                                NOT FOR PUBLICATION WITHOUT THE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-2228-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ROMMEL E. SEDIN

          Defendant-Appellant.


                   Submitted March 17, 2020 – Decided April 20, 2020

                   Before Judges Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 14-06-
                   0716.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Robert C. Pierce, Designated Counsel, on the
                   brief).

                   Christopher Kuberiet, Acting Middlesex County
                   Prosecutor, attorney for respondent (Patrick F.
                   Galdieri, II, Special Deputy Attorney General/Acting
                   Assistant Prosecutor, of counsel and on the brief).
PER CURIAM

      Sometime around midnight on June 18, 2012, Antonio Luis-Vasquez left

a bar in New Brunswick and entered a green minivan, believing it was the taxi

he had just summoned by phone. Defendant Rommel E. Sedin was driving the

vehicle; another man was seated in the third row. About twenty minutes later,

defendant pulled into a dark alleyway and stopped the minivan. The passenger

grabbed Vasquez by the neck; one of the men held a black handgun to his head;

both men took his cellphone and all his cash. Laughing, the men struck Vasquez

in the face, pushed him out of the minivan, and left him by the side of the road.

      During his interview with police the following day, Vasquez identified

defendant as the driver. One week later, defendant was arrested outside his

family's home while police executed warrants 1 to search the premises and the

green minivan parked in front of the house. The minivan was registered to

defendant and matched the description of the vehicle used in the robbery. Police



1
   Apparently, around the time of this incident, defendant and his brothers,
Christopher and Jewell, were under investigation for a string of armed robberies,
during which cellphones were stolen from the victims. Police obtained warrants
to search several residences and vehicles – including the house where the
handgun was found – belonging to defendant and his brothers. Because
defendant's brothers share the same surname, we use their first names. We
intend no disrespect in doing so.


                                                                         A-2228-17T2
                                        2
seized a black 9-millimeter handgun wrapped in a t-shirt from a closet located

in Christopher's bedroom. 2 The house was located two blocks from the robbery

scene.

      During the course of his arrest, defendant handed his cellphone to his

girlfriend, Michelle Velasquez, 3 who refused to surrender the phone to police.

Velasquez was arrested. Police seized three cellphones, including the victim's

cellphone during the search incident to her arrest.

      Following a six-day jury trial, defendant was convicted of second-degree

robbery, N.J.S.A. 2C:15-1(a)(2),4 as a lesser-included offense of first-degree

robbery, and second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:15-1. The jury acquitted defendant of the remaining charges:

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



2
   Christopher pled guilty to weapons offenses relating to the seizure of the
handgun under separate indictments. We affirmed his convictions on appeal.
State v. Sedin, No. A-1950-14 (App. Div. Apr. 14, 2016) (slip. op. at 1-4).
3
  Velasquez was tried separately from defendant. Her appeal was listed back-
to-back with this appeal and will be addressed in a separate opinion.
4
  The statutory citation for robbery listed under the final charges section of the
judgment of conviction incorrectly states defendant was convicted pursuant to
subsection (a)(1) of N.J.S.A. 2C:15-1. As explained more fully below, however,
the language of the indictment and the jury instructions clearly indicate
defendant was convicted under subsection (a)(2) of the robbery statute.
                                                                          A-2228-17T2
                                        3
degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39 -4(a),

and fourth-degree aggravated assault by pointing the handgun at Vasquez,

N.J.S.A. 2C:12-1(b)(4). After denying defendant's motion to vacate the verdict,

and ordering the appropriate merger, the trial judge sentenced defendant to an

eight-year term of imprisonment, subject to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. This appeal followed.

      On appeal, defendant raises the following points for our consideration:

                                   POINT I

            THE TRIAL COURT ERRED BY PERMITTING THE
            STATE TO ADMIT IN EVIDENCE A HANDGUN
            THAT WAS RECOVERED EIGHT DAYS AFTER
            THE ROBBERY FROM THE BEDROOM OF THE
            HOME OF CHRISTOPHER SEDIN.

                                  POINT II

            THE TRIAL COURT ERRED BY NOT CHARGING
            THE JURY, SUA SPONTE, WITH ROBBERY AS
            DEFINED IN N.J.S.A. 2C:15-1(a)(1).
            (Not raised below)

                                  POINT III

            THE PROSECUTOR COMMITTED MISCONDUCT
            DURING SUMMATION BY STATING, "SO
            [DEFENDANT] WRAPPED [THE HANDGUN USED
            IN THE ROBBERY] IN A T-SHIRT AND HIDES IT
            IN HIS BROTHER'S CLOSET BECAUSE HE
            DOESN'T WANT TO GET CAUGHT" AND THE
            FIRST RESPONDING POLICE OFFICER TEST

                                                                        A-2228-17T2
                                       4
              IFIED THAT THE VICTIM TOLD HIM THAT THE
              PERPETRATOR POINTED A "BLACK HANDGUN"
              TO HIS HEAD, WHEN THERE WAS NO SUCH
              TESTIMONY.
              (Not raised below)

                                   POINT IV

              THE SENTENCE IMPOSED WAS MANIFESTLY
              EXCESSIVE.

      We reject these contentions and affirm the convictions and sentence. But,

we remand to the trial court for entry of an amended judgment of conviction

correcting the statutory citation of defendant's second-degree robbery

conviction.

                                        I.

      We begin by addressing defendant's overlapping contentions that the trial

judge erroneously admitted into evidence the black handgun seized from

Christopher's closet.   Defendant renews his alternative arguments that the

weapon lacked probative value, and any probative value it may have had was

substantially outweighed by the risk of prejudice under N.J.R.E. 403. Defendant

also claims the first prosecutor assigned to represent the State affirmatively

indicated he would not seek to admit that evidence at trial. For the first time on

appeal, defendant asserts two additional claims: an evidentiary hearing was



                                                                          A-2228-17T2
                                        5
necessary to resolve the handgun's relevance; and the weapon should have been

excluded as other crimes evidence under N.J.R.E. 404(b).

      Ten months prior to trial – and more than four years after defendant's

arrest5 – the judge conducted oral argument regarding defendant's motion to

preclude the handgun. Defendant's then-retained counsel argued the handgun

lacked probative value because the victim could not identify that weapon as the

specific handgun used in the robbery. The State countered that the victim saw,

from his peripheral vision, what appeared to be a black handgun pressed against

his temple.6 Defendant also argued the State did not charge him with any

offenses relating to the weapon or any evidence seized pursuant to the warrant

executed at the family's home; rather, Christopher pled guilty to weapons

offenses pertaining to that weapon. Defendant maintained he did not live at that

residence, contrary to records maintained by the New Jersey Motor Vehicle

Commission.



5
  The reasons for the protracted pretrial history are not entirely clear from the
record, other than the judge's comments at the start of the hearing that this matter
was "the number one old case on [her] list. . . . Of course, there have been
different prosecutors; different defense attorneys; co-defendants; many, many,
many motions . . . ."
6
   At trial, Vasquez testified consistently with the prosecutor's representations,
stating one of the men had a "pistol" that "seemed to be black."
                                                                            A-2228-17T2
                                         6
      Following oral argument, the trial judge issued a cogent written decision,

admitting the gun at trial. Quoting our decision in State v. Ricks, 326 N.J. Super

122, 129 (App. Div. 1999) (citation omitted), the judge recognized: "For a

weapon to be admissible at trial, the State need not show that the particular

weapon offered into evidence is the one that was used in the crime." The judge

elaborated:

                    In this case, the weapon at issue is a black 9 mm
              handgun found in [d]efendant's brother's closet,
              wrapped in a shirt. The victim told the police that he
              was threatened at gunpoint, and described the weapon
              as a small, black handgun, which matched the
              description of the gun found in Christopher Sedin's
              closet. According to the State, Motor Vehicle
              Commission records indicate that [d]efendant was
              living at the residence where the gun was found.
              Defense [c]ounsel asserts that [d]efendant neither
              owned the house nor lived there when the weapon was
              found. However, at a minimum, [d]efendant's brother
              lived at the residence, and [d]efendant arrived at the
              home while police were conducting the search. The
              weapon was located one week after the robbery, and the
              residence is only two blocks away from the location of
              the robbery.

                     While [d]efense [c]ounsel is correct that
              Christopher Sedin pled guilty to possession of the
              weapon, the [c]ourt finds that Christopher Sedin's
              guilty plea to possession of the handgun would not have
              precluded [d]efendant from having access to or use of
              the gun. The probative value of the weapon in this case
              is high given it was found one block [sic] from the


                                                                          A-2228-17T2
                                        7
            crime scene only a week after the crime took place, in
            a residence in which [d]efendant's brother lived.

                   As to the prejudicial impact of the weapon, given
            that the State need only show sufficient circumstances
            to justify an inference by the fact-finder that the
            particular weapon was likely to have been used in the
            commission of the robbery, this [c]ourt finds that
            [d]efense [c]ounsel has not established that the
            prejudicial effect of admitting this handgun into
            evidence substantially outweighs the weapon's
            probative value [pursuant to N.J.R.E. 403(a)].

      Given our deferential standard of review of the trial judge's evidentiary

decisions, State v. Cole, 229 N.J. 430, 449 (2017), we discern no "clear error of

judgment," State v. Koedatich, 112 N.J. 225, 313 (1988), in the decision under

review.   We affirm the judge's decision substantially for the reasons cited

above.7 We add the following comments.

      "The test for relevance is broad and favors admissibility." State v. G.E.P.,

458 N.J. Super. 436, 454-55 (App. Div. 2019). Accordingly, evidence "need not

be dispositive or even strongly probative in order to clear the relevancy bar."

State v. Santamaria, 236 N.J. 390, 405 (2019) (internal quotation marks



7
   Prior to opening statements, defendant's appointed counsel renewed his
argument that the weapon was not relevant to the robbery charge. Reiterating
her written decision on the record, the judge declined to revisit defendant's
application.


                                                                          A-2228-17T2
                                        8
omitted).      Further, "[o]nce a logical relevancy can be found to bridge the

evidence offered and a consequential issue in the case, the evidence is

admissible, unless exclusion is warranted under a specific evidence rule." State

v. Burr, 195 N.J. 119, 127 (2008). Pertinent to this appeal, relevant evidence

may nonetheless be excluded "if its probative value is substantially outweighed

by the risk of . . . undue prejudice . . . ." N.J.R.E. 403(a); see also Cole, 229

N.J. at 447.

       Defendant's attempt to distinguish Ricks is unpersuasive. In Ricks, police

apprehended the defendant shortly after the victim reported he had been cut on

the arm by an unseen weapon during commission of a robbery. 326 N.J. Super.

at 126. During a search incident to the defendant's arrest, police seized a box

cutter, which the State presented as evidence of the robbery charge during the

defendant's trial. Id. at 126-27. We determined the State was not required to

prove – as a precursor to admissibility – the box cutter was the actual weapon

used by the defendant during the course of the robbery. Id. at 129. Instead, we

held

               it is clear that the weapon was properly admitted into
               evidence because the connection to the crime was
               established: the victim stated that he was cut with some
               sort of blade, the victim positively identified defendant
               both in and out of court, and the box cutter had the
               capability to cause the injuries sustained by the victim.

                                                                           A-2228-17T2
                                          9
            [Id. at 130.]

      Although the box cutter in Ricks was seized from defendant's person

shortly after the incident, in the present matter the State established a connection

between the crimes charged and the handgun seized from Christopher's closet.

Accordingly, the handgun "had a tendency in reason to prove a fact of

consequence." State v. Swint, 328 N.J. Super. 236, 252 (App. Div. 2000). And,

any purported failure by the State "to more specifically link the [weapon] with

the offenses [went] to the weight of the evidence, not its admissibility." Ibid.

      We briefly address defendant's claim that the State initially represented it

would not seek to admit the handgun in evidence. During oral argument, the

judge declined to consider that argument, stating she was "not aware" of the

former prosecutor's representation. Although retained counsel argued he was

certain his predecessor would have filed a motion to suppress the weapon absent

the State's representation, retained counsel acknowledged the prosecutor's

representation was "not on the record." In response, the prosecutor argued the

motion at issue was limited to the handgun's relevance under Rule 403, noting,

"no certification, transcript, or any other letter or any document from [the former

defense counsel or former prosecutor had] been provided indicating any

representations that the gun would not be used in this case."


                                                                            A-2228-17T2
                                        10
      On appeal, however, defendant has provided us with the transcript of a

hearing before the same trial judge in October 2013 – some thirty-three months

before – supporting the former prosecutor's representation.             Because the

transcript was not provided to the trial judge, it is inappropriate for consideration

on appeal. See Zaman v. Felton, 219 N.J. 199, 226-27 (2014) (recognizing we

ordinarily decline to consider issues not raised to the trial court "unless the

questions so raised on appeal go to the jurisdiction of the trial court or concern

matters of great public interest").

      We nonetheless acknowledge the first prosecutor stated: "I have nothing

that would lead me to believe that the weapons [sic] found in the house is the

weapon that was used during the armed robbery[.]" But, we further observe

defendant's then-assigned counsel informed the judge: "Well, then, if it's not

coming into the trial, I'll withdraw the motion. If it comes into the trial I'll renew

the motion in the middle of the trial. We'll have to stop the trial and have a

motion." Prior to opening statements, defendant's appointed counsel – the same

counsel who represented defendant at the October 2013 hearing – challenged

admissibility of the handgun on relevancy grounds, but did not move to suppress




                                                                              A-2228-17T2
                                        11
the evidence.8 In any event, Christopher's motion to suppress the same handgun

was denied by another trial judge. As noted above, we affirmed Christopher's

direct appeal; that appeal challenged the search. State v. Sedin, No. A-1950-14

(App. Div. Apr. 14, 2016) (slip. op. at 1-4).

      In sum, we agree with the trial judge that the probative value of the

handgun substantially outweighed its prejudicial value. Indeed, because the jury

acquitted defendant of all weapons-related charges, defendant was not

prejudiced by admission of the handgun at trial. In reaching our decision, we

reject defendant's belated request for an evidentiary hearing. Acknowledging

the parties disputed "whether and to what extent the victim saw the handgun

when it was pointed at his forehead," the judge correctly determined resolution

of that issue was appropriate for the jury's consideration.

      Finally, we have considered defendant's newly-minted argument that the

handgun was other crimes evidence under N.J.R.E. 404(b), through the prism of

the plain error standard, R. 2:10-2, and conclude it lacks sufficient merit to

warrant discussion in our written opinion, R. 2:11-3(e)(2). We simply note

because the handgun facilitated the commission of armed robbery as charged in


8
  Reiterating her written decision on the record, the judge declined to revisit
defendant's application.


                                                                        A-2228-17T2
                                       12
the indictment, the weapon was intrinsic evidence of first-degree robbery and,

as such, it was not subject to N.J.R.E. 404(b). State v. Rose, 206 N.J. 141, 180

(2011) (citation omitted) (holding evidence may be intrinsic to the charged

crime if it either "'directly proves' the charged offense" or "facilitate[s] the

commission of the charged crime"). Of course, "intrinsic evidence" is subject

to N.J.R.E. 403, id. at 177, but as stated above, the probative value of the

handgun substantially outweighed its prejudice. We therefore discern no error,

let alone plain error, in the court's failure to analyze admission of the handgun

under N.J.R.E. 404(b).

                                        II.

      For the first time on appeal, defendant claims the trial judge failed to issue

the model jury instruction for second-degree robbery, and the lesser-included

charge, as given, was erroneous. In particular, defendant contends the judge

failed to instruct the jury that second-degree robbery required the State to prove

"defendant knowingly inflicted bodily injury or used force upon another."

Model Jury Charges (Criminal), "Robbery in the Second Degree (N.J.S.A.

2C:14-1)" (rev. July 2, 2009); see also N.J.S.A. 2C:15-1(a)(1) (providing an

individual "is guilty of robbery, if in the course of committing a theft, he . . .




                                                                            A-2228-17T2
                                       13
[i]nflicts bodily injury or uses force upon another"). Defendant's contention s

are misplaced and require little comment.

      The trial judge issued the model instruction for first degree robbery,

conforming the charge to the particular language of the indictment that "in the

course of committing a theft" defendant "threaten[ed] immediate bodily injury

to Antonio Luis-Vasquez and/or did purposely put [him] in fear of immediate

bodily injury while armed with a deadly weapon . . . ." See Model Jury Charges

(Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-1)" (rev. Sept. 10,

2012); see also N.J.S.A. 2C:15-1(a)(2) (providing an individual "is guilty of

robbery, if in the course of committing a theft, he . . . [t]hreatens another with

or purposely puts him in fear of immediate bodily injury").

      Accordingly, the judge informed the jury:

                   In order for you to find . . . defendant guilty of
             robbery, the State must prove beyond a reasonable
             doubt that . . . defendant was in the course of
             committing a theft and, while in the course of
             committing that theft, . . . defendant threatened another
             with or purposely put him in fear of immediate bodily
             injury.

Closely tracking the remainder of the model charge, the judge explained the

difference between first- and second-degree robbery: "A section of our statute

provides that robbery . . . is a crime of the second degree, except that it is a crime


                                                                              A-2228-17T2
                                         14
of the first degree if the actor is armed with or uses or threatens the use of a

deadly weapon."

      We agree with the State's position on appeal: "because defendant was not

charged with robbery by force or injury [under N.J.S.A. 2C:15-1(a)(1)], the

judge was not required to instruct the jury on second-degree robbery under that

theory, and indeed providing such instruction would have been error absent

defendant's consent." We therefore discern no error, let alone plain error, in the

robbery instruction as given. See State v. Alexander, 233 N.J. 132, 141-42

(2018) (recognizing an appellate court reviews for plain error "the trial court's

obligation to sua sponte deliver a jury instruction when a defendant does not

request it and fails to object at trial to its omission"); R. 2:10-2.

                                         III.

      In his third point, which was not raised to the trial court, defendant claims

the prosecutor's summation crossed the line because two remarks were not based

on the evidence adduced at trial or the reasonable inferences adduced therefrom.

According to defendant, the prosecutor improperly commented that:                (1)

defendant wrapped the handgun used in the robbery in a t-shirt and secreted the

weapon in Christopher's closet, and (2) the victim told the first responding




                                                                           A-2228-17T2
                                         15
officer that a black handgun was used in the robbery. Once again, we review

defendant's claim for plain error. R. 2:10-2; see also Cole, 229 N.J. at 456-58.

      The prosecutor's summation spanned sixteen transcript pages; the remarks

now challenged were made midway through her closing statement. We set forth

those remarks and surrounding comments to give context to the prosecutor's

argument to the jury:

                  So why would someone want to hide a gun that
            they had just used to rob someone? Why would the
            defendant not want to keep the gun close to him?
            Maybe he can't keep a loaded handgun in his girlfriend's
            mother's home closet, maybe that wouldn't go over so
            well. So he wrapped it in a t-shirt and hides it in his
            brother's closet because he doesn’t want to get caught.
            But, by leading and investigating, [the] [s]ergeant . . .
            found it.

                   So Antonio testified during the robbery that a
            black handgun was pointed at his head. And, if you
            recall, that's what he told . . . the responding officer at
            the scene, even though defense counsel didn't mention
            it just now. He also gave a description of a thin,
            Hispanic male with short hair.

            [(Emphasis added).]

      As a general rule, when the defense fails to object to the prosecutor's

comments, "the remarks will not be deemed prejudicial."                   State v.

Timmendequas, 161 N.J. 515, 576 (1999). That is because the "[f]ailure to make

a timely objection indicates that defense counsel did not believe the remarks

                                                                           A-2228-17T2
                                       16
were prejudicial at the time they were made." Ibid. Further, the "[f]ailure to

object also deprives the court of the opportunity to take curative action." Ibid.

To justify a reversal, the prosecutor's comments "must have been clearly and

unmistakably improper, and must have substantially prejudiced defendant's

fundamental right" to a fair trial. Id. at 575 (internal quotation marks omitted).

      Having reviewed the prosecutor's remarks in view of the evidence

adduced at trial, we discern no such impropriety here. Instead, the prosecutor's

comments were "based upon the evidence" and "constituted a plea to the jury to

draw inferences that were reasonable from the evidence introduced during the

trial." Swint, 328 N.J. Super. at 261. According to the testimony of the sergeant

who recovered the black handgun from Christopher's closet, the weapon was

wrapped in a t-shirt. Defendant was arrested outside that residence, listed the

residence as his with the Motor Vehicle Commission, and parked the green

minivan used in the robbery outside the residence – even though he claimed he

lived with Velasquez. Further, the victim testified the "pistol" pressed against

his head during the robbery "seemed to be black."

      Considering the prosecutor's statements in the context of the trial as a

whole, State v. Feaster, 156 N.J. 1, 64 (1998), a reasonable jury could infer from

the trial evidence that defendant hid the black handgun in his brother's closet


                                                                          A-2228-17T2
                                       17
after robbing the victim. Nonetheless, even if the prosecutor's statements were

improper, they were not "clearly capable of producing an unjust result," R. 2:10-

2, in light of the jury's verdict finding him not guilty of armed robbery or the

weapons offenses.

                                       IV.

      As his final point, defendant argues his eight-year sentence with a NERA

parole disqualifier is excessive. That argument requires little discussion.

      Sentencing determinations are reviewed on appeal with a highly

deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "The appellate

court must affirm the sentence unless (1) the sentencing guidelines were

violated; (2) the aggravating and mitigating factors found by the sentencing

court were not based upon competent and credible evidence in the record; or (3)

'the application of the guidelines to the facts of [the] case makes the sentence

clearly unreasonable so as to shock the judicial conscience.'" Ibid. (alteration

in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Once the trial

court has balanced the aggravating and mitigating factors set forth in N.J.S.A.

2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the

offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220

N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their


                                                                          A-2228-17T2
                                      18
judgment for that of the sentencing court, provided that the "aggravating and

mitigating factors are identified [and] supported by competent, credible

evidence in the record").

      In sentencing defendant, the trial judge found significant the following

aggravating factors: the risk that defendant will commit another offense (factor

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

and the severity of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6); and the

need for deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The judge declined to

find the offense was committed in a heinous, depraved or cruel manner (factor

one), N.J.S.A. 2C:44-1(a)(1); and found no mitigating factors.

      The trial judge appropriately recognized several important considerations

bearing on her sentencing analysis. Initially, the judge noted defendant had a

juvenile and criminal history, and failed to respond affirmatively to probation

and imprisonment. The judge thoroughly considered each of the six mitigating

factors and the non-statutory factors raised in defendant's sentencing

memorandum, but found none was warranted. "[C]learly convinced that the

aggravating factors substantially outweigh[ed] the mitigating factors[,]" the

judge sentenced defendant near the middle of the second-degree sentencing




                                                                        A-2228-17T2
                                      19
range. See N.J.S.A. 2C:43-6(a)(2) (providing a term of imprisonment "between

five years and [ten] years" for second-degree offenses).

      In sum, the sentence imposed was manifestly appropriate and by no means

shocks our judicial conscience. State v. Bolvito, 217 N.J. 221, 228 (2014).

      Affirmed and remanded solely to correct the judgment of conviction to

reflect defendant's conviction under N.J.S.A. 2C:15-1(a)(2).




                                                                        A-2228-17T2
                                      20
