                        NOT FOR PUBLICATION WITHOUT THE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-4791-14T4


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JUSTIN C. ANGELINO,

     Defendant-Appellant.
___________________________

              Submitted September 14, 2017 – Decided October 18, 2017

              Before Judges Simonelli and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey,   Law   Division,  Camden County,
              Indictment No. 13-06-1855.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Michele E. Friedman, Assistant
              Deputy Public Defender, of counsel and on the
              brief).

              Mary Eva Colalillo, Camden County Prosecutor,
              attorney for respondent (Patrick D. Isbill,
              Assistant Prosecutor, of counsel and on the
              brief).

              Appellant filed a pro se supplemental brief.
PER CURIAM

     A grand jury indicted defendant for first-degree attempted

murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); first-

degree robbery, N.J.S.A. 2C:15-1(a)(1) (count two); second-degree

conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(2) and N.J.S.A.

2C:15-1(a)(1) (count three); second-degree aggravated assault,

N.J.S.A.    2C:12-1(b)(1)     (count   four);     third-degree   aggravated

assault,     N.J.S.A.    2C:12-1(b)(2)       (count    five);   third-degree

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

4(d) (count six); fourth-degree unlawful possession of a weapon,

N.J.S.A. 2C:39-5(d) (count seven); and fourth-degree unlawful

possession of an imitation firearm, N.J.S.A. 2C:39-4(e) (count

eight).     The charges stemmed from defendant's involvement in the

armed robbery and brutal attack of his biological father, with

whom he had recently reconnected.

     The jury found defendant guilty of robbery (count two);

conspiracy to commit robbery (count three); aggravated assault

(counts four and five); and unlawful possession of a weapon (count

eight).     The jury found defendant not guilty on the remaining

counts.     The trial judge merged count four with count two and

sentenced    defendant   on   count    two   to   a   fifteen-year   term    of

imprisonment subject to an eighty-five percent period of parole

ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A.

                                       2                              A-4791-14T4
2C:43-7.2, concurrent to a five-year sentence on count three.   The

judge sentenced defendant on count five to a four-year term of

imprisonment, consecutive to counts two and three.    Lastly, the

judge sentenced defendant on count eight to a fifteen-month term

of imprisonment, concurrent to counts two, three, and five.

     The judge later modified defendant's sentence under count

five to a three-year term of imprisonment, consecutive to counts

two and three; and further modified the sentence whereby count

five merged with count four.     Defendant's aggregate sentence is

fifteen years subject to NERA.

     On appeal, defendant raises the following contentions:

     POINT I

          THE TRIAL COURT'S FAILURE TO DECLARE A
          MISTRIAL, OR AT A MINIMUM TO VOIR DIRE THE
          JURORS TO DETERMINE IF THEY WERE REASONABLY
          CERTAIN THAT FURTHER DELIBERATIONS WOULD BE
          UNPRODUCTIVE, DENIED THE DEFENDANT DUE PROCESS
          OF LAW AND A FAIR TRIAL. (Not Raised Below.)

     POINT II

          THE DEFENDANT IS ENTITLED TO A NEW SENTENCING
          HEARING BECAUSE THE SENTENCE IS MANIFESTLY
          EXCESSIVE AND UNDULY PUNITIVE, AND THE
          SENTENCING COURT FAILED TO PROPERLY MERGE THE
          CONSPIRACY   WITH  THE   UNDERLYING   ROBBERY
          CONVICTION.

                A.   The Sentencing Court Erred in
                     Failing to Find Mitigating
                     Factor    Four    Based    On
                     [Defendant's]   Disadvantaged
                     Upbringing.

                                 3                         A-4791-14T4
               B.   The   Conspiracy    Conviction
                    Must   Be  Merged   With   the
                    Underlying Robbery.

     In a pro se supplemental brief, defendant adds that the judge

erred at sentencing by failing to find a certain mitigating factor.

For the following reasons, we affirm defendant's conviction, but

remand for resentencing.

                                I.

     Because defendant does not challenge the evidence adduced at

the trial, we need not recite the underlying facts in detail.      We

limit our review to the discrete issues raised in this appeal.

     The trial spanned two weeks, involved eight charges, and

eleven witnesses testified, including the State's expert witness.

Jury deliberations commenced at 3:03 p.m. on October 7, 2014.      At

4:01 p.m., the jury sent a note requesting "a TV and DVD for the

review of testimony." At 4:17 p.m., the jury specified they wanted

a replay of part of defendant's recorded statement.      The judge

determined the entire statement had to be replayed, and adjourned

to the next day.

     Defendant's entire statement was replayed to the jury when

the trial resumed the next morning.    Deliberations continued at

11:06 a.m.   At 12:57 p.m., the jury sent a note asking: "What is

the definition of accomplice liability?   Can accomplice liability


                                4                           A-4791-14T4
be applied to each count in this case?"    In response, the judge

re-read the accomplice liability charge to the jury, and then

adjourned to the next day.

     The jury had only deliberated for approximately four hours

when, at 9:59 the next morning, it sent a note stating: "Even

after hearing the definition of accomplice liability yesterday,

the jury is at an impasse and it does not appear that there is any

possibility of coming to a unanimous decision."   (Emphasis added).

In response, and without objection, the judge charged the jury in

accordance with Model Jury Charge (Criminal), "Judge's Instruction

on Further Jury Deliberations" (2013) as follows:

               It is your duty, as jurors, to consult
          with one another 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 and
          change your opinion if convinced it is
          erroneous, but do not surrender your honest
          conviction as to the weight or effect of the
          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, judges of the facts.

The judge added:

               With that, each juror is directed to go
          back to the jury room. You will start your
          deliberations    –   continue    with   your

                                5                           A-4791-14T4
          deliberations.    You have charges to be
          considered.   You have not deliberated that
          long.

               You have taken an oath and a duty to serve
          as   this   jury.       Therefore,   with   the
          instructions that I have given you, I instruct
          you to go back to the jury room and to continue
          with your deliberations with the instructions
          I've given you.

The jury returned to deliberate at 10:03 a.m., and reached a

verdict nearly two hours later at 11:54 a.m.

     For the first time on appeal, defendant argues the judge

should have declared a mistrial or, at a minimum, read Model Jury

Charge (Criminal), "Judge's Inquiry When Jury Reports Inability

To Reach Verdict" (2013):

               You    have     indicated    that    your
          deliberations have reached an impasse. Do you
          feel that further deliberations will be
          beneficial or do you feel that you have
          reached a point at which further deliberations
          would be futile? Please return to the jury
          room to confer, and advise me of your decision
          in another note.

Defendant posits that failure to voir dire the jurors in open

court as to whether or not it was reasonably certain that further

deliberations would be unproductive served to effectively coerce

them into returning a hasty verdict.   We disagree.

     A trial court has discretion to order a jury to continue

deliberating after they have announced a deadlock, but cannot

coerce a jury into reaching a verdict.     State v. Figueroa, 190

                                6                           A-4791-14T4
N.J. 219, 240 (2007).        When a defendant fails to object to an

error regarding a jury charge, we review for plain error.            State

v. Funderburg, 225 N.J. 66, 79 (2016).        "Under that standard, we

disregard any alleged error 'unless it is of such a nature as to

have been clearly capable of producing an unjust result.'"           Ibid.

(quoting R. 2:10-2).       "The mere possibility of an unjust result

is not enough.      To warrant reversal by this Court, an error at

trial must be sufficient to raise 'a reasonable doubt . . . as to

whether the error led the jury to a result it otherwise might not

have reached.'"      Ibid. (quoting State v. Jenkins, 178 N.J. 347,

361, (2004)).      We discern no abuse of discretion or plain error

here.

     In State v. Czachor, 82 N.J. 392 (1980), our Supreme Court

disapproved of the "Allen charge"1 which was previously used with

a deadlocked jury.        The Court held the Allen charge was unduly

coercive and did not "permit jurors to deliberate objectively,

freely, and with an untrammeled mind."       Id. at 402.     Instead, the

Court approved the recommendations of the American Bar Association

(ABA) on the issue and directed trial courts to "instruct jurors

in accordance with the ABA Standards [Section] 5.4" in the initial

general   charge    and   repeat   the   instructions   at   the   judge's


1
  Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed.
528 (1896).

                                     7                             A-4791-14T4
discretion when faced with a jury that has been unable to reach

unanimous verdicts.     Id. at 407.          Accordingly, New Jersey's Model

Criminal Charges now include the Czachor charge -- Model Jury

Charge    (Criminal),       "Judge's     Instruction       on   Further     Jury

Deliberations."     State v. Ross, 218 N.J. 130, 144 (2014).

     "The trial court's determination as to whether a Czachor

charge    is    warranted    requires        a   careful   analysis    of    the

circumstances."      Ibid.        "When a jury communicates a deadlock,

trial courts 'should be guided in the exercise of sound discretion

by such factors as the length and complexity of trial and the

quality   and   duration     of    the   jury's    deliberations.'"         Ibid.

(quoting Czachor, supra, 82 N.J. at 407).              "Consistent with the

principle that a jury verdict must not be the product of coercion,

appellate review of a trial court's supplemental instruction is

'guided by a concern for the weighty role that the judge plays in

the dynamics of the courtroom.'" Ibid. (quoting Figueroa, supra,

190 N.J. at 238).    "The trial judge's discretion must be exercised

in a manner that ensures 'a jury verdict free from untoward

interference from any source, including the court.'"               Id. at 145

(quoting State v. Shomo, 129 N.J. 248, 257 (1992)).                   "When the

'difference of opinion between members of the jury is clearly

intractable . . . then the jury is deadlocked and a mistrial should

be declared.'"     Ibid. (quoting Figueroa, supra, 190 N.J. at 237).

                                         8                              A-4791-14T4
       Here, the judge properly applied the principles articulated

in Czachor.    The jury did not state it was hopelessly deadlocked

that would warrant declaring a         mistrial.   Instead, the jury

communicated it was at an impasse and that it did not "appear"

there was any possibility of reaching a unanimous verdict.         The

jury did not indicate it was hopelessly deadlocked with            "no

reasonable probability of agreement."      Czachor, supra, 82 N.J. at

407.

       Further, this was a two-week trial with eleven witnesses, and

the jury had only deliberated for approximately four hours at the

time it announced its impasse.    Our Supreme Court determined that

reading the Czachor charge was appropriate where the jury had

deliberated for over twice that amount of time after a trial of

similar length.    See Ross, supra, 218 N.J. at 138 (upholding the

reading of a Czachor charge when the jury indicated a deadlock

after deliberating approximately thirteen hours after a two-week

trial).    We are satisfied that the judge properly exercised her

discretion in response to the jury's communication of an impasse

by providing a Czachor charge and directing the jury to resume

deliberations.

                                 II.

       Defendant challenges his sentence as excessive.     He argues

the judge erred in failing to find mitigating factor N.J.S.A.

                                  9                           A-4791-14T4
2C:44-1(b)(4) ("substantial grounds tending to excuse or justify

the defendant's conduct, though failing to establish a defense")

based on his troubled upbringing in foster care as the result of

his father "signing away" his parental rights.

      Our review of a sentence is limited.           State v. Miller, 205

N.J. 109, 127 (2011).        We review a judge's sentencing decision

under an abuse of discretion standard.          State v. Fuentes, 217 N.J.

57, 70 (2014).       As directed by the Court, we must determine

whether:

           (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.'

           [Ibid.    (alteration in original) (quoting
           State v. Roth, 95 N.J. 334, 364-65 (1984)).]

      We have considered defendant's argument in light of the record

and   applicable   legal     principles   and   conclude    it    is   without

sufficient merit to warrant discussion in a written opinion.                  R.

2:11-3(e)(2).      We are satisfied the record amply supports the

judge's findings on aggravating and mitigating factors.

      Defendant also argues, and the State concedes, that the judge

should have merged the conspiracy conviction (count three) with

the   robbery   conviction    (count   two).      Because   the   conspiracy

                                    10                                 A-4791-14T4
conviction should have merged with the robbery conviction under

N.J.S.A. 2C:1-8(a)(2), we remand for resentencing.

    Defendant's conviction is affirmed and the matter is remanded

for resentencing.




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