                                NOT FOR PUBLICATION WITHOUT THE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-5481-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

CHRISTOPH DALZELL,

     Defendant-Appellant.
_____________________________

                   Submitted January 30, 2020 – Decided June 25, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Indictment No. 15-12-2524.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Michele Erica Friedman, Assistant Deputy
                   Public Defender, of counsel and on the brief).

                   Bradley D. Billhimer, Ocean County Prosecutor,
                   attorney for respondent (Samuel J. Marzarella, Chief
                   Appellate Attorney, of counsel; William Kyle Meighan,
                   Senior Assistant Prosecutor, on the brief).

PER CURIAM
      Tried by a jury, defendant Christoph Dalzell appeals his conviction and

July 24, 2017 sentence, arguing the trial court made errors that warrant a new

trial or resentencing. For reasons that follow, we affirm.

                                     I.

      The following circumstances are drawn from the trial record. While out

with his fiancée, R.M., at the local Knights of Columbus, defendant was drinking

"shots [of vodka] and a bunch of beers," having also taken Ambien and

Oxycodone. They left there, stopping at a liquor store, and went home. A heated

argument ensued about defendant's missing cell phone, during which he referred

to R.M. profanely, telling her "[h]e should probably f[][]king kill [her]." At one

point, he pushed her head into a wall. R.M remembered defendant saying

something about a knife. The "[n]ext thing [she] kn[e]w[,] [she] looked down

and [she] had a knife in [her]." Defendant "just walked away," going to their

bedroom and sitting on the bed. With the knife protruding from her abdomen,

R.M. was able to retrieve her cell phone from the bedroom and call 911 while

defendant just sat there not saying a word. On the 911 call, that she did not

recall making, R.M identified defendant as the person who stabbed her. She was

stabbed multiple times in her chest and abdomen.




                                                                          A-5481-16T1
                                          2
      The police came and arrested defendant. His breath smelled of alcohol,

but he walked and changed his clothes at the police station without assistance.

Defendant had blood on his fingers, leg and shirt. His speech was slightly

slurred.

      Testifying at trial, defendant claimed he did not remember arguing with

or stabbing R.M. The last thing he remembered was "[s]itting on the couch

watching TV" and the next thing was "[s]itting with shackles . . . in a Tyvek suit,

paper suit, asking where I was."

      Defendant was convicted by the jury of the following: first-degree

attempted murder, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-1 (Count One); third-

degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39 -

4(d) (Count Two); and fourth-degree unlawful possession of a weapon (knife),

N.J.S.A. 2C:39-5(d) (Count Three).          He was sentenced to fifteen years

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

7.2, on Count One and the other counts were merged.

      On appeal, defendant raises these issues:

            POINT I

            THE VICTIM'S TESTIMONY EXTENDED BEYOND
            THE BOUNDS OF LAY OPINION TESTIMONY
            AND INTO THE REALM OF EXPERT TESTIMONY.
            FURTHER EXACERBATING THIS PROBLEM, THE

                                                                           A-5481-16T1
                                        3
COURT FAILED TO PROVIDE THE JURY WITH
AN EXPERT JURY CHARGE.

A. The Victim Provided Testimony that Exceeded the
Scope of a Lay Witness When She Testified that the
Knife Missed her Kidney by a 'Hair,' that She Would
Have Died if it Had Punctured Her Kidney, and the
Muscle is Now Destroyed.

B. The Court Erred in Failing to Issue an Expert Jury
Instruction.

C. The Improper Admission of the Victim's N.J.R.E.
702 Testimony, Coupled With the Omission of an
Expert Jury Charge for this Testimony, Warrants
Reversal.

POINT II

THE UNDULY PREJUDICIAL, CUMULATIVE
NATURE OF THE 911 CALL AND BODY CAMERA
RECORDING SUBSTANTIALLY OUTWEIGHED
THEIR PROBATIVE VALUE.

POINT III

THE TRIAL COURT FAILED TO VOIR DIRE [TEN]
OF THE [TWELVE] JURORS AFTER JUROR
NUMBER [FOURTEEN] HAD CONDUCTED
OUTSIDE     RESEARCH     ABOUT      JURY
DELIBERATIONS, PRINTED OUT THE NET OF
HIS RESEARCH, AND SHOWED IT TO THE
FOREPERSON, AT A MINIMUM.

POINT IV

THE CASE SHOULD BE REMANDED FOR
RESENTENCING, BECAUSE THE SENTENCE IS

                                                        A-5481-16T1
                         4
            MANIFESTLY         EXCESSIVE         AND     UNDULY
            PUNITIVE.

            A. The Court's Finding of Aggravating Factor Nine was
            Flawed, Because it Improperly Relied Upon Mr.
            Dalzell's Purported Failure to Acknowledge
            Responsibility and the Nature of the Crime Itself.

                  (i) Mr. Dalzell's Purported Failure to Show
                  Remorse.

                  (ii) The Nature of Offense.

            B. The Court's Refusal to Find Mitigating Factor Seven
            Stemmed from an Improper Consideration of Charges
            that were Ultimately Dismissed.

            C. The Sentence Should Be Reduced Given NERA' s
            Real-Time Consequences.

                                       II.

      Raised for the first time in this appeal, defendant argues he was deprived

of due process, requiring a new trial, when R.M. testified without first being

qualified as an expert witness. He contends the court failed to give the jury

instructions about expert testimony.

      We review this issue for plain error. Under this standard, reversal of

defendant's conviction is required if there was error "clearly capable of

producing an unjust result." R. 2:10-2.




                                                                        A-5481-16T1
                                             5
      On cross-examination by defendant's attorney, R.M. was asked whether

there was damage to her organs.

            Q.    Any damage to any organs or –

            A.    It was one hair miss of the main artery of my
            kidney or I would have died. But the muscle is
            destroyed.

            Q.    So there was no organs that were damaged?

            A.    No, they took my . . . intestines out to see it,
            because it was a jagged knife, but thank God there was
            nothing.

            Q.     They didn’t have to replace any part of your
            intestines?

            A.    No.

            Q.    Small intestine?

            A.    No. They had to sew up the muscles.

            Q.    So it was muscle damage only?

            A.    Uh-huh.

            Q.    Okay.

            A.    Yes. Yes.

      Expert testimony is required "to explain complex matters that would fall

beyond the ken of the ordinary juror." State v. Fortin, 189 N.J. 579, 596 (2007).

An expert may offer an opinion. A layperson may only offer an opinion if it is

                                                                         A-5481-16T1
                                       6
"rationally based on the perception of the witness . . . [and] will assist in

understanding the witness' testimony or in determining a fact in issue." N.J.R.E.

701.

       We discern no error requiring a new trial. R.M.'s testimony—solicited in

response to a question from defense counsel—was about her personal

understanding of her injuries, not that they actually were so. It was not presented

to prove the actual proximity to an artery, the threat of death or extent of damage.

This did not require a jury instruction on expert witnesses. And, given the other

evidence in the trial about stab wounds, was not "clearly capable" of producing

an unjust result.

       Defendant contends that both the 911 call and body camera footage were

unduly prejudicial, and outweighed any probative value, because R.M. testified

to the jury about her injuries, making this other evidence cumulative. We review

this evidence issue for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12

(2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). The trial court is

afforded "[c]onsiderable latitude" in deciding whether to admit evidence. State

v. Feaster, 156 N.J. 1, 82 (1998). We will not substitute our judgment for the

trial court, unless its ruling "was so wide of the mark that a manifest denial of




                                                                            A-5481-16T1
                                         7
justice resulted." State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v.

Kelly, 97 N.J. 178, 216 (1984)).

      That was not the case here. That the 911 call and body camera footage

may not have been helpful to defendant because they were made at a time when

R.M. was "still under the stress of the injury," did not mean they were "unduly"

prejudicial. They were made during the emergency, showed the crime scene and

were relevant "to the issue of any intoxication defense." As evidenced by the

trial court's deletion of a portion of the 911 call and admission of only a part of

the body camera footage, we are satisfied the trial court carefully weighed the

potential prejudicial effect of the 911 call and body camera footage against their

unchallenged probative value.

      The trial court excused juror fourteen after he gave the jury foreperson a

copy of a document entitled "Suggestions for Jury Deliberations" that he

obtained from the internet, contrary to the court's unequivocal instruction not to

"conduct any Internet or any other personal research." Defendant argues the

court committed error because it did not question each juror about his or her

knowledge of the document.

      A voir dire should occur where a jury may be in possession of extraneous

information. See State v. R.D., 169 N.J. 551, 562-63 (2001). "But the decision


                                                                           A-5481-16T1
                                        8
to voir dire individually the other members of the jury best remains a matter for

the sound discretion of the trial court. No per se rule should obtain." Id. at 561.

      Having been raised for the first time on appeal, the issue is reviewed for

plain error. See R. 2:10-2. The jury foreperson brought the issue to the attention

of the court first thing in the morning on the second day of deliberations. She

told the court upon questioning that she would follow the court's directions and

the document would not interfere with her ability to render a fair and impartial

verdict. The foreperson did not think the document had been shared with anyone

else, a fact confirmed by the court when it questioned juror fourteen. The

document had nothing to do with the case itself. Juror fourteen was excused.

The jury was instructed the reason was personal to him, and the court asked them

not to speculate otherwise.     There was nothing about these unobjected-to

procedures or instructions that were "clearly capable of producing an unjust

result . . . ." R. 2:10-2.

      Defendant argues his sentence was excessive and did not take into

consideration the real time consequences. He contends the court erred by

finding aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), and by not finding

mitigating factor seven, N.J.S.A. 2C:44-1(b)(7).        There was no abuse of

discretion by the trial court, however, because the aggravating and mitigating


                                                                           A-5481-16T1
                                        9
factors were "based upon competent and credible evidence in the record" and

the sentence was not "shock[ing] [to] the judicial conscience." State v. Fuentes,

217 N.J. 57, 70 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).

      Defendant was sentenced in the midrange for his conviction of first-degree

attempted murder, which then was subject to NERA. In finding aggravating

factor nine, the trial court considered the nature the offenses and that defendant

lacked remorse for them. "[L]ack of remorse indicate[s] that a prison sentence

is necessary to deter defendant from similar conduct in the future . . . ." State v.

Rivers, 252 N.J. Super. 142, 154 (App. Div. 1991). "[T]he extent of injury

inflicted . . . is a substantial aggravating factor." State v. Noble, 398 N.J. Super.

574, 599 (App. Div. 2008).

      The record supported the court's findings. Defendant's letter to the court

expressed remorse not for his crime but for "the tragic accident that happened

to [R.M.]." He did not have a "memory of that evening" and knows it happened,

"but . . . just can't see it." The victim was stabbed with a lengthy serrated knife,

left protruding from her body. Defendant walked away and sat on the bed

without assisting her.




                                                                             A-5481-16T1
                                        10
      The court did not find mitigating factor seven applied1 noting "[t]he fact

that [prior restraining orders] were dismissed and that this is the first Superior

Court conviction hardly supports a finding of any kind of law[ -]abiding life."

Defendant argues the court erred by relying on dismissed charges, see State v.

K.S., 220 N.J. 190, 199 (2015), but "[a]dult arrests that do not result in

convictions may be 'relevant to the character of the sentence . . . imposed.'" State

v. Rice, 425 N.J. Super. 375, 382 (App. Div. 2012) (quoting State v. Tanksley,

245 N.J. Super. 390, 397 (App. Div. 1991)).

      The record does not support the defense claim the court failed to consider

the real time consequences of defendant's sentence. It made express reference

to the "real time in this matter" calculating the days defendant had to serve

before he could be eligible for parole. The court was not required to reduce the

sentence on account of the application of NERA. "[T]he impact of the eighty-

five percent period of parole ineligibility on the time defendant would spend in

custody [is] not [a] statutory mitigating factor[] and thus did not need to be

addressed by [the court] in sentencing." State v. Bieniek, 200 N.J. 601, 610 n.1




1
  N.J.S.A. 2C:44-1(b)(7) (providing "no history of prior delinquency or criminal
activity or has led a law-abiding life for a substantial period of time before the
commission of the present offense . . . .").
                                                                            A-5481-16T1
                                        11
(2010). Therefore, the issues raised by defendant do not constitute a basis for

resentencing.

      Affirmed.




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                                     12
