                     NOT FOR PUBLICATION WITHOUT THE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-5365-14T2

STATE OF NEW JERSEY

      Plaintiff-Respondent,

v .

VONTE L. SKINNER, a/k/a
HASON SKINNER, HASAAN SKINNER,
and LAMAR ANDERSON,

     Defendant-Appellant.
_________________________________________________

           Submitted September 27, 2017 – Decided November 29, 2017

           Before Judges Alvarez, Currier, and Geiger.

           On appeal from Superior Court of New Jersey,
           Law Division, Burlington County, Indictment
           No. 06-11-1756.

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

           Scott   A.    Coffina,   Burlington    County
           Prosecutor, attorney for respondent (Nicole
           Handy, Assistant Prosecutor, of counsel and
           on the brief).

           Appellant filed a pro se supplemental brief.

PER CURIAM
     After a third trial, defendant Vonte L. Skinner was convicted

of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count

five), and third-degree aggravated assault with a deadly weapon,

N.J.S.A. 2C:12-1(b)(2) (count six).1      He was sentenced on May 22,

2015, to a mandatory extended term sentence of sixteen years

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

He appeals and we affirm.    The jury did not reach a verdict as to

the most serious charge of first-degree attempted murder, N.J.S.A.

2C:5-1(a)(3) and N.J.S.A. 2C:11-3(a)(1) (count one).          It was

dismissed with prejudice, along with any remaining counts of the

indictment.

     During his second trial, defendant had been acquitted of

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

(count three), and second-degree possession of a weapon for an

unlawful purpose, N.J.S.A. 2C:39-4(a) (count four), but convicted

of the remaining counts of the indictment.        Defendant appealed,

and the Supreme Court reversed.       The Court held that the verdict

was tainted by the admission of violent rap lyrics that defendant

authored.     Defendant's first trial ended in a mistrial.




1
  The verdict sheet interrogatory as to count six asked the jury
whether defendant "did purposely or knowingly cause bodily injury
. . . with a deadly weapon, to wit: a 9[-]millimeter handgun."


                                  2                           A-5365-14T2
     The victim's testimony was essentially the same during this

trial as in the earlier proceedings.        He was a street-level dealer

who sold drugs for Brandon Rothwell, who had given him a TEC-9

machine gun in furtherance of the criminal enterprise.

     Defendant began acting as Rothwell's muscle in 2005.             After

defendant joined the group, the victim's profits declined, and he

began withholding money from Rothwell.        Rothwell asked the victim

to return the TEC-9 when he realized the victim was withholding a

portion of the profits.

     On November 8, 2005, defendant invited the victim to come to

Willingboro to socialize, drink, and use drugs with him, but the

victim declined because he had never gotten along with defendant.

Around 10:00 p.m., defendant called the victim again, asking to

meet so that he could buy drugs.     At that point in time, the victim

was in Camden and under the influence of PCP, marijuana, and

alcohol.     As he drove to the meeting site, defendant called him

twice   to   confirm   his   location   and   the    timing.      Telephone

communication    records     corroborated   that    defendant    repeatedly

called the victim.

     When the victim arrived and got out of his car, he saw

defendant walking towards him.       Defendant drew a gun and started

shooting from a distance of ten to twelve feet.                Although the



                                    3                               A-5365-14T2
victim saw someone standing behind defendant, that person did not

shoot.

     Defendant shot the victim seven times; he was paralyzed from

the waist down as a result of his injuries.                The victim recalled

telling the emergency personnel that came to his aid that defendant

was the shooter.      Once he was hospitalized, however, the victim

was initially reluctant to speak to police.               During an interview,

he indicated "that he really was not sure if he wanted to speak

without   his   mom   being   there."       When    his    mother    arrived,   he

mentioned that defendant shot him.           In a separate interview, the

victim indicated that he had a continuing feud with an acquaintance

who had robbed his cousin.      He was certain that individual was not

the assailant, even though the week before he had shot up that

person's car.     The victim recognized the weapon, a 9-millimeter

handgun, used to shoot him as the one he shared with defendant and

Rothwell in the drug business.

     In addition to the victim, the State's witnesses included

several officers and emergency personnel who arrived at the scene.

William   Palmer,     a   Willingboro       First    Aid     Squad    volunteer,

accompanied the victim in an ambulance and asked him what happened.

He recalled the victim saying he went to meet a friend, with whom

he exchanged a few words, when the friend shot him.                   When asked



                                        4                                A-5365-14T2
for the friend's name, the victim responded "Davonte" – defendant's

first name.   Palmer relayed this information to police.

     Willingboro Police Department Detective Joseph Dey briefly

spoke to the victim immediately before his transport.      The victim

told Dey that defendant had arranged to meet, and when he arrived,

shot him.   When Dey asked for the name of this person, the victim

responded "Davonte."    Defendant's cell phone was found at the

scene.

     Shortly after the incident, Burlington County Prosecutor's

Office   Detective   Sergeant   Steven    Craig   participated     in    a

neighborhood canvass in the hopes of locating eyewitnesses.        While

in the area, Craig encountered three men who claimed they had been

visiting a friend, and who denied any knowledge of the incident.

One of them was later identified as the individual with whom the

victim had the ongoing conflict.      A person who the three men said

they were visiting that night denied that they had been at his

home.

     Craig visited the victim at the hospital a few days later,

and he also said the victim refused to talk to the authorities

until his mother convinced him to do so.     The victim told him, in

addition to identifying defendant, that the day of the shooting,

defendant had contacted him approximately six times.      Defendant's

phone records confirmed the multiple calls to the victim.

                                  5                              A-5365-14T2
     When police interviewed defendant, he admitted having met the

victim at the scene. He said he wore a white t-shirt that evening,

contrary to some neighbors' description of a man in the vicinity

who wore a dark or burgundy sweatshirt.          However, defendant said

when he heard the shots, he ran away, hitched a ride with an

acquaintance, and later called his girlfriend to take him home.

     The   victim   repeated   his       description   of   the   incident,

including the identity of the shooter, in the months that followed.

When tested, the discharged shells from the scene were found to

have been ejected by a TEC-9 machine gun.

     Defendant's mother, who testified on his behalf, denied he

was the shooter.    She said that although he admitted to her that

he had been at the scene, he ran away when the trouble began.

Defendant's mother also said that he only wore dark clothing,

usually black.

     The victim's cousin Alexandria Ross, the mother of Rothwell's

child, testified on defendant's behalf.          She had known defendant

since he was a child, and denied that he had a weapon or sold

drugs.

     When cross-examined, Ross admitted she initially told police

that defendant said he arranged to meet the victim to buy drugs.

When she confronted defendant about his phone being found at the

scene, he acknowledged that he was the last person who saw the

                                     6                              A-5365-14T2
victim before he was shot.       Ross told police that she was afraid

of defendant.

      Although cross-examined about the details of her original

statement, which diverged from her trial testimony, Ross insisted

that she did not believe defendant shot the victim.                  She claimed

the   victim    told   her,    after       his    release   from     a   physical

rehabilitation facility, that Rothwell and defendant had nothing

to do with the shooting.

      Before the trial began, the trial judge denied defendant's

motion to dismiss the indictment based on principles of double

jeopardy,      collateral     estoppel,          and   fundamental       fairness.

Defendant repeated the arguments in support of his application for

a new trial, and he also contended that the verdict was against

the weight of the evidence.            We discuss the judge's factual

findings and rulings on the law on both applications in the

relevant sections.

      On appeal, defendant raises the following points:

            POINT I – THE TRIAL COURT SHOULD HAVE
            DISMISSED COUNTS ONE, FIVE AND SIX OF THE
            INDICTMENT ON GROUNDS OF DOUBLE JEOPARDY.

            POINT II – THE STATE WAS PRECLUDED FROM TRYING
            DEFENDANT ON THE REMAINING COUNTS OF THE
            INDICTMENT ON THE GROUNDS OF COLLATERAL
            ESTOPPEL.




                                       7                                   A-5365-14T2
           POINT III – THE STATE WAS PRECLUDED FROM
           RETRYING DEFENDANT ON THE REMAINING COUNTS ON
           GROUNDS OF FUNDAMENTAL UNFAIRNESS.

           POINT IV – DEFENDANT SHOULD NOT HAVE RECEIVED
           A MANDATORY EXTENDED TERM UNDER N.J.S.A.
           2C:43-6c BECAUSE THE JURY HAD PREVIOUSLY
           ACQUITTED HIM OF POSSESSION OF A FIREARM.

           POINT V – THE TRIAL COURT SHOULD HAVE GRANTED
           DEFENDANT'S MOTION FOR NEW TRIAL PURSUANT TO
           R. 3:20-1 ON THE GROUNDS THAT A NEW TRIAL WAS
           REQUIRED IN THE INTEREST OF JUSTICE IN THAT
           THE VERDICT WAS AGAINST THE WEIGHT OF THE
           EVIDENCE.

     In   his   uncounseled    letter    brief,   defendant    raises   the

following issue for our consideration:

           POINT I

           THE   TRIAL   COURT   SHOULD   HAVE   GRANTED
           DEFENDANT'S MOTION FOR A NEW TRIAL PURSUANT
           TO R. 3:20-1 ON THE GROUNDS THAT A NEW TRIAL
           WAS REQUIRED IN THE INTEREST OF JUSTICE IN
           THAT VERDICTS WERE SHARPLY AGAINST THE WEIGHT
           OF THE EVIDENCE, NECESSITATING REVERSAL.

                                   I.

     Defendant's     double   jeopardy   argument   lacks     merit.    The

underlying purpose of the Double Jeopardy Clause, U.S. Const.

amend. V, is to prohibit the State from making "repeated attempts

to convict an individual for an alleged offense, thereby subjecting

him to embarrassment, expense and ordeal and compelling him to

live in a continuing state of anxiety and insecurity, as well as

enhancing the possibility that even though innocent he may be


                                    8                              A-5365-14T2
found guilty."     Green v. United States, 355 U.S. 184, 187-88, 78

S. Ct. 221, 223, 2 L. Ed. 2d 199, 204 (1957).

      Generally, however, the Double Jeopardy Clause does not "bar

reprosecution of a defendant whose conviction is overturned on

appeal[]" because, until the proceedings have run their full

course, the defendant remains in a state of "continuing jeopardy."

Justices of Bos. Mun. Court v. Lydon, 466 U.S. 294, 308, 104 S.

Ct. 1805, 1813, 80 L. Ed. 2d 311, 324 (1984) (citation omitted).

Additionally,

           double jeopardy . . . do[es] not prohibit
           retrial   of   a  defendant   when  a   prior
           prosecution for the same offense has ended in
           mistrial attributable to the inability of the
           jury to agree on a verdict, because the
           jeopardy to which the defendant is exposed is
           considered   a   continuation   of   original
           jeopardy, which was not terminated by the
           mistrial.

           [State v. Johnson, 436 N.J. Super. 406, 421
           (App. Div. 2014) (alteration in original)
           (citation omitted) (quoting State v. Abbati,
           99 N.J. 418, 425-26 (1985)).]

      The State cannot reprosecute a defendant on a charge that is

reversed    because   of    insufficient    evidence     to   support    the

conviction.     See Lydon, supra, 406 U.S. at 308-09, 104 S. Ct. at

1813, 80 L. Ed. 2d at 325; State v. Kelly, 201 N.J. 471, 485

(2010).    Nor can the State correct substantive failures of proof

on   remand.     Reversal   for   failure   of   proof   "means   that   the


                                     9                              A-5365-14T2
government's case was so lacking that it should not have even been

submitted to the jury."     State v. Millett, 272 N.J. Super. 68, 97

(App. Div. 1994) (emphasis omitted) (quoting Burks v. United

States, 437 U.S. 1, 16, 98 S. Ct. 2141, 2150, 57 L. Ed. 2d 1, 12-

13 (1978)).    "[A]lthough a remand for a new trial is proper where

reversal of a criminal conviction is predicated on trial error,

the Double Jeopardy Clause forbids a second trial where the

conviction has been overturned due to a failure of proof at trial."

State v. Tropea, 78 N.J. 309, 314 (1978) (citation omitted).

     Here, there was neither a failure of proof nor lack of

evidence.     Although defendant, citing Kelly, supra, 201 N.J. at

485, argues the State cannot reprosecute a defendant on a charge

reversed on appeal due to insufficient evidence, that is not what

occurred here.      Defendant's prior convictions were not reversed

due to any failure of proof; rather, they were reversed due to a

"trial     error"   attributable   to   the   erroneous   admission    of

prejudicial evidence. See Tropea, supra, 78 N.J. at 314-15. Thus,

throughout both the first trial resulting in a mistrial, and the

second trial resulting in overturned convictions, defendant has

remained in a state of "continuing jeopardy."        Lydon, supra, 466

U.S. at 308, 104 S. Ct. at 1813, 80 L. Ed. 2d at 324-25; Johnson,

supra, 436 N.J. Super. at 421 (citing Abbati, supra, 99 N.J. at

425-26).

                                   10                           A-5365-14T2
      Neither the Supreme Court nor the Appellate Division found

that if the rap lyrics were excluded, the remaining evidence was

insufficient.    The language in the Supreme Court's decision and

the majority Appellate Division opinion explicitly discussed only

the potential for prejudice created by admission of the rap lyrics

in light of the State's proofs. In fact, in this case, in addition

to the victim's direct testimony identifying defendant as the

perpetrator, defendant's cell phone was discovered at the scene,

and he admitted meeting the victim at the scene of the crime.

Accordingly, double jeopardy principles do not apply.          Since the

prior reversal was not due to a lack of proof, defendant has been

under continuing jeopardy.

                                     II.

      Defendant also contends the State was collaterally estopped

from retrying him on the aggravated assault with a firearm because

the   jury,   during   defendant's   second   trial,   acquitted   him    of

unlawful possession of a handgun and possession of a handgun for

an unlawful purpose. Collateral estoppel is embodied in the Double

Jeopardy Clause and "'means simply that when an issue of ultimate

fact has once been determined by a valid and final judgment, that

issue cannot again be litigated between the same parties in any

future lawsuit.'"      State v. Brown, 394 N.J. Super. 492, 501 (App.



                                     11                            A-5365-14T2
Div. 2007) (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct.

1189, 1194, 25 L. Ed. 2d 469, 475 (1970)).

    The United States Supreme Court has held the doctrine of

collateral estoppel is not applicable when a jury, in a single

trial, returns a verdict of acquittals and convictions that are

inconsistent with one another.           Kelly, supra, 201 N.J. at 487

(citing United States v. Powell, 469 U.S. 57, 62-67, 105 S. Ct.

471, 475-78, 83 L. Ed. 2d 461, 467-70 (1984)).          "Our system of

justice has long accepted inconsistent verdicts as beyond the

purview of correction by our courts, and therefore a defendant is

forbidden from collaterally attacking a guilty verdict on one

count   with   an   apparently   irreconcilable   acquittal   on   another

count."   Ibid. (citing Powell, supra, 469 U.S. at 58, 105 S. Ct.

at 473, 83 L. Ed. 2d at 464).

    The party asserting the collateral estoppel bar as a result

of a second trial must show:

           (1) the issue to be precluded is identical to
           the issue decided in the prior proceeding; (2)
           the issue was actually litigated in the prior
           proceeding; (3) the court in the prior
           proceeding issued a final judgment on the
           merits; (4) the determination of the issue was
           essential to the prior judgment; and (5) the
           party against whom the doctrine is asserted
           was a party to or in privity with a party to
           the earlier proceeding.

           [Brown, supra, 394 N.J. Super. at 502
           (emphasis omitted) (quoting First Union Natl

                                    12                             A-5365-14T2
          Bank v. Penn Salem Marina, 190 N.J. 342, 352
          (2007)).]

     Hence, when dealing with multiple trials, collateral estoppel

may bar a later prosecution where the jury's acquittal in a prior

case demonstrated its rejection of the essential facts on which

the State sought to base a second prosecution.           See State v.

Cormier, 46 N.J. 494, 509 (1966).

     In Yeager v. United States, 557 U.S. 110, 129 S. Ct. 2360,

174 L. Ed. 2d 78 (2009), the Court held that when a defendant is

acquitted on some charges and the jury cannot reach a verdict on

others, collateral estoppel principles may apply to the State's

attempt to retry the defendant on the "hung counts."           Id. at

121-23, 129 S. Ct. at 2368-69, 174 L. Ed. 2d at 89-90.    In assessing

the merits of a collateral estoppel argument, the jury's failure

to return a verdict on the hung counts must be treated as a

"nonevent."   Id. at 120, 129 S. Ct. at 2367, 174 L. Ed. 2d at 88.

That is, the trial court must not speculate on the jury's reasons

for being unable to return a verdict, and instead should focus on

the significance of the acquittal.    Id. at 119-23, 129 S. Ct. at

2367-68, 174 L. Ed. 2d at 88-90.

     The Court in Yeager discussed Ashe:

          In Ashe, we squarely held that the Double
          Jeopardy Clause precludes the Government from
          relitigating any issue that was necessarily
          decided by a jury's acquittal in a prior

                                13                             A-5365-14T2
         trial. In that case, six poker players were
         robbed by a group of masked men.      Ashe was
         charged   with--and    acquitted   of--robbing
         Donald Knight, one of the six players. The
         State sought to retry Ashe for the robbery of
         another poker player only weeks after the
         first jury had acquitted him.       The second
         prosecution     was     successful:     Facing
         "substantially   stronger"    testimony   from
         "witnesses [who] were for the most part the
         same," Ashe was convicted and sentenced to a
         35-year prison term.    We concluded that the
         subsequent prosecution was constitutionally
         prohibited. Because the only contested issue
         at the first trial was whether Ashe was one
         of the robbers, we held that the jury's
         verdict of acquittal collaterally estopped the
         State from trying him for robbing a different
         player during the same criminal episode. We
         explained that "when an issue of ultimate fact
         has once been determined by a valid and final
         judgment" of acquittal, it "cannot again be
         litigated" in a second trial for a separate
         offense.     To decipher what a jury has
         necessarily decided, we held that courts
         should "examine the record of a prior
         proceeding, taking into account the pleadings,
         evidence, charge, and other relevant matter,
         and conclude whether a rational jury could
         have grounded its verdict upon an issue other
         than that which the defendant seeks to
         foreclose from consideration." We explained
         that the inquiry "must be set in a practical
         frame and viewed with an eye to all the
         circumstances of the proceedings."

         [Id. at 119-20, 129 S. Ct. at 2366-67, 174 L.
         Ed. 2d at 87-88 (alteration in original)
         (citations omitted).]

    This case differs from Yeager, however, because there was no

valid final judgment of acquittal.   Defendant remained in a state

of "continuing jeopardy" during the pendency of the prior appeal

                              14                           A-5365-14T2
and petition for certification.             Lydon, supra, 466 U.S. at 308,

104 S. Ct.        at 1813, 80 L. Ed.         2d at 324-25.           "[S]eemingly

inconsistent verdicts in the first trial," do not "establish that

the jury determined an ultimate fact that precluded a retrial of

the   reversed     convictions."       Kelly,      supra,    201    N.J.    at   494.

"Without the determination of an ultimate fact that can rationally

foreclose some other issue from consideration, double-jeopardy

principles do not apply."       Id. at 488.

      Furthermore,     "[t]he       defendant's     burden     is    particularly

difficult    to    satisfy   when    the    jury   has   reached     inconsistent

verdicts.    Such verdicts, whether based on error, confusion, or a

desire to compromise, give little guidance as to the jury's factual

findings."    United States v. Citron, 853 F.2d 1055, 1058 (2d Cir.

1988).    During his second trial, although acquitted of possession

of a handgun and possession of a handgun for an unlawful purpose,

he was convicted of assault with a deadly weapon——a handgun——a

seemingly inconsistent verdict.

      In addressing this collateral estoppel argument, the crucial

factor is that the jury convicted appellant of two counts of

aggravated assault with a weapon in the second trial.                      See Evans

v. United States, 987 A.2d 1138, 1141-42 (D.C. Jan. 28, 2010),

cert. denied, 562 U.S. 1202, 131 S. Ct. 1043, 178 L. Ed. 2d 867

(2011).     "The problem is that the same jury reached inconsistent

                                       15                                    A-5365-14T2
results;    once   that    is    established     principles      of   collateral

estoppel -- which are predicated on the assumption that the jury

acted rationally and found certain facts in reaching its verdict

-- are no longer useful."         Id. at 1141 (citing Powell, supra, 469

U.S. at 68, 105 S. Ct. at 478, 83 L. Ed. 2d at 471); accord

Standefer v. United States, 447 U.S. 10, 23 n.17, 100 S. Ct. 1999,

2007, 64 L. Ed. 2d 689, 699 (1980) ("This inconsistency is reason,

in itself, for not giving preclusive effect to the acquittals[.]").

As Justice Holmes explained, "[t]he most that can be said in such

cases is that the verdict shows that either in the acquittal or

the conviction the jury did not speak their real conclusions, but

that does not show that they were not convinced of the defendant's

guilt."    Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189,

190, 76 L. Ed. 356, 359 (1932) (quoting Steckler v. United States,

7 F.2d 59, 60 (2d Cir. 1925)).

     "Our       system      of       justice       has         long     accepted

inconsistent verdicts as beyond the purview of correction by our

courts, and therefore a defendant is forbidden from collaterally

attacking   a   guilty    verdict    on    one   count   with    an   apparently

irreconcilable acquittal on another count."               Kelly, supra, 201

N.J. at 487 (citation omitted).            Since defendant would have been

precluded from attacking the disparity between his convictions for

attempted   murder   and    aggravated      assault,     and    acquittals    for

                                      16                                 A-5365-14T2
weapons charges, following his second trial, defendant must also

be    barred    from    asserting      collateral       estoppel       when     those

convictions were later overturned due to the erroneous admission

of prejudicial evidence.           The verdicts, assuming for the sake of

argument   that    they     were    inconsistent,       could    not    have      been

successfully attacked then.           They cannot be attacked now after a

third trial, required as a result of the reversal following his

second trial. Furthermore, the jury in this trial was specifically

asked about defendant's alleged use of a 9-millimeter handgun on

the   assault    with   a   deadly     weapon.      There       was    neither       an

inconsistency between verdicts, nor was the State collaterally

estopped from this prosecution.

                                         III.

      Defendant argues that the doctrine of fundamental fairness

should have resulted in the dismissal of the indictment.                          "The

doctrine   of   fundamental        fairness   'serves    to     protect   citizens

generally against unjust and arbitrary governmental action, and

specifically against governmental procedures that tend to operate

arbitrarily.'" State v. Saavedra, 222 N.J. 39, 67 (2015) (emphasis

omitted) (quoting Doe v. Poritz, 142 N.J. 1, 108 (1995)).                          The

Supreme Court has described this doctrine as "an integral part of

due process" that "is often extrapolated from or implied in other

constitutional guarantees."            State v. Miller, 216 N.J. 40, 71

                                       17                                     A-5365-14T2
(2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1329, 188 L. Ed.

2d 339 (2014) (quoting Oberhand v. Dir., Div. of Taxation, 193

N.J. 558, 578 (2008)); see also Abbati, supra, 99 N.J. at 429.

     The       doctrine   is   applied   "sparingly"       and    only   where   the

"interests involved are especially compelling[;]" if a defendant

would     be    subject   "to    oppression,      harassment,       or   egregious

deprivation," it is be applied.                Doe, supra, 142 N.J. at 108

(quoting State v. Yoskowitz, 116 N.J. 679, 712 (1989) (Garibaldi,

J., concurring and dissenting)).               It can be applied "at various

stages of the criminal justice process even when such procedures

were not constitutionally compelled."             Ibid. (citations omitted).

The doctrine's "primary considerations should be fairness and

fulfillment       of   reasonable   expectations      in    the    light    of   the

constitutional and common law goals."             Yoskowitz, supra, 116 N.J.

at 706 (emphasis omitted) (quoting State v. Currie, 41 N.J. 531,

539 (1964)).

     The doctrine is an "elusive concept" and its "exact boundaries

are undefinable."         Id. at 704-05 (citation omitted).                "For the

most part, it has been employed when the scope of a particular

constitutional protection has not been extended to protect a

defendant."       Id. at 705.       Dismissal on grounds that a further

prosecution is fundamentally unfair is necessary because "[t]he

primary    considerations       should    be   fairness    and    fulfillment      of

                                         18                                 A-5365-14T2
reasonable expectations in the light of the constitutional and

common law goals."      Currie, supra, 41 N.J. at 539 (citation

omitted).    The fundamental fairness doctrine does not preclude a

retrial where "the elements of harassment and oppression which

[are] the historic object of the constitutional and common law

. . . principles are not . . . present."     State v. Tsoi, 217 N.J.

Super. 290, 297 (App. Div. 1987).

     In Abbati, supra, 99 N.J. at 435, the Supreme Court, noting

that although principles of double jeopardy did not bar a retrial,

reversed the Appellate Division and remanded the case to the trial

court to reconsider based on a newly articulated standard regarding

whether an indictment should be dismissed.    It required evaluation

of the following factors:

            (1) [T]he number of prior mistrials and the
            outcome of the juries' deliberations, so far
            as is known; (2) the character of prior trials
            in terms of length, complexity, and similarity
            of evidence presented; (3) the likelihood of
            any substantial difference in a subsequent
            trial, if allowed; (4) the trial court's own
            evaluation of the relative strength of each
            party's case; and (5) the professional conduct
            and   diligence    of   respective    counsel,
            particularly of the prosecuting attorney.

            [Ibid.]

See also State v. Cruz, 171 N.J. 419, 430 (2002).

     The "trial court may dismiss an indictment with prejudice

after successive juries have failed to agree on a verdict when it

                                 19                          A-5365-14T2
determines that the chance of the State's obtaining a conviction

upon further retrial is highly unlikely."   Abbati, supra, 99 N.J.

at 435 (citation omitted).   The "court must also give due weight

to the prosecutor's decision to reprosecute, assessing the reasons

for that decision, such as the gravity of the criminal charges and

the public's concern in the effective and definitive conclusion

of criminal prosecutions."   Ibid.   "Conversely, the court should

accord careful consideration to the status of the individual

defendant and the impact of a retrial upon the defendant in terms

of untoward hardship and unfairness."   Ibid.

     Discussing the Abbati factors when the September 29, 2014

decision was rendered, the trial judge found:

               One, . . . we have a hung jury and a
          conviction but now these rap lyrics are out
          if there's a third trial.

               Two, . . . the rap lyrics are out so the
          evidence presumably is weaker for the State
          than it was before, but doesn't certainly
          fall, in my view, on my analysis, to
          insufficient evidence to prove a case but it
          is a piece that is missing that was there
          before. . . . The[re] were eight trial days
          approximately.   And so, . . . in terms of
          length and complexity, it's not overly – this
          is not a seven week trial. This is not . . .
          something that took months and months. So in
          the continuum of trials, it falls in that
          mid[-]range.    It's certainly not a quick
          simple nothing trial . . . [b]ut it’s also not
          something that took weeks and weeks.



                               20                          A-5365-14T2
     Three, the likelihood of any substantial
difference in a subsequent trial, if allowed.
And this is the argument that [defendant's
attorney] was making . . . how's the case going
to get any stronger for the State? Well, it's
not . . . Yes, you're pulling the rap lyrics
out, that may make it a little weaker. But
[the State is] not left with nothing, they
still have his testimony that even both the
Appellate Court and the Supreme Court provided
some sufficiency and [N.J.R.E.] 404(b) was
only bolstering their case. So yes, there is
a case to be made. . . .

     [Factor four,] the [t]rial [c]ourt's own
evaluation of the relative strength of each
party's case, I don't mean to repeat myself,
I think I've gone through that quite a bit on
the relative proofs.

     Five, the professional conduct and
diligence of respective counsel, particularly
of the prosecuting attorney. This is really
the   bad   faith  piece   that   [defendant's
attorney] is asserting, but the [c]ourt is not
accepting, that the State acted in bad faith
in admitting or trying to admit the rap
lyrics.     I think they felt that it was
legitimate . . . evidence. You have a trial
judge who said it was. You have at least one
appellate judge [who] said it was, it was a
split decision that went up to the Supreme
Court.    So it wasn't so off base . . . .
Undoubtedly the Supreme Court was unanimous
in their decision. But this happens. That
doesn't necessarily lead to [] bad faith. . .
. [T]his was something [the State] felt was a
legitimate piece of proof and ultimately it
was   determined   that   was   improper   and
incorrect. . . .

     So given the Abbati factors and weighing
them on a qualitative and quantitative basis,
this [c]ourt is not persuaded that there was
such fundamental [un]fairness in retrying the

                     21                           A-5365-14T2
          case as there       would    be    after   multiple
          mistrials. . . .

               In addition, and I already made the point
          about still having [sixteen] and a half years
          left of a sentence to serve if you look at the
          [thirty] years and that's the way the cases
          have done it. They've taken the sentence that
          was given and determined how much of that
          would be left.    As so again, that wouldn't
          lead   the   [c]ourt   to   find   fundamental
          unfairness such that I would dismiss the
          indictment at this juncture[.]

     After the trial, the trial judge did not expressly address

defendant's argument regarding fundamental fairness, but referred

back to her prior analysis.

     We agree with the trial court's initial analysis of the Abbati

factors. Principles of fundamental fairness did not bar a retrial.

                                 IV.

     Defendant contends, in his counseled and uncounseled brief,

that he should have been granted a new trial because the verdict

was against the weight of the evidence.          We do not agree.    The

jury's verdict clearly hinged upon its conclusion that the victim

was a credible witness.

     On its face, contrary to defendant's arguments, the record

supports the jury's determination.      The victim's testimony that

defendant called him repeatedly to set up the meeting was supported

by telephone communication records.         Defendant acknowledges that

he was at the scene and left his cell phone there.       The ballistics

                                 22                             A-5365-14T2
evidence corroborated that all seven shots were fired from the

same 9-millimeter handgun, which the victim said he recognized.

The victim's initial identification of defendant as the shooter

was made while there was a question as to his very survival, while

he was being transported from the scene after being shot seven

times.

     "[A]   motion     for   a   new    trial   is   addressed   to   the   sound

discretion of the trial judge, and the exercise of that discretion

will not be interfered with on appeal unless a clear abuse has

been shown."   State v. Armour, 446 N.J. Super. 295, 306 (App. Div.

2016)    (alteration    in   original)        (citations   omitted)   (internal

quotation marks omitted) (quoting State v. Russo, 333 N.J. Super.

119, 137 (App. Div. 2000)).            Moreover, the governing standard set

forth in Rule 3:20-1 provides that:

                 The trial judge on defendant's motion may
            grant the defendant a new trial if required
            in the interest of justice. . . . The trial
            judge shall not, however, set aside the
            verdict of the jury as against the weight of
            the evidence unless, having given due regard
            to the opportunity of the jury to pass upon
            the credibility of the witnesses, it clearly
            and convincingly appears that there was a
            manifest denial of justice under the law.

There is no "miscarriage of justice" when "any trier of fact could

rationally have found beyond a reasonable doubt that the essential

elements of the crime were present."              State v. Jackson, 211 N.J.


                                         23                             A-5365-14T2
394, 413-14 (2012) (citations omitted) (quoting State v. Afanador,

134 N.J. 162, 178 (1993)). "Thus, we review defendant's conviction

. . . under an extraordinarily lenient standard of review."                    Id.

at 414.

      We do not attempt to reconcile the verdicts on the different

counts nor do we speculate whether verdicts resulted from "jury

lenity,     mistake,    or       compromise,"        and   even    inconsistent

verdicts.     State v. Muhammad, 182 N.J. 551, 578 (2005).                      We

consider the evidence presented in support of each count as though

it   were   presented   in   a    separate    indictment.       Ibid. (citation

omitted).      The   jury    verdict   will     be    upheld   where   there    is

sufficient evidence to support the conviction.                 Ibid. (citations

omitted).

      In denying the motion for a new trial, the trial judge stated:

                 The State presented testimony including
            investigating officers, lay witnesses and the
            victim who identified the defendant as the
            shooter including the EMT and Lieutenant Dey.
            The State also presented physical evidence
            from the scene.    The defendant . . . put
            himself at the scene. . . .

                 I am only to determine whether that
            minimal standard has been met, that the jury
            could have found this and it was not a manifest
            denial of justice for them to find guilt on
            those convictions.     And given all of that
            evidence, the [c]ourt certainly does not find
            that the verdict was against the weight of the
            evidence under that standard.


                                       24                                A-5365-14T2
      We are satisfied that the judge's decision was a proper

exercise of discretion.     No miscarriage of justice occurred.

                                       V.

      Finally, defendant contends that no mandatory extended term

was   appropriate   under   N.J.S.A.    2C:43-6(c)   because   the   jury

acquitted defendant during his second trial of possession of a

handgun.    The jury concluded in the third trial, however, that

defendant was guilty of the assault while armed with a gun.

Therefore, application of the statute was appropriate.

      The judge found Aggravating Factors 3, 6, and 9 outweighed

Mitigating Factors 3, 4, and 5.        N.J.S.A. 2C:44-1.   She accorded

substantial weight to the Aggravating Factors and less to the

Mitigating Factors, and her decision to do so was supported by the

record.    The sentence of sixteen years was a reasonable exercise

of discretion, a balancing of the relevant factors that squarely

accords with the law.   The sentence was well within the range.         It

does not shock our conscience.     See State v. Roth, 95 N.J. 334,

364-69 (1984).

      Affirmed.




                                  25                             A-5365-14T2
