                        NOT FOR PUBLICATION WITHOUT THE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-3706-15T3

STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JOHN N. MAHONEY,

     Defendant-Appellant.
__________________________________

              Submitted May 8, 2018 – Decided July 19, 2018

              Before Judges Reisner, Hoffman and Gilson.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Indictment No.
              08-06-0996.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Frank M. Gennaro, Designated
              Counsel, on the brief).

              Andrew C. Carey, Middlesex County Prosecutor,
              attorney for respondent (Nancy A. Hulett,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant John N. Mahoney appeals from a March 15, 2016

judgment of conviction, after a jury found defendant guilty of
aggravated     manslaughter,   N.J.S.A.      2C:11-4(a),   possession       of

weapons for unlawful purposes, N.J.S.A. 2C:39-4(a), and hindering

apprehension     or   prosecution,       N.J.S.A.   2C:29-3(b)(4).          At

sentencing, the trial judge imposed the following prison terms:

twenty-years,    with   an   eighty-five     percent   period   of    parole

ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-

7.2, for aggravated manslaughter;          a concurrent five years with

three-years parole ineligibility for possession of a weapon; and

a consecutive four years for hindering.

     Defendant presents the following arguments for our review:

                               POINT ONE

          THE TRIAL COURT'S REPEATED ADMISSION OF OTHER
          CRIMES EVIDENCE WITHOUT CONDUCTING A HEARING
          PURSUANT TO N.J.R.E. 104 AND WITHOUT THE
          NECESSARY    LIMITING   INSTRUCTION    DENIED
          DEFENDANT A FAIR TRIAL.

                               POINT TWO

          THE JURY INSTRUCTION ON SELF-DEFENSE WAS
          PLAINLY ERRONEOUS AS IT LIMITED THE DEFENSE
          TO THE MURDER AND WEAPONS OFFENSES AND BECAUSE
          IT WRONGFULLY INSTRUCTED ON THE DUTY TO
          RETREAT. (PARTIALLY RAISED BELOW)

                               POINT THREE

          EVIDENCE OF STATEMENTS FROM NON-WITNESSES WAS
          IMPROPERLY ADMITTED.




                                     2                               A-3706-15T3
                                POINT FOUR

            DEFENDANT WAS PREJUDICED BY THE ADMISSION OF
            TESTIMONY BY THE STATE'S EXPERT WHICH WAS NOT
            CONTAINED IN HIS REPORT.

                                POINT FIVE

            THE    PROSECUTOR'S  SUMMATION   IMPROPERLY
            DENIGRATED THE DEFENSE EXPERT. (Not Raised
            Below)

                                POINT SIX

            DEFENDANT'S TWENTY YEAR NO EARLY RELEASE
            SENTENCE WITH A CONSECUTIVE FOUR YEAR TERM FOR
            HINDERING CONSTITUTED AN EXCESSIVE SENTENCE.

     We    affirm    defendant's    conviction   and     sentence    on   the

aggravated manslaughter and hindering counts, but remand for the

trial   court   to   vacate   the   sentence   imposed   on   the   unlawful

possession of a weapon count, which the court merged.               We first

generally describe the facts surrounding the crimes, then address

each of defendant's specific arguments, and their attendant facts,

in turn.

                                      I

     On the morning of December 27, 2007, defendant called police

and reported that an intruder shot him and his father in their

home.     When police arrived, they found defendant's father lying

dead in a reclining chair in the living room, with his feet up and

a blanket over him, and three gunshot wounds to the right side of



                                      3                              A-3706-15T3
his head.     While defendant sustained a gun-shot wound in the left

arm, police observed a "muzzle-burn" on his skin.

      After   receiving    medical   treatment    at   a   nearby   hospital,

defendant spoke to police, who described him as calm and relaxed.

Notably, defendant never asked about his father.

      Police took defendant back to the police station to take a

recorded statement.       Defendant told police he went to dinner with

a friend the previous evening, then played computer games and

instant   messaged   another    friend    until   about     7:00    a.m.      At

approximately 7:30 a.m., defendant heard gunshots, ran into the

living room, struggled with the intruder, who shot him in the arm,

then disarmed the intruder and fired at him as the intruder fled

out the back door.

      While taking defendant's statement, the police learned of

conflicting crime scene evidence and that defendant's gunshot

wound appeared self-inflicted.           They immediately read him his

Miranda1 rights and began interrogating him.           Defendant adhered to

his story for more than three hours and told officers he and his

father had a good relationship and his father never abused him.

He denied accidentally shooting his father, as police suggested.

Eventually, defendant admitted to having some problems with his



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

                                     4                                 A-3706-15T3
father over football and school.       He stated he had been thinking

about killing his father for some time, but had abandoned the

idea.

     As the interrogation continued, defendant told police he had

gone into the kitchen while his father slept, picked up a gun he

knew was loaded, and without realizing the safety was off, pulled

the trigger, causing the gun to discharge into the hallway.        His

father woke up and defendant pointed the gun at him and shot him

for "no reason."    Then defendant said he shot his father because

he yelled and it startled him.         Defendant claimed he fired so

quickly his father had no time to move after he opened his eyes

and yelled out.    Thereafter, he shot himself in an effort to cover

up what he had done.

     Defendant then told police his father abused him and it was

more than he "could live with."         He claimed his father "went

beserk" after the gun went off, and he thought, "I've got to get

rid of him."   The police arrested defendant and charged him with

murder.   After indictment and trial, the jury found him guilty of

the lesser-included offense of aggravated manslaughter, along with

illegal possession of a weapon and hindering.

                                  II

     Defendant first contends he did not receive a fair trial

because the trial court erred by allowing the State to admit prior

                                  5                           A-3706-15T3
bad acts evidence on multiple occasions, without holding a hearing

or providing the jury with a limiting instruction.    We disagree.

     "Appellate courts generally defer to trial court rulings on

the admissibility of evidence of other crimes, unless those rulings

constitute an abuse of discretion."   State v. Erazo, 126 N.J. 112,

131 (1991) (citation omitted).   Where there has been no objection

to the admission of inadmissible hearsay testimony, an appellate

court must consider whether the error was "clearly capable of

producing an unjust result."   R. 2:10-2; State v. Branch, 182 N.J.

338, 353 (2005).

     Pursuant to N.J.R.E. 404(b), "[e]xcept as otherwise provided

by [N.J.R.E.] 608(b), evidence 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."   However,

"[s]uch evidence may be admitted for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident when such matters are

relevant to a material issue in dispute."    N.J.R.E. 404(b).   "The

underlying danger of admitting other-crime evidence is that the

jury may convict the defendant because he is 'a "bad" person in

general.'"   State v. Cofield, 127 N.J. 328, 336 (1992) (quoting

State v. Gibbons, 105 N.J. 67, 77 (1987)).



                                 6                          A-3706-15T3
       A four-prong test guides the admissibility of evidence of

other crimes or wrongs:

             1. The evidence of the other crime must be
             admissible as relevant to a material issue;

             2. It must be similar in kind and reasonably
             close in time to the offense charged;

             3. The evidence of the other crime must be
             clear and convincing; and

             4. The probative value of the evidence must
             not be outweighed by its apparent prejudice.

             [Id. at 338 (citation omitted).]

       Here, the trial court allowed testimony regarding several

prior bad acts including testimony about defendant being lazy,

going to a strip club, soliciting the housekeeper and his father's

girlfriend for sex, selling alcohol in high school, and breaking

into an ATM.    The court also permitted the State to cross-examine

defendant regarding a statement that he kept a short list of people

he knew that he was not planning to murder.          Finally, the court

allowed a conversation between defendant and a friend, who was

accused of theft, in which defendant told the friend he should

plan ahead when committing theft so as not to get caught.

       Defense counsel objected to some of that testimony, but not

all.    The State argued the testimony was admissible to rebut the

claim that defendant was afraid of his father, that he did not

have   the   characteristics   of   a   battered   child,   that   he   was

                                    7                              A-3706-15T3
financially-motivated to murder his father, or his willingness to

devise a plan.     In many of the objections, the court considered

the relevancy, the probative versus prejudicial impact, and when

the bad acts occurred.        Defense counsel did not request any

limiting instructions.

     We find the testimony regarding selling alcohol at school and

planning to break into an ATM admissible under N.J.R.E. 404(b) as

proof that defendant had a financial motive to kill his father.

The testimony regarding the list of people and the conversation

with the friend concerning how to plan a theft are also admissible

under N.J.R.E. 404(b) as proof that defendant was planning his

father's murder.

     The   State   contends   it   offered   the     testimony    regarding

defendant's laziness, going to a strip club, and solicitation of

sex to rebut defendant's argument that he was afraid of his father.

Although   rebuttal   of   self-defense   evidence    is   not   explicitly

listed in N.J.R.E. 404(b), the statute uses the language "such

as," indicating evidence can be admitted for purposes other than

those listed "when such matters are relevant to a material issue

in dispute."   Here, defendant argues he killed his father in self-

defense because he was afraid of him.         Therefore, the State is

entitled to admit evidence of specific acts showing defendant was

not afraid of his father.

                                    8                               A-3706-15T3
       Consideration of the Cofield factors supports admissibility

as well.     All of the acts are relevant to material issues, as

previously noted.    The evidence is clear and convincing as there

are documented conversations and credible witnesses.           All of the

acts occurred not long before the killing; however, the acts are

not particularly similar to the crime committed.          Although the

testimony likely had some prejudicial effect, the trial court did

not clearly abuse its discretion in allowing the testimony.

       Furthermore, defendant received a rather favorable verdict

considering defendant shot his father while he sat in a recliner

with a blanket around him, strongly suggesting any error did not

produce an unjust result.        Accordingly, we conclude the trial

court did not abuse its discretion in admitting the evidence to

rebut various aspects of the defense, and any error was harmless.

                                   III

       Defendant next contends the trial court committed plain error

in its charge on self-defense.     Specifically, defendant argues the

jury   charge   should   have   explicitly   stated   self-defense     was

available for both murder and all lesser-included offenses.              We

disagree    that   these   circumstances     required   such     explicit

instruction.

       When a defendant fails to object to a jury charge, we review

for plain error, and "disregard any alleged error 'unless it is

                                    9                             A-3706-15T3
of such a nature as to have been clearly capable of producing an

unjust result.'"     State v. Funderburg, 225 N.J. 66, 79 (2016)

(quoting R. 2:10-2).      Plain error in jury charges is "[l]egal

impropriety in the charge prejudicially affecting the substantial

rights of the defendant and sufficiently grievous to justify notice

by the reviewing court and to convince the court that of itself

the error possessed a clear capacity to bring about an unjust

result."    State v. Camacho, 218 N.J. 533, 554 (2014) (alteration

in original) (quoting State v. Adams, 194 N.J. 186, 207 (2008)).

     In reviewing any claim of error relating to a jury charge,

"[t]he charge must be read as a whole in determining whether there

was any error."    State v. Torres, 183 N.J. 554, 564 (2005) (citing

State v. Jordan, 147 N.J. 409, 422 (1997)).     In addition, "[t]he

error must be considered in light of the entire charge and must

be evaluated in light 'of the overall strength of the State's

case.'"     State v. Walker, 203 N.J. 73, 90 (2010) (quoting State

v. Chapland, 187 N.J. 275, 289 (2006)).      Furthermore, counsel's

failure to object to jury instructions "gives rise to a presumption

that he did not view [the charge] as prejudicial to his client's

case."     State v. McGraw, 129 N.J. 68, 80 (1992).

     Our Supreme Court "held that a person who acts in self-defense

and 'kills in the honest and reasonable belief that the protection



                                 10                          A-3706-15T3
of his [or her] own life requires the use of deadly force' cannot

be convicted of murder, aggravated manslaughter, or manslaughter."

State v. O'Neil, 219 N.J. 598, 601 (2014) (quoting State v.

Rodriguez, 195 N.J. 165, 172 (2008)).     "Where the evidence could

support self-defense as the justification for a homicide, the

trial court must tell the jury that self-defense is a complete

defense to aggravated and reckless manslaughter as well as to

murder."   State v. Gentry, 439 N.J. Super. 57, 67 (App. Div. 2015)

(citing Rodriguez, 195 N.J. at 174-75).

     Here, defense counsel did not formally object to the jury

instructions; however, he did raise a concern during a preliminary

charge conference that the jury may not understand that self-

defense applies to all charges except hindering.    The trial court

generally advised the jury that it had to acquit defendant if it

found he acted in self-defense.      Additionally, defense counsel

made it clear in his summation that self-defense applied equally

to the lesser-included offenses to murder.   Furthermore, defendant

did not have a viable self-defense claim as his father was unarmed

and sitting in a recliner with a blanket tucked around him;

therefore, Rodriguez did not require the trial court to inform the

jury explicitly that self-defense applies to manslaughter as well

as murder.   Accordingly, we find no error in the jury instructions

regarding self-defense.

                                11                          A-3706-15T3
     Defendant also argues the trial court erroneously instructed

the jury on the requirement to retreat.        Specifically, defendant

claims the court incorrectly instructed the jury that defendant

had a duty to retreat in his own home.        We disagree.

     According to N.J.S.A. 2C:3-4(b)(2), "[t]he use of deadly

force is not justifiable . . . unless the actor reasonably believes

that such force is necessary to protect himself [or herself]

against death or serious bodily harm . . . ."          Furthermore, the

use of deadly force is not justifiable if "[t]he actor knows that

he [or she] can avoid the necessity of using such force with

complete safety by retreating," except "[t]he actor is not obliged

to retreat from his [or her] dwelling, unless he [or she] was the

initial aggressor . . . ."     N.J.S.A. 2C:3-4(b)(2)(b)(i).

     Here, the court omitted from its charge the exception to the

duty to retreat that defendant was "not obliged to retreat from

his dwelling."     Defense counsel failed to object.           We find no

plain   error   because   defendant    was   the   aggressor   here,   and

therefore, had a duty to retreat even though he was in his own

home.   See N.J.S.A. 2C:3-4(b)(2)(b)(i).      Again, defendant's father

was unarmed and sitting in a recliner with a blanket around him

at the time of the shooting, indicating he was not the aggressor.

There was no threat of death or serious bodily injury at that

moment, and therefore no need for defendant to protect himself

                                  12                              A-3706-15T3
with deadly force.      Accordingly, we reject defendant's argument

that the trial court committed plain error in its jury charge

regarding the duty to retreat.

                                    IV

     Defendant contends the trial court committed reversible error

in admitting testimony from the investigator that he spoke to

several unnamed persons during the investigation, all of whom told

him they had no knowledge of defendant's father abusing him.

Again, we disagree.

     Our standard of review on evidentiary rulings is abuse of

discretion.   State v. Weaver, 219 N.J. 131, 149 (2014).       We only

reverse those "rulings that undermine confidence in the validity

of   the   conviction    or    misapply   the   law . . . ."     Ibid.

Consequently, we do "not substitute [our] own judgment for that

of the trial court, unless 'the trial court's ruling is so wide

of the mark that a manifest denial of justice resulted.'"        State

v. J.A.C., 210 N.J. 281, 295 (2012) (quoting State v. Brown, 170

N.J. 138, 147 (2001)).

     First, defendant argues the investigator's testimony was

inadmissible hearsay.         N.J.R.E. 801(c) defines hearsay as "a

statement, other than one made by the declarant while testifying

at the trial or hearing, offered in evidence to prove the truth

of the matter asserted."      "[W]here statements are offered, not for

                                   13                          A-3706-15T3
the truthfulness of their contents, but only to show that they

were in fact made and that the listener took certain action as a

result   thereof,      the   statements    are     not    deemed   inadmissible

hearsay."   Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354, 376

(2007) (citation omitted).        However, when the court admits such

evidence, it should provide the jury with a limiting instruction

regarding the proper use of the evidence.            State v. Maristany, 133

N.J. 299, 309-10 (1993).

      Second, defendant argues he was denied a fair trial because

he was denied the right to confront the witnesses against him.

The Sixth Amendment to the United States Constitution provides

that "[i]n all criminal prosecutions, the accused shall enjoy the

right    . . .   to    be    confronted    with     the     witnesses   against

him . . . ."     U.S. Const. amend. VI.             The text of our state

constitution contains the same language.                 N.J. Const. art. I, ¶

10.

      Here, the trial court allowed the investigator to testify as

to what witnesses told him regarding whether defendant's father

abused defendant.       Defense counsel objected on hearsay grounds,

and the State argued it elicited the testimony not for its truth,

but rather to show why the investigation proceeded the way it did.

Furthermore,     the    State   later     called    several     witnesses    who

testified they never saw defendant's father abuse defendant.                 The

                                     14                                 A-3706-15T3
trial court allowed the testimony; however, it failed to provide

a limiting instruction to the jury.

     Although   the   investigator's   statements      may   have   been

inadmissible and the court did not provide a limiting instruction,

we find no prejudice to defendant in allowing them.           The State

later elicited the same testimony from witnesses, who defendant

had the opportunity to confront.     Accordingly, we find any error

harmless.

                                 V

     Defendant contends he was denied a fair trial when the trial

court permitted the State's expert to offer testimony on matters

not addressed in his report.   We are not persuaded.

     "The admission or exclusion of expert testimony is committed

to the sound discretion of the trial court."    Townsend v. Pierre,

221 N.J. 36, 52 (2015) (citing State v. Berry, 140 N.J. 280, 293

(1995)).    Specifically,   "[t]rial   judges   have    discretion     to

preclude an expert from testifying to opinions not contained in

his or her report or in any other discovery material."         Anderson

v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 72 (App. Div.

2010) (citing Ratner v. Gen. Motors Corp., 241 N.J. Super. 197,

202 (App. Div. 1990)).   We will only reverse the decision of the

trial court for an abuse of that discretion.     Townsend, 221 N.J.

at 53.

                                15                              A-3706-15T3
     Here, the testimony in question deals with a tape recording

of an argument between defendant and his father allegedly showing

abuse.   Neither the defense expert nor the State's expert included

the recording in their reports because a clear version of the

recording was not initially available.               First, the defense expert

attempted    to    testify   regarding       the    recording       and    the     State

objected.    The court allowed the defense expert to testify that

he listened to the tape, it assisted him in assessing defendant's

credibility, and the content supported the defense's abuse theory.

     Next, the State's expert began to testify regarding the

recording.    Defense counsel objected on the same grounds that he

did not include the recording in his report.                  The court ruled the

State could ask the expert about what he heard, but not ask him

how the enhanced tape affected his opinion.                        The court then

instructed    the    jury    to   strike     the    expert's       prior   testimony

regarding    the    recording     and      not     use   it   in    deliberations.

Subsequently, the State only asked the expert if he listened to

the recording, and did not elicit any testimony regarding his

opinion of the recording.

     The trial court precluded the State's expert from offering

an opinion regarding the recording. Furthermore, the court allowed

the defense expert to offer his opinion on the recording despite



                                        16                                       A-3706-15T3
not including it in his report. Accordingly, we reject defendant's

contention he was denied a fair trial.

                                     VI

      Defendant contends he was denied a fair trial when the

prosecutor improperly denigrated the defense expert.           We disagree.

      "[P]rosecutors     in    criminal    cases   are   expected   to   make

vigorous and forceful closing arguments to juries."                 State v.

Frost, 158 N.J. 76, 82 (1999) (citing State v. Harris, 141 N.J.

525, 559 (1995)).         They are "afforded considerable leeway in

closing arguments as long as their comments are reasonably related

to   the   scope   of   the   evidence    presented."     Ibid.   (citations

omitted).     Prosecutors "may comment on facts in the record and

draw reasonable inferences from them . . . ."            State v. Lazo, 209

N.J. 9, 29 (2012) (citing State v. Smith, 167 N.J. 158, 178

(2001)).    However, "prosecutors should not make inaccurate legal

or factual assertions during a trial . . . ."            State v. Reddish,

181 N.J. 553, 641 (2004) (quoting Smith, 167 N.J. at 178).                Nor

may prosecutors denigrate the defense.              Lazo, 209 N.J. at 29

(citing Frost, 158 N.J. at 86).

      Here, in her summation, the prosecutor: (1) argued the defense

expert was not qualified to give opinions on post-traumatic stress

disorder because his background was largely in education; (2)

repeated several times that the expert's opinions could not be

                                     17                              A-3706-15T3
trusted because he was on a "mission" to make a finding consistent

with the defense, and ignored all contradictory evidence; and (3)

argued the evidence did not support the expert's conclusion that

defendant suffered from post-traumatic stress disorder.            Defense

counsel made no objection to the prosecutor's summation.

     Defense counsel also made questionable remarks during his

summation: (1) he mocked the State's expert's statement that he

failed to see how a well-trained police officer would point a gun

at anyone let alone his son, asking "[does] he read the papers?";

(2) he described as "ridiculous" and "preposterous" the expert's

opinion that defendant's father had good intentions for defendant

in pushing him to play football; (3) he asserted that, unlike the

State's expert who was simply an "advocate" for the State, the

defense   expert   was   "painfully"   honest   and   answered   questions

truthfully; (4) he disparaged as "ridiculous" the State's expert's

statement that defendant had many friends; (5) he claimed the

expert did not want to talk to defendant's mother because she

might have said something that "wouldn't fit" with his theory that

defendant had carried out a long-term plan; (6) he asserted the

expert distorted the facts surrounding defendant's childhood; (7)

he stated the expert argued with defense counsel; and (8) he asked

"what planet does [the expert] live on?"



                                  18                               A-3706-15T3
       When viewed side-by-side, defense counsel delivered a far

more inflammatory closing argument attacking the State's expert

than   the   prosecutor's   comments      regarding    the   defense    expert.

Furthermore, the trial judge repeatedly instructed the jury that

the attorney's remarks made in their summations were argument and

not evidence.    We trust the jury followed the court's instruction.

See State v. Smith, 212 N.J. 365, 409 (2012).                Accordingly, we

reject defendant's contention he was denied a fair trial because

of prosecutorial misconduct during the summation.

                                     VII

       Finally, defendant contends the trial court erred in imposing

an excessively long sentence.        We disagree.

       In reviewing a sentence on appeal, we assess the trial court's

"sentencing determination under a deferential standard of review."

State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless,

214 N.J. 594, 606 (2013)).       "We are 'bound to affirm a sentence,

even if [we] would have arrived at a different result, as long as

the trial court properly identifies and balances aggravating and

mitigating    factors   that   are   supported    by    competent      credible

evidence in the record.'"      Ibid. (alteration in original) (quoting

Lawless, 214 N.J. at 606).

       "In determining the appropriate sentence to impose within the

range, judges first must identify any relevant aggravating and

                                     19                                 A-3706-15T3
mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that

apply to the case."    State v. Case, 220 N.J. 49, 64 (2014) (citing

State v. Fuentes, 217 N.J. 57, 72 (2014)).       "The finding of any

factor must be supported by competent, credible evidence in the

record."     Ibid. (citing State v. Roth, 95 N.J. 334, 363 (1984)).

Because "a defendant should be assessed as he stands before the

court on the day of sentencing, . . . the sentencing court must

consider a defendant's relevant post-offense conduct in weighing

aggravating and mitigating factors."        State v. Jaffe, 220 N.J.

114, 116 (2014) (citing State v. Randolph, 210 N.J. 330 (2012)).

     First, defendant contends the trial court improperly relied

on recordings of conversations between defendant and his mother

while defendant was in jail.           The trial court permitted the

prosecutor, over a defense objection, to play excerpts from those

recordings, which the State alleged supported aggravating factor

three (the risk of re-offense).    In the recordings, defendant made

various statements regarding gun violence, physical violence, and

his disdain for rules.      The State also submitted a "hit list"

allegedly maintained by defendant and obtained from a prison

informant.

     At sentencing the court found aggravating factor three (the

risk of re-offense) applied.       The court found the recordings

supported aggravating factor three.         However, the court also

                                  20                         A-3706-15T3
considered "evidence that the defendant denied responsibility for

the crime, has shown a lack of remorse until today . . . [and

has] issues with respect to his ability to control his anger [and]

lying to protect himself."

     We find the trial court properly relied on the post-offense

recordings in analyzing aggravating and mitigating factors.                   See

Jaffe, 220 N.J. at 116.       The court also relied on other competent

credible evidence; therefore, we affirm the finding of aggravating

factor three.

     Second,      defendant   contends   the    twenty-year        sentence   for

manslaughter was excessive.        The court went through each of the

aggravating factors the State requested the court consider.                   The

court then went through all of the mitigating factors defendant

requested   the    court   consider.     In    the   end,    the    court   found

aggravating factors three and nine, and mitigating factors four

and seven, and that the factors were in balance.                    Because the

factors were in balance, the court imposed a mid-point sentence

of twenty years.      See Fuentes, 217 N.J. at 73 (quoting State v.

Natale, 184 N.J. 458, 488 (2005)) ("[I]f the aggravating and

mitigating factors are in equipoise, the midpoint will be an

appropriate    sentence.").      Because      "the   trial    court    properly

identifie[d] and balance[d] aggravating and mitigating factors



                                    21                                   A-3706-15T3
. . . supported by competent credible evidence," we affirm the

twenty-year sentence for aggravated manslaughter.        See Grate, 220

N.J. at 337.

    Third, defendant contends the hindering sentence should have

run concurrent to the sentence for manslaughter.               Our Supreme

Court   adopted   the   following   "criteria   as   general    sentencing

guidelines for concurrent or consecutive-sentencing decisions":

           (1) there can be no free crimes in a system
           for which the punishment shall fit the crime;

           (2) the reasons for imposing either a
           consecutive or concurrent sentence shall be
           separately stated in the sentencing decision;

           (3) some reasons to be considered by the
           sentencing court should include facts relating
           to the crimes, including whether or not:

               (a) the crimes and their objectives were
               predominately independent of each other;

               (b) the crimes involved separate acts of
               violence or threats of violence;

               (c) the crimes were committed at different
               times or separate places, rather than being
               committed so closely in time and place as
               to indicate a single period of aberrant
               behavior;

               (d) any of the crimes involved multiple
               victims;

               (e) the convictions for which the sentences
               are to be imposed are numerous;

           (4) there should be no double counting of
           aggravating factors;

                                    22                             A-3706-15T3
            (5) successive terms for the same offense
            should not ordinarily be equal to the
            punishment for the first offense . . . .[2]

            [State v. Yarbough, 100 N.J.          627,   643-44
            (1985) (footnote omitted).]

     Concurrent or consecutive sentences are at the discretion of

the sentencing judge.        Carey, 168 N.J. at 422 (citing N.J.S.A.

2C:44-5(a)).        "When a sentencing court properly evaluates the

Yarbough factors in light of the record, the court's decision will

not normally be disturbed on appeal."         State v. Miller, 205 N.J.

109, 129 (2011).

     Here, the trial court went through the factors listed under

item three of the Yarbough factors.         The court found the crimes

of manslaughter and hindering had independent objectives, involved

separate    acts,    and   involved   different   victims,   supporting    a

consecutive sentence; however, the fact that the crimes were

committed at the same time and place supported a concurrent

sentence.    The court also considered the "principal that there

should be no free crimes," and concluded the hindering sentence

will run consecutive to the manslaughter.         Because the trial court

"evaluate[d] the Yarbough factors in light of the record," we will

not disturb its ruling.       See Miller, 205 N.J. at 129.


2
  An amendment to the statute later superseded a sixth guideline.
State v. Carey, 168 N.J. 413, 423 n.1 (2001).

                                      23                           A-3706-15T3
     We therefore affirm defendant's convictions and the sentences

imposed, but remand for the trial court to vacate the sentence on

the merged unlawful possession of a weapon count. We do not retain

jurisdiction.

     Affirmed in part, remanded in part.




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