                                NOT FOR PUBLICATION WITHOUT THE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-2577-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

TERIK L. JACKSON, a/k/a
TERIK LASHAUN JACKSON,

     Defendant-Appellant.
_______________________________

                   Submitted April 27, 2020 – Decided May 11, 2020

                   Before Judges Fasciale and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Middlesex County, Indictment No. 17-03-
                   0355.

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

                   Christopher L. C. Kuberiet, Acting Middlesex County
                   Prosecutor, attorney for respondent (Joie Piderit,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, on the brief).
PER CURIAM

      Defendant appeals from his convictions for eleven counts of first-degree

armed robbery, N.J.S.A. 2C:15-1(a)(2); three counts of the disorderly persons

offense of simple assault, N.J.S.A. 2C:12-1(a)(1); and one count of fourth-

degree resisting arrest, N.J.S.A. 2C:29-2(a)(2), for his involvement in an armed-

apartment robbery. He received an aggregate eighteen-year prison term subject

to the No Early Release Act, N.J.S.A. 2C:43-7.2. We affirm.

      Three men entered a second-floor apartment with handguns. The men

threatened and searched the eleven people in the apartment, taking their phones,

wallets, wedding bands, and cash. The men collected the items, placed them

into a pillowcase, and got into a car. Nearby officers located the car and pursued

it. The driver attempted to elude police, eventually fleeing the vehicle on foot

while it was still in motion. An officer chased after the vehicle's driver, who he

identified as defendant, and captured him. Police found co-defendant Bryan

Lambert in a nearby park. Police recovered the victims' missing items from a

pillowcase found in the car and arrested defendant and co-defendant.

      On appeal, defendant argues:

            POINT I

            THE DEFENDANT WAS DENIED THE RIGHT TO
            A FAIR TRIAL DUE TO THE STATE

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                                        2
            WITHHOLDING EVIDENCE THAT THE OWNER
            OF THE GETAWAY VEHICLE HAD CEREBRAL
            PALSY AND COULD NOT HAVE BEEN
            INVOLVED IN THE ROBBERY. [(Raised Below).]

            POINT II

            THE DEFENDANT WAS DENIED THE RIGHT TO
            A FAIR TRIAL DUE TO JUROR INATTENTION.
            (Not Raised Below).

            POINT III

            THE DEFENDANT WAS DENIED THE RIGHT TO
            A FAIR TRIAL DUE TO AN ERRONEOUS
            INSTRUCTION THAT THE JURY SHOULD
            CONSIDER THE DEFENDANT'S FLIGHT. [(Raised
            Below).]

            POINT IV

            THE SENTENCE IMPOSED WAS EXCESSIVE –
            THE [JUDGE] IMPROPERLY CONSIDERED THE
            DEFENDANT'S AGE AND MATURITY. [(Raised
            Below).]

                                      I.

      We begin by addressing defendant's argument, that the State violated

discovery rules by not disclosing the owner (the owner) of the getaway car had

cerebral palsy. Defendant contends that the owner therefore was unable to run

and could not have been one of the men who fled in the car. The failure to make

this disclosure occurred during trial, after defendants rested their respective


                                                                 A-2577-17T12577-17T1
                                      3
cases. At that point, the State indicated its intention to elicit rebuttal testimony

from Detective Kenneth Abode because co-defendant's counsel questioned

Officer Tamika Baldwin, whose testimony created doubt that Detective Abode

had sufficiently investigated the owner. Ultimately, the State decided not to

question Detective Abode after hearing defense counsels' objections.

      "A trial [judge's] resolution of a discovery issue is entitled to substantial

deference and will not be overturned absent an abuse of discretion." State v.

Stein, 225 N.J. 582, 593 (2016). However, we do not need to defer "to a

discovery order that is well 'wide of the mark,' or 'based on a mistaken

understanding of the applicable law.'" State v. Hernandez, 225 N.J. 451, 461

(2016) (citation omitted) (quoting Pomerantz Paper Corp. v. New Cmty. Corp.,

207 N.J. 344, 371 (2011)). We review the meaning or scope of a rule de novo

and need not defer to the trial judge's interpretations "unless we are persuaded

by [his or her] reasoning." State v. Tier, 228 N.J. 555, 561 (2017). We see no

such abuse.

      After a defendant's indictment, a prosecutor is obliged, as part of its

discovery obligations, to provide the defense with the names, addresses, and

records of statements of any person the prosecutor may call as a witness. R.

3:13-3. There is a continuing duty to provide discovery pursuant to Rule 3:13.


                                                                     A-2577-17T12577-17T1
                                         4
R. 3:13-3(f). "Prosecutors are permitted to respond to arguments raised by

defense counsel as long as they do not stray beyond the evidence." State v.

Morais, 359 N.J. Super. 123, 131 (App. Div. 2003).

      There is no discovery violation as to the State's potential rebuttal witness

because the State did not interview the owner. Furthermore, after the assistant

prosecutor represented that Detective Abode would testify that the owner of the

vehicle had cerebral palsy and was not capable of running and therefore could

not have been one of the men fleeing from the car, defense counsel objected and

the State decided not to produce Detective Abode as a rebuttal witness. The

State did not interview the owner. And there was no prejudice because defense

counsel was still able to argue to the jury that the owner was a suspect. Thus,

there is no error.

                                       II.

      Defendant asserts for the first time that the judge erred by not dismissing

Juror #7. According to the sheriff's officer, the juror was "dozing" just before

the court broke for lunch, and that she seemed "like [she was] kind of trying to

force herself to stay awake." Defense counsel did not request that the judge take

any action about this allegation. We consider this contention for plain error. R.

2:10-2.


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                                        5
      Trial judges should take corrective action when counsel brings a sleeping

juror to the judge's attention. State v. Scherzer, 301 N.J. Super. 363, 491 (App.

Div. 1997). If the judge takes corrective action after learning of a sleeping juror

and defense counsel does not request any further action, there is no reversible

error. Ibid. The Court in State v. Mohammed, 226 N.J. 71, 87-88 (2016),

refused to find an abuse of discretion where a judge made factual findings, based

on his own personal observations, that the juror was not sleeping. Even though

"the juror had 'been having his eyes closed on and off throughout the trial . . .

he seem[ed] to be paying attention.'" Id. at 88.

      Here, the judge adequately explained his observations of the juror on the

record. The judge stated, "I've been looking at [Juror #7]. She . . . seems

attentive to me. . . . I haven't made the observations [that] you've made." The

assistant prosecutor agreed that he had not observed Juror #7 sleeping. The

judge then stated that he would continue to "keep an eye on her" to make sure

that the juror was awake. Even if we were to assume, contrary to what the judge

found, that Juror #7 had been "dozing"—which is not supported by the record—

before the lunch break, counsel and the witness continued to delve into the same

subject matter on direct examination. Thus, no prejudice resulted.




                                                                    A-2577-17T12577-17T1
                                        6
                                       III.

      Defendant contends that there was insufficient evidence to support the

flight charge.    He argues that the charge was "grossly prejudicial and

unwarranted" considering defendant did not testify.

      Whether there is a sufficient evidentiary basis to support a flight charge is

within the trial judge's discretion, and therefore we review for an abuse of

discretion. State v. Long, 119 N.J. 439, 499 (1990). A flight instruction "is

appropriate when there are 'circumstances present and unexplained which . . .

reasonably justify an inference that it was done with a consciousness of guilt

and pursuant to an effort to avoid an accusation based on that guilt.'" State v.

Latney, 415 N.J. Super. 169, 175-76 (App. Div. 2010) (alteration in original)

(quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). "The jury must be able

to find departure and 'the motive which would turn the departure into flight.'"

Id. at 176 (quoting State v. Wilson, 57 N.J. 39, 49 (1970)).

            If [the jury] find[s] that the defendant, fearing that an
            accusation or arrest would be made against him/her on
            the charge involved in the indictment, took refuge in
            flight for the purpose of evading the accusation or arrest
            on that charge, then [the jury] may consider such flight
            in connection with all the other evidence in the case, as
            an indication or proof of consciousness of guilt.

            [Model Jury Charges (Criminal), "Flight" (rev. May 10,
            2010).]

                                                                    A-2577-17T12577-17T1
                                        7
      "Flight of an accused is admissible as evidence of consciousness of guilt,

and therefore of guilt." Long, 119 N.J. at 499. "That said, '[m]ere departure,

however, does not imply guilt' as '[f]light requires departure from a crime scene

under circumstances that imply consciousness of guilt.'" State v. Ingram, 196

N.J. 23, 46 (2008) (alterations in original) (quoting Long, 119 N.J. at 499); see

also Wilson, 57 N.J. at 49 (stating "[a] jury may infer that a defendant fled from

the scene of a crime by finding that he departed with an intent to avoid

apprehension for that crime. It is not necessary that he flee from custody or that

he be found hiding").

      Testimony established that the "tipping point," that is "departure to avoid

detection or apprehension," was present in this case. Ingram, 196 N.J. at 47.

Police located the vehicle that defendant was driving, activated their overhead

lights, and attempted to pull the car over. Defendant made several turns to elude

police, "cut[ting] through . . . cars" and making "[a] series of zig zags through

different buildings." When defendant realized he could not exit the parking lot

in his car, he fled on foot while the car was still in motion. Given that the

evidence reasonably supports an inference that defendant fled with "a

consciousness of guilt" to avoid apprehension, the trial judge did not abuse his

discretion in giving the flight instruction. Latney, 415 N.J. Super. at 175-76.

                                                                   A-2577-17T12577-17T1
                                        8
                                       IV.

      Defendant argues that the judge erred by sentencing him to eighteen years'

imprisonment—the same sentence as his co-defendant. He asserts that the judge

held him to a "higher standard" because he was older and should have had better

judgment than his co-defendant.

      We review a trial judge's sentencing for an abuse of discretion. State v.

Jones, 232 N.J. 308, 318 (2018).

            [A]n appellate court is bound to affirm a sentence, even
            if it would have arrived at a different result, as long the
            trial [judge] properly identifies and balances
            aggravating and mitigating factors that are supported by
            competent credible evidence in the record. Assuming
            the trial [judge] follows the sentencing guidelines, the
            one exception to that obligation occurs when a sentence
            shocks the judicial conscience.

            [State v. Cassady, 198 N.J. 165, 180 (2009) (emphasis
            added) (quoting State v. O'Donnell, 117 N.J. 210, 215-
            16 (1989)).]

We only disturb a sentence where the judge did not follow the sentencing

guidelines, the evidence did not support the aggravating and mitigating factors,

or the sentence is clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65

(1984).

      Here, the judge considered the appropriate aggravating and mitigating

factors, and he made findings on the record. The judge considered defendant's

                                                                     A-2577-17T12577-17T1
                                        9
prior criminal history, including defendant's juvenile record consisting of

weapons and theft offenses. Defendant has a previous obstruction and two

resisting arrest convictions and a hindering charge.            Defendant violated

probation three times and ultimately went to state prison.             Additionally,

defendant violated his Intensive Supervision Program.

      Although the judge noted that defendant is older than his co-defendant

and therefore should demonstrate "better judgment, more maturity," the judge

placed greater emphasis on defendant's prior criminal record. We reverse a

defendant's sentence if there is an "obvious sense of unfairness" between

sentences of co-defendants. State v. Roach, 146 N.J. 208, 232 (1996). "The

question . . . is whether the disparity is justifiable or unjustifiable." Id. at 233.

      Here, defendant's sentence was not disparate, but rather equal to that of

his co-defendant. The judge properly highlighted that defendant "has . . . an

adult criminal record. He spent time in prison." The judge correctly countered

defendant's degree of culpability with defendant's age, maturity, and criminal

history.      Because defendant's sentence does not "shock[] the judicial

conscience," Cassady, 198 N.J. at 180, and because the judge appropriately

considered the aggravating and mitigating factors, the judge did not abuse his

discretion.


                                                                       A-2577-17T12577-17T1
                                        10
Affirmed.




                 A-2577-17T12577-17T1
            11
