                                NOT FOR PUBLICATION WITHOUT THE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-2932-15T4

STATE OF NEW JERSEY,

         Plaintiff-Respondent,

v.

GARY J. PASSARELLI, a/k/a
JOSEPH J. POLLIN,

     Defendant-Appellant.
____________________________

                   Argued on October 31, 2018 – Decided December 17, 2018

                   Before Judges Koblitz, Currier and Mayer.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hunterdon County, Indictment No. 13-11-
                   0388.

                   Edward J. Hesketh argued the cause for appellant (Law
                   Offices of Edward J. Hesketh, LLC, attorneys; Edward
                   J. Hesketh, of counsel and on the brief).

                   Jeffrey L. Weinstein argued the cause for respondent
                   (Anthony P. Kearns, III, Hunterdon County Prosecutor,
                   attorney; Jeffrey L. Weinstein, Assistant Prosecutor, of
                   counsel and on the brief).
PER CURIAM

      Defendant Gary J. Passarelli appeals from his February 19, 2016

conviction after trial of first-degree murder, N.J.S.A. 2C:11-3(a), third-degree

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

degree possession of the controlled dangerous substance (CDS) Ketamine,

N.J.S.A. 2C:35-10(a)(1). Defendant was sentenced to sixty years in prison with

an 85% parole disqualifier pursuant to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. He argues that his videotaped statement to police and

evidence of his drug use should not have been admitted into evidence, the State

committed prosecutorial misconduct and his sentence was manifestly excessive.

After reviewing the record in light of the contentions advanced on appeal, we

affirm all but the sentence. We remand for reconsideration of the sentence

without consideration of aggravating factors three, "[t]he risk that the defendant

will commit another offense," N.J.S.A. 2C:44-1(a)(3), and nine, "[t]he need for

deterring the defendant and others from violating the law," N.J.S.A. 2C:44-

1(a)(9).

      The following evidence was adduced at trial. On May 31, 2013, at 12:53

p.m., a police officer found the victim's body lying on the floor in his living

room with a large kitchen knife sticking out of the victim's abdomen. The officer


                                                                         A-2932-15T4
                                        2
observed dumbbells near the victim's feet and an inflatable child's swimming

pool covering the victim's face and chest.

      Defendant described the victim, John Niko, as a social acquaintance.

According to defendant, after not seeing each other for a period of time in 2012,

defendant and Niko resumed their relationship beginning in March 2013, and

used Ketamine together. On May 20, 2013, defendant was issued a motor

vehicle violation in Raritan Township, which resulted in his Ford F-250 black

pickup truck being impounded, and he called Niko, who picked defendant up at

the police station and allowed defendant to stay at his home.

      On May 30, 2013, defendant and Niko exchanged various text messages,

phone calls and voicemails regarding defendant's laptop computer that Niko had

repaired and defendant was trying to retrieve.       Defendant became hostile

because he wanted Niko to bring the laptop to him. Defendant testified he was

not angry, but rather that was how he and Niko spoke to each other.

      Between 5:40 and 5:54 a.m. on May 31, defendant and Niko exchanged a

series of phone calls, text messages, and voicemails. Defendant left a voicemail

message on Niko's phone at 5:41 a.m., saying:

            Listen mother fucker, you are fucking dead man walkin'
            . . . you understand what I'm sayin' to you right now,
            you're a fucking dead man walking . . . the next time I
            see you, I'm gonna fucking knock every fucking tooth

                                                                        A-2932-15T4
                                       3
            out of your fucking face . . . you got what I'm sayin'
            mother fucker . . . I'm going to fuck you up like you've
            never thought you could be possibly be fucked up, you
            piece of fucking shit.

Two minutes later, the defendant left another threatening and vulgar voicemail

message.

      Niko responded twice by text message at 5:50 a.m. and 5:53 a.m., first

saying he would call the police and then writing "I did nothing wrong to you. I

redid your whole laptop. You were supposed to come get it last night and

didn't."

      Several of Niko's neighbors heard noises coming from Niko's home on

that May 31, 2013 morning beginning at approximately 6:00 a.m. and saw a

black Ford F-250 pickup truck parked in Niko's driveway.

      A New Jersey State Police expert provided testimony regarding a DNA

analysis of evidence collected from the crime scene. The evidence included the

handle of the knife found in the victim's abdomen, the dumbbell, and the

children's pool. The dumbbell contained a mixture of DNA – blood that matched

the victim's DNA and, according to forensic scientist Elliot Clark, defendant

could not be ruled out as a partial contributor of DNA. The children's pool that

covered the victim's upper body and the knife found in his body were also tested

for DNA, and contained both the victim's and defendant's DNA. Only defendant

                                                                        A-2932-15T4
                                       4
and the victim were DNA contributors on the knife, and Clark agreed that a

reason for this was that a knife typically gets washed.

      The State's expert witness opined that the cause of the victim's death was

multiple blunt trauma and sharp force injuries. He concluded the victim's head

and face injuries could not have been inflicted by punches due to the severity of

the facial deformity inflicted. Examination of the injuries to the victim's chest

showed a circular pattern with a hole in the center, consistent with being hit by

a dumbbell. Due to the small amount of blood in the victim's abdominal cavity,

the knife stab to that area was inflicted after his death.

      The owner of an auto detail shop testified that on the morning of May 31,

2013, he noticed cuts on the defendant's hands and, rather than shake hands,

defendant used his elbow.

      John Bertini, the owner of a car wash and a longtime friend of defendant,

testified defendant arrived in his pickup truck on the morning of May 31, 2013

at approximately 11:30 a.m. and, after the truck was washed, the two went to

Bertini's office, where defendant took out a container and offered him a "bump"

of Ketamine. Defendant then admitted he killed Niko, stating "I did it, I killed

John Niko." Defendant said Niko was stealing customers.




                                                                         A-2932-15T4
                                         5
      A detective testified that during a search of defendant's home in North

Plainfield, he found a "Tic Tac" container with Ketamine inside and a separate

cylinder on a keychain also containing Ketamine.

      Defendant testified at trial, denied killing Niko, and related the following.

He and Niko purchased Ketamine from a man named "Busy." Niko owed Busy

$3000 for Ketamine, so defendant tried to arrange a meeting between Busy and

Niko on May 31 at 5:00 a.m. When Niko did not arrive for the meeting,

defendant led Busy to Niko's home, parked in the driveway while Busy parked

on the street, and told Busy to wait outside while he spoke to Niko.

      Defendant explained to Niko that he brought Busy to address the debt .

Niko was drinking heavily and ingesting Ketamine. He was upset defendant

brought Busy to his home, the two argued about the issue, and then the two

fought.   Niko threw the first punch and defendant countered with several

punches that knocked Niko down. Defendant did not use a dumbbell or knife

during the fight. When defendant opened the front door to leave, Busy and

another man were standing right outside and, although he did not see the men

enter, defendant assumed they entered Niko's home.




                                                                          A-2932-15T4
                                        6
      Defendant denied telling anyone he killed Niko. Any marks defendant

had on his hands were not from the fight with Niko. He may have touched a

kitchen knife or a workout dumbbell while at Niko's residence in the past.

      Defendant raises the following issues on appeal:

            POINT I: THE TRIAL COURT ERRED BY
            FAILING TO SUPPRESS THE VIDEO-TAPED
            STATEMENT MADE BY DEFENDANT DURING
            HIS CUSTODIAL INTERROGATION.

            POINT II: THE COURT ERRED IN PERMITTING
            EVIDENCE OF THE DEFENDANT'S DRUG USE TO
            BE PRESENTED TO THE JURY IN THIS CASE
            SUBSTANTIALLY       PREJUDICING     THE
            DEFENDANT.

            POINT III: THE PROSECUTOR MADE IMPROPER
            SUMMATION COMMENTS THAT DEPRIVED
            DEFENDANT OF THE RIGHT TO DUE PROCESS
            OF LAW AND A FAIR TRIAL.

            POINT IV: THE SENTENCE             IMPOSED       WAS
            MANIFESTLY EXCESSIVE.

            POINT V: THE AGGREGATE ERRORS DENIED
            DEFENDANT A FAIR TRIAL.

                 I. Motion to Suppress Defendant's Statement

      At approximately 4:00 p.m. on May 31, 2013, defendant was taken to the

North Plainfield Police Department. He was questioned by Sergeant Michael




                                                                       A-2932-15T4
                                       7
Nugent and Detective Aaron Lacey from the Hunterdon County Prosecutor's

Office in an interview room that was video and audio-recorded.

        They advised defendant of his constitutional rights and confirmed he

understood them. Defendant then informed the detectives he wanted his lawyer.

Defendant gave the names of several lawyers, said that he would not talk to

anyone, and wanted to know what happened to Niko. The detectives told

defendant he did not have to talk to them, then told defendant that Niko was

dead and left the room. The detectives returned and told defendant he was not

free to leave because they were conducting an investigative detention.

        While defendant was alone in the interview room, he damaged the audio

equipment recording the interview. He was arrested for causing the damage and

put in a holding cell.     According to Sergeant Michael Schutta, defendant

initiated a discussion, apologizing for the damage and saying he was willing to

talk.   Schutta advised defendant that he had invoked his right to counsel.

Defendant said he wanted to speak to the prosecutor's office and Schutta relayed

defendant's request to Nugent and Lacey.

        Defendant told the prosecutor's officers: "I don't want a lawyer" and said

he "was trying to cover his track." They read defendant his Miranda1 rights


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                         A-2932-15T4
                                         8
again, informing defendant afterwards that his decision "to waive these rights is

not final and you may withdraw your waiver at any time." Defendant asked to

waive his rights.

      The officers resumed questioning defendant. Defendant admitted he was

at Niko's home that morning and claimed he was walking out with his laptop

computer bag when he saw a man he did not know walking in. Defendant said

he was there just to pick up his laptop. The officers informed defendant he was

a suspect in the homicide, and they had obtained a search warrant for defendant's

home and pickup truck.

      Prior to being informed of the search warrant, defendant and the officers

had an exchange regarding defendant's hospitalization for suicidal thoughts. He

concluded that discussion stating: "That's it, man, that's a wrap. What time is

it?" The discussion continued.

      Later on, when the detectives suggested that perhaps while defendant was

at Niko's home, they were using Ketamine, Niko turned on defendant, and a

scuffle ensued resulting in defendant killing Niko in self-defense. Defendant

asked:

            MR. PASSARELLI: Do you think I should get
            a lawyer at this point?

            DETECTIVE LACEY: He was drinking like a

                                                                         A-2932-15T4
                                       9
            fiend.

            MR. PASSARELLI: Can I get a lawyer at
            this point?

            DETECTIVE LACEY: That's up to you.
            Listen, if you don't wanna talk to me anymore, I can
            leave the room.

            MR. PASSARELLI: I mean, listen, man.

            DETECTIVE LACEY: I'm on -- here's the
            thing though, Gary. I'm on your side.

            MR. PASSARELLI: If that's your theory,
            bro, that's your theory.

            DETECTIVE LACEY: It's -- Gary, I --

            MR. PASSARELLI: I am not confessing to anything
            cause I didn't do anything.

Afterward, defendant continued the interview, admitted he and Niko got into a

physical alteration, but maintained he did not kill Niko.

      "[O]n appellate review, a trial court's factual findings in support of

granting or denying a motion to suppress must be upheld when 'those findings

are supported by sufficient credible evidence in the record.'" State v. S.S., 229

N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). After

a testimonial hearing, "appellate courts defer to the trial court's factual findings

because the trial court has the 'opportunity to hear and see the witnesses and to


                                                                           A-2932-15T4
                                        10
have the "feel" of the case, which a reviewing court cannot enjoy.'"          Ibid.

(quoting State v. Elders, 192 N.J. 224, 244 (2007)). An appellate court "should

not disturb a trial court's factual findings unless those findings are 'so clearly

mistaken that the interests of justice demand intervention and correction.'" Ibid.

(quoting Gamble, 218 N.J. at 425).

      Defendant filed a motion to suppress his statements to the police, arguing

the comments "that's a wrap" and "can I get a lawyer at this point?" were

invocations of defendant's right to remain silent and right to an attorney. The

motion court found that the detectives honored defendant's initial invocation of

his right to counsel. The court stated the detectives initially stopped questioning

defendant, reminded him of his request to speak to his attorney, and never asked

any further questions about the homicide but instead led him to a jail cell. The

court held it was defendant who voluntarily reinitiated the questioning by the

detectives. The court pointed to the fact that defendant apologized for damaging

the audio equipment and confirmed that he understood his rights and was

waiving them. The court also rejected defendant's argument that the Ketamine

in defendant's system had any effect on his ability to provide a knowing,

voluntary and intelligent waiver at that time.




                                                                          A-2932-15T4
                                       11
      The motion court also rejected defendant's argument that during the

interview he re-invoked his right to remain silent a second time. The court

denied defendant's motion to suppress his statements to the detectives.

      "The right against self-incrimination is guaranteed by the Fifth

Amendment to the United States Constitution and [New Jersey's] common law,

now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503."

S.S., 229 N.J. at 381 (quoting State v. Nyhammer, 197 N.J. 383, 399 (2009)).

"[P]olice must adequately and effectively advise an individual of his [or her]

right to remain silent, and other rights, before questioning." Id. at 382.

      Under the New Jersey privilege against self-incrimination, even a

suspect's ambiguous assertion of the right to remain silent "must be diligently

honored." Ibid. (quoting State v. Bey (Bey II), 112 N.J. 123, 142 (1988)).

"Words used by a suspect are not to be viewed in a vacuum, but rather in 'the

full context in which they were spoken.'" Ibid. (quoting State v. Roman, 382

N.J. Super. 44, 64 (App. Div. 2005)).

      To determine the voluntariness of a defendant's confession, a court must

look "to the totality of the circumstances to assess whether the waiver of rights

was the product of free will or police coercion." Nyhammer, 197 N.J. at 402.

The circumstances a court should consider include a defendant's "age, education


                                                                             A-2932-15T4
                                        12
and intelligence, advice as to constitutional rights, length of detention, whether

the questioning was repeated and prolonged in nature and whether physical

punishment or mental exhaustion was involved." Ibid. (quoting State v. Presha,

163 N.J. 304, 313 (2000)).

      "If an accused does initiate a conversation after invoking his rights, that

conversation may be admissible if the initiation constitutes a knowing,

intelligent, and voluntary waiver of the accused's rights." State v. Chew, 150

N.J. 30, 61 (1997) (citing Miranda, 384 U.S. at 444). "A suspect 'initiates' if he

invites conversation on the crimes for which he is being held."          State v.

Melendez, 423 N.J. Super. 1, 30 (App. Div. 2011) (citing State v. Fuller, 118

N.J. 75, 82 (1990)).

      Here, defendant reinitiated the conversation with Detective Schutta,

stating that he no longer wanted an attorney and wanted to speak with the

detectives.   The detectives re-read defendant's Miranda rights and advised

defendant he could re-invoke those rights at any time. Defendant indicated he

understood and proceeded to talk to the detectives about the victim.          The

detectives scrupulously honored defendant's invocation of his rights and

defendant knowingly and voluntarily waived those rights. See Melendez, 423

N.J. Super. at 30.


                                                                         A-2932-15T4
                                       13
          The motion court found that the comments "That's it man. That's a wrap,"

read in their proper context, were about moving the conversation past

defendant's mental health issues and not about invoking his right to remain

silent.

          Defendant's statements of "Do you think I should get a lawyer at this

point?" and "Can I get a lawyer?" are closer to an ambiguous invocation of

defendant's right to counsel.      The court applied the proper standard when

reviewing these statements under State v. Alston, 204 N.J. 614, 623 (2011). In

Alston, where the defendant asked a hypothetical question about getting an

attorney and the detective responded "that's on you," the Court concluded the

defendant's question was only a question, not an invocation of his rights, and the

detective's response was truthful and accurate. Id. at 626-27. Here, the court

reasoned that, as in Alston, defendant was simply asking the detective for his

opinion about obtaining an attorney and did not invoke his right to counsel.

Detective Lacey's response was truthful and accurate. Read in the context of the

entire statement, where defendant clearly understood his right to remain silent,

having invoked that right initially, these later statements were not indicative of

an intention to revoke his waiver.




                                                                          A-2932-15T4
                                         14
                       II. Admissibility of Drug Evidence

      "[A] trial court's evidentiary rulings are entitled to deference absent a

showing of an abuse of discretion, i.e., there has been a clear error of judgment."

State v. Nantambu, 221 N.J. 390, 402 (2015) (alteration in original) (quoting

State v. Harris, 209 N.J. 431, 439 (2012)).

      Defendant argues that the evidence of CDS did not conform to the

indictment and was overly prejudicial as evidence of prior bad acts. He argues

for the first time on appeal that the court constructively amended defendant's

indictment by allowing the State to prove possession of CDS at a different

location than charged in the indictment.

      The State counters that although the indictment was incorrect because it

charged defendant with possession of the CDS at the murder site in Raritan, as

opposed to defendant's home in North Plainfield, where the CDS was found,

defendant was on notice of this fact and did not raise it to the trial court. The

State argues defendant was given a full and fair opportunity to mount a defense

and the fact that he did not point this discrepancy out to the trial court means he

was not prejudiced.




                                                                          A-2932-15T4
                                       15
       There are "two types of variations between the indictment and evidence."

United States v. Castro, 776 F.2d 1118, 1121 (3d Cir. 1985). These variations

are:

             amendments, which occur when the charging terms of
             the indictment are altered, and variances, where the
             charging terms are unchanged, but the evidence at trial
             proves facts materially different from those alleged in
             the indictment. The difference between these variations
             is not merely academic, for we observed that Supreme
             Court precedent indicated that if the variation were
             characterized as an amendment, it would constitute a
             per se violation of the fifth amendment's grand jury
             clause. Variances, however, are subject to less strict
             case-by-case inquiry, and would only constitute
             reversible error in those cases where the variance
             prejudiced the defendant's defense.

             [Id. at 1121-22 (citations omitted).]

       An indictment "must sufficiently identify the criminal event to enable the

accused to defend and to defeat a subsequent prosecution for the same offense;

hence, the indictment must allege all the essential facts of the crime." State v.

Lamb, 125 N.J. Super. 209, 216 (App. Div. 1973). If evidence presented at trial

"substantially adhere[s] to that outlined in the indictment and the indictment

supplies sufficient information to apprise defendant of the actual charge against

him [or her], thus avoiding any possible prejudice, and protects him [or her]




                                                                         A-2932-15T4
                                       16
against a subsequent prosecution for the same offense, the variance will be

deemed immaterial." Id. at 217.

      Defendant did not raise his argument concerning a constructive

amendment to the indictment to either the motion court during the State's motion

in limine hearing, nor during trial. The plain error standard thus applies and this

error "shall be disregarded by the appellate court unless it is of such a nature as

to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.

      The charging terms were not altered, but rather the evidence proved

possession of the CDS was not in Raritan as charged, but in North Plainfield.

Therefore, the variation is not an amendment but rather a variance. See Castro,

776 F.2d at 1121. The test then becomes whether defendant was prejudiced by

the variance. Id. at 1121-22. Defendant was on notice of the proofs and had

ample time to mount a defense. He was not prejudiced by the variance. See

Lamb, 125 N.J. Super. at 217.

      Defendant also argues the trial court erred in allowing testimony regarding

statements defendant made to Bertini regarding defendant's drug use.             He

contends the statements are prohibited under N.J.R.E. 404(b). Defendant argues

Bertini's statements were other-crimes evidence and should have been analyzed

under the Cofield standard. See State v. Cofield, 127 N.J. 328, 333-35 (1992).


                                                                          A-2932-15T4
                                       17
      "Once evidence is deemed relevant, it is admissible, N.J.R.E. 402, unless

'its probative value is substantially outweighed by the risk of [ ] undue

prejudice,' N.J.R.E. 403, or some other bar to its admission is properly

interposed."     Nantambu, 221 N.J. at 402 (alteration in original) (quoting

Brenman v. Demello, 191 N.J. 18, 34-35 (2007)).

      "[E]vidence of other crimes, wrongs, or acts is not admissible to prove the

disposition of a person in order to show that such person acted in conformity

therewith." N.J.R.E. 404(b).

      "To aid courts and litigants in making the threshold determination of

whether the evidence relates to 'other crimes' or is intrinsic to the charged

crime," Rose instructs that a court must look to the applicable test provided by

United States v. Green, 617 F.3d 233 (3d Cir. 2010). State v. Rose, 206 N.J.

141, 180 (2011). The test "provides a workable, narrow description of what

makes uncharged acts intrinsic evidence of the charged crime, and therefore not

subject to Rule 404(b)'s directed purpose requirements." Ibid. Our Supreme

Court quoted the Third Circuit's explanation:

               [W]e . . . reserve the "intrinsic" label for two narrow
               categories of evidence. First, evidence is intrinsic if it
               "directly proves" the charged offense. This gives effect
               to Rule 404(b)'s applicability only to evidence of "other
               crimes, wrongs, or acts." If uncharged misconduct
               directly proves the charged offense, it is not evidence

                                                                            A-2932-15T4
                                          18
             of some "other" crime. Second, "uncharged acts
             performed contemporaneously with the charged crime
             may be termed intrinsic if they facilitate the
             commission of the charged crime." But all else must be
             analyzed under Rule 404(b).

             [Rose, 206 N.J. at 180 (quoting Green, 617 F.3d at 248-
             49).]

      The court held Bertini's statements were intrinsic to the possession of CDS

charge because the statements directly proved defendant had knowledge of his

possession of the ketamine. Bertini stated defendant offered him a "bump" of

ketamine from a small container that was later determined to be the same

container police found in defendant's home. The court did not err in holding

Bertini's statements were intrinsic evidence that directly proved the charged

CDS offense, and not extrinsic evidence of other crimes.

                           III. Prosecutorial Misconduct

      A reviewing court must "evaluat[e] the severity of [prosecutorial]

misconduct and its prejudicial effect on the defendant's right to a fair trial . . . ."

State v. Wakefield, 190 N.J. 397, 437 (2007) (first alteration in original)

(quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)).             "[P]rosecutorial

misconduct is not grounds for reversal of a criminal conviction unless the

conduct was so egregious as to deprive defendant of a fair trial." Ibid. (quoting

Papasavvas, 163 N.J. at 625). "[T]o justify reversal, the prosecutor's conduct

                                                                              A-2932-15T4
                                         19
must have been 'clearly and unmistakably improper,' and must have substantially

prejudiced defendant's fundamental right to have a jury fairly evaluate the merits

of his defense." Id. at 438 (quoting Papasavvas, 163 N.J. at 625).

      Defendant argues the prosecutor made improper comments during

summation by incorrectly suggesting that the knife found in the victim's

abdomen had been washed before the incident, thus eliminating prior DNA

contributors. The court overruled defendant's objection. Defendant also argues

the prosecutor improperly bolstered the law enforcement officers, by stating the

officers "believe in justice" and should be found credible.

      Prosecutors "should not make inaccurate legal or factual assertions during

a trial and . . . must confine their comments to evidence revealed during the trial

and reasonable inferences to be drawn from that evidence." Wakefield, 190 N.J.

at 437 (quoting State v. Reddish, 181 N.J. 553, 641 (2004)). A prosecutor is,

however, "afforded considerable leeway in making opening statements and

summations." State v. Echols, 199 N.J. 344, 359-60 (2009) (quoting State v.

Williams, 113 N.J. 393, 447 (1988)). A prosecutor "is entitled to be forceful

and graphic in his [or her] summation to the jury, so long as he [or she] confines

himself to fair comments on the evidence presented." State v. DiPaglia, 64 N.J.

288, 305 (1974).


                                                                          A-2932-15T4
                                       20
      Here, the prosecutor did not commit misconduct that was "so egregious as

to deprive defendant of a fair trial." See Wakefield, 190 N.J. at 437. Expert

testimony revealed defendant's DNA was found on the knife used to stab the

victim. The expert testified that one explanation for only defendant's and the

victim's DNA on the knife was because the knife was washed prior to the

incident. The prosecutor's statement thus did not misrepresent the evidence, but

was a "reasonable inference[] to be drawn from that evidence." See id. at 437-

38.

      The prosecutor's statements regarding the police officers' credibility and

that they "believe in justice," are similar to those considered improper in State

v. Murphy, 412 N.J. Super. 553, 559-63 (App. Div. 2010) (finding it improper

for a prosecutor to state in summation that the police had "no stake in the

outcome of this proceeding"). The statements, however, do not amount to

conduct "so egregious as to deprive defendant of a fair trial." See Wakefield,

190 N.J. at 437. The evidence against defendant was overwhelming. Thus, the

improper prosecutorial statements did not deprive defendant of a fair trial. See

State v. R.B., 183 N.J. 308, 331-32 (2005) (declining to reverse although the

prosecutor improperly argued the police had no motive to lie).




                                                                        A-2932-15T4
                                      21
                                   IV. Sentence

      We apply "a deferential standard of review to the sentencing court's

determination, but not to the interpretation of a law." State v. Bolvito, 217 N.J.

221, 228 (2014).      "Appellate review of a criminal sentence is limited; a

reviewing court decides whether there is a 'clear showing of abuse of

discretion.'" Ibid. (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). We

may not "substitute [our] judgment for those of our sentencing courts." State v.

Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)).

The test is "whether, on the basis of the evidence, no reasonable sentencing court

could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383,

388 (1989).

      We must ensure the trial court followed the appropriate sentencing

guidelines. We must affirm a sentence unless:

              (1) the sentencing guidelines were violated; (2) the
              aggravating and mitigating factors found by the
              sentencing court were not based upon competent and
              credible evidence in the record; or (3) "the application
              of the guidelines to the facts of [the] case makes the
              sentence clearly unreasonable so as to shock the
              judicial conscience."

              [State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in
              original) (quoting State v. Roth, 95 N.J. 334, 363-64
              (1984)).]


                                                                         A-2932-15T4
                                        22
      To determine the appropriate sentence, a sentencing court must consider

aggravating and mitigating factors pursuant to N.J.S.A. 2C:44-1(a) and (b). The

court found aggravating factors one, two, three, and nine and found mitigating

factor six, giving it minimal weight, but refused to find mitigating factor four,

stating defendant's drug and alcohol use did not excuse his criminal behavior.

Aggravating factor one is that the crime was committed in an "especially

heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1(a)(1); factor two is "[t]he

gravity and seriousness of harm inflicted on the victim" and whether the victim

is particularly vulnerable, N.J.S.A. 2C:44-1(a)(2). Defendant does not object to

these findings. Mitigating factor six is that a defendant "has compensated or

will compensate the victim of his conduct for the damage or injury that he [or

she] sustained," N.J.S.A. 2C:44-1(b)(6), and factor four is "substantial grounds

tending to excuse or justify the defendant's conduct," N.J.S.A. 2C:44-1(b)(4).

      The court sentenced defendant to a sixty-year term of imprisonment for

murder with two concurrent five-year terms of imprisonment for the knife and

CDS charges. Under NERA, defendant was obligated to serve fifty-one years

before being eligible for release. Defendant was forty-two years old at the time

of sentencing and thus was essentially sentenced to spend the rest of his life in

prison without the possibility of parole.


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      Although defendant does not appeal aggravating factors one and two, we

note that it is a close question as to whether this murder was particularly heinous

when compared to other murders, and whether the harm inflicted on the victim

was beyond that of most other murders. See State v. Soto, 340 N.J. Super. 47,

71-72 (App. Div. 2001) (affirming the application of aggravating factor one in

an aggravated manslaughter and felony murder case where the defendant

brutally and viciously attacked the victim). An element of the offense may not

be cited as an aggravating factor to increase punishment. Fuentes, 217 N.J. at

74-75.

      Defendant argues his sixty-year sentence was excessive because it was

defendant's first indictable conviction and the minimum sentence of thirty years

without parole is sufficiently harsh. Defendant further argues the sentencing

court erred by finding aggravating factor three, N.J.S.A. 2C:44-1(a)(3), because

the court "failed to articulate how there was a specific risk that this defendant

would commit another offense."          This was defendant's first indictable

conviction. Defendant's prior history, which began in 1995, consisted of a

completed twelve-month term of PTI for possession of a CDS in 2001, a final

restraining order against defendant by his brother, and nine disorderly persons

convictions for offenses including simple assault, disorderly conduct,


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harassment, and creating a disturbance.         The trial court concluded that

defendant's criminal history demonstrated "a loss of control and continued

assaultive behavior" necessitating a longer sentence. We disagree. Although

defendant had a history of petty offenses, the evidence that defendant would

reoffend at the age of seventy, after serving the mandated minimum of thirty

years, was scant.

      Regarding aggravating factor nine, "[t]he need for deterring the defendant

and others from violating the law," N.J.S.A. 2C:44-1(a)(9), defendant argues the

court erred because the record did not establish a special need to deter defendant.

The court noted defendant's failure to show any remorse or take an y

responsibility for his actions. A defendant's lack of remorse and consistent

denial of wrongdoing may establish a need to deter the defendant from similar

conduct in the future. N.J.S.A. 2C:44-1(a)(9); State v. Rivers, 252 N.J. Super.

142, 153-54 (App. Div. 1991). However, the court must consider the defendant's

parole eligibility.   N.J.S.A. 2C:44-1(c)(2).     In a murder case where the

mandatory minimum sentence is thirty years without parole, using defendant's

lack of remorse as a reason to increase that penalty is perilously close to a

penalty for going to trial. See N.J.S.A. 2C:44-1(c)(1) (stating that going to trial

in itself may not be considered in sentencing). Under these circumstances,


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aggravating factors three and nine were not based on credible evidence and

should not have been considered. See State v. Kromphold, 162 N.J. 345, 355

(2000). The imposition of sixty years in prison with an 85% parole disqualifier

on a middle-aged offender with no prior indictable convictions, who would be

ninety years old when he is eligible for parole, shocks our judicial conscience.

See State v. Blackmon, 202 N.J. 283, 297 (2010) (citing Roth, 95 N.J. at 364).

      Moreover, empirical evidence suggests that incarceration of inmates, such

as defendant, into old age generally results in overburdened prisons while

offering little in terms of public safety. The Pew Charitable Trusts & the John

D. and Catherine T. MacArthur Foundation, State Prison Health Care Spending:

An             Examination,                9            (Jul.             2014),

https://www.pewtrusts.org/~/media/assets/2014/07/stateprisonhealthcarespendi

ngreport.pdf. Similarly, "studies demonstrate that the risk of recidivism is

inversely related to an inmate's age." United States v. Howard, 773 F.3d 519,

532-33 (4th Cir. 2014) (citing Tina Chiu, It's About Time: Aging Prisoners,

Increasing Costs, and Geriatric Release, Vera Inst. of Justice (Apr. 2010),

https://storage.googleapis.com/vera-web-assets/downloads/Publications/its-

about-time-aging-prisoners-increasing-costs-and-geriatric-

release/legacy_downloads/Its-about-time-aging-prisoners-increasing-costs-


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                                      26
and-geriatric-release.pdf) (vacating the life sentence of a forty-one-year-old

defendant as substantively unreasonable where the defendant had been

considered a potential recidivist based on stale crimes).

      We reverse and remand for resentencing without consideration of

aggravating factors three and nine and with consideration of defendant's age at

his earliest possible release.

                                 V. Cumulative Error

      To reverse and remand for a new trial based on cumulative error, an

appellate court must find "that the probable effect of the cumulative error was

to render the underlying trial unfair." Wakefield, 190 N.J. at 538. Applied to

these facts, the argument is without sufficient merit to require further discussion.

R. 2:11-3(e)(2).

      Affirmed in part and reversed and remanded in part. We do not retain

jurisdiction.




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