                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1021-14T2
                                                                    A-1343-14T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARIO J. ADAMS,

     Defendant-Appellant.
______________________________

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RAFAEL J. OLMO, a/k/a
RICKY OLMO,

     Defendant-Appellant.
______________________________

                   Submitted October 30, 2017 – Decided February 19, 2019

                   Before Judges Sabatino, Ostrer and Whipple.
            On appeal from Superior Court of New Jersey, Law
            Division, Atlantic County, Indictment No. 13-10-2864.

            Joseph E. Krakora, Public Defender, attorney for
            appellant Mario J. Adams (Michele A. Adubato,
            Designated Counsel, on the briefs).

            Joseph E. Krakora, Public Defender, attorney for
            appellant Rafael J. Olmo (Michael J. Confusione,
            Designated Counsel, on the briefs).

            Damon G. Tyner, Atlantic County Prosecutor, attorney
            for respondent (Sevan Biramian, Assistant Prosecutor,
            of counsel and on the briefs).

            Appellant Rafael J. Olmo filed a pro se supplemental
            brief.

      The opinion of the court was delivered by

OSTRER, J.A.D.

      Deanna Downs was shot to death to prevent her from testifying against

defendant Rafael Olmo regarding a shooting she observed a year earlier.

Another witness to the prior shooting, Benjamin Falcon, was threatened not to

testify. The State alleged that Olmo orchestrated the murder of Downs and the

witness tampering, and defendant Mario Adams was the hired gun. A jury

convicted Olmo of the first-degree charges of: murder, N.J.S.A. 2C:11-3(a)(1);

procurement of murder, N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:11-

3(b)(4)(e); murder for the purposes of escaping detection, apprehension, trial,


                                                                       A-1021-14T2
                                      2
punishment or commitment for another crime, N.J.S.A. 2C:11-3(a)(1) and (2),

and N.J.S.A. 2C:11-3(b)(4)(f); and conspiracy to commit murder, N.J.S.A.

2C:5-2. He was also convicted of second-degree witness tampering, N.J.S.A.

2C:28-5(a) (one count for Downs and one for Falcon); and second-degree

conspiracy to commit witness tampering, N.J.S.A. 2C:5-2.

     Although the jury was apparently unpersuaded that Adams was the shooter

of Downs, it was convinced he was involved in the murder and witness

tampering.   The jury convicted him of first-degree conspiracy to commit

Downs's murder; two counts of second-degree witness tampering of Downs and

Falcon; and second-degree conspiracy to commit witness tampering. The jury

acquitted Adams of the other first-degree murder charges – murder as

consideration for the receipt of money, N.J.S.A. 2C:11-3(a)(1) and (2), and

N.J.S.A. 2C:11-3(b)(4)(d); and murder for the purpose of escaping detection,

apprehension, trial, punishment or commitment for another crime committed by

Rafael Olmo, N.J.S.A. 2C:11-3(a)(1) and (2), and N.J.S.A. 2C:11-3(b)(4)(f).

The jury also acquitted Adams of second-degree possession of a firearm,

N.J.S.A. 2C:39-4(a); and second-degree unlawful possession of a handgun,

N.J.S.A. 2C:39-5(b).




                                                                     A-1021-14T2
                                     3
      After merger, the court sentenced Olmo to an aggregate term of life

imprisonment without parole on the murder, and a consecutive ten-year term

with a five-year period of parole ineligibility, on tampering with a witness,

Falcon. The court sentenced Adams to an aggregate term of twenty-two years,

consisting of a term of fifteen years for conspiring to murder Downs, concurrent

with seven years for witness tampering of Downs, but consecutive to seven years

for witness tampering of Falcon. The conspiracy to murder sentence was subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2.

      Defendants raise multiple issues in these back-to-back appeals

challenging their convictions, none of which we find meritorious. We focus on

three issues: the denial of Adams's motion to sever his trial from Olmo's; the

decision to permit a police witness to testify as both an expert and investigating

officer; and the decision to replace a juror after jury deliberations had begun.

Both defendants raise the latter two points. We also reject defendants' respective

challenges to their sentences, although we remand for correction of Adams's

judgment of conviction. 1


1
   The sentence was delivered orally. However, the judgment of conviction
states that the sentences for the three counts after merger should run
consecutively. The State concedes that the judge's oral sentence controls, see
State v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016), and the judgment of
conviction should be corrected to match the sentence that was given orally.
                                                                          A-1021-14T2
                                        4
                                        I.

      Following a shooting near her Egg Harbor City apartment complex in

October 2009, Downs provided a statement to police that she saw Olmo running

from the scene with a handgun. Falcon also provided a statement incriminating

Olmo.       Olmo was indicted and, by September 2010, received discovery

disclosing Downs's and Falcon's cooperation.

      Multiple witnesses testified that Olmo wanted Downs and Falcon

silenced.     Rashid Hamilton testified that, during the course of three

conversations, Olmo said he wanted a male and a female witness killed; he

offered $20,000 for the female's murder; and had a person, Dontay Matthews,

keep an eye on the female. Olmo was going to supply the gun for the murder.

Hamilton testified that Marcus Vega was present for two of the conversations.

Marcus Vega generally confirmed Hamilton's testimony. Hamilton and Vega

both said they rebuffed Olmo's offer.

      Matthews gave multiple, inconsistent statements to police. Although he

initially denied any involvement in the murder, he ultimately entered into a plea

agreement, admitting to his role. He testified that on September 30, 2010, he

met Olmo who told him he wanted Downs dead to silence her, and that Adams

would perform the killing. Matthews said that Olmo offered him money to


                                                                         A-1021-14T2
                                        5
watch Downs, who lived in the same apartment complex as Matthews and

bought drugs from him on a daily basis. Olmo gave Matthews a cell phone to

communicate with him and Adams. Matthews was supposed to call when he

knew Downs was alone.

      On October 16, 2010, at around 11:30 p.m., Matthews saw Downs step

outside her apartment for a smoke. He called Adams and Olmo to alert them.

Minutes later, Downs was shot in the head at close range. Matthews asserted he

was in his apartment at the time, which his girlfriend, Tamika Daniels,

corroborated. She testified that after the shooting, Matthews left the apartment,

saying he was going to get a beer.

      The next day, Adams made large cash purchases at an electronics store,

including a sixty-five-inch television.    Also, following the murder, Adams

reportedly made self-incriminating statements. Matthews testified that Adams

explained the murder, saying money was "the root of all evil," and Downs was

a "snitch" who "had to go." He also testified that Adams said, a few days after

the shooting, "I'm out here for murder one and . . . [they] don't have a clue who

did that shit."

      Vega cooperated with police in return for leniency in other cases against

him. Vega told police that he was confident he could get Olmo to talk about the


                                                                         A-1021-14T2
                                       6
Downs murder. Police set up a controlled purchase of drugs by Vega, and

equipped him with a video-recording device.         Although the conversation

initially pertained to drug dealing, Vega eventually brought up the murder. The

conversation was filled with street slang, jargon, and nicknames.           Vega

interpreted Olmo's statements, as did a police witness, Detective James Scoppa,

who testified as an expert, over a defense objection.

      In the recording, which we discuss at greater length below, Olmo

acknowledged Downs's murder, according to Vega.           Scoppa explained that

Olmo thought that Hamilton was too hesitant about taking on the job. According

to Vega and Scoppa, Olmo admitted he paid someone else $25,000 for killing

Downs.

      As for Falcon, Olmo stated without jargon or slang, "If [he] love his family

he better not" testify. He said he would make Falcon "feel regret for every

fucking day that [he] gotta wake up and know somebody in you[r] mother

fucking shit got touched if you mother fucking wanna run your mouth." Olmo

conjured up various scenarios for Falcon to avoid testifying, including leaving

the area, but said he would retaliate if he cooperated. Olmo also discussed the

intimidating effect of Downs's murder.




                                                                          A-1021-14T2
                                         7
       Falcon testified that his friend, George Rodriguez, told him that Olmo

would pay him $20,000 not to testify; but if he persisted, both he and his son

would be killed. Rodriguez essentially confirmed that account.

       Falcon also testified that Adams and another man later approached him in

a parking lot, and asked him if he knew what happened to people who testified

in court. Falcon said he told Adams he would not testify, but he did not accept

the $20,000. Falcon said he thought that if he did, he would be dead the next

day.

       In support of the State's case against Adams, a cellular telephone expert

testified that calls between Matthews and Adams indicated that Adams was

home in Hammonton early in the evening on the date of Downs's murder. Later,

Adams was in the area of Downs's apartment complex between 10:00 and 10:30

p.m., and then back in the Hammonton area after midnight. A police witness

testified, based on cellphone records, that there were multiple communications

among Matthews, Adams and Olmo in early October, and between October 15

and 17, 2010. However, the witness admitted he found no evidence of a call

from Matthews to either Olmo or Adams shortly before the murder. Although

Olmo did call Matthews at 9:52 p.m., and Adams called Matthews twice at

around 10:15 p.m.


                                                                        A-1021-14T2
                                       8
      In a recorded statement to police, Adams denied any involvement in

Downs's murder. He admitted that Olmo spoke to him about witnesses in his

case, but denied that Olmo ever discussed killing Downs, or paying someone to

watch her. Adams stated that the night of the murder, he played video games

with a cousin and later picked up Matthews, who told him, "I handled that

business," though Adams did not know Matthews was referring to the murder.

Adams said that after he learned Downs had been shot, he decided to go home.

He also said that Matthews admitted, a few days later, that "he got some money

from – whatever . . . [$]2,600."

      Olmo testified in his own defense, denying that he meant any ill-will

toward Downs. He said that he, Rodriguez and Falcon were all involved in

selling drugs in 2009. Regarding the 2009 incident, Olmo said that he and

Falcon were outside the apartment complex hanging out and selling drugs.

Olmo said he was unarmed. Two masked figures shot at him, striking him in

the shoulder. Someone behind him returned fire. Olmo said he thought it was

Falcon. Olmo also asserted that Falcon drove Olmo from the scene; Falcon's

sister tended to his wound; and Falcon's cousin later drove Olmo within a few

blocks of a Philadelphia hospital. Questioned by Philadelphia police, he gave a

false name, but police identified him and arrested him on an outstanding warrant.


                                                                         A-1021-14T2
                                       9
He was later charged with various weapons offenses and extradited to New

Jersey, where he was released on bail. Olmo said he later learned that Shawn

Travis and Sandy Thomas were the two men who shot at him. Both were shot

themselves, Thomas fatally.

      Olmo was indicted in August 2010. He said he received the discovery,

which disclosed Downs's and Falcon's statements, months before the fatal

shooting of Downs. Olmo said Falcon "was lying on me" and Downs "must

have mistaken me for Falcon." He said he told Falcon that if he testified against

him, Olmo would say what really happened, implicating Falcon and his family

members. But, he denied paying or offering to pay anyone to threaten Falcon,

or to shoot Downs.

      Olmo also gave his own interpretation of his recorded conversation with

Vega, insisting it mainly pertained to drug dealing. He claimed that he gave up

drug dealing after he was shot in the shoulder, but Vega persuaded him to get

back into it. Olmo claimed he paid $25,000 to buy a kilo of drugs from George

Rodriguez, which he robbed from a female drug dealer. The repeated references

in conversation with Vega about the "hit" of "old girl" and "bitch," pertained not

to Downs's murder, but the robbery of the drug dealer. He claimed he used the

word "bird" to refer to a kilo of cocaine. "Work" also meant drugs.


                                                                          A-1021-14T2
                                       10
       Olmo admitted that he and Vega were discussing Falcon's testimony when

he said "if [he] love his family he better not," but Olmo explained that only

meant that he would disclose Falcon's true involvement in the 2009 incident.

       In response to Olmo's testimony, the State played his statement to police

about the 2009 incident, which he gave while he was in jail in Philadelphia.

After a Miranda2 hearing, the court found it was knowingly and voluntarily

given.    Although Olmo spoke in third person, in answers that were often

disjointed, the State suggested he referred to himself when he said a man was

shot in the arm, but returned fire in self-defense. If true, that would have

contradicted his prior trial testimony that he was unarmed.

       Over a defense objection, the State also played a videotape of Downs's

contrary statement to police about the 2009 incident. On the night o f the 2009

incident, she saw Olmo with a pistol from a distance of forty or fifty feet. She

had a clear look at his face because he looked in her direction while he was

under the street's lighting. Downs stated she had seen Olmo around the complex

multiple times.




2
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                        A-1021-14T2
                                      11
      Olmo's sole supporting witness was Victor Martinez. Martinez testified

that Rodriguez – whom he had not seen in several years – admitted to him in

December 2013 that Falcon paid him to make a false statement against Olmo.

      Adams also denied any involvement in Downs's murder. He admitted he

was friends with Olmo, and sometimes bought marijuana from Matthews and

smoked it with him. He testified that on the night of the murder, he visited a

friend in Egg Harbor City, played video games, then returned home. While

checking his mail, a young man told him there was a shooting in Egg Harbor

City. In order to find out if he knew the victim, he called Matthews at 12:06

a.m. and Olmo at 12:07 a.m. Matthews told him that someone was shot.

      He also wanted to know if Matthews had marijuana to sell. Matthews said

he did, so Adams drove to meet him. When he saw police cars in the area,

Adams asked Matthews "what the fuck was going on." Although he already

knew someone was shot, Adams maintained he was not aware the shooting

occurred at Matthews's apartment complex. Matthews replied that "somebody

got shot" and he "handled that shit." Adams testified he thought Matthews was

referring to the marijuana that he had obtained. Only after he arrived at a nearby

Wawa did Adams learn, from a woman he knew, that Downs was the shooting

victim. Upon receiving that news, Adams decided to drop Matthews off at the


                                                                          A-1021-14T2
                                       12
apartment and return home. Adams denied telling Matthews that he killed

Downs, that money was the root of all evil, and Downs was a snitch. He said he

made his electronics purchase the day after the murder with cash from the sale

of personal jewelry he won by gambling.

      In its cross-examination, the State elicited several inconsistencies or

variations between Adams's prior statement to police and his testimony about

his whereabouts the night Downs was killed; his interactions with Matthews that

night; and how he was able to afford his recent television purchase. On cross-

examination, Adams admitted he "fabricated" answers to police about his

knowledge of whether Downs was a witness against Olmo. The State also

highlighted evidence that Adams made multiple phone calls and texts to

Matthews and Olmo in the days leading up to and following Downs's murder.

      Adams called as a defense witness someone who claimed to see a man

matching the description of an associate of Olmo, running from Downs's

shooting. Justin Williams testified that he was at Downs's housing complex

shortly before midnight, to purchase marijuana. He heard a gunshot, ducked

behind a fence, and saw a light-skinned Hispanic male with a gun standing over

a female body, and a brown-skinned man standing beside him. Both men ran in

separate directions, the Hispanic man passing by Williams. Williams said the


                                                                       A-1021-14T2
                                     13
Hispanic man was over six feet tall, had a close-cut beard and corn rows in his

hair. Williams said that he knew Adams from the Hammonton area and he was

sure that neither of the men he saw was Adams.

      Adams also called various family members and his girlfriend to

corroborate his movements the night of the murder; his possession of jewelry;

and his sale of some of it. Adams's girlfriend confirmed that Adams was a drug

dealer.

      In the course of deliberations, the judge excused a juror who professed the

inability to continue, and replaced him with an alternate. During deliberations,

the jury heard a playback of the recorded conversation between Vega and Olmo.

The jury's verdict followed three days of deliberations.

                                       II.

      Both defendants contend the court erred in excusing the juror, and in

allowing Detective Scoppa to testify as an expert in interpreting the recorded




                                                                         A-1021-14T2
                                      14
conversation between Olmo and Vega. 3 Adams argues that the trial court erred

by not severing his trial from Olmo's. 4

      As for their remaining points on appeal, Adams argues:

            POINT II

            THE DEFENDANT'S STATEMENT TO POLICE
            SHOULD NOT HAVE BEEN ADMITTED BECAUSE
            THE CUSTODIAL INTERROGATION BY THE
            POLICE VIOLATED DEFENDANT'S FIFTH

3
   In Point I of his brief, Adams argues: "THE DISMISSAL OF JUROR 14
DURING DELIBERATIONS DENIED DEFENDANT HIS RIGHT TO A FAIR
TRIAL." Olmo argues, as Point 8 of his brief, "The trial court erred in removing
a deliberating juror from the panel after deliberations had begun, and in denying
defendant's motion for a new trial on this ground." As for the expert, Adams
argues, as Point IV, "THE ADMISSION OF THE TESTIMONY OF
DETECTIVE SCOPPA AS EXPERT TESTIMONY WAS ERROR." Olmo
argues, "The trial court erred in admitting expert testimony of James Scoppa to
'interpret' phrases in a recorded conversation between defendant and a State
witness." In a pro se brief, Olmo adds, as his POINT I: "THE TRIAL COURT'S
ADMISSIBILITY RULING REGARDING INTERPRETATION OR
MEANING BEHIND DEFENDANT'S RECORDED CONVERSATION
BASED UPON DETECTI[VE] SCO[P]PA'S SO-CALLED EXPERT OPINION,
WAS IMPROPERLY MADE IN THE ABSTRACT AND IMPERMISSIBLY
DEPRIVED DEFENDANT[']S RIGHT TO A FAIR TRIAL, U.S. CONST.
AMENDS VI, XIV; N.J. CONST. (1947) ART. I, PARA. [ ]." He adds, as his
POINT II, "IN THE ABSENCE OF REQUISITE PROCEDURAL NORMS
DETECTIVE SCO[P]PA'S ANALYSIS OR COMMENTARY REGARDING
LANGUAGE           CONTAINED           IN      DEFENDANT'S          RECORDED
CONVERSATION AMOUNTED TO NOTHING MORE THAN HEARSAY
AND/OR MERE 'NET OPINION.'"
4
  He argues in Point III of his brief, "IT WAS ERROR FOR THE TRIAL
COURT TO DENY DEFENDANT'S MOTION FOR SEVERANCE FROM A
JOINT TRIAL."
                                                                         A-1021-14T2
                                       15
     AMENDMENT      RIGHT     AGAINST     SELF-
     INCRIMINATION.

          ....

     POINT V

     THE PROSECUTOR'S CROSS-EXAMINATION OF
     CHARACTER WITNESS, TREVONE ASHLEY
     CHANCE,     WAS       IMPROPER,   GROSSLY
     PREJUDICIAL AND DEPRIVED DEFENDANT OF
     A FAIR TRIAL. (Not raised below).

     POINT VI

     THE RECORD IS DEVOID OF SUFFICIENT
     PROOFS TO PROVE THE TWO SECOND DEGREE
     WITNESS TAMPERING CHARGES BEYOND A
     REASONABLE DOUBT.

     POINT VII

     DENIAL OF THE DEFENDANT'S MOTION FOR
     NEW TRIAL WAS ERROR.

     POINT VIII

     THE CONSECUTIVE SENTENCES IMPOSED
     UPON DEFENDANT WERE EXCESSIVE AND
     SHOULD BE MODIFIED AND REDUCED. (Not
     raised below).

     POINT IX

     THE   AGGREGATE       ERRORS         DENIED
     DEFENDANT A FAIR TRIAL. (Not raised below).

Olmo argues:

                                                   A-1021-14T2
                         16
Point 1

The trial court erred by permitting the prosecution to
change its theory of liability at the end of trial, in its
accomplice liability and related murder charges given
to the jury during the final charge, and in subsequently
denying defendant's motion for a new trial on this
ground of error (partially raised below).

Point 2

The trial court erred in permitting a statement of
Deanna Downs given to the prosecution in the 2009
shooting incident to be admitted into evidence at trial
below.

Point 3

The trial court erred in permitting hearsay testimony
that Deanna Downs was "afraid" of the defendant.

Point 4

The trial court erred in piercing the attorney-client
privilege of defendant's attorney representing
defendant in the 2009 shooting case and ordering him
to testify at trial below.

Point 5

The trial court erred in admitting statements by
defendant, made to interrogators during questioning of
the 2009 shooting incident, to be admitted at trial
below.

      ....



                                                             A-1021-14T2
                           17
             Point 7

             The trial court permitted improper and unfairly
             prejudicial other wrongs evidence before the jury.

                   ....

             Point 9

             Defendant's sentence is improper and excessive.

Olmo, in his pro se brief, adds the following point:

             POINT III

             THE CUMULATIVE IMPACT OF THE ERRORS
             DENIED DEFENDANT DUE PROCESS AND A
             FAIR TRIAL.

                                        III.

      We turn first to both defendants' argument that the court erred in allowing

a detective to testify as an expert and interpret the meaning of the recorded

statements between Vega and Olmo. Olmo asserts that Scoppa exceeded the

permissible bounds of expert opinion by relying on his private conversations

with Vega as well as his own knowledge of the case. He further argues that

Scoppa failed to articulate a basis for his opinion and failed to satisfy the indicia

of reliability set forth in State v. Kelly, 97 N.J. 178, 208 (1984). For his part,

Adams contends that the jury needed no expert assistance to understand the



                                                                             A-1021-14T2
                                        18
Olmo-Vega conversation, and that Scoppa's testimony usurped the province of

the jury by encompassing the ultimate issue of guilt.

      We shall not disturb the trial court's determinations that Detective Scoppa,

based on his years as an undercover officer, was an expert in street slang, and

that expert testimony would help the jury understand some of the jargon and

slang Vega and Olmo used. See State v. Zola, 112 N.J. 384, 414 (1988) (stating

"the necessity for, or propriety of, the administration of expert testimony and

the competence of such testimony" are within the trial court's discretion); State

v. Hyman, 451 N.J. Super. 429, 446-47 (App. Div. 2017) (holding that expert

testimony may assist a juror's understanding of "drug slang and code words").

Nor are we convinced that Scoppa usurped the function of the jury by opining

as to the ultimate issue of guilt.

      However, the court permitted Scoppa to offer opinions that exceeded the

scope of his expertise, or the jury's need for assistance. The court also failed to

carefully distinguish between Scoppa's testimony as an expert, and as an

investigator.

      In Hyman, we held that a trial judge must "guard against opinions that

stray from interpreting drug code words, and pertain to the meaning of

conversations in general and the interpretation of 'ambiguous statements that


                                                                           A-1021-14T2
                                       19
were patently not drug code.'" Id. at 447 (quoting State v. Dukagjini, 326 F.3d

45, 55 (2d Cir. 2003)). Also, an expert should not offer opinions as to words

that have already entered the popular vernacular. Id. at 446.

      Although there is no blanket bar to a lead investigator serving as an expert,

it presents "a delicate situation that requires the trial court to carefully weigh the

testimony and determine whether it may be unduly prejudicial." Id. at 454

(quoting State v. Torres, 183 N.J. 183, 580 (2005)). A witness does not testify

as an expert when he relies on the facts he has learned in the investigation instead

of his specialized experience and training. Id. at 449, 454. Undue credibility is

given to an interpretation that is characterized as an expert opinion, but which

rests on the investigator's knowledge of the details of his investigation. United

States v. Albertelli, 687 F.3d 439, 446 (1st Cir. 2012). "Calling such testimony

'expert opinion' would . . . increase the risk of reliance on information not

properly before the jury as data on which 'experts in the particular field would

reasonably rely,' Fed. R. Evid. 703, even though the 'field' is merely the facts of

the case." Ibid. When a trial court allows a lead investigator to testify as an

expert, it should give a limiting instruction to inform the jury that it may reject

the expert's opinion and the version of facts consistent with it. Hyman, 451 N.J.

Super. at 455.


                                                                              A-1021-14T2
                                         20
        We have no quarrel with Scoppa's definition of certain terms.                For

example, in the course of his interpretation, he explained that "stack" means

$1000, so "twenty stacks" meant $20,000; "bounce" means to "get away"; "dip"

means to leave an area; "bird" is a woman, though Scoppa said it can be used to

refer to drugs; "slept on it" referred to missing an opportunity; an "Old Boy" is

a general reference to a man; "Papi" is a Hispanic male; and "hit," "rocked"5 and

"touched" are all ways of saying "killed."            However, Detective Scoppa's

testimony crossed multiple boundaries.

        He defined terms that needed no explanation.            For instance, a jury

presumably is aware that "hit" may mean "kill." Scoppa defined understandable

phrases such as, "right then and there," and "he can't hurt me," and translated

portions of the conversation that could be easily understood by an average juror,

once the slang was defined. Scoppa also did not confine his testimony to the

meaning of spoken words.

        Scoppa said that his translation was based not only on his knowledge of

slang, but "the ins and outs of the investigation . . . all the details from this case,"

including what Vega told him. He used his knowledge of the investigation to

identify people who were referred to only by pronouns, nicknames, or oblique


5
    The trial transcript of the recording reported the word as "rot."
                                                                                A-1021-14T2
                                          21
descriptions. He relied on his knowledge of the investigation, not his expertise

in street slang, in opining that "old girl," "bitch" and "bird" as used throughout

the conversation referred to Downs; "Papi" referred to Falcon; and "that shit

happened" referred to the killing of Downs.

      Nonetheless, we are convinced that any error associated with the

admission of Scoppa's opinion testimony was harmless. See State v. Lazo, 209

N.J. 9, 26 (2012) (holding that in order to reverse conviction because of

evidentiary error, there must be a real prospect that the error gave rise to an

unjust result); Hyman, 451 N.J. Super. at 457-59 (concluding that a trial court's

error in permitting investigator to offer opinion about meaning of drug slang

without being qualified as an expert was harmless).

      Particularly with respect to Adams, the admission of Scoppa's testimony

was not harmful because Adams was never mentioned in the conversation

between Vega and Olmo. The parties so stipulated. Furthermore, Scoppa

confirmed that Adams was not mentioned. If anything, the absence of any

mention of Adams during the extensive discussion of Downs's murder and the

intimidation of Falcon supported Adams's defense that he was not involved in

the murder and witness tampering.




                                                                          A-1021-14T2
                                       22
      We also conclude any error was harmless to Olmo. To the extent Scoppa

unnecessarily explained language that was already clear to the jury, he did not

advance the State's case. In other respects, Scoppa's testimony that relied on his

knowledge as an investigative detective – as opposed to an expert in street slang

– addressed uncontested issues, such as the persons referenced by nicknames.

For example, Olmo agreed with Scoppa that he and Vega were discussing the

intimidating effect of Downs's killing on Falcon's willingness to testify when

Vega stated, "[E]nd of the day if another witness got their mother fucking face

blown the fuck off, right, what makes you think he gonna feel comfortable on

saying anything if you couldn't even protect that other witness," and Olmo

stated, "Exactly." Olmo also confirmed Scoppa's testimony that "Shid" was

Rashid Hamilton, and "Tay" was Dontay Williams.

      Regarding more obscure statements, Scoppa's interpretation was

cumulative of Vega's testimony. Vega and Scoppa agreed that Olmo was the

"Old Boy" who gave the "green light" to killing Downs. They also agreed when

Olmo said, "I already set the meeting up for them . . . I needed it done right then

and there . . . ." he meant that he had hired a hitman, because he needed Downs

killed.




                                                                           A-1021-14T2
                                       23
      Scoppa confirmed Vega's testimony that he was referring to Hamilton's

reluctance to kill Downs when Vega said on the recording, "I told that nigger

that shit was easy, that shit was right there in the apartments. . . . That shit, all

you gotta do is hop the mother fucking fence, hit Old Girl . . . hit that bitch and

bounce," and Olmo replied, "His thing when he kill (inaudible) was – he kept

saying, man, I might not get out of there. Don't wanna hear that."

      Vega and Scoppa agreed about the meaning of another key exchange in

which Vega asked Olmo if he was willing to pay the same price to kill Falcon

as he did to kill Downs. Olmo responded, "With the Papi? Yeah Papi same

price." Then Olmo disclosed that he "paid a little more" for Downs's killing

"because I had to make sure . . . I told the nigger already, yo, boom, boom, get

the bitch I give you a little extra. I was like extra five, I gave him twenty-five

to get the last one."

      Also, any prejudice associated with Scoppa exceeding the proper scope of

expert testimony was reduced by Olmo's decision to offer his own interpretation.

However, Olmo's explanations were often evasive, rambling, or inconsistent.

We note two examples. Although Olmo insisted the foregoing exchange about

"hit[ting] that bitch" pertained to the alleged robbery of the female drug dealer,

he failed to explain his use of the word "kill." Instead, he denied saying the


                                                                             A-1021-14T2
                                        24
word. Second, to explain his mention of his scheduled appearance in court

immediately after he discussed killing and silencing Downs – or robbing a

female drug dealer, as he contended – Olmo first said he was just "changing in

conversation." Prompted by his attorney, he then said equivocally, "I guess I

was talking about money. I was trying to rack up as much money as I could go

possibly take the five year sentence that I was facing. So I guess I was just

letting him know."

         In addition, the evidence of Olmo's guilt was very strong. Vega and

Hamilton both testified that Olmo offered them $20,000 to kill Downs.

Matthews testified that Olmo paid him to watch Downs and told him that Adams

was going to kill her. Rodriguez testified that Olmo was willing to kill Falcon

to silence him.      Circumstantial evidence, including the proximity in time

between the release of discovery and Downs's murder, also pointed to Olmo's

guilt.

         In concluding the evidentiary error was harmless, we note that the jury

heard the recorded conversation multiple times during the trial, and had it

replayed during deliberations. The jury did not ask for a re-reading of Scoppa's

testimony. We are confident that the jury reached its own conclusions about the

recording, based on what it heard, in light of the other evidence in the case.


                                                                          A-1021-14T2
                                       25
                                        IV.

      We next consider the trial court's removal and replacement of a

deliberating juror.     On the afternoon of March 12, 2014, the jury began

deliberations, conferring for less than two hours. Before proceedings began the

next morning, Juror 14, one of two African-Americans on the jury, 6 sent the

court a note stating:

            Unexpectedly, this case has brought me to a very
            personal place, and as much as I can try, the personal
            place has an enormous grip. This is not the time, nor
            the place for personal matters. I am persuaded that it
            would be best that the alternate juror be utilized for best
            interest of the case going forward.

      The court brought Juror 14 out and asked him, outside the presence of

other jurors, to expound on what he had written. He was hesitant to speak in

defendants' presence, but added:

            [I]t's just my personal perception of things. And, um,
            in this country, I found that the pendulum of justice
            doesn't lean towards a minority, and this case took me
            to a very personal place. And when you live in this type
            of country, for even a man like me with reasonable
            education and so forth. I come back from Wall Street,
            can't find a job. It's – it's just difficult. You – there's a
            lot of stuff I can't say, I really can't say. But I just – I
            don't think, in all fairness, this system – and this is my
            truth – that this system leans towards the favor of any

6
  A third African-American was excused and replaced by an alternate before
summations to attend a professional conference.
                                                                            A-1021-14T2
                                        26
            black man, whether they're guilty or not guilty. It just
            doesn't matter. I just think people – I – I – I just – I
            don't think the system is fair, and that's my – that's my
            truth right there. [7]

      After a brief unrecorded sidebar discussion between the court and the

attorneys regarding the matter, 8 Juror 14 added:

            It's the same shit going on. The only difference
            between this world and this world [9] is this one has
            much more education, has more resources. . . . And
            wear suits, all of them are thugs in suits.

      The court adjourned to consider the matter, after counsel set forth their

positions in writing.10 When the judge returned to hear argument, both defense

counsel suggested that something in deliberations may have provoked Juror 14's

expression of concern. The prosecutor asserted that Juror 14's statements would

have supplied grounds for excusing him for cause, if made during jury selection,



7
  The juror's statement was interspersed with brief acknowledgements from the
judge, such as "I see" and "Um-hum."
8
  It was plainly inappropriate to conduct the side-bar conference off the record.
See State v. Singletary, 80 N.J. 55, 73 (1979); State v. Green, 129 N.J. Super.
157, 166 (App. Div. 1974); R. 1:2-2.
9
  We suspect that the juror was referring to defendants, and then to the attorneys
and other professionals in the courtroom. But, the record is unclear.
10
   Although the court preserved the submissions as court exhibits, they are not
included in the record before us.
                                                                          A-1021-14T2
                                       27
but Adams's attorney disagreed, provided the juror said he could be fair in this

case.

        The court declined to further probe into what caused Juror 14 to speak up,

to avoid intruding into ongoing deliberations. The judge decided to excuse Juror

14 and replace him with an alternate juror. After theorizing that the juror was

"less than candid" during jury selection, the judge summarized the juror's

statements and concluded:

              I think they suggest, pretty transparently, an – an
              incapacity on his part, at this time, to consider the
              evidence as it has gone in and to follow the law
              unimpeded by the strong racial resentments of which he
              did not previously disclose to us. Um, now that the
              time, uh, for making decisions has arrived, I infer that
              he feels impelled to tell us that he just can't abide by his
              oath, and I think to press him further at this point would
              imprudently intrude on the ongoing deliberative
              process of the entire jury.

                    ....

              A juror has to be, uh, able to review evidence
              dispassionately through the light of reason. Uh, any
              doubt about a juror's ability to be fair, uh, I think the
              case law tells us should be resolved in favor of
              removing him from the panel. Uh, I find that, uh, to his
              everlasting credit, uh, [Juror 14] has told us today that
              he simply can't be fair. Uh, so for those reasons, uh,
              I'm going to excuse him and we'll replace him with the
              remaining alternate.



                                                                             A-1021-14T2
                                         28
In rejecting the suggestion that racial cross-currents within the jury may have

prompted Juror 14's statement, the judge noted that the remaining African-

American juror had not communicated any concern to the court.

      After the verdict, the court denied Olmo's motion for a new trial based on

the juror's removal, reiterating its reasons for excusing him. 11       In denying

Adams's motion for a new trial, the court rejected counsel's theory that Juror

14's statement was prompted by something in the jury room.

      We review, for an abuse of discretion, a trial court's decision under Rule

1:8-2(d)(1) to remove and replace a deliberating juror "because of illness or

other inability to continue." State v. Musa, 222 N.J. 554, 564-65 (2015). To

protect the right to fair jury trial, our Supreme Court has restricted "inability to

continue" to matters that are personal to the juror, and unrelated to his or her

interaction with other jurors. State v. Jenkins, 182 N.J. 112, 124-25 (2004); see

also State v. Williams, 171 N.J. 151, 163 (2002).

      A court may not discharge a juror because he or she disagrees with other

jurors. In State v. Valenzuela, 136 N.J. 458, 464, 471-73 (1994), the trial court



11
     The court also rejected the argument that the jury had deliberated too long
to permit a substitution, noting that the jury had deliberated less than two hours
before the substitution, and deliberated for three days after it. Defendants do
not renew that argument on appeal.
                                                                            A-1021-14T2
                                        29
erred in removing a juror after she stated that fellow jurors were "ganging up"

on her, they had a "different opinion" of the case, they were communicating to

her that she was a "hindrance," and the jury complained to the judge that she

was "very confused." See also State v. Paige, 256 N.J. Super. 362, 380-81 (App.

Div. 1992) (stating that the trial court cannot replace a "disgruntled" juror

"whose position is at odds with the rest of the jury").

      However, a court may excuse a juror whose "emotional condition renders

him or her unable to render a fair verdict." Williams, 171 N.J. at 164. For

example, a trial court appropriately discharged a juror who complained she

pictured her son as the defendant, and reported she was nervous, had a headache,

"want[ed] to spit up," was "too emotional," and could not render a fair and just

decision. State v. Trent, 157 N.J. Super. 231, 235-36 (App. Div. 1978), rev'd on

other grounds, 79 N.J. 251 (1979).          In Jenkins, a juror had children the

defendant's age. She said, "I just can't make a decision to put him in jail." 182

N.J. at 119. Although she said she was not "the emotional type," and stated in

voir dire that she could be fair, she realized that, emotionally, she could not

decide the case on the facts. Id. at 120-21. The Court held that the trial court

appropriately discharged her. Id. at 127-28.

            A juror who would decide a case based solely on a
            defendant's race violates her oath. A juror who would

                                                                         A-1021-14T2
                                       30
            decide a case based solely on a personal identification
            or revulsion with a defendant, without regard to the
            evidence, also violates her oath. A juror, as in this case,
            who announces that she cannot obey her oath, follow
            the law, and render fair and impartial justice cannot
            remain on the jury. . . . [A] juror who expressly states
            that she cannot be impartial or that she is controlled
            by an irrepressible bias, and therefore will not be
            controlled by the law, is unable to continue as a juror
            for purposes of Rule 1:8-2(d)(1), and must be removed
            from a jury.

            [Id. at 128.]

      The record must "adequately establish[]" the juror's inability to continue.

Valenzuela, 136 N.J. at 472-73. At the same time, in ascertaining the reason

why a juror wants to be excused, a court must avoid improperly intruding into

the jury's deliberations. Musa, 222 N.J. at 569 (noting that the "questioning was

limited to assessing circumstances personal to the jurors and not delving into the

deliberative process"). The trial judge must assess the juror's demeanor and

interpret the juror's statement in context. See Williams, 171 N.J. at 169. The

trial judge is in the best position to assess the juror's "stress and concern." Id.

at 170. The Court has not required that a trial judge always question other jurors,

to corroborate the reasons given by the juror who wants to be excused. Not only

is such questioning of each deliberating juror time-consuming, it also may alarm

jurors or cause them to speculate about another juror's departure.


                                                                           A-1021-14T2
                                       31
      Applying these principles, we discern no error in the trial court's discharge

of Juror 14. He expressly stated that his inability to continue was "personal,"

explaining the case brought him to a "personal place" with "an enormous grip"

and it was "not the time, nor the place for personal matters." He added that it

was his "personal perception of things" that the justice system "doesn't lean

towards a minority" and the economic system is also unfair.

      The judge was in the best position to assess Juror 14's sincerity, and the

depth of his emotion, in ascertaining whether he was unable to continue. The

court was not obliged to question other jurors about Juror 14. The juror did not

hint that his comments originated from a disagreement with other jurors about

the facts of the case, which may have warranted clarification.

      Juror 14's comments seem more akin to those of the jurors in Trent and

Jenkins, than in Valenzuela. The juror's personal view of racial justice and

equality prompted him to request being excused. Although he did not say so

explicitly, it is clear that he believed that his "personal place" prevented him

from fairly deciding the case based on the facts and the law as the court

instructed. The judge appropriately exercised his discretion, on this record, to

excuse him, and reached that decision in a proper manner.




                                                                           A-1021-14T2
                                       32
                                         V.

      We turn to Adams's argument that the trial court erred in denying his

motion to sever his trial from Olmo's. He claims the substantial evidence at trial

that pertained only to Olmo, including his involvement in the 2009 incident, and

his recorded conversation with Vega, denied him a fair trial. We are unpersuaded.

      The court denied three severance motions by Adams. The first was based on

Olmo's prolonged unavailability for trial, which led to a delay for Adams. The court

held that Adams had not shown the delay prejudiced his ability to present a defense.

In support of the second motion, filed several months later, Adams argued that

evidence of the 2009 incident, in which he was uninvolved, would be inadmissible

against him and highly prejudicial. Shortly afterward, he sought severance on the

grounds that admission of the Olmo-Vega conversation, which did not involve him,

would be unduly prejudicial to his defense. Denying the second and third motions

together, the court reasoned that some reference to the 2009 incident was

unavoidable in order to make both defendants' motives clear. Regarding the Olmo-

Vega conversation, the court stated that "[t]his is a murder case, and killing, and a

certain amount of chatter about it, uh, is part of the landscape whether Mr. Adams is

severed or not."    The court concluded that the conversation was not unduly

prejudicial to Adams.


                                                                             A-1021-14T2
                                        33
       Rule 3:7-7 allows two or more defendants to be tried jointly "if they are

alleged to have participated in the same act or transaction or in the same series of

acts or transactions constituting an offense or offenses." Indeed, "[w]hen the crimes

charged arise from the same series of acts, and when much of the same evidence is

needed to prosecute each defendant, a joint trial is preferable." State v. Brown, 118

N.J. 595, 605 (1990); see also State v. Robinson, 253 N.J. Super. 346, 364 (App.

Div. 1992) (noting the general preference for trying co-defendants jointly). "Joint

trials foster an efficient judicial system, and spare witnesses and victims the

inconvenience and trauma of testifying about the same events two or more times."

State v. Sanchez, 143 N.J. 273, 282 (1996) (citations omitted).

       Nevertheless, "the interest in judicial economy cannot override a defendant's

right to a fair trial." Ibid. "If, for any reason, it appears that a defendant or the State

is prejudiced by the joint trial, the trial court may sever." State v. Weaver, 219 N.J.

131, 148 (2014) (citing R. 3:15-2(b)). "When considering a motion to sever, a court

must balance the potential prejudice to a defendant against the interest in judicial

economy." State v. Brown, 170 N.J. 138, 160 (2001). The decision to sever is within

the trial court's discretion, and will not be reversed unless it constitutes an abuse of

that discretion. Weaver, 219 N.J. at 149.




                                                                                  A-1021-14T2
                                           34
       Generally, "separate trials are necessary when [the] co-defendants' defenses

are 'antagonistic and mutually exclusive or irreconcilable.'" Brown, 170 N.J. at 160

(quoting Brown, 118 N.J. at 605-06). However, "the potential for prejudice inherent

in the mere fact of joinder does not of itself encompass a sufficient threat to compel

a separate trial." State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div. 1985). "The

danger by association that inheres in all joint trials is not in itself sufficient to justify

a severance . . . ." Brown, 118 N.J. at 605. "A severance should not be granted

'merely because it would offer defendant[s] a better chance of acquittal.'" Scioscia,

200 N.J. Super. at 42-43 (quoting State v. Morales, 138 N.J. Super. 225, 231 (App.

Div. 1975) (alteration in original)). Courts have specifically held that severance was

not warranted where the only basis for the motion was that some evidence would be

admissible as to only one co-defendant, State v. Mayberry, 52 N.J. 413, 421 (1968),

or where the evidence against one defendant was stronger than that against the other,

State v. Laws, 50 N.J. 159, 175-76 (1967).

       Here, Olmo's and Adams's defenses were not antagonistic, mutually exclusive

or irreconcilable. Indeed, they both asserted defenses that they did not kill Downs,

they had no reason to kill her, and although they did not know who killed her,

Matthews had the motive and opportunity to do so. Thus, the most compelling

reason recognized by courts to support a severance was not present.


                                                                                    A-1021-14T2
                                            35
       Adams's argument on this point is that the highly prejudicial evidence

admitted against Olmo created the potential for the jury to find him guilty by

association. Yet, courts have repeatedly held that the danger by association that

inheres in joint trials, without more, does not justify a severance. Brown, 118 N.J.

at 605. Indeed, joint trials may allow for a more accurate assessment of relative

culpability that can sometimes operate to a defendant's benefit. Sanchez, 143 N.J.

at 282. For instance, a piece of evidence in Adams's favor was the complete absence

of any mention of him in the lengthy conversation between Vega and Olmo about

the murder of Downs and the intimidation of Falcon. The verdict returned in this

matter clearly showed that the jury believed Adams to be the less culpable of the

two.

                                        VI.

       Olmo's remaining points do not warrant extended discussion. We discern no

merit to Olmo's argument that in order to find him guilty as an accomplice to the

murder, the trial court was obliged to instruct the jury that Olmo was an accomplice

specifically of Adams, as opposed to "another person." Simply put, the jury was not

obliged to identify the trigger-man in order to conclude that Olmo was guilty of

soliciting that person to kill Downs. See State v. Norman, 151 N.J. 5, 32 (1997)




                                                                            A-1021-14T2
                                        36
(holding that the jury was not required to identify the shooter in order to find the

defendant guilty as an accomplice).

      The court also did not err in admitting Downs's 2009 statement – released to

Olmo in discovery – that she observed Olmo flee her apartment complex holding a

gun after a shooting. The State offered the statement to rebut Olmo's testimony that

Downs must have been mistaken, and he meant her no ill will. The court admitted

the statement under the forfeiture-by-wrongdoing doctrine as set forth in State v.

Byrd, 198 N.J. 319, 340 (2009); see also N.J.R.E. 804(b)(9). The court held a

hearing under N.J.R.E. 104 and heard testimony from the police officer who took

Downs's statement. Based on that testimony and the evidence already presented at

trial, the court was satisfied by a preponderance of the evidence that Olmo's

wrongdoing was intended to, and did, procure Downs's unavailability; and Downs's

statement bore an indicia of reliability. See Byrd, 198 N.J. at 352. Furthermore, the

admission of Downs's statement does not offend the confrontation clause. Id. at 339;

State v. Rinker, 446 N.J. Super. 347, 360-61 (App. Div. 2016). It matters not that

Olmo's initial intention was to prevent Downs from testifying in a prosecution

pertaining to the 2009 incident, as opposed to a trial for Downs's murder. The critical

fact is that Olmo engaged in wrongdoing that made Downs unavailable to provide

in court the statement she made previously.


                                                                               A-1021-14T2
                                         37
      Although Downs's mother stated before the jury that her daughter was afraid

of Olmo, defense counsel swiftly objected, and the court delivered a curative

instruction, directing the jury not to consider the statement. We presume the jury

followed the court's instruction. State v. Loftin, 146 N.J. 295, 390 (1996). In any

event, the fleeting remark was inconsequential in the context of the evidence of

Olmo's guilt, and provides no basis to disturb the jury's verdict.

      Also, the court did not, as Olmo contends, pierce his attorney-client privilege

when it compelled his attorney in the case related to the 2009 incident to testify about

when he received and then transmitted discovery, disclosing Downs's and Falcon's

cooperation, to Olmo. The information simply did not constitute a communication

protected by the privilege because it did not concern legal advice. See Hedden v.

Kean Univ., 434 N.J. Super. 1, 10 (App. Div. 2013).

      Olmo also contends the court erred in admitting into evidence his custodial

statement to police regarding the 2009 incident. He argues that his Miranda rights

were violated. Given our deferential review of the trial court's findings, see State v.

Hubbard, 222 N.J. 249, 262-68 (2015), we shall not disturb the trial court's

determination that defendant received the appropriate Miranda warnings; and,

despite the length of his incarceration and the lack of food, Olmo was competent,




                                                                               A-1021-14T2
                                         38
his will was not overborne, and he was not under the influence of narcotics.12

Although he initially declined to answer questions before obtaining a lawyer, Olmo

persisted in engaging the officers, who explained that they could not discuss the case

unless Olmo waived his right to remain silent, which Olmo did. The officers did not

violate Olmo's rights in clarifying Olmo's intentions. See State v. Diaz-Bridges, 208

N.J. 544, 569 (2012) (stating that officers may inquire "to clarify the suspect's intent"

when "confronted with an ambiguous invocation").

      We discern no merit in Olmo's argument that the court erred in allowing the

State to refer to the 2009 incident. To reduce the potential prejudice to Olmo, the

court prohibited the State from eliciting details about the incident (although Olmo

opened the door to such details by discussing the incident in depth in his own

testimony). The court properly applied the Cofield factors, see State v. Cofield, 127

N.J. 328, 338 (1992), in concluding that the evidence was relevant to the motive for

committing the murder and witness tampering, and its probative value was not

outweighed by its apparent prejudice.



12
    We note that the trial judge relied in part on his assessment of Olmo's
demeanor as reflected in the videotape of his interrogation. As the record o n
appeal does not include that recording, we have no basis to question that aspect
of the court's findings. See State v. Cordero, 438 N.J. Super. 472, 489 (App.
Div. 2014) (noting that failure to provide video evidence impeded appellate
court's review of the trial court's fact finding).
                                                                                A-1021-14T2
                                          39
      Finally, we reject Olmo's contention that his sentence was improper and

excessive. We note at the outset that the court was compelled to impose a sentence

of life imprisonment without parole for Downs's murder. See N.J.S.A. 2C:11-

3(b)(4). Thus, Olmo's sentencing argument applies only to the consecutive ten-year

sentence for witness tampering.

      In support of its sentence, the court found aggravating factors one, N.J.S.A.

2C:44-1(a)(1) ("nature and circumstances of the offense, and the role of the actor");

two, N.J.S.A. 2C:44-1(a)(2) ("gravity and seriousness of the harm inflicted on the

victim" including the offender's knowledge of victim's incapacity to resist); three,

N.J.S.A. 2C:44-1(a)(3) (risk of reoffending); six, N.J.S.A. 2C:44-1(a)(6) (prior

record); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter). Those factors substantially

outweighed any mitigating factors.

      We are satisfied that in applying the sentencing guidelines, the judge gave

adequate reasons to support the sentence, the sentence is not manifestly excessive or

unduly punitive, and it does not constitute an abuse of discretion. See State v.

Fuentes, 217 N.J. 57 (2014); State v. Cassady, 198 N.J. 165 (2009); State v. Roth,

95 N.J. 334 (1984). Inasmuch as there were two distinct victims – Downs and Falcon

– we discern no error in the imposition of consecutive sentences. See State v.

Yarbough, 100 N.J. 627, 643 (1985). The fact that Olmo did not personally shoot


                                                                              A-1021-14T2
                                        40
Downs did not preclude the court from finding aggravating factors one and two. The

court found those factors based on the "cold-blooded" and "calculated" execution of

Downs. The court noted that the harm was not only to Downs but to the "body

politic" as it involved "payback for [Downs's] temerity in cooperating with law

enforcement."

      Olmo's remaining points lack sufficient merit to warrant discussion in a

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

                                        VII.

      Adams's remaining points also do not warrant extended discussion. As did

Olmo, Adams contends his Miranda rights were violated, because he initially stated

that he did not want to speak to police. However, he persisted in asking the police

about the matter, including asking the officer to ask him some questions. The officer

explained that he could not do so unless Adams changed his answer on the Miranda

form, which he did. The trial court did not err in concluding that there was no

Miranda violation. The police honored Adams's request to remain silent, while

clarifying, in response to Adams's voluntary inquiries, whether he wanted to waive

that right. See Diaz-Bridges, 208 N.J. at 569.

      Adams also challenges the sufficiency of the proofs. Relying on his acquittal

for murder and weapon offenses, he contends there was insufficient evidence


                                                                             A-1021-14T2
                                        41
remaining that he witness-tampered Downs. He also argues there was insufficient

evidence that he threatened Falcon with force, so as to raise the witness tampering

to a second-degree offense. N.J.S.A. 2C:28-5(a). He also contends the court should

have granted his motion for a new trial in part on the basis that the convictions were

inconsistent with his acquittal of murder and weapons offenses.

      We are unpersuaded. As our system tolerates inconsistent verdicts, the trial

court appropriately determined that there was sufficient evidence to support the

jury's guilty verdicts, notwithstanding its acquittals. See State v. Muhammad, 182

N.J. 551, 578 (2005) (stating that "[i]n reviewing a jury finding, we do not attempt

to reconcile the counts on which the jury returned a verdict of guilty and not guilty").

Although the jury was not convinced that Adams was the trigger-man, there was

sufficient proof to conclude that he was part of the conspiracy to kill her and to

prevent her from testifying against Olmo.         Witnesses implicated him in the

conspiracy; Adams engaged in numerous communications with Matthews and Olmo

before and after the murder; and he made large purchases after the murder. He

travelled to the scene shortly after the murder. There was also sufficient evidence

for the jury to find that Adams threatened Falcon with force, including Falcon's trial

testimony.




                                                                               A-1021-14T2
                                         42
      Turning to Adams's sentence, we have already noted that the judgment of

conviction must be corrected to conform with the court's oral sentence. The judge

stated that the seven-year term for witness tampering of Downs was to run

concurrently with the fifteen-year term for conspiracy to murder her. We find no

error in the court's imposition of a consecutive term for witness tampering of Falcon,

as it involved a different victim. See Yarbough, 100 N.J. at 643.

      The court adequately supported its finding of aggravating factors one,

N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the offense and the role of the

actor"); two, N.J.S.A. 2C:44-1(a)(2) ("gravity and seriousness of the harm inflicted

on the victim," including the offender's knowledge of victim's incapacity to resist);

three, N.J.S.A. 2C:44-1(a)(3) (risk of reoffending); and nine, N.J.S.A. 2C:44-1(a)(9)

(need to deter). The court found that those aggravating factors outweighed non-

existent mitigating factors.

      Adams asked the court to find mitigating factors seven, N.J.S.A. 2C:44-

1(b)(7) (defendant has no prior criminal record, or has a substantial period of law-

abiding behavior); eight, N.J.S.A. 2C:44-1(b)(8) (defendant's behavior resulted from

circumstances unlikely to recur); nine, N.J.S.A. 2C:44-1(b)(9) (the character and

attitude of the defendant indicate that he is unlikely to commit another offense); and

ten, N.J.S.A. 2C:44-1(b)(10) (amenability to probationary treatment). Although the


                                                                              A-1021-14T2
                                        43
court did not expressly address those factors, its rejection was implicit. See State v.

Bienek, 200 N.J. 601, 609 (2010) (stating that a trial court need not explicitly reject

each mitigating factor that a defendant argues, if its reasons for the sentence reveal

the court's consideration of those factors).

      The court acknowledged in its decision that defendant did not have a prior

criminal record. The court noted that Adams disputed the correctness of his

presentence report, which noted prior disorderly persons convictions. The court

concluded, contrary to mitigating factors eight and nine, that defendant posed a risk

of reoffending. Mitigating factor ten is inapplicable when a defendant has been

convicted of a crime with a presumption of imprisonment, as Adams was. State v.

Sene, 443 N.J. Super. 134, 144-45 (App. Div. 2015).

      We also reject Adams's argument that factors one and two "should not be

relied upon in a single gunshot murder case." As the judge appropriately found, the

conspiracy to murder involved the "cold-blooded" killing of a mother just steps from

the front door of her home, her two young children, and her mother. The victim was

totally defenseless.

      Adams's remaining arguments lack sufficient merit to warrant discussion in a

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




                                                                               A-1021-14T2
                                         44
      In sum, the convictions and sentences of both defendants are affirmed. In

Adams's case, No. A-1021-14, we remand solely to correct the judgment of

conviction, with the State's consent.




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                                        45
