                                NOT FOR PUBLICATION WITHOUT THE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-1499-18T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

GARY W. JONES,

          Defendant-Appellant.


                   Argued January 9, 2020 – Decided March 17, 2020

                   Before Judges Alvarez and Nugent.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Union County, Indictment No. 17-04-0304.

                   Michael James Confusione argued the cause for
                   appellant (Hegge & Confusione, LLC, attorneys;
                   Michael James Confusione, of counsel and on the
                   brief).

                   Meredith L. Balo, Special Deputy Attorney
                   General/Acting Assistant Prosecutor, argued the cause
                   for respondent (Lyndsay V. Ruotolo, Acting Union
                   County Prosecutor, attorney; Meredith L. Balo, of
                   counsel and on the brief).
PER CURIAM

      A jury convicted defendant Gary W. Jones of first-degree armed robbery,

N.J.S.A. 2C:15-1(a)(1); the lesser-included third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2); second-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(b)(1); second-degree possession of a weapon for unlawful

purpose (handgun), N.J.S.A. 2C:39-4(a)(1); fourth-degree aggravated assault

with a firearm (pointing), N.J.S.A. 2C:12-1(b)(4); and fourth-degree

obstruction, N.J.S.A. 2C:29-1(a). The jury acquitted defendant of third-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(3)(A) and 2C:29-2(a)(3)(B). On that same

day, defendant entered a guilty plea to second-degree certain persons, N.J.S.A.

2C:39-7(b)(1), charged in a separate indictment. 1 After merging the possession

of a weapon and pointing convictions with the first-degree robbery, the judge

sentenced defendant to a discretionary persistent offender extended term of fifty

years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. See

also N.J.S.A. 2C:44-3(a) and 2C:43-7(a)(2). When sentenced, defendant was

forty-five years old. We now affirm the convictions, vacate the sentence, and

remand for a new sentence to be imposed.


1
   From the sentencing transcript, it appears defendant filed a pro se motion to
withdraw that guilty plea prior to sentencing. No further mention is made in any
transcripts or the briefs on this appeal regarding the status of that offense.
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                                       2
      The circumstances of the crime, as we describe them, were captured on

surveillance tape operated by the City of Elizabeth Police Department and a

second surveillance tape, belonging to the store in front of which the robbery

occurred. The films, and the stills extracted from them, were shown to the jury.

The victim, and police officers who arrived on the scene immediately after

defendant's commission of the robbery, testified at trial.

      The victim was leaving the store at approximately 10:00 p.m. when

defendant, who was armed, approached him and demanded his money. The

victim responded that he had nothing and attempted to enter his vehicle, parked

immediately in front of the establishment. Defendant followed, grabbed the

victim's arm and said, "Oh, you think I'm playing?" The victim replied, "You

really want to do this?"

      Defendant shot the victim in the leg. The victim began to run towards the

nearby police station, while defendant gave chase. Elizabeth Police Officer

Jason Luis was driving by when he heard the gunshot. He and his partner, John

Londono, immediately looked towards the sound and saw a man running in their

direction, with another person close behind. The officers immediately pulled

over, and as they left their vehicle heard the man closest to them yell, "He shot




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                                        3
me," pointing to his pursuer. The second man's body was slanted sideways to

the officers, his hands at his waistband.

      When Luis attempted to stop the second man, the second man began to

run "in a full sprint" until he stumbled. Luis tackled him onto the ground and

realized he had a gun. Luis knocked the gun aside, and along with Londono

wrestled the second man, defendant, until they were able to handcuff him when

other officers arrived. The officers arrested defendant and seized his gun.

      The officers then drove defendant to the ambulance where the victim was

being treated. Luis conducted the show-up, and he testified that before he spoke

to the victim, he attempted to recall the identification warnings usually made

prior to a photo array or a lineup. He recorded the identification on his bodycam.

Luis told the victim that there was no certainty that the person he was about to

see was the perpetrator. Before police even removed defendant from the vehicle,

however, the victim called out that defendant shot him.

      Without conducting a Rule 104 hearing or engaging in any Rule 404(b)

analysis, the judge permitted the State to move into evidence counterfeit twenty-

dollar bills police found in defendant's wallet when he was processed at the

station after arrest. The basis for admission, the prosecutor argued, was that the

jury should be informed defendant had no money with him, despite being seen


                                                                          A-1499-18T2
                                        4
on the videos looking into his wallet. The State wanted to establish his lack of

funds as the motive for the robbery.

      When the question was posed to the officer about the counterfeit bills,

defense counsel objected. The judge said, in overruling the objection:

            [I]t goes to the motive that we mentioned in opening. I
            mean, typically, the property collected from a
            defendant isn't going to be moved into evidence, but the
            witness testified to why that was distinguished here and
            why it was part of the evidence bagged, materials, and
            it cuts to the . . . issue of - - of motive.

Unfortunately, we cannot locate any discussion of the admissibility of the

evidence in the record prior to the above.

      The prosecutor argued in closing that despite defendant being depicted on

the film as looking at his wallet, which appeared to have bills inside, the money

was counterfeit and he only had two cents on him. We address defendant's

sentence proceeding more fully in the relevant section of the opinion.

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

            Point 1
            The 50 year extended term sentence is clearly excessive
            and not sufficiently justified by the record.

            Point 2
            The trial court erred in denying defendant's motion for
            acquittal.



                                                                         A-1499-18T2
                                       5
            Point 3
            Improper other wrongs and crimes evidence was placed
            before the jury that caused an unfair trial on the charges
            at issue.

                                        I.

      We first address defendant's second claim of error, which requires only

brief discussion. At the close of the State's case, defendant made a motion for

the entry of a judgment of acquittal pursuant to Rule 3:18-1. Applying the same

standards used by the trial court to deny the motion, it is clear that the State's

overwhelming proofs meant that a reasonable jury could readily find that

defendant committed the armed robbery beyond a reasonable doubt. See State

v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011).

      Defendant contends the standard set forth in State v. Reyes, 50 N.J. 454,

458-59 (1967), was not met because the videos do not show defendant actually

holding a gun while attempting to rob the victim. Furthermore, defendant called

as a witness one of the responding officers, who testified he conducted a separate

search for the gun. Defendant argues this casts reasonable doubt on Luis's

testimony that he recovered the weapon immediately upon arresting defendant.

      Giving the State the benefit of all reasonable testimony, however, it is

clear that the officer who was called by defendant as a witness did not cast doubt

on the credibility of his colleagues. It was no doubt a chaotic crime scene—

                                                                          A-1499-18T2
                                        6
approximately six officers arrived within minutes of the robbery while an

injured victim was placed in an ambulance, and several officers struggled to

subdue the suspect.    It is not surprising that one officer not engaged in

defendant's immediate arrest or the victim's care would have heard that a gun

was involved, and on that information engaged in a quick search.

      The victim testified unequivocally that the perpetrator was defendant. The

videos clearly established defendant's presence at the scene and movements

corroborating the victim's narrative. Luis and Londono saw defendant chasing

the victim, and Luis never lost sight of him. When Luis was finally able to

subdue defendant, Luis slapped the gun away. No further discussion of the point

is necessary. See R. 2:11-3(e)(2).

                                      II.

      We turn to defendant's third point. The impecunious condition of a person

who commits a theft-type crime is generally inadmissible. "Undoubtedly a lack

of money is logically connected with a crime involving financial gain. The

trouble is that it would prove too much against too many." State v. Mathis, 47

N.J. 455, 471 (1966). There are a few exceptions to the general rule; none come

to mind here. In fact, the distance between the cameras and the contents of

defendant's wallet mean no detail was visible. The wallet could have been filled


                                                                        A-1499-18T2
                                       7
with anything, thus there was no need to prove "motive" by informing the jury

of defendant's commission of an unrelated crime—the possession of counterfeit

bills.

         Trial judges have broad discretion regarding the admissibility of evidence,

certainly as to the logical connection between evidence and a consequential

issue in the case. State v. Nelson, 173 N.J. 417, 470 (2002). Such decisions are

overturned only where there is a palpable abuse of discretion, a decision so wide

of the mark that a manifest denial of justice occurred. State v. Cole, 229 N.J.

430, 449, 453 (2017).

         In this case, the standard of review is different. The judge should not have

ruled until he conducted a Rule 404(b) hearing outside the presence of the jury.

See State v. Cofield, 127 N.J. 328, 338 (1992). Since the alleged error relates

to other crimes evidence—or in this case, of even greater import, a concurrent

crime—and no Cofield analysis took place—review is de novo. See State v.

Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010). The judge appears not

to have addressed the issue at all until defense counsel objected to the admission,

and he simply overruled the objection.

         In addition to being inadmissible as motive evidence, absent some specific

exception, defendant's possession of counterfeit money does not pass the Cofield


                                                                             A-1499-18T2
                                           8
test for admissibility as other crimes evidence. In order to establish that the

evidence meets the Cofield test for inclusion, the State must demonstrate that it

is relevant to a material issue, similar in kind and time to the offense charged,

clear and convincing, and the probative value must not be outweighed by the

apparent prejudice. 127 N.J. at 338.

      As to prong one, relevance to a material fact, the connection between

defendant's possession of counterfeit bills and a motive to rob is tenuous at best.

The counterfeit bills did not have a tendency in reason to prove or disprove any

fact of consequence. See State v. Darby, 174 N.J. 509, 519 (2002).

      The fourth prong of the test is not satisfied either. Given the at best

tenuous connection between the counterfeit bills and the robbery, the probative

value of the evidence is not outweighed by the apparent prejudice.

      Had the judge engaged in a Cofield analysis, he would no doubt have

concluded, as we do, that the evidence was inadmissible. Compounding the

error, the judge did not instruct the jury as to the limited use of the evidence

when the arresting officer testified about the counterfeit bills, or in the final

charge. Such instructions are essential. See State v. Garrison, 228 N.J. 182,

200-01 (2017).




                                                                           A-1499-18T2
                                        9
      In the final analysis, however, the admission of the counterfeit money was

harmless error; it was not "clearly capable of producing an unjust result." R.

2:10-2. The State's proofs were so overwhelming that the error does not raise a

reasonable doubt that it might have led the jury to a result it otherwis e would

not have reached. See State v. Prall, 231 N.J. 567, 581 (2018) (quoting State v.

Daniels, 182 N.J. 80, 95 (2004)). Placed in the context of the videos and

eyewitness testimony, it is not a basis for reversal.

                                        III.

      Finally, we address defendant's contention that his fifty-year NERA

extended-term sentence was excessive. In State v. Liepe, 239 N.J. 359 (2019),

the Court reiterated that in reviewing a sentence, we do not ordinarily substitute

our judgment for that of the sentencing court. Id. at 370-71. If we find an error

in sentencing, it "must amount to more than a difference of opinion or individual

sentencing philosophy. The sentencing objectives are spelled out in the [New

Jersey Code of Criminal Justice]. It is deviation from those objectives, in view

of the standards and criteria therein set forth, which constitute error." State v.

Roth, 95 N.J. 334, 365 (1984).

      Our review of a sentence is limited to consideration of:

            (1) whether guidelines for sentencing established by the
            Legislature or by the courts were violated; (2) whether

                                                                          A-1499-18T2
                                       10
             the aggravating and mitigating factors found by the
             sentencing court were based on competent credible
             evidence in the record; and (3) whether the sentence
             was nevertheless "clearly unreasonable so as to shock
             the judicial conscience."

             [Liepe, 239 N.J. at 371 (quoting State v. McGuire, 419
             N.J. Super. 88, 158 (App. Div. 2011)).]

      In sentencing defendant, this judge praised the attorneys—and demeaned

the defendant over the course of a lengthy hearing. He told defendant that his

family "love[s] you so much that they buy into anything that you say – sir, get a

clue[,]" and that they wasted their time coming to court to support him. He

referenced two songs while sentencing defendant: "When Will They Ever

Learn?" and "Puff the Magic Dragon." The judge acknowledged the sentence

he imposed at the State's request of fifty years subject to NERA, was "a lifetime

sentence."   After that comment, he returned to the musical theme, asking

rhetorically "When will they ever learn?"

      The judge told defendant:

             You had your eyes on him. You waited for him. You
             calculated. You picked him. You chose him.

                  You talked to your buddies or whoever the
             morons were that were standing around outside and did
             not a goddamn thing to help except run when this
             happens.

      The judge discussed the victim's $27,000 in unpaid medical bills and said:

                                                                         A-1499-18T2
                                      11
                  Nobody thinks about it. It's magic. The State
            pays for it. The hospital absorbs it. Nobody gets
            charged money when the team of experts come in and
            save his life. You think that's free? How do you think
            those doctors pay down their student loans, except
            they've got to charge? You don't care. You don't think.
            I don't know that you don't care. You didn't concern
            yourself with it. Callous, that's not the thing on your
            hands only. That means how your heart is. It's got
            callouses on it, if you have one.

                  [The victim's] got one. Doctors saved his life. I
            don't know if you have one. You chase him after you
            shot a bullet through his leg. You don't rescue him.
            You don't say, oh, my god, what did I do? Someone
            call 9-1-1. Let me wrap my shirt around your leg.
            Please stop running. I'm not running after you. I'm
            running to help you. I threw the gun. Sir, I'm saying
            I'm sorry. Let me help you. Please, I didn't mean it.
            Not a chance is that happening. You're running after
            him and he knew it. Full force he's running, barely,
            thinking about her. It's nice to meet you, ma'am. [A
            reference to the victim's wife who had spoken in
            support of her husband.]          I'm sorry for the
            circumstances.

The judge then repeated, "When will they ever learn?" and "When -- when will

you ever learn?" A few minutes later, the judge also repeated that defendant

was "callous"—"an antonym of heinous, cruel and depraved[.] You have a

callous heart."

      The judge found aggravating factors one, three, six, and nine, and no

factors in mitigation. See N.J.S.A. 2C:44-1(a)(1), (3), (6), (9). Defendant's


                                                                      A-1499-18T2
                                     12
criminal history is lengthy and includes juvenile adjudications. 2 He has been

sentenced on ten different occasions between 1991 and 2013 for twelve

indictable offenses and served prison and probation terms.          Defendant has

violated both probation and parole. He has also been convicted in municipal

court of several offenses. In discussing defendant's prior prison sentences, the

judge said about defendant: "Going to jail all the times that he has, seven times,

he can close his eyes and tell you where the bathrooms and showers and . . . fun

area is because he's been there seven times." After making those findings, he

admonished defendant that "an appropriate member of society looks to law

enforcement as someone who is there to assist you not someone who is there to

chase you."

      In discussing deterrence, the judge said that factor might keep some

people from breaking the law:

              And society feeling good that this flag and these books
              aren't a bunch of crap that we just kill trees and put up
              to collect dust, they mean something -- they mean
              something so society can say, oh, turn on the TV, only
              seven people shot in Elizabeth and Newark today. Isn't
              that great?



2
  Our discussion of the details of defendant's criminal history is drawn from the
presentence report contained in the confidential appendix, not from the
sentencing transcript.
                                                                          A-1499-18T2
                                        13
      There is no doubt that a judge has broad discretion to control his

courtroom. D.G. ex rel J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26

(App. Div. 2008). But Rule 3.5 of the Code of Judicial Conduct requires a judge

to be "patient, dignified, and courteous to litigants, jurors, witnesses, lawyers,

and others with whom the judge deals in an official capacity. . . ." "A judge

must conduct a trial in a fair and impartial manner, refraining from remarks that

might prejudice a party . . . ." Mercer v. Weyerhaeuser, 324 N.J. Super. 290,

297-98 (App. Div. 1999).

      The judge was imposing a legislatively mandated sentence on a convicted

person, not passing judgment on him as a human being. His only task was to

fashion a term of imprisonment in accordance with the Criminal Code and do so

with patience, dignity, and courtesy.

      The judge's commentary calls into question his weighing of aggravating

factors one, three, six, and nine, resulting in a fifty-year NERA sentence on a

forty-five-year-old man, effectively a life sentence. This was certainly a heinous

crime in that after shooting the victim in the leg during the robbery, defendant

chased the victim. And defendant's prior criminal history made him eligible for

extended-term sentencing.




                                                                          A-1499-18T2
                                        14
      By granting the State's application to impose a discretionary extended

sentence on defendant, however, the judge substituted the ordinary first-degree

NERA term of between ten years and twenty years, N.J.S.A. 2C:43-6(a)(1), with

a NERA twenty years to life imprisonment. That was, obviously, a significant

increase in the permissible base term of years.

      Unquestionably, a defendant's criminal history can be used to support both

the extended term decision and the weight accorded factor six. State v. Tillery,

238 N.J. 293, 327-28 (2019). But the real-time consequence of the first-degree

NERA extended term required a particularly measured and impartial discussion

of the "competent, credible evidence in the record" supporting the relevant

aggravating and mitigating factors. "[W]e must . . . be mindful of the real-time

consequences of NERA and the role that it customarily plays in the fashioning

of an appropriate sentence." State v. Marinez, 370 N.J. Super. 49, 58 (App. Div.

2004). Absent from the record was any explanation of the reason a real-time

term of incarceration of approximately forty-two and one-half years was the

"appropriate" sentence.

      Canon 3, Rule 3.5 states: "A judge . . . shall not . . . display impatience

or discourtesy or . . . detract from the dignity of the court." As the Court said

in a different context, judges "are held to the very highest standards of


                                                                         A-1499-18T2
                                      15
performance in this state, [although] not infallible." In re Alvino, 100 N.J. 92,

96 (1985). No matter the level of frustration the judge experienced, the judge's

weaving of his views regarding the person standing before him into the

sentencing calculus did not add to the dignity of the court.

      We vacate the sentence and remand. In light of the judge's comments, it

would be best for another judge to impose sentence.

      Affirmed, except reversed and remanded as to the sentence.




                                                                         A-1499-18T2
                                       16
