                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0331-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

FRANCISCO GREEN,

     Defendant-Appellant.
________________________

                    Submitted January 30, 2020 – Decided July 16, 2020

                    Before Judges Alvarez and DeAlmeida.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Indictment No. 14-05-
                    0622.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Richard Sparaco, Designated Counsel, on the
                    brief).

                    Christopher L.C. Kuberiet, Acting Middlesex County
                    Prosecutor, attorney for respondent (David M. Liston,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
        Defendant Francisco Green appeals from the August 15, 2017 judgment

of conviction entered after a jury found him guilty of first-degree kidnapping

and second-degree attempted aggravated sexual assault and the sentence

imposed for those crimes. We affirm.

                                          I.

        We derive the following facts from the record. On January 12, 2014, at

approximately 2:00 a.m., E.N. 1 was walking home from an evening out with

friends. While on a well-lighted street near her house, E.N. sat on the steps of

a closed store to smoke a cigarette. A man wearing a grey hooded sweatshirt,

later identified as defendant, approached E.N. and sat down next to her.

        After telling defendant to leave her alone, E.N. got up and continued her

walk home. When E.N. reached the front of her neighbor's driveway, defendant

grabbed her from behind, putting his right arm around her face. Defendant

dragged E.N. down the long dark alley of her neighbor's driveway and into her

neighbor's backyard.

        E.N. screamed, but defendant told her to "shut up, that he had a knife, and

he would use it." Defendant shoved E.N. to the ground, kneeled in front of her,

pinned her down, and pulled off her jeans and underwear. E.N. struggled to


1
    We use initials to maintain the confidentiality of the victim. R. 1:38-3(c)(12).
                                                                            A-0331-17T2
                                          2
break free and told defendant to stop, but he "kept telling [E.N.] to shut up" and

struck her in the mouth, causing her lip to bleed.

      The attack ended approximately six minutes after it began when a motion-

sensing light illuminated the area, causing defendant to flee. Because E.N.'s

neighbor had called 9-1-1 after hearing her screams, police arrived shortly after

defendant fled. They found E.N. on the ground bleeding from her mouth,

"crying hysterically," and barely able to speak or breathe. She was transported

to a hospital for medical treatment.

      Investigating officers obtained video footage from nearby surveillance

cameras that recorded defendant's assault on E.N.         Using still images of

defendant from the video recordings, police created a "be on the lookout"

communication, which was distributed to local law enforcement agencies.

      A few days after the incident, a detective spotted defendant driving a car

and recognized him from the "be on the lookout" communication. The detective

pulled defendant over for a traffic infraction.      During the stop, an officer

observed in plain view in the car a grey hooded sweatshirt "that was . . .

consistent with the clothing worn by the individual . . . depicted in the videos."

The officers impounded the car and obtained a search warrant . Laboratory

testing identified E.N.'s blood on the sweatshirt.


                                                                          A-0331-17T2
                                        3
      A grand jury subsequently indicted defendant, charging him with first-

degree kidnapping, N.J.S.A. 2C:13-1(b), and second-degree attempted

aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2(a)(3).2

      The trial court denied defendant's pretrial motion to suppress the blood-

stained sweatshirt. The issues raised in the motion did not include whether the

affidavit on which the search warrant was based contained false or misleading

information.

      The court ordered an evaluation of defendant's competency to stand trial.

A psychologist who examined defendant opined that despite suffering from

antisocial personality disorder, he was competent to stand trial. About a year

later and just prior to trial, defense counsel asked the court to order a second

evaluation because defendant had hit his head in a fall at the county jail three

months earlier and had been exhibiting troubling behavior.         According to

counsel, defendant was either not able or unwilling to cooperate with his defense

and was refusing to wear civilian clothes at trial, preferring to appear in his

prison uniform.




2
   Although the indictment lists the attempted sexual assault charge as a first -
degree offense, the grading was corrected prior to trial and is accurately
reflected in the judgment of conviction as a second-degree offense.
                                                                          A-0331-17T2
                                       4
         The trial court conducted a competency hearing during which it held an

hour-long colloquy with defendant. The court found defendant demonstrated he

understood the parties' roles at trial, the charges, the maximum sentence, and the

role of the judge and jury. The court concluded there was "no doubt in the

court's mind . . . defendant [understood] that [he was] going to be subject to a

jury trial," found defendant's mental processes to "be intact[,]" and found that

he had a "meaningful understanding of the facts and issues." Based on these

findings and the expert's report, the court found defendant competent to stand

trial.

         Afterwards, defendant moved to dismiss the indictment, arguing the State

could not prove beyond a reasonable doubt the asportation element of the

kidnapping charge. The trial court denied the motion, finding the asportation

element of kidnapping could be satisfied by proof of defendant's movement of

the victim from a public street to a secluded backyard, which increased the

victim's risk of harm.

         After a six-day trial, the jury convicted defendant on both counts. The

trial court denied defendant's motions for a judgment of acquittal

notwithstanding the verdict and for a new trial because there was sufficient

evidence on which the jury could find him guilty of the offenses.


                                                                          A-0331-17T2
                                         5
      At sentencing, the court granted the State's application to sentence

defendant to an extended term as a persistent offender pursuant to N.J.S.A.

2C:44-3(a) based on his prior convictions.       The court found it "clear that

[defendant's] criminal activity has progressed, and has gotten more violent over

time" and that he was "a threat to the public at large, and the public needs

protection." The court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3)

(risk that defendant will commit another offense), six, N.J.S.A. 2C:44-1(a)(6)

(extent of defendant's prior criminal convictions and the seriousness of those

offenses), and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter others). The court

found no mitigating factors and that the aggravating factors substantially

outweighed the nonexistent mitigating factors.

      After merging the attempted sexual assault conviction into the kidnapping

conviction, the court imposed a twenty-five-year period of incarceration, subject

to an eighty-five-percent parole disqualifier, pursuant to the No Early Release

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

      This appeal followed. Defendant makes the following arguments:

            POINT I

            THE TRIAL COURT COMMITTED ERROR IN
            FAILING TO ORDER A SECOND COMPETENCY
            EVALUATION OF DEFENDANT AFTER HE
            EXHIBITED   DEMONSTRABLE   SIGNS  OF

                                                                         A-0331-17T2
                                       6
INCOHERENCY AFTER SUSTAINING A HEAD
INJURY.

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO [THE] COURT'S DENIAL OF
HIS MOTION TO SUPPRESS THE BLOOD-
STAINED SWEATSHIRT AND THE FAILURE TO
HOLD AN EVIDENTIARY HEARING.

POINT III

THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTIONS FOR JUDGMENTS OF
ACQUITTAL N.O.V. OR NEW TRIAL WITH
REGARD TO THE KIDNAPPING CONVICTION
BECAUSE THE STATE FAILED TO PROVE THE
ASPORTATION ELEMENT OF THE KIDNAPPING
STATUTE.

POINT IV

BECAUSE THE JUDGMENT OF ACQUITTAL ON
THE KIDNAPPING COUNT SHOULD HAVE BEEN
GRANTED,   THE   DEFENDANT'S  SIMILAR
MOTION ON THE FIRST-DEGREE ATTEMPTED
AGGRAVATED SEXUAL ASSAULT SHOULD
HAVE BEEN GRANTED.

POINT V

THE SENTENCE OF TWENTY-FIVE YEARS
PRISON WAS EXCESSIVE BECAUSE THE COURT
ENGAGED     IN  DOUBLE-COUNTING     OF
DEFENDANT'S TWO PRIOR CONVICTIONS
WHEN GRANTING THE STATE'S APPLICATION
FOR AND [SIC] EXTENDED TERM SENTENCE

                                            A-0331-17T2
                    7
            AND ALSO CONSIDERING THOSE SAME
            CONVICTIONS IN SUPPORT OF AGGRAVATING
            FACTOR NUMBER THREE – THE EXTENT OF THE
            DEFENDANT'S PRIOR RECORD.

                                      II.

      "No person who lacks capacity to understand the proceedings against him

or to assist in his own defense shall be tried, convicted or sentenced for the

commission of an offense so long as such incapacity endures." N.J.S.A. 2C:4-

4(a). "Where evidence raises a bona fide doubt as to a defendant's competence,

a competency hearing must be held." State v. Purnell, 394 N.J. Super. 28, 47

(App. Div. 2007).

      For a defendant to be found competent to stand trial, the proofs must

establish the following by a preponderance of the evidence:

            (1) That the defendant has the mental capacity to
            appreciate his presence in relation to time, place and
            things; and

            (2) That his elementary mental processes are such that
            he comprehends:

            (a) That he is in a court of justice charged with a
            criminal offense;

            (b) That there is a judge on the bench;

            (c) That there is a prosecutor present who will try to
            convict him of a criminal charge;


                                                                       A-0331-17T2
                                       8
            (d) That he has a lawyer who will undertake to defend
            him against that charge;

            (e) That he will be expected to tell to the best of his
            mental ability the facts surrounding him at the time and
            place where the alleged violation was committed if he
            chooses to testify and understands the right not to
            testify;

            (f) That there is or may be a jury present to pass upon
            evidence adduced as to guilt or innocence of such
            charge or, that if he should choose to enter into plea
            negotiations or to plead guilty, that he comprehend the
            consequences of a guilty plea and that he be able to
            knowingly, intelligently, and voluntarily waive those
            rights which are waived upon such entry of a guilty
            plea; and

            (g) That he has the ability to participate in an adequate
            presentation of his defense.

            [N.J.S.A. 2C:4-4(b); Purnell, 394 N.J. Super. at 47-48.]

      The determination of whether a defendant is competent to stand trial is a

determination of whether he understands his position and can consult

intelligently with counsel in preparing a defense. Aponte v. State, 30 N.J. 441,

450 (1959). Although the court may rely on expert opinion, "the ultimate

determination of the issue is for the judge to make, not experts." Purnell, 394

N.J. Super. at 52; accord State v. Gorthy, 226 N.J. 516, 530-31 (2016). The

court has a continuing obligation to revisit defendant's competency if warranted.

Purnell, 394 N.J. Super. at 49.

                                                                         A-0331-17T2
                                       9
      Our review of the trial court's competency determination is "highly

deferential." State v. M.J.K., 369 N.J. Super. 532, 548 (App. Div. 2004); State

v. Moya, 329 N.J. Super. 499, 506 (App. Div. 2000).                The decision is

discretionary and will be sustained if there is sufficient supporting evidence in

the record. Purnell, 394 N.J. Super. at 50.

      After carefully reviewing the record in light of these principles, we are

satisfied the trial court did not abuse its discretion when it determined defendant

was competent to stand trial. The court engaged in an extensive examination

during which it had the opportunity to observe defendant firsthand and gauge

his understanding of the criminal trial he faced. The court addressed each of the

factors in N.J.S.A. 2C:4-4 and made detailed findings in support of its

competency determination.       In addition, the court was aware of counsel's

concerns regarding defendant's jailhouse fall and found any injuries he suffered

did not affect him in any way that would preclude him from standing trial. This

conclusion comported with the opinion of the expert who examined defendant

before the fall but after he reported he was hearing voices and seeing visions.

      Nor are we persuaded by defendant's argument that his lack of competency

is evidenced by his initial refusal to wear civilian clothes for his trial. The trial




                                                                             A-0331-17T2
                                        10
court examined that issue at the hearing and found defendant's explanation to be

rational. Notably, defendant ultimately decided to wear civilian clothes at trial.

      Additionally, the record does not indicate defendant's mental condition

"preclude[d] meaningful interaction with his . . . attorney . . . ." Gorthy, 226

N.J. at 532. After the State rested, the court noted defendant had "handled

himself very well . . . during court" and had "been very engaged . . . with his

attorney during the entire matter." Later, the court told defendant, "[T]here's no

doubt in my mind you're understanding what's going on here today," and

defendant replied "Yeah, I understand."

                                       III.

      For the first time on appeal, defendant argues the trial court erred because

he was entitled to a hearing under Franks v. Delaware, 438 U.S. 154 (1978),

with respect to what he alleges were false statements in the affidavit submitted

in support of the search warrant for his car. According to defendant, the officers

falsely stated that they had made "positive identifications" of him as E.N.'s

assailant at the time of the motor vehicle stop.

      Pursuant to the holding in State v. Witt, 223 N.J. 409 (2015), we decline

to review defendant's argument. In that case, the defendant challenged the

lawfulness of a search of his car before trial but had not challenged the


                                                                          A-0331-17T2
                                       11
lawfulness of the motor-vehicle stop that preceded the search until the case

reached our court. Id. at 418. We considered the validity of the traffic stop.

The Supreme Court reversed, noting "that the lawfulness of the stop was not

preserved for appellate review" and that we "should have declined to entertain

the belatedly raised issue." Id. at 419. As the Court explained, "[f]or sound

jurisprudential reasons, with few exceptions, our appellate courts will decline to

consider questions or issues not properly presented to the trial court when an

opportunity for such a presentation is available."          Ibid. (quoting State v.

Robinson, 200 N.J. 1, 20 (2009) (quotations omitted)). "[I]t would be unfair,

and contrary to our established rules, to decide the lawfulness of the stop when

the State was deprived of the opportunity to establish a record that might have

resolved the issue through a few questions . . . ." Ibid.

      There is no question defendant did not request a Franks hearing before the

trial court. The State, therefore, was denied the opportunity to develop a record

with respect to the veracity of the statements defendant now challenges and the

state of the affiant's knowledge when the statements were made in the affidavit.

      We also find no legal support for defendant's argument that the trial court

erred by not holding an evidentiary hearing on his motion to suppress , whether

or not Franks applied. A warrant is "presumed to be valid, and defendant bears


                                                                            A-0331-17T2
                                       12
the burden of demonstrating that the warrant was issued without probable cause

or that the search was otherwise unreasonable." State v. Chippero, 201 N.J. 14,

26 (2009) (quoting State v. Evers, 175 N.J. 355, 381 (2003)). "[T]he resolution

of doubtful or marginal cases in this area should be largely determined by the

preference to be accorded to warrants." State v Perry, 59 N.J. 383, 394 (1971)

(quotations omitted).

      Rule 3:5-7(c) requires a testimonial hearing on a motion to suppress

evidence when there is a dispute as to a material fact. See State v. Parker, 459

N.J. Super. 26, 30-31 (App. Div. 2019). Our review of the record reveals no

disputed material facts requiring a hearing. Defendant did not dispute the facts

in the affidavit in his motion to suppress. He challenged only the argument that

those facts established a basis for issuance of the warrant.

                                       IV.

      We review de novo a trial court's denial of a motion for a judgment of

acquittal, "applying the same standard as the trial court." State v. Zembreski,

445 N.J. Super. 412, 430 (App. Div. 2016). Under that standard, a court "must

determine only whether, 'based on the entirety of the evidence and after giving

the State the benefit of all its favorable testimony and all the favorable

inferences drawn from that testimony, a reasonable jury could find guilt beyond


                                                                        A-0331-17T2
                                       13
a reasonable doubt.'" Ibid. (quoting State v. Williams, 218 N.J. 576, 594 (2014).

"If the evidence satisfies that standard, the motion must be denied."         Ibid.

(quoting State v. Spivey, 179 N.J. 229, 236 (2004)).

      When deciding a motion for acquittal the court is not "concerned with the

worth, nature or extent (beyond a scintilla) of the evidence, but only with its

existence, viewed most favorably to the State . . . ." Id. at 431 (quoting State v.

Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974)). If evidence exists, "the

motion must be denied." Id. at 430 (quoting Spivey, 179 N.J. at 236).

      A defendant has a similarly high burden when moving for a new trial

based on a jury verdict being against the weight of the evidence. Rule 3:20-1

provides:

            The trial judge shall not . . . set aside the verdict of the
            jury as against the weight of the evidence unless,
            having given due regard to the opportunity of the jury
            to pass upon the credibility of the witnesses, it clearly
            and convincingly appears that there was a manifest
            denial of justice under law.

Motions for a new trial are "addressed to the sound discretion of the trial judge"

and "shall not be reversed unless it clearly appears that there was a miscarriage

of justice under the law." State v. Armour, 446 N.J. Super. 295, 305-06 (App.

Div. 2016) (quoting R. 2:10-1).



                                                                           A-0331-17T2
                                        14
      "A person is guilty of kidnapping if he unlawfully removes another . . . a

substantial distance from the vicinity where he is found, or if he unlawfully

confines another for a substantial period, with any of the following purposes: . .

. [t]o facilitate commission of a crime . . . ." N.J.S.A. 2C:13-1(b)(1). The

"substantial distance" is not defined only as "a linear measurement" of the

distance the victim is moved.      State v. Jackson, 211 N.J. 394, 415 (2012)

(quoting State v. Masino, 94 N.J. 436, 445 (1983)). The Supreme Court has

defined "substantial distance" as "one that 'isolates the victim and exposes him

or her to an increased risk of harm.'" Ibid. (quoting Masino, 94 N.J. at 445).

      "[O]ne is confined for a substantial period if that confinement 'is . . . more

than merely incidental to the underlying crime,' and that determination is made

with reference not only to the duration of the confinement, but also to the

'enhanced risk of harm resulting from the [confinement] and isolation of the

victim.'" State v. La France, 117 N.J. 583, 594 (1990) (quoting Masino, 94 N.J.

at 447). Stated differently, in considering whether the asportation element is

met, courts should consider whether the underlying crime and the subsequent

movement or confinement are separate and distinct acts and whether that

movement or confinement increased the risk of harm to the victim. Jackson,

211 N.J. at 415; La France, 117 N.J. at 594; see State v. Matarama, 306 N.J.


                                                                            A-0331-17T2
                                       15
Super. 6, 22 (App. Div. 1997) ("substantial distance" element satisfied where,

during the course of a robbery, "the victim was dragged twenty-three feet . . . to

a small alley[,] . . . a more secluded place where the assailants could more easily

attack her without being seen").

      Defendant argues the State failed to prove the asportation element of

kidnapping because his movement of E.N. was "merely incidental" to his

attempted sexual assault. Our review of the record identified ample evidence to

support the jury's verdict under either the "substantial distance" or "substantial

period of confinement" element of the kidnapping statute. Defendant forcibly

moved E.N. from a public sidewalk, down a dark alley, and into the backyard of

a residence. The jury could reasonably have determined that his intention was

to isolate her from public view to enhance the likelihood that he could assault

her without detection, thus exposing her to increased risk of harm. In addition,

the jury could reasonably have concluded that defendant's movement of E.N.

was separate and apart from the attempted sexual assault because it was not

necessary to move E.N. to complete that crime.

                                        V.

      "Appellate review of the length of a sentence is limited." State v. Miller,

205 N.J. 109, 127 (2011). An appellate court "must not substitute its judgment


                                                                           A-0331-17T2
                                       16
for that of the sentencing court[,]" State v. Fuentes, 217 N.J. 57, 70 (2014), and

is bound to affirm the sentence absent a "clear abuse of discretion." State v.

Roth, 95 N.J. 334, 363 (1984).

            Appellate courts must affirm the sentence of a trial
            court 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
            in original) (quoting Roth, 95 N.J. at 364-65).]

      There should be no double-counting of aggravating factors. Fuentes, 217

N.J. at 76; State v. Yarbough, 100 N.J. 627, 643-44 (1985). Impermissible

double-counting occurs when "established elements of a crime for which a

defendant is being sentenced [are] considered as aggravating circumstances in

determining that sentence." State v. Kromphold, 162 N.J. 345, 353 (2000).

      Defendant argues the trial court engaged in double-counting when it

considered his criminal history both in granting the motion for a discretio nary

extended term and when finding aggravating factors. We do not agree.

      When determining whether an extended term is appropriate, N.J.S.A.

2C:44-3(a), a sentencing court must "review and determine whether a

defendant's criminal record of convictions renders him or her statutorily

                                                                          A-0331-17T2
                                       17
eligible" to be sentenced as a persistent offender. State v. Pierce, 188 N.J. 155,

168 (2006). When sentencing a defendant within the extended-term range, the

court's focus should turn from defendant's prior convictions to the present

offense and a "factual assessment of the defendant’s whole person." Id. at 167.

      The court was required to consider defendant's prior convictions to

determine if he was eligible for extended-term sentencing. See id. at 168. This

did not preclude the court from considering those convictions when making

determination with respect to the existence of aggravating factors. See State v.

McDuffie, 450 N.J. Super. 554, 576 (App. Div. 2017).

      Lastly, although eligible for an extended-term sentence of between thirty

years and life, the trial court sentenced defendant to twenty-five years.

Considering both defendant's sentence was in the range for an ordinary term for

first-degree kidnapping and defendant was eligible for a sentence between thirty

years and life, the sentence does not "shock the judicial conscience."         See

N.J.S.A. 2C:13-1(c)(1); Roth, 95 N.J. at 364-65.

      To the extent we have not addressed defendant's other arguments, we

conclude they are without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(2).

      Affirmed.


                                                                          A-0331-17T2
                                       18
