                                NOT FOR PUBLICATION WITHOUT THE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-1869-16T3

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

FRANKIE N. GONZALES,

     Defendant-Appellant.
___________________________

                   Submitted February 27, 2019 – Decided April 4, 2019

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 13-10-
                   1273.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Daniel S. Rockoff, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Andrew C. Carey, Middlesex County Prosecutor,
                   attorney for respondent (David M. Liston, Assistant
                   Prosecutor, of counsel and on the brief).
PER CURIAM

      Defendant Frankie N. Gonzales appeals from his March 24, 2015

convictions for carjacking and related crimes. The court sentenced defendant to

an aggregate twenty-five-year prison term, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. He argues that evidentiary errors, prosecutorial

misconduct and an excessive sentence require reversal. After reviewing the

record in light of the contentions advanced on appeal, we affirm.

      Defendant was convicted of fourteen crimes following a jury trial: three

counts of first-degree carjacking, N.J.S.A. 2C:15-2(a)(2) to (4); second-degree

kidnapping, N.J.S.A. 2C:13-1(b)(1); third-degree criminal restraint, N.J.S.A.

2C:13-2(a); two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(2) to (3);

second-degree eluding, N.J.S.A. 2C:29-2(b); fourth-degree resisting arrest,

N.J.S.A. 2C:29-2(a)(2); two counts of third-degree terroristic threats, N.J.S.A.

2C:12-3(a) to (b); second-degree burglary, N.J.S.A. 2C:18-2(a)(1); third-degree

theft of a motor vehicle, N.J.S.A. 2C:20-3(a); and fourth-degree theft by

unlawful taking, N.J.S.A. 2C:20-3(a).

      On July 29, 2013, shortly before 10:25 a.m., the seventy-nine year old

victim, who was breathing with the assistance of an oxygen tank, was driving

his convertible with the top down. While stopped at a traffic light, the victim


                                                                        A-1869-16T3
                                        2
heard a thump, turned, and saw a man, later identified as defendant, sitting next

to him.    Although "not positive about the wording," the victim testified

defendant said, "I have a gun, don't make me use it or don't make me shoot."

Defendant kept his hand in the pocket of his gray hooded sweatshirt. The victim

felt something in his side and "didn't know if it was [defendant's] finger or a

gun." Though scared and shaken up, the victim "never saw a gun" or "any type

of weapon."

      Defendant put the victim's oxygen tank on the floor of the car and yelled

at him to keep driving. The oxygen "hose pulled [the victim] over [towards his

right side] because it [was] only a four-foot hose." After driving for "[t]hree or

four minutes," the victim pulled his car over and said, "I can't drive like this

. . . you take my car." Defendant told the victim, "I'm not going to shoot you"

and "might have said" to the victim "I just need to get to the train station." The

victim noted that defendant did not harm him "in any way." The victim stated

further that defendant did not ask for "a very expensive piece of jewelry" the

victim was wearing, so "he really didn't abuse me in any way."

      While the car was pulled over, defendant told the victim to give him his

cell phone and money. The victim gave defendant his phone and "[e]ighty

something dollars," took his oxygen tank, and left the car. He said he was "only


                                                                         A-1869-16T3
                                        3
about [200] or 300 feet" from where defendant got into his car. Defendant said,

"I'm sorry I had to do this to you" and drove away.

      A sanitation worker saw the victim waving on the side of the road,

stopped, and called the police. A few minutes later, Hightstown Police Officer

Frank Gendron saw the victim's car. He activated his lights, got out of his car,

drew his weapon, and ordered defendant, whose hands were in the air, to reach

down and remove the keys from the ignition.           Despite Gendron's order,

defendant slumped down into the driver's seat, accelerated and drove away.

Gendron alerted other police officers.

      State Police Officer Harry Cannon saw defendant jumping over a guardrail

near the victim's car a few minutes after he heard Gendron's call over dispatch.

Cannon arrested defendant and found eighty-six dollars on him. Officers found

a phone and gray hooded sweatshirt in the victim's car. They did not find a

weapon on defendant or in the victim's car.

      Verizon phone records showed the victim's phone made repeated outgoing

calls to two phone numbers between 10:22 a.m. and 10:30 a.m. on July 29, 2013.

The State presented evidence that beginning around August 2, 2013, defendant

called those same two numbers from a "Middlesex County facility" on multiple




                                                                        A-1869-16T3
                                         4
dates between August and September. DNA samples from the hooded sweatshirt

found in the victim's car matched a sample taken from defendant.

      Defendant raises the following issues on appeal:

           POINT I:     THE COURT ERRONEOUSLY
           PERMITTED THE PROSECUTOR TO INFORM THE
           JURY THAT, JUST HOURS BEFORE THE
           OFFENSE, A POLICE OFFICER FORMALLY
           SIGNED OFF ON GONZALES'S DEPARTURE
           FROM A 'MIDDLESEX COUNTY FACILITY'
           SITUATED AT THE PRECISE LOCATION OF THE
           COUNTY JAIL. (NOT RAISED BELOW.)

           A. THE PROSECUTOR PRESENTED EVIDENCE
           OF GONZALES'S DEPARTURE FROM A
           MIDDLESEX COUNTY "FACILITY," I.E., THE
           MIDDLESEX    COUNTY     CORRECTIONAL
           FACILITY, THREE HOURS BEFORE THE
           INCIDENT.

           B. THE PROSECUTOR REMINDED THE JURY IN
           SUMMATION ABOUT GONZALES'S DEPARTURE
           FROM THE MIDDLESEX COUNTY "FACILITY,"
           I.E., THE MIDDLESEX COUNTY CORRECTIONAL
           FACILITY, THREE HOURS BEFORE THE
           INCIDENT.

           C. THE JURY LIKELY DREW THE OBVIOUS
           REASONABLE INFERENCE FROM THE MANY
           CLUES DROPPED BY THE PROSECUTOR: THAT
           GONZALES HAD BEEN RELEASED FROM
           CUSTODY ON THE SAME MORNING HE
           COMMITTED NEW OFFENSES.

           D. THIS COURT SHOULD REMAND FOR A
           NEW TRIAL BECAUSE THE LAW DIVISION

                                                                   A-1869-16T3
                                      5
FAILED TO EXCLUDE EVIDENCE THAT
GONZALES HAD JUST BEEN RELEASED FROM
JAIL THREE HOURS BEFORE THE OFFENSE, A
FACT    WHICH     WAS    IRREMEDIABLY
PREJUDICIAL, BUT HAD NO PROBATIVE
VALUE.

POINT II: IN A TRIAL WHERE THE CENTRAL
FACTUAL ISSUE WAS WHAT GONZALES SAID
IN ORAL UNRECORDED STATEMENTS TO THE
DRIVER OF A CAR, THE COURT FAILED TO
ADMINISTER      THE   MODEL     CHARGE
INSTRUCTING JURORS TO EVALUATE WITH
CAUTION WHAT WAS SAID BY THE
DEFENDANT. (NOT RAISED BELOW.)

POINT III: THE LOWER COURT IMPOSED A
[TWENTY-FIVE]-YEAR SENTENCE, AT THE
HIGH END OF THE FIRST-DEGREE CARJACKING
RANGE. THIS COURT SHOULD REMAND FOR
RESENTENCING BECAUSE (A) A SENTENCE AT
THE HIGH END OF THE RANGE WAS
INAPPROPRIATE IN A CASE WHERE NO ONE
WAS HURT AND THE DEFENDANT HAD NO
WEAPON, AND (B) THE LOWER COURT FAILED
TO   RECOGNIZE     CRITICAL  MITIGATING
FACTORS PRESENT IN THE RECORD.

A.  A     [TWENTY-FIVE]-YEAR    PRISON
SENTENCE, AT THE HIGH END OF THE FIRST-
DEGREE RANGE, WAS INCONSONANT WITH
THE FACTS, BECAUSE THERE WERE NO
INJURIES, DEATHS, OR WEAPONS OF ANY
KIND.

B.  THE LOWER COURT FAILED TO FIND OR
EVEN   ADDRESS    CRITICAL   MITIGATING
FACTORS CITED BY THE DEFENSE.

                                          A-1869-16T3
                   6
      Defendant's first two legal issues were not raised before the trial court.

When a defendant raises an issue for the first time on appeal, it "denie[s] the

State the opportunity to confront the claim head-on; it denie[s] the trial court the

opportunity to evaluate the claim in an informed and deliberate manner; and i t

denie[s] any reviewing court the benefit of a robust record within which the

claim could be considered." State v. Robinson, 200 N.J. 1, 21 (2009).

      An appellate court may, however, review an issue not raised before the

trial court under the plain error standard of review. State v. Ross, 229 N.J. 389,

407 (2017); see also R. 2:10-2. If we determine an error occurred, we consider

whether the error was "of such a nature as to have been clearly capable of

producing an unjust result." R. 2:10-2. Not any possibility of an unjust result

will suffice as plain error, only one "sufficient to raise a reasonable doubt as to

whether the error led the jury to a result it otherwise might not have reached."

State v. Macon, 57 N.J. 325, 336 (1971).

                                    I. Facility.

      The State's first witness was an officer who worked at a Middlesex County

"facility." Another officer testified for the State that he was familiar with this

facility. Despite being called a "facility," defendant argues that the jurors could




                                                                           A-1869-16T3
                                         7
reasonably have concluded that hours before the offense he left the Middlesex

County Jail, due to its location and the witnesses' law enforcement connections.

      Defendant argues that this evidence should have been excluded under

N.J.R.E. 403 because it only assisted "marginally" in proving defendant's guilt,

by informing the jury that defendant was near the scene of the crime a few hours

before it occurred. Defendant did not object at any time, although the testimony

was not a surprise. The court instructed jurors "not to speculate at which facility

the defendant was at on that day."

      The rules of evidence provide: "[R]elevant evidence may be excluded if

its probative value is substantially outweighed by the risk of (a) undue prejudice

. . . ." N.J.R.E. 403. Under this rule, a trial court may exclude relevant evidence

if it has "a clear capacity to inflame and prejudice the jury." See State v. Rose,

112 N.J. 454, 536 (1988).

      A trial court is afforded "broad discretion in determining both the

relevance of the evidence to be presented and whether its probative value is

substantially outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins. Co.,

160 N.J. 480, 492 (1999). A trial court's weighing of probative value against

the danger of unfair prejudice under N.J.R.E. 403 "must stand unless it can be

shown that the trial court palpably abused its discretion, that is, that its finding


                                                                           A-1869-16T3
                                         8
was so wide of the mark that a manifest denial of justice resulted." State v. Cole,

229 N.J. 430, 449 (2017) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

      We do not view the admission of this evidence as clear error, if error at

all. Due to the lack of objection, no record was developed as to the number of

Middlesex County facilities in the area. We assume the jury followed the court's

instruction not to speculate on the identity of the facility. See State v. Marshall,

173 N.J. 343, 355 (2002).

                                 II. Jury Charge.

      Erroneous jury instructions are "poor candidates for rehabilitation under

the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987). For

example, the court must always instruct the elements of the crime. State v. Vick,

117 N.J. 288, 291 (1989). However, where, as here, a defendant fails to object

to the instruction, under Rule 1:7-2, a showing of plain error must be made on

appeal.

      "[P]lain error requires demonstration of 'legal impropriety in the charge

prejudicially affecting the substantial rights of the defendant and sufficiently

grievous to justify notice by the reviewing court and to convince the court that

of itself the error possessed a clear capacity to bring about an unjust result.'"

State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526,


                                                                           A-1869-16T3
                                         9
538 (1969)). We will disregard the error and affirm the conviction "unless a

reasonable doubt has been raised whether the jury came to a result that it

otherwise might not have reached." State v. R.K., 220 N.J. 444, 456 (2015).

      Defendant argues he was entitled to the model jury charge 1 concerning

statements of the defendant pursuant to State v. Kociolek, 23 N.J. 400 (1957)

and State v. Hampton, 61 N.J. 250 (1972). "If an alleged inculpatory statement

was oral and there is a genuine issue regarding its precise contents, the court

should caution the jury in accordance with Kociolek with respect to the risk that

the hearer misunderstood or inaccurately recalled the statement."       State v.

Baldwin, 296 N.J. Super. 391, 401 (App. Div. 1997).         The cases cited by

defendant on appeal concern admissions by a defendant after the crime, or, in

Baldwin, statements made by a defendant before and after the crime. Here, the

victim's testimony about defendant's statements while committing the crime is

not hearsay and does not require a special charge.

      "As a general proposition, '[w]here statements are offered, not for the

truthfulness of their contents, but only to show that they were in fact made and

that the listener took certain action as a result thereof, the statements are not



1
  Model Jury Charges (Criminal), "Statements of Defendant" (rev. June 14,
2010).
                                                                         A-1869-16T3
                                      10
deemed inadmissible hearsay.'" State v. Stubblefield, 450 N.J. Super. 337, 351

(App. Div. 2017) (quoting Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354,

376 (2007)); N.J.R.E. 801(c). "[V]erbal acts intrinsic to the commission of a

crime [are] distinguished from hearsay statements." State v. McKiver, 199 N.J.

Super. 542, 544-48 (App. Div. 1985) (finding that a victim's testimony

concerning threats made by alleged co-conspirators of the defendant, attempting

to extort money from him, were not hearsay because they "constituted overt acts

in furtherance of a jointly undertaken criminal enterprise" and were not offered

for the truth of the matter asserted).

      Defense counsel conducted an extensive cross-examination of the victim

regarding defendant's statements, attacking the victim's ability to accurately

recall what was said in the car. After closing arguments the court instructed the

jury pursuant to the model jury charge on witness credibility:

             As judges of the facts, you are to determine the
             credibility or the believability of the witnesses. And,
             in determining whether a witness is to be believed, you
             may consider: The appearance and demeanor of the
             witness; the manner in which the witness testified; the
             witness's interest in the outcome of the trial, if any; the
             witness's means of obtaining their knowledge of the
             facts; the witness's power of discernment, meaning
             their judgment, understanding, ability to reason,
             observe, recollect, and relate; the possible bias, if any,
             in favor of the side for whom the witness testified; the
             extent to which, if at all, the witness is either

                                                                           A-1869-16T3
                                         11
            corroborated or contradicted, supported or discredited
            by other testimony or evidence; whether the witness
            testified with the intention to deceive you; the
            reasonableness or unreasonableness of the testimony
            the witness gave; whether the witness made any
            inconsistent or contradictory statements; and any and
            all other matters in the evidence which serve to support
            or discredit the witness’s testimony.

            Through this analysis, as judges of the facts, you are to
            weigh the testimony of each witness and then determine
            what weight to give it. Through that process, you may
            accept all of it, a portion of it, or none of it.

            [See Model Jury Charges (Criminal), "Credibility of
            Witnesses" (rev. May 12, 2014).]

      This instruction was sufficient to inform the jury to consider the witness's

ability to recall facts surrounding the offense, including what defendant said.

                                  III. Sentence.

      Defense counsel asked the court to impose a ten-year sentence subject to

NERA because defendant was nineteen years old at the time of the crime, did

not have prior adult convictions, did not use a weapon, and did not leave the

victim in a more dangerous place than he found him.             Defendant's sister

informed the court that when the crime occurred, she was at a hospital in critical

condition suffering from a gunshot wound. She believed defendant was trying

to do "the fastest thing that he thought he could to get to [her]."



                                                                          A-1869-16T3
                                        12
      The court reviewed the facts surrounding the offense, emphasizing the

victim's advanced age and poor health when finding aggravating factor twelve.

N.J.S.A. 2C:44-1(a)(12) ("The defendant committed the offense against a person

who he knew or should have known was [sixty] years of age or older, or

disabled."). Emphasizing defendant's prior juvenile record, the court also found

aggravating factors three and nine. N.J.S.A. 2C:44-1(a)(3) ("The risk that the

defendant will commit another offense."); N.J.S.A. 2C:44-1(a)(9) ("The need

for deterring the defendant and others from violating the law."). The court did

not utilize aggravating factor two, N.J.S.A. 2C:44-1(a)(2) ("[T]he defendant

knew or reasonably should have known that the victim of the offense was

particularly vulnerable or incapable of resistance due to advanced age ."),

because the court believed factor two addressed the same facts as factor twelve.

The court also did not find aggravating factor thirteen, N.J.S.A. 2C:44-1(a)(13)

(The defendant "used or was in possession of a stolen motor vehicle."), because

"that would be double counting since this is a carjacking case." The court found

no mitigating factors.

      The court denied the State's motion for an extended term and found that

the kidnapping and robbery charges merged with the carjacking charge. The

court sentenced defendant to twenty-five years in prison subject to NERA for


                                                                        A-1869-16T3
                                      13
carjacking, stating it was "a significant sentence, but it [was] not at the highest

point of the range . . . ." The other counts either merged or resulted in concurrent

custodial sentences.

      An appellate court evaluates a court's sentencing determination using a

deferential standard of review and must "not substitute its judgment for the

judgment of the sentencing court." State v. Lawless, 214 N.J. 594, 606 (2013).

If the sentencing court "properly identifies and balances aggravating and

mitigating factors that are supported by competent credible evidence in the

record," then the appellate court must affirm the sentence even if it would h ave

reached a different result. State v. Natale, 184 N.J. 458, 489 (2005) (quoting

State v. O'Donnell, 117 N.J. 210, 215 (1989)).

      We are, however, "expected to exercise a vigorous and close review for

abuses of discretion by the [sentencing court]." Ibid.; see also State v. Miller,

449 N.J. Super. 460, 475 (App. Div. 2017). An appellate court will affirm a

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 make[] the
            sentence clearly unreasonable so as to shock the
            judicial conscience."


                                                                           A-1869-16T3
                                        14
            [State v. Fuentes, 217 N.J. 57, 70 (2014) (first alteration
            in original) (quoting State v. Roth, 95 N.J. 334, 364-65
            (1984)).]

      Defendant argues that the sentence was improper primarily because he did

not have a weapon, and the court did not find the following relevant mitigating

factors: defendant's youth, his sister's statement explaining the reason for the

crimes, and defendant's remorse. While two sentencing factors "touch on a

defendant's youthful status," N.J.S.A. 2C:44-1(b)(13) ("The conduct of a

youthful defendant was substantially influenced by another person more mature

than the defendant.") and N.J.S.A. 2C:44-1(b)(4) ("There were substantial

grounds tending to excuse or justify defendant's conduct, though failing to

establish a defense."), "youth and its attendant circumstances . . . are not

independently weighed as statutory mitigating factors." State v. Zuber, 227 N.J.

422, 447 n.2 (2017). Though a court has the "ability to use non-statutory

mitigating factors in imposing a sentence," it is not required to consider such

factors. State v. Rice, 425 N.J. Super. 375, 381 (App. Div. 2012) (emphasis

added). The mitigating facts suggested by defendant do not fit neatly into the

statutory mitigating factors, and the court could have imposed a much harsher

sentence.




                                                                          A-1869-16T3
                                       15
      The State points to N.J.S.A. 2C:44-3(f) and N.J.S.A. 2C:43-7(a)(2), which

"authorize the imposition of a prison term of between twenty years and life

where, as here, the defendant has been convicted of robbery, burglary,

kidnapping, or eluding 'and in the course of committing or attempting to commit

the crime, including the immediate flight therefrom, the defendant used or was

in possession of a stolen motor vehicle.'" The State also argues that the court

could have, but did not, impose consecutive sentences because the eluding and

resisting arrest "involved different victims and were committed after the crimes

against [the victim] were completed."

      The court thoughtfully explained its reasons for imposing sentence,

articulating the facts supporting the aggravating factors and lack of mitigating

factors. The sentence was supported by sufficient credible evidence in the

record.

      Affirmed.




                                                                        A-1869-16T3
                                        16
