                                NOT FOR PUBLICATION WITHOUT THE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-3784-17T4

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MARIO FIGUEROA, a/k/a
ALMIGHTY FIGUEROA,
and MICHAEL FIGUEROA,

     Defendant-Appellant.
______________________________

                   Submitted May 27, 2020 – Decided July 8, 2020

                   Before Judges Yannotti, Currier and Firko.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Monmouth County, Indictment Nos.
                   16-04-0739 and 16-07-1223.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Jodi Lynne Ferguson, Assistant Deputy
                   Public Defender, of counsel; Jennifer G. Chawla,
                   Designated Counsel, on the brief).

                   Christopher J. Gramiccioni, Monmouth County
                   Prosecutor, attorney for respondent (Mary Rebecca
            Juliano, Assistant Prosecutor, of counsel and on the
            brief).

            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant was tried before a jury and found guilty of armed robbery,

witness tampering, and other offenses, as charged in Indictments Nos. 16-04-

0739 and 16-07-1223. Defendant appeals from judgments of conviction dated

February 13, 2018, and March 2, 2018. For the reasons that follow, we affirm

in part and remand in part to the trial court for a statement of reasons concerning

the imposition of consecutive sentences for the witness-tampering convictions,

and resentencing on counts four, five, and six of Indictment No. 16-04-0739.

                                        I.

      Defendant was charged under Indictment No. 16-04-0739 with first-

degree armed robbery of Christopher Perricone, N.J.S.A. 2C:15-1 (count one);

fourth degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count two);

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

(count three); first-degree tampering with witness Kirk Charlton, N.J.S.A.

2C:28-5(a) (count four); second-degree retaliation against Charlton, N.J.S.A.

2C:28-5(d) (count five); and second-degree aggravated assault upon Charlton,

N.J.S.A. 2C:12-1(b)(1) (count six).          Defendant also was charged under

                                                                           A-3784-17T4
                                        2
Indictment No. 16-07-1223, with first-degree tampering with witness Ivonne

Robinson, N.J.S.A. 2C:28-5(a) (count one). Before the trial, the victim died of

causes unrelated to the robbery.

      Defendant filed various pre-trial motions, including a motion to suppress

the victim's wallet, which the police recovered during their investigation. The

judge scheduled a hearing on that motion and the State was prepared to present

testimony by the arresting officer.    During the proceedings on the motion,

defendant asked the judge to review a recording a police officer made using his

Mobile Video Recorder (MVR).

      The recording was made during the show-up procedure, which took place

shortly after the robbery was committed. The victim observed defendant and

Robinson and stated they were not the persons who robbed him.

      The judge stated that he would listen to the evidence and then rule on the

motion. Defendant repeatedly interrupted the judge and insisted that the MVR

recording showed he did not commit the robbery. Defendant was removed from

the courtroom. Based on statements defendant made during the arguments, the

judge found that he did not want to pursue the suppression motion.

      Defendant returned to court several hours later to execute the plea cut-off.

The judge stated that defendant had chosen to waive all of his pretrial motions


                                                                          A-3784-17T4
                                        3
and proceed directly to trial. Defendant reserved the right to seek a hearing on

the admissibility of the victim's statements.

      Defendant stated that he had a right to call witnesses and he was "going

to need the victim, because he's in my favor." The judge told defendant the

victim could not be called because he was deceased. Defendant said the judge

would have to dismiss the charges.

      The case was scheduled for trial before another judge. At a pretrial

conference, defendant asked the trial judge if he had the right to confront the

"alleged victim in this case or not." The judge stated that defendant would not

be permitted to engage in disruptive conduct before the jury. Defendant was

removed from the courtroom.

      The judge then ruled on several motions. The judge determined that if

defendant elected to testify, his prior convictions would be admissible for

impeachment. The judge also determined that the MVR recording of the show-

up would not be admitted because the victim's statements were hearsay and not

admissible under the hearsay exception for excited utterances.

      At the trial, Sean DeShader of the Asbury Park Police Department (APPD)

testified that on October 21, 2014, he and two other officers were on patrol in a

marked police vehicle. DeShader stated that at around 9:00 p.m., as they were


                                                                         A-3784-17T4
                                        4
traveling north on Main Street, they observed two individuals running across the

street at the corner of Main Street and Sewall Avenue. DeShader recognized the

individuals and identified them as defendant and Robinson. Defendant and

Robinson ran north on Main Street and turned left onto Asbury Avenue.

      According to DeShader, defendant was moving fast and Robinson was

"trying to catch up."    The officers stopped their vehicle, stepped out, and

approached defendant and Robinson.             DeShader said they decided to stop

because defendant and Robinson were in a high-crime area, where there had

recently been robberies, and because defendant and Robinson were "fleeing

across the street" disregarding traffic.

      When the officers approached, defendant slowed down. Robinson stopped

abruptly and then began to walk. DeShader observed a black object fall from

her right side. He noticed it was a wallet. DeShader picked it up and opened it.

The wallet contained a driver's license, issued in Perricone's name, with a

photograph of a white male with brown hair. The wallet also contained a health

card and Perricone's credit card.

      DeShader approached Robinson and she agreed to speak with him.

DeShader brought Robinson to the location where the other officers were

questioning defendant. DeShader told the officers about the wallet. DeShader


                                                                          A-3784-17T4
                                           5
then returned to the route defendant and Robinson had taken. He observed an

individual who looked like the man whose picture appeared on the driver's

license.

       The man was sitting in the window of a restaurant, which was near the

corner from which the suspects began to run. DeShader testified that the man

had blood coming down the side of his face, and he was complaining to another

patron about having been robbed. DeShader identified himself and showed him

the wallet. The man confirmed he was Perricone and that the wallet belonged

to him.

       Perricone told the officer what had happened. DeShader testified that

Perricone "seemed out of it, like, when you get hit pretty good ." DeShader said

Perricone had an injury to his eye, a wound to the right side of his forehead,

lacerations to the right side of his eye, and a gash on his nose that was bleeding.

He also had abrasions on the palms of his hands, and an abrasion on the back of

his fists.

       The officers continued their investigation. They walked to a store which

was near the corner from which the suspects began to run and observed

surveillance cameras. DeShader checked the angles of the cameras to determine

whether they could have captured footage of the robbery. As he was doing so,


                                                                           A-3784-17T4
                                        6
Charlton approached him. DeShader said he knew Charlton because he had dealt

with him previously "on the streets." Charlton told DeShader "[defendant]

robbed that white boy." Charlton agreed to come to police headquarters to

provide a statement.

      DeShader returned to the APPD headquarters.           When he arrived, he

noticed Charlton was there with an acquaintance, David Edwards, who also had

been present at the time of the robbery.       Charlton and Edwards provided

Detective Daniel Kowsaluk with statements.           Robinson also provided a

statement.

      At trial, Robinson admitted she and defendant committed the robbery. She

testified that someone told them the victim had cash.           She narrated the

surveillance video of the incident as it was played for the jury. She noted that

defendant approached "the guy" and tried to persuade him to purchase drugs.

She and defendant began to walk with the victim and then robbed him. Later,

the police arrested her and she was incarcerated in the county jail.

      Robinson said defendant was in the county jail at the time and he wrote to

her every day. Sometime in early 2016, after the victim died, Robinson agreed

to cooperate with the prosecutors. She testified around that time, defendant's

letters to her became threatening. In one of his letters, defendant stated, "If you


                                                                           A-3784-17T4
                                        7
go against me, you will make the biggest mistake in your life." He also wrote

that he could not believe she could be "this weak and stupid" and cursed her.

      In February 2016, Robinson pleaded guilty to second-degree conspiracy

to commit robbery, and the State agreed to dismiss two other charges pending

against her. When Robinson pleaded guilty, defendant wrote to her. He called

her a "dumb ass" and said she "stepped all on [his] heart."

      In that letter, defendant broke up with Robinson and stated, "May you live

forever. It’s over now." Robinson testified that she perceived this remark as a

threat. She wrote back and told defendant she would withdraw her plea.

Thereafter, defendant prepared papers for Robinson to withdraw her plea and

forwarded them to her.

      Robinson said she signed the papers because she felt threatened,

pressured. She stated that she "was just doing it so [defendant] could leave her

alone." However, after she submitted the papers for filing, Robinson called her

attorney and told him she did not want to withdraw her plea. She said she had

filed the motion because defendant pressured her.

      Edwards testified that on October 21, 2014, at around 9:00 p.m., he was

with Charlton at the corner of Main Street and Sewall Avenue, which was near

a liquor store. He saw defendant and Robinson walk by. He said he had known


                                                                        A-3784-17T4
                                       8
defendant for a long time. Defendant crossed the street, and Edwards saw him

speaking with a white man. Edwards went into the liquor store. When he came

out, he saw defendant and Robinson running across the street.

      Charlton testified that on October 21, 2014, at around 9:00 p.m., he was

with Edwards on the corner of Main Street and Sewall Avenue. He saw a person

named Carl with a white man. Charlton then observed defendant and Robinson

approach the two men. Carl left and defendant spoke with the other man.

Charlton saw defendant grab the man as Robinson went into the man's pocket.

According to Charlton, defendant threw the man to the ground and took off.

Charlton called DeShader and reported the incident.

      Charlton further testified that sometime in June 2015, he and defendant

were incarcerated in the county jail. Charlton said that in the jail, defendant

ambushed him. According to Charlton, defendant "just started wailing" on him

and "beat him senseless." Charlton said defendant told him, "every time I see

you, I'm going to get you because you know you snitching on me and my girl."

      Charlton stated that six officers were required to stop the assault. As the

officers were taking defendant away, defendant told Charlton, "every time I see

you, man, I'm going to get you man. I'm going to get you, man. I'm going to

kill you." A security camera recorded the incident.


                                                                         A-3784-17T4
                                       9
      The jury found defendant guilty on all charges. On January 26, 2018, the

judge denied defendant's motions for a judgment of acquittal or, alternatively, a

new trial. The judge granted the State's motion to sentence defendant to an

extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).

      On Indictment No. 16-04-0739, the judge merged certain offenses and

sentenced defendant on count one (robbery) to a thirty-year prison term, with an

eighty-five percent parole bar, pursuant to the No Early Release Act (NERA),

N.J.S.A. 2C:43-7.2. The judge imposed a flat twenty-year consecutive term on

count four (witness tampering of Charlton). On Indictment No. 16-07-1223, the

judge imposed a flat, fifteen-year consecutive term on count one (witness

tampering of Robinson).

      The judge entered judgments of conviction dated February 13, 2018, and

March 2, 2018. This appeal followed.

      On appeal, defendant's appellate counsel raises the following arguments:

            [POINT ONE]
            THE TRIAL COURT ABUSED ITS DISCRETION
            BY IMPROPERLY EXCLUDING PROBATIVE AND
            EXCULPATORY EVIDENCE AT TRIAL.

            [POINT TWO]
            THE TRIAL COURT ABUSED ITS DISCRETION
            BY DENYING DEFENDANT'S MOTION FOR A
            MISTRIAL.


                                                                          A-3784-17T4
                                      10
      [POINT THREE]
      THE TRIAL COURT ERRED BY CONCLUDING
      THAT DEFENDANT WAIVED HIS RIGHT TO A
      SUPPRESSION HEARING.

      [POINT FOUR]
      THE TRIAL COURT ABUSED ITS DISCRETION
      BY IMPOSING AN EXCESSIVE SENTENCE.

Defendant has filed a supplemental pro se brief in which he argues:

      [POINT ONE]
      THIS CASE['S] WRONGFUL CONVICTIONS
      STEM[] FROM PROSECUTORIAL
      MISCONDUCT[,] VIOLATED [DEFENDANT'S]
      GUARANTED [SIC] RIGHTS UNDER THE U.S.
      CONST. 4TH, 5TH, 14TH AMENDMENTS AND
      N.J. CONST. ARTICLE I, PARAGRAPHS 1, 7
      [AND] 8 . . . DUE TO BRADY VIOLATIONS; AN
      INVALID COMPLAINT WARRANT . . . WHICH
      LACKED JURISDICTION; THE VICTIM'S MVR
      STATEMENT BY MR. PERRICONE DID NOT
      IDENTIFY APPELLANT AS THE PERSON WHO
      ROBBED HIM . . . REQUIRES REVERSAL AND
      THAT THE CONVICTIONS BE VACATED.
      (Partially Raised Below).

      A. Brady Violation

      B. Invalid Complaint Warrant [and] Existence of
      MVR Exculpatory Evidence.

      C. Fatal Defects in [the] State[] Government['s]
      Charging Instrument reveals that the Indictments are
      void since they have never been endorsed as a true bill
      by a foreperson, nor have they been presented in open
      court before the [A]ssignment [J]udge or any judge


                                                                 A-3784-17T4
                               11
            attributed to prosecutorial misconduct to violate
            defendant[']s constitutional rights.

            [POINT TWO]
            [THE] MOTION FOR ACQUITTAL OR IN THE
            [ALTERNATIVE] DEEMED A MOTION FOR A
            NEW TRIAL [WERE] ARBITRARILY DENIED . . .
            HEREBY BY SUPPLEMENTATION [OF]
            APPELLANT'S SIXTH AMENDMENT RIGHTS TO
            HAVE WITNESSES IN HIS FAVOR AND [ITS]
            "COMPULSORY PROCESS" WAS VIOLATED DUE
            TO [A] MISCARRIAGE OF JUSTICE, RESULTING
            [IN] AN UNFAIR TRIAL[] BECAUSE IT WAS THE
            PROSECUTOR WHO "PRESERVED" PURSUANT
            TO N.J.R.E. 801(E) IN THE TRIAL RECORD,
            EVIDENCE IN NATURE OF N.J.R.E. 804(A)(4)
            THAT THE VICTIM WAS DECEASED AND
            THEREFORE UNAVAILABLE AS A WITNESS . . .
            WHICH ESTABLISHED THE NEXUS FOR THE
            HEARSAY EXCEPTION IN LIEU OF TESTIMONY
            TO PROCEED WITH THE STATEMENTS OF
            CHRISTOPHER PERRICONE. . , DENOTING
            THAT [DEFENDANT] WAS NOT THE PERSON
            WHO ROBBED HIM, REQUIRES REVERSAL AND
            TO VACATE THE WRONGFUL CONVICTIONS.
            (Partially raised below).

                                      II.

      We first consider defendant's contention that the trial judge erred by

excluding the MVR of the police officers' show-up, in which the victim told the

officers defendant was not the individual who robbed him. Defendant argues

that the victim's statements were admissible under the hearsay exception for

excited utterances.

                                                                       A-3784-17T4
                                      12
      On appeal, we review the trial court's evidentiary rulings for abuse of

discretion. State v. Green, 236 N.J. 71, 81 (2018) (citing State v. Rose, 206 N.J.

141, 157 (2011)). We will not reverse the trial court's evidentiary ruling unless

it "is so wide of the mark that a manifest denial of justice resulted." State v.

J.A.C., 210 N.J. 281, 295 (2012).

      N.J.R.E. 801 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." N.J.R.E. 801(c). Hearsay may not be admitted

into evidence unless it falls within one of the exceptions provided by the rules

of evidence or "other law." N.J.R.E. 802.

      The "excited utterance" exception allows the admission of a statement

"relating to a startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition and without

opportunity to deliberate or fabricate." N.J.R.E. 803(c)(2). The rationale for

the exception is that "'excitement suspends the declarant's powers of reflection

and fabrication,' consequently minimizing the possibility that the utterance will

be influenced by self-interest and therefore rendered unreliable." State v. Long,

173 N.J. 138, 158 (2002) (quoting 2 McCormick on Evidence § 272, at 204-05

(5th ed. 1999)).


                                                                            A-3784-17T4
                                        13
      In deciding whether a declarant had an opportunity to fabricate or

deliberate, the court should consider "the element of time, the circumstances of

the incident, the mental and physical conditional of the declarant, and the nature

of the utterance." Id. at 159 (internal quotation marks and citation omitted).

Although each factor is important, "[t]he crucial element is the presence of a

continuing state of excitement that contraindicates fabrication and provides

trustworthiness." State v. Cotto, 182 N.J. 316, 328 (2005) (quoting State v. Lyle,

73 N.J. 403, 413 (1977)).

      Here, the record supports the trial judge's determination that the victim's

statements on the MVR recording were hearsay and not admissible under the

exception for excited utterances. The judge found that, when the police asked

the victim to identify the persons who robbed him, he was not under the stress

of excitement from the robbery.

      The judge noted that on the MVR recording, the victim is heard speaking

about his diabetes, and he asked if the police had recovered his wallet. He also

is heard joking with the officer. The judge noted that the victim did not sound

overwrought or distressed.      According to the judge, the victim sounded

"somewhat confused."




                                                                          A-3784-17T4
                                       14
      The judge further found that the victim had the opportunity to deliberate

before he made the recorded statements. The judge noted before the grand jury,

the victim testified he did not identify the perpetrators on the night of the

incident because he was afraid of them and possible retribution.

      The judge found the victim's testimony showed he made a "conscious

choice" after having deliberated on what would be in his best interest. The judge

stated that the victim "contemplated and calculated" and "decided to fabricate a

response to the police question." The judge also noted that the victim's statement

was in response to a question rather than a spontaneous outburst.

      The judge further found that the MVR recording provided further evidence

the victim deliberated before answering the officer's question. The ju dge noted

that when the officer drove past defendant and Robinson, he asked the victim if

he had seen them. The victim replied, "yeah" and after a pause said "yeah"

again. According to the judge, the victim started to say something, but the

officer cut him off and said, "is that them?"

      The judge stated that the victim replied, "hang on a second." There is

another pause and then [the victim] says "no." The judge found that this

exchange showed the victim was taking his time in deciding whether to identify

the persons who committed the robbery. The judge commented that an excited


                                                                          A-3784-17T4
                                       15
utterance should be spontaneous and exclamatory, but the "opposite" occurred

here.

        We are convinced the record supports the judge's findings and his

conclusion that the victim's statements on the MVR recording were not excited

utterances under Rule 803(c)(2). The judge did not err by denying defendant's

application to admit the MVR recording into evidence.

        However, even if the judge erred by refusing to admit the MVR recording,

reversal of defendant's convictions is not warranted because the error is

harmless. Because the State presented overwhelming evidence showing that

defendant committed the charged offenses, the claimed error was not "sufficient

to raise a reasonable doubt as to whether" the error "led the jury to a result it

otherwise might not have reached." State v. Prall, 231 N.J. 567, 581 (2018)

(quoting State v. Daniels, 182 N.J. 80, 95 (2004)).

        We therefore conclude the judge did not err by denying defendant's motion

for admission of the MVR recording.

                                       III.

        Next, defendant argues the judge erred by denying his motions for a

mistrial. Again, we disagree.




                                                                         A-3784-17T4
                                       16
      "The grant of a mistrial is an extraordinary remedy to be exercised only

when necessary 'to prevent an obvious failure of justice.'" State v. Yough, 208

N.J. 385, 397 (2011) (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). The

decision of whether to grant a mistrial is "entrusted to the sound discretion of

the trial court." State v. Smith, 224 N.J. 36, 47 (2016). We will not disturb the

trial court's decision on a motion for a mistrial unless it is shown to be "an abuse

of discretion that results in a manifest injustice." State v. Jackson, 211 N.J. 394,

407 (2012) (internal quotation marks and citation omitted).

      A defendant who engages in misconduct in the presence of a jury is not

entitled to a mistrial. State v. Montgomery, 427 N.J. Super. 403, 407 (App. Div.

2012) (citing State v. Ganal, 81 Haw. 358, 378 (1996); Gordon v. State, 609

N.E.2d 1085, 1087 (Ind. 1993); State v. Wiggins, 337 So.2d 1172, 1173 (La.

1976)). A defendant may not engage in courtroom misconduct "and then expect

to be rewarded with a mistrial or new trial" when the trial judge has taken

"appropriate cautionary measures." Id. at 410.

      In this case, the record shows defendant engaged in disruptive conduct

during jury selection by interrupting the judge's discussion of the process.

Defendant was angry that the judge had refused to allow the defense to admit

the MVR recording, and he demanded he had the right to confront his accuser.


                                                                            A-3784-17T4
                                        17
He stated that the court had to dismiss the charges. The judge granted the

application by defense counsel to dismiss the potential jurors who witnessed

defendant's conduct and directed them not to tell any other prospective jurors

about what had occurred in court.

      After the jury was selected, defendant interrupted the assistant

prosecutor's opening statement by telling the jury there was a recording in which

the victim looks at him and stated that he was not the person who robbed him.

The judge told defendant to stop interrupting but he continued to disrupt the

proceedings. Defendant accused the prosecutor of lying. He invoked his right

to confrontation and began to curse and shout. The judge asked the jury to leave

the courtroom.

      Defense counsel then moved for a mistrial. The judge denied the motion.

The judge explained that defendant had been consistently disruptive and there

was "no assurance" he would "behave any differently" if a mistrial were declared

and trial began anew. The jury returned to the courtroom. The judge instructed

the jury that defendant's statements were not evidence and it must decide the

case based solely on the testimony and evidence admitted.

      The following day, the trial continued.     Defendant again engaged in

disruptive conduct before the jury and the judge ordered his removal from the


                                                                         A-3784-17T4
                                      18
courtroom. The judge instructed the jury that it could not consider defendant's

absence against him. Defendant was removed the next day after another outburst

during the prosecutor's argument opposing the defense motion for a judgment of

acquittal. He yelled and, as he was taken out, continued shouting in the hallway.

      The judge also ordered defendant's removal from the courtroom when he

interrupted the judge's final instructions to the jury. Defendant stated that the

victim did not testify and he was entitled to a fair trial. The judge instructed the

jury to leave the courtroom, and defendant continued his disruptive statements.

      Defendant's counsel then moved for a mistrial, arguing that the timing of

defendant's outburst was prejudicial. The judge denied the motion. The judge

again instructed the jurors they could not consider defendant's statements in their

deliberations.

       On appeal, defendant argues that the judge erred by failing to declare a

mistrial. He argues that the facts here are different from those in Montgomery,

where the defendant assaulted defense counsel, got into an altercation with the

sheriff's officers, attempted to escape from the courtroom, and had to be subdued

by the court officers. Id. at 405.

      Defendant further argues that in Montgomery, the defendant waited until

the conclusion of the State's case to cause a disturbance, and this was after


                                                                            A-3784-17T4
                                        19
defendant had seen the overwhelming evidence against him. He claims that in

this case, his interruptions began shortly after the trial began, and he did not

engage in a deliberate attempt to cause a mistrial.

      We are convinced, however, that defendant's attempt to distinguish

Montgomery is unavailing. Defendant did not engage in a physical altercation

with the court officers or attempt to escape, but his conduct was disruptive and

persisted throughout the trial court proceedings. It continued after defendant

had the opportunity to see the overwhelming evidence against him.

      Viewed in its totality, defendant's conduct was a deliberate attempt to

derail the trial. The judge did not abuse his discretion by denying defendant's

motions for a mistrial. The judge took steps to ensure that the jury would not

consider defendant's disruptive statements and conduct against him.

                                       IV.

      Defendant argues that the judge erred by finding that he withdrew his

motion to suppress evidence. He contends the judge erred by finding he waived

his right to an evidentiary hearing on his motion.

      "Waiver is the 'intentional relinquishment or abandonment of a known

right or privilege.'" Mazdabrook Commons Homeowners' Ass'n v. Khan, 210

N.J. 482, 505 (2012) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).


                                                                        A-3784-17T4
                                       20
"To be valid, waivers must be knowing, intelligent, and voluntary."           Ibid.

(citations omitted). "[A] waiver of constitutional rights in any context must, at

the very least, be clear." Id. at 505-06.

      As noted, after defendant moved to suppress the victim's wallet, the judge

scheduled a hearing on the motion. The State was prepared to call the arresting

officer to testify. Defendant interrupted and told the judge:

            THE DEFENDANT: No, Your Honor, I'm- waiving all
            this, I can care less about any of this stuff, I'm not
            consenting to nothing that's going on right now. Your
            Honor, I don't have anything to do with this. I asked
            you to review the [MVR recording] so you can
            exonerate me. This is exculpatory evidence. And I
            refuse to continue on with this process, I do not want
            my lawyer to say nothing [sic] on my behalf.

                   ....

            Your Honor, I don't want this to proceed on. I don't
            want no [sic] testimony, evidence, that's not in my favor
            to be . . . to proceed on. I would like first to review this
            tape. For this to — there's nothing in — there's nothing
            he [the arresting officer] can say. The victim already
            told him from the very beginning I did not rob him.
            From there he had no right to come back . . . and arrest
            me. Period. . . . There's nothing he can say Your
            Honor, he did wrong.

            THE COURT: If you continue to interrupt me I'm going
            to have the officers remove you.

            THE DEFENDANT: I just don't want, I just —


                                                                           A-3784-17T4
                                       21
               THE COURT: Because you're preventing the orderly
               hearing of this case.

               THE DEFENDANT: — want to do away with this
               motion. Your Honor, I don't want to have this motion.
               I have that right. . . . The victim told him I didn't rob
               him. There's nothing more to be said. The man told
               you I didn't do nothing to him. Why am I here?

                     ....

               I just want you to review the tape and make a decision
               after that, from there you can just give my cut-off plea
               bargain. I don't have nothing else to say. I don't want
               this motion. . . . I want you to review that this man told
               this officer over and over again that it wasn't me.
               Period. And you make your decision from there. . . . I
               don't want to hear this, this officer ain't going to come
               over here and try to manipulate the situation. . . .
               They're trying to cover up for this officer, that's all
               they're trying to do.

         Defendant stated, "I don't want to have this hearing. I mean . . . it’s my

right." The judge tried to clarify whether defendant wanted to waive his right

to the hearing on his motion, but defendant continued to interrupt and ignore the

judge's questions. The judge told defendant, ". . . I’m taking this to mean you

don't want this suppression hearing. . . . You don't want the motion to suppress

hearing - - you don't want the motion to suppress. . . . That's how I'm taking it

. . . . And I'm not hearing you disagree with me. . . . Alright, we're going to end

this."


                                                                            A-3784-17T4
                                          22
      Defendant continued to speak over the judge and was eventually removed

from the courtroom. After defendant was removed, the judge and both attorneys

agreed the court should question defendant further regarding his decision to

waive the pretrial motions. Defendant returned to the courtroom, and the judge

stated on record that he would not be proceeding with defendant's motions.

      The prosecutor said the parties had filled out plea cut-off forms, which

indicated that defendant was waiving his right to a hearing on the suppression

motion. The prosecutor explained the forms. The judge stated that the pretrial

memorandum appeared to have been signed by both attorneys and defendant.

The judge asked the sheriff’s officer to present the document to defendant one

last time.

      Defendant responded by insisting he had the right to confront the victim,

and the judge again explained this would not be possible because the victim was

deceased. The judge asked defendant whether he read and reviewed the pretrial

memorandum with his attorney, and defendant stated, "Yeah, I signed all this,

Your Honor."

      We are convinced the record supports the judge's determination that

defendant waived his right to a hearing on his suppression motion. The record

shows that defendant reserved the right to seek admission of the MVR recording,


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but waived his other pretrial motions, including the motion to suppress the

victim's wallet.   Defendant's contention that he did not make a knowing,

intelligent, and voluntary waiver of his right to a hearing on the motion is

entirely without merit.

                                       V.

      Defendant argues his sentence is excessive. He contends the judge gave

undue weight to the aggravating factors and improperly imposed consecutive

rather than concurrent sentences.

      We apply a "deferential" standard in reviewing a lower court's sentencing

determination. State v. Fuentes, 217 N.J. 57, 70 (2014). This court:

            must affirm the 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."

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

      Here, the judge found aggravating factors three (the risk that defendant

will commit another offense), six (the extent of defendant’s prior criminal record

and the seriousness of the offenses for which he has been convicted), and nine



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                                       24
(the need for deterring defendant and others from violating the law). N.J.S.A.

2C:44-1(a)(3), (6), (9). The judge found no mitigating factors.

      As we noted previously, the judge granted the State's motion to sentence

defendant to an extended term as a persistent offender pursuant to N.J.S.A.

2C:44-3(a). The judge sentenced defendant on the robbery to a thirty-year

prison term, subject to NERA. The judge also imposed a flat, twenty -year

consecutive prison term for the witness tampering of Charlton, and a flat,

fifteen-year consecutive prison term for the witness tampering of Robinson.

      On appeal, defendant argues that while there is some support in the record

for the judge's findings of aggravating factors three, six, and nine, the judg e

should have given these aggravating factors little or no weight since they formed

the basis for the extended term sentence. He contends that the application of the

aggravating factors resulted in the imposition of the maximum possible

sentences for nearly all of his convictions. He asserts the resulting sentence is

excessive. We disagree.

      The convictions that made defendant eligible for persistent-offender status

under N.J.S.A. 2C:44-3(a) were committed in 2013 and 2009.             However,

defendant has six other indictable convictions, which include convictions for

robbery, aggravated assault, and distribution of a controlled dangerous


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                                      25
substance in a school zone. He also has fifteen disorderly persons convictions,

parole and probation violations, and at least nine juvenile dispositions, including

one for robbery. The judge aptly noted that defendant has led a "life of crime."

Thus, defendant's record provides sufficient evidence to support the judge's

findings on aggravating factors three, six, and nine.

      In addition, defendant contends the judge erred by imposing consecutive

sentences for the two witness-tampering convictions. He argues that the judge

did not provide sufficient reasons for these sentences. He contends the witness -

tampering convictions could have run concurrently with each other, and the

judge erred by failing to explain why he decided to have defendant serve these

sentences consecutively.

      N.J.S.A. 2C:44-5(a) provides that "[w]hen multiple sentences of

imprisonment are imposed on a defendant for more than one offense, including

an offense for which a previous suspended sentence or sentence of probation has

been revoked, such multiple sentences shall run concurrently or consecutively

as the court determines at the time of sentence" subject to two limitations, which

do not apply here. When deciding whether a sentence should run consecutively

or concurrently, the judge should consider:

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

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                                       26
            (2) the reasons for imposing either a consecutive or
            concurrent sentence should 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
            predominantly 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;

            (5) successive terms for the same offense should not
            ordinarily be equal to the punishment for the first
            offense; . . .

            [Id. at 347-48 (quoting State v. Yarbough, 100 N.J. 627,
            643-44 (1985)).] 1

1
  In Yarbough, the Court added another factor, indicating there should be an
outer limit on the cumulation of consecutive sentences for multiple offenses. Id.
at 644. This factor is no longer part of the Yarbough analysis because the


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                                      27
      A sentencing court must explain its decision to impose concurrent or

consecutive sentences because "[a] statement of reasons is a necessary

prerequisite for adequate appellate review of sentencing decisions." State v.

Miller, 108 N.J. 112, 122 (1987). If the court "fails to give proper reasons for

imposing consecutive sentences at a single sentencing proceeding, ordinarily a

remand should be required for resentencing." State v. Carey, 168 N.J. 413, 424

(2001).

      Here, the trial court failed to provide an explanation for imposing

consecutive sentences for the witness tampering convictions. Therefore, the

matter must be remanded to the trial court to explain the reasons the court

decided to have defendant serve the two sentences for witness-tampering

consecutively, rather than concurrent with each other.

      In addition, the State argues that the judge erred by imposing a flat,

twenty-year sentence on count four on Indictment No. 16-04-0739. Here, the

judge merged counts five (retaliation) and six (aggravated assault) with c ount




Legislature enacted N.J.S.A. 2C:44-5(a)(2), which states that "[t]here shall be
no overall outer limit on the cumulation of consecutive sentences for multiple
offenses." See State v. Carey, 168 N.J. 413, 423 n.1 (2001) (quoting L. 1993, c.
223, § 1).
                                                                        A-3784-17T4
                                      28
four (witness-tampering). The judge then imposed a flat, twenty-year prison

term on count four.

      However, as the State notes, count six is subject to NERA, with its

mandatory eighty-five percent period of parole ineligibility and three-year

period of parole supervision. See N.J.S.A. 2C:43-7.2(d)(4). Moreover, the

NERA periods of parole ineligibility and parole supervision survive the merger.

See State v. Robinson, 439 N.J. Super. 196, 201 (App. Div. 2014).

      Therefore, the sentence on count four should have included the eighty-

five percent period of parole ineligibility and the three-year period of parole

supervision, as required by NERA. Because the court must consider the real-

time consequences of NERA when imposing a sentence, we remand for

resentencing on counts four, five, and six on Indictment No. 16-04-0739.

      We have considered the additional arguments presented by defendant in

his pro se supplemental brief. We are convinced these arguments lack sufficient

merit to warrant discussion. R. 2:11-3(e)(2).

      Affirmed in part and remanded in part for a statement of reasons for the

imposition of consecutive sentences on count four of Indictment No. 16-04-0739

and count one of Indictment No. 16-07-1223, and for re-sentencing on counts

four, five, and six of Indictment No. 16-04-0739. We do not retain jurisdiction.


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