                                NOT FOR PUBLICATION WITHOUT THE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-1406-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

RANDY K. WASHINGTON,
a/k/a BILLY JONES,

     Defendant-Appellant.
__________________________

                    Submitted September 25, 2019 – Decided October 22, 2019

                    Before Judges Fuentes, Haas and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Mercer County, Indictment No. 15-06-0714.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Mark Zavotsky, Designated Counsel, on the
                    brief).

                    Angelo J. Onofri, Mercer County Prosecutor, attorney
                    for respondent (Laura C. Sunyak, Assistant Prosecutor,
                    of counsel and on the brief).

PER CURIAM
      In 2015, a Mercer County grand jury indicted defendant Randy K.

Washington on one count of murder, N.J.S.A. 2C:11-3, one count of second

degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a),

one count of second degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b), two counts of third degree resisting arrest, N.J.S.A. 2C:29-2(a), one count

of fourth degree obstructing the administration of law, N.J.S.A. 2C:29-1, and

one count of fourth degree criminal trespass, N.J.S.A. 2C:18-3(a). The State

subsequently dismissed the criminal trespass charge. On July 6, 2017, a jury

found defendant guilty of all remaining charges, except one count of resisting

arrest.

      On September 22, 2017, after merging the count for possession of a

weapon for an unlawful purpose, the court sentenced defendant on his murder

conviction to a seventy-year prison term, subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. The court also imposed a concurrent ten-year

prison term with five years of parole ineligibility on the count for unlawful

possession of a handgun. After merging the obstruction count, the court also

imposed a concurrent five-year prison term with no parole disqualifier on the

count of resisting arrest.




                                                                         A-1406-17T2
                                       2
       On appeal, defendant raises the following arguments:

             Point I

             DEFENDANT'S MOTION FOR [ACQUITTAL]
             MADE AFTER THE STATE PRESENTED ITS CASE
             WAS DENIED IN ERROR.

             Point II

             DEFENDANT'S MOTION TO SUPPRESS THE
             EVIDENCE    OBTAINED    FROM     THE
             WARRANTLESS SEARCH OF HIS CELL PHONE
             AND DENIAL OF A FRANKS1 HEARING TO
             CHALLENGE PROBABLE CAUSE ON THE
             SUBSEQUENT WARRANT WERE DENIED IN
             ERROR.

             Point III

             THE TRIAL JUDGE ERRED IN FAILING TO
             RECUSE HERSELF FOR COMMENTS MADE AT A
             STATUS CONFERENCE WHICH CREATED AN
             APPEARANCE OF IMPROPRIETY THEREBY
             PREVENTING    THE     DEFENDANT    FROM
             RECEIVING A FAIR AND IMPARTIAL TRIAL.

             Point IV

             DENIAL OF DEFENDANT'S MOTION TO DISMISS
             THE [INDICTMENT] WAS IN ERROR BECAUSE
             HALF-TRUTHS MISLED THE GRAND JURY TO
             BELIEVE THE DEFENDANT WAS IDENTIFIED AS
             THE SHOOTER [RESPONSIBLE] FOR THE DEATH
             OF SILAS JOHNSON[, JR.]


1
    Franks v. Delaware, 438 U.S. 154, 155 (1978).
                                                              A-1406-17T2
                                       3
             Point V

             DEFENDANT'S SENTENCE WAS EXCESSIVE.

        Having considered these arguments in light of the applicable law and

facts, we affirm defendant's conviction and remand for the trial court to

resentence defendant in accordance with Subsection E of this opinion.

                                        I.

        We discern the following facts from the record. On October 29, 2014, at

approximately 10:12 a.m., the Trenton Police Department received a report of a

shooting in progress at the Route 1 and Market Street overpass. Officers located

the victim, Silas Johnson, Jr., suffering from gunshot wounds. The victim was

transported to a local medical center, where he succumbed to his injuries and

died.

        A subsequent investigation by the Trenton Police Department revealed

that the victim and defendant had boarded the same train on the day of the

shooting.     Both men exited the train in Trenton, with defendant following

behind the victim.     Video footage showed defendant was wearing a gray

American Eagle brand sweatshirt with white lettering and was carrying a bicycle

when he got off the train. He also wore a tight-fitting hat on his head. Defendant




                                                                          A-1406-17T2
                                        4
left his bicycle with an acquaintance. Defendant's former girlfriend, S.H.,2

identified this bicycle as the one she saw defendant take when he left her house

on the morning of the shooting.

        A number of witnesses observed an altercation between the victim and an

assailant before shots were fired. One witness, A.C., observed the altercation

and later told police the attacker "came up behind [the victim] and just began to

punch him . . . [and] after he punched him for a little bit he overtook him to the

ground." As A.C. turned away from the fight, he heard two gunshots. He ran

from the area but looked back and saw the attacker standing over the victim.

A.C. described the attacker as an African American man, dressed in a dark army-

type jacket over a gray hooded sweatshirt, with a black winter hat worn tight ly

to the head.

        Two other witnesses, a mother and her son, confirmed they also saw the

altercation. The mother later told police one of the men wore a gray jacket with

a pink backpack on his back and the "last thing that [she] managed to see was

the moment when [the attacker] was trying to take [the backpack] off." Her son

also advised police he saw the assailant "struggling to take off a peach or light

colored book bag he was wearing." The son further confirmed he saw the


2
    We refer to witnesses by their initials in order to protect their privacy.
                                                                             A-1406-17T2
                                           5
attacker run toward the highway, still wearing a gray hooded sweatshirt. S.H.

later informed police that a pink backpack found near the scene of the shooting

belonged to her daughter. She testified at trial that she had last seen this

backpack when she dated defendant.

         A local firefighter also described the attacker as an African American

male, "[wearing a] gray hoodie, [with] white lettering, [and a] black . . . skull

cap on his head" with a gun in his hand. The firefighter told police that photos

of a gray sweatshirt with a white eagle and lettering represented "the type of

sweatshirt that [he] saw on the man running with the gun on October 29[,] 2014."

Likewise, J.P., a homeless individual who saw the suspect run past him, recalled

the suspect was an African American male, wearing a gray shirt and blue pants.

Still another witness, a detective working near the scene of the shooting,

described the suspect as an African American male, wearing a gray long-sleeve

t-shirt, covered in sweat and wearing blue jeans. According to the detective, the

suspect was looking side-to-side as if "to see if someone was after him." The

detective approached the suspect, who "stopped, walked back northbound on

Route 1, on the grass, and then changed his direction . . . ." The suspect then

"ran right towards [the detective and his partner] and up a wall about [fifteen]

feet."


                                                                         A-1406-17T2
                                        6
      Defendant was captured on surveillance video taken from a recovery

center near the attack. The video showed defendant arriving at the center shortly

after the attack, wearing a long-sleeve gray shirt, which appeared to be covered

in sweat. A receptionist at the center asked defendant to leave and later testified

that he looked suspicious, "like he was hiding from someone."

      Defendant was arrested in an alleyway after he left the center. Following

his arrest, some eyewitnesses to the attack, as well as eyewitnesses to the

suspect's flight path, were escorted by police to perform a "show-up"

identification. No eyewitness positively identified defendant as the assailant.

For example, by the time A.C. saw defendant, he told police defendant was not

wearing the jacket or hat A.C. remembered seeing on the suspect. At another

show-up identification, J.P. told police he believed some of defendant's physical

features differed from that of the suspect, but that defendant's clothing was

similar to the suspect's clothing.

      Based on the accounts of various witnesses, officers tracked the attacker's

path of flight and found two discharged Federal .45 caliber shell casings and a

.45 caliber projectile.   They also recovered a loaded black semi-automatic

Norinco .45 caliber handgun lying next to a pink backpack.        Forensic testing

matched the shell casings and projectile to the recovered handgun.           When


                                                                           A-1406-17T2
                                        7
additional forensic testing was conducted on a gray sweatshirt found in the

suspect's flight path, DNA on the sweatshirt matched that of defendant.

      Police also found a cellphone on defendant's person at the time of his

arrest. Defendant unsuccessfully moved to suppress evidence found on this

cellphone, claiming police searched it before obtaining a warrant and that this

illegal search revealed the name of his girlfriend. The State disputed this claim,

insisting police learned S.H.'s identity from defendant's mother. The State

further maintained the phone was not searched until a Communications Data

Warrant (CDW) was obtained.        Once a judge authorized the CDW, police

extracted a text message from defendant to S.H. that had been sent minutes

before the shooting. The text message read, "this Old Head got it, I'm get him

when he get off."

      Defendant denied having any involvement with the murder. He took the

same position at trial when he testified on his own behalf. Likewise, when J.P.

testified for the defense, he was asked if defendant was the man he saw fleeing

the crime scene. J.P. responded, "I'm positive. It's not the guy."     On cross-

examination, however, he admitted telling police that the suspect who ran past

J.P. was wearing a gray shirt and blue pants.




                                                                          A-1406-17T2
                                        8
      We first address the arguments pertaining to defendant's pretrial motions

and then address the issues regarding his motion for acquittal and sentence.

                                        II.

A. Motion for Dismissal of Indictment

      In Point IV of his brief, defendant claims the court erred when it denied

his motion to dismiss the indictment. We disagree.

      An indictment is presumed valid and should only be dismissed if it is

"manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 229

(1996).   We review a trial court's decision on a motion to dismiss

an indictment for abuse of discretion. State v. Saavedra, 222 N.J. 39, 55

(2015). "A trial court's exercise of this discretionary power will not be disturbed

on appeal 'unless it has been clearly abused.'" Id. at 55-56 (quoting State v.

Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994)).

      "At the grand jury stage, the State is not required to present enough evidence

to sustain a conviction." State v. Feliciano, 224 N.J. 351, 380 (2016). Our

Supreme Court has explained, "[t]he grand jury 'is an accusative rather than an

adjudicative body,' whose task is to 'assess whether there is adequate basis for

bringing a criminal charge.'" Saavedra, 222 N.J. at 56 (quoting Hogan, 144 N.J.

at 229-30). "A trial court deciding a motion to dismiss an indictment determines


                                                                            A-1406-17T2
                                         9
'whether, viewing the evidence and the rational inferences drawn from that evidence

in the light most favorable to the State, a grand jury could reasonably believe that a

crime occurred and that the defendant committed it.'" Id. at 56-57 (quoting State v.

Morrison, 188 N.J. 2, 13 (2006)).

      In Hogan, our Supreme Court outlined two duties of the State in presenting

evidence to a grand jury. 144 N.J. at 236-37. First, the Court stated that "in

establishing its prima facie case against the accused, the State may not deceive

the grand jury or present its evidence in a way that is tantamount to telling the

grand jury a 'half-truth.'" Id. at 236. Second, the Court recognized the duty of

the State to present evidence, known to the prosecutor, "that both directly

negates the guilt of the accused and is clearly exculpatory." Id. at 237 (rejecting

the majority's decision in United States v. Williams, 504 U.S. 36 (1992)).

However, Hogan recognized that evidence is not deemed "clearly exculpatory,"

thereby warranting dismissal of the indictment, "if contradicted by the

incriminating testimony of a number of other witnesses." Id. at 238.

      Defendant maintains the State failed to present J.P.'s exculpatory

statements to the grand jury. He also argues the State allowed its witness,

Detective Scott Rich, to present misleading testimony during grand jury

proceedings. In particular, defendant insists Detective Rich mischaracterized


                                                                              A-1406-17T2
                                        10
the statements of J.P. and A.C. He asserts Detective Rich's testimony wrongfully

left grand jurors with the impression that J.P. believed there was a chance defendant

was the man J.P. saw fleeing the crime scene. Additionally, defendant argues the

detective's testimony misled the grand jury into believing A.C. identified defendant

as the aggressor during the attack. We find no merit to these arguments.

      The record reflects Detective Rich's testimony before the grand jury

covered accounts from various eyewitnesses pertaining to the murder suspect.

When the detective was asked if J.P. had been able to identify defendant's face

after the attack, Detective Rich responded, "[n]o, not for a hundred percent

certain." But, when asked again if J.P. was able to identify defendant, the

detective answered firmly, "[n]o."

      Next, when relaying statements A.C. had made to police, Detective Rich

told grand jurors that A.C. described the suspect as an African American man,

of thin to medium build, who wore a dark army type jacket, gray hoodie and a

tight-fitting winter hat. Detective Rich also recalled A.C. had been told by the

attacker, "this guy raped my sister" and "to call 9-1-1" but then the suspect told

A.C. not to call 9-1-1.

       Importantly, as grand jury proceedings were concluding, the assistant

prosecutor summarized the detective's testimony about J.P., A.C. and the


                                                                             A-1406-17T2
                                        11
firefighter who had identified a gray hoodie in police photos as similar to that

of the suspect. She stated:

              We spoke about how [A.C.] could not identify the
              defendant through a show-up [identification,] nor could
              [J.P.], nor could [the firefighter]. But [the firefighter]
              . . . was the individual who identified the American
              Eagle sweatshirt as . . . having been on the defendant;
              is that correct?"

Detective Rich answered, [y]es that is correct."

      After a careful review of the transcript of the grand jury proceedings, we

are satisfied the trial judge did not err in denying defendant's motion to dismiss.

The record supports her finding that Detective Rich did not mischaracterize the

statements of J.P. or A.C. Further, the record supports her finding that the State

did not elicit statements from Detective Rich in such a way as to deceive grand

jurors. As the judge pointed out, the State presented information to the grand

jury which was arguably inconsistent with the clothing description given by

certain witnesses. Further, the record shows the assistant prosecutor made clear

that neither A.C. nor J.P. were able to identify defendant following his arrest,

even though she admitted she was "going to describe the aggressor as the

defendant."

      We also are satisfied there is ample support in the record for the trial

judge's determination that the State did not withhold clearly exculpatory

                                                                           A-1406-17T2
                                         12
evidence from grand jurors.       As the judge noted when citing to Hogan,

"exculpatory testimony of one eyewitness is not . . . clearly exculpatory if

contradicted by the incriminating testimony of a number of witnesses." Since

the trial judge properly applied the Hogan principles and found sufficient

evidence of each element of the charged crimes, defendant's motion to dismiss

his indictment was properly denied.

B. Motion to Suppress Evidence

      In Point II, defendant asserts the court erred when it denied his motion to

suppress evidence. Again, we disagree.

      Our review of a trial court's decision on a motion to suppress is limited.

State v. Robinson, 200 N.J. 1, 15 (2009). "Appellate review of a motion judge's

factual findings in a suppression hearing is highly deferential."       State v.

Gonzales, 227 N.J. 77, 101 (2016) (citing State v. Hubbard, 222 N.J. 249, 262,

(2015)). The appellate court is obliged to uphold the motion judge's factual

findings so long as sufficient credible evidence in the record supports those

findings. Ibid. (citations omitted); see State v. Dunbar, 229 N.J. 521, 538

(2017). This court will thus "reverse only when the trial court's determination

is 'so clearly mistaken that the interests of justice demand intervention and

correction.'" State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders,


                                                                         A-1406-17T2
                                      13
192 N.J. 224, 244 (2007)). However, it owes no deference to the trial court's

legal conclusions or interpretations of the legal consequences flowing from

established facts, and reviews questions of law de novo. State v. Watts, 223 N.J

503, 516 (2015).

      "[A] search based on a properly obtained warrant is presumed valid."

Robinson, 200 N.J. at 7-8 (quoting State v. Valencia, 93 N.J. 126, 133 (1983)).

A defendant challenging the validity of a search warrant has the burden to prove

there was no probable cause supporting the issuance of the warrant or that the

search was otherwise unreasonable.          Ibid.   A reviewing court must "pay

substantial deference to the [issuing] judge's determination" of probable cause.

State v. Dispoto, 383 N.J. Super. 205, 216 (App. Div. 2006). Any doubts as to

the validity of the search warrant "should ordinarily be resolved by sustaining

the search." State v. Keyes, 184 N.J 541, 554 (2005) (citations omitted).

      When a defendant challenges the veracity of a search warrant affidavit and

demands a Franks hearing, that defendant must make "a substantial preliminary

showing that a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit."

Robinson, 200 N.J. at 7 (citation omitted). Absent materiality of the falsity, the

warrant remains valid, and no hearing is required. Franks, 438 U.S. at 171-72.


                                                                          A-1406-17T2
                                       14
      Here, defendant claims that before police secured a CDW, arresting

officers searched a cell phone they found in his pants. He insists this illegal

search revealed the identity of S.H. and triggered the discovery of evidence

against him. Defendant asserts any evidence recovered from this phone should

have been suppressed. He also claims he was entitled to a Franks hearing

because the CDW affiant falsely stated S.H.'s identity was disclosed when police

interviewed defendant's mother.

      When the suppression motion was heard, the State disputed defendant's

claims and argued against suppression, insisting defendant could not assert a

reasonable expectation of privacy in a stolen cellphone. On appeal, the State

again maintains that after defendant's arrest, law enforcement immediately

transferred defendant's cellphone to the Mercer County Prosecutor's Office and

a detective promptly prepared an affidavit for a CDW. The State further claims

defendant's phone was not searched before the court issued the CDW.

Moreover, because the investigating officers discovered S.H.'s identity

independent of the cellphone search, no Franks hearing was needed.

      The trial judge addressed these factual disputes and found defendant did

not present sufficient evidence to undermine the validity of the search or

question the truthfulness of the affiant's statements. The judge noted: "I don't


                                                                        A-1406-17T2
                                      15
have a certification or anything from [defendant's mother]. [Defendant] wasn't

there. He was arrested at the time that the police alleged that they spoke to his

mother."

      On the record before us, we discern no basis to disturb either the judge's

denial of the suppression motion or her denial of defendant's request for a Franks

hearing. Certainly, defendant's bald assertions did not warrant granting the

relief he requested.

C. Motion for Recusal

      In Point III, defendant argues the trial judge should have granted his

motion for her recusal. This argument also lacks merit.

      Several pre-trial conferences were conducted in this matter.           It is

undisputed that during one such conference on May 9, 2016, as defendant was

leaving the courtroom, he engaged in a profane tirade. We have not been

provided with a transcript from this proceeding, but we are informed that after

exited the courtroom, an assistant prosecutor praised the trial judge for her

patience in dealing with defendant. The trial judge then remarked she had the

ability to sentence defendant. Defendant waited until April 2017 to formally

complain about this remark and seek the judge's recusal. Defendant posited that




                                                                          A-1406-17T2
                                       16
the judge's comment suggested she would exact retribution against him if he was

found guilty of the pending charges.

       The State opposed defendant's motion, claiming he was "judge

shopping." In support of its position, the State pointed to a remark defendant

had made in court during another conference in October 2016 where he told the

judge, "you're going to be off the case too, bitch."

      Certainly, judges "must avoid all impropriety and appearance of

impropriety." State v. McCabe, 201 N.J. 34, 43 (2010) (quoting DeNike v.

Cupo, 196 N.J. 502, 514 (2008)). "In other words, judges must avoid acting in

a biased way or in a manner that may be perceived as partial." DeNike, 196 N.J.

at 514.

      "[J]udicial remarks during the course of a trial that are critical or

disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily

do not support a bias or partiality challenge." Liteky v. United States, 510 U.S.

540, 555 (1994). On the other hand, comments may support a bias or partiality

challenge if they reveal a high degree of favoritism or antagonism as to make

fair judgment impossible. Ibid.

      Canon 3, Rule 3.17(B) of the Code of Judicial Conduct and Rule 1:12-1

provide guidance on the issue of disqualification.         Canon 3, Rule 3.17(B)


                                                                             A-1406-17T2
                                        17
provides that "[j]udges shall disqualify themselves in proceedings in which their

impartiality or the appearance of their impartiality might reasonably be

questioned" based on factors, such as personal bias towards a party. As the

Supreme Court noted, one must ask, "[w]ould a reasonable, fully informed

person have doubts about the judge's impartiality?" State v. Dalal, 221 N.J. 601,

606 (2015) (quoting DeNike, 196 N.J. at 517). But "DeNike does not set forth

any bright-line rules," and instead, "the standard calls for an individualized

consideration of the facts of a given case." Id. at 607. Essentially, motions for

recusal "are entrusted to the sound discretion of the judge and the judge's

decision is subject to review for abuse of discretion." McCabe, 201 N.J. at 45

(citing Panitch v. Panitch, 339 N.J. Super. 63, 66, 71 (App. Div. 2001)).

      "It is improper for a judge to withdraw from a case upon a mere suggestion

that [s]he is disqualified 'unless the alleged cause of recusal is known by [the

judge] to exist or is shown to be true in fact.'" Panitch, 339 N.J. Super. at 66

(quoting Hundred East Credit Corp. v. Shuster, 212 N.J. Super. 350, 358 (App.

Div. 1986)).

      Here, to her credit, the trial judge comported with our case law's command

that she explain the "objective and subjective bases for [her] ultimate decision."

Magill v. Casel, 238 N.J. Super. 57, 65 (App. Div. 1990). In her oral decision,


                                                                            A-1406-17T2
                                       18
the judge analyzed the objective context of the sentencing remark against the

conduct which spurred it and concluded no recusal was needed. The judge

stated:

            In terms of the comment that I said[,] well, I do decide
            his sentencing and I don't recall and I take counsel at
            their word, they listened to CourtSmart, he may have
            been out of the room, I would say that to him as he's
            standing here now - - he's sitting here now. I do decide
            his sentencing if he is convicted at trial. That's a fact.
            That's up to the jury. Now, I'm not saying I'm going to
            hold one way or another, I'm not going to prejudge. I
            review presentence reports, I hear from counsel, if it
            gets to that . . . . So my whole point in addressing Mr.
            Washington and making whatever comments I made is
            to advise him that we have to proceed through the rules
            and in an orderly fashion to get him his fair trial and
            any outbursts on his part, as I said before, don't help
            things. . . . So all that being said even in light - - and I
            understand [defense counsel's] concern about the
            comment that, you know, I made apparently on May 9th
            but I don't believe that that would rise - - given all the
            circumstances [,] to a reason for me to recuse myself.

      We are satisfied that neither the judge's remark in isolation, nor in the

context of the proceedings, provides an "'objectively reasonable' belief that the

proceedings were unfair." DeNike, 196 N.J. at 517 (quoting State v. Marshall,

148 N.J. 89, 279 (1997)). Therefore, the judge's comment about being able to

sentence defendant does not serve as a basis of recusal.




                                                                           A-1406-17T2
                                       19
D. Motion for Judgment of Acquittal

      In Point I, defendant argues the court erred when it denied his motion for

judgment of acquittal. However, a trial court is to enter an order for a judgment

of acquittal only "if the evidence is insufficient to warrant a conviction." R.

3:18-1.

            [T]he question the trial judge must determine is
            whether, viewing the State's evidence in its entirety, be
            that evidence direct or circumstantial, and giving the
            State the benefit of all its favorable testimony as well
            as all of the favorable inferences which reasonably
            could be drawn therefrom, a reasonable jury could find
            guilt of the charge beyond a reasonable doubt.

            [State v. Reyes, 50 N.J. 454, 458-59 (1967).]

      We apply the same standard on appeal. State v. Kittrell, 145 N.J. 112, 130

(1996). Under Rule 3:18-1, we "confine our analysis of the adequacy of the

evidence to the State's case and the inferences to be derived therefrom." State v.

Samuels, 189 N.J. 236, 245 (2007). "If the evidence satisfied that standard, the

motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).

      A motion for judgment of acquittal may be denied even where a

defendant's proofs contradict those of the State; such contentions do not

necessarily "warrant the removal of the case from the consideration of the jury."

State v. Graziani, 60 N.J. Super. 1, 15-16 (App. Div. 1959).


                                                                          A-1406-17T2
                                       20
      Our review of the record establishes there was ample testimony to support

the trial court's decision to deny defendant's motion for judgment of acquittal.

For example, multiple witnesses provided descriptions of the shooter that

matched defendant's characteristics. Surveillance footage of the defendant also

confirmed his presence on the same train as the victim and in the area of the

shooting after the attack.   Moreover, defendant's sweatshirt, containing his

DNA, was found in the suspect's path of flight, as was the murder weapon and

a pink backpack identified by his girlfriend. Lastly, a message retrieved from

defendant's cellphone showed he sent S.H. a text while sitting on the train, mere

minutes before the murder, which read, "this Old Head got it, I'm get him when

he get off." Giving the State the benefit of all favorable testimony, as we must

for a motion for judgment of acquittal, we perceive no error in the denial of

defendant's motion.

E. Defendant's Sentence

      In Point V, defendant contends his sentence is excessive. The record

reflects he did not appear at his sentence and refused to submit to a presentence

investigation, even though he was directed by the court to do so. Further, on the

day of sentencing, defense counsel advised the court he had been instructed by

defendant not to say anything on his behalf or allow anyone to do so. Defense


                                                                         A-1406-17T2
                                      21
counsel then conceded "aggravating factors 3, 6 and 9 apply here" and "I can't

see mitigating factors. I think I'd be trying to fool the court in putting those

forward."

      Before we review defendant's argument regarding the sentence imposed

by the trial court, we are compelled to sua sponte address the trial judge's failure

to carry out the Supreme Court's mandate in State v Tedesco, 214 N.J. 177, 191

(2013), which made clear that "[a]lthough [a] defendant can waive his

constitutional right to appear at sentencing, he cannot force the court to sentence

him in absentia." 3 Thus, the Court adopted a multi-factor standard that trial

judges must apply to determine whether a defendant is entitled to be sentenced

in absentia.

      This approach requires the trial judge to first determine whether

defendant's "waiver of the right to appear at sentencing is voluntary knowing,

and competent, and made with the advice of counsel." Id. at 194 (citing State v.

Dunne, 124 N.J. 303, 317 (1991)). However, the judge must also consider the

rights of the victims and their families codified in the Crime Victim's Bill of

Rights, N.J.S.A. 52:4B-34 to -38, and The Victim's Rights Amendment in our



3
   We are equally vexed by the parties' failure to formally address this material
issue in their respective appellate briefs.
                                                                            A-1406-17T2
                                        22
State's Constitution. N.J. Const. art. I, ¶ 22. Id. at 193-194 (internal citation

omitted). Thus, before granting a defendant's request not to appear at the

sentencing hearing, trial judges:

            must question the defendant in open court or, in special
            cases, by a live video, digital, or equivalent connection.
            As a practical matter, this inquiry is only required if a
            court is inclined to grant defendant's request. Trial
            judges should also determine whether a defendant's
            waiver is offered in good faith. Finally, courts must
            consider and balance the relevant interests.

            The public has an interest in the effective and fair
            administration of justice. That calls for resolving
            matters fairly, openly, and expeditiously, in the
            presence of all parties and counsel, and in a way that
            promotes respect for our system of justice.

            The public also has an interest in holding defendants
            publicly accountable for their actions once they have
            been convicted at a fair trial. The more serious the
            offense, the stronger that interest is. In the context of
            sentencing in a democratic society, public
            accountability includes having the judge speak openly
            and directly to the defendant.

            [Ibid. (internal citation omitted).]

      Here, as the following part of the sentencing hearing shows, neither the

trial judge, the prosecutor, nor defense counsel made any effort to comply with

the Court's mandate in Tedesco:

            DEFENSE COUNSEL: Good afternoon, Your Honor
            . . . I am representing Mr. Washington who is not here

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            today. In fact, just a few minutes ago he appeared by
            video. I asked him for probably a second or third time
            did he want to be present at least by video while the
            sentencing went forward and he indicated he did not
            and so the officers took him back to his cell.

            THE COURT: Okay, also, I shared with counsel prior
            to coming on the record a handwritten letter or note I
            received from Mr. Washington. It was dated 9/17/17
            where he advised I will not be at sentencing on 9/22.
            My new attorney . . . said he will talk to you.

            DEFENSE COUNSEL: Correct, Your Honor.

            THE COURT: So everybody saw a copy of that. So
            then we will go forward with the sentencing in Mr.
            Washington’s absence. Now, I understand that we have
            some people who do wish to speak but before we get to
            that, has everyone received a copy of the presentence
            report . . . ?

The record shows three members of the victim's family were present and

addressed the judge before the imposition of sentence.

      Writing for a unanimous Court in State v. Jones, Justice LaVecchia noted:

            Fairly recently, we underscored the discretion reposed
            in the judges who are called on to preside over criminal
            sentencing proceedings. In [Tedesco], 214 N.J. 177 [at
            188-89 . . . ], we stated that "[i]n our system of justice,
            we entrust trial judges with the responsibility to control
            courtroom proceedings at trial and sentencing." The
            trial court is and must be the master of the courtroom in
            such a setting.

            The trial court is tasked with the important
            responsibility of maintaining the dignity and fairness of

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            a sentencing proceeding while balancing the interests
            of all who are affected by the sentencing of a defendant.

            [232 N.J. 308, 318 (2018) (emphasis added).]

      In this light, we are compelled to remand this matter for the trial judge to

conduct a Tedesco hearing and resentence defendant after making the findings

mandated by the Supreme Court. In making this determination, the trial judge

should be guided by "the interests of the public, the defendant, the victims, and

the State." 214 N.J. at 192-193. The trial judge must conduct this hearing and

resentence defendant within thirty days from the date of this opinion. By no

later than ten days thereafter, defendant shall notify the Clerk of the Appellate

Division whether he will rely on the brief submitted to this court or file a new

brief limited to the sentence imposed by the court on remand.        If defendant

decides to file a new brief, the Clerk of the Appellate Division will issue a new

briefing schedule to the parties. No extensions will be granted absent a showing

of extraordinary circumstances.

      Defendant's conviction is affirmed.     We retain jurisdiction to review

defendant's sentence in accordance with this opinion.




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