                                  NOT FOR PUBLICATION WITHOUT THE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-2904-15T2
STATE OF NEW JERSEY,

           Plaintiff-Respondent,

v.

JON M. PEDITTO,

           Defendant-Appellant.


                     Argued May 16, 2018 – Decided September 13, 2018

                     Before Judges Alvarez, Nugent, and Currier.

                     On appeal from Superior Court of New Jersey, Law
                     Division, Ocean County, Indictment No. 15-09-1876.

                     Richard E. Mischel argued the cause for appellant
                     (Franzblau Dratch, PC, attorneys; Richard E. Mischel,
                     on the brief).

                     William Kyle Meighan, Senior Assistant Prosecutor,
                     argued the cause for respondent (Joseph D. Coronato,
                     Ocean County Prosecutor, attorney; Samuel
                     Marzarella, Chief Appellate Attorney, of counsel;
                     William Kyle Meighan, on the brief).

PER CURIAM
      Tried by a jury, defendant Jon M. Peditto was convicted of first-degree

maintaining or operating a controlled dangerous substance (CDS) production

facility, N.J.S.A. 2C:35-4 (count one), and fourth-degree possession of

marijuana, N.J.S.A. 2C:35-10(a)(3) (count two).       Defendant was found not

guilty of the remaining two counts that charged him with second-degree

possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5, and third-degree

possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5. On January 29,

2016, defendant was sentenced on count one as a second-degree offender,

N.J.S.A. 2C:44-1(f)(2), to eight years in custody subject to thirty-two months of

parole ineligibility and a concurrent three-year term of imprisonment on the

fourth-degree offense. The State concedes that the sentence on the second count

was error, as the maximum for that charge is eighteen months in state prison.

See N.J.S.A. 2C:43-6(a)(4). With the exception of a remand for resentencing

on that count, we affirm.

                                        I.

      On August 1, 2012, Little Egg Harbor police officers inadvertently

discovered a marijuana patch in the Pine Barrens. On August 7, 2012, officers

from the State Police Marijuana Eradication Unit set up surveillance equipment

around the site. The officers discovered a trail to the location, and concealed in



                                        2                                  A-2904-15T2
some shrubbery, a roll of black mesh, a shovel, a fertilizer bag, and a green water

container. The marijuana plants had already been harvested from one plot.

        At approximately 6:30 a.m., a man, later determined to be the defendant,

approached the location. The officers identified themselves, then stepped out of

the shrubbery and arrested him. He was read his Miranda1 rights and asked for

his name, date of birth, and address.

        Detective John Anderson from the Ocean County Sheriff's Department

processed the site. Officers located a black bicycle in the vicinity and identified

five separate marijuana plots.     Seventeen marijuana plants were collected.

Defendant's vehicle was found parked several miles away.

        When Ocean County Prosecutor's Office Special Operations Group

Detective Joel Mahr arrived at police headquarters, he was informed that

defendant wanted to speak to him. During the interview he and Detective

Michael Heale conducted in a video recording room, defendant was asked to

confirm that he had already been read his Miranda rights. Defendant did not

respond. Mahr proceeded to read defendant his rights on tape, and after he began

the section on the right to counsel, defendant interrupted and said "I don't have

one." Mahr asked defendant to "just listen," and continued to read . When the



1
    Miranda v. Arizona, 384 U.S. 436 (1966).

                                         3                                  A-2904-15T2
officers asked defendant to sign his Miranda rights waiver form, which he

ultimately did, he said: "I just don't want to give the wrong impression. It's like

'alright I don't want to sign. I want a lawyer[.'] That makes me like to you guys

saying [']screw you. I don't wanna talk to you.['] I do wanna talk." Mahr a nd

Heale repeatedly attempted to clarify if defendant understood his rights and was

willing to speak to them. Defendant finally said that he understood and readily

acknowledged that the marijuana plots were his.           He said he personally

consumed most of it but sold some to acquaintances to supplement his income,

which, he said, despite his best efforts, was not enough to cover his living

expenses.

      The investigating officers obtained two search warrants, one for

defendant's vehicle, in which nothing evidential was located, the second warrant,

for his home. In his apartment, officers found 1383.04 grams (roughly 3.05

pounds) of marijuana, as well as paraphernalia including rolling papers, bowls,

fertilizer, and a scale.

                                        II.

      Before trial, the judge denied defendant's motion, based on alleged

violations of Miranda principles, to suppress his statements. The court also




                                         4                                  A-2904-15T2
conducted a Faretta2 hearing and addressed defendant's request for hybrid

representation, in which he sought to be permitted to represent himself only

during opening and closing. Defendant also unsuccessfully moved for the

dismissal of the indictment count charging him with maintaining or operating a

CDS facility.

        After the court denied defendant's application for hybrid representation,

defendant sought leave to represent himself throughout the entire trial. The

court granted the request, but appointed standby counsel. Prior to jury selection,

defendant discharged his standby counsel. The judge instructed her to remain

in the gallery.

        Defendant testified at trial, admitting that he used approximately three

pounds of marijuana per year. The extra marijuana he grew he said he sold to

two or three of his friends in order to pay his bills. On cross-examination,

defendant confirmed that he went to the site on the day of his arrest to tend to

his marijuana plants. He planted the seeds, fertilized the soil, surrounded the

plants with mesh in order to protect them, and had previously harvested some.

Defendant agreed he owned the marijuana plants found at the site and the

marijuana found in his apartment. Defendant told the jury that he had used and



2
    Faretta v. California, 422 U.S. 806 (1975).

                                           5                               A-2904-15T2
grown marijuana since he was a teenager, and suggested that the use of the drug

should not be criminal.

      After deliberating for less than four hours, the reconstituted jury 3 sent a

note to the judge reading "We the jury have determined that we cannot come to

a consensus in the charges as filed and evidence as presented. What can be

done?" The court told the jury the following:

                   I will just read you what the courts have been
            instructed to do in a case like this. Just to reiterate
            something that I said before, it's your duty as jurors to
            consult with one another and to deliberate with a view
            to reaching an agreement, if you can do so without
            violence to individual judgment. Each of you must
            decide the case for yourself, but do so only after an
            impartial consideration of the evidence with your
            fellow jurors. In the course of your deliberations, do
            not hesitate to re-examine your own views, change your
            opinion, if convinced it is erroneous, but do not
            surrender your honest conviction as to the weight or
            effect of evidence solely because of the opinion of your
            fellow jurors or for the mere purpose of returning a
            verdict. You are [not] partisans, you are judges, you
            are judges of the facts.

                  So I'm also going to ask you if you have any
            questions that you'd like me to answer such as that, I'm
            available to do that. So if you have any questions about
            the law, if you have any questions about the evidence,
3
  One juror had to be replaced by an alternate on the morning of October 28, 2015,
and the jury was instructed to begin deliberations from the beginning and disregard
prior deliberations. The reason for the replacement and the continuation of
deliberations with a new juror are not on appeal.


                                         6                                  A-2904-15T2
            we can, I can try to explain anything that might be of a
            problem in your deliberations.

                  And I wanted to indicate that there are four
            offenses charged in this indictment. They are separate
            offenses by separate counts in the indictment. Your
            determination of whether the State has proven the
            defendant guilty of the crimes charged in the indictment
            beyond a reasonable doubt, the defendant is entitled to
            have each charge considered separately by the evidence
            which is relevant and material to that particular charge,
            based on the law as I have given it to you. Therefore,
            all charges are to be considered individually and
            separately.

                   So hopefully that helps, but if you go back in, I
            would ask that if you have as a result of those new
            instructions to you, actually the last part was not new,
            it was actually part of the instructions that I gave you
            in the beginning, that everything is to be treated
            separately, but if you have any questions, write them
            down and I will try to answer them, specifically with
            respect to the jury charge or anything like that. All
            right. So I hope that helps. I'm going to send you back
            in. I have to do something on the video just for a couple
            of minutes but I'll be available to answer any questions.

      Less than an hour later, the jury sent out a note which read: "We, the jury,

have after consideration of the facts of this case and the charges as applied

cannot come to a consensus on three of the four charges. We have discussed,

deliberated, followed written instructions and verbal and simply cannot come to

an accord for the Court." The court again instructed the jury:

                 All right. Good afternoon. I have received a note
            from your Foreperson, this is the second note, and it

                                        7                                  A-2904-15T2
            indicates that, "We, the jury, after consideration of the
            facts of this case and the charges as applied cannot
            come [to] a consensus on three of the four charges. We
            have discussed, deliberated, followed written
            instruction[s] and verbal and simply cannot come to an
            accord for the Court."

                   The Court has the obligation to determine
            whether or not a jury should continue to proceed, and
            in this case, there was a lot of time spent on this case,
            there was a lot of effort placed into the case by both
            sides. The Court's feeling is that you as a constituted
            jury began your deliberations at approximately 9:30,
            10:00 this morning. The deliberations that you engaged
            in yesterday, again you were told to start from the very
            beginning.

                   So this Court has to be mindful of that and I'm
            instructing you that, requiring you to continue with
            your deliberations. I would suggest to you that there is
            that jury verdict form, I don't know whether you filled
            that out already with respect to the one count that you
            decided on. If you have, you're to go back in to discuss
            again, as I said before, each charge separately and
            individually so that you can consider the evidence as it
            applies to each of those charges and give it more effort
            with respect to coming to a consensus on those charges.

                  I'm going to send you back in and ask you to
            continue to deliberate on all of the charges. Thank you.

      The jury found defendant guilty of counts one and two, and not guilty of

counts three and four. After the jury rendered its verdict, defendant requested

his standby counsel to argue for judgment notwithstanding the verdict, based on

the alleged inconsistency in the verdict–—that the jury convicted defendant of


                                        8                               A-2904-15T2
operating a CDS facility, while acquitting him of possession with the intent to

distribute. The application was denied.

      During the sentence hearing, the judge made the following remarks:

                   The Court obviously went through this trial with
            [the prosecutor] and [] Peditto representing himself. . .
            . Peditto admitted smoking marijuana since he was 15
            years old. Watching him during this trial, watching him
            in the way he conducted himself led me to believe . . .
            that some of his cognitive brain functions appear to be
            affected by smoking marijuana . . . . His mental process
            at times seemed to me to be confused. He -- it's
            indicated in the presentence report he has difficulty
            reading. He clearly has deficient social skills in this
            Court's opinion. According to the presentence report,
            he has limited employment capabilities. According to
            his brother's letter, he has limited employment
            capabilities.

                  ....

                   Your defense, . . . as you see yourself, this
            spokesperson as some of your misguided supporters
            call you a zealot, a fighter for a cause, . . . in my opinion
            it was short-sighted, it was inept, it was reckless, and it
            was foolhardy.

                  Your behavior during the trial convinced me that
            your long-term marijuana use and the effects of that
            made your actions and your reactions uncontrollable,
            specifically after you had not used in my opinion by
            lunchtime and thereafter in the afternoon your behavior
            was completely different at times than during the
            morning sessions. You appeared to as you just used the
            term morph into acting like a spoiled child who was
            obstinate, disrespectful of everyone, and oblivious to
            common sense and common decency.

                                          9                                 A-2904-15T2
             That's my reaction to the way you handled
      yourself during trial. If for some reason that wasn't
      clear to you, obviously you have as you use the word a
      disconnect with reality. You need help, sir. . . .

                                III.

Defendant raises six points on appeal:

      POINT I
      THE MOTION TO SUPPRESS MR. PEDITTO'S
      STATEMENTS SHOULD HAVE BEEN GRANTED

      POINT II
      THE TRIAL COURT SHOULD NOT HAVE
      ALLOWED MR. PEDITTO TO REPRESENT
      HIMSELF IN LIGHT OF HIS CLEARLY IMPAIRED
      MENTAL FUNCTIONS WHICH ADVERSELY
      AFFECTED HIS ABILITY TO REPRESENT
      HIMSELF, AND THE COURT SHOULD HAVE
      ORDERED STANDBY COUNSEL TO TAKE OVER
      THE      DEFENSE   WHEN     IT   BECAME
      INCREASINGLY APPARENT THAT MR. PEDITTO
      WAS       MENTALLY      INCAPABLE     OF
      REPRESENTING HIMSELF

      POINT III
      THE DEFENSE MOTION FOR A JUDGMENT OF
      ACQUITTAL AS TO COUNT ONE OF THE
      INDICTMENT SHOULD HAVE BEEN GRANTED
      DUE TO THE LACK OF EVIDENCE THAT MR.
      PEDITTO'S RESIDENCE WAS USED IN A
      CONTINUING COMMER[CI]AL ENTERPRISE

      POINT IV
      THE TRIAL COURT SHOULD HAVE DECLARED A
      MISTRIAL WHEN THE JURY INDICATED IT


                                10                             A-2904-15T2
             COULD NOT REACH A DECISION (NOT RAISED
             BELOW)

             POINT V
             THE CONVICTIONS SHOULD BE REVERSED DUE
             TO THE INCONSISTENCY OF THE JURY'S
             VERDICTS

             POINT VI
             THE COURT IMPOSED AN ILLEGAL SENTENCE
             FOR
             COUNT TWO OF THE INDICTMENT

      Three of the issues raised should be preliminarily addressed. Two do not

warrant much discussion in a written opinion, see R. 2:11-3(e)(1)(E), and the

proper resolution of the third is not disputed.

      Defendant contends in Point III that the State failed to establish all the

necessary elements of maintaining or operating a CDS production facility,

N.J.S.A. 2C:35-4. The statute states a person who knowingly operates "any

premises, place or facility used for the manufacture of . . . marijuana in an

amount greater than five pounds or ten plants . . . is guilty of a crime of the first

degree." N.J.S.A. 2C:35-4. "Manufacture" is defined in N.J.S.A. 2C:35-2 as

the "production, preparation, propagation, . . . or processing of a controlled

dangerous substance." Relying upon State v. Kittrell, 145 N.J. 112, 124 (1996),

defendant contends that in order to obtain a conviction, the State must prove the

facility was maintained for commercial distribution. The point, however, is not


                                         11                                  A-2904-15T2
supported by Kittrell. In fact, the case explains the statute's broad reach, which

includes this scenario: "the Legislature's intention to criminalize the production

of controlled dangerous substances for distribution, in any premises, is reflected

in the commentary accompanying the statute." Id. at 126 (emphasis added).

That defendant did not have a center for commercial distribution is irrelevant.

      Point V also lacks merit. Defendant's convictions need not be reversed

because of an alleged inconsistency in the jury's verdicts.       In our system,

inconsistent verdicts are accepted. See State v. Banko, 182 N.J. 44, 53 (2004).

As the Court has said, "[a]n inconsistent verdict may be the product of jury

nullification." Id. at 54. Jury nullification is the very defense theory defendant

espoused in the trial.

      Furthermore, as the Court in Banko went on to say, such verdicts may be

the product of "lenity, compromise, or even mistake." State v. Goodwin, 224

N.J. 102, 116 (2016). Whatever the jury's reason for its verdict, the seeming

inconsistency does not negate the convictions.

      Finally, the State concedes that the judge's sentence on fourth-degree

possession of CDS was illegal. It is therefore remanded for a new sentence

hearing and nothing further need be said with regard to Point VI.

                                       IV.



                                       12                                  A-2904-15T2
      Turning to defendant's Point I, it is well-established that the State cannot

present a defendant's incriminating statement, elicited by law enforcement

officers through "custodial interrogation," unless the suspect has waived his or

her Miranda rights. Miranda, 384 U.S. at 436. The State must prove beyond a

reasonable doubt that the suspect did so "voluntarily, knowingly and

intelligently." Id. at 444; see State v. Presha, 163 N.J. 304, 313 (2000).

      It is also well-settled that once a suspect indicates the desire to remain

silent, "the interrogation must cease." Id. at 473-74. If an individual "indicates

in any manner and at any stage of the process that he wishes to consult with an

attorney before speaking there can be no questioning." Id. at 444-45.

      A court looks to the totality of the circumstances in order to decide the

issue, including a defendant's individual characteristics and the nature of the

questioning. State v. Galloway, 133 N.J. 631, 654 (1993). As always, a trial

court's findings of fact are entitled to deference so long as supported by

sufficient credible evidence in the record.   State v. Elders, 192 N.J. 224, 243-

44 (2007).    "Relevant factors to be considered include the suspect's age,

education and intelligence, advice concerning constitutional rights, length of

detention, whether the questioning was repeated and prolonged in nature, and

whether physical punishment and mental exhaustion were involved." Galloway,

133 N.J. at 654 (citations omitted).

                                       13                                    A-2904-15T2
      "Although a clear assertion of either right must of course be scrupulously

honored, officers confronted with an ambiguous invocation are authorized to

make inquiry in order to clarify the suspect's intent." State v. Diaz-Bridges, 208

N.J. 544, 569 (2011); State v. Alston, 204 N.J. 614, 623 (2011). If a suspect's

"statements are so ambiguous that they cannot be understood to be the assertion

of a right, clarification is not only permitted but needed." Alston, 204 N.J. at

624. In such cases, the fact-sensitive inquiry regarding the totality of the

circumstances is particularly important. Diaz-Bridges, 208 N.J. at 565.

      In responding to an ambiguous statement, officers must limit themselves

to clarification, "not questions that operate to[] delay, confuse, or burden the

suspect in his assertion of his rights." State v. Johnson, 120 N.J. 263, 283 (1990)

(citation omitted). Under the totality of the circumstances approach, not every

equivocal reference to an attorney is an invocation of the right to counsel

requiring the cessation of police interrogation.

      "When faced with a trial court's admission of police-obtained statements,

an appellate court should engage in a 'searching and critical' review of the record

to ensure protection of a defendant's constitutional rights." State v. Hreha, 217

N.J. 368, 381-82 (2014) (citation omitted). However, we "do not independently

assess evidence as if we [were] the trial court." State v. Maltese, 222 N.J. 525,

543 (2015), cert. denied, ___ U.S. ___ (2016). "To warrant reversal, defendant

                                        14                                  A-2904-15T2
must show not only that admission of his statement was error, but that it was

error 'of such a nature to have been clearly capable of producing an unjust

result.'" Ibid. (citing R. 2:10-2).

      We consider defendant's claim of error against this backdrop. Defendant

initially argues that the absence of a signed Miranda card, or the failure of the

officers to produce or read from a Miranda card at the scene of the arrest, raises

doubt as to whether they were given. This point lacks significance because the

only information officers elicited at the scene was pedigree information, which

falls outside the scope of Miranda. State v. Mallozzi, 246 N.J. Super. 509, 515

(App. Div. 1991).      In any event, in the videotaped interview, Mahr told

defendant that he was going to read him his Miranda rights, and mentioned that

they had already been read when defendant was arrested. Defendant does not

disagree with Mahr's assertion, and in fact, asked the officer what would have

happened if he had not responded.

      Defendant also contends that some of his statements during the videotaped

interview should had been construed as requests to have a lawyer present.

Defendant certainly gave confused and confusing answers to the officers'

questioning. But it is clear from the interview, as the judge found, that he spoke

to the officers voluntarily. When he made ambiguous statements using the word

"lawyer," the officers promptly obtained clarification.

                                       15                                  A-2904-15T2
      The judge found as a fact that defendant was not requesting an attorney,

but stating that he thought that to do so would not be in his best interests—that

his best interests mandated that he talk to the officers. From the start, defendant

opined that he should not be prosecuted for marijuana, and it was for that reason

he spoke with the officers. The court's findings are entitled to deference.

Maltese, 222 N.J. at 543. Our review only corroborates them.

                                        V.

      A defendant in a criminal matter is afforded the right to counsel under the

Sixth Amendment to the United States Constitution and Article I, Paragraph 10

of the New Jersey State Constitution. U.S. Const. amend. VI; N.J. Const. art. I,

¶ 10. Courts have also found that embodied in the Sixth Amendment right to

counsel is the right for a defendant to dispense with counsel's assistance and

represent himself. Faretta, 422 U.S. at 814.

      When faced with an "unequivocal request for self-representation," a court

must engage in the inquiry outlined in State v. Crisafi, 128 N.J. 499, 510-12

(1992), including explaining to the defendant the nature of the charges, any

possible defenses, the range of punishment, the risks that come with self-

representation, the requirement that defendant abide by the rules of court, and

the inadvisability of proceeding without the assistance of counsel. State v.

Figueroa, 186 N.J. 589, 593 (2006). In State v. Reddish, 181 N.J. 553, 594

                                        16                                  A-2904-15T2
(2004), the Court expanded this inquiry to include additional issues to be

addressed before permitting defendant to proceed pro se, including:

            whether defendant will experience difficulty in
            separating his roles as defendant and counsel; whether
            defendant understands that he not only has the right not
            to testify, but also the right not to incriminate himself
            in any manner; whether he understands that he could
            make comments as counsel from which the jury might
            infer that he had knowledge of incriminating evidence
            (and the difficulty in avoiding such comments); and
            whether he fully understands that if he crosses the line
            separating counsel from witness, he may forfeit his
            right to remain silent and subject himself to cross-
            examination              by            the          State.

      A defendant who chooses to proceed pro se does so in the face of "likely

detriment." Reddish, 181 N.J. at 580. The New Jersey Supreme Court said "that

a defendant who represents himself 'relinquishes, as a purely factual matter,

many of the traditional benefits associated with the right to counsel.'" Ibid.

(citing Faretta, 422 U.S. at 835). However, it is the defendant, and not his lawyer

or the State, who will bear the personal consequences of a conviction. Faretta,

422 U.S. at 834. Thus, "[i]t is the defendant . . . who must be free personally to

decide whether in his particular case counsel is to his advantage." Ibid. So,

"although he may conduct his own defense ultimately to his own detriment, his

choice must be honored out of 'that respect for the individual which is the

lifeblood of the law.'" Ibid. (citation omitted).


                                        17                                  A-2904-15T2
      Defendant now claims in Point II that the court erred by allowing him to

proceed pro se. Undoubtedly, had the court denied this request, we would now

face the argument that the court erred because it did not allow him to represent

himself.

      Defendant describes in detail how he was "clueless regarding the

presentation of a criminal defense." However, "technical legal knowledge, as

such, [is] not relevant to an assessment of [defendant's] knowing exercise of the

right to defend himself." Faretta, 422 U.S. at 836. Defendant insisted on

waiving his right to the assistance of counsel, despite repeated efforts by the

court to dissuade him from doing so.

      The court clearly explained the charges against defendant and the sentence

exposure. The judge told defendant that because of his unfamiliarity with the

rules of court, "it may result in you having some inability to present the case in

a proper fashion on your own behalf." Defendant responded that he understood

and nonetheless wished to proceed pro se. Defendant was sworn in and affirmed

under oath his belief that he is "the only person that can actually express

[him]self in the way [he] want[ed] to express it to the jury" and that he believed

he had "the appropriate ability to do that."

      Prior to jury selection, defendant even attempted to discharge standby

counsel altogether. He told the court, "I don't want her representing me in any

                                       18                                  A-2904-15T2
way, shape, or form." Counsel remained at the judge's direction, sitting in the

gallery. Apparently satisfied with the arrangement, defendant consulted standby

counsel occasionally throughout the trial and even periodically asked her to

speak on his behalf.

      The court's concern about defendant's ability to present a good defense,

however, "no matter how well-intentioned, cannot override defendant's exercise

of his right to decide to represent himself." State v. King, 210 N.J. 2, 21 (2012).

As in King, "[n]othing within the [court's] colloquy [with defendant] indicated

that defendant lacked the competency to make that choice."              Ibid.      This

defendant had a highly personal perspective of the offense and followed through

on this view in the trial, having been fully advised of the risks were he to fail.

      It is also noteworthy that defendant did not entirely fail in his self-

representation. He was acquitted on two out of the four counts, despite his

undeniable arrest at the site of seventeen marijuana plants as he set about to tend

to his crop.

      Defendant     had   disadvantages      similar   to   other   self-represented

defendants–lack of knowledge about the law, and a lack of familiarity with

courtroom procedures and evidence rules. But defendant's personality quirks,

even if the judge in sentencing attributed them to the effect of a lifetime of



                                        19                                      A-2904-15T2
marijuana consumption, did not warrant a competency evaluation mid-trial or

other interruption to the proceedings.

        The court had to respect defendant's position to exercise his right to

represent himself.     See Faretta, 422 U.S. at 806. In exercising that right,

defendant conveyed his strongly held beliefs regarding his situation to the jury.

His request that he directly address the jury at opening and closing, but employ

counsel to do the rest, arose from his desire to argue this political point to the

jury–that marijuana use should be legal and that he should not be prosecuted.

That the judge allowed the matter to move forward as defendant wanted was not

error, much less plain error. See R. 2:10-2.

                                         VI.

        Finally, defendant contends in Point IV that the judge should have

declared a mistrial when the jury indicated they were unable to reach a decision.

Defendant did not object to the court's Czachor4 Model Jury instruction or

request a mistrial. See Czachor, 82 N.J. at 405; New Jersey Model Jury Charges,

Criminal, No. 4.190 (1978). Thus, we review this contention under the plain

error rule. R. 2:10-2.




4
    State v. Czachor, 82 N.J. 392, 407 (1980).

                                          20                               A-2904-15T2
       "A judge has discretion to require further deliberations after a jury has

announced an inability to agree." State v. Adim, 410 N.J. Super. 410, 423 (App.

Div. 2009). In exercising this discretion, the court should consider "such factors

as the length and complexity of [the] trial and the quality and duration of the

jury's deliberations."   Czachor, 82 N.J. at 407.      However, exercise of this

discretion is not appropriate "if the jury has reported a definite deadlock after a

reasonable period of deliberations." Adim, 410 N.J. Super. at 423-34 (quoting

Czachor, 82 N.J. at 407) (emphasis added).

       Here, the judge initially read the Czachor instruction as part of the general

instructions, and provided a written copy to the jurors for their use during

deliberations.

       The jury was sent to deliberate at 9:25 a.m. on October 28. At 1:40 p.m.,

less than four hours later, the jury indicated it could not come to a consensus

and asked for guidance. The court repeated the Czachor charge to the jury and

added, as we have earlier said, that he was available to answer questions about

the law, the evidence, or "try to explain anything that might be a problem in your

deliberations." The court also reiterated that the four charges in the indictment

were to be considered separately. The jury then resumed deliberations at 1:47

p.m.



                                        21                                  A-2904-15T2
      At 2:40 p.m., the jury sent another note that they could not reach a

consensus on three of the four charges. The judge discussed the matter with

defendant and the prosecutor, concluding that the jury had not deliberated long

enough for him to declare a hung jury on three of the four charges. The parties

did not object. The court then instructed the jury to resume deliberations without

objection. Defendant now argues that the judge's failure to repeat the Czachor

charge a third time was error, and that his comments otherwise unduly

influenced the jury to reach a verdict.

      The judge's supplemental instruction, however, merely requested that the

jury take more time to deliberate. There was no focus on dissenting jurors,

improper pressure to reach a conclusion, or any other inappropriate commentary.

Although the judge did not repeat the Czachor language, the jurors had already

heard the charge twice, and had it in written form. Thus, this argument also

lacks merit. The jury was not unduly influenced to reach a verdict, nor was there

any legal justification for a mistrial.

      Affirmed, with the exception of a remand for resentencing on count two.




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