                                NOT FOR PUBLICATION WITHOUT THE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-2623-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

SAMUEL LOPEZ,

     Defendant-Appellant.
_________________________

                    Argued February 5, 2019 – Decided June 28, 2019

                    Before Judges Rothstadt and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 16-04-1216.

                    Douglas R. Helman, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Joshua D. Sanders, Assistant
                    Deputy Public Defender, of counsel and on the brief).

                    Adam D. Klein, Deputy Attorney General, argued the
                    cause for respondent (Gurbir S. Grewal, Attorney
                    General, attorney; Adam D. Klein, of counsel and on
                    the brief).

PER CURIAM
      Defendant Samuel Lopez appeals from a judgment of conviction entered

after a jury found him guilty of one count of first-degree felony murder, N.J.S.A.

2C-11-3(a)(3); one count of first-degree robbery, N.J.S.A. 2C:15-1(a)(1); one

count of second-degree possession of a weapon for an unlawful purpose,

N.J.S.A. 2C:39-4(a)(1); and one count of second-degree unlawful possession of

a weapon, N.J.S.A. 2C:39:5(b)(1). The trial court sentenced defendant to a

forty-five year term of imprisonment subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2.

      The charges arose from a robbery and homicide that took place in Camden

on the night of September 27, 2015. During the trial, the State introduced text

messages under Rule 803(b)(5) between defendant and his co-defendant,

Raymond Pagan. On appeal, defendant argues that his conviction should be

reversed because he was denied a fair trial. Specifically, he argues that the texts

were erroneously admitted and that his sentence is manifestly excessive because

the trial court relied upon defendant's constitutional right to maintain his

innocence as a justification for imposing a sentence higher than the statutory

minimum. We now remand for reconsideration of trial court's decision to admit

the text messages because it did not apply the correct test for their admission by

considering whether there was sufficient independent evidence of a conspiracy


                                                                           A-2623-17T2
                                        2
to admit the text messages. However, we affirm defendant's sentence. Thus, on

remand, if the text messages are found to be admissible, defendant's convictions

and sentence will remain in place. If, on the other hand, the text messages are

found inadmissible, then defendant's convictions and sentences must be vacated

and a new trial ordered.

                                           I.

      In January 2016, a Camden County grand jury returned Indictment No.

16-04-1216 charging defendant with one count of first-degree felony murder,

N.J.S.A. 2C:11-3(a)(3); first-degree murder, N.J.S.A. 2C:11-3(a)(1), (2); one

count of first-degree armed robbery, N.J.S.A. 2C:15-1(a)(1); one count of

second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-

4(a); and one count of second-degree unlawful possession of weapons, N.J.S.A.

2C:39-5(b). It was undisputed at defendant's trial on these charges and now on

appeal that there was no direct identification evidence of defendant's

involvement in the robbery and murder.          The circumstantial evidence of

defendant's guilt was adduced through testimony and by the admission of video

footage, audio recordings, and the challenged text messages.          We now

summarize that evidence to give context to our discussion of the admission of

the text messages.


                                                                        A-2623-17T2
                                       3
       The State's first witness, Officer Sean Donato, testified to being

dispatched to the crime scene. He stated that upon arrival, he and the other

officers observed the victim was conscious but "writhing in pain" on the ground

in a pool of blood with a gunshot wound under his left armpit. Donato confirmed

that the police department's computer automated dispatch report indicated that

two black male suspects were involved, but he stated that he did not provide this

information.1

       The State then called the victim's mother, G.P. She stated that on the night

of September 27, her friend brought her home around 11:00 p.m. As her friend

was attempting to leave, G.P. noticed the road was blocked and saw her son in

the middle of the street. She said that her son was bleeding, apparently rushed

over to him, and he told her that "they tried to rob [him]," at which point she

called the police. The mother testified further that she saw one black male in a

car and another outside near her son but noted that they were only looking at

him on the ground and left when she arrived.

       The State's next witness was M.M., the victim's girlfriend at the time of

his death. She testified that she was not with the victim during the day and was

already asleep by 11:00 p.m. She stated that his mother called twice and the


1
    Neither defendant nor his codefendant are black.
                                                                           A-2623-17T2
                                         4
second call woke her up, at which point she saw a text message from the victim

sent at approximately 11:00 p.m. telling her that he loved her. M.M. also

testified that she received a text from the victim telling her that he "had beaten

up two guys" earlier in the day.

      The State then called Z.A., one of the victim's and G.P.'s neighbor. She

testified that at around 11:15 p.m. on September 27, she was at home with her

father-in-law, J.C. and her partner's nephew. She was in the kitchen when she

saw two people walking up the street wearing dark hoodies; she could not see

their faces. She watched them go into an alley and did not see them emerge or

anything else that night. Z.A. testified that she spoke to the police two days

later and gave a statement. In her statement, she noted that the individuals went

into the alley together and one was bigger than the other.

      J.C., the father-in-law of Z.A., testified that he was upstairs when he heard

a noise below. He opened the window and saw three men, two of whom were

hugging or grabbing the third who was on the street. He noted it was dark and

could not distinguish exactly what was happening. He stated that at some point,

two of the men started running and the third got up and was stumbling. He

testified that the next morning, he saw a "thing of blood" on the street around

where he saw the men from the night before.


                                                                           A-2623-17T2
                                        5
      The parties then stipulated to several facts related to the results of the

prosecutor's DNA testing of blood samples, which they agreed came only from

the victim, ballistics results, the injuries to the victim, and to his cause of death

being from a gunshot wound to the chest that was not taken at close range. The

parties also stipulated that the phone number for the party to text messages

secured from defendant's phone, which the State was seeking to admit, belonged

to defendant's co-defendant, Pagan.

      Detective Katherine Scully, a member of the prosecutor's High Tech

Crimes Unit testified about her investigation into the LG cell phone that another

detective, Sherman Hopkins, turned over for forensic analysis. She testified that

she was able to retrieve text messages from the phone and generate a

corresponding report that displayed the messages.

      Detective Sean Miller, a former member of the police department's

Shooting Response Team testified about his September 27 encounter with

defendant after being dispatched to a hospital in response to its report that it was

treating defendant as a gunshot victim. There was no dispute that defendant was

there having sustained a gunshot wound to the upper part of his left thigh.

      Miller testified that he located defendant in the trauma room and when

first speaking with defendant, he was hesitant, fidgety, and scared. An audio


                                                                             A-2623-17T2
                                         6
recording of his interaction with defendant was played for the jury. During the

exchange, defendant first stated he was near the vicinity of where the incident

occurred when he was robbed by two men. He said he was shot because the only

things he had in his possession were cigarettes, twenty dollars, and his LG

phone, but the perpetrators did not take anything. Miller asked if defendant shot

himself but defendant repeatedly stated he did not have a gun. Defendant then

stated that he got shot near a different location while walking around after an

argument with his girlfriend. He told detectives that he did not know where his

phone was or his phone number, although his phone was located in the trauma

room and taken by the police.

      After the recording was played, Miller resumed his testimony and stated

that city had law enforcement-monitored cameras at cross-streets that could

determine the location of a shooting. He stated that he sent other officers to

investigate other signs of crime at the places defendant indicated, but no such

evidence was found. Miller testified that he asked defendant if he shot himself

because of the evasive answers that he received. He also confirmed that he

reviewed footage from hospital cameras of defendant walking into the hospital

at 11:39 p.m. He confirmed that he took defendant's cell phone and his jeans as

evidence, but did not seize defendant's blue sneakers. When shown a pair of


                                                                         A-2623-17T2
                                       7
blue sneakers marked for identification, Miller confirmed those were the blue

sneakers he saw with defendant's clothing.

      Officer Lissandra Sime testified that she was also dispatched to the

hospital to get a report from defendant while Detective Miller was there. She

stated that defendant told her that he was walking and was approached by two

males in masks and they shot him.

      The State then called N.T., Pagan's girlfriend at the time of the September

27 incident. She testified that Pagan called her that night to drive one of his

friends to the hospital. While she had not previously met the friend, she stated

that she took him to the hospital because he had been shot. After reviewing the

statement she previously gave to the police on December 1, 2015, she said that

while inside her car, the friend was on the phone, but she did not know with

whom and she heard him say that "somebody got shot and that he did know, the

guy was dead."

      Y.P., defendant's former girlfriend, testified that on September 27, she

was with defendant at his mother's house and then he left to buy food. She stated

that later that night, she received a phone call that he had been shot and met him

at the hospital. She added that she and defendant were not fighting that night.




                                                                          A-2623-17T2
                                        8
      Detective Sherman Hopkins, who was assigned to take over the victim's

homicide investigation on September 28, testified that he made contact with the

victim's mother, girlfriend, and best friend. While searching the surrounding

area, he found and followed small droplets of blood, which led to a larger pool

of blood. Hopkins further testified that he canvassed the area for surveillance

cameras and attempted to retrieve video from different places, ultimately

obtaining footage from the immediate area from a liquor store, a restaurant, and

a church.

      The video recordings depicted whom the police believed were defendant

and Pagan near the victim's location and fleeing from the scene after the

shooting. The footage from the liquor store depicted two people standing

nearby, both wearing black-hooded sweatshirts and gloves. One of the subjects

wore reflective blue sneakers, while the other had a white emblem on his

sweatshirt. The video showed the two men behind bushes across the street from

the store until they walk away. Still images of the blue sneakers and white

gloves were taken from the video and admitted over defendant's objection.

      The restaurant's surveillance tape depicted the same two individuals

pacing back and forth and then walking into a parking lot before the victim

appears on the tape. The victim is then seen crossing the street and is followed


                                                                        A-2623-17T2
                                       9
by the other two men. The two are seen pulling their hoods over their faces so

that they were almost completely covered. The video footage from the church's

camera, taken after the victim was shot, showed the two men running away from

the area.

       Hopkins also testified that he spoke to defendant at his home and an audio

recording of that discussion was played for the jury. On the recording defendant

informed Hopkins that a stranger brought him to the hospital and that prior to

being shot, he was "walking some steam off" from an argument that he had with

his girlfriend at his house. He added that he was in the area of the incident at

the time. He said that the two men who robbed him were Hispanic, concealed

their faces, and had a silver revolver. He further explained that he was wearing

a tank top, black jeans, and blue sneakers at the time and did not have anything

for the men to take. 2 Defendant also said he was going to smoke with a friend

and that he ordered food for delivery at some point before leaving his house.

Defendant stated that he did not kill anyone and reiterated that the police were

questioning the wrong person.

       In his statement, although defendant initially said that he was wearing

black jeans and blue sneakers when he was shot, he later stated that most of his


2
    Later, however, Hopkins stated that defendant said his phone was taken.
                                                                         A-2623-17T2
                                       10
sneakers were yellow after Hopkins told defendant that the surveillance tapes

police had secured showed one of the two perpetrators wearing the same clothes

he was wearing at the hospital.

      Hopkins then testified to the contents of the text messages retrieved from

defendant's cell phone. He did so over defendant's continued objection. The

text messages contained indications that the two participants were planning on

securing a gun and committing a robbery.

      Detective Joseph Gurcik of the prosecutor's Crime Scene Investigation

Unit testified that during a search of defendant's home on September 30, 2015,

four pairs of shoes were seized, including the pair of blue sneakers that were

admitted into evidence. No blood was found on the shoes.

      After the State rested, defendant moved for the charges against him to be

dismissed. He specifically contended that there was no evidence connecting him

to the case, noting that the neighbors did not identify him and did not hear any

gunshots.   The State recognized that its case was based on circumstantial

evidence, but argued that there were videos from various areas showing hooded

individuals and that Pagan's girlfriend picked defendant up to go to the hospital.

It added that defendant repeatedly gave conflicting information. The trial court




                                                                          A-2623-17T2
                                       11
denied defendant's motion, finding sufficient evidence for the jury to determine

that he was involved in the robbery and homicide.

      Following this denial, defendant informed the court of his decision not to

testify. Defendant called Hopkins as his only witness. Hopkins testified that

none of the videos or screen shots were shown to the State's non-law

enforcement witnesses, but noted that the hospital video may have been shown

to Pagan's girlfriend. He stated that there were no bullets or guns recovered

from defendant's house. He also stated that he spoke to an individual who

bought the victim's cell phone from a drug addict.

      After the trial court denied defendant's motion for a mistrial, in which he

contended it was in error for the court to admit the videos and still photographs

that he described as enhanced, the attorneys presented their closing arguments,

the trial court instructed the jury, and it began its deliberations.

      During its deliberation, the jury asked to see the text messages between

defendant and Pagan. The prosecutor reread the texts. Initially, the jury was

unable to reach a decision on the robbery charge and it was instructed to continue

its deliberations until a verdict was reached. Eventually, the jury unanimously

found defendant guilty of felony murder, armed robbery, possession of a weapon




                                                                          A-2623-17T2
                                        12
for unlawful purpose, and unlawful possession of a weapon but not of murder

and the lesser-included offense of manslaughter.

      The trial court later sentenced defendant. This appeal followed.

      On appeal, defendant specifically argues the following two points.

            POINT I

            [DEFENDANT] WAS DENIED A FAIR TRIAL BY
            THE COURT'S ERRONEOUS ADMISSION OF
            TEXT MESSAGES ATTRIBUTED TO "RAY."

            POINT II

            THE SENTENCE IS MANIFESTLY EXCESSIVE AS
            THE    COURT     USED     [DEFENDANT'S]
            CONSTITUTIONAL RIGHT TO MAINTAIN HIS
            INNOCENCE AS A JUSTIFICATION FOR
            EXCEEDING THE MINIMUM SENTENCE IN THIS
            MATTER.

                                       II.

      We turn first to defendant's contentions about the text messages. When

the State offered the text messages retrieved from his phone, defendant objected.

He argued that messages from the phone on the days preceding September 27

were not relevant and would "fall[] into [Rule] 404(b) territory" because of their

highly prejudicial nature. Defendant admitted there were relevant text messages

on September 27. In opposition, the State emphasized that the texts from

September 27 were between defendant and Pagan and were relevant because

                                                                          A-2623-17T2
                                       13
            [it was] not alleging that [defendant and Pagan]
            committed any other robberies. [It was] alleging that
            they were conspiring to commit a robbery at some
            point, which they ultimately did on September 27th.
            And there's these text messages setting up what they
            need. . . . [T]hey're talking about getting wheels,
            getting things, just talk that seems to indicate that they
            were putting the plan in motion to go out on September
            27th to commit the robbery. . . . These are tied into
            what they're talking about the days leading up to the
            murder.

      The trial court ruled that the text messages from September 26 and 27

would be admitted but "anything prior to the 26th . . . would not be relevant. It

really would get into [Rule] 404(b). However . . . from the day before through

the 27th would be relevant."

      As already noted, the text messages were read to the jury during Hopkins

testimony for the State. He read the following texts into the record:

            Pagan (September 26, 2015, 11:08:16 p.m.): Bro,
            what's going on.

            Defendant (September 26, 2015, 11:08:56 p.m.):
            What's poppin'.

            Pagan (September 26, 2015, 11:10:33 p.m.): We need
            to make a mark. I got an idea.

            Defendant (September 26, 2015, 11:11:06 p.m.): Where
            you wanna hit.




                                                                         A-2623-17T2
                                       14
Pagan (September 26, 2015, 11:12:32 p.m.):
Everywhere, just don't know where to start, I wanna get
a hustler.

Pagan (September 26, 2015, 11:14:23 p.m.): I got us for
the morning, all day. Can you think of what to do now,
I'm down with whatever you want to do.

Defendant (September 26, 2015, 11:15:45 p.m.): That's
lightweight, my boy, but it's whatever, feel me. But I
got a couple of jobs too, word is bond. I'm just still
getting info and the goons, but you know we got the
thangs [sic] on deck, ND I'm a be back out in the hood
in a little. I'm just watching this movie.

Pagan (September 26, 2015, 11:20:35 p.m.): I got a
goon that's down and you need to tell me in person
about the jobs and LMK when you get home I got
something for us to put together to do the jobs in the
a.m.

Defendant (September 26, 2015, 11:22:04 p.m.): SNM
YKTS, I'm out here, feel me ND, this movie 'bout to
end. In a little, so I'll be around B.

Pagan (September 26, 2015, 11:22:10 p.m.): We should
buy them two things tomorrow after we come home
from work. You said $250 for both of them, right.

Pagan (September 26, 2015, 11:23:11 p.m.): K HMU
when you get out here.

Defendant (September 26, 2015, 11:23:53 p.m.): I gotta
talk to the person 'bout it, ND if he still got the SHXT
or if he got new ND bigger SHXT. Feel me.

Defendant (September 26, 2015, 11:24:24 p.m.): Most
def he got better SHXT though.

                                                           A-2623-17T2
                          15
Pagan (September 27, 2015, 12:45:14 p.m.): I wanted
to bag B and get fiends for everything. Now out north
with it or that AV hustler.

Defendant (September 27, 2015, 3:03:43 p.m.): We
gonna check that AV SHXT today, ARD.

Pagan (September 27, 2015, 3:37:24 p.m.): Yeah, I'm a
get in shower. I'll hit you up soon.

Defendant (September 27, 2015, 3:38:01 p.m.): ARD
say less, bra, bra, HMU.

Defendant (September 27, 2015, 7:40:58 p.m.): Yo, you
good.

Pagan (September 27, 2015, 7:47:58 p.m.): I'm about to
go over there. I'm in Blackwood now.

Defendant (September 27, 2015, 7:48:19 p.m.): Ta bien
(phonetic).

Pagan (September 27, 2015, 8:52:55 p.m.): I'll be there
in 15 MIN, you still down, right.

Pagan (September 27, 2015, 8:59:22 p.m.): I'll be there
in five, you ready.

Defendant (September 27, 2015, 9:03:46 p.m.): ARD.

Pagan (September 27, 2015, 9:04:01 p.m.): I'm here.

Pagan (September 27, 2015, 9:04:18 p.m.): I gotta get
the thing. It's nearby.




                                                          A-2623-17T2
                         16
      On appeal, defendant challenges the text messages' admission and argues

that the trial court failed to engage in the proper analysis for admission of the

text messages because it only considered whether they were relevant. If the

court conducted the proper analysis, defendant believes that the court could not

have concluded that the State met its burden for admission of the text messages.

Relying upon the requirements for admission under Rule 803(b)(5), statements

of a co-conspirator, and our holding in State v. Harris, 298 N.J. Super. 478 (App.

Div. 1997), defendant argues that the State failed to demonstrate that the

messages were made in furtherance of a conspiracy, or during the conspiracy,

and argues that there was insufficient non-hearsay evidence of a conspiracy and

defendant's relationship to it to warrant admission of the text messages.

Accordingly, he asserts that not only did the State "fail[] to offer even a scintilla

of evidence" of a conspiracy and his involvement in one, but also its proffer that

the texts show a conspiracy is neither substantial nor sufficient for admission.

In the alternative, he argues that even if the text messages were admissible as

non-hearsay, the trial court was required to provide a limiting instruction to the

jury that it should not have considered the statements in the texts for their truth.

     We begin our review by acknowledging, "the admissibility of evidence at

trial is left to 'the sound discretion of the trial court.'" State v. Green, 236 N.J.


                                                                             A-2623-17T2
                                        17
71, 80-81 (2018) (quoting State v. Willis, 225 N.J. 85, 96 (2016)). We therefore

review "[a] trial court's evidentiary ruling . . . on appeal for abuse of discretion."

Id. at 81. In doing so, we "may not substitute [our] own conclusions regarding

the evidence, even in a 'close' case." State v. Jefferson, 413 N.J. Super. 344,

349 (App. Div. 2010) (quoting State v. Locurto, 157 N.J. 463, 471 (1999)).

"'[A]bsent a showing . . . [that] there has been a clear error of judgment,' an

evidentiary ruling will stand." State v. Sessoms, 413 N.J. Super. 338, 342 (App.

Div. 2010) (alterations in original) (quoting State v. Brown, 170 N.J. 138, 147

(2001)).

      Applying this standard, we conclude that the trial court mistakenly

exercised its discretion by not applying the correct standard to the admission of

the text messages. Pagan's text messages were clearly hearsay statements.

Hearsay "is a statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth of the matter

asserted." N.J.R.E. 801(c). Non-testimonial statements may be admitted to the

extent they fall into a recognized exception to the hearsay rule. See State v.

Weaver, 219 N.J. 131, 151 (2014).

      Relevant to the present case, a statement "is not excluded by the hearsay

rule if it was 'made at the time the party and the declarant were participating in


                                                                              A-2623-17T2
                                         18
a plan to commit a crime . . . and . . . made [it] in furtherance of that plan.'"

State v. Cagno, 211 N.J. 488, 529 (2012) (quoting N.J.R.E. 803(b)(5)). In order

to admit a statement of a co-conspirator into evidence, the State must prove that

"(1) the statement was 'made in furtherance of the conspiracy'; (2) the statement

was 'made during the course of the conspiracy'; and (3) there is 'evidence,

independent of the hearsay, of the existence of the conspiracy and [the]

defendant's relationship to it.'" Id. at 529-30 (alteration in original) (quoting

State v. Taccetta, 301 N.J. Super. 227, 251 (App. Div. 1997)). See also Harris,

298 N.J. Super. at 488.

      Before admitting such statements, a "trial court must make a preliminary

determination of whether there is independent proof of the conspiracy." State

v. Savage, 172 N.J. 374, 403 (2002). See also N.J.R.E. 104(a) ("[w]hen the . . .

admissibility of evidence . . . is subject to a condition, and the fulfillment of the

condition is in issue, that issue is to be determined by the judge").            The

independent evidence can take various forms and "must be substantial enough

to engender a strong belief in the existence of the conspiracy and of the

defendant's participation." State v. Phelps, 96 N.J. 500, 511 (1984).

      A court must determine whether substantial independent proof exists even

if defendant is not charged with a conspiracy under N.J.S.A. 2C:5-2. See State


                                                                             A-2623-17T2
                                        19
v. Clausell, 121 N.J. 298, 336-37 (1990); State v. Farthing, 331 N.J. Super. 58,

82-83 (App. Div. 2000); State v. Baluch, 341 N.J. Super. 141, 183 (App. Div.

2001). Even without a conspiracy charge, "a trial court must find that [the

statements] were made in furtherance of and during the course of the conspiracy

and that 'a fair preponderance of evidence' independent of the hearsay statements

supports the existence of the conspiracy and of defendant's relationship to it. "

Clausell, 121 N.J. at 337 (quoting Phelps, 96 N.J. at 509-10).

      In reaching its decision to admit the text messages in this case, the trial

court did not conduct the proper analysis. The court limited its analysis to

whether the texts were relevant and excluded those that it felt might raise

N.J.R.E. 404 (b) concerns about other crime evidence. It made no determination

as to whether there existed substantial independent evidence of defendant's

participation in the charged offenses.

      Under these circumstances, we are constrained to remand the matter to the

trial court for reconsideration of its ruling under the proper test. As noted, prior

to the jury having the text messages read to it, there was testimony and other

evidence relating to the robbery and shooting. If the court determines that the

evidence constituted substantial independent non-hearsay evidence of

defendant's participation in a conspiracy to commit the crimes, the defendant's


                                                                            A-2623-17T2
                                         20
conviction should remain undisturbed. If the court determines otherwise, then

it must enter an order vacating the conviction and granting defendant a new trial

at which the text messages will not be admitted.

                                     III.

     Turning to defendant's sentence, we reach a different conclusion.

Defendant argues that his sentence is manifestly excessive because he believes

that the trial court relied upon his constitutional right not to testify as a

justification to exceed the minimum sentence. He maintains this was his first

adult conviction and the court unconstitutionally "punished" him for

maintaining his innocence. As such, a remand for resentencing is required. We

disagree.

      On November 17, 2017, the parties appeared before the trial court for

sentencing. The State requested a sentence of fifty-two-and-a-half-years subject

to NERA and noted that first-degree felony murder carried, at minimum, a

thirty-year term of imprisonment. It attributed defendant's lack of an adult

record to his age and emphasized his demonstrated lack of respect for the

criminal justice system. With regard to the text messages, the State argued that

they demonstrated defendant was not under Pagan's influence and sought to

commit a crime even more significant than Pagan originally suggested. Because


                                                                         A-2623-17T2
                                      21
it contended that defendant was part of the plan from the beginning, no

mitigating factor should apply. It argued for the application of aggravating

factors three, N.J.S.A. 2C:44-1(a)(3), ("[t]he risk that defendant would commit

another offense"); six, N.J.S.A. 2C:44-1(a)(6), ("[t]he extent of [his] prior

criminal record and the seriousness of the offenses of which he has been

convicted"); and nine, N.J.S.A. 2C:44-1(a)(9), ("[t]he need for deterring [him]

and others from violating the law").

      Defendant argued for the minimum sentence of thirty years. He contended

that mitigating factor eight, N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was

the result of circumstances unlikely to recur"), applied given his age and that he

was "substantially influenced by . . . Pagan." Defendant addressed the court and

maintained his innocence, assuring his family that he would be back soon and

"walking home."

     The trial court found aggravating factors three, six, and nine. The court

explained that it weighed factors three and nine heavily and found defendant's

juvenile record and the fact that as soon as defendant turned eighteen, he

engaged in a serious crime as justification for its decision. The court declined

to find mitigating factor eight, given defendant's prior record and the seriousness

of the crime as his first adult offense. The court also was "impressed" by the


                                                                           A-2623-17T2
                                       22
texts as they demonstrated that defendant was not imposed upon by Pagan. It

declined to find mitigating factor thirteen, N.J.S.A. 2C:44-1(b)(13) ("[t]he

conduct of a youthful defendant was substantially influenced by another person

more mature than the defendant"), because the court thought defendant "ha[d]

no maturity. He is the kind of person that frankly has to be kept off the street

because he doesn't seem to recognize what his responsibilities are to society and

to other people."

     The trial court merged the robbery charge and the possession for an

unlawful purpose charge into the felony murder charge, and sentenced defendant

to a forty-five year term subject to NERA for the felony murder and a concurrent

seven-year prison term with a three-and-one-half year period of parole

ineligibility for the unlawful possession of a weapon.

     We review a court's sentencing decision under an abuse of discretion

standard. State v. Fuentes, 217 N.J. 57, 70 (2014). In our review, we must

determine whether:

            (1) the sentencing guidelines were violated; (2) the
            aggravating and mitigating factors found by the
            sentencing court were not based upon competent and
            credible evidence in the record; or (3) "the application
            of the guidelines to the facts of [the] case makes the
            sentence clearly unreasonable so as to shock the
            judicial conscience."


                                                                         A-2623-17T2
                                      23
            [Ibid. (alteration in original) (quoting State v. Roth, 95
            N.J. 334, 364-65 (1984)).]

      We have considered defendant's contention in light of the record and

applicable legal principles and conclude it is without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(2). We affirm substantially for the

reasons the court expressed at sentencing. We are satisfied that the court did

not violate the sentencing guidelines and the record amply supports its findings

on aggravating and mitigating factors. The sentence is clearly reasonable and

does not shock our judicial conscience.       We add only the following brief

comments.

      At the time of the offenses, defendant was eighteen-years-old with

substantial previous contact with the criminal justice system, as evidenced by

his juvenile record that included numerous adjudications. When considering

defendant's "maturity," the trial court properly looked at the totality of the

circumstances to correctly conclude that mitigating factor thirteen did not apply.

See State v. Torres, 313 N.J. Super. 129, 162-64 (affirming the trial court's

omission of mitigating factor thirteen where a sixteen-year-old defendant

planned and committed a robbery with his co-defendant and executed a jewelry

store owner).



                                                                          A-2623-17T2
                                       24
      Also, contrary to defendant's contentions, the trial court did not refer at

all to defendant's refusal to admit his guilt to the charged offenses as the basis

for his sentence that it imposed. Rather, the trial court properly relied upon the

appropriate sentencing factors and concluded within its discretion that a more

severe sentence than the minimum was warranted. To the extent the trial court

commented upon defendant's demeanor and his statement to the court, its "brief

allusion to defendant's failure to candidly admit his guilt does not require a

reversal." State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985).

      Affirmed in a part; remanded in part for further proceedings consistent

with our opinion. We do not retain jurisdiction.




                                                                          A-2623-17T2
                                       25
