                                NOT FOR PUBLICATION WITHOUT THE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-2445-16T1

STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

ALAN A. BIENKOWSKI,

           Defendant-Appellant.


                    Submitted February 27, 2019 – Decided May 30, 2019

                    Before Judges Alvarez and Nugent.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Monmouth County, Indictment No. 16-07-
                    1181.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Frank M. Gennaro, Designated Counsel, on
                    the brief).

                    Christopher J. Gramiccioni, Monmouth County
                    Prosecutor, attorney for respondent (Lisa Sarnoff
                    Gochman, Assistant Prosecutor, of counsel and on the
                    brief).

PER CURIAM
      Tried by a jury, defendant Alan Bienkowski was convicted of first-degree

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

murder, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree armed robbery,

N.J.S.A. 2C:15-1(a)(3) (count three); second-degree unlawful possession of a

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

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count five); and third-

degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count six). At a second

trial with the same jury, defendant was found guilty of second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count seven). At that

second trial, the jury also found that defendant had been previously convicted

of another murder, the statutory predicate for sentencing under N.J.S.A. 2C:11-

3(b)(4)(a).

      The trial judge merged defendant's convictions for murder, felony murder,

robbery, and possession of a weapon for an unlawful purpose, and sentenced

defendant to life without parole. He imposed ten years imprisonment with five

years parole ineligibility on the certain persons not to possess, in accordance

with the Graves Act, N.J.S.A. 2C:43-6(c), and five years on the receiving stolen

property, to be served concurrently.




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                                       2
      Michael Wells, an employee of a business located next door to another

enterprise at which defendant had been employed as a delivery driver , was the

murder victim. Defendant and Wells were acquainted, and defendant was a

listed contact in the victim's cell phone.

      Wells's widow testified at trial that he worked a 4 a.m. to 12 p.m. shift,

Monday through Friday, and left his home between 3:05 and 3:10 a.m. to open

up by 4:00 a.m. On his way to work, Wells would often stop to get coffee,

cigarettes, and chips. Wells's widow said he was known to carry large sums of

cash, between $500 to $1000, in a rubber band folded over his driver's license

and debit card. A coworker, Wells's manager, and Wells's son confirmed this

habit during the trial.

      Surveillance cameras from multiple businesses near the scene of the

crime, as well as highway cameras, captured defendant's truck approaching

Wells's workplace, and his truck circling the site between 3:21 and 3:23 a.m.

Defendant's girlfriend and landlord testified that defendant was the only person

who ever drove his truck.

      At about the same time, the victim's truck was recorded traveling towards

Wells's work site by a West Long Branch police cruiser with an automatic

license plate reader. At 3:26 a.m., a person was seen walking towards the


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                                         3
victim's workplace, and a few minutes later, video showed the victim's truck

headed down the street. When the victim's truck pulled into a nearby driveway,

the security camera activated and filmed someone running in front of the vehicle

with a gun in his right hand and a long stick in the other.

      At approximately the same time, a New Jersey Transit employee saw a

truck, later identified as the victim's, racing down the street spinning or

fishtailing. The eyewitness heard two pops he recognized as gun fire and

reported the disturbance to his supervisor. At approximately 4:01 a .m., the

video camera outside a business about a mile away recorded defendant's truck

leaving the area.

      When other employees arrived, they immediately noticed a bag of chips,

cigarettes, and a cell phone on the ground next to the front door. When they

contacted the general manager to report the front door of the store was locked

and that the victim's belongings were on the ground outside, he told them to call

the police.

      A few hours later, the victim's body was discovered on top of a metal tire

iron in the back yard of a residence some 300 yards away. He had no cash on

his person. Police found the victim's pickup truck, still running, in a nearby

driveway with some $3000 in cash in a locked glove compartment.


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                                        4
      The medical examiner testified that a single bullet penetrated the victim's

left arm, piercing his aorta and lung, causing death. He had also sustained blunt

force trauma to the back of his head. Approximately a year later, a handgun

fully loaded with the same caliber of ammunition that killed Wells was found

buried in the front yard of defendant's trailer. A ballistic examination identified

the gun to be the murder weapon.

      At 9:30 the morning of the murder, defendant paid his outstanding

Verizon bill so his cell phone could be reactivated. The store employee testified

defendant paid the bill from "a wad of cash [in] a rubber band." She recalled

the transaction because defendant requested exact change and commented that

"money was tight." That same day, defendant paid off his trailer home rental

and other fees in cash. His bank account had been closed earlier in the month

because of a negative balance. Defendant's former girlfriend as well as the

trailer park manager testified defendant had experienced significant financial

problems from late 2012 to April 2013.

      Defendant's girlfriend also testified that sometime after the murder,

defendant showed her a newspaper article about Wells's death and told her that

he used to work with him. He claimed the victim "was a drug dealer[,] carried

a bulk of money, and . . . would open the place first thing in the morning."


                                                                           A-2445-16T1
                                        5
      When the authorities executed a consent search of defendant's bedroom,

they located several handwritten notes expressing remorse related to his

financial circumstances, and instructing his family to sell his possessions upon

his death.

      Pretrial, the judge ruled in limine that the State could present evidence of

defendant's financial difficulties as motive for the armed robbery and murder ,

including records of defendant's closed bank account and his alleged suicide

notes. The State could also present proof that the victim habitually carried large

sums of cash in a rubber band, and that defendant paid overdue bills in cash the

morning of the murder. In deciding to admit the evidence over defendant's

objection, the judge observed that although clearly poverty alone does not

establish a motive for robbery, defendant's payment of his bills in cash the

morning of the victim's killing was highly probative.

      During the charge conference, the State requested a flight charge. Having

seen a video which depicted defendant either quickly walking or running "after

the robbery to avoid detection" the judge overruled defendant's objection. The

judge read the jurors the model jury charge. He did not specify the charges to

which it applied.




                                                                          A-2445-16T1
                                        6
      The State sought sentence enhancements, anticipating that defendant

would be convicted, pursuant to N.J.S.A. 2C:11-3(b)(4)(f) and (g), in addition

to (a). Thus, at the end of the first trial, the jurors agreed the murder was

committed for the purpose of escaping apprehension during flight from a

robbery.

      Defendant raises the following points on appeal:

            POINT ONE:
            THE    ADMISSION    OF    EVIDENCE    OF
            DEFENDANT'S
            FINANCIAL DIFFICULTIES AS EVIDENCE OF HIS
            MOTIVE TO ROB AND KILL THE VICTIM DENIED
            DEFENDANT A FAIR TRIAL

            POINT TWO:
            THE TRIAL COURT ERRED BY ADMITTING
            EVIDENCE OF THE HABITS OF MICHAEL WELLS

            POINT THREE:
            THE TRIAL COURT'S JURY INSTRUCTION ON
            THE
            DOCTRINE OF FLIGHT WAS ERROR WHICH
            DENIED DEFENDANT A FAIR TRIAL

            POINT FOUR:
            THE MANDATORY SENTENCE OF LIFE
            WITHOUT THE POSSIBILITY OF PAROLE WAS
            IMPROPERLY IMPOSED ON DEFENDANT

                                      I.




                                                                      A-2445-16T1
                                      7
      Evidence is considered relevant if it has a tendency "to prove or disprove

any fact of consequence to the determination of the action." N.J.R.E. 401.

Except as provided elsewhere in the New Jersey Rules of Evidence or by law,

"all relevant evidence is admissible." N.J.R.E. 402. The decision to admit or

exclude certain evidence is "firmly entrusted to the trial court's discretion."

State v. Prall, 231 N.J. 567, 580 (2018) (quoting Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)).

      On appellate review of a trial court's evidentiary ruling, the decision will

be upheld "absent a showing of an abuse of discretion, i.e., there has been a clear

error of judgment." State v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v.

Brown, 170 N.J. 138, 147 (2001)). Thus, to overturn such a decision, the prior

ruling must have been "so wide of the mark that a manifest denial of justice

resulted." Ibid. (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).

      It is well-settled that motive evidence has a special role in modern

jurisprudence by "its unique capacity to provide a jury with an overarching

narrative, permitting inferences for why a defendant might have engaged in the

alleged criminal conduct." State v. Calleia, 206 N.J. 274, 293 (2011). In a

criminal prosecution, courts will generally permit a wider range of evidence to

show motive or intent compared to other issues. Ibid. (citing State v. Rogers,


                                                                           A-2445-16T1
                                        8
19 N.J. 218, 228 (1955)). In fact, "[a]ll evidentiary circumstances which are

relevant to or tend to shed light on the motive or intent of the defendant . . . are

admissible in evidence against him . . . ." Ibid.; see also Rogers, 19 N.J. at 229

("An inference could well be drawn from it that the defendant was in need of

money and the funds he spent during the week following the murders were not

his own.").

      This is not to say, however, that motive may be suggested purely by

financial difficulties. State v. Terrell, 359 N.J. Super. 241, 247 (App. Div. 2003);

see also State v. Mathis, 47 N.J. 455, 472 (1966) ("in general terms, there

must be something more than poverty to tie a defendant into a criminal milieu.").

Motive evidence is not permitted when relevance verges on ordinary propensity,

in violation of N.J.R.E. 404(a). State v. J.M., Jr., 438 N.J. Super. 215, 222-23

(App. Div. 2014).      Nonetheless, if motive rests solely on circumstantial

evidence, the evidence should not be excluded as incidental, since even "an

inference of why a defendant may have engaged in criminal conduct" is

admissible. Calleia, 206 N.J. at 294.

      Defendant contends that evidence of his financial situation as the motive

for the killing deprived him of a fair trial. His argument is grounded on, first,

the unduly prejudicial impact of the evidence in the absence of a 404(b) State v.


                                                                            A-2445-16T1
                                         9
Cofield1 analysis. Additionally, defendant contends that this evidence required

a limiting instruction and none was given, thus entitling him to a new trial.

       In our view, defendant's financial condition, although certainly not a

positive, was not so damaging as to have required a 404(b) analysis or had a

prejudicial effect on the jury's deliberative process. The State did not suggest

that defendant committed the crime simply because he was poor; rather, the State

presented evidence that the morning of the murder defendant paid long-standing

bills with cash, retrieving the cash from a roll described as similar in appearance

to the manner in which the victim carried his money.

       Given that the prejudice that inured to defendant because of his financial

difficulties, if any, would have been minimal, no limiting instruction would have

been needed any more than a 404(b) hearing was required. Defendant's financial

situation was clearly relevant, however, as defined in N.J.R.E. 401—it was

"evidence having a tendency in reason to prove . . . any fact of consequence to

the determination of the action."       The State did not suggest defendant's

impecunious state was a generalized motive to commit crime. See, for example,

State v. Martini, 131 N.J. 176, 266 (1993) ("evidence of a defendant's financial

state should not be admitted nor commented on.").


1
    127 N.J. 328 (1992).
                                                                           A-2445-16T1
                                       10
      Even if it was error to omit a limiting instruction, that omission was

harmless. The omission, not complained of at trial, was not clearly capable of

producing an unjust result. See R. 2:10-2; State v. Lofton, 146 N.J. 295, 394

(1996).   The probative value of the evidence of financial motive greatly

exceeded the risk of any undue prejudice. See N.J.R.E. 403. The circumstantial

evidence in the case was overwhelming. We see no abuse of discretion in the

judge's decision to admit the evidence, and the absence of a limiting instruction

was not plain error.


                                         II.

      Evidence of habit is admissible to prove a person acted in conformity

therewith. N.J.R.E. 406(a). Similarly, specific instances of conduct are also

admissible to prove habit "if evidence of a sufficient number of such instances

is offered" to support such a finding. N.J.R.E. 406(b). "In contrast, '[e]vidence

of a person's character or character trait, including a trait of care or skill or lack

thereof, is not admissible for the purpose of proving that the person acted in

conformity therewith . . . .'" Verni ex rel. Burstein v. Harry M. Stevens, Inc.,

387 N.J. Super. 160, 190 (App. Div. 2006) (quoting N.J.R.E. 404(a)).

Specificity distinguishes habit from character evidence. Id. at 190-91 (citing

Sharpe v. Bestop, Inc., 158 N.J. 329, 332 (1999)). Contrary to prohibited

                                                                              A-2445-16T1
                                         11
character evidence of a person's trait, habit refers to a specific and routine

practice that is "semi-automatic." Id. at 191.

      Defendant contends that the proofs regarding the victim's habit of carrying

large sums of cash wrapped in a rubber band on a daily basis were insufficient.

This claim has so little merit as to not warrant much discussion in a written

opinion. R. 2:11-3(e)(2). The record contains ample testimony by multiple

individuals, including Wells's wife and his son; therefore, the requirements of

N.J.R.E. 406(a) were met.

      If evidence of habit is admitted, it is incumbent on the trial judge to charge

the jury as to its proper use through a limiting instruction. See State v. Radziwil,

235 N.J. Super. 557, 568 (App. Div. 1989). But the court's failure to give a

limiting instruction in this case was also harmless. This error will be disregarded

as alone it was incapable of producing an unjust result.

                                        III.

      In his third point, defendant contends that the instruction on flight was

erroneous because defendant was never clearly identified on the video tapes

shown to the jury as the person on film, the instruction was applied generally to

all the offenses enumerated in the indictment, and the instruction was capable

of unduly influencing the jury's decision making.


                                                                            A-2445-16T1
                                        12
      It was the jury's exclusive responsibility to determine whether the video

footage of defendant's truck and of a person running sufficiently identified him.

This process was adequately described to them in the flight instruction.

      There was ample circumstantial evidence pointing to defendant on various

surveillance videos as he arrived at and left the scene. The perpetrator wore a

light colored sweatshirt and sweatpants, which defendant routinely wore. His

vehicle was depicted on the films.

      That the instruction did not specify the counts to which it applied is

inconsequential. The robbery in this case was committed with a handgun, and

the killing was perpetrated during the course of the robbery. Thus, the flight

charge was available as to all the offenses.

      That the judge charged the jury as to flight did not unduly prejudice

defendant with reference to the aggravating sentencing factors, N.J.S.A. 2C:11-

3(b)(4)(f) and (g). The flight instruction was one of many the judge gave

intended to focus the jury's attention on their obligation to find guilt only if they

considered the State's proofs to establish it beyond a reasonable doubt. Nothing

about the fact the flight instruction was given would have prejudiced jurors or

predisposed them to find an aggravating factor.

                                        IV.


                                                                             A-2445-16T1
                                        13
      Defendant's final argument focuses on his sentence, specifically, that all

the statutory sentencing factors, N.J.S.A. 2C:11-3(b)(4)(a), (f), and (g), were

improperly submitted. The jury had a basis for finding all of those factors.

      Once defendant was convicted earlier of murder, even if that murder

actually occurred approximately a month after this one, that sufficed under (a).

The statute does not talk about a defendant committing a killing, rather, it talks

about a defendant being "convicted" of another murder. A conviction will be

deemed final when the sentence is imposed and may be an aggravating factor

regardless of whether it is on appeal.

      Affirmed.




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                                         14
