                        NOT FOR PUBLICATION WITHOUT THE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-0968-14T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JULLIAN OREE,

     Defendant-Appellant.
_________________________

              Submitted November 30, 2016 – Decided June 26, 2018

              Before Judges Fuentes, Simonelli and Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment No.
              11-06-0410.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (Peter B. Meadow, Designated
              Counsel, on the brief).

              Michael H. Robertson, Acting Somerset County
              Prosecutor, attorney for respondent (James L.
              McConnell, Deputy Attorney General/Acting
              Assistant Prosecutor, of counsel and on the
              brief).

              The opinion of the court was delivered by

FUENTES, P.J.A.D.
     A Somerset County Grand Jury returned Indictment No. 11-06—

0410 against defendant Jullian Oree1, charging him with third

degree burglary, N.J.S.A. 2C:18-2(a) (count one); second degree

theft of movable property2, N.J.S.A. 2C:20-3(a), valued in excess

of $75,000, N.J.S.A. 2C:20-2(b)(1)(a) (count two); third degree

criminal mischief, N.J.S.A. 2C:17-3(a) (count three); and fourth

degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count

four).    Defendant was tried before a jury over the course of ten

days and convicted of third degree burglary, N.J.S.A. 2C:18-2(a),

second degree theft of movable property, N.J.S.A. 2C:20-3(a), and

third degree criminal mischief, N.J.S.A. 2C:17-3(a).             On January

6, 2014, the trial judge sentenced defendant to an aggregate term

of seven years imprisonment, and ordered him to pay restitution

in the amount of $117,242.02.

     In this appeal, defendant claims the trial judge erred in

denying   his   motion   for   a   judgment    of   acquittal.   We    reject

defendant's     arguments   attacking    the   legal   viability      of   his

conviction.     Defendant also argues that the trial court erred in


1
  The Indictment also named Anthony Bostick as a codefendant.
However, on the day this case came to trial, Bostick pled guilty
to all of the charges.
2
  N.J.S.A. 2C:20-1(e) defines "movable property" as "property the
location of which can be changed, including things growing on,
affixed to, or found in land, and documents, although the rights
represented thereby have no physical location."

                                     2                                A-0968-14T1
imposing the sentence.         We agree and remand this matter for

resentencing.     Our analysis of the issues raised by defendant is

informed by the following facts, which we derived from the evidence

presented at trial.

                                      I

     This case arises from a burglary that occurred on the night

of November 23, 2010, at a residence located in the Borough of

Watchung.    Earlier that day, defendant texted his former paramour,

Nia Weaver, and asked her to rent a car for him.              After several

unsuccessful attempts, Weaver told defendant that rental cars were

in short supply due to the Thanksgiving holiday.            Using the alias

"Eddie Howell," defendant and another individual rented a Dodge

Charger   that   afternoon    from   a    car   rental   agency   located      in

Englewood.       Only   the   name   "Howell"    appeared   on    the    rental

agreement.

     Sometime between ten and eleven o'clock that evening, Victor

Santos returned to his home on Shady Brook Court in Watchung.

After opening his garage door, Santos noticed that the basement

lights were on and the tools stored in the garage were scattered

on the floor; he also heard noises coming from inside the house.

Santos used his cellphone to call his neighbor, a retired Watchung

police officer.     As soon as he arrived, the neighbor noticed "a

lot of damage" when he looked into the basement through the window

                                      3                                 A-0968-14T1
in the garage.   He called the Watchung Police Department to report

a suspected burglary.

     Watchung Police Sergeant Gene McAllister was the first to

arrive on the scene.     After searching the house to ensure there

was no one else inside, McAllister, the neighbor, and Santos walked

through the house to assess the damage and determine whether

anything had been taken.    Officer Kyle Poulsen also responded to

the report of a burglary at the Santos residence.     As he pulled

his car onto Shady Brook Court, Poulsen saw a black Dodge Charger

backed into the driveway of a nearby home on the block.    Because

the area was not well lit, Poulsen used the spotlight mounted on

his police car to illuminate the driveway where the Charger had

stopped.   Poulsen noticed the car's engine was still running and

two individuals were seated in the front seats of the vehicle.

     Poulsen parked his police car and began to walk toward the

driveway where the Charger had stopped.      As he approached, he

noted the occupants were two African American men; the man seated

on the driver side was wearing a white sweatshirt and the passenger

wore a similar, blue-colored garment.    When he was approximately

ten to twelve feet away from the driver of the Charger, Poulsen

yelled, "Officer Poulsen, Watchung Police Department. Roll the

window down."    According to Poulsen: "At that point, the vehicle

immediately sped off."

                                 4                          A-0968-14T1
     Poulsen    radioed      the     Charger's        license      plate    number    and

returned to his patrol car to pursue it.                      Police Officer Jason

Moberly, who was also responding to the burglary report, heard

Poulsen's radio dispatch.          Moberly saw the Charger turn right onto

Valley Road, without making any effort to comply with the stop

sign that was posted at that location.                         Moberly immediately

activated his patrol car's overhead lights and began pursuing the

Charger. He was soon joined by Poulsen, who likewise had activated

his emergency lights and sirens.

     The Charger continued eastbound on Valley Road and ran through

a red light. Moberly shined his light on the Charger's rear window

while   in   pursuit   and     noticed      that      there    were   actually       four

occupants in the car, all African American men.                            Moberly also

testified that while pursing the Charger, he "observed sparks on

the right hand side of the vehicle . . . ."                   The pursuit continued

past the residence of Debra Krienke, who observed the Charger and

heard   "something     clang    at    the       end   of   [her]    driveway."        The

following day, she found a "yellow crowbar" at the end of her

driveway.

     The pursuit ended in the parking lot of a Watchung museum.

The Charger entered the parking lot, hit a dip, spun out, and

eventually ended up facing the opposite direction.                           As Moberly

entered the parking lot, the Charger was facing the patrol car;

                                            5                                   A-0968-14T1
the Charger accelerated and collided with the patrol car head-on.

Immediately thereafter, all four of the Charger's doors opened and

its four occupants fled.   The two men seated on the right side of

the vehicle fled southeast; the two men seated on the drivers'

side ran southwest.

     Moberly ran after the two who had fled from the passenger's

side, shouting for them to stop. While in pursuit, Moberly noticed

that the individual directly in front of him was approximately six

feet tall, was wearing a dark sweatshirt and dark blue pants, and

threw something up into the air.     The area was dark and heavily-

wooded.    At one point, Moberly tripped over a tree root and fell

to the ground.    He lost track of the suspect by the time he got

back on his feet.

     Watchung Police Sergeant Andrew Hart was off duty when he

heard of the pursuit and proceeded to the museum parking lot.

Moberly told Hart that the fleeing individual, later identified

as defendant, had discarded an object in the course of the foot

pursuit.   A ski cap was discovered in the area and turned over to

Detective Kenneth Boyle.    A canine (k-9) team, consisting of a

police officer and his canine partner, responded to the scene and

located codefendant Bostick, who was taken into custody.

     After going through the house, Santos and Sergeant McAllister

found damage in an area of the basement where a safe was located

                                 6                          A-0968-14T1
with its wheels anchored to the floor.      The sheetrock walls of the

closet in which the safe was kept had been torn down and there

were pieces of sheetrock and sheetrock dust on the floor.                 An

inspection of the safe revealed pry marks and paint marks on the

back.    There were several footprints on the pieces of broken

sheetrock and on the safe; several other pieces of sheetrock had

tool marks with a distinct "waffle pattern."

     In the master bedroom upstairs, various dresser drawers and

other items had been scattered across the room.          Pillow cases from

the bed and several expensive watches were also missing.                The

police found one of the pillow cases in the basement on the floor.

In it, the officers found fifteen watches, cuff links, and tie-

clips,   worth   approximately   $68,000   in   total.      Officers   also

recovered as evidence two hammers with waffle-type patterns on the

heads, a machete with a bent tip, two screwdrivers, pieces of

broken sheetrock and carpet, both with footprints, and the pillow

case found in the basement.

     On the exterior of the home, the police discovered that the

wires for the telephone, cable, and alarm system had been cut;

the back door appeared as if it had been "shouldered" opened by

force.   In the utility closet, a burglar alarm panel had been

ripped off the wall.



                                   7                               A-0968-14T1
     Approximately ninety minutes after the pursuit that ended in

the museum parking lot, State Trooper Marcan Kolodziej responded

to a report of a man found walking in the area of mile-marker

forty-seven along Route 78.     This individual was later identified

as defendant. Despite the cold weather, defendant was only wearing

dark pants and a white t-shirt.            Defendant was detained and

transported to the Watchung police station.

     Moberly recognized defendant as one of the men who fled from

the Charger.   During the foot chase, Moberly particularly noticed

the "discoloration" on his neck, which matched the tattoo on

defendant's neck.       The thorny burrs defendant had on his pants

also matched those Moberly had on his clothing following the foot

chase through the woods.     Detective Anderle also noticed that the

pattern on the soles of defendant's shoes matched those left in

the sheetrock dust at the crime scene; defendant's shoes had the

same sheetrock dust on the soles.3

     Before    asking    defendant   any   questions   concerning     these

crimes, the police officers read to defendant his rights under

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


3
  While at the police station, defendant asked Moberly for a drink
of water. Moberly gave defendant a Styrofoam cup from which he
drank the water. After defendant threw the cup in the garbage,
another officer recovered it for a potential DNA analysis.



                                     8                              A-0968-14T1
verbally and in writing agreed to waive his rights and answer the

police officers' questions.   The police officers video recorded

both the waiver and the interrogation.       Defendant stated that

earlier on November 23, 2010, he had gone to Allentown4 with his

girlfriend Nia Weaver.   On their way back, they started "beefin"

(which we infer to mean argue), causing Weaver to pull over and

demand that defendant get out of her car.     Defendant claimed he

was left stranded on the side of the road.    He tried to call his

mother on his cellphone and tried to find a gas station.    Several

minutes later, State Trooper Kolodziej picked him up.      Defendant

denied any involvement with the burglary of Santos's home.

     While patrolling the area where the pursuit occurred on Coles

Avenue, Officer Poulsen found a blue and yellow pry bar.    When the

police officers returned to Santos's home during the daylight to

survey the damage, they noticed several outdoor landscaping lights

had been smashed and no longer pointed in the direction of the

home.   The police also impounded and photographed the Charger.

After securing a warrant, Sergeant Kelly and Detective Anderle

searched the interior of the car and found a plastic Coke bottle,

a New York Yankees baseball cap, an empty chip bag, small pieces



4
  The record is not clear whether defendant was referring to
Allentown, Pennsylvania or Allentown, New Jersey.


                                9                            A-0968-14T1
of sheetrock, a fingernail clipping, four pry bars, and the car

rental paperwork.

     On December 2, 2010, the Styrofoam cup defendant used to

drink water at the police station and the evidence recovered from

the Charger were sent to the State Police Laboratory for forensic

analysis.   Samples were taken from the black knit cap, the Yankees

hat, the Coke bottle, the Styrofoam cup, and the fingernail

clipping.    The Laboratory's DNA Unit Forensic Scientist, Mary E.

Kite, conducted a DNA analysis of these items.          Kite testified

that there was a mixture of DNA on the Styrofoam cup and there was

one source of DNA on the fingernail.

     On August 26, 2011, the police obtained two buccal swabs from

defendant in order to compare the results to a profile.              Kite

conducted an analysis and testified that defendant was the major

contributor to both the cup and the fingernail.        There were three

contributors to the black knit cap and at least two contributors

were found on the Coke bottle.       Defendant did not contribute any

DNA material to these items.      Finally, no DNA was recovered from

the sample taken from the Yankees hat.

     The    police   sent   the   various   burglar   tools   recovered,

including the pry and crowbars, hammers, and screwdrivers to the

FBI Laboratory in Quantico, Virginia.        An analysis of the paint

residue on both revealed that there was "no difference" between

                                   10                            A-0968-14T1
the samples on the two pry bars recovered. The FBI also determined

that the paint transfer marks discovered on the safe and on the

carpet could have come from the same two pry bars.        A forensic

footwear and tire examiner from the FBI Laboratory conducted a

comparison of the sole marks found on the dry wall debris and

defendant's shoes.     He concluded that defendant's shoes could have

made the impressions found on five pieces of sheetrock and one

board.

     Santos attested at trial as to the value of the items, which

were in excess of $75,000.     Defendant did not testify and did not

present any witnesses.      After the State rested, the trial judge

denied defendant's motion for a judgment of acquittal under Rule

3:18-1.   The judge also denied defendant's motion for a new trial

under Rule 3:18-2.     The judge held a restitution hearing and found

the victim was entitled to $117,242.02.

                                   II

     Against this factual backdrop, defendant raises the following

arguments:

           POINT ONE

           THE TRIAL COURT ERRED IN (A) DENYING
           DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL
           AT THE END OF THE STATE'S CASE AND (B) DENYING
           DEFENDANT'S MOTION FOR A NEW TRIAL.

           POINT TWO


                                  11                          A-0968-14T1
          THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
          REQUEST   FOR   A   "MERE   PRESENCE"   JURY
          INSTRUCTION.

          POINT THREE

          DEFENDANT'S SENTENCE WAS EXCESSIVE AND UNDULY
          PUNITIVE, AND THE COURT IMPROPERLY APPLIED
          AGGRAVATING AND MITIGATING FACTORS.

     This court utilizes the same standard used by the trial judge

in reviewing a motion for judgment of acquittal.   State v. Bunch,

180 N.J. 534, 548-49 (2004).   We must determine

          whether, viewing the State's evidence in its
          entirety,   be   that   evidence   direct   or
          circumstantial, and giving the State the
          benefit of all its favorable testimony as well
          as all of the favorable inferences which
          reasonably could be drawn therefrom, a
          reasonable jury could find guilt of the charge
          beyond a reasonable doubt.

          [State v. Reyes, 50 N.J. 454, 459 (1967).]

     Under Rule 3:18-1, the court "is not concerned with the worth,

nature or extent (beyond a scintilla) of the evidence, but only

with its existence, viewed most favorably to the State."      State

v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977).       "If the

evidence satisfies that standard, the motion must be denied."

State v. Spivey, 179 N.J. 229, 236 (2004).

     Here, the record shows the State satisfied this burden of

proof.   The record we have described at length here speaks for

itself in this respect.   We reach the same conclusion with respect


                                12                          A-0968-14T1
to defendant's motion for a new trial under Rule 3:18-2.                "[A]

motion for a new trial is addressed to the sound discretion of the

trial judge, and the exercise of that discretion will not be

interfered with on appeal unless a clear abuse has been shown."

State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000).                 An

abuse of discretion only arises on demonstration of "manifest

error and injustice[,]" State v. Torres, 183 N.J. 554, 572 (2005),

and occurs when the trial judge's "decision is 'made without a

rational    explanation,    inexplicably     departed   from    established

policies,   or   rested    on   an   impermissible   basis.'"     Milne    v.

Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting

Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

     Here, the record again shows that the evidence presented by

the State supports the jury's verdict. There is thus no indication

that the trial judge abused his discretion in denying defendant's

motion for a new trial.         This same approach leads us to reject

defendant's claim of error in the judge's decision not to charge

the jury with the "mere presence" model charge.           Defense counsel

requested a "mere presence" charge as follows:

            Mere presence at or near the scene does not
            make one a participant in the crime nor does
            the failure of a spectator to interfere make
            him or her a participant in the crime. It is,
            however, a circumstance to be considered with
            the other evidence in determining whether he
            or she was present as an accomplice. Presence

                                      13                            A-0968-14T1
          is not in itself conclusive evidence of that.
          Whether presence has any probative value
          depends upon the total circumstances.

     After some discussion with counsel, the judge ultimately

declined to include the charge.    The judge provided the following

explanation for his ruling:

          I don't think he is entitled to a mere presence
          charge.   This is not a case which the mere
          presence charge should be contemplated. The
          mere presence is where you have either a
          perpetrator or a bystander to the event.
          [Defendant] is either a perpetrator or he's
          nothing.    He's certainly not a bystander.
          He's certainly not someone present at the
          scene whose presence involves or implicates
          acquiescence, failure to intervene, or any of
          the other bystander-type indicia.

     We discern no legal basis to disagree with the judge's

ultimate conclusion.   The mere presence charge is inapplicable

here.

     We will now address the sentence imposed by the court.

Defendant was thirty-two years old at the time he appeared before

the court for sentencing.   This was his first and only involvement

with the criminal justice system.      He has no criminal record as

an adult or any history of delinquency as a juvenile. He graduated

high school, attended two years of college, and had been employed

by the Xerox Corporation as a technician for the past thirteen

years.   Defendant owns his own home.     He has two daughters who,

at the time of sentencing, were five-years-old and five-months-

                                  14                        A-0968-14T1
old.    The older child resided with her mother in North Carolina;

the younger child resided with her mother in New York City.

Defendant financially supports both of his daughters.

       After   reviewing   this   record,   the   trial   judge   found   the

following aggravating factors: the risk that defendant will commit

another offense, N.J.S.A. 2C:44-1(a)(3), and the need to deter

defendant and others like him from violating the law, N.J.S.A.

2C:44-1(a)(9).     The judge did not find any mitigating factors.

The judge provided the following explanation for this decision:

           Although defendant has no prior criminal
           record, this court finds based upon the
           activity obviously engaged in, in preparation
           for   this    crime,   the    precision   and
           professionalism with which it was conducted,
           the selection of this particular house, as
           might be characterized as a high-valued
           target, there being allegedly some $143,000
           in property taken -- allegedly taken, as I
           recollect.

           It is the determination of this court that
           aggravating factor three applies.

           Certainly, aggravating factor nine applies,
           the need for deterring defendant and others
           from violating the law.

           No mitigating factors are substantially
           supported by the circumstances here and, thus,
           none are found to apply.

           [(Emphasis added).]

       In determining what sentence to impose, the judge "must

identify any relevant aggravating and mitigating factors set forth

                                    15                              A-0968-14T1
in N.J.S.A. 2C:44-1(a) and (b) that apply to the case" and "[t]he

finding of any factor must be supported by competent, credible

evidence in the record."           State v. Case, 220 N.J. 49, 64 (2014)

(citations     omitted).      As    Justice    Albin   emphasized    in     Case:

"Speculation and suspicion must not infect the sentencing process;

simply put, the finding of aggravating or mitigating factors must

be based on evidence."       Ibid.     Thus,

           [t]he "structured discretion" established by
           the Code of Criminal Justice compels the
           sentencing court to explain on the record its
           analysis of the statutory aggravating and
           mitigating factors "with care and precision"
           so as "[t]o avoid disparity in sentencing as
           the Legislature intended, to facilitate fair
           and effective appellate review, and to ensure
           that the defendant, the State and the public
           understand the reasons for the sentence."

           [State v. McFarlane, 224 N.J. 458, 466 (2016)
           (quoting State v. Fuentes, 217 N.J. 57, 81
           (2014)).]

      Here, the judge did not give any consideration to defendant's

lack of prior involvement with the criminal justice system, his

educational background, his lengthy history of employment with a

major   technology   corporation,       his    commitment   to   support       his

children, or his obligation to pay restitution to the victim of

his   crime.     Under     these    circumstances,     defendant's   criminal

behavior stands in sharp contrast to the law abiding, socially

responsible life he had lived up to this point.                  The judge's


                                       16                                 A-0968-14T1
finding   of   aggravating   factor      N.J.S.A.    2C:44-1(a)(3)   is   not

supported by the record and his conclusory statement in support

of this aggravating factor does not comply with the requirements

of Rule 3:21-4(g).

     Finally, we discern no legal or factual basis for the judge's

failure to find any mitigating factors. Under these circumstances,

there is ample evidential support for the court to have found the

following mitigating factors: defendant has compensated or will

compensate the victim of his conduct for the damage or injury that

he sustained, N.J.S.A. 2C:44-1(b)(6); defendant has no history of

prior delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7);

and defendant's character and attitude indicate that he is unlikely

to   commit    another   offense,   N.J.S.A.        2C:44-1(b)(9).     These

suggested mitigating factors are not to be considered by the trial

court or the parties as a conclusive or exhaustive list of the

mitigating factors that may be applicable here.

     We affirm defendant's conviction and remand for the trial

court to resentence defendant without consideration of aggravating

factor N.J.S.A. 2C:44-1(a)(3), and after giving due consideration

to the mitigating factors we have identified here, as well as any

other mitigating factors the court finds are supported by the

record.   We do not retain jurisdiction.



                                    17                               A-0968-14T1
