SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1811-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY C. RIDGEWAY, 

a/k/a ANTHONY RIDGEWAY,

Defendant-Appellant.

_________________________________

Submitted March 14, 2017 – Decided

Before Judges Fisher, Leone, and Vernoia.

On appeal from Superior Court of New Jersey, 

Law Division, Cumberland County, Indictment 

No. 11-08-0713.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Rochelle Watson, Assistant 

Deputy Public Defender, of counsel and on the 

brief).

Jennifer Webb-McRae, Cumberland County 

Prosecutor, attorney for respondent (Stephen 

C. Sayer, Assistant Prosecutor, of counsel and 

on the brief). 

The opinion of the court was delivered by

LEONE, J.A.D.

NOT FOR PUBLICATION WITHOUT THE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.

December 5, 2017
2 A-1811-14T3

Defendant Anthony C. Ridgeway appeals his judgment of 

conviction. We remand for a hearing on a juror's impartiality. 

Subject to the outcome of that hearing, we affirm defendant's 

convictions. We vacate the consecutive nature of the sentence and 

remand for resentencing.

I.

Defendant was prosecuted for killing Tara Valentin in the wee 

hours of September 24, 2010. She was found shot in the eye with 

a small-caliber weapon at close range at her home in a Fairfield 

Township trailer park.

At trial, the State called Terri Wright, who also lived at 

the trailer park. She testified as follows. Around midnight she 

saw defendant with a gun. She overheard him on his cell phone 

trying to sell the gun around 2:00 a.m. He left but returned to 

Wright's trailer and threw down the gun around 4:30 a.m. Wright 

admitted to involvement with drugs, namely cocaine and marijuana. 

She testified she had a couple beers that night, and admitted 

using cocaine between defendant's departure time and his return. 

The State also called co-defendant Matthew Allison, whose 

phone records showed he was phoned by defendant around 3:30 a.m. 

He testified as follows. Defendant phoned Allison and told Allison 

he purchased a .22 caliber gun and asked if Allison could help 
3 A-1811-14T3

sell it. After they unsuccessfully tried to sell the gun over the 

phone, they tried to sell it to Valentin, a drug dealer. Defendant 

showed the gun to her. Allison said Valentin "got ignorant with 

us" and said something like "[g]et it out of my face" or "I don't 

want that piece of shit."

Allison testified that as he and defendant walked away, they 

decided to go back and take Valentin's drugs and money because 

they had been insulted by her. Allison testified that they decided 

that defendant "was going to just point the gun at her and 

[Allison] was going to go in a bedroom and take the drugs."

Allison testified he and defendant entered Valentin's 

trailer, where Valentin was lying on the couch. Defendant pointed 

the gun at her and said: "I want everything. I want all the 

drugs." Valentin stood up and went to grab the gun. She barely 

touched the barrel when defendant tried to pull the gun back and 

it fired. Allison grabbed some pills he saw on the coffee table, 

and broke the window so it would look like a break-in. Allison 

and defendant ran back to defendant's trailer.

The State also called Rodger Barrick, defendant's uncle, who 

testified that on the afternoon of September 24, defendant arrived 

at the house of Barrick's girlfriend, asked to stay the night, and 

told Barrick he accidentally shot a person when the person "kicked 

the gun," causing it to go off. That evening, the police found 
4 A-1811-14T3

defendant in the attic of the house and arrested him. Barrick 

testified he was "a drinking man," he drank some beers when 

defendant confessed to him, and he drank "[q]uite a bit" that day 

or the night before.

A jury acquitted defendant of first-degree felony murder, but 

found him guilty of first-degree aggravated manslaughter, N.J.S.A.

2C:11-4(a)(1); first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1) 

and (2); second-degree burglary, N.J.S.A. 2C:18-2(b)(1); seconddegree possession of a weapon for an unlawful purpose, N.J.S.A.

2C:39-4(a); second-degree unlawful possession of a weapon, 

N.J.S.A. 2C:39-5(b); and second-degree certain persons not to have 

firearms, N.J.S.A. 2C:39-7(b). The trial court imposed an 

aggregate prison sentence of forty-six years with 85% to be served 

without parole under the No Early Relief Act (NERA), N.J.S.A.

2C:43-7.2.

Defendant appeals his June 19, 2014 judgment of conviction. 

He argues:

POINT I - DEFENDANT WAS DEPRIVED OF HIS RIGHT 

TO A FAIR TRIAL BECAUSE THE TRIAL COURT FAILED 

TO ENSURE THAT JURORS EXPOSED TO COMPROMISING 

(sic) MATERIAL, IN TWO SEPARATE INCIDENTS, 

COULD DELIBERATE IMPARTIALLY.

A. WHERE THE PROSECUTOR'S CASE AGENT 

OFFERED A JUROR A PARKING SPOT IN THE 

PROSECUTOR'S LOT, AND THEN HAD A FOLLOWUP CONVERSATION WITH THE JUROR DURING A 
5 A-1811-14T3

TRIAL RECESS, THE TRIAL COURT WAS REMISS 

IN FAILING TO VOIR DIRE THE JUROR. 

B. THE TRIAL COURT FAILED TO CONDUCT AN 

ADEQUATELY PROBING VOIR DIRE TO ENSURE 

THE JURY'S IMPARTIALITY AFTER TWO JURORS 

WITNESSED THE DEFENDANT'S AND THE 

VICTIM'S FAMILY IN A VOLATILE 

CONFRONTATION BEFORE THE FINAL DAY OF 

DELIBERATION. 

POINT II - THE TRIAL COURT ERRED IN FAILING 

TO GIVE A THIRD CIRCUIT MODEL INSTRUCTION ON 

THE "CREDIBILITY OF WITNESSES – TESTIMONY OF 

ADDICT OR SUBSTANCE ABUSER," WHERE DEFENSE 

COUNSEL REQUESTED THE INSTRUCTION AND TWO OF 

THE CRITICAL WITNESSES ADMITTED TO BEING 

IMPAIRED WHEN THE RELEVANT EVENTS TOOK PLACE.

POINT III- DEFENDANT'S AGGREGATE SENTENCE OF 

46 YEAR'S IMPRISONMENT SUBJECT TO NERA, 

CONSISTING OF TWO CONSECUTIVE SENTENCES IN 

VIOLATION OF STATE V. YARBOUGH, IS MANIFESTLY 

EXCESSIVE. 

II.

Defendant raises two claims that the jury was tainted. "The 

Sixth Amendment of the United States Constitution and Article I, 

paragraph 10 of the New Jersey Constitution guarantee criminal 

defendants 'the right to . . . trial by an impartial jury.'" State 

v. R.D., 169 N.J. 551, 557 (2001) (quoting N.J. Const. art. I, ¶ 

10, and citing U.S. Const. amend. VI). A defendant has "the right 

to have the jury decide the case based solely on the evidence 

presented at trial, free from the taint of outside influences and 

extraneous matters." Ibid. 
6 A-1811-14T3

"Once a hearing is conducted, '[a] new trial will be granted 

where jury misconduct or intrusion of irregular influences into 

the jury deliberation "could have a tendency to influence the jury 

in arriving at its verdict in a manner inconsistent with the legal 

proofs and the court's charge."'" State v. McGuire, 419 N.J. 

Super. 88, 154 (App. Div. 2011) (citation omitted). "'[I]f the 

irregular matter has that tendency on the face of it, a new trial 

should be granted without further inquiry as to its actual effect. 

The test is not whether the irregular matter actually influenced 

the result, but whether it had the capacity of doing so.'" R.D., 

supra, 169 N.J. at 558 (citation omitted).

A.

Defendant's first claim involves contact between Detective 

Dominic Patitucci of the Cumberland County Prosecutor's Office and 

an elderly man who later became a juror. According to Patitucci, 

in late February 2014, Patitucci saw an older gentleman having 

some distress walking down a hallway in the courthouse. The man 

was holding onto the handrail, walking very slowly and using his 

cane. Patitucci approached him and asked if he was okay. The 

issue of parking came up, and Patitucci told him "our office is 

pretty vacant next door" and offered him a place to park. 

Patitucci told him to tell the female monitoring the lot it was 

okay for him to park there. 
7 A-1811-14T3

Jury selection occurred on March 5-6, and the elderly man was 

selected as juror #11. It appears Patitucci was not present for 

jury selection.1 

On March 11, trial began with opening statements. Patitucci 

was now in the courtroom as the case agent sitting at counsel 

table assisting the prosecutor. According to Patitucci, during 

the lunch break the juror "made eye contact like, hey, thanks. 

And I was like, yeah, everything good?" The juror thanked 

Patitucci, but said he was not using the parking lot Patitucci had 

offered. Instead, he said he was parking at the regular parking 

garage and another juror was picking him up and driving him to the 

courthouse door. 

During the break, defense counsel raised "a secondary issue," 

namely that he had seen Patitucci talking with juror #11 about 

parking, and that "Patitucci was forthcoming" to defense counsel 

and confirmed they were discussing parking. Defense counsel, who 

had only overheard the conversation in passing, believed juror #11 

and another juror were using the prosecutor's parking lot. 

The trial court noted that in jury selection juror #11 had 

asked the court for parking accommodations, that the request had 

 

1 The prosecutor advised the potential jurors that "during the 

course of this trial, there'll be a detective sitting with me and 

assisting" named Patitucci. 
8 A-1811-14T3

"slipped my mind," and that the prosecutor's lot was not marked 

as such. The court asked defense counsel what he wanted the court 

to ask the juror. Defense counsel replied: "I don't even know if 

there's anything to ask him, Judge. Actually, I would just move 

to have him struck." When the court later said it did not "see 

any questions that would be asked," defense counsel reiterated: 

"I don't know necessarily that there's anything to question him 

about." 

The trial court then had Patitucci take the witness stand, 

and Patitucci related the hallway encounter two weeks before and 

the contact during the break that day. The court confirmed the 

original encounter was before the elderly man was a juror. The 

court ascertained that the juror had not parked in the prosecutor's 

lot and that the contact during the break was just to let Patitucci 

know that. The court concluded it was "[m]uch ado about nothing," 

and did not "see any reason to disturb the matter further." The 

court added that "it sounds like the juror is more aware of his 

responsibilities then we give him credit for, in that he did not 

actually utilize [the lot], if he became aware that that was the 

Prosecutor's parking lot," but "made other arrangements, which 

restores our faith in the jury system."

The trial court told Patitucci that contact with the juror 

about parking "has to stop" and was "not going to be permitted any 
9 A-1811-14T3

further." The court made clear any parking arrangements for the 

juror would be made through the Sheriff's Department. The court 

proposed, without objection, to ask the juror at the end of the 

day what his arrangements were and if he needed other parking 

assistance from the Sheriff's Department. 

As the jury was being discharged for the day, the trial court 

reminded juror #11 of his prior request to the court for 

accommodation for parking. The juror said that he had made 

arrangements and that one of the jurors was driving him over from 

the garage. The court praised such cooperation among jurors, and 

added that if the juror needed any other parking arrangement, he 

could talk to the sheriff's officer. The court then reiterated 

to all the jurors that "no one is permitted to talk to you outside 

the courtroom," that "if anyone attempts to approach you or talk 

to you, don't tell that to any other juror" but just to court 

staff, and that they should not talk about the case with anyone.

On appeal, defendant concedes "the juror did not ultimately 

take advantage of the complimentary parking spot." Defendant 

argues that "the trial court was remiss in failing to voir dire 

the juror." 

We agree the court should have questioned juror #11 about 

Patitucci's offer. Even though the juror declined the offer, he 

still may have felt gratitude toward Patitucci, who as case agent 
10 A-1811-14T3

would be sitting next to the prosecutor. Questioning the juror

would have determined what the juror felt and whether he could set 

his feelings aside and decide the case without bias toward either 

side. As the juror had just spoken about the offer to Patitucci, 

there was no danger that questioning would remind him of an offer 

he had forgotten. 

"[I]f during the course of the trial it becomes apparent that 

a juror may have been exposed to extraneous information, the trial 

court must act swiftly to overcome any potential bias and to expose 

factors impinging on the juror's impartiality." R.D., supra, 169 

N.J. at 557–58. "The court is obliged to interrogate the juror, 

in the presence of counsel, to determine if there is a taint[.]" 

Id. at 558 (citation omitted). "It is the duty of the court to 

ask probing questions to protect the impartiality of the jury." 

Id. at 563. 

However, defendant never requested the trial court voir dire 

juror #11. To the contrary, defense counsel repeatedly told the 

trial court he could not think of "anything to question him about." 

Instead, defendant moved to strike juror #11 when he believed the 

juror was parking in the prosecutor's lot. After Patitucci related 

the juror declined the offer, defendant requested no other relief. 

At the very least, defendant must show it was plain error to 

forego a voir dire he never requested. State v. Winder, 200 N.J.
11 A-1811-14T3

231, 252 (2009); see, e.g., R.D., supra, 169 N.J. at 554 (finding 

no plain error for not questioning a juror about extraneous 

knowledge). "Under that [plain error] standard, defendant has the 

burden of proving that the error was clear and obvious and that 

it affected his substantial rights." State v. Morton, 155 N.J.

383, 421 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 

L. Ed. 2d 306 (2001); accord United States v. Olano, 507 U.S. 725, 

734, 113 S. Ct. 1770, 1778, 123 L. Ed. 2d 508 (1993). He must 

show the omission was "clearly capable of producing an unjust 

result." R. 2:10-2.

Defendant cannot show a basis for a new trial at this time. 

The situation here is unlike the circumstances in the cases cited 

by defendant. This case did not involve a juror who had prejudged 

a capital case, State v. Loftin, 191 N.J. 172, 192 (2007), a 

racially-biased juror, State v. Tyler, 176 N.J. 171, 182 (2003), 

or a juror who knew the victim and the lead witness and knew about 

the crime, State v. Wormley, 305 N.J. Super. 57, 68-70 (App. Div. 

1997). This is not a case where the jury heard extraneous 

assertions of the defendant's guilt, State v. Grant, 254 N.J. 

Super. 571, 584-86 (App. Div. 1992), or highly inflammatory facts 

about the defendant's prior crimes, State v. Fortin, 178 N.J. 540, 

576 (2004). Nor is this a case where the two key prosecution 

witnesses in a capital case were sheriffs charged with safekeeping 
12 A-1811-14T3

the jurors who had "a continuous and intimate association [with 

them] throughout a three-day trial." Turner v. Louisiana, 379 

U.S. 466, 473, 85 S. Ct. 546, 550, 13 L. Ed. 2d 424, 429 (1965).

This case also did not involve an attempt to influence a 

sitting juror on how to decide the case. Cf. Remmer v. United 

States, 347 U.S. 227, 228-30, 74 S. Ct. 450, 450-52, 98 L. Ed.

654, 655-56 (1954) (remanding for a post-trial hearing where a 

person told a juror during trial "that he could profit by bringing 

in a verdict favorable to the petitioner"). In Remmer, the Supreme 

Court indicated that such a "private communication, contact, or 

tampering, directly or indirectly, with a juror during a trial 

about the matter pending before the jury is, for obvious reasons, 

deemed presumptively prejudicial." Id. at 229, 74 S. Ct. at 451, 

98 L. Ed. at 656 (emphasis added); accord State v. Scherzer, 301 

N.J. Super. 363, 487 (App. Div.), certif. denied, 151 N.J. 466 

(1997). 

"There may be cases where an intrusion should be presumed 

prejudicial," but this is not one of them, because it was not 

about the matter pending before the jury. United States v. Olano, 

507 U.S. 725, 739-41, 113 S. Ct. 1770, 1780-81, 123 L. Ed. 2d 508, 

522-24 (1993) (declining to apply the Remmer presumption of 

prejudice to the improper presence during jury deliberations of 

alternate jurors); see Smith v. Phillips, 455 U.S. 209, 215-17, 
13 A-1811-14T3

102 S. Ct. 940, 945-46, 71 L. Ed. 2d 78, 85-86 (1982) 

(distinguishing Remmer's "attempted bribe, which it characterized 

as 'presumptively prejudicial,'" from "allegations of implied 

juror bias" which a defendant must prove).2

Here, "[t]here was no suggestion of outside influence, racial 

prejudice, media exposure, or any of the other sorts of irregular 

influences sufficient to create a potential for prejudice." 

Scherzer, supra, 301 N.J. Super. at 495-96. Moreover, "[t]his is 

a plain-error case, and it is [defendant] who must persuade the 

appellate court that the deviation . . . was prejudicial." Olano, 

supra, 507 U.S. at 741, 113 S. Ct. at 1781, 123 L. Ed. 2d at 524; 

see Morton, supra, 155 N.J. at 421.

The conversation two weeks before trial was an innocuous 

discussion about parking. See McGuire, supra, 419 N.J. Super. at 

155. When Patitucci offered parking assistance to the elderly 

man, the man was not a juror, and neither person had any 

discernable reason to believe the other person would participate 

in defendant's future trial. 

 

2 Indeed, "questions have arisen concerning the ongoing viability 

of the Remmer 'presumption.'" State v. Harris, 181 N.J. 391, 506 

(2004); see, e.g., United States v. Sylvester, 143 F.3d 923, 934 

(5th Cir. 1998) (holding "the Remmer presumption of prejudice 

cannot survive Phillips and Olano"). 
14 A-1811-14T3

On the first day of trial, they had "a brief encounter" which 

confirmed the man had declined Patitucci's offer of parking. See

Turner, supra, 379 U.S. at 473, 85 S. Ct. at 550, 13 L. Ed. 2d at 

429. The trial court's instructions did not clearly proscribe it. 

The court told jurors not to talk about "the case," and to report 

if "anyone should attempt to discuss the case with you," but the 

juror and Patitucci did not talk about the case. The court told 

jurors not to speak with "any of the attorneys, the witnesses, or 

the defendant," but Patitucci did not fall in those categories and 

was not on the witness list read to the jurors. Those same 

limitations were implicit in the court's instruction to report 

"[i]f anyone should approach you or anyone attempt to talk to 

you," and explicit in the instruction right before the lunch break: 

"do not have anyone contact you about this case. If someone 

attempts to contact you, please let me know." Thus, the juror did 

not clearly violate the court's limited instructions.

This case is unlike the Iowa case on which defendant relies, 

State v. Carey, 165 N.W.2d 27 (Iowa 1969). There, during trial 

jurors were given free coffee in the jury room with a sign stating 

"coffee will be furnished in the jury room by the county clerk and 

the county attorney." Id. at 28. The bailiff testified that she 

purchased the coffee, that the county attorney intended to 

reimburse her for it, and that the sign was placed without 
15 A-1811-14T3

knowledge of the county attorney. Ibid. The Iowa Supreme Court 

did not believe "any juror here was corrupted for the price of a 

cup of coffee, but was concerned with the "appearance" to the 

jurors and to the public, that the prosecutor intentionally gave 

a gift to sitting jurors. Id. at 29-30. "The effect upon the 

jurors and upon any member of the public . . . was the same as if 

it" was "an intentional attempt to secure favor with those persons 

who were even then in the process of passing upon . . . guilt or 

innocence." Id. at 30. 

By contrast, Patitucci's offer of parking assistance did not 

have that appearance. Most importantly, when Patitucci offered 

parking assistance to the elderly man, the man was not a sitting 

juror, trial and jury selection had not even commenced, and neither 

had any idea that the man would become a juror in defendant's 

trial. Moreover, unlike the sign in Carey, Patitucci did not seek 

credit for the prosecutor. See State v. Lampman, 342 N.W.2d 77, 

80 (Iowa Ct. App. 1982) (distinguishing Carey where the jurors got 

coffee from the prosecutor's office where donations were 

accepted). Indeed, as the trial court noted, there was no evidence 

the elderly man knew this unknown detective was offering parking 

in the prosecutor's lot; the man also did not know Patitucci was 

the prosecutor's case agent until trial began. See also State v. 

Le Grand, 442 N.W.2d 614, 616 (Iowa Ct. App. 1989) (distinguishing 
16 A-1811-14T3

Carey where jurors received transportation assistance from 

sheriffs who were not witnesses and did not discuss the case with 

the jurors). In any event, Carey did "not decide whether [the 

offer] alone, without more, would be sufficient to require a new 

trial," Carey, supra, 165 N.W.2d at 30, so defendant "read[s] more 

into Carey than [the Iowa Supreme Court] intended," State v. 

Cullen, 357 N.W.2d 24, 28 (Iowa 1984). 

We also find guidance from the United States Supreme Court's 

decision in Phillips, supra. In Phillips, a juror "submitted 

during the trial an application for employment as a major felony 

investigator in the District Attorney's Office." 455 U.S. at 209, 

212, 102 S. Ct. at 943, 71 L. Ed. 2d at 83. When that information 

was revealed to the defense after trial, the trial court held a 

hearing at which the juror testified; it found the juror was not 

prejudiced and was able to consider the guilt or innocence of the 

defendant solely on the evidence. Id. at 213-14, 102 S. Ct. at 

944, 71 L. Ed. 2d at 84. 

The United States Supreme Court emphasized "that the remedy 

for allegations of juror partiality is a hearing in which the 

defendant has the opportunity to prove actual bias." Id. at 215, 

102 S. Ct. at 945, 71 L. Ed. 2d at 85. The Court stressed "that 

due process does not require a new trial every time a juror has 

been placed in a potentially compromising situation. Were that 
17 A-1811-14T3

the rule, few trials would be constitutionally acceptable." Id.

at 217, 102 S. Ct. at 946, 71 L. Ed. 2d at 86. The Court observed 

"it is virtually impossible to shield jurors from every contact 

or influence that might theoretically affect their vote," and held 

determinations of "the effect of such occurrences . . . may 

properly be made at a hearing like that ordered in Remmer and held 

in this case." Ibid. 

The reasoning of the United States Supreme Court in Smith has 

been adopted by our Supreme Court and this court. E.g., R.D., 

supra, 169 N.J. at 559; McGuire, supra, 419 N.J. Super. at 154; 

State v. Dreher, 302 N.J. Super. 408, 501 (App. Div. 1997). We

have followed Smith and held a "post-conviction hearing conducted 

by the [trial] court [i]s adequate to determine that the juror was 

not biased and the verdict was based exclusively on the evidence." 

State v. Bisaccia, 319 N.J. Super. 1, 17 (App. Div. 1999).

Under the circumstances here, while the trial court "erred 

in not conducting" further voir dire of Juror #11, "[w]e believe 

that the interests of justice will best be served by now having 

the trial judge conduct the hearing" as opposed to "automatically 

[granting] a new trial." See State v. Kelly, 61 N.J. 283, 294 

(1972); see, e.g., State v. Stubbs, 433 N.J. Super. 273, 289 (App. 

Div. 2013); State v. Scott, 398 N.J. Super. 142, 154 (App. Div. 

2006). 
18 A-1811-14T3

The trial court shall hold the hearing at which Juror #11 is 

questioned within thirty-five days, and make findings promptly 

thereafter on the facts concerning the communications between 

Patitucci and juror #11, the effect of those communications on 

juror #11, and what if anything juror #11 conveyed to the other 

jurors concerning those communications. Defendant shall have "the 

opportunity to prove actual bias" on the part of Juror #11 or any 

juror due to the communications. Phillips, supra, 455 U.S. at 

215, 102 S. Ct. at 945, 71 L. Ed. 2d at 85. "That determination 

requires the trial court to consider the gravity of the extraneous 

information in relation to the case, the demeanor and credibility 

of the juror or jurors who were exposed to the extraneous 

information, and the overall impact of the matter on the fairness 

of the proceedings." R.D., supra, 169 N.J. at 559.3 

B.

After the first day of jury deliberations, there was a 

confrontation between members of the families of the victim and 

defendant in front of the courthouse. Two jurors witnessed it 

 

3 If juror #11 cannot be found or is otherwise unable to testify 

about the communications, the court shall make findings on the 

timing and nature of the juror's unavailability, and on whether 

defense counsel's statements that he could not think of anything 

to question the juror about caused the court to forego questioning 

the juror prior to his unavailability. See State v. Jenkins, 178 

N.J. 347, 359 (2004).
19 A-1811-14T3

while waiting for their rides, and reported it to the trial court. 

The court conducted a voir dire of the two jurors. 

Juror #4 informed the trial court that she witnessed the 

"confrontation," that the family members were "cursing" each other 

and "acting disrespecting," and that she felt "uncomfortable." 

She told the court that she could continue to serve as a juror: 

"Oh, yes. That does not bother me. It was not directed at me." 

Juror #6 also witnessed the confrontation, that it consisted of 

"a girl and a dude" exchanging "not friendly eye contact," and 

saying "uh-huh" and "yeah" to each other, a verbal altercation, 

and that no one else reacted. Juror #6 said he "got disturbed,"

but "could understand" that "they both kind of went a little 

overboard," and that it was not directed at him. He felt he could 

still deliberate in the case, and he had no other concerns. Both 

jurors said they did not discuss the confrontation with any other 

jurors. 

The trial court found that neither juror "expressed anything 

that [would] . . . impact . . . on their ability to deliberate" 

and that no further questioning was required. The court found 

that juror #4 "indicated that she clearly could separate" the 

families' emotional reactions from "her obligations as a juror," 

and that juror #6's "words were of the same ilk." The court found 

the confrontation did not have "any effect on either of their 
20 A-1811-14T3

abilities to deliberate." The court instructed the two jurors not 

to speak to the other jurors about the confrontation, assured them 

security had been increased, ordered the family members involved 

in the confrontation removed from the courthouse, and warned the 

remaining family members against any future incidents. 

On appeal, defendant argues the trial court failed to conduct 

an adequately probing voir dire of jurors #4 and #6. However, at 

trial defendant never suggested additional voir dire was needed 

of those jurors. When the trial court proposed questioning them, 

defense counsel said "I have no problem with the voir dire as we 

discussed" and he had "[n]othing at this time" to add. Defense 

counsel asked juror #4 a question, and did not criticize the voir 

dire. At the conclusion of the voir dire of the two jurors, 

defense counsel stated: "We've heard their questioning. That's 

fine. But I think both of them were pretty clear" that they saw 

discord between the families. Defendant objected to the two jurors 

continuing to deliberate, but never asked that they be questioned 

further. Thus, defendant must show plain error.

Even if defendant now "would have preferred further inquiry 

of the [two] juror[s]," "the trial court's failure to do so did 

not constitute plain error." R.D., supra, 169 N.J. at 563. 

Defendant does not show that further inquiry would have produced 

a different outcome. He hypothesizes the jurors may have heard 
21 A-1811-14T3

information about the case, but the two jurors said the feuding 

family members were merely cursing, disrespecting, and saying 

"'uh-huh, yeah' to each other." Defendant argues the jurors could 

have identified the feuding family members, but the court properly 

relied on the sheriff's officer who witnessed the confrontation 

to make such identifications, rather than put that burden on the 

jurors. 

Moreover, "[u]nder R.D., the overarching relevant inquiry is 

not whether the trial court committed error, but whether it abused 

its discretion." State v. Wakefield, 190 N.J. 397, 496 (2007). 

"That is so because '[a]pplication of that standard respects the 

trial court's unique perspective [and appellate courts] 

traditionally have accorded trial courts deference in exercising 

control over matters pertaining to the jury.'" Id. at 497 (quoting 

R.D., supra, 169 N.J. at 559-60). "Ultimately, the trial court 

is in the best position to determine whether the jury has been 

tainted." R.D., supra, 169 N.J. at 559 (citation omitted). 

"That determination requires the trial court to consider the 

gravity of the extraneous information in relation to the case, the 

demeanor and credibility of the juror or jurors who were exposed 

to the extraneous information, and the overall impact of the matter 

on the fairness of the proceedings." Ibid. Here, the trial 

court's questioning elicited both jurors' description of what they 
22 A-1811-14T3

saw and heard, its impact on them, their belief they still could 

fairly deliberate, and their assurance they had not discussed the 

confrontation with the other jurors. The court did not abuse its 

discretion in finding no "further action has to be taken with 

regard to those two jurors."

"The appellate standard for reviewing a voir dire procedure 

is whether, despite the trial court's efforts, there still existed 

a 'realistic likelihood of prejudice.'" State v. Harvey, 151 N.J.

117, 211 (1997) (citation omitted). We agree with the trial court 

that there was no realistic likelihood of prejudice from the 

confrontation. In a murder trial, it is unsurprising that there 

is animosity between the family of the defendant and the family 

of the victim. "The outburst contained no factual information 

that could have influenced the jury." State v. Wilson, 335 N.J. 

Super. 359, 368-69 (App. Div. 1999) (finding the jury could 

disregard "an emotional outburst by the victim's mother" who 

"suddenly screamed and began sobbing"), aff’d o.b., 165 N.J. 657, 

659 (2000). After voir dire, the trial court found both jurors 

could impartially deliberate despite witnessing the confrontation. 

"[A]n appellate court should show appropriate deference to the 

trial court's assessment of 'matters of credibility, judgment and 

discretion which should not ordinarily be disturbed on appeal.'" 

Harvey, supra, 151 N.J. at 211 (citation omitted).
23 A-1811-14T3

The trial court also found "no indication that any of this 

information was passed to any of the other jurors." The court 

asked counsel if there was a need to question the other jurors. 

Defense counsel, who left the courthouse before the confrontation 

and did not hear anything, noted that alternate juror #7 left at 

the same time so "I don't think that's an issue." Counsel added 

that juror #3 may not have gone "out the door the same time as 

me," but counsel could not say juror #3 saw the confrontation, and 

admitted he "might have the wrong number." The court concluded 

it was "not going to involve the other jurors now, because neither 

of the jurors who did report it indicated any other juror was 

present. And no other jurors reported anything," which they would 

have to do under the court's prior instructions. The sheriff's 

officer similarly said only jurors #4 and #6 witnessed the 

confrontation. 

"[T]he decision to voir dire individually the other members 

of the jury best remains a matter for the sound discretion of the 

trial court. No per se rule should obtain." R.D., supra, 169 

N.J. at 561. "[T]he court's own thorough inquiry of the 

[questioned] juror should answer the question whether additional 

voir dire is necessary to assure that impermissible tainting of 

the other jurors did not occur." Ibid. Moreover, it may "be more 
24 A-1811-14T3

harmful to voir dire the remaining jurors because, in asking 

questions, inappropriate information could be imparted." Ibid. 

Here, multiple sources stated that only jurors #4 and #6 saw 

the confrontation, and defendant presented no evidence to the 

contrary. The confrontation happened after the jury had dispersed 

for the evening, and the court questioned jurors #4 and #6 first 

thing the next morning, so they had little or "no opportunity to 

communicate impermissible information to [their] fellow jurors," 

and they "denied communicating [their] knowledge to other jurors." 

Id. at 562. Given the court's instructions to all jurors to report 

such incidents and not to communicate about the case, and the 

instruction's effectiveness as demonstrated by jurors #4 and #6, 

the court could assume the other jurors would have reported if 

they had seen or heard anything. Ibid.; see State v. T.J.M., 220 

N.J. 220, 237 (2015) ("We act on the belief and expectation that 

jurors will follow the instructions given them by the court."). 

Thus, as in R.D., supra, "[t]he trial court did not abuse its 

discretion in not questioning the remaining jurors." 169 N.J. at 

562. 

III.

At the jury charge conference, defense counsel said "we 

requested — we offered a Third Circuit model jury charge in regards

to witnesses with drug issues." The trial court found it did not 
25 A-1811-14T3

have a copy of the Third Circuit instruction, and defense counsel 

responded "Judge, I will get you another copy[.]" The court 

replied: "If you want to submit that, I'll consider it but I don't 

have anything to consider yet because I don't have it. Get it to 

me tomorrow, Counsel." Defense counsel said he would email it, 

but defendant has not shown that he ever provided the Third Circuit 

instruction to the trial judge nor did his attorney ever mention 

it again. At the final jury charge conference, when the court 

asked for any further objections to the charge, defense counsel 

replied, "[n]othing from me." After the court gave its charge, 

it asked if counsel had any questions, and defense counsel said 

"no" and made no objection. 

A party seeking an instruction must "make requests to charge 

in a format suitable for ready preparation and submission to the 

jury," and provide copies. R. 1:8-7(b). As defendant did not 

supply a copy of the Third Circuit instruction or request a final 

ruling, it was not error for the court not to rule on that 

instruction. "The court's failure to rule explicitly on each 

request will not be reversible error if the party did not request 

a ruling and was not prejudiced by the omission." Pressler & 

Verniero, Current N.J. Court Rules, comment 3.2 on R. 1:8-7 (2018). 

Moreover, "if a party submitting a request to charge fails to 

object to its omission from the charge as given, review on appeal 
26 A-1811-14T3

will be subject to the plain error standard." Ibid. (citing 

Dynasty, Inc. v. Princeton Ins. Co., 165 N.J. 1, 17-18 (2000)); 

see R. 1:7-2, 2:10-2. 

Defendant cannot show plain error. Neither the Third 

Circuit's instruction nor its "care and caution" requirement have 

been accepted by the New Jersey courts. An error is "'plain'" 

only if "the error is clear under current law." Olano, supra, 507 

U.S. at 734, 113 S. Ct. at 1777, 123 L. Ed. 2d at 519. 

In any event, defendant cannot show prejudice. The 

instruction provides that if a witness was using drugs, addicted 

to drugs, or abusing alcohol when the events took place, his or 

her testimony "must be considered with care and caution," and "may 

be less believable, because of the effect the [drugs or alcohol] 

may have on [his or her] ability to perceive, remember, or relate 

the events in question," but that the jury "may give it whatever 

weight if any, [it] find[s] it deserves." 

However, the trial court's instructions adequately covered 

this area. The trial court instructed the jury with a tailored 

version of the New Jersey Model Criminal Jury Charge on credibility 

of witnesses.4 The court instructed that "in determining the 

credibility of witnesses," the jury could consider "the witness's 

 

4 Model Jury Charge (Criminal), Criminal Final Charge – Credibility 

of Witnesses (revised February 24, 2003). 
27 A-1811-14T3

power of discernment," "his or her ability to reason, observe, 

recollect, or relate," "and any or all other matters in the 

evidence which may serve to support or discredit his or her 

testimony." The court also instructed the jury that it should 

"weigh the testimony of each witness and then determine the weight 

to be given to it." Those instructions were sufficient to allow 

the jury to consider the effect of Wright's prior drug use and 

Barrick's alcohol consumption on their ability to perceive, 

remember, and relate the facts, and to weigh their testimony 

accordingly. Indeed, defense counsel argued to the jury not to

"put a lot of faith in the words of someone who is an admitted 

crack user." 

Further, regarding the key part of Barrick's testimony 

relating defendant's oral statements, the court instructed the 

jury that it should "receive, weigh and consider this evidence 

with caution," citing the "risk of misunderstanding by the hearer 

or the ability of the hearer to recall accurately the words used 

by the Defendant." The court also instructed the jury to consider 

Wright's prior convictions "in determining the credibility or 

believability of the witness'[s] testimony."

Thus, the general instructions regarding credibility of 

witnesses were sufficient to charge the jury. The court's failure 

to give the requested Third Circuit instruction was not plain 
28 A-1811-14T3

error. See State v. Swint, 328 N.J. Super. 236, 259 (App. Div. 

2000) (finding no error where the court failed to give specific 

instructions because the court gave the general charge on 

credibility). 

IV.

Finally, defendant challenges his sentence. "Appellate 

review of sentencing is deferential, and appellate courts are 

cautioned not to substitute their judgment for those of our 

sentencing courts." State v. Case, 220 N.J. 49, 65 (2014).

Disturbing a sentence is permissible in only three situations: 

"(1) the trial court failed to follow the sentencing guidelines, 

(2) the aggravating and mitigating factors found by the trial 

court are not supported by the record, or (3) application of the 

guidelines renders a specific sentence clearly unreasonable."

State v. Carey, 168 N.J. 413, 430 (2001). We must hew to our 

deferential standard of review.

The court sentenced defendant to twenty-eight years in prison 

for aggravated manslaughter. The court also sentenced defendant 

to eighteen years in prison for armed robbery, and nine years in 

prison for burglary, to run concurrently with each other but 

consecutively to the manslaughter sentence. All those sentences 

were subject to NERA's 85% parole ineligibility. The court merged 

the possession of a weapon for an unlawful purpose charge into the 
29 A-1811-14T3

robbery conviction, and sentenced defendant to nine years in prison 

for unlawful possession of a weapon with four-and-one-half years 

of parole ineligibility, and nine years in prison for certain 

persons not to have weapons with five years of parole 

ineligibility, both to run concurrent with the manslaughter 

sentence.

First, defendant argues the trial court erred in imposing 

consecutive sentences. Our Supreme Court has adopted "criteria 

as general sentencing guidelines for concurrent or consecutivesentencing decisions." State v. Yarbough, 100 N.J. 627, 644 

(1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed.

2d 308 (1986). The Court listed the following relevant criteria:

(1) there can be no free crimes in a system 

for which the punishment shall fit the 

crime;

. . . .

(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 
30 A-1811-14T3

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; [and]

(e) the convictions for which the 

sentences are to be imposed are 

numerous[.]

[Ibid.]

5

The trial court here considered the Yarbough factors, and 

acknowledged that most favored concurrent sentences. The 

aggravated manslaughter, burglary, and robbery all occurred in the 

matter of a few minutes and all in Valentin's home. Defendant and 

Allison entered Valentin's home with the objective of taking her 

drugs and money by threatening her with the gun. There was no 

indication of an independent objective to kill Valentin. The only 

threat and act of violence was defendant pointing the gun at 

 

5 Yarbough, supra, originally had a sixth guideline, namely "there 

should be an overall outer limit on the cumulation of consecutive 

sentences for multiple offenses not to exceed the sum of the 

longest terms (including an extended term, if eligible) that could 

be imposed for the two most serious offenses." 106 N.J. at 644. 

After Yarbough, "the Legislature amended N.J.S.A. 2C:44-5a to 

provide that '[t]here shall be no overall outer limit on the 

cumulation of consecutive sentences,' thereby eliminating 

guideline number six." Carey, supra, 168 N.J. at 423 (quoting L.

1993, c. 223, § 1).
31 A-1811-14T3

Valentin and firing the shot that killed her. The court 

acknowledged that all of the crimes "involved the same victim." 

However, Yarbough's third guideline "should be applied 

qualitatively, not quantitatively." Carey, supra, 168 N.J. at 

427. Accordingly, "a sentencing court may impose consecutive 

sentences even though a majority of the Yarbough factors support 

concurrent sentences." Id. at 427–28 (citing State v. Perry, 124 

N.J. 128, 177 (1991) (finding consecutive sentences proper even 

though four of Yarbough's five factors favored concurrent 

sentences)).

Defendant argued the Yarbough factors unanimously weigh in 

favor of concurrent sentences. However, "[t]he fifth factor –

'whether there are numerous convictions' – provides some support 

for consecutive sentences because defendant's [six] convictions" 

fall within "the 'numerous' range." Carey, supra, 168 N.J. at 424 

(finding four convictions approached the "numerous" range).

Moreover, the trial court referenced Yarbough's guidance that 

there are to be no free crimes, which "tilts in the direction of 

consecutive sentences because the Code focuses on the crime, not 

the criminal." Id. at 423.

Defendant alternatively argues that a remand is necessary to 

allow the court to consider the Yarbough factors without its 
32 A-1811-14T3

misapprehension about the relevance of the jury's acquittal on the 

felony murder charges." We agree. 

The trial court focused on the effect of the jury's decision 

to decline to convict defendant of felony murder and to convict 

him of the lesser offense of aggravated manslaughter. The court 

queried whether "the jury separate[d] the homicide from the 

underlying offenses." The court stated that "[h]ad the jury 

convicted the defendant of felony murder, the underlying offenses 

of robbery and burglary would . . . merge into felony murder. But 

the jury's verdict speaks to a different result." The court 

concluded that defendant's "aggravated manslaughter is . . . 

separate and distinct from the offenses of robbery and burglary."

Although the jury's verdict reduced the maximum term 

available for the homicide while removing the basis for merger of 

robbery and burglary, those legal consequences do not alter the 

inquiry under Yarbough, which focuses on the "facts relating to 

the crimes, including whether or not . . . the crimes and their 

objectives were predominantly independent of each other." Id. at 

644 (emphasis added); see Carey, supra, 168 N.J. at 433. Here, 

the facts prevent such a conclusion.

As the trial court noted, the facts indicated defendant 

"cause[d] the death of" Valentin "in the course of" "the commission 

of, or the attempt to commit," burglary and robbery, and thus 
33 A-1811-14T3

committed felony murder. N.J.S.A. 2C:11-3(a)(3). "[E]ven if the 

jury found that defendant fired the gun recklessly without 

intending to shoot the victim, it still would have been required 

to find him guilty of felony murder." State v. Pennington, 273 

N.J. Super. 289, 299 (App. Div. 1994) (citation omitted). The 

jury's unexplained decision to convict him instead of aggravated 

manslaughter did not change the facts.6

Our Supreme Court has stated the governing principles. "We 

accept inconsistent verdicts in our criminal justice system, 

understanding that jury verdicts may result from lenity, 

compromise, or even mistake. We therefore must resist the 

temptation to speculate on how the jury arrived at a verdict." 

State v. Goodwin, 224 N.J. 102, 116 (2016) (citations omitted). 

"Our jurisprudence does not allow us to conjecture" or to "attempt 

to reconcile the counts on which the jury returned a verdict of 

guilty and not guilty." State v. Muhammad, 182 N.J. 551, 578 

(2005).

The trial court inappropriately considered the effect of the 

jury's acquittal of felony murder in finding the aggravated 

manslaughter conviction to be predominantly independent of the 

burglary and robbery. Therefore, we vacate the consecutive nature 

 

6 The trial court did not assert the mens rea for aggravated 

manslaughter made it independent of robbery and burglary. 
34 A-1811-14T3

of the sentences on the burglary and robbery counts and remand for 

consideration whether any of defendant's sentences should be 

imposed consecutively. We express no opinion on whether 

consecutive sentences can be imposed on the robbery or burglary 

convictions on some other basis.7 

Defendant also argues the aggravating factors found here do 

not support the individual sentences near the top of the range, 

which he contends are manifestly excessive. We disagree.

The trial court's finding of aggravating factors three, six, 

and nine was supported by the evidence. Defendant does not dispute 

that his juvenile record consists of eleven adjudications for 

burglary, conspiracy to commit robbery, and other offenses, and 

three violations of juvenile probation. As an adult, his record 

included three indictable convictions for burglary and defiant 

trespass, thirteen disorderly person convictions, one violation 

of probation, and one parole violation. Defendant's prior criminal 

 

7 See State v. Koskovich, 168 N.J. 448, 533 (2001) (finding "the 

robberies and killings were not so intertwined that the court 

should have imposed concurrent sentences"); State v. Mejia, 141 

N.J. 475, 504 (1995) (finding that "[a]lthough the victim in both 

[the murder and robbery] offenses was the same, the crimes were 

separate"); see also State v. Walker, 322 N.J. Super. 535, 540, 

557 (App. Div.), certif. denied, 162 N.J. 489 (1999); State v. 

Adams, 320 N.J. Super. 360, 370 (App. Div.), certif. denied, 161 

N.J. 333 (1999). 
35 A-1811-14T3

record, and current offense justified finding these aggravating 

factors.

Defendant argues the trial court erred in assessing these

aggravating factors as they all related to "one aspect" of his 

background. However, 

implicit in a sentencing court's assessment 

of [aggravating factors 3, 6, and 9] is a 

qualitative assessment that we want and expect 

the court to make. A court's findings 

assessing the seriousness of a criminal 

record, the predictive assessment of chances 

of recidivism, and the need to deter the 

defendant and others from criminal activity, 

do all relate to recidivism, but also involve 

determinations that go beyond the simple 

finding of a criminal history and include an 

evaluation and judgment about the individual 

in light of his or her history.

[State v. Thomas, 188 N.J. 137, 153 (2006).]

Thus, the trial court properly found not only that defendant 

had an extensive criminal history, but also that his repeated 

failure to conform his conduct to the law over the course of his 

lifetime despite numerous terms of incarceration and probation

provided ample support for the court's finding that he was likely 

to reoffend and needed to be specifically deterred. The court 

properly gave substantial weight to all three aggravating factors, 

which substantially outweighed the non-existent mitigating 

factors. Given those findings, the court's sentences on the 

individual counts were not manifestly excessive. 
36 A-1811-14T3

We remand for a hearing on juror #11. The trial court shall 

conduct the hearing within thirty-five days of the date of this 

opinion and shall issue its oral or written opinion making the 

requisite findings promptly thereafter. The parties shall file 

simultaneous briefs in this court twenty-one days after the court 

issues its opinion, which defendant shall supply to this court. 

We retain jurisdiction, and will consider the effect of those 

findings on the convictions and issue a supplemental opinion. 

To avoid delay and premature proceedings, any resentencing 

based on our vacating of the consecutive nature of the sentences 

for robbery and burglary shall await issuance of our supplemental 

opinion. 

Vacated in part, and remanded. We retain jurisdiction.