                                NOT FOR PUBLICATION WITHOUT THE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-4134-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JUDSON PORTER,

          Defendant-Appellant.


                   Submitted February 4, 2020 – Decided February 28, 2020

                   Before Judges Fisher, Accurso and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Essex County, Indictment No. 17-05-1155.

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

                   Theodore N. Stephens II, Acting Essex County
                   Prosecutor, attorney for respondent (Caroline C. Galda,
                   Special Deputy Attorney General/Acting Assistant
                   Prosecutor, of counsel and on the brief).

PER CURIAM
       Tried to a jury, defendant Judson Porter was convicted of ten charges in

an eleven-count Essex County indictment, including first-degree carjacking and

first-degree robbery.1    During the four-day trial, the State presented the

testimony of seven law enforcement witnesses and the driver of the vehicle, M.S.

(Mary).2 The passenger of the vehicle, T.K. (Tom), did not testify. Defendant

was sentenced to an aggregate twenty-two-year prison term, with an eighty-five

percent period of parole ineligibility pursuant to the No Early Release Act,

N.J.S.A. 2C:43-7.2.

       On appeal, defendant raises the following arguments for our

consideration:

                                     POINT I

              THE FAILURE TO GIVE THE CLAWANS[3]
              CHARGE REQUESTED BY DEFENDANT AND TO
              ALLOW DEFENDANT TO ARGUE TO THE JURY
              THAT THE STATE FAILED TO PRESENT AN
              IMPORTANT WITNESS WAS HARMFUL ERROR.
              (U.S. Const. [a]mend[s]. VI, XIV; N.J. Const. [a]rt. I,
              [¶¶] 1, 10).


1
  During the charge conference, the State dismissed one of the two counts
charging aggravated assault against a law enforcement officer.
2
   We use initials to identify the victims and an uncharged suspect, and
pseudonyms for ease of reference.
3
    State v. Clawans, 38 N.J. 162 (1962).
                                                                        A-4134-17T4
                                        2
                                   POINT II

            THE TRIAL COURT ERRED BY DENYING
            DEFENDANT'S REQUEST FOR A THIRD-PARTY
            GUILT JURY INSTRUCTION.                  (U.S. Const.
            [a]mends. V, VI, . . . XIV; N.J. Const. [a]rt. I, [¶¶] 1,
            10).

                                   POINT III

            COUNTS TWO AND THREE, THE ROBBERY AND
            CARJACKING CONVICTIONS RELATING TO
            [MARY], ARE PART OF THE SAME OFFENSE AND
            MUST MERGE.

                                   POINT IV

            DEFENDANT SHOULD BE RESENTENCED
            BECAUSE        THE     SENTENCING   COURT
            CONSIDERED         HIS     POST-CONVICTION
            ASSERTION OF INNOCENCE AT SENTENCING.
            (Not Raised Below)

      We reject the contentions raised in points I, II and IV and affirm

defendant's convictions and sentence. But, we remand to the trial court for entry

of an amended judgment of conviction merging the robbery conviction

pertaining to Mary with the carjacking conviction.




                                                                         A-4134-17T4
                                       3
                                       I.

                                       A.

      We first summarize the facts underpinning defendant's challenges to the

jury instructions, recognizing we must examine the charge as a whole to

determine its overall effect. State v. McKinney, 223 N.J. 475, 494 (2015).

      Late on a winter's night in 2017, Mary parked her Nissan Murano in front

of her friend's apartment building in Irvington. Another friend, Tom, was seated

next to Mary. Moments later, defendant approached the driver's side, pointe d a

silver handgun at Mary's head through the closed window, and ordered her out

of the car. Defendant searched Mary's pockets with one hand while holding the

gun in the other. After finding nothing in Mary's pockets, defendant ordered

Tom to approach.     After searching Tom's pockets and recovering nothing,

defendant jumped in Mary's car and drove away. Various personal items,

including her purse, wallet, cellphone and a small amount of cash were

contained in the vehicle.

      After defendant left the scene, Tom immediately called the police. Mary

described the suspect as "a tall, slim. dark skin, black male wearing a black and

gray Northface jacket, ski mask underneath his chin with gloves on." At trial,

Mary said the suspect's eyes and mouth were visible through the mask. Mary


                                                                         A-4134-17T4
                                       4
"got a good look at him especially when he was going through [Tom]'s pockets."

Police located Mary's Nissan later that evening. The vehicle was unoccupied

and parked fewer than two miles away in Newark.

      Retracing what police believed would have been the suspect's likely route

from the carjacking scene to the vehicle's resting place in Newark, officers

noticed "a tall, slim, dark[-]skinned male wearing a black and gray Northface

[jacket] with a ski mask underneath his chin with black gloves on." Officers

called defendant to their car, but he "began taking off." During the ensuing

chase, defendant "reach[ed] into his waist and . . . dropped a silver and black

handgun." After a brief struggle, police arrested defendant. A search i ncident

to his arrest revealed Mary's keys and cellphone. Mary told the jury the ski mask

and handgun seized by police looked similar to the ski mask and handgun used

by the suspect.

      Also that night, police stopped D.H. (Daniel), a few blocks from the

carjacking scene because he matched the general description of the suspect.

Daniel had dark skin, "was around six feet" tall, and wore "blue jeans and [a]

black coat." After the stop and frisk failed to reveal any weapons, the officers

recorded Daniel's personal information and "sent him on his way."




                                                                         A-4134-17T4
                                       5
      Before the parties formally rested their cases, the trial court conducted a

charge conference. Relevant here, defendant unsuccessfully sought a Clawans

adverse-inference charge, and a third-party guilt instruction. We consider each

jury charge in turn.

                                       B.

      At the conclusion of the evidence, defendant requested a Clawans charge

based upon the State's failure to call Tom as a witness. The State asserted that

Tom was unavailable, having "never responded to a single subpoena."

According to the prosecutor, Tom "was never even served in this case despite

weeks upon weeks of effort." The State also argued Tom did not possess

"superior knowledge," as required under the governing law, because Tom's

description of defendant did "not vary all that much" from Mary's description.

Further, as disclosed in discovery, Tom was unable to identify defendant in a

photo array. Accordingly, the State claimed Tom "would not have provided

anything that was not already part of the record."

      In a cogent oral opinion, the court carefully applied the factors set forth

by our Supreme Court in State v. Hill, 199 N.J. 545, 561 (2009), and denied

defendant's request. In Hill, the Court explained a trial judge may provide an




                                                                         A-4134-17T4
                                       6
adverse inference charge after considering and making findings based on the

following circumstances:

            (1) that the uncalled witness is peculiarly within the
            control or power of only the one party, or that there is
            a special relationship between the party and the witness
            or the party has superior knowledge of the identity of
            the witness or of the testimony the witness might be
            expected to give; (2) that the witness is available to that
            party both practically and physically; (3) that the
            testimony of the uncalled witness will elucidate
            relevant and critical facts in issue[;] and (4) that such
            testimony appears to be superior to that already utilized
            in respect to the fact to be proven.

            [199 N.J. at 561 (alteration in original) (quoting State
            v. Hickman, 204 N.J. Super. 409, 414 (App. Div.
            1985)).]

      With respect to the first Hill factor, the trial court found Tom was "a

civilian witness" who was "not under the wide umbrella of the State." Citing

the State's efforts to find and subpoena Tom, the court was persuaded that Tom

was unavailable. Recognizing there were no identifications of defendant made

in this case, the court concluded the third factor was unknown, and whether Tom

possessed any "superior knowledge" about the matter under factor four was

"speculation."




                                                                          A-4134-17T4
                                        7
      Defendant now argues the court's refusal to give a Clawans charge was

reversible error. 4 For the first time on appeal, defendant claims the State failed

to detail the "specific efforts it made to serve [Tom]." Defendant's argument is

unavailing.

      After reviewing the record in light of the applicable legal standards, we

conclude the trial court's ruling was not an abuse of discretion. The court made

careful findings on the record as required by Hill. 199 N.J. at 561. We note,

defendant neither disputed the State's efforts before the trial court, nor s ought

additional details regarding the efforts police made to locate Tom. We therefore

affirm the trial court's denial of defendant's request for a Clawans charge.

                                        C.

      Defendant sought a third-party guilt charge simply because police stopped

and frisked Daniel shortly after the carjacking.         The trial court denied


4
  Defendant's point heading claims the court failed to permit defendant "to argue
to the jury that the State failed to present an important witness . . . ." But
defendant did not brief that issue. An issue not briefed is deemed waived. See
Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); see also Pressler & Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020). We nonetheless observe
defendant's argument is inaccurate. Indeed, quoting Hill, the trial court observed
"it is one thing for counsel in summation to point to the absence of particular
witnesses; it is quite another when the court puts the weight of its authority
behind such a summation by telling the jury it may draw an adverse inference
from their absence." The trial court did not prohibit defense counsel from
arguing about Tom's absence at trial, yet counsel did not do so.
                                                                           A-4134-17T4
                                        8
defendant's application, concluding "[t]he fact that a patrol officer stopped

someone matching the description with nothing more does not mandate a third

[-]party guilt charge." As the court observed, Daniel "had no contraband in his

possession or anything indicative of involvement in any criminal activity let

alone this incident."

      On appeal, defendant does not contend he was deprived of the opportunity

to offer evidence of third-party guilt. Cf. State v. Cotto, 182 N.J. 316, 333

(2006). Indeed, defense counsel argued in summation that Daniel matched the

suspect's description. Citing no authority for his argument, defendant instead

contends the trial court's refusal to give the third-party guilt charge was

reversible error. We disagree.

      A third-party guilt instruction essentially reinforces the more general

instruction to the jurors, which was repeatedly delivered by the trial court here.

The charge as a whole, McKinney, 223 N.J. at 494, underscored that the State

always maintained the burden of proof for the substantive charges and "the

identity of the person who committed the crime." The trial court also instructed

the jury that the defense had no obligation to prove anything or present any

evidence, including the identity of the person who committed the crime. We

discern no error in the court's refusal to give a third-party guilt charge in this


                                                                          A-4134-17T4
                                        9
case, where Daniel had no connection to the crime other than his presence in the

general vicinity of the crime and similarity to the victim's vague description of

the suspect. Police did not find a weapon or proceeds of the robbery on Daniel's

person as they did with defendant. Having considered the charge as a whole,

we discern no error in the court's refusal to give a third-party guilt instruction.

                                          II.

      We next address defendant's claim that the court erred by failing to merge

his convictions for carjacking and robbing Mary. Before the trial court, the State

conceded merger, noting "the carjacking and the robbery were of the same

course of conduct and the same event. [Mary] was robbed of some belongings

during the course of the carjacking." Notably, the trial court merged defendant's

conviction for possession of a weapon for an unlawful purpose with his

conviction for robbing Mary, but the court did not address merger of that robbery

with carjacking.

      Before us, the State changes its tune, contending "the robbery and

carjacking of [Mary] were two different courses of conduct." Accordingly, the

State argues merger is inappropriate because defendant's commission of the

robbery was not limited to the theft of Mary's motor vehicle, but also included

the rifling of her pockets at gunpoint.


                                                                            A-4134-17T4
                                          10
        It is well-settled that "merger implicates a defendant's substantive

constitutional rights." State v. Cole, 120 N.J. 321, 326 (1990). Merger seeks to

avoid multiple punishment for the same offense. State v. Miller, 108 N.J. 112,

116 (1987). "[I]f an accused has committed only one offense, he cannot be

punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). "Not only does

merger have sentencing ramifications, it also has a measurable impact on the

criminal stigma that attaches to a convicted defendant." State v. Rodriguez, 97

N.J. 263, 271 (1984); see also State v. Tate, 216 N.J. 300, 302-03 (2013).

        N.J.S.A. 2C:1-8(a) sets forth the "legislative parameters for merger of

offenses," State v. Diaz, 144 N.J. 628, 637-38 (1996), and provides in pertinent

part:

             When the same conduct of a defendant may establish
             the commission of more than one offense, the defendant
             may be prosecuted for each such offense. He may not,
             however, be convicted of more than one offense if:

             (1) One offense is included in the other, as defined in
             subsection d. of this section;

                   ....

             (3) Inconsistent findings of fact are required to
             establish the commission of the offenses; or

             (4) The offenses differ only in that one is defined to
             prohibit a designated kind of conduct generally and the
             other to prohibit a specific instance of such conduct.

                                                                        A-4134-17T4
                                      11
                  ....

            d. Conviction of included offense permitted. A
            defendant may be convicted of an offense included in
            an offense charged whether or not the included offense
            is an indictable offense. An offense is so included
            when:

            (1) It is established by proof of the same or less than all
            the facts required to establish the commission of the
            offense charged . . . .

            [N.J.S.A. 2C:1-8.]

      Notwithstanding those statutory requirements, our jurisprudence has long-

recognized a "flexible approach" to merger. State v. Miller, 237 N.J. 15, 32

(2019) (quoting State v. Brown, 138 N.J. 481, 561 (1994)). Under that approach,

courts must analyze the evidence

            in terms of, among other things, the time and place of
            each purported violation; whether the proof submitted
            as to one count of the indictment would be a necessary
            ingredient to a conviction under another count; whether
            one act was an integral part of a larger scheme or
            episode; the intent of the accused; and the
            consequences of the criminal standards transgressed.

            [Miller, 237 N.J. at 33 (quoting Davis, 68 N.J. at 81).]

      We are satisfied that application of the flexible approach here requires

merger of defendant's robbery and carjacking convictions. Defendant's theft by

threat of force of Mary's vehicle, and searching of her pockets outside the

                                                                          A-4134-17T4
                                       12
vehicle took place during a single criminal episode at the same place and time.

Both offenses were the product of the same criminal intent and the same

threatened use of force. Based upon the trial evidence, we do not discern any

"clear statutory differences illustrating legislative intent to fractionalize

[defendant's] course of conduct."    Tate, 216 N.J. at 312.     Importantly, the

carjacking statute does not contain an anti-merger provision.       Cf. N.J.S.A.

2C:13-6(f) (prohibiting merger of a luring of child conviction "with a conviction

of any other criminal offense"); N.J.S.A. 2C:35-7.1(c) (prohibiting merger of a

distribution of controlled dangerous substances (CDS) within 500 feet of public

property conviction with a conviction for distributing CDS or employing a

juvenile in a drug distribution scheme).

      Moreover, defendant was charged with carjacking under subsection (a)(2)

of N.J.S.A. 2C:15-2 and robbery under subsection (a)(2) of N.J.S.A. 2C:15-1.

The evidence showed defendant committed the theft of Mary's motor vehicle at

gunpoint, under "fear of[] immediate bodily injury" and rifled through her

pockets at gunpoint under the same "fear of[] immediate bodily injury." State

v. Garretson, 313 N.J. Super. 348, 355 (App. Div. 1998) (recognizing the

carjacking statute "mirrors" the robbery statute, "evinc[ing] a clear legislative

intent to elevate a second-degree robbery into a first-degree offense and


                                                                         A-4134-17T4
                                      13
provid[ing] for enhanced punishment if the object of the robbery was to

unlawfully take a motor vehicle"). We therefore conclude the court erred by

failing to merge defendant's robbery and carjacking convictions.

                                      III.

      Finally, defendant seeks resentencing based upon the trial court's remarks

that he lacked remorse and "denied involvement in the incident." Although the

court's remarks were made in partial support of aggravating factor nine, N.J.S.A.

2C:44-1(a)(9) (specific and general deterrence), and in partial rejection of

mitigating factor nine N.J.S.A. 2C:44-1(b)(9) ("[t]he character and attitude of

defendant indicate that he is unlikely to commit another offense"), defendant

only seeks resentencing without consideration of his "assertions of innocence in

aggravation." Defendant does not contend his twenty-two-year sentence was

excessive.

      We have previously warned against the use of a defendant's refusal to

admit guilt to increase a sentence. See State v. Marks, 201 N.J. Super. 514, 540

(App. Div. 1985) (noting our "view that a defendant's refusal to acknowledge

guilt following a conviction is generally not a germane factor in the sentencing

decision"). We have, however, found a "[d]efendant's consistent denial of

involvement and . . . lack of remorse" supported a finding of aggravating factor


                                                                         A-4134-17T4
                                      14
nine, N.J.S.A. 2C:44-1(a)(9), and "indicate[d] that a prison sentence [wa]s

necessary to deter [the] defendant from similar conduct in the future . . . ." State

v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991). And, in State v. Carey,

our Supreme Court recognized a sentencing court may consider the defendant's

failure to take responsibility in support of aggravating factor three, N.J.S.A.

2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"). 168

N.J. 413, 426-27 (2001) (upholding the court's finding of aggravating factor

three where the defendant "expresse[d] remorse, but [did] not directly accept

responsibility for the crash or admit that he ha[d] a problem of drinking and

driving").

       We discern no error in the trial court's consideration of defendant's "denial

of wrongdoing" when applying aggravating factor nine (and rejecting mitigating

factor nine). Those fleeting remarks were not the sole bases for the court's

application of those factors. The court also considered defendant's criminal

record, noting: "A prior state prison sentence, probation and ISP[5] have not

served to deter the defendant." According to the court, defendant "committed a

previous felony while on probation supervision. He committed the violent

offense presently before the court while his ISP was still active, in fact, less than


5
    Intensive Supervision Program.
                                                                             A-4134-17T4
                                        15
three months after being released from state prison." Those considerations

provided ample support for the trial court's finding that there was a "serious need

to deter this defendant and others from violating the law . . . ." In a similar vein,

the court properly considered defendant's prior record of recidivism in rejecting

mitigating factor nine.

      Affirmed in part; remanded in part.




                                                                             A-4134-17T4
                                        16
