, give a limiting instruction as part of the 
17 A-1650-21

final jury charge. The court explained that defendant's prior convictions "may 

only be used in determining the credibility or believability of [his] testimony," 

and that the jury "may not conclude that the defendant committed the crime 

charged in this case or is more likely to have committed the crime charged 

simply because he committed a crime on another occasion." Consequently, we 

discern no reversible error concerning when the trial court provided that correct 

limiting instruction. 

C. The Admission of Randy's Prior Statement. 

 The State called Randy to testify at trial. After Randy stated that he could 

not remember most of the incident, the State moved to admit the statement he

had given to the police shortly after the incident. After conducting a Gross 

hearing outside the presence of the jury, the trial court found that Randy's 

testimony was inconsistent with his prior statement and the prior statement was 

reliable. Accordingly, the trial court permitted the State to introduce and play 

for the jury Randy's prior recorded statement. Defendant now argues that the 

admission of Randy's prior statement was reversible error because it deprived 

him of a fair trial. We disagree. 

 N.J.R.E. 803(a) provides that a witness's prior inconsistent statement may 

be admitted as substantive evidence under certain circumstances. When the 
18 A-1650-21

prior statement is inconsistent with the witness's testimony at trial and the party 

that called the witness seeks to introduce the statement, the statement is 

admissible if it is "contained in a sound recording or in a writing made or signed 

by the declarant-witness in circumstances establishing its reliability," or was 

given under oath in a proceeding or deposition. N.J.R.E. 803(a)(1). 

 Reliability is determined by considering several factors relating to how 

and to whom the statement was made. See Gross, 121 N.J. at 10; State v. Brown, 

138 N.J. 481, 539 (1994). The statement must be proven reliable "by a fair 

preponderance of the evidence" when considering "all surrounding 

circumstances" under which the statement was made. State v. Spruell, 121 N.J. 

32, 41-42 (1990). 

 The trial court conducted a hearing outside the presence of the jury and 

heard testimony from Zeichner, who took the statement from Randy. The trial 

court also listened to Randy's recorded statement. Based on that evidence, the 

trial court found that Randy's prior statement was reliable. The trial court also 

found that the substance of Randy's prior statement was inconsistent with his 

testimony at trial. We discern no abuse of discretion in that decision. See 

Summit Plaza Assocs. v. Kolta, 462 N.J. Super. 401, 409 (App. Div. 2020) 

(explaining that "a trial court is afforded considerable latitude regarding the 
19 A-1650-21

admission of evidence, and is to be reversed only if the court abused its 

discretion" (quoting Alves v. Rosenberg, 400 N.J. Super. 553, 562 (App. Div. 

2008))). 

D. The Trial Court's Charge to the Jury at the Certain Persons Trial. 

 When a defendant is charged with a weapons offense and the offense of 

certain persons not to have a weapon, the certain persons offense "must be tried 

separately since proof that [the] defendant was a convicted felon (required in the 

trial of the latter charge) clearly tends to prejudice the jury in considering the 

former." State v. Ragland, 105 N.J. 189, 193 (1986). To protect the defendant's 

right to a jury trial, the jury in the second trial must be instructed that (1) the 

State needs to prove each element of a certain persons offense beyond a 

reasonable doubt; (2) the jury must consider all the evidence at the second trial 

as new evidence; and (3) the jury must disregard its prior verdict. Id. at 194-95.

 "Appropriate and proper jury instructions are essential for a fair trial." 

State v. A.L.A., 251 N.J. 580, 591 (2022). A jury charge must "correctly state 

the applicable law, outline the jury's function and be clear in how the jury should 

apply the legal principles charged to the facts of the case at hand." Ibid. (quoting 

Est. of Kotsovska v. Liebman, 221 N.J. 568, 591 (2015)). 
20 A-1650-21

 The model criminal jury charge for a certain persons offense directs the 

jury to "disregard completely [its] prior verdict" and instructs that defendant is 

entitled to the presumption of innocence and the State must again prove every 

element of the crime beyond a reasonable doubt. Model Jury Charges 

(Criminal), "Certain Persons Not to Have Any Firearms (N.J.S.A. 2C:39-

7(b)(1))" (rev. Nov. 13, 2023). The model jury charge states that the charge 

should be given "before the beginning of the second trial if it is tried before the 

same jury that decided the possessory charge of a weapon or firearm." Ibid. 

Accordingly, the focus is whether the jury was sufficiently instructed to 

disregard its prior verdict and consider the evidence anew. See Ragland, 105 

N.J. at 195-96; State v. Hooks, 350 N.J. Super. 59, 71 (App. Div. 2002). 

The court here did not instruct the jury at the beginning of the separate 

trial on the certain persons offense. Defense counsel, however, did not object 

or request an instruction at the beginning of the second trial and, therefore, we 

review this issue for plain error. See Singh, 245 N.J. at 13. 

 The trial court did give the jury clear instructions at the end of the second 

trial, which took only one day. In that regard, the trial court instructed the jury: 

You must now disregard completely your prior 

verdict that you just returned on the seven counts 

presented to you and consider anew the evidence 

previously admitted on the possession of a weapon. 
21 A-1650-21

The defendant is entitled to a presumption of 

innocence. Each and every material fact that makes up 

the crime including the element of possession must be 

proven by the State beyond a reasonable doubt. 

That instruction correctly explained the jury's role, and we discern no 

reversible error even though the jury was not given the instruction at the 

beginning of the second trial. Given the short duration of the second trial, our 

review of the record satisfies us that the jury was properly instructed that it must 

disregard the prior verdict, consider the evidence of possession anew, and 

determine that the State had proved each element of the certain persons charge 

beyond a reasonable doubt. 

E. Defendant's Sentence. 

 Finally, defendant argues that his sentence was excessive. The record 

does not support that argument. 

 An appellate court's standard of review of a sentence is well-established 

and deferential. State v. Cuff, 239 N.J. 321, 347 (2019); State v. Fuentes, 217 

N.J. 57, 70 (2014). We will affirm a trial court's sentence unless: "(1) the 

sentencing guidelines were violated; (2) the findings of aggravating and 

mitigating factors were not 'based upon competent credible evidence in the 

record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] 

the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration 
22 A-1650-21

in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). The balancing 

process to determine a sentence "is more than counting whether one set of 

factors outnumbers the other . . . the court must qualitatively assess the relevant 

aggravating and mitigating factors, assigning each factor its appropriate 

weight." State v. Case, 220 N.J. 49, 65 (2014) (citing Fuentes, 217 N.J. at 72-

73). 

Defendant was convicted of two counts of first-degree attempted murder. 

The sentencing range for those first-degree convictions is between ten and 

twenty years. N.J.S.A. 2C:43-6(a)(1). The court also needed to consider 

whether to run those sentences consecutively or concurrently. See State v. 

Torres, 246 N.J. 246, 267-70 (2021); State v. Yarbough, 100 N.J. 627, 643-44 

(1985). The court found aggravating factors three (the risk of re-offense), 

N.J.S.A. 2C:44-1(a)(3); six (defendant's prior criminal record), N.J.S.A. 2C:44-

1(a)(6); and nine (the need for deterrence), N.J.S.A. 2C:44-1(a)(9). The court 

also considered but found no mitigating factors. After evaluating the relevant 

considerations under Yarbough, the court determined to run the two sentences 

concurrently. The court also determined to run the sentences for defendant's 

weapons convictions concurrently or to merge those convictions. So, after being 

convicted of seven different crimes, including two first-degree crimes and two 
23 A-1650-21

second-degree crimes that were not merged, defendant was sentenced to an 

aggregate prison term of twenty years, subject to NERA. We discern nothing 

excessive in that sentence and no abuse of discretion. 

 Affirmed.